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1
Justice Legislation (Miscellaneous Provisions)
JUSTICE LEGISLATION
(MISCELLANEOUS PROVISIONS) BILL
(No. 2) 1999
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The purpose of the Bill is to amend various items of legislation
administered by the Department of Justice and Attorney-General. Some of
the more important Acts amended include the Criminal Code, Bail Act
1980, District Court Act 1967, Penalties and Sentences Act 1992, Supreme
Court of Queensland Act 1991 and the Stipendiary Magistrates Act 1991.
Reasons for the objectives and how they will be achieved
The Department of Justice and Attorney-General is responsible for the
administration of a large number of statutes. From time to time, particular
departmental statutes require amendment to ensure that the statutes continue
to operate in the manner intended.
This departmental miscellaneous provisions Bill has been prepared so
that necessary amendment can be effected by means of one statute. This
ensures that much needed statutory reform is not delayed and the time of the
Parliament is not unnecessarily expended on dealing with a number of
disparate pieces of legislation.
The main objectives of the Bill are:
· to amend the Criminal Code to clarify the jurisdiction of
Magistrates Court to hear and determine a charge under s.339(1)
(assault occasioning bodily harm)
· to amend the District Courts Act 1967 to remove jurisdiction
from the Supreme Court to the District Court to deal with riot
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Justice Legislation (Miscellaneous Provisions)
related offences for which the maximum penalty is life
imprisonment and other offences relating to
- Carrying or sending dangerous goods in a vehicle (s.317A);
- Obstructing rescue or escape from unsafe premises (s.318);
- Intentionally endangering safety or persons travelling by
railway (s.319);
- Endangering safety of persons travelling by aircraft (319A).
· to amend the penalty for the offence of abduction of a child under
16 in section 363A of the Criminal Code from 2 to 7 years
· to amend s 364 (Cruelty to children under 16) of the Criminal
Code by raising the penalty imposed under this section from 5
years to 7 years
· to amend the Criminal Code to implement the recommendations
of the Members Ethics and Parliamentary Privileges Committee
Report No. 28 titled, "Report on a matter of privilege-Matter
referred to the committee on 21 April 1998" dated 25 March
1999. The amendments to s.56A (Disturbance in House when
Parliament not sitting) and 56B (Going armed to Parliament
House) rectify anomalies between the penalty provisions of
sections 56 (Disturbing the Legislature), 56A and 56B
· to make minor amendments to the Bail Act 1980
· to amend the Criminal Code to enable higher courts to remit back
to a Magistrates Court, summary matters transferred to the higher
court where the higher court has already dealt with the matter
before it on indictment
· to amend the District Court Act 1967, Supreme Court of
Queensland Act 1991 and the Stipendiary Magistrates Act 1991 to
provide protection and immunity to judges and magistrates in the
performance or exercise of an administrative function or power
conferred upon them under an Act.
· to amend the Supreme Court of Queensland Act 1991, District
Court Act 1967 and Magistrates Courts Act 1921 to facilitate the
Uniform Civil Procedure Rules which will commence on 1 July
1999
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Justice Legislation (Miscellaneous Provisions)
· to amend section 13A of the Penalties and Sentences Act 1992 to
clarify how and when a person's undertaking of cooperation
under section 13A is to be tendered to the Judge and to provide
the court with a power to restrict publication of the fact that a
sentence is being reduced under this section.
These are practical amendments that will, among other things, clarify the
position on some ambiguous provisions, justifiably increase the penalties
for some criminal offences, and transfer jurisdiction to deal with some
offences to the District Court. The jurisdictional change will allow a less
expensive means of disposing of those matters, at the same time reducing
the burden on the Supreme Court to enable it to deal with the more
important criminal cases. The result will be to achieve greater efficiency and
effectiveness in our courts in the disposition of certain criminal matters.
Administrative cost to Government of implementation
There are no increases in administrative costs. Indeed, the amendments
may reduce the cost of conducting legal proceedings associated with the
amendments.
Fundamental legislative principles
The proposed amendment to section 13A of the Penalties and Sentences
Act will curtail the liberty of the press to publish details of access to section
13A. In this sense, it could be said that the amendment affects "rights".
However, in giving "sufficient regard" to fundamental legislative principles,
it is sometimes necessary to balance conflicting rights. The right of the press
to publish such details must be balanced with the right of a person to
cooperate with law enforcement authorities without fearing the threat of
violence or intimidation. On balance, the amendment is sensible, justifiable
and in the public interest.
If amendments to the Supreme Court of Queensland Act 1991 to
facilitate the Uniform Civil Procedure Rules are not passed by 1 July 1999
there will be an element of retrospectivity. Clauses 33, 34, 37 to 41, and 46
to 48 are expressed to commence on 1 July 1999. The amendments are
necessary to clarify the power of the Rules Committee to make rules
regarding the enforcement of non-money orders (a term defined in this Bill)
and to ensure consistency between the Act and the Uniform Civil Procedure
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Justice Legislation (Miscellaneous Provisions)
Rules. The commencement of these amendments from 1 July 1999 will
remove any doubt in relation to these issues from the commencement of the
Uniform Civil Procedure Rules. These amendments are essentially
declaratory, and will not adversely affect rights and liberties, or impose
obligations, retrospectively
Consultation
The following persons and organisations were consulted:
Director, Legal Aid Queensland
President, Queensland Council for Civil Liberties
Chief Judge of District Courts
Queensland Police Service
Chief Stipendiary Magistrate
President, Bar Association of Queensland
President, Queensland Law Society
Program Director, Juvenile Justice Branch, Department of Families,
Youth and Community Care
Director of Public Prosecutions
Deputy Director of Public Prosecutions
Chief Justice of Queensland
Registrar, Supreme Court
Sheriff, Supreme Court
Senior Judge Administrator, Supreme Court
President, Court of Appeal
Principal Adviser, Policy Co-ordination, Queensland Corrective
Services Commission
Rules Committee
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Justice Legislation (Miscellaneous Provisions)
NOTES ON PROVISIONS
Short Title
Clause 1 sets out the short title of the Act.
Clause 2 is the commencement provision which provides that sections
33, 34, 37 to 41 and 46 to 48 commence on 1 July 1999 immediately after
the commencement of the Civil Justice Reform Act 1998. The remaining
provisions of the Act commence on a day to be fixed by proclamation.
Clause 3 provides that part 2 amends the Bail Act 1980.
Clause 4 amends section 17 by inserting a new subsection (7). The
practice in the higher courts is that, at the end of each sittings, an
endorsement is made on each indictment where matters are stood over to
the next sittings (and so on from sittings to sittings until the matter is finally
disposed of). This ties up officers from the registry and from the Office of
the Director of Public Prosecutions for some days. The proposed
amendment will both clarify, and continue the utility of, section 17 of the
Bail Act but enable the discontinuance of the this time-consuming and
unnecessary practice.
Clause 5 amends section 28A to address the situation where a defendant
is granted bail by the Supreme Court, but the next court appearance is in the
Magistrates Court. Where the bail requires the defendant to appear in the
Magistrates Court, if the defendant does not appear, the Magistrate can
forfeit the bail undertaking under s.31 and also issue a warrant under s.28A
for the apprehension of the defendant without the necessity to go back to the
Supreme Court for an order to issue a warrant.
Clause 6 provides that part 3 amends the Criminal Code.
Clause 7 increases the penalty for an offence under s 56A (Disturbance
in House when Parliament not sitting) from $100 to 100 penalty units and
the term of imprisonment from 6 calendar months to 2 years.
Clause 8 increases the penalty for an offence against s 56B (Going armed
to Parliament House) from $100 to 100 penalty units and the term of
imprisonment from 6 calendar months to 2 years.
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Justice Legislation (Miscellaneous Provisions)
Clause 9 makes the offence under s 363A (Abduction of child under 16)
a crime instead of a misdemeanour and increases the penalty from 2 years
to 7 years.
Clause 10 increases the penalty for the offence under s 364 (Cruelty to
children under 16) from 5 years to 7 years.
Clause 11 amends s 552B (Charges of indictable offences that may be
dealt with summarily). The Criminal Law Amendment Act 1997 amended
the Criminal Code by inserting a new Chapter 58A (Indictable offences
dealt with summarily). Chapter 58A consolidated various provisions
located throughout the Code dealing with the summary determination of
indictable offences. Chapter 58A was not intended to substantially change
the jurisdiction of Magistrates Courts with the exception of increasing the
maximum penalty that could be imposed by a stipendiary magistrate from 2
years to 3 years (s 552H).
Section 552B of Chapter 58A lists those indictable offences that may be
dealt with summarily at the election of the defendant. Subsection
552B(1)(i) states that a Magistrates Court has jurisdiction over an offence
involving an assault if the assault is:
· without a circumstance of aggravation,
· not of a sexual nature,
· not an assault mentioned in section 552A (Charges of indictable
offences that must be dealt with summarily on prosecution
election), and
. the maximum penalty for the offence is not more than 7 years.
An unintended consequence of this new provision is that it has caused
ambiguity regarding the jurisdiction of magistrates to deal with an offence
under section 339(1) of the Criminal Code (Assault occasioning bodily
harm). Prior to the amendment Magistrates Courts had jurisdiction (subject
to certain statutorily defined limitations) to deal with this offence.
The ambiguity stems from the issue of whether an assault occasioning
bodily harm constitutes an assault with a circumstance of aggravation. This
has resulted in a significant number of magistrates declining to deal with the
offence thereby necessitating hearing in the District Court. As a
consequence, there have been increased costs to the criminal justice system
(due to the need for a committal hearing and determination by the District
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Justice Legislation (Miscellaneous Provisions)
Court) and unnecessary delay in the finalisation of criminal matters.
The amendment removes the ambiguity and makes it plain that a
Magistrates Court can deal with these offences.
Clause 12 makes a heading change to section 651 to `court neutralise' the
section and a consequential amendment to subsection 651(1). The clause
also omits subsection 651(6) and makes a renumbering change. This
amendment is consequential on the insertion of new section 653.
Clause 13 amends section 652 which is consequential on the amendment
to section 651 to `court neutralise' the section.
Clause 14 inserts new s 653 (Remission of proceedings to court
exercising summary jurisdiction.) Under existing ss.651-652 of the
Criminal Code, where an indictment has been presented against a person in
either the Supreme or District Court, and summary matters are pending in a
Magistrates Court, the summary matters can be transferred to a Supreme or
District Court where the person wants to plead guilty to the summary
offences.
However, if the matter on indictment has already been dealt with by the
higher court, or the higher court decides that the transferred matters are not
appropriate to be dealt with by the higher court, there is no express power
for the higher court to remit the summary matters back to the Magistrates
Court to be dealt with according to law.
The amendment ensures that the power exists for a higher court to remit
a summary matter back to a court exercising summary jurisdiction to be
dealt with according to law.
Clause 15 amends section 668D (Right of appeal) to `court neutralise'
the section which is consistent with the approach generally taken in the
Criminal Code.
Clause 16 inserts new chapter 73 TRANSITIONAL PROVISION
FOR JUSTICE LEGISLATION (MISCELLANEOUS PROVISIONS)
ACT (No. 2) 1999. This is a transitional provision relating to matters
referred to in Clause 11 where the defendant has already been committed
for trial or sentence in the District Court. The transitional provision enables
a judge of District Courts to send the matters back to a Magistrates Court to
be dealt with according to law if the judge considers that they are matters to
be dealt with appropriately by the Magistrates Court.
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Justice Legislation (Miscellaneous Provisions)
Clause 17 provides that part 4 amends the District Court Act 1967.
Clause 18 inserts a new s 28AA granting protection and immunity to a
judge of District Courts following concern that was expressed by judges
about the potential personal liability of judges who authorise the use of
surveillance and listening devices and perform or exercise other
administrative functions or powers conferred on them under an Act. In the
absence of any specific legislative provisions, judges are exposed to
potential personal liability. Federal judges exercising these functions and
powers are granted immunity in like situations. Accordingly, the
amendment provides the same protection and immunity to judges in the
performance or exercise of administrative functions as they have in judicial
proceedings in their courts.
Clause 19 amends s 61 to transfer jurisdiction from the Supreme Court
to the District Court for the following offences:
· Unlawful assembly, riot and mutiny (section 92(3)(b) of the
Corrective Services Act 1988);
· Rioters remaining after proclamation ordering them to disperse
(section 64 of the Criminal Code);
· Rioters demolishing buildings, etc (section 65 of the Criminal
Code);
· Carrying or sending dangerous goods in a vehicle (section 317A
of the Criminal Code);
· Obstructing rescue or escape from unsafe premises (section 318
of the Criminal Code);
· Intentionally endangering safety or persons travelling by railway
(section 319 of the Criminal Code);
· Endangering safety of persons travelling by aircraft (section 319A
of the Criminal Code).
Clause 20 amends s 77 of the Act in relation to costs in proceedings
commenced in the Supreme Court that could have been brought in a District
Court. Where a proceeding is remitted to the District Court, costs incurred
before the order will only be assessed as if proceedings had been
commenced in the Supreme Court if the Court orders. In the absence of a
specific order costs must be assessed on the basis that proceedings were
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Justice Legislation (Miscellaneous Provisions)
started in the District Court.
Clause 21 amends s 78 of the Act. It has the same effect as the
amendment to s 77 for proceedings remitted from a District Court to a
Magistrates Court.
Clause 22 amends s 97 of the Act to extend the circumstances in which a
court can make an order referring parties to an ADR process. The various
courts' Acts presently enable referral to ADR by consent or when the court
requires the parties to attend for the purpose of an order being made.
Clause 23 replaces s 129 of the District Court Act. The present provision
is limited to contempt in the face of the court. This provision confirms that
judges of the District Court can also punish for other contempts, such as
failure to comply with an order of the court and failure to comply with an
undertaking to the court. District Court judges are conferred the same
power as a Supreme Court judge to punish for the contempts referred to in
ss129(1).
Clause 24 provides that part 5 amends the Magistrates Courts Act 1921.
Clause 25 amends section 29 of the Act to extend the circumstances in
which a court can make an order referring parties to an ADR process.
Clause 26 amends s 45A to omit the words "order made" from the
section. The effect of the amendment is that the section will simply refer to
a "judgment in a proceeding for a minor debt". This is consistent with the
omission of s 131 of the Supreme Court of Queensland Act by clause 45.
The use of the term "judgment order" is not being incorporated in the
Uniform Civil Procedure Rules, as envisaged when the Civil Justice Reform
Act 1998 was passed. It is necessary for consistent terminology to be used
in courts' legislation.
Clause 27 amends s 50 of the Act in a manner consistent with the new s
129 of the District Court Act. It makes it clear that a person can be
punished for contempts in addition to contempt in the face of the court, such
as failing to comply with an order of the court. A maximum penalty of 3
years imprisonment is provided for contempt that is not in the face of the
court.
Clause 28 amends s 52 of the Act, consistent with the amendment
contained in clause 26.
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Justice Legislation (Miscellaneous Provisions)
Clause 29 provides that part 6 amends the Penalties and Sentences Act
1992.
Clause 30 recasts section 13A (Cooperation with law enforcement
authorities to be taken into account) to clarify how and when a person's
undertaking of cooperation with law enforcement authorities is to be
tendered to the Judge, and provides the court with a power to restrict any
publication of the fact that a sentence is being reduced under this section.
Power is also given to prohibit the publication of the name and address of
any witness to the proceeding. The purpose of the amendment is to rectify a
substantial problem in the operation of the current section. The provision is
intended to facilitate recognition of assistance to the authorities through
reduced sentences, however, in its current operation, tends to highlight that
circumstance which raises concerns about the safety of the person being
sentenced.
Clause 31 provides that part 7 amends the Stipendiary Magistrates Act
1991.
Clause 32 inserts a new s 21A, consistent with the amendment contained
in clause 18.
Clause 33 provides that part 8 amends the Supreme Court of Queensland
Act 1991.
Clause 34 amends the title of the Act. The Civil Justice Reform Act 1998
amended the title of the Act to provide that the Act related to certain matters,
including "enforcement of money orders." No provision was made in the
Civil Justice Reform Act for the enforcement of other types of orders, for
example, orders for the recovery of possession of land. This amendment
clarifies that the Act provides for the enforcement of orders generally.
Clause 35 inserts a new s 27A consistent with the amendment contained
in clause 18.
Clause 36 amends s 75 of the Act. This amendment is consistent with
the change in terminology referred to in the explanation for clause 26.
Clause 37 amends s 83 so that the section will now refer to "an order"
instead of "a judgment order".
Clause 38 replaces s 84, consistent with the amendment contained in
clause 26.
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Justice Legislation (Miscellaneous Provisions)
Clause 39 amends s 86 by replacing references to "an enforcement
debtor" with references to "a person". This extends the scope of the
section to orders other than a money order.
Clause 40 amends section 93A to clarify that enforcement warrants can
be obtained to enforce orders apart from money orders.
The reference in s 93A(2)(a) to "property exempted under the Uniform
Civil Procedure Rules" is replaced by a reference to "exempt property",
which is defined in the dictionary.
The types of orders that can be included in an enforcement warrant are
extended to include warrants authorising the delivery of possession of land,
and the seizure and detention of property.
A new section 93(3) is inserted to enable enforcement warrants to include
orders directed at enforcing orders that include both a money and
non-money component, for example, an order for the recovery of
possession of land and an amount for damages.
Clause 41 replaces section 93B (1). The new s 93B(1) limits the scope
of the section to the enforcement of money orders.
Clause 42 inserts new subdivisions 4 into Division 5 of Part 7 of the Act.
This subdivision contains provisions dealing with the power of the court to
enforce compliance with subpoenas or orders to attend to give evidence and
to produce documents, and to arrest absconding defendants.
New s 93I enables a court to issue a warrant for the arrest of an
individual who fails to comply with a subpoena or order of the court
requiring their attendance, and their detention until released by the court.
New s 93J enables a court to issue a warrant for the arrest of an officer of
a corporation where a corporation fails to comply with a subpoena and their
detention until released by the court.
New s 93K provides that failure to comply with a subpoena is contempt
of court. A person who fails to comply with a subpoena may be punished
for contempt of court.
New s 93L enables a warrant to be obtained from a justice of the
Supreme Court where it is established that a defendant to a claim has
absconded, or is about to abscond, and the absence of the defendant would
materially prejudice the plaintiff in prosecuting the proceedings or enforcing
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Justice Legislation (Miscellaneous Provisions)
a judgment against the defendant. Provisions enabling the arrest of
absconding defendants by way of writ of capias ad respondendum have
been contained in Part 5, Divisions 12 and 13 of the Supreme Court Act
1995 and Order 78 of the Rules of the Supreme Court. The writ of capias
ad respondendum is abolished by s 129 of the Supreme Court of
Queensland Act 1991. As provisions for the arrest of absconding
defendants are being continued in the Uniform Civil Procedure Rules, it is
appropriate that authority for the exercise of this power is included in the
Supreme Court of Queensland Act.
Clause 43 renumbers section 93I and 93J, as inserted by the Civil Justice
Reform Act 1998.
Clause 44 provides that a registrar of the Supreme, District, or
Magistrates Courts may delegate the registrar's powers to an appropriately
qualified employee in the court registry who is a public service officer.
Clause 45 is identical to the amendment in clause 25.
Clause 46 omits s 131 of the Act. This section is unnecessary. As noted
under clause 26 above, the term "judgment" is being retained in the
Uniform Civil Procedure Rules.
Clause 47 amends schedule 1 of the Act. Section 20 is amended to
clarify that rules of court can be made about the enforcement of orders other
than money orders. The Civil Justice Reform Act 1998 limited the subject
matter for rules about enforcement to the enforcement of money orders.
Clause 48 amends the dictionary to provide for definitions of "exempt
property", money order" and "non-money order" that are consistent with
the definitions developed by the Rules Committee for the Uniform Civil
Procedure Rules.
The definition of "enforcement warrant" is amended so that it extends to
non-money orders.
The definition of "registrar" is extended to the Magistrates Courts.
The Schedule makes a number of minor grammatical amendments to the
Criminal Code and rectifies the insertion of incorrect headings.
© The State of Queensland 1999