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New South Wales
Courts Legislation Amendment Bill
2000
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Acts 2
4 Explanatory notes 2
Schedules
1 Amendment of Bail Act 1978 No 161 3
2 Amendment of Coroners Act 1980 No 27 4
3 Amendment of Criminal Appeal Act 1912 No 16 8
4 Amendment of Family Provision Act 1982 No 160 9
5 Amendment of Fines Act 1996 No 99 10
6 Amendment of Industrial Relations Act 1996 No 17 11
7 Amendment of Judges' Pensions Act 1953 No 41 13
8 Amendment of Jury Act 1977 No 18 21
9 Amendment of Justices Act 1902 No 27 22
10 Amendment of Land and Environment Court Act 1979
No 204 24
11 Amendment of Legal Profession Act 1987 No 109 25
12 Amendment of Local Courts (Civil Claims) Act 1970 No 11 26
13 Amendment of Supreme Court Act 1970 No 52 28
Courts Legislation Amendment Bill 2000
Contents
Page
14 Amendment of Workplace Injury Management and
Workers Compensation Act 1998 No 86 31
15 Amendment of Workers Compensation Act 1987 No 70 32
Contents page 2
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2000
New South Wales
Courts Legislation Amendment Bill
2000
Act No , 2000
An Act to amend various Acts with respect to courts, court procedures, judicial
officers and related matters; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Courts Legislation Amendment Bill 2000
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Courts Legislation Amendment Act 2000.
2 Commencement
(1) This Act commences on a day or days to be appointed by
proclamation, except as provided by this section.
(2) Schedule 1 commences on the commencement of Schedule 1 [7] to the
Criminal Procedure Legislation Amendment (Bail Agreements) Act
1998.
(3) Schedule 12 [2] commences, or is taken to have commenced, on the
commencement of Schedule 6 to the Courts Legislation Amendment
Act 1999.
3 Amendment of Acts
The Acts specified in Schedules 115 are amended as set out in those
Schedules.
4 Explanatory notes
The matter appearing under the heading "Explanatory note" in any of
the Schedules does not form part of this Act.
Page 2
Courts Legislation Amendment Bill 2000
Amendment of Bail Act 1978 No 161 Schedule 1
Schedule 1 Amendment of Bail Act 1978 No 161
(Section 3)
[1] Section 53 Definitions (as inserted by Schedule 1 [7] to the Criminal
Procedure Legislation Amendment (Bail Agreements) Act 1998)
Omit "representing the Crown" from the definition of appropriate State
authority.
[2] Section 53P Crown etc party to forfeiture proceedings (as inserted by
Schedule 1 [7] to the Criminal Procedure Legislation Amendment (Bail
Agreements) Act 1998)
Insert "and the appropriate State authority" after "Crown".
Explanatory note
Part 7A of the Bail Act 1978 provides a mechanism for the enforcement of bail
agreements entered into under section 36 of that Act. A bail agreement is an agreement
under which an accused person, or some other person, agrees to forfeit money (by the
operation of a forfeiture order) if an accused person's bail undertaking is not complied
with.
Under Part 7A, notice of an objection to the confirmation of a forfeiture order must be
given to the appropriate State authority. The term appropriate State authority is defined
for the purposes of Part 7A as "such person or body representing the Crown as is
declared by the regulations to be the appropriate State authority for the purposes of this
Part".
Item [1] provides that the term "appropriate State authority" is not restricted to a person
or body representing the Crown (eg the amendment will enable the declaration of non-
Crown bodies such as locals councils).
Item [2] provides that the appropriate State authority, in addition to the Crown, is entitled
to appear and be heard at, and is taken to be a party to, forfeiture proceedings under Part
7A.
Page 3
Courts Legislation Amendment Bill 2000
Schedule 2 Amendment of Coroners Act 1980 No 27
Schedule 2 Amendment of Coroners Act 1980 No 27
(Section 3)
[1] Section 20 Further inquest or inquiry after previous inquest or inquiry
terminated under section 19
Omit "that a prima facie case for an indictable offence has been established
against a known person" from section 20 (1) (a).
Insert instead "referred to in section 19 (1) (b)".
[2] Section 20 (1) (b)
Omit "that a prima facie case for an indictable offence has been established
against a known person".
Insert instead "referred to in section 19 (1) (b)".
Explanatory note
Items [1] and [2] are consequential on the amendment to section 19 of the Coroners Act
1980 (as made by the Crimes Legislation Further Amendment Act 1998) which recast the
circumstances in which a coroner is required to refer a matter to the Director of Public
Prosecutions so as to mirror the provisions of the Justices Act 1902.
[3] Section 33 Rules of procedure and evidence
Insert ", except in accordance with section 33AA," after "but no witness
shall".
Explanatory note
Section 33 of the Coroners Act 1980 currently provides that a witness at an inquest or
inquiry held by a coroner cannot be compelled to answer any question which incriminates
(or tends to incriminate) the witness of any offence. Item [3] provides that this restriction
does not apply if the witness is required to give self-incriminating evidence in accordance
with proposed section 33AA as inserted by item [4] of this Schedule.
[4] Section 33AA
Insert after section 33:
33AA Privilege in respect of self-incrimination
(1) This section applies if a witness at an inquest or inquiry held by
a coroner who is a Magistrate objects to giving particular
evidence on the ground that the evidence may tend to prove
that the witness has committed an offence or is liable to a civil
penalty.
Page 4
Courts Legislation Amendment Bill 2000
Amendment of Coroners Act 1980 No 27 Schedule 2
(2) The coroner is to cause the witness to be given a certificate
under this section in respect of the evidence if the objection is
overruled but, after the evidence has been given, the coroner
finds that there were reasonable grounds for the objection.
(3) If the coroner is satisfied that the evidence concerned may tend
to prove that the witness has committed an offence or is liable
to a civil penalty but that the interests of justice require the
witness to give the evidence, the coroner may require the
witness to give the evidence. If the coroner so requires, the
coroner is to cause the witness to be given a certificate under
this section in respect of the evidence.
(4) In any proceedings in a NSW court (within the meaning of the
Evidence Act 1995):
(a) evidence given by a person in respect of which a
certificate under this section has been given, and
(b) evidence of any information, document or thing
obtained as a direct or indirect consequence of the
person having given that answer,
cannot be used against the person. However, this does not
apply to a criminal proceeding in respect of the falsity of the
evidence.
(5) A certificate under this section can only be given in respect of
evidence that is required to be given by a natural person.
Explanatory note
Proposed section 33AA, which is based on section 128 of the Evidence Act 1995,
provides that a witness at an inquest or inquiry may be required by the coroner to give
incriminating evidence so long as the coroner gives a certificate to the effect that the
evidence cannot be used later against the witness in court proceedings.
[5] Section 45 Offences
Omit section 45 (3) (b). Insert instead:
(b) a witness in an inquest or inquiry objects to giving
evidence on the ground that the evidence may tend to
prove that the witness has committed an offence,
Page 5
Courts Legislation Amendment Bill 2000
Schedule 2 Amendment of Coroners Act 1980 No 27
[6] Section 45 (3)
Omit "refusal or claim of privilege". Insert instead "objection or evidence".
Explanatory note
Items [5] and [6] are consequential amendments.
[7] Schedule 1 Special provisions--inquests concerning deaths or
suspected deaths in mines
Omit the definition of inspector from clause 1. Insert instead:
investigator means an investigator within the meaning of the
Coal Mines Regulation Act 1982 or an investigator within the
meaning of the Mines Inspection Act 1901.
Manager means the Manager, Investigations Unit in the
Department of Mineral Resources.
[8] Schedule 1, clause 2 (a)
Omit the paragraph. Insert instead:
(a) If the inquest relates to an explosion or accident that is
the subject to an investigation under the Coal Mines
Regulation Act 1982 or the Mines Inspection Act 1901,
the coroner is to adjourn the inquest unless an
investigator is present to watch the proceedings.
[9] Schedule 1, clause 2 (b)
Omit "inspector for the district". Insert instead "Manager".
[10] Schedule 1, clause 2 (d)
Omit "inspector of the district". Insert instead "Manager".
[11] Schedule 1, clause 2 (d)
Omit "reach the inspector". Insert instead "reach an investigator".
[12] Schedule 1, clause 2 (e)
Omit "inspector". Insert instead "investigator".
Page 6
Courts Legislation Amendment Bill 2000
Amendment of Coroners Act 1980 No 27 Schedule 2
[13] Schedule 1, clause 2 (f)
Omit "an inspector" where firstly occurring. Insert instead "an investigator".
[14] Schedule 1, clause 2 (f)
Omit "an inspector" where secondly occurring.
Insert instead "the Manager".
Explanatory note
Schedule 1 to the Coroners Act 1980 contains special provisions for inquests into deaths
or suspected deaths in mines that are caused by an explosion or accident. Items [7][14]
update references in those provisions (as a consequence of amendments made to the
relevant Mining Acts by the Mines Legislation Amendment (Mines Safety) Act 1998) so
as to enable investigators to participate in coronial hearings in the same manner that
inspectors have previously participated.
[15] Schedule 3 Savings and transitional provisions
Insert after clause 9:
10 Courts Legislation Amendment Act 2000
(1) The amendment of section 33 by Schedule 2 [3] to the Courts
Legislation Amendment Act 2000 extends to an inquest or
inquiry that has been commenced, but not completed, before
the commencement of that amendment.
(2) Section 33AA, as inserted by Schedule 2 [4] to the Courts
Legislation Amendment Act 2000, extends to an inquest or
inquiry that has been commenced, but not completed, before
the commencement of that section.
Explanatory note
Item [15] provides that the amendments relating to the giving of self-incriminating
evidence at inquiries or inquests extend to inquiries or inquests commenced, but not
completed, before the commencement of those amendments.
Page 7
Courts Legislation Amendment Bill 2000
Schedule 3 Amendment of Criminal Appeal Act 1912 No 16
Schedule 3 Amendment of Criminal Appeal Act 1912
No 16
(Section 3)
[1] Section 5AA Appeal in criminal cases dealt with by Supreme Court in
its summary jurisdiction
Omit section 5AA (3) and (3A).
Explanatory note
Section 5AA of the Criminal Appeal Act 1912 provides for appeals to the Court of
Criminal Appeal against convictions made by the Supreme Court in its summary
jurisdiction. The section also applies in respect of convictions made by other courts such
as the Land and Environment Court. Item [1] removes the requirement that any such
appeal is to be by way of a rehearing of the original evidence.
[2] Section 5F Appeal against interlocutory judgment or order
Insert at the end of section 5F (1) (b):
, and
(c) proceedings in Class 5 of the Land and Environment
Court's jurisdiction (as referred to in section 21 of the
Land and Environment Court Act 1979).
Explanatory note
Item [2] provides for appeals to be made to the Court of Criminal Appeal against
interlocutory judgments or orders given or made by the Land and Environment Court in
relation to criminal proceedings (ie Class 5 of its jurisdiction).
[3] Schedule 1 Savings and transitional provisions
Insert after clause 5:
6 Courts Legislation Amendment Act 2000
The amendment made to section 5AA by the Courts
Legislation Amendment Act 2000 does not apply in respect of
an appeal against a conviction or costs order that was made
before the commencement of the amendment.
Explanatory note
Item [3] provides that the amendment made by item [1] of this Schedule does not have
any retrospective effect.
Page 8
Courts Legislation Amendment Bill 2000
Amendment of Family Provision Act 1982 No 160 Schedule 4
Schedule 4 Amendment of Family Provision Act 1982
No 160
(Section 3)
Section 16 Time for application for provision
Omit section 16 (3). Insert instead:
(3) The Court may not make an order under subsection (2)
allowing an application in relation to a deceased person to be
made after the end of the prescribed period unless:
(a) the parties to the proceedings concerned have consented
to the application being made after the end of that
period, or
(b) sufficient cause is shown for the application not having
been made within that period.
Explanatory note
At present, section 16 (3) of the Family Provision Act 1982 provides that a court cannot
make an order allowing a person to make an application for provision out of the estate
of a deceased person after the expiration of the prescribed limitation period unless
sufficient cause is shown for the application not having been made within that period.
The amendment will enable the court to make an order allowing an application to be
made outside of the prescribed limitation period on the basis that the parties to the
proceedings have consented to the application being made.
Page 9
Courts Legislation Amendment Bill 2000
Schedule 5 Amendment of Fines Act 1996 No 99
Schedule 5 Amendment of Fines Act 1996 No 99
(Section 3)
[1] Section 122 Payment of share of fine to prosecutor
Insert after section 122 (2):
(3) For the purposes of this section, fine does not include an
amount of the kind referred to in section 4 (1) (e) or (f).
Explanatory note
Section 122 of the Fines Act 1996 provides that if another Act does not make provision
for the application of a fine, the court may direct that up to half of the amount of the fine
is to be paid to the prosecutor (if the prosecutor is not a police officer). Item [1], which
is consequential on item [2] of this Schedule, provides that certain amounts are not "fines"
for the purposes of section 122, namely witnesses' expenses and professional costs
awarded in proceedings for offences brought by law enforcement officers, as these
amounts will be able to be paid in full to law enforcement officers under proposed section
122A.
[2] Section 122A
Insert after section 122:
122A Payment of law enforcement officers' costs and expenses
(1) This section applies in respect of proceedings for an offence
that are brought by a law enforcement officer.
(2) The court before which such proceedings are brought may,
when making an order of the kind referred to in section 4 (1)
(e) or (f), direct the amount to which the order relates be paid
to the law enforcement officer (or to the law enforcement
agency on whose behalf the proceedings were brought) in full
or in such portion as may be determined by the court.
(3) This section has effect despite section 121.
Explanatory note
Section 121 of the Fines Act 1996 provides that any fine imposed by or under any Act
is, when recovered, payable into the Consolidated Fund. The term fine is defined in
section 4 of the Act to include any witnesses' expenses, and any professional costs,
payable under an order made a court in proceedings brought by a law enforcement
officer.
Item [2] provides that when the court makes an order for the payment of such expenses
or costs, the court may order that the amount is to be paid to or on behalf of the law
enforcement officer who brought the proceedings.
Page 10
Courts Legislation Amendment Bill 2000
Amendment of Industrial Relations Act 1996 No 17 Schedule 6
Schedule 6 Amendment of Industrial Relations Act
1996 No 17
(Section 3)
Section 162A
Insert after section 162:
162A Transfer of certain proceedings to Industrial Magistrates
(1) This section applies to the following proceedings:
(a) proceedings for a civil penalty under Part 1 of Chapter
7,
(b) proceedings for the recovery of money under Part 2 of
Chapter 7.
(2) If any proceedings to which this section applies have been
instituted in or before the Commission in Court Session, but the
hearing of the matter has not been commenced, the President
of the Commission, or a judicial member of the Commission
authorised by the President for the purposes of this section,
may order the transfer of the proceedings to a Local Court to be
dealt with by that court.
(3) The President or judicial member is not to make an order under
this section unless:
(a) the President or judicial member is satisfied that the
proceedings concerned should have been instituted in a
Local Court because of the nature of the proceedings,
and
(b) the Local Court has jurisdiction to deal with the
proceedings.
(4) Any proceedings to which this section applies that are
transferred to a Local Court under this section are to continue
before the Local Court as if they had been instituted there.
Page 11
Courts Legislation Amendment Bill 2000
Schedule 6 Amendment of Industrial Relations Act 1996 No 17
(5) In this section:
Local Court means a Local Court constituted by an Industrial
Magistrate sitting alone.
Explanatory note
The amendment provides for the transfer of certain proceedings that have been instituted
in or before the Industrial Relations Commission in Court Session so that they can be
dealt with by Industrial Magistrates.
Page 12
Courts Legislation Amendment Bill 2000
Amendment of Judges' Pensions Act 1953 No 41 Schedule 7
Schedule 7 Amendment of Judges' Pensions Act 1953
No 41
(Section 3)
[1] Part 1, heading
Insert "Part 1 Preliminary" before section 1.
[2] Section 2 Definitions
Insert in alphabetical order in section 2 (1):
Acting judge means:
(a) an Acting Judge of the Supreme Court of New South
Wales, or
(b) an acting member of the Industrial Relations
Commission of New South Wales, or
(c) an Acting Judge of the Industrial Court, or
(d) an acting judicial member of the Industrial Relations
Commission of New South Wales, or
(e) an acting Judge of the Land and Environment Court
(under the Land and Environment Court Act 1979), or
(f) an Acting Judge of a District Court (under the District
Court Act 1973), or
(g) an acting Judge of the Compensation Court (under the
Compensation Court Act 1984).
[3] Part 2, heading
Insert "Part 2 Pensions" before section 3.
Page 13
Courts Legislation Amendment Bill 2000
Schedule 7 Amendment of Judges' Pensions Act 1953 No 41
[4] Section 10A
Insert after section 10:
10A Reduction in pensions where lump sum benefit paid
(1) Despite any other provision of this Act, if a pension is payable
under this Act to or in respect of a judge or former judge who
has previously been paid a lump sum benefit:
(a) under this Act, or
(b) under an Act of another State, a Territory or the
Commonwealth in respect of any prior judicial service,
the amount of any pension payable from time to time under this
Act is to be reduced having regard to the value of the lump
sum benefit paid.
(2) If a pension is reduced under this section, any subsequent
reversionary pension payable from time to time under this Act
is to be reduced.
(3) The amount of the reduced pension or reversionary pension is
to be determined by the Attorney-General in accordance with
actuarial advice.
(4) In this section:
prior judicial service has the same meaning as it has in
section 8.
reversionary pension means a pension paid under this Act to
a person as a result of a pension being previously paid to
another person under this Act (for example, a pension paid to
a widow or widower of a judge).
Page 14
Courts Legislation Amendment Bill 2000
Amendment of Judges' Pensions Act 1953 No 41 Schedule 7
[5] Part 3
Insert at the end of the Act:
Part 3 Lump sum benefits
13 Calculation of lump sum benefits
(1) The lump sum benefit payable under this Act to or in respect of
a judge or acting judge qualified under section 15 is an amount
calculated as follows:
B = 0.09 × F × Y
where:
B represents the amount to be ascertained
F represents the final salary of the judge or acting judge
Y represents the years of service calculated on a daily
basis, commencing on or after the appointed day.
(2) In this section:
attributed salary of a judge or acting judge at any time means:
(a) if the judge or acting judge is employed on a full-time
basis--the salary of the judge or acting judge at that
time, or
(b) if the judge or acting judge is employed on a part-time
basis--the salary that would be payable to the judge or
acting judge at that time if employed on a full-time
basis.
final salary of a judge or acting judge means the rate of
attributed salary paid or payable to the judge or acting judge on
the exit date of the judge or acting judge.
Page 15
Courts Legislation Amendment Bill 2000
Schedule 7 Amendment of Judges' Pensions Act 1953 No 41
14 When lump sum benefit is payable
(1) A lump sum benefit calculated in accordance with section 13
is payable to or in respect of a judge or acting judge qualified
under section 15:
(a) if the judge or acting judge dies, or
(b) if the judge or acting judge ceases to be employed as a
judge or acting judge in the circumstances in which a
benefit is payable for the purposes of complying with a
relevant Commonwealth superannuation standard, or
(c) in any other circumstances in which a benefit is payable
to comply with any such standard or may be paid in
respect of a member of a regulated superannuation fund
under any such standard,
and is so payable in accordance with subsections (4) and (5).
(2) If the whole or part of a lump sum benefit payable to a former
judge or former acting judge would be required to be preserved
if a relevant Commonwealth superannuation standard applied
to the benefit, that amount must, on the election of the former
judge or former acting judge, be paid to:
(a) a regulated superannuation fund, or
(b) an approved deposit fund, or
(c) an RSA institution.
(3) If the former judge or former acting judge does not make an
election referred to in subsection (2), the amount is to be paid
on behalf of the former judge or former acting judge to a
regulated superannuation fund or approved deposit fund
approved by the Attorney General.
(4) The lump sum benefit in respect of a former judge or former
acting judge is payable:
(a) unless the former judge or former acting judge has
died--to the former judge or former acting judge, or
(b) if the former judge or former acting judge has died and
is survived by a widow or widower--to the widow or
widower, or
Page 16
Courts Legislation Amendment Bill 2000
Amendment of Judges' Pensions Act 1953 No 41 Schedule 7
(c) if the former judge or former acting judge has died and
is not survived by a widow or widower--to the legal
personal representatives of the former judge or former
acting judge for payment in respect of any eligible
children of the former judge or former acting judge, or
(d) if the former judge or former acting judge has died and
is not survived by a widow or widower or any eligible
children--to the legal personal representatives of the
former judge or former acting judge.
(5) A lump sum payable under this section is charged on and
payable out of the Consolidated Fund.
(6) For the purposes of this section, an acting judge whose term of
appointment as an acting judge ends, and who is appointed for
a further consecutive term as an acting judge, is taken not to
have ceased to be employed as an acting judge.
(7) In this section:
approved deposit fund has the same meaning as it has in the
Superannuation Industry (Supervision) Act 1993 of the
Commonwealth.
regulated superannuation fund has the same meaning as it has
in the Superannuation Industry (Supervision) Act 1993 of the
Commonwealth.
relevant Commonwealth superannuation standard means a
standard that would be applicable if a benefit were payable
from a regulated superannuation fund.
RSA institution has the same meaning as it has in the
Retirement Savings Accounts Act 1997 of the Commonwealth.
15 Judges and acting judges who are qualified for lump sum
benefits
(1) A judge or acting judge is qualified for payment of a lump sum
benefit payable under this Act if the judge or acting judge is not
a person referred to in subsection (2).
Page 17
Courts Legislation Amendment Bill 2000
Schedule 7 Amendment of Judges' Pensions Act 1953 No 41
(2) A lump sum benefit is not payable to or in respect of the
following persons:
(a) a judge who is entitled to payment of a pension under
this Act on ceasing to be a judge or in respect of whom
such a pension is payable if the judge dies,
(b) an acting judge who ceases to be an acting judge
because of appointment as a judge.
[6] Part 4, heading
Insert "Part 4 Miscellaneous" after new section 15 as inserted by item [5]
of this Schedule.
[7] Sections 16 and 17A
Renumber existing sections 11 and 11A as sections 16 and 17, respectively.
[8] Section 18
Renumber section 12B (as inserted by Schedule 1 [3] to the Judges'
Pensions Amendment Act 1998) as section 18.
[9] Section 19
Insert after section 18 (as renumbered by item [8] of this Schedule):
19 Savings and transitional provisions
Schedule 1 has effect.
[10] Schedule 1
Insert after new section 19 (as inserted by item [9] of this Schedule):
Schedule 1 Savings and transitional provisions
(Section 19)
1 Regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the
following Acts:
Courts Legislation Amendment Act 2000
Page 18
Courts Legislation Amendment Bill 2000
Amendment of Judges' Pensions Act 1953 No 41 Schedule 7
(2) Any such provision may, if the regulations so provide, take
effect from the date of assent to the Act concerned or a later
date.
(3) To the extent to which any such provision takes effect from a
date that is earlier than the date of its publication in the Gazette,
the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other
than the State or an authority of the State), the rights of
that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the date of its publication.
2 Past service to be taken into account
For the purposes of calculating a lump sum benefit payable
under this Act to a judge or acting judge, any period of service
as a judge or acting judge on or after 1 July 1992 is to be taken
into account, whether or not the period of service was
continuous.
Explanatory note
The amendments to the Judges' Pensions Act 1953 provide for a lump sum
superannuation benefit for judges and acting judges who are not eligible for a pension
under that Act. The Act does not currently provide any benefits to acting judges for work
as acting judges and only provides a pension to judges who complete a period of 5 years
judicial service, if they retire at the statutory retirement age, or 10 years judicial service,
if they retire after the age of 60 and before the statutory retirement age.
Item [5] inserts proposed Part 3 (Lump sum benefits), containing proposed sections
1315.
Proposed section 13 sets out the amount of the lump sum benefit. It is to be 9% of the
final salary of the judge or acting judge multiplied by the years of service of the judge or
acting judge calculated on a daily basis.
Proposed section 14 sets out the circumstances in which the lump sum benefit is payable
to or in respect of a judge or acting judge, including on death and in circumstances in
which a benefit would be payable under Commonwealth legislation applicable to
superannuation funds. In circumstances in which a benefit would be required to be
preserved under Commonwealth legislation applicable to superannuation funds, the
amount of the benefit must be paid to a regulated superannuation fund or an approved
deposit fund or to a retirement savings account elected by the judge or acting judge.
Provision is made for payment to a regulated superannuation fund or approved deposit
fund approved by the Attorney General if no election is made. The proposed section also
sets out the persons to whom the lump sum benefit is payable. The benefit is to be
charged on and is payable from the Consolidated Fund.
Proposed section 15 provides that a judge or acting judge is qualified for payment of a
lump sum benefit unless he or she is entitled to a pension under the Act or, if an acting
judge, is appointed as a judge.
Page 19
Courts Legislation Amendment Bill 2000
Schedule 7 Amendment of Judges' Pensions Act 1953 No 41
Item [2] inserts a definition of "acting judge".
Item [4] requires a pension payable to a judge to be reduced if the judge has previously
been paid a lump sum benefit under the Act, or in respect of any prior judicial service in
another jurisdiction that is counted as service for the purposes of paying a pension under
the Act.
Items [9] and [10] enable savings and transitional regulations to be made as a
consequence of the amendments and enable service as a judge or acting judge on or
after 1 July 1992 to be taken into account for the purposes of determining the amount of
a lump sum benefit payable to the judge or acting judge.
Items [1], [3] and [6][8] insert Part headings and renumber provisions for the purpose
of dividing the Act (as amended by this Act and the Judges' Pensions Amendment Act
1998) into 4 Parts.
Page 20
Courts Legislation Amendment Bill 2000
Amendment of Jury Act 1977 No 18 Schedule 8
Schedule 8 Amendment of Jury Act 1977 No 18
(Section 3)
Section 57 Majority verdicts in civil proceedings
Insert at the end of the section:
(2) A reference in this section to a verdict includes a reference to
an answer to any specific question put to the jury by the court.
Explanatory note
At present, section 57 of the Jury Act 1977 provides for a majority verdict in civil
proceedings if the jury in unable to agree on its verdict after more than 4 hours of
deliberation. The amendment will enable a majority answer to be given on any question
put to the jury by the court in civil proceedings in cases where the jury is unable to agree
on the answer.
Page 21
Courts Legislation Amendment Bill 2000
Schedule 9 Amendment of Justices Act 1902 No 27
Schedule 9 Amendment of Justices Act 1902 No 27
(Section 3)
[1] Section 81 Payment of costs
Omit section 81 (1). Insert instead:
(1) When convicting or making an order against a defendant, the
Justice or Justices may order:
(a) that the defendant pay to the prosecutor or complainant
such professional costs as the Justice or Justices
consider to be just and reasonable, and
(b) that the defendant:
(i) if the prosecutor or complainant has paid court
costs--pay those costs to the Clerk of the Local
Court for payment to the prosecutor or
complainant, or
(ii) in any other case--pay court costs to the Clerk
of the Local Court.
(1A) When making an order dismissing the information, complaint
or charge against a defendant, the Justice or Justices may order
that the prosecutor or complainant pay to the defendant such
professional costs as the Justice or Justices consider to be just
and reasonable.
(1B) The amount that may be awarded under subsection (1) (b) for
court costs is:
(a) the amount specified in item 1 of Schedule 1 to the
Justices (General) Regulation 1993, or
(b) such other amount as the Justice or Justices consider to
be just and reasonable in the circumstances of the case.
[2] Section 81 (4)
Omit "Costs". Insert instead "Professional costs".
[3] Section 81 (4) (d) and (5)
Insert "professional" before "costs" wherever occurring.
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Courts Legislation Amendment Bill 2000
Amendment of Justices Act 1902 No 27 Schedule 9
[4] Section 81 (7)
Insert after section 81 (6):
(7) In this section:
professional costs means costs (other than court costs) relating
to professional expenses and disbursements (including
witnesses' expenses) in respect of proceedings before a Justice
or Justices.
Explanatory note
The amendments to section 81 of the Justices Act 1901 clarify the manner and extent to
which a Magistrate may order a defendant to pay costs when convicting or making an
order against the defendant. Such costs may comprise the prosecution's "professional
costs", and also "court costs". The amount that may be awarded as professional costs
is such amount as the Magistrate considers to be just and reasonable, and the amount
that may be awarded as court costs is the appropriate fee prescribed by the regulations
(or such other amount as the Magistrate considers to be just and reasonable).
The amendments also make it clear that, if a Magistrate makes an order dismissing the
information or complaint against a defendant, the Magistrate may order the prosecution
or complainant to pay the defendant's "professional costs".
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Courts Legislation Amendment Bill 2000
Schedule 10 Amendment of Land and Environment Court Act 1979 No 204
Schedule 10 Amendment of Land and Environment
Court Act 1979 No 204
(Section 3)
[1] Section 57 Class 1, 2 and 3 proceedings--appeals
Insert "or decision" after "question of law" in section 57 (3) (a).
[2] Section 57 (3) (c)
Omit the paragraph. Insert instead:
(c) except by leave of the Supreme Court, in respect of a
question of law that has been determined by a Judge
under section 36, or in respect of any subsequent
decision of a Commissioner made after such a
determination where that determination is the subject of
an appeal to the Supreme Court.
Explanatory note
Section 57 of the Land and Environment Court Act 1979 presently allows a party to
certain proceedings in the Land and Environment Court ("the Court") to appeal to the
Supreme Court against an order or decision of the Court on a question of law. Such an
appeal does not, however, lie to the Supreme Court against an order or decision of a
Commissioner of the Court (unless it is an appeal in respect of a question of law that has
been referred to and determined by a Judge of the Court under section 36 of the Act).
The amendments provide for an appeal to the Supreme Court on a question of law
arising from a decision of a Commissioner in circumstances where the Commissioner's
decision is based on a determination that is subject to an appeal to the Supreme Court.
Page 24
Courts Legislation Amendment Bill 2000
Amendment of Legal Profession Act 1987 No 109 Schedule 11
Schedule 11 Amendment of Legal Profession Act 1987
No 109
(Section 3)
[1] Section 208E Interest on amount outstanding
Insert after section 208E (3):
(4) This section does not apply to or in respect of the assessment
of costs referred to in Subdivision 3 (party/party costs).
[2] Section 208J Certificate as to determination
Insert ", and the rate of any interest payable in respect of that amount of
costs is the rate of interest in the court in which the certificate is filed" after
"unpaid costs" in section 208J (3).
Explanatory note
Item [2] provides that if an unspecified amount of costs is assessed in accordance with
the cost assessment scheme under the Legal Profession Act 1987, the rate of any
interest payable on those costs is the rate payable in the court in which the relevant
certificate is filed under that scheme.
[3] Section 208J (4A)
Insert after section 208J (4):
(4A) To avoid any doubt, this section applies to or in respect of both
the assessment of costs referred to in Subdivision 2 of this
Division (practitioner/client costs) and the assessment of costs
referred to in Subdivision 3 of this Division (party/party costs).
Explanatory note
Items [1] and [3] merely clarify the operation of the costs assessment scheme under
Division 6 of Part 11 of the Legal Profession Act 1987.
Page 25
Courts Legislation Amendment Bill 2000
Schedule 12 Amendment of Local Courts (Civil Claims) Act 1970 No 11
Schedule 12 Amendment of Local Courts (Civil Claims)
Act 1970 No 11
(Section 3)
[1] Section 34 Costs to be in discretion of court
Omit section 34 (2). Insert instead:
(2) If, in accordance with subsection (1A), the rules provide for a
court sitting in its Small Claims Division to award costs, the
amount of any such costs is to be determined in accordance
with the rules. This subsection prevails to the extent of any
inconsistency with section 84 (4), or with the provisions of the
Legal Profession Act 1987 (in particular section 196 of that
Act) and the regulations under that Act.
Explanatory note
Item [1] makes it clear that party/party costs in relation to civil actions in the Local Court's
Small Claims Division may be determined in accordance with the rules under the Local
Courts (Civil Claims) Act 1970.
[2] Schedule 2 Savings and transitional provisions
Insert after Part 5:
Part 6 Provision consequent on enactment of Courts
Legislation Amendment Act 1999
1 Increase in jurisdiction of Small Claims Division
The amendments made to section 12 of this Act by the Courts
Legislation Amendment Act 1999 do not apply in respect of
proceedings commenced before those amendments.
Explanatory note
Item [2] makes it clear that the increase (from $3,000 to $10,000) in the jurisdiction of the
Small Claims Division of the Local Court (as made by the Courts Legislation Amendment
Act 1999) does not apply in relation to proceedings commenced before the relevant
amendment.
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Courts Legislation Amendment Bill 2000
Amendment of Local Courts (Civil Claims) Act 1970 No 11 Schedule 12
[3] Schedule 2
Insert in Schedule 2 with the appropriate Part number:
Part Provision consequent on enactment of Courts
Legislation Amendment Act 2000
1 Validation of rules
Any rule made (or purporting to be made) under section 34 (2)
before the commencement of Schedule 12 [1] to the Courts
Legislation Amendment Act 2000 that could have been made
under section 34 (2) (as amended by that Schedule) is taken to
be made under that subsection as so amended.
Explanatory note
Item [3] validates certain rules as a consequence of the amendment to section 34 of the
Act.
Page 27
Courts Legislation Amendment Bill 2000
Schedule 13 Amendment of Supreme Court Act 1970 No 52
Schedule 13 Amendment of Supreme Court Act 1970
No 52
(Section 3)
[1] Section 46A Certain appeals may be heard by 2 Judges of Appeal
Insert "(other than an order for the payment of costs)" after "tribunal" in
section 46A (1) (d) (ii).
Explanatory note
Item [1] provides that 2 Judges of the Court of Appeal may determine an appeal from a
court or tribunal (other than the Supreme Court) where the appeal is against an order for
the payment of costs only.
[2] Section 101A Question of law concerning criminal contempt may be
submitted to Court of Appeal
Omit "Proceedings" from section 101A (7).
Insert instead "Unless the Court orders otherwise (whether on the
application of a party to the proceedings or of its own accord), proceedings".
[3] Section 101A (8) (b)
Insert "unless the contemnor has, during the proceedings, consented to his
or her name or identity being disclosed" after "contemnor".
Explanatory note
Items [2] and [3] remove the requirement that criminal contempt proceedings in the Court
of Criminal Appeal must be held in camera.
[4] Section 109
Insert after section 108:
109 Effect of minor variations to judgments, orders or injunctions
appealed against
If:
(a) a Judge of Appeal or the Court of Appeal dismisses an
appeal against a judgment, order or injunction, and
(b) at that time, the Judge or Court makes a judgment or
order that involves the variation of the judgment, order
or injunction the subject of the appeal, and
Page 28
Courts Legislation Amendment Bill 2000
Amendment of Supreme Court Act 1970 No 52 Schedule 13
(c) the Judge or Court declares the variation to be a minor
variation,
the varied judgment, order or injunction is, for all purposes,
taken to be a judgment, order or injunction of the court,
tribunal or Division that made the original judgment, order or
injunction the subject of the appeal.
Explanatory note
Item [4] enables a Judge of Appeal or the Court of Appeal, in dismissing an appeal
against a judgment, order or injunction, to make a minor variation of the matter that is the
subject of the appeal without affecting its status as a judgment, order or injunction of the
court that made it.
[5] Fourth Schedule Savings and transitional provisions
Insert at the end of clause 1 (2):
Courts Legislation Amendment Act 2000, but only in relation
to the amendments made to this Act
[6] Fourth Schedule, Part 10
Insert after clause 14:
Part 10 Provisions consequent on enactment of
Courts Legislation Amendment Act 2000
15 Definition
In this Part, amending Act means the Courts Legislation
Amendment Act 2000.
16 Application of amendment relating to appeals
Section 46A, as amended by the amending Act, extends to an
appeal against an order made before the commencement of the
amendment to that section.
Page 29
Courts Legislation Amendment Bill 2000
Schedule 13 Amendment of Supreme Court Act 1970 No 52
17 Application of amendment relating to contempt proceedings
Section 101A, as amended by the amending Act, extends to
proceedings that were commenced before the commencement
of the amendment.
Explanatory note
Items [5] and [6] make savings and transitional provisions.
Page 30
Courts Legislation Amendment Bill 2000
Amendment of Workplace Injury Management and Workers Schedule 14
Compensation Act 1998 No 86
Schedule 14 Amendment of Workplace Injury
Management and Workers Compensation
Act 1998 No 86
(Section 3)
[1] Section 96 Maximum period of weekly payments of compensation
under direction of conciliator
Omit "constituted by a commissioner" from section 96 (2).
[2] Section 97 Revocation of directions of conciliator
Omit "constituted by a commissioner" from section 97 (2).
Explanatory note
The amendments provide that the Compensation Court may revoke a direction given by
a conciliation officer in relation to weekly payments of compensation. At present, such a
direction may only be revoked by the Compensation Court constituted by a
commissioner.
Page 31
Courts Legislation Amendment Bill 2000
Schedule 15 Amendment of Workers Compensation Act 1987 No 70
Schedule 15 Amendment of Workers Compensation Act
1987 No 70
(Section 3)
Section 85A
Insert after section 85:
85A Payment of benefits to beneficiaries
(1) Despite section 85, the Compensation Court may authorise the
payment of compensation referred to in section 85 (1):
(a) to the person who is entitled to the compensation, or
(b) to such other person, for the benefit of the person
entitled to the compensation, as the Court thinks fit.
(2) Any such payment is to be made in the manner authorised by
the Compensation Court.
Explanatory note
The amendment enables the Compensation Court to authorise payments of
compensation to a beneficiary (or to another person on behalf of the beneficiary) rather
than to the Public Trustee for the benefit of the beneficiary.
Page 32
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