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LAW AND JUSTICE LEGISLATION AMENDMENT BILL 1997

                 PARLIAMENT OF VICTORIA

 Law and Justice Legislation Amendment Act 1997
                                 Act No.


                      TABLE OF PROVISIONS
Clause                                                            Page

PART 1--PRELIMINARY                                                  1
  1.     Purpose                                                     1
  2.     Commencement                                                3

PART 2--CRIMES ACT 1958                                              5
  3.     Forcible entry                                              5

PART 3--CRIMES (FAMILY VIOLENCE) ACT 1987                            6
  4.     Principal Act                                               6
  5.     Definitions                                                 6
  6.     Orders and complaints for multiple family members           6
  7.     Magistrates may issue warrants                              7
  8.     New section 13A inserted                                    7
         13A. Rules of evidence not to apply in certain cases        7
  9.     Variation of interstate summary protection orders           7
  10.    New section 18AAB inserted                                 10
         18AAB. Registration of New Zealand orders                  10
  11.    Statute law revision                                       11

PART 4--LEGAL AID LEGISLATION                                       12
  12.    Principal Act                                              12
  13.    Composition of VLA board                                   12
  14.    New Part IV substituted                                    12
         PART IV--INDEPENDENT REVIEWERS                             13
         18. Panel of independent reviewers                         13
         19. Functions of independent reviewers                     14
  15.    Immunity                                                   15
  16.    New section 37 substituted                                 16
         37. Conflicts of interest                                  16
  17.    Amendments consequential on appointment of independent
         reviewers                                                  16
  18.    Monetary limit on legal assistance                         20



                                      i
531199B.I1-22/4/97

 


 

Clause Page 19. New sections 29A and 29B inserted 20 29A. Practitioner panels 20 29B. Assignment of case to practitioner panel 23 20. Selection of practitioner 23 21. Time limits for reconsiderations and reviews 23 22. New section 49B inserted in Principal Act 23 49B. Supreme Court--limitation of jurisdiction 24 23. New section 51 inserted 24 51. Transitional provisions (1997 Amending Act) 24 24. Statute law revision 26 25. Amendment of Legal Aid Commission (Amendment) Act 1989 26 PART 5--LEGAL PRACTICE ACT 1996 28 26. Amendment of section 441 28 PART 6--MAGISTRATES' COURT ACT 1989 29 27. Principal Act 29 28. New Part 6A inserted in Principal Act 29 PART 6A--ADMINISTRATIVE SERVICES AGREEMENTS 29 Division 1--Definitions 29 124A. Definitions 29 Division 2--Agreements 31 124B. Ministers may enter into administrative services agreements 31 124C. Subject matter of agreement 31 124D. Rights of access 33 124E. Right of intervention in management 35 124F. Audit rights 37 124G. Status of documents 38 124H. Investigation of administrative actions 38 124I. Unauthorised access to or interference with data 39 124J. Confidentiality 41 29. Recall and cancellation of warrant 42 30. Execution costs 42 31. Transitional provisions 42 PART 7--PUBLIC PROSECUTIONS ACT 1994 44 32. Amendment of section 46 44 33. Supreme Court--limitation of jurisdiction 46 PART 8--ROAD SAFETY ACT 1986 47 ii 531199B.I1-22/4/97

 


 

Clause Page 34. Issue of infringement notices 47 PART 9--SECOND-HAND DEALERS AND PAWNBROKERS ACT 1989 48 35. Principal Act 48 36. Definitions 48 37. Application of Act 50 38. Substitution of Part 2 50 PART 2--REGISTRATION 50 5. Second-hand dealers and pawnbrokers to be registered 50 6. Eligibility for registration 51 7. Application for registration 51 8. Investigation of application 52 9. Registration 53 10. Automatic cancellation of registration 53 11. Lodgment of statement 55 12. Notification of changes 55 13. Register 55 14. Correction of the register 56 15. Approved forms 56 16. Offences 56 39. Substitution of section 19 57 19. Identifying persons selling or pawning goods 57 40. Recording transactions 58 41. Insertion of new section 21A 58 21A. Recording storage location of goods 58 42. Charges of pawnbrokers 58 43. Insertion of new sections 24A and 24B 59 24A. Offence of failing to comply with court order 60 24B. Sign to be displayed 60 44. Police powers of inspection 60 45. Service 60 46. Substitution of section 28 61 28. Delegation 61 47. Evidentiary 61 48. Bodies corporate 61 49. Regulation-making power 61 50. Repeal 62 51. Insertion of new section 36 62 36. Licence applications 62 iii 531199B.I1-22/4/97

 


 

Clause Page 52. Insertion of Schedule 62 SCHEDULE 62 PART 10--SUMMARY OFFENCES ACT 1966 64 53. Criminal trespass 64 54. New section 62 inserted 66 62. Transitional provision 66 55. New Schedule 1 inserted 67 SCHEDULE 1 67 NOTES 68 iv 531199B.I1-22/4/97

 


 

PARLIAMENT OF VICTORIA A BILL to amend the Crimes Act 1958, the Crimes (Family Violence) Act 1987, the Legal Aid Act 1978, the Legal Aid Commission (Amendment) Act 1989, the Legal Practice Act 1996, the Magistrates' Court Act 1989, the Public Prosecutions Act 1994, the Road Safety Act 1986, the Second-Hand Dealers and Pawnbrokers Act 1989 and the Summary Offences Act 1966 and for other purposes. Law and Justice Legislation Amendment Act 1997 The Parliament of Victoria enacts as follows: PART 1--PRELIMINARY 1. Purpose The main purposes of this Act are-- 1 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 1 Act No. (a) to reform the law relating to criminal trespass and for that purpose to amend the Summary Offences Act 1966 and the Crimes Act 1958; 5 (b) to amend the Crimes (Family Violence) Act 1987-- (i) to allow complaints and orders to be made in respect of more than one family member; 10 (ii) to provide for the variation, revocation or extension of interstate summary protection orders and the recognition of New Zealand protection orders; (iii) generally to improve the operation of 15 the Act; (c) to amend the Legal Aid Act 1978-- (i) to alter the composition and method of appointment of the board of directors of Victoria Legal Aid; 20 (ii) to provide for the replacement of legal aid review committees and legal aid appeal committees with independent reviewers; (iii) to enable limits to be imposed on the 25 total amount of payments that may be made to a private practitioner under that Act in respect of a case; (iv) to provide for the appointment of panels of practitioners; 30 (d) to amend the Magistrates' Court Act 1989 and the Road Safety Act 1986 to facilitate the outsourcing of certain administrative functions; 2 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 2 Act No. (e) to amend the Public Prosecutions Act 1994 to clarify the operation of section 46 of that Act; (f) to amend the Second-Hand Dealers and 5 Pawnbrokers Act 1989-- (i) to replace the licensing of second-hand dealers and pawnbrokers with a system of registration; (ii) to facilitate the recovery of stolen 10 goods; (iii) to remove the maximum rate of interest chargeable by pawnbrokers; (iv) to improve procedural matters in that Act. 15 2. Commencement (1) Except as otherwise provided in this section, this Act comes into operation on the day on which it receives the Royal Assent. (2) Subject to this section, the provisions of-- 20 (a) sections 13 to 17 and 19 to 23; (b) sections 3, 53, 54 and 55; (c) sections 36 to 52; (d) sections 5 to 10-- come into operation on a day or days to be 25 proclaimed. (3) If a provision referred to in sub-section (2)(a) does not come into operation before 1 July 1997, it comes into operation on that day. (4) If a provision referred to in sub-section (2)(b) 30 does not come into operation before 1 December 1997, it comes into operation on that day. 3 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 2 Act No. (5) If a provision referred to in sub-section (2)(c) does not come into operation before 1 January 1998, it comes into operation on that day. (6) If a provision referred to in sub-section (2)(d) 5 does not come into operation before 1 March 1998, it comes into operation on that day. _______________ 4 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 3 Act No. PART 2--CRIMES ACT 1958 3. Forcible entry No. 6231. Section 207(1) of the Crimes Act 1958 is Reprinted to repealed. No. 98/1995. Subsequently amended by Nos 22/1996, 35/1996, 45/1996, 46/1996 and 66/1996. 5 ------------------ 5 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 4 Act No. PART 3--CRIMES (FAMILY VIOLENCE) ACT 1987 No. 19/1987. 4. Principal Act Reprinted to In this Part, the Crimes (Family Violence) Act No. 95/1994 and 1987 is called the Principal Act. subsequently amended by No. 66/1996. 5 5. Definitions In section 3(1) of the Principal Act, after the definition of "interstate summary protection order" insert-- ' "New Zealand protection order" means an 10 order made under section 14 of the Domestic Violence Act 1995 of New Zealand;'. 6. Orders and complaints for multiple family members (1) After section 4(2) of the Principal Act insert-- "(3) An intervention order may be made in 15 respect of more than one aggrieved family member if the court is satisfied in accordance with sub-section (1) in respect of each aggrieved family member.". (2) After section 7(3) of the Principal Act insert-- 20 "(4) A complaint in respect of an aggrieved family member who is a child may be included in a complaint in respect of the child's parent if the complaints arise out of the same or similar circumstances. 25 (5) A complaint referred to in sub-section (4) may, on the application of the complainant or the defendant, be heard separately if the court thinks fit. 6 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 7 Act No. (6) Any number of complaints against a defendant may, on the application of the complainants or the defendant, be heard together if the court thinks fit.". 5 7. Magistrates may issue warrants After section 9(2) of the Principal Act insert-- "(3) For the avoidance of doubt, a magistrate may issue a warrant to arrest in the circumstances set out in sub-section (1)(b)1.". 10 8. New section 13A inserted After section 13 of the Principal Act insert-- "13A. Rules of evidence not to apply in certain cases (1) In a hearing referred to in sub-section (2) the 15 court may inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the contrary. (2) Sub-section (1) applies to-- (a) a hearing of a complaint if the 20 aggrieved family member is a child; or (b) a hearing of a complaint for an interim intervention order if the complainant is a person other than the aggrieved family member. 25 (3) If a complaint is made in respect of more than one aggrieved family member, sub- section (1) applies only in relation to the aggrieved family members who are children, except as provided by sub-section (2)(b).". 30 9. Variation of interstate summary protection orders For sections 18AA(3) and (4) of the Principal Act substitute-- 7 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 9 Act No. "(3) A registered interstate summary protection order-- (a) has the same effect as an intervention order made under section 4; and 5 (b) may be enforced against a person as if it were an intervention order and as if a copy of the order had been served on that person in accordance with section 17(1)(b). 10 (4) The variation or revocation of an interstate summary protection order by a court of the State or Territory in which it was made after the order is registered under this section has no effect in Victoria. 15 (5) The court, on application of a person referred to in sub-section (6), may-- (a) vary a registered interstate summary protection order as it applies in Victoria; or 20 (b) extend the period during which a registered interstate summary protection order has effect in Victoria; or (c) revoke the registration of a registered 25 interstate summary protection order. (6) Any of the following may make an application referred to in sub-section (5)-- (a) a person for whose protection a registered interstate summary 30 protection order has been made; (b) a person against whom a registered interstate summary protection order has been made; 8 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 9 Act No. (c) a member of the police force; (d) a person who has been granted leave by the court to make an application. (7) A registered interstate summary protection 5 order is not to be varied, extended or revoked on the application of a person other than the person against whom it was made unless notice of the application has been served on the person against whom it was 10 made. (8) A registered interstate summary protection order is not to be varied or revoked on the application of the person against whom it was made unless notice of the application 15 has been served on the person for whose protection the order was made. (9) Notice of an application for variation, extension or revocation of an interstate summary protection order is to be served 20 personally or in such other manner as the court hearing the application directs. (10) If the court varies or extends a registered interstate summary protection order or revokes the registration of an interstate 25 summary protection order, the principal registrar must give notice of the variation, extension or revocation to-- (a) the court that made the order; and (b) the Chief Commissioner of Police. 30 (11) Subject to sub-section (12), this section, as amended by section 9 of the Law and Justice Legislation Amendment Act 1997, applies to an interstate summary protection order whether made before, on or after the 35 commencement of that section. 9 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 10 Act No. (12) Sub-section (4), as substituted by section 9 of the Law and Justice Legislation Amendment Act 1997, does not apply to a variation or revocation that was made before 5 the commencement of that section.". 10. New section 18AAB inserted After section 18AA of the Principal Act insert-- "18AAB. Registration of New Zealand orders (1) The principal registrar may register a New 10 Zealand protection order in the court. (2) On registration of the order, the principal registrar must-- (a) notify the court that made the order of the registration; and 15 (b) forward a copy of the order to the Chief Commissioner of Police. (3) Subject to this section, a registered New Zealand protection order-- (a) has the same effect in Victoria as it has 20 for the time being in New Zealand; and (b) has that effect as if it were an order under this Act-- but a breach of the order in Victoria is to be taken for the purposes of imposing a penalty 25 to be a breach of an intervention order under this Act. (4) If the order is varied, revoked or extended by a court in New Zealand-- (a) the registration is varied, revoked or 30 extended accordingly; and 10 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 11 Act No. (b) the principal registrar must notify the Chief Commissioner of Police of the variation, revocation or extension. (5) This section applies to a New Zealand 5 protection order whether made before, on or after the commencement of section 10 of the Law and Justice Legislation Amendment Act 1997.". 11. Statute law revision 10 In section 5(3) of the Principal Act for "sub- regulation" substitute "sub-section". ------------------ 11 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 12 Act No. PART 4--LEGAL AID LEGISLATION 12. Principal Act No. 9245. In this Part, the Legal Aid Act 1978 is called the Reprinted to Principal Act. No. 22/1996. Subsequently amended by No. 35/1996. 5 13. Composition of VLA board (1) In section 11 of the Principal Act-- (a) in paragraphs (a) and (b), omit "after consultation with the Attorney-General of the Commonwealth"; 10 (b) for paragraphs (c) and (d) substitute-- "(c) 3 directors nominated by the Attorney- General of whom-- (i) at least one must have experience in financial management; and 15 (ii) at least one must have experience in either business or government operation.". (2) In section 12E(1) of the Principal Act, omit "after consultation with the Attorney-General of the 20 Commonwealth". (3) In section 12M(1) of the Principal Act, omit ", after consultation with the Attorney-General of the Commonwealth,". 14. New Part IV substituted 25 For Part IV of the Principal Act substitute-- 12 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 14 Act No. "PART IV--INDEPENDENT REVIEWERS 18. Panel of independent reviewers (1) The Attorney-General may appoint a panel of independent reviewers for the purposes of 5 this Act consisting of-- (a) an eligible person appointed as chairperson of the panel; and (b) as many other eligible persons appointed as members of the panel as 10 are required. (2) A person is eligible to be appointed as a panel member if-- (a) he or she is not a director of VLA or an officer or employee of VLA; and 15 (b) he or she is a person with knowledge and experience that, in the opinion of the Attorney-General, is relevant to the functions of an independent reviewer. (3) A panel member-- 20 (a) holds office for the term (not exceeding 3 years) specified in the instrument of appointment; (b) is eligible for re-appointment; (c) is, while acting as an independent 25 reviewer, entitled to be paid the remuneration and allowances (if any) fixed in respect of him or her by the Governor in Council from time to time. (4) The Public Sector Management Act 1992 30 (except Part 9 or in accordance with Part 8) does not apply to a panel member in respect of the office of panel member. 13 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 14 Act No. (5) The Attorney-General may, in the instrument of appointment of a panel member, specify terms and conditions of appointment. (6) The Attorney-General may at any time 5 remove a panel member from office. (7) A panel member may resign from office by delivering to the Attorney-General a signed letter of resignation. 19. Functions of independent reviewers 10 (1) The functions of a member of the panel of independent reviewers are-- (a) to exercise any powers or carry out any functions delegated to him or her by VLA; 15 (b) when appointed by the chairperson of the panel to do so, to review decisions of VLA or of an officer of VLA or of another independent reviewer with respect to-- 20 (i) refusal to provide legal assistance of the nature or to the extent applied for; (ii) the conditions on which legal assistance will be provided; 25 (iii) the variation or termination of legal assistance; (iv) the allocation of work amongst practitioners; (c) to hear and determine any matter 30 referred to him or her under section 30; (d) to consider any complaint by an assisted person referred to him or her as to the handling of that person's matter. 14 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 15 Act No. (2) An independent reviewer may, in the interest of justice, reconsider any decision that he or she has made and vary or reverse that decision if he or she considers it necessary.". 5 15. Immunity (1) In section 30(17) of the Principal Act, after "section" insert "before the commencement of section 17(4) of the Law and Justice Legislation Amendment Act 1997 or, in the case of a 10 member of a legal aid review committee, after that commencement in accordance with section 51". (2) In section 30 of the Principal Act, after sub- section (17) insert-- "(17A) A director or officer or employee of VLA or 15 an independent reviewer is not personally liable for anything done or omitted to be done in good faith after the commencement of section 17(4) of the Law and Justice Legislation Amendment Act 1997-- 20 (a) in the exercise of a power or the discharge of a duty under this section; or (b) in the reasonable belief that the act or omission was in the exercise of a power 25 or the discharge of a duty under this section. (17B) Any liability resulting from an act or omission that would, but for sub-section (17A), attach to a director or officer or 30 employee of VLA or to an independent reviewer attaches instead to VLA.". 15 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 16 17 Act No. 16. New section 37 substituted For section 37 of the Principal Act substitute-- "37. Conflicts of interest An independent reviewer who has a personal 5 interest (whether pecuniary or otherwise) in a matter which could conflict with the proper performance of his or her duties in relation to the matter, must not exercise any power or carry out any function in relation to that 10 matter at any time after becoming aware of the conflict of interest.". 17. Amendments consequential on appointment of independent reviewers (1) In section 2(1) of the Principal Act-- 15 (a) after the definition of "incorporated practitioner" insert-- ' "independent reviewer" means member of the panel of independent reviewers appointed under section 18 and 20 includes the panel chairperson;'; (b) the definitions of "legal aid appeal committee" and "legal aid review committee" are repealed; (c) after the definition of "order for costs" 25 insert-- ' ''panel chairperson" means chairperson of the panel of independent reviewers appointed under section 18; "panel member", in relation to the panel of 30 independent reviewers, includes the panel chairperson;'. (2) In section 10 of the Principal Act, for paragraphs (d) and (e) substitute-- 16 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 17 Act No. "(d) an independent reviewer--". (3) In section 28 of the Principal Act, for "legal aid review committee" substitute "independent reviewer". 5 (4) In section 30 of the Principal Act-- (a) in sub-section (12), for "VLA must appoint a legal aid review committee" substitute "the panel chairperson must appoint an independent reviewer"; 10 (b) in sub-section (13)-- (i) for "the legal aid review committee" substitute "an independent reviewer"; (ii) for "its own" substitute "his or her"; (c) in sub-section (14)-- 15 (i) for "legal aid review committee" substitute "independent reviewer"; (ii) for "its" substitute "his or her"; (d) in sub-section (15), for "a legal aid review committee" substitute "an independent 20 reviewer"; (e) in sub-section (16)-- (i) for "The legal aid review committee" substitute "An independent reviewer"; (ii) for "its" substitute "his or her". 25 (5) In section 31(3) of the Principal Act-- (a) for "appropriate legal aid review committee or legal aid appeal committee" substitute "independent reviewer"; (b) for "the committee" substitute "the 30 independent reviewer". 17 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 17 Act No. (6) In sections 33(1) and 34(1) of the Principal Act, for "a legal aid review committee" substitute "an independent reviewer". (7) In section 34(2) of the Principal Act, for "legal aid 5 review committee" substitute "independent reviewer". (8) In section 35(1) of the Principal Act, for "a legal aid review committee" substitute "an independent reviewer". 10 (9) In section 35(2) of the Principal Act-- (a) for "VLA shall nominate a legal aid review committee" substitute "the panel chairperson must appoint an independent reviewer"; 15 (b) for "that committee" substitute "that reviewer". (10) In section 35(2A) of the Principal Act-- (a) for "A legal aid review committee" substitute "An independent reviewer"; 20 (b) in paragraph (a), for "it" substitute "him or her". (11) In section 35(3) of the Principal Act, for "a legal aid review committee" substitute "an independent reviewer". 25 (12) In section 36(1) of the Principal Act-- (a) for "a legal aid review committee" substitute "an independent reviewer"; (b) for "a legal aid appeal committee" substitute "another independent reviewer". 30 18 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 17 Act No. (13) In section 36(2) of the Principal Act-- (a) for "VLA shall nominate a legal aid appeal committee" substitute "the panel chairperson shall appoint another 5 independent reviewer"; (b) for "that committee" substitute "that reviewer". (14) In section 36(2A) of the Principal Act-- (a) for "A legal aid appeal committee" 10 substitute "An independent reviewer appointed under this section"; (b) in paragraph (a), for "it" substitute "him or her". (15) In section 36(3) of the Principal Act, for "a legal 15 aid appeal committee" substitute "an independent reviewer under this section". (16) In section 36(4) of the Principal Act, for "A legal aid appeal committee shall cause notice of its decision" substitute "An independent reviewer 20 must cause notice of his or her decision under this section". (17) Sections 38 and 39 of the Principal Act are repealed. (18) In section 40 of the Principal Act-- 25 (a) in subsection (1), for "a legal aid review committee and the committee" substitute "the panel chairperson who must refer it to an independent and that reviewer"; (b) in sub-section (2)-- 30 (i) for "legal aid review committee" substitute "independent reviewer"; 19 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 18 Act No. (ii) for "the committee" substitute "the reviewer". (19) In section 47(1) of the Principal Act, for "a legal aid review committee" substitute "an independent 5 reviewer". (20) In section 50 of the Principal Act, paragraph (c) is repealed. 18. Monetary limit on legal assistance (1) In section 28 of the Principal Act-- 10 (a) after paragraph (a) insert "and"; (b) after paragraph (b) insert-- "(ba) whether a limit is to be imposed on the total amount of payments which may be made to a private practitioner under this 15 Act for the performance of services on behalf of the assisted person and the amount of that limit; and". (2) In section 29 of the Principal Act, after paragraph (b) insert-- 20 "(ba) impose a limit on the total amount of payments which may be made to a private practitioner under this Act for the performance of services on behalf of the assisted person or increase or reduce the 25 amount of such a limit previously imposed;". 19. New sections 29A and 29B inserted After section 29 of the Principal Act insert-- "29A. Practitioner panels (1) VLA may establish different panels for-- 30 (a) different classes of matters in relation to which legal assistance may be provided under this Act; or 20 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 19 Act No. (b) different parts of the State-- and may determine the conditions subject to which a practitioner may be included on any such panel. 5 (2) If VLA proposes to establish a panel under sub-section (1) or include additional names on an established panel, it must, by notice published in a daily newspaper circulating generally throughout Victoria or in the 10 relevant part of the State (as the case requires), invite expressions of interest from sole practitioners, firms and incorporated practitioners in having their names included on the panel. 15 (3) A notice under sub-section (2)-- (a) must be published not later than 21 days before the panel is established by VLA or any additional name included on it, as the case requires; and 20 (b) must specify-- (i) the qualifications and experience that a practitioner included on the panel must have or the part of the State within which their principal 25 place of practice must be located; and (ii) the period (not exceeding 3 years) during which a practitioner may be included on the panel; and 30 (iii) the basis on which payment will be made to any practitioner included on the panel for services performed as a panel member on behalf of an assisted person; and 21 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 19 Act No. (iv) performance standards in relation to the provision of services by panel members; and (v) requirements with respect to the 5 making of reports to VLA and the keeping of records that must be complied with by panel members in respect of the performance of services on behalf of assisted 10 persons; and (vi) the grounds on which a practitioner may be removed from the panel. (4) The name of a sole practitioner, firm or 15 incorporated practitioner may be included on a panel whether or not their name is also included on a referral panel under section 30 or on another panel established under this section. 20 (5) A sole practitioner, firm or incorporated practitioner may be re-included on a panel after the expiry of the period for which they were included. (6) A sole practitioner, firm or incorporated 25 practitioner may, by writing to VLA, request that their name be removed from a panel and VLA must comply with that request. (7) If the name of a firm or incorporated practitioner is included on a panel, the names 30 of all the partners or directors and the practitioners who are employed by the firm or incorporated practitioner are deemed to be included on the panel. 22 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 20 Act No. (8) If the name of a sole practitioner is included on a panel, the names of all employee solicitors for the time being of the sole practitioner are deemed to be included on the 5 panel. 29B. Assignment of case to practitioner panel (1) VLA may assign the conduct of an assisted person's case to a sole practitioner, firm or incorporated practitioner included on a panel 10 established under section 29A. (2) If VLA assigns a case as mentioned in sub- section (1), VLA must, on behalf of the assisted person, select a sole practitioner, firm or incorporated practitioner from the 15 names on the panel.". 20. Selection of practitioner In section 30(1) of the Principal Act, at the end of paragraph (b) insert-- "; and 20 (c) VLA has not under section 29B assigned the conduct of the assisted person's case to a sole practitioner, firm or incorporated practitioner included on a panel established under section 29A--". 25 21. Time limits for reconsiderations and reviews In sections 34(1), 35(1) and 36(1) of the Principal Act, for "prescribed time (if any)" substitute "time fixed by VLA (being not less than 7 days after the date of the decision)". 30 22. New section 49B inserted in Principal Act After section 49A of the Principal Act insert-- 23 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 23 Act No. "49B. Supreme Court--limitation of jurisdiction (1) It is the intention of section 30(17A) to alter or vary section 85 of the Constitution Act 1975. 5 (2) It is the intention of section 35(3), as amended by section 17(11) of the Law and Justice Legislation Amendment Act 1997, to alter or vary section 85 of the Constitution Act 1975. 10 (3) It is the intention of section 36(3), as amended by section 17(15) of the Law and Justice Legislation Amendment Act 1997, to alter or vary section 85 of the Constitution Act 1975.". 15 23. New section 51 inserted After section 50 of the Principal Act insert-- "51. Transitional provisions (1997 Amending Act) (1) On the commencement of section 13 of the 20 Law and Justice Legislation Amendment Act 1997, the directors of Victoria Legal Aid appointed under section 11(c) of this Act, as in force immediately before that commencement, go out of office. 25 (2) Victoria Legal Aid is to be taken to be the same body despite the changes made to the composition of its board of directors by section 13 of the Law and Justice Legislation Amendment Act 1997 and, 30 except as otherwise provided by sub-section (1), no act, proceeding, matter or thing is to be affected because of those changes. 24 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 23 Act No. (3) On the commencement of section 14 of the Law and Justice Legislation Amendment Act 1997, any legal aid review committee established under this Act that is in existence 5 immediately before that commencement is abolished and its members go out of office. (4) On the commencement of section 17(17) of the Law and Justice Legislation Amendment Act 1997, any legal aid appeal 10 committee established under this Act that is in existence immediately before that commencement is abolished and its members go out of office. (5) A matter before a legal aid review committee 15 or a legal aid appeal committee that had not been determined by that committee as at the commencement of section 14 or 17(17) (as the case requires) of the Law and Justice Legislation Amendment Act 1997 must, 20 until it is determined or until 1 August 1997 (whichever is the earlier), continue to be dealt with by that committee in accordance with this Act as if the Law and Justice Legislation Amendment Act 1997 had not 25 been enacted. (6) For the purpose of sub-section (5) and despite anything to the contrary in this Act, a legal aid review committee or a legal aid appeal committee continues to exist until all 30 matters referred to in that sub-section have been determined by it or until 1 August 1997, whichever is the earlier. (7) A matter referred to in sub-section (5) that has not been determined by the legal aid 35 review committee or the legal aid appeal committee (as the case requires) as at 1 25 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 24 Act No. August 1997 is to be dealt with by an independent reviewer in accordance with this Act and for that purpose-- (a) anything done in relation to the matter 5 by the committee before that date is deemed to have been done by the independent reviewer; and (b) the independent reviewer may have regard to any record of the committee 10 relating to the matter. (8) An application, request or complaint made, or other matter arising, before the commencement of section 14 or 17(17) of the Law and Justice Legislation 15 Amendment Act 1997 (including a request under section 34(1) for reconsideration of a decision of a legal aid review committee) that under this Act as in force before that commencement would have been dealt with 20 by a legal aid review committee or a legal aid appeal committee but was not before such a committee as at that commencement is to be dealt with by an independent reviewer in accordance with this Act.". 25 24. Statute law revision In section 46(4) of the Principal Act, for "taxation" (wherever occurring) substitute "assessment". 25. Amendment of Legal Aid Commission (Amendment) 30 Act 1989 In section 12 of the Legal Aid Commission (Amendment) Act 1989, for "prescribed time" (wherever occurring) substitute "time fixed by it". 35 _______________ 26 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 Act No. 27 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 26 Act No. PART 5--LEGAL PRACTICE ACT 1996 No. 35/1996. 26. Amendment of section 441 Amended by For section 441(2) of the Legal Practice Act No. 59/1996. 1996 substitute-- 5 "(2) The Board, on behalf of the Attorney- General, may apply to the Supreme Court for punishment of a person for a contravention of a provision of this Act that, by force of this Act, constitutes a contempt of the 10 Supreme Court.". _______________ 28 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 27 Act No. PART 6--MAGISTRATES' COURT ACT 1989 27. Principal Act No. 51/1989. In this Part, the Magistrates' Court Act 1989 is Reprinted to called the Principal Act. No. 99/1995. Subsequently amended by Nos 35/1996, 45/1996, 64/1996, 66/1996, 70/1996 and 73/1996. 5 28. New Part 6A inserted in Principal Act In the Principal Act, after Part 6 insert-- 'PART 6A--ADMINISTRATIVE SERVICES AGREEMENTS Division 1--Definitions 10 124A. Definitions In this Part-- "contractor" means a party to an agreement with the Ministers under section 124B(1); 15 "Ministers" means the Attorney-General and the Minister administering Part I of the Police Regulation Act 1958; "PERIN Court" means the venue of the Court prescribed under section 20 140(1)(i); 29 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 Act No. "sub-contractor" means a sub-contractor of a contractor or of a sub-contractor. 30 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 28 Act No. Division 2--Agreements 124B. Ministers may enter into administrative services agreements (1) The Attorney-General and the Minister 5 administering Part I of the Police Regulation Act 1958 may, for and on behalf of the Crown, jointly enter into an agreement with a person or body for the provision by that person or body of services of an 10 administrative nature in support of the functions of -- (a) the PERIN Court; or (b) the sheriff; or (c) the police force of Victoria as carried 15 on in the office known as the Traffic Camera Office immediately before an agreement under this sub-section was first entered into in relation to that office; or 20 (d) the police force of Victoria as carried on in the office known as the Fixed Penalties Payment Office immediately before an agreement under this sub- section was first entered into in relation 25 to that office. (2) Nothing in this section limits, or takes away, any other power of the Attorney-General or the Minister administering Part I of the Police Regulation Act 1958, whether under 30 this or any other Act or otherwise, to enter into agreements for the provision of services of an administrative nature in support of any functions for which he or she is responsible. 124C. Subject matter of agreement 31 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 28 Act No. An agreement under section 124B(1) -- (a) must provide for the services to be provided by the contractor; (b) must provide for the fees, costs and 5 charges to be paid to the contractor; (c) must provide for objectives and performance standards in relation to the contractor's operations under the agreement; 10 (d) must provide for standards of probity applicable to persons employed by, or engaged to provide services for, the contractor in connection with the contractor's operations under the 15 agreement; (e) must provide for compliance by the contractor with all relevant provisions of any Act, regulations or other instrument of a legislative character; 20 (f) must provide for rights of access in favour of the Crown to any premises occupied by the contractor in connection with the contractor's operations under the agreement and to 25 any document or equipment on those premises that is in the possession of the contractor and that relates to, or is used in connection with, the contractor's operations under the agreement; 30 (g) must provide for the submission to the Ministers of periodic reports, or the periodic carrying out of a performance audit, in relation to the contractor's operations under the agreement; 32 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 28 Act No. (h) must provide for the protection of information gained by the contractor in connection with the contractor's operations under the agreement and 5 impose restrictions on access to the information and on its disclosure and use; (i) may provide for the extent of indemnities and warranties by parties to 10 the agreement; (j) may specify liabilities, risks and insurances; (k) may provide for the provision by the contractor of a performance bond; 15 (l) must provide for the office the holder of which is to be the principal officer for the purposes of the application of the Ombudsman Act 1973 to the contractor as a provider of services 20 under the agreement; (m) must provide for the Ministers or any of them, the Crown or any other person or body to take over, or nominate any other person or body to take over, in 25 specified circumstances rights or obligations under the agreement or any other agreement or under any transaction; (n) may contain any other provisions that 30 are not inconsistent with this Part or the regulations. 124D. Rights of access (1) A contractor or sub-contractor must give any of the Ministers, the Secretary to the 35 Department of Justice and any person 33 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 28 Act No. authorised by any such Minister or the Secretary free and unfettered access at all times, together with any assistants and equipment that they consider necessary-- 5 (a) to any premises occupied by the contractor or sub-contractor in connection with the contractor's operations under the agreement; and (b) to all persons engaged or employed by 10 the contractor or a sub-contractor in connection with the contractor's operations under the agreement; and (c) to all documents or equipment in the possession of the contractor or sub- 15 contractor that relate to, or are used in connection with, the contractor's operations under the agreement-- for the purpose of ensuring compliance with this Part or the regulations or an agreement 20 under section 124B(1). Penalty: 50 penalty units. (2) A contractor or sub-contractor must give an administrator appointed under section 124E free and unfettered access at all times, 25 together with any assistants and equipment that the administrator considers necessary-- (a) to any premises occupied by the contractor or sub-contractor in connection with the contractor's 30 operations under the agreement; and (b) to all persons engaged or employed by the contractor or a sub-contractor in connection with the contractor's operations under the agreement; and 34 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 28 Act No. (c) to all documents or equipment in the possession of the contractor or sub- contractor that relate to, or are used in connection with, the contractor's 5 operations under the agreement-- for the purpose of enabling the administrator to carry out his or her functions and exercise his or her powers under that section. Penalty: 50 penalty units. 10 (3) Nothing in this section limits, or takes away, any function or power conferred on a person (including a person on whom a function or power is conferred by this section but not including a contractor or sub-contractor), 15 whether under this or any other Act or otherwise including an agreement under section 124B(1). 124E. Right of intervention in management (1) The Ministers may intervene in the 20 management of the contractor's operations under an agreement under section 124B(1) if they consider that it is necessary to do so in the interests of-- (a) the maintenance of law and order; or 25 (b) the adequate provision of court administration; or (c) the effective enforcement of court orders; or (d) public safety. 30 (2) If the Ministers intervene in the management of the contractor's operations under an agreement, they may appoint an administrator to manage those operations until they 35 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 28 Act No. determine that the appointment is no longer required in the interests referred to in sub- section (1). (3) If an administrator is appointed under sub- 5 section (2), then for the period of that appointment-- (a) the contractor or a sub-contractor must act in relation to the management of the contractor's operations under the 10 agreement in accordance with the directions of the administrator; or (b) the contractor or a sub-contractor must, as directed by the administrator, cease to act in relation to the management of 15 the contractor's operations under the agreement completely or to the extent specified in the direction. Penalty: 50 penalty units. (4) A person engaged or employed by the 20 contractor or a sub-contractor to act in relation to the management of the contractor's operations under an agreement must comply with the directions of the administrator in doing so. 25 Penalty: 50 penalty units. (5) An administrator appointed under sub- section (2) has and may carry out or exercise for the period of the appointment all of the functions or powers of the contractor or any 30 sub-contractor in relation to the management of the contractor's operations under the agreement. 36 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 28 Act No. (6) The Secretary to the Department of Justice must provide the administrator with any assistance necessary to the carrying out of his or her functions or exercise of his or her 5 powers under this section. (7) Nothing in this section limits, or takes away, any function or power conferred on a person (including a person on whom a function or power is conferred by this section but not 10 including a contractor or sub-contractor), whether under this or any other Act or otherwise including an agreement under section 124B(1). 124F. Audit rights 15 (1) The Ministers may at any time during the term, or the 7 year period immediately following the expiration, of an agreement under section 124B(1) or any renewal of such an agreement, appoint a person as an 20 independent auditor to audit the documents of the contractor that relate to the contractor's operations under the agreement. (2) A contractor or sub-contractor must-- (a) make all documents in its actual 25 possession relating to the contractor's operations under the agreement available to an independent auditor appointed under sub-section (1) at the time and place specified by that 30 auditor; and (b) provide an independent auditor appointed under sub-section (1) with any assistance necessary to enable the audit to be undertaken. 35 Penalty: 50 penalty units. 37 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 28 Act No. 124G. Status of documents (1) For the purposes of the Freedom of Information Act 1982-- (a) any document in existence immediately 5 before an agreement under section 124B(1) was entered into and handed over to the contractor in accordance with the agreement remains; and (b) any document created or received by 10 the contractor or a sub-contractor after an agreement under section 124B(1) was entered into as a result of the contractor's operations under the agreement is-- 15 in the possession of the Department of Justice and that Act applies to that document to the same extent to which it would if the agreement had never been entered into. (2) All proprietary rights and interests in any 20 document referred to in sub-section (1) remain with, or on the creation or receipt of the document by the contractor or sub- contractor become vested in, the Crown. (3) All documents referred to in sub-section (1) 25 are public records within the meaning of the Public Records Act 1973. 124H. Investigation of administrative actions (1) Subject to sub-section (2), the Ombudsman Act 1973 applies to a contractor or a sub- 30 contractor in its capacity as a provider of services under an agreement under section 124B(1) or a sub-contract agreement as if-- 38 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 28 Act No. (a) the contractor or sub-contractor were a public statutory body within the meaning of that Act; and (b) the holder of the office specified in the 5 agreement under section 124B(1) or in the sub-contract agreement for the purposes of the application of the Ombudsman Act 1973 were the principal officer of that public statutory 10 body; and (c) the persons employed by the contractor or sub-contractor in connection with the contractor's operations under the agreement were employees of that 15 public statutory body. (2) Nothing in this section applies the Ombudsman Act 1973 to a contractor or sub-contractor-- (a) in any capacity other than that 20 mentioned in sub-section (1); or (b) with respect to any period during which services were not actually being provided by the contractor or sub- contractor under an agreement under 25 section 124B(1) or a sub-contract agreement. 124I. Unauthorised access to or interference with data (1) A person must not intentionally and without 30 lawful authority-- (a) obtain access, or attempt to obtain access, to any data stored in a computer that is under the control of a contractor 39 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 28 Act No. or sub-contractor and that relates to the contractor's operations under an agreement under section 124B(1) or was gained in the course of those 5 operations; or (b) alter or delete, or attempt to alter or delete, any such data or enter, or attempt to enter, data into the database in which any such data is contained; or 10 (c) interfere, or attempt to interfere, in any other way with a database containing any such data. Penalty: 100 penalty units. (2) The Secretary to the Department of Justice 15 may, by writing, authorise a person engaged or employed by a contractor or sub- contractor to do, in relation to all data referred to in sub-section (1) or any such data of a specified class, anything that, but 20 for that authorisation, the person would be prohibited from doing by sub-section (1). (3) For the purposes of sub-section (1) a person must be taken as having lawful authority to do a thing referred to in that sub-section if-- 25 (a) in the case of a person engaged or employed by a contractor or sub- contractor, he or she is authorised to do that thing under sub-section (2); and (b) in the case of a person who is-- 30 (i) the principal registrar of the Magistrates' Court or a registrar or deputy registrar at the PERIN Court; or 40 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 28 Act No. (ii) the sheriff, a deputy sheriff or any person who is a bailiff for the purposes of the Supreme Court Act 1986; or 5 (iii) a member of the police force of Victoria-- he or she does that thing in the exercise of official powers or the discharge of official functions or duties. 10 124J. Confidentiality (1) A person who is, or has at any time been-- (a) a contractor; or (b) a sub-contractor; or (c) a person employed by, or engaged to 15 provide services for, a contractor or sub-contractor-- is bound by this section. (2) A person bound by this section must not directly or indirectly, except in the exercise 20 of powers or performance of functions in connection with a contractor's operations under an agreement under section 124B(1)-- (a) make a record of, or divulge to any person any information acquired by 25 reason of being a person referred to in sub-section (1); or (b) make use of any such information for a purpose other than in the exercise of those powers or performance of those 30 functions. Penalty: 100 penalty units. 41 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 29 Act No. (3) Nothing in sub-section (2) prevents a person bound by this section from-- (a) producing a document to a court in the course of any criminal or civil 5 proceedings; or (b) divulging to a court any information that has come to the notice of the person by reason of being a person referred to in sub-section (1). 10 (4) In this section-- "court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions; 15 "produce" includes permit access to.'. 29. Recall and cancellation of warrant In section 58(1)(b) of the Principal Act, after "issued" (where secondly occurring) insert "or, except in the case of a warrant issued under clause 20 8(1) of Schedule 7, any other registrar". 30. Execution costs (1) In clause 7 of Schedule 7 to the Principal Act, sub-clause (3) is repealed. (2) In clause 8 of Schedule 7 to the Principal Act, 25 after sub-clause (1A) insert-- "(1B) Any fee prescribed under this Act in respect of the execution of a warrant issued under sub-clause (1) forms part of the lawful costs of execution of the warrant.". 30 31. Transitional provisions In Schedule 8 to the Principal Act, after clause 15 insert-- 42 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 31 Act No. "16. The amendment of section 58(1)(b) made by section 29 of the Law and Justice Legislation Amendment Act 1997 applies to warrants issued before as well as after the 5 commencement of section 29 of that Act. 17. The amendment of Schedule 7 made by section 30(2) of the Law and Justice Legislation Amendment Act 1997 applies to warrants issued before as well as after the 10 commencement of section 30(2) of that Act.". _______________ 43 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 32 Act No. PART 7--PUBLIC PROSECUTIONS ACT 1994 32. Amendment of section 46 No. 43/1994. (1) In section 46(1) of the Public Prosecutions Act Reprint No. 1 1994-- as at 14 November 5 (a) after "law" insert "but subject to sub-section 1996. Further (5)"; amended by No. 35/1996. (b) omit "that involves an interference with the due administration of justice, either in relation to a pending proceeding or more 10 generally". (2) In section 46 of the Public Prosecutions Act 1994, after sub-section (1) insert-- "(1A) For the avoidance of doubt it is declared that sub-section (1) applies-- 15 (a) whether the contempt is classified as criminal or civil in nature; (b) irrespective of whether the contempt is committed in relation to a pending proceeding or otherwise; 20 (c) where the contempt is committed in relation to a pending proceeding, irrespective of whether that proceeding is criminal or civil in nature; (d) where the contempt is constituted by 25 conduct that aided, abetted, counselled or procured or incited the commission of a contempt of court by another person.". 44 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 32 Act No. (3) In section 46(5) of the Public Prosecutions Act 1994-- (a) for paragraph (a) substitute-- (a) takes away any right that a person may 5 have to apply to a court for punishment of a person for a contempt of court, whether criminal or civil in nature-- (i) that involves a breach of a court order or of an undertaking given 10 (whether expressly or impliedly) to a court; or (ii) that involves the disclosure of the fact that an offer of compromise of a claim has been made in a 15 pending proceeding or of the terms of such an offer; or (iii) that involves an abuse of discovery or other interlocutory process; or 20 (iv) that involves a breach by a legal practitioner of an obligation owed by the practitioner to the court; or (v) that involves aiding, abetting, counselling, procuring or inciting 25 a breach referred to in sub- paragraph (i), (ii), (iii) or (iv); or"; (b) at the end of paragraph (c) insert-- "; or (d) takes away any right that the Legal 30 Practice Board may have to apply to the Supreme Court under section 441(2) of the Legal Practice Act 1996.". 45 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 33 Act No. 33. Supreme Court--limitation of jurisdiction It is the intention of section 32 to alter or vary section 85 of the Constitution Act 1975. _______________ 5 46 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 34 Act No. PART 8--ROAD SAFETY ACT 1986 34. Issue of infringement notices No. 127/1986. (1) In section 88(1) of the Road Safety Act 1986, for Reprinted to "issue and" substitute "issue or cause to be issued No. 58/1995. 5 and serve or". Subsequently amended by (2) In section 88(1A) of the Road Safety Act 1986, Nos 100/1995, 25/1996 and after "issued" insert "or caused to be issued". 37/1986. _______________ 47 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 36 Act No. PART 9--SECOND-HAND DEALERS AND PAWNBROKERS ACT 1989 35. Principal Act No. 54/1989. In this Part, the Second-Hand Dealers and Reprinted to 5 Pawnbrokers Act 1989 is called the Principal No. 41/1995 Act. and subsequently amended by Nos 66/1996 and 74/1996. 36. Definitions (1) In section 3(1) of the Principal Act-- (a) insert the following definitions-- 10 ' "associate", in relation to a person, means-- (a) a spouse or defacto partner of the person; or (b) a business partner of the person; 15 or (c) a participant in a business arrangement or relationship with the person in respect of a second- hand dealing or pawnbroking 20 business; "disqualifying offence" means an offence involving fraud, dishonesty, violence or drug trafficking punishable on conviction by-- 25 (a) in the case of a natural person, imprisonment for 3 months or more (whether or not in addition to a fine); or 48 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 36 Act No. (b) in the case of a body corporate, a fine of 100 penalty units or more; "externally-administered corporation" means a corporation-- 5 (a) that is being wound up; or (b) in respect of property of which a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is 10 acting; or (c) that is under official management; or (d) that has entered into a compromise or arrangement with 15 another person under Part 5 of the Corporations Law, the administration of which has not been concluded; "insolvent under administration" means a 20 person who is a bankrupt in respect of a bankruptcy from which the person has not been discharged and includes-- (a) a person who has executed a deed of arrangement under Part X of 25 the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of another jurisdiction) where the terms of the deed have not 30 been fully complied with; and (b) a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the 35 corresponding provisions of the 49 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 37 Act No. law of another jurisdiction) where a final payment has not been made under that composition; "Secretary" means the Secretary to the 5 Department of Justice.'; (b) in the definition of "second-hand dealer", for "and otherwise" substitute "or otherwise". (2) In section 3(2)(a) of the Principal Act, after "right to repurchase the goods" insert '(commonly 10 known as a "buy-back")'. 37. Application of Act In section 4(e) of the Principal Act, after "regulations" insert "from the application of the whole or any provision of this Act or the 15 regulations". 38. Substitution of Part 2 For Part 2 of the Principal Act substitute-- "PART 2--REGISTRATION 5. Second-hand dealers and pawnbrokers to 20 be registered (1) Subject to this Act, a person must not, either alone or in partnership, carry on business as a second-hand dealer or a pawnbroker unless the person is registered as a second-hand 25 dealer under this Part. Penalty: 100 penalty units. (2) Despite sub-section (1), a person who holds a motor car trader's licence under the Motor Car Traders Act 1986 may buy, sell, 30 exchange or otherwise deal in second-hand goods that are motor car parts without being 50 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 38 Act No. registered under this Part, but must in all other respects comply with this Act. 6. Eligibility for registration A person is not eligible to be registered 5 under this Part if the person or, in the case of a body corporate, a director of the body corporate-- (a) has, within the preceding 5 years in Australia or elsewhere, been convicted 10 or found guilty of a disqualifying offence; or (b) is an insolvent under administration or an externally-administered corporation; or 15 (c) is an associate of a person who-- (i) has, within the preceding 5 years, been convicted or found guilty of a disqualifying offence; or (ii) is an insolvent under 20 administration or an externally- administered corporation. 7. Application for registration (1) An application for registration as a second- hand dealer may be made to the Secretary. 25 (2) An application must be-- (a) in writing in or to the effect of the form approved by the Secretary and must be verified by statutory declaration; and (b) accompanied by evidence as to the 30 identity of-- (i) the applicant; or 51 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 38 Act No. (ii) if the applicant is a body corporate, the directors of the applicant-- by means of a birth certificate, passport 5 (if the passport is current or expired for not more than 2 years), driver licence or any other document in one of the prescribed categories; and (c) accompanied by the prescribed fee; and 10 (d) lodged with the Secretary-- (i) not less than 1 month before the day on which the applicant proposes to commence business as a second-hand dealer or 15 pawnbroker; or (ii) if, on the commencement of section 38 of the Law and Justice Legislation Amendment Act 1997, the applicant is carrying on 20 business as a second-hand dealer or pawnbroker, not more than 6 months after that commencement. 8. Investigation of application (1) On receiving an application for registration 25 as a second-hand dealer, the Secretary must refer a copy of the application to the Chief Commissioner of Police. (2) The Chief Commissioner of Police must, not more than 14 days after receipt of the copy 30 by the Commissioner, enquire into and report to the Secretary on the criminal record, if any, of-- (a) the applicant; 52 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 38 Act No. (b) if the applicant is a body corporate, the directors of the applicant; (c) the associates, if any, of the applicant. 9. Registration 5 (1) The Secretary must register an applicant as a second-hand dealer unless the applicant is not eligible under section 6 to be so registered. (2) A registration remains in force until it is 10 cancelled or surrendered. (3) The Secretary may cancel the registration of a person if the person fails to lodge a statement as required by section 11. 10. Automatic cancellation of registration 15 (1) A person who is registered under this Part ceases to be so registered if the person or, in the case of a body corporate, a director of the body corporate or an associate of the person or director-- 20 (a) in Australia or elsewhere, is convicted or found guilty of a disqualifying offence; or (b) becomes an insolvent under administration or an externally- 25 administered corporation. (2) For the purposes of sub-section (1), a conviction or finding of guilt takes effect at the conclusion of the proceedings, whether on appeal or otherwise, or at the end of any 30 appeal period, whichever is the later. (3) This section does not apply to a conviction or a finding of guilt before the commencement of section 38 of the Law and Justice Legislation Amendment Act 53 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 Act No. 1997, whether the proceedings conclude or an appeal period ends after that commencement. 54 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 38 Act No. 11. Lodgment of statement A person registered under this Part must, not later than 12 months after the date of registration and thereafter at intervals of not 5 more than 12 months, lodge with the Secretary a statement in or to the effect of the form approved by the Secretary containing the information required by the Secretary, signed by the person and 10 accompanied by the prescribed fee. 12. Notification of changes If a person registered under this Part-- (a) changes business premises; or (b) in the case of a body corporate, changes 15 directors; or (c) changes associates; or (d) ceases business as a second-hand dealer or pawnbroker-- the person must give notice in writing to the 20 Secretary within 7 days after the change or cessation. Penalty: 10 penalty units. 13. Register (1) The Secretary must cause a register to be 25 kept of all persons registered under this Part containing the prescribed particulars. (2) The register may be inspected at the office of the Secretary by any person during ordinary office hours without charge. 30 (3) A person may obtain a copy of or an extract from the register on payment of the prescribed fee. 55 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 38 Act No. 14. Correction of the register (1) The Secretary may correct an error or omission in the register by-- (a) inserting an entry; or 5 (b) amending an entry; or (c) omitting an entry-- if the Secretary is satisfied that the register contains an error. (2) The Secretary may make the correction on 10 his or her initiative or on the application of any person. (3) The Secretary must notify the person registered of any correction made under this section that affects the registration. 15 (4) A person may apply to the Administrative Appeals Tribunal for review of the Secretary's decision concerning correction of the register. (5) The Secretary must make any correction to 20 the register that is necessary to implement the decision of the Administrative Appeals Tribunal. 15. Approved forms The Secretary must cause to be published in 25 the Government Gazette all forms approved for the purposes of this Part. 16. Offences (1) A person must not knowingly or recklessly make a false or misleading statement in or in 30 connection with an application, statement or notice under this Part. Penalty: 20 penalty units. 56 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 39 Act No. (2) An applicant for registration must not submit false evidence of identity. Penalty: 50 penalty units.". 39. Substitution of section 19 5 For section 19 of the Principal Act substitute-- "19. Identifying persons selling or pawning goods (1) A second-hand dealer or pawnbroker must require every person attempting to sell or 10 pawn second-hand goods to the second-hand dealer or pawnbroker to produce evidence as to the person's identity-- (a) by means of a passport, driver licence or other document in one of the 15 prescribed categories bearing a photograph of the person; or (b) by means of 2 documents in the prescribed categories but each in a different category. 20 Penalty: 20 penalty units. (2) If a person attempting to sell or pawn second-hand goods is, on request, unable to produce the required evidence of identity, the second-hand dealer or pawnbroker must 25 refuse to accept the goods. Penalty: 20 penalty units. (3) A person attempting to sell or pawn second- hand goods to a second-hand dealer or pawnbroker must not produce false evidence 30 of identity. Penalty: 50 penalty units.". 57 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 40 Act No. 40. Recording transactions In section 20 of the Principal Act, after "transaction" insert ", whether conducted on the business premises or elsewhere,". 5 41. Insertion of new section 21A After section 21 of the Principal Act insert-- "21A. Recording storage location of goods A second-hand dealer or pawnbroker must keep accurate and complete records of the 10 place of storage of each item of second-hand goods in the possession or under the control of the dealer or pawnbroker. Penalty: 20 penalty units.". 42. Charges of pawnbrokers 15 In section 23 of the Principal Act, for sub-sections (2), (3) and (4) substitute-- "(2) A pawnbroker must cause a notice-- (a) in or to the effect of a form approved by the Secretary; and 20 (b) showing the maximum amount charged weekly and monthly, or any other period normally used, by the pawnbroker on pawn transactions; and (c) stating that in special circumstances a 25 higher amount may be charged by the pawnbroker-- to be displayed in a prominent place in or outside each business premises of the pawnbroker to which the public has access 30 so that the notice is clearly visible to the public from outside the premises. Penalty: 10 penalty units. 58 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 42 43 Act No. (3) A pawnbroker who advances money on the security of goods received in pawn must serve on the owner of the goods written notice of the charge that will be imposed on 5 the transaction. (4) Subject to sub-section (5), a pawnbroker must not charge on a pawn transaction an amount more than an amount calculated in accordance with the amount displayed on a 10 notice under sub-section (2)(b). Penalty: 20 penalty units. (5) A pawnbroker may charge an amount more than an amount calculated in accordance with the amount displayed under sub-section 15 (2)(b) if-- (a) it is reasonable to do so because the pawnbroker is likely to incur additional storage costs in relation to the goods being pawned; or 20 (b) it is reasonable to do so because the agreement provides for amounts to be paid less frequently than is specified in the notice under sub-section (2); or (c) the regulations so provide-- 25 and-- (d) the notice referred to in sub-section (3) specifies the reason why the higher charge is made; and (e) the owner of the goods agrees in 30 writing to the higher charge; and (f) the pawnbroker serves on the owner of the goods a copy of the agreement referred to in paragraph (e).". 43. Insertion of new sections 24A and 24B 59 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 Act No. After section 24 of the Principal Act insert-- "24A. Offence of failing to comply with court order A person to whom an order of the 5 Magistrates' Court under section 24 is directed must comply with the order. Penalty: 50 penalty units. 24B. Sign to be displayed A second-hand dealer or pawnbroker must 10 cause a notice in the form in the Schedule, in legible letters not less than 15 millimetres in height and of a colour that contrasts with the background colour of the notice, to be displayed in a prominent place in each 15 business premises of the dealer or pawnbroker to which the public has access so that the notice is clearly visible to the public. Penalty: 10 penalty units.". 20 44. Police powers of inspection In section 25 of the Principal Act, for sub-section (1) substitute-- "(1) A member of the police force may, without warrant, enter business premises or storage 25 premises occupied by or under the control of a second-hand dealer or pawnbroker at any time when the business premises are open and may inspect the premises or any goods at the premises.". 30 45. Service In section 27(2) of the Principal Act, for "sections 528, 529 and 530 of the Companies (Victoria) Code" substitute "the provisions of the Corporations Law with respect to service". 60 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 46 Act No. 46. Substitution of section 28 For section 28 of the Principal Act substitute-- "28. Delegation The Secretary may, by instrument, delegate 5 to a person employed in the Department of Justice under Part 2 of the Public Sector Management Act 1992 the powers and functions of the Secretary under this Act, other than this power of delegation.". 10 47. Evidentiary In section 29(b) of the Principal Act, for sub- paragraphs (i), (ii) and (iii) substitute-- "(i) a certificate issued by the Secretary stating that at a particular time a person was or was 15 not registered under this Act is proof of that fact; and (ii) proof is not required that such a certificate purporting to be issued by the Secretary was so issued.". 20 48. Bodies corporate In section 30(1) of the Principal Act, after "Act" insert "or the regulations". 49. Regulation-making power In section 31(1) of the Principal Act-- 25 (a) for paragraph (a) substitute-- "(a) prescribing categories of documents as to identity; and 61 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 50 Act No. (ab) prescribing particulars to be recorded in the register; and"; (b) for paragraph (d) substitute-- "(d) fees; and"; 5 (c) in paragraph (e), after "Act" insert "or the regulations". 50. Repeal (1) Section 27(3) of the Principal Act is repealed. (2) Section 32 of the Principal Act is repealed. 10 51. Insertion of new section 36 After section 35 of the Principal Act insert-- "36. Licence applications Part 2 of this Act (except section 11(2)) as in force immediately before the commencement 15 of section 38 of the Law and Justice Legislation Amendment Act 1997 continues to apply to applications for licences under Part 2 that have been lodged with a council but not determined before that 20 commencement.". 52. Insertion of Schedule At the end of the Principal Act insert-- "SCHEDULE Section 24B 25 ANY PERSON WHO BELIEVES THAT GOODS STOLEN FROM THEM ARE AVAILABLE FOR SALE ON THESE PREMISES IS NOT OBLIGED TO BUY THEM BUT MAY-- (a) REQUEST THE POLICE TO SERVE A NOTICE 30 PROHIBITING THE ALTERATION OR DISPOSAL OF THE GOODS FOR 21 DAYS; AND 62 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 52 Act No. (b) SEEK AN ORDER FROM THE MAGISTRATES' COURT FOR DELIVERY OF THE GOODS. SEE SECTIONS 24 AND 26 OF THE SECOND-HAND DEALERS AND PAWNBROKERS ACT 1989.". 5 _______________ 63 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 53 Act No. PART 10--SUMMARY OFFENCES ACT 1966 53. Criminal trespass No. 7405. (1) In section 3 of the Summary Offences Act 1966, Reprinted to after the definition of "road" insert-- No. 23/1994. 5 ' "Scheduled public place" means a public place described in Schedule 1;'. (2) In section 9(1) of the Summary Offences Act 1966-- (a) in paragraph (d), for "place" (where first 10 occurring) substitute "public place other than a Scheduled public place"; (b) at the end of paragraph (d) insert-- "; or (e) without express or implied authority 15 given by the owner or occupier or given on behalf of the owner or occupier by a person authorised to give it or without any other lawful excuse, wilfully enters any private place or Scheduled public 20 place, unless for a legitimate purpose; or (f) neglects or refuses to leave a private place or Scheduled public place after being warned to do so by the owner or 25 occupier or a person authorised to give that warning on behalf of the owner or occupier, unless the person has a lawful excuse; or (g) without lawful excuse, enters any place 30 (whether private or public) in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace--". 64 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 53 Act No. (3) In section 9 of the Summary Offences Act 1966, after sub-section (1A) insert-- "(1B) A person may commit an offence against paragraph (d), (e), (f) or (g) of sub-section 5 (1) even though he or she did not intend to take possession of the place. (1C) Without limiting paragraph (e) of sub- section (1), examples of circumstances in which a person does not have express or 10 implied authority to enter a place are-- (a) the person enters that place after having been previously warned not to enter by the owner or occupier or a person authorised to give such a warning on 15 behalf of the owner or occupier; or (b) the person enters that place despite being then warned not to enter by the owner or occupier or a person authorised to give such a warning on 20 behalf of the owner or occupier; or (c) the person enters that place in breach of a prominently displayed sign erected at that place by the owner or occupier or a person authorised to erect such a sign 25 on behalf of the owner or occupier stating that-- (i) the person concerned, or a class of persons of which the person concerned is a member, is 30 prohibited from entering that place; or (ii) persons engaging in that place in the type of activity in which the person concerned is proposing to 65 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 54 Act No. engage in that place are prohibited from entering that place-- and the person has no other lawful excuse for entering that place. 5 (1D) A warning may be given to a person under sub-section (1)(f) or sub-section (1C)(a) or (b)-- (a) orally; or (b) by delivering written notice of it 10 personally to the person; or (c) except in the case of a warning under sub-section (1)(f), by sending written notice of it by certified mail addressed to the person at his or her usual or last 15 known place of residence. (1E) A person may commit an offence against paragraph (g) of sub-section (1) even though he or she had a right to enter that place in a manner other than that described in that 20 paragraph.". 54. New section 62 inserted After section 61 of the Summary Offences Act 1966 insert-- "62. Transitional provision 25 If on the commencement of section 55 of the Law and Justice Legislation Amendment Act 1997, section 57 of the Children's Services Act 1996 is not in operation, Schedule 1 to this Act has effect, until that 30 section comes into operation, as if item 2 of that Schedule referred to a children's service 66 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 s. 55 Act No. centre within the meaning of Part XIA of the Health Act 1958 that directly receives any financial assistance from the State.". 55. New Schedule 1 inserted 5 At the end of the Summary Offences Act 1966 insert-- "SCHEDULE 1 SCHEDULED PUBLIC PLACES 1. Land used for the purposes of a State school within the meaning of the 10 Education Act 1958. 2. Premises or place where a children's service within the meaning of the Children's Services Act 1996 operates in respect of which the Secretary within the meaning of that Act provides grants, payments, subsidies or other financial assistance. 15 3. Premises that are-- (a) a residential institution within the meaning of the Intellectually Disabled Persons' Services Act 1986; or (b) used to provide a residential program within the meaning of that Act; or 20 (c) used by a registered residential service within the meaning of that Act to provide residential services to eligible persons within the meaning of that Act. 4. Premises that are an approved mental health service within the meaning of the Mental Health Act 1986. 25 5. Land held or managed by the trustees of a public cemetery to which the Cemeteries Act 1958 applies.". 67 531199B.I1-22/4/97

 


 

Law and Justice Legislation Amendment Act 1997 Notes Act No. NOTES 1 Division 3 of Part 4 of the Magistrates' Court Act 1989 contains provisions for the issuing of warrants. Section 57(2) of that Act provides that all warrants, other than a search warrant, may be issued by a registrar or a magistrate. By Authority. Government Printer for the State of Victoria. 68 531199B.I1-22/4/97

 


 

 


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