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Justice Legislation Amendment (System
Enhancements and Other Matters) Act 2021
No. of 2021
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 2
Part 2--Amendment of the Evidence (Miscellaneous Provisions)
Act 1958 3
3 Definitions--section 3 3
4 Definitions--section 42C 3
5 Appearance, etc. by audio visual link or audio link 4
6 Special provisions applicable to certain proceedings involving
children 4
7 Section 42G substituted 5
8 Appearance of adult accused before Magistrates' Court 7
9 Section 42K substituted 7
10 Making of direction for physical appearance in section 42JA
or 42K(1) proceedings 8
11 Making of direction for audio visual appearance in section
42JA or 42K(2) proceedings 9
12 Appearance before court of accused who is a child 9
13 Making of direction for audio visual appearance by child 9
14 Section 42Q repealed 10
15 Section 42R substituted 10
16 New sections 42RA and 42RB inserted 12
17 Section 42S substituted 15
18 Application of Surveillance Devices Act 1999 15
19 Putting documents to a remote person 15
20 New section 42UA inserted 16
21 Application of laws about witnesses, etc. 16
22 New sections 42Y and 42YA inserted 17
23 New section 167 inserted 17
Part 3--Amendment of the Bail Act 1977 19
24 Definitions 19
25 Surety for bail 19
26 New sections 17A and 17B inserted 19
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27 Admission to bail 23
28 New section 32B inserted 23
29 Transitional provisions 24
Part 4--Amendment of Children, Youth and Families Act 2005 25
30 Time and place of conciliation conference 25
31 Who is to attend a conciliation conference? 25
32 Conciliation counselling 25
33 Application for permanent care order 25
34 Variation or revocation of permanent care order 25
35 Requirements for youth control order planning meetings 26
36 Group conference 26
37 Section 505 substituted and new section 505A inserted 27
38 Joint committal proceedings 27
39 Power to adjourn proceeding 28
40 Witness summonses 28
41 Powers of registrar 28
42 Service of documents 30
43 Service on parent or child or other person 31
Part 5--Amendment of Criminal Procedure Act 2009 34
44 Definitions 34
45 Court may decide pre-trial issue without a hearing 34
46 DPP may discontinue a prosecution without adjudication 35
47 Power to adjourn proceeding 35
48 New section 337A inserted 35
49 Personal service 36
50 New section 456 inserted 37
Part 6--Amendment of Supreme Court Act 1986 39
51 Manner of making Rules 39
52 New Division 1 of Part 6 inserted 39
Part 7--Amendment of County Court Act 1958 41
53 New section 36AA inserted 41
Part 8--Amendment of Magistrates' Court Act 1989 43
54 Powers of registrar 43
55 Attendance of witnesses on adjournment 44
56 New section 125A inserted 45
Part 9--Amendment of Victorian Civil and Administrative
Tribunal Act 1998 47
57 Notice of hearings 47
58 Method of conducting hearings 47
59 Witness summons 48
60 Who presides at a meeting? 48
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61 Quorum and meeting procedure 48
62 Power to make rules 48
Part 10--Amendment of the Electronic Transactions (Victoria)
Act 2000 49
63 Purposes 49
64 Outline of Act 49
65 Exemptions 49
66 Signatures 49
67 New sections 12 to 12B inserted 50
68 New section 17 inserted 53
Part 11--Amendment of the Oaths and Affirmations Act 2018 54
69 Oath or affirmation to be said aloud 54
70 New section 18A inserted 54
71 Signature and oath requirements--deponent 54
72 Requirements of authorised affidavit taker 55
73 Jurat 55
74 New sections 28A and 28B inserted 56
75 New section 29A inserted 57
76 Statutory declarations made in Victoria 57
77 New sections 30A and 30B inserted 57
78 New section 60 inserted 59
Part 12--Amendment of the Wills Act 1997 60
79 Definitions 60
80 How should a will be executed? 60
81 New sections 8A to 8D inserted 61
82 What persons cannot act as witnesses to wills? 64
83 When and how can a will be revoked? 64
84 Can a will be altered? 64
85 Can a revoked will be revived? 65
86 Application of Act to international wills 65
87 New section 50A inserted 65
88 New section 57 inserted 67
Part 13--Amendment of the Powers of Attorney Act 2014 68
89 Definitions 68
90 New sections 5A to 5D inserted 68
91 How should a non-enduring power of attorney be executed? 73
92 How should an enduring power of attorney be executed? 73
93 Certification of witness to signing 74
94 Acceptance by attorney 74
95 Acceptance by alternative attorney 74
96 How should an instrument of revocation be executed? 75
97 Certification of witness to signing of instrument of revocation 75
98 How should an appointment be executed? 75
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99 Certification of witness to signing of appointment form 76
100 Acceptance by supportive attorney 76
101 Acceptance by alternative attorney 77
102 How should a form of revocation be executed? 77
103 Section 139 substituted 77
104 New section 156 inserted 79
Part 14--Amendment of the Court Security Act 1980 80
105 Temporary measures in response to COVID-19 pandemic 80
106 Statute law revision 80
Part 15--Amendment of the Sentencing Act 1991 81
107 Electronic monitoring of offender 81
108 Variation etc. of community correction order 81
109 Court may reopen proceeding to correct penalties imposed
contrary to law 81
Part 16--Amendment of the Open Courts Act 2013 82
110 New sections 8A and 8B inserted 82
Part 17--Amendment of the Juries Act 2000 85
111 Summons 85
112 Jury pools 85
113 Selection of panels 85
114 New section 37A inserted 86
115 Crown right to stand aside jurors in criminal trials 86
116 Peremptory challenges in criminal trials 87
117 New section 39A inserted 87
118 New section 41A inserted 88
119 New section 100 inserted 88
120 New clause 19 of Schedule 6 90
Part 18--Amendment of the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 91
121 New Division 1 of Part 2 inserted 91
122 Division 2 of Part 2 inserted 91
123 New section 90A inserted 99
Part 19--Amendment of Justice Legislation Amendment
(Criminal Appeals) Act 2019 101
124 Commencement amended 101
125 Repeal of amending Act 101
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Part 20--Amendment of Independent Broad-Based Anti-
corruption Commission Act 2011 102
Division 1--Amendments relating to measures arising from
COVID-19 pandemic 102
126 Definitions 102
127 Confidentiality notice 102
128 Power to issue witness summons 102
129 Content and form of witness summons 103
130 Service of witness summons 103
131 Witness summons 104
132 Content and form of witness summons 104
133 Service of witness summons 104
134 Legal representation of witnesses and other persons 105
135 Specific provisions relating to witnesses 105
136 Service of documents 106
137 New section 194A inserted 108
Division 2--Amendments relating to examinations 109
138 Power to hold examinations 109
Division 3--Other amendments 110
139 New section 200 inserted 110
Part 21--Amendment of other integrity entities legislation 112
Division 1--Amendment of Freedom of Information Act 1982 112
140 Definitions 112
141 Confidentiality notice 113
142 Extension of confidentiality notice 113
143 Notice to produce or attend 113
144 Service of notice to produce or notice to attend 113
145 Legal advice and representation 116
146 New section 61ZI inserted 116
147 Special requirements for production of documents claimed to
be exempt under section 28, 29A, 31 or 31A 117
148 Statute law revision 117
149 New section 73 inserted 117
Division 2--Amendment of Local Government Act 2020 119
150 Definitions 119
151 Powers of the Chief Municipal Inspector 119
152 Confidentiality notice 120
153 Extension of confidentiality notice 122
154 New section 199A inserted 122
155 Service on a person 123
156 New section 330A inserted 123
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Division 3--Amendment of Ombudsman Act 1973 124
157 Definitions 124
158 Witness summons 125
159 Service of witness summons 126
160 Legal advice and representation 128
161 Further provisions relating to appearances 128
162 New section 22A inserted 129
163 New section 37 inserted 130
Division 4--Amendment of Privacy and Data Protection Act 2014 131
164 Definitions 131
165 Compliance notice 131
166 Notice to produce or attend 131
167 Service of notice to produce documents or to attend 132
168 Legal advice and representation 134
169 New section 83L inserted 134
170 New section 130 inserted 135
Division 5--Amendment of Victorian Inspectorate Act 2011 136
171 Definitions 136
172 Specific powers in relation to the IBAC 136
173 Specific powers in relation to the Public Interest Monitors 137
174 Confidentiality notice 137
175 Conduct of investigation 137
176 Examinations must be held in private 138
177 Witness summons 138
178 Service of witness summons 139
179 Legal representation of witnesses and other persons 141
180 Specific provisions relating to witnesses 141
181 New section 67A inserted 142
182 New section 107 inserted 143
Part 22--Amendment of Fines Reform Act 2014 and related
consequential amendments--time served and fines 145
Division 1--Amendment of Fines Reform Act 2014 145
183 Functions and powers of the Director 145
184 Definitions 145
185 New Division 1A inserted in Part 14 145
186 Section 171A substituted 148
187 Time served orders 149
188 Orders of Magistrates' Court for any relevant infringement fine
or any remaining amount 149
189 Contact details of person 150
190 Enforcement and payment report 150
191 New Part 18 inserted 150
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Division 2--Amendment of Infringements Act 2006 152
192 Definitions 152
193 Expiating the offence 152
194 Effect of expiation 153
Part 23--Amendment of Interpretation of Legislation Act 1984
and related consequential amendments 155
Division 1--Insertion of definitions of audio link and audio visual
link 155
195 Definitions 155
Division 2--Consequential amendments of other Acts 155
196 Children, Youth and Families Act 2005 155
197 Essential Services Commission Act 2001 156
198 Independent Broad-based Anti-corruption Commission
Act 2011 156
199 Parliamentary Committees Act 2003 156
200 Serious Offenders Act 2018 156
201 Victoria Police Act 2013 156
Part 24--Amendments extending certain provisions relating to
COVID-19 pandemic 157
Division 1--Corrections Act 1986 157
202 Repeal of Part 157
Division 2--Children, Youth and Families Act 2005 157
203 Application of Part 1.2 principles 157
204 Section 600ZC substituted 158
Division 3--Local Government Act 2020 158
205 Definitions 158
206 Repeal of Part 158
Division 4--Occupational Health and Safety Act 2004 158
207 Repeal of Part 158
Division 5--Parliamentary Committees Act 2003 159
208 Repeal of Part 159
Part 25--Repeal of this Act 160
209 Repeal of this Act 160
═════════════
Endnotes 161
1 General information 161
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Justice Legislation Amendment (System
Enhancements and Other Matters)
Act 2021
No. of 2021
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The main purposes of this Act are--
(a) to amend various courts, integrity entities
and justice Acts to provide for the on-going
operation of certain processes and
procedures implemented during the
COVID-19 pandemic; and
(b) to amend the Independent Broad-based
Anti-corruption Commission Act 2011 to
provide for the on-going operation of certain
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Act 2021
No. of 2021
Part 1--Preliminary
processes and procedures implemented
during the COVID-19 pandemic and to
provide for Deputy Commissioners to be
examiners; and
(c) to amend the Fines Reform Act 2014 in
relation to time served and fines; and
(d) to extend the default commencement and
repeal dates of the Justice Legislation
Amendment (Criminal Appeals) Act 2019;
and
(e) to consequentially amend the Interpretation
of Legislation Act 1984; and
(f) to extend the operation of certain provisions
relating to the COVID-19 pandemic in
various Acts.
2 Commencement
(1) This Part, Part 19, Division 2 of Part 20 and
Part 24 come into operation on the day after the
day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act, except
Part 22, come into operation on 26 April 2021.
(3) Subject to subsection (4), Part 22 comes into
operation on a day or days to be proclaimed.
(4) If a provision referred to in subsection (3) does
not come into operation before 23 February 2022,
it comes into operation on that day.
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Part 2--Amendment of the Evidence (Miscellaneous Provisions) Act 1958
Part 2--Amendment of the Evidence
(Miscellaneous Provisions) Act 1958
3 Definitions--section 3
In section 3(1) of the Evidence (Miscellaneous
Provisions) Act 1958, at the foot of the definition
of child, insert the following note--
"Note
See section 42C for the meaning of child for the purposes of
Part IIA.".
4 Definitions--section 42C
In section 42C of the Evidence (Miscellaneous
Provisions) Act 1958--
(a) insert the following definitions--
"exceptional circumstances includes, but is
not limited to--
(a) a state of emergency declared
under section 198 of the Public
Health and Wellbeing Act 2008
in an area where an accused is
required to appear before a court
or required to transit through in
order to appear before a court; or
(b) a state of disaster declared under
section 23 of the Emergency
Management Act 1986 in an area
where an accused is required to
appear before a court or required
to transit through in order to
appear before a court;
head of jurisdiction--
(a) in relation to the Supreme Court,
means the Chief Justice; and
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Part 2--Amendment of the Evidence (Miscellaneous Provisions) Act 1958
(b) in relation to the County Court,
means the Chief Judge; and
(c) in relation to the Magistrates'
Court, means the Chief
Magistrate; and
(d) in relation to the Children's Court,
means the President;";
(b) in the definition of court point, for
"other place" substitute "any other place or
places";
(c) in the definition of practice directions, for
"section 42Q" substitute "section 42UA";
(d) for the definition of remote point
substitute--
"remote point means a place where--
(a) a person appearing before the
court, giving evidence or making a
submission is located; or
(b) if Division 3 applies, the accused
is located;".
5 Appearance, etc. by audio visual link or audio link
After section 42E(5) of the Evidence
(Miscellaneous Provisions) Act 1958 insert--
"(6) The exercise of the power conferred on a
court to make a direction referred to in
subsection (1) is subject to any practice
directions.".
6 Special provisions applicable to certain proceedings
involving children
(1) In section 42F(6) of the Evidence (Miscellaneous
Provisions) Act 1958, for "42R(3)" (where twice
occurring) substitute "42R".
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Part 2--Amendment of the Evidence (Miscellaneous Provisions) Act 1958
(2) In section 42F(7) of the Evidence (Miscellaneous
Provisions) Act 1958, after "link" insert "unless
it is satisfied that exceptional circumstances
exist.".
7 Section 42G substituted
For section 42G of the Evidence (Miscellaneous
Provisions) Act 1958 substitute--
"42G Technical requirements for audio visual
links and audio links
(1) The technical requirements for an audio
visual link are--
(a) all appropriate persons at the court
point and a remote point have access to
equipment that enables them to see and
hear--
(i) the person appearing before the
court, giving evidence or making a
submission; and
(ii) other appropriate persons at the
court point, the remote point and
any other remote point; and
(b) any requirements prescribed by rules of
court for or with respect to the
following--
(i) the form of audio visual link;
(ii) the equipment, or class of
equipment, used to establish the
link;
(iii) the layout of cameras;
(iv) the standard, or speed, of
transmission;
(v) the quality of communication;
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(vi) any other matter relating to the
link; and
(c) any requirements imposed by the
presiding judge or magistrate.
(2) The technical requirements for an audio link
are--
(a) all appropriate persons at the court
point and a remote point have access to
equipment that enables them to hear--
(i) the person appearing before the
court, giving evidence or making a
submission; and
(ii) other appropriate persons at the
court point, the remote point and
any other remote point; and
(b) any requirements prescribed by rules of
court for or with respect to the
following--
(i) the form of audio link;
(ii) the equipment, or class of
equipment, used to establish the
link;
(iii) the standard, or speed, of
transmission;
(iv) the quality of communication;
(v) any other matter relating to the
link; and
(c) any requirements imposed by the
presiding judge or magistrate.
(3) Any requirements imposed by the presiding
judge or magistrate under subsection (1)(c)
or (2)(c) must not be inconsistent with any
provision of this Part or any rules of court.".
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Part 2--Amendment of the Evidence (Miscellaneous Provisions) Act 1958
8 Appearance of adult accused before Magistrates'
Court
(1) In section 42JA(1) of the Evidence
(Miscellaneous Provisions) Act 1958--
(a) for "Unless" substitute "Subject to
subsection (2) or (3), unless";
(b) for "(other than a proceeding referred to in
subsection (2) or (3))" substitute "(including
a proceeding with respect to bail or
sentencing)".
(2) After section 42JA(2) of the Evidence
(Miscellaneous Provisions) Act 1958 insert--
"(2A) Despite subsection (2)(b) and (c), until
26 April 2022 an accused is required to
appear before the Magistrates' Court by
audio visual link in the proceedings referred
to in those provisions unless the court makes
a direction under section 42L(1).".
9 Section 42K substituted
For section 42K of the Evidence (Miscellaneous
Provisions) Act 1958 substitute--
"42K Appearance of adult accused before court
other than Magistrates' Court
(1) Subject to subsection (2), unless a court
makes a direction under section 42L(1), an
accused, other than a child, being held in
custody who is required to appear, or be
brought, before a court other than the
Magistrates' Court in a proceeding is not
required to appear, or be brought, physically
before the court but may appear before it by
audio visual link.
(2) Unless a court makes a direction under
section 42M(1), an accused, other than a
child, being held in custody who is required
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to appear, or be brought, before a court other
than the Magistrates' Court on a trial (apart
from the arraignment of the accused) or
hearing of a charge, is required to appear, or
be brought, physically before the court.".
10 Making of direction for physical appearance in
section 42JA or 42K(1) proceedings
(1) In the heading to section 42L of the Evidence
(Miscellaneous Provisions) Act 1958, for
"42JA(1)" substitute "42JA".
(2) For section 42L(1) of the Evidence
(Miscellaneous Provisions) Act 1958
substitute--
"(1) A court may direct that an accused appear, or
be brought, physically before it in a
proceeding in which, by virtue of a provision
of section 42JA or section 42K(1), physical
appearance would not otherwise be required,
if--
(a) it is satisfied on an application made in
accordance with this section, that--
(i) physical appearance is required in
the interests of justice; or
(ii) it is not reasonably practicable for
the accused to appear before the
court by audio visual link; and
(b) it has considered--
(i) the impact of requiring a physical
appearance by the accused on the
court's case management
generally; and
(ii) any risk to public health by
requiring a physical appearance by
the accused, including any risks
involved in transporting the
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accused between the accused's
place of custody and the court.".
(3) In section 42L(1A) of the Evidence
(Miscellaneous Provisions) Act 1958, for "in a
proceeding referred to in section 42JA(1) is
required in the interests of justice, the Magistrates'
Court" substitute "is required in the interests of
justice, a court".
11 Making of direction for audio visual appearance in
section 42JA or 42K(2) proceedings
(1) In the heading to section 42M of Evidence
(Miscellaneous Provisions) Act 1958, for
"42JA(2)" substitute "42JA".
(2) In section 42M(1) of Evidence (Miscellaneous
Provisions) Act 1958, for "section 42JA(2) or"
substitute "a provision of section 42JA (other
than section 42JA(3)) or section".
(3) After section 42M(8) of the Evidence
(Miscellaneous Provisions) Act 1958 insert--
"(8A) An address to the court by a victim under
subsection (8) may be given--
(a) in person; or
(b) by audio visual link; or
(c) by audio link.".
12 Appearance before court of accused who is a child
Section 42O(b) of the Evidence (Miscellaneous
Provisions) Act 1958 is repealed.
13 Making of direction for audio visual appearance by
child
(1) In section 42P(7) of the Evidence (Miscellaneous
Provisions) Act 1958, for "if the court is satisfied
that exceptional circumstances exist." substitute
"if the court is satisfied--
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Part 2--Amendment of the Evidence (Miscellaneous Provisions) Act 1958
(a) that exceptional circumstances exist; or
(b) that appearance by audio visual link is--
(i) necessary for the purposes of the court's
case management generally; and
(ii) consistent with the interests of justice;
and
(iii) reasonably practicable in the
circumstances.".
(2) After section 42P(9) of the Evidence
(Miscellaneous Provisions) Act 1958 insert--
"(9A) An address to the court by a victim under
subsection (9) may be given--
(a) in person; or
(b) by audio visual link; or
(c) by audio link.".
14 Section 42Q repealed
Section 42Q of the Evidence (Miscellaneous
Provisions) Act 1958 is repealed.
15 Section 42R substituted
For section 42R of the Evidence (Miscellaneous
Provisions) Act 1958 substitute--
"42R Technical requirements for audio visual
appearance by accused
(1) The technical requirements for an audio
visual link by which an accused appears
before a court are--
(a) all appropriate persons at the court
point and a remote point have access to
equipment that enables them to see and
hear--
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Part 2--Amendment of the Evidence (Miscellaneous Provisions) Act 1958
(i) the accused--
(A) appearing before the court;
or
(B) entering a plea to a charge;
or
(C) giving evidence; or
(D) making a submission; and
(ii) other appropriate persons at the
court point, the remote point and
any other remote point; and
(b) the accused and any legal practitioner
representing the accused in the
proceeding have access to equipment
that, in accordance with any rules of
court, enables private communication
to take place, and documents to be
transmitted, between the accused and
the legal practitioner--
(i) during a hearing; or
(ii) during any adjournment of a
hearing; or
(iii) on the day of a hearing, shortly
before or after the hearing; and
(c) any requirements prescribed by rules of
court for or with respect to the
following--
(i) the form of audio visual link;
(ii) the equipment, or class of
equipment, used to establish the
link;
(iii) the layout of cameras;
(iv) the standard or speed of
transmission;
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(v) the quality of the communication;
(vi) any other matter relating to the
link; and
(d) any requirements imposed by the
presiding judge or magistrate.
(2) Requirements imposed under subsection
(1)(d) must not be inconsistent with any
provision of this Part or any rules of court.".
16 New sections 42RA and 42RB inserted
After section 42R of the Evidence
(Miscellaneous Provisions) Act 1958 insert--
"42RA Audio link appearance by accused in
certain circumstances
(1) An accused referred to in section 42JA(1) or
(2A) or 42K(1) who, in accordance with a
relevant provision of that section is permitted
to appear or be brought before the
Magistrates' Court or another court (as the
case requires) in a proceeding by audio
visual link may appear by audio link instead
if the relevant court makes a direction under
subsection (3).
(2) If a direction is made under one of the
following provisions for an accused to
appear in a proceeding by audio visual link,
the accused may appear by audio link instead
if the court makes a direction under
subsection (3)--
(a) section 42M(1) or (7);
(b) section 42MA;
(c) section 42P.
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(3) A court may make a direction for the
purposes of subsection (1) or (2) if--
(a) the accused is scheduled to appear by
audio visual link; and
(b) the audio visual link fails or is
otherwise unable to proceed; and
(c) the court needs to make orders or
directions in relation to adjourning the
proceeding to a time when--
(i) an audio visual link can proceed;
or
(ii) the accused can be brought
physically before the court; and
(d) the court is satisfied that the technical
requirements specified in section 42RB
are met or can be reasonably met.
(4) In a proceeding by audio link in accordance
with a direction made under subsection (3), a
court may make any orders it considers
necessary to facilitate the adjournment or
efficient administration of the proceeding.
42RB Technical requirements for audio link
appearance by accused
(1) The technical requirements for an audio link
by which an accused appears before a court
are--
(a) all appropriate persons at the court
point and a remote point have access to
equipment that enables them to hear--
(i) the accused; and
(ii) other appropriate persons at the
court point, the remote point and
any other remote point; and
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(b) the accused and any legal practitioner
representing the accused in the
proceeding have access to equipment
that, in accordance with any rules of
court, enables private communication
to take place, or documents to be
transmitted, between the accused and
the legal practitioner--
(i) during a hearing; or
(ii) during any adjournment of a
hearing; or
(iii) on the day of a hearing, shortly
before or after the hearing; and
(c) any requirements prescribed by rules of
court for or with respect to the
following--
(i) the form of audio link;
(ii) the equipment, or class of
equipment, used to establish the
link;
(iii) the standard or speed of
transmission;
(iv) the quality of the communication;
(v) any other matter relating to the
link; and
(d) any requirements imposed by the
presiding judge or magistrate.
(2) Requirements imposed under subsection
(1)(d) must not be inconsistent with any
provision of this Part or any rules of court.".
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17 Section 42S substituted
For section 42S of the Evidence (Miscellaneous
Provisions) Act 1958 substitute--
"42S Protection of communication between
accused and legal representative
Without limiting any other protection
applying to it--
(a) a communication by--
(i) audio link; or
(ii) audio visual link; or
(b) a communication in the circumstances
referred to in section 42R(1)(b) or
42RB(1)(b); or
(c) a document transmitted--
between an accused and the accused's legal
representative in accordance with this Part is
as confidential and as inadmissible in any
proceeding as it would be if the
communication took place or the document
was produced while they were in each other's
presence.".
18 Application of Surveillance Devices Act 1999
In section 42T of the Evidence (Miscellaneous
Provisions) Act 1958, after "audio visual link,"
insert "a communication in the circumstances
referred to in section 42R(1)(b) or 42RB(1)(b),".
19 Putting documents to a remote person
For section 42U(1) of the Evidence
(Miscellaneous Provisions) Act 1958
substitute--
"(1) If, in the course of an examination by audio
visual link or audio link of a person at a
remote point (the key remote point), it is
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necessary to put a document to the person,
the presiding judge or magistrate may permit
the document to be put to the person--
(a) if the document is at the court point or
another remote point--by transmitting
a copy of it to the key remote point by
any means and that copy being put to
the person; or
(b) if the document is at the key remote
point, by putting it to the person and
then transmitting a copy of it to the
court point and any other remote point
by any means.".
20 New section 42UA inserted
After section 42U of the Evidence
(Miscellaneous Provisions) Act 1958 insert--
"42UA Practice directions
The head of jurisdiction of a court from time
to time may issue practice directions,
statements or notes relating to the exercise
by the court of its discretion in relation to an
application made in accordance with any of
the following sections--
(a) section 42E;
(b) section 42L;
(c) section 42M;
(d) section 42N;
(e) section 42P.".
21 Application of laws about witnesses, etc.
(1) In section 42W(1) of the Evidence
(Miscellaneous Provisions) Act 1958, for
"The remote" substitute "A remote".
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(2) In section 42W(3) of the Evidence
(Miscellaneous Provisions) Act 1958, for
"the remote" substitute "a remote".
22 New sections 42Y and 42YA inserted
After section 42X of the Evidence
(Miscellaneous Provisions) Act 1958 insert--
"42Y Hearing not invalid because of failure to
comply with technical requirements
A hearing is not invalid merely because of a
failure to comply with the technical
requirements specified in section 42G, 42R
or 42RB.
42YA Repeal of temporary COVID-19 measures
On 27 April 2022--
(a) section 42JA(2A) is repealed; and
(b) in section 42RA(1) omit "or (2A)".".
23 New section 167 inserted
After section 166A of the Evidence
(Miscellaneous Provisions) Act 1958 insert--
"167 Transitional provision--Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021
(1) Despite the amendments to sections 42JA
and 42RA by section 42YA, any direction
made under section 42L or 42RA in relation
to a proceeding referred to in section 42JA
(2A), as in force immediately before its
repeal, continues to apply on and after those
amendments until the end of the hearing or
proceeding in respect of which the direction
was made, subject to any further order or
direction of the court.
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(2) For the purposes of a direction that continues
in accordance with subsection (1), Part IIA
continues to have effect as if sections 42JA
and 42RA had not been amended by section
42YA.".
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Part 3--Amendment of the Bail Act 1977
Part 3--Amendment of the Bail Act 1977
24 Definitions
In section 3 of the Bail Act 1977 insert the
following definitions--
"electronic signature includes, but is not limited
to--
(a) a person confirming their agreement by
electronically selecting an option
indicating affirmation; or
(b) a person providing a scanned or
photographed copy of a document
signed by hand;
section 17 notice means the written notice of
conditions of bail required by section 17;".
25 Surety for bail
In section 9(3B)(a)(ii) of the Bail Act 1977, after
"signed by the surety" insert "(including by
electronic signature)".
26 New sections 17A and 17B inserted
After section 17 of the Bail Act 1977 insert--
"17A Electronic signature of undertaking by
accused
(1) Without limiting how an accused may enter
into a written undertaking under section 5(1),
the requirements for an accused to enter into
a written undertaking are satisfied if--
(a) the bail decision maker, or another
authorised person, sends a copy of the
undertaking and a copy of the
section 17 notice to the accused by
electronic communication; and
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(b) the accused, by return electronic
communication to, or audio visual link
with, the bail decision maker or
authorised person confirms that the
accused--
(i) has received a copy of the
section 17 notice; and
(ii) understands the nature and extent
of the conditions of the accused's
bail; and
(iii) understands the consequences of
the failure to comply with the
conditions of bail; and
(c) the accused, by return electronic
communication to the bail decision
maker or authorised person signs the
undertaking by electronic signature;
and
(d) on receipt of the electronic
communication referred to in paragraph
(c) from the accused, the bail decision
maker or authorised person--
(i) makes a note on the undertaking
that the undertaking has been
entered into by the accused by
electronic signature; and
(ii) makes a note on the undertaking
stating the bail decision maker's or
authorised person's name and
position; and
(iii) attaches a copy of the electronic
communication from the accused
to the annotated undertaking.
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(2) Subject to subsection (3), if an undertaking is
entered into in accordance with subsection
(1), the annotated undertaking with the
attached electronic communication from the
accused constitutes the undertaking.
(3) If an undertaking entered into in accordance
with subsection (1) has a surety or sureties
and the surety signs the annotated
undertaking, the undertaking is constituted
by the annotated undertaking with attached
electronic communication from the accused.
(4) If an undertaking is entered into in
accordance with this section, the bail
decision maker or authorised person, without
delay, must cause a copy of the undertaking
and the section 17 notice to be sent to the
accused by electronic communication or
post.
(5) In this section--
authorised person means a person
authorised by section 27 to admit an
accused person to bail.
17B Electronic signature of undertaking by
child accused's parent or some other
person
(1) Without limiting how a parent of a child or
some other person (the undertaking person)
may enter into an undertaking under
section 16B, the requirements for an
undertaking person to enter into an
undertaking are satisfied if--
(a) the bail decision maker, or another
authorised person, sends a copy of the
undertaking and a copy of the
section 17 notice to the undertaking
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person by electronic communication;
and
(b) the undertaking person, by return
electronic communication to the bail
decision maker or authorised person,
signs the undertaking by electronic
signature; and
(c) on receipt of the electronic
communication from the undertaking
person, the bail decision maker or
authorised person--
(i) makes a note on the undertaking
that the undertaking has been
entered into by the undertaking
person by electronic signature;
and
(ii) makes a note on the undertaking
stating the bail decision maker's or
authorised person's name and
position; and
(iii) attaches a copy of the electronic
communication from the
undertaking person to the
annotated undertaking.
(2) Subject to subsection (3), if an undertaking is
entered into in accordance with subsection
(1), the annotated undertaking with the
attached electronic communication from the
undertaking person constitutes the
undertaking.
(3) If an undertaking entered into in accordance
with subsection (1) has a surety or sureties
and the surety signs the annotated
undertaking, the undertaking is constituted
by the annotated undertaking with the
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attached electronic communication from the
undertaking person.
(4) If an undertaking is entered into in
accordance with this section, the bail
decision maker or authorised person, without
delay, must cause a copy of the undertaking
and the section 17 notice to be sent to the
undertaking person by electronic
communication or post.
(5) In this section--
authorised person has the same meaning as
in section 17A(5).".
27 Admission to bail
(1) After section 27(1) of the Bail Act 1977 insert--
"(1A) For the purposes of subsection (1), it is
sufficient compliance with that subsection if
a person enters into an undertaking in
accordance with section 17A or 17B.".
(2) After section 27(2)(c) of the Bail Act 1977
insert--
"(ca) in the case of the Children's Court, a registrar
or deputy registrar;".
28 New section 32B inserted
After section 32A of the Bail Act 1977 insert--
"32B Appearing or being brought before a
court in a proceeding other than a
criminal proceeding
A person in a proceeding, other than a
criminal proceeding, may appear before a
court for the purposes of any provision of
this Act--
(a) personally; or
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(b) by a legal practitioner representing the
person; or
(c) by another person empowered by law to
appear for the person.
Note
Section 328 of the Criminal Procedure Act 2009 sets out
how a party to a criminal proceeding may appear before a
court.".
29 Transitional provisions
After section 34(20) of the Bail Act 1977
insert--
"(21) Any amendment made to this Act by Part 3
of the Justice Legislation Amendment
(System Enhancements and Other
Matters) Act 2021 applies to any hearing
under this Act or any application made under
this Act on or after the commencement of the
applicable provision of that Part, regardless
of--
(a) when the charge sheet was filed; or
(b) when the offence is alleged to have
been committed.".
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Part 4--Amendment of Children, Youth and Families Act 2005
Part 4--Amendment of Children, Youth and
Families Act 2005
30 Time and place of conciliation conference
At the end of section 221 of the Children, Youth
and Families Act 2005 insert--
"(2) For the purposes of this section, the place for
the holding of the conciliation conference
includes the holding of a conciliation
conference by audio link or audio visual
link.".
31 Who is to attend a conciliation conference?
After section 222(7) of the Children, Youth and
Families Act 2005 insert--
"(8) A convenor of a conciliation conference may
permit one or more persons referred to in this
section to attend the conciliation by means of
audio link or audio visual link.".
32 Conciliation counselling
After section 260(4) of the Children, Youth and
Families Act 2005 insert--
"(4A) The person conducting conciliation
counselling may permit one or more of the
parties to undertake conciliation counselling,
or participate in a conference, by means of
audio link or audio visual link.".
33 Application for permanent care order
In section 320(5)(c)(i), (ii) and (iii) of the
Children, Youth and Families Act 2005
omit "true".
34 Variation or revocation of permanent care order
In section 326(3)(c)(i), (ii) and (iii) of the
Children, Youth and Families Act 2005
omit "true".
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35 Requirements for youth control order planning
meetings
(1) After section 409T(2) of the Children, Youth
and Families Act 2005 insert--
"(2A) For the purposes of subsection (2), the place
at which the meeting is to be held includes a
meeting to be held by audio link or audio
visual link.".
(2) After section 409T(4) of the Children, Youth
and Families Act 2005 insert--
"(5) The convenor, having regard to the views of
the attendees of the meeting, may require or
permit one or more of the attendees to--
(a) appear before the meeting by audio
visual link or audio link; or
(b) participate in the meeting by making
oral or written submissions.".
36 Group conference
(1) After section 415(3) of the Children, Youth and
Families Act 2005 insert--
"(3A) For the purposes of subsection (3), the place
at which the group conference is to be held
includes a group conference to be held by
audio link or audio visual link.".
(2) After section 415(7) of the Children, Youth and
Families Act 2005 insert--
"(7A) The convenor, having regard to the views of
the attendees of the group conference, may
require or permit one or more of the
attendees to--
(a) appear before the group conference by
audio visual link or audio link; or
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(b) participate in the group conference by
making oral or written submissions.".
37 Section 505 substituted and new section 505A
inserted
For section 505 of the Children, Youth and
Families Act 2005 substitute--
"505 Where and when Court to be held
The Court may sit and act at any time and
place.
505A Court may order place of hearing which is
not a proper venue
(1) Without limiting section 505, the Court may
order that a hearing be held at an appropriate
place that is not the proper venue for the
hearing if the Court considers that--
(a) for any reason it is appropriate that the
hearing not be held at the proper venue;
and
(b) it is in the interests of justice that the
hearing not be held at the proper venue.
(2) In determining an appropriate place to hold a
hearing for the purposes of subsection (1),
the Court must first have regard to--
(a) places closest to the proper venue for
the hearing; and
(b) the views of the parties to the
proceeding.".
38 Joint committal proceedings
In section 516A(1) of the Children, Youth and
Families Act 2005, for "Despite section 505(3),
the" substitute "The".
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39 Power to adjourn proceeding
In section 530(5) of the Children, Youth and
Families Act 2005, after "audio visual link"
insert "or audio link".
40 Witness summonses
In section 532(5)(a) and (b) of the Children,
Youth and Families Act 2005 omit "true".
41 Powers of registrar
(1) In section 539(1) of the Children, Youth and
Families Act 2005--
(a) for paragraph (d) substitute--
"(d) power to abridge or extend the bail of a
person who has been granted bail in
relation to a criminal proceeding;";
(b) in paragraph (f), for "2016." substitute
"2016;";
(c) after paragraph (f) insert--
"(g) power to adjourn a criminal proceeding
or a proceeding under the Family
Violence Protection Act 2008, the
Personal Safety Intervention Orders
Act 2010 or the National Domestic
Violence Order Scheme Act 2016;
(h) power to abridge or extend the
adjournment of a criminal proceeding
or a proceeding under the Family
Violence Protection Act 2008, the
Personal Safety Intervention Orders
Act 2010 or the National Domestic
Violence Order Scheme Act 2016;
(i) power to otherwise change the time or
place at which a criminal proceeding or
a proceeding under the Family
Violence Protection Act 2008, the
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Personal Safety Intervention Orders
Act 2010 or the National Domestic
Violence Order Scheme Act 2016 is
listed before the Court.".
(2) In section 539(2) of the Children, Youth and
Families Act 2005, for "Subsection (1)(c) does
not empower" substitute "Nothing in this section
empowers".
(3) After section 539(2) of the Children, Youth and
Families Act 2005 insert--
"(3) The power under subsection (1)(d) to abridge
or extend the bail of a person may be
exercised--
(a) at any time, including on the day on
which the person's proceeding is listed
before the Court; and
(b) either in the presence or absence of the
person.
(4) The powers under subsection (1)(g), (h)
and (i) in respect of a proceeding may be
exercised--
(a) at any time, including on the day on
which the proceeding is listed before
the Court; and
(b) either in the presence or absence of the
parties.
(5) The powers under subsection (1)(d), (g), (h)
and (i) may be exercised--
(a) on the application of a party; or
(b) on the registrar's own initiative.".
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42 Service of documents
(1) In section 593(1) of the Children, Youth and
Families Act 2005--
(a) in paragraphs (a) and (b) omit "true";
(b) in paragraph (c)--
(i) omit "true";
(ii) for "age." substitute "age; or";
(c) after paragraph (c) insert--
"(d) by delivering a copy of the document to
the person by means of an electronic
communication that is confirmed as
having been received by the person; or
(e) by sending by registered post a copy of
the document, addressed to the person's
authorised legal representative, to the
place of business of the person's
authorised legal representative; or
(f) by leaving a copy of the document for
that person--
(i) at the place of business of the
person's authorised legal
representative; and
(ii) with a person who apparently
works there and who apparently is
not less than 16 years of age; or
(g) by delivering a copy of the document,
addressed to the person's authorised
legal representative, to the person's
authorised legal representative
personally; or
(h) by delivering a copy of the document to
the person's authorised legal
representative by means of an
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electronic communication that is
confirmed as having been received by
the person's authorised legal
representative.".
(2) After section 593(1) of the Children, Youth and
Families Act 2005 insert--
"(1A) For the purposes of subsection (1), a person
may deliver a copy of a document to another
person personally by placing a copy of the
document on a surface in the presence of the
other person.".
(3) After section 593(3) of the Children, Youth and
Families Act 2005 insert--
"(4) Subsections (1)(d), (e), (f), (g) and (h)
and (1A) apply to any other provision under
this Act that requires service to be by
registered post or personally or otherwise.
(5) In this section--
authorised legal representative of a person
means a legal representative of the
person who has been instructed by the
person to receive documents on the
person's behalf.".
43 Service on parent or child or other person
(1) In section 594 of the Children, Youth and
Families Act 2005--
(a) in paragraphs (a) and (b) omit "true";
(b) in paragraph (c)--
(i) omit "true";
(ii) for "age." substitute "age; or";
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(c) after paragraph (c) insert--
"(d) by delivering, not less than 5 days
before the hearing date stated in the
notice, a copy of the document to the
parent or the child or the person (as the
case requires), by means of an
electronic communication that is
confirmed as having been received by
the parent or the child or the person; or
(e) by sending by registered post, not less
than 14 days before the hearing date
stated in the notice, a copy of the
notice, addressed to the authorised legal
representative of the parent or the child
or the person (as the case requires), to
the place of business of the authorised
legal representative of the parent or the
child or the person; or
(f) by leaving, not less than 5 days before
the hearing date stated in the notice, a
copy of the notice for the parent or the
child or the person (as the case
requires)--
(i) at the place of business of the
authorised legal representative of
the parent or the child or the
person; and
(ii) with a person who apparently
works there and who apparently is
not less than 16 years of age; or
(g) by delivering, not less than 5 days
before the hearing date stated in the
notice, a copy of the notice, addressed
to the authorised legal representative of
the parent or the child or the person (as
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the case requires), to the authorised
legal representative personally; or
(h) by delivering, not less than 5 days
before the hearing date stated in the
notice, a copy of the notice to the
authorised legal representative of the
parent or the child or the person (as the
case requires) by means of an electronic
communication that is confirmed as
having been received by the authorised
legal representative.".
(2) At the end of section 594 of the Children, Youth
and Families Act 2005 insert--
"(2) In this section--
authorised legal representative of a child or
a parent of a child or other person
means a legal representative of the
child or the parent or other person who
has been instructed by the child or
parent or other person to receive
documents on behalf of the child or the
parent or other person.".
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No. of 2021
Part 5--Amendment of Criminal Procedure Act 2009
Part 5--Amendment of Criminal Procedure
Act 2009
44 Definitions
In section 3 of the Criminal Procedure Act 2009,
in paragraph (b) of the definition of attend, after
"link" insert "or audio link".
45 Court may decide pre-trial issue without a hearing
(1) For section 201(1) of the Criminal Procedure
Act 2009 substitute--
"(1) This section applies if the court is notified of
an issue under section 200(1) at least 14 days
before the day on which the trial of the
accused is listed to commence.
(1A) The court may decide the issue without an
oral hearing and entirely on the basis of
written submissions and without the
appearance of the parties--
(a) if the court is satisfied that it is in the
interests of justice to do so; and
(b) whether or not the parties consent to the
court doing so.
(1B) For the purposes of subsection (1A), in
deciding whether it is in the interests of
justice to decide the issue without an oral
hearing, the court must have regard to--
(a) the right of an accused to a fair hearing;
and
(b) the nature of the issue; and
(c) whether the accused or the offender
(as the case requires) has had the
opportunity to obtain legal advice; and
(d) whether the parties consent to the court
doing so.".
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Part 5--Amendment of Criminal Procedure Act 2009
(2) In section 201(2) of the Criminal Procedure
Act 2009 for "parties agree to have the issue
decided" substitute "court decides to decide the
issue".
(3) Section 201(5) of the Criminal Procedure
Act 2009 is repealed.
46 DPP may discontinue a prosecution without
adjudication
In section 177(1)(a) of the Criminal Procedure
Act 2009, after "in court" insert "(including by
audio link or audio visual link)".
47 Power to adjourn proceeding
In section 331(6)(b) of the Criminal Procedure
Act 2009 omit "(within the meaning of Part IIA
of the Evidence (Miscellaneous Provisions)
Act 1958)".
48 New section 337A inserted
After section 337 of the Criminal Procedure
Act 2009 insert--
"337A Court may determine issue in criminal
proceeding without oral hearing
(1) In addition to, and without limiting,
section 201, a court may determine any issue
(other than determining whether an accused
is guilty or not guilty) in any criminal
proceeding without an oral hearing and
entirely on the basis of written submissions
and without the appearance of the parties--
(a) if the court is satisfied that it is in the
interests of justice to do so; and
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(b) whether or not the parties consent to the
court doing so.
Note
Section 201 provides for issues to be decided before
trial on the basis of written submissions and without
the appearance of the parties.
(2) For the purposes of subsection (1), in
determining whether it is in the interests of
justice to determine an issue in a criminal
proceeding without an oral hearing, the court
must have regard to--
(a) the right of an accused to be present at
the accused's trial; and
(b) the right of an accused to a fair hearing;
and
(c) the nature of the issue; and
(d) whether the accused or the offender
(as the case requires) has had the
opportunity to obtain legal advice; and
(e) whether the parties consent to the court
doing so.
(3) Nothing in this section affects any other
power of the court to determine an issue in a
criminal proceeding without an oral
hearing.".
49 Personal service
(1) In section 391(2)(b) of the Criminal Procedure
Act 2009 omit "if the person does not accept the
copy," .
(2) After section 391(2) of the Criminal Procedure
Act 2009 insert--
"(2A) For the purposes of subsection (2)(c), a
person satisfies the requirement to leave a
copy of a document with another person by
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putting a copy of the document down in the
presence of the other person and telling the
person the nature of the document.".
(3) After section 391(4)(c) of the Criminal
Procedure Act 2009 insert--
"(ca) delivering a copy of the document by means
of fax or email to the legal practitioner of the
person who--
(i) has consented to receiving documents
on the person's behalf by fax or email;
and
(ii) has provided a fax number or address
or email address to the prosecution or
informant in the matter in respect of
which the legal practitioner is
representing the person; or".
50 New section 456 inserted
After section 455 of the Criminal Procedure
Act 2009 insert--
"456 Transitional provisions--Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021
(1) Subject to subsection (2), this Act as
amended by Part 5 of the Justice Legislation
Amendment (System Enhancements and
Other Matters) Act 2021, applies, on and
from the commencement of a relevant
amendment in relation to a criminal
proceeding irrespective of when--
(a) the criminal proceeding commenced; or
(b) the offence to which the criminal
proceeding relates is alleged to have
been committed.
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Part 5--Amendment of Criminal Procedure Act 2009
(2) Section 201, as in force immediately before
its amendment by Part 5 of the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 continues to apply in relation to the
determination of an issue that a court--
(a) before the commencement of Part 5,
was notified of under section 200(1) at
least 14 days before the day on which
the trial of the accused was listed to
commence; and
(b) at that commencement, has not yet
decided.".
38
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No. of 2021
Part 6--Amendment of Supreme Court Act 1986
Part 6--Amendment of Supreme Court
Act 1986
51 Manner of making Rules
At the end of section 26 of the Supreme Court
Act 1986 insert--
"(2) Without limiting subsection (1), the Judges
of the Court may exercise the power to make
Rules by means of a majority of Judges of
the Court (not including any reserve Judge,
Associate Judge or reserve Associate Judge)
agreeing to the proposed Rules without being
physically present at a meeting held for that
purpose.".
52 New Division 1 of Part 6 inserted
Before Division 2 of Part 6 of the Supreme Court
Act 1986 insert--
"Division 1--Determinations without
oral hearing
62 Court may determine matter or
proceeding without oral hearing
(1) The Court may determine any matter in any
proceeding, or determine any proceeding,
without an oral hearing and entirely on the
basis of written submissions and without the
appearance of the parties--
(a) if the Court is satisfied that it is in the
interests of justice to do so; and
(b) whether or not the parties consent to the
Court doing so.
Note
This power does not apply to criminal proceedings--
see the definition of proceeding in section 3(1).
Section 337A of the Criminal Procedure Act 2009
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Part 6--Amendment of Supreme Court Act 1986
provides similarly for criminal proceedings. See also
section 201 of that Act.
(2) For the purposes of subsection (1), in
determining whether it is in the interests of
justice to determine a matter or a proceeding
without an oral hearing, the Court shall have
regard to--
(a) the nature of the matter or proceeding;
and
(b) the right to a fair hearing; and
(c) whether the parties have had the
opportunity to obtain legal advice; and
(d) whether the parties consent to the Court
doing so.
(3) Nothing in this section affects any other
power of the Court to determine a matter or a
proceeding without an oral hearing.".
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No. of 2021
Part 7--Amendment of County Court Act 1958
Part 7--Amendment of County Court
Act 1958
53 New section 36AA inserted
After section 36 of the County Court Act 1958
insert--
"36AA Court may determine matter or
proceeding without oral hearing
(1) The court may determine any matter in any
proceeding, or determine any proceeding,
without an oral hearing and entirely on the
basis of written submissions and without the
appearance of the parties--
(a) if the court is satisfied that it is in the
interests of justice to do so; and
(b) whether or not the parties consent to the
court doing so.
(2) Subsection (1) does not apply to a criminal
proceeding or a matter in a criminal
proceeding.
Note
Section 337A of the Criminal Procedure Act 2009
provides similarly for criminal proceedings. See also
section 201 of that Act.
(3) For the purposes of subsection (1), in
determining whether it is in the interests of
justice to determine a matter or a proceeding
without an oral hearing, the court shall have
regard to--
(a) the nature of the matter or proceeding;
and
(b) the right to a fair hearing; and
(c) whether the parties have had the
opportunity to obtain legal advice; and
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(d) whether the parties consent to the court
doing so.
(4) Nothing in this section affects any other
power of the court to determine a matter or a
proceeding without an oral hearing.".
42
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No. of 2021
Part 8--Amendment of Magistrates' Court Act 1989
Part 8--Amendment of Magistrates' Court
Act 1989
54 Powers of registrar
(1) In section 21(1) of the Magistrates' Court
Act 1989--
(a) for paragraph (c) substitute--
"(c) power to abridge or extend the bail of a
person who has been granted bail in
relation to a criminal proceeding;";
(b) in paragraph (g), for "2016." substitute
"2016;";
(c) after paragraph (g) insert--
"(h) power to adjourn a criminal proceeding
or a proceeding under the Family
Violence Protection Act 2008, the
Personal Safety Intervention Orders
Act 2010 or the National Domestic
Violence Order Scheme Act 2016;
(i) power to abridge or extend the
adjournment of a criminal proceeding
or a proceeding under the Family
Violence Protection Act 2008, the
Personal Safety Intervention Orders
Act 2010 or the National Domestic
Violence Order Scheme Act 2016;
(j) power to otherwise change the time or
place at which a criminal proceeding or
a proceeding under the Family
Violence Protection Act 2008, the
Personal Safety Intervention Orders
Act 2010 or the National Domestic
Violence Order Scheme Act 2016 is
listed before the Court.".
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No. of 2021
Part 8--Amendment of Magistrates' Court Act 1989
(2) In section 21(2) of the Magistrates' Court
Act 1989, for "Subsection (1)(c) does not
empower" substitute "Nothing in this section
empowers".
(3) After section 21(2) of the Magistrates' Court
Act 1989 insert--
"(3) The power under subsection (1)(c) to abridge
or extend the bail of a person may be
exercised--
(a) at any time, including on the day on
which the person's proceeding is listed
before the Court; and
(b) either in the presence or absence of the
person.
(4) The powers under subsection (1)(h), (i)
and (j) in respect of a proceeding may be
exercised--
(a) at any time, including on the day on
which the proceeding is listed before
the Court; and
(b) either in the presence or absence of the
parties.
(5) The powers under subsection (1)(c), (h), (i)
and (j) may be exercised--
(a) on the application of a party; or
(b) on the registrar's own initiative.".
55 Attendance of witnesses on adjournment
At the end of section 45 of the Magistrates'
Court Act 1989 insert--
"(2) A witness is not required to attend court on
the date and time specified in a witness
summons under subsection (1)(a), if the
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criminal proceeding is adjourned prior to the
date and time specified in that summons.".
56 New section 125A inserted
After section 125 of the Magistrates' Court
Act 1989 insert--
"125A Court may determine matter or
proceeding without oral hearing
(1) The court may determine any matter in any
proceeding, or determine any proceeding,
without an oral hearing and entirely on the
basis of written submissions and without the
appearance of the parties--
(a) if the court is satisfied that it is in the
interests of justice to do so; and
(b) whether or not the parties consent to the
court doing so.
(2) Subsection (1) does not apply to a criminal
proceeding or a matter in a criminal
proceeding.
Note
Section 337A of the Criminal Procedure Act 2009
provides similarly for criminal proceedings. See also
section 201 of that Act.
(3) For the purposes of subsection (1), in
determining whether it is in the interests of
justice to determine a matter or a proceeding
without an oral hearing, the court shall have
regard to--
(a) the nature of the matter or proceeding;
and
(b) the right to a fair hearing; and
(c) whether the parties have had the
opportunity to obtain legal advice; and
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(d) whether the parties consent to the court
doing so.
(4) Nothing in this section affects any other
power of the court to determine a matter or a
proceeding without an oral hearing.".
46
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No. of 2021
Part 9--Amendment of Victorian Civil and Administrative Tribunal Act
1998
Part 9--Amendment of Victorian Civil and
Administrative Tribunal Act 1998
57 Notice of hearings
After section 99(2) of the Victorian Civil and
Administrative Tribunal Act 1998 insert--
"(3) In this section, the place for the hearing of a
proceeding includes the hearing of a
proceeding by audio link or audio visual
link.".
58 Method of conducting hearings
For section 100(2) of the Victorian Civil and
Administrative Tribunal Act 1998 substitute--
"(2) The Tribunal may conduct all or part of a
proceeding entirely on the basis of
documents, without the appearance of the
parties or their representatives or witnesses,
unless a party objects to all or part of the
proceeding being conducted in this manner.
(3) The Tribunal may conduct all or part of a
proceeding (other than a prescribed
proceeding or a prescribed class of
proceeding) entirely on the basis of
documents, without the appearance of the
parties or their representatives or witnesses,
if--
(a) a party objects to all or part of the
proceeding being conducted in this
manner; and
(b) the Tribunal is satisfied that the
objection is not reasonable.".
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No. of 2021
Part 9--Amendment of Victorian Civil and Administrative Tribunal Act
1998
59 Witness summons
After section 104(3) of the Victorian Civil and
Administrative Tribunal Act 1998 insert--
"(3A) A person who receives a summons to
produce documents may produce the
documents by filing them with the Tribunal
by electronic communication or by post.
(3B) A person who receives a summons to
physically attend the Tribunal under
subsection (1) may instead appear before the
Tribunal by audio link or audio visual link.".
60 Who presides at a meeting?
In section 154 of the Victorian Civil and
Administrative Tribunal Act 1998, after
"the Rules Committee" insert "(including a
meeting held by remote means)".
61 Quorum and meeting procedure
In section 155(2) of the Victorian Civil and
Administrative Tribunal Act 1998, after
"a meeting" insert "(including a meeting held by
remote means)".
62 Power to make rules
(1) In section 157(1) of the Victorian Civil and
Administrative Tribunal Act 1998 omit ", at a
meeting,".
(2) After section 157(1) of the Victorian Civil and
Administrative Tribunal Act 1998 insert--
"(1A) If the Rules Committee makes Rules at a
meeting (including a meeting held by remote
means) the quorum requirements specified in
section 155 apply.
(1B) The Rules Committee may decide the
procedures for making Rules other than at a
meeting.".
48
Justice Legislation Amendment (System Enhancements and Other Matters)
Act 2021
No. of 2021
Part 10--Amendment of the Electronic Transactions (Victoria) Act 2000
Part 10--Amendment of the Electronic
Transactions (Victoria) Act 2000
63 Purposes
After section 1(b) of the Electronic Transactions
(Victoria) Act 2000 insert--
"(ba) to provide for witnessing by audio visual
link;".
64 Outline of Act
After section 5(1)(b) of the Electronic
Transactions (Victoria) Act 2000 insert--
"(ba) for the purposes of a law of this jurisdiction,
witnessing may occur by audio visual link;".
65 Exemptions
After section 6A(1)(a) of the Electronic
Transactions (Victoria) Act 2000 insert--
"(ab) to witnessing in accordance with a law of
this jurisdiction, (including but not limited to
witnessing by audio visual link), whether--
(i) generally; or
(ii) to specified transactions or classes of
transaction; or
(iii) to specified documents or classes of
document; or
(iv) to specified persons or classes of
person; or".
66 Signatures
(1) In section 9(1)(c) of the Electronic Transactions
(Victoria) Act 2000, after "paragraph (a)" insert
", having regard to the fact that it is not a
sufficient reason to refuse to give consent merely
because a person proposes to use a method
mentioned in that paragraph".
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Part 10--Amendment of the Electronic Transactions (Victoria) Act 2000
(2) After section 9(1) of the Electronic Transactions
(Victoria) Act 2000 insert--
"(1A) For the avoidance of doubt, a requirement
for a signature of a person may be met by
electronic signature under subsection (1).
Example
Confirming a person's agreement by electronically
selecting an option indicating agreement or
affirmation.
(1B) For the purposes of this section, in relation to
a transaction or other signing of a document,
not all signatures are required to appear on
the one copy of a document.".
67 New sections 12 to 12B inserted
After section 11 of the Electronic Transactions
(Victoria) Act 2000 insert--
'12 Witnessing by audio visual link
(1) A law of this jurisdiction in relation to a
requirement for the presence of a witness,
signatory or other person may be met by the
witness, signatory or other person being
present by audio visual link.
Examples
1 A person observing another person by audio
visual link in order to sign a document
confirming that person's identity.
2 A person observing, by audio visual link, another
person writing that other person's signature in
order to sign a document as a witness to that
other person's signature.
(2) For the purposes of this section, the
following requirements must be met--
(a) if the transaction involved a person
signing a document, the witness saw
the signatory sign the document; and
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(b) the witness must be reasonably satisfied
that the document signed as a witness is
the same document or a copy of the
document; and
(c) all requirements for witnessing by
audio visual link occurred on the same
day; and
(d) any other prescribed requirements (if
any); and
(e) the witness must ensure a statement is
included on the document the witness
signs that all the requirements of this
section have been met.
(3) A witness need not be physically located in
Victoria, unless otherwise required by a law
of this jurisdiction.
(4) Nothing in this section is taken to interfere
with any Act or law, including the common
law or equitable duties or interests arising
out of the law of misrepresentation,
unconscionability, duress or undue influence.
(5) This section does not affect the operation of
any other law of this jurisdiction that makes
provision for or in relation to--
(a) a witnessing requirement which could
not be met by witnessing by audio
visual link; or
(b) a particular method to be used to
witness a document by audio visual
link.
12A Deeds
(1) A deed--
(a) may be created in electronic form; and
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Part 10--Amendment of the Electronic Transactions (Victoria) Act 2000
(b) may be signed, sealed and delivered by
electronic communication.
(2) A provision of this Act that applies in
relation to a transaction applies in relation to
a deed referred to in subsection (1) as if a
reference to "transaction" includes a
reference to that deed.
(3) Nothing in this section is taken to interfere
with any Act or law, including the common
law or equitable duties or interests arising
out of the law of misrepresentation,
unconscionability, duress or undue influence.
12B Mortgages
(1) A mortgage may be in electronic form.
(2) A provision of this Act that applies in
relation to a transaction applies in relation to
a mortgage referred to in subsection (1) as if
a reference to "transaction" includes a
reference to that mortgage.
(3) Nothing in this section is taken to interfere
with any Act or law, including the common
law or equitable duties or interests arising
out of the law of misrepresentation,
unconscionability, duress or undue influence.
(4) This section does not affect the operation of
any other law of this jurisdiction that makes
specific provision for or in relation to the
requirements for a mortgage in electronic
form.
Example
The operation of the Electronic Conveyancing
National Law (Victoria) in relation to electronic
lodgement of mortgages or other documents under
that Law.'.
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Part 10--Amendment of the Electronic Transactions (Victoria) Act 2000
68 New section 17 inserted
After section 16 of the Electronic Transactions
(Victoria) Act 2000 insert--
"17 Transitional provisions--Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021
On and from the commencement of Part 10
of the Justice Legislation Amendment
(System Enhancements and Other
Matters) Act 2021, any transaction, deed or
mortgage signed or witnessed under this Act
as modified by Part 2 of the COVID-19
Omnibus (Emergency Measures) (Electronic
Signing and Witnessing) Regulations 2020
(as in force immediately before their
revocation) continues to be a validly signed
or witnessed transaction, deed or mortgage
despite that revocation.".
53
Justice Legislation Amendment (System Enhancements and Other Matters)
Act 2021
No. of 2021
Part 11--Amendment of the Oaths and Affirmations Act 2018
Part 11--Amendment of the Oaths and
Affirmations Act 2018
69 Oath or affirmation to be said aloud
At the end of section 9 of the Oaths and
Affirmations Act 2018 insert--
"(2) For the purposes of subsection (1), an oath or
affirmation may be said aloud in the physical
presence of the administering officer or by
audio visual link or audio link.".
70 New section 18A inserted
After section 18 of the Oaths and Affirmations
Act 2018 insert--
"18A Electronic signatures and initials
A requirement under this Part for a deponent
or an authorised affidavit taker to sign or
initial an affidavit, a jurat, an exhibit, a
certificate or other document attached to an
affidavit is satisfied if the deponent or the
authorised affidavit taker signs or initials the
affidavit, jurat, exhibit, certificate or other
document by electronic means.".
71 Signature and oath requirements--deponent
In section 25 of the Oaths and Affirmations
Act 2018--
(a) in subsection (1), after "presence" insert
"(whether physically or by audio visual
link)";
(b) in subsection (2), after "presence" insert
"(whether physically or by audio visual
link)".
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Part 11--Amendment of the Oaths and Affirmations Act 2018
72 Requirements of authorised affidavit taker
After section 26(4) of the Oaths and
Affirmations Act 2018 insert--
"(5) If an affidavit has been signed and sworn or
affirmed by a deponent under section 25 by
audio visual link, an authorised affidavit
taker may use a scanned or electronic copy
of the affidavit for the purposes of
complying with the requirements of this
section and section 27.".
73 Jurat
After section 27(1) of the Oaths and
Affirmations Act 2018 insert--
"(1A) If an affidavit has been signed and sworn or
affirmed by a deponent by audio visual link
and the authorised affidavit taker has used a
scanned or electronic copy of the affidavit
for the purposes of complying with the
requirements of section 26, the authorised
affidavit taker, in addition to any other
requirements of this section, must state
that--
(a) the affidavit was signed and sworn or
affirmed by the deponent by audio
visual link; and
(b) the authorised affidavit taker has used a
scanned or electronic copy of the
affidavit and not the original in
completing the jurat requirements under
subsection (1).".
55
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No. of 2021
Part 11--Amendment of the Oaths and Affirmations Act 2018
74 New sections 28A and 28B inserted
After section 28 of the Oaths and Affirmations
Act 2018 insert--
"28A Inability to comply with requirements--
admission into evidence
A court or tribunal may admit a purported
affidavit that does not comply with section
25, 26 or 27 into evidence in a particular
proceeding if--
(a) the purported affidavit states the reason
why the deponent or authorised
affidavit taker (as the case requires)
was unable to comply with section 25,
26 or 27; and
(b) the court or tribunal, in considering the
reason, is satisfied that it is in the
interests of justice to admit the
purported affidavit into evidence.
28B Audio visual procedures do not limit other
duties and obligations
(1) The use of audio visual procedures under this
Part in relation to affidavits applies subject to
any express contrary intention imposed by
any other duty or obligation under any Act
(including a Commonwealth Act) or at
common law applying to a person as a
deponent or an authorised affidavit taker in
relation to affidavits.
(2) Nothing in this Part limits any requirement
imposed by this Part by which a person must
not write or do something without first being
satisfied of certain matters.".
56
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Part 11--Amendment of the Oaths and Affirmations Act 2018
75 New section 29A inserted
Before section 30 of the Oaths and Affirmations
Act 2018 insert--
"29A Electronic signatures and initials
A requirement under this Part for a person
making a statutory declaration or a statutory
declaration witness to sign or initial a
statutory declaration, an exhibit, a certificate
or other document attached to a statutory
declaration is satisfied if the person making a
statutory declaration or a statutory
declaration witness signs or initials the
statutory declaration, exhibit, certificate or
other document by electronic means.".
76 Statutory declarations made in Victoria
In section 30 of the Oaths and Affirmations
Act 2018--
(a) in subsection (2), after "presence" insert
"(whether physically or by audio visual
link)";
(b) in subsection (3), after "presence" insert
"(whether physically or by audio visual
link)";
(c) in subsection (4), after "presence" insert
"(whether physically or by audio visual
link)".
77 New sections 30A and 30B inserted
After section 30 of the Oaths and Affirmations
Act 2018 insert--
"30A Requirements if statutory declaration
made or witnessed by audio visual link or
in electronic form
(1) If a statutory declaration is made in
electronic form or is witnessed under
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section 30 by audio visual link, the statutory
declaration witness may use a scanned or
electronic copy of the statutory declaration
for the purposes of complying with the
requirements of this Part.
(2) If a statutory declaration is made in
electronic form or is witnessed under
section 30 by audio visual link, in addition to
any other requirements of this Part, the
statutory declaration must include a
statement--
(a) specifying the manner of that making or
witnessing; and
(b) whether a scanned or electronic copy of
the statutory declaration was used in
accordance with subsection (1).
(3) A statement required under subsection (2)
may be pre-filled on the form of statutory
declaration.
30B Audio visual procedures do not limit other
duties and obligations
(1) The use of audio visual procedures under this
Part in relation to statutory declarations
applies subject to any express contrary
intention imposed by any other duty or
obligation under any Act (including any
Commonwealth Act) or at common law
applying to a person who makes a statutory
declaration or a statutory declaration witness
in relation to statutory declarations.
(2) Nothing in this Part limits any requirement
imposed by this Part by which a person must
not write or do something without first being
satisfied of certain matters.".
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Part 11--Amendment of the Oaths and Affirmations Act 2018
78 New section 60 inserted
At the end of Part 7 of the Oaths and
Affirmations Act 2018 insert--
"60 Transitional provisions--Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021
On and from the commencement of Part 11
of the Justice Legislation Amendment
(System Enhancements and Other
Matters) Act 2021, any statutory declaration
made under this Act as modified by Part 3 of
the COVID-19 Omnibus (Emergency
Measures) (Electronic Signing and
Witnessing) Regulations 2020 (as in force
immediately before their revocation)
continues to be a valid statutory declaration
despite that revocation.".
59
Justice Legislation Amendment (System Enhancements and Other Matters)
Act 2021
No. of 2021
Part 12--Amendment of the Wills Act 1997
Part 12--Amendment of the Wills Act 1997
79 Definitions
(1) In section 3(1) of the Wills Act 1997 insert the
following definitions--
"remote execution procedure means the
procedure set out in section 8A;
special witness means--
(a) an Australian legal practitioner; or
(b) a justice of the peace appointed under
section 7 of the Honorary Justices
Act 2014; or
(c) a person who is a member of a
prescribed class of person;".
(2) In section 3(1) of the Wills Act 1997, in the
definition of document, after "writing" insert
"and if the remote execution procedure is used,
includes a document in electronic form".
80 How should a will be executed?
(1) In section 7(2) of the Wills Act 1997, for
"A statement" substitute "Subject to the
requirements of the remote execution procedure,
a statement".
(2) After section 7(4) of the Wills Act 1997 insert--
'(5) For the purposes of this section, a will may
be executed by using the remote execution
procedure and that will is a valid will.
(6) For the purposes of this section, a signature
may be an electronic signature if the remote
execution procedure is used.
(7) For the purposes of this section "in the
presence of" includes being present by audio
visual link in accordance with the remote
execution procedure.'.
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No. of 2021
Part 12--Amendment of the Wills Act 1997
81 New sections 8A to 8D inserted
After section 8 of the Wills Act 1997 insert--
"8A Remote execution procedure
(1) A will may be executed under this Act in
accordance with the remote execution
procedure set out in this section.
Note
See section 3(2) regarding codicils and other
testamentary writing.
(2) One of the witnesses must be a special
witness and, if more than one witness
qualifies as a special witness, only one of the
special witnesses is to be the special witness.
(3) All elements of the remote execution
procedure must be carried out on the same
day and within Victoria.
(4) The testator must either--
(a) sign the will with all witnesses clearly
seeing that signature being made by
audio visual link or a combination of
physical presence and audio visual link;
or
(b) direct another person (the substitute
signatory) to sign the will with all
witnesses clearly seeing and hearing the
direction of the testator to the substitute
signatory and all witnesses and the
testator seeing the substitute signatory's
signature being made on behalf of the
testator by audio visual link or a
combination of physical presence and
audio visual link.
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Part 12--Amendment of the Wills Act 1997
(5) Subject to subsection (6), any witness who is
physically present with the testator then
signs the will in accordance with the
requirements for witnesses under this Act.
(6) The special witness must sign the will as the
special witness last, whether the special
witness is physically present with the testator
or not.
(7) The will is then transmitted by electronic
communication to any witness attending by
audio visual link who must--
(a) be reasonably satisfied that the
document which the witness is to sign
is the same document that the testator
(or the substitute signatory on behalf of
the testator) signed; and
(b) ensure that there is on the will a
statement that the witness witnessed the
will by audio visual link in accordance
with the remote execution procedure;
and
(c) sign the will as a witness with the
testator clearly seeing the signature of
the witness being made by audio visual
link; and
(d) if the witness is the special witness, in
addition to complying with paragraphs
(a) to (c), the special witness must
check the will for compliance with the
remote execution procedure and ensure
that there is a statement on the will
setting out--
(i) that the will was signed and
witnessed in accordance with the
remote execution procedure; and
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Part 12--Amendment of the Wills Act 1997
(ii) that the person is a special witness
and what type of special witness
the person is; and
(iii) whether an audio visual recording
was made of the signing or
witnessing of the will by the
remote execution procedure.
8B Which document is the will?
(1) If a will is executed in accordance with the
remote execution procedure, the document
which has been checked and signed by the
special witness in accordance with section
8A(7) is the valid will.
(2) The place of execution of a will executed in
accordance with the remote execution
procedure is the place where the testator is
located at the time the will is executed.
(3) A document purporting to be a will other
than the will referred to in subsection (1)
cannot be used unless Division 3 of Part 2 or
Part 3 applies to it.
(4) Subject to subsection (3), counterpart
documents do not constitute a valid will.
8C Recording of remote execution procedure
(1) An audio visual recording of the execution of
a will by remote execution procedure may be
made only if all of the parties to the
procedure consent to a recording being
made.
(2) The making of a recording or the failure to
make a recording referred to in subsection
(1) does not affect the validity of the will
executed by the remote execution procedure
or the use of that procedure.
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Part 12--Amendment of the Wills Act 1997
8D Remote execution procedure does not
limit other duties and obligations
(1) The use of the remote execution procedure
applies in addition to any other duty or
obligation under any Act (including any
Commonwealth Act) or at common law
applying to a person as a testator or witness
to a will or other testamentary document.
(2) The use of the remote execution procedure
does not limit any requirement imposed by
this Act by which a person must not write or
do something without first being satisfied of
certain matters.".
82 What persons cannot act as witnesses to wills?
At the end of section 10 of the Wills Act 1997
insert--
'(2) For the purposes of this section, "signed"
includes signed by electronic signature if the
remote execution procedure is used.'.
83 When and how can a will be revoked?
After section 12(2) of the Wills Act 1997
insert--
"(3) For the purposes of subsection (2)(e), a will
may be revoked by using the remote
execution procedure and that revocation is a
valid revocation.".
84 Can a will be altered?
After section 15(3) of the Wills Act 1997
insert--
"(4) For the purposes of this section, a will may
be altered by using the remote execution
procedure and that alteration is a valid
alteration.
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(5) For the purposes of this section, a signature
may be an electronic signature if the remote
execution procedure is used.".
85 Can a revoked will be revived?
After section 16(4) of the Wills Act 1997
insert--
"(5) For the purposes of this section, a will or
codicil may be executed or re-executed by
using the remote execution procedure and
that revived will or that codicil is a valid
document.".
86 Application of Act to international wills
At the end of section 19E of the Wills Act 1997
insert--
"(2) Despite subsection (1), the remote execution
procedure (including electronic signatures)
cannot be used for international wills.".
87 New section 50A inserted
After section 50 of the Wills Act 1997 insert--
"50A Regulations
(1) The Governor in Council may make
regulations for or with respect to--
(a) requirements for remote execution
procedures and witnessing by audio
visual link, including, but not limited to
different requirements for--
(i) different documents or classes of
document; or
(ii) different witnesses or classes of
witness; or
(iii) different testators or classes of
testator; or
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(iv) different forms or processes for
the use of electronic signatures or
the use or form of documents in
electronic formats;
(b) forms;
(c) fees;
(d) persons or classes of person to be
special witnesses;
(e) prescribing penalties not exceeding
20 penalty units for a contravention of
the regulations;
(f) any other matter or thing required or
permitted by this Act to be prescribed
or necessary to be prescribed to give
effect to this Act.
(2) The regulations may--
(a) be of general or limited application;
(b) differ according to differences in time,
place or circumstance;
(c) leave any matter or thing to be from
time to time determined, applied,
dispensed with or regulated by a
specified person;
(d) provide in a specified case or class of
cases for the exemption of persons or
things or a class of persons or things
from any of the provisions of the
regulations whether--
(i) unconditionally or on specified
conditions; and
(ii) either wholly or to the extent
specified in the regulations.".
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88 New section 57 inserted
After section 56 of the Wills Act 1997 insert--
"57 Transitional provisions--Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021
On and from the commencement of Part 12
of the Justice Legislation Amendment
(System Enhancements and Other
Matters) Act 2021, any will or testamentary
document executed or witnessed under this
Act as modified by Part 5 of the COVID-19
Omnibus (Emergency Measures) (Electronic
Signing and Witnessing) Regulations 2020
(as in force immediately before their
revocation) continues to be a valid will or
testamentary document despite that
revocation.".
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Part 13--Amendment of the Powers of Attorney Act 2014
Part 13--Amendment of the Powers of
Attorney Act 2014
89 Definitions
In section 3(1) of the Powers of Attorney
Act 2014 insert the following definitions--
"remote witnessing procedure means the
procedure set out in section 5A;
special witness means--
(a) an Australian legal practitioner; or
(b) a justice of the peace appointed under
section 7 of the Honorary Justices
Act 2014; or
(c) a person who is a member of a
prescribed class of person;".
90 New sections 5A to 5D inserted
After section 5 of the Powers of Attorney
Act 2014 insert--
"5A Remote witnessing procedure
(1) A power of attorney or other document under
this Act that is required to be executed with a
witness may be executed in accordance with
the remote witnessing procedure set out in
this section.
(2) One of the witnesses must be a special
witness and, if more than one witness
qualifies as a special witness, only one of the
special witnesses is to be the special witness
if the document being executed is--
(a) an enduring power of attorney under
section 33; or
(b) an instrument of revocation under
section 46; or
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(c) a supportive attorney appointment
under section 95; or
(d) a form of revocation under section 105.
(3) All elements of the remote witnessing
procedure must be carried out on the same
day and within Victoria.
(4) The principal must either--
(a) sign the power of attorney or other
document with any required witnesses
clearly seeing that signature being
made by audio visual link or a
combination of physical presence and
audio visual link; or
(b) if permitted, direct another person (the
substitute signatory) to sign the power
of attorney or other document with any
required witnesses clearly seeing and
hearing the direction of the principal to
the substitute signatory and all
witnesses and the principal clearly
seeing the substitute signatory's
signature being made on behalf of the
principal by audio visual link or a
combination of physical presence and
audio visual link.
(5) Subject to subsection (6), any witness who is
physically present with the principal then
signs the power of attorney or other
document in accordance with the
requirements for witnesses under this Act.
(6) If a special witness is required, that witness
must sign the document last regardless of
whether the special witness is physically
present.
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(7) In addition to any other requirements under
this Act, the power of attorney or other
document is then transmitted by electronic
communication to any witness attending by
audio visual link who must--
(a) be reasonably satisfied that the
document which the witness is to sign
is the same document that the principal
(or the substitute signatory on behalf of
the principal) signed; and
(b) certify on the power of attorney or
other document a statement that the
witness witnessed the power of attorney
or other document by audio visual link
in accordance with the remote
witnessing procedure; and
(c) sign and date the power of attorney or
other document in the presence by
audio visual link of the principal and
other witnesses; and
(d) if the witness is the special witness, in
addition to complying with paragraphs
(a) to (c), the special witness must
check the power of attorney or other
document for compliance with the
remote witnessing procedure and
certify on the power of attorney or
other document--
(i) that the power of attorney or other
document was signed and
witnessed in accordance with the
remote witnessing procedure; and
(ii) that the person making the
certification is a special witness
and what type of special witness
the person is; and
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(iii) whether an audio visual recording
was made of the signing or
witnessing of the power of
attorney or other document by the
remote witnessing procedure.
(8) For the purposes of subsections (4), (5) and
(7), principal includes an attorney under
section 37, an alternative attorney under
section 38, a supportive attorney under
section 99 and an alternative supportive
attorney under section 100.
5B Which document is the power of attorney
or other document?
(1) If a power of attorney or other document is
executed in accordance with the remote
witnessing procedure and requires a special
witness, the document which has been
certified by the special witness in accordance
with section 5A(7) is the valid power of
attorney or other document.
(2) If a power of attorney or other document is
executed in accordance with the remote
witnessing procedure and does not require a
special witness, the document which
contains the principal's signature (or the
signature of the substitute signatory on
behalf of the principal) and all the witness
signatures is the valid power of attorney or
other document.
(3) The place of execution of a power of
attorney or other document executed or
signed in accordance with the remote
witnessing procedure is the place where the
principal is located at the time the power of
attorney or other document is executed or
signed.
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(4) Counterpart documents do not constitute a
valid power of attorney or other document.
5C Recording of remote witnessing procedure
(1) An audio visual recording of the execution or
signing of a power of attorney or other
document by remote witnessing procedure
may be made only if all of the parties to the
procedure consent to a recording being
made.
(2) The making of a recording or the failure to
make a recording referred to in subsection
(1) does not affect the validity of the power
of attorney or other document executed or
signed by the remote witnessing procedure
or the use of that procedure.
5D Remote witnessing procedure does not
limit other duties and obligations
(1) The use of the remote witnessing procedure
applies in addition to any other duty or
obligation under any Act (including any
Commonwealth Act) or at common law
applying to a person as a principal or witness
to a power of attorney or other document.
(2) The use of the remote witnessing procedure
does not limit any requirement imposed by
this Act by which a person must not write or
do something without first being satisfied of
certain matters.
Example
Sections 36, 49 and 98 impose certain certification
requirements.".
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91 How should a non-enduring power of attorney be
executed?
After section 11(2) of the Powers of Attorney
Act 2014 insert--
'(3) For the purposes of this section, a non-
enduring power of attorney may be executed
by using the remote witnessing procedure
and is a valid non-enduring power of
attorney.
(4) For the purposes of this section, a signature
may be an electronic signature if the remote
witnessing procedure is used.
(5) For the purposes of this section "in the
presence of" includes being present by audio
visual link in accordance with the remote
witnessing procedure.'.
92 How should an enduring power of attorney be
executed?
At the end of section 33 of the Powers of
Attorney Act 2014 insert--
'(2) For the purposes of this section, an enduring
power of attorney may be executed by using
the remote witnessing procedure and is a
valid enduring power of attorney.
(3) For the purposes of this section, a signature
may be an electronic signature if the remote
witnessing procedure is used.
(4) For the purposes of this section "in the
presence of" includes being present by audio
visual link in accordance with the remote
witnessing procedure.'.
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93 Certification of witness to signing
After section 36(3) of the Powers of Attorney
Act 2014 insert--
'(4) For the purposes of this section, a signature
may be an electronic signature if the remote
witnessing procedure is used.
(5) For the purposes of this section "in the
presence of" includes being present by audio
visual link in accordance with the remote
witnessing procedure.'.
94 Acceptance by attorney
At the end of section 37 of the Powers of
Attorney Act 2014 insert--
"(2) For the purposes of subsection (1)(b), an
enduring power of attorney accepted by an
attorney who is not a trustee company is
effective if the statement of acceptance is
signed using the remote witnessing
procedure.
(3) For the purposes of subsection (1)(b), a
signature may be an electronic signature if
the remote witnessing procedure is used.".
95 Acceptance by alternative attorney
At the end of section 38 of the Powers of
Attorney Act 2014 insert--
"(2) For the purposes of subsection (1)(b), an
enduring power of attorney accepted by an
alternative attorney who is not a trustee
company is effective if the statement of
acceptance is signed using the remote
witnessing procedure.
(3) For the purposes of subsection (1)(b), a
signature may be an electronic signature if
the remote witnessing procedure is used.".
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96 How should an instrument of revocation be
executed?
At the end of section 46 of the Powers of
Attorney Act 2014 insert--
'(2) For the purposes of this section, an
instrument of revocation may be executed by
using the remote witnessing procedure and is
a valid instrument of revocation.
(3) For the purposes of this section, a signature
may be an electronic signature if the remote
witnessing procedure is used.
(4) For the purposes of this section "in the
presence of" includes being present by audio
visual link in accordance with the remote
witnessing procedure.'.
97 Certification of witness to signing of instrument of
revocation
After section 49(3) of the Powers of Attorney
Act 2014 insert--
'(4) For the purposes of this section, a signature
may be an electronic signature if the remote
witnessing procedure is used.
(5) For the purposes of this section "in the
presence of" includes being present by audio
visual link in accordance with the remote
witnessing procedure.'.
98 How should an appointment be executed?
At the end of section 95 of the Powers of
Attorney Act 2014 insert--
'(2) For the purposes of this section, a supportive
attorney appointment may be executed by
using the remote witnessing procedure and is
a valid supportive attorney appointment.
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(3) For the purposes of this section, a signature
may be an electronic signature if the remote
witnessing procedure is used.
(4) For the purposes of this section "in the
presence of" includes being present by audio
visual link in accordance with the remote
witnessing procedure.'.
99 Certification of witness to signing of appointment
form
After section 98(3) of the Powers of Attorney
Act 2014 insert--
'(4) For the purposes of this section, a signature
may be an electronic signature if the remote
witnessing procedure is used.
(5) For the purposes of this section "in the
presence of" includes being present by audio
visual link in accordance with the remote
witnessing procedure.'.
100 Acceptance by supportive attorney
At the end of section 99 of the Powers of
Attorney Act 2014 insert--
"(2) For the purposes of this section, a supportive
attorney appointment is effective as to a
supportive attorney appointment if the
statement of acceptance is signed using the
remote witnessing procedure.
(3) For the purposes of this section, a signature
may be an electronic signature if the remote
witnessing procedure is used.".
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101 Acceptance by alternative attorney
At the end of section 100 of the Powers of
Attorney Act 2014 insert--
"(2) For the purposes of this section, a supportive
attorney appointment is effective as to an
alternative supportive attorney appointment
if the statement of acceptance is signed using
the remote witnessing procedure.
(3) For the purposes of this section, a signature
may be an electronic signature if the remote
witnessing procedure is used.".
102 How should a form of revocation be executed?
At the end of section 105 of the Powers of
Attorney Act 2014 insert--
'(2) For the purposes of this section, a form of
revocation may be executed by using the
remote witnessing procedure and is a valid
form of revocation.
(3) For the purposes of this section, a signature
may be an electronic signature if the remote
witnessing procedure is used.
(4) For the purposes of this section "in the
presence of" includes being present by audio
visual link in accordance with the remote
witnessing procedure.'.
103 Section 139 substituted
For section 139 of the Powers of Attorney
Act 2014 substitute--
"139 Regulations
(1) The Governor in Council may make
regulations for or with respect to--
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(a) requirements for remote witnessing
procedures and the duties of witnesses
and principals, including, but not
limited to, different requirements for--
(i) different documents or classes of
document; or
(ii) different witnesses or classes of
witness; or
(iii) different principals or classes of
principal; or
(iv) different forms or processes for
the use of electronic signatures or
the use or form of documents in
electronic formats;
(b) forms;
(c) fees;
(d) persons or classes of person to be
special witnesses;
(e) prescribing penalties not exceeding
20 penalty units for a contravention of
the regulations;
(f) any other matter or thing required or
permitted by this Act to be prescribed
or necessary to be prescribed to give
effect to this Act.
(2) The regulations may--
(a) be of general or limited application;
(b) differ according to differences in time,
place or circumstance;
(c) leave any matter or thing to be from
time to time determined, applied,
dispensed with or regulated by a
specified person;
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(d) provide in a specified case or class of
cases for the exemption of persons or
things or a class of persons or things
from any of the provisions of the
regulations whether--
(i) unconditionally or on specified
conditions; and
(ii) either wholly or to the extent
specified in the regulations.".
104 New section 156 inserted
After section 155 of the Powers of Attorney
Act 2014 insert--
"156 Transitional provisions--Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021
On and from the commencement of Part 13
of the Justice Legislation Amendment
(System Enhancements and Other
Matters) Act 2021, any power of attorney or
other document under this Act signed,
executed or witnessed under this Act as
modified by Part 4 of the COVID-19
Omnibus (Emergency Measures) (Electronic
Signing and Witnessing) Regulations 2020
(as in force immediately before their
revocation) continues to be a valid power of
attorney or other document despite that
revocation.".
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Part 14--Amendment of the Court Security Act 1980
Part 14--Amendment of the Court Security
Act 1980
105 Temporary measures in response to COVID-19
pandemic
In section 7A(4) of the Court Security Act 1980,
for "26 April 2021" substitute "26 October 2022".
106 Statute law revision
In section 3(9) of the Court Security Act 1980,
for "authorized person" substitute "authorized
officer".
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Part 15--Amendment of the Sentencing Act 1991
Part 15--Amendment of the Sentencing
Act 1991
107 Electronic monitoring of offender
In section 48LA(1) of the Sentencing Act 1991,
for "court, other than the Magistrates' Court,"
substitute "court".
108 Variation etc. of community correction order
(1) After section 48M(2)(f) of the Sentencing
Act 1991 insert--
"(fa) in relation to a monitoring condition attached
to the order, by attaching to that condition a
requirement that the offender is to be
electronically monitored; or".
(2) After section 48M(4) of the Sentencing Act 1991
insert--
"(5) The Magistrates' Court may deal with a
community correction order in accordance
with subsection (2)(fa) irrespective of when
the order that attached the monitoring
condition was first made.".
109 Court may reopen proceeding to correct penalties
imposed contrary to law
In section 104B(7) of the Sentencing Act 1991,
in paragraph (b) of the definition of attend, after
"link" insert "or audio link".
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Part 16--Amendment of the Open Courts Act 2013
Part 16--Amendment of the Open Courts
Act 2013
110 New sections 8A and 8B inserted
After section 8 of the Open Courts Act 2013
insert--
"8A Handing down and delivering judgments
by electronic communication does not
contravene rules of law relating to open
justice
(1) A court or tribunal does not contravene any
rule of law relating to open justice if, instead
of handing down or delivering a judgment in
a court room or hearing room that is open to
the public, the court or tribunal--
(a) gives the parties notice that the
judgment is to be handed down or
delivered as described in paragraphs (b)
and (c); and
(b) sends the judgment to the parties by
electronic communication; and
(c) makes the judgment available to--
(i) the public generally; or
(ii) a member of the public on request.
(2) Nothing in subsection (1) permits the
publication of information in connection
with a proceeding if that publication is
contrary to a prohibition or restriction
imposed by or under this Act or any other
Act.
(3) In this section--
judgment includes the following--
(a) reasons;
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(b) an order (including a final order);
(c) a ruling;
(d) a finding;
(e) a decision;
(f) a determination.
8B Certain measures in relation to
proceeding or hearing do not contravene
rules of law relating to open justice
(1) A court or tribunal does not contravene any
rule of law relating to open justice if, instead
of holding a proceeding or hearing in a court
room or hearing room that is open to the
public, the court or tribunal--
(a) arranges or provides a
contemporaneous audio or audio visual
broadcast of the proceeding or hearing
to the public; or
(b) arranges or provides an audio or audio
visual recording of the proceeding or
hearing within a reasonable time after
the conclusion of the proceeding or
hearing to--
(i) the public generally; or
(ii) a member of the public on request;
or
(c) in the case of the Supreme Court, the
County Court or the Coroners Court,
arranges or provides a transcript of the
proceeding or hearing within a
reasonable time after the conclusion of
the proceeding or hearing to--
(i) the public generally; or
(ii) a member of the public on request.
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(2) Nothing in subsection (1) permits the
publication of information in connection
with a proceeding if that publication is
contrary to a prohibition or restriction
imposed by or under this Act or any other
Act.
(3) This section is repealed on the day that is
18 months after its commencement.".
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Part 17--Amendment of the Juries Act 2000
Part 17--Amendment of the Juries Act 2000
111 Summons
(1) In section 27(2)(b) of the Juries Act 2000 after
"service" insert "(whether in person or by audio
link, audio visual link or other specified electronic
means as set out in the summons)".
(2) After section 27(2) of the Juries Act 2000
insert--
'(2A) For the purpose of subsection (2)(c) "served"
includes being served with the summons by
means of electronic communication if the
person consents to receiving the summons by
electronic communication.'.
112 Jury pools
After section 29(2) of the Juries Act 2000
insert--
'(2A) For the purposes of subsections (1) and (2),
"attend" includes attendance by audio link,
audio visual link or other specified electronic
means--
(a) as set out in the summons; or
(b) in accordance with a direction given by
the Juries Commissioner or a pool
supervisor.'.
113 Selection of panels
After section 30(2) of the Juries Act 2000
insert--
"(2A) To avoid doubt, for the purposes of
subsection (2), a pool is not required to be
physically present.".
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114 New section 37A inserted
After section 37 of the Juries Act 2000 insert--
"37A Trial judge may direct manner of
requirement to stand aside or peremptory
challenges
(1) The trial judge may direct that a requirement
to stand aside or a peremptory challenge is to
be conducted, as the judge considers
appropriate--
(a) in the court as the potential juror comes
to take the juror's seat and before they
take it; or
(b) in accordance with a direction to move
given to the potential juror.
(2) Only one kind of direction under
subsection (1)(a) or (b) may be given to a
potential juror in respect of both a
requirement to stand aside and a peremptory
challenge.".
115 Crown right to stand aside jurors in criminal trials
(1) For section 38(2) of the Juries Act 2000
substitute--
"(2) The requirement to stand aside must be
made--
(a) as the potential juror comes to take the
juror's seat and before they take it; or
(b) if a direction to move is given in
accordance with section 39A, as the
potential juror moves in accordance
with that direction to move.".
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(2) For section 38(3)(b) of the Juries Act 2000
substitute--
"(b) unless the court otherwise orders, must
return to the jury pool and may be selected or
allocated to a panel in another trial.".
116 Peremptory challenges in criminal trials
(1) For section 39(2) of the Juries Act 2000
substitute--
"(2) In a criminal trial, each peremptory
challenge must be made--
(a) as the potential juror comes to take the
juror's seat and before they take it; or
(b) if a direction to move is given in
accordance with section 39A, as the
potential juror moves in accordance
with that direction to move.".
(2) In section 39(2B) of the Juries Act 2000, after
"seated" insert "or finishes moving in accordance
with the direction to move".
117 New section 39A inserted
After section 39 of the Juries Act 2000 insert--
"39A Trial judge may direct potential juror to
move
A trial judge may direct a potential juror to
move in a particular direction to distinguish
the potential juror from other potential
jurors--
(a) to enable the Crown to consider
whether to require the potential juror to
stand aside in accordance with
section 38; and
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(b) to enable each person arraigned
adequate time and reasonable
opportunity to view the face of the
potential juror to consider whether to
challenge peremptorily the potential
juror in accordance with section 39.
Example
Standing and then being seated again or moving
towards a particular place in the room.".
118 New section 41A inserted
After section 41 of the Juries Act 2000 insert--
"41A Persons not required to be physically
present together
Nothing in sections 29 to 41 requires all
persons involved in any process or procedure
under those sections to be physically present
together in the same room or place.".
119 New section 100 inserted
After section 99 of the Juries Act 2000 insert--
"100 Regulations dealing with transitional
matters--Justice Legislation Amendment
(System Enhancements and Other
Matters) Act 2021
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of an
application or savings nature, arising as a
result of the amendment of this Act by the
Justice Legislation Amendment (System
Enhancements and Other Matters)
Act 2021, including the repeals and
amendments made by that Act.
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(2) Regulations made under this section may--
(a) have a retrospective effect to a day on
or from the date that the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 receives the Royal Assent;
(b) be of limited or general application;
(c) differ according to differences in time,
place or circumstances;
(d) leave any matter or thing to be decided
by a specified person or specified class
of persons;
(e) provide for the exemption of persons
or proceedings or a class of persons or
proceedings from any of the regulations
made under this section.
(3) Regulations made under this section have
effect despite anything to the contrary--
(a) in any Act (other than the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 or the Charter of Human
Rights and Responsibilities
Act 2006); or
(b) in any subordinate instrument.
(4) This section is repealed on the second
anniversary of the day on which it comes
into operation.".
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120 New clause 19 of Schedule 6
After clause 18 of Schedule 6 to the Juries
Act 2000 insert--
"19 Transitional provision--Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021
This Act as amended by Part 17 of the
Justice Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 applies to a trial in which a jury is
empanelled after the commencement of that
Part, irrespective of when the offence to
which the trial relates is alleged to have been
committed or when the cause of action
arose.".
90
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Part 18--Amendment of the Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997
Part 18--Amendment of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997
121 New Division 1 of Part 2 inserted
Before section 6 of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997 insert--
"Division 1--Jury determination of
unfitness to stand trial
5C Application of this Division
(1) Sections 7(3)(b), 11, 12, 13, 14 and 14A do
not apply during the period that Division 2
applies.
(2) This section is repealed on the day that
Division 2 of this Part is repealed.".
122 Division 2 of Part 2 inserted
After section 14A of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997 insert--
"Division 2--Determination of unfitness
to stand trial by judge alone
14B Application of this Division
(1) This Division applies from 26 April 2021
until section 10 is substituted.
(2) A provision specified in section 5C does not
apply while this Division applies.
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14C Question of a person's fitness to stand
trial
The question of a person's fitness to stand
trial is to be determined on the balance of
probabilities by the court at an investigation
into the fitness of the accused to stand trial.
14D Procedure on investigation
(1) At an investigation into the fitness of an
accused to stand trial, the court--
(a) must hear any relevant evidence and
submissions put to the court by the
prosecution and the defence; and
(b) if of the opinion that it is in the interests
of justice to do so, may--
(i) call evidence on its own motion;
or
(ii) require the accused to undergo an
examination by a registered
medical practitioner or registered
psychologist; or
(iii) require the results of any such
examination to be put before the
court.
(2) Nothing in subsection (1) prevents the
application of Part 3.10 of the Evidence
Act 2008 to an investigation and, for the
purposes of Part 3.10 of that Act,
the investigation is taken to be a criminal
proceeding.
(3) Section 232A of the Criminal Procedure
Act 2009 applies to an investigation as if the
investigation were a trial.
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(4) If the court finds that the accused is not fit to
stand trial, the court must--
(a) determine, by reference to any relevant
evidence and on the balance of
probabilities, whether or not the
accused is likely to become fit to stand
trial within the next 12 months; and
(b) if the court determines that the accused
is likely to become fit within the next
12 months, specify the period by the
end of which the accused is likely to be
fit to stand trial.
(5) For the purposes of subsection (4), the court
may call further evidence on its own motion.
14E Findings of investigation into fitness to
stand trial
At an investigation into the fitness of an
accused to stand trial, the court may find--
(a) the accused is fit to stand trial; or
(b) the accused is not fit to stand trial.
14F What happens after an investigation?
(1) If the court finds that the accused is fit to
stand trial, the trial must be commenced or
resumed in accordance with usual criminal
procedures.
(2) If the court finds that the accused is not fit to
stand trial but determines that the accused is
likely to become fit within the next
12 months, the court must adjourn the matter
for the period specified under
section 14D(4)(b) and may--
(a) grant the accused bail; or
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(b) subject to subsection (3), remand the
accused in custody in an appropriate
place for a specified period (not
exceeding the period specified under
section 14D(4)(b)); or
(c) subject to subsection (4), remand the
accused in custody in a prison for a
specified period (not exceeding the
period specified under section
14D(4)(b)); or
(d) make any other order the court thinks
appropriate.
(3) The court must not remand an accused in
custody in an appropriate place unless it has
received a certificate under section 47 stating
that the facilities or services necessary for
that order are available.
(4) The court must not remand an accused in
custody in a prison unless it is satisfied that
there is no practicable alternative in the
circumstances.
(5) If the court finds that the accused is not fit to
stand trial and determines that the accused is
not likely to become fit within the next
12 months, the court must hold a special
hearing under Part 3 within 3 months and
may--
(a) either--
(i) grant the accused bail; or
(ii) subject to subsections (3) and (4),
remand the accused in custody as
described in subsection (2)(b) or
(c); and
(b) make any other order the court thinks
appropriate.
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14G Abridgment of adjournment
(1) At any time during a period of adjournment
under section 14F(2), the accused or the
Director of Public Prosecutions may apply to
the court--
(a) for an order that the trial commence or
resume, if the accused or the Director
of Public Prosecutions is of the opinion
that the accused has become fit to stand
trial; or
(b) for an order that the court proceed to
hold a special hearing, if the accused or
the Director of Public Prosecutions is of
the opinion that the accused will not
become fit to stand trial by the end of
the period of 12 months after the first
finding of unfitness.
(2) An application under subsection (1) must be
accompanied by a report on the mental
condition of the accused by a registered
medical practitioner or registered
psychologist.
(3) On an application under subsection (1) the
court must--
(a) dismiss the application; or
(b) if satisfied that the accused has become
fit to stand trial, make an order that the
trial commence or resume; or
(c) if satisfied that the accused will not
become fit to stand trial by the end of
the period of 12 months after the first
finding of unfitness, make an order that
the court proceed to hold a special
hearing within 3 months.
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14H What happens at the end of an
adjournment?
(1) At the end of the period of adjournment
under section 14F(2), the accused is
presumed to be fit to stand trial unless a real
and substantial question of fitness is raised
again.
(2) If a real and substantial question of fitness is
raised again, the court must--
(a) extend the period of adjournment for a
further period, but not so that the total
period since the first finding of
unfitness exceeds 12 months; or
(b) proceed to hold a special hearing under
Part 3 within 3 months.
(3) If the court extends the period of
adjournment, the court may make any order
referred to in section 14F(2) or vary any
order already made under that section and for
that purpose section 14F(3) and (4) apply
accordingly.
(4) At the end of the period of adjournment--
(a) if the trial of the accused has
commenced, it must be resumed as
soon as practicable in accordance with
usual criminal procedures; or
(b) subject to subsection (5), if the trial has
not commenced, it must be commenced
within 3 months.
(5) The court before which the accused is to be
tried may at any time, whether or not the
period referred to in subsection (4)(b) has
expired, extend that period for a further
period not exceeding 3 months.
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(6) The period for commencement of a trial may
be extended under subsection (5) more than
once.
(7) An extension of time under subsection (5)
also serves, if necessary, as an extension of
time for the purposes of section 211 or 212
of the Criminal Procedure Act 2009 (as the
case may be).
14I Appeal in relation to fitness to stand trial
(1) In a criminal proceeding in the County Court
or the Trial Division of the Supreme Court, if
the question has arisen whether an accused is
unfit to stand trial and on an investigation
under this Division a court finds that the
accused is unfit to stand trial, the accused
may appeal to the Court of Appeal against
the finding on any ground of appeal, with
leave of the Court of Appeal.
(2) An application for leave to appeal under
subsection (1) is commenced by filing a
notice of application for leave to appeal in
accordance with the rules of court within
28 days after the day on which the finding is
made or any extension of that period granted
under section 76C.
(3) The Registrar of Criminal Appeals of the
Supreme Court must provide to the
respondent a copy of the notice of
application for leave to appeal within 7 days
after the day on which the notice of
application is filed.
(4) On an appeal under subsection (1), the Court
of Appeal must allow the appeal if the
appellant satisfies the court that--
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(a) the finding of unfitness to stand trial is
unreasonable or cannot be supported
having regard to the evidence; or
(b) the trial judge made a material error of
law; or
(c) for any other reason the court considers
that the finding should not stand.
(5) In any other case, the Court of Appeal must
dismiss an appeal under subsection (1).
(6) If the Court of Appeal allows an appeal
under subsection (1), it must set aside the
finding of unfitness to stand trial and
either--
(a) refer the matter to the Trial Division of
the Supreme Court or to the County
Court for trial and the accused may be
tried for the offence charged against the
accused; or
(b) remit the matter for a rehearing of the
investigation under this Division as to
whether the accused is fit to stand trial.
(7) Despite subsection (6), if the Court of
Appeal allows an appeal under subsection
(1) but considers that the accused is unfit to
stand trial, it may affirm the finding and refer
the matter to the Trial Division of the
Supreme Court or to the County Court.
(8) If the Court of Appeal remits a matter under
subsection (6)(b)--
(a) it may give directions concerning the
manner and scope of the rehearing,
including a direction as to whether the
rehearing is to be conducted by the
same judge or a different judge; and
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(b) the court conducting the rehearing,
whether constituted by the same judge
or a different judge, must hear and
determine the matter in accordance
with the directions, if any.
(9) On remitting or referring a matter under this
section, the Court of Appeal may remand the
accused in custody or grant bail to the
accused or make any other order that the
court considers appropriate for the safe
custody of the accused.
14J Application of Juries Act 2000
For the purposes of the definition of
criminal trial in section 3 of the Juries
Act 2000, criminal trial does not include an
investigation conducted in accordance with
this Division.
14K Repeal of this Division
This Division is repealed on the day that
section 10 is substituted.".
123 New section 90A inserted
After section 90 of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997 insert--
"90A Transitional provisions--Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021
On and from the commencement of
Division 2 of Part 2 as inserted by the
Justice Legislation Amendment (System
Enhancements and Other Matters)
Act 2021, an investigation as to the fitness of
an accused to stand trial is to be conducted in
accordance with that Division irrespective of
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whether before, on or after that
commencement--
(a) the question of the fitness of the
accused to stand trial is or was raised;
or
(b) the offence charged is or was alleged to
have been committed; or
(c) the criminal proceeding in respect of
which the investigation relates is or was
commenced.".
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Part 19--Amendment of Justice Legislation Amendment (Criminal Appeals)
Act 2019
Part 19--Amendment of Justice Legislation
Amendment (Criminal Appeals) Act 2019
124 Commencement amended
In section 2(3) of the Justice Legislation
Amendment (Criminal Appeals) Act 2019, for
"3 July 2021" substitute "1 January 2023".
125 Repeal of amending Act
In section 39 of the Justice Legislation
Amendment (Criminal Appeals) Act 2019, for
"3 July 2022" substitute "1 January 2024".
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Part 20--Amendment of Independent Broad-Based Anti-corruption
Commission Act 2011
Part 20--Amendment of Independent
Broad-Based Anti-corruption Commission
Act 2011
Division 1--Amendments relating to measures
arising from COVID-19 pandemic
126 Definitions
In section 3(1) of the Independent Broad-based
Anti-corruption Commission Act 2011 insert
the following definition--
"authorised legal representative of a person
means an Australian legal practitioner who
has been instructed by a person to receive
documents on the person's behalf;".
127 Confidentiality notice
In section 42(9) of the Independent Broad-based
Anti-corruption Commission Act 2011 for
"or 125" substitute ", 125 or 191(1) or (2)".
128 Power to issue witness summons
After section 59E(1) of the Independent
Broad-based Anti-corruption Commission
Act 2011 insert--
"(1A) A witness summons under subsection (1)
may specify that attendance required under
the summons is to be by means of audio
visual link or audio link and in a specified
manner.
(1B) A witness summons under subsection (1)
that provides for attendance as described in
subsection (1A)--
(a) need not specify a place for attendance;
and
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(b) may specify, if any documents are to be
produced, that those documents are to
be produced by secure electronic means
and in a specified manner.
(1C) The IBAC may vary the means of attendance
required under a witness summons under
subsection (1) without reissuing the witness
summons if the consent of the person
attending or that person's legal representative
is given to that variation.".
129 Content and form of witness summons
In section 59F(1) of the Independent Broad-
based Anti-corruption Commission Act 2011,
for "A witness" substitute "Subject to section
59E(1A), (1B) and (1C), a witness".
130 Service of witness summons
(1) In section 59I(1) of the Independent Broad-
based Anti-corruption Commission Act 2011,
for "subsection (2)" substitute "subsection (2) or
(2A)".
(2) After section 59I(2) of the Independent
Broad-based Anti-corruption Commission
Act 2011 insert--
"(2A) If a witness summons is varied by consent
under section 59E(1C), the 7 day period for
service under subsection (1) does not apply
and the summons is not required to be
reissued.".
(3) In section 59I of the Independent Broad-based
Anti-corruption Commission Act 2011--
(a) in subsection (3), after "personally" insert
"or in accordance with section 191(1)"; and
(b) in subsection (4), after "postal address of the
body corporate" insert "or in accordance
with section 191(2)".
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131 Witness summons
After section 120(1) of the Independent
Broad-based Anti-corruption Commission
Act 2011 insert--
"(1A) A witness summons under subsection (1)
may specify that attendance required under
the summons is to be by means of audio
visual link or audio link and in a specified
manner.
(1B) A witness summons under subsection (1)
that provides for attendance as described in
subsection (1A)--
(a) need not specify a place for attendance;
and
(b) may specify, if any documents are to be
produced, that those documents are to
be produced by secure electronic means
and in a specified manner.
(1C) The IBAC may vary the means of attendance
required under a witness summons under
subsection (1) without reissuing the witness
summons if the consent of the person
attending or that person's legal representative
is given to that variation.".
132 Content and form of witness summons
In section 121(1) of the Independent
Broad-based Anti-corruption Commission
Act 2011, for "A witness" substitute "Subject to
section 120(1A), (1B) and (1C), a witness".
133 Service of witness summons
(1) In section 124(1) of the Independent
Broad-based Anti-corruption Commission
Act 2011, for "subsection (2)" substitute
"subsection (2) or (2A)".
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(2) After section 124(2) of the Independent
Broad-based Anti-corruption Commission
Act 2011 insert--
"(2A) If a witness summons is varied by consent
under section 120(1C), the 7 day period for
service under subsection (1) does not apply
and the summons is not required to be
reissued.".
(3) In section 124 of the Independent Broad-based
Anti-corruption Commission Act 2011--
(a) in subsection (3), after "personally" insert
"or in accordance with section 191(1)"; and
(b) in subsection (4), after "postal address of the
body corporate" insert "or in accordance
with section 191(2)".
134 Legal representation of witnesses and other persons
After section 127(1) of the Independent
Broad-based Anti-corruption Commission
Act 2011 insert--
"(1A) For the purposes of this section, the
attendance of an Australian legal practitioner
at the IBAC for the purposes of representing
a witness includes attendance by the
practitioner by means of audio visual link or
audio link.".
135 Specific provisions relating to witnesses
After section 129(4) of the Independent
Broad-based Anti-corruption Commission
Act 2011 insert--
"(5) For the purposes of this section, the
following persons may be present at an
examination, in the capacity specified in this
section, by means of audio visual link or
audio link--
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(a) an interpreter;
(b) a parent or guardian;
(c) an independent person.".
136 Service of documents
For section 191(1) and (2) of the Independent
Broad-based Anti-corruption Commission
Act 2011 substitute--
"(1) Without limiting sections 42, 59I, 124 and
125, any document under this Act or the
regulations required or authorised to be
given to or served on any person (other than
a body corporate) may be served on the
person by--
(a) giving it or serving it personally on the
person; or
(b) sending by registered post a copy of the
document addressed to that person at
the person's last known place of
residence or business; or
(c) delivering a copy of the document to
the person by means of electronic
communication that is confirmed as
having been received by the person; or
(d) sending by registered post a copy of the
document, addressed to the person's
authorised legal representative, to the
place of business of the person's
authorised legal representative; or
(e) leaving it at that person's usual or last
known place of residence with a person
on the premises who is apparently not
less than 16 years old; or
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(f) leaving it at that person's usual or last
known place of business with a person
who is apparently employed at the
premises and who is apparently not less
than 16 years of age.
(g) leaving a copy of the document for that
person--
(i) at the place of business of the
person's authorised legal
representative; and
(ii) with a person who apparently
works there and who is apparently
not less than 16 years of age; or
(h) delivering a copy of the document,
addressed to the person's authorised
legal representative, to the person's
authorised legal representative
personally; or
(i) delivering a copy of the document to
the person's authorised legal
representative by means of an
electronic communication that is
confirmed as having been received by
the person's authorised legal
representative.
(2) Without limiting sections 42, 59I, 124 and
125, any document under this Act or the
regulations required or authorised to be
given to or served on a body corporate may
be served by--
(a) giving it or serving it on the body
corporate at the head office, registered
office or principal office of the body
corporate; or
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(b) leaving a copy of the document at the
registered office or principal place of
business of the body corporate with a
person apparently employed at that
office or place and who is apparently
not less than 16 years of age; or
(c) sending by registered post a copy of the
document addressed to that body
corporate at the registered office or
principal place of business of the body
corporate; or
(d) delivering a copy of the document to
the body corporate by means of an
electronic communication that is
confirmed as having been received by
the body corporate.
(2A) For the purposes of subsection (1), a person
may deliver a confidentiality notice or
witness summons to another person
personally by placing a copy of the
document on a surface in the presence of that
other person.
(2B) For the purposes of subsections (1)(c) and (i)
and (2)(d), the receipt of a document may be
confirmed by any form of electronic
communication.".
137 New section 194A inserted
After section 194 of the Independent
Broad-based Anti-corruption Commission
Act 2011 insert--
"194A Act applies equally to attendance in
person or by audio or audio visual link
(1) For the avoidance of doubt, except as
otherwise provided in Part 3 or Part 6, a
provision of this Act that applies in relation
to the attendance of a person or any rights of
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a person or obligations imposed under Part 3
or Part 6 as a consequence of that
attendance--
(a) required under a witness summons; or
(b) as legal representation at an
examination; or
(c) in accordance with section 129--
applies in relation to attendance by audio
visual link or audio link in the same way that
it applies in relation to attendance in person.
(2) For the avoidance of doubt, except as
otherwise provided by Part 3 or Part 6, a
provision of this Act that applies in relation
to the production of documents under a
witness summons applies in relation to
production of documents by secure
electronic means in the same way that it
applies in relation to production of
documents in person.".
Division 2--Amendments relating to examinations
138 Power to hold examinations
(1) In section 115(2)(a) of the Independent
Broad-based Anti-corruption Commission
Act 2011, after "section 20(2)" insert "or, in the
case of a Deputy Commissioner who is not
eligible under section 20(2), subject to subsection
(2A), such a Deputy Commissioner".
(2) After section 115(2) of the Independent
Broad-based Anti-corruption Commission
Act 2011 insert--
"(2A) The IBAC must not appoint a Deputy
Commissioner who is not eligible under
section 20(2) as an examiner unless the
IBAC Commissioner is of the opinion that--
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(a) it is appropriate to do so; and
(b) the Deputy Commissioner has the
appropriate skills and knowledge to
perform the function of examiner.".
(3) In section 115(4) of the Independent
Broad-based Anti-corruption Commission
Act 2011, for "section 115," substitute "this
section or section".
Division 3--Other amendments
139 New section 200 inserted
After section 199 of the Independent
Broad-based Anti-corruption Commission
Act 2011 insert--
"200 Regulations dealing with transitional
matters--Justice Legislation Amendment
(System Enhancements and Other
Matters) Act 2021
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of an
application or savings nature, arising as a
result of the amendment of this Act by the
Justice Legislation Amendment (System
Enhancements and Other Matters) Act
2021, including the repeals and amendments
made by that Act.
(2) Regulations made under this section may--
(a) have a retrospective effect to a day on
or from the date that the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 receives the Royal Assent;
(b) be of limited or general application;
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(c) differ according to differences in time,
place or circumstances;
(d) leave any matter or thing to be decided
by a specified person or specified class
of persons;
(e) provide for the exemption of persons
or proceedings or a class of persons or
proceedings from any of the regulations
made under this section.
(3) Regulations made under this section have
effect despite anything to the contrary--
(a) in any Act (other than the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 or the Charter of Human
Rights and Responsibilities
Act 2006); or
(b) in any subordinate instrument.
(4) This section is repealed on the second
anniversary of the day on which it comes
into operation.".
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Part 21--Amendment of other integrity entities legislation
Part 21--Amendment of other integrity
entities legislation
Division 1--Amendment of Freedom of Information
Act 1982
140 Definitions
(1) In section 5(1) of the Freedom of Information
Act 1982 insert the following definitions--
"authorised legal representative of a person
means an Australian legal practitioner who
has been instructed by a person to receive
documents on the person's behalf;
destroy, in relation to a document provided to the
Information Commissioner, or by the
Information Commissioner to a person, by
secure electronic means, means--
(a) to permanently delete the electronic
communication from--
(i) all information systems on which
the Information Commissioner
held or stored that received
document; and
(ii) all information systems on which
the person who was provided with
the document from the
Information Commissioner held or
stored that document; and
(b) to destroy any hard copy of the
document;
information system has the same meaning as in
the Electronic Transactions (Victoria)
Act 2000;".
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(2) In section 5(1) of the Freedom of Information
Act 1982, in the definition of agency, for
"department" substitute "department,".
141 Confidentiality notice
In section 61TJ(8) of the Freedom of
Information Act 1982, for "the same manner that
a witness summons can be served" substitute
"accordance with section 61W".
142 Extension of confidentiality notice
In section 61TK(4) of the Freedom of
Information Act 1982, for "the same manner that
a witness summons can be served" substitute
"accordance with section 61W".
143 Notice to produce or attend
After section 61U(1) of the Freedom of
Information Act 1982 insert--
"(1A) A notice to produce or attend may specify
that attendance required under the notice is
to be by means of audio visual link or audio
link and in a specified manner.
(1B) A notice that provides for attendance as
described in subsection (1A)--
(a) need not specify a place for attendance;
and
(b) if any documents are to be produced,
may specify that those documents are to
be produced by secure electronic means
and in a specified manner.".
144 Service of notice to produce or notice to attend
(1) In section 61W of the Freedom of Information
Act 1982--
(a) in subsection (3), after "personally" insert
"or in accordance with subsection (3A)";
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(b) in subsection (4), after "age" insert "or in
accordance with subsection (4A)".
(2) After section 61W(3) of the Freedom of
Information Act 1982 insert--
"(3A) For the purposes of subsection (3), a
document may be served on a natural person
by--
(a) sending by registered post a copy of the
document addressed to that person at
the person's last known place of
residence or business; or
(b) delivering a copy of the document to
the person by means of electronic
communication that is confirmed as
having been received by the person; or
(c) sending by registered post a copy of the
document, addressed to the person's
authorised legal representative, to the
place of business of the person's
authorised legal representative; or
(d) leaving a copy of the document for that
person--
(i) at the place of business of the
person's authorised legal
representative; and
(ii) with a person who apparently
works there and who is apparently
not less than 18 years of age; or
(e) delivering a copy of the document,
addressed to the person's authorised
legal representative, to the person's
authorised legal representative
personally; or
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(f) delivering a copy of the document to
the person's authorised legal
representative by means of an
electronic communication that is
confirmed as having been received by
the person's authorised legal
representative.".
(3) After section 61W(4) of the Freedom of
Information Act 1982 insert--
"(4A) For the purposes of subsection (4), a
document may be served on a body corporate
by--
(a) leaving a copy of the document at the
registered office or principal place of
business of the body corporate with a
person apparently employed at that
office or place and who is apparently at
least 18 years of age; or
(b) sending by registered post a copy of the
document addressed to that body
corporate at the registered office or
principal place of business of the body
corporate; or
(c) delivering a copy of the document to
the body corporate by means of an
electronic communication that is
confirmed as having been received by
the body corporate.
(4B) For the purposes of this section, a person
may deliver a copy of a document to another
person personally by placing a copy of the
document on a surface in the presence of that
other person.
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(4C) For the purposes of subsections (3A)(b) and
(f) and (4A)(c), the receipt of a document
may be confirmed by any form of electronic
communication.".
(4) In section 61W(5) of the Freedom of
Information Act 1982 for "Subsection (4) is"
substitute "Subsections (4) and (4A) are".
145 Legal advice and representation
At the end of section 61ZF of the Freedom of
Information Act 1982 insert--
"(2) For the purposes of this section, a legal
practitioner may represent a person by means
of audio visual link or audio link.".
146 New section 61ZI inserted
After section 61ZH of the Freedom of
Information Act 1982 insert--
"61ZI Act applies equally to attendance in
person or by audio or audio visual link
(1) Except as otherwise provided in this Part, a
provision of this Act that applies in relation
to attendance of a person required under a
notice under section 61U applies in relation
to attendance by audio visual link or audio
link in the same way that it applies in
relation to attendance in person.
(2) Except as otherwise provided in this Part, a
provision of this Act that applies in relation
to production of documents required under a
notice under section 61U applies in relation
to production of documents by secure
electronic means in the same way that it
applies in relation to production of
documents in person.".
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147 Special requirements for production of documents
claimed to be exempt under section 28, 29A, 31
or 31A
After section 63D(3) of the Freedom of
Information Act 1982 insert--
"(4) Despite subsections (2) and (3), at the
request of the Information Commissioner,
the document must be provided to the
Information Commissioner for inspection by
secure electronic means.
(5) If the Information Commissioner has made a
request under subsection (4), after the
Information Commissioner has inspected the
document, the Information Commissioner
must--
(a) destroy the document as soon as
practicable after inspecting the
document; and
(b) advise the agency or the Minister in
writing that the inspection of the
document has been completed and the
document has been destroyed.".
148 Statute law revision
In section 49P(3A) of the Freedom of
Information Act 1982 omit "Freedom of".
149 New section 73 inserted
After section 72 of the Freedom of Information
Act 1982 insert--
"73 Regulations dealing with transitional
matters--Justice Legislation Amendment
(System Enhancements and Other
Matters) Act 2021
(1) The Governor in Council may make
regulations containing provisions of a
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transitional nature, including matters of an
application or savings nature, arising as a
result of the amendment of this Act by the
Justice Legislation Amendment (System
Enhancements and Other Matters) Act
2021, including the repeals and amendments
made by that Act.
(2) Regulations made under this section may--
(a) have a retrospective effect to a day on
or from the date that the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 receives the Royal Assent;
(b) be of limited or general application;
(c) differ according to differences in time,
place or circumstances;
(d) leave any matter or thing to be decided
by a specified person or specified class
of persons;
(e) provide for the exemption of persons
or proceedings or a class of persons or
proceedings from any of the regulations
made under this section.
(3) Regulations made under this section have
effect despite anything to the contrary--
(a) in any Act (other than the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 or the Charter of Human
Rights and Responsibilities
Act 2006); or
(b) in any subordinate instrument.
(4) This section is repealed on the second
anniversary of the day on which it comes
into operation.".
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Division 2--Amendment of Local Government
Act 2020
150 Definitions
In section 3(1) of the Local Government
Act 2020 insert the following definitions--
"authorised legal representative of a person
means an Australian legal practitioner who
has been instructed by a person to receive
documents on the person's behalf;
destroy, in relation to a document provided by the
Chief Municipal Inspector to a person by
secure electronic means, means--
(a) to permanently delete the electronic
communication from all information
systems on which the person who was
provided with the document from the
Chief Municipal Inspector held or
stored that document; and
(b) to destroy any hard copy of the
document;
information system has the same meaning as in
the Electronic Transactions (Victoria)
Act 2000;".
151 Powers of the Chief Municipal Inspector
(1) After section 183(3) of the Local Government
Act 2020 insert--
"(3A) A notice under subsection (3) may specify
that an appearance required under the notice
is to be by means of audio visual link or
audio link and in a specified manner.
(3B) A notice under subsection (3) that provides
for appearance as described in subsection
(3A)--
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(a) need not specify a place for the
appearance; and
(b) may specify, if any documents are to be
produced, that those documents are to
be produced by secure electronic means
and in a specified manner.".
(2) After section 183(6) of the Local Government
Act 2020 insert--
"(6A) If subsection (6) applies to a document, the
Chief Municipal Inspector may provide the
document by secure electronic means to any
person who would be entitled to inspect the
document if it were not in the Chief
Municipal Inspector's possession.
(6B) A person provided with a document under
subsection (6A) must--
(a) destroy the document as soon as
practicable after inspecting the
document; and
(b) advise the Chief Municipal Inspector in
writing that the inspection of the
document has been completed and that
the document has been destroyed.".
(3) After section 183(7) of the Local Government
Act 2020 insert--
"(7A) For the purposes of subsection (7), if a
person appearing before the Chief Municipal
Inspector is represented by another person
that representative may appear by means of
audio visual link or audio link.".
152 Confidentiality notice
(1) In section 193(8) of the Local Government
Act 2020, for "section 315" substitute
"subsection (9)".
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(2) After section 193(8) of the Local Government
Act 2020 insert--
"(9) For the purposes of this section and
section 194, a confidentiality notice or a
notice cancelling a confidentiality notice
may be served on a natural person by--
(a) serving a copy of the document on the
person personally; or
(b) sending by registered post a copy of the
document addressed to that person at
the person's last known place of
residence or business; or
(c) delivering a copy of the document to
the person by means of electronic
communication that is confirmed as
having been received by the person; or
(d) sending by registered post a copy of the
document, addressed to the person's
authorised legal representative, to the
place of business of the person's
authorised legal representative; or
(e) leaving a copy of the document for that
person--
(i) at the place of business of the
person's authorised legal
representative; and
(ii) with a person apparently
employed at that place and who is
apparently at least 18 years of age;
or
(f) delivering a copy of the document,
addressed to the person's authorised
legal representative, to the person's
authorised legal representative
personally; or
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(g) delivering a copy of the document to
the person's authorised legal
representative by means of an
electronic communication that is
confirmed as having been received by
the person's authorised legal
representative.
(10) For the purposes of subsection (9), a person
may deliver a copy of a document to another
person personally by placing a copy of the
document on a surface in the presence of that
other person.
(11) For the purposes of subsection (9)(c) and (g),
the receipt of a document may be confirmed
by any form of electronic communication.".
153 Extension of confidentiality notice
In section 194(4) of the Local Government
Act 2020, for "section 315" substitute
"section 193(9)".
154 New section 199A inserted
After section 199 of the Local Government
Act 2020 insert--
"199A Act applies equally to attendance in
person or by audio or audio visual link
For the avoidance of doubt, except as
otherwise provided by this Division, a
provision of this Act that applies--
(a) in relation to an appearance required
under section 183(3) applies in relation
to the appearance by audio visual link
or audio link in the same way that it
applies in relation to an appearance in
person; and
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(b) in relation to the production
of documents required under
section 183(3) applies in relation to
production of documents by secure
electronic means in the same way that it
applies in relation to production of
documents in person.".
155 Service on a person
In section 315(1) of the Local Government
Act 2020, for "Any document" substitute
"Subject to sections 193 and 194, any document".
156 New section 330A inserted
After section 330 of the Local Government
Act 2020 insert--
"330A Regulations dealing with transitional
matters--Justice Legislation Amendment
(System Enhancements and Other
Matters) Act 2021
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of an
application or savings nature, arising as a
result of the amendment of this Act by the
Justice Legislation Amendment (System
Enhancements and Other Matters)
Act 2021, including the repeals and
amendments made by that Act.
(2) Regulations made under this section may--
(a) have a retrospective effect to a day on
or from the date that the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 receives the Royal Assent;
(b) be of limited or general application;
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(c) differ according to differences in time,
place or circumstances;
(d) leave any matter or thing to be decided
by a specified person or specified class
of persons;
(e) provide for the exemption of persons
or proceedings or a class of persons or
proceedings from any of the regulations
made under this section.
(3) Regulations made under this section have
effect despite anything to the contrary--
(a) in any Act (other than the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 or the Charter of Human
Rights and Responsibilities
Act 2006); or
(b) in any subordinate instrument.
(4) This section is repealed on the second
anniversary of the day on which it comes
into operation.".
Division 3--Amendment of Ombudsman Act 1973
157 Definitions
In section 2(1) of the Ombudsman Act 1973
insert the following definition--
"authorised legal representative of a person
means an Australian legal practitioner who
has been instructed by a person to receive
documents on the person's behalf;".
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158 Witness summons
(1) After section 18(1) of the Ombudsman Act 1973
insert--
"(1A) A witness summons issued by the
Ombudsman may specify that attendance
required under the summons is to be by
means of audio visual link or audio link and
in a specified manner.
(1B) A witness summons issued by the
Ombudsman that provides for attendance as
described in subsection (1A)--
(a) need not specify a place for attendance;
and
(b) may specify, if any documents are to be
produced, that those documents are to
be produced by secure electronic means
and in a specified manner.".
(2) In section 18(4) of the Ombudsman Act 1973 for
"time and place" substitute "time and, if
applicable, place".
(3) After section 18(4) of the Ombudsman Act 1973
insert--
"(5) If a person is issued with a witness summons
referred to in subsection (1)(a) or (c) in
relation to the production of documents or
other things, the Ombudsman may excuse
that person from attendance if the person
produces the required documents or things to
the Ombudsman before the time and date for
production specified in the witness summons
in accordance with any directions given by
the Ombudsman.".
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159 Service of witness summons
(1) In section 18A(1) of the Ombudsman Act 1973,
for "A witness" substitute "Subject to subsection
(1A), a witness".
(2) After section 18A(1) of the Ombudsman
Act 1973 insert--
"(1A) The Ombudsman may issue a witness
summons requiring immediate attendance by
a person before the Ombudsman if the
Ombudsman considers on reasonable
grounds that a delay in the person's
attendance is likely to result in--
(a) evidence being lost or destroyed; or
(b) the commission of an offence; or
(c) the escape of the person who is
summoned; or
(d) serious prejudice to the conduct of the
investigation to which the witness
summons relates.".
(3) For section 18A(2) and (3) of the Ombudsman
Act 1973 substitute--
"(2) A witness summons directed to a natural
person must be served by--
(a) serving a copy of the summons on the
person personally; or
(b) sending by registered post a copy of the
summons addressed to that person at
the person's last known place of
residence or business; or
(c) delivering a copy of the summons to
the person by means of electronic
communication that is confirmed as
having been received by the person; or
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(d) sending by registered post a copy of the
summons, addressed to the person's
authorised legal representative, to the
place of business of the person's
authorised legal representative; or
(e) leaving a copy of the summons for that
person--
(i) at the place of business of the
person's authorised legal
representative; and
(ii) with a person who apparently
works there and who is apparently
not less than 18 years of age; or
(f) delivering a copy of the summons,
addressed to the person's authorised
legal representative, to the person's
authorised legal representative
personally; or
(g) delivering a copy of the summons to
the person's authorised legal
representative by means of an
electronic communication that is
confirmed as having been received by
the person's authorised legal
representative.
(3) A witness summons directed to a body
corporate must be served by--
(a) leaving a copy of the document at the
registered office or principal place of
business of the body corporate with a
person apparently employed at that
office or place and who is apparently at
least 18 years of age; or
(b) sending by registered post a copy of the
document addressed to that body
corporate at the registered office or
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principal place of business of the body
corporate; or
(c) delivering a copy of the document to
the body corporate by means of an
electronic communication that is
confirmed as having been received by
the body corporate.
(4) For the purposes of subsection (2), a person
may deliver a copy of a document to another
person personally by placing a copy of the
document on a surface in the presence of that
other person.
(5) For the purposes of subsections (2)(c)
and (g) and (3)(c), the receipt of a document
may be confirmed by any form of electronic
communication.".
160 Legal advice and representation
After section 18M(2) of the Ombudsman
Act 1973 insert--
"(2A) For the purposes of this section, if a legal
practitioner representing a person in
accordance with this section is required to
appear before the Ombudsman, that
appearance may be made by means of audio
visual link or audio link.".
161 Further provisions relating to appearances
After section 18P(9) of the Ombudsman
Act 1973 insert--
"(9A) For the purposes of subsections (6), (7), (8)
and (9), the following persons may be
present at an appearance, in the capacity
specified in those subsections, by means of
audio visual link or audio link--
(a) an interpreter;
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(b) a parent or guardian;
(c) an independent person;
(d) a person providing support to a person
appearing.".
162 New section 22A inserted
After section 22 of the Ombudsman Act 1973
insert--
"22A Act applies equally to attendance in
person or by audio or audio visual link
For the avoidance of doubt, except as
otherwise provided by this Division, a
provision of this Act that applies--
(a) in relation to attendance of a person--
(i) required under a witness
summons; or
(ii) as legal representation at an
examination; or
(iii) by voluntary appearance
(including under section 18O); or
(iv) in accordance with section 18P--
applies in relation to attendance by
audio visual link or audio link in the
same way that it applies in relation to
attendance in person; and
(b) in relation to the production of
documents required under a witness
summons applies in relation to
production of documents by secure
electronic means in the same way that it
applies in relation to production of
documents in person.".
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163 New section 37 inserted
After section 36 of the Ombudsman Act 1973
insert--
"37 Regulations dealing with transitional
matters--Justice Legislation Amendment
(System Enhancements and Other
Matters) Act 2021
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of an
application or savings nature, arising as a
result of the amendment of this Act by the
Justice Legislation Amendment (System
Enhancements and Other Matters)
Act 2021, including the repeals and
amendments made by that Act.
(2) Regulations made under this section may--
(a) have a retrospective effect to a day on
or from the date that the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 receives the Royal Assent;
(b) be of limited or general application;
(c) differ according to differences in time,
place or circumstances;
(d) leave any matter or thing to be decided
by a specified person or specified class
of persons;
(e) provide for the exemption of persons
or proceedings or a class of persons or
proceedings from any of the regulations
made under this section.
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(3) Regulations made under this section have
effect despite anything to the contrary--
(a) in any Act (other than the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 or the Charter of Human
Rights and Responsibilities
Act 2006); or
(b) in any subordinate instrument.
(4) This section is repealed on the second
anniversary of the day on which it comes
into operation.".
Division 4--Amendment of Privacy and Data
Protection Act 2014
164 Definitions
In section 3 of the Privacy and Data Protection
Act 2014 insert the following definition--
"authorised legal representative of a person
means an Australian legal practitioner who
has been instructed by a person to receive
documents on the person's behalf;".
165 Compliance notice
After section 78(6) of the Privacy and Data
Protection Act 2014 insert--
"(7) A compliance notice must be served in
accordance with section 83C.".
166 Notice to produce or attend
After section 83A(1) of the Privacy and Data
Protection Act 2014 insert--
"(1A) A notice to produce or attend may specify
that attendance required under the notice is
to be by means of audio visual link or audio
link and in a specified manner.
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(1B) A notice that provides for attendance as
described in subsection (1A)--
(a) need not specify a place for attendance;
and
(b) if any documents are to be produced,
may specify that those documents are to
be produced by secure electronic means
and in a specified manner.".
167 Service of notice to produce documents or to attend
(1) In section 83C of the Privacy and Data
Protection Act 2014--
(a) in subsection (3), after "personally" insert
"or in accordance with subsection (3A)";
(b) in subsection (4), after "age" insert "or in
accordance with subsection (4A)".
(2) After section 83C(3) of the Privacy and Data
Protection Act 2014 insert--
"(3A) A document that must be served personally
on a person may be served on a natural
person by--
(a) sending by registered post a copy of the
document addressed to that person at
the person's last known place of
residence or business; or
(b) delivering a copy of the document to
the person by means of electronic
communication that is confirmed as
having been received by the person; or
(c) sending by registered post a copy of the
document, addressed to the person's
authorised legal representative, to the
place of business of the person's
authorised legal representative; or
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(d) leaving a copy of the document for that
person--
(i) at the place of business of the
person's authorised legal
representative; and
(ii) with a person who apparently
works there and who is apparently
not less than 18 years of age; or
(e) delivering a copy of the document,
addressed to the person's authorised
legal representative, to the person's
authorised legal representative
personally; or
(f) delivering a copy of the document to
the person's authorised legal
representative by means of an
electronic communication that is
confirmed as having been received by
the person's authorised legal
representative.".
(3) After section 83C(4) of the Privacy and Data
Protection Act 2014 insert--
"(4A) A document that must be served on a body
corporate may be served by--
(a) sending by registered post a copy of the
document addressed to that body
corporate at the registered office or
principal place of business of the body
corporate; or
(b) delivering a copy of the document to
the body corporate by means of an
electronic communication that is
confirmed as having been received by
the body corporate.
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(4B) For the purposes of subsection (3) or (3A), a
person may deliver a copy of a document to
another person personally by placing a copy
of the document on a surface in the presence
of that other person.
(4C) For the purposes of subsections (3A)(b) and
(f) and (4A)(b), the receipt of a document
may be confirmed by any form of electronic
communication.".
168 Legal advice and representation
At the end of section 83F of the Privacy and
Data Protection Act 2014 insert--
"(2) For the purposes of this section, a legal
practitioner may represent a person by means
of audio visual link or audio link.".
169 New section 83L inserted
After section 83K of the Privacy and Data
Protection Act 2014 insert--
"83L Act applies equally to attendance in
person or by audio or audio visual link
(1) Except as otherwise provided in this Part, a
provision of this Act that applies in relation
to attendance of a person required under a
notice under section 83A applies in relation
to attendance by audio visual link or audio
link in the same way that it applies in
relation to attendance in person.
(2) Except as otherwise provided in this Part, a
provision of this Act that applies in relation
to production of documents required under a
notice under section 83A applies in relation
to production of documents by secure
electronic means in the same way that it
applies in relation to production of
documents in person.".
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170 New section 130 inserted
After section 129 of the Privacy and Data
Protection Act 2014 insert--
"130 Regulations dealing with transitional
matters--Justice Legislation Amendment
(System Enhancements and Other
Matters) Act 2021
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of an
application or savings nature, arising as a
result of the amendment of this Act by the
Justice Legislation Amendment (System
Enhancements and Other Matters)
Act 2021, including the repeals and
amendments made by that Act.
(2) Regulations made under this section may--
(a) have a retrospective effect to a day on
or from the date that the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 receives the Royal Assent;
(b) be of limited or general application;
(c) differ according to differences in time,
place or circumstances;
(d) leave any matter or thing to be decided
by a specified person or specified class
of persons;
(e) provide for the exemption of persons
or proceedings or a class of persons or
proceedings from any of the regulations
made under this section.
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(3) Regulations made under this section have
effect despite anything to the contrary--
(a) in any Act (other than the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 or the Charter of Human
Rights and Responsibilities
Act 2006); or
(b) in any subordinate instrument.
(4) This section is repealed on the second
anniversary of the day on which it comes
into operation.".
Division 5--Amendment of Victorian Inspectorate
Act 2011
171 Definitions
In section 3(1) of the Victorian Inspectorate
Act 2011 insert the following definition--
"authorised legal representative of a person
means an Australian legal practitioner who
has been instructed by a person to receive
documents on the person's behalf;".
172 Specific powers in relation to the IBAC
After section 12A(2) of the Victorian
Inspectorate Act 2011 insert--
"(2A) A requirement under subsection (2)(d) may
specify that the attendance that is required is
to be by means of audio visual link or audio
link and in a specified manner.
(2B) A requirement under subsection (2)(d) that
provides for attendance as described in
subsection (2A)--
(a) need not specify a place for attendance;
and
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(b) may specify, if any documents are to be
produced, that those documents are to
be produced by secure electronic means
and in a specified manner.".
173 Specific powers in relation to the Public Interest
Monitors
After section 13(6) of the Victorian Inspectorate
Act 2011 insert--
"(6A) A requirement under subsection (6) may
specify that the attendance that is required is
to be by means of audio visual link or audio
link and in a specified manner.
(6B) A requirement under subsection (6) that
provides for attendance as described in
subsection (6A)--
(a) need not specify a place for attendance;
and
(b) may specify, if any documents are to be
produced, that those documents are to
be produced by secure electronic means
and in a specified manner.".
174 Confidentiality notice
In section 38(9) of the Victorian Inspectorate
Act 2011, for "56(4)," substitute "56(3A), 56(4),
56(4A),".
175 Conduct of investigation
After section 47(9) of the Victorian Inspectorate
Act 2011 insert--
"(10) A requirement under subsection (1)(d),
(2)(d), (3)(d), (4)(d), (4A)(d) or (4B)(d) may
specify that the attendance that is required is
to be by means of audio visual link or audio
link and in a specified manner.
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(11) A requirement referred to in subsection (10),
that provides for attendance as described in
that subsection--
(a) need not specify a place for attendance;
and
(b) may specify, if any documents are to be
produced, that those documents are to
be produced by secure electronic means
and in a specified manner.".
176 Examinations must be held in private
After section 51(2) of the Victorian Inspectorate
Act 2011 insert--
"(3) For the purposes of this section--
(a) an examination may be conducted by
audio visual link or audio link; and
(b) attending an examination includes
attending the examination by audio
visual link or audio link.
(4) For the purposes of subsection (1), an
examination conducted by means of audio
visual link or audio link is taken to be held in
private.".
177 Witness summons
After section 53(1) of the Victorian Inspectorate
Act 2011 insert--
"(1A) A witness summons may specify that
attendance required under the summons is to
be by means of audio visual link or audio
link and in a specified manner.
(1B) A witness summons that provides for
attendance as described in subsection (1A)--
(a) need not specify a place for attendance;
and
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(b) may specify, if any documents are to be
produced, that those documents are to
be produced by secure electronic means
and in a specified manner.".
178 Service of witness summons
(1) In section 56 of the Victorian Inspectorate
Act 2011--
(a) in subsection (3), after "personally" insert
"or in accordance with subsection (3A)";
(b) in subsection (4), after "age" insert "or in
accordance with subsection (4A)".
(2) After section 56(3) of the Victorian Inspectorate
Act 2011 insert--
"(3A) A document that must be served personally
on a person may be served on a natural
person by--
(a) sending by registered post a copy of the
document addressed to that person at
the person's last known place of
residence or business; or
(b) delivering a copy of the document to
the person by means of electronic
communication that is confirmed as
having been received by the person; or
(c) sending by registered post a copy of the
document, addressed to the person's
authorised legal representative, to the
place of business of the person's
authorised legal representative; or
(d) leaving a copy of the document for that
person--
(i) at the place of business of the
person's authorised legal
representative; and
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(ii) with a person who apparently
works there and who is apparently
not less than 16 years of age; or
(e) leaving it at that person's usual or last
known place of residence with a person
on the premises who is apparently not
less than 16 years of age; or
(f) leaving it at that person's usual or last
known place of business with a person
who is apparently employed at the
premises and who is apparently not less
than 16 years of age; or
(g) delivering a copy of the document,
addressed to the person's authorised
legal representative, to the person's
authorised legal representative
personally; or
(h) delivering a copy of the document to
the person's authorised legal
representative by means of an
electronic communication that is
confirmed as having been received by
the person's authorised legal
representative.".
(3) After section 56(4) of the Victorian Inspectorate
Act 2011 insert--
"(4A) A document that must be served on a body
corporate may be served by--
(a) sending by registered post a copy of the
document addressed to that body
corporate at the registered office or
principal place of business of the body
corporate; or
(b) delivering a copy of the document to
the body corporate by means of an
electronic communication that is
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confirmed as having been received by
the body corporate.
(4B) For the purposes of subsections (3) and (3A),
a person may deliver a copy of a document
to another person personally by placing a
copy of the document on a surface in the
presence of that other person.
(4C) For the purposes of subsections (3A)(b) and
(h) and (4A)(b), the receipt of a document
may be confirmed by any form of electronic
communication.".
179 Legal representation of witnesses and other persons
After section 58(10) of the Victorian
Inspectorate Act 2011 insert--
"(11) For the purposes of this section, the
attendance of an Australian legal practitioner
for the purposes of representing a witness at
an examination includes attendance by the
practitioner by means of audio visual link or
audio link.".
180 Specific provisions relating to witnesses
After section 59(4) of the Victorian Inspectorate
Act 2011 insert--
"(5) For the purposes of this section, the
following persons may attend or be present
at an examination, in the capacity specified
in this section, by means of audio visual link
or audio link--
(a) an interpreter;
(b) a parent or guardian;
(c) an independent person.".
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181 New section 67A inserted
After section 67 of the Victorian Inspectorate
Act 2011 insert--
"67A Act applies equally to attendance in
person or by audio visual link or audio
link
(1) For the avoidance of doubt, except as
otherwise provided by this Division, a
provision of this Act that applies in relation
to attendance of a person or any rights of a
person or obligations imposed under this
Division as a consequence of that
attendance--
(a) required under sections 12A(2)(d) and
13(6); or
(b) required under section 47(1)(d), (2)(d),
(3)(d), (4)(d), (4A)(d) or (4B)(d); or
(c) required under a witness summons; or
(d) as legal representation at an
examination; or
(e) in accordance with section 59--
applies in relation to attendance by audio
visual link or audio link in the same way that
it applies in relation to attendance in person.
(2) For the avoidance of doubt, except as
otherwise provided by this Division, a
provision of this Act that applies in relation
to the production of documents--
(a) required under sections 12A(2)(d) and
13(6); or
(b) required under section 47(1)(d), (2)(d),
(3)(d), (4)(d), (4A)(d) or (4B)(d); or
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(c) required under a witness summons--
applies in relation to production of
documents by secure electronic means in the
same way that it applies in relation to
production of documents in person.".
182 New section 107 inserted
After section 106 of the Victorian Inspectorate
Act 2011 insert--
"107 Regulations dealing with transitional
matters--Justice Legislation Amendment
(System Enhancements and Other
Matters) Act 2021
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of an
application or savings nature, arising as a
result of the amendment of this Act by the
Justice Legislation Amendment (System
Enhancements and Other Matters)
Act 2021, including the repeals and
amendments made by that Act.
(2) Regulations made under this section may--
(a) have a retrospective effect to a day on
or from the date that the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 receives the Royal Assent;
(b) be of limited or general application;
(c) differ according to differences in time,
place or circumstances;
(d) leave any matter or thing to be decided
by a specified person or specified class
of persons;
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(e) provide for the exemption of persons
or proceedings or a class of persons or
proceedings from any of the regulations
made under this section.
(3) Regulations made under this section have
effect despite anything to the contrary--
(a) in any Act (other than the Justice
Legislation Amendment (System
Enhancements and Other Matters)
Act 2021 or the Charter of Human
Rights and Responsibilities
Act 2006); or
(b) in any subordinate instrument.
(4) This section is repealed on the second
anniversary of the day on which it comes
into operation.".
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Part 22--Amendment of Fines Reform Act 2014 and related consequential
amendments--time served and fines
Part 22--Amendment of Fines Reform
Act 2014 and related consequential
amendments--time served and fines
Division 1--Amendment of Fines Reform Act 2014
183 Functions and powers of the Director
After section 5(j) of the Fines Reform Act 2014
insert--
"(ja) to waive the payment of outstanding
amounts under a relevant infringement fine
that a person who is in custody is subject to
in accordance with section 171AD;".
184 Definitions
In section 163 of the Fines Reform Act 2014
insert the following definition--
"appropriate action, by the Director, means--
(a) an application to the Magistrates' Court
under section 171A on behalf of a
person to whom Division 1A applies; or
(b) waiving an outstanding amount under a
relevant infringement fine under section
171AD;".
185 New Division 1A inserted in Part 14
After Division 1 of Part 14 of the Fines Reform
Act 2014 insert--
"Division 1A--Request by person in
custody to Director for waiver or to
make application to Court
171AA Application of Division
(1) This Division applies to a person--
(a) who is in custody; and
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(b) who is the subject of a relevant
infringement fine.
171AB Request to Director for waiver or to make
application for time served order
A person to whom this Division applies may
request in writing that the Director take
appropriate action so that the person's
relevant infringement fines are (as
appropriate)--
(a) considered by the Magistrates' Court
under Division 2; or
(b) waived by the Director.
171AC Appropriate action--application to the
Magistrates' Court by Director
Subject to section 171A(4) and (5), the
Director must apply to the Magistrates' Court
for an order in accordance with section 171A
on behalf of a person who has made a
request under section 171AB if any of the
following applies to the person--
(a) the person is only in custody because of
a fine related sentence;
(b) the outstanding amount under a
relevant infringement fine of the person
exceeds the term of imprisonment of
the person in respect of a non-fine
related sentence where one day in
custody accounts for one penalty unit or
part of a penalty unit of the outstanding
amount under the relevant infringement
fine.
Note
See also section 171AD(2).
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171AD Director must waive payment of relevant
infringement fines if section 171AC does
not apply
(1) Subject to subsection (2), the Director must
waive any outstanding amount of a relevant
infringement fine of a person who has made
a request under section 171AB unless the
Director is required to make an application to
the Magistrates' Court under section 171AC
on behalf of that person.
(2) For the purposes of subsection (1), the
outstanding amount of the relevant
infringement fine that may be waived by the
Director must not exceed an amount that is
equivalent to 24 months in custody where
one penalty unit or part of a penalty unit is
equivalent to one day in custody.
171AE Effect of waiving payment of outstanding
amount of relevant infringement fine
On the Director waiving payment of an
outstanding amount of the relevant
infringement fine under section 171AD, the
person who made a request under section
171AB is taken to have served a term of
imprisonment in default of payment of the
relevant infringement fine for the purposes
of section 32(1A)(b) of the Infringements
Act 2006 despite the fact that the term of
imprisonment does not relate to the
infringement offence that is the subject of the
relevant infringement fine.".
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186 Section 171A substituted
For section 171A of the Fines Reform Act 2014
substitute--
"171A Application of the Director on behalf of
person in custody
(1) Subject to subsection (4), the Director must
apply to the Magistrates' Court on behalf of a
person to whom section 171AC applies for
an order for the person to serve a term of
imprisonment in default of payment of the
relevant infringement fine in accordance
with this section.
(2) If section 171AC(a) applies to a person, the
Director must apply to the Magistrates' Court
on behalf of the person for an order under
section 171C.
(3) If section 171AC(b) applies to a person, the
Director must apply to the Magistrates' Court
on behalf of the person for--
(a) an order under section 171B; and
(b) an order under 171C in relation to the
amount of the relevant infringement
fine that will exceed the term of
imprisonment of the person in respect
of the person's non-fine related
sentence in accordance with section
171AC(b).
(4) The Director must not make an application to
the Magistrates' Court in accordance with
this section on behalf of the person to whom
section 171AC applies if the person is no
longer in custody at the time the application
is made.
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(5) An application must not be made in respect
of a relevant infringement fine if the time of
the alleged commission of the infringement
offence is on or after the date that the person
to whom the relevant infringement fine
relates was taken into custody.".
187 Time served orders
In section 171B(1), (2) and (3)(b) of the Fines
Reform Act 2014, for "section 171A(2)"
substitute "section 171A(3)".
188 Orders of Magistrates' Court for any relevant
infringement fine or any remaining amount
For section 171C(1) of the Fines Reform
Act 2014 substitute--
"(1) This section applies if--
(a) the Director has made an application
under section 171A(2) on behalf of a
person and the person--
(i) is only in custody because of a
fine related sentence; or
(ii) has completed the fine related
sentence that the person was
serving at the time the Director
made the application; or
(b) the Magistrates' Court has made a time
served order in respect of a person
and--
(i) the term imposed under the time
served order exceeds the term of
the non-fine related sentence
being served by the person; or
(ii) the person has completed the non-
fine related sentence and the term
imposed under the time served
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order exceeds the term of the
non-fine related sentence.".
189 Contact details of person
In section 171F(1) of the Fines Reform At 2014,
for "section 171A(2)" substitute "section 171A(2)
or (3)".
190 Enforcement and payment report
In section 172(1)(f) of the Fines Reform
Act 2014, for "section 171A(2)" substitute
"section 171A(2) or (3)".
191 New Part 18 inserted
After Part 17 of the Fines Reform Act 2014
insert--
"Part 18--Transitional
provisions--Justice Legislation
Amendment (System
Enhancements and Other Matters)
Act 2021
248 Definition
In this Part--
commencement day means the day on which
section 191 of the Justice Legislation
Amendment (System Enhancements
and Other Matters) Act 2021 comes
into operation.
249 Requests made to Director before
commencement day
If a person has made a request to the Director
under section 171A(1) as in force
immediately before the commencement day,
and the Director has not applied to the
Magistrates' Court under section 171A(2) as
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in force immediately before the
commencement day on behalf of the person
who made the request, on and from the
commencement day--
(a) Division 1A of Part 14 applies in
respect of that request; and
(b) the Director may (as appropriate)--
(i) apply to the Magistrates Court on
behalf of the person under section
171A; or
(ii) waive the outstanding amount of
the relevant infringement fine
under section 171AD.
250 Applications made under
section 171A(2)(a) but not determined
(1) This section applies to an application made
by the Director under section 171A(2)(a) as
in force immediately before the
commencement day if the application--
(a) has not been heard and determined by
the Court before the commencement
day; or
(b) has not been partly heard by the Court
before the commencement day.
(2) If this section applies to an application, on
and from the commencement day--
(a) the application is taken to be returned
to the Director; and
(b) the Director may take appropriate
action in respect of that application as if
the application had been a request made
under section 171AB.".
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Division 2--Amendment of Infringements Act 2006
192 Definitions
In section 3(1) of the Infringements Act 2006
insert the following definitions--
"non-fine related sentence has the same meaning
as in the Fines Reform Act 2014;
relevant infringement fine has the same meaning
as in section 163 of the Fines Reform
Act 2014;".
193 Expiating the offence
(1) In section 32(1) of the Infringements Act 2006--
(a) in paragraph (b), for "permit." substitute
"permit; or";
(b) after paragraph (b) insert--
"(c) waived by the Director when the
Director waives the outstanding amount
of a relevant infringement fine under
section 171AD of the Fines Reform
Act 2014.".
(2) For section 32(1A) of the Infringements
Act 2006 substitute--
"(1A) The person on whom the notice was served
has (as appropriate)--
(a) subject to subsection (2) and any other
Act--
(i) expiated the offence by payment
of the infringement penalty and
any penalty reminder notice fee;
or
(ii) expiated the offence by
completion of the work and
development permit; or
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(b) expiated the offence by being taken to
have served a term of imprisonment in
default of payment in accordance with
section 171AE of the Fines Reform
Act 2014 and any additional steps
specified in the notice are not required
to be complied with by the person.".
(3) In section 32(2) of the Infringements Act 2006,
after "involving additional steps" insert "in the
circumstances specified in subsection (1A)(a)".
194 Effect of expiation
(1) In section 33(1) of the Infringements Act 2006,
after "section 32" insert "other than under
subsection (1A)(b) of that section".
(2) After section 33(1) of the Infringements
Act 2006 insert--
"(1A) Subject to this Act or any other Act, if a
person has expiated an offence under section
32(1A)(b)--
(a) no further proceedings may be taken
against the person who is the subject of
the relevant infringement fine in respect
of the offence; and
(b) no conviction is to be taken to have
been recorded against that person for
the offence that was the subject of the
relevant infringement fine; and
(c) the offence in respect of which the
person is serving or has served a non-
fine related sentence is not affected by
this Division.".
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(3) After section 33(2) of the Infringements
Act 2006 insert--
"(2A) The deemed serving of a term of
imprisonment by a person in accordance
with section 171AE of the Fines Reform
Act 2014 is not and must not be taken to
be--
(a) an admission of guilt in relation to the
offence the subject of the relevant
infringement fine; or
(b) an admission of liability for the purpose
of any civil claim or proceeding arising
out of the same occurrence, and the
waiving of the outstanding amount of
the relevant infringement fine by the
Director does not in any way affect or
prejudice any such claim or
proceeding.".
(4) In section 33(3) of the Infringements Act 2006,
after "permit" insert "or the deemed serving of a
term of imprisonment".
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Part 23--Amendment of Interpretation of Legislation Act 1984 and related
consequential amendments
Part 23--Amendment of Interpretation of
Legislation Act 1984 and related
consequential amendments
Division 1--Insertion of definitions of audio link
and audio visual link
195 Definitions
In section 38 of the Interpretation of Legislation
Act 1984 insert the following definitions--
"audio link has the meaning given by Part IIA of
the Evidence (Miscellaneous Provisions)
Act 1958;
audio visual link has the meaning given by
Part IIA of the Evidence (Miscellaneous
Provisions) Act 1958;".
Division 2--Consequential amendments of other
Acts
196 Children, Youth and Families Act 2005
(1) In section 490(1)(a) of the Children, Youth and
Families Act 2005, for "(by audio or audio visual
link within the meaning of Part IIA of the
Evidence (Miscellaneous Provisions) Act 1958)"
substitute "(by audio link or audio visual link)".
(2) In section 530(5) of the Children, Youth and
Families Act 2005 omit "within the meaning of
Part IIA of the Evidence (Miscellaneous
Provisions) Act 1958".
(3) In section 600H of the Children, Youth and
Families Act 2005, in the definition of oral pre-
sentence report, omit "within the meaning of
Part IIA of the Evidence (Miscellaneous
Provisions) Act 1958".
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Part 23--Amendment of Interpretation of Legislation Act 1984 and related
consequential amendments
197 Essential Services Commission Act 2001
Section 28(4C) of the Essential Services
Commission Act 2001 is repealed.
198 Independent Broad-based Anti-corruption
Commission Act 2011
In section 3(1) of the Independent Broad-based
Anti-corruption Commission Act 2011, the
definition of audio visual link is repealed.
199 Parliamentary Committees Act 2003
In section 3 of the Parliamentary Committees
Act 2003, the definitions of audio link and audio
visual link are repealed.
200 Serious Offenders Act 2018
Section 148(7) of the Serious Offenders
Act 2018 is repealed.
201 Victoria Police Act 2013
(1) Section 158A(3) of the Victoria Police Act 2013
is repealed.
(2) Section 222(4) of the Victoria Police Act 2013 is
repealed.
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Part 24--Amendments extending certain provisions relating to COVID-19
pandemic
Part 24--Amendments extending certain
provisions relating to COVID-19 pandemic
Division 1--Corrections Act 1986
202 Repeal of Part
In section 112V of the Corrections Act 1986, for
"2021" substitute "2022".
Division 2--Children, Youth and Families Act 2005
203 Application of Part 1.2 principles
(1) In section 600ZB(1) of the Children, Youth and
Families Act 2005, for "subsection (2)"
substitute "subsections (2) and (2A)".
(2) For section 600ZB(2) of the Children, Youth
and Families Act 2005 substitute--
"(2) The principles in Part 1.2 apply to
Division 4A of Part 8.5A, except to the
extent that Division 4A relates to--
(a) Chapter 5; or
(b) Chapter 7 (in relation to a matter under
Chapter 5).
(2A) The principles in Part 1.2 apply to Division 5
of Part 8.5A, except to the extent that
Division 5 relates to--
(a) Chapter 5; or
(b) Chapter 7 (in relation to a matter under
Chapter 5).".
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Part 24--Amendments extending certain provisions relating to COVID-19
pandemic
204 Section 600ZC substituted
For section 600ZC of the Children, Youth and
Families Act 2005 substitute--
"600ZC Repeal of this Part
(1) Division 2 of this Part and sections 600P,
600Q, 600R, 600U, 600V, 600W, 600WA,
600X, 600Y and 600Z are repealed on
26 April 2021.
(2) Divisions 3 and 4 of this Part and sections
600S, 600T, 600ZA and 600ZB(2A) are
repealed on 26 April 2022.
(3) The remaining provisions of this Part are
repealed on 26 April 2023.
Division 3--Local Government Act 2020
205 Definitions
In section 393 of the Local Government
Act 2020, in the definition of prescribed period,
for "2021" substitute "2022".
206 Repeal of Part
In section 396 of the Local Government
Act 2020, for "2021" substitute "2022".
Division 4--Occupational Health and Safety
Act 2004
207 Repeal of Part
In section 192 of the Occupational Health and
Safety Act 2004, for "26 April" substitute
"16 December".
158
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Act 2021
No. of 2021
Part 24--Amendments extending certain provisions relating to COVID-19
pandemic
Division 5--Parliamentary Committees Act 2003
208 Repeal of Part
In section 55 of the Parliamentary Committees
Act 2003, for "2021" substitute "2022".
159
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Act 2021
No. of 2021
Part 25--Repeal of this Act
Part 25--Repeal of this Act
209 Repeal of this Act
This Act is repealed on 23 February 2023.
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).
═════════════
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No. of 2021
Endnotes
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:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend
various courts, integrity entities and justice Acts to provide for the
on-going operation of certain processes and procedures implemented
during the COVID-19 pandemic, to amend the Independent Broad-
based Anti-corruption Commission Act 2011 to provide for the
on-going operation of certain processes and procedures implemented
during the COVID-19 pandemic and to provide for Deputy
Commissioners to be examiners, to amend the Fines Reform Act 2014 in
relation to time served and fines, to extend the default commencement
and repeal dates of the Justice Legislation Amendment (Criminal
Appeals) Act 2019, to consequentially amend the Interpretation of
Legislation Act 1984, to extend the operation of certain provisions
relating to the COVID-19 pandemic in various Acts and for other
purposes."
By Authority. Government Printer for the State of Victoria.
161
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