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County Court Amendment (Koori
Court) Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill, which is to amend the County
Court Act 1958--
· to establish a Koori Court Division of the County Court;
and
· to provide for the jurisdiction and procedure of that
Division--
with the objective of ensuring greater participation of the
Aboriginal community in the sentencing process of the County
Court through the role to be played in that process by the
Aboriginal elder or respected person and others.
Clause 2 provides varied commencement dates for the Bill.
Subclause (1) provides that the Bill (except clause 10) comes into
operation on a day to be proclaimed.
Subclause (2) provides that if the Bill (except clause 10) does not
come into operation before 1 February 2009, it comes into
operation on that day.
Subclause (3) provides that clauses 10(1) and (2) come into
operation on the later of the day on which item 39 of Schedule 1
to the Relationships Act 2008 comes into operation or the day
on which clause 6 comes into operation.
Subclause (4) provides that clause 10(3) comes into operation on
the later of the day on which section 44 of the Courts
Legislation Amendment (Associate Judges) Act 2008 comes
into operation or the day on which clause 6 comes into operation.
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Subclause (5) provides that clause 10(4) comes into operation on
the later of the day on which section 252 of the Family Violence
Protection Act 2008 comes into operation or the day on which
clause 6 comes into operation.
Clause 3 provides that in this Bill, the County Court Act 1958 is called
the Principal Act.
Clause 4 amends section 3(1) of the Principal Act by inserting a number of
new definitions.
Aboriginal elder or respected person is defined to mean a person
who holds office as an Aboriginal elder or respected person
under new section 22A.
Aborigine is defined to mean a person who is descended from,
and identifies as, an Aborigine or Torres Strait Islander and is
accepted as an Aborigine or Torres Strait Islander by an
Aboriginal or Torres Strait Island community.
family member is defined as having the meaning given by new
section 3AAB.
Koori Court Division is defined as meaning the division of the
court established under section 4A.
Koori Court Officer is defined as a person employed under Part 3
of the Public Administration Act 2004 who exercises powers,
or performs functions, in relation to the Koori Court Division.
Clause 5 inserts new section 3AAB into the Principal Act. The section
sets out the meaning of family member. Family member of a
person means a spouse or domestic partner of the person; a
person who has, or has had an intimate relationship with the
person; a person who is, or has been, a relative of the person; a
child who normally or regularly resides with the person; a child
of whom the person is a guardian; or another person who is or
has been ordinarily a member of the household of the person.
Subclause (2) provides that for the purposes of the definition of
family member in subsection (1), domestic partner 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 or financial commitment and support of a
domestic nature for the material benefit of the other, irrespective
of gender and whether or not they are living under the same roof.
It does not include a person who provides domestic support and
personal care to the person for fee or reward or on behalf of
another person or an organisation (this includes a government or
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government agency, a body corporate or a charitable or
benevolent organisation).
Parent of a child is defined to include a guardian of the child or a
person with whom the child normally or regularly resides.
Relative of a person is defined to mean a father, mother,
grandfather, grandmother, step-father, step-mother, father-in-law,
mother-in-law, son, daughter, grandson, granddaughter, step-son,
step-daughter, son-in-law, daughter-in-law, brother, sister, half-
brother, half-sister, brother-in-law, sister-in-law, uncle, aunt,
uncle-in-law, aunt-in-law, nephew, niece or cousin of the person
and in the case of domestic partners, includes a person who
would be such a relative if the domestic partners were married to
each other.
Spouse is defined to mean a person to whom the person is, or
was, married.
Subclause (3) provides that in determining whether persons are
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 Act 1958. A person is not a domestic partner of another
person just because they are co-tenants.
Clause 6 inserts new sections 4A to 4G into the Principal Act.
New section 4A establishes a new Koori Court Division of the
County Court, which has such of the powers of the County Court
as are necessary to enable it to exercise its jurisdiction.
New section 4A(3) provides that the Koori Court Division may
only sit and act at a venue of the court specified by the Chief
Judge by notice published in the Government Gazette.
New section 4A(4) provides that the operation of section 3B is
subject to this section. Section 3B provides that any judge of the
court may exercise at any time and place all the jurisdiction
vested in the court.
New section 4A(5) requires the Koori Court Division to exercise
its jurisdiction with as little formality and technicality, and with
as much expedition, as the Principal Act and the Sentencing Act
1991 and the proper consideration of the matters before the Court
permit.
New section 4A(6) requires the Koori Court Division to take
steps to ensure, so far as practicable, that any proceeding before it
is conducted in a way which it considers will make it
comprehensible to the defendant, a family member of the
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defendant and any member of the Aboriginal community who is
present in court.
New section 4A(7) allows the Koori Court Division to regulate
its own procedure subject to the Act, the regulations and the
rules.
New section 4B confers jurisdiction on the Koori Court Division
to deal with a proceeding for an offence given to it by section 4C,
jurisdiction to deal with a breach of a sentencing order made by it
(including any offence constituted by such a breach) or variation
of such a sentencing order, jurisdiction to hear (in accordance
with the rules) an appeal given to it by section 4D and any other
jurisdiction given to it by or under the Principal Act or any other
Act or the rules.
New section 4C confers on the Koori Court Division jurisdiction
to deal with a proceeding for an offence in the circumstances set
out in section 4E. This excludes an offence constituted by a
breach of a sentencing order made by the Koori Court Division.
New section 4D confers jurisdiction on the Koori Court Division
to hear an appeal under section 83 or 84 of the Magistrates'
Court Act 1989 in the circumstances set out in section 4E if the
appeal is against a sentencing order made by the Koori Court
Division of the Magistrates' Court or the Magistrates' Court
sitting other than as the Koori Court Division. An appeal to the
Koori Court Division under section 83 or 84 of the Magistrates'
Court Act 1989 must be conducted as a re-hearing and is limited
to an appeal against a sentencing order. Section 85 of the
Magistrates' Court Act 1989 does not apply to an appeal to the
Koori Court Division.
New section 4E sets out the circumstances in which the Koori
Court Division may deal with proceedings for certain offences
under new section 4C or hear certain appeals under new
section 4D. The circumstances are that the defendant is
Aboriginal; the offence is within the jurisdiction of the County
Court (excluding certain sexual offences and certain offences
under the Crimes (Family Violence) Act 1987); the defendant
pleads guilty to the offence; the defendant consents to the
proceeding being dealt with by the Koori Court Division and the
Koori Court Division considers that it is appropriate in all the
circumstances that the proceeding be dealt with by it.
New section 4F provides for the transfer of proceedings between
the Koori Court Division and the court, sitting other than as the
Koori Court Division, whether at the same or a different venue.
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New section 4G deals with the sentencing procedure in the Koori
Court Division and applies when the Division is considering
which sentencing order to make in respect of a defendant.
New section 4G(2) allows the Koori Court Division to consider
any oral statement made to it by an Aboriginal elder or respected
person.
New section 4G(3) allows the Koori Court Division to inform
itself in any way it thinks fit. This could include considering a
report or statement or submission prepared or made, or evidence
given to it by, a Koori Court officer, a community corrections
officer appointed under Part 4 of the Corrections Act 1986, or a
health service provider. It also allows a victim of the offence,
family member of the defendant or anyone else whom the Koori
Court Division considers appropriate to prepare a report, make a
statement or submission, or give evidence.
New section 4G(4) ensures that the rules of natural justice apply
to the sentencing hearing.
New section 4G(5) provides that the section does not limit any
other powers conferred on the court by this or any other Act or
the rules or by any other specific provision made by or under this
or any other Act for the making of any report, statement or
submission, or the giving of any evidence, to the court for the
purpose of assisting it in determining sentence.
Clause 7 inserts new Division 4A providing for the appointment of
Aboriginal elders or respected persons.
Clause 8 Subclause (1) amends section 78(1) of the Principal Act by
inserting new paragraphs (hea) to (hed). New paragraph (hea)
provides that rules of practice may be made in relation to any
matter relating to the practice and procedure of the Koori Court
Division of the court, and new paragraph (heb) provides for the
transfer of proceedings to and from the Koori Court Division of
the court. New paragraphs (hec) and (hed) provide that rules of
practice may specify the place at which an appeal under section
83 or 84 of the Magistrates' Court Act 1989 may be heard by
the Koori Court Division (being a place of the court in respect of
which a notice has been published under section 4A) and the
venues of the Magistrates' Court where sentencing orders were
made against which an appeal may be hear by the Koori Court
Division.
Subclause (2) amends section 78 of the Principal Act relating to
the power conferred by new subsections (1)(hea) or (1)(heb) to
make rules of practice by inserting new subsections (6) and (7).
Subsection (6) provides that a power conferred by those
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subsections may be exercised in relation to all cases or some
cases, and so as to make the same provision for all cases in
relation to which the power is exercised or different provisions
for different cases or different purposes, or so as to make any
such provision either unconditionally or subject to any specified
condition.
Subsection (7) provides that rules made under subsection (1)(hea)
or (1)(heb) may be made so as to require a matter affected by the
rules to be approved to the satisfaction of a specified court
official, to confer a discretionary authority or impose a duty on a
specified person and to provide in a specified case for the
exemption (either conditionally or unconditionally), and in whole
or in part, of proceedings from any of the provisions of the rules.
Clause 9 inserts a new section 93 which provides that the amendments
to the Principal Act made by section 6 of the County Court
Amendment (Koori Court) Act 2008 apply to any proceeding,
irrespective of when the offence to which the proceeding relates
was committed or when the proceeding commenced, but does not
apply to a proceeding in which the accused was arraigned before
the commencement of that section.
Clause 10 provides for consequential amendments to the Principal Act on
the coming into operation of certain provisions of the
Relationships Act 2008, the Courts Legislation Amendment
(Associate Judges) Act 2008 and the Family Violence
Protection Act 2008.
Clause 11 repeals the County Court Amendment (Koori Court) Act 2008
on 1 February 2010. 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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