Magistrates' Court Amendment (Assessment and Referral Court List) Act 2010
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Magistrates' Court Amendment (Assessment and
Referral Court List) Act 2010
No. 12 of 2010
TABLE OF PROVISIONS
Section Page
1 Purpose 1
2 Commencement 1
3 Principal Act 2
4 Definitions 2
5 New sections 4S to 4Y inserted 3
4S Assessment and Referral Court List 3
4T Eligibility criteria 5
4U Specific powers of the Assessment and Referral Court
List 6
4V Adjournment of proceeding in Assessment and
Referral Court List 7
4W Other adjournment powers not limited 8
4X Transfer of proceedings to and from Assessment and
Referral Court List 8
4Y Completion of, and participation in, individual support
plan 9
6 Rules of Court 10
7 New clause 45 of Schedule 8 11
45 Transitional provision—Magistrates' Court
Amendment (Assessment and Referral Court List)
Act 2010 11
8 Repeal of amendments relating to trial period for Assessment
and Referral Court List 11
9 Repeal of amending Act 12
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ENDNOTES 13
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1
Magistrates' Court Amendment
(Assessment and Referral Court List)
Act 2010 †
No. 12 of 2010
[Assented to 30 March 2010]
The Parliament of Victoria enacts:
1 Purpose
The purpose of this Act is to establish the
Assessment and Referral Court List in the
Magistrates' Court for a trial period.
2 Commencement
(1) Subject to subsection (3), this Act, other than
section 8, comes into operation on a day or days to
be proclaimed.
Victoria
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(2) Subject to subsection (4), section 8, comes into
operation on a day to be proclaimed.
(3) If a provision of this Act, other than section 8,
does not come into operation before 1 December
2010, it comes into operation on that day.
(4) If section 8 does not come into operation before
1 August 2013 it comes into operation on that day.
3 Principal Act
In this Act, the Magistrates' Court Act 1989 is
called the Principal Act.
4 Definitions
(1) In section 3(1) of the Principal Act, insert the
following definitions—
"Assessment and Referral Court List means the
list established by section 4S;
intellectual disability has the same meaning as it
has in the Disability Act 2006;
s. 3
See:
Act No.
51/1989.
Reprint No. 14
as at
21 August
2008
and
amending
Act Nos
51/2006,
12/2008,
34/2008,
38/2008,
52/2008,
68/2008,
72/2008,
74/2008,
76/2008,
78/2008,
83/2008,
4/2009, 7/2009,
9/2009,
13/2009,
25/2009,
30/2009 and
50/2009.
LawToday:
www.
legislation.
vic.gov.au
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mental illness has the same meaning as it has in
the Mental Health Act 1986;".
(2) In section 3(1) of the Principal Act, in the
definition of proper venue—
(a) in paragraph (a) after "paragraph (c)" insert
", (dc)";
(b) after paragraph (db) insert—
"(dc) in relation to a proceeding in respect of
which the Assessment and Referral
Court List has jurisdiction—
(i) a venue of the Court determined in
accordance with paragraph (a),
(b), (c) or (d); or
(ii) a venue of the Court at which the
Assessment and Referral Court
List may sit and act;".
5 New sections 4S to 4Y inserted
After section 4R of the Principal Act insert—
"4S Assessment and Referral Court List
(1) An Assessment and Referral Court List is
established.
(2) Subject to subsection (3), the Assessment
and Referral Court List consists of any
criminal proceeding referred to that List by
the Court.
(3) The Court must not refer a criminal
proceeding to the Assessment and Referral
Court List unless—
(a) the proceeding relates, wholly or partly,
to a charge for an offence which does
not involve—
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(i) a serious violence offence as
defined in section 6B(1) of the
Sentencing Act 1991; or
(ii) a violent offence as defined in
section 6B(1) of that Act; or
(iii) a sexual offence as defined in
section 6B(1) of that Act; and
(b) the accused meets the eligibility criteria
specified in section 4T; and
(c) the accused consents to the proceeding
being dealt with in the Assessment and
Referral Court List; and
(d) the proceeding is at a venue of the
Court where the Assessment and
Referral Court List operates; and
(e) it appears to the Court that, in all the
circumstances, it is appropriate for the
proceeding to be dealt with in the
Assessment and Referral Court List.
(4) Despite anything to the contrary in this Act,
the Assessment and Referral Court List may
only sit and act at a venue of the Court
specified by the Chief Magistrate by notice
published in the Government Gazette.
(5) The operation and administration of the
Assessment and Referral Court List is at the
direction of the Chief Magistrate.
(6) The Chief Magistrate, under section 16A,
may issue practice directions, statements or
notes for the Court in relation to the
Assessment and Referral Court List.
(7) Nothing in this section takes away from, or
limits, a discretion or power conferred on the
Chief Magistrate by or under this Act.
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(8) Nothing in this section or sections 4T to 4Y
affects the operation or application of the
Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997.
4T Eligibility criteria
(1) To be eligible for a criminal proceeding to
enter the Assessment and Referral Court
List, an accused must meet—
(a) the diagnostic criteria; and
(b) the functional criteria; and
(c) the needs criteria.
(2) The diagnostic criteria are that the accused
has one or more of the following—
(a) a mental illness;
(b) an intellectual disability;
(c) an acquired brain injury;
(d) autism spectrum disorder;
(e) a neurological impairment, including,
but not limited to dementia.
(3) The functional criteria are that the accused
has one or more of the diagnostic criteria
which causes a substantially reduced
capacity in at least one of the following
areas—
(a) self-care;
(b) self-management;
(c) social interaction;
(d) communication.
(4) The needs criteria are that the accused would
derive benefit from receiving coordinated
services in accordance with an individual
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support plan that may include one or more of
the following—
(a) psychological assessment;
(b) welfare services;
(c) health services;
(d) mental health services;
(e) disability services;
(f) drug treatment services or alcohol
treatment services;
(g) housing and support services;
(h) other services that aim to reduce the
risk of offending or re-offending.
4U Specific powers of the Assessment and
Referral Court List
(1) The Assessment and Referral Court List has
the powers of the Court necessary to enable
it to exercise its jurisdiction.
(2) Without limiting subsection (1), the Court
may—
(a) at any time, convene a hearing to
receive reports on an accused's progress
and compliance with his or her
individual support plan;
(b) adjust, amend or vary any individual
support plan of an accused;
(c) at any time, remove a criminal
proceeding from the Assessment and
Referral Court List;
(d) at any time discharge an accused or
indicate an intention to discharge the
accused.
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(3) In hearing any proceeding in the Assessment
and Referral Court List, the Court must
exercise its jurisdiction with as little
formality and technicality, and with as much
expedition, as the requirements of this Act
and the Sentencing Act 1991 and the proper
consideration of the matters before the Court
permit.
4V Adjournment of proceeding in Assessment
and Referral Court List
(1) The Court, at any time before taking a formal
plea from the accused in a criminal
proceeding which has been referred to the
Assessment and Referral Court List, may
adjourn a proceeding in that List for the
purposes of a clinical assessment of the
accused to—
(a) identify the accused's needs based on
the needs criteria set out in section 4T;
and
(b) prepare an individual support plan for
the accused.
(2) The Court must fix a return date for
consideration by the Court of the proposed
individual support plan.
(3) On the return date, the Court may—
(a) approve the individual support plan,
with or without amendments;
(b) fix bail conditions or any undertakings
or other conditions the Court considers
appropriate;
(c) make any other order the Court thinks
fit.
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(4) The Court may adjourn a proceeding under
this section for a period not exceeding
12 months to enable the accused to be
assessed and participate in and complete his
or her individual support plan.
4W Other adjournment powers not limited
Nothing in section 4V limits the operation of
section 59 or section 331 of the Criminal
Procedure Act 2009 in relation to any
criminal proceeding.
4X Transfer of proceedings to and from
Assessment and Referral Court List
(1) Subject to and in accordance with this Act
and the rules—
(a) a proceeding may be transferred to the
Assessment and Referral Court List,
whether sitting at the same or a
different venue; and
(b) the Court may transfer a proceeding in
the Assessment and Referral Court List
out of that List and back to the Court
for hearing at the same or a different
venue.
(2) Despite subsection (1), a proceeding in the
Assessment and Referral Court List must be
transferred out of the List to a contested
hearing in the Court if at any stage the
accused—
(a) pleads not guilty; or
(b) indicates an intention to plead not
guilty.
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(3) Despite anything to the contrary in this Act,
if a proceeding is transferred from one venue
of the Court to another, the transferee venue
is the proper venue of the Court for the
purposes of this Act.
(4) This section does not limit—
(a) any other power conferred on the Court
by or under this or any other Act; or
(b) any other specific provision made by or
under this or any other Act for the
making of any report, statement or
submission, or the giving of any
evidence, to the Court for the purpose
of assisting it in hearing any criminal
proceeding or determining sentence.
4Y Completion of, and participation in,
individual support plan
(1) On completion of an individual support plan
by an accused to the satisfaction of the
Court, the Court must hear and determine the
criminal proceeding to which the individual
support plan related.
(2) If an accused completes, or participates in,
an individual support plan to the satisfaction
of the Court, the Court may discharge the
accused without any finding of guilt.
(3) The fact of participation in the individual
support plan is not to be treated as a finding
of guilt.
(4) If the accused is discharged by the Court, the
fact of participation in, or completion of, the
individual support plan and the discharge of
the accused is a defence to a later charge for
the same offence or a similar offence arising
out of the same circumstances.
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(5) If an accused participates in an individual
support plan to the satisfaction of the Court
and the accused is subsequently found guilty
of the charge, the Court must take into
account the extent to which the accused
participated in the individual support plan
when sentencing the accused.
(6) If an accused fails to participate in an
individual support plan to the satisfaction of
the Court and the accused is subsequently
found guilty of the charge, the Court must
not take into account the accused's failure to
participate in the individual support plan
when sentencing the accused.
(7) Nothing in this section affects the
requirement to observe the rules of natural
justice.
(8) This section does not affect the incurring of
demerit points under the Road Safety Act
1986 or regulations made under that Act.
(9) Nothing in this section affects or limits the
operation of the Sentencing Act 1991 or the
powers of a magistrate or the Court under
that Act.".
6 Rules of Court
Before section 16(1A)(i) of the Principal Act
insert—
"(hd) any matter relating to the practice and
procedure of the Assessment and Referral
Court List;
(he) the transfer of proceedings to and from the
Assessment and Referral Court List;".
s. 6
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7 New clause 45 of Schedule 8
After clause 44 of Schedule 8 to the Principal Act
insert—
"45 Transitional provision—Magistrates'
Court Amendment (Assessment and
Referral Court List) Act 2010
The amendments made to this Act by
section 5 of the Magistrates' Court
Amendment (Assessment and Referral
Court List) Act 2010 apply to any
proceeding, irrespective of when the offence
to which the proceeding relates was
committed or when the proceeding
commenced, but does not apply to a
proceeding in respect of an accused which
was listed before the Court before the
commencement of that section.".
8 Repeal of amendments relating to trial period for
Assessment and Referral Court List
In the Principal Act—
(a) in section 3(1), the definitions of Assessment
and Referral Court List, intellectual
disability and mental illness are repealed;
(b) in section 3(1), in the definition of proper
venue—
(i) in paragraph (a) omit ", (dc)";
(ii) paragraph (dc) is repealed;
(c) sections 4S to 4Y are repealed;
(d) in section 16(1A), paragraphs (hd) and (he)
are repealed;
(e) clause 45 of Schedule 8 is repealed.
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9 Repeal of amending Act
This Act is repealed on 1 August 2014.
Note
Subject to section 8, 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).
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ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 10 December 2009
Legislative Council: 4 February 2010
The long title for the Bill for this Act was "A Bill for an Act to amend the
Magistrates' Court Act 1989 to establish an Assessment and Referral
Court List in the Magistrates' Court for a trial period, to provide for its
operation and for other purposes."
Endnotes
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