Justice Legislation Further Amendment Act 2016

Authorised by the Chief Parliamentary Counsel Authorised Version i Justice Legislation Further Amendment Act 2016 No. 3 of 2016 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 3 Part 2—Amendment of Magistrates' Court Act 1989 4 3 Appointment of Aboriginal elders or respected persons 4 4 Warrants 4 5 Issue of warrant to arrest 5 6 Search warrants 5 7 New clause 54 of Schedule 8 inserted 6 Part 3—Amendment of Children, Youth and Families Act 2005 7 8 New section 528B inserted 7 9 Appointment of Aboriginal elders or respected persons 8 10 New section 625 inserted 8 Part 4—Amendment of County Court Act 1958 9 11 Appointment of Aboriginal elders or respected persons 9 12 New section 100 inserted 9 Part 5—Amendment of Court Security Act 1980 10 13 Definitions 10 Part 6—Amendment of Victims of Crime Assistance Act 1996 11 14 Form of application 11 Part 7—Amendment of Victorian Civil and Administrative Tribunal Act 1998 12 15 Presumption of order for reimbursement of fees to successful party in certain proceedings 12 16 New section 169 inserted 12 17 Constitution of Tribunal 12 Part 8—Amendments relating to superannuation 13 Division 1—Magistrates' Court Act 1989 13 18 Section 10 amended 13 -- 1 of 62 -- Section Page ii Authorised by the Chief Parliamentary Counsel 19 Salaries and allowances of magistrates 14 20 Reserve magistrates 15 21 New Part 3 of Schedule 1 inserted 16 Division 2—Supreme Court Act 1986 18 22 New section 113GA inserted 18 Division 3—Coroners Act 2008 19 23 Appointment of coroners 19 Part 9—Amendments relating to dual commission holders 20 Division 1—County Court Act 1958 20 24 Definitions 20 25 Appointment and qualification of judges 20 26 New section 8AA inserted 21 27 Salaries and allowances of the Chief Judge and other judges 21 28 Provision for pensions to County Court judges and their partners 23 29 Professional development and training 25 30 Council of Judges 25 31 New section 101 inserted 25 Division 2—Magistrates' Court Act 1989 26 32 Definitions 26 33 Appointment of magistrates 27 34 Salaries 28 35 Pension of Chief Magistrate 28 36 Council of magistrates 29 37 Warrants 29 38 New section 110A inserted 30 Division 3—Constitution Act 1975 30 39 Qualification and appointment of Judges 30 40 Commissions of Judges 30 41 New section 81K inserted 31 42 Salaries, allowances and pensions of Judges of the Supreme Court 31 43 As to pensions of Judges of the Supreme Court and their partners and children 32 44 Judges not to hold any other place of profit 33 Division 4—Supreme Court Act 1986 33 45 Power to make Rules 33 46 Council of Judges 34 47 Professional development and training 34 -- 2 of 62 -- Section Page iii Authorised by the Chief Parliamentary Counsel Division 5—Judicial Entitlements Act 2015 34 48 Salary entitlements of judicial officers 34 49 Conditions of service of judicial officers 34 50 Certificates under section 15 of the Judicial Remuneration Tribunal Act 1995 35 Division 6—Children, Youth and Families Act 2005 35 51 Appeal to County Court or Supreme Court 35 52 Right of appeal 35 53 DPP's right of appeal against sentence 35 54 DPP's right of appeal—failure to fulfil undertaking 35 55 New section 513B inserted 36 Division 7—Sentencing Act 1991 36 56 Fixing of non-parole period otherwise than by sentencing court 36 57 Appeals 36 Division 8—Independent Broad-based Anti-corruption Commission Act 2011 37 58 Definitions 37 Division 9—Interpretation of Legislation Act 1984 38 59 Definitions 38 Division 10—Criminal Procedure Act 2009 38 60 Definitions 38 61 Right of appeal 38 62 How appeal is commenced 39 63 Determination of appeal 40 64 DPP's right of appeal against sentence 40 65 How appeal is commenced 41 66 Determination of DPP's appeal 41 67 DPP's right of appeal—failure to fulfil undertaking 42 68 How appeal is commenced 42 69 Determination of DPP's appeal—failure to fulfil undertaking 42 70 Late notice of appeal deemed to be application for leave to appeal 42 71 Abandonment of appeal 43 72 Applicant's failure to appear 44 73 Respondent's failure to appear on appeal by DPP 44 74 Appeal against aggregate sentence 45 75 Appeal to County Court authorised by other Acts 45 76 Right of appeal against sentence of imprisonment imposed by County Court on appeal from Magistrates' Court 45 77 How appeal is commenced 45 -- 3 of 62 -- Section Page iv Authorised by the Chief Parliamentary Counsel 78 Determination of application for leave to appeal under section 283 45 79 Determination of appeal 45 80 Determination of appeal 46 81 Reservation of question of law on appeal to County Court 46 82 DPP may refer point of law to Court of Appeal 47 83 Costs on appeal to County Court 47 84 Costs on abandonment of appeal to County Court 48 Division 11—Family Violence Protection Act 2008 48 85 Court to which appeal must be made 48 86 Conduct of appeal 48 Division 12—Personal Safety Intervention Orders Act 2010 49 87 Court to which appeal must be made 49 88 Conduct of appeal 49 Division 13—Land Act 1958 49 89 Appeals 49 Division 14—Maintenance Act 1965 50 90 Notice of appeal and application of appeal provisions of the Magistrates' Court Act 1989 50 Division 15—Liquor Control Reform Act 1998 50 91 Property forfeited 50 Division 16—Fisheries Act 1995 51 92 Additional penalties for licence holders committing offences 51 Division 17—Disability Act 2006 51 93 Appeals regarding extended leave 51 Division 18—Gambling Regulation Act 2003 51 94 Forfeiture 51 Division 19—Judgment Debt Recovery Act 1984 52 95 Persistent wilful default 52 Division 20—Catchment and Land Protection Act 1994 52 96 Effect of finding of guilt for offence against section 18G 52 Division 21—Water Act 1989 52 97 Effect of finding of guilt for offence against section 109 52 -- 4 of 62 -- Section Page v Authorised by the Chief Parliamentary Counsel Division 22—Road Safety Act 1986 53 98 Appeal against disqualification, cancellation, suspension or variation by order of Magistrates' Court or Children's Court 53 99 Appeals against alcohol interlock condition direction or period specified in direction 53 Division 23—Serious Sex Offenders (Detention and Supervision) Act 2009 53 100 Secretary may apply for a supervision order 53 Division 24—Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 53 101 Appeal in relation to fitness to stand trial 53 102 Appeal against unconditional release 54 103 Appeal against mental impairment finding 54 104 Appeal against unconditional release 54 105 Appeal against supervision order 54 Part 10—Amendment of other Acts 55 Division 1—Coroners Act 2008 55 106 Access to documents 55 Division 2—Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 55 107 Variation of custodial supervision orders on application or review 55 Part 11—Repeal of amending Act 56 108 Repeal of amending Act 56 ═══════════════ Endnotes 57 1 General information 57 -- 5 of 62 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Justice Legislation Further Amendment Act 2016 † No. 3 of 2016 [Assented to 16 February 2016] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The main purposes of this Act are— (a) to amend the Magistrates' Court Act 1989— (i) to provide for electronic issue and transfer of warrants to Victoria Police; and Victoria -- 6 of 62 -- Part 1—Preliminary Justice Legislation Further Amendment Act 2016 No. 3 of 2016 2 Authorised by the Chief Parliamentary Counsel (ii) to provide for appointment of Aboriginal elders or respected persons by the Chief Executive Officer of Court Services Victoria; and (b) to amend the Children, Youth and Families Act 2005— (i) to provide for electronic issue and transfer of warrants to Victoria Police; and (ii) to provide for appointment of Aboriginal elders or respected persons by the Chief Executive Officer of Court Services Victoria; and (c) to amend the County Court Act 1958 to provide for appointment of Aboriginal elders or respected persons by the Chief Executive Officer of Court Services Victoria; and (d) to amend the definitions of clerk and court in the Court Security Act 1980; and (e) to amend the Victims of Crime Assistance Act 1996 to remove the requirement for a statutory declaration in support of certain applications; and (f) to amend the Victorian Civil and Administrative Tribunal Act 1998— (i) to expand the category of members able to hear expungement appeals; and (ii) to remove the presumption for fee reimbursement in proceedings under the Residential Tenancies Act 1997; and -- 7 of 62 -- Part 1—Preliminary Justice Legislation Further Amendment Act 2016 No. 3 of 2016 3 Authorised by the Chief Parliamentary Counsel (g) to amend the Supreme Court Act 1986, the Magistrates' Court Act 1989 and the Coroners Act 2008 in relation to payment of superannuation to certain judicial officers; and (h) to amend the Constitution Act 1975, the Supreme Court Act 1986, the County Court Act 1958, the Magistrates' Court Act 1989 and the Judicial Entitlements Act 2015 to provide for a person to hold a dual commission— (i) as the Chief Judge of the County Court and a Supreme Court Judge; or (ii) as the Chief Magistrate and a County Court judge; and (i) to make minor amendments to the Coroners Act 2008 and the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. 2 Commencement (1) Subject to subsections (2) and (3), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of Part 9 does not come into operation before 1 June 2016, it comes into operation on that day. (3) If a provision of this Act, other than a provision of Part 9, does not come into operation before 17 October 2016, it comes into operation on that day. -- 8 of 62 -- Part 2—Amendment of Magistrates' Court Act 1989 Justice Legislation Further Amendment Act 2016 No. 3 of 2016 4 Authorised by the Chief Parliamentary Counsel Part 2—Amendment of Magistrates' Court Act 1989 3 Appointment of Aboriginal elders or respected persons (1) In section 17A of the Magistrates' Court Act 1989, for "Secretary" (wherever occurring) substitute "Chief Executive Officer". (2) After section 17A(3) of the Magistrates' Court Act 1989 insert— "(4) In this section— Chief Executive Officer means the Chief Executive Officer of Court Services Victoria appointed under section 22 of the Court Services Victoria Act 2014.". 4 Warrants (1) After section 57(1) of the Magistrates' Court Act 1989 insert— "(1A) A warrant directed to a named police officer or generally to all police officers may be issued, not in paper form, but by the person issuing the warrant causing to be entered into the computer system used by the Court the prescribed particulars and causing those particulars to be transmitted electronically to Victoria Police in accordance with the regulations, if any. -- 9 of 62 -- Part 2—Amendment of Magistrates' Court Act 1989 Justice Legislation Further Amendment Act 2016 No. 3 of 2016 5 Authorised by the Chief Parliamentary Counsel (1B) A warrant issued in accordance with subsection (1A)— (a) directs and authorises the person to whom it is issued to do all things that the person would have been directed or authorised to do if a warrant containing the particulars referred to in subsection (1A) had been issued in paper form under subsection (1) by the person issuing the warrant; and (b) must not be amended, altered or varied after its issue, unless the amendment, alteration or variation is authorised by or under this Act or any other Act.". (2) In section 57(8) of the Magistrates' Court Act 1989, after "machine" insert "or other means of electronic communication". (3) In section 57(9) of the Magistrates' Court Act 1989, before "must be signed" insert ", subject to subsection (1A),". 5 Issue of warrant to arrest In section 61(3) of the Magistrates' Court Act 1989, after "machine" insert "or other means of electronic communication". 6 Search warrants In section 75(3) of the Magistrates' Court Act 1989, after "machine" insert "or other means of electronic communication". -- 10 of 62 -- Part 2—Amendment of Magistrates' Court Act 1989 Justice Legislation Further Amendment Act 2016 No. 3 of 2016 6 Authorised by the Chief Parliamentary Counsel 7 New clause 54 of Schedule 8 inserted After clause 53 of Schedule 8 to the Magistrates' Court Act 1989 insert— "54 Transitional—Justice Legislation Further Amendment Act 2016 Each person who holds the office of Aboriginal elder or respected person immediately before the commencement of section 3 of the Justice Legislation Further Amendment Act 2016 continues, on and from that commencement, to hold that office on the same terms and conditions as applied to the person immediately before that commencement, as if the person had been appointed by the Chief Executive Officer.". -- 11 of 62 -- Part 3—Amendment of Children, Youth and Families Act 2005 Justice Legislation Further Amendment Act 2016 No. 3 of 2016 7 Authorised by the Chief Parliamentary Counsel Part 3—Amendment of Children, Youth and Families Act 2005 8 New section 528B inserted After section 528A of the Children, Youth and Families Act 2005 insert— "528B Issue of warrants in electronic form (1) A warrant directed to a named police officer or generally to all police officers may be issued, not in paper form, but by the person issuing the warrant causing to be entered into the computer system used by the Court the prescribed particulars and causing those particulars to be transmitted electronically to Victoria Police in accordance with the regulations, if any. (2) A warrant issued in accordance with subsection (1)— (a) directs and authorises the person to whom it is issued to do all things that the person would have been directed or authorised to do if a warrant containing the particulars referred to in subsection (1) had been issued in paper form by the person issuing the warrant; and (b) must not be amended, altered or varied after its issue, unless the amendment, alteration or variation is authorised by or under this Act or any other Act.". -- 12 of 62 -- Part 3—Amendment of Children, Youth and Families Act 2005 Justice Legislation Further Amendment Act 2016 No. 3 of 2016 8 Authorised by the Chief Parliamentary Counsel 9 Appointment of Aboriginal elders or respected persons (1) In section 536 of the Children, Youth and Families Act 2005— (a) in subsection (1), for "Secretary to the Department of Justice" substitute "Chief Executive Officer"; (b) in subsections (2) and (3), for "that Secretary" substitute "the Chief Executive Officer". (2) After section 536(3) of the Children, Youth and Families Act 2005 insert— "(4) In this section— Chief Executive Officer means the Chief Executive Officer of Court Services Victoria appointed under section 22 of the Court Services Victoria Act 2014.". 10 New section 625 inserted After section 624 of the Children, Youth and Families Act 2005 insert— "625 Transitional provision—Justice Legislation Further Amendment Act 2016 Each person who holds the office of Aboriginal elder or respected person immediately before the commencement of section 9 of the Justice Legislation Further Amendment Act 2016 continues, on and from that commencement, to hold that office on the same terms and conditions as applied to the person immediately before that commencement, as if the person had been appointed by the Chief Executive Officer.". -- 13 of 62 -- Part 4—Amendment of County Court Act 1958 Justice Legislation Further Amendment Act 2016 No. 3 of 2016 9 Authorised by the Chief Parliamentary Counsel Part 4—Amendment of County Court Act 1958 11 Appointment of Aboriginal elders or respected persons (1) In section 22A of the County Court Act 1958, for "Secretary" (wherever occurring) substitute "Chief Executive Officer". (2) After section 22A(3) of the County Court Act 1958 insert— "(4) In this section— Chief Executive Officer means the Chief Executive Officer of Court Services Victoria appointed under section 22 of the Court Services Victoria Act 2014.". 12 New section 100 inserted After section 99 of the County Court Act 1958 insert— "100 Transitional provision—Justice Legislation Further Amendment Act 2016 Each person who holds the office of Aboriginal elder or respected person immediately before the commencement of section 11 of the Justice Legislation Further Amendment Act 2016 continues, on and from that commencement, to hold that office on the same terms and conditions as applied to the person immediately before that commencement, as if the person had been appointed by the Chief Executive Officer.". -- 14 of 62 -- Part 5—Amendment of Court Security Act 1980 Justice Legislation Further Amendment Act 2016 No. 3 of 2016 10 Authorised by the Chief Parliamentary Counsel Part 5—Amendment of Court Security Act 1980 13 Definitions In section 2(1) of the Court Security Act 1980— (a) after paragraph (ca) of the definition of clerk insert— "(cb) in the case of the Children's Court, the principal registrar of that Court;"; (b) for the definition of court substitute— "court includes— (a) the Supreme Court; and (b) the County Court; and (c) the Magistrates' Court; and (d) the Children's Court; and (e) the Coroners Court; and (f) VCAT; and (g) the Victims of Crime Assistance Tribunal; and (h) any prescribed tribunal, body or person which is by law entitled to hear, receive and examine evidence;". -- 15 of 62 -- Part 6—Amendment of Victims of Crime Assistance Act 1996 Justice Legislation Further Amendment Act 2016 No. 3 of 2016 11 Authorised by the Chief Parliamentary Counsel Part 6—Amendment of Victims of Crime Assistance Act 1996 14 Form of application (1) In section 26 of the Victims of Crime Assistance Act 1996— (a) in paragraph (d), for "hearing; and" substitute "hearing."; (b) paragraph (e) is repealed. (2) At the end of section 26 of the Victims of Crime Assistance Act 1996 insert— "(2) If the act of violence has not been reported to the police, the application must also be accompanied by a statutory declaration made by the applicant or the person making the application on behalf of the applicant, setting out— (a) the circumstances of the act of violence; and (b) the reasons for failing to report the matter.". -- 16 of 62 -- Part 7—Amendment of Victorian Civil and Administrative Tribunal Act 1998 Justice Legislation Further Amendment Act 2016 No. 3 of 2016 12 Authorised by the Chief Parliamentary Counsel Part 7—Amendment of Victorian Civil and Administrative Tribunal Act 1998 15 Presumption of order for reimbursement of fees to successful party in certain proceedings Section 115C(1)(d) of the Victorian Civil and Administrative Tribunal Act 1998 is repealed. 16 New section 169 inserted After section 168 of the Victorian Civil and Administrative Tribunal Act 1998 insert— "169 Savings—Justice Legislation Further Amendment Act 2016 Despite the repeal of section 115C(1)(d) by the Justice Legislation Further Amendment Act 2016, section 115C(1)(d) (as in force immediately before its repeal) continues to apply on and after that repeal in relation to a proceeding commenced to be heard but not determined by the Tribunal before that repeal.". 17 Constitution of Tribunal In clause 79 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "the President or Vice President" substitute "a presidential member or senior member". -- 17 of 62 -- Part 8—Amendments relating to superannuation Justice Legislation Further Amendment Act 2016 No. 3 of 2016 13 Authorised by the Chief Parliamentary Counsel Part 8—Amendments relating to superannuation Division 1—Magistrates' Court Act 1989 18 Section 10 amended (1) For the heading to section 10 of the Magistrates' Court Act 1989 substitute— "Salaries, superannuation contributions, allowances and other conditions of service". (2) For section 10(1) of the Magistrates' Court Act 1989 substitute— "(1) Part 1 of Schedule 1 sets out— (a) the salaries payable to magistrates and the allowances and other conditions of service to which magistrates are entitled; and (b) the superannuation contributions payable for the benefit of magistrates.". (3) For section 10(2) of the Magistrates' Court Act 1989 substitute— "(2) Part 2 of Schedule 1 sets out— (a) the salaries payable to reserve magistrates and the allowances and other conditions of service to which reserve magistrates are entitled; and (b) the superannuation contributions payable for the benefit of reserve magistrates.". -- 18 of 62 -- Part 8—Amendments relating to superannuation Justice Legislation Further Amendment Act 2016 No. 3 of 2016 14 Authorised by the Chief Parliamentary Counsel 19 Salaries and allowances of magistrates After clause 4 of Schedule 1 to the Magistrates' Court Act 1989 insert— "4A. Subject to clause 4B, a magistrate, other than the Chief Magistrate, is entitled to have superannuation contributions made for the benefit of the magistrate to an RSA within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth or a complying superannuation fund within the meaning of that Act that are calculated by multiplying the salary of the magistrate by the applicable multiplier. 4B. Clause 4A does not apply if the magistrate is, or is taken to be, a member of the new scheme or the revised scheme under the State Superannuation Act 1988. 4C. In clause 4A— applicable multiplier means the number specified as the charge percentage under section 19(2) of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, as in force from time to time, for the relevant period, divided by 100; salary includes the car allowance for magistrates provided for in certificate 1/2008 dated 14 July 2008 issued under section 15 of the Judicial Remuneration Tribunal Act 1995 (as continued in operation under section 43 of the Judicial Entitlements Act 2015).". -- 19 of 62 -- Part 8—Amendments relating to superannuation Justice Legislation Further Amendment Act 2016 No. 3 of 2016 15 Authorised by the Chief Parliamentary Counsel 20 Reserve magistrates After clause 11 of Schedule 1 to the Magistrates' Court Act 1989 insert— "11A Superannuation contributions (1) Subject to subclause (2), a reserve magistrate is entitled to have superannuation contributions made for the benefit of the reserve magistrate to an RSA within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth or a complying superannuation fund within the meaning of that Act that are calculated by multiplying the salary of the reserve magistrate by the applicable multiplier. (2) Subclause (1) does not apply if the reserve magistrate is, or is taken to be, a member of the new scheme or the revised scheme under the State Superannuation Act 1988. (3) In subclause (1)— applicable multiplier means the number specified as the charge percentage under section 19(2) of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, as in force from time to time, for the relevant period, divided by 100.". -- 20 of 62 -- Part 8—Amendments relating to superannuation Justice Legislation Further Amendment Act 2016 No. 3 of 2016 16 Authorised by the Chief Parliamentary Counsel 21 New Part 3 of Schedule 1 inserted At the end of Part 2 of Schedule 1 to the Magistrates' Court Act 1989 insert— "Part 3—Validation of past payments 13 Validation of certain past superannuation payments (1) Subject to subclause (3), this clause applies to the following persons who hold or held the relevant specified office during the validation period or during any part of the validation period— (a) a magistrate other than the Chief Magistrate; (b) a reserve magistrate; (c) a person who was an acting magistrate appointed under section 9 as in force immediately before its repeal by the Courts Legislation Amendment (Reserve Judicial Officers) Act 2013; (d) a coroner appointed under section 94 of the Coroners Act 2008; (e) a judicial registrar. (2) Any superannuation contribution made for the benefit of a person to whom this clause applies during the validation period or during any part of the validation period, (as the case requires) which was determined by multiplying the salary of the person during the relevant period by the applicable multiplier for that period is taken to be, and to have always been— -- 21 of 62 -- Part 8—Amendments relating to superannuation Justice Legislation Further Amendment Act 2016 No. 3 of 2016 17 Authorised by the Chief Parliamentary Counsel (a) a validly made superannuation contribution for the benefit of that person to which that person was entitled; and (b) authorised by law to be paid from the Consolidated Fund. (3) This clause does not apply to a person referred to in subclause (1)(a) to (e) if the person is, or is taken to be, a member of the new scheme or the revised scheme under the State Superannuation Act 1988. (4) In this clause— applicable multiplier means the number specified as the charge percentage under section 19(2) of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, as in force from time to time, for the relevant period, divided by 100; commencement date means the day that section 21 of the Justice Legislation Further Amendment Act 2016 comes into operation; salary includes the car allowance for magistrates provided for in certificate 1/2008 dated 14 July 2008 issued under section 15 of the Judicial Remuneration Tribunal Act 1995 (as continued in operation under section 43 of the Judicial Entitlements Act 2015), to the extent that a person to whom this clause applies is entitled to such an allowance; -- 22 of 62 -- Part 8—Amendments relating to superannuation Justice Legislation Further Amendment Act 2016 No. 3 of 2016 18 Authorised by the Chief Parliamentary Counsel validation period means the period from 1 January 1994 to the commencement date.". Division 2—Supreme Court Act 1986 22 New section 113GA inserted After section 113G of the Supreme Court Act 1986 insert— "113GA Validation of certain past superannuation payments—judicial registrars (1) This section applies to a person who holds or held office as a judicial registrar during the validation period, or during any part of the validation period, other than a person who is, or is taken to be, a member of the new scheme or the revised scheme under the State Superannuation Act 1988. (2) Any superannuation contribution made for the benefit of a person to whom this section applies during the validation period, or during any part of the validation period, (as the case requires) which was determined by multiplying the salary of the person during the relevant period by the applicable multiplier for that period is taken to be, and to have always been— (a) a validly made superannuation contribution for the benefit of the judicial registrar to which that judicial registrar was entitled; and (b) authorised by law to be paid from the Consolidated Fund. -- 23 of 62 -- Part 8—Amendments relating to superannuation Justice Legislation Further Amendment Act 2016 No. 3 of 2016 19 Authorised by the Chief Parliamentary Counsel (3) In this section— applicable multiplier means the number specified as the charge percentage under section 19(2) of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, as in force from time to time, for the relevant period, divided by 100; commencement date means the day that section 22 of the Justice Legislation Further Amendment Act 2016 comes into operation; validation period means the period from 1 January 2011 to the commencement date.". Division 3—Coroners Act 2008 23 Appointment of coroners In section 94(5) of the Coroners Act 2008, after "magistrate" insert "and the superannuation contributions payable for the benefit of a magistrate". -- 24 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 20 Authorised by the Chief Parliamentary Counsel Part 9—Amendments relating to dual commission holders Division 1—County Court Act 1958 24 Definitions In section 3(1) of the County Court Act 1958 insert the following definition— "Judge of the Supreme Court means a person referred to in section 75(3)(d) of the Constitution Act 1975;". 25 Appointment and qualification of judges (1) In section 8(1) of the County Court Act 1958, for "The Governor" substitute "Subject to subsection (1B), the Governor". (2) After section 8(1A) of the County Court Act 1958 insert— "(1B) Without limiting subsection (1) or (1A), the Chief Judge, when appointed under subsection (1) must— (a) already be a Judge of the Supreme Court; or (b) be simultaneously appointed as Chief Judge under subsection (1) and appointed under section 75B of the Constitution Act 1975 as a Judge of the Supreme Court.". -- 25 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 21 Authorised by the Chief Parliamentary Counsel 26 New section 8AA inserted After section 8 of the County Court Act 1958 insert— "8AA Resignation by Chief Judge who is dual commission holder The Chief Judge who is a dual commission holder may— (a) resign simultaneously from both the office of Chief Judge under this Act and the office of Judge of the Supreme Court under section 77(4)(e) of the Constitution Act 1975; or (b) resign from the office of Chief Judge under this Act and continue in office as a Judge of the Supreme Court; or (c) resign from the office of Judge of the Supreme Court under section 77(4)(e) of the Constitution Act 1975 and continue in office as Chief Judge without being a dual commission holder.". 27 Salaries and allowances of the Chief Judge and other judges (1) After section 10(1) of the County Court Act 1958 insert— "(1A) The Chief Judge who is a dual commission holder— (a) is entitled to the salary referred to in subsection (1) and the allowances and other conditions of service referred to in subsection (3); and -- 26 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 22 Authorised by the Chief Parliamentary Counsel (b) is not entitled to receive any salary, allowances or other conditions of service as a Judge of the Supreme Court during the period of being a dual commission holder.". (2) After section 10(3) of the County Court Act 1958 insert— "(3A) Without limiting subsection (3), the Chief Judge who is a dual commission holder is taken to be entitled, in accordance with Schedule 1 to the certificate dated 19 July 2007 issued under section 15 of the Judicial Remuneration Tribunal Act 1995 (as continued in operation under section 43 of the Judicial Entitlements Act 2015), to a library allowance at the same level as that of a Supreme Court Judge specified in that Schedule whilst a dual commission holder, rather than the library allowance for other judges of the County Court. (3B) Despite sections (2) and (3), the Chief Magistrate who is a dual commission holder— (a) is entitled to the salary and the allowances and other conditions of service of the Chief Magistrate under section 10 of, and Schedule 1 to, the Magistrates' Court Act 1989; and (b) is not entitled to receive any salary, allowances or other conditions of service as a judge under this Act during the period of being a dual commission holder.". -- 27 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 23 Authorised by the Chief Parliamentary Counsel (3) After section 10(6D) of the County Court Act 1958 insert— "(6E) The appointment of a judge as a dual commission holder as Chief Magistrate does not constitute a reduction in the salary or allowances of the judge who takes the appointment.". 28 Provision for pensions to County Court judges and their partners (1) After section 14(3AC) of the County Court Act 1958 insert— "(3AD) If a dual commission holder resigns the office of Chief Judge but continues in the office of Judge of the Supreme Court, that person is taken not to have resigned or retired from the office of Chief Judge for the purposes of subsections (2), (2A) and (2B). (3AE) In the case of the death of a Chief Judge who is a dual commission holder, subsection (3) applies and section 83 of the Constitution Act 1975 does not apply. (3AF) If a dual commission holder resigns the office of judge under this Act but continues in the office of Chief Magistrate, that person is taken not to have resigned or retired from the office of judge for the purposes of subsections (2), (2A) and (2B). (3AG) If a dual commission holder simultaneously resigns the office of judge under this Act and the office of Chief Magistrate, that person is taken not to have resigned or retired from the office of judge for the purposes of subsections (2), (2A), and (2B), but section 10A of the Magistrates' Court Act 1989 may apply if the person would -- 28 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 24 Authorised by the Chief Parliamentary Counsel otherwise be entitled to a pension under that section. (3AH) In the case of the death of a Chief Magistrate who is a dual commission holder, subsection (3) does not apply and section 10A of the Magistrates' Court Act 1989 applies.". (2) After section 14(5)(ac) of the County Court Act 1958 insert— "(aca) if any judge under this Act was, immediately prior to the person's appointment, a Judge of the Supreme Court referred to in section 75(3) of the Constitution Act 1975, the person's service as a Judge of the Supreme Court shall count as service in the office of judge under this Act;". (3) After section 14(5)(ae) of the County Court Act 1958 insert— "(af) the Chief Judge who is a dual commission holder is taken to not hold the office of Judge of the Supreme Court during the period of being a dual commission holder when counting service in the office of judge under this Act; (ag) if a judge under this Act is a dual commission holder as Chief Magistrate, the person's service in the office of Chief Magistrate, whilst a dual commission holder, shall count as service in the office of judge; (ah) if a judge under this Act is a dual commission holder as Chief Magistrate, the judge is taken to not hold the office of judge during the period of holding the dual commission when counting service in the office of judge;". -- 29 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 25 Authorised by the Chief Parliamentary Counsel 29 Professional development and training In section 17AAA(1) of the County Court Act 1958, in paragraph (a) of the definition of judicial officer, after "a judge" insert "(other than a judge who is a dual commission holder as the Chief Magistrate)". 30 Council of Judges After section 87(3) of the County Court Act 1958 insert— "(4) A dual commission holder is a member of the Council of Judges of the Court and— (a) in the case of the Chief Judge, is also a member of the Council of Judges under section 28 of the Supreme Court Act 1986; and (b) in the case of the Chief Magistrate, is also a member of the Council of the magistrates under section 15 of the Magistrates' Court Act 1989.". 31 New section 101 inserted At the end of Part VIII of the County Court Act 1958 insert— "101 Transitional provision—Justice Legislation Further Amendment Act 2016 (1) Within 3 months of the commencement of section 33(3) of the Justice Legislation Further Amendment Act 2016, the Attorney-General must recommend to the Governor in Council under section 8(1) the appointment of the person who holds the office of Chief Magistrate immediately before that commencement and also at the date of the recommendation to the office of judge under this Act (other than the Chief Judge). -- 30 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 26 Authorised by the Chief Parliamentary Counsel (2) On the making of the appointment referred to in subsection (1), the Chief Magistrate concurrently holds both the office of Chief Magistrate under the Magistrates' Court Act 1989 and the office of judge (other than Chief Judge or reserve judge) under this Act. (3) Nothing in section 7(2B) of the Magistrates' Court Act 1989, as inserted by section 33(3) of the Justice Legislation Further Amendment Act 2016, affects the validity of the appointment of the Chief Magistrate holding office immediately before section 33(3) of that Act commenced. (4) Nothing in section 8(1B), as inserted by section 25(2) of the Justice Legislation Further Amendment Act 2016, affects the validity of the appointment of the Chief Judge holding office immediately before section 25(2) of that Act commenced.". Division 2—Magistrates' Court Act 1989 32 Definitions (1) In section 3(1) of the Magistrates' Court Act 1989 insert the following definition— "judge of the County Court means a judge of the County Court appointed under the County Court Act 1958, other than the Chief Judge or a reserve judge appointed under that Act;". (2) In section 3(1) of the Magistrates' Court Act 1989, in the definition of magistrate, after "includes" insert "the Chief Magistrate and". -- 31 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 27 Authorised by the Chief Parliamentary Counsel 33 Appointment of magistrates (1) In section 7(1) of the Magistrates' Court Act 1989, after "many" insert "persons as". (2) In section 7(2) of the Magistrates' Court Act 1989— (a) for "The Governor" substitute "Subject to subsection (2B), the Governor"; (b) after "magistrates" insert "or, in accordance with subsection (2B), another person"; (c) after "two or more" insert "magistrates". (3) After section 7(2A) of the Magistrates' Court Act 1989— "(2B) Without limiting subsection (2), the Chief Magistrate, when appointed under subsection (2) must— (a) already be a judge of the County Court; or (b) be simultaneously appointed as Chief Magistrate under subsection (2) and appointed under section 8(1) of the County Court Act 1958 as a judge of the County Court.". (4) After section 7(6) of the Magistrates' Court Act 1989 insert— "(6A) The Chief Magistrate who is a dual commission holder may— (a) resign simultaneously from both the office of Chief Magistrate under subsection (6) and the office of judge of the County Court under the County Court Act 1958; or -- 32 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 28 Authorised by the Chief Parliamentary Counsel (b) resign from the office of Chief Magistrate under subsection (6) and continue in office as a judge of the County Court under the County Court Act 1958; or (c) resign from the office of judge of the County Court under the County Court Act 1958 and continue in office as Chief Magistrate without being a dual commission holder.". 34 Salaries After section 10(1) of the Magistrates' Court Act 1989 insert— "(1A) The Chief Magistrate who is a dual commission holder— (a) is entitled to the salary and the allowances and other conditions of service of the Chief Magistrate under this section and Schedule 1; and (b) is not entitled to receive any salary, allowances or other conditions of service as a judge of the County Court under the County Court Act 1958 during the period of being a dual commission holder.". 35 Pension of Chief Magistrate (1) The note at the foot of section 10A(1) of the Magistrates' Court Act 1989 is repealed. (2) After section 10A(1) of the Magistrates' Court Act 1989 insert— "(1A) Subject to subsections (1B) and (1C), section 14(5) of the County Court Act 1958 applies, with any necessary modification, in relation to the recognition of service for the purposes of a pension under this section. -- 33 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 29 Authorised by the Chief Parliamentary Counsel (1B) The Chief Magistrate who is a dual commission holder is taken to not hold the office of judge of the County Court during the period of being a dual commission holder when counting service in the office of Chief Magistrate. (1C) For the avoidance of doubt, if the Chief Magistrate is a dual commission holder, the person's service in the office of Chief Magistrate, whilst a dual commission holder, shall count, for the purposes of this section, as service in the office of Chief Magistrate. (1D) If the Chief Magistrate resigns the office of Chief Magistrate as a dual commission holder but continues in the office of judge of the County Court, that person is taken not to have resigned or retired from the office of Chief Magistrate for the purposes of section 14 (2), (2A) and (2B) of the County Court Act 1958 as applied by this section. (1E) In the case of the death of a Chief Magistrate who is a dual commission holder, this section applies.". 36 Council of magistrates After section 15(4) of the Magistrates' Court Act 1989 insert— "(5) A Chief Magistrate who is a dual commission holder is a member of the Council of magistrates and is also a member of the Council of Judges of the Court under section 87 of the County Court Act 1958.". 37 Warrants In section 57(7A) of the Magistrates' Court Act 1989, after "County Court" insert "or the prothonotary of the Supreme Court". -- 34 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 30 Authorised by the Chief Parliamentary Counsel 38 New section 110A inserted After section 110 of the Magistrates' Court Act 1989 insert— "110A Appeals from Court constituted by Chief Magistrate who is a dual commission holder Unless this Act or another Act otherwise provides, an appeal from the Court constituted by the Chief Magistrate who is a dual commission holder, which would be an appeal to the County Court if the Chief Magistrate were not a dual commission holder, shall be to the Trial Division of the Supreme Court.". Division 3—Constitution Act 1975 39 Qualification and appointment of Judges At the foot of section 75B(1) of the Constitution Act 1975 insert the following note— "Note See also section 8(1B) of the County Court Act 1958 in relation to a Judge of the Court who is a dual commission holder as Chief Judge.". 40 Commissions of Judges (1) In section 77(4) of the Constitution Act 1975, for "commission of a judge" substitute "commission of a Judge of the Court". (2) At the foot of section 77(4) of the Constitution Act 1975 insert the following note— "Note See also section 8AA of the County Court Act 1958 in relation to resignation by a Judge of the Court who is a dual commission holder as Chief Judge.". -- 35 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 31 Authorised by the Chief Parliamentary Counsel 41 New section 81K inserted After section 81J of the Constitution Act 1975 insert— "81K Transitional provision—Justice Legislation Further Amendment Act 2016 (1) Within 3 months of the commencement of section 25(2) of the Justice Legislation Further Amendment Act 2016, the Attorney-General must recommend to the Governor under section 75B(2) the appointment of the person who holds the office of Chief Judge immediately before that commencement and also at the date of the recommendation to the office of Judge of the Court referred to in section 75(3)(d). (2) On the making of the appointment referred to in subsection (1), the Chief Judge concurrently holds both the office of Chief Judge under the County Court Act 1958 and the office of Judge of the Supreme Court referred to in section 75(3)(d).". 42 Salaries, allowances and pensions of Judges of the Supreme Court (1) After section 82(3) of the Constitution Act 1975 insert— "(3A) Despite subsections (2) and (3), a Judge of the Court who is a dual commission holder as Chief Judge— (a) is not entitled to the salary, allowances and conditions of service of a Judge of the Court during the period of being a dual commission holder; and -- 36 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 32 Authorised by the Chief Parliamentary Counsel (b) is entitled to the salary, allowances and conditions of service of the Chief Judge referred to in section 10(1A) of the County Court Act 1958.". (2) After section 82(6D) of the Constitution Act 1975 insert— "(6E) The appointment of a Judge of the Court as a dual commission holder as Chief Judge does not constitute a reduction in the salary or allowances of the Judge of the Court who takes the appointment.". 43 As to pensions of Judges of the Supreme Court and their partners and children (1) After section 83(3) of the Constitution Act 1975 insert— "(3A) If a dual commission holder resigns the office of Judge of the Court but continues in the office of Chief Judge, that person is taken not to have resigned or retired from the office of Judge of the Court for the purposes of subsections (1), (1A), (1B), (1C) and (1D). (3B) If a dual commission holder simultaneously resigns the office of Judge of the Court and the office of Chief Judge, that person is taken not to have resigned or retired from the office of Judge of the Court for the purposes of subsections (1), (1A), (1B), (1C) and (1D), but section 14 of the County Court Act 1958 may apply if the person would otherwise be entitled to a pension under that section. -- 37 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 33 Authorised by the Chief Parliamentary Counsel (3C) In the case of the death of a Judge of the Court who is a dual commission holder as Chief Judge, subsection (2) does not apply and section 14 of the County Court Act 1958 applies.". (2) After section 83(6)(ba) of the Constitution Act 1975 insert— "(bb) if a Judge of the Court is a dual commission holder as Chief Judge, the Judge is taken to not hold the office of Judge of the Court during the period of holding the dual commission when counting service in the office of Judge of the Court; (bc) if a Judge of the Court is a dual commission holder as Chief Judge, the person's service in the office of judge of the County Court, whilst a dual commission holder, shall count as service in the office of Judge of the Court;". 44 Judges not to hold any other place of profit After section 84(4) of the Constitution Act 1975 insert— "(4A) Subsection (1) does not apply to or in relation to a Judge of the Court who accepts, takes or performs the duties of the office of Chief Judge as a dual commission holder.". Division 4—Supreme Court Act 1986 45 Power to make Rules In section 25(1)(c) of the Supreme Court Act 1986, after "Judge" insert "from". -- 38 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 34 Authorised by the Chief Parliamentary Counsel 46 Council of Judges After section 28(4) of the Supreme Court Act 1986 insert— "(5) A Judge of the Court who is a dual commission holder as Chief Judge is a member of the Council of Judges of the Court and is also a member of the Council of Judges under section 87 of the County Court Act 1958.". 47 Professional development and training In section 28A(1) of the Supreme Court Act 1986, in paragraph (a) of the definition of judicial officer, after "Judge of the Court" insert "(other than a Judge of the Court who is a dual commission holder as Chief Judge)". Division 5—Judicial Entitlements Act 2015 48 Salary entitlements of judicial officers In the note at the foot of section 5(2) of the Judicial Entitlements Act 2015, after "officers" insert "and section 10(1A) of the County Court Act 1958 and section 10(1A) of the Magistrates' Court Act 1989 in relation to salaries of dual commission holders". 49 Conditions of service of judicial officers At the foot of section 11 of the Judicial Entitlements Act 2015 insert— "Note See also section 10(1A) of the County Court Act 1958 and section 10(1A) of the Magistrates' Court Act 1989 in relation to conditions of service of dual commission holders.". -- 39 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 35 Authorised by the Chief Parliamentary Counsel 50 Certificates under section 15 of the Judicial Remuneration Tribunal Act 1995 After section 43(2) of the Judicial Entitlements Act 2015 insert— "(3) In any certificate referred to in subsection (1), a reference to a magistrate does not include a reserve magistrate unless otherwise specified in that certificate.". Division 6—Children, Youth and Families Act 2005 51 Appeal to County Court or Supreme Court In section 328(1) of the Children, Youth and Families Act 2005, after "President" insert "or the Chief Magistrate who is a dual commission holder". 52 Right of appeal In section 424 of the Children, Youth and Families Act 2005, after "President" insert "or the Chief Magistrate who is a dual commission holder". 53 DPP's right of appeal against sentence In section 427(1) of the Children, Youth and Families Act 2005, after "President" insert "or the Chief Magistrate who is a dual commission holder". 54 DPP's right of appeal—failure to fulfil undertaking In section 429A(1) of the Children, Youth and Families Act 2005, after "President" insert "or the Chief Magistrate who is a dual commission holder". -- 40 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 36 Authorised by the Chief Parliamentary Counsel 55 New section 513B inserted After section 513A of the Children, Youth and Families Act 2005 insert— "513B Appeals from Court constituted by Chief Magistrate who is a dual commission holder Unless this Act or another Act otherwise provides, an appeal from the Court constituted by the Chief Magistrate who is a dual commission holder which would be an appeal to the County Court if the Chief Magistrate were not a dual commission holder, shall be an appeal to the Trial Division of the Supreme Court.". Division 7—Sentencing Act 1991 56 Fixing of non-parole period otherwise than by sentencing court (1) After section 13(1)(a) of the Sentencing Act 1991 insert— "(ab) in the case of a sentence imposed by the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder, the Trial Division of the Supreme Court; or". (2) In section 13(1)(b) of the Sentencing Act 1991 after "Magistrates' Court" insert ", other than a sentence referred to in paragraph (ab)". 57 Appeals After section 18ZR(9) of the Sentencing Act 1991 insert— "(10) In this section, a reference to the County Court is to be construed as a reference to the Trial Division of the Supreme Court if the appeal is from the Magistrates' Court or the Drug Court constituted by the Chief -- 41 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 37 Authorised by the Chief Parliamentary Counsel Magistrate who is a dual commission holder.". Division 8—Independent Broad-based Anti-corruption Commission Act 2011 58 Definitions In section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011, in the definition of relevant head of jurisdiction— (a) for paragraph (b)(ii) substitute— "(ii) if the Chief Judge is the person whose conduct is being investigated— (A) if the Chief Judge is a dual commission holder, the Chief Justice; or (B) otherwise, the next most senior judge of the County Court;"; (b) for paragraph (c)(ii) substitute— "(ii) if the Chief Magistrate is the person whose conduct is being investigated— (A) if the Chief Magistrate is a dual commission holder, the Chief Judge; or (B) otherwise, the most senior Deputy Chief Magistrate;". -- 42 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 38 Authorised by the Chief Parliamentary Counsel Division 9—Interpretation of Legislation Act 1984 59 Definitions In section 38 of the Interpretation of Legislation Act 1984 insert the following definitions— "dual commission holder means— (a) in relation to the Chief Judge, a person who concurrently holds both the office of Chief Judge under the County Court Act 1958 and the office of Judge of the Supreme Court referred to in section 75(3)(d) of the Constitution Act 1975; (b) in relation to the Chief Magistrate, a person who concurrently holds both the office of Chief Magistrate under the Magistrates' Court Act 1989 and the office of judge of the County Court (other than Chief Judge or reserve judge) under the County Court Act 1958; magistrate has the same meaning as in section 3(1) of the Magistrates' Court Act 1989;". Division 10—Criminal Procedure Act 2009 60 Definitions In section 3 of the Criminal Procedure Act 2009, in paragraph (b) of the definition of previous conviction, after "County Court" insert "or the Supreme Court, as the case requires,". 61 Right of appeal (1) In section 254 of the Criminal Procedure Act 2009, for "A person" substitute "Subject to subsection (2), a person". -- 43 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 39 Authorised by the Chief Parliamentary Counsel (2) At the end of section 254 of the Criminal Procedure Act 2009 insert— "(2) If the Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, the appeal is to be made to the Trial Division of the Supreme Court.". 62 How appeal is commenced (1) In section 255(3)(b) of the Criminal Procedure Act 2009, after "Court" insert "or the Supreme Court, as the case requires". (2) In section 255(4) of the Criminal Procedure Act 2009— (a) after "rules of the County Court" insert "or the Supreme Court, as the case requires"; and (b) for "appeal the County Court" substitute "appeal the court". (3) In section 255(5) of the Criminal Procedure Act 2009— (a) after "rules of the County Court" insert "or the Supreme Court, as the case requires"; and (b) in paragraph (a) before "to appear" insert "subject to paragraph (ab),"; and (c) after paragraph (a) insert— "(ab) in the case of an appeal referred to in section 254(2), to appear at the Supreme Court to proceed with the appeal at a place and on a day fixed or to be fixed by the Prothonotary of the Supreme Court and to appear at the Supreme Court for the duration of the appeal; and"; and -- 44 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 40 Authorised by the Chief Parliamentary Counsel (d) in paragraph (b), after "registrar of the County Court" insert "or the Prothonotary of the Supreme Court, as the case requires". (4) In section 255(6)(a) of the Criminal Procedure Act 2009— (a) after "rules of the County Court" insert "or the Supreme Court, as the case requires"; and (b) for "appeal the County Court" substitute "appeal the court". (5) In section 255(7) of the Criminal Procedure Act 2009, after "the County Court" insert "or the Supreme Court, as the case requires". 63 Determination of appeal (1) In section 256(2) of the Criminal Procedure Act 2009— (a) after "the County Court" insert "or the Supreme Court, as the case requires"; (b) in paragraph (b), for "County Court" substitute "court". (2) In section 256(3) and (4) of the Criminal Procedure Act 2009, for "County Court" substitute "court". (3) In section 256(5) of the Criminal Procedure Act 2009, after "County Court" insert "or the Supreme Court, as the case requires". 64 DPP's right of appeal against sentence (1) In section 257(1) of the Criminal Procedure Act 2009, for "The DPP" substitute "Subject to subsection (1A), the DPP". -- 45 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 41 Authorised by the Chief Parliamentary Counsel (2) After section 257(1) of the Criminal Procedure Act 2009 insert— "(1A) If the Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, the appeal is to be made to the Trial Division of the Supreme Court.". (3) In section 257(2) of the Criminal Procedure Act 2009 after "Court" insert "or the Trial Division of the Supreme Court, as the case requires". 65 How appeal is commenced (1) In section 258(3)(b) of the Criminal Procedure Act 2009, after "Court" insert "or the Supreme Court, as the case requires". (2) In section 258(5) of the Criminal Procedure Act 2009, after "Court" insert "or the Supreme Court, as the case requires". 66 Determination of DPP's appeal (1) In section 259(2) of the Criminal Procedure Act 2009— (a) after "the County Court" insert "or the Supreme Court, as the case requires"; (b) in paragraph (b), for "County Court" substitute "court". (2) In section 259(3) and (4) of the Criminal Procedure Act 2009, for "County Court" substitute "court". (3) In section 259(5) of the Criminal Procedure Act 2009, after "County Court" insert "or the Supreme Court, as the case requires". -- 46 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 42 Authorised by the Chief Parliamentary Counsel 67 DPP's right of appeal—failure to fulfil undertaking (1) In section 260(1) of the Criminal Procedure Act 2009, for "Without" substitute "Subject to subsection (1A), without". (2) After section 260(1) of the Criminal Procedure Act 2009 insert— "(1A) If the Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, the appeal is to be made to the Trial Division of the Supreme Court.". 68 How appeal is commenced (1) In section 261(3) of the Criminal Procedure Act 2009 after "Court" insert "or the Supreme Court, as the case requires". (2) In section 261(5) of the Criminal Procedure Act 2009 after "Court" insert "or the Supreme Court, as the case requires". 69 Determination of DPP's appeal—failure to fulfil undertaking (1) In section 262(2) of the Criminal Procedure Act 2009— (a) after "if the County Court" insert "or the Supreme Court, as the case requires,"; (b) for "County Court" (where secondly occurring) substitute "court". (2) In section 262(3) of the Criminal Procedure Act 2009, for "County Court" substitute "court". 70 Late notice of appeal deemed to be application for leave to appeal (1) In section 263(2) of the Criminal Procedure Act 2009, after "County Court" insert "or the Supreme Court, as the case requires,". -- 47 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 43 Authorised by the Chief Parliamentary Counsel (2) In section 263(3) of the Criminal Procedure Act 2009, for "County Court" substitute "court" (where twice occurring). (3) In section 263(4) of the Criminal Procedure Act 2009— (a) in paragraph (a), after "County Court" insert "or the Supreme Court, as the case requires,"; (b) after "registrar of the County Court" insert "or the Prothonotary of the Supreme Court, as the case requires,". (4) In section 263(5)(b) of the Criminal Procedure Act 2009, after "registrar of the County Court" insert "or the Prothonotary of the Supreme Court, as the case requires,". 71 Abandonment of appeal (1) In section 266(1) of the Criminal Procedure Act 2009— (a) after "County Court" insert "or the Supreme Court, as the case requires,"; and (b) for "County Court, with the County Court" substitute "applicable court, with the applicable court". (2) In section 266(3)(a) of the Criminal Procedure Act 2009, after "registrar of the County Court" insert "or the Prothonotary of the Supreme Court, as the case requires". (3) In section 266(3A) of the Criminal Procedure Act 2009— (a) after "registrar of the County Court" insert "or the Prothonotary of the Supreme Court, as the case requires,"; (b) after "registrar" insert "or Prothonotary". -- 48 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 44 Authorised by the Chief Parliamentary Counsel (4) In section 266(4) of the Criminal Procedure Act 2009, for "County Court" substitute "court". (5) In section 266(5)(b) of the Criminal Procedure Act 2009, after "registrar of the County Court" insert "or the Prothonotary of the Supreme Court, as the case requires". (6) In section 266(6) of the Criminal Procedure Act 2009, for "County Court" substitute "court". 72 Applicant's failure to appear (1) In section 267(1) of the Criminal Procedure Act 2009, after "County Court" insert "or the Supreme Court, as the case requires,". (2) In section 267(1A) of the Criminal Procedure Act 2009— (a) after "County Court" insert "or the Supreme Court, as the case requires,"; and (b) after "registrar of the County Court" insert "or the Prothonotary of the Supreme Court, as the case requires". (3) In section 267(2)(b) of the Criminal Procedure Act 2009, after "registrar of the County Court" insert "or the Prothonotary of the Supreme Court, as the case requires". (4) In section 267(3) and (6) of the Criminal Procedure Act 2009, for "County Court" substitute "court". (5) In section 267(6A) of the Criminal Procedure Act 2009, after "County Court" insert "or the Supreme Court, as the case requires,". 73 Respondent's failure to appear on appeal by DPP In section 268 of the Criminal Procedure Act 2009 after "Court" (wherever occurring) insert "or the Supreme Court, as the case requires". -- 49 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 45 Authorised by the Chief Parliamentary Counsel 74 Appeal against aggregate sentence In section 270 of the Criminal Procedure Act 2009 after "Court" insert "or the Supreme Court, as the case requires". 75 Appeal to County Court authorised by other Acts At the end of section 271 of the Criminal Procedure Act 2009 insert— "(2) In this section, if the appeal was from the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder, a reference to the County Court is to be construed as a reference to the Trial Division of the Supreme Court.". 76 Right of appeal against sentence of imprisonment imposed by County Court on appeal from Magistrates' Court In section 283(2) of the Criminal Procedure Act 2009, after "County Court" insert "or the Supreme Court, as the case requires". 77 How appeal is commenced In section 284(1) of the Criminal Procedure Act 2009, for "County Court" substitute "court". 78 Determination of application for leave to appeal under section 283 In section 284A of the Criminal Procedure Act 2009, for "County Court" (wherever occurring) substitute "court". 79 Determination of appeal In section 285(3) of the Criminal Procedure Act 2009— (a) after "County Court" (where first occurring) insert "or the Trial Division of the Supreme Court, as the case requires"; -- 50 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 46 Authorised by the Chief Parliamentary Counsel (b) after "County Court" (where secondly occurring) insert "or the Trial Division of the Supreme Court". 80 Determination of appeal In section 286 of the Criminal Procedure Act 2009— (a) in subsection (1), for "by the County Court" substitute "by the Court"; (b) in subsection (1)(b), after "County Court" insert "or the Trial Division of the Supreme Court, as the case requires"; (c) in subsection (2) omit "to the County Court"; (d) in subsection (2)(a), for "County Court" substitute "court". (e) in subsection (2)(b), for "County Court" substitute "court". 81 Reservation of question of law on appeal to County Court In section 302A of the Criminal Procedure Act 2009— (a) after "the Magistrates' Court" insert "or, if Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, to the Trial Division of the Supreme Court"; (b) for "County Court may" substitute "County Court or the Trial Division of the Supreme Court, as the case requires, may"; (c) for "if the County Court" substitute "if the court". -- 51 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 47 Authorised by the Chief Parliamentary Counsel 82 DPP may refer point of law to Court of Appeal In section 308(1)(b) of the Criminal Procedure Act 2009 after "the Magistrates' Court" insert "or, if Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, to the Trial Division of the Supreme Court". 83 Costs on appeal to County Court (1) In the heading to section 406 of the Criminal Procedure Act 2009 after "Court" insert "or the Trial Division of the Supreme Court under section 254". (2) In section 406(1) of the Criminal Procedure Act 2009— (a) in paragraph (b), after "County Court" insert "or the Trial Division of the Supreme Court, as the case requires,"; (b) for "County Court may" substitute "court may". (3) In section 406(2) of the Criminal Procedure Act 2009— (a) after "the County Court" insert "or the Supreme Court, as the case requires,"; (b) after "1958" insert "or the Supreme Court Act 1986, as the case requires". (4) In section 406(3) of the Criminal Procedure Act 2009— (a) after "If the County Court" insert "or the Supreme Court, as the case requires,"; (b) in paragraph (b), for "County Court" substitute "court"; (c) for "County Court may" substitute "court may". -- 52 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 48 Authorised by the Chief Parliamentary Counsel (5) In section 406(4) of the Criminal Procedure Act 2009 for "County Court may" substitute "court may". 84 Costs on abandonment of appeal to County Court (1) In the heading to section 407 of the Criminal Procedure Act 2009 after "Court" insert "or the Trial Division of the Supreme Court". (2) In section 407 of the Criminal Procedure Act 2009— (a) in subsection (1), after "County Court" insert "or the Trial Division of the Supreme Court, as the case requires,"; (b) in subsections (2) and (3), for "County Court" substitute "court". Division 11—Family Violence Protection Act 2008 85 Court to which appeal must be made For section 115(b) of the Family Violence Protection Act 2008 substitute— "(b) the Trial Division of the Supreme Court, if the court that made the relevant decision was— (i) the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder; or (ii) the Children's Court constituted by the President of the Court or the Chief Magistrate who is a dual commission holder.". 86 Conduct of appeal In the note at the foot of section 119(1) of the Family Violence Protection Act 2008, after "the Court" insert "or the Chief Magistrate who is a dual commission holder, or the Magistrates' -- 53 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 49 Authorised by the Chief Parliamentary Counsel Court constituted by the Chief Magistrate who is a dual commission holder". Division 12—Personal Safety Intervention Orders Act 2010 87 Court to which appeal must be made For section 92(b) of the Personal Safety Intervention Orders Act 2010 substitute— "(b) the Trial Division of the Supreme Court, if the court that made the relevant decision was— (i) the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder; or (ii) the Children's Court constituted by the President of the Court or the Chief Magistrate who is a dual commission holder.". 88 Conduct of appeal In the note at the foot of section 96(1) of the Personal Safety Intervention Orders Act 2010, after "the Court" insert "or the Chief Magistrate who is a dual commission holder, or the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder". Division 13—Land Act 1958 89 Appeals (1) Insert the following heading to section 203 of the Land Act 1958— "Appeals". -- 54 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 50 Authorised by the Chief Parliamentary Counsel (2) In section 203 of the Land Act 1958, after "County Court" insert "or, in case of a conviction or order of the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder, the Trial Division of the Supreme Court". Division 14—Maintenance Act 1965 90 Notice of appeal and application of appeal provisions of the Magistrates' Court Act 1989 (1) After section 107(1) of the Maintenance Act 1965 insert— "(1A) Despite subsection (1), if the Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, the appeal is to be made to the Trial Division of the Supreme Court.". (2) After section 107(4) of the Maintenance Act 1965 insert— "(5) In subsections (2) to (4), a reference to the County Court is to be construed as a reference to the Trial Division of the Supreme Court in relation to an appeal referred to in subsection (1A).". Division 15—Liquor Control Reform Act 1998 91 Property forfeited For section 138(2) of the Liquor Control Reform Act 1998 substitute— "(2) An appeal against an order of forfeiture under subsection (1) may be made— (a) to the County Court; or (b) if the order was made by the Magistrates' Court constituted by the Chief Magistrate who is a dual -- 55 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 51 Authorised by the Chief Parliamentary Counsel commission holder, to the Trial Division of the Supreme Court.". Division 16—Fisheries Act 1995 92 Additional penalties for licence holders committing offences (1) In section 128(5)(a) of the Fisheries Act 1995, after "County Court" insert "or, if the decision was made by the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder, the Trial Division of the Supreme Court". (2) In section 128(6) of the Fisheries Act 1995, after "County Court" insert "or, if the Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, the Trial Division of the Supreme Court". Division 17—Disability Act 2006 93 Appeals regarding extended leave After section 163(1)(a) of the Disability Act 2006 insert— "(ab) if the original court making the decision was the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder, the Trial Division of the Supreme Court; or". Division 18—Gambling Regulation Act 2003 94 Forfeiture For section 10.5.28(2) of the Gambling Regulation Act 2003 substitute— "(2) An appeal against an order of forfeiture under subsection (1) may be made— (a) to the County Court; or -- 56 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 52 Authorised by the Chief Parliamentary Counsel (b) if the order was made by the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder, to the Trial Division of the Supreme Court.". Division 19—Judgment Debt Recovery Act 1984 95 Persistent wilful default After section 19(4)(a) of the Judgment Debt Recovery Act 1984 insert— "(ab) where that order was made by the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder, to the Trial Division of the Supreme Court; or". Division 20—Catchment and Land Protection Act 1994 96 Effect of finding of guilt for offence against section 18G In section 18J(2)(a) of the Catchment and Land Protection Act 1994, after "Magistrates' Court" insert "(other than the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder)". Division 21—Water Act 1989 97 Effect of finding of guilt for offence against section 109 In section 112(2)(a) of the Water Act 1989, after "Magistrates' Court" insert "(other than the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder)". -- 57 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 53 Authorised by the Chief Parliamentary Counsel Division 22—Road Safety Act 1986 98 Appeal against disqualification, cancellation, suspension or variation by order of Magistrates' Court or Children's Court (1) In section 29(1) of the Road Safety Act 1986 omit "to the County Court". (2) In section 29(1A) of the Road Safety Act 1986, after "President" insert "or the Chief Magistrate who is a dual commission holder". 99 Appeals against alcohol interlock condition direction or period specified in direction In section 50AAC of the Road Safety Act 1986 omit (where twice occurring) "to the County Court". Division 23—Serious Sex Offenders (Detention and Supervision) Act 2009 100 Secretary may apply for a supervision order After section 7(3)(a) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert— "(ab) the Trial Division of the Supreme Court, if the Magistrates Court constituted by the Chief Magistrate who is a dual commission holder sentenced the offender for the relevant offence; or". Division 24—Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 101 Appeal in relation to fitness to stand trial In section 38U(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "President" insert "or the Chief Magistrate who is a dual commission holder". -- 58 of 62 -- Part 9—Amendments relating to dual commission holders Justice Legislation Further Amendment Act 2016 No. 3 of 2016 54 Authorised by the Chief Parliamentary Counsel 102 Appeal against unconditional release In section 38ZAA(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "President" insert "or the Chief Magistrate who is a dual commission holder". 103 Appeal against mental impairment finding In section 38ZE(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "President" insert "or the Chief Magistrate who is a dual commission holder". 104 Appeal against unconditional release In section 38ZF(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "President" insert "or the Chief Magistrate who is a dual commission holder". 105 Appeal against supervision order In section 38ZJ(1) and (2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "President" insert "or the Chief Magistrate who is a dual commission holder". -- 59 of 62 -- Part 10—Amendment of other Acts Justice Legislation Further Amendment Act 2016 No. 3 of 2016 55 Authorised by the Chief Parliamentary Counsel Part 10—Amendment of other Acts Division 1—Coroners Act 2008 106 Access to documents In section 115(7) of the Coroners Act 2008, for "an inquest" substitute "a coronial investigation". Division 2—Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 107 Variation of custodial supervision orders on application or review In section 38ZO(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "Unless the Children's Court revokes the order, the court" substitute "The Children's Court". -- 60 of 62 -- Part 11—Repeal of amending Act Justice Legislation Further Amendment Act 2016 No. 3 of 2016 56 Authorised by the Chief Parliamentary Counsel Part 11—Repeal of amending Act 108 Repeal of amending Act This Act is repealed on 17 October 2017. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ -- 61 of 62 -- Endnotes Justice Legislation Further Amendment Act 2016 No. 3 of 2016 57 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 22 October 2015 Legislative Council: 26 November 2015 The long title for the Bill for this Act was "A Bill for an Act to amend the Children, Youth and Families Act 2005, the Constitution Act 1975, the Coroners Act 2008, the County Court Act 1958, the Court Security Act 1980, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Judicial Entitlements Act 2015, the Magistrates' Court Act 1989, the Supreme Court Act 1986, the Victims of Crime Assistance Act 1996 and the Victorian Civil and Administrative Tribunal Act 1998, to make consequential or minor amendments to other Acts and for other purposes." -- 62 of 62 --