Justice Legislation (Further Amendment) Bill

Justice Legislation (Further Amendment) Bill

Circulation Print

EXPLANATORY MEMORANDUM

551433

BILL LA CIRCULATION 25/8/2006

Clause Notes

PART 1—PRELIMINARY

Clause 1 sets out the main purposes of the Act, which are to amend—

·  the Attorney-General and Solicitor-General Act 1972 with respect to pension entitlements;

·  the Gambling Regulation Act 2003 and Casino Control Act 1991 in relation to training courses for licensed gaming industry employees and licensed casino employees;

·  the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 to enable the Director of the Classification Board to exempt certain organisations from the operation of that Act;

·  the Confiscation Act 1997 to provide further for applications for restraining orders, applications for exclusion from civil forfeiture orders and execution of disposal orders, to validate previous restraining orders that may have contained a technical defect and to make an amendment of a statute law revision nature;

·  the Corrections and Sentencing Acts (Home Detention) Act 2003 so as to allow the home detention program to continue indefinitely;

·  the Council of Law Reporting in Victoria Act 1967 to increase the number of members appointed by professional associations;

·  the Equal Opportunity Act 1995 to add to and update a number of definitions relating to workplace relations, to provide a mechanism for representative complaints and to allow the Commission to delegate certain powers or functions to staff members;

·  the Infringements Act 2006 with respect to the period for lodgement of details of an infringement penalty and prescribed costs in respect of an infringement offence under certain Acts;

·  the Judicial College of Victoria Act 2001 to include judicial registrars of the Magistrates' Court as judicial officers for the purposes of that Act;

·  the Juries Act 2000 with respect to jury pools and panels;

·  the Legal Profession Act 2004 in order to reflect amendments to national model provisions that form part of the Act and generally to improve the operation of the Act;

·  the Magistrates' Court Act 1989 to include additional classes of persons who may witness statements to be tendered at committal proceedings;

·  the Professional Standards Act 2003 in relation to professional indemnity insurance;

·  the Sex Offenders Registration Act 2004 to clarify its application in relation to certain kinds of offender;

·  the Victorian Civil and Administrative Tribunal Act 1998 with respect to the issue of injunctions and declarations, summary dismissal of proceedings, the granting of bail to persons arrested and brought before the Victorian Civil and Administrative Tribunal (VCAT) and the power to impose sentences of imprisonment for contempt of VCAT;

·  the Victorian Law Reform Commission Act 2000 with respect to the appointment of an acting chairperson;

·  the Working with Children Act 2005 to apply the complete definition of "child-related work" for the purposes of the whole Act subject to certain exceptions;

·  the Fair Trading Act 1999 and other Consumer Acts to allow inspectors to monitor compliance with those Acts; and

·  to make amendments of a statute law revision nature to certain Acts.

Clause 2 provides varied commencement dates for the Act.

Sub-clause (1) provides that Parts 1, 3, 5, 6, 8 (other than section 18(1) and (5)), 9, 13, 15, 19, 20 and 21 (other than section 85) come into operation on the day after the day on which the Act receives Royal Assent.

Sub-clause (2) provides that Part 16, which amends the Sex Offenders Registration Act 2004, is deemed to have come into operation on 1 October 2004.

Sub-clause (3) provides that sections 18(1) and 18(5), which amend the Equal Opportunity Act 1995, are deemed to have come into operation on 27 March 2006.

Sub-clause (4) provides that Part 10, which amends the Infringements Act 2006, and section 85 are deemed to have come into operation on 1 July 2006.

Sub-clause (5) provides that the remaining provisions of this Act come into operation on a day or days to be proclaimed, subject to sub-clause (6).

Sub-clause (6) provides that if a provision referred to in sub-clause (5) does not come into operation before 1 July 2007, it comes into operation on that day.

PART 2—AMENDMENT OF ATTORNEY-GENERAL AND SOLICITOR-GENERAL ACT 1972

Clause 3 inserts sub-sections (3) and (3A) into section 6 of the Attorney-General and Solicitor-General Act 1972. Section 6 gives the Solicitor-General and the spouse and children of the Solicitor-General the same pension entitlements as a judge of the Supreme Court of Victoria. Generally, in order to qualify for a judicial pension a Solicitor-General must serve a minimum of 10 years in office and remain in office until the age of 65 years.

New sub-section (3) provides that a Solicitor-General and the spouse and children of a Solicitor-General who has served 10years in office as Solicitor-General, and who ceases to hold office before reaching the age of 65 years, shall on reaching that age be entitled to the same pension entitlements as a Supreme Court judge.

New sub-section (3A) provides that the pension entitlements of aSolicitor-General appointed to judicial office after the age of 65years are suspended but not extinguished while holding judicial office.

PART 3—AMENDMENT OF CASINO CONTROL ACT 1991

Clause 4 substitutes a new section 58A(1) and inserts new sub-sections (1A) and (1B) in the Casino Control Act 1991 which relate to compulsory training for special employees.

New section 58A(1) provides that a casino special employee who performs any of the functions of a special employee in relation to gaming machines must, regardless of when his or her employment commenced—

·  complete an appropriate approved training course within the period specified in new sub-section (1A); and

·  an approved refresher course within 3 years of completing the approved training course and once every 3 years thereafter.

This amendment ensures that all special employees working in the gaming machine areas of a casino are required to undertake approved training.

New section 58A(1A) provides that an approved training course must be completed—

·  by a special employee in the employment of a casino operator immediately before the commencement of the new provisions, within 12 months of the course being approved by the Victorian Commission for Gambling Regulation (the Commission); or

·  by a special employee employed on or after the commencement of the new provisions, within 6 months of the employee commencing performance of any of the functions of a special employee in relation to gaming machines or within 12 months of the course being approved by the Commission, whichever period expires later.

New section 58(1B) states that the requirement to undertake an approved training course contained in new section 58A(1)(a) does not apply to a special employee who has completed an approved training course—

·  after the commencement of the new provisions; and

·  within the 3 years immediately before the commencement of employment with a casino operator.

Clause 5 repeals the transitional provision contained in clause 5(15) of Schedule 3 to the Casino Control Act 1991. This transitional provision is no longer required.

PART 4—AMENDMENT OF CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (ENFORCEMENT) ACT 1995

Clause 6 inserts a new section 64(2) in the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 to empower the Director of the Classification Board to direct that the Act does not apply to certain approved organisations. TheDirector may specify the extent of an exemption's operation and any condition to which an exemption is subject, including making an exemption in respect of all or any of an approved organisation's activities or functions that relate to films or computer games.

Clause 7 amends section 66 of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 to insert a heading and make consequential amendments to make clear that the approval process set out in section 66 relates only to exemptions in relation to events, as provided for in section 64(1).

Clause 8 inserts a new section 66A in the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995. Newsection 66A provides for the Director of the Classification Board to approve certain organisations for the purposes of the new exemption in section 64(2). An organisation may only be approved for this purpose if it is established by or under a Victorian Act and carries on activities of an educational, cultural or artistic nature. The considerations to which the Director must have regard in considering whether to approve an organisation are based on the considerations contained in the existing approval process for the approval of organisations in relation to events (section 66). That model has been adapted in some respects toreflect the more limited availability of the new exemption (inparticular an organisation must carry on activities of an educational, cultural or artistic nature), and to reflect that the section 64(2) exemption will apply to both the screening of filmsand to the possession or demonstration of computer games. The circumstances in which an approval takes effect or can be revoked are also set out in the provision and are based on the existing section 66 processes.

Clause 9 amends section 67(2) of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 to clarify that that this sub-section applies in respect of an application made under section 64(1) for an exemption for the exhibition of a film at an event. Clause 9 also inserts a new section 67(2A) in that Act to set out the requirements for an application for an exemption under the new section 64(2). The application process is tailored to the nature of the section 64(2) exemption, requiring that the application must be in an approved form, must specify the extent of the exemption, and must be accompanied by any prescribed fee. In accordance with section 64(2), in describing the extent of the exemption sought, an applicant may specify all or any of its activities and functions relating to films or computer games.

PART 5—AMENDMENT OF CONFISCATION ACT 1997

Clause 10 amends section 17 of the Confiscation Act 1997 by replacing sub-section (1) with new sub-sections (1), (1A), (1B) and (1C).

Section 16 of that Act enables an applicant for a restraining order to make the application without notice to affected parties.

New section 17(1) permits a court to require that notice of an application for a restraining order be given to any person whose property interests may be affected by such an order where the court considers that such notice is justified having regard to the factors listed in new sub-section (1A).

New section 17(1A) requires the court, in determining whether or not the circumstances of a case justify notice being given, to have regard to—

·  the aim of a restraining order to preserve property so that it is available for the purpose for which the order is sought;

·  whether the giving of notice may jeopardise a related criminal investigation;

·  whether the giving of notice may pose a risk to the safety or security of any person, including potential witnesses in criminal proceedings;

·  the right of an affected person to apply to have property excluded from a restraining order;

·  the limited duration of a restraining order; and

·  any submission made by the applicant in relation to the giving of notice of an application.

New section 17(1B) enables the court to have regard to any other matter it considers relevant in determining whether or not to require notice of an application for a restraining order.

New section 17(1C) makes clear that, if a court does not require notice of an application for a restraining order to be given, the court may hear and determine the application in the absence of any person with an interest in the property that is the subject of the application.

Clause 11 amends section 53 of the Confiscation Act 1997 to remove the prohibition on a person who is suspected of having committed a Schedule 2 offence and who claims a previous interest in property forfeited under the civil forfeiture regime from making an application for an exclusion order under section 54.

Clause 12 inserts new section 78(3) in the Confiscation Act 1997 to make clear that a stay on a disposal order made on a person's conviction for a Schedule 1 offence is only stayed on an appeal against conviction for that offence and not an appeal against sentence. It also provides that a disposal order is of no effect if, on appeal, the conviction is quashed.

Clause 13 inserts a new section 144A in the Confiscation Act 1997. Newsection 144A(1) validates certain restraining orders made onor before 26 September 2005 notwithstanding a potential defect in such orders that were made against named persons rather than specified property.

Sub-section (2) provides that this validation provision does not affect the rights of parties in the Supreme Court proceeding of Director of Public Prosecutions v. Navarolli and Mokbel
(No. 1545 of 2005).

Clause 14 inserts transitional provisions to the effect that the amendments made in clauses 10, 11 and 12 above only apply to applications for restraining orders, applications for exclusion orders and disposal orders respectively made on or after the commencement of those clauses. (Note: Clause 2 of the Bill provides that these provisions commence operation on the day after the Act receives Royal Assent.)

PART 6—AMENDMENT OF CORRECTIONS AND SENTENCING ACTS (HOME DETENTION) ACT 2003

Clause 15 repeals sections 2(2) and (3) and sections 9, 10, 20 and 21 of the Corrections and Sentencing Acts (Home Detention) Act 2003. These sections provide for the sunset of the home detention provisions in the Corrections Act 1986 and the Sentencing Act 1991 on the third anniversary of their commencement, and provide for transitional arrangements consequential upon the sunset of the home detention program. The effect of repealing these provisions is to continue the operation of the home detention program indefinitely.

PART 7—AMENDMENT OF COUNCIL OF LAW REPORTING IN VICTORIA ACT 1967

Clause 16 amends section 5(1)(c) of the Council of Law Reporting in Victoria Act 1967 to increase the membership of the Law Institute of Victoria and Victorian Bar on the Victorian Council of Law Reporting by providing that two members of the Law Institute of Victoria and two members of the Victorian Bar Inc may be appointed to the Victorian Council of Law Reporting.