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COURTS LEGISLATION MISCELLANEOUS AMENDMENTS BILL 2014

         Courts Legislation Miscellaneous
             Amendments Bill 2014

                           Amended Print


               EXPLANATORY MEMORANDUM


                                  General
The purpose of the Bill is to make a range of amendments to Acts that
regulate the operation of Victorian courts and tribunals to make a number of
changes, in particular to--
         ·    require that leave be obtained for civil appeals to the Court of
              Appeal (subject to limited exceptions) and provide that such
              leave will only be granted where the appeal has a real prospect
              of success;
         ·    extend, to 28 days, the time in which an application to the
              Court of Appeal for leave to appeal can be filed and provide
              that the appeals process is commenced by filing such an
              application;
         ·    permit applications to the Court of Appeal for leave to appeal
              to be determined without an oral hearing and by a single Judge
              of Appeal;
         ·    set out the circumstances in which a single tribunal member
              may exercise the powers of the Victorian Civil and
              Administrative Tribunal (VCAT);
         ·    provide that a person with a statutory right to intervene in a
              proceeding before VCAT, including the valuer-general, may
              also become a party to the proceeding;
         ·    permit a member of VCAT who has conducted a mediation in
              a proceeding to hear the proceeding, subject to objection by the
              parties;




57150
571503                                1           BILL LA AMENDED 20/8/2014

 


 

· introduce threshold requirements that VCAT must consider before it reopens a proceeding determined in the absence of a party; · set out the circumstances in which VCAT member (or past member) may appear as an expert witness before VCAT; · empower VCAT to make rules regarding service of Tribunal process outside of Australia; · provide that VCAT may admit in a proceeding evidence that has been admitted in another proceeding; · provide that VCAT is only required to provide reasons for orders for substantive relief; · confer on VCAT jurisdiction to issue injunctions restraining breaches of enforcement orders made under the Planning and Environment Act 1987; · provide that, in certain applications under the Planning and Environment Act 1987, the relevant responsible authority will reimburse fees paid by the applicant; · amend the Retail Leases Act 2003 to allow VCAT to make orders against a guarantor or indemnifier of a tenant's obligations under a retail premises lease; · provide that an application for review of a Transport Accident Commission decision may be lodged with VCAT within 3 months after negotiations have concluded under specified No Fault Dispute Resolution Protocols or within 12 months after the applicant becomes aware of the decision, whichever is the latter; · amend the processes for altering modes of service for non-judicial VCAT members; · clarify that the Governor in Council may determine the terms and conditions for appointment of a non-judicial member to VCAT; · amend the Coroners Act 2008 to further provide for various coronial processes, including inquests, and for appeals to the Supreme Court; · amend the periods for bringing an appeal in respect of certain decisions of a coroner; 2

 


 

· introduce new offences into the Court Security Act 1980 in relation to the unauthorised recording, transmission and publication of certain court and tribunal proceedings; · provide that the Attorney-General must obtain the support of the relevant head of jurisdiction before recommending to the Governor in Council the re-appointment of a judicial registrar; · empower courts to determine, in court rules, the manner of reviewing a determination of a judicial registrar; · protect the salaries and aggregate value of allowances of judicial registrars from reduction and require judicial registrars to make an oath or affirmation of office upon appointment; · expand the regulation making power in section 129 of the Supreme Court Act 1986 in relation to court fees. Clause Notes PART 1--Preliminary Clause 1 sets out the main purposes of the Bill. Clause 2 provides that the Bill, except for Part 2, Division 2 of Part 3 and Parts 4, 5 and 6, comes into operation on the day after the day on which it receives the Royal Assent. The remaining provisions will commence on a day or days to be proclaimed, or on 1 September 2015 if not proclaimed before that date. The delayed forced commencement date is to enable the necessary administrative arrangements to be made for various amendments made by the Bill. PART 2--CIVIL APPEALS Division 1--Supreme Court Act 1986 Clause 3 makes several amendments to section 11 of the Supreme Court Act 1986, which specifies the ways in which the Court of Appeal may be constituted when hearing and determining matters within the Court of Appeal's jurisdiction. The clause inserts new subsections (1C) and (4B) into section 11. New subsection (1C) enables the Rules to specify that the Court of Appeal may be constituted by a single Judge of Appeal, who may exercise all the jurisdiction and powers of the Court of 3

 


 

Appeal. The Rules may be general in nature, for example by allowing a single Judge of Appeal to constitute the Court of Appeal in all matters. Alternatively, the Rules may be limited, for example by only allowing a single Judge of Appeal to constitute the Court of Appeal in particular kinds of applications and appeals to, or proceedings in, the Court of Appeal. New subsection (1C) is subject to new subsection (9), which is inserted by subclause (6). New subsection (9) provides that subsection (1C) does not apply in relation to an appeal from a refusal to grant habeas corpus or an appeal under the Serious Sex Offenders (Detention and Supervision) Act 2009. This prevents the Rules from specifying that a single Judge of Appeal may constitute the Court of Appeal for the purpose of hearing and determining such appeals. New subsection (4B) enables the Rules to specify particular kinds of applications, appeals or proceedings in relation to which the Court of Appeal may discharge or vary a judgment, order or direction given or made by a single Judge of Appeal. For example, the Rules may provide that decisions of single Judges of Appeal to dismiss applications to extend time may be discharged or varied by the Court of Appeal. There is no right to apply to have a decision of a single judge set aside or varied if the application, appeal or proceeding in which that decision was made is not of a kind that has been listed in the Rules pursuant to new subsection (4B). The clause also makes consequential amendments to sections 11(4), 11(5) and 11(6) of the Supreme Court Act 1986. Section 11(4) allows the Rules to specify that the jurisdiction and powers of the Court of Appeal may be exercised by a single Judge of Appeal or an Associate Judge in particular kinds of applications or proceedings. Section 11(5) allows the Court of Appeal to discharge or vary a judgment, order or direction given or made by a single Judge of Appeal or an Associate Judge or a judicial registrar. Section 11(6) provides that subject to subsection (5), a judgment, order or direction given or made by a single Judge of Appeal has effect as a judgment, order or direction of the Court of Appeal. The clause removes the reference to a single Judge of Appeal in both sections 11(4) and 11(5). The reference is redundant by virtue of the specific rule-making powers in relation to single Judges of Appeal provided in new subsections (1C) and (4B), 4

 


 

described above. In section 11(6), "Subject to subsection (5)" is replaced by "Unless the Court of Appeal discharges or varies a judgment, order or direction in accordance with any Rules made subsection (4B)" as a consequence of the removal of the reference to a single Judge of Appeal in subsection (5) and the insertion of new subsection (4B). Clause 4 inserts new sections 14A to 14D into the Supreme Court Act 1986. New section 14A introduces a general requirement that leave to appeal be obtained from the Court of Appeal in relation to any civil appeal to the Court of Appeal. There are a number of exceptions to this general requirement. Specifically, leave to appeal is not required to be obtained for an appeal from a refusal to grant habeas corpus, for an appeal under the Serious Sex Offenders (Detention and Supervision) Act 2009 or if the Rules provide that leave to appeal is not required. For the purpose of this section, civil appeal is defined to mean an appeal from a judgment or order made in the exercise of civil jurisdiction for which the Supreme Court Act 1986 or any other Act or the Rules provides an appeal to the Court of Appeal. The definition expressly includes an appeal by way of rehearing and an appeal in the nature of judicial review. New section 14B requires an applicant for leave to appeal under new section 14A to file an application for leave to appeal within 28 days from the date of the judgment, order, determination or other decision which the applicant seeks to appeal. This requirement is subject to the Rules, which may, for example, set out different procedural requirements for certain types of leave applications. New section 14B also clarifies that an application for leave to appeal is commenced by the filing of the application for leave to appeal, rather than by service of the application for leave to appeal on the respondent, unless the Supreme Court Act 1986, any other Act or the Rules provide otherwise. New section 14C sets out the circumstances in which the Court of Appeal may grant an application for leave to appeal under new section 14A. The Court of Appeal may only grant leave if it is satisfied that the appeal has a real prospect of success. 5

 


 

New section 14D provides for the determination of an application for leave to appeal under new section 14A. The section allows the Court of Appeal to determine the leave application with or without an oral hearing of the parties, regardless of how the Court of Appeal is constituted. However, if the Court of Appeal dismisses the leave application without an oral hearing, the applicant may apply to have the dismissal set aside or varied at an oral hearing before two or more Judges of Appeal, unless the Court of Appeal has determined that the leave application is totally without merit. New section 14D does not apply to an appeal from a refusal to grant habeas corpus or an appeal under the Serious Sex Offenders (Detention and Supervision) Act 2009. Clause 5 introduces a note below section 17(2) of the Supreme Court Act 1986, which provides that unless otherwise expressly provided by the Supreme Court Act 1986 or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge of the Court. The note highlights new section 14A as an example of the Supreme Court Act 1986 expressly providing an exception to section 17(2). Clause 6 makes several amendments to section 17A of the Supreme Court Act 1986, which sets out a number of restrictions on appeals. The clause repeals subsection (1), which provides that certain orders made by the Trial Division constituted by a Judge of the Court are not subject to appeal to the Court of Appeal except by leave. This subsection is redundant as a consequence of the general leave requirement for civil appeals to the Court of Appeal in new section 14A. The clause amends subsections (3A) and (3C), which provide that certain orders made by the Trial Division constituted by a Judge of the Court or by an Associate Judge are not subject to appeal to the Court of Appeal, except by leave of the Court of Appeal or by leave of the Judge of the Court or the Associate Judge constituting the Trial Division. The clause removes the ability of the Trial Division to grant leave to appeal in relation to the specified orders. This is done as a consequence of the requirement in new section 14A for leave to appeal to be obtained from the Court of Appeal in relation to civil appeals. 6

 


 

The clause also amends subsection (4)(b), which provides that an appeal does not lie to the Court of Appeal, without leave, from a judgment or order in an interlocutory application, except in specified cases. Subsection (4)(b) essentially requires leave to be obtained in order to appeal to the Court of Appeal from interlocutory decisions (subject to some exceptions), while preserving the right of a person to appeal to the Court of Appeal as of right (that is, without needing to obtain leave) from final decisions. The distinction between final and interlocutory decisions is no longer relevant in relation to civil appeals as a result of the general leave requirement for all civil appeals in new section 14A, which is inserted by clause 4. The clause therefore amends subsection (4)(b) so that it applies only to appeals in criminal and quasi-criminal proceedings subject to limited exceptions. For the same reasons, the clause repeals subsection (5). Subsection (5) provides that an order refusing unconditional leave to defend a proceeding is to be taken not to be a judgment or order in an interlocutory application within the meaning of section 17A. This subsection is redundant by reason of new section 14A. The clause also repeals subsection (7), which provides that unless otherwise provided by any other Act, an application for leave to appeal may be made without notice to any other party unless the Court of Appeal or the Judge of the Court or an Associate Judge constituting the Trial Division which gave the judgment otherwise directs. This subsection is being repealed as the practice of the Court of Appeal is for applications for leave to appeal to be made on notice to the respondent and this will particularly be the case given that the process by which almost all civil appeals will be initiated by application for leave. Clause 7 amends section 25(1) of the Supreme Court Act 1986, which provides that the Judges of the Court (not including any reserve Judge) may make rules of court for or with respect to specified matters. The clause inserts new paragraphs (cab) and (cac). New paragraphs (cab) and (cac) allow rules to be made, in accordance with section 11 (as amended by clause 3), which provide for the constitution of the Court of Appeal by a single Judge of Appeal and which provide for the particular kinds of applications, appeals or proceedings in respect of which the 7

 


 

Court of Appeal may discharge or vary a judgment, order or direction given or made by a single Judge of Appeal. Clause 8 inserts new sections 154 to 156 into the Supreme Court Act 1986 which deal with transitional arrangements under the Bill once enacted. New section 154 provides that the amendments made to the Supreme Court Act 1986 by the Bill apply to all applications or proceedings in the Court of Appeal that are commenced on or after the commencement of Part 2 of the Bill. The amendments made by the Bill to the Supreme Court Act 1986, or to any other Act under which an application or a proceeding in the Court of Appeal may be commenced, do not apply to applications or proceedings in the Court of Appeal that were commenced prior to the Bill's commencement, regardless of whether the Court of Appeal has begun to hear and determine the application or proceeding. However, the Court of Appeal may make an order that the amendments made by the Bill do apply to an application or proceeding commenced prior to the Bill's commencement if the Court of Appeal has not yet begun to hear and determine the application or proceeding. New section 155 enables the Supreme Court to make an order to resolve any difficulty which arises as a result of the operation of the Bill in relation to an application or proceeding, such as an unforeseen transitional issue which arises in a specific case. Such an order can be made on the application of a party or on the Supreme Court's own motion, and has effect despite any provision to the contrary that is made by or under any other Act (excluding the Charter of Human Rights and Responsibilities Act 2006). New section 156 enables the Governor in Council to make regulations containing provisions of a transitional nature. This may include matters of an application or savings nature that arise as a result of the enactment of Part 2 of the Bill, including the repeals and amendments made by the Bill. Regulations made pursuant to new section 156 have effect despite anything to the contrary in any Act (other than Part 2 of the Bill or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument. Subsection (4) repeals new section 156 on the second anniversary of the date that the section commences, reflecting the transitional nature of this power. 8

 


 

Division 2--Consequential amendments to other Acts Clause 9 repeals section 134AC of the Accident Compensation Act 1985, which provides that specified decisions must be taken not to be a judgment or order in an interlocutory application for the purposes of an appeal to the Court of Appeal. This section is redundant due to the introduction of a general leave requirement for civil appeals to the Court of Appeal in new section 14A of the Supreme Court Act 1986, which has removed the need for a distinction to be drawn between final and interlocutory decisions. Clause 10 amends section 155(3) of the Casino Control Act 1991, which provides that a person aggrieved by specified decisions of the Victorian Commission for Gambling and Liquor Regulation may appeal from the decision to the Court of Appeal on a question of law. The clause inserts a requirement that leave of the Court of Appeal be obtained in relation to such an appeal. This amendment is made to ensure consistency with the general leave requirement for civil appeals to the Court of Appeal in new section 14A of the Supreme Court Act 1986, which is inserted by clause 4. Clause 11 makes several amendments to section 74 of the County Court Act 1958, which provides for appeals to the Court of Appeal from decisions of the County Court. Section 74(1) of the County Court Act 1958 enables a party to a civil proceeding to appeal to the Court of Appeal from a judgment or order of the court constituted by a judge other than an associate judge. The clause amends subsection (1) to introduce a requirement that leave of the Court of Appeal be obtained in relation to such an appeal. This amendment is made for the same reasons as the amendment to the Casino Control Act 1991 made by clause 10. The clause repeals subsections (2D) and (2E) as a consequence of this amendment. These subsections provide that an appeal does not lie to the Court of Appeal, except with leave, from a judgment or order of the court in an interlocutory application or from a judgment or order of the court as to costs. The subsections are redundant due to the general requirement for leave to appeal to the Court of Appeal in new section 14A of the Supreme Court Act 1986. Similarly, subsection (3) is repealed 9

 


 

because of its overly prescriptive nature which is no longer necessary. The clause also amends subsection (2), which specifies the time and manner in which an appeal to the Court of Appeal must be commenced. The clause substitutes a new subsection (2) to require an applicant for leave to appeal under section 74(1) to commence the appeal by filing an application for leave to appeal in the Court of Appeal within 28 days after the date of the judgment or order of the court being appealed. This amendment is made to ensure consistency with the requirements for civil appeals to the Court of Appeal in new section 14B of the Supreme Court Act 1986. The clause makes other consequential amendments to subsections (2A) and (2C) to allow the Court of Appeal to extend the time within which an application for leave to appeal or an appeal may be commenced, and to amend an application for leave to appeal or a notice of appeal. Subsection (2B), which sets out the matters that a notice of appeal must state, is amended to provide that an application for leave to appeal must be made in accordance with the Rules of the Supreme Court. Clause 12 amends section 163 of the Disability Act 2006, which provides for appeals to the Court of Appeal in relation to decisions regarding extended leave. The clause inserts a requirement that leave of the Court of Appeal be obtained in relation to these appeals. This amendment is made for the same reasons as the amendment to the Casino Control Act 1991 made by clause 10. Clause 13 amends section 165 of the Disability Act 2006, which provides for appeals to the Court of Appeal in relation to decisions regarding the revocation of extended leave. The clause inserts a requirement that leave of the Court of Appeal be obtained in relation to these appeals. This amendment is made as a consequence of the civil appeal leave requirement. Clause 14 amends section 210(2) of the Fisheries Act 1995, which provides for an appeal to the Court of Appeal on a question of law from a determination of the Magistrates' Court or any other court of competent jurisdiction on the amount of compensation payable in a disputed claim. The clause inserts a requirement that leave of the Court of Appeal be obtained in relation to these appeals. 10

 


 

Clause 15 amends section 9 of the Imprisonment of Fraudulent Debtors Act 1958, which provides for appeals to the Court of Appeal against an order for commitment. The clause inserts a requirement that leave of the Court of Appeal be obtained in relation to these appeals. The clause also inserts a new heading to section 9 and substitutes references to the "Full Court" with references to the "Court of Appeal" to update the provision. Clause 16 amends section 19(4)(b) of the Judgment Debt Recovery Act 1984, which provides that a judgment debtor who is aggrieved by an order for imprisonment made by the County Court or Supreme Court may appeal against the order to the Court of Appeal. The clause inserts a requirement that leave of the Court of Appeal be obtained in relation to such an appeal. Clause 17 amends section 89(2) of the Land Acquisition and Compensation Act 1986, which provides for an appeal to the Court of Appeal on a question of law from a determination or order made by the Supreme Court regarding the amount of compensation payable in a disputed claim. The clause inserts a requirement that leave of the Court of Appeal be obtained in relation to such an appeal. Clause 18 amends section 2.2.6(5) of the Legal Profession Act 2004, which provides for an appeal to the Court of Appeal on a question of law from an order of VCAT disqualifying a person. The clause inserts a requirement that leave of the Court of Appeal be obtained in relation to such an appeal. Clause 19 amends section 5.6.4(3)(b) of the of the Legal Profession Act 2004, which provides for an appeal to the Court of Appeal against the appointment of a receiver. The clause inserts a requirement that leave of the Court of Appeal be obtained in relation to such an appeal. Clause 20 amends section 30(1) of the Status of Children Act 1974, which provides that a party to a proceeding under Part IV of that Act may appeal to the Court of Appeal against an order of the Supreme Court or County Court in the proceeding or a refusal of the court to make an order. The clause inserts a requirement that leave of the Court of Appeal be obtained in relation to such an appeal. 11

 


 

Clause 21 amends section 51ZR(2) of the Urban Renewal Authority Victoria Act 2003, which provides for an appeal to the Court of Appeal on a question of law from an order of the Supreme Court regarding infrastructure general charges or infrastructure recovery charges. The clause inserts a requirement that leave of the Court of Appeal be obtained in relation to such an appeal. Clause 22 amends section 25(2) of the Valuation of Land Act 1960, which provides that an appeal lies to the Court of Appeal on a question of law from an order of the Supreme Court in relation to the valuation of land. The clause inserts a requirement that leave of the Court of Appeal be obtained in relation to such an appeal. Clause 23 Subclause (1) amends section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998, which provides for appeals on a question of law from an order of VCAT to either the Trial Division of the Supreme Court or to the Court of Appeal, depending on how VCAT was constituted for the purpose of making the order. The clause substitutes a new subsection (1) to make it clear that an appeal lies to the Court of Appeal with leave of the Court of Appeal if VCAT was constituted by the President or a Vice President, and that in any other case an appeal lies to the Trial Division of the Supreme Court with leave of the Trial Division. Section 148(3) of the Victorian Civil and Administrative Tribunal Act 1998 provides the time in which an appeal must be filed once leave is granted. Subclause (2) amends this provision by confining its operation to appeals to the Trial Division. Clause 24 repeals section 351 of the Workplace Injury Rehabilitation and Compensation Act 2013, which provides that specified decisions must be taken not to be a judgment or order in an interlocutory application for the purposes of an appeal to the Court of Appeal. Like section 134AC of the Accident Compensation Act 1985, this section is redundant due to the introduction of a general leave requirement for civil appeals to the Court of Appeal in new section 14A of the Supreme Court Act 1986, which has removed the need for a distinction to be drawn between final and interlocutory decisions. 12

 


 

PART 3--VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL Division 1--Amendments to Victorian Civil and Administrative Tribunal Act 1998 Clause 25 inserts a new definition of interim order into section 3 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act"). This amendment defines the term interim order to mean an order of an interim or interlocutory nature. This amendment will clarify the ambiguity identified in Dura (Australia) Constructions Pty Ltd v The Victorian Managed Insurance Authority [2009] VSCA 171. Clause 26 inserts a new section 16B into the VCAT Act to empower the Governor in Council to amend the appointment of a senior or ordinary member appointed on a sessional basis to a non- sessional basis, and vice versa. The amendments will enable the instrument of appointment to be amended to reflect the change from sessional to non-sessional service (or vice versa), without the officer needing to resign from their office. Clause 27 inserts a new section 25B into the VCAT Act limiting the circumstances in which a member of the VCAT may be called as an expert witness in a proceeding. A member or former member (for a period of 2 years after a member ceases to be a member) may not be called as an expert witness in a proceeding in a list to which the member has been assigned, except with the approval of the President. This amendment codifies VCAT's current practice. The new section 25B is subject to any contrary provision in the VCAT Act or an enabling enactment. Clause 28 inserts a new section 60(3) into the VCAT Act which provides that, on the application of a person who is entitled under section 73(4) to be joined as a party, VCAT must order that the person be joined as a party. Section 73(4) is a new section inserted into the VCAT Act by the Bill. Clause 29 inserts new subsections (4) and (5) into section 64 of the VCAT Act. The new subsections clarify that those powers of VCAT expressed to be exercisable by any member or by the principal registrar may be so exercised, despite any provision of 13

 


 

the VCAT Act or an enabling enactment requiring that VCAT be constituted in a particular way for the purposes of a proceeding. This amendment confirms the correctness of the interpretation given to relevant sections by Hansen J in The Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2005] VSC 188, [56]. Clause 30 inserts a new section 73(4) into the VCAT Act, giving a person who has a statutory right to intervene in a VCAT proceeding and who intervenes ("intervener") the right to also be joined as a party to the proceeding. This provision applies to the Attorney- General (as a result of section 73(1)) and to others with similar statutory rights. This provision does not apply to a person who may seek leave to intervene under section 73(3). The Bill amends section 60 of the VCAT Act to provide that VCAT must join as a party an intervener who is entitled under section 73(4) to be joined and who applies to be joined. An intervener is not required to apply to be joined as a party. If an intervener does not apply, VCAT, nevertheless, may--but is not required to--join the intervener as a party in accordance with section 60(1) and (2) of the VCAT Act. Clause 31 repeals section 88(6) of the VCAT Act. Section 88(6) provides that a VCAT member who has mediated in a matter may not constitute VCAT for the purposes of hearing the matter. This section is repealed as it is inconsistent with new section 93A inserted by the Bill. Clause 32 inserts a new section 93A into the VCAT Act. The new section permits a member of VCAT who has conducted a mediation in a proceeding to constitute VCAT (whether with or without others) and hear the proceeding. VCAT must notify each party that it may object to the mediator constituting VCAT. If a party objects, the mediator must take no part, or no further part, in the proceeding and, if necessary, VCAT must be reconstituted. Clause 33 inserts new subsections (2A) and (2B) into section 98 of the VCAT Act. The new section 98(2A) clarifies that VCAT may admit into evidence any material put before VCAT at an earlier stage of the proceeding, or any material put before VCAT in another proceeding, if VCAT considers it desirable to do so. The new provision does not limit the existing section 98(1). 14

 


 

As a consequence, the admission of any material pursuant to section 98(2A) will be subject to the rules of natural justice. The new section 98(2B) has the effect that where another provision of the VCAT Act or an enabling enactment or any other law provides that evidence or material is not admissible in a proceeding, then that evidence or material is not admissible simply as a result of the new section 98(2A). Clause 34 inserts a new section 109(7) into the VCAT Act, providing that the powers of VCAT to award costs (as set out in section 109 of the VCAT Act) are exercisable by any member. The clarification in new section 64(4) of the VCAT Act will apply to the new section 109(7). Clause 35 inserts into section 115B(3) of the VCAT Act a reference to section 115CA and amends the heading to section 115C of the VCAT Act. Section 115CA is a new section inserted into the VCAT Act by the Bill, discussed below. The Bill also adds the words "to successful party" to the heading to section 115C of the VCAT Act. This reflects the terms of section 115C, which applies only to a party that has substantially succeeded against another party. Clause 36 inserts a new section 115CA into the VCAT Act. The new section 115CA(1) creates an entitlement for an applicant who has applied to VCAT under section 79 of the Planning and Environment Act 1987 to an order that the responsible authority reimburse the applicant the whole of any fees paid by the applicant in the proceeding. The order is made under section 115B of the VCAT Act. Section 79 of the Planning and Environment Act 1987 gives a person who has applied to a responsible authority for a permit for a use or development of land the right to apply to VCAT for review of the failure of the responsible authority to grant the permit within the prescribed time. The new section 115CA(2) provides that, if different fees are payable in a proceeding under section 79 of the Planning and Environment Act 1987 depending on an election made by the applicant, the applicant is only entitled to the amount of the lowest of those fees. For example, if an applicant elects to have 15

 


 

the proceeding entered into the Major Cases List, the applicant would only be entitled to an order for reimbursement of the amount of the applicable standard fee for commencing a proceeding. The new section 115CA(3) provides that the entitlement set out in new section 115CA(1) does not apply if the responsible authority satisfies VCAT that there was reasonable justification for the responsible authority to fail to grant the permit within the available time. In making its decision, VCAT is required to have regard to the nature and complexity of the permit application, the conduct of the applicant in relation to that application and any other matter beyond the reasonable control of the responsible authority. Clause 37 substitutes a new section 120(4)(a) of the VCAT Act and inserts new sections 120(4A), 120(4B) and 120(4C) into the VCAT Act. The substituted section 120(4)(a) re-enacts the existing requirement that VCAT may hear and determine an application under section 120 of the VCAT Act if it is satisfied that the applicant had a reasonable excuse for not attending or being represented at a hearing. The substituted section adds a further requirement, at new section 120(4)(a)(ii), namely that VCAT must also be satisfied that it is appropriate to hear and determine the application, having regard to the matters specified in new section 120 (4A). The new section 120(4A) specifies the matters to which VCAT must have regard for the purposes of new section 120(4)(a)(ii). The matters specified are (a) whether the applicant has a reasonable case to argue in relation to the subject-matter of the order and (b) any prejudice that may be caused to another party if the application is heard and determined. The new section 120(4B) provides that VCAT may hear and determine an application under section 120, despite section 120(4A)(b), if VCAT is satisfied that any prejudice that may be caused to a party may be addressed by an order for costs under section 109 or an order for reimbursement of fees under section 115B or both. The new section 120(4C) provides that, in deciding to hear and determine an application under section 120 of the VCAT Act, VCAT may require the applicant to give any undertaking as to costs or damages that VCAT considers appropriate. 16

 


 

Clause 38 inserts a new section 157(4) into the VCAT Act, qualifying VCAT's power to make rules for service of VCAT applications outside of Australia ("service out"). The Bill also inserts the power to make such rules into the VCAT Act. The new section 157(3) provides that VCAT may make rules for service out if those rules provide that service out is permitted only with leave of VCAT, constituted by at least one member who is a legal practitioner ("the leave requirement"). The new subsection does not otherwise limit VCAT's power to make rules, consistent with the leave requirement, regarding service out. Clause 39 inserts a new section 168 into the VCAT Act to provide for transitional arrangements for the amendments made by the Bill. New section 168(1) provides that, subject to subsection (2), each amendment made by Division 1 of Part 3 of the Bill (except the new section 16B, which is not relevant to proceedings) applies from the date of commencement of the amendment, including in relation to proceedings commenced in VCAT before the coming into operation of the amendment. New section 168(2) provides that new section 115CA inserted by the Bill applies only in relation to an application to VCAT under section 79 of the Planning and Environment Act 1987 that is made on or after the coming into operation of the relevant clause. Clause 40 amends the definition of planning enactment in clause 2 of Schedule 1 to the VCAT Act by repealing paragraph (e) which refers to section 185 of the Local Government Act 1989 and omitting the reference to sections 36 and 39 of the Subdivision Act 1988 in paragraph (g). The consequence of this amendment is that the provisions of Part 16 of Schedule 1 to the VCAT Act will not apply to matters arising under section 185 of the Local Government Act 1989 and will apply to matters arising under sections 36 and 39 of the Subdivision Act 1988. Clause 41 makes amendments to clause 56 of Schedule 1 to the VCAT Act. Subclause (1) changes the heading to clause 56 to better reflect the operation of the clause, as amended by the Bill. Subclause (2) inserts a new clause 56(5) and 56(6). Clause 56(5) provides that a person who lodges a statement under clause 56(1) may lodge with the statement a written notice that the person 17

 


 

does not intend to participate in the hearing of the proceeding. Clause 56(6) provides that if a person lodges a notice under clause 56(5), the person is not, or ceases to be, a party to the proceeding (as the case requires). Clause 42 repeals clause 70 of Schedule 1 to the VCAT Act because that clause is superseded by the new provisions concerning mediators inserted by the Bill. Clause 43 inserts a new clause 97A into Schedule 1 to the VCAT Act which provides that the valuer-general may intervene, and be represented by a professional advocate, at any time in a proceeding for review under Division 4 of Part III of the Valuation of Land Act 1960. Clause 44 inserts "service outside Victoria (including outside Australia)" as an additional subject matter for rules in Schedule 2 to the VCAT Act. The Bill also inserts a new section 157(3) into the VCAT Act that qualifies VCAT's power to make rules for service of VCAT applications outside of Australia. Clause 45 is a statute law revision item that corrects an error in Schedule 3 to the VCAT Act which deals with expert witnesses and expert evidence. The reference to a subsection in that Schedule is replaced with the correct reference to a subclause in that Schedule. Division 2--Further amendments to Victorian Civil and Administrative Tribunal Act 1998 Clause 46 inserts a new definition of part-time service arrangement into section 3 of the VCAT Act, substitutes the current definition of full-time member and repeals the definition of part-time member. Paragraph (b) of the new definition of full-time member refers to a member "who is appointed on a non-sessional basis and who is not undertaking the duties of office on a part-time basis"-- · the reference to a member "who is appointed on a non- sessional basis" would include an officer who was appointed on a sessional basis and whose appointment has been amended by the Governor in Council under section 16B(1) inserted by the Bill so that it continues on a non-sessional basis; 18

 


 

· the reference to "undertaking the duties of office on a part-time basis" would include a member who is taken to be (in accordance with section 16(9) as inserted by the Bill) undertaking a part-time service arrangement. Clause 47 substitutes sections 12(4), 13(4) and 14(4) of the VCAT Act to reflect that-- · a Deputy President is appointed on a non-sessional basis; and · an ordinary or senior member is appointed on a sessional or non-sessional basis. Clause 48 inserts new subsections (8) and (9) into section 16 of the VCAT Act. The new provisions enable the instrument of appointment of a Deputy President, senior member or ordinary member to indicate that the member commences the duties of office on a part-time basis, and that, if the instrument of appointment so indicates, the member is taken to have entered into a part-time service arrangement as defined by the VCAT Act. That part-time service arrangement, which the person is taken to have entered into, can be varied or terminated in accordance with section 18B or 18C of the VCAT Act. Clause 49 amends the heading and wording of section 17 of the VCAT Act to clarify that the Governor in Council may determine the terms and conditions to which a non-judicial member of VCAT is subject. New section 17(3A) enables an Order of the Governor in Council made under section 17 of the VCAT Act to incorporate by reference any document, with or without modification, or as formulated or published from time to time. The amendments also enable an Order of the Governor in Council made under section 17 to incorporate by reference any document which is formulated or published after the Order of the Governor in Council. Clause 50 amends section 18 of the VCAT Act to refer to a "full-time member", which is defined in section 3 of the VCAT Act. 19

 


 

Clause 51 inserts new sections 18A, 18B and 18C into the VCAT Act to enable the President of VCAT to, with the agreement of the relevant officer (i.e. a Deputy President, senior member or ordinary member), enter into, vary or terminate a part-time service arrangement as defined in section 3 of the VCAT Act. Clause 52 inserts additional transitional provisions into the VCAT Act, which provide that-- · a Deputy President, senior member or ordinary member who was appointed on a part-time basis to that office immediately before the commencement of the relevant clause of the Bill continues to hold that office on or after commencement of the Bill; · a Deputy President, senior member or ordinary member who was appointed on a part-time basis and held office immediately prior to the commencement of the relevant clause of the Bill is taken to be serving under a part- time service arrangement as defined in section 3. That part-time service arrangement, which the person is taken to have entered into, can be varied or terminated in accordance with section 18B or 18C. Division 3--Amendment of enabling enactments Clause 53 makes amendments to section 83 of the Planning and Environment Act 1987. Subclause (1) inserts a new section 83(2A) which provides that section 83(2) does not apply if the objector lodges notice under clause 56(5) of Schedule 1 to the VCAT Act. Clause 56(5) and (6) are new provisions inserted into Schedule 1 to the VCAT Act by the Bill. Subclause (2) inserts a new section 83(4) which provides that, in addition to any other party to a proceeding for review of an application by an objector under section 82 of the Planning and Environment Act 1987, the applicant for the permit is a party to the proceeding. 20

 


 

Clause 54 makes amendments to section 125 of the Planning and Environment Act 1987. Subclause (1) inserts "or to the Tribunal" after "jurisdiction". The consequence of this amendment is that a responsible authority or any other person may apply to any court of competent jurisdiction or to VCAT for an injunction restraining any person from contravening an enforcement order or interim enforcement order made under Part 6 of the Planning and Environment Act 1987. Subclause (2) inserts subsection (2) at the end of section 125 of the Planning and Environment Act 1987 which provides that section 123 of the VCAT Act applies on an application to VCAT under section 125(1). Clause 55 amends the definition of retail tenancy dispute in section 81(1) of the Retail Leases Act 2003 by inserting subsection (1A) which provides that in addition, a retail tenancy dispute includes a dispute between a landlord and a guarantor of a tenant's obligations under a lease arising in circumstances referred to in section 81(1)(a), (b) or (c) and a dispute between a landlord and a person who has given an indemnity to the landlord for loss or damage arising as a result of a breach by a tenant of a lease in circumstances referred to in section 81(1)(a), (b) or (c). Clause 56 inserts subsection (1A) and (1B) after section 86(1) of the Retail Leases Act 2003 which provide that a guarantor of a tenant's obligations under a lease who has been called on to perform any of those obligations, or a person who has given an indemnity to a landlord for loss or damage arising as a result of a breach by a tenant of a lease and who has been called on to indemnify the landlord accordingly, may refer a retail tenancy dispute referred to in section 81(1A) to the Small Business Commissioner for mediation. Clause 57 amends section 89 of the Retail Leases Act 2003 to provide that VCAT has jurisdiction to hear and determine an application by a guarantor of a tenant's obligations under a retail premises lease and by a person who has given an indemnity to a landlord for loss or damage arising as a result of a breach by a tenant of a retail premises lease. 21

 


 

Clause 58 amends section 77 of the Transport Accident Act 1986 to allow an application for review of a decision, that has been the subject of a pre-issue review under the No Fault Dispute Resolution Protocols agreed between the Transport Accident Commission, the Law Institute of Victoria and the Australian Lawyers Alliance on 1 March 2005 as amended from time to time, to be made to VCAT within 3 months after the Commission notifies the person of its decision on the pre-issue review or within 12 months after the applicant becomes aware of the decision, whichever is the latter. Clause 59 inserts a new Division 9 into Part 11 of the Transport Accident Act 1986 with the effect that the amendments made by to that Act by the Bill apply to decisions made on or after the commencement date and decisions the person became aware of within 12 months before the commencement date unless an application had been made to VCAT before that date. Clause 60 amends the functions of the valuer-general in section 5 of the Valuation of Land Act 1960 by substituting a new section 5(1)(a) which includes the function of carrying out the duties and functions conferred by that or any other Act. PART 4--CORONERS Clause 61 amends section 17 of the Coroners Act 2008 to clarify that, further to amendments to section 52 effected by the Bill, section 17 does not apply to an investigation in relation to a reportable death of a person who, immediately before death, was a person placed in custody or care. Clause 62 amends section 26 of the Coroners Act 2008 to provide for the giving of a verbal waiver for the expiry of the 48 hour period in which the senior next of kin of a deceased person may object to a direction that an autopsy be performed on that deceased person. Subclause (1) substitutes section 26(2) of the Coroners Act 2008 to effect this general purpose, creating new paragraphs (a) and (b) in section 26(2). Subclause (2) makes a numbering amendment to section 26(3) consequent on the amendment made by subclause (1). 22

 


 

Subclause (3) substitutes section 26(4)(b) of the Coroners Act 2008 with a new section 26(4)(b) with two new subparagraphs to provide that, where a direction to perform an autopsy has been made and a waiver has been provided in accordance with new section 26(2), that direction takes effect on the giving of the waiver. Clause 63 substitutes instances and variations of the word "request" in section 42 of the Coroners Act 2008 with instances and variations of the word "require" in the interests of consistency with existing provisions. Clause 64 amends section 52 of the Coroners Act 2008 so that an inquest need not be held into the death of a person in custody or care where the coroner considers that the death was due to natural causes. Subclause (1) makes an amendment to section 52(2) of the Coroners Act 2008 consequent on the amendment made by subclause (2). Section 52(2) will also be subject to new subsection (3A). Subclause (2) inserts new section 52(3A) and (3B) in the Coroners Act 2008 to effect the general purpose of the clause, and to provide that a death may be considered to be due to natural causes if the coroner has received a report from a medical investigator, in accordance with the rules, that includes an opinion that the death was due to natural causes. Subclause (3) makes a numbering amendment to section 52(4) consequent on the amendment made by subclause (2). Clause 65 inserts, after section 73(1) of the Coroners Act 2008, new sections 73(1A) and 73(1B) to, respectively: provide for a general power to publish findings, comments and recommendations made following an investigation into a death; and require that findings be made and published on the Internet according to the rules where the investigation relates to the death of a deceased who was, immediately before the death, a person placed in custody or care and the death was due to natural causes. Clause 66 amends the time for bringing an appeal under section 78(2) of the Coroners Act 2008 in relation to a determination that a death is not a reportable death from 3 months to 28 days. 23

 


 

Clause 67 amends the time for bringing an appeal under section 80(2) of the Coroners Act 2008 in relation to a determination not to investigate a fire from 3 months to 28 days. Clause 68 insert at the foot of section 82 of the Coroners Act 2008 a note referring to the new section 87A inserted into that Act by clause 71. Clause 69 Subclause (1) amends the time for bringing an appeal under section 84(2) of the Coroners Act 2008 in relation to a refusal to re-open an investigation from 3 months to 28 days. Subclause (2) inserts at the foot of section 84 of the Coroners Act 2008 a note referring to new section 87A of the Coroners Act 2008. Clause 70 amends section 87 of the Coroners Act 2008 consequent on the insertion of new section 87A. Clause 71 inserts a new section 87A(1) into the Coroners Act 2008 to provide that senior next of kin and persons with sufficient interest may make an appeal to the Supreme Court other than on a question of law where the appeal is made under section 82(1) in respect of a decision by a coroner to not hold an inquest into a death, or section 84(1) in respect of a refusal by the Coroners Court to re-open an investigation into a death. New section 87A(2) provides that the Supreme Court may allow an appeal under section 87A(1) if it is satisfied that it is necessary or desirable in the interests of justice to do so. Section 87 continues to apply generally to the Part, including to new section 87A. Clause 72 amends the rule making power in section 105(1) of the Coroners Act 2008 by providing a power to make a rule with respect to the manner of making and recording a waiver under new section 26(2)(b). Clause 73 provides further for access to documents under the Coroners Act 2008. Subclause (1) substitutes section 115(1) of the Coroners Act 2008. 24

 


 

Substituted section 115(1)(a) provides that the principal registrar of the Coroners Court must give the senior next of kin of a deceased person written notice, in accordance with the rules, that reports have been given to a coroner as the result of a medical examination performed on the deceased, and that the senior next of kin may request copies of those reports, and the manner in which copies are to be requested. Substituted section 115(1)(b) retains without substantive change the effect of existing section 115(1)(b). Subclauses (2) and (3) effect language changes to the body of sections 115(7) and 115(8) of the Coroners Act 2008 so that the term: "coronial brief" is substituted for "inquest brief"; "a coronial investigation" is substituted for "an inquest"; "a coronial brief" is substituted for "an inquest brief"; and "the coronial investigation" is substituted for "the inquest". Clause 74 makes transitional arrangements for the amendments made to section 52 of the Coroners Act 2008 with the effect that section 52, as in force on the commencement day (being the day the amended section 52 comes into operation), applies to a death of a deceased who was, immediately before the death, a person placed in custody or care if, immediately before the commencement day, an investigation into that death has not been completed by the coroner. PART 5--COURT SECURITY Clause 75 inserts into section 2(1) of the Court Security Act 1980 certain definitions relating to three offences inserted by clause 78. Clause 76 inserts a new heading to section 4 of the Court Security Act 1980 in relation to existing offences. Clause 77 inserts new sections 4A, 4B and 4C into the Court Security Act 1980, establishing offences in relation to the recording, publication and transmission of court proceedings. Offences are to be read with the new definitions introduced to section 2 of that Act and each carry a maximum penalty of 20 penalty units. 25

 


 

New section 4A provides that a person must not intentionally record a proceeding unless-- · the recording is made by an officer, employee or agent, or any person authorised by or on behalf, of Court Services Victoria in the course of the person's engagement, employment or contract; or · subject to any direction of a judicial officer, the recording is an audio recording made by-- · a representative of a news media organisation for the purpose of preparing a media report; or · an Australian legal practitioner or other prescribed person for the purposes of the legal representation of a person in that proceeding; or · express permission has been given to record the proceeding by a judicial officer (whether in respect of a specific proceeding or class of proceedings or generally); or · the recording is required by or authorised under any other Act or subordinate instrument; or · the recording is of a prescribed class of recordings. New section 4B provides that a person must not intentionally publish a recording of a proceeding unless express written permission is given to do so by a judicial officer, whether in respect of a specific proceeding or class of proceedings or generally, or for a specific purpose, or subject to specified conditions, or in respect of a specific recording or class of recordings. Subsection (3) provides that a person who, after publishing a recording of a proceeding, becomes aware that the recording is not a recording permitted to be made under new section 4A or permitted to be published under new section 4B(1) must take all reasonable steps within that person's power to remove from publication or take down that recording. Subsection (4) provides that a person is not liable to be prosecuted for an offence against both new section 4B(1) and new section 4C(1) in respect of the same recording. 26

 


 

New section 4C provides that a person must not intentionally transmit to or give a recording of a proceeding to another person unless-- · the transmission is made by an officer, employee or agent, or any person authorised by or on behalf, of Court Services Victoria in the course of the person's engagement, employment or contract; or · subject to any direction of a judicial officer, the transmission is a transmission of an audio recording permitted under new section 4A(3) to be transmitted or given by-- · a representative of a news media organisation for the purpose of preparing a media report; or · an Australian legal practitioner or other prescribed person for the purposes of the legal representation of a person in that proceeding; or · express permission has been given to transmit or give the recording by a judicial officer (whether in respect of a specific proceeding or class of proceedings or generally); or · required by or authorised under any other Act or subordinate instrument; or · the recording is of a prescribed class of recordings. Clause 78 amends the regulation making power in section 6 of the Court Security Act 1980 to provide that the regulations may be of general or limited application, may differ according to differences in time, place or circumstances and may make different provision for different courts or tribunals or classes of courts or tribunals. Clause 79 makes a consequential amendment to the Legal Profession Uniform Law Application Act 2014 to ensure that when that Act commences the definition of Australian legal practitioner in section 2(1) of the Court Security Act 1980 is repealed. 27

 


 

PART 6--JUDICIAL REGISTRARS Division 1--Supreme Court Act 1986 Clause 80 clarifies that the Chief Justice's power to prepare guidelines relating to the appointment of judicial registrars under section 113D of the Supreme Court Act 1986 includes the power to prepare guidelines relating to the re-appointment of judicial registrars. Clause 81 amends section 113F(5) of the Supreme Court Act 1986 to provide that, when making a recommendation to the Governor in Council that a judicial registrar should be re-appointed, the Attorney-General can only recommend the re-appointment of a person if that person is nominated by the Chief Justice. The Attorney-General could determine to not make a re-appointment at all, but could not recommend the re-appointment of a person other than a person recommended by the Chief Justice. Clause 82 inserts new subsection (8) into section 113G of the Supreme Court Act 1986 to provide that section 113G does not authorise the reduction of the salary or the aggregate value of the allowances payable to a judicial registrar. As a result of the amendment, once the salary and the allowances of an individual judicial registrar are fixed under section 113G by the Governor in Council, the salary and aggregate value of the allowances of that officer cannot be subsequently reduced under section 113G. Clause 83 inserts new section 113GB into the Supreme Court Act 1986 to create a requirement for judicial registrars to take an oath or affirmation of office in the prescribed form and manner. The requirement to take an oath or affirmation of office only applies to judicial registrars who are appointed or re-appointed after the commencement of this clause. Anything done by a judicial registrar is not invalidated by that person's failure to take an oath or affirmation of office. 28

 


 

Clause 84 substitutes section 113M of the Supreme Court Act 1986 to provide that the Rules may specify the manner of appeals from or reviews of determinations of judicial registrars. If the Rules do not specify the manner of appeals from or reviews of determinations of judicial registrars, the default requirements set out in subsection (4) will apply. Division 2--County Court Act 1958 Clause 85 clarifies that the Chief Judge's power to prepare guidelines relating to the appointment of judicial registrars under section 17M of the County Court Act 1958 includes the power to prepare guidelines relating to the re-appointment of judicial registrars. Clause 86 amends section 17O(5) of the County Court Act 1958 to provide that, when making a recommendation to the Governor in Council that a judicial registrar should be re-appointed, the Attorney-General can only recommend the re-appointment of a person if that person is nominated by the Chief Judge. The Attorney-General could determine to not make a re-appointment at all, but could not recommend the re-appointment of a person other than a person recommended by the Chief Judge. Clause 87 inserts new subsection (8) into section 17P of the County Court Act 1958 to provide that section 17P does not authorise the reduction of the salary or the aggregate value of the allowances payable to a judicial registrar. As a result of the amendment, once the salary and the allowances of an individual judicial registrar are fixed under section 17P by the Governor in Council, the salary and aggregate value of the allowances of that officer cannot be subsequently reduced under section 17P. Clause 88 inserts new section 17PA into the County Court Act 1958 to create a requirement for judicial registrars to take an oath or affirmation of office in the prescribed form and manner. The requirement to take an oath or affirmation of office only applies to judicial registrars who are appointed or re-appointed after the commencement of this clause. Anything done by a judicial registrar is not invalidated by that person's failure to take an oath or affirmation of office. 29

 


 

Clause 89 substitutes section 17V of the County Court Act 1958 to provide that the Rules may specify the manner of appeals from or reviews of determinations of judicial registrars. If the Rules do not specify the manner of appeals from or reviews of determinations of judicial registrars, the default requirements set out in subsection (4) will apply. Division 3--Magistrates' Court Act 1989 Clause 90 clarifies that the Chief Magistrate's power to prepare guidelines relating to the appointment of judicial registrars under section 16B of the Magistrates' Court Act 1989 includes the power to prepare guidelines relating to the re-appointment of judicial registrars. Clause 91 amends section 16C(7) of the Magistrates' Court Act 1989 to provide that, when making a recommendation to the Governor in Council that a judicial registrar should be re-appointed, the Attorney-General can only recommend the re-appointment of a person if that person is nominated by the Chief Magistrate. The Attorney-General could determine to not make a re-appointment at all, but could not recommend the re-appointment of a person other than a person recommended by the Chief Magistrate. Clause 92 inserts new subsection (7) into section 16D of the Magistrates' Court Act 1989 to provide that section 16D does not authorise the reduction of the salary or the aggregate value of the allowances payable to a judicial registrar. As a result of the amendment, once the salary and the allowances of an individual judicial registrar are fixed under section 16D by the Governor in Council, the salary and aggregate value of the allowances of that officer cannot be subsequently reduced under section 16D. Clause 93 inserts new section 16DB into the Magistrates' Court Act 1989 to create a requirement for judicial registrars to take an oath or affirmation of office in the prescribed form and manner. The requirement to take an oath or affirmation of office only applies to judicial registrars who are appointed or re-appointed after the commencement of this clause. Anything done by a judicial registrar is not invalidated by that person's failure to take an oath or affirmation of office. 30

 


 

Clause 94 amends section 16I of the Magistrates' Court Act 1989 to create a power for the Chief Magistrate, together with 2 or more Deputy Chief Magistrates, to jointly make rules of court for or with respect to reviews of, and appeals from, the court constituted by a judicial registrar. Clause 95 substitutes section 16K of the Magistrates' Court Act 1989 to provide that the rules may specify the manner of appeals from or reviews of determinations of judicial registrars. If the rules do not specify the manner of appeals from or reviews of determinations of judicial registrars, the default requirements set out in subsection (4) will apply. Division 4--Children, Youth and Families Act 2005 Clause 96 clarifies that the President's power to prepare guidelines relating to the appointment of judicial registrars under section 542B of the Children, Youth and Families Act 2005 includes the power to prepare guidelines relating to the re-appointment of judicial registrars. Clause 97 amends section 542D(5) of the Children, Youth and Families Act 2005 to provide that, when making a recommendation to the Governor in Council that a judicial registrar should be re-appointed, the Attorney-General can only recommend the re-appointment of a person if that person is nominated by the President. The Attorney-General could determine to not make a re-appointment at all, but could not recommend the re-appointment of a person other than a person recommended by the President. Clause 98 inserts new subsection (8) into section 542E of the Children, Youth and Families Act 2005 to provide that section 542E does not authorise the reduction of the salary or the aggregate value of the allowances payable to a judicial registrar. As a result of the amendment, once the salary and the allowances of an individual judicial registrar are fixed under section 542E by the Governor in Council, the salary and aggregate value of the allowances of that officer cannot be subsequently reduced under section 542E. 31

 


 

Clause 99 inserts new section 542EA into the Children, Youth and Families Act 2005 to create a requirement for judicial registrars to take an oath or affirmation of office in the prescribed form and manner. The requirement to take an oath or affirmation of office only applies to judicial registrars who are appointed or re-appointed after the commencement of this clause. Anything done by a judicial registrar is not invalidated by that person's failure to take an oath or affirmation of office. Clause 100 substitutes section 542K of the Children, Youth and Families Act 2005 to provide that the rules of court may specify the manner of appeals from or reviews of determinations of judicial registrars. If the rules of court do not specify the manner of appeals from or reviews of determinations of judicial registrars, the default requirements set out in subsection (4) will apply. Division 5--Coroners Act 2008 Clause 101 clarifies that the State Coroner's power to prepare guidelines relating to the appointment of judicial registrars under section 102B of the Coroners Act 2008 includes the power to prepare guidelines relating to the re-appointment of judicial registrars. Clause 102 amends section 102D(5) of the Coroners Act 2008 to provide that, when making a recommendation to the Governor in Council that a judicial registrar should be re-appointed, the Attorney- General can only recommend the re-appointment of a person if that person is nominated by the State Coroner. The Attorney-General could determine to not make a re-appointment at all, but could not recommend the re-appointment of a person other than a person recommended by the State Coroner. Clause 103 inserts new subsection (8) into section 102E of the Coroners Act 2008 to provide that section 102E does not authorise the reduction of the salary or the aggregate value of the allowances payable to a judicial registrar. As a result of the amendment, once the salary and the allowances of an individual judicial registrar are fixed under section 102E by the Governor in Council, the salary and aggregate value of the allowances of that officer cannot be subsequently reduced under section 102E. 32

 


 

Clause 104 inserts new section 102EA into the Coroners Act 2008 to create a requirement for judicial registrars to take an oath or affirmation of office in the prescribed form and manner. The requirement to take an oath or affirmation of office only applies to judicial registrars who are appointed or re-appointed after the commencement of this clause. Anything done by a judicial registrar is not invalidated by that person's failure to take an oath or affirmation of office. Clause 105 substitutes section 102K of the Coroners Act 2008 to provide that the rules may specify the manner of appeals from or reviews of decisions of judicial registrars. If the rules do not specify the manner of appeals from or reviews of decisions of judicial registrars, the default requirements set out in subsection (4) will apply. Division 6--Victims of Crime Assistance Act 1996 Clause 106 inserts new paragraph (ca) into section 57(1) of the Victims of Crime Assistance Act 1996 to provide that the Chief Magistrate together with 2 or more Deputy Chief Magistrates may jointly make rules for or with respect to reviews of decisions of the Tribunal constituted by a judicial registrar. The rules may specify whether review is by way of hearing de novo or otherwise. Clause 107 amends section 59A of the Victims of Crime Assistance Act 1996. The amendment to section 59A(1) provides that a person who applies to the Tribunal for review of a final decision of the Tribunal made by a judicial registrar must do so in accordance with the rules. The amendment to section 59A(2), read with the amendment to section 57 made by clause 107, allows the rules to specify the manner of a review under section 59A of the Victims of Crime Assistance Act 1996. If the rules do not specify the manner of review for a decision of the Tribunal made by a judicial registrar, the review is to be by way of a hearing de novo conducted by the Tribunal constituted by a magistrate. This is the "default" situation which will apply in the absence of any rules to the contrary, and which may be displaced by the rules. 33

 


 

PART 7--FURTHER MISCELLANEOUS AMENDMENTS AND REPEAL Division 1--Supreme Court Act 1986 Clause 108 amends the power to make regulations in section 129 of the Supreme Court Act 1986. Subclause (1) inserts a new paragraph (da) into section 129(2) to provide that a power to make regulations providing for the imposition of fees may be exercised by providing for different fees for different classes of proceedings or different classes of party. Subclause (2) inserts a new subsection (2A) into section 129 to set out more detail about the regulation power. The provision clarifies that the regulations may be of general or limited application, differ according to differences in time, place or circumstances, provide for exemptions of different kinds, provide for the payment of a fee in advance, provide for proportionate consequences of failure to pay a fee, provide for a fee to be wholly or partially reduced, waived, postponed, remitted or refunded and for the whole or partial reinstatement of such a fee, confer an authority or duty on certain officers and leave matters or things to be decided by a court official. Subclause (3) amends section 129(3) so that the power of the Prothonotary or deputy prothonotary to waive payment of a fee is subject to the regulations or any power to reduce, waive, postpone, remit or refund a fee. Subclause (4) inserts a new section 129(4) to appropriate the Consolidated Fund to the extent necessary to enable the payment of a refund or remission of a fee provided for in the regulations. Division 2--Interpretation of Legislation Act 1984 Clause 109 inserts new subsections (13A) and (13B) into section 32 of the Interpretation of Legislation Act 1984 to allow for the prescribing of matters by reference to other documents. New section 32(13A) allows a subordinate instrument, (where it may prescribe, determine or fix any conditions of office for any person or class of persons), to specify those conditions of office by reference to the conditions of office applicable to any other 34

 


 

person or class of persons prescribed, determine or fixed from time to time by or under Commonwealth or State legislation. The Victorian Public Service Determination 2012 was determined under the Fair Work Act 2009 (Cth) and would therefore include "conditions of office" that were determined under a Commonwealth Act. New section 32(13B) provides that subsection (13A) applies whether or not the power to prescribe, determine or fix the conditions is subject to conditions, restrictions or limitations and despite any rule of law to the contrary. Division 3--Repeal of amending Act Clause 110 provides for the repeal of the Bill on 1 September 2016. The repeal of the Bill does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 35

 


 

 


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