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Justice Legislation Amendment
(Criminal Procedure Disclosure and
Other Matters) Bill 2021
Introduction Print
EXPLANATORY MEMORANDUM
General
The Justice Legislation Amendment (Criminal Procedure Disclosure and
Other Matters) Bill 2021 amends the Criminal Procedure Act 2009 to
implement recommendations made by the Royal Commission into the
Management of Police Informants (the Royal Commission) regarding the
disclosure obligations of informants in criminal proceedings. The Bill also
amends the Magistrates' Court Act 1989, Judicial Entitlements
Act 2015, County Court Act 1958, Supreme Court Act 1986, and
Constitution Act 1975 to provide for the Chief Magistrate to be a dual
commission holder with the Supreme Court. The Bill further amends the
Criminal Procedure Act 2009 and various other Acts to broaden sentence
indications in the higher courts, enable electronic applications for personal
safety intervention orders, validate electronic applications for personal safety
intervention orders, enable the Children's Court of Victoria to make rules in
relation to the exercise of family law jurisdiction, and to allow evidence to be
given remotely in proceedings relating to family violence.
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill, which are to amend the
Criminal Procedure Act 2009 to--
• further provide for the disclosure obligations of
informants;
591277 1 BILL LA INTRODUCTION 26/10/2021
• require informants in certain proceedings to identify
relevant information, documents or things that are not
contained in the full brief or hand-up brief and the
explanation for why they have been excluded;
• provide for procedural aspects of applications for orders
concerning non-disclosure; and
• clarify that evidence that relates to the credibility of a
prosecution witness in a criminal proceeding is relevant
to that proceeding and must be disclosed.
The second purpose is to amend the Magistrates' Court
Act 1989, the Supreme Court Act 1986 and the Constitution
Act 1975 and make consequential amendments to other Acts to
provide for a person to hold a dual commission as the Chief
Magistrate and a Supreme Court judge.
The third purpose is to amend the Criminal Procedure Act 2009
and make consequential amendments to the Victims' Charter
Act 2006 to broaden sentence indications in the higher courts.
The fourth purpose is to amend the Personal Safety
Intervention Orders Act 2010 to provide for the making of
applications for personal safety intervention orders by a
declaration of truth.
The fifth purpose is to amend the Children, Youth and Families
Act 2005 to further provide for the jurisdiction and Rules of the
Family Division of The Children's Court of Victoria.
The sixth purpose is to amend the Criminal Procedure Act 2009
and the Family Violence Protection Act 2008 to allow evidence
to be given remotely in proceedings relating family violence.
Clause 2 is the commencement provision.
Subclause (1) provides that the Bill, other than Division 2 of
Part 2 and Part 3, will come into operation on the day after the
day on which it receives the Royal Assent.
Subclause (2) provides that the remaining provisions of the Bill
will come into operation on a day or days to be proclaimed,
subject to subclause (3).
Subclause (3) provides that if a provision in subclause (2) does
not come into operation before 1 October 2022, it comes into
operation on that day.
2
Part 2--Amendment of Criminal Procedure Act 2009
Part 2 consists of 5 Divisions that amend the Criminal Procedure Act 2009.
Division 1 clarifies an informant's disclosure obligation to the Director of
Public Prosecutions (DPP) in a criminal proceeding and provides the
timeframe for complying with this obligation. The Division also prescribes
the obligation that applies if any otherwise disclosable information, document
or thing is subject to a claim of privilege or immunity, or to a statutory
immunity, prohibition or restriction on disclosure.
Division 2 introduces an obligation on informants to complete a disclosure
certificate describing relevant material withheld from disclosure and the
reason why it is withheld.
Division 3 introduces a statutory process for applying to the court for an
order, declaration or decision that excuses or prevents the disclosure of
information relevant to the alleged offence.
Division 4 clarifies the disclosure obligation of informants in relation to
information that is relevant to the credibility of a witness for the prosecution.
Division 5 inserts a power of the Governor in Council to make regulations
relating to the form of the new disclosure certificate. The Division also
inserts transitional provisions.
Division 1--Disclosure obligations of informants
Clause 3 inserts a definition of the term disclosure certificate in section 3
of the Criminal Procedure Act 2009. The term is defined as
meaning a certificate described in new section 41A or new
section 110A of the Criminal Procedure Act 2009 (as the case
requires).
Clause 4 inserts new section 415A. This provision implements Royal
Commission recommendation 62, for the introduction of a
legislative requirement for the informant in a proceeding to--
• provide the DPP with all material obtained during an
investigation that may be relevant to either the
prosecution or the accused person's case, except for
material that is subject to a claim of privilege, public
interest immunity (PII), a legislative immunity or
publication restriction;
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• notify the DPP of the existence and nature of any
material subject to a claim of privilege, PII, a legislative
immunity or publication restriction; and
• where requested, provide the DPP with any material
subject to a claim of privilege, PII, legislative immunity
or publication restriction.
In its Final Report, the Royal Commission noted the existing
disclosure obligations of police to prosecuting authorities and
relevant policy. For example, investigating agencies must
provide all relevant information to prosecutors to allow them to
fulfill their disclosure obligation to an accused (Final Report,
Volume IV, p. 7). Where material is exempted from being
provided because it comes under a statutory immunity or
disclosure restriction, or has been ruled to be subject to PII or a
form of privilege, police must disclose the existence of the
withheld material to the prosecutor and defence (see Policy of
the Director of Public Prosecutions for Victoria as cited in
Director of Public Prosecutions (Vic) v Westbrook [2020]
VSC 290). The Policy requires an informant to inform the
DPP of the nature of the withheld material and the basis of the
claim (at [18]). The Policy also provides that an informant may
give material subject to a PII claim to a prosecutor upon request
(at [19]). Notwithstanding these existing obligations and policy,
the Royal Commission found that the processes for disclosing
relevant material to prosecuting authorities should be
strengthened (Final Report, Volume IV, p. 5).
While new section 415A relates to an informant's obligation of
disclosure to the DPP, a note to the provision highlights the
prosecution's general obligation of disclosure to an accused under
section 416 of the Criminal Procedure Act 2009.
New section 415A
Subclause (1) states that new section 415A applies to an
informant in a proceeding conducted by the DPP. Royal
Commission recommendation 62 related particularly to
Victoria Police officers because of the confined scope of the
Commission's inquiry, however, new section 415A applies to
any person who is an informant for the purposes of section 3
of the Criminal Procedure Act 2009.
The term DPP is also defined in section 3 of the Criminal
Procedure Act 2009.
4
Subclause (2) requires an informant to provide to the DPP any
information, document or thing, that is in the possession of or is
known by the informant, or the law enforcement agency
represented by the informant, that is relevant to the alleged
offence.
This subclause exempts an informant from this obligation if the
information, document or thing is the subject of--
• a claim of privilege or public interest immunity;
• immunity conferred by statute; or
• a prohibition or restriction provided by statute that has
the effect of precluding disclosure to the DPP.
New section 415A(2) is consistent with the common law
exception to the duty of disclosure if material or information is
subject to a public interest immunity or another form of privilege
or immunity (see for example Sankey v Whitlam (1978) 142
CLR 1; Pyneboard Pty Ltd v Trade Practices Commission (1983)
152 CLR 328).
New section 415A(3) outlines the procedure if any relevant
information, document or thing that is in the possession of, or is
known by, the informant or the law enforcement agency
represented by the informant, is the subject of--
• a claim of privilege or public interest immunity;
• immunity conferred by statute; or
• a prohibition or restriction provided by statute that has
the effect of precluding disclosure to the DPP.
New section 415A(3) provides that, in those circumstances, the
informant must notify the DPP of the existence and nature of the
information, document or thing and the nature of the privilege,
immunity, prohibition, or restriction to which it is subject. This
requirement complements the Policy of the Director of Public
Prosecutions for Victoria (at [18]) and the duty of disclosure
owed to an accused under the existing provisions of the Criminal
Procedure Act 2009.
New section 415A(3) does not prescribe the particulars of the
notification that the informant must give to the DPP, which will
necessarily vary depending upon the specific information,
document, or thing, and the privilege, immunity, prohibition, or
restriction to which it is subject. The section provides sufficient
flexibility for the informant to describe the information,
document, or thing in a way that permits the DPP to determine
5
how they will conduct the proceeding in a manner consistent with
their duties and the rights of the accused, without providing the
contents of the withheld material. The DPP will be able to make
informed decisions, such as whether to receive or inspect the
withheld material under new section 415A(5), or to seek a stay or
withdraw the proceeding, having regard to the DPP's obligation
to conduct the prosecution in a manner that is fair to the accused.
New section 415A(4) requires the informant to comply with new
sections 415A(2) and (3) as soon as practicable after--
• the DPP has assumed conduct of the relevant
proceeding; and
• any additional information, document or thing that
is relevant to the alleged offence comes into the
possession, or comes to the notice, of the informant or
the law enforcement agency the informant represents,
after the informant has first complied with new
sections 415A(2) and (3).
This requirement recognises the significant impact that withheld
information or material can have on a prosecution. Once aware
of withheld information or material, the DPP may be required
to abandon the prosecution to uphold the interests of justice
(Alister v The Queen (1984) 154 CLR 404 pp. 431; 457).
The provision also ensures that informants and the prosecution
continue to have regard to their ongoing duty of disclosure
throughout the proceedings as further information is identified
and issues in the proceeding evolve. The provision makes clear
that an informant's disclosure obligations are not confined to a
single point of time, and do not conclude upon initial disclosure
to the DPP or service of a brief of evidence.
New section 415A(5) introduces a statutory requirement for
the informant to provide to the DPP, on the DPP's request,
any information, document or thing referred to in new
section 415A(3). This provision is consistent with the Policy
of the Director of Public Prosecutions for Victoria (at [19]).
New section 415A(6) provides that an informant may satisfy their
disclosure obligations for the purposes of new sections 415A(2)
and (5), by providing a copy of any document, a clear photograph
of any thing, or a clear copy of a photograph. The informant
must make such a document or thing available for inspection by
the DPP if so requested.
6
This provision requires the informant to allow the DPP to inspect
any information, document or thing, that is in the possession of,
or known by, the informant or the law enforcement agency the
informant represents, that is relevant to the alleged offence.
New section 415A(7) requires the informant to comply with new
sections 415A(5) or (6)(b) as soon as practicable after a request
from the DPP--that is, the informant must provide the
information, documents or things to the DPP or permit inspection
of the information, documents or things as soon as practicable
after a request to do so. This requirement is intended to minimise
any delays to disclosure or to the proceeding.
New section 415A(8) provides that the operation of a provision
made by or under any other Act, including an Act of the
Commonwealth, that prohibits or restricts, or that authorises a
court or tribunal to prohibit or restrict, the disclosure of
information for or in connection with any proceeding is not
limited or otherwise affected by new section 415A.
This subclause ensures that new section 415A does not interfere
with non-disclosure provisions that an informant may be subject
to under other legislation. For example, an informant must
continue to comply with the requirement in section 68 of the
Major Crime (Investigative Powers) Act 2004 (Vic) that
certain persons be joined as a party before certain records can be
provided in a proceeding.
New section 415A(9) clarifies that, where a prohibition or
restriction on disclosure of a kind referred to in new section
415A(8) applies to any information, document or thing over
which new sections 415A(3) and (5) also apply, the informant
must still comply with new sections 415A(3) and (5) to the
extent permitted.
The provision therefore requires the informant to describe to the
DPP the information, document or thing and the nature of the
claim to which it is subject, or to provide it to the DPP on the
DPP's request, to the extent permitted by a prohibition or
restriction of a kind in new section 415A(8). For example, the
prohibition or restriction may permit the informant to advise the
DPP in general terms that certain information has been withheld
due to a statutory restriction. In other circumstances, the
informant may be able to partially provide a document to the
DPP, on its request, by redacting a portion of the document's
contents, or providing extracts of information contained in the
document.
7
Division 2--Disclosure certificates
Clause 5 inserts new section 41A of the Criminal Procedure Act 2009.
New section 41A introduces a requirement for the relevant
officer in a summary proceeding in which a full brief is served to
complete a disclosure certificate. The full brief means a brief
described in section 41 of the Criminal Procedure Act 2009,
which sets out (among other matters) the evidence the
prosecution intends to rely on at the hearing of the charge.
New section 41A implements Royal Commission
recommendation 63, for Victoria Police to complete disclosure
certificates describing relevant material withheld from a brief of
evidence that is subject to a claim of privilege, public interest
immunity, a legislative immunity or publication restriction.
The Royal Commission also recommended that the disclosure
certificate describe the nature of the privilege or immunity claim
or publication restriction for each withheld item.
This recommendation was made in response to evidence before
the Royal Commission about the non-compliance of some
Victoria Police officers with their obligation to disclose relevant
material. The recommendation sought to "remind Victoria Police
office of their disclosure obligations and encourage them to
provide information to prosecuting authorities clearly and
transparently" (Final Report, Volume IV, p. 5).
New section 41A(1) provides that in a proceeding in which a
full brief is served the relevant officer must complete a
disclosure certificate in the form prescribed by regulations.
Royal Commission recommendation 63 related particularly to
Victoria Police officers because of the confined scope of the
Commission's inquiry, however, new section 41A applies to
any person who is an relevant officer as defined in new
section 41A(4). Under new section 41A(1)(a), the disclosure
certificate must describe any relevant information, document or
thing that is not in the full brief because it is the subject of--
• a claim of privilege or public interest immunity;
• immunity conferred by statute; or
• a prohibition or restriction provided by statute that has
the effect of precluding disclosure to the prosecution or
the defence.
8
New section 41A(1)(b) requires that the certificate describe the
nature of the privilege, immunity, prohibition or restriction that
the information, document or thing is subject to. Under new
section 41A(1)(c), it must also describe any other matter
prescribed by the regulations.
The disclosure obligation in new section 41A(1) is expressly
stated to be subject to any order of a court. An informant will
only be exempted from complying with the obligation if they
have first obtained a court order to that effect. For example, an
informant may withhold relevant information from the full brief
based on a public interest immunity claim. However, only a
court order can excuse the informant from the obligation to
describe that withheld information in a disclosure certificate, in
accordance with new section 41A.
The obligation in new section 41A(1) operates in addition to
the disclosure requirement in section 41(1)(f) of the Criminal
Procedure Act 2009. It facilitates greater compliance with
an informant's existing disclosure obligations to the court and
the accused. It also prescribes the mechanism by which an
informant can comply with their obligation to the DPP under
new section 415A(3) in relevant cases.
The provisions for disclosure certificates in summary stream
proceedings under section 41A differ in some ways from those
for indictable stream proceedings under section 110A.
New section 41A(2) outlines the requirement for filing and
serving the disclosure certificate. New section 41A(2)(a)
requires an informant to file a copy of the disclosure certificate
with the registrar within 7 days after serving the full brief on the
accused. In cases where the DPP is conducting the proceeding,
new section 41A(2)(b) requires the informant to forward a copy
of the disclosure certificate to the DPP within 7 days after they
have served the full brief on the accused. New section 41A(2)(c)
provides that the informant must also serve a copy of the
disclosure certificate on the accused at the same time as serving
them with the full brief.
New section 41A(3) provides that new section 41A does not limit
or otherwise affect--
• the court's power to hear and determine an application
with respect to the disclosure of information, documents
or things;
9
• the court's power to make any order or other decision
that it has power to make with respect to the disclosure
of information, documents or things; or
• the operation of a provision made by or under any other
Act, including a Commonwealth Act, that prohibits or
restricts, or that authorises a court or tribunal to prohibit
or restrict, the disclosure of information for or in
connection with any proceeding.
New section 41A(4) defines relevant officer for the purposes of
new section 41A as--
• the informant; or
• the law enforcement officer who prepared the full brief,
if the informant did not investigate the offence that is
the subject of the proceeding.
A note to new section 41A highlights the prosecution's general
obligation of disclosure under section 416 of the Criminal
Procedure Act 2009.
Clause 6 inserts new section 110A of the Criminal Procedure Act 2009.
New section 110A introduces a requirement for the relevant
officer in an indictable proceeding in which a hand-up brief is
served to complete a disclosure certificate. A hand-up brief is
the brief described in section 110 of the Criminal Procedure
Act 2009, which sets out (among other matters) the evidence the
prosecution intends to rely on in the committal proceeding for an
indictable offence.
New section 110A implements Royal Commission
recommendation 63, for Victoria Police to complete disclosure
certificates describing relevant material withheld from a brief of
evidence that is subject to a claim of privilege, public interest
immunity, a legislative immunity or publication restriction.
The Royal Commission also recommended that the disclosure
certificate describe the nature of the privilege or immunity claim
or publication restriction for each withheld item.
This recommendation was made in response to evidence before
the Royal Commission about non-compliance by some Victoria
Police officers with their obligation to disclose relevant material.
The recommendation sought to "remind Victoria Police office of
their disclosure obligations and encourage them to provide
10
information to prosecuting authorities clearly and transparently"
(Final Report, Volume IV, p. 5).
New section 110A(1) provides that, in a proceeding in which a
hand-up brief is served, the relevant officer must complete a
disclosure certificate in the form prescribed by regulations,
subject to any order of a court. Royal Commission
recommendation 63 related particularly to Victoria Police
officers because of the confined scope of the Commission's
inquiry, however, new section 110A applies to any person who is
a relevant officer as defined in new section 110A(4). Under new
section 110A(1)(a), the disclosure certificate must describe any
relevant information, document or thing that is not in the hand-up
brief because it is the subject of--
• a claim of privilege or public interest immunity; or
• immunity conferred by statute; or
• a prohibition or restriction provided by statute that has
the effect of precluding disclosure to the prosecution or
the defence.
New section 110A(1)(b) requires that the certificate describe the
nature of the privilege, immunity, prohibition or restriction that
the information, document or thing is subject to. Under new
section 110A(1)(c), the certificate must also describe any other
matter prescribed by the regulations. The obligation introduced
by new section 110A(1) is in addition to the existing disclosure
requirements in section 110 of the Criminal Procedure
Act 2009.
New section 110A(1) therefore facilitates greater compliance
with existing disclosure obligations owed by an informant to the
court and the accused. It also prescribes the mechanism by
which an informant can comply with their disclosure obligation
under new section 415A(3).
New section 110A(2) outlines the requirement for filing and
serving the disclosure certificate in indictable proceedings.
New section 110A(2)(a) requires an informant to file a copy of
the disclosure certificate with the registrar within 7 days after
serving the hand-up brief on the accused. This requirement
aligns with the timeframe for filing the hand-up brief with the
registrar under section 109 of the Criminal Procedure Act 2009.
In cases where the DPP is conducting the proceeding, the
11
informant is required under new section 110A(2)(b) to forward
a copy of the disclosure certificate to the DPP within 7 days
after they have served the hand-up brief on the accused. This
requirement aligns with the timeframe for forwarding a copy of
the hand-up brief to the DPP under section 109 of the Criminal
Procedure Act 2009. New section 110A(2)(c) provides that the
informant must also serve a copy of the disclosure certificate on
the accused at the same time as serving the hand-up brief on the
accused. Section 108 of the Criminal Procedure Act 2009
outlines the timeframe for serving the hand-up brief on the
accused.
New section 110A(3) provides that, in completing a disclosure
certificate, the relevant officer is not required to describe any
information, document or thing, or the nature of the privilege,
immunity, prohibition or restriction to which that information
document or thing is subject, in a way that would prejudice an
existing or pending application for orders affecting disclosure.
The section refers to the 2 methods by which an application
for non-disclosure could be made--
• a claim of public interest immunity made to the
Supreme Court in its inherent jurisdiction to determine
claims of public interest immunity that has commenced
or that the informant knows will be commenced; or
• an application for an order under new section 416A that
has commenced or that the informant knows will be
commenced.
The Supreme Court has unlimited jurisdiction in Victoria,
including to determine claims of public interest immunity (AB v
CD & EF [2017] VSCA 338 at [211]; Constitution Act 1975,
section 85(1)). Where an issue of public interest immunity arises
in a criminal proceeding, a person must apply to the court hearing
that proceeding or to the Supreme Court to determine the issue.
Subsection (3) makes clear that subsection (1) does not conflict
with the position at common law that issues of public interest
immunity must be determined by a court (AB & EF v CD [2017]
VSC 350 at [88]). New section 110A(3) clarifies that this
position continues to apply whether the pending application is
made to the court hearing the proceeding or to the Supreme
Court, notwithstanding the obligations in new sections 110A(1)
and (2).
12
It will not be sufficient for the purposes of new section 110A(3)
for an informant to merely believe that a claim of public interest
immunity or application for a non-disclosure order may be made.
New section 110A(3) makes clear that, while the informant is not
required to provide a description in a way that would prejudice
a public interest immunity claim or application under new
section 416A, they will be required to provide some form of
description. This new section only relates to indictable
proceedings, as different disclosure obligations apply for
summary proceedings under existing section 41 of the Criminal
Procedure Act 2009.
Any information withheld from the descriptions given in the
disclosure certificate in accordance with new section 110A(3)
must, subject to any order of a court, be provided in the case
direction notice in accordance with new section 119(fa). This
process is not replicated for disclosure certificates in summary
proceedings under new section 41A, given differences between
summary and indictable proceedings. The case direction notice
relates only to indictable proceedings, and different disclosure
obligations apply under existing section 41 of the Criminal
Procedure Act 2009.
New section 110A(4) provides that new section 110A does not
limit or otherwise affect--
• the court's power to hear and determine an application
with respect to the disclosure of information, documents
or things;
• the court's power to make any order or other decision
that it has power to make with respect to the disclosure
of information, documents or things; or
• the operation of a provision made by or under any other
Act, including a Commonwealth Act, that prohibits or
restricts, or that authorises a court or tribunal to prohibit
or restrict, the disclosure of information for or in
connection with any proceeding.
New section 110A(5) clarifies that the relevant officer and
informant must comply with their disclosure obligations under
new sections 110A(1) and (2), notwithstanding any pending
application contemplated by new section 110A(3). That is,
unless the court otherwise orders, the relevant officer and
informant must complete the disclosure certificate describing the
13
material and the nature of any privilege, immunity, prohibition or
restriction to which it is subject, and file and serve the certificate.
This new subsection, together with new section 110A(1), reflects
that the prosecution cannot be exempted from their obligation to
identify relevant material and any objections to disclosing it to
the accused on the basis of a claim of privilege or public interest
immunity if the court has not made an order to that effect.
Therefore, the relevant officer cannot fail to complete, and the
informant cannot fail to file and serve a disclosure certificate
without first obtaining an order of the court. For example, an
informant may withhold relevant information from the hand-up
brief based on a public interest immunity claim. However, they
are not excused from their obligation to describe that withheld
information in a disclosure certificate unless the court has made
an order to that effect. In accordance with subsection (3), the
informant may describe the material and the public interest
immunity claim in the certificate in a way that does not prejudice
the application, but is not permitted to omit the information and
the nature of the objection to production entirely.
New section 110A(6) defines relevant officer for the purposes of
new section 110A as--
• the informant; or
• the law enforcement officer who prepared the full brief,
if the informant did not investigate the offence that is
the subject of the proceeding.
A note to new section 110A highlights the prosecution's general
obligation of disclosure under section 416 of the Criminal
Procedure Act 2009.
Clause 7 inserts new section 119(fa) in the Criminal Procedure
Act 2009. This paragraph inserts a mechanism for further
disclosure to occur where, under new section 110A(3), the
relevant officer did not describe any information, or a document
or thing, or the nature of the privilege, immunity, prohibition or
restriction to which that information, document or thing is
subject, in a disclosure certificate (including any detail that was
omitted from the certificate in accordance with subsection (3)).
14
New section 119(fa) provides that, subject to any order of a court,
the prosecution must describe in the case direction notice--
• any information, document or thing, including any
detail relating to the information, document or thing,
that was not described in the certificate;
• the nature of the privilege, immunity, prohibition or
restriction to which that information, document or thing
is subject.
This provision ensures that by the time of the committal mention
hearing, the informant has complied with their disclosure
obligations, subject to any order of the court.
Division 3--Applications for non-disclosure
Clause 8 inserts a definition of non-disclosure order in the Criminal
Procedure Act 2009, meaning an order of a kind described in
new section 416A(3).
Clause 9 inserts new sections 416A, 416B and 416C in the Criminal
Procedure Act 2009.
New section 416A introduces a statutory mechanism for parties
to a proceeding, or other prescribed persons, to apply for a
non-disclosure order over information relevant to the alleged
offence. The provision relates to Royal Commission
recommendation 67, which required--
• a review of the adequacy of existing court powers to
make non-disclosure orders; and
• consideration of whether a legislative power should
be introduced to empower the prosecution to initiate
ex parte public interest immunity claims.
The review found that there was a lack of clarity as to how a
person can make a proactive application to a court for a
non-disclosure order, instead of awaiting a call for disclosure or
summons and then asserting an objection to disclosure. It found
that introducing a statutory mechanism to allow an interested
person to apply to the court proactively for a non-disclosure order
was required. However, the review did not recommend any
substantive changes to the law of disclosure or public interest
immunity.
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New section 416A creates a new procedural mechanism for a
person to bring an application to a court for a non-disclosure
order. It does not limit any existing power of a court, or change
any test to be applied, in hearing or determining an application
for a non-disclosure order.
New section 416A(1) provides that, at any stage in a proceeding
under the Criminal Procedure Act 2009, the following persons
may apply for a non-disclosure order--
• a party to the proceeding;
• a law enforcement officer or law enforcement agency
that is in possession of, or knows of, any information,
document or thing relevant to the alleged offence;
• a law enforcement officer or law enforcement agency
that is prohibited or restricted by statute from disclosing
any information, document or thing relevant to the
alleged offence; or
• is a person with a direct or special interest in the making
of any order, declaration or decision under new
section 416A(3).
Although recommendation 67 related particularly to the power of
Victoria Police and the DPP to make a non-disclosure
application, new section 416A(1) allows other persons with
information that is subject to a non-disclosure provision to make
such an application. The provision also provides standing to a
person with a 'direct or special interest' in the making of the
order, which adopts the common law "special interest" test in
deciding whether someone has standing from cases such as
Bateman's Bay Local Aboriginal Land Council v Aboriginal
Community Benefit Fund Pty Ltd (1998) 194 CLR 247.
New section 416A(2) states that, in exceptional cases, an
application for a non-disclosure order may be made without
giving notice to the accused. This provision is consistent with
the common law position that, in "exceptional" or "highly
exceptional" cases, public interest immunity claims may be dealt
with ex parte without giving notice to the defence (R v Davis
[1993] 1 WLR 613 at 617; AB v CD & EF [2017] VSCA 338
at [65]). The case law refers to both "exceptional" and
"highly exceptional' cases, but these terms are applied similarly
and the cases rest on their facts. The requirement for applications
16
to be made without giving notice to the accused only in
"exceptional cases" will make clear that such applications should
not be made routinely.
A note to the subsection provides an example of where cases may
be exceptional for the purposes of new section 416A(2).
New section 416A(2) does not alter any existing test or power of
a court to hear and determine a claim without notice to an
accused, or to make any order that notice be given to any person
with an interest in the application, including the accused.
New section 416A(3) provides that, on an application under new
section 416A(1), the court may make any order, declaration or
decision it has the power to make that has the effect of excusing
or preventing the disclosure of information relevant to the alleged
offence.
An order made under this provision is defined as a
non-disclosure order in clause 8 of the Bill, which inserts that
definition in section 3 of the Criminal Procedure Act 2009.
New section 416A(4) provides that new section 416A does not--
• limit the court's power to make any order or other
decision that it has power to make with respect to a law
enforcement officer or law enforcement agency that is
in possession of, or knows of, any information,
document or thing relevant to the alleged offence; or
• limit or otherwise affect the operation of a provision
made by or under any other Act, including a
Commonwealth Act, that prohibits or restricts, or that
authorises a court or tribunal to prohibit or restrict, the
disclosure of information for or in connection with any
proceeding.
New section 416A(5) clarifies that an order under section 416A
does not affect or limit the prosecution's duty of disclosure under
the Criminal Procedure Act 2009 or any other law--
• to disclose any information, document or thing that--
• comes into the prosecution's possession or comes
to the prosecution's notice after an application
under new section 416A is made; or
17
• becomes relevant to an issue in the proceeding
that arose after an application under new
section 416A is made; and
• that is relevant to the application, or to review of an
order, made under new section 416A.
A note to the provision highlights the prosecution's general
obligation of disclosure under section 416 of the Criminal
Procedure Act 2009.
New section 416A(5) makes clear that the making of a
non-disclosure order does not discharge the prosecution's
continuing obligation of disclosure. Particularly in circumstances
where a non-disclosure order is made ex parte or without notice
to an accused, or made by a judge or court other than the judge
currently hearing a matter, the prosecution must continue to
consider whether new issues or information in a proceeding
require a non-disclosure order to be reviewed. In those
circumstances, the prosecution's continuing obligation of
disclosure will require it to notify the court and parties as
appropriate of any further information that needs to be disclosed,
including where that information is relevant to the review of a
non-disclosure order.
New section 416B ensures that a non-disclosure order made
during a committal proceeding does not bind a trial court or a
court that hears and determines an appeal from the proceeding.
It also provides that a non-disclosure order made by a trial court
does not bind a court that hears and determines an appeal from
the proceeding. This provision recognises that new information
may arise, or the issues in the proceeding may change, over time
and result in the information, document or thing over which the
order had been made needing to be disclosed.
For example, fresh evidence leading to an appeal or a petition for
mercy may, when considered in conjunction with information
subject to a non-disclosure order, increase the probative value of
the information subject to the order and make it appropriate to
revoke the order.
New section 416C permits a court to review a non-disclosure
order, including its own non-disclosure order either on the court's
own motion or on the application of a person who may apply for
a non-disclosure order under new section 416A(1). On review,
the court may confirm, vary or revoke the non-disclosure order.
18
Like new section 416B, this provision has been inserted in
recognition that new information may arise, or the issues in the
proceeding may change, such that the court is required to review
an order. The provision is consistent with the continuing
obligation of disclosure under the common law and the Criminal
Procedure Act 2009, which requires the prosecution to disclose
relevant material to the accused and the court as it becomes
known.
Division 4--Information relating to the credibility of witnesses for
the prosecution
Clause 10 inserts new section 41(1)(e)(viii) in the Criminal Procedure
Act 2009. This provision requires that a full brief contain a copy
of any information, document or thing that is relevant to the
credibility of a witness for the prosecution, subject to the
prohibition on disclosure of confidential communications in
section 32C of the Evidence (Miscellaneous Provisions)
Act 1958.
An example at the foot of this clause provides examples of
evidence that might be relevant to the credibility of a prosecution
witness. The examples provided are not exhaustive, and other
types of information may also be relevant to the credit of a
witness. The examples may also not be relevant in all cases, and
are not required to be disclosed where they are not relevant.
New section 41(1)(e)(viii) implements Royal Commission
recommendation 66, which was intended to provide greater
clarity to informants about their duty to disclose relevant
evidence relating to the credibility of a prosecution witness.
The provision does not affect an informant's ability to object to
disclosing a witness' previous conviction under section 45(3) of
the Criminal Procedure Act 2009, if the previous conviction is
not relevant to the proceeding.
New section 41(1)(e)(viii) protects the rights of prosecution
witnesses by making clear that it is subject to compliance with
procedures for disclosure of confidential information under
section 32C of the Evidence (Miscellaneous Provisions)
Act 1958.
19
Clause 11 inserts new section 110(e)(vii) in the Criminal Procedure
Act 2009. This provision requires that a hand-up brief contain a
copy of any information, document or thing that is relevant to the
credibility of a witness for the prosecution, subject to the
prohibition on disclosure of confidential communications in
section 32C of the Evidence (Miscellaneous Provisions)
Act 1958.
A note to the clause provides examples of evidence that might be
relevant to the credibility of a prosecution witness. The examples
provided are not exhaustive, and other types of information may
also be relevant to the credit of a witness. The examples
provided may also not be relevant to the credit of a witness in all
cases, and are not required to be disclosed where they are not
relevant.
New section 110(e)(vii) implements Royal Commission
recommendation 66, which was intended to provide greater
clarity to informants about their duty to disclose relevant
evidence relating to the credibility of a prosecution witness.
The provision does not affect an informant's ability to object to
disclosing a witness' previous conviction under section 45(3) of
the Criminal Procedure Act 2009, if the previous conviction is
not relevant to the proceeding.
New section 110(e)(vii) protects the rights of prosecution
witnesses by making clear that it is subject to compliance with
procedures for disclosure of confidential information under
section 32C of the Evidence (Miscellaneous Provisions)
Act 1958.
Division 5--General
Clause 12 amends section 420 of the Criminal Procedure Act 2009, which
relates to the power of the Governor in Council to make
regulations.
Paragraph (1) substitutes "recording." in section 420(ea) with
"recording; and". Paragraph (2) inserts new section 420(eb)
which provides that the Governor in Council may make
regulations prescribing the form of a disclosure certificate and
any matter required to be described in a disclosure certificate.
20
Clause 13 inserts new section 458 in the Criminal Procedure Act 2009.
This is a transitional provision.
New section 458(1) provides that the amendments made to the
Criminal Procedure Act 2009 by Division 1 of Part 2 of this
Bill apply to a criminal proceeding commenced on or after the
commencement of that Division, irrespective of when the offence
to which the proceeding relates is alleged to have been
committed.
New section 458(2) clarifies that, for the purposes of new
section 458(1), if an offence is alleged to have been committed
between 2 dates, one before and one after the commencement of
Division 1 of Part 2 of this Bill, the offence is alleged to have
been committed before that commencement.
New section 458(3) provides that the amendments made to the
Criminal Procedure Act 2009 by Division 2 of Part 2 of this
Bill apply to a criminal proceeding commenced on or after the
commencement of that Division, irrespective of when the offence
to which the proceeding relates is alleged to have been
committed.
New section 458(4) clarifies that, for the purposes of new
section 458(3), if an offence is alleged to have been committed
between 2 dates, one before and one after the commencement of
Division 2 of Part 2 of this Bill, the offence is alleged to have
been committed before that commencement.
New section 458(5) provides that the amendments made to the
Criminal Procedure Act 2009 by Division 3 of Part 2 of this
Bill apply to a criminal proceeding commenced on or after the
commencement of that Division, irrespective of when the offence
to which the proceeding relates is alleged to have been
committed.
New section 458(6) clarifies that, for the purposes of new
section 458(5), if an offence is alleged to have been committed
between 2 dates, one before and one after the commencement of
Division 3 of Part 2 of this Bill, the offence is alleged to have
been committed before that commencement.
21
Part 3--Dual commission holders
Part 3 of the Bill amends the Magistrates' Court Act 1989, Supreme Court
Act 1986, the Constitution Act 1975 and makes other consequential
amendments to other Acts to provide for a person to hold a dual commission
as the Chief Magistrate and a Judge of the Supreme Court.
Division 1--Magistrates' Court Act 1989
Clause 14 inserts a definition of Judge of the Supreme Court into
section 3(1) of the Magistrates' Court Act 1989.
Clause 15 subclause (1) substitutes section 7(2B) of the Magistrates'
Court Act 1989, to provide that the Chief Magistrate, when
appointed under subsection (2), must--
• already be a Judge of the Supreme Court; or
• be appointed as a Judge of the Supreme Court under the
Constitution Act 1975 and a Chief Magistrate under
the Magistrates' Court Act 1989, at the same time.
Subclause (2) substitutes section 7(6A) of the Magistrates'
Court Act 1989, to provide for a Chief Magistrate who is a dual
commission holder to--
• resign from one of the offices, and retain the other
office; or
• resign from both offices.
A Chief Magistrate who is a dual commission holder--
• resigns as a Chief Magistrate under the Magistrates'
Court Act 1989; and
• resigns as a Judge of the Supreme Court under the
Constitution Act 1975.
Clause 16 subclause (1) inserts new subsection (1AA) into section 10 of the
Magistrates' Court Act 1989 to provide that a Chief Magistrate
who is or has been a dual commission holder as a Judge of the
Supreme Court--
• receives the salary, allowances and other conditions of
service of the Chief Magistrate who is or has been a
dual commission holder as a Judge of the Supreme
Court; and
22
• is not entitled to receive any salary, allowances and
other conditions of service as a Judge of the Supreme
Court during the period of being a dual commission
holder; and
• in the case of the Chief Magistrate who has been a dual
commission holder as a judge of the County Court, is
not entitled to receive any salary, allowances or other
conditions of service as the Chief Magistrate who has
been a dual commission holder as a judge of the County
Court.
New section 10(1AA) ensures that a Chief Magistrate who is or
has been a dual commission holder as a Judge of the Supreme
Court would not receive the salary, allowances and other
conditions of service for both offices.
Subclause (2) amends section 10(1A) of the Magistrates' Court
Act 1958 to refer to a Chief Magistrate who has been a dual
commission holder as a judge of the County Court. This is to
distinguish between Chief Magistrates who have held a dual
commission as a judge of the County Court, and those who hold a
dual commission as a Judge of the Supreme Court.
Clause 17 subclause (1) substitutes section 10A(1) of the Magistrates'
Court Act 1989 to provide that the Chief Magistrate and the
partner and children of the Chief Magistrate are entitled to
pensions in the same circumstances and at the same rates and on
the same terms and conditions--
• in the case of the Chief Magistrate who is or has been a
dual commission holder as Judge of the Supreme Court,
as a Judge of the Supreme Court and the partner and
children of a Judge of the Supreme Court are entitled to
pensions under the Constitution Act 1975;
• in the case of the Chief Magistrate who has been a dual
commission holder as a judge of the County Court but
has not been a dual commission holder as a Judge of the
Supreme Court, as a judge of the County Court (other
than the Chief Judge) and the partner and children of
such a judge are entitled to pensions under the County
Court Act 1958;
23
• in the case of the Chief Magistrate who has not been a
dual commission holder, as a judge of the County Court
(other than the Chief Judge) and the partner and
children of such a judge are entitled to pensions under
the County Court Act 1958.
Subclause (2) inserts new subsections (1AA) and (1AB) into
section 10A of the Magistrates' Court Act 1989.
Subsection (1AA) provides that subject to subsection (1AB)
and (1C), section 83(6), (6B) and (6C) of the Constitution
Act 1975 applies, with any necessary modification, in relation to
the recognition of service for the purposes of a pension under
section 10A, if the Chief Magistrate is or has been a dual
commission holder as a Judge of the Supreme Court.
Subsection (1AB) provides that when counting service in the
office of the Chief Magistrate, the Chief Magistrate who is a dual
commission holder as a Judge of the Supreme Court is taken not
to hold the office of Judge of the Supreme Court during the
period of being a dual commission holder as Judge of the
Supreme Court.
Subclause (3) amends section 10A(1A) of the Magistrates'
Court Act 1989 to refer to a Chief Magistrate who has been a
dual commission holder as a judge of the County Court or has not
been a dual commission holder. This is to distinguish between
those Chief Magistrates, and those who hold a dual commission
as a Judge of the Supreme Court.
Subclause (4) amends section 10A(1B) of the Magistrates'
Court Act 1989 to refer to a Chief Magistrate who has been a
dual commission holder as a judge of the County Court. This is
to distinguish between those Chief Magistrates, and those who
hold a dual commission as a Judge of the Supreme Court.
Subclause (5) amends section 10A(1C) of the Magistrates'
Court Act 1989 to provide that, for the purposes of a pension
under section 10A--
• if the Chief Magistrate is or has been a dual commission
holder as a Judge of the Supreme Court, the person's
service in the office of Chief Magistrate whilst a dual
commission holder as a Judge of the Supreme Court
counts as service in the office of Chief Magistrate; or
• if the Chief Magistrate has been a dual commission
holder as a judge of the County Court and is or has been
a dual commission holder as a Judge of the Supreme
24
Court, the person's service in the office of Chief
Magistrate whilst a dual commission holder as a judge
of the County Court and as a Judge of the Supreme
Court counts as service in the office of Chief
Magistrate; or
• if the Chief Magistrate has been a dual commission
holder as a judge of the County Court, the person's
service in the office of Chief Magistrate whilst a dual
commission holder as a judge of the County Court
counts as service in the office of Chief Magistrate.
Subclause (6) substitutes section 10A(1D) of the Magistrates'
Court Act 1989 to provide that if the Chief Magistrate resigns
the office of Chief Magistrate as a dual commission holder as--
• a Judge of the Supreme Court, but continues in the
office of Judge of the Supreme Court, that person is
taken not to have resigned or retired from the office of
Chief Magistrate for the purposes of section 83(1), (1A),
(1B), (1C) and (1D) of the Constitution Act 1975, as
applied by section 10A; or
• a judge of the County Court, but continues in the office
of judge of the County Court, that person is taken not
to have resigned or retired from the office of Chief
Magistrate for the purposes of section 14(2), (2A)
and (2B) of the County Court Act 1958, as applied
by section 10A.
Subclause (7) amends section 10A(2) of the Magistrates' Court
Act 1989 to provide that a pension under section 10A is liable to
be suspended or determined in the same circumstances and to the
same extent as pensions under section 83 of the Constitution
Act 1975 are liable to be suspended or determined.
Subclause (8) amends section 10A(2A) of the Magistrates'
Court Act 1989 to provide that a pension of a Chief Magistrate,
who is or has been a dual commission holder as a Judge of the
Supreme Court may be commuted in the same circumstances and
to the same extent that pensions under sections 83AA to 83AI of
the Constitution Act 1975 may be commuted.
Clause 18 amends section 15(5) of the Magistrates' Court Act 1989, to
provide that a Chief Magistrate who is a dual commission holder
is a member of the Council of magistrates and is also a member
of the Council of Judges of the Supreme Court.
25
Clause 19 amends section 57(7A) and (7B) of the Magistrates' Court
Act 1989, which relate to the power of the registrar of the County
Court and prothonotary of the Supreme Court to issue a warrant
to imprison in the circumstances set out in sections 263(4),
266(3A) and 267(1A) of the Criminal Procedure Act 2009, and
the power of the registrar of the County Court and prothonotary
of the Supreme Court to issue a warrant to detain in the
circumstances set out in sections 430(4), 430C(5) and 430D(1A)
of the Children, Youth and Families Act 2005. The clause
expands this power to the Registrar of Criminal Appeals, for
matters where an appeal is from the Magistrates' Court or
Children's Court, constituted by the Chief Magistrate who is a
dual commission holder, to the Court of Appeal.
Clause 20 substitutes section 109(1) of the Magistrates' Court Act 1989 to
provide for appeals in a civil proceeding from the Magistrates'
Court being made to the Court of Appeal, if the Magistrates'
Court was constituted by the Chief Magistrate who is a dual
commission holder. If the Magistrates' Court was not constituted
by the Chief Magistrate who is a dual commission holder, an
appeal under this section would continue to be made to the
Supreme Court.
Clause 21 amends section 110A of the Magistrates' Court Act 1989, to
provide that, unless otherwise provided, appeals from the
Magistrates' Court constituted by the Chief Magistrate who is a
dual commission holder, shall be to the Court of Appeal.
Clause 22 inserts new section 140A into the Magistrates' Court Act 1989.
New section 140A 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 enactment of Division 1 of Part 3 of the Bill.
Clause 23 subclause (1) amends clause 1 of Part 1 of Schedule 1 to the
Magistrates' Court Act 1989 to provide that the Chief
Magistrate who is or has been a dual commission holder as a
Judge of the Supreme Court is entitled to be paid a salary at the
rate for the time being applicable under the Judicial
Entitlements Act 2015.
26
Subclause (2) inserts new clause 1A into Part 1 of Schedule 1 to
the Magistrates' Court Act 1989. New clause 1A provides that
the Chief Magistrate who has been a dual commission holder as a
judge of the County Court is entitled to be paid a salary at the
rate for the time being applicable under the Judicial
Entitlements Act 2015.
Clause 24 inserts new clause 59 into Schedule 8 to the Magistrates' Court
Act 1989 to provide that--
• an appeal from a final order of the Magistrates' Court
constituted by the Chief Magistrate who, at the time the
proceeding commenced, was a dual commission holder
as a judge of the County Court, and who, at the time at
which the final order was made, was a dual commission
holder as a Judge of the Supreme Court, is to be made to
the Court of Appeal;
• an appeal from a final order of the Magistrates' Court
constituted by the Chief Magistrate who, at the time the
final order was made was a dual commission holder as a
judge of the County Court, and who, on or after Part 3
of the Bill comes into operation, is a dual commission
holder as a Judge of the Supreme Court, is to be made to
the Trial Division of the Supreme Court.
Division 2--Supreme Court Act 1986
Clause 25 inserts new paragraph (ba) into section 14A(2) of the Supreme
Court Act 1986 to provide that leave to appeal from the Court of
Appeal is not required for civil appeals that are made from the
Magistrates' Court to the Court of Appeal, if the Magistrates'
Court was constituted by the Chief Magistrate who is a dual
commission holder.
Clause 26 inserts new subsection (6) into section 28 of the Supreme Court
Act 1986. Subsection (6) provides that a Chief Magistrate who is
a dual commission holder is a member of the Council of Judges
of the Supreme Court and the Council of magistrates under
section 15 of the Magistrates' Court Act 1989.
Clause 27 substitutes words in paragraph (a) of the definition of judicial
officer in section 28A(1) of the Supreme Court Act 1986.
The effect of this amendment is the Chief Justice--
27
• is not responsible for directing the professional
development and continuing education and training of a
Judge of the Court who is a dual commission holder as
Chief Magistrate; and
• is not empowered to direct a Chief Magistrate who is a
dual commission holder to participate in a specified
professional development or continuing education and
training activity.
Clause 28 inserts new section 129A into the Supreme Court Act 1986.
New section 129A 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 enactment of Division 2 of Part 3 of the Bill.
Division 3--Constitution Act 1975
Clause 29 substitutes the note to section 75B(1) of the Constitution
Act 1975 to refer to section 7(2B) of the Magistrates' Court
Act 1989. Section 7(2B) provides that the Chief Magistrate,
when appointed under section 7(2), must--
• already be a Judge of the Supreme Court; or
• be appointed as a Judge of the Supreme Court under the
Constitution Act 1975 and a Chief Magistrate under
the Magistrates' Court Act 1989, at the same time.
Clause 30 substitutes the note to section 77(4) of the Constitution Act 1975
to refer to section 7(6A) of the Magistrates' Court Act 1989.
Section 7(6A) provides for a Chief Magistrate who is a dual
commission holder to--
• resign from one of the offices, and retain the other
office; or
• resign from both offices.
A Chief Magistrate who is a dual commission holder--
• resigns as a Chief Magistrate under the Magistrates'
Court Act 1989; and
• resigns as a Judge of the Supreme Court under the
Constitution Act 1975.
28
Clause 31 subclause (1) inserts new subsection (3B) into section 82 of the
Constitution Act 1975.
New subsection (3B) provides that a Judge of the Court who is a
dual commission holder as Chief Magistrate--
• receives the salary, allowances and conditions of service
of the Chief Magistrate who is or has been a dual
commission holder as a Judge of the Court; and
• does not receive the salary, allowances and conditions
of service of a Judge of the Supreme Court during the
period of being a dual commission holder.
New subsection (3B) ensures that a Chief Magistrate who is a
dual commission holder as Judge of the Supreme Court does not
receive double payments. That is, the person would not receive
the salary, allowances and conditions of service for both offices.
Subclause (2) inserts new subsection (6F) into section 82 of the
Constitution Act 1975.
New subsection (6F) provides that the appointment of a Judge of
the Court as a dual commission holder as Chief Magistrate is
taken not to constitute a reduction in the salary or allowances of
the Judge of the Court who takes the appointment.
Clause 32 subclause (1) inserts new subsections (3D) to (3F) into section 83
of the Constitution Act 1975. The new subsections provide--
• if a Chief Magistrate who is a dual commission holder
as Judge of the Court resigns the office of Judge of the
Court, but continues in the office of Chief Magistrate,
that person is taken not to have resigned from the office
of Judge of the Court for the purposes of section 83(1),
(1A), (1B), (1C) and (1D).
• if a Chief Magistrate who is a dual commission holder
as a Judge of the Court resigns from both offices at the
same time--
• the person may receive a pension under
section 10A of the Magistrates Court Act 1989
if that person is otherwise entitled to a pension
under that section;
29
• the person is taken not to have resigned or retired
from the office of Judge of the Court for the
purposes of section 83(1), (1A), (1B), (1C)
and (1D).
If a Chief Magistrate who is a dual commission holder as a Judge
of the Court dies--
• a pension will not arise under section 83 of the
Constitution Act 1975;
• a pension may arise under section 10A of the
Magistrates' Court Act 1989.
Subclause (2) inserts new paragraphs (bd) and (be) into
section 83(6) of the Constitution Act 1975. The new
paragraphs provide--
• if a Judge of the Court is a dual commission holder as
Chief Magistrate, the Judge is taken not to hold the
office of Judge of the Court during the period of holding
the dual commission when counting service in the office
of Judge of the Court;
• if a Judge of the Court is a dual commission holder as
Chief Magistrate, the person's service in the office of
Chief Magistrate whilst a dual commission holder will
count as service in the office of Judge of the Court.
Clause 33 inserts new subsection (4AB) into section 84 of the Constitution
Act 1975 which provides that the prohibition in subsection (1)
does not apply to a Judge of the Court accepting, taking or
performing the duties of a Chief Magistrate as a dual commission
holder.
Division 4--Judicial Entitlements Act 2015
Clause 34 substitutes item 11 in the Table in section 5 of the Judicial
Entitlements Act 2015 to provide that--
• a Chief Magistrate who is or has been a dual
commission holder as a Judge of the Supreme Court is
entitled to a salary equivalent to that of a Supreme Court
Judge;
30
• a Chief Magistrate who has been a dual commission
holder as a judge of the County Court is entitled to a
salary at a rate of 86.64% of the salary of a Supreme
Court Judge.
Clause 35 inserts new section 46 into the Judicial Entitlements Act 2015
to provide that a reference in an entitlement certificate that was in
effect immediately before the commencement of Part 3 of the
Bill--
• to a Judge of the Supreme Court is taken to include a
reference to the Chief Magistrate who is or has been, on
or after that commencement, a dual commission holder
as a Judge of the Supreme Court; and
• to the Chief Magistrate is taken not to include the Chief
Magistrate who is, on or after that commencement, a
dual commission holder as a Judge of the Supreme
Court.
This does not apply to a reference in an entitlement certificate
that relates to a matter that is not an entitlement of the Chief
Magistrate.
Division 5--County Court Act 1958
Clause 36 amends section 10(3B) of the County Court Act 1958 to refer to
a Chief Magistrate who has been a dual commission holder as a
judge of the County Court. This is to distinguish them from
Chief Magistrates who hold a dual commission as a Judge of the
Supreme Court.
Clause 37 amends section 14(3AF), (3AG), (3AH), (5)(ag) and (5)(ah) of
the County Court Act 1958 to refer to a Chief Magistrate who
has been a dual commission holder as a judge of the County
Court. This is to distinguish them from Chief Magistrates who
hold a dual commission as a Judge of the Supreme Court.
Clause 38 amends the definition of judicial officer in section 17AAA(1) of
the County Court Act 1958 to remove reference in paragraph (a)
to a Chief Magistrate who is a dual commission holder.
Clause 39 amends section 87(4) of the County Court Act 1958 to remove
the reference to the Chief Magistrate who is a dual commission
holder of the County Court from being a member of the Council
of Judges of the County Court. This reflects that the Chief
31
Magistrate would be a dual commission holder as a Judge of the
Supreme Court instead of as a Judge of the County Court.
Division 6--Children, Youth and Families Act 2005
Clause 40 substitutes the definition of appellate court in section 3(1) of the
Children, Youth and Families Act 2005 to include the Court of
Appeal, if the court from which the appeal is made was
constituted by the Chief Magistrate who is a dual commission
holder.
Clause 41 subclause (1) substitutes words in section 328(1) of the
Children, Youth and Families Act 2005 to provide that appeals
under section 328 would be made to the Court of Appeal, if the
Children's Court was constituted by the Chief Magistrate who is a
dual commission holder.
Subclause (2) inserts words into the section 328(5) of the
Children, Youth and Families Act 2005 to include that where a
person appeals under the Children, Youth and Families
Act 2005 on a question of law to the Supreme Court, which
includes the Court of Appeal, that person is deemed to have
abandoned finally and conclusively any right under that or any
other Act to appeal to the County Court or any right under
section 328 to appeal to the Trial Division of the Supreme Court
or the Court of Appeal, as the case requires. This restriction
appears to limit the jurisdiction of the Supreme Court and alter or
vary section 85 of the Constitution Act 1975.
Subclause (3) omits words from section 328(6)(h) of the
Children, Youth and Families Act 2005. The reference to the
Supreme Court includes the division of the Supreme Court called
the Court of Appeal.
Clause 42 inserts subsection (1A) into section 329 of the Children, Youth
and Families Act 2005 to provide that appeals under that section
would be made to the Court of Appeal, if the Children's Court
was constituted by the Chief Magistrate who is a dual
commission holder.
Clause 43 substitutes words in section 424 of the Children, Youth and
Families Act 2005 to provide that appeals under that section
would be made to the Court of Appeal, if the Children's Court
was constituted by the Chief Magistrate who is a dual
commission holder.
32
Clause 44 substitutes words in section 425(4)(a) and (b) of the Children,
Youth and Families Act 2005 to include a reference to the
Registrar of Criminal Appeals.
Clause 45 substitutes words in section 427(1) of the Children, Youth and
Families Act 2005 to provide that appeals under that section
would be made to the Court of Appeal, if the Children's Court
was constituted by the Chief Magistrate who is a dual
commission holder.
Clause 46 substitutes words in section 429A(1) of the Children, Youth and
Families Act 2005, to provide that appeals under section 429A
would be made to the Court of Appeal, if the Children's Court
was constituted by the Chief Magistrate who is a dual
commission holder.
Clause 47 substitutes words in section 430(4) and (5)(b) of the Children,
Youth and Families Act 2005 to include a reference to the
Registrar of Criminal Appeals.
Clause 48 subclause (1)(a) omits words from section 430C(1) of the
Children, Youth and Families Act 2005. The reference to the
Supreme Court includes the division of the Supreme Court called
the Court of Appeal.
Subclause (1)(b) substitutes words in section 430C(1) of the
Children, Youth and Families Act 2005 to include a reference
to the Registrar of Criminal Appeals.
Subclause (2) substitutes words in section 430C(4)(a), (5) and
(7)(b) of the Children, Youth and Families Act 2005 to include
a reference to the Registrar of Criminal Appeals.
Clause 49 subclause (1) substitutes words in section 430D(1A) and (2)(b) of
the Children, Youth and Families Act 2005 to include a
reference to the Registrar of Criminal Appeals.
Subclause (2) omits words from section 430D(6A) of the
Children, Youth and Families Act 2005. The reference to the
Supreme Court includes the division of the Supreme Court called
the Court of Appeal.
Clause 50 subclause (1) amends the heading to section 430G of the
Children, Youth and Families Act 2005. The new heading is
"Appeal to County Court or Supreme Court authorised by other
Acts".
33
Subclause (2) omits words from section 430G of the Children,
Youth and Families Act 2005. The reference to the Supreme
Court includes the division of the Supreme Court called the Court
of Appeal.
Clause 51 substitutes words in section 430J of the Children, Youth and
Families Act 2005 to include a reference to the Registrar of
Criminal Appeals.
Clause 52 substitutes words in section 430K of the Children, Youth and
Families Act 2005 to include a reference to the Registrar of
Criminal Appeals.
Clause 53 substitutes words in section 430L(2)(b) and (3) of the Children,
Youth and Families Act 2005 to include a reference to the
Registrar of Criminal Appeals.
Clause 54 substitutes words in section 430O of the Children, Youth and
Families Act 2005 to include a reference to the Registrar of
Criminal Appeals.
Clause 55 inserts new subsection (1A) into section 430P of the Children,
Youth and Families Act 2005, to provide for appeals from the
Children's Court to the Court of Appeal, if the Children's Court
was constituted by the Chief Magistrate who is a dual
commission holder.
Clause 56 omits words from section 430Q of the Children, Youth and
Families Act 2005 to provide that if a person appeals under
Division 5 of Part 5.4 to the Supreme Court on a question of law,
that person abandons finally and conclusively any right under the
Children, Youth and Families Act 2005 or any other Act to
appeal to the County Court or the Supreme Court in relation to
that proceeding. The reference to the Supreme Court in amended
section 430Q includes the division of the Supreme Court called
the Court of Appeal. This restriction appears to limit the
jurisdiction of the Supreme Court and alter or vary section 85 of
the Constitution Act 1975.
Clause 57 inserts new subsection (3) into section 430R of the Children,
Youth and Families Act 2005 to provide that a person sentenced
to a term of detention by an appellate court under section 426,
429 or 429C would not be able to appeal under section 430R if,
in the proceeding that is the subject of the appeal, the Children's
Court was constituted by the Chief Magistrate who is a dual
34
commission holder. This restriction appears to limit the
jurisdiction of the Supreme Court and alter or vary section 85 of
the Constitution Act 1975.
Clause 58 inserts new subsection (2) into section 430VA of the Children,
Youth and Families Act 2005 to provide that questions of law
arising on the hearing of an appeal from a decision of the Chief
Magistrate who is a dual commission holder would no longer be
reserved for determination by the Court of Appeal. This
restriction appears to limit the jurisdiction of the Supreme Court
and alter or vary section 85 of the Constitution Act 1975.
Clause 59 subclause (1) makes amendments to section 430W(1) of the
Children, Youth and Families Act 2005, which are
consequential to appeals from the Children's Court constituted by
the Chief Magistrate who is a dual commission holder being
made to the Court of Appeal instead of the Trial Division of the
Supreme Court.
Subclause (2) inserts new subsection (1A) into section 430W of
the Children, Youth and Families Act 2005 to clarify that the
DPP would not be able to refer a point of law that has arisen on
appeal, from a decision of the Chief Magistrate who is a dual
commission holder, to the Court of Appeal. This restriction
appears to limit the jurisdiction of the Supreme Court and alter or
vary section 85 of the Constitution Act 1975.
Clause 60 substitutes words in section 513B of the Children, Youth and
Families Act 2005, to provide that an appeal from the Children's
Court constituted by the Chief Magistrate who is a dual
commission holder would be to the Court of Appeal, unless
provided for otherwise.
Clause 61 inserts new subsections (3), (4), (5), (6) and (7) into section 599
of the Children, Youth and Families Act 2005 regarding the
limitation of jurisdiction of the Supreme Court.
New subsection (3) provides that it is the intention of section
328(5), as amended by section 41 of the Justice Legislation
Amendment (Criminal Procedure Disclosure and Other
Matters) Act 2021, to alter or vary section 85 of the
Constitution Act 1975. This addresses the requirements of
section 85 of the Constitution Act 1975 in respect of the changes
effected by clause 41.
35
New subsection (4) provides that it is the intention of section
430Q, as amended by section 56 of the Justice Legislation
Amendment (Criminal Procedure Disclosure and Other
Matters) Act 2021, to alter or vary section 85 of the
Constitution Act 1975. This addresses the requirements of
section 85 of the Constitution Act 1975 in respect of the changes
effected by clause 56.
New subsection (5) provides that it is the intention of section
430R(3), as inserted by section 57 of the Justice Legislation
Amendment (Criminal Procedure Disclosure and Other
Matters) Act 2021, to alter or vary section 85 of the
Constitution Act 1975. This addresses the requirements of
section 85 of the Constitution Act 1975 in respect of the changes
effected by clause 57.
New subsection (6) provides that it is the intention of section
430VA(2), as inserted by section 58 of the Justice Legislation
Amendment (Criminal Procedure Disclosure and Other
Matters) Act 2021, to alter or vary section 85 of the
Constitution Act 1975. This addresses the requirements of
section 85 of the Constitution Act 1975 in respect of the changes
effected by clause 58.
New subsection (7) provides that it is the intention of section
430W(1A), as inserted by section 59 of the Justice Legislation
Amendment (Criminal Procedure Disclosure and Other
Matters) Act 2021, to alter or vary section 85 of the
Constitution Act 1975. This addresses the requirements of
section 85 of the Constitution Act 1975 in respect of the changes
effected by clause 59.
Clause 62 inserts new sections 632A and 632B into the Children, Youth
and Families Act 2005.
New section 632A provides that--
• an appeal from a final order of the Children's Court
constituted by the Chief Magistrate who, at the time the
proceeding commenced, was a dual commission holder
as a judge of the County Court, and who, at the time at
which the final order was made, was a dual commission
holder as a Judge of the Supreme Court, is to be made to
the Court of Appeal;
36
• an appeal from a final order of the Children's Court
constituted by the Chief Magistrate who, at the time the
final order was made was a dual commission holder as a
judge of the County Court, and who, on or after Part 3
of the Bill comes into operation, is a dual commission
holder as a Judge of the Supreme Court, is to be made to
the Trial Division of the Supreme Court.
New section 632B provides that a court may make any order it
considers appropriate to remedy a transitional difficulty in a
proceeding. Such an order may be made on application of a party
to a proceeding or on the court's own motion and will have effect
despite any contrary provision under any other Act, other than the
Charter of Human Rights and Responsibilities Act 2006.
Division 7--Criminal Procedure Act 2009
Clause 63 substitutes words in section 254(2) of the Criminal Procedure
Act 2009, to provide for appeals from the Magistrates' Court
being made to the Court of Appeal, if the Magistrates' Court was
constituted by the Chief Magistrate who is a dual commission
holder.
Clause 64 inserts words in section 255(5)(ab) of the Criminal Procedure
Act 2009 to include a reference to the Registrar of Criminal
Appeals.
Clause 65 substitutes words in section 257(1A) and (2) of the Criminal
Procedure Act 2009, to provide for appeals from the
Magistrates' Court being made to the Court of Appeal, if the
Magistrates' Court was constituted by the Chief Magistrate who
is a dual commission holder.
Clause 66 substitutes words in section 260(1A) and (3) of the Criminal
Procedure Act 2009, to provide for appeals from the
Magistrates' Court being made to the Court of Appeal, if the
Magistrates' Court was constituted by the Chief Magistrate who
is a dual commission holder.
Clause 67 substitutes words in section 263(4) and (5)(b) of the Criminal
Procedure Act 2009 to include a reference to the Registrar of
Criminal Appeals.
37
Clause 68 substitutes words in section 266(3), (3A) and (5)(b) of the
Criminal Procedure Act 2009 to include a reference to the
Registrar of Criminal Appeals.
Clause 69 substitutes words in section 267(1A) and (2)(b) of the Criminal
Procedure Act 2009 to include a reference to the Registrar of
Criminal Appeals.
Clause 70 substitutes words in section 271(2) of the Criminal Procedure
Act 2009, to provide that a reference to the County Court in this
section is a reference to the Court of Appeal, if the appeal was
from the Magistrates' Court constituted by the Chief Magistrate
who is a dual commission holder.
Clause 71 inserts new subsection (1A) in section 272 of the Criminal
Procedure Act 2009, to provide for appeals from the
Magistrates' Court to the Court of Appeal, if the Magistrates'
Court was constituted by the Chief Magistrate who is a dual
commission holder.
Clause 72 inserts new subsection (3) in section 283 of the Criminal
Procedure Act 2009, to provide that a person sentenced to a
term of imprisonment under section 256, 259 or 262 would not
be able to appeal under section 283 if in the proceeding that is the
subject of the appeal, the Magistrates' Court was constituted by
the Chief Magistrate who is a dual commission holder. This
restriction appears to limit the jurisdiction of the Supreme Court
and alter or vary section 85 of the Constitution Act 1975.
Clause 73 inserts new subsection (3) in section 290A of the Criminal
Procedure Act 2009, to provide that the DPP would not be able
to appeal against a sentence referred to in subsection (1) if in the
proceeding that is the subject of the appeal, the Magistrates'
Court was constituted by the Chief Magistrate who is a dual
commission holder. This restriction appears to limit the
jurisdiction of the Supreme Court and alter or vary section 85 of
the Constitution Act 1975.
Clause 74 makes amendments to section 302A of the Criminal Procedure
Act 2009 to provide that questions of law arising on the hearing
of an appeal from a decision of the Chief Magistrate who is a
dual commission holder would no longer be reserved for
determination by the Court of Appeal. This restriction appears to
38
limit the jurisdiction of the Supreme Court and alter or vary
section 85 of the Constitution Act 1975.
Clause 75 subclause (1) makes amendments to section 308(1)(b) of the
Criminal Procedure Act 2009, which are consequential to
appeals from the Magistrates' Court constituted by the Chief
Magistrate who is a dual commission holder being made to the
Court of Appeal instead of the Trial Division of the Supreme
Court.
Subclause (2) inserts new subsection (1A) into section 308 of the
Criminal Procedure Act 2009 to clarify that the DPP would not
be able to refer a point of law that has arisen on appeal, from a
decision of the Chief Magistrate who is a dual commission
holder, to the Court of Appeal if the Magistrates' Court was
constituted by the Chief Magistrate who is a dual commission
holder. This restriction appears to limit the jurisdiction of the
Supreme Court and alter or vary section 85 of the Constitution
Act 1975.
Clause 76 amends the heading to section 406, and section 406(1)(b), of the
Criminal Procedure Act 2009 regarding costs on appeal, which
are consequential to appeals from the Magistrates' Court
constituted by the Chief Magistrate who is a dual commission
holder being made to the Court of Appeal instead of the Trial
Division of the Supreme Court.
Clause 77 amends the heading to section 407, and section 407(1), of the
Criminal Procedure Act 2009 regarding costs on abandonment
of certain appeals to the Court of Appeal, which are
consequential to appeals from the Magistrates' Court constituted
by the Chief Magistrate who is a dual commission holder being
made to the Court of Appeal instead of the Trial Division of the
Supreme Court.
Clause 78 inserts new subsections (2), (3), (4) and (5) into section 418 of
the Criminal Procedure Act 2009 regarding the limitation of
jurisdiction of the Supreme Court.
New subsection (2) provides that it is the intention of section
283(3) as inserted by section 72 of the Justice Legislation
Amendment (Criminal Procedure Disclosure and Other
Matters) Act 2021, to alter or vary section 85 of the
Constitution Act 1975. This addresses the requirements of
39
section 85 of the Constitution Act 1975 in respect of the changes
effected by clause 72.
New subsection (3) provides that it is the intention of section
290A(3), as inserted by section 73 of the Justice Legislation
Amendment (Criminal Procedure Disclosure and Other
Matters) Act 2021, to alter or vary section 85 of the
Constitution Act 1975. This addresses the requirements of
section 85 of the Constitution Act 1975 in respect of the changes
effected by clause 73.
New subsection (4) provides that it is the intention of section
302A, as amended by section 74 of the Justice Legislation
Amendment (Criminal Procedure Disclosure and Other
Matters) Act 2021, to alter or vary section 85 of the
Constitution Act 1975. This addresses the requirements of
section 85 of the Constitution Act 1975 in respect of the changes
effected by clause 74.
New subsection (5) provides that it is the intention of section
308(1A), as inserted by section 75 of the Justice Legislation
Amendment (Criminal Procedure Disclosure and Other
Matters) Act 2021, to alter or vary section 85 of the
Constitution Act 1975. This addresses the requirements of
section 85 of the Constitution Act 1975 in respect of the changes
effected by clause 75.
Clause 79 inserts new section 460 into the Criminal Procedure Act 2009
to provide that a court may make any order it considers
appropriate to remedy a transitional difficulty in a proceeding.
Such an order may be made on application of a party to a
proceeding or on the court's own motion and will have effect
despite any contrary provision under any other Act, other than the
Charter of Human Rights and Responsibilities Act 2006.
Division 8--Sentencing Act 1991
Clause 80 amends section 13(1)(ab) of the Sentencing Act 1991 to provide
that the Court of Appeal may, on application, fix a non-parole
period, if the Magistrates' Court was constituted by the Chief
Magistrate who is a dual commission holder.
Clause 81 amends section 18ZR(10) of the Sentencing Act 1991 to provide
for the appeal from the Magistrates' Court or the Drug Court
Division of the Magistrates' Court, constituted by the Chief
40
Magistrate who is a dual commission holder, being heard by the
Court of Appeal.
Division 9--Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997
Clause 82 amends section 38U(1) of the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 to provide for appeals from the
Children's Court being made to the Court of Appeal, if the
Children's Court was constituted by the Chief Magistrate who is a
dual commission holder.
Clause 83 amends section 38ZAA(1) of the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997 to provide for appeals from
the Children's Court being made to the Court of Appeal, if the
Children's Court was constituted by the Chief Magistrate who is a
dual commission holder.
Clause 84 amends section 38ZE(1) of the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997 to provide for appeals from
the Children's Court being made to the Court of Appeal, if the
Children's Court was constituted by the Chief Magistrate who is a
dual commission holder.
Clause 85 amends section 38ZF(1) of the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997 to provide for appeals from
the Children's Court being made to the Court of Appeal, if the
Children's Court was constituted by the Chief Magistrate who is a
dual commission holder.
Clause 86 amends section 38ZJ(1) and (2) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997 to provide for
appeals from the Children's Court being made to the Court of
Appeal, if the Children's Court was constituted by the Chief
Magistrate who is a dual commission holder.
Division 10--Catchment and Land Protection Act 1994
Clause 87 inserts new paragraph (ab) in section 18J(2) of the Catchment
and Land Protection Act 1994 to provide for appeals from the
Magistrates' Court being made to the Court of Appeal, if the
Magistrates' Court was constituted by the Chief Magistrate who
is a dual commission holder.
41
Division 11--Disability Act 2006
Clause 88 amends section 163(1)(ab) of the Disability Act 2006 to provide
for appeals from the Magistrates' Court being made to the Court
of Appeal, if the Magistrates' Court was constituted by the Chief
Magistrate who is a dual commission holder.
Division 12--Family Violence Protection Act 2008
Clause 89 amends paragraph (d) of the definition of registrar in section 4 of
the Family Violence Protection Act 2008 to provide for the
inclusion of the Registrar of the Court of Appeal.
Clause 90 substitutes section 115(b) of the Family Violence Protection
Act 2008 to provide for appeals from the Magistrates' Court or
Children's Court being made to the Court of Appeal, if the
Magistrates' Court or Children's Court was constituted by the
Chief Magistrate who is a dual commission holder.
Clause 91 substitutes "registrar" for "registrar of the County Court or the
Prothonotary of the Supreme Court" in sections 118A(2)(a), (4)
and (5) of the Family Violence Protection Act 2008.
Clause 92 substitutes the note to section 119(1) of the Family Violence
Protection Act 2008 to provide for appeals from the Magistrates'
Court or Children's Court being made to the Court of Appeal, if
the Magistrates' Court or Children's Court was constituted by the
Chief Magistrate who is a dual commission holder.
Division 13--Fisheries Act 1995
Clause 93 amends section 128(5)(a) of the Fisheries Act 1995 to provide
for the Magistrates' Court, on application, to stay a decision
pending an appeal against the decision from the Magistrates'
Court to the Court of Appeal, if the Magistrates' Court was
constituted by the Chief Magistrate who is a dual commission
holder.
The clause also amends section 128(6) of the Fisheries Act 1995
to provide for appeals from the Magistrates' Court being made to
the Court of Appeal, if the Magistrates' Court was constituted by
the Chief Magistrate who is a dual commission holder.
42
Division 14--Gambling Regulation Act 2003
Clause 94 amends section 10.5.28(2)(b) of the Gambling Regulation
Act 2003 to provide for appeals from the Magistrates' Court
being made to the Court of Appeal, if the Magistrates' Court was
constituted by the Chief Magistrate who is a dual commission
holder.
Division 15--Independent Broad-based Anti-corruption
Commission Act 2011
Clause 95 amends the definition of relevant head of jurisdiction in
paragraph (c)(ii)(A) of section 3(1) of the Independent Broad-
based Anti-corruption Commission Act 2011, to provide that if
the conduct of the Chief Magistrate who is a dual commission
holder is being investigated, then the relevant head of jurisdiction
is the Chief Justice.
Division 16--Interpretation of Legislation Act 1984
Clause 96 amends paragraph (b) of the definition of dual commission
holder in section 38 of the Interpretation of Legislation
Act 1984 in relation to the Chief Magistrate to be a person who
concurrently holds both the office of Chief Magistrate and office
of Judge of the Supreme Court.
Division 17--Judgment Debt Recovery Act 1984
Clause 97 amends section 19(4)(ab) of the Judgment Debt Recovery
Act 1984 to provide for appeals from the Magistrates' Court
being made to the Court of Appeal, if the Magistrates' Court was
constituted by the Chief Magistrate who is a dual commission
holder.
Division 18--Judicial Commission of Victoria Act 2016
Clause 98 amends paragraph (e) of the definition of relevant council of
judges in section 3(1) of the Judicial Commission of Victoria
Act 2016 to provide that if the officer concerned is the Chief
Magistrate who is a dual commission holder, the relevant council
of judges is the Council of Judges of the Supreme Court.
Clause 99 amends section 100(1)(c) of the Judicial Commission of
Victoria Act 2016 to provide that the standing down of the Chief
Magistrate who is a dual commission holder must relate to all the
43
functions of the officer, including those functions exercised as a
result of holding the offices of Chief Magistrate and Judge of the
Supreme Court.
Division 19--Land Act 1958
Clause 100 amends section 203 of the Land Act 1958 to provide for appeals
from the Magistrates' Court being made to the Court of Appeal, if
the Magistrates' Court was constituted by the Chief Magistrate
who is a dual commission holder.
Division 20--Liquor Control Reform Act 1998
Clause 101 amends section 138(2)(b) of the Liquor Control Reform
Act 1998 to provide for appeals from the Magistrates' Court
being made to the Court of Appeal, if the Magistrates' Court was
constituted by the Chief Magistrate who is a dual commission
holder.
Division 21--Maintenance Act 1965
Clause 102 amends section 107(1A) and (5) of the Maintenance Act 1965 to
provide for appeals from the Magistrates' Court being made to
the Court of Appeal, if the Magistrates' Court was constituted by
the Chief Magistrate who is a dual commission holder.
Division 22--Personal Safety Intervention Orders Act 2010
Clause 103 amends paragraph (d) of the definition of registrar in section 4 of
the Personal Safety Intervention Orders Act 2010 to provide
for the inclusion of the Registrar of the Court of Appeal.
Clause 104 substitutes section 92(b) of the Personal Safety Intervention
Orders Act 2010 to provide for appeals from the Magistrates'
Court or Children's Court being made to the Court of Appeal, if
the Magistrates' Court or Children's Court was constituted by the
Chief Magistrate who is a dual commission holder.
Clause 105 substitutes the note to section 96(1) of the Personal Safety
Intervention Orders Act 2010 to provide for appeals from the
Magistrates' Court or Children's Court being made to the Court of
Appeal, if the Magistrates' Court or Children's Court was
constituted by the Chief Magistrate who is a dual commission
holder.
44
Division 23--Road Safety Act 1986
Clause 106 subclause (1) amends section 29(1A) of the Road Safety
Act 1986 to provide for appeals from the Children's Court being
made to the Court of Appeal, if the Children's Court was
constituted by the Chief Magistrate who is a dual commission
holder.
Subclause (2) amends section 29(2) of the Road Safety Act 1986
which is consequential to appeals from the Magistrates' Court or
Children's Court constituted by the Chief Magistrate who is a
dual commission holder being made to the Court of Appeal.
Division 24--Water Act 1989
Clause 107 inserts new paragraph (ab) into section 112(2) of the Water
Act 1989 to provide for appeals from the Magistrates' Court
being made to the Court of Appeal, if the Magistrates' Court was
constituted by the Chief Magistrate who is a dual commission
holder.
Division 25--Justice Legislation Amendment (Criminal Appeals)
Act 2019
Clause 108 subclause (1)(a) amends section 7 of the Justice Legislation
Amendment (Criminal Appeals) Act 2019 to omit words in the
heading to proposed Division 1 of Part 5.4 of the Children,
Youth and Families Act 2005. The reference to the Supreme
Court includes the division of the Supreme Court called the Court
of Appeal.
Subclause (1)(b) amends section 7 of the Justice Legislation
Amendment (Criminal Appeals) Act 2019 to omit words in
proposed section 424(3) of the Children, Youth and Families
Act 2005, which is consequential to appeals from the Children's
Court constituted by the Chief Magistrate who is a dual
commission holder being made to the Court of Appeal instead of
the Trial Division of the Supreme Court.
Subclause (2) amends section 7 of the Justice Legislation
Amendment (Criminal Appeals) Act 2019 to insert proposed
new section 424(4) into the Children, Youth and Families
Act 2005 to provide for appeals or applications for leave to
appeal to be made to the Court of Appeal, if the Children's Court
45
was constituted by the Chief Magistrate who is a dual
commission holder.
Subclause (3) amends section 7 of the Justice Legislation
Amendment (Criminal Appeals) Act 2019 which amends
proposed section 425(4)(a) and (4)(b) of the Children, Youth
and Families Act 2005 to include a reference to the Registrar of
the Court of Appeal.
Clause 109 amends section 19 of the Justice Legislation Amendment
(Criminal Appeals) Act 2019 to substitute the definition of
appellate court in proposed section 253C of the Criminal
Procedure Act 2009, which is consequential to appeals from the
Magistrates' Court constituted by the Chief Magistrate who is
dual commission holder being made to the Court of Appeal
instead of the Trial Division of the Supreme Court.
Clause 110 subclause (1) amends section 20 of the Justice Legislation
Amendment (Criminal Appeals) Act 2019 to amend proposed
section 254(4) of the Criminal Procedure Act 2009 to provide
that appeals or applications for leave to appeal would be made to
the Court of Appeal, if the Magistrates' Court was constituted by
the Chief Magistrate who is a dual commission holder.
Subclause (2) amends section 20 of the Justice Legislation
Amendment (Criminal Appeals) Act 2019 to amend proposed
section 255(7) of the Criminal Procedure Act 2009 to include a
reference to the Registrar of Criminal Appeals.
Part 4--Sentence indications in higher courts
Part 4 of the Bill broadens sentence indications available in the higher courts.
Division 1 amends the Criminal Procedure Act 2009 to broaden sentence
indications by enabling the higher courts to provide an indication of the type
of sentence and maximum total effective sentence. The Division also
removes the current requirement for prosecution to consent before a sentence
indication or subsequent sentence indication can be provided and limits the
availability of subsequent sentence indications. A review of the reforms is to
take place within 2 years.
Division 2 amends the Victims' Charter Act 2006 to introduce an obligation
on the DPP to seek the views of a victim before a decision is made whether to
oppose an application for a sentence indication and to give a victim
information about the matters taken into account in deciding whether to
oppose an application for a sentence indication.
46
Division 1--Criminal Procedure Act 2009
Clause 111 substitutes section 207 of the Criminal Procedure Act 2009.
New section 207(1) broadens sentence indications able to be
provided by the County Court and the Supreme Court by
enabling an indication to be provided of the type of sentence and
maximum total effective sentence that would likely be imposed
if the accused pleads guilty to any charge on the indictment at
that time or another charge.
New section 207(1) limits the ability of the accused to apply for a
sentence indication (and an indication to be provided by the
Court) to after the indictment is filed but before the trial
commences.
New section 207(1) inserts a new note below section 207(1) of
the Criminal Procedure Act 2009 to indicate that section 210
defines when a trial commences.
New section 207(2) provides that the indication is given in
relation to any charges specified in the application and is not able
to be provided for individual charges.
A new note is inserted below section 207 of the Criminal
Procedure Act 2009 to indicate that the Open Courts Act 2013
enables the court to close a proceeding or part of a proceeding to
the public.
The County Court and the Supreme Court were previously only
able to provide a sentence indication as to whether the accused
would or would not be likely to receive an immediate term of
imprisonment. The intention is that an accused who receives a
sentence indication will now have more information about the
sentence, such as the duration of a term of imprisonment or the
quantum of a fine, to inform their decision about whether to
plead guilty.
Clause 112 amends section 208 of the Criminal Procedure Act 2009.
Subclause (1) amends section 208(1)(b) of the Criminal
Procedure Act 2009 to remove the requirement for prosecution
consent to a subsequent sentence indication being given during
the proceeding. The effect of this amendment is that a sentence
indication may only be provided on application by the accused
(or the legal representative of the accused) and may only be
provided once unless new section 208(3A) applies.
47
Subclause (2) inserts a new note below section 208(1) of the
Criminal Procedure Act 2009 which refers to section 9B of the
Victims' Charter Act 2006. The amendments to section 9B of
the Victims' Charter Act 2006 impose an obligation on the DPP
to seek the views of a victim before the DPP makes a decision on
whether to oppose an application for a sentence indication and to
give a victim information about the matters taken into account by
the DPP in making a decision on whether to oppose an
application for a sentence indication.
Subclause (3) repeals section 208(2) of the Criminal Procedure
Act 2009 so there is no longer a requirement of prosecutorial
consent for a sentence indication to be given.
Subclause (4) inserts a new section 208(3A) of the Criminal
Procedure Act 2009 to enable a second or subsequent sentence
indication to be given if there has been a change in circumstances
since the previous sentence indication that is likely to materially
affect the sentence indication previously given.
This does not affect any right to appeal against sentence.
The prosecution and accused retain their rights to appeal the
sentence ultimately imposed.
Clause 113 amends section 209 of the Criminal Procedure Act 2009.
Subclause (1) substitutes section 209(1) of the Criminal
Procedure Act 2009. New section 209(1) provides that if the
County Court or the Supreme Court gives a sentence indication
and the accused pleads guilty to any charge to which the sentence
indication relates at the first available opportunity, the Court is
bound by the indication to the extent that a more severe type of
sentence than that indicated must not be imposed.
Subclause (2) repeals section 209(2) of the Criminal Procedure
Act 2009.
The current section 209(2) requires that if the accused does not
plead guilty in response to the indication at the first available
opportunity but instead chooses to proceed with a trial, the trial
must be conducted before a different judge. The trial can be
listed before the same judge with the consent of both parties.
Section 209(2) is repealed as judicial allocations will be managed
by the court, taking into account relevant principles.
48
Clause 114 inserts a new section 209A of the Criminal Procedure Act 2009
to require a review the operation of the amendments made to
Part 5.6 and section 9B of the Victims' Charter Act 2006 by this
Bill.
New section 209A(1) requires the review to determine the
effectiveness of the amendments in reducing delay in the courts,
the impact on victims and the availability of information before
the courts of the impact of an offence on any victim of the
offence at the time that the court is considering an application for
a sentence indication.
New section 209A(2) requires the review to be conducted no
later than 2 years after the amendments are made.
New section 209A will ensure that the impact of the reform,
particularly on victims, is reviewed once the amendments have
had time to take effect.
Clause 115 inserts a new section 459 of the Criminal Procedure Act 2009.
New section 459(1) provides the transitional provision for the
amendments to Part 5.6 of the Criminal Procedure Act 2009.
The transitional provisions apply on and from the day on which
those amendments commence, irrespective of whether the trial
commenced before, on or after the commencement of those
amendments.
New section 459(1) is intended to clarify that the amended
section 207 will apply on and from its commencement, regardless
of whether a trial for the proceeding has commenced. That is, if
the trial has commenced, the amended section 207 will apply
(and therefore a sentence indication will not be available).
New section 459 (2) provides that an accused is not prevented
from applying for a sentence indication under the amendments to
Part 5.6, irrespective of whether a previous sentence indication
was received before the commencement of those amendments.
However, if a previous sentence indication has been given, the
accused would not be provided with a second or subsequent
sentence indication unless there has been a change in
circumstances since the previous sentence indication that is
likely to materially affect the sentence indication previously
given in accordance with amended section 208(1)(b) and new
section 208(3A).
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Division 2--Consequential amendment of Victims' Charter
Act 2006
Clause 116 inserts a definition of sentence indication into section 3(1) of the
Victims' Charter Act 2006 to mean a sentence indication under
section 207 of the Criminal Procedure Act 2009
Clause 117 inserts new sections 9B(1)(ca), 9B(2)(c) and substitutes wording
in section 9B(2)(b) of the Victims' Charter Act 2006.
Subclause (1) inserts new section 9B(1)(ca) into the Victims'
Charter Act 2006 to impose an obligation on the DPP to seek
the views of a victim before the DPP makes a decision on
whether to oppose an application for a sentence indication.
Subclause (2) substitutes the word "jurisdiction" for "jurisdiction;
or" in section 9B(2)(b) of the Victims' Charter Act 2006 to
enable new subsection 9B(2)(c) to be inserted.
Subclause (3) inserts new section 9B(2)(c) into the Victims'
Charter Act 2006 to impose an obligation on the DPP to give a
victim information about the matters taken into account by the
DPP in making a decision on whether to oppose an application
for a sentence indication.
Part 5--Amendments relating to personal safety intervention
orders
Part 5 of the Bill amends the Personal Safety Intervention Orders
Act 2010. These amendments will--
• enable all applicants to make applications for personal safety
intervention orders by electronic communication;
• provide for applicants who are not police officers to make
applications for personal safety intervention orders by
"declaration of truth";
• create an offence to make a false declaration of truth; and
• clarify the existing ability to make applications for personal
safety intervention orders by electronic communication.
Clause 118 inserts a definition of declaration of truth into section 4 of the
Personal Safety Intervention Orders Act 2010. A declaration
of truth means a declaration that complies with section 13(3) of
the Personal Safety Intervention Orders Act 2010, made by an
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applicant in an application for a personal safety intervention
order under section 13(1)(c).
Clause 119 amends section 13 of the Personal Safety Intervention Orders
Act 2010 ("How application is to be made") to provide that an
application for a personal safety intervention order may be made
by electronic communication.
Subclause (1) amends section 13(1)(c) by inserting "or by
declaration of truth" after "affidavit". This amendment enables
an applicant, who is not a police officer, to make an application
for a personal violence intervention order on oath, by affirmation,
by affidavit, or by declaration of truth.
The purpose of the amendment is to enable an application for a
personal safety intervention order, executed by a declaration of
truth, to be filed with the Court online.
A declaration of truth is distinguishable from an oath, affidavit,
affirmation, statutory declaration or other declaration, as it is not
required to be witnessed or executed before a third party. The
use of a declaration of truth is limited to an application for a
personal safety intervention order by an applicant who is not a
police officer.
Subclause (2) amends section 13(3) of the Personal Safety
Intervention Orders Act 2010 to clarify that an application for a
personal safety intervention order may be made by telephone, fax
or other forms of electronic communication, unless otherwise
provided in the court rules.
Subclause (2) inserts new section 13(4) to provide that a
declaration of truth--
• must include the applicant's full name and date of birth;
• must include an acknowledgment that the content of the
application is true and correct to the best of the
applicant's knowledge and belief;
• must include an acknowledgment that the applicant
knows that making a declaration of truth that the
applicant knows to be false is an offence with a penalty
of 600 penalty units or 5 years' imprisonment or both;
• must otherwise comply with any requirements of the
rules of court (if any); and
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• is not required to be witnessed by, or executed before,
any other person.
The purpose of the amendment is to describe the new declaration
of truth. An application for a personal safety intervention order
that is made by a declaration of truth, could be completed online
or in paper form. The requirement prescribed in new section
13(4)(b), that an applicant must acknowledge that the contents of
their application is true and correct to the best of their knowledge
and belief, and the requirement prescribed in new section
13(4)(c), that the applicant must acknowledgment that they know
that making a declaration of truth they know to be false is an
offence with a penalty of 600 penalty units or 5 years'
imprisonment or both, could be satisfied by an applicant being
required to complete tick boxes on the application form
acknowledging that they understand these requirements.
Clause 120 inserts new section 110A of the Personal Safety Intervention
Orders Act 2010 with the heading "Offence to make false
declaration of truth".
New section 110A provides that a person must not knowingly
make a false statement in a declaration of truth, as described in
new section 13(4) inserted by clause 119(2) and doing so may
incur the penalty of 600 penalty units or 5 years' imprisonment or
both. The penalty is consistent with the penalty for making a
statement in a statutory declaration that a person knows to be
untrue pursuant to the Oaths and Affirmations Act 2018.
Clause 121 inserts new section 184A of the Personal Safety Intervention
Orders Act 2010 with the heading "Validation of certain
applications".
New section 184A provides that an application for a personal
safety intervention order that was made by electronic
communication on or after 1 March 2020 by a person other than a
police officer is to be taken to be, and to always have been, a
valid application under Part 3 of the Personal Safety
Intervention Orders Act 2010 as if it were filed at the proper
venue of the court. This will ensure that any personal safety
intervention order applications that were transmitted
electronically to the court from March 2020 that were made prior
the commencement date of the amendments to the Personal
Safety Intervention Orders Act 2010 are taken to have the
same force and effect as if the amendments had been in operation
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during that period. The effect of this amendment is to preserve
the validity of past decisions by the Courts to accept personal
safety intervention order applications electronically.
Part 6--Exercise of jurisdiction conferred under the Family Law
Act 1975 of the Commonwealth
Part 6 enables implementation of Recommendation 133 of the Royal
Commission into Family Violence to "amend the Children, Youth and
Families Act 2005 to clarify that the Children's Court of Victoria has the
same jurisdiction to make Family Law Act 1975 of the Commonwealth
parenting orders as the Magistrates' Court of Victoria."
Clause 122 inserts new section 515(4) into the Children, Youth and
Families Act 2005 to provide that the Family Division of the
Children's Court has any jurisdiction given to the Children's
Court by or under the Family Law Act 1975 of the
Commonwealth.
Clause 123 inserts section 588(1)(ba) into the Children, Youth and
Families Act 2005 to empower the Children's Court to make
rules in relation to any matter relating to the jurisdiction of the
Family Division of the Court granted under new section 515(4)
of the Children, Youth and Families Act 2005.
Part 7--Giving evidence remotely in proceedings relating to
family violence
Part 7 consists of 2 Divisions to enable implementation of
Recommendation 71 of the Royal Commission into Family Violence--
"Permit victim survivors to give evidence from a place other than the
courtroom."
Division 1 amends the Criminal Procedure Act 2009 to enable family
violence victims in criminal proceedings to give evidence from outside of the
courtroom in specified circumstances.
Division 2 amends the Family Violence Protection Act 2008 to enable
family violence victims in family violence intervention order proceedings to
give evidence from outside the courtroom in specified circumstances.
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Division 1--Amendments of the Criminal Procedure Act 2009
Clause 124 inserts new sections 363(1) and 363(2) of the Criminal
Procedure Act 2009 to provide that where a witness is a
complainant in a proceeding that relates to a charge for an
offence where the conduct constituting the offence consists of
family violence within the meaning of the Family Violence
Protection Act 2008, the court must direct that evidence be
given in accordance with section 360(a) if the facilities are
available and it is practicable to do so. The court is not required
to direct such occur if the prosecution applies for the complainant
to give evidence in the courtroom; and the court is satisfied that
the complainant is aware of their right to give evidence in another
place, and is able and wishes to give evidence in the courtroom.
Clause 125 makes a statute law revision amendment to correct a cross-
reference.
Division 2--Amendment of the Family Violence Protection
Act 2008
Clause 126 inserts new section 69(1A) of the Family Violence Protection
Act 2008 to provide that unless the court is satisfied that a
witness who is a protected witness, is able and wishes to give
evidence in the courtroom, direct that an arrangement to give
evidence under an alternative arrangement be provided, if closed-
circuit television or other facilities that enable communication
between the courtroom and the other place is available and it is
practicable to do so.
The clause also substitutes section 69(3) of the Family Violence
Protection Act 2008 so that if the witness is a child, the court
must direct such an arrangement be used for giving evidence be
used if the facilities that enable communication between the
courtroom and the other place are available and it is practicable
to do so, unless the court is satisfied that the child is able and
wishes to give evidence in the courtroom; and it is appropriate to
do so, having regard to the age and maturity of the witness.
The clause amends section 69(1)(a) of the Family Violence
Protection Act 2008 to substitute "permitting" for "subject to
subsections (1A) and (3), permitting", so that the general
provision for alternative arrangements for proceedings now
operates subject to new subsections (1A) and (3).
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The clause also makes a consequential amendment to
section 69(2) of the Family Violence Protection Act 2008 to
insert after "(1)" a reference to new subsection "or (1A)".
Part 8--Repeal of this Act
Clause 127 provides for the automatic repeal of this amending Act on
1 October 2023. This repeal does not affect the continuing
operation of the amendments made by it--see section 15(1) of
the Interpretation of Legislation Act 1984.
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