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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 64
As laid on the table and read a first time, 24 November 2004
South Australia
Justices
of the Peace Bill 2004
A Bill For
An
Act to provide for the appointment of justices of the peace; to repeal the Justices
of the Peace Act 1991; and to make related amendments to various other
Acts.
Contents
1 Short title
2 Commencement
3 Interaction of this Act with other
Acts
4 Interpretation
5 Appointment of suitable persons as
justices
6 Appointment of persons occupying
certain offices as justices
7 Justices must take oath before
exercising official powers
8 Special justices
9 Tenure of office
10 Justice may apply for suspension of
official duties for personal reasons
11 Disciplinary action and removal of
justices from office
12 Disciplinary action—retired justices
13 Roll of justices
14 Use of titles and descriptions
15 Immunity of justices
16 Offence to hold out etc
17 Regulations
Schedule 1—Repeal and transitional provisions
1 Repeal of Justices of the Peace
Act 1991
2 Transitional provision
Schedule 2—Related amendments
Part 1—Interpretation
1 Amendment provision
Part 2—Amendment of Acts
Interpretation Act 1915
2 Amendment of section 4—Interpretation
3 Amendment of section 44—Interpretation
of references to summary proceedings
Part 3—Amendment of
Administration and Probate Act 1919
4 Repeal of sections 125 and 126
Part 4—Amendment of Adoption
Act 1988
5 Amendment of section 4—Interpretation
6 Transitional provision
Part 5—Amendment of Bail
Act 1985
7 Amendment of section 14—Review of
decisions of bail authorities
8 Amendment of section 15—Telephone
review
Part 6—Amendment of
Correctional Services Act 1982
9 Amendment of section 17—Establishment
of Visiting Tribunals
10 Amendment of section 20—Correctional
institutions must be inspected on regular basis
11 Amendment of section 28—Removal of
prisoner for criminal investigation, attendance in court etc
12 Amendment of section 41—Powers of
Visiting Tribunal
13 Amendment of section 42—Immunity from
liability of persons who constitute Visiting Tribunals
14 Amendment of section 47—Appeals
against orders of Visiting Tribunals
15 Amendment of section 89—Regulations
16 Transitional provision
Part 7—Amendment of Criminal
Law Consolidation Act 1935
17 Amendment of section 299A—Orders as to
firearms and offensive weapons
Part 8—Amendment of Debtors
Act 1936
18 Amendment of section 3—Abolition of
imprisonment for debt
Part 9—Amendment of Drugs
Act 1908
19 Amendment of section 5—Interpretation
20 Amendment of section 35—Diseased or
unsound drugs may be seized or destroyed
21 Amendment of section 36—Search warrant
22 Amendment of section 50—Proceedings
Part 10—Amendment of Family
and Community Services Act 1972
23 Amendment of section 168—Bond or
security for compliance with maintenance order
24 Amendment of section 169—Power to
commit for failure to pay maintenance
25 Amendment of section 174—Warrant for
arrest of deserter
26 Amendment of section 237—Exclusion of
persons from the hearing of certain cases
Part 11—Amendment of
Impounding Act 1920
27 Amendment of section 30—Delivery of
cattle on recognizance without payment of damages
28 Repeal of section 47
29 Repeal of Schedule 9
Part 12—Amendment of Landlord
and Tenant Act 1936
30 Amendment of section 24—Jurisdiction
of Magistrates Court to hear adverse claims
31 Amendment of section 25—Decision of
Magistrates Court
32 Amendment of section 26—Power of
landlord to hold goods
33 Transitional provision
Part 13—Amendment of Local
Government Act 1999
34 Amendment of section 58—Specific roles
of principal member
Part 14—Amendment of Lottery
and Gaming Act 1936
35 Amendment of section 4—Interpretation
36 Amendment of section 95—Giving false
name and address
37 Amendment of section 105—Reasonable
suspicion sufficient to set up a prima facie case
38 Amendment of section 115—Entry of
shops, factories and club premises
39 Repeal of Schedule 4
Part 15—Amendment of
Magistrates Court Act 1991
40 Amendment of section 3—Interpretation
41 Amendment of section 7A—Constitution
of Court
42 Transitional provision
Part 16—Amendment of Real
Property Act 1886
43 Repeal of sections 235 and 236
Part 17—Amendment of Renmark
Irrigation Trust Act 1936
44 Repeal of section 210
Part 18—Amendment of Youth
Court Act 1993
45 Amendment of section 3—Interpretation
46 Amendment of section 9—The Court's
judiciary
47 Amendment of section 14—Constitution
of Court
48 Amendment of section 22—Appeals
49 Transitional
provision
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Justices of the Peace Act 2004.
This Act will come into operation on a day to be fixed by
proclamation.
3—Interaction of this Act with other Acts
To avoid doubt, a reference in any other Act to a justice and the
exercise of an official power by the justice under that Act is to be read as a
reference only to a justice who is, under the conditions of his or her
appointment, able to exercise that official power.
In this Act, unless the contrary intention
appears—
code of conduct means a code of conduct referred to or incorporated in the
regulations;
justice means a justice of the peace for South Australia (however
appointed), and includes a special justice;
principal member of a council has the same meaning as in the Local
Government Act 1999.
5—Appointment of suitable persons as justices
(1) The
Governor may, on the recommendation of the Attorney-General, by notice in the
Gazette, appoint a suitable person to be a justice of the peace for South
Australia.
(2) A
justice will be appointed on conditions determined by the Governor for a term,
not exceeding 5 years, specified in the instrument of appointment and, at the
expiration of a term of appointment, is eligible for reappointment.
(3) The
conditions of appointment may include conditions specifying or limiting the
official powers that the justice may exercise.
(4) An application for appointment as a justice
must—
(a) be
made to the Attorney-General in the manner and form approved by the
Attorney-General; and
(b) be
accompanied—
(i) by
such evidence as the Attorney-General thinks appropriate as to the identity,
age and address of the applicant; and
(ii) by
any other information required by the Attorney-General for the purposes of
determining the application.
(5) The
Attorney-General must give the Commissioner of Police a copy of each
application for appointment.
(6) As soon as reasonably practicable following
receipt of any such application, the Commissioner of Police—
(a) must
make available to the Attorney-General information about criminal convictions;
and
(b) may
make available to the Attorney-General other information to which the
Commissioner of Police has access,
relevant to whether the application should be granted.
(7) The Attorney-General will not recommend the
appointment of a person as a justice unless the Attorney-General is satisfied
the person—
(a) is
at least 18 years of age; and
(b) is
an Australian citizen resident in South Australia; and
(c) is
of good character; and
(d) meets
the requirements prescribed by the regulations.
6—Appointment of persons occupying certain offices as justices
(1) The
Governor will, on application by a Member of Parliament or the principal member
of a council, by notice in the Gazette, appoint the Member of Parliament or
principal member of a council to be a justice of the peace for South Australia.
(2) A
justice will be appointed on conditions determined by the Governor and
specified in the instrument of appointment only for the term during which the
justice also holds office as a Member of Parliament or principal member of a
council (as the case may be).
(3) The
conditions of appointment may include conditions specifying or limiting the
official powers that the justice may exercise.
7—Justices must take oath before exercising official powers
(1) A
justice may not exercise official powers as a justice until the justice has
taken the oaths required of a justice under the Oaths Act 1936.
(2) The oaths must—
(a) be
taken before—
(i) a
Judge of the Supreme Court or District Court, or a Magistrate; or
(ii) a
commissioner for taking affidavits in the Supreme Court; and
(b) be
signed by the person taking the oaths and attested by the person before whom
the oaths are taken.
(1) The
Governor may, on the recommendation of the Attorney-General, appoint a justice
to be a special justice.
(2) A
special justice will be appointed on conditions determined by the Governor and
specified in the instrument of appointment for the term during which the
special justice also holds office as a justice.
(3) The Attorney-General will not recommend
that a justice be appointed as a special justice unless the Attorney-General is
satisfied that the justice—
(a) has
successfully completed a course of training approved (after consultation with
the Chief Justice of the Supreme Court) by the Attorney-General; and
(b) is,
in the opinion of the Attorney-General, suitable to be appointed as a special
justice; and
(c) meets
the requirements prescribed by the regulations.
(4) The
conditions of appointment may include conditions specifying or limiting the
official powers that the special justice may exercise.
(5) A
special justice is entitled to such remuneration as may be determined by the
Governor for the performance of judicial duties.
The office of a justice becomes vacant—
(a) if
the justice—
(i) dies;
or
(ii) resigns
by written notice to the Attorney-General; or
(iii) completes
a term of office and is not reappointed; or
(iv) ceases
to satisfy the qualification by virtue of which the member was eligible for
appointment as a justice; or
(v) is
removed from office under this Act; or
(b) during
any period of suspension from office under this Act.
10—Justice may apply for suspension of official duties for personal reasons
(1) The
Governor may, on application by a justice, by notice in writing, suspend the
justice from office for a specified period or until further notice (but not in
any event for a period exceeding 2 years) if satisfied that there are personal
reasons for so doing.
(2) The
suspension may be revoked by further notice.
(3) For
the purposes of subsection (1)—
personal reasons include illness, family or business commitments, or prolonged
absence from the State.
11—Disciplinary action and removal of justices from office
(1) There is proper cause for taking
disciplinary action against a justice if the justice—
(a) breaches,
or fails to comply with, a condition of his or her appointment (whether as a
justice or special justice); or
(b) breaches,
or fails to comply with, a prescribed provision of a code of conduct.
(2) If the Governor is satisfied that there is
proper cause for taking disciplinary action against a justice, the Governor
may, by notice in writing, do one or more of the following:
(a) reprimand
the justice;
(b) impose
conditions or further conditions on the justice's appointment;
(c) suspend
the justice from office for a specified period or until the fulfilment of
stipulated conditions or until further notice (but not in any event for a
period exceeding 2 years).
(3) If
a justice is charged with an offence, the Governor may, if of the opinion that
conviction of the offence would show the justice to be unfit to hold office, by
notice in writing, suspend the justice from office until proceedings based on the
charge have been completed.
(4) A
suspension may be revoked by further notice.
(5) If a justice—
(a) is
mentally or physically incapable of carrying out official functions
satisfactorily; or
(b) is
convicted of an offence that, in the opinion of the Governor, shows the
convicted person to be unfit to hold office as a justice; or
(c) is
bankrupt or applies to take the benefit of a law for the relief of bankrupt or
insolvent debtors; or
(d) should,
in the Governor's opinion, be removed from office for any other reason,
the Governor may, by notice in the Gazette, remove the justice
from office.
(6) A
person who has been removed from office may not apply for reappointment as a
justice for a period of 5 years from the date of removal or such longer period
as may be specified by the Governor in the notice of removal.
12—Disciplinary action—retired justices
(1) There
is proper cause for taking disciplinary action against a person who uses the
title "JP (Retired)", or any other title that suggests that the
person is a retired justice, in contravention of a code of conduct.
(2) If the Governor is satisfied that there is
proper cause for taking disciplinary action against such a person, the Governor
may, by notice in writing, do one or more of the following:
(a) reprimand
the person;
(b) prohibit
the person from using "JP (Retired)", or any other title or
description that suggests that the person was a justice, together with his or
her name or signature.
(1) The
Attorney-General must maintain a roll of justices.
(2) The following information must be recorded
in the roll in relation to each justice:
(a) the
justice's name;
(b) the
town or suburb in which the justice resides and the town or suburb in which the
justice works;
(c) the
telephone number on which the justice can be contacted during business hours
and after business hours;
(d) if
the justice is also a special justice—that information.
(3) The
information about a justice who dies or is suspended or removed from office
must be removed from the roll.
(4) The
roll may be kept in the form of a computer record.
(5) The
roll is to be available for inspection, without fee, during ordinary office
hours at a public office, or public offices, determined by the
Attorney-General.
(6) The
Attorney-General may determine that the roll can be inspected at a website
determined by the Attorney-General.
14—Use of titles and descriptions
(1) "JP"
appearing with a person's name or signature will be taken to signify that the
person is a justice.
(2) "SJ"
appearing with a person's name or signature will be taken to signify that the
person is a special justice.
(3) "JP
(Retired)" appearing with a person's name or signature will be taken to
signify that the person is a retired justice.
A justice incurs no civil or criminal liability for an honest act
or omission in carrying out or purportedly carrying out official functions.
(1) A person who is not a justice must not—
(a) hold
himself or herself out as a justice; or
(b) permit
another person to do so; or
(c) use "JP", or any other title or
description that implies that the person is a justice, together with his or her
name or signature.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) A person who is not a special justice must
not—
(a) hold
himself or herself out as a special justice; or
(b) permit
another person to do so; or
(c) use "SJ", or any other title or
description that implies that the person is a special justice, together with
his or her name or signature.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3) A person must not hold out another as a
justice or special justice unless that other person is a justice or special
justice.
Maximum penalty: $10 000 or imprisonment for 2 years.
(4) A person must not use "JP
(Retired)", or any other title or description that implies that the person
was a justice, together with his or her name or signature unless the person—
(a) served
as a justice for at least the prescribed period; and
(b) was
not removed from office; and
(c) has not been prohibited by the Governor
from using any such title or description.
Maximum penalty: $2 500.
(1) The
Governor may make such regulations as are contemplated by, or necessary or
expedient for the purposes of, this Act.
(2) Without limiting the generality of
subsection (1), the regulations may—
(a) require
justices, special justices or retired justices to comply with a code of
conduct; and
(b) exempt
(conditionally or unconditionally) persons from specified provisions of this
Act.
(3) The
regulations may incorporate or operate by reference to a specified code as in
force at a specified time or as in force from time to time.
(4) If a code is referred to or incorporated in
the regulations—
(a) a
copy of the code must be kept available for inspection by members of the
public, without charge and during normal office hours, at an office determined
by the Attorney-General;
(b) evidence
of the contents of the code may be given in legal proceedings by production of
a document apparently certified by the Attorney-General to be a true copy of
the code.
Schedule 1—Repeal and transitional provisions
1—Repeal of Justices of the Peace Act 1991
The Justices of the Peace Act 1991 is repealed.
(1) Subject
to this Act, a person holding office as a justice immediately before the
commencement of this clause will continue in office from that commencement
until the end of the period prescribed by the Minister by notice in the Gazette
in relation to that justice.
(2) A
justice continuing in office under this clause may apply for appointment under
this Act.
Part 1—Interpretation
In this Schedule, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment
of Acts Interpretation Act 1915
2—Amendment of section 4—Interpretation
Section 4(1)—after the definition of sitting
days insert:
special justice means a justice who has been appointed as a special justice;
3—Amendment of section 44—Interpretation of references to summary proceedings
(1) Section 44(1)—delete "Justices Act
1921 as simple offences" and substitute:
Summary Procedure Act 1921 as summary offences
(2) Section 44(2)—delete "Justices Act
1921" and substitute:
Part 3—Amendment
of Administration and Probate Act 1919
4—Repeal of sections 125 and 126
Sections 125 and 126—delete the sections
Part 4—Amendment
of Adoption Act 1988
5—Amendment of section 4—Interpretation
(1) Section
4(1), definition of the Court—delete "constituted of a Judge
or a magistrate and two justices (at least one of the three being a woman and
at least one a man)"
(2) Section 4—after subsection (1) insert:
(1a) For
the purposes of this Act, the Court must be constituted of a Judge, or a
magistrate and special justice.
(1b) If the Court is constituted of a magistrate
and special justice—
(a) questions
of law or procedure will be determined by the magistrate; and
(b) other
questions will be decided by agreement unless no agreement can be reached, in
which case, the decision of the magistrate will be the decision of the Court.
An amendment made by Schedule 2 of the Justices of the Peace
Act 2004 to the Adoption Act 1988 does not apply in respect of
proceedings commenced before the commencement of the amending provision (and
those proceedings may continue as if the amending provision had not been
enacted).
Part 5—Amendment
of Bail Act 1985
7—Amendment of section 14—Review of decisions of bail authorities
Section 14(2)(b)—delete
"justices" and substitute:
a special justice
8—Amendment of section 15—Telephone review
(1) Section 15(1)(a)—delete
"justices" first occurring and substitute:
a special justice
(2) Section 15(1)—delete "justices"
second occurring and substitute:
special justice
(3) Section 15(2)(b)—delete
"justices" and substitute:
special justice
(4) Section 15(2)(d)—delete
"justices" first occurring and substitute:
a special justice
(5) Section 15(2)(d)—delete
"justices" second occurring and substitute:
special justice
(6) Section 15(2)(e)—delete
"justices" and substitute:
special justice
Part 6—Amendment
of Correctional Services Act 1982
9—Amendment of section 17—Establishment of Visiting Tribunals
Section 17(2)—delete paragraphs (b) and
(c) and substitute:
(b) a
special justice,
10—Amendment of section 20—Correctional institutions must be inspected on regular basis
Section 20(3)—delete "or is a member of such a Tribunal"
11—Amendment of section 28—Removal of prisoner for criminal investigation, attendance in court etc
(1) Section
28(1)—delete "a justice or"
(2) Section
28(2)—delete "justice," wherever occurring
12—Amendment of section 41—Powers of Visiting Tribunal
(1) Section 41(1)(a)—delete "person, or
one of the persons, constituting the Tribunal" and substitute:
Visiting Tribunal
(2) Section 41(1)(b)—delete "person, or
one of the persons, constituting the Tribunal" and substitute:
Visiting Tribunal
(3) Section
41(1)(d)—delete "the person, or one of the persons, constituting"
(4) Section
41(1)(e)—delete ", or one of the persons constituting the Visiting
Tribunal,"
(5) Section
41(2)(b)—delete "or any person who constitutes a Visiting Tribunal,"
13—Amendment of section 42—Immunity from liability of persons who constitute Visiting Tribunals
(1) Section
42—delete ", or is a member of,"
(2) Section 42—delete "by the person, or
by the Visiting Tribunal," and substitute:
by the Visiting Tribunal
14—Amendment of section 47—Appeals against orders of Visiting Tribunals
Section 47(1a)(b)—delete "justice, or
justices, of the peace" and substitute:
special justice
15—Amendment of section 89—Regulations
Section 89(2)(f)—delete ", or of persons constituting
Visiting Tribunals"
An amendment made by Schedule 2 of the Justices of the Peace
Act 2004 to the Correctional Services Act 1982 does not apply
in respect of proceedings commenced before the commencement of the amending
provision (and those proceedings may continue as if the amending provision had
not been enacted).
Part 7—Amendment
of Criminal Law Consolidation Act 1935
17—Amendment of section 299A—Orders as to firearms and offensive weapons
Section 299A(6), definition of court—delete
"or special magistrate or justices" and substitute:
magistrate or special justice
Part 8—Amendment
of Debtors Act 1936
18—Amendment of section 3—Abolition of imprisonment for debt
Section 3(1)(b)—delete "before a justice or justices or a
special magistrate of the State"
Part 9—Amendment
of Drugs Act 1908
19—Amendment of section 5—Interpretation
(1) Section
5, definition of court—delete the definition
(2) Section
5, definition of justice—delete the definition
20—Amendment of section 35—Diseased or unsound drugs may be seized or destroyed
Section 35II—delete "a special
magistrate or two justices" and substitute:
the court
21—Amendment of section 36—Search warrant
Section 36—delete "special magistrate
or two justices" and substitute:
court
22—Amendment of section 50—Proceedings
Section 50—delete "before a special magistrate or any two
justices of the peace"
Part 10—Amendment
of Family and Community Services Act 1972
23—Amendment of section 168—Bond or security for compliance with maintenance order
(1) Section
168(2)—delete "a justice"
(2) Section 168(2)—delete "the
justice" and substitute:
the court
24—Amendment of section 169—Power to commit for failure to pay maintenance
Section 169(3)—delete "or a justice"
25—Amendment of section 174—Warrant for arrest of deserter
Section 174(4)—delete "A
justice" and substitute:
The court
26—Amendment of section 237—Exclusion of persons from the hearing of certain cases
Section 237(2)(a)—delete ", or
justices," and substitute:
or justice
Part 11—Amendment
of Impounding Act 1920
27—Amendment of section 30—Delivery of cattle on recognizance without payment of damages
Section 30(1)—delete "any justice in
the form and with the conditions set forth in Schedule 9, such justice"
and substitute:
a court, the court
Section 47—delete the section
Schedule 9—delete the Schedule
Part 12—Amendment
of Landlord and Tenant Act 1936
30—Amendment of section 24—Jurisdiction of Magistrates Court to hear adverse claims
Section 24(2)—delete subsection (2) and
substitute:
(2) The
Magistrates Court has jurisdiction to hear a claim under subsection (1) and may
make such orders, including an order as to costs, as the Court thinks fit.
31—Amendment of section 25—Decision of Magistrates Court
Section 25—delete "justices before
whom the complaint is heard shall find accordingly, and their decision shall be
deemed" and substitute:
Magistrates Court must decide accordingly and the decision will be
taken
32—Amendment of section 26—Power of landlord to hold goods
Section 26—delete "justices
adjudicating upon such claim shall think fit, shall, if the justices so
order" and substitute:
Magistrates Court thinks fit, will, if the Court so orders
An amendment made by Schedule 2 of the Justices of the Peace
Act 2004 to the Landlord and Tenant Act 1936 does not apply in
respect of proceedings commenced before the commencement of the amending
provision (and those proceedings may continue as if the amending provision had
not been enacted).
Part 13—Amendment
of Local Government Act 1999
34—Amendment of section 58—Specific roles of principal member
Section 58(3)—delete subsection (3)
Part 14—Amendment
of Lottery and Gaming Act 1936
35—Amendment of section 4—Interpretation
Section 4, definition of court—delete the definition
36—Amendment of section 95—Giving false name and address
(1) Section 95—delete "any justices"
and substitute:
a court
(2) Section 95—delete "or person or by
such justices" and substitute:
, person or court
37—Amendment of section 105—Reasonable suspicion sufficient to set up a prima facie case
Section 105(1)—delete "special
magistrate or justices" and substitute:
court
38—Amendment of section 115—Entry of shops, factories and club premises
(1) Section
115(1)—delete "justice or any"
(2) Section 115(2)(a)—delete "justice,
officer," and substitute:
officer
Schedule 4—delete the Schedule
Part 15—Amendment
of Magistrates Court Act 1991
40—Amendment of section 3—Interpretation
Section 3(1), definition of judicial
office—delete ", Special Justice or Justice" and substitute:
or special justice
41—Amendment of section 7A—Constitution of Court
Section 7A(2)—delete "two Justices or
a Special Justice" and substitute:
special justice but when so constituted, the Court may not impose
a sentence of imprisonment in criminal proceedings
An amendment made by Schedule 2 of the Justices of the Peace
Act 2004 to the Magistrates Court Act 1991 does not apply in
respect of proceedings commenced before the commencement of the amending
provision (and those proceedings may continue as if the amending provision had
not been enacted).
Part 16—Amendment
of Real Property Act 1886
43—Repeal of sections 235 and 236
Sections 235 and 236—delete the sections
Part 17—Amendment
of Renmark Irrigation Trust Act 1936
Section 210—delete the section
Part 18—Amendment
of Youth Court Act 1993
45—Amendment of section 3—Interpretation
Section 3, definition of judicial
office—delete ", special justice or justice" and substitute:
or special justice
46—Amendment of section 9—The Court's judiciary
(1) Section
9(1)(d)—delete "justices and"
(2) Section
9(5)—delete "justices and" wherever occurring
47—Amendment of section 14—Constitution of Court
(1) Section
14(4)—delete "two justices or"
(2) Section
14(5)—delete ", two justices"
(3) Section 14(7)—delete "Justice"
and substitute:
special justice
48—Amendment of section 22—Appeals
(1) Section
22(2)(a)—delete ", two justices"
(2) Section
22(2)(c)—delete ", two justices"
An amendment made by Schedule 2 of the Justices of the Peace Act 2004 to the Youth Court Act 1993 does not apply in respect of proceedings commenced before the commencement of the amending provision (and those proceedings may continue as if the amending provision had not been enacted).