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Justice Legislation Amendment Act 2013 No. 31 of 2013

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 3

PART 2—AMENDMENT OF THE ADMINISTRATION AND PROBATE ACT 1958 4

3 Intention to apply for seal of Court to be advertised 4

PART 3—AMENDMENT OF THE CROWN LAND (RESERVES) ACT 1978 5

4 Trustees of reserves to be deemed occupiers 5

PART 4—AMENDMENT OF THE ELECTORAL ACT 2002 6

5 Enrolment by the Commission 6

PART 5—AMENDMENT OF THE MAGISTRATES' COURT ACT 1989 AND THE MAGISTRATES' COURT AMENDMENT (ASSESSMENT AND REFERRAL COURT LIST) ACT 2010 7

6 Appointment of Acting Chief Magistrate 77 Amendment of Magistrates' Court Amendment (Assessment

and Referral Court List) Act 2010—trial period extended 8

PART 6—AMENDMENT OF THE SENTENCING ACT 1991 9

8 Definition 99 Orders under Division 1 of Part 3BA 910 New section 149A inserted 10

149A Validation—Justice Legislation Amendment Act 2013 10

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11 New Schedule 4 inserted 10

SCHEDULE 4—Justice Legislation Amendment Act 2013—Validation 10

1 Definitions 102 Validation of adjournment orders 113 Validation of community-based orders 124 Additional provisions relating to rights of appeal 145 Rights in specific proceedings not affected 14

PART 7—AMENDMENT OF THE CORONERS ACT 2008 AND THE VICTORIAN INSTITUTE OF FORENSIC MEDICINE ACT 1985 15

Division 1—Amendment of Coroners Act 2008 15

12 Obligation of registered medical practitioner to report death 1513 Obligation to report death of a person placed in custody or

care 1514 General obligation to report death 1515 Obligation to report reviewable death 1616 Fire authority request for fire investigation 1617 Application for investigation into a fire 1718 New section 108A inserted 17

108A State Coroner may enter into service agreements 17

Division 2—Amendment of Victorian Institute of Forensic Medicine Act 1985 17

19 Definitions 1720 Objects of the Institute 1821 Functions of the Institute 18

PART 8—REPEAL OF AMENDING ACT 21

22 Repeal of amending Act 21═══════════════

ENDNOTES 22

Justice Legislation Amendment Act 2013†

No. 31 of 2013

[Assented to 4 June 2013]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The main purposes of this Act are to—

(a) amend the Administration and Probate Act 1958 to provide that an intention to apply for the re-sealing of probate, letters of administration, a grant or an order from a specified jurisdiction must be published in accordance with the Rules of the Supreme Court;

Victoria

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(b) amend the Crown Land (Reserves) Act 1978 to ensure that trustees or persons having the care, control or management of reserved Crown land are only deemed occupiers under the Fences Act 1968 for the purposes of agreeing on a line of fencing where a waterway forms the boundary between adjoining lands;

(c) amend the Electoral Act 2002 to streamline the enrolment process for electors;

(d) amend the Magistrates' Court Act 1989 to enable the Chief Magistrate to nominate a Deputy Chief Magistrate to be Acting Chief Magistrate in the Chief Magistrate's absence and to amend the Magistrates' Court Amendment (Assessment and Referral Court List) Act 2010 to extend the trial period under the Act;

(e) amend the Sentencing Act 1991 to—

(i) provide courts with the flexibility to attach a condition to certain sentencing orders that require an offender to make a payment to an organisation that provides a charitable or community service or to the court for payment to such an organisation;

(ii) validate sentencing orders made by the courts attaching a condition requiring an offender to make a payment to an organisation that provides a charitable or community service or to the court for payment to such an organisation;

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s. 1

(f) amend the Coroners Act 2008 and the Victorian Institute of Forensic Medicine Act 1985 to provide the Victorian Institute of Forensic Medicine with further powers to assist the Coroners Court in the performance of its functions.

2 Commencement

(1) This Part and Part 6 come into operation on the day on which this Act receives the Royal Assent.

(2) Parts 4, 5 and 8 come into operation on the day after the day on which this Act receives the Royal Assent.

(3) Part 3 is taken to have come into operation on 17 April 2013.

(4) Subject to subsection (5), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(5) If a provision referred to in subsection (4) does not come into operation before 30 April 2014, it comes into operation on that day.

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s. 2s. 2

PART 2—AMENDMENT OF THE ADMINISTRATION AND PROBATE ACT 1958

3 Intention to apply for seal of Court to be advertiseds. 3

See:Act No.6191.Reprint No. 11as at6 May 2010and amendingAct No.17/2010.LawToday:www.legislation.vic.gov.au

In section 83 of the Administration and Probate Act 1958, for "one of the Melbourne daily newspapers" substitute "accordance with the Rules".

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Part 8—Repeal of Amending Act

Justice Legislation Amendment Act 2013No. 31 of 2013

4

PART 3—AMENDMENT OF THE CROWN LAND (RESERVES) ACT 1978

4 Trustees of reserves to be deemed occupierss. 4

See:Act No.9212.Reprint No. 10as at1 July 2011and amendingAct Nos64/2004, 65/2010, 7/2012, 17/2012 and 46/2012.LawToday:www.legislation.vic.gov.au

(1) In section 21 of the Crown Land (Reserves) Act 1978, for "section 3" substitute "section 5".

(2) At the end of section 21 of the Crown Land (Reserves) Act 1978 insert—

"(2) Subsection (1) as in force immediately before the commencement of section 4 of the Justice Legislation Amendment Act 2013 continues to apply in relation to a right or liability arising in relation to a fence or proposed fence for which a notice to fence was served under section 6 of the Fences Act 1968 before that commencement.".

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PART 4—AMENDMENT OF THE ELECTORAL ACT 2002

5 Enrolment by the Commissions. 5

See:Act No.23/2002.Reprint No. 3as at20 August 2010and amendingAct Nos26/2011, 82/2012 and 13/2013.LawToday:www.legislation.vic.gov.au

In section 23A(2)(a) of the Electoral Act 2002, for "by" substitute "under an arrangement under section 20 or provided to".

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PART 5—AMENDMENT OF THE MAGISTRATES' COURT ACT 1989 AND THE MAGISTRATES' COURT AMENDMENT

(ASSESSMENT AND REFERRAL COURT LIST) ACT 2010

6 Appointment of Acting Chief Magistrates. 6

See:Act No.51/1989.Reprint No. 16as at1 January 2012and amendingAct Nos51/2006, 12/2010, 65/2011, 23/2012, 26/2012, 48/2012, 82/2012 and 5/2013.LawToday:www.legislation.vic.gov.au

(1) Before section 8(1) of the Magistrates' Court Act 1989 insert—

"(1AAA) The Governor in Council may appoint a Deputy Chief Magistrate, nominated by the Chief Magistrate, to be Acting Chief Magistrate during any period when the Chief Magistrate is absent on leave or for any reason is temporarily unable to perform the duties of the office of Chief Magistrate.".

(2) In section 8(1) of the Magistrates' Court Act 1989, for "Acting Chief Magistrate during any period when the Chief Magistrate is absent on leave or for any reason is temporarily unable to perform the duties of the office of Chief Magistrate." substitute—

"Acting Chief Magistrate—

(a) during any period when the Chief Magistrate is absent on leave or for any reason is temporarily unable to perform the duties of the office of Chief Magistrate if an appointment has not been made under subsection (1AAA); or



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(b) if there is a vacancy in the office of Chief Magistrate.".

(3) For section 8(1A) of the Magistrates' Court Act 1989 substitute—

"(1A) The senior of the Deputy Chief Magistrates willing to act as Chief Magistrate shall act as Chief Magistrate if there is—

(a) a period when the Chief Magistrate is for any reason temporarily unable to perform the duties of the office of Chief Magistrate and an appointment has not been made under subsection (1AAA) or (1)(a); or

(b) a vacancy in the office of Chief Magistrate and an appointment has not been made under subsection (1)(b).".

(4) In section 8(1B) of the Magistrates' Court Act 1989—

(a) omit "as Deputy Chief Magistrate";

(b) after "of appointment" insert "as Deputy Chief Magistrate".

7 Amendment of Magistrates' Court Amendment (Assessment and Referral Court List) Act 2010—trial period extended

In the Magistrates' Court Amendment (Assessment and Referral Court List) Act 2010—

(a) in section 2(4), for "1 August 2013" substitute "1 August 2015";

(b) in section 9 for "1 August 2014" substitute "1 August 2016".

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s. 7Part 8—Repeal of Amending Act


8



9

PART 6—AMENDMENT OF THE SENTENCING ACT 1991

8 Definitions. 8

See:Act No.49/1991.Reprint No. 14as at14 November 2012and amendingAct Nos65/2011, 49/2012, 83/2012 and 6/2013.LawToday:www.legislation.vic.gov.au

In section 3(1) of the Sentencing Act 1991, in the definition of fine, after "court" (where secondly occurring) insert "or money payable by an offender under an order of a court to an organisation that provides a charitable or community service or to the court for payment to such an organisation".

9 Orders under Division 1 of Part 3BA

(1) After section 70(1)(b) of the Sentencing Act 1991 insert—

"(ba) to allow for the offender to demonstrate his or her remorse in a manner agreed to by the court;".

(2) In section 72(2)(c) of the Sentencing Act 1991, after "court" insert "and may include a condition requiring the offender to make a payment to an organisation that provides a charitable or



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community service or to the court for payment to such an organisation".

(3) In section 75(2)(c) of the Sentencing Act 1991, after "court" insert "and may include a condition requiring the offender to make a payment to an organisation that provides a charitable or community service or to the court for payment to such an organisation".

10 New section 149A inserted

At the end of Part 12 of the Sentencing Act 1991 insert—

"149A Validation—Justice Legislation Amendment Act 2013

Schedule 4 has effect.".

11 New Schedule 4 inserted

After Schedule 3 of the Sentencing Act 1991 insert—

'__________________

SCHEDULE 4

JUSTICE LEGISLATION AMENDMENT ACT 2013—VALIDATION

1 Definitions

In this Schedule—

adjournment order means an adjournment order made under section 72 or 75;

commencement day means the day on which the Justice Legislation Amendment Act 2013 receives the Royal Assent;



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community-based order means a community-based order within the meaning of this Act as in force before the repeal day;

donation condition means a condition requiring an offender to pay an amount to an organisation that provides a charitable or community service or to the court for payment to such an organisation;

relevant order means—

(a) an adjournment order; or

(b) a community-based order;

repeal day means the date of commencement of section 21 of the Sentencing Amendment (Community Correction Reform) Act 2011.

2 Validation of adjournment orders

(1) An adjournment order under section 72 or 75 made or purported to be made before the commencement day that required an offender to give an undertaking with a donation condition attached has, and is taken always to have had, the same force and effect as it would have had if sections 8 and 9 of the Justice Legislation Amendment Act 2013 had been in operation when the order was made or purported to be made.

(2) Any act or thing done or omitted to be done, whether under a power conferred by an enactment or otherwise, before or after the commencement day in reliance on or in relation to—



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(a) an adjournment order that is validated by subclause (1); or

(b) a contravention or alleged contravention of an adjournment order that is validated by subclause (1)—

including any penalty imposed, has the same effect, and gives rise to the same consequences, and is to be regarded as always having had the same effect and having given rise to the same consequences as if sections 8 and 9 of the Justice Legislation Amendment Act 2013 had been in operation when the adjournment order was made or purported to be made.

(3) A right or liability conferred or imposed in relation to, or affected by—

(a) an adjournment order that is validated by subclause (1); or

(b) a contravention or alleged contravention of an adjournment order that is validated by subclause (1)—

including any penalty imposed, is exercisable or enforceable, and is to be regarded as always having been exercisable or enforceable as if sections 8 and 9 of the Justice Legislation Amendment Act 2013 had been in operation when the adjournment order was made or purported to be made.

3 Validation of community-based orders

(1) A community-based order made or purported to be made before the repeal day that had a donation condition attached has, and is taken always to have had, the same force and effect as it would have had if—



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(a) section 8 of the Justice Legislation Amendment Act 2013 had been in operation when the order was made or purported to be made; and

(b) section 38 (as in force before the repeal day) had included the following provision at the time the order was made or purported to be made—

"(2A) A condition attached under subsection (1)(g) may include a condition requiring the offender to make a payment to an organisation that provides charitable or community service or to the court for payment to such an organisation.".

(2) Any act or thing done or omitted to be done, whether under a power conferred by an enactment or otherwise, before or after the repeal day in reliance on or in relation to—

(a) a community-based order that is validated by subclause (1); or

(b) a contravention or alleged contravention of a community-based order that is validated by subclause (1)—

including any penalty imposed, has the same effect, and gives rise to the same consequences, and is to be regarded as always having had the same effect and having given rise to the same consequences as if section 8 of the Justice Legislation Amendment Act 2013 and the purported section 38(2A) referred to in subclause (1)(b) had been in operation when the community-



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based order was made or purported to be made.

(3) A right or liability conferred or imposed in relation to, or affected by—

(a) a community-based order that is validated by subclause (1); or

(b) a contravention or alleged contravention of a community-based order that is validated by subclause (1)—

including any penalty imposed, is exercisable or enforceable, and is to be regarded as always having been exercisable or enforceable as if section 8 of the Justice Legislation Amendment Act 2013 and the purported section 38(2A) referred to in subclause (1)(b) had been in operation when the community-based order was made or purported to be made.

4 Additional provisions relating to rights of appeal

(1) Without limiting clause 2(3) or 3(3), the rights and liabilities conferred or imposed in relation to a relevant order include rights of appeal.

(2) This Schedule does not affect the right of any person to appeal against a sentence that includes a relevant order on any other ground.

5 Rights in specific proceedings not affected

This Schedule does not affect the rights of the parties in the proceedings known as Brittain v Mansour [2013] VSC 50 in the Supreme Court of Victoria.'.

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s. 11s. 11Part 8—Repeal of Amending Act


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PART 7—AMENDMENT OF THE CORONERS ACT 2008 AND THE VICTORIAN INSTITUTE OF FORENSIC MEDICINE

ACT 1985

Division 1—Amendment of Coroners Act 2008

12 Obligation of registered medical practitioner to report death

(1) In section 10(1) and (2) of the Coroners Act 2008, after "a coroner" insert "or the Institute".

(2) After section 10(2) of the Coroners Act 2008 insert—

"(3) The Institute must refer to a coroner a report of a reportable death received from a registered medical practitioner under subsection (1) or (2) as soon as practicable after receipt of that report.".

13 Obligation to report death of a person placed in custody or care

(1) In section 11(1) of the Coroners Act 2008, after "a coroner" insert "or the Institute".


"(1A) The Institute must refer to a coroner a report of the death of a person placed in custody or care received from a responsible person under subsection (1) as soon as practicable after receipt of that report.".

14 General obligation to report death

(1) In section 12(1) of the Coroners Act 2008, after "a coroner" insert ", the Institute".

(2) In section 12(2) of the Coroners Act 2008, after "the coroner" insert "or the Institute".

See:Act No.77/2008.Reprint No. 1as at21 July 2011and amendingAct Nos52/2012, 83/2012 and 5/2013.LawToday:www.legislation.vic.gov.au



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"(3) The Institute must refer to a coroner a report of a death received under subsection (1) or (2) as soon as practicable after receipt of that report.".

15 Obligation to report reviewable death

(1) In section 13 of the Coroners Act 2008, after "State Coroner" (wherever occurring) insert "or the Institute".


"(4) The Institute must refer to the State Coroner a report of a reviewable death received from a registered medical practitioner or other person under this section as soon as practicable after receipt of that report.".

16 Fire authority request for fire investigation

After section 30(1) of the Coroners Act 2008 insert—

"(1A) The Institute may, on behalf of a coroner, receive a request made by the Country Fire Authority or Metropolitan Fire and Emergency Services Board under subsection (1).

(1B) If the Institute receives a request under subsection (1A), the Institute must refer that request to a coroner as soon as practicable after receiving that request.".



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17 Application for investigation into a fire

After section 31(1) of the Coroners Act 2008 insert—

"(1A) The Institute may, on behalf of a coroner, receive a request made by a person under subsection (1).

(1B) If the Institute receives a request under subsection (1A), the Institute must refer that request to a coroner as soon as practicable after receiving that request.".

18 New section 108A inserted

After section 108 of the Coroners Act 2008 insert—

"108A State Coroner may enter into service agreements

The State Coroner, on behalf of the Coroners Court, may enter into an agreement with a person or body for the provision by the person or body of services to the Court to support the operations of the Court.".

Division 2—Amendment of Victorian Institute of Forensic Medicine Act 1985

19 Definitions

Insert the following definitions in section 3(1) of the Victorian Institute of Forensic Medicine Act 1985—

"coroner has the same meaning as in section 3(1) of the Coroners Act 2008;

medical examination has the same meaning as in section 3(1) of the Coroners Act 2008;

reportable death has the same meaning as in section 4 of the Coroners Act 2008;

s. 17

See:Act No.10257.Reprint No. 7as at1 November 2009and amendingAct No.13/2010.LawToday:www.legislation.vic.gov.au



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senior next of kin has the same meaning as in section 3(1) of the Coroners Act 2008;

State Coroner has the same meaning as in section 3(1) of the Coroners Act 2008;".

20 Objects of the Institute

In section 64(2) of the Victorian Institute of Forensic Medicine Act 1985—

(a) in paragraph (i), for "66(4)." substitute "66(4);";

(b) after paragraph (i) insert—

"(j) to promote and assist in the performance by the Coroners Court of its functions.".

21 Functions of the Institute

In section 66(1) of the Victorian Institute of Forensic Medicine Act 1985—

(a) after paragraph (a) insert—

"(ab) to receive a report of a reportable death or a reviewable death for referral to a coroner or the State Coroner (as appropriate) under Part 3 of the Coroners Act 2008;

(ac) to receive a request for an investigation by the coroner into a fire under Division 2 of Part 4 of the Coroners Act 2008 and refer that request to the coroner;

(ad) on behalf of a coroner, to request and receive information about a death or fire that a coroner is investigating;



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(ae) to provide assistance and guidance in respect of whether a death is a reportable death or reviewable death to a person who has an obligation to report deaths of that kind under Part 3 of the Coroners Act 2008;";

(b) in paragraph (f), for "examinations." substitute "examinations;";

(c) after paragraph (f) insert—

"(g) to gather information to assist a coroner to identify the senior next of kin of a deceased person;

(h) to provide information to, and obtain information from, family members of a deceased person for the purposes of a medical examination and the coronial process generally;

(i) to receive a request on behalf of a coroner for an autopsy to be performed on a body in the control of the coroner;

(j) to take possession of a body on behalf of a coroner and to provide for the release of a body following an order made by a coroner under section 47 of the Coroners Act 2008;

(k) to request and receive ante-mortem specimens from hospitals in respect of reportable deaths for the purposes of medical examinations;

(l) to provide information to, and discuss with, the senior next of kin of a deceased person, the coronial process and in particular explain any medical examination to be performed on the



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deceased as part of the investigation process;

(m) to assist the principal registrar of the Coroners Court to provide information prescribed for the purposes of section 21 the Coroners Act 2008 regarding the coronial process to the senior next of kin of a deceased person and any other person the principal registrar considers to have a sufficient interest in the investigation under section 21(b) of that Act.".

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PART 8—REPEAL OF AMENDING ACT

22 Repeal of amending Act

This Act is repealed on 30 April 2015.Note

The repeal of this Act 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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ENDNOTES

Endnotes


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† Minister's second reading speech—

Legislative Assembly: 17 April 2013

Legislative Council: 9 May 2013

The long title for the Bill for this Act was "A Bill for an Act to amend the Administration and Probate Act 1958, the Crown Land (Reserves) Act 1978, the Electoral Act 2002, the Magistrates' Court Act 1989 and the Magistrates' Court Amendment (Assessment and Referral Court List) Act 2010, the Sentencing Act 1991, the Coroners Act 2008 and the Victorian Institute of Forensic Medicine Act 1985 and for other purposes."

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