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MAGISTRATES' COURT (KOORI COURT) BILL 2002

                 PARLIAMENT OF VICTORIA

        Magistrates' Court (Koori Court) Act 2002
                                 Act No.


                       TABLE OF PROVISIONS
Clause                                                               Page
  1.     Purposes                                                       1
  2.     Commencement                                                   2
  3.     Principal Act                                                  2
  4.     Definitions                                                    3
  5.     New section 3A inserted                                        3
         3A.      Meaning of "family member"                            3
  6.     New sections 4D to 4G inserted                                 6
         4D.      Establishment of Koori Court Division                 6
         4E.      Jurisdiction of Koori Court Division                  7
         4F.      Circumstances in which Koori Court Division may
                  deal with certain offences                            7
         4G.      Sentencing procedure in Koori Court Division          8
  7.     New section 17A inserted                                      10
         17A. Appointment of Aboriginal elders or respected
                  persons                                              10
  8.     New section 144 inserted                                      10
         144.     Rules of court--Koori Court Division                 10
  9.     Transitional provision                                        11
  10.    Repeal of Koori Court Division provisions                     11
                             

ENDNOTES                                                               12




                                     i
541287B.I1-24/4/2002                        BILL LA CIRCULATION 22-10-2004

 


 

PARLIAMENT OF VICTORIA Initiated in Assembly 23 April 2002 A BILL to amend the Magistrates' Court Act 1989 to establish a Koori Court Division of the Magistrates' Court, to provide for the jurisdiction and procedure of that Division and for other purposes. Magistrates' Court (Koori Court) Act 2002 The Parliament of Victoria enacts as follows: 1. Purposes The purposes of this Act are-- (a) to establish a Koori Court Division of the Magistrates' Court; and 1 541287B.I1-24/4/2002 BILL LA CIRCULATION 22-10-2004

 


 

Magistrates' Court (Koori Court) Act 2002 s. 2 Act No. (b) to provide for the jurisdiction and procedure of that Division-- with the objective of ensuring greater participation of the Aboriginal community in the sentencing 5 process of the Magistrates' Court through the role to be played in that process by the Aboriginal elder or respected person and others. 2. Commencement (1) This Act (other than section 10) comes into 10 operation on the day after the day on which it receives the Royal Assent. (2) Subject to sub-section (3), section 10 comes into operation on a day to be proclaimed. (3) If section 10 does not come into operation before 15 1 July 2005, it comes into operation on that day. 3. Principal Act See: In this Act, the Magistrates' Court Act 1989 is Act No. called the Principal Act. 51/1989. Reprint No. 7 as at 1 June 2001 and amending Act Nos 53/2000, 92/2000, 98/2000, 99/2000 (as amended by No. 12/2001), 2/2001, 14/2001, 32/2001, 44/2001, 45/2001, 61/2001, 69/2001, 92/2001, 2/2002 and 4/2002. LawToday: www.dms. dpc.vic. gov.au 2 541287B.I1-24/4/2002 BILL LA CIRCULATION 22-10-2004

 


 

Magistrates' Court (Koori Court) Act 2002 s. 4 Act No. 4. Definitions In section 3(1) of the Principal Act insert the following definitions-- ' "Aboriginal elder or respected person" means 5 a person who holds office as an Aboriginal elder or respected person under section 17A; "Aborigine" means a person who-- (a) is descended from an Aborigine or Torres Strait Islander; and 10 (b) identifies as an Aborigine or Torres Strait Islander; and (c) is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Island community; 15 "family member" has the meaning given by section 3A; "Koori Court officer" means a person who-- (a) is employed under Part 3 of the Public Sector Management and 20 Employment Act 1998; and (b) exercises powers or performs functions in relation to the Koori Court Division of the Court;'. 5. New section 3A inserted 25 After section 3 of the Principal Act insert-- '3A. Meaning of "family member" (1) In this Act, "family member" of a person means-- (a) the spouse or domestic partner of the 30 person; or 3 541287B.I1-24/4/2002 BILL LA CIRCULATION 22-10-2004

 


 

Magistrates' Court (Koori Court) Act 2002 s. 5 Act No. (b) a person who has or has had an intimate personal relationship with the person; or (c) a person who is or has been a relative 5 of the person; or (d) a child who normally or regularly resides with the person; or (e) a child of whom the person is a guardian; or 10 (f) another person who is or has been ordinarily a member of the household of the person. (2) For the purposes of the definition of "family member" in sub-section (1)-- 15 (a) "domestic partner" of a person means an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal 20 or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not 25 include a person who provides domestic support and personal care to the person-- (i) for fee or reward; or (ii) on behalf of another person or an 30 organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation); 4 541287B.I1-24/4/2002 BILL LA CIRCULATION 22-10-2004

 


 

Magistrates' Court (Koori Court) Act 2002 s. 5 Act No. (b) "parent" of a child includes a guardian of the child or a person with whom the child normally or regularly resides; (c) "relative" of a person means-- 5 (i) a father, mother, grandfather, grandmother, step-father, step- mother, father-in-law or mother- in-law of the person; or (ii) a son, daughter, grandson, 10 granddaughter, step-son, step- daughter, son-in-law or daughter- in-law of the person; or (iii) a brother, sister, half-brother, half- sister, brother-in-law or sister-in- 15 law of the person; or (iv) an uncle, aunt, uncle-in-law or aunt-in-law of the person; or (v) a nephew or niece of the person; or 20 (vi) a cousin of the person-- and includes, in the case of domestic partners, a person who would be such a relative if the domestic partners were married to each other; 25 (d) "spouse" of a person means a person to whom the person is or was married. (3) For the purposes of the definition of "domestic partner" in sub-section (2)-- (a) in determining whether persons are 30 domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law 5 541287B.I1-24/4/2002 BILL LA CIRCULATION 22-10-2004

 


 

Magistrates' Court (Koori Court) Act 2002 s. 6 Act No. Act 1958 as may be relevant in a particular case; (b) a person is not a domestic partner of another person only because they are 5 co-tenants.'. 6. New sections 4D to 4G inserted Before section 5 of the Principal Act insert-- "4D. Establishment of Koori Court Division (1) The Court has a Koori Court Division. 10 (2) The Koori Court Division has such of the powers of the Court as are necessary to enable it to exercise its jurisdiction. (3) Despite anything to the contrary in this Act, the Koori Court Division may only sit and 15 act at a venue of the Court specified by the Chief Magistrate by notice published in the Government Gazette. (4) The Koori Court Division must exercise its jurisdiction with as little formality and 20 technicality, and with as much expedition, as the requirements of this Act and the Sentencing Act 1991 and the proper consideration of the matters before the Court permit. 25 (5) The Koori Court Division must take steps to ensure that, so far as practicable, any proceeding before it is conducted in a way which it considers will make it comprehensible to-- 30 (a) the defendant; and (b) a family member of the defendant; and (c) any member of the Aboriginal community who is present in court. 6 541287B.I1-24/4/2002 BILL LA CIRCULATION 22-10-2004

 


 

Magistrates' Court (Koori Court) Act 2002 s. 6 Act No. (6) Subject to this Act, the regulations and the rules, the Koori Court Division may regulate its own procedure. 4E. Jurisdiction of Koori Court Division 5 The Koori Court Division has-- (a) the jurisdiction to deal with a proceeding for an offence given to it by section 4F; and (b) jurisdiction to deal with a breach of a 10 sentencing order made by it (including any offence constituted by such a breach) or variation of such a sentencing order; and (c) any other jurisdiction given to it by or 15 under this or any other Act. 4F. Circumstances in which Koori Court Division may deal with certain offences (1) The Koori Court Division only has jurisdiction to deal with a proceeding for an 20 offence (other than an offence constituted by a breach of a sentencing order made by it) if-- (a) the defendant is Aboriginal; and (b) the offence is within the jurisdiction of 25 the Magistrates' Court, other than-- (i) a sexual offence as defined in section 6B(1) of the Sentencing Act 1991; or (ii) an offence against section 22 of 30 the Crimes (Family Violence) Act 1987 (breach of intervention order or interim intervention order) or an offence arising out of the same conduct as that out of 7 541287B.I1-24/4/2002 BILL LA CIRCULATION 22-10-2004

 


 

Magistrates' Court (Koori Court) Act 2002 s. 6 Act No. which the offence against section 22 arose; and (c) the defendant-- (i) intends to plead guilty to the 5 offence; or (ii) pleads guilty to the offence; or (iii) intends to consent to the adjournment of the proceeding to enable him or her to participate in 10 a diversion program; and (d) the defendant consents to the proceeding being dealt with by the Koori Court Division. (2) Subject to and in accordance with the rules-- 15 (a) a proceeding may be transferred to the Koori Court Division, whether sitting at the same or a different venue; and (b) the Koori Court Division may transfer a proceeding (including a proceeding 20 transferred to it under paragraph (a)) to the Court, sitting other than as the Koori Court Division, at the same or a different venue. (3) Despite anything to the contrary in this Act, 25 if a proceeding is transferred from one venue of the Court to another, the transferee venue is the proper venue of the Court for the purposes of this Act. 4G. Sentencing procedure in Koori Court 30 Division (1) This section applies to the Koori Court Division when it is considering which sentencing order to make in respect of a defendant. 8 541287B.I1-24/4/2002 BILL LA CIRCULATION 22-10-2004

 


 

Magistrates' Court (Koori Court) Act 2002 s. 6 Act No. (2) The Koori Court Division may consider any oral statement made to it by an Aboriginal elder or respected person. (3) The Koori Court Division may inform itself 5 in any way it thinks fit, including by considering a report prepared by, or a statement or submission prepared or made to it by, or evidence given to it by-- (a) a Koori Court officer employed as an 10 Aboriginal justice worker; or (b) a community corrections officer appointed under Part 4 of the Corrections Act 1986; or (c) a health service provider; or 15 (d) a victim of the offence; or (e) a family member of the defendant; or (f) anyone else whom the Koori Court Division considers appropriate. (4) Nothing in this section affects the 20 requirement to observe the rules of natural justice. (5) This section does not limit-- (a) any other power conferred on the Court by or under this or any other Act; or 25 (b) any other specific provision made by or under this or any other Act for the making of any report, statement or submission, or the giving of any evidence, to the Court for the purpose 30 of assisting it in determining sentence.". 9 541287B.I1-24/4/2002 BILL LA CIRCULATION 22-10-2004

 


 

Magistrates' Court (Koori Court) Act 2002 s. 7 Act No. 7. New section 17A inserted After section 17 of the Principal Act insert-- "17A. Appointment of Aboriginal elders or respected persons 5 (1) The Secretary may appoint a person who is a member of the Aboriginal community as an Aboriginal elder or respected person for the purpose of performing functions in relation to the Koori Court Division of the Court as 10 set out in this Act. (2) An Aboriginal elder or respected person holds office for the period, and on the terms and conditions, determined by the Secretary and specified in the instrument of 15 appointment. (3) An Aboriginal elder or respected person may resign from office by writing signed by him or her and delivered to the Secretary.". 8. New section 144 inserted 20 In Part 7 of the Principal Act, after section 143 insert-- '144. Rules of court--Koori Court Division (1) The Chief Magistrate together with 2 or more Deputy Chief Magistrates may jointly 25 make rules of court for or with respect to-- (a) any matter relating to the practice and procedure of the Koori Court Division of the Court; and (b) the transfer of proceedings to and from 30 the Koori Court Division of the Court. (2) Sub-sections (3) to (5) of section 142 apply to a power conferred by sub-section (1) and to rules made under that sub-section as if-- 10 541287B.I1-24/4/2002 BILL LA CIRCULATION 22-10-2004

 


 

Magistrates' Court (Koori Court) Act 2002 s. 9 Act No. (a) any reference in those sub-sections to "sub-section (1)" were a reference to sub-section (1) of this section; and (b) sub-section (4)(c) did not contain the 5 word "committal".'. 9. Transitional provision In Schedule 8 to the Principal Act, at the end of the Schedule insert-- "28. The amendments of this Act made by section 6 of the 10 Magistrates' Court (Koori Court) Act 2002 apply with respect to a proceeding for an offence, irrespective of when the offence was committed or the proceeding commenced.". 10. Repeal of Koori Court Division provisions 15 (1) In section 3(1) of the Principal Act, the definitions of "Aboriginal elder or respected person", "Aborigine", "family member" and "Koori Court officer" are repealed. (2) Sections 3A, 4D, 4E, 4F, 4G, 17A and 144 of the 20 Principal Act are repealed. 11 541287B.I1-24/4/2002 BILL LA CIRCULATION 22-10-2004

 


 

Magistrates' Court (Koori Court) Act 2002 Endnotes Act No. ENDNOTES By Authority. Government Printer for the State of Victoria. 12 541287B.I1-24/4/2002 BILL LA CIRCULATION 22-10-2004

 


 

 


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