MAGISTRATES' COURT (JUDICIAL REGISTRARS AND COURT RULES) BILL 2005
PARLIAMENT OF VICTORIA Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. TABLE OF PROVISIONS Clause Page PART 1--PRELIMINARY 2 1. Purposes 2 2. Commencement 2 PART 2--MAGISTRATES' COURT JUDICIAL REGISTRARS 3 3. Definition 3 4. Judicial registrar may constitute Magistrates' Court 3 5. New Part 2A inserted in the Magistrates' Court Act 1989 4 PART 2A--JUDICIAL REGISTRARS 4 16B. Guidelines relating to the appointment of judicial registrars 4 16C. Appointment of judicial registrars 5 16D. Terms and conditions of appointment 6 16E. Resignation from office 6 16F. Suspension from office 7 16G. Investigation of judicial registrar 7 16H. Removal of judicial registrar from office 9 16I. Rules of Court 9 16J. Performance of duties by judicial registrar 10 16K. Review of decisions of judicial registrar 10 6. Amendment of Magistrates' Court Act 1989 consequential on Legal Profession Act 2004 11 PART 3--RULES OF COURT IN THE MAGISTRATES' COURT 12 7. Amendment of section 16 of the Magistrates' Court Act 1989 12 8. Repeal of certain regulation-making powers in section 140 of the Magistrates' Court Act 1989 16 9. Other consequential amendments 16 i 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Clause Page 10. Transitional provision 17 11. Consequential amendments 18 ENDNOTES 19 ii 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
PARLIAMENT OF VICTORIA A BILL to amend the Magistrates' Court Act 1989 so as to provide for the appointment of, and the powers exercisable by, judicial registrars in the Magistrates' Court and for the making of rules of court in relation to criminal proceedings in the Magistrates' Court and for other purposes. Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 The Parliament of Victoria enacts as follows: 1 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 1--Preliminary s. 1 PART 1--PRELIMINARY 1. Purposes The purposes of this Act are-- (a) to provide for the appointment of, and the powers exercisable by, judicial registrars in 5 the Magistrates' Court; and (b) to provide for the making of rules of court in relation to criminal proceedings in the Magistrates' Court. 2. Commencement 10 (1) This Act (other than section 6) comes into operation on the day after the day on which it receives the Royal Assent. (2) Section 6 comes into operation on the day on which item 63 in Schedule 1 to the Legal 15 Profession (Consequential Amendments) Act 2005 comes into operation. __________________ 2 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 2--Magistrates' Court Judicial Registrars s. 3 PART 2--MAGISTRATES' COURT JUDICIAL REGISTRARS 3. Definition See: Insert the following definition in section 3(1) of Act No. the Magistrates' Court Act 1989-- 51/1989. Reprint No. 10 ' "judicial registrar" means a judicial registrar of 5 as at 13 October the Court appointed under section 16C;'. 2004 and 4. Judicial registrar may constitute Magistrates' Court amending Act Nos (1) In section 4(2) of the Magistrates' Court Act 27/2002, 1989, after "magistrates" insert ", the judicial 80/2003, 94/2003, registrars of the court". 10 68/2004, 77/2004, (2) After section 4(3) of the Magistrates' Court Act 107/2004, 108/2004, 1989 insert-- 2/2005 and 3/2005. "(3AA) Without limiting sub-section (3), the Court LawToday: may be constituted by a judicial registrar in www.dms. dpc.vic. the case of any proceeding for which 15 gov.au provision is made by rules of court for-- (a) the Court to be so constituted; and (b) the delegation to judicial registrars of powers of the Court to hear and determine the proceeding.". 20 (3) After section 4(3A) of the Magistrates' Court Act 1989 insert-- "(3AB) Nothing in sub-section (3A) prevents the Industrial Division being constituted by a judicial registrar in accordance with sub- 25 section (3AA).". (4) After section 4A(3) of the Magistrates' Court Act 1989 insert-- "(3A) Nothing in sub-section (3) prevents the Drug Court Division being constituted by a 30 judicial registrar in accordance with section 4(3AA).". 3 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 2--Magistrates' Court Judicial Registrars s. 5 (5) After section 4H(3) of the Magistrates' Court Act 1989 insert-- "(3A) Nothing in sub-section (3) prevents the Family Violence Court Division being constituted by a judicial registrar in 5 accordance with section 4(3AA).". 5. New Part 2A inserted in the Magistrates' Court Act 1989 After Part 2 of the Magistrates' Court Act 1989 insert-- 10 "PART 2A--JUDICIAL REGISTRARS 16B. Guidelines relating to the appointment of judicial registrars (1) The Chief Magistrate may, in consultation with the Attorney-General-- 15 (a) prepare guidelines relating to the appointment of judicial registrars of the Court; and (b) from time to time amend or revoke any guidelines prepared under 20 paragraph (a). (2) The Chief Magistrate must, as soon as practicable after preparing, amending or revoking any guidelines under sub- section (1), cause a copy of the guidelines or 25 the amendment or notice of the revocation (as the case requires) to be given to the Attorney-General. 4 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 2--Magistrates' Court Judicial Registrars s. 5 16C. Appointment of judicial registrars (1) The Chief Magistrate may, at any time, having regard to any guidelines in force under section 16B(1), recommend to the Attorney-General that a judicial registrar, or 5 more than one judicial registrar, of the Court be appointed by the Governor in Council. (2) The Attorney-General, on receiving a recommendation under sub-section (1), may recommend to the Governor in Council that a 10 judicial registrar, or more than one judicial registrar, of the Court be appointed by him or her under sub-section (3). (3) The Governor in Council, on the recommendation of the Attorney-General, 15 may appoint a person as a judicial registrar of the Court for the period, not exceeding 5 years, specified in his or her instrument of appointment. (4) A person is not eligible for appointment as a 20 judicial registrar unless he or she is-- (a) admitted to legal practice in Victoria, another State, the Northern Territory or the Australian Capital Territory; or (b) enrolled as a legal practitioner of the 25 High Court of Australia. (5) A judicial registrar may be appointed on a full-time or part-time basis. (6) A judicial registrar, although not appointed on a part-time basis, may, by agreement in 30 writing entered into with the Chief Magistrate, undertake the duties of a judicial registrar on a part-time basis. (7) A judicial registrar is eligible for re- appointment. 35 5 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 2--Magistrates' Court Judicial Registrars s. 5 (8) The Public Administration Act 2004 does not apply to a judicial registrar in respect of the office of judicial registrar. 16D. Terms and conditions of appointment (1) A judicial registrar is entitled to receive the 5 remuneration and allowances that are fixed in respect of him or her from time to time by the Governor in Council. (2) Except with the approval of the Attorney- General, a judicial registrar must not engage 10 in legal practice, undertake paid employment or conduct a business, trade or profession of any kind. (3) A judicial registrar must disclose to the Chief Magistrate in writing any direct or indirect 15 pecuniary interest that he or she has or acquires that could conflict with the proper performance of the duties of the office of judicial registrar. (4) Despite any provision to the contrary made 20 by or under any other Act, a person who has held the office of judicial registrar is entitled to have his or her service in that office taken into account in computing the period of service which entitles public officials (within 25 the meaning of the Public Administration Act 2004) to be granted long service leave or other leave entitlements, whether his or her service in the office of judicial registrar is before or after any period of service as such 30 a public official. 16E. Resignation from office A judicial registrar may resign from office by delivering to the Governor a signed letter of resignation. 35 6 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 2--Magistrates' Court Judicial Registrars s. 5 16F. Suspension from office (1) The Chief Magistrate, with the approval of the Attorney-General, may suspend a judicial registrar from office, if the Chief Magistrate believes that there may be grounds for 5 removal of the judicial registrar from office. (2) A judicial registrar who is suspended under this section remains entitled to his or her remuneration and allowances as judicial registrar during the period of suspension. 10 16G. Investigation of judicial registrar (1) As soon as practicable after the Chief Magistrate suspends a judicial registrar from office under section 16F, the Attorney- General must appoint a person nominated by 15 the Chief Magistrate to undertake an investigation into the judicial registrar's conduct. (2) A person appointed under sub-section (1) must-- 20 (a) investigate the judicial registrar's conduct; and (b) report to the Attorney-General on the investigation; and (c) give a copy of the report to the judicial 25 registrar and the Chief Magistrate. (3) A report under sub-section (2)(b) may include a recommendation that the judicial registrar be removed from office. 7 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 2--Magistrates' Court Judicial Registrars s. 5 (4) After receiving a report under sub-section (2)(b) recommending removal, the Attorney- General, after consulting the Chief Magistrate, may recommend to the Governor in Council that the judicial registrar be 5 removed from office. (5) The person who conducted the investigation and the Attorney-General may only recommend that a judicial registrar be removed on the ground of proved 10 misbehaviour or incapacity. (6) The Attorney-General must not make a recommendation under sub-section (4) unless the judicial registrar has been given a reasonable opportunity to make written and 15 oral submissions to the person who conducted the investigation and the Chief Magistrate. (7) In making a recommendation under sub- section (4), the Attorney-General is entitled 20 to rely on any findings contained in the report under sub-section (2). (8) If the Attorney-General decides not to make a recommendation under sub-section (4)-- (a) the Attorney-General must inform the 25 Chief Magistrate as soon as practicable after receiving the report under sub- section (2)(b); and (b) the Chief Magistrate must lift the suspension. 30 8 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 2--Magistrates' Court Judicial Registrars s. 5 16H. Removal of judicial registrar from office The Governor in Council may remove a judicial registrar from office on the recommendation of the Attorney-General under section 16G but not otherwise. 5 16I. Rules of Court The Chief Magistrate together with 2 or more Deputy Chief Magistrates may jointly make rules of court for or with respect to-- (a) the prescription of the proceedings or 10 class of proceedings which may be dealt with by the Court constituted by a judicial registrar; (b) delegating to the judicial registrars all or any of the powers of the Court 15 except the power-- (i) to impose a sentence of imprisonment or of detention in a youth training centre or youth residential centre; or 20 (ii) to make an intensive correction order within the meaning of the Sentencing Act 1991; or (iii) to make a drug treatment order within the meaning of the 25 Sentencing Act 1991; or (iv) to make a hospital security order within the meaning of the Mental Health Act 1986; or (v) to hear and determine an appeal 30 made to the Court. 9 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 2--Magistrates' Court Judicial Registrars s. 5 16J. Performance of duties by judicial registrar (1) A judicial registrar must not hear, or continue to hear, a proceeding that the judicial registrar considers for any reason 5 inappropriate for hearing and determination by the Court constituted by a judicial registrar and must make appropriate arrangements for the proceeding to be heard and determined by the Court constituted by a 10 magistrate. (2) A judicial registrar, in the performance of his or her duties as a judicial registrar, is not subject to the direction or control of any person or body. 15 (3) A judicial registrar has, in the performance of his or her duties as a judicial registrar, the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge. 20 16K. Review of decisions of judicial registrar (1) The Court constituted by a magistrate may direct that the hearing and determination of a proceeding by the Court constituted by a judicial registrar be reviewed by the Court 25 constituted by a magistrate. (2) A direction may be given under sub- section (1) at the request of a party to the proceeding or by the Court of its own motion. 30 (3) A review under this section is to be conducted as a hearing de novo.". 10 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 2--Magistrates' Court Judicial Registrars s. 6 6. Amendment of Magistrates' Court Act 1989 consequential on Legal Profession Act 2004 For section 16C(4)(a) of the Magistrates' Court Act 1989 substitute-- "(a) an Australian lawyer within the meaning of 5 the Legal Profession Act 2004; or". __________________ 11 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 3--Rules of Court in the Magistrates' Court s. 7 PART 3--RULES OF COURT IN THE MAGISTRATES' COURT 7. Amendment of section 16 of the Magistrates' Court Act 1989 (1) Insert the following heading to section 16 of the 5 Magistrates' Court Act 1989-- "Rules of Court". (2) After section 16(1) of the Magistrates' Court Act 1989 insert-- "(1A) The Chief Magistrate together with 2 or 10 more Deputy Chief Magistrates may jointly make rules of court for or with respect to the following-- (a) prescribing by scale or otherwise the costs of and incidental to criminal 15 proceedings in the Court; (b) prescribing a method for the electronic filing of charges; (c) the form in which process may be issued out of the Court and the manner 20 in which it may be authenticated, stored, transmitted or otherwise dealt with; (d) the manner in which orders may be authenticated; 25 (e) any matter relating to the practice and procedure of the Koori Court Division of the Court; (f) the transfer of proceedings to and from the Koori Court Division of the Court; 30 12 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 3--Rules of Court in the Magistrates' Court s. 7 (g) any matter relating to the practice and procedure of the Family Violence Court Division of the Court; (h) the transfer of proceedings to and from the Family Violence Court Division of 5 the Court; (i) the procedure to be followed on a proceeding held under an order made under section 56A; (j) any matter relating to the practice and 10 procedure of the Court in committal proceedings; (k) without limiting paragraph (j), steps or processes in the course of a committal proceeding, the purpose or objective of 15 any such step or process, the prescription of time limits in relation to the taking of any such step or process and the procedure applicable to that step or process; 20 (l) forms to be used in committal proceedings; (m) prescribing the venue of the Court at which any particular proceeding or class of proceeding or procedure set out 25 in Schedule 7 is to be brought; (n) prescribing the rules, practice and procedure applicable to the execution of a warrant to seize property issued for the enforcement of an order made by 30 the Court in a criminal proceeding; 13 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 3--Rules of Court in the Magistrates' Court s. 7 (o) the storage, disposal or destruction of documents-- (i) filed or lodged with the appropriate registrar in criminal proceedings; or 5 (ii) issued out of the Court in criminal proceedings and kept by the principal registrar; (p) requirements for the purposes of Part IIA of the Evidence Act 1958 for 10 or with respect to-- (i) the form of audio visual or audio link; (ii) the equipment, or class of equipment, used to establish the 15 link; (iii) the layout of cameras; (iv) the standard, or speed, of transmission; (v) the quality of communication; 20 (vi) any other matter relating to the link; (q) applications to the Court under Division 2 or 3 of Part IIA of the Evidence Act 1958; 25 (r) any matter relating to the practice and procedure of the Court under Part IIA of the Evidence Act 1958; (s) the forms to be used in criminal proceedings; 30 (t) prescribing the manner of service of any document in a criminal proceeding; 14 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 3--Rules of Court in the Magistrates' Court s. 7 (u) the recording of proceedings in the Court; (v) generally, any matter relating to the practice and procedure of the Court in criminal proceedings. 5 (1B) Without limiting any other power to make rules of court conferred by this or any other Act, the Chief Magistrate together with 2 or more Deputy Chief Magistrates may jointly make rules of court for or with respect to 10 generally prescribing any matter or thing required or permitted by this Act to be prescribed by rules of court or necessary to be prescribed by rules of court to give effect to this Act. 15 (1C) In exercising a power conferred by sub- section (1A)(j), (k) or (l) to make rules, the Chief Magistrate and the Deputy Chief Magistrates must have regard to the interests of the community in ensuring the prompt and 20 efficient disposal of criminal proceedings. (1D) A power conferred by this Act to make rules may be exercised-- (a) either in relation to all cases to which the power extends, or in relation to all 25 those cases subject to specified exceptions, or in relation to any specified case or class of case; and (b) so as to make, as respects the cases in relation to which it is exercised-- 30 (i) the same provision for all cases in relation to which the power is exercised, or different provisions for different cases or classes of case, or different provisions for 35 15 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 3--Rules of Court in the Magistrates' Court s. 8 the same case or class of case for different purposes; or (ii) any such provision either unconditionally or subject to any specified condition. 5 (1E) Rules made under this Act may be made so as to-- (a) require a matter affected by the rules to be approved by or to the satisfaction of a specified court official or a specified 10 class of court official; and (b) confer a discretionary authority or impose a duty on a specified person or a specified class of person; and (c) provide in a specified case or class of 15 case for the exemption of proceedings or a class of proceeding from any of the provisions of the rules, whether unconditionally or on specified conditions and either wholly or to such 20 an extent as is specified.". 8. Repeal of certain regulation-making powers in section 140 of the Magistrates' Court Act 1989 In section 140(1) of the Magistrates' Court Act 1989, paragraphs (ab), (ca), (d), (da), (i), (j), (k), 25 (l) and (la) are repealed. 9. Other consequential amendments (1) Section 16(4) of the Magistrates' Court Act 1989 is repealed. (2) Sections 141 to 145 of the Magistrates' Court 30 Act 1989 are repealed. 16 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 3--Rules of Court in the Magistrates' Court s. 10 10. Transitional provision At the end of Schedule 8 to the Magistrates' Court Act 1989 insert-- "34. (1) Subject to sub-clauses (2) and (3), the 5 amendments of section 140 of this Act made by section 8 of the Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 do not affect the operation of any regulations made under that section of this Act. 10 (2) If, but for sub-clause (1), a provision of the regulations made under section 140 would cease to have effect because of the repeal of the power conferred by that section to make the provision, the provision continues in operation 15 until it is revoked or the first anniversary of the commencement of section 8 of the Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 (whichever first occurs). 20 (3) A provision of the regulations made under section 140 is of no force or effect to the extent that it deals with a matter dealt with by a rule made under section 16(1A). (4) Despite the amendments of section 140 of this 25 Act made by section 8 of the Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 and without limiting any other power to make regulations conferred by this Act, the Governor in Council may, until the first 30 anniversary of the commencement of section 8 of the Magistrates' Court (Judicial Registrars and Court Rules) Act 2005, make regulations under that section revoking any provision of the regulations made under a 35 power conferred by that section that is repealed by those amendments.". 17 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Part 3--Rules of Court in the Magistrates' Court s. 11 11. Consequential amendments (1) In section 24(2) of the Children and Young Persons Act 1989 for "regulations" substitute "rules". (2) In section 68(1) of the Sentencing Act 1991-- 5 (a) for "and the County Court Act 1958 and the power to make regulations under the Magistrates' Court Act 1989" substitute ", the County Court Act 1958 and the Magistrates' Court Act 1989"; 10 (b) omit "or regulations (as the case requires)". (3) In section 129H(4) of the Transport Act 1983 for "regulations" substitute "rules". 18 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005
Magistrates' Court (Judicial Registrars and Court Rules) Act 2005 Act No. Endnotes ENDNOTES By Authority. Government Printer for the State of Victoria. 19 551332B.I1-20/4/2005 BILL LA INTRODUCTION 20/4/2005