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Court Services Victoria Bill 2013
Introduction Print
EXPLANATORY MEMORANDUM
General
The Court Services Victoria Bill 2013 establishes Court Services Victoria as
a statutory public sector body to provide the administrative services and
facilities for Victoria's courts and VCAT which are currently delivered
through the Department of Justice.
The primary function of Court Services Victoria will be to provide, or
arrange for the provision of, the administrative facilities and services
necessary for the performance of the judicial and administrative functions of
the courts and VCAT. Whilst the courts themselves will remain as separate
and distinct entities and their governing councils, internal arrangements and
rule-making responsibilities will remain unchanged, their executives will
come together with the Chief Executive Officer to manage Court Services
Victoria as a whole.
The governing body of Court Services Victoria will be the Courts Council
which will be chaired by the Chief Justice and will comprise the heads of
each jurisdiction and up to two appointed non-judicial members with
expertise in the areas of finance, administration or management. The Courts
Council will direct the strategy and governance of Court Services Victoria,
and importantly this Bill enshrines a governance structure for the courts and
VCAT that is independent of the direction of executive government.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill, which is to establish Court
Services Victoria.
571098 1 BILL LA INTRODUCTION 29/10/2013
Clause 2 provides that the provisions of the Bill come into operation on a
day or days to be proclaimed or, if not proclaimed sooner, on
1 July 2014.
Clause 3 sets out the definitions of key words or terms used in the Bill.
Clause 4 sets out the single Object of the Bill, which is to support judicial
independence in the administration of justice in Victoria by
establishing a body to provide the administrative services and
facilities necessary for the Victorian courts and VCAT to operate
independently of the direction of the executive branch of
government.
PART 2--COURT SERVICES VICTORIA
Clause 5 establishes Court Services Victoria as a body corporate with
perpetual succession that has an official seal, is a body that may
acquire, hold and dispose of real and personal property, that may
sue and be sued, and that may do and suffer all things a body
corporate may by law do and suffer.
Clause 6 sets out the requirements in relation to the use of the official seal
of Court Services Victoria, including that it must be kept in
custody as directed by the Courts Council, must not be used
except as authorised by the Courts Council, and that all courts
and tribunals must take judicial notice of the seal of Court
Services Victoria affixed to a document and must presume that
it was duly affixed until the contrary is proved.
Clause 7 Subclause (1) provides that Court Services Victoria represents
the Crown. This is consistent with the approach taken to the
South Australian Courts Administration Authority, and with
respect to the judicial administration of the Commonwealth
courts.
Subclause (2) clarifies that the fact of representing the Crown
does not detract from the independence of Court Services
Victoria from the direction of the executive branch of
government.
Clause 8 sets out the function of Court Services Victoria, which is to
provide, or arrange the provision of the administrative services
and facilities necessary or desirable to support the Supreme
Court, County Court, Magistrates' Court, Children's Court,
Coroners Court and VCAT in the performance of their judicial,
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quasi-judicial and administrative functions. This clause makes it
clear that included in the Court Services Victoria function is
responsibility for the provision of administrative services and
facilities to enable the Judicial College of Victoria to perform its
functions.
Clause 9 sets out that Court Services Victoria has the power to do all
things necessary or convenient to be done for or in connection
with, or as incidental to, the performance of its function.
PART 3--THE COURTS COUNCIL
Division 1--Establishment and functions and powers of the
Courts Council
Clause 10 establishes the Courts Council as the governing body of Court
Services Victoria and equips the Council with the general
direction and superintendence of the body, and capacity to
perform the function and exercise of its powers.
Clause 11 sets out the functions and powers of the Courts Council that are
additional to those of Courts Services Victoria. Importantly these
include directing the strategy, governance and risk management
of the body, appointing the Chief Executive Officer of Court
Services Victoria, and the Court Chief Executive Officers for
each jurisdiction. Locating these functions and powers with the
Courts Council ensures that Court Services Victoria is free from
the direction of the executive branch of government and operates
under judicial control and direction.
Division 2--Members of the Courts Council
Clause 12 Subclause (1) sets out that the Courts Council consists of judicial
members and up to 2 other members appointed under Clause 14.
Subclause (2) sets out the judicial members of the Courts Council
as the Chief Justice, the Chief Judge, the Chief Magistrate, the
President of the Children's Court, the State Coroner and the
President of VCAT.
Subclause (3) provides that the Chair of the Courts Council is the
Chief Justice.
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Clause 13 sets out the arrangements for a judicial member of the Courts
Council to appoint a nominee to act for them in their absence.
Subclause (1) provides for a judicial member to nominate a
person to act as their nominee on the Courts Council in their
absence. This ensures that there is appropriate representation
from each of the jurisdictions at times when the relevant head of
jurisdiction may be on leave or otherwise unable to attend a
meeting of the Council.
Subclause (2) sets out who is able to be a nominee of a judicial
member of the Courts Council. In the case of the President of
VCAT the nominee must be a Vice President or Deputy President
of VCAT. For all other judicial members the nominee must be a
judicial officer from the jurisdiction of that member.
Subclause (3) sets out that while a nominee is acting in the
absence of a judicial member of the Courts Council they may
exercise any of the powers or functions of the judicial member
and that the provisions in this Division of the Bill that refer to a
judicial member apply to the nominee as if they were a judicial
member.
Clause 14 provides the Courts Council with the ability to appoint additional
council members with relevant experience in the areas of finance,
administration or management to assist and advise the council in
performing its functions.
Subclause (1) provides for the appointment of up to two other
members of the Courts Council by a majority of the judicial
members.
Subclause (2) requires a person appointed under Subclause (1) to
have relevant experience or qualifications in finance,
administration or management.
Subclause (3) provides the relevant grounds for the removal or
suspension of an appointed member by a majority of the judicial
members of the Courts Council.
Subclause (4) sets out the means by which an appointed member
may resign from the Courts Council.
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Division 3--Procedures and decisions of the Courts Council
Clause 15 sets out the procedures of the Courts Council including the
minimum frequency of meetings, the ability of judicial members
to request a meeting, the requirements for achieving a quorum,
the requirement for decisions of the Council to be by majority,
that the Chair has a casting and deliberative vote where a vote is
tied, and that outside of these procedures the Council may
regulate its own procedures and those of any committees it forms.
Clause 16 sets out the restrictions on the Courts Council decision-making
powers where the Chief Justice is of the opinion that a possible
decision of the Council would be incompatible with, or would
substantially impair or detract from, the institutional integrity of a
participating court, or the capacity of the Supreme Court to
function as the Supreme Court of the State.
Clause 16 provides that if the Chief Justice holds this opinion, he
or she must inform the Council accordingly and if, after the
matter had been discussed at a meeting of the Council, the Chief
Justice remains of that opinion, the decision cannot be made.
If the Chief Justice forms such an opinion, the Chief Justice must
provide to the Council a written statement of the reasons for so
doing, which is to be included in the minutes of the Council.
These procedures are necessary to ensure the Bill's consistency
with two associated principles; that a State Parliament must not
undermine the institutional integrity of a State court that is
invested with federal judicial power, and that a State court that
exercises federal judicial power must be, and appear to be,
independent and impartial. These constraints derive from the fact
that s 77(iii) of the Commonwealth Constitution provides for
federal judicial power to be vested in the courts of a State.
The institutional integrity of a court refers to the defining
characteristics that mark a court apart from other decision-
making bodies.
Division 4--Governance principles
Clause 17 sets out the duties of the members of the Courts Council in the
exercise of their functions including a requirement to act with
appropriate care, diligence and integrity, and to comply with the
Bill and any regulations made under it. Subclause (2) requires
that Council members use of any information acquired by reason
of being a member of the Council is restricted to the exercise of
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functions under this Bill, or where the use is expressly authorised
under this Bill or any other Act.
Subclause (3) prevents a member of the Courts Council from
improperly using their position or any information gained
through membership of the Council to gain an advantage for
themselves or anyone else, or to cause any detriment to Court
Services Victoria.
Clause 18 sets out the duties of the Courts Council. These duties include
the requirement to take into account any business, corporate or
strategic plan when making decisions in respect of the provision
of administrative services and facilities to each jurisdiction.
This clause also makes it a duty of the Council to ensure that
there are adequate procedures in place for the effective
functioning of the Courts Council.
Clause 19 provides for the Courts Council to make use of committees to
assist it in performing its functions effectively, including a clear
power of delegation.
Clause 20 provides for the Courts Council to determine that Court Services
Victoria is to be bound by any or all of the provisions of
Division 4 of Part 5 of the Public Administration Act 2004
which deals with public entities. This provision is consistent
with the arrangements for a range of other public sector exempt
bodies and provides the Courts Council with the option to engage
the general provisions under Part 5 if they are determined to be
appropriate and suited to the governance of Court Services
Victoria.
Division 5--General
Clause 21 sets out the protection from liability that is to be applied to the
members of the Courts Council. Subclause (1) makes it clear that
a member of the Courts Council is not personally liable for any
act or omission in good faith in the exercise of a power or
function under the Bill. Subclause (2) provides that any liability
resulting from an act or omission that would attach to a member
of the Courts Council will instead attach to Court Services
Victoria. Subclause (3) provides that a judicial member of the
Courts Council is in the same position regarding the statutory
immunity and protections arising as if their decisions made as
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Court Council members had been administrative decisions taken
in relation to their court.
PART 4--STAFF OF COURT SERVICES VICTORIA
Division 1--Chief Executive Officer
Clause 22 requires the Courts Council to appoint a Chief Executive Officer
of Court Services Victoria. The appointment is to be considered
an executive appointment under Part 3 of the Public
Administration Act 2004. The appointment is to be for a
maximum 5 year term, with the facility for a re-appointment for a
further term or terms. The Courts Council is authorised to set the
terms and conditions for the Chief Executive Officer and in doing
so must comply with any guidelines issued by the State in
relation to executive remuneration for public entities.
Clause 23 sets out the circumstances under which the Chief Executive
Officer ceases to hold office, namely: insolvency, conviction of
an indictable offence, resignation or removal.
Clause 24 authorises the Courts Council to remove the Chief Executive
Officer from office for misconduct, neglect of duty, inability to
perform the duties of office, or any other ground on which the
Courts Council is satisfied the Chief Executive Officer is unfit to
hold office.
Clause 25 sets out the functions and powers of the Chief Executive Officer,
including the management of the support services and functions
of Court Services Victoria in accordance with the strategy, plans,
procedures and policies of the Courts Council and the
appointment and management of the staff of Court Services
Victoria except for the appointment of the Court Chief Executive
Officers.
Subclause (3) requires the Chief Executive officer in performing
their functions and powers to comply with the directions of the
Courts Council.
Clause 26 provides the Chief Executive Officer with all of the functions of a
public service body Head as defined in the Public
Administration Act 2004 in relation to all of the members of the
staff of Court Services Victoria other than judicial employees.
As the note explains, under Division 3 Part 6 of the Public
7
Administration Act 2004 the Chief Executive Office may
exercise the powers of an employer under that Part in relation to
judicial employees.
Clause 27 defines the Chief Executive Officer as the accountable officer for
Court Services Victoria in relation to section 42 of the Financial
Management Act 1994. As the accountable officer, the Chief
Executive Officer is required to prepare a report of operations
and financial statements of Court Services Victoria for each
financial year under Part 7 of the Financial Management Act
1994.
Clause 28 provides for the Chief Executive Officer to delegate by
instrument any of his or her functions, other than the power of
delegation, to another member of staff of Court Services Victoria.
Clause 29 sets out the arrangements for the Courts Council to appoint a
person to act as the Chief Executive Officer. Subclause (2)
determines that acting appointments are on terms and conditions
fixed by the Court Counsel and are for a period no longer than
12 months.
Division--Court Chief Executive Officers
Clause 30 sets out the arrangements for the appointment of the Court Chief
Executive Officers of each of the jurisdictions. Subclause (1)
provides that for each jurisdiction the Courts Council must
appoint a Court Chief Executive Officer nominated by the head
of that jurisdiction. This approach is consistent with the existing
convention whereby the Chief Executive Officers of the courts
and VCAT are employed by the Secretary of the Department of
Justice on the recommendation of the relevant head of
jurisdiction. As with the appointment of the Chief Executive
Officer the appointment of each of the Court Chief Executive
Officers is to be for a maximum 5 year term, with the facility for
a re-appointment for a further term or terms. The Courts Council
is again authorised to set the terms and conditions for the Court
Chief Executive Officers and in doing so must comply with any
guidelines issued by the State in relation to executive
remuneration for public entities.
Clause 31 sets out the circumstances under which a Court Chief Executive
Officer ceases to hold office, namely: insolvency, conviction of
an indictable offence, resignation or removal.
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Clause 32 authorises the Courts Council to remove a Court Chief Executive
Officer from office on the recommendation of the head of the
relevant jurisdiction. This clause also provides for the Courts
Council to remove a Court Chief Executive Officer for
misconduct, neglect of duty, inability to perform the duties of
office, or any other ground on which the Courts Council is
satisfied the Court Chief Executive Officer is unfit to hold office.
Clause 33 sets out the functions and powers of a Court Chief Executive
Officer, including the management of the administrative support
functions of the relevant jurisdiction including providing support
to the head of the jurisdiction. Court Chief Executive Officers
are responsible for ensuring that appropriate administration and
support services are provided to the relevant jurisdiction and
thereby contributing to the management and administration of the
overall operations of Court Services Victoria.
Subclause (2) defines the dual nature of the responsibilities and
accountabilities of Court Chief Executive Officers in the
performance of their functions. Court Chief Executive Officers
are responsible to, and must comply with the directions of the
head of jurisdiction in relation to the operation of that jurisdiction
and the Chief Executive Officer in relation to all other matters.
Clause 34 sets out the arrangements for the Courts Council to appoint a
member of staff of Court Services Victoria to act as a Court
Chief Executive Officer. Subclause (2) requires that a person
appointed to act under this Clause must be nominated by the
relevant head of jurisdiction. Subclause (3) determines that
acting appointments are on terms and conditions fixed by the
Court Counsel and are for a period no longer than 12 months.
Clause 35 provides for continuity of service in relation to accrued benefits,
entitlements and superannuation for individuals appointed to the
office of Chief Executive Officer or Court Chief Executive
Officer if they were employed under Part 3 of the Public
Administration Act 2004 immediately prior to that appointment.
Division 3--Other staff of Court Services Victoria
Clause 36 provides for all other staff of Court Services Victoria to be
employed under Part 3 of the Public Administration Act 2004,
except judicial employees, who may be employed under
Division 3 of Part 6 of the Public Administration Act 2004.
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Subclause (2) provides that in relation to their employment
section 8 of the Public Administration Act 2004 which deals
with Public Sector Employment Principles applies as if the
reference in it to public sector body Heads included the Chief
Executive Officer of Court Services Victoria.
Clause 37 sets out the circumstances in which Part 3 of the Public
Administration Act 2004 does not apply to Court Services
Victoria. Part 3 does not apply where a provision is inconsistent
with a provision in this Bill, or where the provision provides for
the control, supervision or direction by the Premier, a Minister, or
any other person representing the executive branch of
government.
Clause 38 sets out the procedures to be followed when seeking to transfer
staff performing internal administration in a jurisdiction.
The Chief Executive Officer is prohibited from transferring a
staff member performing administrative duties in a jurisdiction
without the agreement of the relevant head of jurisdiction.
Clause 39 authorises the Chief Executive Officer to utilise secondments and
transfers across the public sector by enabling agreements or
arrangements for the use of the services of any employee of a
Department, statutory authority or other public body.
PART 5--ANNUAL REPORT AND BUDGET
Clause 40 requires that the Court Services Victoria report of operations
must include certain matters in addition to the requirements under
the Financial Management Act 1994. The annual report must
include: firstly, the budget allocation to each jurisdiction for the
provision of administrative services and facilities, including
details of any alteration to budget allocations; and secondly,
details of the administrative services and facilities provided to the
courts.
Clause 41 Subclause (1) requires that the Courts Council must prepare and
submit to the Attorney-General before the end of each financial
year a budget for the forthcoming year showing estimates of its
receipts and expenditure.
Subclause (2) requires the Courts Council to prepare and submit
to the Attorney-General, when requested by the Attorney-
General, a budget for the period determined by the Attorney-
General showing estimates of its receipts and expenditure.
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Subclause (3) requires a budget to be in the form and include the
information specified by the Attorney-General, and requires that
a budget must provide separate estimates for each jurisdiction
and for the Judicial College of Victoria.
Subclause (4) provides for the Attorney-General to approve a
budget with or without modification.
Subclauses (5), (6) and (7) provide a mechanism for the Courts
Council to prepare and submit to the Attorney-General proposed
changes to a budget previously approved by the Attorney-
General. The Courts council is prohibited from proposing a
change to a budget that would reduce the budget to a jurisdiction
or the Judicial College of Victoria without the approval of the
relevant head of jurisdiction or the board of the Judicial College
of Victoria.
Subclause (8) requires the Courts Council to use its best
endeavours to act consistently with the budget approved by the
Attorney-General.
Subclause (9) prohibits the Courts Council from expending
money or incurring a liability unless provision is made in the
budget approved by the Attorney-General.
Subclause (10) provides that the section is in addition to any
requirements under the Financial Management Act 1994.
A note clarifies that the Court Services annual report is in
addition to any requirement for an individual jurisdiction to
prepare an annual report.
PART 6--GENERAL
Clause 42 sets out the power of the Governor in Council to make
regulations in respect of Court Services Victoria. Regulations
may be made for or with respect to the information to be included
in an annual report of Court Services Victoria and any other
matter or thing required or permitted by the Bill to be prescribed
or necessary to be prescribed to give effect to the Bill.
Subclause (2) provides for regulations to be of general or limited
application, differ according to time, place or circumstances, and
to confer a discretionary authority or impose a duty on a specified
person or body (or class of persons or bodies).
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PART 7--TRANSITIONAL PROVISIONS
Division 1--Transfer of staff
Clause 43 enables the Premier to make a written declaration for the transfer
of any court services employee, as defined, from the Department
of Justice to Court Services Victoria on terms and conditions of
employment that are no less favourable overall and provides that
on the making of such a declaration the transfer is taken to take
place. A declaration may be in respect of an individual employee
or a group of employees.
Subclause (4) defines court services employee to mean any
employee of the Department of Justice necessary to carry out, or
support the carrying out of, a function that is to be transferred
from the Department of Justice to Court Services Victoria.
Clause 44 provides for all judicial employees to be transferred from the
Department of Justice to Court Services Victoria on terms and
conditions that are no less favourable overall.
Clause 45 provides that a transfer under section 43 or 44 is not a resignation
or termination of employment and makes clear that service before
and after a transfer is regarded as continuous. A person who was
an officer within the meaning of the State Superannuation Act
1988 immediately before transfer continues as an officer after the
transfer.
Division 2--Transfer of assets and liabilities
Clause 46 sets out the definitions that apply in the Division. Defined terms
are appointed day, DOJ instrument, former DOJ property,
instrument, liabilities, property, rights and Secretary.
Clause 47 provides for the Attorney-General to fix a day as the appointed
day for the purposes of an allocation statement by notice in the
Government Gazette.
Clause 48 sets out the processes required to be undertaken in order for a
statement of property, rights and liabilities of the State that are to
be assigned to Court Services Victoria to be an allocation
statement for the purposes of the Division.
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Subclauses (1) to (3) provide that a statement prepared by the
Secretary and the Chief Executive Officer of Court Services
Victoria must be agreed to by the Courts Council, and then
provided to the Attorney General for agreement. Subclause (4)
sets out the matters of which the Attorney-General must be
satisfied in order to agree to the statement. Subclause (5)
provides that upon agreement by the Attorney-General the
statement becomes an allocation statement.
Clause 49 provides for the vesting of allocated property and rights in Court
Services Victoria and the transfer of allocated liabilities from the
State to Court Services Victoria on the appointed day for an
allocation statement.
Clause 50 provides that where property rights are vested in Court Services
Victoria those rights are subject to any encumbrances to which
they were subject immediately before vesting, and that where
liabilities are transferred to Court Services Victoria the rights
attached to those liabilities to which the State was entitled vest in
Court Services Victoria.
Clause 51 provides that where rights and liabilities of the State under an
agreement are allocated to Court Services Victoria, on the
appointed day Court Services Victoria becomes a party to the
agreement in place of the State. From the appointed day onwards
the agreement has effect as if Court Services Victoria had always
been a party to it.
Clause 52 provides for Court Services Victoria, on and after the appointed
day for an allocation statement, to be substituted for the Secretary
or the State as a party to pending or existing proceedings
(including arbitration proceedings) in any court or tribunal
relating to former DOJ property allocated to Court Services
Victoria under the allocation statement, and to have the same
rights in the proceedings as the Secretary or State.
Clause 53 provides, on and after the appointed day, for each DOJ
instrument relating to former DOJ property to continue to have
effect according to its tenor as if a references in the instrument
were references to Court Services Victoria.
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Clause 54 requires the Registrar of Titles, on request and on delivery of any
relevant instrument or document, to make any recordings in the
Register under the Transfer of Land Act 1958 that are necessary
because of the operation of any provision of Division 2.
Clause 55 provides that no duty or tax is chargeable under any Act in
respect of anything done under Division 2 (or in respect of any
act or transaction connected with or necessary to be done by
reason of Division 2), including for the purpose of or connected
with the transfer of property, rights or liabilities of the State.
Clause 56 Subclause (1) provides that, in relation to former DOJ property
that is allocated under an allocation statement, evidence that
would have been admissible for or against the interests of the
State is admissible for or against the interests of Court Services
Victoria.
Subclause (2) provides that, to the extent that Department of
Justice books of account and entries made in them before the
appointed day for an allocation statement relate to former DOJ
property allocated to Court Services Victoria, the Evidence Act
2008 applies as if those books of account and entries were
business records.
Clause 57 provides for the validity of things done under Division 2, so that
a thing done or effected or suffered does not release any surety or
other obligor from any obligation, or is not to be regarded as:
· placing a person in breach of contract or confidence, or
making a person guilty of a civil wrong; or
· placing a person in breach of an Act (excluding the
Charter of Human Rights and Responsibilities Act
2006), law or agreement, arrangement or understanding
(including any provision about the assignment or
transfer of property or disclosure of information); or
· fulfilling a condition which allows a person to exercise
a right or remedy, or terminate an agreement or
obligation.
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Division 3--Management of Crown Land
Clause 58 sets out the processes for the making of an Order, and the effect
of an Order by the Governor in Council for the vesting of
management of Crown land in Court Services Victoria.
Subclauses (1) to (3) provide that an Order published in the
Government Gazette may, with effect on the date specified,
divest the management of specified Crown land and vest it in
Court Services Victoria. The Order may only be made on the
recommendation of the Attorney-General, who must be satisfied
that that the land is being or is to be used by or for the purpose of
a court or VCAT.
Subclause (4) provides that, where the land specified is reserved
Crown land with a committee of management, the committee of
management is abolished upon the Order taking effect and Court
Services Victoria is taken, on and from that time, to be the
committee of management within the meaning of the Crown
Land (Reserves) Act 1978.
Subclause (5) provides that, where the land specified is reserved
Crown land managed by the Secretary under an agreement under
section 18B of the Crown Land (Reserves) Act 1978, the
Secretary ceases to be the manager and Court Services Victoria
becomes a party to the agreement upon the Order taking effect.
From that time the agreement has effect as if Court Services
Victoria had always been a party to the agreement.
Subclauses (4) and (5) do not limit subclause (1). The remaining
subclauses provide for Orders to include provisions of a saving or
transitional nature, require that Orders be given effect, and
preserve the management rights of lessees, licensees and tenants.
An Order takes effect despite anything to the contrary in any Act
or subordinate instrument other than the Charter of Human
Rights and Responsibilities Act 2006.
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PART 8--CONSEQUENTIAL AMENDMENTS
Division 1--Amendment of Public Administration Act 2004
Clause 59 amends and inserts definitions in the Public Administration Act
2004 to include Court Services Victoria in the definition of
exempt body in that Act and to introduce relevant definitions into
that Act for Chief Executive Officer of Court Services Victoria,
Court Chief Executive Officer and Court Services Victoria.
Clause 60 amends section 24 of the Public Administration Act 2004
which defines the employer of executives, to provide that for the
Chief Executive Officer of Court Services Victoria or a Court
Chief Executive Officer the employer is the Courts Council.
Clause 61 amends section 102(1) of the Public Administration Act 2004
which deals with the employment of judicial employees to
replace "appropriate public service body Head" with
"Chief Executive Officer of Court Services Victoria".
Clause 62 amends section 103(1) and 103(2)(b) of the Public
Administration Act 2004 which deals with the termination of
employment of judicial employees to replace "appropriate public
service body Head" with "Chief Executive Officer of Court
Services Victoria".
Division 2--Amendment of Financial Management Act 1994
Clause 63 amends and inserts definitions in the Financial Management
Act 1994 to include Court Services Victoria in the definition of
public body in that Act and to introduce relevant definitions into
that Act for Court Services Victoria and Courts Council.
Clause 64 amends section 29 of the Financial Management Act 1994 to
include Court Services Victoria in the definition of department
for the purposes of that section.
Clause 65 inserts a new section in the Financial Management Act 1994 to
authorise the Courts Council, with the consent of the Treasurer
and Attorney-General, to approve a transfer between items of the
Court Services Victoria appropriation. Subclause (2) requires
that prior to making a transfer the Courts Council must be of the
opinion that the amount to be transferred is not required for the
purposes of that item and that the amount assigned to the item
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receiving the transfer is insufficient for the purposes of that item.
Subclause (3) requires the Courts Council to provide the
particulars of the transfer to the Attorney-General and the
Minister administering this section as soon as possible.
Division 3--Amendment of Audit Act 1994
Clause 66 amends the Audit Act 1994 to restrict the Auditor-General from
calling for persons and documents from the judicial and
appointed members of the Courts Council. The note clarifies that
this does not prevent members of the Courts Council from
voluntarily appearing before the Auditor-General or producing
documents in their possession, custody or control.
Clause 67 inserts a new section 11AA in the Audit Act 1994 in relation
to a body exercising judicial or quasi-judicial functions.
Subclause (1) determines that nothing in the Audit Act 1994
authorises the Auditor-General to conduct an audit of the exercise
of a body of a function that is of a judicial or quasi-judicial
nature. Subclause (2) requires that the conduct of an audit under
the Audit Act 1994 of a body that exercises functions that are
judicial or quasi-judicial in nature must not in any way impede
the exercise by the body of those functions.
Clause 68 amends the Audit Act 1994 so that the offence defined in
section 14(1) does not apply to members of the Courts Council.
Division 4--Amendment of Freedom of Information Act 1982
Clause 69 amends the Freedom of Information Act 1982 to include in the
definition of principal officer the person holding the office or
performing the duties of the Chief Executive Officer of Court
Services, and to introduce a definition into that Act for Court
Services Victoria.
Clause 70 inserts a new section 29B in the Freedom of Information Act
1982 which defines a document as an exempt document if it is a
document of Court Services Victoria that relates to the exercise
of a judicial or quasi-judicial function of a Court or VCAT.
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Division 5--Amendment of Independent Broad-based
Anti-corruption Commission Act 2011
Clause 71 amends the Independent Broad-based Anti-corruption
Commission Act 2011 to include a "judicial member of the
Courts Council within the meaning of the Court Services
Victoria Act 2013" in the subsection that defines what is not a
public body or a public officer for the purposes of that Act.
Division 6--Amendment of Ombudsman Act 1973
Clause 72 amends existing definitions and inserts one new definition in the
Ombudsman Act 1973. The definition of authority is amended
to include Court Services Victoria, the definition of principal
officer is amended to include the Chief Executive Officer of
Court Services Victoria, and the definition of responsible
Minister is amended to include the Attorney-General in relation
to Court Services Victoria. A new definition is included for
Court Services Victoria.
Clause 73 Inserts a new section 13AC into the Ombudsman Act 1973 to
confirm that Court Services Victoria is not an exempt body under
the Act and which applies appropriate limits to the powers of the
Ombudsman in relation to the exercise of judicial and quasi-
judicial functions.
Subclause (2) prevents the Ombudsman from interfering with the
exercise of the jurisdiction of a court or VCAT or directing a
court or VCAT as to the manner or outcome of the exercise of a
judicial function in any particular case.
Subclause (3) prohibits the Ombudsmen from entering a court or
hearing room in the course of a hearing of a matter except with
the agreement of the presiding judicial officer.
Subclause (4) prevents the Ombudsman from requiring a member
of the Courts Council or member of staff of Court Services
Victoria to provide any information or produce documents that
relate to the exercise of a judicial or quasi-judicial function.
Subclause (5) imports the definitions of Courts Council and
member of staff from this Bill for the purposes of this section
of the Ombudsman Act 1973.
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Clause 74 amends Schedule 2 to the Ombudsman Act 1973 to include in
the category of exempt persons and bodies under the Act, any
other member of staff of a registrar or office of a court exercising
a function related to a judicial or quasi-judicial function of the
court.
Division 7--Amendment of other Acts
Clause 75 repeals section 17(1A) and (1B) of the Magistrates' Court Act
1989 to remove references to the Secretary to the Department of
Justice as the employer of registry staff in the court.
Clause 76 repeals section 136A of the Magistrates' Court Act 1989 to
remove the power for the Minister responsible or the relevant
public service body Head to direct a court registrar to act
anywhere.
Clause 77 repeals section 97(1)(a) and section 97(3) of the Coroners Act
2008. Section 97(1)(a) provides for the appointment of a Chief
Executive Officer under Part 3 of the Public Administration Act
2004 and is replaced by the arrangements in this Bill that provide
for the appointment of Court Chief Executive Officers.
The repeal of Section 97(3) removes references to the Secretary
to the Department of Justice as the employer of registry staff in
the court.
Clause 78 amends section 106(a) of the Supreme Court Act 1986 to
remove "a chief executive officer" as this has been replaced by
the arrangements in this Bill that provide for the appointment of
Court Chief Executive Officers.
Clause 79 repeals section 32(1)(b) of the Victorian Civil and
Administrative Tribunal Act 1998 to remove "a chief executive
officer" as this has been replaced by the arrangements in this Bill
that provide for the appointment of Court Chief Executive
Officers.
Division 8--Repeal
Clause 80 provides for the repeal of Part 8 of this Bill, which deals with
consequential amendments, one year and one day after the day it
comes into operation. This repeal does not affect the continuing
operation of the amendments made by this Part due to
section 15(1) of the Interpretation of Legislation Act 1984.
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