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Justice Legislation Amendment (System
Enhancements and Other Matters)
Bill 2021
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill. The main purposes of the Bill
are--
• 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
• 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;
and
• to amend the Fines Reform Act 2014; and
• to extend the default commencement and repeal dates of
the Justice Legislation Amendment (Criminal
Appeals) Act 2019; and
• to consequentially amend the Interpretation of
Legislation Act 1984; and
• to extend the operation of certain provisions relating to
the COVID-19 pandemic in various Acts.
591254 1 BILL LA INTRODUCTION 17/2/2021
Clause 2 is the commencement provision, which provides for the Bill to
come into operation as follows--
• this Part, Part 19, Division 2 of Part 20 and Part 24 will
commence on the day after the day on which the Act
receives the Royal Assent; and
• the remaining provisions in the Act, except Part 22, will
commence on 26 April 2021; and
• Part 22 will commence on a day or days to be
proclaimed, or on 23 February 2022, if not proclaimed
before that date.
Part 2--Amendment of the Evidence (Miscellaneous Provisions)
Act 1958
Part 2 amends the Evidence (Miscellaneous Provisions) Act 1958 to, among
other things, ensure that several changes introduced by Part IX of that Act,
inserted by the COVID-19 Omnibus (Emergency Measures) Act 2020, will
continue after Part IX is repealed on 26 April 2021. Some changes
introduced by Part IX will not continue, or will continue in a modified form
that better suits the COVID-normal environment.
Clause 3 inserts a note at the foot of the definition of child in section 3(1)
of the Evidence (Miscellaneous Provisions) Act 1958. The note
highlights that the meaning of child for the purposes of Part IIA
is defined in section 42C.
Clause 4 inserts new definitions for exceptional circumstances and head
of jurisdiction into section 42C of the Evidence (Miscellaneous
Provisions) Act 1958 and amends existing definitions of court
point, practice directions and remote point. Section 42C defines
terms in Part IIA of that Act.
The term exceptional circumstances is defined to include a state
of emergency declared under section 198 of the Public Health
and Wellbeing Act 2008 or 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. The term is
used throughout Part IIA of the Evidence (Miscellaneous
Provisions) Act 1958 to enliven a court's own motion power to
make certain orders, or enable a court to make certain orders
when parties do not consent, in a proceeding.
2
The term head of jurisdiction is defined as--
• for the Supreme Court, the Chief Justice;
• for the County Court, the Chief Judge;
• for the Magistrates' Court, the Chief Magistrate;
• for the Children's Court, the President.
This term is used in new section 42UA (inserted by clause 20),
which enables heads of jurisdiction to 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
sections 42E, 42L, 42M, 42N or 42P of that Act.
Clause 4 also substitutes, in section 42C of the Evidence
(Miscellaneous Provisions) Act 1958--
• In the definition of court point, "any other place or
places" for "other place", which reflects that a court
point could include a multi-member bench sitting
remotely from different physical locations.
• "Section 42UA" in the place of "section 42Q" in the
definition of practice directions. Practice directions is
currently defined as practice directions, statements or
notes issued under section 42Q. This consequential
amendment is necessary because clause 14 of the Bill
repeals section 42Q and clause 20 inserts new
section 42UA to deal with practice directions instead.
• The definition of remote point, which is defined to
mean a place where a person appearing before the court,
giving evidence or making a submission is located, or, if
Division 3 applies, where the accused is located. The
revised definition reflects that more than one remote
point may operate in a hearing.
Clause 5 inserts new subsection (6) into section 42E of the Evidence
(Miscellaneous Provisions) Act 1958 to provide that the
exercise of a court's power to direct, under section 42E(1), that a
person appear by audio visual link or audio link is subject to any
practice directions.
Practice directions is defined in section 42C, as amended by
clause 4. Section 42UA, inserted by clause 20, permits a court to
issue practice directions relating to the exercise of its discretion
3
in relation to an application made in accordance with
section 42E.
Clause 6 amends section 42F of the Evidence (Miscellaneous Provisions)
Act 1958, which makes special provision for certain proceedings
involving children.
Subclause (1) amends section 42F(6) to substitute the second
reference to "42R(3)" with "42R". This consequential
amendment is necessary due to the substitution of section 42R by
clause 15.
Subclause (2) inserts "unless it is satisfied that exceptional
circumstances exist" into section 42F(7), after the term "link".
Section 42F(7) presently provides that a court must not direct that
a child appear before, or give evidence or make a submission to,
the court by audio link for certain types of proceedings heard in
the Children's Court. Subclause (2) will allow a child to appear
before, or give evidence or make a submission to, the court by
audio link in these proceedings in exceptional circumstances.
Clause 7 substitutes section 42G of the Evidence (Miscellaneous
Provisions) Act 1958 to revise the technical requirements for
audio visual links and audio links for persons other than the
accused.
New section 42G(1)(a) provides that all appropriate persons at
the court point and a remote point are required to have access to
equipment that enables them to see and hear--
• the person appearing before the court, giving evidence
or making a submission; and
• other appropriate persons at the court point, the remote
point and any other remote point.
This differs from current section 42G(1)(a), which requires a
court point and remote points to be 'equipped with facilities', and
does not clearly envisage more than one remote point operating
simultaneously. The amendments are required to reflect revised
definitions of court point and remote point in section 42C. They
seek to ensure that the requirements capture multiple links
operating simultaneously, and accommodate modern, portable
technology, rather than limiting the use of audio visual links to
points that are equipped with facilities.
4
Section 42G(1)(b) and (c) are reenacted with no substantive
changes.
New section 42G(2) of the Evidence (Miscellaneous
Provisions) Act 1958 provides for similar technical requirements
with respect to audio links.
Clause 8 amends section 42JA of the Evidence (Miscellaneous
Provisions) Act 1958, which provides for how an adult accused
may appear before the Magistrates' Court.
Subclause (1) amends 42JA(1) of the Evidence (Miscellaneous
Provisions) Act 1958. It substitutes "Subject to subsection (2) or
(3)" for "Unless" and "(including a proceeding with respect to
bail or sentencing)" for "(other than a proceeding referred to in
subsection (2) or (3))". These amendments clarify that--
• for any proceeding not named in section 42JA(2) and
(3), an adult accused in custody who is required to
appear, or be brought, before the Magistrates' Court on a
proceeding must do so by audio visual link, and
• this includes proceedings with respect to bail and
sentencing.
For these hearings, which generally require appearance by audio
visual link, under section 42L(1) a court may direct an accused to
attend physically.
Subclause (2) inserts new section 42JA(2A), which will modify
the effect of section 42JA(2) until 26 April 2022. Section
4JA(2), when unmodified, requires adult accused to physically
attend the Magistrates' Court on--
• an inquiry into the accused's fitness to plead to a charge;
or
• the hearing of a charge if the accused is pleading not
guilty; or
• a committal hearing.
Section 42JA(2) is currently being modified by section 174(2) of
the Evidence (Miscellaneous Provisions) Act 1958, which
requires an accused adult to appear by audio visual link on the
hearing of a charge if the accused is pleading not guilty and a
committal hearing. Section 174 was inserted to limit the physical
movement of accused persons in response to the COVID-19
pandemic and it will be repealed on 26 April 2021.
5
However, it will be necessary for most adult accused to continue
appearing by audio visual link in these hearings while COVID-19
remains a serious risk, to ensure the safety of all persons in
custody and who are working in courts and custodial facilities.
Accordingly, new section 42JA(2A) provides that, despite
section 42JA(2)(b) and (c), until 26 April 2022 an adult accused
will be required to appear before the Magistrates' Court by audio
visual link for the hearing of a charge if the accused is pleading
not guilty, or a committal hearing. The Magistrates' Court will
retain the ability, under section 42L(1), to direct an adult accused
to physically attend when the interests of justice requires it.
Clause 9 substitutes section 42K of the Evidence (Miscellaneous
Provisions) Act 1958, which provides for how an adult accused
may appear before courts other than the Magistrates' Court.
New section 42K(1) provides that, subject to subsection (2),
unless a court makes a direction under section 42L(1) of the
Evidence (Miscellaneous Provisions) Act 1958, an adult
accused who is in custody is not required to appear or be brought
physically before a court other than the Magistrates' Court and
instead may appear before the court by audio visual link. This
provides more flexibility for when audio visual link can be used
in courts other than the Magistrates' Court than current section
42K(1), which lists certain proceedings that adult accused may
appear at by audio visual link.
New section 42K(2) provides that an adult accused who is in
custody must physically attend court on a trial (apart from the
arraignment) or hearing of a charge, unless a court makes a
direction under section 42M(1) that they appear by audio visual
link. Current section 42K(2) also requires an accused to
physically attend on an inquiry into their fitness to stand trial, on
a sentencing hearing, or on an appeal. New section 42K permits,
but does not require, accused adults to appear at those
proceedings by audio visual link, and only requires physical
attendance for an accused's trial.
Clause 10 amends section 42L of the Evidence (Miscellaneous Provisions)
Act 1958, which provides for when a court may direct an accused
to physically attend certain hearings that they would otherwise be
required or permitted to attend by audio visual link. These are
proceedings to which section 42JA, as amended by clause 8, and
section 42K(1), as amended by clause 9, apply.
6
Subclause (1) substitutes "42JA" for "42JA(1)" in the heading to
section 42L. This reflects the effect of new section 42JA(2A),
inserted by clause 8, which will require accused adults to attend
additional proceedings by audio visual link until 26 April 2022.
Subclause (2) substitutes section 42L(1) of the Evidence
(Miscellaneous Provisions) Act 1958. New section 42L(1)
provides that a court may direct than an accused physically attend
court for a proceeding that would not otherwise require physical
attendance, if satisfied that physical attendance is required in the
interests of justice or it is not reasonably practicable for the
accused to appear by audio visual link. This reflects the position
in current section 42L(1). However, under new section
42L(1)(b), the court must also consider--
• the impact of requiring a physical appearance by the
accused on the court's case management generally; and
• any risk to public health by requiring a physical
appearance by the accused, including any risks involved
in transporting the accused between the accused's place
of custody and the court.
Subclause (3) amends section 42L(1A) of the Evidence
(Miscellaneous Provisions) Act 1958 so that all courts, when
considering whether a direction that an accused appear physically
is required in the interests of justice, must consider whether the
direction is required to enable the accused--
• to comprehend the proceedings; or
• to communicate with the accused's legal representatives
and give instructions, or express wishes, to that
representative.
Section 42L(1A) currently only requires the Magistrates' Court to
take these matters into account.
Clause 11 amends section 42M of the Evidence (Miscellaneous
Provisions) Act 1958, which concerns when a court may direct
that an accused appear by audio visual link in proceedings when
physical attendance would otherwise be required.
Subclause (1) substitutes "42JA" for "42JA(2)" in the heading to
section 42L. Subclause (2) substitutes "a provision of section
42JA (other than section 42JA(3)) or section " for "section
42JA(2) or" in section 42M(1).
7
Section 42JA(3) provides that an adult accused must physically
attend a first remand hearing at the Magistrates' Court, unless
they consent to appear by audio visual link. A court may not
issue a direction under section 42M(1) in relation to first remand
hearings, but it may issue a direction under section 42M(1) for
other hearings that section 42JA requires an adult accused to
attend physically. On 27 April 2022, when section 42JA(2A) is
repealed, those hearings will be--
• an inquiry into the accused's fitness to plead to a charge;
• the hearing of a charge if the accused is pleading not
guilty; and
• a committal hearing.
Subclause (3) inserts new section 42M(8A) into the Evidence
(Miscellaneous Provisions) Act 1958. Section 42M(8) allows a
victim to address or make a written submission to the court to
oppose the making of a direction that an adult accused appear by
audio visual link in a proceeding they would otherwise be
required to attend physically. New section 42M(8A) ensures that
a victim may address a court in person, by audio visual link, or
by audio link.
Clause 12 repeals section 42O(b) of the Evidence (Miscellaneous
Provisions) Act 1958. Section 42O presently provides that a
child held in custody is required to appear or be brought before a
court unless the court otherwise directs. Repealing section
42O(b) will apply section 42O to all children who are required to
appear, or be brought before a court in a proceeding to which
Division 3 of Part IIA of the Evidence (Miscellaneous
Provisions) Act 1958 applies, including child accused who are
not being held in custody.
Clause 13 amends section 42P of the Evidence (Miscellaneous Provisions)
Act 1958, which provides for when a court may direct that a
child appear by audio visual link.
Section 42P(1) allows a court to direct a child to appear by audio
visual link if the court is satisfied that this would be consistent
with the interests of justice and be reasonably practicable in the
circumstances. If a party does not consent, the court may only
grant the application if it considers there are exceptional
circumstances. The court may also make a direction on its own
motion in exceptional circumstances.
8
Subclause (1) amends section 42P(7) of the Evidence
(Miscellaneous Provisions) Act 1958 to enable the court to
make a direction under section 42P(1) on its own motion if the
court is satisfied that exceptional circumstances exist, or the
direction is--
• necessary for the purposes of the court's case
management generally; and
• consistent with the interests of justice; and
• reasonably practicable in the circumstances.
Subclause (2) inserts new section 42P(9A) into the Evidence
(Miscellaneous Provisions) Act 1958. Section 42P(9) allows a
victim to address or make a written submission to the court to
oppose the making of a direction that an child appear by audio
visual link. New section 42P(9A) ensures that a victim may
address a court in person, by audio visual link, or by audio link.
Clause 14 repeals section 42Q of the Evidence (Miscellaneous Provisions)
Act 1958. Section 42Q currently empowers the senior judicial
officer of a court to make practice directions, statements or notes
relating to the exercise by the court of its discretion in relation to
an application made in accordance with section 42L, 42M, 42N
or 42P. New section 42UA, inserted by clause 20, replaces this.
Clause 15 substitutes section 42R of the Evidence (Miscellaneous
Provisions Act) 1958, which provides technical requirements for
audio visual link appearances by accused.
While current section 42R relies on the requirements contained
section 42G(1), with some modifications, new section 42R is
self-contained. Its content has substantially the same effect as
current section 42R, for example, it includes the same
requirements for an accused to be able to communicate with their
legal practitioner. However, revised section 42R uses language
that is better suited to hearings that involve multiple audio visual
links operating simultaneously, and is sufficiently flexible to
include modern, portable technology.
Section 42R(1) provides that the technical requirements for an
audio visual link by which an accused appears before a court
are--
9
(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 accused appearing before the court, or
entering a plea to a charge, or giving
evidence, or making a submission; and
(ii) other appropriate persons at the court point,
the remote point and any other remote point;
(b) the accused and any legal practitioner representing the
accused to have access to equipment that, in
accordance with any rules of court, enables private
communication to take place, documents to be
transmitted between the accused and the legal
practitioner during the hearing, adjournment or before
or after the hearing;
(c) any requirements prescribed by the court for or with
respect to a range of matters, which are the same
matters as those currently provided by section 42R(2);
(d) any requirements imposed by the presiding judge or
magistrate.
New section 42R(2) provides that any requirements imposed by
the presiding judge or magistrate under section 42R(1)(d) must
not be inconsistent with any provision in Part IIA of the
Evidence (Miscellaneous Provisions) Act 1958 or any rules of
the court.
Clause 16 inserts new sections 42RA and 42RB into the Evidence
(Miscellaneous Provisions Act) 1958 to enable the court to
direct an accused person who is in custody to appear by audio
link in certain circumstances, and provide the technical
requirements for audio link appearance by the accused.
New section 42RA(1) enables an accused referred to in section
42JA(1) or (2A) or 42K(1) who is permitted to appear or be
brought before a court by audio visual link, to appear by audio
link instead if the court makes a direction under section 42RA(3).
Sections 42JA(1), 42JA(2A) and 42K(1) are sections that require
or permit appearance by audio visual link. In addition, new
section 42RA(2) will allow a court to make a direction under
section 42JA(3) when a court has directed an accused to appear
by audio visual link in a hearing that they would otherwise be
10
required to attend physically. Such directions may be issued
under section 42M(1) or (7), section 42MA or section 42P.
Collectively, section 42RA(1) and (2) make directions under
section 42RA(3) available in any hearing that an accused was
able to appear by audio visual link.
New section 42RA(3) enables a court to make a direction for the
purposes of new section 42RA(1) or (2) if--
• the accused is scheduled to appear by audio visual link;
and
• the audio visual link fails or is otherwise unable to
proceed; and
• the court needs to make orders or directions in relation
to adjourning the proceeding to a time when the audio
visual link can proceed or the accused can be brought
physically before the court; and
• the court is satisfied that the technical requirements
specified in section 42RB are met or can be reasonably
met.
New section 42RA(4) enables the court to make any orders it
considers necessary to facilitate the adjournment or efficient
administration of the proceeding. For example, the court may
make an order extending or varying bail or remand arrangements
until the next hearing date or direct an accused to undertake an
assessment for the Court Integrated Services Program (CISP).
New section 42RA enables the court to direct the accused appear
by audio link in more limited circumstances than section 181 of
the Evidence (Miscellaneous Provisions) Act 1958 permits.
This is intended to reflect that while it may have been necessary
to use audio links more broadly in immediate response to the
COVID-19 pandemic, as there was an overarching need to
minimise movement and protect the community, in a COVID-
normal environment accused persons should only appear by
audio link in very limited circumstances.
New section 42RB specifies the technical requirements for an
audio link appearance by the accused. Like new section 42R, it
seeks to ensure that the technical requirements are suited to
modern hearings that involve multiple links operating
simultaneously, and that the terminology is sufficiently flexible
to include modern, portable technology.
11
Section 42RB(1) provides that 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
hear the accused, and 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 to 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 during the
hearing, any adjournment or shortly before or after the
hearing;
(c) any requirements prescribed by the court for or with
respect to a range of matters; and
(d) any requirements imposed by the presiding judge or
magistrate.
New section 42RB(2) provides that any requirements imposed by
the presiding judge or magistrate under section 42RB(1)(d) must
not be inconsistent with any provision in Part IIA of the
Evidence (Miscellaneous Provisions) Act 1958 or any rules of
the court.
Clause 17 substitutes section 42S of the Evidence (Miscellaneous
Provisions) Act 1958, which provides for the protection of
communication between an accused and their legal
representative. The substitution is necessary to apply section 42S
to communications in the circumstances referred to in new
section 42R(1)(b) or 42RB(1)(b), which may not occur by audio
visual link or audio link. For example, a document could be
transmitted by email, or an accused could communicate with
their legal representative by SMS.
Clause 18 amends section 42T of the Evidence (Miscellaneous Provisions)
Act 1958, which applies the Surveillance Devices Act 1999.
Like the amendment in clause 17, this amendment is necessary to
apply section 42T to communications in the circumstances
referred to in new section 42R(1)(b) or 42RB(1)(b) which may
not occur by audio visual link or audio link.
12
Clause 19 substitutes section 42U(1) of the Evidence (Miscellaneous
Provisions) Act 1958.
Section 42U provides for putting documents to a person at a
remote point. New section 42U(1) extends the application of
section 42U to the examination of a person by audio visual link
or audio link in circumstances where there are multiple remote
points.
Section 42U of the Evidence (Miscellaneous Provisions)
Act 1958 provides that the presiding judge or magistrate may
permit a document that needs to be put to a person who is
appearing before the court by audio link or audio visual link to be
transmitted to them by any means. The document put to the
person is admissible in evidence without proof that the
transmitted copy is a true copy. Nothing in section 42U prevents
a document or exhibit being shown to a person over the audio
visual link itself.
Clause 20 inserts new section 42UA into the Evidence (Miscellaneous
Provisions) Act 1958 to empower the head of jurisdiction of a
court to make practice directions, statements or notes relating to
the exercise by the court of its discretion in relation to an
application for the making a direction under section 42E, 42L,
42M, 42N and 42P of the Evidence (Miscellaneous Provisions)
Act 1958.
New section 42UA replaces section 42Q of the Evidence
(Miscellaneous Provisions) Act 1958, which is repealed by
clause 14. Section 42Q does not permit courts to issue practice
directions relating to the court's exercise of its direction in
relation to an application made in accordance with section 42E.
It also updates the terminology referred to throughout section
42Q for consistency with other statutory provisions. Clause 4
inserts a definition of head of jurisdiction into section 42C of the
Evidence (Miscellaneous Provisions) Act 1958.
Clause 21 amends section 42W of the Evidence (Miscellaneous
Provisions) Act 1958, which provides for the application of laws
about witnesses, etc. These are consequential amendments which
are necessary to ensure that section 42W(1) applies in
circumstances where parties are appearing from multiple remote
points.
13
Clause 22 inserts new sections 42Y and 42YA after section 42X of the
Evidence (Miscellaneous Provisions) Act 1958.
New section 42Y provides that a hearing is not invalid merely
because of a failure to comply with the technical requirements
specified in section 42G, 42R or 42RB.
New section 42Y recognises that equipment and technology are
imperfect, and that a hearing should not be invalid merely
because the technical requirements have not been strictly adhered
to. For example, if a party's video connection drops out briefly
when they are appearing by audio visual link, that may not
comply with section 42G requirements even if the party can still
hear and be heard and their video is quickly restored. It is not
intended that such minor failures to comply should invalidate a
hearing.
New section 42YA provides for the repeal of temporary
COVID-19 measures in sections 42JA and 42RA on 27 April
2022.
Clause 23 inserts new section 167 into the Evidence (Miscellaneous
Provisions) Act 1958. This is a transitional provision, which
ensures that any directions 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. For such directions, Part IIA will
continue to have effect as if sections 42JA and 42RA had not
been amended by section 42YA.
Part 3--Amendment of the Bail Act 1977
Clause 24 inserts definitions for electronic signature and section 17 notice
in section 3 of the Bail Act 1977.
The term electronic signature is defined to include a person
confirming their agreement by electronically selecting an option
indicating affirmation, or by providing a scanned of
photographed copy of a document signed by hand.
The term section 17 notice is defined to mean the written notice
of bail conditions required by section 17 of the Bail Act 1977.
14
Clause 25 amends section 9(3B)(a)(ii) of the Bail Act 1977 to clarify that a
surety may use an electronic signature when signing a copy of the
accused's bail undertaking.
Clause 26 inserts new sections 17A and 17B after section 17 of the Bail
Act 1977.
New section 17A allows accused persons to enter into a bail
undertaking by way of electronic signature and contains the
procedural requirements for doing so.
New section 17A(1) provides that the requirement that an
accused enter into a written undertaking under section 5(1) of the
Bail Act 1977 may be satisfied by -
• the bail decision maker or authorised person sending a
copy of the undertaking and a copy of the section 17
notice to the accused by electronic communication; and
• the accused confirming receipt of the section 17 notice
and confirming they understand their bail conditions
and the consequences of breach. This requirement may
be satisfied by return electronic communication to the
bail decision maker or authorised person or by oral
confirmation via audio-visual link; and
• the accused electronically signing the undertaking and
returning it to the bail decision maker or authorised
person; and
• the bail decision maker, or authorised person, noting
their name and position on the undertaking and noting
that it has been signed electronically. A copy of the
electronic communication from the accused must be
attached to the annotated undertaking.
New section 17A(2) provides that if an undertaking is entered
into by way of electronic signature using the procedure set out in
subsection (1), the undertaking will be constituted by the
annotated undertaking with the attached electronic
communication from the accused.
New section 17A(3) provides that if an undertaking is entered
into by way of electronic signature using the procedure set out in
subsection (1) and there is a surety (or sureties) who signs the
annotated undertaking, the undertaking is constituted by the
15
annotated undertaking with the attached electronic
communication from the accused.
New section 17A(4) provides that if an undertaking is entered
into by way of electronic signature using the procedure set out in
subsection (1), the bail decision maker or authorised person must
send a copy of the undertaking and the section 17 notice to the
accused, without delay. These documents can be sent to the
accused via electronic communication or by post.
New section 17A(5) defines authorised person for the purposes
of section 17A of the Bail Act 1977 to mean a person authorised
by section 27 of the Bail Act 1977 to admit an accused person to
bail.
New section 17B allows the parent (or some other person) of an
accused child to enter into an undertaking pursuant to section
16B of the Bail Act 1977 by way of electronic signature.
New section 17B(1) defines a parent of a child or some other
person as the undertaking person. New section 17B(1) provides
that the requirement that the undertaking person enter into an
undertaking, under section 16B of the Bail Act 1977, may be
satisfied by-
• the bail decision maker or authorised person sending a
copy of the undertaking and a copy of the section 17
notice to the undertaking person by electronic
communication;
• the undertaking person electronically signing the
undertaking and returning it to the bail decision maker
or authorised person; and
• the bail decision maker, or authorised person, noting
their name and position on the undertaking and noting
that it has been signed electronically. A copy of the
electronic communication from the undertaking person
must be attached to the annotated undertaking.
New section 17B(2) provides that if an undertaking is entered
into by way of electronic signature, using the procedure set out in
subsection (1), the undertaking will be constituted by the
annotated undertaking with the attached electronic
communication from the undertaking person.
16
New section 17B(3) provides that if an undertaking is entered
into by way of electronic signature using the procedure set out in
subsection (1), and there is a surety (or sureties) who signs the
annotated undertaking, the undertaking is constituted by the
annotated undertaking with the attached electronic
communication from the undertaking person.
New section 17B(4) provides that if an undertaking is entered
into by way of electronic signature using the procedure set out in
subsection (1), the bail decision maker or authorised person must
send a copy of the undertaking and the section 17 notice to the
undertaking person without delay. These documents can be sent
to the undertaking person via electronic communication or by
post.
New section 17B(5) defines authorised person for the purposes
of section 17B of the Bail Act 1977 to have the same meaning as
in section 17A(5); that is, a person authorised by section 27 to
admit an accused person to bail.
Clause 27 inserts new subsection 27(1A) after section 27(1) of the Bail
Act 1977 and new subsection 27(2)(ca) after section 27(2)(c) of
the Bail Act 1977.
New section 27(1A) provides that a person may be admitted to
bail by entering into an undertaking by way of electronic
signature, in accordance with new section 17A or 17B.
New section 27(2)(ca) provides that for the purposes of section
27(1) of the Bail Act 1977, a court official includes a registrar or
deputy registrar of the Children's Court. The purpose of this
amendment is to allow a bail undertaking to be made before those
officials of the Children's Court.
Clause 28 inserts new section 32B after section 32A of the Bail Act 1977
and provides for how a person may appear before a court, in a
non-criminal proceeding, for the purposes of any provision in the
Bail Act 1977. Examples of where provisions of the Bail
Act 1977 may be applicable in non-criminal proceedings
include--
• where a witness is arrested, pursuant to a warrant, for
failing to comply with a valid subpoena to attend court;
• where a person is arrested pursuant to an enforcement
warrant for outstanding fines; and
17
• where a Magistrate or registrar issues a warrant on
application for a family violence intervention order and
the respondent fails to attend court and is subsequently
arrested.
A person in such a proceeding may appear personally, or by a
legal practitioner representing the person, or by another person
empowered by law to appear for the person.
Section 328 of the Criminal Procedure Act 2009 sets out how a
party to a criminal proceeding may appear before a court.
Clause 29 inserts a transitional provision into the Bail Act 1977 after
section 34(20). New section 34(21) provides that the Bail
Act 1977, as amended by Part 3 of the Justice Legislation
Amendment (System Enhancements and Other Matters)
Act 2021, applies to any hearing or application made under the
Bail Act 1977 on or after the commencement of the applicable
provision of that Part, regardless of when the charge sheet was
filed or when the offence is alleged to have been committed.
Part 4--Amendment of Children, Youth and Families Act 2005
Clause 30 amends section 221 of the Children, Youth and Families
Act 2005, which enables the Children's Court or a convenor to
fix the time and place of a conciliation conference. New
subsection 221(2) clarifies that the place for the holding of a
conciliation conference includes the holding of a conciliation
conference by audio link or audio visual link. This ensures a
conciliation conference may be held remotely.
Clause 31 amends section 222 of the Children, Youth and Families
Act 2005, which sets out who is to attend a conciliation
conference. New section 222(8) clarifies that a convenor of a
conciliation conference may permit one or more persons referred
to in section 222 to attend a conciliation conference by audio link
or audio visual link. This ensures that convenors have flexibility
to allow participants to attend a conciliation conference by
remote means.
Clause 32 amends section 260 of the Children, Youth and Families
Act 2005, which sets out the purpose and requirements for
conciliation counselling. New section 260(4A) clarifies that the
person conducting conciliation counselling may permit one or
more of the parties to undertake conciliation counselling, or
18
participate in a conciliation conference referred to in section
260(4), by audio link or audio visual link. This ensures
conciliation counselling and conferences may be conducted
remotely.
Clause 33 amends section 320(5)(c)(i), (ii) and (iii) of the Children, Youth
and Families Act 2005 which relates to the service of an
application for a permanent care order. The amendment omits
the word "true" from those subparagraphs and allows a copy,
instead of a true copy, of the notice of an application for a
permanent care order to be served.
Clause 34 amends section 326(3)(c)(i), (ii) and (iii) of the Children, Youth
and Families Act 2005 which relates to the service of an
application for a variation or revocation of a permanent care
order. The amendment omits the word "true" from those
subparagraphs and allows a copy, instead of a true copy, of the
notice of an application to vary or revoke a permanent care order
to be served.
Clause 35 amends section 409T of the Children, Youth and Families
Act 2005, which sets out the requirements for youth control order
planning meetings.
Subclause (1) inserts new section 409T(2A), which clarifies that
the place at which a planning meeting may be held includes a
planning meeting to be held by audio link or audio visual link.
This ensures a planning meeting can be held remotely.
Subclause (2) inserts new section 409T(5), which provides that
the convenor of a planning meeting, having regard to the views
of the attendees, may require or permit one or more of the
attendees to appear before the meeting by audio visual or audio
link, or participate in the meeting by making oral or written
submissions. This ensures convenors have flexibility to enable
participation in a planning meeting by various means as an
alternative to attendance in person.
Clause 36 amends section 415 of the Children, Youth and Families
Act 2005, which sets out the requirements for a group
conference.
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Subclause (1) inserts new section 415(3A), which clarifies that
the place at which a group conference may be held includes a
group conference to be held by audio link or audio visual link.
This ensures a group conference can be held remotely.
Subclause (2) inserts new section 415(7A), which provides that
the convenor of a group conference, having regard to the views
of the attendees of the group conference, may require or permit
one or more of the attendees to appear before the group
conference by audio visual or audio link, or participate in the
group conference by making oral or written submissions. This
ensures convenors have flexibility to enable participation in a
group conference by various means as an alternative to
attendance in person.
Clause 37 substitutes section 505 and inserts new section 505A of the
Children, Youth and Families Act 2005.
Substituted section 505 allows the Children's Court to sit and act
at any time and place. It removes the requirement that the
Children's Court must be held at the places at which the
Magistrates' Court is to be held on the days and times appointed
by notice published in the Government Gazette, and the
requirement that the Children's Court may be held in the same
building as the Magistrates Court only if directed by the
Governor in Council by Order published in the Government
Gazette.
New section 505A(1) allows the Court to order that a hearing be
held at an appropriate place that is not the proper venue. The
Court may determine to hold a hearing at a place other than the
proper venue based on any reason it considers to be appropriate,
if it is in the interests of justice to make this determination. New
section 505A does not limit the Court's ability to sit and act at
any time and place that is provided for in amended section 505.
New section 505A(2) requires that the Court must first have
regard to the places closest to the proper venue for the hearing as
well as the views of parties to the proceeding, in determining an
appropriate place to hold the hearing.
20
Clause 38 is a consequential amendment to section 516A(1) of the
Children, Youth and Families Act 2005. It substitutes "Despite
section 505(3), the" in section 516A(1) of the Children, Youth
and Families Act 2005 with "The". This is because the new
section 505 will no longer contain a subsection (3).
Clause 39 amends section 530(5) of the Children, Youth and Families
Act 2005 by inserting "or audio link" after "audio visual link".
This allows the Court to direct that a child may appear before the
Court by either audio link or audio visual link.
Clause 40 amends section 523(5)(a) and (b) of the Children, Youth and
Families Act 2005 which relates to the service of witness
summonses in the Family Division of the Children's Court.
The amendment omits the word "true" from those paragraphs and
allows a copy, instead of a true copy, of a witness summons to be
served.
Clause 41 amends section 539 of the Children, Youth and Families
Act 2005 to provide new powers to registrars to allow courts to
manage the listing and re-listing of criminal matters more
efficiently. These amendments make permanent the temporary
measures introduced by the COVID-19 Omnibus (Emergency
Measures) and Other Acts Amendment Act 2020 to support
the effective and efficient operation of the Children's Court of
Victoria.
Section 539(1) of the Children, Youth and Families Act 2005
confers powers on a registrar of the Children's Court of Victoria.
Clause 41(1)(a) of the amending Bill substitutes section
539(1)(d) of the Children, Youth and Families Act 2005 to
provide a registrar with the power to abridge or extend bail of a
person who has been granted bail in relation to a criminal
proceeding. This expands the power registrars previously had to
extend a person's bail on the same day that their proceeding was
listed before the Court.
Clause 41(1)(b) of the amending Bill also substitutes "2016."
with "2016;" in section 539(1)(f) of the Children, Youth and
Families Act 2005 to accommodate the insertion of new
paragraphs in section 539(1).
Clause 41(1)(c) of the amending Bill inserts into section 539(1)
of the Children, Youth and Families Act 2005 new paragraphs
(g), (h) and (i) to confer additional powers on a registrar.
Specifically, new paragraph (g) empowers a registrar to adjourn a
criminal proceeding or a proceeding under the Family Violence
21
Protection Act 2008, the Personal Safety Intervention Orders
Act 2010 or the National Domestic Violence Order Scheme
Act 2016; new paragraph (h) empowers a registrar to abridge or
extend the adjournment of one of those proceedings; and new
paragraph (i) empowers a registrar to otherwise change the time
or place at which one of those proceedings is listed before the
Court.
Clause 41(2) of the amending Bill amends section 539(2) of the
Children, Youth and Families Act 2005 by substituting
"subsection (1)(c) does not empower" with "nothing in this
section empowers" in section 539(2). The effect of this
amendment is to confirm that nothing in the section, including
the newly inserted powers, empowers a registrar to vary the
amount or conditions of bail.
Clause 41(3) of the amending Bill inserts new subsections (3), (4)
and (5) in section 539 of the Children, Youth and Families Act
2005. New section 539(3)(a) and (b) provide that the power
under new subsection 539(1)(d) may be exercised on any day and
in either the presence or absence of the accused.
New section 539(4) provides that the powers under new
subsection 539(1)(g), (h), and (i) may be exercised on any day
and either in the presence or the absence of the parties.
New section 539(5) provides that the powers under new
subsection (1)(d), (g), (h), or (i) may be exercised on the
application of a party or on the registrar's own initiative.
Clause 42 amends section 593 of the Children, Youth and Families
Act 2005 which relates to the service of documents for which no
specific process is set out in the Children, Youth and Families
Act 2005. The amendments remove the need for the service of a
true copy and allow for additional methods of service by
electronic means and through a person's authorised legal
representative.
Subclause (1)(a) amends section 593(1)(a) and (b) of the
Children, Youth and Families Act 2005 to omit the word "true"
and allow a copy, instead of a true copy, of a document to be
served personally or by registered post.
Subclause (1)(b) amends section 593(1)(c) of the Children,
Youth and Families Act 2005 to omit the word "true" and allow
a copy, instead of a true copy, of a document to be served by
leaving a copy at the person's last or most usual place of
22
residence or business with a person who apparently resides or
works there and who apparently is not less than 16 years of age.
Clause 42(1)(b)(ii) also makes a consequential amendment to
section 593(1)(c) of the Children, Youth and Families Act
2005, and substitutes "age" with "age; or" to accommodate the
insertion of new subparagraphs.
Clause 42(1)(c) inserts new paragraphs (d), (e), (f), (g) and (h) to
section 593(1) of the Children, Youth and Families Act 2005.
New section 593(1)(d) allows a copy of a document to be served
by means of an electronic communication that is confirmed as
having been received by the person.
New section 593(1)(e) enables service of a document by
registered post, if the document is address to a person's
authorised legal representative and delivered to the authorised
legal representative's place of business.
New section 593(1)(f) allows a document to be served by leaving
a copy of the document for the person at the place of business of
the person's authorised legal representative, and with a person
who is not less than 16 years of age who apparently works at the
place of business.
New section 593(1)(g) allows for a document to be addressed to
and personally served on a person's authorised legal
representative.
New section 593(1)(h) enables a document to be served by
electronic communication on a person's authorised legal
representative, if the person's authorised legal representative
confirms receiving the document.
Clause 42(2) inserts new section 593(1A) of the Children,
Youth and Families Act 2005 to provide that personal service of
a document as outlined in section 593(1)(a) of the Children,
Youth and Families Act 2005 may be effected by placing a copy
of the document on a surface in the presence of the other person.
This amendment allows for the adherence to any social
distancing requirements that may be in place.
Clause 42(3) inserts new section 593(4) and (5) of the Children,
Youth and Families Act 2005. New section 593(4) of the
Children, Youth and Families Act 2005 provides that the new
methods of service through electronic communications, through
23
an authorised legal representative, and by placing a copy of the
document on a surface in the presence of the other person, are
suitable alternative means to any provisions that require service
to occur by registered post, personally or otherwise.
New section 593(5) of the Children, Youth and Families
Act 2005 provides that the definition of an authorised legal
representative for this section is a legal representative of the
person who has been instructed by the person to receive
documents on the person's behalf.
Clause 43 amends section 594 of the Children, Youth and Families
Act 2005 which sets out timeframes for the service of documents
on a parent, child or other person.
Clause 43(1)(a) amends section 594(a) and (b) of the Children,
Youth and Families Act 2005 to omit the word "true" from
those paragraphs and allows a copy, instead of a true copy, of a
document to be served on a parent, child or other person.
Clause 43(1)(b) amends section 594(c) of the Children, Youth
and Families Act 2005 to omit the word "true" from that
paragraph and allow a copy, instead of a true copy, of a
document to be served on a parent, child or other person. Clause
43(1)(b)(ii) also makes a consequential amendment to section
594(c) of the Children, Youth and Families Act 2005, and
substitutes "age" with "age; or".
Clause 43(1)(c) inserts new paragraphs (d), (e), (f), (g) and (h) to
section 594 of the Children, Youth and Families Act 2005.
New section 594(d) of the Children, Youth and Families
Act 2005 stipulates that a copy of a notice on a parent, child or
other person by electronic communication must be served not
less than 5 days before the hearing date. The authorised legal
representative must confirm receiving the electronic
communication.
New section 594(e) of the Children, Youth and Families
Act 2005 provides that a copy of a notice by registered post on
the authorised legal representative of a parent, child or other
person must be served not less than 14 days before the hearing
date. The copy of the notice may be addressed to the authorised
legal representative and sent to his or her place of business.
24
New section 594(f) of the Children, Youth and Families
Act 2005 requires that a copy of a notice that is served by leaving
it at the place of business of the authorised legal representative of
a parent, child or other person, and with a person who apparently
works there and who apparently is not less than 16 years of age
must be left at the place of business not less than 5 days before
the hearing date.
New section 594(g) of the Children, Youth and Families
Act 2005 stipulates that a copy of a notice that is served
personally on an authorised legal representative of a parent, child
or other person must be done not less than 5 days before the
hearing date. The copy of the notice should be addressed to the
authorised legal representative.
New section 594(h) of the Children, Youth and Families
Act 2005 provides that a copy of a notice that is served on the
authorised legal representative of a parent, child or other person
by electronic communication must be served not less than 5 days
before the hearing date. The authorised legal representative must
confirm receiving the electronic communication.
Clause 43(2) inserts new section 594(2) into the Children,
Youth and Families Act 2005. It provides that the definition of
an authorised legal representative for this section is a legal
representative of the person who has been instructed by the
person to receive documents on the person's behalf.
Part 5--Amendment of Criminal Procedure Act 2009
Clause 44 inserts, in section 3 of the Criminal Procedure Act, "or audio
link" after "link" in paragraph (b) of the definition of attend. The
definition currently allows a person to appear by audio visual link
if authorised or required to do so under Division 2 or 3 of
Part IIA of the Evidence (Miscellaneous Provisions) Act 1958.
Clause 44 expands this to include appearances by audio link
authorised or required under Division 2 or 3 of Part IIA of the
Evidence (Miscellaneous Provisions) Act 1958.
This amendment is required because currently Division 2 and 3
of Part IIA of the Evidence (Miscellaneous Provisions)
Act 1958 do not allow accused persons to attend hearings by
audio link from custody. However, clause 16 of the Bill inserts
new section 42RA into Division 3 of Part IIA, which will permit
these accused to attend by audio link in limited circumstances.
25
Clause 45 amends section 201 of the Criminal Procedure Act 2009, which
concerns how a court may decide pre-trial issues entirely on the
basis of written submissions, without the appearance of parties.
Currently, section 201 of the Criminal Procedure Act 2009
applies when the court is notified of an issue at least 14 days
before a trial is listed to commence, and all parties to the
proceeding agree. Section 201 relates to issues disclosed under
section 200(1) of the Criminal Procedure Act 2009. This
includes any issue with respect to the trial that the court considers
appropriate, including those listed in section 199(1)--
• an issue of law or procedure that could arise in the trial,
including whether certain evidence is admissible;
• an issue of fact, or mixed law and fact, that may be
determined by a judge alone without a jury, including
whether certain evidence is admissible;
• an application for an order that may be made in relation
to the trial under the Criminal Procedure Act 2009 or
any other Act or at common law, including an
application to quash a charge in the indictment;
• any other issue relating to the trial.
Subclause (1) substitutes section 201(1) of the Criminal
Procedure Act 2009 and inserts new subsections (1A) and (1B).
New section 201(1) does not require parties to agree to have an
issue determined on the basis of written submissions but retains
the 14 day notification time frame (consistent with section
200(3)). New subsections (1A) and (1B) provide for a new
process for deciding when issues can be determined on the basis
of written submissions.
New section 201(1A) provides that the court may decide the
issue on the basis of written submissions, without an oral hearing
or the appearance of the parties, if the court is satisfied it is in the
interests of justice to do so, whether or not parties consent. This
aligns section 201 with the process for determining other issues
in criminal proceedings, to be introduced by clause 48. Section
201 will remain the mechanism for determining issues under
section 200(1) that the court is notified of at least 14 days before
trial. The time frames for parties to serve written submissions,
set out in section 201(2) to (4), will continue to apply.
26
Given the significance of a court determining pre-trial issues
without the appearance of parties and without agreement, new
section 201(1B) provides a non-exhaustive list of matters that the
court must have regard to when considering the interests of
justice--
• the accused's right to a fair hearing;
• the nature of the issue;
• whether the accused has had the opportunity to obtain
legal advice; and
• whether the parties consent to the approach.
Subclause (2) substitutes "court decides to decide the issue" for
"parties agree to have the issue decided" in section 201(2) of the
Criminal Procedure Act 2009. This is a consequential
amendment which reflects that proceeding on the basis of written
submissions will be contingent on the court's decision, rather than
the parties' agreement.
Subclause (3) repeals section 201(5) of the Criminal Procedure
Act 2009 which presently allows the court to conduct a directions
hearing upon request, if parties do not consent to have the issue
determined on written submissions. Section 201(5) will no
longer be necessary as new section 201(1B) empowers the court
to decide a pre-trial issue on written submissions even if the
parties do not agree. As the decision to determine an issue is in
the court's discretion, courts may proceed to later conduct an oral
hearing if the written submissions indicate that one is necessary.
Clause 46 inserts "(including by audio link or audio visual link)" after "in
court" in section 177(1)(a) of the Criminal Procedure Act 2009.
This provision empowers the DPP to discontinue a prosecution
for an offence against an accused by announcing the
discontinuance in court. The amendment ensures that this can
occur when a court is operating remotely.
Clause 46 ensures that a change introduced by regulation 10(3) of
the COVID-19 Omnibus (Emergency Measures) (Criminal
Proceedings and Other Matters) Regulations 2020 will continue
after those regulations are impliedly revoked on 26 April 2021.
Clause 47 omits "(within the meaning of Part IIA of the Evidence
(Miscellaneous Provisions) Act 1958)" from section 331(6)(b)
of the Criminal Procedure Act 2009. This is a consequential
27
amendment arising from clause 195, which inserts a definition of
audio visual link into the Interpretation of Legislation Act
1984. Audio visual link will be defined to have the meaning
given by Part IIA of the Evidence (Miscellaneous Provisions)
Act 1958.
Clause 48 inserts new section 337A into the Criminal Procedure Act 2009
to provide for when a court may determine issues in a criminal
proceeding without an oral hearing.
New section 337A(1) provides that a court may determine any
issue in any criminal proceeding without an oral hearing and
entirely on the basis of written submissions without requiring
parties to appear, other than the issue of whether an accused is
guilty or not guilty or an offence charged. The parties do not
need to consent to have issues determined on the basis of written
submissions, but the court may only do so if satisfied it is in the
interests of justice. This provision is in addition to, and does not
limit, section 201 of the Criminal Procedure Act 2009. A note
to section 337A(1) indicates that section 201 provides for issues
to be decided before trial without an oral hearing. Clause 45 of
the Bill amends section 201 so that the process for determining
issues in criminal proceedings will be consistent.
New section 337A(2) provides non-exhaustive guidance to the
court in determining whether it is in the interests of justice to
decide an issue without an oral hearing. These are similar to the
matters set out in clause 45, which relate to determining pre-trial
issues without a hearing. Given the significance of a court
determining issues without appearance by the parties, subsection
(2) requires the court to have regard to the right of an accused to
be present at their trial, their right to a fair hearing, the nature of
the issue, whether the accused or the offender (in the event of a
sentencing hearing or appeal) have had the opportunity to obtain
legal advice, and whether the parties consent.
New section 337A(3) confirms that the power in section 337A
does not affect any other power a court has to determine issues in
a criminal proceeding without an oral hearing. It is provided in
addition to the common law and any other statutory provisions.
New section 337A ensures that a change introduced by
section 420ZL of the Criminal Procedure Act 2009, inserted by
the COVID-19 Omnibus (Emergency Measures) Act 2020,
will continue after section 420ZL is repealed on 26 April 2021.
28
Clause 49 amends section 391 of the Criminal Procedure Act 2009 which
provides for how personal service is effected under that Act. The
amendments allow personal service to be effected in more
flexible ways while maintaining the security of this mode of
service.
Subclause (1) removes "if the person does not accept a copy"
from section 391(2)(b) of the Criminal Procedure Act 2009.
Section 391(2)(b) currently provides that personal service can be
effected on a person who does not accept a copy of the document
by putting a copy down in the person's presence and telling them
the nature of the document. The amendment will allow servers to
serve documents in this way without first offering the person to
be served the document to accept. This will allow servers to, for
example, maintain a physical barrier between themselves and the
person to be served (such as a screen door or window).
Subclause (2) inserts new subsection (2A) after section 391(2) of
the Criminal Procedure Act 2009 to provide that for the
purposes of section 391(2)(c), a person satisfies the requirement
to leave a copy of a document with another person by putting a
copy of the document down in the presence of the other person
and telling the person the nature of the document. Section
391(2)(c) enables personal service to be effected by leaving a
copy of the document at the last known address or usual place of
residence of the person to be served, with a person who appears
to be of or over the age of 16 years. The amendment clarifies
that "leaving" a document with such a person does not require
physically handing it to them.
Subclause (3) inserts new paragraph (ca) after section 391(4)(c)
to provide further ways for personal service to be effected when a
legal practitioner is accepting service on behalf of an accused in
accordance with section 391(4) of the Criminal Procedure
Act 2009. The amendment will allow personal service to be
effected by faxing or emailing the document to an appointed
legal practitioner, where the practitioner has provided the
prosecution or informant with a fax number or email, and has
consented to accepting personal service by those means. Fax and
email may only be used to serve documents on a legal
practitioner and not the individual directly.
29
The amendments in clause 49 ensure that changes introduced by
section 420ZM of the Criminal Procedure Act 2009, inserted
by the COVID-19 Omnibus (Emergency Measures) Act 2020,
will continue after section 420ZM is repealed on 26 April 2021.
Clause 50 inserts new section 456 into the Criminal Procedure Act 2009
to provide for transitional matters arising out of the amendment
of the Criminal Procedure Act 2009 by the Bill. The
transitional provisions provide that section 201 as in force
immediately before the commencement of clause 45 continues to
apply in relation to the determination of an issue under section
200(1) that a court--
• was notified of at least 14 days before the day on which
the trial of the accused was listed to commence, and
• has not yet decided.
Otherwise, the amendments apply to a criminal proceeding on
and from the commencement of Part 5 of the Bill, regardless of
when the criminal proceeding commenced or the offence to
which the proceeding relates is alleged to have been committed.
Part 6--Amendment of Supreme Court Act 1986
Clause 51 inserts new section 26(2) into the Supreme Court Act 1986 to,
without limiting section 26(1), enable a majority of Judges of the
Court (not including any reserve Judge, Associate Judge or
reserve Associate Judge) to exercise the power to make Rules by
agreeing to the proposed Rules without being physically present
at a meeting held for that purpose.
New section 26(2) gives the majority of the Judges of the
Supreme Court the power to make Rules of Court outside the
forum of a face-to-face meeting, including at a meeting held by
remote means or by agreement reached by circular resolution.
New section 26(2) ensures that a change introduced by
section 129C of the Supreme Court Act 1986, inserted by the
COVID-19 Omnibus (Emergency Measures) Act 2020, will
continue after section 129C is repealed on 26 April 2021.
Clause 52 inserts new Division 1 of Part 6 into the Supreme Court
Act 1986 to enable the Supreme Court to decide matters or
proceedings without an oral hearing. Clauses 53 and 56 provide
30
for equivalent powers to be inserted into the County Court
Act 1958 and Magistrates' Court Act 1989 respectively.
New section 62(1) provides that the Supreme Court may
determine any matter in a proceeding, or any proceeding, entirely
on the basis of written submissions and without the appearance of
the parties. The parties do not need to consent to this approach,
but the court may only exercise this power if satisfied it is in the
interests of justice to do so. A note to new section 62(1)
confirms that criminal proceedings are excluded, as they do not
fall within the definition of proceeding in the Supreme Court
Act 1986. Proceeding is defined in section 3(1) to mean any
matter in the court other than a criminal proceeding. The note
also refers to section 201 and new section 337A of the Criminal
Procedure Act 2009 (inserted by clause 48), respectively. These
permit courts to determine issues in criminal proceedings on the
basis of written submissions.
New section 62(2) provides non-exhaustive guidance to the court
in determining whether it is in the interests of justice to decide a
matter on the basis of written submissions. Given the
significance of a court determining matters without appearance
by the parties, subsection (2) requires the court to have regard to
the nature of the matter or proceeding, the right to a fair hearing,
whether parties have had the opportunity to obtain legal advice,
and whether the parties consent.
New section 62(3) confirms that the power in new section 62
does not interfere with or replace any existing power the court
has to determine a matter or proceeding without an oral hearing.
It is provided in addition to any other statutory power that the
court has to determine a matter entirely on the basis of written
submissions, such as that contained in section 63 of the
Vexatious Proceedings Act 2014. It also applies in addition to
any inherent or implied power to determine matters entirely on
the basis of written submissions.
New section 62 ensures that a change introduced by section 129B
of the Supreme Court Act 1986, inserted by the COVID-19
Omnibus (Emergency Measures) Act 2020, will continue after
section 129B repealed on 26 April 2021. In Knight v Sellman &
Ors [2020] VSC 320, Cavanough J described section 129B as
having "fortified" its existing statutory and non-statutory powers
to dispense with oral hearings (at [26]).
31
Part 7--Amendment of County Court Act 1958
Clause 53 inserts new section 36AA into the County Court Act 1958 to
enable the County Court to decide matters or proceedings without
an oral hearing. Clauses 52 and 56 provide for equivalent powers
to be inserted into the Supreme Court Act 1986 and
Magistrates' Court Act 1989 respectively.
New section 36AA(1) provides that the County Court may
determine any matter in a proceeding, or any proceeding, entirely
on the basis of written submissions and without the appearance of
the parties. The parties do not need to consent to this approach,
but the court may only exercise this power if satisfied it is in the
interests of justice to do so.
New section 36AA(2) excludes criminal proceedings and matters
in criminal proceedings from this provision. A note to subsection
(2) explains that section 201 and new section 337A of the
Criminal Procedure Act 2009 provide similarly for criminal
proceedings.
New section 36AA(3) provides non-exhaustive guidance to the
court in determining whether it is in the interests of justice to
decide a matter on the basis of written submissions. Given the
significance of a court determining matters without appearance
by the parties, subsection (3) requires the court to have regard to
the nature of the matter or proceeding, the right to a fair hearing,
whether parties have had the opportunity to obtain legal advice,
and whether the parties consent.
New section 36AA(4) confirms that the power in new
section 36AA does not affect any other power the court has to
determine a matter or proceeding without an oral hearing.
New section 36AA ensures that a change introduced by
section 79C of the County Court Act 1958, inserted by the
COVID-19 Omnibus (Emergency Measures) Act 2020, will
continue after section 79C is repealed on 26 April 2021.
Part 8--Amendment of Magistrates' Court Act 1989
Clause 54 amends section 21 of the Magistrates' Court Act 1989 to
provide registrars with additional powers to allow courts to
manage the listing and re-listing of criminal matters more
efficiently. These amendments make permanent the temporary
measures introduced by the COVID-19 Omnibus (Emergency
32
Measures) Act 2020 and the COVID-19 Omnibus (Emergency
Measures) and Other Acts Amendment Act 2020 to support
the effective and efficient operation of the Magistrates' Court.
Section 21(1) of the Magistrates' Court Act 1989 confers power
on a registrar of the Magistrates' Court. Clause 54(1)(a)
substitutes section 21(1)(c) of the Magistrates' Court Act 1989
to provide a registrar with the power to abridge or extend bail of
a person who has been granted bail in relation to a criminal
proceeding. This expands the power registrars previously had to
extend a person's bail on the same day that their proceeding was
listed before the Court.
Clause 54(1)(b) of the amending Bill substitutes "2016." with
"2016;" in section 21(1)(g) of the Magistrates' Court Act 1989
to accommodate the insertion of new paragraphs in section 21(1).
Clause 54(1)(c) of the amending Bill inserts into section 21(1) of
the Magistrates' Court Act 1989 new paragraphs (h), (i) and (j)
to confer additional power on a registrar. Specifically, new
paragraph (h) empowers a registrar 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; new paragraph (i) empowers a registrar to abridge or
extend the adjournment of one of those proceedings; and new
paragraph (j) empowers a registrar to otherwise change the time
or place at which one of those proceedings is listed before the
Court.
Clause 54(2) of the amending Bill amends 21(2) of the
Magistrates Court Act 1989 by substituting "subsection (1)(c)
does not empower" with "nothing in this section empowers" in
section 21(2). The effect of this amendment is to confirm that
nothing in the section, including the newly inserted powers,
empowers a registrar to vary the amount or conditions of bail.
Clause 54(3) of the amending Bill inserts new subsections (3),
(4), and (5) in section 21 of the Magistrates' Court Act 1989.
New section 21(3)(a) and (b) provide that the power under new
section 21(1)(c) may be exercised on any day and in either the
presence or absence of the accused.
33
New section 21(4) provides that the powers under new
subsections (1)(h), (i), and (j) may be exercised on any day and
either in the presence or the absence of the parties.
New section 21(5) provides that the powers under new
subsections (1)(c), (h), (i), or (j) may be exercised on the
application of a party or on the registrar's own initiative.
Clause 55 inserts new subsection (2) at the end of section 45 of the
Magistrates' Court Act 1989. That section currently requires a
witness who has been served with a witness summons to attend at
the time and placed specified in the summons, and if the
proceeding is adjourned, attend at the time and place to which the
proceeding has been adjourned, until they are excused from
doing so by the court.
New section 45(2) provides that a witness is not required to
attend court on the date and time specified in the summons if the
criminal proceeding is adjourned prior to that date and time.
This means that if an adjournment occurs prior to the date and
time specified in the original summons, the witness will only
need to attend (including by remote means) at the later date to
which the proceeding is adjourned (without the need to issue a
further summons).
New section 45(2) ensures that a change introduced by regulation
23 of the COVID-19 Omnibus (Emergency Measures) (Criminal
Proceedings and Other Matters) Regulations 2020 will continue
after those regulations are impliedly revoked on 26 April 2021.
Clause 56 inserts new section 125A into the Magistrates' Court Act 1989
to enable the Magistrates' Court to decide matters or proceedings
without an oral hearing. Clauses 52 and 53 provide for an
equivalent power to be inserted into the Supreme Court
Act 1986 and County Court Act 1958 respectively.
New section 125A(1) provides that the Magistrates' Court may
determine any matter in a proceeding, or any proceeding, entirely
on the basis of written submissions and without the appearance of
the parties. The parties do not need to consent to this approach,
but the court may only exercise this power if satisfied it is in the
interests of justice to do so.
34
New section 125A(2) excludes criminal proceedings and matters
in criminal proceedings from this provision. A note to subsection
(2) explains that section 201 and new section 337A of the
Criminal Procedure Act 2009 provide similarly for criminal
proceedings.
New section 125A(3) provides non-exhaustive guidance to the
court in determining whether it is in the interests of justice to
decide a matter on the basis of written submissions. Given the
significance of a court determining matters without appearance
by the parties, subsection (3) requires the court to have regard to
the nature of the matter or proceeding, the right to a fair hearing,
whether parties have had the opportunity to obtain legal advice,
and whether the parties consent.
New section 125A(4) confirms that the power in new
section 125A does not affect any other power the court has to
determine a matter or proceeding without an oral hearing.
New section 125A ensures that a change introduced by regulation
25 of the COVID-19 Omnibus (Emergency Measures) (Criminal
Proceedings and Other Matters) Regulations 2020 will continue
after those regulations are impliedly revoked on 26 April 2021.
Part 9--Amendment of Victorian Civil and Administrative
Tribunal Act 1998
Clause 57 inserts new section 99(3) into the Victorian Civil and
Administrative Tribunal Act 1998 to clarify that a notice issued
by the principal registrar of the time and place for the hearing of
a proceeding, includes the hearing of a proceeding held by audio
link or audio visual link.
New section 99(3) ensures that a change introduced by regulation
25A of the COVID-19 Omnibus (Emergency Measures)
(Criminal Proceedings and Other Matters) Regulations 2020 will
continue after those regulations are impliedly revoked on
26 April 2021.
Clause 58 substitutes section 100(2) and inserts new section 100(3) into the
Victorian Civil and Administrative Tribunal Act 1998 to
support the Tribunal to conduct all or part of a proceeding
entirely on the basis of documents, without the appearance of the
parties or their representatives or witnesses.
35
Currently, if the parties to a proceeding agree, section 100(2)
enables the Tribunal to conduct all or part of a proceeding
entirely on the basis of documents without the physical
appearance by the parties, their representatives or witnesses.
Hearings of this nature are held "on the papers" without an oral
hearing.
New section 100(2) enables the Tribunal to conduct all or part of
a proceeding entirely on the basis of documents, unless a party
objects to the proceeding being conducted in this manner.
If a party objects to all or part of a proceeding being conducted
entirely on the basis of documents, new section 100(3) enables
the Tribunal to conduct the proceeding (other than a prescribed
proceeding or a prescribed class of proceeding) entirely on the
basis of documents, if the Tribunal is satisfied that the objection
is not reasonable.
New section 100(3), in conjunction with section 161 of the
Victorian Civil and Administrative Tribunal Act 1998,
enables the Governor in Council to make regulations to limit the
Tribunal's ability to conduct specified proceedings or classes of
proceedings entirely on the basis of documents if a party objects,
even if that objection is considered by the Tribunal to be
unreasonable.
The Victorian Civil and Administrative Tribunal Act 1998
includes protections to ensure that parties to proceedings held
"on the papers" are afforded procedural fairness, including that
the Tribunal is bound by the rules of natural justice (section 98),
written reasons for final orders are provided to the parties
(section 117) and if an order is made "on the papers", an absent
party's right to apply to re-open an order is preserved
(section 120).
These amendments ensure that changes introduced by regulation
26 of the COVID-19 Omnibus (Emergency Measures) (Criminal
Proceedings and Other Matters) Regulations 2020 will continue
after those regulations are impliedly revoked on 26 April 2021.
Clause 59 inserts new subsections (3A) and (3B) after section 104(3) of the
Victorian Civil and Administrative Tribunal Act 1998 to
provide an alternate method of producing summonsed material
and appearing when summoned before the Tribunal.
36
New section 104(3A) enables a person who receives a summons
to produce documents, to produce the documents by filing them
with the Tribunal by electronic communication or by post.
New section 104(3B) enables a person who receives a summons
to physically attend the Tribunal to give evidence as per section
104(1), to instead appear before the Tribunal by audio link or
audio visual link.
These amendments ensure that changes introduced by regulation
27 of the COVID-19 Omnibus (Emergency Measures) (Criminal
Proceedings and Other Matters) Regulations 2020 will continue
after those regulations are impliedly revoked on 26 April 2021.
Clause 60 inserts "(including a meeting held by remote means)" after
"the Rules Committee" in section 154 of the Victorian Civil and
Administrative Tribunal Act 1998, to clarify that the Rules
Committee may hold meetings by remote means.
Together with clauses 61 and 62, this amendment ensures that a
change introduced by section 158B of the Victorian Civil and
Administrative Tribunal Act 1998, inserted by the COVID-19
Omnibus (Emergency Measures) Act 2020, will continue after
section 158B is repealed on 26 April 2021.
Clause 61 inserts "(including a meeting held by remote means)" after
"a meeting" in section 155(2) of the Victorian Civil and
Administrative Tribunal Act 1998. This clarifies that the
quorum and meeting procedure relating to a meeting of the Rules
Committee, applies to a meeting held by remote means.
Together with clauses 60 and 62, this amendment ensures that a
change introduced by section 158B of the Victorian Civil and
Administrative Tribunal Act 1998, inserted by the COVID-19
Omnibus (Emergency Measures) Act 2020, will continue after
section 158B is repealed on 26 April 2021.
Clause 62 amends section 157 of the Victorian Civil and Administrative
Tribunal Act 1998, which concerns how the Rules Committee
makes Rules.
Subclause (1) omits ", at a meeting," in section 157(1) of the
Victorian Civil and Administrative Tribunal Act 1998.
Subclause (2) inserts new subsections (1A) and (1B) after
section 157(1) of the Victorian Civil and Administrative
Tribunal Act 1998.
37
New section 157(1A) specifies that if the Rules Committee
makes Rules at a meeting, including a meeting held by remote
means, the quorum requirements specified in section 155 apply.
New section 157(1B) enables the Rules Committee to decide the
procedures for making Rules other than at a meeting.
Together with clauses 60 and 61, these amendments ensure that a
change introduced by section 158B of the Victorian Civil and
Administrative Tribunal Act 1998, inserted by the COVID-19
Omnibus (Emergency Measures) Act 2020, will continue after
section 158B is repealed on 26 April 2021.
Part 10--Amendment of the Electronic Transactions (Victoria)
Act 2000
Clause 63 inserts new subsection 1(ba) into section 1 (Purpose) of the
Electronic Transactions (Victoria) Act 2000. New paragraph
(ba) extends the purpose of the Electronic Transactions
(Victoria) Act 2000 to account for the amendments in the Bill
that provide for witnessing by audio visual link.
Clause 64 inserts new section 5(1)(ba) into section 5 (Outline) of the
Electronic Transactions (Victoria) Act 2000. New section
5(1)(ba) amends the outline of the Electronic Transactions
(Victoria) Act 2000 to account for the amendments in the Bill
that provide for witnessing by audio visual link.
Clause 65 inserts new section 6A(1)(ab) into section 6A(1) of the
Electronic Transactions (Victoria) Act 2000. Section 6A(1)
provides for regulations to be made that exempt all or specified
parts of the Electronic Transactions (Victoria) Act 2000 from
applying to specified laws. This clause expands the scope of
section 6A(1) so that regulations can be made that exempt
witnessing procedures in other laws from the new procedure in
clause 67 of the Bill (witnessing by audio visual link).
Clause 66 amends and inserts new sections into section 9 of the Electronic
Transactions (Victoria) Act 2000, which allows for a
requirement for a signature to be met by "electronic
communication" (electronic communication is defined in
section 3).
38
Clause 66(1) amends section 9(1)(c) of the Electronic
Transactions (Victoria) Act 2000 to ensure that the consent
required to validly sign using an electronic communication
method is not withheld without sufficient cause. The purpose of
this amendment is to enable electronic signatures to be used so
long as it is appropriate in the circumstances.
Clause 66(2) inserts new section 9(1A), which clarifies that an
electronic signature can be validly used under section 9(1).
Electronic signatures are not defined to preserve the technology
neutrality of the Electronic Transactions (Victoria) Act 2000.
An example of an electronic signature is provided as a guide.
Clause 66(2) also inserts new section 9(1B) which provides that
not all electronic signatures are required to appear on the one
copy of a document. The purpose of this provision is to ensure
that the common commercial practice of signing documents in
counterpart is not interfered with should electronic signatures be
used.
Clause 67 inserts new sections 12 to 12B in the Electronic Transactions
(Victoria) Act 2000.
New section 12 makes provision for witnessing by audio visual
link.
New section 12(1) allows for a requirement under a Victorian
law for the presence of a witness to be met if the witness is
present by audio visual link. Examples of witnessing by audio
visual link are provided as a guide.
New section 12(2) lists the requirements that are to be met to
validly witness by audio visual link. The requirements include
that--
• the witness observes a signatory sign,
• the witness is reasonably satisfied that the document
they sign is the same,
• all requirements for witnessing occur on the same day,
• any other requirements (if prescribed by any law) are
met, and
• the witness includes a statement that these requirements
have been met.
39
New section 12(3) clarifies that a witness need not be physically
located within Victoria when witnessing by audio visual link,
unless they are otherwise required to be by a law of Victoria.
New section 12(4) clarifies that new section 12(1) does not
otherwise interfere with other laws of Victoria including common
law and equity, such as the law of misrepresentation,
unconscionability, undue influence or duress. Parties and
witnesses are still bound by these doctrines and are still required
to meet the common law or equitable duties that may arise in
witnessing a transaction.
New section 12(5) clarifies that new section 12(1) does not
otherwise affect a law of Victoria that makes a requirement in
regard to a witnessing process or procedure, including--
• any witnessing requirement that is not able to be met by
witnessing by audio visual link; or
• where a law requires that a particular method for
witnessing by audio visual link is to be followed.
The intention of this section is to ensure that witnessing by audio
visual link under the Electronic Transactions (Victoria)
Act 2000 is available only when it is compatible with the
witnessing requirements under the relevant principal Act.
For example--
• A requirement that a witness is to be physically present
is not compatible with new section 12(1) and therefore
takes precedence.
• Parts 11 to 13 of this Bill insert provisions for
witnessing documents by audio visual link under other
principal acts (e.g. the Oaths and Affirmations Act
2018 for affidavits and statutory declarations, the Wills
Act 1997 for testamentary instruments, and the Powers
of Attorney Act 2014 for powers of attorney
documents). The procedures for witnessing by audio
visual link in these principal Acts take precedence over
the general witnessing provision in the Electronic
Transactions (Victoria) Act 2000.
New section 12A inserts provisions relating to deeds in the
Electronic Transactions (Victoria) Act 2000.
40
New section 12A(1) provides for deeds to be electronically
created and to be "signed, sealed and delivered" by electronic
communication. This provision overrides the common law
requirement that a deed be on "paper, parchment or vellum".
New section 12A(2) allows for deeds to be treated as
"transactions" under the Electronic Transactions (Victoria)
Act 2000. This has the effect of clarifying the Electronic
Transactions (Victoria) Act 2000 is applicable to deeds.
New section 12A(3) clarifies that new section 12A(1) does not
otherwise interfere with other laws of Victoria that might apply
to deeds, whether they be contained in other Acts or law. This
includes common law and equitable doctrines, such as the law of
misrepresentation, unconscionability, undue influence or duress.
The effect of this section is that new section 12A sits alongside
other laws regarding valid deeds in Victoria, but does not
interfere with those laws beyond the scope of section 12A(1).
New section 12B inserts provisions for mortgages in the
Electronic Transactions (Victoria) Act 2000.
New section 12B(1) clarifies that mortgages are able to be in
electronic form. As there is already provision for mortgages to
be electronic in Victoria under the Electronic Conveyancing
National Law (Victoria), this new section will enable private
mortgages to be in electronic form.
New section 12B(2) allows for mortgages to be treated as
"transactions" under the Electronic Transactions (Victoria)
Act 2000. This has the effect of clarifying the Electronic
Transactions (Victoria) Act 2000 is applicable to mortgages.
New section 12B(3) clarifies that the new section 12B(1) does
not otherwise interfere with other laws of Victoria that might
apply to mortgages, whether they be contained in other Acts or
law. This includes common law and equitable doctrines, such as
the law of misrepresentation, unconscionability, undue influence
or duress. The effect of this section is that new section 12B sits
alongside other laws regarding mortgages in Victoria, but does
not interfere with those laws beyond the scope of section 12B(1).
New section 12B(4) is an avoidance of doubt provision to clarify
that new section 12B(1) does not affect the operation of any other
law of Victoria that makes specific provision for mortgages in
41
electronic form. An example of the Electronic Conveyancing
National Law (Victoria) is provided.
Clause 68 inserts new section 17 into the Electronic Transactions
(Victoria) Act 2000 as a transitional provision to save
transactions, deeds or mortgages that were signed or witnessed
under the COVID-19 Omnibus (Emergency Measures)
(Electronic Signing and Witnessing) Regulations 2020 to ensure
those transactions, deeds or mortgages continue to be valid.
Part 11--Amendment of the Oaths and Affirmations Act 2018
Clause 69 inserts new section 9(2) in the Oaths and Affirmations
Act 2018 to expand the ways in which an oath or affirmation
may be said aloud. Section 9 presently requires a person taking
an oath or affirmation to say the words aloud in the physical
presence of the administering officer only.
New section 9(2) expands this to enable a person who takes an
oath or affirmation to say the words of the oath or affirmation
aloud by audio visual link or audio link.
Clause 70 inserts new section 18A in the Oaths and Affirmations
Act 2018 to permit electronic signing or initialling of an
affidavit, a jurat, a certificate or other document attached to an
affidavit.
Part 5A of the Oaths and Affirmations Act 2018 temporarily
enabled the electronic signing or initialling of an affidavit, a
jurat, a certificate or other document attached to an affidavit.
Part 5A was inserted in the Oaths and Affirmations Act 2018
through the COVID-19 Omnibus (Emergency Measures)
Act 2020 enabling electronic signing or initialling of an affidavit,
a jurat, a certificate or other document attached to an affidavit.
New section 18A makes permanent provision for electronic
signing or initialling of these documents.
New section 18A does not alter the requirements prescribed at
section 25 of the Oaths and Affirmations Act 2018 other than
allowing for these requirements to be met through electronic
signing and remote witnessing.
Clause 71 amends section 25(1) and (2) of the Oaths and Affirmations
Act 2018, which prescribe the actions of a deponent that must be
done in the presence of an authorised affidavit taker. The
42
amendment expands the meaning of "presence" to include both
physical presence and presence by audio visual link.
Amended section 25(1) enables a deponent to complete the
following actions whether they are in the presence of the
authorised affidavit taker physically or by audio visual link--
• sign or initial any alteration to the affidavit;
• sign each page of the affidavit;
• sign the affidavit; and
• sign any certificates that identify documents as
exhibited to the affidavit.
Amended section 25(2) enables a deponent to swear or affirm the
affidavit by saying the prescribed oath or affirmation in the
presence of the authorised affidavit taker either physically or by
audio visual link.
Clause 72 inserts new section 26(5) in the Oaths and Affirmations
Act 2018. New section 26(5) enables an authorised affidavit
taker to use a scanned or electronic copy of the affidavit, in
limited circumstances, to complete the jurat requirements under
section 27 of the Oaths and Affirmations Act 2018.
These limited circumstances are only when the affidavit was
signed and sworn or affirmed by audio visual link under
section 25 of the Oaths and Affirmations Act 2018.
Clause 73 inserts new section 27(1A) in the Oaths and Affirmations Act
2018.
New section 27(1A) sets out additional jurat requirements for an
authorised affidavit taker where the affidavit has been signed and
sworn or affirmed by audio visual link, and where the authorised
affidavit taker has used a scanned or electronic copy of the
affidavit in compliance with section 26 of the Oaths and
Affirmations Act 2018.
New section 27(1A) requires the authorised affidavit taker to
state that--
• the affidavit was signed and sworn or affirmed by the
deponent by audio visual link; and
43
• the authorised affidavit taker has used a scanned or
electronic copy of the affidavit and not the original in
completing the jurat requirements under section 27(1) of
the Oaths and Affirmations Act 2018.
Clause 74 inserts new sections 28A and 28B in the Oaths and
Affirmations Act 2018.
New section 28A enables a court or tribunal to admit a purported
affidavit into evidence in limited circumstances, where the
affidavit does not comply with sections 25, 26 or 27 of the Oaths
and Affirmations Act 2018. Sections 25, 26 and 27 relate to the
requirements of a deponent, an authorised affidavit taker and the
jurat.
The purported affidavit must state the reason for which the
requirements in sections 25, 26 or 27 of the Oaths and
Affirmations Act 2018 were unable to be met. The court or
tribunal, in considering that reason, may admit the purported
affidavit into evidence if it is satisfied it is in the interests of
justice to do so.
New section 28B clarifies that the use of audio visual procedures
under Part 3 of the Oaths and Affirmations Act 2018 is subject
to any existing, contrary intention imposed on deponents and
affidavit takers by other duties or obligations under any Act (state
or Commonwealth) or at common law.
Additionally, new section 28B clarifies that any duties and
obligations that exist in Part 3 of the Oaths and Affirmations
Act 2018 in relation to a person being satisfied of certain matters
before writing or doing something, continue to exist and are not
limited by any other sections under Part 3 of the Oaths and
Affirmations Act 2018.
Clause 75 inserts new section 29A in the Oaths and Affirmations
Act 2018 enabling the electronic signing or initialling of a
statutory declaration, an exhibit, a certificate, or other document
attached to a statutory declaration.
Part 4 of the Oaths and Affirmations Act 2018 was temporarily
amended by the COVID-19 Regulations, enabling electronic
signing or initialling of a statutory declaration, an exhibit, a
certificate or other document attached to a statutory declaration.
44
New section 29A makes permanent provision for electronic
signing or initialling of these documents.
Clause 76 amends section 30(2), (3) and (4) of the Oaths and Affirmations
Act 2018, which prescribes the actions a person making a
statutory declaration and the statutory declaration witness must
perform in the presence of each other. The amendment expands
the meaning of "presence" to include both physical presence and
presence by audio visual link in section 30(2), (3) and (4) of the
Oaths and Affirmations Act 2018.
Under amended section 30(2) and (4), the person making the
statutory declaration must declare the statutory declaration in the
presence of the statutory declaration witness, through either
physical presence or presence by audio visual link.
Under amended section 30(3), the person making the statutory
declaration and the statutory declaration witness can complete the
following actions in the presence of each other (physically or by
audio visual link)--
• sign or initial any alteration to the statutory declaration;
• sign or initial each page of the statutory declaration;
• sign any certificates attached to documents that are an
exhibit to the statutory declaration;
• sign and date the statutory declaration; and
• legibly write, type or stamp name and address on the
statutory declaration.
Clause 77 inserts new sections 30A and 30B in the Oaths and
Affirmations Act 2018.
New section 30A of the Oaths and Affirmations Act 2018 sets
out additional requirements where a statutory declaration is made
in electronic form or witnessed by audio visual link.
New section 30A(1) permits a scanned or electronic copy of the
statutory declaration to be used.
New section 30A(2) provides that when a statutory declaration is
made in electronic form or witnessed by audio visual link, it must
include a statement that--
• explains the manner in which the statutory declaration
was made or witnessed; and
45
• indicates whether a scanned or electronic copy of the
statutory declaration was used.
New section 30A does not limit requirements of the statutory
declaration maker or witness under Part 4 of the Oaths and
Affirmations Act 2018.
New section 30A(3) permits a statement made under section
30A(2) to be pre-filled.
New section 30B of the Oaths and Affirmations Act 2018
clarifies that the use of audio visual procedures under Part 4 of
the Oaths and Affirmations Act 2018 is subject to any existing,
contrary intentions imposed on persons making declarations or
witnesses by other duties or obligations under any Act (state or
Commonwealth) or at common law.
Additionally, new section 30B clarifies that any duties and
obligations that exist in Part 4 of the Oaths and Affirmations
Act 2018 in relation to a person being satisfied of certain matters
before writing or doing something, continue to exist and are not
limited by any other sections under Part 4 of the Oaths and
Affirmations Act 2018.
Clause 78 inserts new section 60 in the Oaths and Affirmations Act 2018.
This new section acts as a transitional provision to save statutory
declarations that were signed or witnessed under the COVID-19
Omnibus (Emergency Measures) (Electronic Signing and
Witnessing) Regulations 2020 to ensure those statutory
declarations continue to be valid.
Part 12--Amendment of the Wills Act 1997
Clause 79 provides new definitions to be included in section 3(1) of the
Wills Act 1997.
Remote execution procedure is defined to mean the procedure
prescribed in the new section 8A, which enables wills to be
validly executed by electronic signature and witnessed by audio
visual link.
Special witness is defined to mean an Australian legal
practitioner, justice of the peace or a member of a class of person
prescribed under regulation. This definition is important to the
operation of this Part of the Bill, as a special witness will be
46
required to be one of the witnesses present when the remote
execution procedure is used under the new section 8A.
Document is amended to provide clarity that a document may be
in electronic form for the purpose of the remote execution
procedure.
Clause 80 substitutes part of the text of section 7(2) and inserts new
subsections into section 7 of the Wills Act 1997.
Clause 80(1) substitutes part of the text of section 7(2) of the
Wills Act 1997 to make it clear that new section 8A(7) requires a
witness using the remote execution procedure to include a
statement on the will, despite section 7(2).
Clause 80(2) inserts subsections (5), (6) and (7) into section 7 of
the Wills Act 1997. These amendments enable a will to be
validly executed through the remote execution procedure and
permits the use of an electronic signature and audio visual link
for this purpose. The Wills Act 1997 does not currently
recognise electronic signatures and witnessing via audio visual
link as valid forms of execution. The purpose of the amendment
is to modernise the Wills Act 1997 and expand the procedures
available for executing a will.
Clause 81 inserts new sections 8A to 8D into the Wills Act 1997.
New section 8A sets out the process under which a will (or other
testamentary document) may be validly executed using the
remote execution procedure.
New section 8A(1) provides that a will, codicil or other
testamentary instrument executed in accordance with the remote
execution procedure is valid under the Wills Act 1997.
New section 8A(2) provides that one of the witnesses to the will
execution is required to be a special witness. If more than one
witness qualifies to be a special witness, only one is to act as the
special witness (and complete the requirements in new section
8A(7)(d)), with any other witnesses acting as regular witnesses.
New section 8A(3) requires the remote execution procedure to be
carried out on the same day and within Victoria.
47
New section 8A(4) provides that the testator must either--
• sign the will themselves, with all witnesses clearly
seeing the signature being made via audio visual link or
a combination of audio visual link and physical
presence; or
• direct a substitute signatory to sign the will on the
testator's behalf, ensuring that all witnesses hear and see
the direction being given and all witnesses and the
testator see the signature being made by the substitute
signatory via audio visual link or a combination of both
audio visual link and physical presence.
New section 8A(5) requires that any witness who is physically
present with the testator must be the next signatory, and must
sign in accordance with the existing requirements for a witness
under the Wills Act 1997. This is subject to new section 8A(6)
which requires the special witness to be the final signatory of the
will, irrespective of whether the special witness is physically
present or present by audio visual link. This means, for example,
that if the special witness is physically present with the testator,
any witnesses who are present via audio visual link must sign the
will before the special witness.
New section 8A(7) requires all witnesses in attendance via audio
visual link to--
• be reasonably satisfied that the document they have
received by electronic communication and which they
sign is the same document that the testator (or substitute
signatory) signed; and
• ensure that there is a statement included on the will to
make it clear that the witness witnessed the will in
accordance with the remote execution procedure; and
• sign the will as a witness, with the testator clearly
seeing the signature being made by the witness via
audio visual link.
New section 8A(7) also provides that if the witness is the special
witness (who will be the final witness to the will), in addition to
complying with the above requirements, they must also check the
will for compliance with the remote execution procedure and
ensure that there is a statement on the will stating--
48
• that the will has been signed and witnessed in
accordance with the remote execution procedure;
• what kind of special witness they are; and
• whether any audio visual recording of the will's signing
or witnessing was made.
The purpose of the additional responsibilities of the special
witness is to guard against the inappropriate use of the remote
execution procedure to protect vulnerable Victorians from abuse,
and to ensure that the remote witnessing procedure has been
accurately followed.
New section 8B clarifies which document constitutes a valid will
under the remote execution procedure.
New section 8B(1) clarifies that if a will is executed under 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.
New section 8B(2) clarifies that the place of execution of a will is
the place where the testator is located at the time the will is
executed under the remote execution procedure.
New section 8B(3) provides that any document purporting to be a
will that has not been checked and signed by the special witness
will not be recognised as a valid will unless--
• the requirements for execution are dispensed with by the
Supreme Court under the circumstances prescribed by
section 9 of the Wills Act 1997; or
• a will is created or rectified under authorisation of the
Supreme Court in accordance with Part 3 of the Wills
Act 1997.
New section 8B(4) clarifies that counterpart documents do not
constitute a valid will unless the circumstances prescribed in
section 9 or Part 3 of the Wills Act 1997 apply.
New section 8C provides that an audio visual recording of the
execution of a will by the remote execution procedure may occur
if consent is obtained by all parties to the procedure. The making
of, or failure to make, an audio visual recording of the will's
execution does not affect the validity of the will.
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New section 8D clarifies that the remote execution procedure
applies in addition to existing duties and obligations that apply to
testators or witnesses under any Act or at common law. The
purpose of this section is to ensure that any professional duties or
protections, such as assessment of testamentary capacity and the
doctrine of undue influence, remain in place to limit the risk of
abuse or fraud.
Clause 82 inserts new section 10(2) into the Wills Act 1997. The effect of
this amendment is to expand the meaning of "signed" to include
an electronic signature where the remote execution procedure is
used. This means that a person who is able to see a testator sign
a will via audio visual link under the remote execution procedure
is not prevented from acting as a witness to a will.
Clause 83 inserts new section 12(3) into the Wills Act 1997 to provide that
a will may be validly revoked by some writing, declaring an
intention to revoke it, that is executed by the remote execution
procedure.
Clause 84 inserts new section 15(4) and (5) into the Wills Act 1997 to
provide that a will may be validly altered under the remote
execution procedure and can be signed electronically where the
remote execution procedure is used.
Clause 85 inserts section 16(5) into the Wills Act 1997 to provide that a
will or codicil may be validly revived by execution or re-
execution under the remote execution procedure.
Clause 86 inserts section 19E(2) into the Wills Act 1997 to clarify that the
remote execution procedure under the new sections 8A to 8D
(including electronic signatures) cannot be used to execute an
international will under Division 7 of Part 2.
Clause 87 inserts new section 50A which enables the Governor in Council
to make regulations with respect to requirements for remote
execution procedures and witnessing by audio visual link
including requirements for documents, witnesses (including
special witnesses), testators, and forms or processes for electronic
signatures or formats.
New section 50A(1) also expressly allows the Governor in
Council to make regulations with respect to fees and penalties.
50
New section 50A(2) states that the regulations can be of general
or limited application, differ in time, provide certain powers or
functions to a specified person, and make exemptions.
Clause 88 inserts new section 57 in the Wills Act 1997 to provide that upon
the commencement of Part 12 of the Bill, any will or
testamentary document that is executed under the modifications
made by Part 5 of the COVID-19 Omnibus (Emergency
Measures) (Electronic Signing and Witnessing) Regulations 2020
to the Wills Act 1997, will continue to be valid despite
revocation of those regulations.
Part 13--Amendment of the Powers of Attorney Act 2014
Clause 89 inserts new definitions into section 3(1) of the Powers of
Attorney Act 2014.
Remote witnessing procedure is defined to mean the procedure
prescribed in the new section 5A, which enables powers of
attorney and other documents to be validly executed by electronic
signature and witnessed by audio visual link.
Special witness is defined to mean an Australian legal
practitioner, justice of the peace or a member of a class of person
prescribed under regulation. This definition is important to the
operation of this Part of the Bill, as a special witness will be
required to be one of the witnesses present when the remote
witnessing procedure is used under the new section 5A.
Clause 90 inserts new sections 5A to 5D into the Powers of Attorney
Act 2014.
New section 5A sets out the process under which a power of
attorney (or other document) may be validly executed using the
remote witnessing procedure.
New section 5A(1) provides that a power of attorney or other
document that is required to be executed with a witness can be
executed in accordance with the remote witnessing procedure.
New section 5A(2) provides that one of the witnesses to the
execution of a document listed in section 5A(2) is required to be
a special witness. This means that if the document being
executed under the remote witnessing procedure is creating or
revoking an enduring power of attorney or a supportive attorney
appointment one of the witnesses must be a special witness.
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Other documents under the Powers of Attorney Act 2014 that
require execution by a witness may be executed under the remote
witnessing procedure without the special witness requirement
(for example, execution of a non-enduring power of attorney
under section 11 of the Powers of Attorney Act 2014). If more
than one witness qualifies to be a special witness, only one is to
act as the special witness (and complete the requirements in new
section 5A(7)(d)), with any other witnesses acting as regular
witnesses. The special witness requirement is intended to apply
in addition to the other witnessing requirements under the
Powers of Attorney Act 2014 (so, for example, it does not
displace the eligibility requirements for a witness of an enduring
power of attorney under section 35 of the Powers of Attorney
Act 2014).
New section 5A(3) requires the remote witnessing procedure to
be carried out on the same day and within Victoria.
New section 5A(4) provides that the principal must either--
• sign the power of attorney or document themselves with
all witnesses clearly seeing the signature being made via
audio visual link or a combination of audio visual link
and physical presence; or
• (if permitted by the relevant section) direct a substitute
signatory to sign the power of attorney or other
document on the principal's behalf, ensuring that all
witnesses hear and see the direction being given and all
witnesses and the principal see the signature being made
by the substitute signatory via audio visual link or a
combination of both audio visual link and physical
presence.
New section 5A(5) requires that any witness who is physically
present with the principal must be the next signatory, and must
sign in accordance with the existing requirements for a witness
under the Powers of Attorney Act 2014. This is subject to new
section 5A(6) which requires the special witness (where the
document is required to have a special witness under new section
5A(2)) to be the final signatory of the power of attorney or other
document, irrespective of whether the special witnesses is
physically present or present by audio visual link. This means,
for example, that if the special witness is physically present with
the principal, any witnesses who are present via audio visual link
52
must sign the power of attorney or other document before the
special witness.
New section 5A(7) requires all witnesses in attendance via audio
visual link to (in addition to any other requirements under the
Powers of Attorney Act 2014)--
• be reasonably satisfied that the document they have
received by electronic communication and which they
sign is the same document that the principal (or
substitute signatory) signed; and
• certify on the power of attorney or other document a
statement that the witness witnessed the power of
attorney or other document in accordance with the
remote witnessing procedure; and
• sign and date the power of attorney or other document
as a witness in the presence by audio visual link of the
principal and other witnesses.
New section 5A(7) also provides that if the witness is the special
witness (who, if required, will be the final witness to the power
of attorney or other document), in addition to complying with the
above requirements, they must also 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--
• that the document has been signed and witnessed in
accordance with the remote witnessing procedure;
• what kind of special witness they are; and
• whether any audio visual recording of the document's
signing or witnessing was made.
The purpose of the additional responsibilities of the special
witness is to guard against the inappropriate use of the remote
witnessing procedure, to protect vulnerable Victorians from
abuse, and to ensure that the remote witnessing procedure has
been accurately followed.
New section 5A(8) clarifies that the meaning of "principal" under
section 5A 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 of the
Powers of Attorney Act 2014. These sections involve the
53
signing of a document under the Powers of Attorney Act 2014
(with witnessing requirements) by someone other than a
principal.
New section 5B clarifies which document constitutes a valid
power of attorney or other document under the remote witnessing
procedure.
New section 5B(1) provides that if a document executed under
the remote witnessing procedure requires a special witness under
section 5A(2), then the valid document is the document which
has been certified and signed by the special witness in
accordance with that procedure.
New section 5B(2) provides that if a special witness is not
required under the remote witnessing procedure, then the valid
document is the document which contains the signature of the
principal (or substitute signatory) and all witnesses.
New section 5B(3) clarifies that a document's place of execution
is the place where the principal is located at the time the
document is executed under the remote witnessing procedure.
New section 5B(4) provides that counterpart signed documents
do not constitute a valid power of attorney or other document
under the Powers of Attorney Act 2014.
New section 5C provides that an audio visual recording of the
execution of a power of attorney or other document by the remote
witnessing procedure may occur if consent is obtained by all
parties to the procedure. The making of, or failure to make, an
audio visual recording of the power of attorney or other
document does not affect the validity of the document.
New section 5D clarifies that the procedures under section 5A
apply in addition to existing duties of witnesses under common
law or statute. The purpose of this section is to ensure that any
specific requirements under the Powers of Attorney Act 2014
(such as, for example, the certification requirements under
sections 36, 49 and 98), and any common law duties or
protections still apply to the remote witnessing procedure to limit
the risk of abuse or fraud.
Clause 91 inserts new subsections (3) to (5) into section 11 of the Powers
of Attorney Act 2014. The new subsections permit non-
enduring powers of attorney to be executed using the remote
witnessing procedure and electronic signatures (where the remote
54
witnessing procedure is used) and clarify that "in the presence of"
includes via audio visual link in accordance with that procedure.
Clause 92 inserts new subsections (2) to (4) into section 33 of the Powers
of Attorney Act 2014. The new subsections permit enduring
powers of attorney to be executed using the remote witnessing
procedure and electronic signatures (where the remote witnessing
procedure is used) and clarify that "in the presence of" includes
via audio visual link in accordance with that procedure.
Clause 93 inserts new subsections (4) and (5) into section 36 of the Powers
of Attorney Act 2014. The new subsections permit witnesses to
the execution of an enduring power of attorney to make the
prescribed certifications using electronic signatures (where the
remote witnessing procedure is used) and clarify that "in the
presence of" includes via audio visual link in accordance with
that procedure.
Clause 94 inserts new subsections (2) and (3) into section 37 of the Powers
of Attorney Act 2014. The new subsections permit an attorney
to sign a statement of acceptance for an enduring power of
attorney using the remote witnessing procedure (where a witness
is required) and electronic signatures (where the remote
witnessing procedure is used).
Clause 95 inserts new subsections (2) and (3) into section 38 of the Powers
of Attorney Act 2014. The new subsections permit an
alternative attorney to sign a statement of acceptance for an
enduring power of attorney using the remote witnessing
procedure (where a witness is required) and electronic signatures
(where the remote witnessing procedure is used).
Clause 96 inserts new subsections (2) to (4) into section 46 of the Powers
of Attorney Act 2014. The new subsections permit an
instrument of revocation of an enduring power of attorney to be
executed using the remote witnessing procedure and electronic
signatures (where the remote witnessing procedure is used) and
clarifies that "in the presence of" includes via audio visual link in
accordance with that procedure.
Clause 97 inserts new subsections (4) and (5) into section 49 of the Powers
of Attorney Act 2014. The new subsections permit witnesses to
the execution of an instrument of revocation of an enduring
power of attorney to make the prescribed certifications using
55
electronic signatures (where the remote witnessing procedure is
used) and clarify that "in the presence of" includes via audio
visual link in accordance with that procedure.
Clause 98 inserts new subsections (2) to (4) into section 95 of the Powers
of Attorney Act 2014. The new subsections permit supportive
attorney appointments to be executed using the remote
witnessing procedure and electronic signatures (where the remote
witnessing procedure is used) and clarify that "in the presence of"
includes via audio visual link in accordance with that procedure.
Clause 99 inserts new subsections (4) and (5) into section 98 of the Powers
of Attorney Act 2014. The new subsections permit witnesses to
the signing of an appointment form for a supportive attorney
appointment to make the prescribed certifications using
electronic signatures (where the remote witnessing procedure is
used) and clarify that "in the presence of" includes via audio
visual link in accordance with that procedure.
Clause 100 inserts new subsections (2) and (3) into section 99 of the Powers
of Attorney Act 2014. The new subsections permit a statement
of acceptance for a supportive attorney appointment to be signed
and witnessed using the remote witnessing procedure and
electronic signatures (where the remote witnessing procedure is
used).
Clause 101 inserts new subsection (2) and (3) into section 100 of the Powers
of Attorney Act 2014. The new subsections permit a statement
of acceptance for an alternative supportive attorney appointment
to be signed and witnessed using the remote witnessing
procedure and electronic signatures (where the remote witnessing
procedure is used).
Clause 102 inserts subsections (2) to (4) into section 105 of the Powers of
Attorney Act 2014. The new subsections permit an instrument
of revocation of a supportive attorney appointment to be executed
using the remote witnessing procedure and electronic signatures
(where the remote witnessing procedure is used) and clarifies that
"in the presence of" includes via audio visual link in accordance
with that procedure.
Clause 103 substitutes section 139 of the Powers of Attorney Act 2014
which provides a power for regulations to be made under the
Powers of Attorney Act 2014.
56
New section 139(1) continues to allow the Governor in Council
to make regulations with respect to forms and any other matter or
thing authorised under the Powers of Attorney Act 2014. It
further allows the Governor in Council to make regulations with
respect to requirements for remote witnessing procedures and
witnessing by audio visual link including requirements for
witnesses (including special witnesses), documents, principals
and different forms or processes for electronic signatures and
electronic documents.
The section also expressly allows the Governor in Council to
make regulations with respect to fees and penalties.
New section 139(2) clarifies that regulations can be of general or
limited application, differ in time, provide certain powers or
functions to a specified person, and make exemptions.
Clause 104 inserts new section 156 into the Powers of Attorney Act 2014 to
provide that upon the commencement of Part 13 of the Bill, any
power of attorney or other document that is executed under the
modifications made by Part 4 of the COVID-19 Omnibus
(Emergency Measures) (Electronic Signing and Witnessing)
Regulations 2020 to the Powers of Attorney Act 2014, will
continue to be valid despite revocation of those regulations.
Part 14--Amendment of the Court Security Act 1980
Clause 105 amends section 7A of the Court Security Act 1980 to extend the
operation of the temporary measures regarding the response to
the COVID-19 pandemic until 26 October 2022.
Clause 106 is a statute law revision amendment which substitutes the words
"authorized person" with "authorized officer" in section 3(9) of
the Court Security Act 1980.
The amendment clarifies that an authorized officer may refuse a
person entry to the court premises or remove a person from the
court premises if the authorized officer believes on reasonable
grounds that the person is likely to affect adversely the security,
good order or management of the court premises.
57
Part 15--Amendment of the Sentencing Act 1991
Part 15 of the Bill amends the Sentencing Act 1991 to make permanent
certain temporary measures which authorise the Magistrates' Court to attach
electronic monitoring requirements to a monitoring condition to a community
corrections order.
Clause 107 amends section 48LA(1) of the Sentencing Act 1991 to enable
the Magistrates' Court, when sentencing a person for an offence,
to attach to a monitored condition to a community corrections
order a requirement that the person is to be electronically
monitored. Previously, this power could be exercised by a court
other than the Magistrates' Court. The amendment broadens the
scope of section 48LA(1) to authorise the Magistrates' Court to
exercise this power.
Clause 108 inserts new section 48M(2)(fa) of the Sentencing Act 1991.
Section 48M(2) specifies the ways in which a court which made a
community correction order may deal with that order when an
application is made to vary the order. New paragraph (fa)
specifies that, in relation to a monitoring condition attached to a
community correction order, a court may attach to that condition
a requirement that the offender is to be electronically monitored.
This power may be exercised by any court, including the
Magistrates' Court.
Clause 109 inserts new section 48M(5) of the Sentencing Act 1991. This
section confirms that when dealing with an application to vary a
community correction order, the Magistrates' Court may impose
an electronic monitoring requirement to a monitored condition of
the order, irrespective of when the original order was made.
Part 16--Amendment of the Open Courts Act 2013
Clause 110 inserts new sections 8A and 8B into the Open Courts Act 2013.
New section 8A is a clarifying provision which provides that a
court or tribunal does not contravene any rule of law relating to
open justice where, instead of delivering a judgment in open
court, it--
• gives the parties notice that the judgment will be handed
down;
• sends the judgment to the parties by electronic
communications; and
58
• makes the judgment available to the public generally or
a member of the public upon request.
This amendment makes permanent an amendment made by the
COVID-19 Omnibus (Emergency Measures) Act 2020 to
clarify that these actions do not contravene any rule of law
relating to open justice.
New section 8A(2) provides for the continuing protection of
information in connection with a proceeding that is already
prohibited or restricted from publication under the Open Courts
Act 2013 or any other Act. Subsection (3) defines judgment for
the purposes of the section.
New section 8B is a clarifying provision which provides that a
court or tribunal does not contravene any rule of law relating to
open justice where, instead of holding a proceeding or hearing in
open court, it--
• arranges or provides a contemporaneous audio or audio
visual public broadcast of the proceeding or hearing; or
• arranges or provides, within a reasonable time after the
conclusion of the proceeding or hearing, an audio or
audio visual recording (or transcript in the case of the
Supreme Court, County Court or Coroners Court) of the
proceeding or hearing, to the public generally or to a
member of the public on request.
New section 8B(2) provides for the continuing protection of
information in connection with a proceeding that is already
prohibited or restricted from publication under the Open Courts
Act 2013 or any other Act.
Subsection (3) provides that section 8B is repealed 18 months
after its commencement. This amendment replicates the
operation of certain temporary measures in the COVID-19
Omnibus (Emergency Measures) Act 2020 to respond to the
COVID-19 pandemic.
Part 17--Amendment of the Juries Act 2000
Part 17 amends the Juries Act 2000 to ensure that several changes
introduced by Part 6 of the COVID-19 Omnibus (Emergency Measures)
(Criminal Proceedings and Other Matters) Regulations 2020 will continue
after those regulations are impliedly revoked on 26 April 2021.
59
Clause 111 amends section 27 of the Juries Act 2000, which relates to the
Juries Commissioner issuing a summons to attend for jury
service.
Subclause (1) amends section 27(2)(b) to insert the words
"(whether in person or by audio link, audio visual link or other
specified electronic means as set out in the summons)". This will
allow a summons to specify that the person attend for jury service
by electronic means.
Subclause (2) inserts new subsection (2A) to provide that
"service" of a summons includes being served by means of
electronic communication if the person consents to receiving the
summons by electronic communication. This will allow for a
summons to be served electronically if the recipient consents.
Clause 112 inserts new subsection (2A) into section 29 of the Juries
Act 2000.
Section 29(1) currently requires a person who has received a
summons for jury service to attend the place referred to in the
summons, unless their service is deferred or cancelled.
New section (2A) will provide that a person may attend for jury
service by audio link, audio visual link or other specified
electronic means, as set out in the summons or in accordance
with a direction given by the Juries Commissioner or a pool
supervisor.
By allowing a person to attend for jury service remotely, this
provision will give the Juries Commissioner greater control over
the number of people who are required to attend on site for jury
service and facilitate social distancing when required.
Clause 113 inserts new subsection (2A) into section 30 of the Juries
Act 2000, which deals with the selection of jury panels.
New section (2A) provides, for the avoidance of doubt, that a
jury pool is not required to be physically present. This will allow
for greater flexibility in the selection of jury panels and promote
social distancing when required.
Clause 114 inserts new section 37A into the Juries Act 2000, which relates
to directions by the trial judge regarding stand aside and
peremptory challenges in criminal trials.
60
Currently, the prosecution must require a potential juror to stand
aside as the potential juror comes to take their seat and before
they take it (section 38). Similarly, an accused must make a
peremptory challenge as the potential juror comes to take their
seat and before their take it (section 39). In accordance with
these requirements, the usual practice in Victoria is for potential
jurors to be seated in the body of the court and then walk to the
jury box to a take a seat after they are called.
New section 37A(1) provides that the trial judge may direct that a
requirement to stand aside or a peremptory challenge is to be
conducted, as the judge considers appropriate--
• in the court as the potential juror comes to take the
juror's seat and before they take it; or
• in accordance with a direction to move given to the
potential juror.
This gives the trial judge discretion as to whether a requirement
to stand aside or a peremptory challenge should be made
following the traditional in court process or the new "direction to
move" process (which is introduced in new section 39A by
clause 116). The judge should choose which process to adopt for
each empanelment--it is not intended for both options to be
utilised in the same trial.
The "direction to move" process promotes social distancing by
limiting the physical movement of jurors during the empanelment
process.
New section 37A(2) provides that 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.
This means that a potential juror cannot be required to move or
walk to jury box for the purpose of the stand aside process, and
then be required to move or walk to the jury box again for the
purpose of the peremptory challenge process.
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Clause 115 amends section 38 of the Juries Act 2000, which relates to the
Crown's right to stand aside jurors in a criminal trial.
Subclause (1) substitutes section 38(2) of the Juries Act 2000 to
provide that a requirement to stand aside must be made either--
• as the potential juror comes to take the juror's seat and
before they take it; or
• if a direction to move is given in accordance with
section 39A, as the potential juror moves in accordance
with that direction to move.
This governs the timing of when a requirement to stand aside
must be made, depending on whether the judge has chosen the
traditional "in court" process or the new "direction to move"
process.
Subclause (2) substitutes section 38(3)(b) of the Juries Act 2000,
which currently provides that a potential juror who has been
required to stand aside must be returned to the jury pool and may
be allocated to a panel in another trial.
In contrast, new section 38(3)(b) provides that a juror who has
been required to stand aside must return to the jury pool "unless
the court otherwise orders". This mirrors the language of section
40(3) which deals with challenges for cause.
This will give the trial judge discretion as to whether a potential
juror should be discharged and sent home or should instead be
returned to the jury pool. This recognises that returning to the
jury pool may be undesirable in certain circumstances, such as to
facilitate social distancing and to comply with COVID-19 safety
measures while it remains necessary to do so.
Clause 116 amends section 39 of the Juries Act 2000 which relates to
peremptory challenges in criminal trials.
Subclause (1) substitutes section 39(2) to provide that in a
criminal trial, each peremptory challenge must be made--
• as the potential juror comes to take the juror's seat and
before they take it; or
• if a direction to move is given in accordance with
section 39A, as the potential juror moves in accordance
with that direction to move.
62
This governs the timing of when a peremptory challenge must be
made, depending on whether the judge has chosen the traditional
"in court" process or the new "direction to move" process.
Subclause (2) inserts the words "or finishes moving in
accordance with the direction to move" after "seated" in section
39(2B) of the Juries Act 2000. This subsection will require the
person arraigned to be given an adequate opportunity to view the
face of the potential juror before the potential juror is either
seated (if the "in court" process is being utilised) or finishes
moving (if the "direction to move" process is being utilised).
Clause 117 inserts new section 39A into the Juries Act 2000 to provide for
the new "direction to move" process.
New section 39A provides that a trial judge may direct a potential
juror to move in a particular direction to distinguish the potential
juror from other potential jurors--
• to enable the Crown to consider whether to require the
potential juror to stand aside in accordance with
section 38; and
• 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.
This establishes the new "direction to move" process, which may
be adopted as an alternative to the traditional approach of the
juror walking to take a seat in the jury box. This process allows
for visual inspection of potential jurors while limiting their
physical movement. This promotes social distancing and allows
jury trials to continue safely in accordance with any relevant
physical distancing requirements.
Examples of the "direction to move" process are directing the
juror to stand and then sit again, or directing the juror move
towards a particular place in the room and stand stationary for a
period of time.
Clause 118 inserts new section 41A into the Juries Act 2000 which states
that nothing in sections 29 to 41 requires all persons involved in
any process or procedure to be physically present together in the
same room or place.
63
This will allow for flexibility and physical distancing in the
empanelment process. For instance, audio visual links may be
used in the empanelment process, so that potential jurors will not
need to be in the same room as others involved in the trial during
empanelment.
Clause 119 inserts new section 100 into the Juries Act 2000 to enable the
Governor in Council to make transitional regulations arising out
of the amendment of the Juries Act 2000 by the Bill. This will
assist to manage transitional issues that may arise due to the
lapsing of temporary reforms in the COVID-19 Omnibus
(Emergency Measures) (Criminal Proceedings and Other
Matters) Regulations 2020 and the commencement of reforms in
the Bill.
New section 100(1) provides that 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 the Juries Act 2000 by the Bill,
including the repeals and amendments made by the Bill.
New section 100(2) provides that regulations made under new
section 100 may--
• have retrospective effect to a day on or from the date
that the Bill receives the Royal Assent;
• be of limited or general application;
• differ according to differences in time, place or
circumstances;
• leave any matter or thing to be decided by a specified
person or specified class of persons;
• provide for the exemption of persons or proceedings or
a class of persons or proceedings from any of the
regulations made under this section.
New section 100(3) provides that regulations made under new
section 100 have effect despite anything to the contrary in any
Act (other than the Bill or the Charter of Human Rights and
Responsibilities Act 2006) or any subordinate instrument.
New section 100(4) will repeal new section 100 on the second
anniversary of the day on which it comes into operation.
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Clause 120 inserts a transitional provision into Schedule 6 to the Juries Act
2000 which provides that the Act, as amended by Part 17 of the
Bill, 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.
Part 18--Amendment of the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997
Clause 121 inserts new Division 1 of Part 2 before section 6 of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997.
Division 1--Jury determination of unfitness to stand trial
provides the existing process for the question of a person's fitness
to stand trial to be determined by a jury. This process is set out
in the Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997. Division 1 of Part 2 will not apply during the period in
which Division 2 of Part 2 is in force.
New section 5C clarifies that during the period that Division 2
applies, sections 7(3)(b), 11, 12, 13, 14 and 14A do not apply.
Division 2 applies from 26 April 2021 until section 10 of the
Crimes (Mental Impairment and Unfitness to be Tried) Act
1997 is substituted by a separate amending Bill.
Clause 122 inserts Division 2 of Part 2 after section 14A of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997.
Division 2--Determination of unfitness to stand trial by judge
alone provides for the question of a person's fitness to stand trial
to be determined by the court rather than a jury empanelled for
this purpose.
This reform was first introduced on a temporary basis in the
COVID-19 Omnibus (Emergency Measures) Act 2020 to
allow for increased flexibility during the COVID-19 pandemic
and will expire on 26 April 2021.
Judge alone fitness investigations are consistent with the
recommendation made by the Victorian Law Reform
Commission in its Review of the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997.
New section 14B provides for the application of Division 2 of
Part 2.
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New section 14B(1) provides that Division 2 applies from
26 April 2021 until section 10 is substituted.
New section 14B(2) provides that a provision specified in
section 5C does not apply while Division 2 applies.
New section 14C provides that the question of a person's fitness
to stand trial is to be determined by the court on the balance of
probabilities at an investigation into the fitness of the accused to
stand trial. This reflects that the court, rather than a jury
empanelled for this purpose, will make the determination about
the question of a person's fitness to stand trial during the period
in which Division 2 of Part 2 is in force.
New section 14D sets out the procedure for how an investigation
into fitness to stand trial is conducted.
New section 14D(1) provides that at a fitness investigation, the
court--
• must hear any relevant evidence and submissions put to
the court by the prosecution and defence; and
• if of the opinion that it is in the interests of justice to do
so, may call evidence on its own motion; or require the
accused to undergo an examination by a registered
medical practitioner or registered psychologist; or
require the results of any such examination to be put
before the court.
This subsection duplicates existing section 11(1) of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997.
New section 14D(2) provides that nothing in subsection (1)
prevents the application of the Evidence Act 2008 and that for
the purposes of Part 3.10 of that Act, the investigation is taken to
be a criminal proceeding. This provision replicates existing
section 11(1A) in the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997.
New section 14D(3) provides that section 232A of the Criminal
Procedure Act 2009 applies to an investigation as if it were a
criminal trial. Section 232A allows a trial judge to direct that two
or more expert witnesses give evidence concurrently or
consecutively in a criminal trial. This provision replicates
existing section 11(1B) in the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997.
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New section 14D(4) provides that if the court finds that the
accused is not fit to stand trial, the court must--
• determine whether or not the accused is likely to
become fit to stand trial within the next 12 months, by
reference to any relevant evidence and on the balance of
probabilities; and
• if the court determines that the accused is likely to
become fit within the next 12 months, specify the period
by which this is likely to occur.
New section 14D(4) replicates existing section 11(4) of the
Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997.
New section 14D(5) provides that, for the purposes of making
this determination, the court may call further evidence on its own
motion. New section 14D(5) substantially replicates existing
section 11(5) of the Crimes (Mental Impairment and Unfitness
to be Tried) Act 1997.
New section 14E sets out findings of the investigation. It
provides that, at an investigation into fitness to stand trial, the
court may find that the accused is fit to stand trial or not fit to
stand trial. This reflects that it is the court, rather than the jury,
that makes a determination with respect to fitness to stand trial
for the purposes of Division 2 of Part 2.
New section 14F sets out the process that follows an
investigation into the accused person's fitness to stand trial.
New section 14F(1) provides that if the court finds the accused fit
to stand trial, the trial must be commenced or resumed in
accordance with usual criminal procedures. New section 14F(1)
substantially replicates existing section 12(1) of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997, but
with reference to the court as the decision maker, rather than the
jury.
New section 14F(2) provides that if the court finds an accused
person not fit to stand trial but determines that they are likely to
become fit within 12 months, it must adjourn the matter for the
period determined under section 14D(4)(b) and may grant the
accused bail, or remand the accused in custody in an appropriate
place or prison for a specified period not exceeding the section
14D(4)(b) period, or make any other order the court thinks
67
appropriate. New section 14F(2) replicates existing section 12(2)
of the Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997.
New section 14F(3) provides that, the court must not remand an
accused in custody in an appropriate place unless the court has
received a section 47 certificate stating that the necessary
facilities or services are available. This subsection replicates
existing section 12(3) of the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997.
New section 14F(4) provides that the court must not remand an
accused in custody in prison unless it is satisfied that there is no
practicable alternative in the circumstances. This subsection
replicates existing section 12(4) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997.
New section 14F(5) provides that if the accused is not fit to stand
trial and the court determines they are not likely to become fit
within 12 months, it must hold a special hearing under Part 3
within 3 months. This replicates the existing timeframe for
holding a special hearing in section 12(5) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997. It further
provides that subject to the requirements in section 14F(3) and
(4), the court may either grant the accused bail or remand them in
custody for a specified period and make any other order the court
considers appropriate. The power to grant the accused bail or
remand them in custody is not currently provided for in the
Crimes (Mental Impairment and Unfitness to be Tried) Act
1997 and will address a gap in powers available to the court
before a special hearing and following a determination that the
accused is unfit to stand trial and not likely to become fit within
12 months.
New section 14G(1) provides that 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--
• for an order that the trial commence or resume, if the
accused or the Director of Public Prosecutions are of the
opinion that the accused has become fit to stand trial; or
• for an order that the court proceed to hold a special
hearing, if the accused or the Director of Public
Prosecutions are of the opinion that the accused will not
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become fit to stand trial by the end of the period of
12 months after the first finding of unfitness.
New section 14G(2) provides that 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.
New section 14G(3) sets out the court's power regarding an
application under section 14G(1). On an application under
subsection (1), the court must dismiss the application or; if
satisfied that the accused has become fit to stand trial, make an
order that the trial commence or resume or; 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.
New section 14G replicates existing section 13 of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997.
New section 14H sets out the process after the period of
adjournment ends.
New section 14H(1) provides that 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. This subsection replicates existing section 14(1) of
the Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997.
New section 14H(2) applies where a period of adjournment under
section 14F(2) ends and a real and substantial question of fitness
is raised again. It provides that, in such a case, the court must
either extend the period of adjournment, but not so that the matter
is adjourned to a date more than 12 months from the first finding
of unfitness, or hold a special hearing under Part 3 within 3
months. New section 14H(2) substantially replicates existing
section 14(2) of the Crimes (Mental Impairment and Unfitness
to be Tried) Act 1997.
New section 14H(3) substantially replicates existing section
14(3) of the Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997 and provides that if the court extends the period
of adjournment, the court may make any order referred to in
section 14F(2) or vary any order made under that subsection, and
for the that purpose section 14F(3) and (4) apply accordingly.
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New section 14H(4) provides that at the end of the period of
adjournment--
• if the trial of the accused has commenced, it must be
resumed as soon as practicable in accordance with usual
criminal procedures; or
• if the trial has not commenced, it must be commenced
within 3 months.
New section 14H(4) replicates existing section 14H(4) of the
Crimes (Mental Impairment and Unfitness to be Tried) Act
1997.
New section 14H(5) provides that 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. New section 14H(5)
replicates existing section 14(5) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997.
New section 14H(6) provides that the period for commencement
of a trial may be extended under subsection (5) more than once.
This replicates existing section 14(6) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997.
New section 14H(7) provides that 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. This replicates existing section 14(7) of
the Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997.
New section 14I sets out the appeal rights of an accused person in
relation to the findings of an investigation. This section
replicates section 14A of the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 in its entirety.
New section 14I(1) provides that in any 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 the Court finds that the accused is unfit to stand trial on an
investigation under Division 2, the accused may appeal to the
Court of Appeal against the finding on any ground of appeal,
with leave of the Court of Appeal.
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New section 14I(2) provides that an accused can commence an
application for leave to appeal by filing a notice of application for
leave to appeal in accordance with the rules of the court within
28 days after the day on which the finding is made or any
extension of that period is granted under section 76C. New
section 14I(2) replicates existing section 14A(2) of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997.
New section 14I(3) provides that 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. New
section 14I(3) replicates existing section 14A(3) of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997.
New section 14I(4) provides that on an appeal under subsection
(1) the Court of Appeal must allow the appeal if the appellant
satisfies the court that the finding of unfitness to stand trial is
unreasonable or cannot be supported having regard to the
evidence or the trial judge made a material error of law or for any
other reason the court considers that the finding should not stand.
New section 14I(5) provides that in any other case, the Court of
Appeal must dismiss an appeal under subsection (1). New
section 14I(5) replicates existing section 14A(5) of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997.
New section 14I(6) sets out the orders available if an appeal
against a finding that the accused is not fit to stand trial succeeds,
substantially replicating existing section 14A(6) of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997.
New section 14I(7) provides the Court of Appeal with the option
to affirm the finding that the accused is unfit to stand trial if the
appeal is unsuccessful and refer the matter to the relevant court.
New section 14I(8) provides that the powers available to the
Court of Appeal if it remits a matter under subsection (6)(b).
New section 14I(9) provides the powers available to the Court if
it remits or refers 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. New section
14I(9) replicates existing section 14A(9) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997.
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New section 14J provides for the application of the Juries Act
2000. Section 14J clarifies that for the purposes of the definition
in the Juries Act 2000, "criminal trial" does not include an
investigation conducted in accordance with Division 2 of Part 2.
This reflects that fitness investigations conducted under
Division 2 of Part 2 will be determined by a judge rather than a
jury.
New section 14K provides that Division 2 of Part 2 is repealed on
the day that section 10 of the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 is substituted. Subject to
passage through Parliament, section 10 will be substituted by
clause 11 of the Crimes (Mental Impairment and Unfitness to be
Tried) Amendment Bill 2020 which, if passed, will provide for
the transfer of the question of fitness from the jury to the judge
on a permanent basis.
Clause 123 inserts new section 90A into the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997.
New section 90A is a transitional provision and provides that on
and from the commencement of Division 2 of Part 2 of the
Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997, an investigation as to the fitness of an accused to stand
trial is to be conducted in accordance with Division 2 of Part 2
irrespective of whether before, on or after that commencement--
• the question of the fitness of the accused to stand trial is
or was raised; or
• the offence charged is or was alleged to have been
committed; or
• the criminal proceeding in respect of which the
investigation relates is or was commenced.
Part 19--Amendment of Justice Legislation Amendment
(Criminal Appeals) Act 2019
Clause 124 substitutes "1 January 2023" for "3 July 2021" in section 2(3) of
the Justice Legislation Amendment (Criminal Appeals)
Act 2019 to extend the default commencement date that applies
to Division 1 or 2 of Part 2 or Division 1 of Part 3 of that Act.
These contain reforms to Victoria's summary appeal processes.
Changing the forced commencement date supports the
implementation of these reforms by providing additional time to
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prepare for commencement, in light of the impact of
COVID-19 on the justice system. The remaining Parts
of that Act have commenced.
Clause 124 substitutes "1 January 2024" for "3 July 2022" in section 39 of
the Justice Legislation Amendment (Criminal Appeals) Act
2019. This will delay the forced repeal of the Justice
Legislation Amendment (Criminal Appeals) Act 2019 by
18 months, which is necessary to reflect the extended default
commencement date. The repeal of the Justice Legislation
Amendment (Criminal Appeals) Act 2019 will not affect the
continuing operation of its amendments.
Part 20--Amendment of Independent Broad-Based
Anti-corruption Commission Act 2011
Division 1--Amendments relating to measures arising from
COVID-19 pandemic
Clause 126 inserts a definition of authorised legal representative into
section 3 of the Independent Broad-based Anti-corruption
Commission Act 2011.
Clause 127 substitutes ", section 125 or 191(1) or (2)" for "or 125" in
section 42(9) of the Independent Broad-based Anti-corruption
Commission Act 2011 to provide that a confidentiality notice
under sections 42(1) or (1A) or a notice cancelling a
confidentiality notice under section 42(3), (4) or (5) may be
issued to a person by serving it in the same manner as a witness
summons can be served under sections 59I, 59J, 124(3), 124(4),
125 or 191(1) or (2).
Clause 128 inserts new subsections (1A), (1B) and (1C) into section 59E of
Independent Broad-based Anti-corruption Commission Act
2011. Section 59E provides for the IBAC to issue a witness
summons for the purposes of a preliminary inquiry.
New subsection (1A) provides that a witness summons issued
under section 59E(1) may specify that attendance required under
the summons is to be by means of audio visual or audio link and
in a specified manner.
New subsection (1B) provides that a witness summons that
provides for attendance by means of audio visual or audio link
and in a specified manner as described in subsection (1A), need
73
not specify a place for attendance, and may specify that if any
documents are to be produced, they may be produced by secure
electronic means and in a specified manner.
New subsection (1C) provides that the IBAC may vary the means
of attendance required under a witness summons under section
59E(1) without reissuing the summons, if the person attending or
their legal representative consent to the variation.
Clause 129 substitutes "Subject to section 59E(1A), (1B) and (1C), a
witness" for "A witness" in section 59F(1) in the Independent
Broad-based Anti-corruption Commission Act 2011.
Section 59F provides for the content and form of a witness
summons. The substitution allows for a witness summons to
provide for the matters as described in new section 59E(1A) and
(1B) and for the means of attendance to be varied as described in
section 59E(1C).
Clause 130 amends section 59I of the Independent Broad-based Anti-
corruption Commission Act 2011 to provide for the variation of
service arrangements under new section 59E(1C).
Section 59I(1) currently provides that subject to subsection (2), a
witness summons must be served at a reasonable time, being not
less than 7 days, before the date on which the person is required
to attend or otherwise comply with the witness summons.
Clause 130(1) substitutes wording in section 59I(1) to make that
section subject to new subsection (2A) as well as subsection (2).
Clause 130(2) inserts a new subsection (2A) into section 59I and
provides that if a witness summons is varied by consent under
section 59E(1C), then the 7 day period for service under section
59I(1) does not apply and the summons is not required to be
reissued.
Clauses 130(3) inserts wording into 59I(3) to provide for the
methods of service described in section 191(1) for a witness
summons directed to a natural person and into section 59I(4) to
provide for the methods of service described in 191(2) for a
witness summons directed to a body corporate.
Clause 131 inserts new subsections (1A), (1B) and (1C) into section 120 of
the Independent Broad-based Anti-corruption Commission
Act 2011. Section 120 provides for the issuing of witness
summons by the IBAC for the purposes of an investigation.
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New subsection (1A) provides that a witness summons issued
under section 120(1) may specify that attendance required under
the summons is to be by means of audio or audio visual link and
in a specified manner.
New subsection (1B) provides that a witness summons that
provides for attendance by means of audio or audio visual link
and in a specified manner as described in subsection (1A), need
not specify a place for attendance, and may specify that if any
documents are to be produced, they may be produced by secure
electronic means and in a specified manner.
New subsection (1C) provides that the IBAC may vary the means
of attendance required under a witness summons under section
120(1) without reissuing the summons, if the person attending or
their legal representative consent to the variation.
Clause 132 substitutes "Subject to section 120(1A), (1B) and (1C), a witness"
for "A witness" in section 121(1) in the Independent Broad-
based Anti-corruption Commission Act 2011. Section 121
provides for the content and form of a witness summons. The
substitution allows for a witness summons to provide for the
matters as described in new section 120(1A) and (1B) and for the
means of attendance to be varied as described in section 120(1C).
Clause 133 amends section 124 of the Independent Broad-based
Anti-corruption Commission Act 2011 to provide for the
variation of service arrangements under new section 120(1C).
Section 124(1) currently provides that subject to subsection (2), a
witness summons must be served at a reasonable time, being not
less than 7 days, before the date on which the person is required
to attend or otherwise comply with the witness summons.
Clause 133(1) substitutes wording in section 124(1) to make that
section subject to new subsection (2A) as well as subsection (2).
Clause 133(2) inserts a new subsection (2A) into section 124 and
provides that if a witness summons is varied by consent under
section 120(1C), then the 7 day period for service under
section 124(1) does not apply and the summons is not required to
be reissued.
Clauses 133(3) inserts wording into 124(3) to provide for the
methods of service described in section 191(1) for a witness
summons directed to a natural person and into section 124(4) to
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provide for the methods of service described in 191(2) for a
witness summons directed to a body corporate.
Clause 134 inserts a new subsection (1A) into section 127 of the
Independent Broad-based Anti-corruption Commission
Act 2011 to provide that for the purposes of section 127, the
attendance of an Australian legal practitioner at the IBAC to
represent a witness at an IBAC examination includes attendance
by means of audio visual or audio link.
Clause 135 inserts new subsection (5) into section 129 of the Independent
Broad-based Anti-corruption Commission Act 2011.
Section 129 makes specific provisions for witnesses at an IBAC
examination. New subsection (5) provides that an interpreter, a
parent or guardian or an independent person may be present in an
examination in the capacity specified in section 129, by means of
audio or audio visual link.
Clause 136 substitutes sections 191(1) and (2) of the Independent Broad-
based Anti-corruption Commission Act 2011 and adds new
subsections to that section to provide for alternative methods of
service of documents.
New section 191(1) provides that without limiting sections 42,
59I, 124 and 125, any document under the Independent Broad-
based Anti-corruption Commission Act 2011 or the regulations
made under that Act, which is required or authorised to be given
to, or served on a person (other than a body corporate) may be
served on the person by--
• giving it or serving it personally on the person;
• sending a copy of the document by registered post to
that person at their last know place of residence or
business;
• delivering a copy of the document by electronic
communication that is confirmed as having been
received by the person;
• sending a copy of the document by registered post,
addressed to the person's authorised legal representative
to that representative's place of business;
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• leaving it at that person's usual or last known place of
residence with a person who is apparently not less than
16 years old;
• leaving it at that person's usual or last known place of
business with a person who is apparently an employee
and not less than 16 years old;
• leaving a copy of the document for that person at the
place of business of the person's authorised legal
representative with a person who apparently works there
and is apparently not less than 16 years old;
• delivering a copy of the document, addressed to the
person's authorised legal representative, to that
representative personally; or
• delivering a copy of the document to the person's
authorised legal representative by electronic
communication that is confirmed as having been
received by the person's legal representative.
New section 191(2) provides that without limiting sections 42,
59I, 124 and 125, any document under the Independent Broad-
based Anti-corruption Commission Act 2011 or the regulations
made under that Act, which is required or authorised to be given
to, or served on a body corporate may be served by--
• giving it or serving it on the body corporate at its head
office, registered office or principal office;
• leaving a copy of the document at the body corporate's
registered office or principal place of business with a
person apparently employed at the office or place and
who is apparently not less than 16 years old;
• sending a copy of the document by registered post,
addressed to the registered office or principal place of
business of the body corporate; or
• delivering a copy of the document to the body corporate
by electronic communication that is confirmed as
having been received by the body corporate.
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New section 191(2A) provides that for the purposes of section
191(1) a person may deliver a confidentiality notice or witness
summons to another person by placing a copy of the document on
a surface in the presence of that other person.
New section 191(2B) provides that for the purposes of sections
191(1)(c) and (i) and (2)(d) the receipt of a document is to be
confirmed by any form of electronic communication.
Clause 137 inserts new section 194A into the Independent Broad-based
Anti-corruption Commission Act 2011.
New section 194A(1) provides that for the avoidance of doubt,
the provisions of the Independent Broad-based Anti-
corruption Commission Act 2011 that apply to a person's
attendance before the IBAC under a witness summons, as legal
representation at an examination or in accordance with section
129 apply to attendance by audio or audio visual link in the same
way as they do to attendance in person (including any rights or
obligations imposed by Part 3 or 6 of the Act, except as otherwise
provided). Part 3 of the Act provides for Investigations and
Part 6 provides for Examinations.
New section 194A(2) provides that for the avoidance of doubt, a
provision of the Independent Broad-based Anti-corruption
Commission Act 2011 that applies to the production of
documents under a witness summons, applies in the same way to
documents produced by secure electronic means as it does to
documents produced in person (except as otherwise provided by
Parts 3 or 6).
Division 2--Amendments relating to examinations
Clause 138 inserts new section 115(2A) and makes consequential
amendments to section 115(2)(a) of the Independent Broad-
based Anti-corruption Commission Act 2011. Section 115
provides for the IBAC to hold examinations.
Section 115(2)(a) currently provides that the IBAC may appoint a
person as an examiner if the person would be eligible to be
appointed as the Commissioner under section 20(2). Under
section 20(2) a person is eligible to be appointed Commissioner
if they are qualified for appointment as a judge of the High Court,
Federal Court or Supreme Court of Victoria or another State or a
Territory.
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Clauses 138(2) inserts new section 115(2A) which provides that
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 it is appropriate to do so, and
the Deputy Commissioner has the appropriate skills and
knowledge to perform the functions. Clause 138(1) makes
consequential changes to section 115(2)(a) to refer to this change.
Clause 138(3) makes a statute law revision change to
section 115(4).
Division 3--Other amendments
Clause 139 inserts new section 200 into the Independent Broad-based
Anti-corruption Commission Act 2011, which provides that the
Governor in Council may make regulations dealing with
transitional matters arising as a result of the amendment of the
Independent Broad-based Anti-corruption Commission Act
2011 by the Justice Legislation Amendment (System
Enhancements and Other Matters) Act 2021. This section is
repealed on the second anniversary of the day on which it comes
into operation.
Part 21--Amendment of other integrity entities legislation
Division 1--Amendment of Freedom of Information Act 1982
Clause 140 inserts new definitions of authorised legal representative,
destroy and information system into section 5(1) of the Freedom
of Information Act 1982 and makes a statute law revision
change in the definition of agency.
Clause 141 substitutes wording in section 61TJ(8) of the Freedom of
Information Act 1982 to clarify that a confidentiality notice may
be served in accordance with section 61W (which provides for
the service of notices to produce or attend).
Clause 142 substitutes wording in section 61TK(4) of the Freedom of
Information Act 1982 to clarify that an extension of a
confidentiality notice may be served in accordance with
section 61W (which provides for the service of notices to
produce or attend).
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Clause 143 inserts new sections 61U(1A) and (1B) into the Freedom of
Information Act 1982.
New subsection (1A) provides that a notice to produce or attend
may specify that attendance required under the notice is to be by
means of audio or audio visual link and in a specified manner.
New subsection (1B) provides that a notice to attend as described
in subsection (1A), need not specify a place for attendance, and
may specify that if any documents are to be produced, they may
be produced by secure electronic means and in a specified
manner.
Clause 144 inserts new subsections into section 61W of the Freedom of
Information Act 1982 and makes consequential changes to
existing subsections (3) and (4). Sections 61W(3) and (4)
currently set out methods of service for a notice to produce or
attend directed to a natural person and a body corporate,
respectively.
Clause 144(2) inserts new subsection (3A) which provides that
for the purposes of section 61W(3), a document may be served
on a natural person by--
• sending a copy of the document by registered post to
that person at their last known place of residence or
business;
• delivering a copy of the document by electronic
communication that is confirmed as having been
received by the person;
• sending a copy of the document by registered post,
addressed to the person's authorised legal representative
to that representative's place of business;
• leaving a copy of the document for that person at the
place of business of the person's authorised legal
representative with a person who apparently works there
and is apparently not less than 18 years old;
• delivering a copy of the document, addressed to the
person's authorised legal representative, to that
representative personally; or
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• delivering a copy of the document to the person's
authorised legal representative by electronic
communication that is confirmed as having been
received by the person's legal representative.
Clause 144(3) inserts new subsections (4A), (4B) and (4C). New
subsection (4A) provides that for the purposes of section 61W(4),
a document may be served on a body corporate by--
• leaving a copy of the document at the body corporate's
registered office or principal place of business with a
person apparently employed at the office or place and
who is apparently not less than 18 years old;
• sending a copy of the document by registered post,
addressed to the registered office or principal place of
business of the body corporate; or
• delivering a copy of the document to the body corporate
by electronic communication that is confirmed as
having been received by the body corporate.
New subsection (4B) provides that for the purposes of section
61W 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.
New subsection (4C) provides that for the purposes of section
61W(3A)(b) and (f) and (4A)(c), a document, the receipt of
which is to be confirmed by electronic communication, may be
confirmed by any form of electronic communication.
Clauses 144(1) and (4) amend section 61W(3) and (4) to provide
for the additional service methods set out in new subsections
(3A) and (4A) respectively, and section 61W(5) to provide for
the additional service methods set out in subsection (4A)
Clause 145 inserts new section 61ZF(2) into the Freedom of Information
Act 1982 which provides that for the purposes of section 61ZF
(which provides for a person to seek legal advice, or be
represented by a legal practitioner in relation to a notice to
produce or attend), a legal practitioner may represent a person by
means of audio visual link or audio link.
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Clause 146 inserts new section 61ZI into the Freedom of Information
Act 1982.
New section 61ZI(1) provides that, except as otherwise provided
in Part VIC (coercive powers) of the Freedom of Information
Act 1982, a provision that applies to a person's attendance
required under a notice under section 61U applies to attendance
by audio or audio visual link in the same way as it applies in
relation to attendance in person.
New section 61ZI(2) provides that, except as otherwise provided
in Part VIC (coercive powers) of the Freedom of Information
Act 1982, a provision that applies to production of documents
under a notice under section 61U applies to the production of
documents by secure electronic means in the same way as it
applies in relation to production of documents in person.
Clause 147 inserts new subsections into section 63D. Section 63D provides
for special requirements for the production of documents claimed
to be exempt under section 28 (Cabinet documents), 29A
(documents affecting national security, defence or international
relations), 31 (law enforcement documents) or 31A (documents
relating to IBAC). Subsections (2) and (3) respectively provide
that such documents may only be inspected at the premises of the
agency or Minister claiming the exemption and that the
Information Commissioner is not entitled to possession of, or to
make copies of, the documents.
New section 63D(4) provides that despite subsections (2) and (3),
at the Information Commissioner's request, the document must be
provided to the Information Commissioner for inspection by
secure electronic means.
New section 63D(5) provides that after the Information
Commissioner has inspected the document, the Commissioner
must destroy it as soon as practicable, and advise the agency or
Minister in writing that the inspection has been completed and
the document destroyed.
Clause 148 makes a statute law revision amendment in section 49P(3A) of
the Freedom of Information Act 1982 to remove an outdated
reference to the Freedom of Information Commissioner.
Clause 149 inserts new section 73 into the Freedom of Information Act
1982 to which provides that the Governor in Council may make
regulations dealing with transitional matters arising as a result of
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the amendment of the Freedom of Information Act 1982 by the
Justice Legislation Amendment (System Enhancements and
Other Matters) Act 2021. This section is repealed on the
second anniversary of the day on which it comes into operation.
Division 2--Amendment of Local Government Act 2020
Clause 150 inserts definitions of authorised legal representative, destroy and
information system into section 3(1) of the Local Government
Act 2020.
Clause 151 inserts new subsections into section 183 of the Local
Government Act 2020. Section 183 provides for the powers of
the Chief Municipal Inspector, including the power to issue a
written notice to require a person to produce documents or appear
before the Chief Municipal Inspector under section 183(3).
Clause 151(1) inserts new subsections (3A) and (3B).
New subsection (3A) provides that a notice issued by the Chief
Municipal Inspector under section 183(3) may specify that an
appearance required under the notice is to be by means of audio
visual or audio link and in a specified manner.
New subsection (3B) provides that a notice to attend as described
in subsection (3A), need not specify a place for the appearance,
and may specify that if any documents are to be produced, they
may be produced by secure electronic means and in a specified
manner.
Clause 151(2) inserts new subsections (6A) and (6B).
New subsection (6A) provides that if section 183(6) applies, 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. New subsection (6B) requires a person provided
with a document under subsection (6A) to destroy the document
as soon as practicable after inspecting it and advise the Chief
Municipal Inspector in writing that the inspection is complete and
the document destroyed.
Clause 151(3) inserts new subsection (7A).
New subsection (7A) provides that for the purposes of section
183(7) (which entitles a person appearing before the Chief
Municipal Inspector to be represented by another person), the
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person's representative may appear before the Chief Municipal
Inspector by audio or audio visual link.
Clause 152 inserts new subsections into section 193 of the Local
Government Act 2020 and makes a consequential amendment to
section 193(8) to provide for the methods of service set out in
new subsection (9).
Clause 152(2) inserts new subsections (9), (10) and (11).
New subsection (9) provides that for the purposes of section 193
(confidentiality notice) and section 194 (extension of a
confidentiality notice), a confidentiality notice or a notice
cancelling a confidentiality notice may be served on a natural
person by--
• serving a copy of the document on the person
personally,
• sending a copy of the document by registered post to
that person at their last known place of residence or
business,
• delivering a copy of the document by electronic
communication that is confirmed as having been
received by the person,
• sending a copy of the document by registered post,
addressed to the person's authorised legal representative
to the representative's place of business,
• leaving a copy of the document for that person at the
place of business of the person's authorised legal
representative with a person who apparently works there
and is apparently not less than 18 years old,
• delivering a copy of the document, addressed to the
person's authorised legal representative, to that
representative personally, or
• delivering a copy of the document to the person's
authorised legal representative by electronic
communication that is confirmed as having been
received by the person's legal representative.
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New subsection (10) provides that for the purposes of new
subsection (9), a person may deliver a copy of the document to
another person personally by placing it on a surface in the
presence of that other person.
New subsection (11) provides for the purposes of subsection (9) a
document the receipt of which is to be confirmed by electronic
communication, may be confirmed by any form of electronic
communication.
Clause 152(1) substitutes "subsection (9)" for "section 315" in
section 193 to provide for the methods of service set out in new
section 193(9).
Clause 153 substitutes section "193(9)" for "section 315" in section 194(4) of
the Local Government Act 2020 to provide for the methods of
service for an extension of a confidentiality notice set out in new
section 193(9).
Clause 154 inserts new section 199A into the Local Government Act 2020.
New section 199A provides that for the avoidance of doubt,
except as otherwise provided in Division 4 of Part 7 of the Local
Government Act 2020, the Act applies--
• to an appearance under section 183(3) by audio or audio
visual link in the same way that it applies to an
appearance in person; or
• to the production of documents produced by secure
electronic means under section 183(3) in the same way
as it applies to the production of documents in person.
Clause 155 substitutes wording in section 315 of the Local Government Act
2020 as a consequential change to make service of documents on
a person, subject to the service arrangements in sections 193 and
194.
Clause 156 inserts new section 330A into the Local Government Act 2020
which provides that the Governor in Council may make
regulations dealing with transitional matters arising as a result of
the amendment of the Local Government Act 2020 by the
Justice Legislation Amendment (System Enhancements and
Other Matters) Act 2021. This section is repealed on the
second anniversary of the day on which it comes into operation.
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Division 3--Amendment of Ombudsman Act 1973
Clause 157 inserts a new definition of authorised legal representative into
section 2(1) of the Ombudsman Act 1973.
Clause 158 inserts new subsections into, and makes consequential changes
to, section 18 of the Ombudsman Act 1973. Section 18
provides for the issuing of witness summons.
Clause 158(1) inserts new subsections (1A) and (1B).
New subsection (1A) provides that a witness summons issued by
the Ombudsman may specify that attendance required under the
summons is to be by means of audio visual or audio link and in a
specified manner.
New subsection (1B) provides that a summons issued by the
Ombudsman that provides for attendance as described in
subsection (1A), need not specify a place for attendance, and may
specify that if any documents are to be produced, they may be
produced by secure electronic means and in a specified manner.
Clause 158(2) makes a consequential change resulting from the
insertion of new subsections (1A) and (1B) to section 18(4).
Clause 158(3) inserts new subsection (5) which provides that if a
person is issued with a witness summons referred to in sections
18(1)(a) or (c) in relation to the production of documents or other
things, the Ombudsman may excuse the 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 by the
Ombudsman.
Clause 159 inserts new subsections into, substitutes subsections, and makes
consequential changes to section 18A of the Ombudsman Act
1973. Section 18A provides for the service of witness summons.
Clause 159(2) inserts new subsection (1A) which provides that
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--
• evidence being lost or destroyed;
• the commission of an offence;
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• the escape of the person who is summoned; or
• serious prejudice to the conduct of the investigation to
which the witness summons relates.
Clause 159(3) substitutes subsections (2) and (3) and inserts new
subsections (4) and (5).
Substituted subsection (2) provides that a witness summons
directed to a natural person must be served by--
• serving a copy of the summons on the person
personally;
• sending a copy of the summons by registered post to
that person at their last known place of residence or
business;
• delivering a copy of the summons by electronic
communication that is confirmed as having been
received by the person;
• sending a copy of the summons by registered post,
addressed to the person's authorised legal representative
to the representative's place of business;
• leaving a copy of the summons for that person at the
place of business of the person's authorised legal
representative with a person who apparently works there
and is apparently not less than 18 years old;
• delivering a copy of the summons, addressed to the
person's authorised legal representative, to that
representative personally; or
• delivering a copy of the document to the person's
authorised legal representative by electronic
communication that is confirmed as having been
received by the person's legal representative.
Substituted subsection (3) provides that a witness summons
directed to a body corporate must be served by--
• leaving a copy of the document at the body corporate's
registered office or principal place of business with a
person apparently employed at the office or place and
who is apparently not less than 18 years old;
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• sending a copy of the document by registered post,
addressed to the registered office or principal place of
business of the body corporate; or
• delivering a copy of the document to the body corporate
by electronic communication that is confirmed as
having been received by the body corporate.
New subsection (4) provides that for the purposes of subsection
(2), a person may deliver a copy of the document to another
person personally by placing it on a surface in the presence of
that other person.
New subsection (5) provides for the purposes of subsection (2)
and (3) a document the receipt of which is to be confirmed by
electronic communication, may be confirmed by any form of
electronic communication.
Clause 159(1) makes section 18A(1) subject to the new service
provisions in subsection (1A).
Clause 160 inserts new subsection (2A) into section 18M of Ombudsman
Act 1973 which provides that for the purposes of section 18M, if
a legal practitioner representing a person in accordance with
section 18M is required to appear before the Ombudsman, that
appearance may be made by means of audio visual or audio link.
Clause 161 inserts new subsection (9A) into section 18P of the Ombudsman
Act 1973 which provides that for the purposes of sections 18P(6),
(7), (8) and (9), an interpreter, a parent or guardian, an
independent person or a support person may be present at an
appearance in the capacity set out in those sections, by means of
audio visual or audio link.
Clause 162 inserts a new section 22A into the Ombudsman Act 1973, which
provides that for the avoidance of doubt, except as otherwise
provided in Division 3 of Part IV of the Ombudsman Act 1973,
a provision of the Act in relation to--
• a person's attendance under a witness summons, as legal
representation in an examination, by voluntary
appearance or in accordance with section 18P, applies to
attendance by audio or audio visual link in the same
way that it applies to an appearance in person; or
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• the production of documents required under a witness
summons applies to the production of documents by
secure electronic means applies in the same way as it
applies to the production of documents in person.
Clause 163 inserts new section 37 into the Ombudsman Act 1973 which
provides that the Governor in Council may make regulations
dealing with transitional matters arising as a result of the
amendment of the Ombudsman Act 1973 by the Justice
Legislation Amendment (System Enhancements and Other
Matters) Act 2021. 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
Clause 164 inserts a new definition of authorised legal representative into
section 3 of the Privacy and Data Protection Act 2014.
Clause 165 inserts new subsection 7 into section 78 of the Privacy and Data
Protection Act 2014 (which provides for a compliance notice to
be served) to provide that a compliance notice must be served in
accordance with section 83C. Section 83C provides for the
service of notice to produce documents or to attend.
Clause 166 inserts new subsections (1A) and (1B) into section 83A of the
Privacy and Data Protection Act 2014.
New subsection (1A) may specify that a notice to produce or
attend may specify that the attendance required is to be by means
of audio visual link or audio link and in a specified manner.
New subsection (1B) provides that a notice that provides for
attendance as described in new subsection (1A) need not specify
a place for attendance and 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.
Clause 167 inserts new subsections (3A) and (4A) into section 83C of the
Privacy and Data Protection Act 2014 and makes
consequential changes to sections 83(C)(3) and 83(C)(4) to refer
to the new subsections. Section 83C provides for the issuing of a
notice to produce or attend.
Clause 167(2) inserts new subsection (3A) which provides that a
document that must be served personally on a person may be
served on a natural person by--
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• sending a copy of the document by registered post to
that person at their last known place of residence or
business;
• delivering a copy of the document by electronic
communication that is confirmed as having been
received by the person;
• sending a copy of the document by registered post,
addressed to the person's authorised legal representative
to that representative's place of business;
• leaving a copy of the document for that person at the
place of business of the person's authorised legal
representative with a person who apparently works there
and is apparently not less than 18 years old;
• delivering a copy of the document, addressed to the
person's authorised legal representative, to that
representative personally; or
• delivering a copy of the document to the person's
authorised legal representative by electronic
communication that is confirmed as having been
received by the person's legal representative.
Clause 167(3) inserts new subsections (4A), (4B) and (4C).
New subsection (4A) provides that a document directed to a body
corporate may be served by--
• sending a copy of the document by registered post,
addressed to the body corporate at their registered office
or principal place of business; or
• delivering a copy of the document to the body corporate
by electronic communication that is confirmed as
having been received by the body corporate.
New subsection (4B) provides that for the purposes of sections
83C(3) or 83C(3A) a person may deliver a copy of the document
to another person personally by placing it on a surface in the
presence of that other person.
New subsection (4C) provides for the purposes of subsections
(3A)(b) and (f) and (4A)(b) a document the receipt of which is to
be confirmed by electronic communication, may be confirmed by
any form of electronic communication.
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Clause 167(1) makes consequential changes to sections 83(3) and
(4) to provide for the service methods in new subsections (3A)
and (4A).
Clause 168 inserts new subsection into section 83F (legal advice and
representation) of the Privacy and Data Protection Act 2014
which provides that for the purposes of section 83F, a legal
practitioner may represent a person by means of audio visual or
audio link.
Clause 169 inserts a new section 83L into the Privacy and Data Protection
Act 2014, which provides that except as provided for in Part 3 of
that Act, a provision of the Privacy and Data Protection Act
2014 in relation to--
• a person's attendance required by a notice to produce or
attend under section 83A, applies to attendance by audio
link or audio visual link in the same way that it applies
to an attendance in person; or
• the production of documents required by a notice to
produce or attend under section 83A, applies to the
production of documents by secure electronic in the
same way as it applies to the production of documents
in person.
Clause 170 inserts new section 130 into the Privacy and Data Protection
Act 2014 which provides that the Governor in Council may make
regulations dealing with transitional matters arising as a result of
the amendment of the Privacy and Data Protection Act 2014 by
the Justice Legislation Amendment (System Enhancements
and Other Matters) Act 2021. 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
Clause 171 inserts a new definition of authorised legal representative into
section 3(1) of the Victorian Inspectorate Act 2011.
Clause 172 inserts new subsections (2A) and (2B) into section 12A (specific
powers in relation to the IBAC) of the Victorian Inspectorate
Act 2011.
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New subsection (2A) provides that a requirement under section
12A(2)(d) that any IBAC personnel attend at the office of the
Victorian Inspectorate 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.
New subsection (2B) provides that a requirement under section
12A(2)(d) that provides for attendance as described in new
subsection (2A) need not specify a place for attendance and may
specify that if any documents are to be produced, those
documents are to be produced by secure electronic means and in
a specified manner.
Clause 173 inserts new subsections (6A) and (6B) into section 13 (specific
powers in relation to the Public Interest Monitors) of the
Victorian Inspectorate Act 2011.
New subsection (6A) provides that a requirement under section
13(6) that a Public Interest Monitor attend at the office of the
Victorian Inspectorate 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.
New subsection (6B) provides that a requirement under section
13(6) that provides for attendance as described in new subsection
(6A) need not specify a place for attendance and may specify that
if any documents are to be produced, those documents are to be
produced by secure electronic means and in a specified manner.
Clause 174 substitutes sections "56(3A), 56(4) and 56(4A)" for section
"56(4)" in section 38(9) of the Victorian Inspectorate Act 2011
to provide for the same additional methods of service for
confidentiality notices and notices cancelling confidentiality
notices as for the service of witness summons.
Clause 175 inserts new subsections (10) and (11) into section 47 (conduct of
investigations) of the Victorian Inspectorate Act 2011.
New subsection (10) provides that a requirement to attend before
the Victorian Inspectorate under sections 47(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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New subsection (11) provides that a requirement referred to in
new subsection (10) that provides for attendance as described in
that subsection need not specify a place for attendance and may
specify that if documents are to be produced, those documents
are to be produced by electronic means and in a specified
manner.
Clause 176 inserts new subsections (3) and (4) into section 51 (examinations
must be held in private) of the Victorian Inspectorate Act 2011.
New subsection (3) provides that for the purposes of section 51
an examination may be conducted by audio visual link or audio
link and attending the examination includes attending by audio
visual or audio link.
New subsection (4) provides that for the purposes of section
51(1), an examination conducted by means of audio visual link or
audio link is taken to be held in private.
Clause 177 inserts new subsections (1A) and (1B) into section 53 (witness
summons) of the Victorian Inspectorate Act 2011.
New subsection (1A) provides that a witness summons issued
under section 53(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.
New subsection (1B) provides that a witness summons that
provides for attendance as described in new subsection (1A) need
not specify a place for attendance and may specify that if any
documents are to be produced, those documents are to be
produced by secure electronic means and in a specified manner.
Clause 178 inserts new subsections into section 56 (Service of witness
summons) of the Victorian Inspectorate Act 2011 and makes
consequential changes to that section.
Clause 178(2) inserts new subsection (3A) which provides that a
document that must be served personally on a person may be
served on a natural person by--
• sending a copy of the document by registered post to
that person at their last known place of residence or
business;
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• delivering a copy of the document by electronic
communication that is confirmed as having been
received by the person;
• sending a copy of the document by registered post,
addressed to the person's authorised legal representative
to that representative's place of business;
• leaving a copy of the document for that person at the
place of business of the person's authorised legal
representative with a person who apparently works there
and is apparently not less than 16 years old;
• 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;
• leaving it at that person's usual or last known place of
business with a person who is apparently employed
at the premises and is apparently not less than
16 years old;
• delivering a copy of the document, addressed to the
person's authorised legal representative, to that
representative personally; or
• delivering a copy of the document to the person's
authorised legal representative by electronic
communication that is confirmed as having been
received by the person's legal representative.
Clause 178(3) inserts new subsections (4A), (4B) and (4C).
New subsection (4A) provides that a document that must be
served on a body corporate may be served by--
• sending a copy of the document by registered post,
addressed to the body corporate at their registered office
or principal place of business, or
• delivering a copy of the document to the body corporate
by electronic communication that is confirmed as
having been received by the body corporate.
New subsection (4B) provides that for the purposes of sections
56(3) or 56(3A) a person may deliver a copy of the document to
another person personally by placing it on a surface in the
presence of that other person.
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New subsection (4C) provides that for the purposes of
subsections (3A)(b) and (f) and (4A)(b) a document the receipt of
which is to be confirmed by electronic communication, may be
confirmed by any form of electronic communication.
Clause 178(1) makes consequential changes to sections 56(3) and
56(4) to refer to new subsections (3A) and (4A) respectively.
Clause 179 inserts new subsection (11) into section 58 of the Victorian
Inspectorate Act 2011 (Legal representation of witnesses and
other persons) which provides that for the purposes of section 58,
the attendance of an Australian legal practitioner for the purposes
of representing a witness at an examination includes the
practitioner's attendance by audio visual link or audio link.
Clause 180 inserts new subsection (5) into section 59 of the Victorian
Inspectorate Act 2011 (Specific provisions relating to witnesses)
which provides that for the purposes of section 59, an interpreter,
a parent or guardian or an independent person may be present at
an appearance in the capacity set out in that section, by means of
audio visual link or audio link.
Clause 181 inserts new section 67A into the Victorian Inspectorate Act
2011 which provides that for the avoidance of doubt, except as
otherwise provided in Division 2 of Part 6 of the Victorian
Inspectorate Act 2011 (Investigations and inquiries), a provision
of the Act in relation to--
• a person's attendance as required by specified provisions
in the Act or by a witness summons, as a legal
representative at an examination or in accordance with
section 59, applies to attendance by audio or audio
visual link in the same way that it applies to an
appearance in person; or
• the production of documents required under specified
provisions of the Act or under a witness summons
applies to the production of documents by secure
electronic means in the same way as it applies in
relation to the production of documents in person.
Clause 182 inserts new section 107 into the Victorian Inspectorate Act
2011 which provides that the Governor in Council may make
regulations dealing with transitional matters arising as a result of
the amendment of the Victorian Inspectorate Act 2011 by the
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Justice Legislation Amendment (System Enhancements and
Other Matters) Act 2021. This section is repealed on the
second anniversary of the day on which it comes into operation.
Part 22--Amendment of Fines Reform Act 2014 and related
consequential amendments--time served and fines
Part 22 of the Bill makes amendments to the Fines Reform Act 2014 and the
Infringements Act 2006 to reform the "time served" scheme for prisoners in
Division 2 of Part 14 of the Fines Reform Act 2014. The changes are a
response to recommendation 13 in the 2020 final report of the Fines Reform
Advisory Board, which called for the Government to consider creating an
administrative process to manage applications under the scheme where there
was no possibility of the prisoner being ordered to spend additional time in
custody in lieu of paying their unpaid infringement fines.
The changes create a power for the Director, Fines Victoria to waive
outstanding amounts under certain relevant infringement fines, on request by
a person in custody. Consistent with recommendation 13 of the Fines
Reform Advisory Board, the Director's waiver power is limited to matters in
which any term of imprisonment the prisoner may have been ordered to serve
in lieu of paying their unpaid fines would have been served concurrently with
their existing sentence.
Division 1--Amendment of Fines Reform Act 2014
Clause 183 inserts a new paragraph (ja) into section 5 of the Fines Reform
Act 2014. Section 5 sets out the functions of the Director, Fines
Victoria. New paragraph (ja) confers a new function on the
Director, Fines Victoria, of waiving the payment of outstanding
amounts under a relevant infringement fine in accordance with
new section 171AD, inserted by clause 185 of the Bill.
Clause 184 inserts a new definition of appropriate action into section 163 of
the Fines Reform Act for the purpose of the new section 171AB
inserted by clause 185 of the Bill.
Appropriate action is defined to mean--
• an application to the Magistrates' Court under section
171A on behalf of a person to whom the new
Division 1A inserted by clause 185 applies; or
• waiving an outstanding amount under a relevant
infringement fine under new section 171AD inserted by
clause 185 of the Bill.
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Clause 185 inserts a new Division 1A after Division 1 of Part 14 of the Fines
Reform Act 2014. The heading to the new Division 1A is
"Request by person in custody to Director for waiver or to make
application to Court".
The new Division 1A contains new sections 171AA to 171AE.
These provisions change the existing scheme for time served
orders contained in Division 2 of Part 14 of the Fines Reform
Act 2014. Under the existing scheme, a person in custody must
request the Director to apply to the Magistrates' Court for an
order that the person serve a term of imprisonment in default of
paying a relevant infringement fine. The changes made by
sections 171AA to 171AE allow the Director to deal with certain
requests by waiving the person's unpaid fines, rather than
referring the matter to the Magistrates' Court.
New section 171AA provides that Division 1A of Part 14 of the
Fines Reform Act 2014 applies to a person who is in custody
and who is the subject of a relevant infringement fine. The term
relevant infringement fine is defined in section 163 of the Fines
Reform Act 2014 to mean a registered infringement fine or a
registered collection and enforcement order made in respect of an
outstanding registered infringement fine.
New section 171AB provides that a person to whom new
Division 1A of Part 14 applies may request the Director to take
appropriate action so that the person's relevant infringement fines
are (as appropriate) considered by the Magistrates' Court under
Division 2 of Part 14 of the Fines Reform Act 2014 or waived
by the Director under new section 171AD.
New section 171AC provides for the circumstances in which the
appropriate action to be taken by the Director in response to a
request under new section 171AB is an application to the
Magistrates' Court. It provides that, subject to new section
171A(4) and (5), the Director must apply to the Magistrates'
Court for an order in accordance with new section 171A if--
• the person is only in custody because of a fine related
sentence; or
• 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.
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This provision ensures that the Magistrates' Court must deal with
any requests that could result in the prisoner being ordered to
serve an additional term of imprisonment in lieu of paying their
unpaid infringement fines cumulatively with their existing
sentence.
New section 171AD(1) provides that, 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 new
section 171AB unless the Director is required to make an
application to the Magistrates' Court under new section 171AC.
New section 171AD(2) provides that, for the purposes of
subsection (1), the outstanding amount of the relevant
infringement fine that the Director may waive 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. This provision reflects the existing limit on the term of
imprisonment that the Magistrates' Court may impose on a
prisoner with unpaid infringement fines in lieu of that prisoner
paying those fines, under section 171E(1) of the Fines Reform
Act 2014.
New section 171AE provides that on the Director waiving
payment of an outstanding amount of a relevant infringement fine
under section 171AD, the person who made the 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 new section 32(1A)(b) of the Infringements Act
2006 despite the fact that the term of imprisonment does not
relate to the infringement offence the subject of the relevant
infringement fine.
Under the current "time served" scheme, prisoners' unpaid
infringement fines are discharged when they serve an additional
term of imprisonment concurrently with their existing sentence.
The deemed service of a term of imprisonment in default of
payment of an outstanding fine where the Director, Fines
Victoria waives the outstanding amount under new section
171AD is intended to operate in the same way.
Clause 186 substitutes section 171A of the Fines Reform Act 2014 to
provide for applications to the Magistrates' Court by the Director
on behalf of persons in custody to whom section 171AC applies.
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New section 171A(1) provides that, 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 section
171A(1).
New section 171A(2) provides that if section 171AC(a) applies to
a person; that is, the person is serving a fine related sentence, the
Director must apply to the Magistrates' Court on behalf of the
person for an order under section 171C.
New section 171A(3) provides that if section 171AC(b) applies
to a person; that is, the outstanding amount under the relevant
infringement fine exceeds the person's non-fine related sentence
of imprisonment, the Director must apply to the Magistrates'
Court on the person's behalf for--
• an order under section 171B; and
• an order under section 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).
New section 171A(4) provides that the Director must not make
an application to the Magistrates' Court under section 171A if the
person to whom section 171AC applies is no longer in custody at
the time.
New section 171A(5) provides that the Director must not make
an application to the Magistrates' Court under section 171A if the
time of the alleged commission of the infringement offence the
subject of the relevant infringement fine is on or after the date
that the person was taken into custody.
Clause 187 amends section 171B(1), (2) and (3)(b) of the Fines Reform
Act 2014 to substitute references to "section 171A(2)" with
references to section 171A(3). These are consequential
amendments necessary due to the substitution of section 171A by
clause 186.
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Clause 188 substitutes section 171C(1) of the Fines Reform Act 2014 to
reflect amendments made by the substituted section 171A. The
substituted section 171C(1) provides that substituted section
171C applies if--
• the Director has made an application to the Magistrates'
Court under new section 171A(2) on a person's behalf
and the person--
• is only in custody because of a fine related
sentence; or
• has completed the fine related sentence that the
person was serving at the time the Director made
the application; or
• the Magistrates' Court has made a time served order in
respect of a person and--
• the term imposed under the time served order
exceeds the term of the non-fine related sentence
being served by the person; or
• the person has completed the non-fine related
sentence and the term imposed under the time
served order exceeds the term of the non-fine
related sentence.
Clause 189 substitutes a reference in section 171F(1) of the Fines Reform
Act 2014 to "section 171A(2)" with a reference to "section
171A(2) or (3)". This is a consequential amendment necessary as
a result of the substitution of section 171A by clause 186 of the
Bill. The amendment reflects the fact that an application by the
Director to the Magistrates' Court on a person's behalf may be
made under either section 171A(2) or (3).
Clause 190 substitutes a reference in section 172(1)(f) of the Fines Reform
Act 2014 to "section 171A(2)" with a reference to "section
171A(2) or (3)". This is a consequential amendment necessary as
a result of the substitution of section 171A by clause 186. The
amendment reflects the fact that an application by the Director to
the Magistrates' Court on a person's behalf will be able to be
made under either section 171A(2) or (3).
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Clause 191 inserts new Part 18 in the Fines Reform Act 2014, which
contains new sections 248, 249 and 250. The new Part 18
provides for transitional arrangements for the changes made by
clauses 183 to 190 of the Bill to the "time served" scheme in
Division 2 of Part 14 of the Fines Reform Act 2014.
New section 248 defines the term commencement day for the
purposes of new Part 18. The term is defined to mean the day on
which section 191 of the Justice Legislation Amendment
(System Enhancements and Other Matters) Act 2021 comes
into operation.
New section 249 provides for requests made to the Director
under substituted section 171A(1) as in force immediately before
the commencement day, as that term is defined in new
section 248. New section 249 provides that if a person has made
a request under substituted section 171A(1) and the Director has
not applied to the Magistrates' Court under substituted section
171A(2) as in force immediately before the commencement day
then, on and from the commencement day--
• Division 1A of Part 14 applies to the request; and
• the Director may (as appropriate)--
• apply to the Magistrates' Court under substituted
section 171A; or
• waive the outstanding amount of the relevant
infringement fine under new section 171AD.
New section 250 provides for transitional arrangements for
applications by the Director under substituted section 171A(2)(a)
as in force immediately before the commencement day. It
provides that if an application under substituted section 171A(2)
has been made and has not been heard and determined, or partly
heard, by the Magistrates' Court before the commencement day,
then--
• the application is taken to be returned to the Director;
and
• the Director may take appropriate action in respect of
that application as if the application had been a request
made under new section 171AB.
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Division 2--Amendment of Infringements Act 2006
Clause 192 inserts new definitions in section 3(1) of the Infringements Act
2006. The new definitions are necessary because of the changes
made to the Infringements Act 2006 by clauses 193 and 194 of
the Bill.
The new definitions are for the terms non-fine related sentence
and relevant infringement fine. Both terms are defined to have
the same meaning as in the Fines Reform Act 2014--the term
non-fine related sentence is defined in section 3 of the Fines
Reform Act 2014 and the term relevant infringement fine is
defined in section 163 of the Fines Reform Act 2014.
Clause 193 amends section 32 of the Infringements Act 2006, which
provides for the expiation of infringement offences.
Subclause (1) inserts a new paragraph (c) in section 32(1),
providing for the circumstances in which section 32 operates.
The new section 32(1)(c) provides that section 32 applies where
an infringement notice is not withdrawn and the infringement
penalty and any reminder notice fee are waived by the Director
when the Director waives the outstanding amount of a relevant
infringement fine under new section 171AD of the Fines Reform
Act 2014.
Subclause (2) substitutes section 32(1A), which provides for the
expiation of infringement offences to which section 32 applies.
New section 32(1A) provides, in new section 32(1A)(b) that, in
addition to the existing circumstances in which an infringement
offence is expiated, the waiver of an outstanding amount of a
relevant infringement fine by the Director under new section
171AD of the Fines Reform Act 2014 means that the person on
whom the relevant infringement notice was served will have
expiated the offence by being taken to have served a term of
imprisonment in default of payment in accordance with new
section 171AE of the Fines Reform Act 2014. New section
32(1A) provides, further, that if the infringement notice involved
additional steps, those steps are not required to be complied with
for the offence to be expiated under section 32.
Clause 194 amends section 33 of the Infringements Act 2006, which
provides for the effect of expiation of an infringement offence
under section 32.
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Subclause (1) amends section 33(1) to exclude from the operation
of that provision any case in which a person has expiated an
offence under new section 32(1A)(b).
Subclause (2) inserts a new section 33(1A) which makes specific
provision for the effect of expiation of an infringement offence
under new section 32(1A)(b). New section 33(1A) provides that,
subject to the Infringements Act 2006 or any other Act, if a
person has expiated an offence under new section 32(1A)(b)--
• no further proceedings may be taken against the person
who is the subject of the relevant infringement fine in
respect of the offence; and
• no conviction is to be taken to have been recorded
against the person for the offence the subject of the
relevant infringement fine; and
• the offence in respect of which the person is serving or
has served a non-fine related sentence is not affected by
Division 5 of Part 2 of the Infringements Act 2006.
Subclause (3) inserts a new section 33(2A) after section 33(2).
New section 33(2A) provides that the deemed serving of a term
of imprisonment by a person in accordance with new section
171AE of the Fines Reform Act 2014 is not and must not be
taken to be--
• an admission of guilt in relation to the offence the
subject of the relevant infringement fine; or
• 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 does not in any way affect or
prejudice any such claim or proceeding.
Subclause (4) makes a consequential amendment to section 33(3)
of the Fines Reform Act 2014 to clarify that the deemed serving
of a term of imprisonment in accordance with new section
171AE of the Fines Reform Act 2014 must not be referred to in
any report provided to a court for the purpose of determining the
sentence for any offence.
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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
Clause 195 inserts new definitions in section 38 of the Interpretation of
Legislation Act 1984. It provides a definition for audio link and
audio visual link, both having the meaning given by Part IIA of
the Evidence (Miscellaneous Provisions) Act 1958.
Division 2--Consequential amendments of other Acts
Clause 196 makes a range of consequential amendments to the Children,
Youth and Families Act 2005 as a consequence of the insertion
of definitions of audio link and audio visual link in section 38 of
the Interpretation of Legislation Act 1984
Subclause (1) makes a consequential amendment to
section 490(1) of the Children, Youth and Families Act 2005 to
substitute "(by audio or audio visual link within the meaning of
Part IIA of the Evidence (Miscellaneous Provisions) Act 1958)"
with "(by audio link or audio visual link)".
Subclause (2) makes a consequential amendment to
section 530(5) of the Children, Youth and Families Act 2005 to
omit "within the meaning of Part IIA of the Evidence
(Miscellaneous Provisions) Act 1958".
Subclause (3) makes a consequential amendment to section 600H
of the Children, Youth and Families Act 2005 to omit "within
the meaning of Part IIA of the Evidence (Miscellaneous
Provisions) Act 1958" in the definition of oral pre-sentence
report.
Clause 197 repeals section 28(4C) of the Essential Services Commission
Act 2001 which defines audio link and audio visual link.
Section 28(4C) is unnecessary as both these terms are defined in
Part IIA of the Evidence (Miscellaneous Provisions) Act 1958,
and clause 195 of the Bill will insert definitions for audio link
and audio visual link into section 38 of the Interpretation of
Legislation Act 1984 to have the same meaning as in existing
Part IIA of the Evidence (Miscellaneous Provisions Act) 1958.
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This means that unless the contrary intention appears, the
definition in Interpretation of Legislation Act 1984 will apply.
Clause 198 repeals the definition of audio visual link in section 3(1) of the
Independent Broad-based Anti-corruption Commission Act
2011. As outlined above, this definition is unnecessary given
clause 195 of the amending Bill.
Clause 199 repeals the definitions of audio link and audio visual link in
section 3 of Parliamentary Committees Act 2003. As outlined
above, these definitions are unnecessary given clause 195 of the
amending Bill.
Clause 200 repeals section 148(7) of the Serious Offenders Act 2018 which
provides definitions for audio link and audio visual link.
As outlined above, these definitions are unnecessary given
clause 195 of the amending Bill.
Clause 201 makes consequential amendments to the Victoria Police
Act 2013.
Subclause (1) repeals section 158A(3) of the Victoria Police Act
2013 which provides that audio link and audio visual link have
the same meaning as in section 42C of the Evidence
(Miscellaneous Provisions) Act 1958.
Subclause (2) repeals section 222(4) of the Victoria Police Act
2013 which provides that audio link and audio visual link have
the same meaning as in section 42C of the Evidence
(Miscellaneous Provisions) Act 1958.
As outlined above, these provisions are unnecessary given
clause 195 of the amending Bill.
Part 24--Amendments extending certain provisions relating to
COVID-19 pandemic
Division 1--Corrections Act 1986
Clause 202 amends section 112V of the Corrections Act 1986 to substitute
"2021" with "2022" as the repeal date for Part 10B of that Act to
extend the operation of that Part in relation to managing the
COVID-19 pandemic.
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Division 2--Children, Youth and Families Act 2005
Clause 203 amends section 600ZB.
Subclause (1) amends section 600ZB(1) of the Children, Youth
and Families Act 2005 to substitute "subject to subsection (2)"
with "subject to subsections (2) and (2A)" as a consequence of
the amendments made by subclause (2).
Subclause (2) substitutes section 600ZB(2) of the Children,
Youth and Families Act 2005 to include new section 600ZB(2)
and (2A). This removes references to Division 5 from section
600ZB(2) and adds section 600ZB(2A) to section 600ZB to deal
separately with Division 5. This split of the existing provision
into 2 subsections is to accommodate the changed repeal dates of
certain provisions relating to the COVID-19 pandemic measures.
Section 600ZB(2A) provides further clarity as to how the
principles in Part 1.2 are applicable to the various procedural
measures in Division 5 of Part 8.5A. The addition of section
600ZB(2A) provides assurance that Part 1.2 principles apply to
various procedural measures under Division 5 of Part 8.5A--
namely application of principles that pertain to the wellbeing and
best interests of a child and or young person.
Both sections 600ZB(2) and 600ZB(2A) provide that the
application of principles in Part 1.2 are subject to exceptions to
the extent that it relates to--
• Chapter 5; or
• Chapter 7 (in relation to a matter under Chapter 5).
Clause 204 substitutes section 600ZC of the Children, Youth and Families
Act 2005 to include sections 600ZC(1), 600ZC(2) and 600ZC(3).
These new subsections provide new repeal dates for specific
Divisions and sections of Part 8.5A of the Children, Youth and
Families Act 2005.
Section 600ZC(2) provides Division 3, Division 4, and sections
600S, 600T, 600ZA and 600ZB(2A) of Part 8.5A of the
Children, Youth and Families Act 2005 will be repealed on
26 April 2022. This effectively extends these provisions under
Part 8.5A of the Children, Youth and Families Act 2005 for
one calendar year from its original repeal date of 26 April 2021
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as inserted by the COVID-19 Omnibus (Emergency Measures)
Act 2020.
Division 3 allows pre-sentence reports to be given orally and
provides that these may be provided to the Court or appellate
court when a set of circumstances are met. This reduces the need
for physical court attendance in light of COVID-19. Division 4
contains a power of isolation for the detection, prevention or
mitigation of COVID-19 or other infectious diseases in remand
centres, youth residential centres and youth justice centres.
A new repeal date of 26 April 2022 for Division 3 and Division 4
of Part 8.5A of the Children, Youth and Families Act 2005
facilitates compliance with public health advice as part of the
response to the COVID-19 pandemic and safeguards the need to
act promptly in response to a potential outbreak. This ensures
these measures inserted by the COVID-19 Omnibus
(Emergency Measures) Act 2020 continue until 26 April 2022.
Sections 600S, 600T, 600ZA and newly added 600ZB(2A)
respectively pertain to matters of youth justice unit attendance,
reporting, requirements of bail justices and the application of
Part 1.2 principles. These sections will now be repealed on
26 April 2022. Extending these particular procedural measures
under Division 5 of Part 8.5A of the Children, Youth and
Families Act 2005, facilitates compliance with social distancing
and public health advice as part of the response to the COVID-19
pandemic through incorporating use of audio-visual link. This
ensures the measures inserted by the COVID-19 Omnibus
(Emergency Measures) Act 2020, are maintained until 26 April
2022.
Section 600ZC(3) provides that the remaining provisions of
Part 8.5A of the Children, Youth and Families Act 2005--
Division 1, Division 4A, section 600ZB (excluding newly added
section 600ZB(2A) which is repealed on 26 April 2022) and
Division 6 are repealed on 26 April 2023.
This effectively extends these provisions under Part 8.5A of the
Children, Youth and Families Act 2005 for 2 calendar years
from its original repeal date of 26 April 2021 as inserted by the
COVID-19 Omnibus (Emergency Measures) Act 2020.
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Division 1 of Part 8.5A sets out the purpose and effect of
Part 8.5A of the Children, Youth and Families Act 2005.
Extending the repeal date of this provision to 26 April 2023
allows Part 8.5A to continue to temporarily change the operation
of the Children, Youth and Families Act 2005, whilst the
response to the COVID-19 pandemic continues.
Division 6 of Part 8.5A of the Children, Youth and Families
Act 2005 provides Part 8.5A's repeal dates. Extending these
provisions to 26 April 2023 allows Part 8.5A to continue to
temporarily change the operation of the Children, Youth and
Families Act 2005, whilst the response to the COVID-19
pandemic continues.
The temporary measures in sections 600OA and 600ZB(2),
inserted by the COVID-19 Omnibus (Emergency Measures)
and Other Acts Amendment Act 2020, will continue until
26 April 2023. This allows the Children's Court to continue to
exercise a discretion to make or extend family reunification
orders by a period of 6 months beyond the period ordinarily
permitted if satisfied that the progress of a parent of the child
towards reunification has been impeded as a result of the
COVID-19 pandemic and it is in the best interests of the child to
extend the order by that period. It also ensures that the relevant
principles continue to apply to these decisions.
Division 3--Local Government Act 2020
Clause 205 substitutes the end date in the definition of prescribed period in
section 393 of the Local Government Act 2020. The effect of
this amendment is to extend the operation of Part 12 of the Local
Government Act 2020 to 26 April 2022. This will enable the
following meetings to continue to be conducted by means of
electronic communication--
• a Council meeting;
• a joint meeting of Councils;
• a meeting of a delegated committee or joint delegated
committee;
• a meeting of a governing body of a regional library;
• a meeting of a special committee.
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Clause 206 amends section 396 of the Local Government Act 2020 to
substitute "27 April 2021" with "27 April 2022" as the repeal
date for Part 12 of that Act.
Division 4--Occupational Health and Safety Act 2004
Clause 207 amends section 192 of the Occupational Health and Safety
Act 2004 to substitute "26 April" with "16 December." This
temporarily extends the operation of Part 16 of the Occupational
Health and Safety Act 2004 to 16 December 2021, to ensure
that a breach of the Chief Health Officer's COVID-19 public
health direction constitutes an activity that involves an immediate
risk to the health or safety of a person.
Part 16 clarifies the circumstances in which an inspector can
issue a prohibition notice under section 112 or give directions
under section 120 of the Occupational Health and Safety
Act 2004.
Division 5--Parliamentary Committees Act 2003
Clause 208 amends section 55 of the Parliamentary Committees Act 2003
to extend the operation of Part 7 of that Act until 26 April 2022.
Part 7 of the Parliamentary Committees Act 2003 makes
temporary amendments to that Act to provide flexibility to
members of Joint Investigatory Committees to attend and
participate in meetings by audio or audio-visual link.
Part 25--Repeal of this Act
Clause 209 provides for the automatic repeal of this amending Act on
23 February 2023. The repeal of this Act does not affect in any
way the continuing operation of the amendments made by this
Act (see section 15(1) of the Interpretation of Legislation
Act 1984).
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