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Courts Legislation (Amendment) Bill
Circulation Print
EXPLANATORY MEMORANDUM
General
Part 1 of the Bill sets out the purposes and provides for commencement.
Part 2 of the Bill amends the Constitution Act 1975 and the County Court
Act 1958 to enable prior service as a judge in a federal or State or Territory
court (except the Federal or a State Magistrates' Court or equivalent) to be
taken into account for the purpose of accruing an entitlement to a judicial
pension in Victoria.
Part 3 of the Bill amends the Magistrates' Court Act 1985 to--
· clarify the operation of Part 4 of Schedule 7 of the Act as it applies
to persons without a mental disability;
· allow the Court to make orders for diversion programs in relation
to offences that attract demerit points;
· facilitate the appointment of Deputy Chief Magistrates on limited
tenure;
· validate prior Court Orders.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill which is to amend the
Constitution Act 1975 and the County Court Act 1958 with
respect to the recognition for pension purposes of certain prior
service of persons appointed as judges and to amend the
Magistrates' Court Act 1989 to provide for the fixed term
appointment of Deputy Chief Magistrates and to clarify the
operation of the diversion program and PERIN system.
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Clause 2 relates to the commencement of the Bill. It provides for Part 1 of
the Bill to commence on Royal Assent. Part 2 of the Bill is
deemed to have commenced on 1 May 2003, to ensure that the
ability to attract high quality candidates to judicial office in
Victoria is not compromised by any delay in the passage of the
Bill.
PART 2--JUDICIAL PENSIONS
Clause 3 amends section 83(6) of the Constitution Act 1975.
This amendment concerns prior service as a judge by persons
appointed as Judges of the Supreme Court of Victoria.
The purpose of this amendment is to enable prior judicial service
in federal, State or Territory Courts (save for Magistrates' Courts
or equivalent) to be taken into account for the purpose of
accruing an entitlement to a judicial pension in Victoria.
Clause 3 also amends section 83(1) of the Constitution Act
1975. This entitles a Judge of the Supreme Court of Victoria
who undertook service as a judge in a federal court or a State or
Territory Court (save for the Federal or a State Magistrates Court
or equivalent) prior to 18 May 1995 to a judicial pension at
age 60, provided that they have accumulated a total of ten years'
judicial service.
Clause 3 also amends section 83(4) of the Constitution Act
1975. This provides that the amount of the Victorian pension
shall be reduced by the amount of the federal or interstate
pension, where there is an entitlement to a pension under the
Victorian legislation and to a pension from another jurisdiction
relating to prior judicial service in another Australian jurisdiction.
Clause 4 amends the County Court Act 1958. It makes the same
amendments as those contained in clause 3, except that these
pertain to the pension entitlements of Judges of the County Court
of Victoria.
PART 3--AMENDMENT TO MAGISTRATES' COURT ACT
1989
Clause 5 inserts a new sub-section 2A into section 7 of the Magistrates'
Court Act 1989. The effect of section 7(2A) is to enable Deputy
Chief Magistrates who are appointed after the commencement of
the provision to be appointed on a fixed term basis for up to five
years.
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Clause 6 amends section 128A of the Magistrates' Court Act 1989 to
clarify that persons charged with an offence or offences which
attract demerit points under the Road Safety Act 1986 can be
subject to a diversion program order. Clause 6 also inserts sub-
section 128A(7) into the Magistrates' Court Act 1989 to ensure
that offenders subject to such an order would still suffer the loss
of demerit points in the normal way. Clause 6 provides that
people charged with offences under section 49(1) of the Road
Safety Act 1986, which are offences involving alcohol or other
drugs, are explicitly excluded from participating in the diversion
program.
Clause 7 provides that it is the intention of clause 29 of Schedule 7, as
affected by the new clause 28(4) of that Schedule, to alter or vary
section 85 of the Constitution Act 1975. Clause 29 provides
that no proceedings may be brought in respect of any matter or
thing that has been deemed to be lawful or valid due to the
operation of clause 28.
Clause 8 Clause 8 amends clause 24(1) of Schedule 7 of the Magistrates'
Court Act 1989 to clarify that PERIN fine defaulters who are not
suffering from a mental disorder may be placed on a community
based order or sentenced to a term of imprisonment.
Clause 9 Clause 9 inserts clause 28(4) into Schedule 7. Clause 28(4)
validates past orders made or purported to be made before the
commencement of section 8 of the Courts Legislation
(Amendment) Act 2003. The purpose of this clause is to
validate orders of a court that place PERIN fine defaulters who
are not suffering from a mental disorder on a community based
order, or impose a term of imprisonment with respect to such fine
defaulters.
Clause 9, in amending clause 28 of Schedule 7, attracts the
operation of clause 29 of that Schedule. Clause 29 provides that
no proceedings may be brought in respect of any matter or thing
that is deemed to have been lawfully or validly done due to the
operation of clause 28. Clause 29 limits the jurisdiction of the
Supreme Court. In amending clause 28 to validate past actions,
this clause varies section 85 of the Constitution Act 1975.
Clause 10 Clause 10 inserts a new clause 29 into Schedule 8 of the
Magistrates' Court Act 1989. Clause 29 is a transitional
provision, and states that the amendments made to section 128A
of the Magistrates' Court Act 1989 by section 6 of the Courts
Legislation Amendment Act 2003 apply to proceedings for an
offence, whether committed before or after the commencement of
that section.
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