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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Magistrates' Court (Koori Court) Act 2002
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purposes 1
2. Commencement 2
3. Principal Act 2
4. Definitions 3
5. New section 3A inserted 3
3A. Meaning of "family member" 3
6. New sections 4D to 4G inserted 6
4D. Establishment of Koori Court Division 6
4E. Jurisdiction of Koori Court Division 7
4F. Circumstances in which Koori Court Division may
deal with certain offences 7
4G. Sentencing procedure in Koori Court Division 8
7. New section 17A inserted 10
17A. Appointment of Aboriginal elders or respected
persons 10
8. New section 144 inserted 10
144. Rules of court--Koori Court Division 10
9. Transitional provision 11
10. Repeal of Koori Court Division provisions 11
ENDNOTES 12
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PARLIAMENT OF VICTORIA
Initiated in Assembly 23 April 2002
A BILL
to amend the Magistrates' Court Act 1989 to establish a Koori Court
Division of the Magistrates' Court, to provide for the jurisdiction and
procedure of that Division and for other purposes.
Magistrates' Court (Koori Court) Act
2002
The Parliament of Victoria enacts as follows:
1. Purposes
The purposes of this Act are--
(a) to establish a Koori Court Division of the
Magistrates' Court; and
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(b) to provide for the jurisdiction and procedure
of that Division--
with the objective of ensuring greater participation
of the Aboriginal community in the sentencing
5 process of the Magistrates' Court through the role
to be played in that process by the Aboriginal
elder or respected person and others.
2. Commencement
(1) This Act (other than section 10) comes into
10 operation on the day after the day on which it
receives the Royal Assent.
(2) Subject to sub-section (3), section 10 comes into
operation on a day to be proclaimed.
(3) If section 10 does not come into operation before
15 1 July 2005, it comes into operation on that day.
3. Principal Act
See:
In this Act, the Magistrates' Court Act 1989 is Act No.
called the Principal Act. 51/1989.
Reprint No. 7
as at
1 June 2001
and
amending
Act Nos
53/2000,
92/2000,
98/2000,
99/2000 (as
amended by
No. 12/2001),
2/2001,
14/2001,
32/2001,
44/2001,
45/2001,
61/2001,
69/2001,
92/2001,
2/2002 and
4/2002.
LawToday:
www.dms.
dpc.vic.
gov.au
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4. Definitions
In section 3(1) of the Principal Act insert the
following definitions--
' "Aboriginal elder or respected person" means
5 a person who holds office as an Aboriginal
elder or respected person under section 17A;
"Aborigine" means a person who--
(a) is descended from an Aborigine or
Torres Strait Islander; and
10 (b) identifies as an Aborigine or Torres
Strait Islander; and
(c) is accepted as an Aborigine or Torres
Strait Islander by an Aboriginal or
Torres Strait Island community;
15 "family member" has the meaning given by
section 3A;
"Koori Court officer" means a person who--
(a) is employed under Part 3 of the Public
Sector Management and
20 Employment Act 1998; and
(b) exercises powers or performs functions
in relation to the Koori Court Division
of the Court;'.
5. New section 3A inserted
25 After section 3 of the Principal Act insert--
'3A. Meaning of "family member"
(1) In this Act, "family member" of a person
means--
(a) the spouse or domestic partner of the
30 person; or
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(b) a person who has or has had an intimate
personal relationship with the person;
or
(c) a person who is or has been a relative
5 of the person; or
(d) a child who normally or regularly
resides with the person; or
(e) a child of whom the person is a
guardian; or
10 (f) another person who is or has been
ordinarily a member of the household
of the person.
(2) For the purposes of the definition of "family
member" in sub-section (1)--
15 (a) "domestic partner" of a person means
an adult person to whom the person is
not married but with whom the person
is in a relationship as a couple where
one or each of them provides personal
20 or financial commitment and support of
a domestic nature for the material
benefit of the other, irrespective of their
genders and whether or not they are
living under the same roof, but does not
25 include a person who provides
domestic support and personal care to
the person--
(i) for fee or reward; or
(ii) on behalf of another person or an
30 organisation (including a
government or government
agency, a body corporate or a
charitable or benevolent
organisation);
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(b) "parent" of a child includes a guardian
of the child or a person with whom the
child normally or regularly resides;
(c) "relative" of a person means--
5 (i) a father, mother, grandfather,
grandmother, step-father, step-
mother, father-in-law or mother-
in-law of the person; or
(ii) a son, daughter, grandson,
10 granddaughter, step-son, step-
daughter, son-in-law or daughter-
in-law of the person; or
(iii) a brother, sister, half-brother, half-
sister, brother-in-law or sister-in-
15 law of the person; or
(iv) an uncle, aunt, uncle-in-law or
aunt-in-law of the person; or
(v) a nephew or niece of the person;
or
20 (vi) a cousin of the person--
and includes, in the case of domestic
partners, a person who would be such a
relative if the domestic partners were
married to each other;
25 (d) "spouse" of a person means a person
to whom the person is or was married.
(3) For the purposes of the definition of
"domestic partner" in sub-section (2)--
(a) in determining whether persons are
30 domestic partners of each other, all the
circumstances of their relationship are
to be taken into account, including any
one or more of the matters referred to in
section 275(2) of the Property Law
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Act 1958 as may be relevant in a
particular case;
(b) a person is not a domestic partner of
another person only because they are
5 co-tenants.'.
6. New sections 4D to 4G inserted
Before section 5 of the Principal Act insert--
"4D. Establishment of Koori Court Division
(1) The Court has a Koori Court Division.
10 (2) The Koori Court Division has such of the
powers of the Court as are necessary to
enable it to exercise its jurisdiction.
(3) Despite anything to the contrary in this Act,
the Koori Court Division may only sit and
15 act at a venue of the Court specified by the
Chief Magistrate by notice published in the
Government Gazette.
(4) The Koori Court Division must exercise its
jurisdiction with as little formality and
20 technicality, and with as much expedition, as
the requirements of this Act and the
Sentencing Act 1991 and the proper
consideration of the matters before the Court
permit.
25 (5) The Koori Court Division must take steps to
ensure that, so far as practicable, any
proceeding before it is conducted in a way
which it considers will make it
comprehensible to--
30 (a) the defendant; and
(b) a family member of the defendant; and
(c) any member of the Aboriginal
community who is present in court.
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(6) Subject to this Act, the regulations and the
rules, the Koori Court Division may regulate
its own procedure.
4E. Jurisdiction of Koori Court Division
5 The Koori Court Division has--
(a) the jurisdiction to deal with a
proceeding for an offence given to it by
section 4F; and
(b) jurisdiction to deal with a breach of a
10 sentencing order made by it (including
any offence constituted by such a
breach) or variation of such a
sentencing order; and
(c) any other jurisdiction given to it by or
15 under this or any other Act.
4F. Circumstances in which Koori Court
Division may deal with certain offences
(1) The Koori Court Division only has
jurisdiction to deal with a proceeding for an
20 offence (other than an offence constituted by
a breach of a sentencing order made by it)
if--
(a) the defendant is Aboriginal; and
(b) the offence is within the jurisdiction of
25 the Magistrates' Court, other than--
(i) a sexual offence as defined in
section 6B(1) of the Sentencing
Act 1991; or
(ii) an offence against section 22 of
30 the Crimes (Family Violence)
Act 1987 (breach of intervention
order or interim intervention
order) or an offence arising out of
the same conduct as that out of
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which the offence against
section 22 arose; and
(c) the defendant--
(i) intends to plead guilty to the
5 offence; or
(ii) pleads guilty to the offence; or
(iii) intends to consent to the
adjournment of the proceeding to
enable him or her to participate in
10 a diversion program; and
(d) the defendant consents to the
proceeding being dealt with by the
Koori Court Division.
(2) Subject to and in accordance with the rules--
15 (a) a proceeding may be transferred to the
Koori Court Division, whether sitting at
the same or a different venue; and
(b) the Koori Court Division may transfer a
proceeding (including a proceeding
20 transferred to it under paragraph (a)) to
the Court, sitting other than as the
Koori Court Division, at the same or a
different venue.
(3) Despite anything to the contrary in this Act,
25 if a proceeding is transferred from one venue
of the Court to another, the transferee venue
is the proper venue of the Court for the
purposes of this Act.
4G. Sentencing procedure in Koori Court
30 Division
(1) This section applies to the Koori Court
Division when it is considering which
sentencing order to make in respect of a
defendant.
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(2) The Koori Court Division may consider any
oral statement made to it by an Aboriginal
elder or respected person.
(3) The Koori Court Division may inform itself
5 in any way it thinks fit, including by
considering a report prepared by, or a
statement or submission prepared or made to
it by, or evidence given to it by--
(a) a Koori Court officer employed as an
10 Aboriginal justice worker; or
(b) a community corrections officer
appointed under Part 4 of the
Corrections Act 1986; or
(c) a health service provider; or
15 (d) a victim of the offence; or
(e) a family member of the defendant; or
(f) anyone else whom the Koori Court
Division considers appropriate.
(4) Nothing in this section affects the
20 requirement to observe the rules of natural
justice.
(5) This section does not limit--
(a) any other power conferred on the Court
by or under this or any other Act; or
25 (b) any other specific provision made by or
under this or any other Act for the
making of any report, statement or
submission, or the giving of any
evidence, to the Court for the purpose
30 of assisting it in determining sentence.".
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7. New section 17A inserted
After section 17 of the Principal Act insert--
"17A. Appointment of Aboriginal elders or
respected persons
5 (1) The Secretary may appoint a person who is a
member of the Aboriginal community as an
Aboriginal elder or respected person for the
purpose of performing functions in relation
to the Koori Court Division of the Court as
10 set out in this Act.
(2) An Aboriginal elder or respected person
holds office for the period, and on the terms
and conditions, determined by the Secretary
and specified in the instrument of
15 appointment.
(3) An Aboriginal elder or respected person may
resign from office by writing signed by him
or her and delivered to the Secretary.".
8. New section 144 inserted
20 In Part 7 of the Principal Act, after section 143
insert--
'144. Rules of court--Koori Court Division
(1) The Chief Magistrate together with 2 or
more Deputy Chief Magistrates may jointly
25 make rules of court for or with respect to--
(a) any matter relating to the practice and
procedure of the Koori Court Division
of the Court; and
(b) the transfer of proceedings to and from
30 the Koori Court Division of the Court.
(2) Sub-sections (3) to (5) of section 142 apply
to a power conferred by sub-section (1) and
to rules made under that sub-section as if--
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(a) any reference in those sub-sections to
"sub-section (1)" were a reference to
sub-section (1) of this section; and
(b) sub-section (4)(c) did not contain the
5 word "committal".'.
9. Transitional provision
In Schedule 8 to the Principal Act, at the end of
the Schedule insert--
"28. The amendments of this Act made by section 6 of the
10 Magistrates' Court (Koori Court) Act 2002 apply
with respect to a proceeding for an offence,
irrespective of when the offence was committed or the
proceeding commenced.".
10. Repeal of Koori Court Division provisions
15 (1) In section 3(1) of the Principal Act, the definitions
of "Aboriginal elder or respected person",
"Aborigine", "family member" and "Koori Court
officer" are repealed.
(2) Sections 3A, 4D, 4E, 4F, 4G, 17A and 144 of the
20 Principal Act are repealed.
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Magistrates' Court (Koori Court) Act 2002
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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