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Queensland
MAGISTRATES AMENDMENT
BILL 2003
Queensland
MAGISTRATES AMENDMENT BILL 2003
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PART 2--AMENDMENT OF MAGISTRATES ACT 1991
2 Act amended in this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3 Amendment of s 3 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Amendment of s 5 (Appointment of Magistrates). . . . . . . . . . . . . . . . . . . . . 7
5 Replacement of s 9 (Chief Magistrate) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9 Magistrate appointed as Chief Magistrate . . . . . . . . . . . . . . . . . . . . . 8
9A District Court judge appointed as Chief Magistrate . . . . . . . . . . . . . 9
6 Amendment of s 10 (Functions of Chief Magistrate) . . . . . . . . . . . . . . . . . . 9
7 Omission of pt 4 (Reviewable determinations) . . . . . . . . . . . . . . . . . . . . . . . 10
8 Insertion of new pts 5A, 5B and 5C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
PART 5A--COURT GOVERNANCE ADVISORY COMMITTEE
12A Establishment of court governance advisory committee . . . . . . . . . . 10
12B Functions of advisory committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12C Composition of advisory committee . . . . . . . . . . . . . . . . . . . . . . . . . 10
12D Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12E Presiding at meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12F Conduct of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12G Transfer policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12H Magistrates may express interest in where they are willing to
constitute Magistrates Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
PART 5B--TRANSFER RECOMMENDATIONS AND TRANSFER
DECISIONS
Division 1--Referral
2
Magistrates Amendment Bill 2003
12I Decisions about constituting Magistrates Courts. . . . . . . . . . . . . . . . 14
Division 2--Role of advisory committee
12J Magistrate's right to be heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
12K Advisory committee to consider representations. . . . . . . . . . . . . . . . 15
12L Advisory committee to make transfer recommendation . . . . . . . . . . 15
Division 3--Role of Chief Magistrate
12M Chief Magistrate to consider transfer recommendation. . . . . . . . . . . 16
12N Chief Magistrate not bound by transfer recommendation . . . . . . . . . 16
12O Chief Magistrate to advise magistrate of transfer decision . . . . . . . . 17
Division 4--Temporary transfer decisions
12P Temporary transfer decisions about constituting Magistrates Courts 17
PART 5C--REVIEW OF TRANSFER DECISIONS
Division 1--Transfer decision not differing from transfer recommendation
12Q No review of transfer decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Division 2--Transfer decision differing from transfer recommendation
12R Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
12S Supreme Court judge may review transfer decisions. . . . . . . . . . . . . 19
12T Form of application for review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12U Filing documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12V Setting directions hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12W Service on Chief Magistrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12X Orders and directions at directions hearing . . . . . . . . . . . . . . . . . . . . 20
12Y Hearing and deciding application at directions hearing if parties
agree ............................................. 20
12Z Power of Supreme Court judge on review . . . . . . . . . . . . . . . . . . . . . 20
9 Amendment of s 13 (Functions of Magistrates generally) . . . . . . . . . . . . . . 21
10 Replacement of ss 15 to 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
15 Suspension of magistrate by Governor in Council . . . . . . . . . . . . . . 21
16 Suspension of magistrate in relation to an indictable offence . . . . . . 23
16A Remuneration during suspension and after conviction . . . . . . . . . . . 25
17 Removal of magistrate from office . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11 Amendment of s 18 (Terms and conditions of employment) . . . . . . . . . . . . 26
12 Omission of s 18A (Magistrate may request transfer determination) . . . . . . 27
3
Magistrates Amendment Bill 2003
13 Amendment of s 19 (Preservation of rights) . . . . . . . . . . . . . . . . . . . . . . . . . 27
14 Insertion of new s 22A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
22A Amendment to renumber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
15 Insertion of new pt 8, div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Division 4--Transitional provisions for Magistrates Amendment Act 2003
28 Application of Act to Chief Magistrate . . . . . . . . . . . . . . . . . . . . . . . 28
29 Existing exemptions continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
30 Act as amended applies to all transfer decisions . . . . . . . . . . . . . . . . 29
PART 3--MINOR AND CONSEQUENTIAL AMENDMENTS
16 Acts amended in schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . 30
MINOR AND CONSEQUENTIAL AMENDMENTS
FREEDOM OF INFORMATION ACT 1992 . . . . . . . . . . . . . . . . . . . . . . . . 30
JUDICIAL REVIEW ACT 1991. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
MAGISTRATES ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2003
A BILL
FOR
An Act to amend the Magistrates Act 1991, and for other purposes
s1 6 s3
Magistrates Amendment Bill 2003
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
1 Short title
Clause 3
This Act may be cited as the Magistrates Amendment Act 2003. 4
PART 2--AMENDMENT OF MAGISTRATES ACT 1991 5
2 Act amended in this part
Clause 6
This part amends the Magistrates Act 1991. 7
3 Amendment of s 3 (Definitions)
Clause 8
(1) Section 3, definitions "committee", "reviewable determination" and 9
"temporary determination"-- 10
omit. 11
(2) Section 3-- 12
insert-- 13
` "advisory committee" means the court governance advisory committee 14
established under section 12A. 15
"application for review" means an application for review of a transfer 16
decision made under section 12S. 17
"conviction" means a finding of guilt, or the acceptance of a plea of guilty, 18
by a court of an offence, whether or not a conviction is recorded on 19
sentence. 20
s4 7 s4
Magistrates Amendment Bill 2003
"indictable offence" includes an indictable offence dealt with summarily, 1
whether or not the Criminal Code, section 6591 applies to the 2
indictable offence. 3
"temporary transfer decision" means a transfer decision to which 4
section 12P applies. 5
"transfer decision" means a decision made by the Chief Magistrate in 6
relation to a transfer recommendation. 7
"transfer policy" see section 12G. 8
"transfer recommendation" means a recommendation to the Chief 9
Magistrate about-- 10
(a) which magistrate, or whether a particular magistrate, is to 11
constitute a Magistrates Court at a particular place; and 12
(b) the period the magistrate is to constitute a Magistrates Court at 13
the place.'. 14
4 Amendment of s 5 (Appointment of Magistrates)
Clause 15
(1) Section 5(3)-- 16
omit, insert-- 17
`(3) The appointment of a magistrate must state and has effect to 18
decide-- 19
(a) the place where the magistrate is first to constitute a Magistrates 20
Court appointed under the Justices Act 1886, section 22B(1)(c) 21
and the period, not longer than 1 year, the magistrate is to 22
constitute a Magistrates Court at the place; and 23
(b) the place, which may be the place mentioned in paragraph (a), 24
where the magistrate is next to constitute a Magistrates Court and 25
the period, not longer than 5 years, the magistrate is to constitute 26
a Magistrates Court at the place.'. 27
(2) Section 5(5) and (6)-- 28
omit, insert-- 29
`(5) Despite subsection (3) and before a period mentioned in the 30
subsection ends, the Chief Magistrate may, for good reason directly related 31
1 Criminal Code, section 659 (Effect of summary conviction for indictable offences)
s5 8 s5
Magistrates Amendment Bill 2003
to the magistrate, decide that the magistrate is to constitute a Magistrates 1
Court at a place other than a place mentioned in the magistrate's 2
appointment. 3
4
Examples of good reasons--
5
· the magistrate's incompatibility with the local community
6
· the magistrate's incompatibility with another magistrate at the place is detrimental
7
to the efficient functioning of the court.
`(6) The Governor in Council may appoint a District Court judge or a 8
magistrate to be the Chief Magistrate either at the time of the person's 9
appointment as a judge or magistrate or at any time afterwards.'. 10
(3) Section 5(8)-- 11
renumber as section 5(11). 12
(4) Section 5-- 13
insert-- 14
`(8) A person's appointment as a magistrate is taken to be an 15
appointment on a full-time basis unless the appointment is stated, in the 16
instrument of appointment, to be on a part-time basis. 17
`(9) A magistrate, although appointed on a full-time basis, may, if the 18
Attorney-General agrees in writing, exercise the jurisdiction, powers and 19
functions of a magistrate on a part-time basis. 20
`(10) A magistrate, although appointed on a part-time basis, may, if the 21
Attorney-General agrees in writing, exercise the jurisdiction, powers and 22
functions of a magistrate on a full-time basis.'. 23
5 Replacement of s 9 (Chief Magistrate)
Clause 24
Section 9-- 25
omit, insert-- 26
`9 Magistrate appointed as Chief Magistrate 27
`(1) This section applies if a magistrate is appointed as Chief Magistrate. 28
`(2) The Chief Magistrate holds office as Chief Magistrate while the 29
Chief Magistrate is a magistrate. 30
`(3) With the approval of the Governor in Council, the Chief Magistrate 31
may resign office as Chief Magistrate but remain a magistrate. 32
s6 9 s6
Magistrates Amendment Bill 2003
`9A District Court judge appointed as Chief Magistrate 1
`(1) This section applies if a District Court judge is appointed as Chief 2
Magistrate. 3
`(2) The Chief Magistrate is to be paid the salary, expenses and 4
allowances of, and has the title, tenure and seniority of, a District Court 5
judge. 6
`(3) Service as the Chief Magistrate counts as service as a District Court 7
judge for all purposes including, for example, the Judges (Pensions and 8
Long Leave) Act 1957. 9
`(4) The Chief Magistrate may only be removed from office as Chief 10
Magistrate in the way provided in the Constitution of Queensland 2001, 11
section 612 for the removal from office of a judge and that section applies 12
as if a reference to a judge in that section, other than in subsections (9) 13
and (10), included a reference to the Chief Magistrate. 14
`(5) However, the Chief Magistrate may not perform the duties, or 15
exercise the powers, of a District Court judge while the Chief Magistrate 16
holds office as Chief Magistrate. 17
`(6) Sections 14, 15, 16, 16A, 17 and 183 do not apply to the Chief 18
Magistrate. 19
`(7) With the approval of the Governor in Council, the Chief Magistrate 20
may resign office as Chief Magistrate and magistrate but remain a District 21
Court judge.'. 22
6 Amendment of s 10 (Functions of Chief Magistrate)
Clause 23
(1) Section 10(2)(a), `determining'-- 24
omit, insert-- 25
`deciding'. 26
(2) Section 10(4) to (11)-- 27
omit. 28
2 Constitution of Queensland 2001, section 61 (Removal from office for misbehaviour
or incapacity)
3 Sections 14 (Tenure of office), 15 (Suspension of magistrate by Governor in
Council), 16 (Suspension of magistrate in relation to an indictable offence),
16A (Remuneration during suspension and after conviction), 17 (Removal of
magistrate from office) and 18 (Terms and conditions of employment)
s7 10 s8
Magistrates Amendment Bill 2003
7 Omission of pt 4 (Reviewable determinations)
Clause 1
Part 4-- 2
omit. 3
8 Insertion of new pts 5A, 5B and 5C
Clause 4
After section 12-- 5
insert-- 6
`PART 5A--COURT GOVERNANCE ADVISORY 7
COMMITTEE 8
`12A Establishment of court governance advisory committee 9
`A court governance advisory committee ("advisory committee") is 10
established. 11
`12B Functions of advisory committee 12
`The advisory committee has the following functions-- 13
(a) to make, in conjunction with the Chief Magistrate, a transfer 14
policy for magistrates; 15
(b) to make transfer recommendations on matters referred to it by 16
the Chief Magistrate under section 12I having regard to the 17
transfer policy;4 18
(c) to consider and make recommendations about other matters 19
affecting Magistrates Courts referred to it by the Chief 20
Magistrate. 21
`12C Composition of advisory committee 22
`(1) The advisory committee has 2 permanent members and 3 temporary 23
members. 24
`(2) The permanent members are-- 25
4 Section 12I (Decisions about constituting Magistrates Courts)
s8 11 s8
Magistrates Amendment Bill 2003
(a) the Deputy Chief Magistrate, who is the chairperson of the 1
advisory committee; and 2
(b) the State Coroner. 3
`(3) The temporary members are magistrates selected by the Chief 4
Magistrate in consultation with the permanent members. 5
`(4) However, at least 1 of the temporary members must constitute a 6
Magistrates Court at a place outside the south east Queensland Magistrates 7
Courts districts. 8
`(5) Temporary members of the advisory committee hold appointment 9
for 2 years. 10
`(6) A magistrate who was a temporary member of the advisory 11
committee may not be reappointed as a temporary member for at least 12
4 years after the magistrate's last appointment as a temporary member 13
ended. 14
`(7) A temporary member of the advisory committee may resign by 15
signed notice given to the Chief Magistrate. 16
`(8) In this section-- 17
"south east Queensland Magistrates Courts districts" means the 18
Beenleigh, Brisbane, Caboolture, Cleveland, Dalby, Gold Coast, 19
Gympie, Ipswich, Kingaroy, Maroochydore, Petrie, Redcliffe, 20
Toowoomba and Warwick Magistrates Courts districts. 21
`12D Quorum 22
`A quorum for a meeting of the advisory committee is 3 members. 23
`12E Presiding at meetings 24
`(1) The Deputy Chief Magistrate presides at all meetings of the 25
advisory committee at which the deputy is present. 26
`(2) If the Deputy Chief Magistrate is absent, the member chosen by the 27
members present is to preside. 28
`12F Conduct of meetings 29
`(1) A question at an advisory committee meeting is to be decided by a 30
majority of the votes of the members present and voting. 31
s8 12 s8
Magistrates Amendment Bill 2003
`(2) Each member present at the meeting has a vote on each question to 1
be decided and, if the votes are equal, the presiding member has a casting 2
vote. 3
`(3) If a member becomes aware that the member has a conflict of 4
interest in relation to a matter before the advisory committee, the member 5
must-- 6
(a) disclose the issue giving rise to the conflict to the advisory 7
committee; and 8
(b) take no further part in the consideration of the matter. 9
`(4) However, a failure to disclose a conflict of interest does not, of itself, 10
affect the advisory committee's consideration of the matter or any transfer 11
recommendation made in relation to the matter. 12
`(5) Subject to this part, the advisory committee may conduct its 13
meetings in any way it considers appropriate, including, for example, by 14
permitting its members to take part in its meetings by using any technology 15
that reasonably allows members to hear and take part in discussions as they 16
happen. 17
18
Example of use of technology--
19
Teleconferencing.
`12G Transfer policy 20
`(1) The advisory committee, in conjunction with the Chief Magistrate, 21
must make a policy ("transfer policy") to guide decisions about which 22
magistrates are to constitute Magistrates Courts at particular places. 23
`(2) The advisory committee, in conjunction with the Chief Magistrate, 24
may amend the transfer policy to ensure its continuing effectiveness. 25
`(3) The transfer policy must set out the procedures to be used and the 26
matters to be considered for the purposes of transfer recommendations and 27
transfer decisions. 28
`(4) The transfer policy may include other matters relevant to transfer 29
recommendations or transfer decisions that the advisory committee 30
considers appropriate but the policy must reflect the following principles-- 31
(a) magistrates are expected to serve in regional areas; 32
(b) generally, a magistrate, under a transfer recommendation or 33
transfer decision, is to constitute a Magistrates Court at the place 34
for a period of between 2 and 5 years; 35
s8 13 s8
Magistrates Amendment Bill 2003
(c) generally, before making a decision about which magistrate is to 1
constitute a Magistrates Court at a particular place, expressions 2
of interest are to be called for from magistrates willing to 3
constitute a Magistrates Court at the place; 4
(d) subject to subsection (5), if no expressions of interest are 5
received, magistrates without prescribed regional experience are 6
to be considered for constituting a Magistrates Court at a place in 7
regional Queensland before magistrates with prescribed regional 8
experience; 9
(e) a magistrate is to be consulted before a decision is made about 10
where the magistrate is to constitute a Magistrates Court; 11
(f) a magistrate's personal circumstances are to be taken into 12
account before a decision is made about where the magistrate is 13
to constitute a Magistrates Court. 14
`(5) The transfer policy must also provide that regard is to be had to a 15
magistrate's transfer history. 16
`(6) In this section-- 17
"magistrate's transfer history" means the number of places at which a 18
magistrate has constituted a Magistrates Court, and the number of 19
times a magistrate has been required to change residence in order to 20
constitute Magistrates Courts at places, since the magistrate's 21
appointment as a magistrate. 22
"magistrates without prescribed regional experience" means 23
magistrates who have not constituted a Magistrates Court at a place or 24
places in regional Queensland at all or for at least 2 years within the 25
last 10 years. 26
"magistrates with prescribed regional experience" means magistrates 27
who have constituted a Magistrates Court at a place or places in 28
regional Queensland for at least 2 years within the last 10 years. 29
"regional Queensland" means that part of Queensland outside the 30
Beenleigh, Brisbane, Caboolture, Cleveland, Gold Coast, Gympie, 31
Ipswich, Maroochydore, Petrie, Redcliffe and Toowoomba 32
Magistrates Courts districts. 33
s8 14 s8
Magistrates Amendment Bill 2003
`12H Magistrates may express interest in where they are willing to 1
constitute Magistrates Courts 2
`(1) A magistrate may, at any time, advise the Chief Magistrate of a place 3
or places where the magistrate is willing to constitute a Magistrates Court. 4
`(2) The Chief Magistrate must advise the advisory committee of the 5
magistrate's willingness to constitute a Magistrates Court at the place or 6
places and the advisory committee may take that into account when 7
considering making transfer recommendations. 8
`PART 5B--TRANSFER RECOMMENDATIONS AND 9
TRANSFER DECISIONS 10
`Division 1--Referral 11
`12I Decisions about constituting Magistrates Courts 12
`(1) The Chief Magistrate must refer the following matters to the 13
advisory committee for consideration and a transfer recommendation-- 14
(a) for the purposes of section 5(5), whether a magistrate is to 15
constitute a Magistrates Court at a place other than a place 16
mentioned in the magistrate's appointment under section 5(3); 17
(b) for the purposes of section 10(2)(a), whether a magistrate is to 18
continue to constitute a Magistrates Court at the place where the 19
magistrate currently constitutes a Magistrates Court and, if not, 20
where a magistrate is to constitute a Magistrates Court. 21
`(2) The Chief Magistrate is not required to act under subsection (1)(b) 22
only because of the ending of the period for which a magistrate is required 23
to constitute a Magistrates Court at a place if the magistrate does not ask 24
for a transfer decision. 25
`(3) When the period to which subsection (2) applies ends, the 26
magistrate is to continue to constitute the court at the place until a transfer 27
decision is made requiring the magistrate to constitute a Magistrates Court 28
at another place. 29
`(4) Subsection (1) applies whether the matter is initiated by the Chief 30
Magistrate or a particular magistrate. 31
s8 15 s8
Magistrates Amendment Bill 2003
`Division 2--Role of advisory committee 1
`12J Magistrate's right to be heard 2
`(1) If the advisory committee is proposing to make a transfer 3
recommendation, the advisory committee must-- 4
(a) give the magistrate who is the subject of the proposed transfer 5
recommendation written notice-- 6
(i) that the advisory committee proposes to make the transfer 7
recommendation; and 8
(ii) of what the proposed transfer recommendation is; and 9
(b) allow the magistrate at least 14 days after receiving the notice to 10
make representations to the advisory committee about the 11
proposed transfer recommendation. 12
`(2) The magistrate may make representations to the advisory committee 13
within the time allowed by written submission or verbally. 14
`(3) If the magistrate wishes to make representations verbally, allowing 15
the magistrate to make the representations to the advisory committee using 16
teleconferencing technology is enough to satisfy the magistrate's right to 17
be heard. 18
`(4) In this section-- 19
"teleconferencing technology" means teleconferencing or other 20
technology that reasonably allows the members and the magistrate to 21
hear, and take part in discussions about, the representations while the 22
representations are being made. 23
`12K Advisory committee to consider representations 24
`The advisory committee must consider any representations made by the 25
magistrate having regard to the transfer policy. 26
`12L Advisory committee to make transfer recommendation 27
`When making a transfer recommendation, the advisory committee must 28
have regard to the transfer policy and give concise reasons for the transfer 29
recommendation to the Chief Magistrate. 30
s8 16 s8
Magistrates Amendment Bill 2003
`Division 3--Role of Chief Magistrate 1
`12M Chief Magistrate to consider transfer recommendation 2
`The Chief Magistrate must consider the advisory committee's transfer 3
recommendation and the transfer policy when making a transfer decision. 4
`12N Chief Magistrate not bound by transfer recommendation 5
`(1) The Chief Magistrate is not bound by the advisory committee's 6
transfer recommendation. 7
`(2) If, having considered the advisory committee's transfer 8
recommendation, the Chief Magistrate proposes to make a transfer 9
decision that differs from the transfer recommendation, the Chief 10
Magistrate must-- 11
(a) give the magistrate who is the subject of the proposed transfer 12
decision written notice-- 13
(i) that the Chief Magistrate proposes to make the transfer 14
decision; and 15
(ii) of what the proposed transfer decision is; and 16
(b) allow the magistrate at least 14 days after receiving the notice to 17
make representations to the Chief Magistrate about the proposed 18
transfer decision. 19
`(3) The magistrate may make representations to the Chief Magistrate 20
within the time allowed by written submission or verbally. 21
`(4) If the magistrate wishes to make representations verbally, allowing 22
the magistrate to make the representations to the Chief Magistrate using 23
teleconferencing technology is enough to satisfy the magistrate's right to 24
be heard. 25
`(5) If the Chief Magistrate makes a transfer decision that does not differ 26
from the transfer recommendation, it is not necessary that the Chief 27
Magistrate allow the magistrate who is the subject of the transfer decision 28
an opportunity to make further representations about the transfer decision 29
to satisfy procedural fairness requirements. 30
`(6) In this section-- 31
"teleconferencing technology" means teleconferencing or other 32
technology that reasonably allows the Chief Magistrate and the 33
s8 17 s8
Magistrates Amendment Bill 2003
magistrate to hear, and take part in discussions about, the 1
representations while the representations are being made. 2
`12O Chief Magistrate to advise magistrate of transfer decision 3
`(1) The Chief Magistrate must give the magistrate who is the subject of 4
a transfer decision and the advisory committee written notice of the Chief 5
Magistrate's transfer decision stating-- 6
(a) the place where the magistrate is to constitute a Magistrates 7
Court; and 8
(b) the period the magistrate is to constitute a Magistrates Court at 9
the place; and 10
(c) whether or not the transfer decision differs from the advisory 11
committee's transfer recommendation. 12
`(2) The Chief Magistrate must also give the magistrate and the advisory 13
committee concise reasons for the transfer decision. 14
`(3) The requirement to give reasons does not require the Chief 15
Magistrate to give reasons why the magistrate who is the subject of the 16
transfer decision was chosen instead of another magistrate. 17
`Division 4--Temporary transfer decisions 18
`12P Temporary transfer decisions about constituting Magistrates 19
Courts 20
`(1) This section applies if-- 21
(a) the Chief Magistrate makes a transfer decision under 22
section 10(2)(a); and 23
(b) under the decision, the magistrate who is the subject of the 24
decision is to constitute a Magistrates Court at a place for a 25
period less than 3 months. 26
s8 18 s8
Magistrates Amendment Bill 2003
`(2) The Chief Magistrate is not required to have regard to the transfer 1
policy when making the decision and sections 12I, 12O and 12S5 do not 2
apply to the decision. 3
`(3) The Chief Magistrate must give the magistrate written notice of the 4
Chief Magistrate's decision stating-- 5
(a) the place where the magistrate is to constitute a Magistrates 6
Court; and 7
(b) the period, less than 3 months, the magistrate is to constitute a 8
Magistrates Court at the place. 9
`PART 5C--REVIEW OF TRANSFER DECISIONS 10
`Division 1--Transfer decision not differing from transfer 11
recommendation 12
`12Q No review of transfer decision 13
`(1) This section applies if a transfer recommendation is made and the 14
Chief Magistrate makes a transfer decision that does not differ from the 15
transfer recommendation. 16
`(2) The transfer decision is not subject to review and no appeal lies from 17
the decision. 18
`Division 2--Transfer decision differing from transfer recommendation 19
`12R Application 20
`This division applies if a transfer recommendation is made and the 21
Chief Magistrate makes a transfer decision that differs from the transfer 22
recommendation. 23
5 Sections 12I (Decisions about constituting Magistrates Courts), 12O (Chief
Magistrate to advise magistrate of transfer decision) and 12S (Supreme Court judge
may review transfer decisions)
s8 19 s8
Magistrates Amendment Bill 2003
`12S Supreme Court judge may review transfer decisions 1
`(1) The magistrate who is the subject of the transfer decision may apply 2
to a Supreme Court judge to review the transfer decision. 3
`(2) The application for review must be made within 14 days after the 4
magistrate receives written notice of the transfer decision. 5
`(3) If an application for review is made under this section, the transfer 6
decision is stayed until the application is decided or withdrawn. 7
`12T Form of application for review 8
`The application for review must state the grounds on which the 9
application is brought. 10
`12U Filing documents 11
`(1) The application for review must be filed in the Supreme Court 12
registry at Brisbane. 13
`(2) When filing the application for review, or as soon afterwards as is 14
practicable, the applicant must file copies of the following documents-- 15
(a) a copy of the notice given to the applicant by the Chief 16
Magistrate under section 12O(1); 17
(b) a copy of the Chief Magistrate's reason given to the applicant by 18
the Chief Magistrate under section 12O(2); 19
(c) anything else the applicant intends to rely on to support the 20
application. 21
`12V Setting directions hearing 22
`When an application for review is filed, the registrar must set a time, 23
day and place for a directions hearing before a Supreme Court judge. 24
`12W Service on Chief Magistrate 25
`At least 14 days before the directions hearing, the applicant must give 26
the Chief Magistrate-- 27
(a) a copy of the application for review; and 28
s8 20 s8
Magistrates Amendment Bill 2003
(b) notice of the time, day and place of the directions hearing; and 1
(c) a copy of all documents filed under section 12U. 2
`12X Orders and directions at directions hearing 3
`At the directions hearing, a Supreme Court judge may make any orders 4
and give any directions relating to the conduct of the proceeding the judge 5
considers appropriate. 6
`12Y Hearing and deciding application at directions hearing if parties 7
agree 8
`The Supreme Court judge may hear and decide the application for 9
review at a directions hearing if the parties agree. 10
`12Z Power of Supreme Court judge on review 11
`(1) A Supreme Court judge may, by order, affirm the transfer decision 12
or declare the transfer decision to be of no effect. 13
`(2) The judge may declare the transfer decision to be of no effect only if 14
the judge is satisfied-- 15
(a) the transfer decision was so unreasonable that no person having 16
the functions of the Chief Magistrate could properly consider the 17
transfer decision to be a reasonable exercise of the Chief 18
Magistrate's discretion; or 19
(b) the applicant was not afforded procedural fairness by the Chief 20
Magistrate. 21
`(3) Each party to the review must bear the party's own costs. 22
`(4) However, the judge may award costs to the applicant if, in 23
exceptional circumstances, the judge considers that an award of costs is 24
appropriate. 25
`(5) A declaration that the transfer decision is of no effect is not, of itself, 26
exceptional circumstances for subsection (4). 27
`(6) No appeal lies from the judge's decision on the transfer decision and 28
costs.'. 29
s9 21 s 10
Magistrates Amendment Bill 2003
9 Amendment of s 13 (Functions of Magistrates generally)
Clause 1
(1) Section 13(2), after `A Magistrate'-- 2
insert-- 3
`appointed on a full-time basis'. 4
(2) Section 13(3) and (4)-- 5
omit, insert-- 6
`(3) However, a magistrate appointed on a full-time basis may hold 7
another office or perform other duties if-- 8
(a) the holding of the other office or the performance of the other 9
duties is compatible with the office of magistrate; and 10
(b) the Governor in Council approves that the magistrate hold the 11
office or perform the duties. 12
`(4) A magistrate appointed on a part-time basis may hold another office, 13
perform other duties or engage in other employment if-- 14
(a) the holding of the other office, the performance of the other 15
duties or the engagement in the other employment is compatible 16
with the office of magistrate; and 17
(b) the Governor in Council approves that the magistrate hold the 18
office, perform the duties or engage in the employment. 19
`(5) A magistrate must not practise as a barrister or solicitor for fee or 20
reward. 21
`(6) A magistrate must immediately stop holding an office, performing 22
other duties or engaging in other employment if required to do so by the 23
Governor in Council.'. 24
10 Replacement of ss 15 to 17
Clause 25
Sections 15 to 17-- 26
omit, insert-- 27
`15 Suspension of magistrate by Governor in Council 28
`(1) The Governor in Council may suspend a magistrate from office. 29
`(2) However, a magistrate must not be suspended from office under 30
subsection (1) unless a Supreme Court judge, on the application of the 31
s 10 22 s 10
Magistrates Amendment Bill 2003
Attorney-General, has decided that there are reasonable grounds for 1
believing that proper cause for removal of the magistrate exists. 2
`(3) A copy of an application under subsection (2) must be given to the 3
magistrate at least 14 days before the application is heard. 4
`(4) There is proper cause to remove a magistrate from office6 if the 5
magistrate-- 6
(a) is incompetent or guilty of serious neglect of the duties of office; 7
or 8
(b) is mentally or physically incapable of carrying out satisfactorily 9
the duties of office; or 10
(c) is guilty of proved misbehaviour, misconduct or conduct 11
unbecoming a magistrate; or 12
(d) fails, without reasonable excuse, to constitute a Magistrates 13
Court at a particular place in accordance with a transfer decision 14
as required by the Chief Magistrate. 15
`(5) A suspension under subsection (1) lapses if any of the following 16
happens-- 17
(a) the Supreme Court decides under section 17 that there is no 18
proper cause to remove the magistrate; 19
(b) the Governor in Council lifts the suspension. 20
`(6) The Minister must give the following notices to the magistrate and 21
publish them in the gazette-- 22
(a) if the magistrate is suspended under subsection (1)--notice of 23
the suspension; 24
(b) if the magistrate's suspension lapses under 25
subsection (5)--notice of the lapsing of the suspension. 26
`(7) However, a failure to comply with subsection (6)(a) does not affect 27
the suspension or the removal of the magistrate following suspension. 28
`(8) A magistrate who is suspended from office under subsection (1) 29
may appeal to the Supreme Court against the suspension. 30
`(9) The appeal may be heard with any application made under 31
section 17. 32
6 For removal of a magistrate from office, see section 17.
s 10 23 s 10
Magistrates Amendment Bill 2003
`(10) In this section-- 1
"duties", of office, includes administrative duties of office. 2
`16 Suspension of magistrate in relation to an indictable offence 3
`(1) A magistrate is suspended from office immediately on the happening 4
of any of the following whether in Queensland or in another State-- 5
(a) the magistrate is arrested by a police officer on a charge of an 6
indictable offence; 7
(b) the magistrate appears before a court or justices as required 8
under a complaint and summons issued by a police officer 9
charging the magistrate with an indictable offence; 10
(c) the magistrate is present as a defendant before a court and a 11
further charge or an amended charge of an indictable offence is 12
made against the magistrate; 13
14
Example--
15
A further charge or an amended charge of an indictable offence may be
16
made against the magistrate under the Justices Act 1886, section 42(1A).
(d) the magistrate is committed for trial or sentence by a court on a 17
charge of an indictable offence; 18
(e) an indictment is presented to a court by a person authorised to 19
present the indictment by the State, another State or the 20
Commonwealth charging the magistrate with an indictable 21
offence. 22
`(2) A magistrate's suspension from office under subsection (1) 23
continues if, on appeal from a conviction of an indictable offence, the 24
appellate court quashes the conviction but orders a new trial. 25
`(3) A suspension under subsection (1) lapses if the Governor in Council 26
lifts the suspension or either of the following happens in proceedings 27
arising from the charging of the offence-- 28
(a) the magistrate is not convicted of any indictable offence; 29
(b) no charge of an indictable offence is proceeded with. 30
`(4) A suspension under subsection (2) lapses if the Governor in Council 31
lifts the suspension or either of the following happens in proceedings 32
arising from the order for a new trial-- 33
(a) the magistrate is not convicted of any indictable offence; 34
s 10 24 s 10
Magistrates Amendment Bill 2003
(b) no charge of an indictable offence is proceeded with. 1
`(5) A suspension also lapses if the Supreme Court decides under 2
section 17 that there is no proper cause to remove the magistrate. 3
`(6) The Minister must give the following notices to the magistrate and 4
publish them in the gazette-- 5
(a) if the magistrate is suspended under subsection (1)--notice of 6
the suspension; 7
(b) if the magistrate's suspension lapses under subsection (3), (4) 8
or (5)--notice of the lapsing of the suspension. 9
`(7) However, a failure to comply with subsection (6)(a) does not affect 10
the suspension or the removal of the magistrate following suspension. 11
`(8) For this section, proceedings arise from the charging of an indictable 12
offence or from an order for a new trial if the proceedings relate to the 13
same, or the same set of, circumstances as those giving rise to the charging 14
of the indictable offence. 15
`(9) In this section-- 16
"committed", by a court, includes any form of requirement by a court 17
under which a person must appear for trial or sentence on a charge of 18
an offence. 19
"complaint and summons" includes-- 20
(a) a notice to appear under the Police Powers and Responsibilities 21
Act 2000; and 22
(b) an instrument under a law of another State or the Commonwealth 23
requiring a person to appear before any court in relation to a 24
charge of an offence alleged to have been committed by the 25
person. 26
"indictment", in relation to an indictment presented outside the State, 27
means any allegation of an offence made in a way that is the same as, 28
or substantially the same as, an indictment under a law of the State.7 29
7 For indictments under a law of the State, see the Criminal Code, section 1 and the
Acts Interpretation Act 1954, section 36.
s 10 25 s 10
Magistrates Amendment Bill 2003
`16A Remuneration during suspension and after conviction 1
`(1) A magistrate is entitled to remuneration during a period of 2
suspension under section 15(1) or section 16(1) or (2). 3
`(2) However, but subject to subsection (3), if a magistrate is convicted 4
of an indictable offence, the magistrate is not entitled to remuneration on 5
and from the day of the conviction. 6
`(3) A magistrate who is convicted of an indictable offence is entitled to 7
remuneration during the period the magistrate is subject to the conviction 8
if-- 9
(a) the magistrate's conviction is quashed on appeal and proceedings 10
for the offence are at an end; or 11
(b) the magistrate's conviction is quashed on appeal but a new trial is 12
ordered; or 13
(c) the Supreme Court decides under section 17 that there is no 14
proper cause to remove the magistrate. 15
`(4) Subsection (2) has effect despite section 18 and the Judges (Salaries 16
and Allowances) Act 1967. 17
`17 Removal of magistrate from office 18
`(1) A magistrate must not be removed from office unless the Supreme 19
Court decides that proper cause exists to remove the magistrate-- 20
(a) on an application under subsection (2) or (3); or 21
(b) under subsection (5). 22
`(2) If a magistrate is suspended from office under section 15(1), the 23
Attorney-General must, as soon as practicable, apply to the Supreme Court 24
for a decision whether proper cause exists to remove the magistrate. 25
`(3) If-- 26
(a) a magistrate is suspended from office under section 16(1) or (2); 27
and 28
(b) all proceedings arising from the charging of, or the conviction of, 29
the indictable offence, including proceedings arising from an 30
order for a new trial mentioned in section 16(2), have ended 31
without the suspension having lapsed; 32
s 11 26 s 11
Magistrates Amendment Bill 2003
the Attorney-General must, as soon as practicable after proceedings have 1
ended, apply to the Supreme Court to decide whether proper cause exists to 2
remove the magistrate. 3
4
Examples of proceedings ending--
5
1. The appeal period has ended and an appeal has not started.
6
2. If an appeal has started, the appeal has been finally decided or the appeal has been
7
abandoned.
`(4) For subsection (3), proper cause to remove the magistrate may 8
include the conviction of the magistrate of an indictable offence. 9
`(5) On appeal by a magistrate under section 15(8), the Supreme Court 10
must decide whether proper cause exists to remove the magistrate whether 11
or not the Attorney-General has made an application under subsection (2) 12
or (3). 13
`(6) If a magistrate is removed from office, the Minister must publish 14
notice of the magistrate's removal in the gazette and give a copy of the 15
notice to the magistrate. 16
`(7) For this section, proceedings arise from the charging of an indictable 17
offence or from an order for a new trial if the proceedings relate to the 18
same, or the same set of, circumstances as those giving rise to the charging 19
of the indictable offence.'. 20
11 Amendment of s 18 (Terms and conditions of employment)
Clause 21
(1) Before section 18(1A)-- 22
insert-- 23
`(1AA) However, if the magistrate is appointed on a part-time basis-- 24
(a) the magistrate's salary is the appropriate proportion of the salary 25
determined under subsection (1)(a); and 26
(b) the magistrate's entitlement to leave is the appropriate proportion 27
of the leave to which a magistrate appointed on a full-time basis 28
is entitled.'. 29
(2) Section 18(1A) and (3), `determination'-- 30
omit, insert-- 31
`decision'. 32
(3) Section 18(2), `determined'-- 33
s 12 27 s 14
Magistrates Amendment Bill 2003
omit, insert-- 1
`decided'. 2
12 Omission of s 18A (Magistrate may request transfer
Clause 3
determination) 4
Section 18A-- 5
omit. 6
13 Amendment of s 19 (Preservation of rights)
Clause 7
Section 19(3), `determining'-- 8
omit, insert-- 9
`deciding'. 10
14 Insertion of new s 22A
Clause 11
Part 7, after section 22-- 12
insert-- 13
`22A Amendment to renumber 14
`(1) The provisions of this Act are amended by numbering and 15
renumbering them in the same way as a reprint may be numbered and 16
renumbered under the Reprints Act 1992, section 43. 17
`(2) Subsection (1) applies to a provision of this Act enacted or 18
otherwise affected (a "relevant provision") by a provision of an amending 19
Act enacted but uncommenced when subsection (1) is commenced (the 20
"uncommenced provision"), with the following intent for the relevant 21
provision-- 22
(a) if the number of the relevant provision would have changed 23
under subsection (1) had the uncommenced provision 24
commenced-- 25
(i) a number is allocated to the relevant provision as if the 26
uncommenced provision had commenced; and 27
(ii) when the uncommenced provision commences, the number 28
of the relevant provision is amended by omitting it and 29
inserting the number allocated to it under subparagraph (i); 30
s 15 28 s 15
Magistrates Amendment Bill 2003
(b) if the relevant provision would have been omitted or relocated 1
had the uncommenced provision commenced, its number 2
remains the same as it was before the commencement of 3
subsection (1) until the omission or relocation takes effect. 4
`(3) Without limiting the Reprints Act 1992, section 43(4), each 5
reference in this Act, and each reference in the Judicial Review Act 1991, 6
schedule 1, part 2, item 5, to a provision of this Act renumbered under 7
subsection (1), is amended, when the renumbering happens, by omitting 8
the reference to the previous number and inserting the new number. 9
`(4) This section expires the day after the commencement into effect of 10
the last renumbering done under the section. 11
`(5) In this section-- 12
"amending Act" means an Act that amends this Act.'. 13
15 Insertion of new pt 8, div 4
Clause 14
Part 8, after section 27-- 15
insert-- 16
`Division 4--Transitional provisions for Magistrates Amendment 17
Act 2003 18
`28 Application of Act to Chief Magistrate 19
`On the commencement of this section-- 20
(a) the person holding office as Chief Magistrate at the 21
commencement continues to hold office as Chief Magistrate in 22
accordance with this Act after the commencement; and 23
(b) section 9A applies to the person. 24
`29 Existing exemptions continue 25
`(1) This section applies to a magistrate appointed before the 26
commencement of this section whose appointment excluded the operation 27
of section 13(2) as in force immediately before the commencement. 28
`(2) The exclusion continues to have effect after the commencement 29
despite the repeal of section 13(3) as in force immediately before the 30
commencement. 31
s 16 29 s 16
Magistrates Amendment Bill 2003
`30 Act as amended applies to all transfer decisions 1
`This Act, as in force after the commencement of this section, applies to 2
all transfer decisions without regard to anything, other than the places at 3
which a magistrate constituted a Magistrates Court and the length of time 4
the magistrate constituted a Magistrates Court at the place, that happened 5
before the commencement.'. 6
PART 3--MINOR AND CONSEQUENTIAL 7
AMENDMENTS 8
16 Acts amended in schedule
Clause 9
The schedule amends the Acts it mentions. 10
30
Magistrates Amendment Bill 2003
SCHEDULE 1
MINOR AND CONSEQUENTIAL AMENDMENTS 2
section 16 3
FREEDOM OF INFORMATION ACT 1992 4
1 Section 11(1)(g)-- 5
omit. 6
JUDICIAL REVIEW ACT 1991 7
1 Schedule 1, part 2, item 5, `10E and 18A(3)(b)'-- 8
omit, insert-- 9
`12L and 12P8'. 10
MAGISTRATES ACT 1991 11
1 Part 8, division 2 heading-- 12
omit. 13
14
8 Magistrates Act 1991, sections 5 (Appointment of Magistrates), 10 (Functions of
Chief Magistrate), 12L (Advisory committee to make transfer recommendation) and
12P (Temporary transfer decisions about constituting Magistrates Courts)
© State of Queensland 2003
AMENDMENTS TO BILL
1
Magistrates Amendment Bill 2003
MAGISTRATES AMENDMENT BILL 2003
AMENDMENTS AGREED TO IN COMMITTEE
1 Clause 8--
At page 11, line 20 and page 13, line 32, `Petrie,'--
omit.
2 Clause 15--
At page 28, lines 17 and 18--
omit, insert--
` `Division 4--Transitional provision for Act No. 3 of 2003
`27A Acting magistrates who are clerks of the court
`(1) This section applies in relation to a person if--
(a) immediately before the commencement of the Sexual Offences
(Protection of Children) Amendment Act 2003, section 26B, the
person was a clerk of the court who held an appointment to act as
a magistrate; and
(b) the person's appointment was not for a specified period or for a
specified matter.
`(2) It is declared that--
(a) the appointment has, and has always had, effect according to its
terms; and
(b) section 6(3) applies, and has always applied, to the person.
`Division 5--Transitional provisions for Magistrates Amendment Act
2003'.
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