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PARLIAMENT OF VICTORIA
Law and Justice Legislation Amendment Act 1997
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 3
PART 2--CRIMES ACT 1958 5
3. Forcible entry 5
PART 3--CRIMES (FAMILY VIOLENCE) ACT 1987 6
4. Principal Act 6
5. Definitions 6
6. Orders and complaints for multiple family members 6
7. Magistrates may issue warrants 7
8. New section 13A inserted 7
13A. Rules of evidence not to apply in certain cases 7
9. Variation of interstate summary protection orders 7
10. New section 18AAB inserted 10
18AAB. Registration of New Zealand orders 10
11. Statute law revision 11
PART 4--LEGAL AID LEGISLATION 12
12. Principal Act 12
13. Composition of VLA board 12
14. New Part IV substituted 12
PART IV--INDEPENDENT REVIEWERS 13
18. Panel of independent reviewers 13
19. Functions of independent reviewers 14
15. Immunity 15
16. New section 37 substituted 16
37. Conflicts of interest 16
17. Amendments consequential on appointment of independent
reviewers 16
18. Monetary limit on legal assistance 20
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Clause Page
19. New sections 29A and 29B inserted 20
29A. Practitioner panels 20
29B. Assignment of case to practitioner panel 23
20. Selection of practitioner 23
21. Time limits for reconsiderations and reviews 23
22. New section 49B inserted in Principal Act 23
49B. Supreme Court--limitation of jurisdiction 24
23. New section 51 inserted 24
51. Transitional provisions (1997 Amending Act) 24
24. Statute law revision 26
25. Amendment of Legal Aid Commission (Amendment) Act 1989 26
PART 5--LEGAL PRACTICE ACT 1996 28
26. Amendment of section 441 28
PART 6--MAGISTRATES' COURT ACT 1989 29
27. Principal Act 29
28. New Part 6A inserted in Principal Act 29
PART 6A--ADMINISTRATIVE SERVICES
AGREEMENTS 29
Division 1--Definitions 29
124A. Definitions 29
Division 2--Agreements 31
124B. Ministers may enter into administrative services
agreements 31
124C. Subject matter of agreement 31
124D. Rights of access 33
124E. Right of intervention in management 35
124F. Audit rights 37
124G. Status of documents 38
124H. Investigation of administrative actions 38
124I. Unauthorised access to or interference with data 39
124J. Confidentiality 41
29. Recall and cancellation of warrant 42
30. Execution costs 42
31. Transitional provisions 42
PART 7--PUBLIC PROSECUTIONS ACT 1994 44
32. Amendment of section 46 44
33. Supreme Court--limitation of jurisdiction 46
PART 8--ROAD SAFETY ACT 1986 47
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Clause Page
34. Issue of infringement notices 47
PART 9--SECOND-HAND DEALERS AND PAWNBROKERS
ACT 1989 48
35. Principal Act 48
36. Definitions 48
37. Application of Act 50
38. Substitution of Part 2 50
PART 2--REGISTRATION 50
5. Second-hand dealers and pawnbrokers to be registered 50
6. Eligibility for registration 51
7. Application for registration 51
8. Investigation of application 52
9. Registration 53
10. Automatic cancellation of registration 53
11. Lodgment of statement 55
12. Notification of changes 55
13. Register 55
14. Correction of the register 56
15. Approved forms 56
16. Offences 56
39. Substitution of section 19 57
19. Identifying persons selling or pawning goods 57
40. Recording transactions 58
41. Insertion of new section 21A 58
21A. Recording storage location of goods 58
42. Charges of pawnbrokers 58
43. Insertion of new sections 24A and 24B 59
24A. Offence of failing to comply with court order 60
24B. Sign to be displayed 60
44. Police powers of inspection 60
45. Service 60
46. Substitution of section 28 61
28. Delegation 61
47. Evidentiary 61
48. Bodies corporate 61
49. Regulation-making power 61
50. Repeal 62
51. Insertion of new section 36 62
36. Licence applications 62
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Clause Page
52. Insertion of Schedule 62
SCHEDULE 62
PART 10--SUMMARY OFFENCES ACT 1966 64
53. Criminal trespass 64
54. New section 62 inserted 66
62. Transitional provision 66
55. New Schedule 1 inserted 67
SCHEDULE 1 67
NOTES 68
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PARLIAMENT OF VICTORIA
A BILL
to amend the Crimes Act 1958, the Crimes (Family Violence) Act
1987, the Legal Aid Act 1978, the Legal Aid Commission
(Amendment) Act 1989, the Legal Practice Act 1996, the
Magistrates' Court Act 1989, the Public Prosecutions Act 1994, the
Road Safety Act 1986, the Second-Hand Dealers and Pawnbrokers
Act 1989 and the Summary Offences Act 1966 and for other
purposes.
Law and Justice Legislation
Amendment Act 1997
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The main purposes of this Act are--
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Law and Justice Legislation Amendment Act 1997
s. 1
Act No.
(a) to reform the law relating to criminal
trespass and for that purpose to amend the
Summary Offences Act 1966 and the
Crimes Act 1958;
5 (b) to amend the Crimes (Family Violence) Act
1987--
(i) to allow complaints and orders to be
made in respect of more than one
family member;
10 (ii) to provide for the variation, revocation
or extension of interstate summary
protection orders and the recognition of
New Zealand protection orders;
(iii) generally to improve the operation of
15 the Act;
(c) to amend the Legal Aid Act 1978--
(i) to alter the composition and method of
appointment of the board of directors of
Victoria Legal Aid;
20 (ii) to provide for the replacement of legal
aid review committees and legal aid
appeal committees with independent
reviewers;
(iii) to enable limits to be imposed on the
25 total amount of payments that may be
made to a private practitioner under
that Act in respect of a case;
(iv) to provide for the appointment of
panels of practitioners;
30 (d) to amend the Magistrates' Court Act 1989
and the Road Safety Act 1986 to facilitate
the outsourcing of certain administrative
functions;
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s. 2
Act No.
(e) to amend the Public Prosecutions Act 1994
to clarify the operation of section 46 of that
Act;
(f) to amend the Second-Hand Dealers and
5 Pawnbrokers Act 1989--
(i) to replace the licensing of second-hand
dealers and pawnbrokers with a system
of registration;
(ii) to facilitate the recovery of stolen
10 goods;
(iii) to remove the maximum rate of interest
chargeable by pawnbrokers;
(iv) to improve procedural matters in that
Act.
15 2. Commencement
(1) Except as otherwise provided in this section, this
Act comes into operation on the day on which it
receives the Royal Assent.
(2) Subject to this section, the provisions of--
20 (a) sections 13 to 17 and 19 to 23;
(b) sections 3, 53, 54 and 55;
(c) sections 36 to 52;
(d) sections 5 to 10--
come into operation on a day or days to be
25 proclaimed.
(3) If a provision referred to in sub-section (2)(a) does
not come into operation before 1 July 1997, it
comes into operation on that day.
(4) If a provision referred to in sub-section (2)(b)
30 does not come into operation before 1 December
1997, it comes into operation on that day.
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(5) If a provision referred to in sub-section (2)(c) does
not come into operation before 1 January 1998, it
comes into operation on that day.
(6) If a provision referred to in sub-section (2)(d)
5 does not come into operation before 1 March
1998, it comes into operation on that day.
_______________
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Law and Justice Legislation Amendment Act 1997
s. 3
Act No.
PART 2--CRIMES ACT 1958
3. Forcible entry
No. 6231.
Section 207(1) of the Crimes Act 1958 is
Reprinted to
repealed. No. 98/1995.
Subsequently
amended by
Nos 22/1996,
35/1996,
45/1996,
46/1996 and
66/1996.
5 ------------------
5
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Law and Justice Legislation Amendment Act 1997
s. 4
Act No.
PART 3--CRIMES (FAMILY VIOLENCE) ACT 1987
No. 19/1987. 4. Principal Act
Reprinted to
In this Part, the Crimes (Family Violence) Act
No. 95/1994
and
1987 is called the Principal Act.
subsequently
amended by
No. 66/1996.
5 5. Definitions
In section 3(1) of the Principal Act, after the
definition of "interstate summary protection
order" insert--
' "New Zealand protection order" means an
10 order made under section 14 of the Domestic
Violence Act 1995 of New Zealand;'.
6. Orders and complaints for multiple family members
(1) After section 4(2) of the Principal Act insert--
"(3) An intervention order may be made in
15 respect of more than one aggrieved family
member if the court is satisfied in
accordance with sub-section (1) in respect of
each aggrieved family member.".
(2) After section 7(3) of the Principal Act insert--
20 "(4) A complaint in respect of an aggrieved
family member who is a child may be
included in a complaint in respect of the
child's parent if the complaints arise out of
the same or similar circumstances.
25 (5) A complaint referred to in sub-section (4)
may, on the application of the complainant
or the defendant, be heard separately if the
court thinks fit.
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s. 7
Act No.
(6) Any number of complaints against a
defendant may, on the application of the
complainants or the defendant, be heard
together if the court thinks fit.".
5 7. Magistrates may issue warrants
After section 9(2) of the Principal Act insert--
"(3) For the avoidance of doubt, a magistrate may
issue a warrant to arrest in the circumstances
set out in sub-section (1)(b)1.".
10 8. New section 13A inserted
After section 13 of the Principal Act insert--
"13A. Rules of evidence not to apply in certain
cases
(1) In a hearing referred to in sub-section (2) the
15 court may inform itself on a matter in such
manner as it thinks fit, despite any rules of
evidence to the contrary.
(2) Sub-section (1) applies to--
(a) a hearing of a complaint if the
20 aggrieved family member is a child; or
(b) a hearing of a complaint for an interim
intervention order if the complainant is
a person other than the aggrieved
family member.
25 (3) If a complaint is made in respect of more
than one aggrieved family member, sub-
section (1) applies only in relation to the
aggrieved family members who are children,
except as provided by sub-section (2)(b).".
30 9. Variation of interstate summary protection orders
For sections 18AA(3) and (4) of the Principal Act
substitute--
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Law and Justice Legislation Amendment Act 1997
s. 9
Act No.
"(3) A registered interstate summary protection
order--
(a) has the same effect as an intervention
order made under section 4; and
5 (b) may be enforced against a person as if
it were an intervention order and as if a
copy of the order had been served on
that person in accordance with section
17(1)(b).
10 (4) The variation or revocation of an interstate
summary protection order by a court of the
State or Territory in which it was made after
the order is registered under this section has
no effect in Victoria.
15 (5) The court, on application of a person referred
to in sub-section (6), may--
(a) vary a registered interstate summary
protection order as it applies in
Victoria; or
20 (b) extend the period during which a
registered interstate summary
protection order has effect in Victoria;
or
(c) revoke the registration of a registered
25 interstate summary protection order.
(6) Any of the following may make an
application referred to in sub-section (5)--
(a) a person for whose protection a
registered interstate summary
30 protection order has been made;
(b) a person against whom a registered
interstate summary protection order has
been made;
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Law and Justice Legislation Amendment Act 1997
s. 9
Act No.
(c) a member of the police force;
(d) a person who has been granted leave by
the court to make an application.
(7) A registered interstate summary protection
5 order is not to be varied, extended or
revoked on the application of a person other
than the person against whom it was made
unless notice of the application has been
served on the person against whom it was
10 made.
(8) A registered interstate summary protection
order is not to be varied or revoked on the
application of the person against whom it
was made unless notice of the application
15 has been served on the person for whose
protection the order was made.
(9) Notice of an application for variation,
extension or revocation of an interstate
summary protection order is to be served
20 personally or in such other manner as the
court hearing the application directs.
(10) If the court varies or extends a registered
interstate summary protection order or
revokes the registration of an interstate
25 summary protection order, the principal
registrar must give notice of the variation,
extension or revocation to--
(a) the court that made the order; and
(b) the Chief Commissioner of Police.
30 (11) Subject to sub-section (12), this section, as
amended by section 9 of the Law and
Justice Legislation Amendment Act 1997,
applies to an interstate summary protection
order whether made before, on or after the
35 commencement of that section.
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Law and Justice Legislation Amendment Act 1997
s. 10
Act No.
(12) Sub-section (4), as substituted by section 9
of the Law and Justice Legislation
Amendment Act 1997, does not apply to a
variation or revocation that was made before
5 the commencement of that section.".
10. New section 18AAB inserted
After section 18AA of the Principal Act insert--
"18AAB. Registration of New Zealand orders
(1) The principal registrar may register a New
10 Zealand protection order in the court.
(2) On registration of the order, the principal
registrar must--
(a) notify the court that made the order of
the registration; and
15 (b) forward a copy of the order to the Chief
Commissioner of Police.
(3) Subject to this section, a registered New
Zealand protection order--
(a) has the same effect in Victoria as it has
20 for the time being in New Zealand; and
(b) has that effect as if it were an order
under this Act--
but a breach of the order in Victoria is to be
taken for the purposes of imposing a penalty
25 to be a breach of an intervention order under
this Act.
(4) If the order is varied, revoked or extended by
a court in New Zealand--
(a) the registration is varied, revoked or
30 extended accordingly; and
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Law and Justice Legislation Amendment Act 1997
s. 11
Act No.
(b) the principal registrar must notify the
Chief Commissioner of Police of the
variation, revocation or extension.
(5) This section applies to a New Zealand
5 protection order whether made before, on or
after the commencement of section 10 of the
Law and Justice Legislation Amendment
Act 1997.".
11. Statute law revision
10 In section 5(3) of the Principal Act for "sub-
regulation" substitute "sub-section".
------------------
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Law and Justice Legislation Amendment Act 1997
s. 12
Act No.
PART 4--LEGAL AID LEGISLATION
12. Principal Act
No. 9245. In this Part, the Legal Aid Act 1978 is called the
Reprinted to
Principal Act.
No. 22/1996.
Subsequently
amended by
No. 35/1996.
5 13. Composition of VLA board
(1) In section 11 of the Principal Act--
(a) in paragraphs (a) and (b), omit "after
consultation with the Attorney-General of
the Commonwealth";
10 (b) for paragraphs (c) and (d) substitute--
"(c) 3 directors nominated by the Attorney-
General of whom--
(i) at least one must have experience
in financial management; and
15 (ii) at least one must have experience
in either business or government
operation.".
(2) In section 12E(1) of the Principal Act, omit "after
consultation with the Attorney-General of the
20 Commonwealth".
(3) In section 12M(1) of the Principal Act, omit
", after consultation with the Attorney-General of
the Commonwealth,".
14. New Part IV substituted
25 For Part IV of the Principal Act substitute--
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Law and Justice Legislation Amendment Act 1997
s. 14
Act No.
"PART IV--INDEPENDENT REVIEWERS
18. Panel of independent reviewers
(1) The Attorney-General may appoint a panel
of independent reviewers for the purposes of
5 this Act consisting of--
(a) an eligible person appointed as
chairperson of the panel; and
(b) as many other eligible persons
appointed as members of the panel as
10 are required.
(2) A person is eligible to be appointed as a
panel member if--
(a) he or she is not a director of VLA or an
officer or employee of VLA; and
15 (b) he or she is a person with knowledge
and experience that, in the opinion of
the Attorney-General, is relevant to the
functions of an independent reviewer.
(3) A panel member--
20 (a) holds office for the term (not exceeding
3 years) specified in the instrument of
appointment;
(b) is eligible for re-appointment;
(c) is, while acting as an independent
25 reviewer, entitled to be paid the
remuneration and allowances (if any)
fixed in respect of him or her by the
Governor in Council from time to time.
(4) The Public Sector Management Act 1992
30 (except Part 9 or in accordance with Part 8)
does not apply to a panel member in respect
of the office of panel member.
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Law and Justice Legislation Amendment Act 1997
s. 14
Act No.
(5) The Attorney-General may, in the instrument
of appointment of a panel member, specify
terms and conditions of appointment.
(6) The Attorney-General may at any time
5 remove a panel member from office.
(7) A panel member may resign from office by
delivering to the Attorney-General a signed
letter of resignation.
19. Functions of independent reviewers
10 (1) The functions of a member of the panel of
independent reviewers are--
(a) to exercise any powers or carry out any
functions delegated to him or her by
VLA;
15 (b) when appointed by the chairperson of
the panel to do so, to review decisions
of VLA or of an officer of VLA or of
another independent reviewer with
respect to--
20 (i) refusal to provide legal assistance
of the nature or to the extent
applied for;
(ii) the conditions on which legal
assistance will be provided;
25 (iii) the variation or termination of
legal assistance;
(iv) the allocation of work amongst
practitioners;
(c) to hear and determine any matter
30 referred to him or her under section 30;
(d) to consider any complaint by an
assisted person referred to him or her as
to the handling of that person's matter.
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Law and Justice Legislation Amendment Act 1997
s. 15
Act No.
(2) An independent reviewer may, in the interest
of justice, reconsider any decision that he or
she has made and vary or reverse that
decision if he or she considers it necessary.".
5 15. Immunity
(1) In section 30(17) of the Principal Act, after
"section" insert "before the commencement of
section 17(4) of the Law and Justice Legislation
Amendment Act 1997 or, in the case of a
10 member of a legal aid review committee, after that
commencement in accordance with section 51".
(2) In section 30 of the Principal Act, after sub-
section (17) insert--
"(17A) A director or officer or employee of VLA or
15 an independent reviewer is not personally
liable for anything done or omitted to be
done in good faith after the commencement
of section 17(4) of the Law and Justice
Legislation Amendment Act 1997--
20 (a) in the exercise of a power or the
discharge of a duty under this section;
or
(b) in the reasonable belief that the act or
omission was in the exercise of a power
25 or the discharge of a duty under this
section.
(17B) Any liability resulting from an act or
omission that would, but for sub-section
(17A), attach to a director or officer or
30 employee of VLA or to an independent
reviewer attaches instead to VLA.".
15
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Law and Justice Legislation Amendment Act 1997
s. 16
17
Act No.
16. New section 37 substituted
For section 37 of the Principal Act substitute--
"37. Conflicts of interest
An independent reviewer who has a personal
5 interest (whether pecuniary or otherwise) in
a matter which could conflict with the proper
performance of his or her duties in relation to
the matter, must not exercise any power or
carry out any function in relation to that
10 matter at any time after becoming aware of
the conflict of interest.".
17. Amendments consequential on appointment of
independent reviewers
(1) In section 2(1) of the Principal Act--
15 (a) after the definition of "incorporated
practitioner" insert--
' "independent reviewer" means member of
the panel of independent reviewers
appointed under section 18 and
20 includes the panel chairperson;';
(b) the definitions of "legal aid appeal
committee" and "legal aid review
committee" are repealed;
(c) after the definition of "order for costs"
25 insert--
' ''panel chairperson" means chairperson of
the panel of independent reviewers
appointed under section 18;
"panel member", in relation to the panel of
30 independent reviewers, includes the
panel chairperson;'.
(2) In section 10 of the Principal Act, for paragraphs
(d) and (e) substitute--
16
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Law and Justice Legislation Amendment Act 1997
s. 17
Act No.
"(d) an independent reviewer--".
(3) In section 28 of the Principal Act, for "legal aid
review committee" substitute "independent
reviewer".
5 (4) In section 30 of the Principal Act--
(a) in sub-section (12), for "VLA must appoint a
legal aid review committee" substitute "the
panel chairperson must appoint an
independent reviewer";
10 (b) in sub-section (13)--
(i) for "the legal aid review committee"
substitute "an independent reviewer";
(ii) for "its own" substitute "his or her";
(c) in sub-section (14)--
15 (i) for "legal aid review committee"
substitute "independent reviewer";
(ii) for "its" substitute "his or her";
(d) in sub-section (15), for "a legal aid review
committee" substitute "an independent
20 reviewer";
(e) in sub-section (16)--
(i) for "The legal aid review committee"
substitute "An independent reviewer";
(ii) for "its" substitute "his or her".
25 (5) In section 31(3) of the Principal Act--
(a) for "appropriate legal aid review committee
or legal aid appeal committee" substitute
"independent reviewer";
(b) for "the committee" substitute "the
30 independent reviewer".
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Law and Justice Legislation Amendment Act 1997
s. 17
Act No.
(6) In sections 33(1) and 34(1) of the Principal Act,
for "a legal aid review committee" substitute "an
independent reviewer".
(7) In section 34(2) of the Principal Act, for "legal aid
5 review committee" substitute "independent
reviewer".
(8) In section 35(1) of the Principal Act, for "a legal
aid review committee" substitute "an independent
reviewer".
10 (9) In section 35(2) of the Principal Act--
(a) for "VLA shall nominate a legal aid review
committee" substitute "the panel
chairperson must appoint an independent
reviewer";
15 (b) for "that committee" substitute "that
reviewer".
(10) In section 35(2A) of the Principal Act--
(a) for "A legal aid review committee"
substitute "An independent reviewer";
20 (b) in paragraph (a), for "it" substitute "him or
her".
(11) In section 35(3) of the Principal Act, for "a legal
aid review committee" substitute "an independent
reviewer".
25 (12) In section 36(1) of the Principal Act--
(a) for "a legal aid review committee"
substitute "an independent reviewer";
(b) for "a legal aid appeal committee" substitute
"another independent reviewer".
30
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s. 17
Act No.
(13) In section 36(2) of the Principal Act--
(a) for "VLA shall nominate a legal aid appeal
committee" substitute "the panel
chairperson shall appoint another
5 independent reviewer";
(b) for "that committee" substitute "that
reviewer".
(14) In section 36(2A) of the Principal Act--
(a) for "A legal aid appeal committee"
10 substitute "An independent reviewer
appointed under this section";
(b) in paragraph (a), for "it" substitute "him or
her".
(15) In section 36(3) of the Principal Act, for "a legal
15 aid appeal committee" substitute "an independent
reviewer under this section".
(16) In section 36(4) of the Principal Act, for "A legal
aid appeal committee shall cause notice of its
decision" substitute "An independent reviewer
20 must cause notice of his or her decision under this
section".
(17) Sections 38 and 39 of the Principal Act are
repealed.
(18) In section 40 of the Principal Act--
25 (a) in subsection (1), for "a legal aid review
committee and the committee" substitute
"the panel chairperson who must refer it to
an independent and that reviewer";
(b) in sub-section (2)--
30 (i) for "legal aid review committee"
substitute "independent reviewer";
19
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Law and Justice Legislation Amendment Act 1997
s. 18
Act No.
(ii) for "the committee" substitute "the
reviewer".
(19) In section 47(1) of the Principal Act, for "a legal
aid review committee" substitute "an independent
5 reviewer".
(20) In section 50 of the Principal Act, paragraph (c) is
repealed.
18. Monetary limit on legal assistance
(1) In section 28 of the Principal Act--
10 (a) after paragraph (a) insert "and";
(b) after paragraph (b) insert--
"(ba) whether a limit is to be imposed on the
total amount of payments which may be
made to a private practitioner under this
15 Act for the performance of services on
behalf of the assisted person and the
amount of that limit; and".
(2) In section 29 of the Principal Act, after paragraph
(b) insert--
20 "(ba) impose a limit on the total amount of
payments which may be made to a private
practitioner under this Act for the
performance of services on behalf of the
assisted person or increase or reduce the
25 amount of such a limit previously imposed;".
19. New sections 29A and 29B inserted
After section 29 of the Principal Act insert--
"29A. Practitioner panels
(1) VLA may establish different panels for--
30 (a) different classes of matters in relation
to which legal assistance may be
provided under this Act; or
20
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s. 19
Act No.
(b) different parts of the State--
and may determine the conditions subject to
which a practitioner may be included on any
such panel.
5 (2) If VLA proposes to establish a panel under
sub-section (1) or include additional names
on an established panel, it must, by notice
published in a daily newspaper circulating
generally throughout Victoria or in the
10 relevant part of the State (as the case
requires), invite expressions of interest from
sole practitioners, firms and incorporated
practitioners in having their names included
on the panel.
15 (3) A notice under sub-section (2)--
(a) must be published not later than 21
days before the panel is established by
VLA or any additional name included
on it, as the case requires; and
20 (b) must specify--
(i) the qualifications and experience
that a practitioner included on the
panel must have or the part of the
State within which their principal
25 place of practice must be located;
and
(ii) the period (not exceeding 3 years)
during which a practitioner may
be included on the panel; and
30 (iii) the basis on which payment will
be made to any practitioner
included on the panel for services
performed as a panel member on
behalf of an assisted person; and
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(iv) performance standards in relation
to the provision of services by
panel members; and
(v) requirements with respect to the
5 making of reports to VLA and the
keeping of records that must be
complied with by panel members
in respect of the performance of
services on behalf of assisted
10 persons; and
(vi) the grounds on which a
practitioner may be removed from
the panel.
(4) The name of a sole practitioner, firm or
15 incorporated practitioner may be included on
a panel whether or not their name is also
included on a referral panel under section 30
or on another panel established under this
section.
20 (5) A sole practitioner, firm or incorporated
practitioner may be re-included on a panel
after the expiry of the period for which they
were included.
(6) A sole practitioner, firm or incorporated
25 practitioner may, by writing to VLA, request
that their name be removed from a panel and
VLA must comply with that request.
(7) If the name of a firm or incorporated
practitioner is included on a panel, the names
30 of all the partners or directors and the
practitioners who are employed by the firm
or incorporated practitioner are deemed to be
included on the panel.
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(8) If the name of a sole practitioner is included
on a panel, the names of all employee
solicitors for the time being of the sole
practitioner are deemed to be included on the
5 panel.
29B. Assignment of case to practitioner panel
(1) VLA may assign the conduct of an assisted
person's case to a sole practitioner, firm or
incorporated practitioner included on a panel
10 established under section 29A.
(2) If VLA assigns a case as mentioned in sub-
section (1), VLA must, on behalf of the
assisted person, select a sole practitioner,
firm or incorporated practitioner from the
15 names on the panel.".
20. Selection of practitioner
In section 30(1) of the Principal Act, at the end of
paragraph (b) insert--
"; and
20 (c) VLA has not under section 29B assigned the
conduct of the assisted person's case to a sole
practitioner, firm or incorporated practitioner
included on a panel established under section
29A--".
25 21. Time limits for reconsiderations and reviews
In sections 34(1), 35(1) and 36(1) of the Principal
Act, for "prescribed time (if any)" substitute
"time fixed by VLA (being not less than 7 days
after the date of the decision)".
30 22. New section 49B inserted in Principal Act
After section 49A of the Principal Act insert--
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"49B. Supreme Court--limitation of jurisdiction
(1) It is the intention of section 30(17A) to alter
or vary section 85 of the Constitution Act
1975.
5 (2) It is the intention of section 35(3), as
amended by section 17(11) of the Law and
Justice Legislation Amendment Act 1997,
to alter or vary section 85 of the
Constitution Act 1975.
10 (3) It is the intention of section 36(3), as
amended by section 17(15) of the Law and
Justice Legislation Amendment Act 1997,
to alter or vary section 85 of the
Constitution Act 1975.".
15 23. New section 51 inserted
After section 50 of the Principal Act insert--
"51. Transitional provisions (1997 Amending
Act)
(1) On the commencement of section 13 of the
20 Law and Justice Legislation Amendment
Act 1997, the directors of Victoria Legal Aid
appointed under section 11(c) of this Act, as
in force immediately before that
commencement, go out of office.
25 (2) Victoria Legal Aid is to be taken to be the
same body despite the changes made to the
composition of its board of directors by
section 13 of the Law and Justice
Legislation Amendment Act 1997 and,
30 except as otherwise provided by sub-section
(1), no act, proceeding, matter or thing is to
be affected because of those changes.
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(3) On the commencement of section 14 of the
Law and Justice Legislation Amendment
Act 1997, any legal aid review committee
established under this Act that is in existence
5 immediately before that commencement is
abolished and its members go out of office.
(4) On the commencement of section 17(17) of
the Law and Justice Legislation
Amendment Act 1997, any legal aid appeal
10 committee established under this Act that is
in existence immediately before that
commencement is abolished and its members
go out of office.
(5) A matter before a legal aid review committee
15 or a legal aid appeal committee that had not
been determined by that committee as at the
commencement of section 14 or 17(17) (as
the case requires) of the Law and Justice
Legislation Amendment Act 1997 must,
20 until it is determined or until 1 August 1997
(whichever is the earlier), continue to be
dealt with by that committee in accordance
with this Act as if the Law and Justice
Legislation Amendment Act 1997 had not
25 been enacted.
(6) For the purpose of sub-section (5) and
despite anything to the contrary in this Act, a
legal aid review committee or a legal aid
appeal committee continues to exist until all
30 matters referred to in that sub-section have
been determined by it or until 1 August
1997, whichever is the earlier.
(7) A matter referred to in sub-section (5) that
has not been determined by the legal aid
35 review committee or the legal aid appeal
committee (as the case requires) as at 1
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August 1997 is to be dealt with by an
independent reviewer in accordance with this
Act and for that purpose--
(a) anything done in relation to the matter
5 by the committee before that date is
deemed to have been done by the
independent reviewer; and
(b) the independent reviewer may have
regard to any record of the committee
10 relating to the matter.
(8) An application, request or complaint made,
or other matter arising, before the
commencement of section 14 or 17(17) of
the Law and Justice Legislation
15 Amendment Act 1997 (including a request
under section 34(1) for reconsideration of a
decision of a legal aid review committee)
that under this Act as in force before that
commencement would have been dealt with
20 by a legal aid review committee or a legal
aid appeal committee but was not before
such a committee as at that commencement
is to be dealt with by an independent
reviewer in accordance with this Act.".
25 24. Statute law revision
In section 46(4) of the Principal Act, for
"taxation" (wherever occurring) substitute
"assessment".
25. Amendment of Legal Aid Commission (Amendment)
30 Act 1989
In section 12 of the Legal Aid Commission
(Amendment) Act 1989, for "prescribed time"
(wherever occurring) substitute "time fixed by
it".
35 _______________
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s. 26
Act No.
PART 5--LEGAL PRACTICE ACT 1996
No. 35/1996. 26. Amendment of section 441
Amended by
For section 441(2) of the Legal Practice Act
No. 59/1996.
1996 substitute--
5 "(2) The Board, on behalf of the Attorney-
General, may apply to the Supreme Court for
punishment of a person for a contravention
of a provision of this Act that, by force of
this Act, constitutes a contempt of the
10 Supreme Court.".
_______________
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PART 6--MAGISTRATES' COURT ACT 1989
27. Principal Act
No. 51/1989.
In this Part, the Magistrates' Court Act 1989 is
Reprinted to
called the Principal Act. No. 99/1995.
Subsequently
amended by
Nos 35/1996,
45/1996,
64/1996,
66/1996,
70/1996 and
73/1996.
5 28. New Part 6A inserted in Principal Act
In the Principal Act, after Part 6 insert--
'PART 6A--ADMINISTRATIVE SERVICES
AGREEMENTS
Division 1--Definitions
10 124A. Definitions
In this Part--
"contractor" means a party to an agreement
with the Ministers under section
124B(1);
15 "Ministers" means the Attorney-General
and the Minister administering Part I of
the Police Regulation Act 1958;
"PERIN Court" means the venue of the
Court prescribed under section
20 140(1)(i);
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"sub-contractor" means a sub-contractor of
a contractor or of a sub-contractor.
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Division 2--Agreements
124B. Ministers may enter into administrative
services agreements
(1) The Attorney-General and the Minister
5 administering Part I of the Police
Regulation Act 1958 may, for and on behalf
of the Crown, jointly enter into an agreement
with a person or body for the provision by
that person or body of services of an
10 administrative nature in support of the
functions of --
(a) the PERIN Court; or
(b) the sheriff; or
(c) the police force of Victoria as carried
15 on in the office known as the Traffic
Camera Office immediately before an
agreement under this sub-section was
first entered into in relation to that
office; or
20 (d) the police force of Victoria as carried
on in the office known as the Fixed
Penalties Payment Office immediately
before an agreement under this sub-
section was first entered into in relation
25 to that office.
(2) Nothing in this section limits, or takes away,
any other power of the Attorney-General or
the Minister administering Part I of the
Police Regulation Act 1958, whether under
30 this or any other Act or otherwise, to enter
into agreements for the provision of services
of an administrative nature in support of any
functions for which he or she is responsible.
124C. Subject matter of agreement
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An agreement under section 124B(1) --
(a) must provide for the services to be
provided by the contractor;
(b) must provide for the fees, costs and
5 charges to be paid to the contractor;
(c) must provide for objectives and
performance standards in relation to the
contractor's operations under the
agreement;
10 (d) must provide for standards of probity
applicable to persons employed by, or
engaged to provide services for, the
contractor in connection with the
contractor's operations under the
15 agreement;
(e) must provide for compliance by the
contractor with all relevant provisions
of any Act, regulations or other
instrument of a legislative character;
20 (f) must provide for rights of access in
favour of the Crown to any premises
occupied by the contractor in
connection with the contractor's
operations under the agreement and to
25 any document or equipment on those
premises that is in the possession of the
contractor and that relates to, or is used
in connection with, the contractor's
operations under the agreement;
30 (g) must provide for the submission to the
Ministers of periodic reports, or the
periodic carrying out of a performance
audit, in relation to the contractor's
operations under the agreement;
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(h) must provide for the protection of
information gained by the contractor in
connection with the contractor's
operations under the agreement and
5 impose restrictions on access to the
information and on its disclosure and
use;
(i) may provide for the extent of
indemnities and warranties by parties to
10 the agreement;
(j) may specify liabilities, risks and
insurances;
(k) may provide for the provision by the
contractor of a performance bond;
15 (l) must provide for the office the holder
of which is to be the principal officer
for the purposes of the application of
the Ombudsman Act 1973 to the
contractor as a provider of services
20 under the agreement;
(m) must provide for the Ministers or any of
them, the Crown or any other person or
body to take over, or nominate any
other person or body to take over, in
25 specified circumstances rights or
obligations under the agreement or any
other agreement or under any
transaction;
(n) may contain any other provisions that
30 are not inconsistent with this Part or the
regulations.
124D. Rights of access
(1) A contractor or sub-contractor must give any
of the Ministers, the Secretary to the
35 Department of Justice and any person
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authorised by any such Minister or the
Secretary free and unfettered access at all
times, together with any assistants and
equipment that they consider necessary--
5 (a) to any premises occupied by the
contractor or sub-contractor in
connection with the contractor's
operations under the agreement; and
(b) to all persons engaged or employed by
10 the contractor or a sub-contractor in
connection with the contractor's
operations under the agreement; and
(c) to all documents or equipment in the
possession of the contractor or sub-
15 contractor that relate to, or are used in
connection with, the contractor's
operations under the agreement--
for the purpose of ensuring compliance with
this Part or the regulations or an agreement
20 under section 124B(1).
Penalty: 50 penalty units.
(2) A contractor or sub-contractor must give an
administrator appointed under section 124E
free and unfettered access at all times,
25 together with any assistants and equipment
that the administrator considers necessary--
(a) to any premises occupied by the
contractor or sub-contractor in
connection with the contractor's
30 operations under the agreement; and
(b) to all persons engaged or employed by
the contractor or a sub-contractor in
connection with the contractor's
operations under the agreement; and
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(c) to all documents or equipment in the
possession of the contractor or sub-
contractor that relate to, or are used in
connection with, the contractor's
5 operations under the agreement--
for the purpose of enabling the administrator
to carry out his or her functions and exercise
his or her powers under that section.
Penalty: 50 penalty units.
10 (3) Nothing in this section limits, or takes away,
any function or power conferred on a person
(including a person on whom a function or
power is conferred by this section but not
including a contractor or sub-contractor),
15 whether under this or any other Act or
otherwise including an agreement under
section 124B(1).
124E. Right of intervention in management
(1) The Ministers may intervene in the
20 management of the contractor's operations
under an agreement under section 124B(1) if
they consider that it is necessary to do so in
the interests of--
(a) the maintenance of law and order; or
25 (b) the adequate provision of court
administration; or
(c) the effective enforcement of court
orders; or
(d) public safety.
30 (2) If the Ministers intervene in the management
of the contractor's operations under an
agreement, they may appoint an
administrator to manage those operations
until they
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determine that the appointment is no longer
required in the interests referred to in sub-
section (1).
(3) If an administrator is appointed under sub-
5 section (2), then for the period of that
appointment--
(a) the contractor or a sub-contractor must
act in relation to the management of the
contractor's operations under the
10 agreement in accordance with the
directions of the administrator; or
(b) the contractor or a sub-contractor must,
as directed by the administrator, cease
to act in relation to the management of
15 the contractor's operations under the
agreement completely or to the extent
specified in the direction.
Penalty: 50 penalty units.
(4) A person engaged or employed by the
20 contractor or a sub-contractor to act in
relation to the management of the
contractor's operations under an agreement
must comply with the directions of the
administrator in doing so.
25 Penalty: 50 penalty units.
(5) An administrator appointed under sub-
section (2) has and may carry out or exercise
for the period of the appointment all of the
functions or powers of the contractor or any
30 sub-contractor in relation to the management
of the contractor's operations under the
agreement.
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(6) The Secretary to the Department of Justice
must provide the administrator with any
assistance necessary to the carrying out of
his or her functions or exercise of his or her
5 powers under this section.
(7) Nothing in this section limits, or takes away,
any function or power conferred on a person
(including a person on whom a function or
power is conferred by this section but not
10 including a contractor or sub-contractor),
whether under this or any other Act or
otherwise including an agreement under
section 124B(1).
124F. Audit rights
15 (1) The Ministers may at any time during the
term, or the 7 year period immediately
following the expiration, of an agreement
under section 124B(1) or any renewal of
such an agreement, appoint a person as an
20 independent auditor to audit the documents
of the contractor that relate to the
contractor's operations under the agreement.
(2) A contractor or sub-contractor must--
(a) make all documents in its actual
25 possession relating to the contractor's
operations under the agreement
available to an independent auditor
appointed under sub-section (1) at the
time and place specified by that
30 auditor; and
(b) provide an independent auditor
appointed under sub-section (1) with
any assistance necessary to enable the
audit to be undertaken.
35 Penalty: 50 penalty units.
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124G. Status of documents
(1) For the purposes of the Freedom of
Information Act 1982--
(a) any document in existence immediately
5 before an agreement under section
124B(1) was entered into and handed
over to the contractor in accordance
with the agreement remains; and
(b) any document created or received by
10 the contractor or a sub-contractor after
an agreement under section 124B(1)
was entered into as a result of the
contractor's operations under the
agreement is--
15 in the possession of the Department of
Justice and that Act applies to that document
to the same extent to which it would if the
agreement had never been entered into.
(2) All proprietary rights and interests in any
20 document referred to in sub-section (1)
remain with, or on the creation or receipt of
the document by the contractor or sub-
contractor become vested in, the Crown.
(3) All documents referred to in sub-section (1)
25 are public records within the meaning of the
Public Records Act 1973.
124H. Investigation of administrative actions
(1) Subject to sub-section (2), the Ombudsman
Act 1973 applies to a contractor or a sub-
30 contractor in its capacity as a provider of
services under an agreement under section
124B(1) or a sub-contract agreement as if--
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(a) the contractor or sub-contractor were a
public statutory body within the
meaning of that Act; and
(b) the holder of the office specified in the
5 agreement under section 124B(1) or in
the sub-contract agreement for the
purposes of the application of the
Ombudsman Act 1973 were the
principal officer of that public statutory
10 body; and
(c) the persons employed by the contractor
or sub-contractor in connection with the
contractor's operations under the
agreement were employees of that
15 public statutory body.
(2) Nothing in this section applies the
Ombudsman Act 1973 to a contractor or
sub-contractor--
(a) in any capacity other than that
20 mentioned in sub-section (1); or
(b) with respect to any period during which
services were not actually being
provided by the contractor or sub-
contractor under an agreement under
25 section 124B(1) or a sub-contract
agreement.
124I. Unauthorised access to or interference with
data
(1) A person must not intentionally and without
30 lawful authority--
(a) obtain access, or attempt to obtain
access, to any data stored in a computer
that is under the control of a contractor
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s. 28
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or sub-contractor and that relates to the
contractor's operations under an
agreement under section 124B(1) or
was gained in the course of those
5 operations; or
(b) alter or delete, or attempt to alter or
delete, any such data or enter, or
attempt to enter, data into the database
in which any such data is contained; or
10 (c) interfere, or attempt to interfere, in any
other way with a database containing
any such data.
Penalty: 100 penalty units.
(2) The Secretary to the Department of Justice
15 may, by writing, authorise a person engaged
or employed by a contractor or sub-
contractor to do, in relation to all data
referred to in sub-section (1) or any such
data of a specified class, anything that, but
20 for that authorisation, the person would be
prohibited from doing by sub-section (1).
(3) For the purposes of sub-section (1) a person
must be taken as having lawful authority to
do a thing referred to in that sub-section if--
25 (a) in the case of a person engaged or
employed by a contractor or sub-
contractor, he or she is authorised to do
that thing under sub-section (2); and
(b) in the case of a person who is--
30 (i) the principal registrar of the
Magistrates' Court or a registrar or
deputy registrar at the PERIN
Court; or
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(ii) the sheriff, a deputy sheriff or any
person who is a bailiff for the
purposes of the Supreme Court
Act 1986; or
5 (iii) a member of the police force of
Victoria--
he or she does that thing in the exercise
of official powers or the discharge of
official functions or duties.
10 124J. Confidentiality
(1) A person who is, or has at any time been--
(a) a contractor; or
(b) a sub-contractor; or
(c) a person employed by, or engaged to
15 provide services for, a contractor or
sub-contractor--
is bound by this section.
(2) A person bound by this section must not
directly or indirectly, except in the exercise
20 of powers or performance of functions in
connection with a contractor's operations
under an agreement under section 124B(1)--
(a) make a record of, or divulge to any
person any information acquired by
25 reason of being a person referred to in
sub-section (1); or
(b) make use of any such information for a
purpose other than in the exercise of
those powers or performance of those
30 functions.
Penalty: 100 penalty units.
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s. 29
Act No.
(3) Nothing in sub-section (2) prevents a person
bound by this section from--
(a) producing a document to a court in the
course of any criminal or civil
5 proceedings; or
(b) divulging to a court any information
that has come to the notice of the
person by reason of being a person
referred to in sub-section (1).
10 (4) In this section--
"court" includes any tribunal, authority or
person having power to require the
production of documents or the
answering of questions;
15 "produce" includes permit access to.'.
29. Recall and cancellation of warrant
In section 58(1)(b) of the Principal Act, after
"issued" (where secondly occurring) insert "or,
except in the case of a warrant issued under clause
20 8(1) of Schedule 7, any other registrar".
30. Execution costs
(1) In clause 7 of Schedule 7 to the Principal Act,
sub-clause (3) is repealed.
(2) In clause 8 of Schedule 7 to the Principal Act,
25 after sub-clause (1A) insert--
"(1B) Any fee prescribed under this Act in respect
of the execution of a warrant issued under
sub-clause (1) forms part of the lawful costs
of execution of the warrant.".
30 31. Transitional provisions
In Schedule 8 to the Principal Act, after clause 15
insert--
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Act No.
"16. The amendment of section 58(1)(b) made by
section 29 of the Law and Justice
Legislation Amendment Act 1997 applies
to warrants issued before as well as after the
5 commencement of section 29 of that Act.
17. The amendment of Schedule 7 made by
section 30(2) of the Law and Justice
Legislation Amendment Act 1997 applies
to warrants issued before as well as after the
10 commencement of section 30(2) of that
Act.".
_______________
43
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Law and Justice Legislation Amendment Act 1997
s. 32
Act No.
PART 7--PUBLIC PROSECUTIONS ACT 1994
32. Amendment of section 46
No. 43/1994. (1) In section 46(1) of the Public Prosecutions Act
Reprint No. 1
1994--
as at 14
November
5 (a) after "law" insert "but subject to sub-section
1996. Further
(5)";
amended by
No. 35/1996.
(b) omit "that involves an interference with the
due administration of justice, either in
relation to a pending proceeding or more
10 generally".
(2) In section 46 of the Public Prosecutions Act
1994, after sub-section (1) insert--
"(1A) For the avoidance of doubt it is declared that
sub-section (1) applies--
15 (a) whether the contempt is classified as
criminal or civil in nature;
(b) irrespective of whether the contempt is
committed in relation to a pending
proceeding or otherwise;
20 (c) where the contempt is committed in
relation to a pending proceeding,
irrespective of whether that proceeding
is criminal or civil in nature;
(d) where the contempt is constituted by
25 conduct that aided, abetted, counselled
or procured or incited the commission
of a contempt of court by another
person.".
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(3) In section 46(5) of the Public Prosecutions Act
1994--
(a) for paragraph (a) substitute--
(a) takes away any right that a person may
5 have to apply to a court for punishment
of a person for a contempt of court,
whether criminal or civil in nature--
(i) that involves a breach of a court
order or of an undertaking given
10 (whether expressly or impliedly)
to a court; or
(ii) that involves the disclosure of the
fact that an offer of compromise
of a claim has been made in a
15 pending proceeding or of the
terms of such an offer; or
(iii) that involves an abuse of
discovery or other interlocutory
process; or
20 (iv) that involves a breach by a legal
practitioner of an obligation owed
by the practitioner to the court; or
(v) that involves aiding, abetting,
counselling, procuring or inciting
25 a breach referred to in sub-
paragraph (i), (ii), (iii) or (iv); or";
(b) at the end of paragraph (c) insert--
"; or
(d) takes away any right that the Legal
30 Practice Board may have to apply to the
Supreme Court under section 441(2) of
the Legal Practice Act 1996.".
45
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s. 33
Act No.
33. Supreme Court--limitation of jurisdiction
It is the intention of section 32 to alter or vary
section 85 of the Constitution Act 1975.
_______________
5
46
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s. 34
Act No.
PART 8--ROAD SAFETY ACT 1986
34. Issue of infringement notices
No. 127/1986.
(1) In section 88(1) of the Road Safety Act 1986, for
Reprinted to
"issue and" substitute "issue or cause to be issued No. 58/1995.
5 and serve or". Subsequently
amended by
(2) In section 88(1A) of the Road Safety Act 1986, Nos 100/1995,
25/1996 and
after "issued" insert "or caused to be issued". 37/1986.
_______________
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PART 9--SECOND-HAND DEALERS AND PAWNBROKERS
ACT 1989
35. Principal Act
No. 54/1989. In this Part, the Second-Hand Dealers and
Reprinted to
5 Pawnbrokers Act 1989 is called the Principal
No. 41/1995
Act.
and
subsequently
amended by
Nos 66/1996
and 74/1996.
36. Definitions
(1) In section 3(1) of the Principal Act--
(a) insert the following definitions--
10 ' "associate", in relation to a person,
means--
(a) a spouse or defacto partner of the
person; or
(b) a business partner of the person;
15 or
(c) a participant in a business
arrangement or relationship with
the person in respect of a second-
hand dealing or pawnbroking
20 business;
"disqualifying offence" means an offence
involving fraud, dishonesty, violence or
drug trafficking punishable on
conviction by--
25 (a) in the case of a natural person,
imprisonment for 3 months or
more (whether or not in addition
to a fine); or
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(b) in the case of a body corporate, a
fine of 100 penalty units or more;
"externally-administered corporation"
means a corporation--
5 (a) that is being wound up; or
(b) in respect of property of which a
receiver, or a receiver and
manager, has been appointed
(whether or not by a court) and is
10 acting; or
(c) that is under official management;
or
(d) that has entered into a
compromise or arrangement with
15 another person under Part 5 of the
Corporations Law, the
administration of which has not
been concluded;
"insolvent under administration" means a
20 person who is a bankrupt in respect of a
bankruptcy from which the person has
not been discharged and includes--
(a) a person who has executed a deed
of arrangement under Part X of
25 the Bankruptcy Act 1966 of the
Commonwealth (or the
corresponding provisions of the
law of another jurisdiction) where
the terms of the deed have not
30 been fully complied with; and
(b) a person whose creditors have
accepted a composition under Part
X of the Bankruptcy Act 1966 of
the Commonwealth (or the
35 corresponding provisions of the
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law of another jurisdiction) where
a final payment has not been made
under that composition;
"Secretary" means the Secretary to the
5 Department of Justice.';
(b) in the definition of "second-hand dealer", for
"and otherwise" substitute "or otherwise".
(2) In section 3(2)(a) of the Principal Act, after "right
to repurchase the goods" insert '(commonly
10 known as a "buy-back")'.
37. Application of Act
In section 4(e) of the Principal Act, after
"regulations" insert "from the application of the
whole or any provision of this Act or the
15 regulations".
38. Substitution of Part 2
For Part 2 of the Principal Act substitute--
"PART 2--REGISTRATION
5. Second-hand dealers and pawnbrokers to
20 be registered
(1) Subject to this Act, a person must not, either
alone or in partnership, carry on business as
a second-hand dealer or a pawnbroker unless
the person is registered as a second-hand
25 dealer under this Part.
Penalty: 100 penalty units.
(2) Despite sub-section (1), a person who holds
a motor car trader's licence under the Motor
Car Traders Act 1986 may buy, sell,
30 exchange or otherwise deal in second-hand
goods that are motor car parts without being
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s. 38
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registered under this Part, but must in all
other respects comply with this Act.
6. Eligibility for registration
A person is not eligible to be registered
5 under this Part if the person or, in the case of
a body corporate, a director of the body
corporate--
(a) has, within the preceding 5 years in
Australia or elsewhere, been convicted
10 or found guilty of a disqualifying
offence; or
(b) is an insolvent under administration or
an externally-administered corporation;
or
15 (c) is an associate of a person who--
(i) has, within the preceding 5 years,
been convicted or found guilty of
a disqualifying offence; or
(ii) is an insolvent under
20 administration or an externally-
administered corporation.
7. Application for registration
(1) An application for registration as a second-
hand dealer may be made to the Secretary.
25 (2) An application must be--
(a) in writing in or to the effect of the form
approved by the Secretary and must be
verified by statutory declaration; and
(b) accompanied by evidence as to the
30 identity of--
(i) the applicant; or
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(ii) if the applicant is a body
corporate, the directors of the
applicant--
by means of a birth certificate, passport
5 (if the passport is current or expired for
not more than 2 years), driver licence
or any other document in one of the
prescribed categories; and
(c) accompanied by the prescribed fee; and
10 (d) lodged with the Secretary--
(i) not less than 1 month before the
day on which the applicant
proposes to commence business as
a second-hand dealer or
15 pawnbroker; or
(ii) if, on the commencement of
section 38 of the Law and Justice
Legislation Amendment Act
1997, the applicant is carrying on
20 business as a second-hand dealer
or pawnbroker, not more than 6
months after that commencement.
8. Investigation of application
(1) On receiving an application for registration
25 as a second-hand dealer, the Secretary must
refer a copy of the application to the Chief
Commissioner of Police.
(2) The Chief Commissioner of Police must, not
more than 14 days after receipt of the copy
30 by the Commissioner, enquire into and
report to the Secretary on the criminal
record, if any, of--
(a) the applicant;
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(b) if the applicant is a body corporate, the
directors of the applicant;
(c) the associates, if any, of the applicant.
9. Registration
5 (1) The Secretary must register an applicant as a
second-hand dealer unless the applicant is
not eligible under section 6 to be so
registered.
(2) A registration remains in force until it is
10 cancelled or surrendered.
(3) The Secretary may cancel the registration of
a person if the person fails to lodge a
statement as required by section 11.
10. Automatic cancellation of registration
15 (1) A person who is registered under this Part
ceases to be so registered if the person or, in
the case of a body corporate, a director of the
body corporate or an associate of the person
or director--
20 (a) in Australia or elsewhere, is convicted
or found guilty of a disqualifying
offence; or
(b) becomes an insolvent under
administration or an externally-
25 administered corporation.
(2) For the purposes of sub-section (1), a
conviction or finding of guilt takes effect at
the conclusion of the proceedings, whether
on appeal or otherwise, or at the end of any
30 appeal period, whichever is the later.
(3) This section does not apply to a conviction
or a finding of guilt before the
commencement of section 38 of the Law
and Justice Legislation Amendment Act
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Act No.
1997, whether the proceedings conclude or
an appeal period ends after that
commencement.
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11. Lodgment of statement
A person registered under this Part must, not
later than 12 months after the date of
registration and thereafter at intervals of not
5 more than 12 months, lodge with the
Secretary a statement in or to the effect of
the form approved by the Secretary
containing the information required by the
Secretary, signed by the person and
10 accompanied by the prescribed fee.
12. Notification of changes
If a person registered under this Part--
(a) changes business premises; or
(b) in the case of a body corporate, changes
15 directors; or
(c) changes associates; or
(d) ceases business as a second-hand dealer
or pawnbroker--
the person must give notice in writing to the
20 Secretary within 7 days after the change or
cessation.
Penalty: 10 penalty units.
13. Register
(1) The Secretary must cause a register to be
25 kept of all persons registered under this Part
containing the prescribed particulars.
(2) The register may be inspected at the office of
the Secretary by any person during ordinary
office hours without charge.
30 (3) A person may obtain a copy of or an extract
from the register on payment of the
prescribed fee.
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14. Correction of the register
(1) The Secretary may correct an error or
omission in the register by--
(a) inserting an entry; or
5 (b) amending an entry; or
(c) omitting an entry--
if the Secretary is satisfied that the register
contains an error.
(2) The Secretary may make the correction on
10 his or her initiative or on the application of
any person.
(3) The Secretary must notify the person
registered of any correction made under this
section that affects the registration.
15 (4) A person may apply to the Administrative
Appeals Tribunal for review of the
Secretary's decision concerning correction of
the register.
(5) The Secretary must make any correction to
20 the register that is necessary to implement
the decision of the Administrative Appeals
Tribunal.
15. Approved forms
The Secretary must cause to be published in
25 the Government Gazette all forms approved
for the purposes of this Part.
16. Offences
(1) A person must not knowingly or recklessly
make a false or misleading statement in or in
30 connection with an application, statement or
notice under this Part.
Penalty: 20 penalty units.
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s. 39
Act No.
(2) An applicant for registration must not submit
false evidence of identity.
Penalty: 50 penalty units.".
39. Substitution of section 19
5 For section 19 of the Principal Act substitute--
"19. Identifying persons selling or pawning
goods
(1) A second-hand dealer or pawnbroker must
require every person attempting to sell or
10 pawn second-hand goods to the second-hand
dealer or pawnbroker to produce evidence as
to the person's identity--
(a) by means of a passport, driver licence
or other document in one of the
15 prescribed categories bearing a
photograph of the person; or
(b) by means of 2 documents in the
prescribed categories but each in a
different category.
20 Penalty: 20 penalty units.
(2) If a person attempting to sell or pawn
second-hand goods is, on request, unable to
produce the required evidence of identity,
the second-hand dealer or pawnbroker must
25 refuse to accept the goods.
Penalty: 20 penalty units.
(3) A person attempting to sell or pawn second-
hand goods to a second-hand dealer or
pawnbroker must not produce false evidence
30 of identity.
Penalty: 50 penalty units.".
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40. Recording transactions
In section 20 of the Principal Act, after
"transaction" insert ", whether conducted on the
business premises or elsewhere,".
5 41. Insertion of new section 21A
After section 21 of the Principal Act insert--
"21A. Recording storage location of goods
A second-hand dealer or pawnbroker must
keep accurate and complete records of the
10 place of storage of each item of second-hand
goods in the possession or under the control
of the dealer or pawnbroker.
Penalty: 20 penalty units.".
42. Charges of pawnbrokers
15 In section 23 of the Principal Act, for sub-sections
(2), (3) and (4) substitute--
"(2) A pawnbroker must cause a notice--
(a) in or to the effect of a form approved
by the Secretary; and
20 (b) showing the maximum amount charged
weekly and monthly, or any other
period normally used, by the
pawnbroker on pawn transactions; and
(c) stating that in special circumstances a
25 higher amount may be charged by the
pawnbroker--
to be displayed in a prominent place in or
outside each business premises of the
pawnbroker to which the public has access
30 so that the notice is clearly visible to the
public from outside the premises.
Penalty: 10 penalty units.
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43
Act No.
(3) A pawnbroker who advances money on the
security of goods received in pawn must
serve on the owner of the goods written
notice of the charge that will be imposed on
5 the transaction.
(4) Subject to sub-section (5), a pawnbroker
must not charge on a pawn transaction an
amount more than an amount calculated in
accordance with the amount displayed on a
10 notice under sub-section (2)(b).
Penalty: 20 penalty units.
(5) A pawnbroker may charge an amount more
than an amount calculated in accordance
with the amount displayed under sub-section
15 (2)(b) if--
(a) it is reasonable to do so because the
pawnbroker is likely to incur additional
storage costs in relation to the goods
being pawned; or
20 (b) it is reasonable to do so because the
agreement provides for amounts to be
paid less frequently than is specified in
the notice under sub-section (2); or
(c) the regulations so provide--
25 and--
(d) the notice referred to in sub-section (3)
specifies the reason why the higher
charge is made; and
(e) the owner of the goods agrees in
30 writing to the higher charge; and
(f) the pawnbroker serves on the owner of
the goods a copy of the agreement
referred to in paragraph (e).".
43. Insertion of new sections 24A and 24B
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Act No.
After section 24 of the Principal Act insert--
"24A. Offence of failing to comply with court
order
A person to whom an order of the
5 Magistrates' Court under section 24 is
directed must comply with the order.
Penalty: 50 penalty units.
24B. Sign to be displayed
A second-hand dealer or pawnbroker must
10 cause a notice in the form in the Schedule, in
legible letters not less than 15 millimetres in
height and of a colour that contrasts with the
background colour of the notice, to be
displayed in a prominent place in each
15 business premises of the dealer or
pawnbroker to which the public has access
so that the notice is clearly visible to the
public.
Penalty: 10 penalty units.".
20 44. Police powers of inspection
In section 25 of the Principal Act, for sub-section
(1) substitute--
"(1) A member of the police force may, without
warrant, enter business premises or storage
25 premises occupied by or under the control of
a second-hand dealer or pawnbroker at any
time when the business premises are open
and may inspect the premises or any goods at
the premises.".
30 45. Service
In section 27(2) of the Principal Act, for "sections
528, 529 and 530 of the Companies (Victoria)
Code" substitute "the provisions of the
Corporations Law with respect to service".
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46. Substitution of section 28
For section 28 of the Principal Act substitute--
"28. Delegation
The Secretary may, by instrument, delegate
5 to a person employed in the Department of
Justice under Part 2 of the Public Sector
Management Act 1992 the powers and
functions of the Secretary under this Act,
other than this power of delegation.".
10 47. Evidentiary
In section 29(b) of the Principal Act, for sub-
paragraphs (i), (ii) and (iii) substitute--
"(i) a certificate issued by the Secretary stating
that at a particular time a person was or was
15 not registered under this Act is proof of that
fact; and
(ii) proof is not required that such a certificate
purporting to be issued by the Secretary was
so issued.".
20 48. Bodies corporate
In section 30(1) of the Principal Act, after "Act"
insert "or the regulations".
49. Regulation-making power
In section 31(1) of the Principal Act--
25 (a) for paragraph (a) substitute--
"(a) prescribing categories of documents as
to identity; and
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Act No.
(ab) prescribing particulars to be recorded in
the register; and";
(b) for paragraph (d) substitute--
"(d) fees; and";
5 (c) in paragraph (e), after "Act" insert "or the
regulations".
50. Repeal
(1) Section 27(3) of the Principal Act is repealed.
(2) Section 32 of the Principal Act is repealed.
10 51. Insertion of new section 36
After section 35 of the Principal Act insert--
"36. Licence applications
Part 2 of this Act (except section 11(2)) as in
force immediately before the commencement
15 of section 38 of the Law and Justice
Legislation Amendment Act 1997
continues to apply to applications for
licences under Part 2 that have been lodged
with a council but not determined before that
20 commencement.".
52. Insertion of Schedule
At the end of the Principal Act insert--
"SCHEDULE
Section 24B
25 ANY PERSON WHO BELIEVES THAT GOODS
STOLEN FROM THEM ARE AVAILABLE FOR SALE
ON THESE PREMISES IS NOT OBLIGED TO BUY
THEM BUT MAY--
(a) REQUEST THE POLICE TO SERVE A NOTICE
30 PROHIBITING THE ALTERATION OR
DISPOSAL OF THE GOODS FOR 21 DAYS; AND
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(b) SEEK AN ORDER FROM THE MAGISTRATES'
COURT FOR DELIVERY OF THE GOODS.
SEE SECTIONS 24 AND 26 OF THE SECOND-HAND
DEALERS AND PAWNBROKERS ACT 1989.".
5 _______________
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s. 53
Act No.
PART 10--SUMMARY OFFENCES ACT 1966
53. Criminal trespass
No. 7405. (1) In section 3 of the Summary Offences Act 1966,
Reprinted to
after the definition of "road" insert--
No. 23/1994.
5 ' "Scheduled public place" means a public place
described in Schedule 1;'.
(2) In section 9(1) of the Summary Offences Act
1966--
(a) in paragraph (d), for "place" (where first
10 occurring) substitute "public place other
than a Scheduled public place";
(b) at the end of paragraph (d) insert--
"; or
(e) without express or implied authority
15 given by the owner or occupier or given
on behalf of the owner or occupier by a
person authorised to give it or without
any other lawful excuse, wilfully enters
any private place or Scheduled public
20 place, unless for a legitimate purpose;
or
(f) neglects or refuses to leave a private
place or Scheduled public place after
being warned to do so by the owner or
25 occupier or a person authorised to give
that warning on behalf of the owner or
occupier, unless the person has a lawful
excuse; or
(g) without lawful excuse, enters any place
30 (whether private or public) in a manner
likely to cause a breach of the peace or
reasonable apprehension of a breach of
the peace--".
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(3) In section 9 of the Summary Offences Act 1966,
after sub-section (1A) insert--
"(1B) A person may commit an offence against
paragraph (d), (e), (f) or (g) of sub-section
5 (1) even though he or she did not intend to
take possession of the place.
(1C) Without limiting paragraph (e) of sub-
section (1), examples of circumstances in
which a person does not have express or
10 implied authority to enter a place are--
(a) the person enters that place after having
been previously warned not to enter by
the owner or occupier or a person
authorised to give such a warning on
15 behalf of the owner or occupier; or
(b) the person enters that place despite
being then warned not to enter by the
owner or occupier or a person
authorised to give such a warning on
20 behalf of the owner or occupier; or
(c) the person enters that place in breach of
a prominently displayed sign erected at
that place by the owner or occupier or a
person authorised to erect such a sign
25 on behalf of the owner or occupier
stating that--
(i) the person concerned, or a class of
persons of which the person
concerned is a member, is
30 prohibited from entering that
place; or
(ii) persons engaging in that place in
the type of activity in which the
person concerned is proposing to
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s. 54
Act No.
engage in that place are prohibited
from entering that place--
and the person has no other lawful excuse for
entering that place.
5 (1D) A warning may be given to a person under
sub-section (1)(f) or sub-section (1C)(a) or
(b)--
(a) orally; or
(b) by delivering written notice of it
10 personally to the person; or
(c) except in the case of a warning under
sub-section (1)(f), by sending written
notice of it by certified mail addressed
to the person at his or her usual or last
15 known place of residence.
(1E) A person may commit an offence against
paragraph (g) of sub-section (1) even though
he or she had a right to enter that place in a
manner other than that described in that
20 paragraph.".
54. New section 62 inserted
After section 61 of the Summary Offences Act
1966 insert--
"62. Transitional provision
25 If on the commencement of section 55 of the
Law and Justice Legislation Amendment
Act 1997, section 57 of the Children's
Services Act 1996 is not in operation,
Schedule 1 to this Act has effect, until that
30 section comes into operation, as if item 2 of
that Schedule referred to a children's service
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s. 55
Act No.
centre within the meaning of Part XIA of the
Health Act 1958 that directly receives any
financial assistance from the State.".
55. New Schedule 1 inserted
5 At the end of the Summary Offences Act 1966
insert--
"SCHEDULE 1
SCHEDULED PUBLIC PLACES
1. Land used for the purposes of a State school within the meaning of the
10 Education Act 1958.
2. Premises or place where a children's service within the meaning of the
Children's Services Act 1996 operates in respect of which the Secretary
within the meaning of that Act provides grants, payments, subsidies or
other financial assistance.
15 3. Premises that are--
(a) a residential institution within the meaning of the Intellectually
Disabled Persons' Services Act 1986; or
(b) used to provide a residential program within the meaning of that
Act; or
20 (c) used by a registered residential service within the meaning of that
Act to provide residential services to eligible persons within the
meaning of that Act.
4. Premises that are an approved mental health service within the meaning
of the Mental Health Act 1986.
25 5. Land held or managed by the trustees of a public cemetery to which the
Cemeteries Act 1958 applies.".
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Notes
Act No.
NOTES
1
Division 3 of Part 4 of the Magistrates' Court Act 1989 contains
provisions for the issuing of warrants. Section 57(2) of that Act provides
that all warrants, other than a search warrant, may be issued by a registrar
or a magistrate.
By Authority. Government Printer for the State of Victoria.
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