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Justice Legislation (Miscellaneous Amendments)
Bill
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Act, which is to make miscellaneous
amendments to--
· the Appeal Costs Act 1998; and
· the Constitution Act 1975; and
· the County Court Act 1958; and
· the Courts Legislation (Judicial Conduct) Act 2005;
and
· the Crimes Act 1958; and
· the Evidence Act 1958; and
· the Public Notaries Act 2001; and
· the Serious Sex Offenders Monitoring Act 2005; and
· the Sex Offenders Registration Act 2004; and
· the Victorian Civil and Administrative Tribunal
Act 1998; and
· the Working with Children Act 2005.
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551386 BILL LA INTRODUCTION 15/11/2005
Clause 2 provides that the Bill, other than clauses 6 and 20, comes into
operation on the day after the day on which it receives the Royal
Assent. Clause 6 is deemed to have come into operation on
1 May 2005 as it seeks to overcome a problem that arose from
the repeal on 1 May 2005 of section 80A of the Constitution Act
1975. Clause 20 is deemed to have come into operation on
1 August 2005 as that is the date that the item being amended
came into operation.
PART 2--AMENDMENT OF APPEAL COSTS ACT 1998
Clause 3 amends section 17 of the Appeal Costs Act 1998 to reinstate the
requirement to prove additional costs as a consequence of a
criminal adjournment in order to enable the Appeal Costs
Board to accurately determine the costs "reasonably incurred"
(as specified in section 17(3) of the Act).
PART 3--AMENDMENT OF CONSTITUTION ACT 1975
Clause 4 amends section 77 of the Constitution Act 1975 to make a
savings provision in relation to judges of the Court who made or
did not make an election under section 80A of the Constitution
Act 1975 prior to its repeal by section 3 of the Courts
Legislation (Judicial Appointments and Other Amendments)
Act 2005.
Clause 5 amends section 82(9) of the Constitution Act 1975 to make a
savings provision in relation to judges of the Court who made an
election under section 80A of the Constitution Act 1975 prior to
its repeal by section 3 of the Courts Legislation (Judicial
Appointments and Other Amendments) Act 2005.
Clause 6 inserts a new sub-section 83(1C) in the Constitution Act 1975 to
provide that a Judge of the Supreme Court appointed prior to the
commencement of section 16 of the Judicial Remuneration
Tribunal Act 1995, who has served for not less than 10 years in
the office of Judge of the Court and has attained the age of
60 years, may retire from office prior to attaining the age of
65 years. On attaining the age of 65 years, a judge retiring in
accordance with new sub-section 83(1C) will be entitled to
the same pension provisions as a judge retiring at age 65.
This amendment seeks to redress an unintended consequence of
the repealing of section 80A of the Constitution Act 1975, and
so is backdated to the date of that repeal by section 3 of the
Courts Legislation (Judicial Appointments and Other
Amendments) Act 2005.
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Clause 7 amends section 84(5) of the Constitution Act 1975 to make a
savings provision in relation to judges of the Court who made an
election under section 80A Constitution Act 1975 prior to its
repeal by section 3 of the Courts Legislation (Judicial
Appointments and Other Amendments) Act 2005.
PART 4--AMENDMENT OF COUNTY COURT ACT 1958
Clause 8 amends section 10(9) of the County Court Act 1958 to make a
savings provision in relation to judges of the Court who made an
election under section 13A of the County Court Act 1958 prior
to its repeal by section 7 of the Courts Legislation (Judicial
Appointments and Other Amendments) Act 2005.
Clause 9 amends section 14(1) of the County Court Act 1958 to make a
savings provision in relation to judges of the Court who made an
election under section 13A of the County Court Act 1958 prior
to its repeal by section 7 of the Courts Legislation (Judicial
Appointments and Other Amendments) Act 2005 and makes
minor consequential amendments.
Clause 10 amends section 78(1) and (2) of the County Court Act 1958, to
make a savings provision in relation to judges of the Court who
made an election under section 13A of the County Court
Act 1958 prior to its repeal by section 7 of the Courts
Legislation (Judicial Appointments and Other Amendments)
Act 2005.
Clause 11 amends section 87(3) of the County Court Act 1958, to make a
savings provision in relation to judges of the Court who made an
election under section 13A of the County Court Act 1958 prior
to its repeal by section 7 of the Courts Legislation (Judicial
Appointments and Other Amendments) Act 2005.
PART 5--AMENDMENT TO COURTS LEGISLATION
(JUDICIAL CONDUCT) ACT 2005
Clause 12 makes a minor amendment to section 5(2) of the Courts
Legislation (Judicial Conduct) Act 2005 to ensure that the
proposed new section 77(4)(aa) of the Constitution Act 1975
reads "on the abolition of the office of the judge by or under an
Act".
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PART 6--AMENDMENT OF CRIMES ACT 1958
Clause 13 amends section 464ZF of the Crimes Act 1958 to provide that
applications by Victoria Police for a forensic sample procedure
may be made at a particular time after the expiry of any appeal
period or the final determination of an appeal against either
conviction or the sentence imposed, but an order made by a court
will take effect after the expiry of the appeal period, or the final
determination of an appeal, against conviction only, rather than
on the expiry of an appeal against the sentence imposed. It also
inserts new sub-sections (6A) and (6B) which provides that if
leave to appeal is sought, any order that has not been executed
must be stayed until leave to appeal is refused or the appeal is
finally determined and the conviction for the forensic sample
offence is upheld. However, if the order has been executed
before leave to appeal is granted, any sample taken may be
retained pending the outcome of the appeal, and if on appeal the
forensic sample offence is quashed, any sample taken must be
destroyed.
Clause 14 amends section 464ZFB of the Crimes Act 1958 to ensure that
applications by Victoria Police to retain a forensic sample may be
made at a particular time after the expiry of any appeal period or
the final determination of an appeal against either the conviction
or the sentence imposed, but an order made by a court to retain
the sample will take effect after the expiry of the appeal period,
or the final determination of an appeal, against conviction only,
rather than on the expiry of an appeal against the sentence
imposed.
Clause 15 inserts a new section 604 in the Crimes Act 1958 to make a
transitional provision confining the application of the provisions
amended by clauses 13 and 14 to matters where notice of appeal
or application for leave to appeal is made after the
commencement of clauses 13 and 14.
PART 7--AMENDMENT OF EVIDENCE ACT 1958
Clause 16 amends section 107A(1)(i) of the Evidence Act 1958 to refer to
the relevant Commonwealth Patents Act.
Clause 17 makes a parallel amendment to section 123C(1)(gd) of the
Evidence Act 1958 to refer to the relevant Commonwealth
Patents Act.
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PART 8--AMENDMENT OF PUBLIC NOTARIES ACT 2001
Clause 18 amends section 5(3) of the Public Notaries Act 2001 to change
2·9 fee units to 29 fee units, as the fee payable for an application
for appointment as a public notary.
PART 9--AMENDMENT OF SERIOUS SEX OFFENDERS
MONITORING ACT 2005
Clause 19 inserts a new item 37A into the Schedule to the Serious Sex
Offenders Monitoring Act 2005 to make it consistent with the
Sex Offenders Registration Act 2005. The amendment ensures
that a conviction for an offence against section 271.4 (trafficking
in children) or section 271.7 (domestic trafficking in children) of
the Criminal Code of the Commonwealth in certain
circumstances is a "relevant offence" under the Serious Sex
Offenders Monitoring Act 2005.
PART 10--AMENDMENT OF SEX OFFENDERS
REGISTRATION ACT 2004
Clause 20 amends Schedule 1 to the Sex Offenders Registration Act 2004
to correct an error whereby 2 items in Schedule 1 were
numbered 6A. The amendments change the number of the item
that commenced secondly, and which is not cross-referenced by
other items in the Schedule. The now section 6AA was
originally inserted by section 21 of the Sex Offenders
Registration (Amendment) Act 2005, and this clause is being
backdated to 1 August 2005, when section 21 came into
operation.
PART 11--AMENDMENT OF VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998
Clause 21 inserts the definition of "acting judge" into section 3 of the
Victorian Civil and Administrative Tribunal Act 1998.
Clause 22 amends section 11A of the Victorian Civil and Administrative
Tribunal Act 1998 to enable acting judges of the Supreme Court
and County Court to be appointed as short-term Vice Presidents.
The possible term of appointment for short term Vice-Presidents
has been extended from 3 months to 6 months.
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Clause 23 amends section 21 of the Victorian Civil and Administrative
Tribunal Act 1998 to add the category of acting judge and to
provide that if an ordinary or senior member of VCAT is a
magistrate, that member's office becomes vacant if he or she
ceases to hold the office of magistrate.
Clause 24 amends section 25A(b) of the Victorian Civil and
Administrative Tribunal Act 1998 to give the VCAT President
discretion to consent to former VCAT members representing a
party in a proceeding that is in the former member's List.
Clause 25 amends section 108(4) and (5) of the Victorian Civil and
Administrative Tribunal Act 1998 to provide the VCAT
President with the discretion to allow or reject a request from a
party, with or without hearing submissions, for the reconstitution
of the Tribunal under section 108(4).
Clause 26 inserts new section 162 in the Victorian Civil and
Administrative Tribunal Act 1998 to provide for a transitional
provision that the amendment by clause 27 only comes into effect
for proceedings commenced after the commencement of that
clause.
Clause 27 amends clause 66 of Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998 to provide that unless the
parties that are present at the hearing of the proceeding disagree,
a non-legal VCAT member may determine a question of law.
Parties who are not present or represented at the hearing may
challenge this determination at a later time under section 120 of
the VCAT Act.
PART 12--AMENDMENT OF WORKING WITH CHILDREN
ACT 2005
Clause 28 amends section 30 of the Working with Children Act 2005 to
ensure that all teachers who are registered with the Victorian
Institute of Teaching are exempted from a working with children
check. The Victorian Institute of Teaching Act 2001 allows for
both qualified teachers and those who may not have formal
qualifications to teach if registered or if granted permission to
teach.
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