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Explanatory Memorandum

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					 Courts Legislation (Judicial Appointments and
           Other Amendments) Bill

                        Introduction Print

              EXPLANATORY MEMORANDUM


                                  General
The Bill amends the current legislation for acting judicial appointments,
allows service as a master to be counted for pension purposes, amends the
powers of authorized officers and makes a number of technical amendments
in relation to mediation and fine defaulters in the Magistrates' Court.

                               Clause Notes

                      PART 1—PRELIMINARY
Clause 1   sets out the purpose of the Bill, which is to amend the
           Constitution Act 1975, the County Court Act 1958, and the
           Magistrates' Court Act 1989 to provide for acting judicial
           appointments in the Supreme Court, the County Court and the
           Magistrates' Court; the Constitution Act 1975 and the County
           Court Act 1958 to allow for prior service as a master to count for
           pension purposes for judges of the Supreme and County Courts;
           the Magistrates' Court Act 1989 to enable the Magistrates'
           Court to refer civil proceedings to mediation without the consent
           of the parties; the Court Security Act 1980 in relation to the
           search for and seizure of certain items and the removal of persons
           from court premises in certain circumstances, and the
           Magistrates' Court Act 1989 to change references to $100 to
           penalty units.

Clause 2   states that Parts 1, 3, 4 and 6 of the Bill will come into effect on
           the day after the day on which it receives Royal Assent and
           Parts 2 and 5 will come into effect on 1 March 2005.




551230                                1       BILL LA INTRODUCTION 1/11/2004
           PART 2—ACTING JUDICIAL APPOINTMENTS

           Division 1—Acting Judges of the Supreme Court
Clause 3    repeals sections 80A and 81 of the Constitution Act 1975
            relating to reserve and acting judges in the Supreme Court.

Clause 4    inserts new sections 80D and 80E in the Constitution Act 1975
            to create the office of acting judge and to provide transitional
            provisions for reserve judges.
            New section 80D sets out the process of appointing acting judges
            in the Supreme Court.
            Sub-section (1) provides that the Governor in Council may
            appoint as many acting judges of the Court as are necessary for
            transacting the business of the Court.
            Sub-section (2) sets out the eligibility criteria for appointment as
            an acting judge.
            Sub-section (3) provides that the terms and conditions of
            appointment of a person as an acting judge must be specified in
            the instrument of appointment.
            Sub-section (4) provides that the Attorney-General may from
            time to time, by notice in writing, require an acting judge to
            undertake judicial duties on a full-time or sessional basis.
            Sub-section (5) provides that an Attorney-General's notice
            provided pursuant to sub-section (4) cannot be amended or
            revoked.
            Sub-section (6) sets out the powers and jurisdiction of acting
            judges, provides that an acting judge is eligible for
            re-appointment, and limits the period of appointment to 5 years
            or to the relevant retirement age, whichever occurs sooner.
            Sub-section (6) also provides that the removal of an acting judge
            from office can only occur in the same way and on the same
            grounds as a judge of the Court.
            Sub-sections (7) and (8) set out the remuneration of acting judges
            undertaking judicial duties on a full time basis. Acting judges
            undertaking judicial duties on a full time basis will be paid a
            salary no less than the rate for the time being applicable under the
            Judicial Salaries Act 2004 to judges appointed on other than an
            acting basis. If an acting judge undertaking judicial duties on a
            full time basis is entitled to a Victorian, Commonwealth or
            interstate non-contributory pension, the amount of pension to
            which the acting judge is entitled will be deducted from the
            salary payable to that acting judge.


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           Sub-sections (9) and (10) set out the remuneration of acting
           judges undertaking judicial duties on a sessional basis.
           Acting judges undertaking judicial duties on a sessional basis will
           be paid the sessional rate for the time being applicable under the
           Judicial Salaries Act 2004. An acting judge undertaking
           judicial duties on a sessional basis and entitled to a Victorian,
           Commonwealth or interstate non-contributory pension will be
           paid the sessional rate less an amount equivalent to the daily rate
           of the annual pension to which the acting judge is entitled.
           Sub-section (11) allows for acting judges to be paid allowances
           at the rate or amount or of such a kind as are for the time being
           applicable under the Judicial Salaries Act 2004.
           Sub-section (12) states that service as an acting judge does not
           count for the purposes of section 83 of the Constitution Act
           1975 which provides for pensions, unless the new section
           83(6)(aa) applies.
           Sub-section (13) prohibits an acting judge of the Court from
           engaging in legal practice, undertaking paid employment or
           conducting a business, trade or profession of any kind whilst
           undertaking the duties of a judge, except with the approval of the
           Attorney-General.
           Sub-section (14) provides for salaries and other payments
           associated with the office of acting judge to be paid out of the
           Consolidated Fund.
           Section 80E is a transitional provision relating to reserve judges
           which states that the repeal of section 80A does not affect an
           election or appointment of a current reserve judge. A judge who
           has made an election to retire or has been appointed a reserve
           judge and holds the office of judge immediately before the
           commencement of clause 3 continues in that office subject to
           section 80A as if section 80A had not been repealed.

Clause 5   inserts new section 83(6)(aa) into the Constitution Act 1975.
           New section 83(6)(aa) provides that where a judge or master of
           the Court was an acting judge of the Supreme or County Court
           immediately prior to appointment, then service as an acting judge
           of the Supreme or County Court is to count as service in the
           office of judge or master of the Court.




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           Division 2—Acting Judges of the County Court
Clause 6   inserts a new section 11 in the County Court Act 1958 which
           sets out the process of appointing acting judges in the County
           Court.
           Sub-section (1) provides that the Governor in Council may
           appoint as many acting judges of the Court as are necessary for
           transacting the business of the Court.
           Sub-section (2) sets out the eligibility criteria for appointment as
           an acting judge.
           Sub-section (3) provides that the terms and conditions of
           appointment of a person as an acting judge must be specified in
           the instrument of appointment.
           Sub-section (4) provides that the Attorney-General may from
           time to time, by notice in writing, require an acting judge to
           undertake judicial duties on a full-time or sessional basis.
           Sub-section (5) provides that an Attorney-General's notice
           provided pursuant to sub-section (4) cannot be amended or
           revoked.
           Sub-section (6) sets out the powers and jurisdiction of acting
           judges, provides that an acting judge is eligible for
           re-appointment, and limits the period of appointment to 5 years
           or to the relevant retirement age, whichever occurs sooner.
           Sub-section (6) also provides that the removal of an acting judge
           from office can only occur in the same way and on the same
           grounds as a judge of the Court.
           Sub-sections (7) and (8) set out the remuneration of acting judges
           undertaking judicial duties on a full time basis. Acting judges
           undertaking judicial duties on a full time basis will be paid a
           salary no less than the rate for the time being applicable under the
           Judicial Salaries Act 2004 to judges appointed on other than an
           acting basis. If an acting judge undertaking judicial duties on a
           full time basis is entitled to a Victorian, Commonwealth or
           interstate non-contributory pension, the amount of pension to
           which the acting judge is entitled will be deducted from the
           salary payable to that acting judge.
           Sub-sections (9) and (10) set out the remuneration of acting
           judges undertaking judicial duties on a sessional basis.
           Acting judges undertaking judicial duties on a sessional basis
           will be paid the sessional rate for the time being applicable under
           the Judicial Salaries Act 2004. An acting judge undertaking
           judicial duties on a sessional basis and entitled to a Victorian,
           Commonwealth or interstate non-contributory pension will be

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           paid the sessional rate less an amount equivalent to the daily rate
           of the annual pension to which the acting judge is entitled.
           Sub-section (11) allows for acting judges to be paid allowances
           at the rate or amount or of such a kind as are for the time being
           applicable under the Judicial Salaries Act 2004.
           Sub-section (12) states that service as an acting judge does not
           count for the purposes of section 14 of the County Court Act
           1958 which provides for pensions, unless the new section
           14(5)(aa) applies.
           Sub-section (13) prohibits an acting judge of the Court from
           engaging in legal practice, undertaking paid employment or
           conducting a business, trade or profession of any kind whilst
           undertaking the duties of a judge, except with the approval of the
           Attorney-General.
           Sub-section (14) lists certain payments to be paid out of the
           Consolidated Fund.

Clause 7   repeals sections 13A, 16 and 16A of the County Court Act 1958
           which relate to reserve and acting judges in the County Court.

Clause 8   inserts new section 14 (5)(aa) into the County Court Act 1958.
           The new section provides that where a judge or master of the
           Court was an acting judge of the Supreme or County Court
           immediately prior to appointment, then service as an acting judge
           of the Supreme or County Court is to count as service in the
           office of judge or master of the Court.

Clause 9   inserts new section 90 in the County Court Act 1958 which is a
           transitional provision relating to reserve judges. Section 90 states
           that the repeal of sections 13A, 16 and 16A does not affect an
           election or appointment as a reserve or acting judge. A judge
           who has made an election to retire or has been appointed a
           reserve or acting judge and holds the office of Judge immediately
           before the commencement of clause 7 continues in that office
           subject to section 13A, 16 or 16A as if that section had not been
           repealed.




                                      5
                    Division 3—Acting Magistrates
Clause 10 inserts new section 7(7A) in the Magistrates' Court Act 1989
          which provides that, for the purposes of section 7(7), if any
          magistrate, other than a Chief Magistrate appointed on or after
          7 May 1996, was an acting magistrate immediately prior to his
          or her appointment, then during that appointment he or she is an
          officer within the meaning of the State Superannuation Act
          1988. Sub-clause (2) inserts a new sub-section (10) in section 7
          of the Magistrates' Court Act 1989 to clarify that that section
          does not apply to an acting magistrate.

Clause 11 substitutes section 9 of the Magistrates' Court Act 1989.
          Section 9 provides for the appointment of acting magistrates.
           Sub-section (1) provides that the Governor in Council may
           appoint as many acting magistrates of the Court as are necessary
           for transacting the business of the Court.
           Sub-section (2) sets out the eligibility criteria for appointment as
           an acting magistrate.
           Sub-section (3) provides that the terms and conditions of
           appointment of a person as an acting magistrate must be specified
           in the instrument of appointment.
           Sub-section (4) provides that the Attorney-General may from
           time to time, by notice in writing, require an acting magistrate to
           undertake the duties of a magistrate on a full-time or sessional
           basis.
           Sub-section (5) provides that an Attorney-General's notice
           provided pursuant to sub-section (4) cannot be amended or
           revoked.
           Sub-section (6) sets out the powers and jurisdiction of acting
           magistrates, provides that an acting magistrate is eligible for
           re-appointment, and limits the period of appointment to 5 years
           or to the relevant retirement age, whichever occurs sooner.
           Sub-section (6) also provides that the removal of an acting
           magistrate from office can only occur in the same way and on
           the same grounds as a magistrate of the Court.
           Sub-section (7) states that service as an acting magistrate does
           not count as service as a magistrate for the purposes of section
           7(7), except as provided for in section 7(7A).




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            Sub-section (8) prohibits an acting magistrate from engaging in
            legal practice, undertaking paid employment or conducting a
            business, trade or profession of any kind whilst undertaking the
            duties of a magistrate, except with the approval of the Attorney-
            General.

Clause 12 substitutes clause 11 in Part 2 of Schedule 1 to the Magistrates'
          Court Act 1989 which sets out the remuneration of acting
          magistrates. Acting magistrates undertaking the duties of a
          magistrate on a full time basis will be paid a salary no less than
          the rate for the time being applicable under the Judicial Salaries
          Act 2004 to magistrates appointed on other than an acting basis.
          Acting magistrates undertaking the duties of a magistrate on a
          sessional basis will be paid the sessional rate for the time being
          applicable under the Judicial Salaries Act 2004.
            New clause 11A provides that if an acting magistrate undertaking
            the duties of a magistrate on a full time basis is entitled to a
            Victorian, Commonwealth or interstate non-contributory pension,
            the amount of pension to which the acting magistrate is entitled
            will be deducted from the salary payable to that acting magistrate
            under clause 11.
            New clause 11B provides that an acting magistrate undertaking
            the duties of a magistrate on a sessional basis and entitled to a
            Victorian, Commonwealth or interstate non-contributory pension
            will be paid the sessional rate for the time being applicable under
            the Judicial Salaries Act 2004 less an amount equivalent to the
            daily rate of the annual pension to which the acting magistrate is
            entitled.

Clause 13 inserts two transitional provisions in Schedule 8 to the
          Magistrates' Court Act 1989. New clause 32 provides that the
          substitution of section 9 of the Magistrates' Court Act 1989 by
          section 11 the Courts Legislation (Judicial Appointments and
          Other Amendments) Act 2004 does not affect an appointment
          made under section 9 in force immediately prior to the
          commencement of section 11 of the Courts Legislation
          (Judicial Appointments and Other Amendments) Act 2004.
          A magistrate so appointed who holds the office of acting
          magistrate immediately before the commencement of section 11
          continues in that office subject to section 9 as if section 9 had not
          been substituted.




                                       7
            New clause 33 provides that the remuneration of an acting
            magistrate applicable immediately before the commencement of
            section 12 of the Courts Legislation (Judicial Appointments
            and Other Amendments) Act 2004 is not affected by the
            commencement of that section. An acting magistrate who
            receives remuneration under clause 11 immediately before that
            commencement will continue to receive remuneration until the
            end of their appointment as if clause 11 had not been substituted.

 PART 3—SERVICE AS MASTER COUNTED FOR PENSION
                   PURPOSES
Clause 14 inserts a new provision in the Constitution Act 1975.
          New section 83(6)(ac) provides that where a judge of the
          Supreme Court was a master of the Supreme or County Court
          or of a court of another State, the Northern Territory or the
          Australian Capital Territory, other than a Magistrates' Court or
          equivalent, then service as a master shall count as service in the
          office of Judge of the Court.

Clause 15 inserts a new provision in the County Court Act 1958.
          New section 14(5)(ad) provides that where a judge of the County
          Court was a master of the Supreme or County Court or of a court
          of another State, the Northern Territory or the Australian Capital
          Territory, other than a Magistrates' Court or equivalent, then
          service as a master shall count as service in the office of judge of
          the court.

  PART 4—NON-CONSENSUAL MEDIATION AND COURT
                  SECURITY

  Division 1—Non-consensual Mediation under the Magistrates'
                       Court Act 1989
Clause 16 amends section 108(1) of the Magistrates' Court Act 1989 to
          remove the need for consent of the parties when the Court refers
          civil proceedings to mediation.

                 Division 2—Court Security Act 1980
Clause 17 inserts a definition of "prohibited item" and "the security, good
          order or management of the court premises" in section 2 of the
          Court Security Act 1980.




                                      8
Clause 18 substitutes section 3(3) of the Court Security Act 1980.
          New sub-section (3) sets out the powers an authorized officer
          has in relation to searching a person, any thing in the person's
          possession and surrender of certain items to an authorized officer.
            Clause 18 also substitutes sections 3(6), 3(7), 3(8) and 3(9) of the
            Court Security Act 1980.
            New sub-section (6) allows an authorized officer to seize and
            retain a prohibited item found during a search.
            New sub-section (7) sets out procedures for retention and return
            of prohibited items (other than a firearm, an explosive substance
            or an offensive weapon).
            New sub-section (8) sets out the procedure for dealing with
            surrendered or seized prohibited items that are firearms, an
            explosive substance or an offensive weapon whose possession
            would constitute an offence under certain Acts. New sub-section
            (8) also sets out the procedure for disposal or sale of surrendered
            or seized items.
            New sub-section (9) provides the grounds on which an authorized
            officer may refuse a person entry or remove a person from the
            court premises.
            Clause 18 also inserts new sub-section (10) which provides that it
            is an offence to refuse to comply with a requirement under sub-
            section (3).

          PART 5—CONSEQUENTIAL AMENDMENTS

   Division 1—Amendment of Judicial Remuneration Tribunal
                        Act 1995
Clause 19 gives the Judicial Remuneration Tribunal jurisdiction to make
          recommendations to the Attorney-General in relation to the
          conditions of service for acting judges of the Supreme and
          County Courts in section 11(1)(c) of the Judicial Remuneration
          Tribunal Act 1995.

Clause 20 gives the Judicial Remuneration Tribunal jurisdiction to provide
          an advisory opinion to the Attorney-General in relation to acting
          judges of the Supreme and County Courts by inserting section
          11A(3) into the Judicial Remuneration Tribunal Act 1995.

Clause 21 amends sections 15(1)(a) and 15(1)(b) of the Judicial
          Remuneration Tribunal Act 1995 to allow the Attorney-
          General to issue a certificate in relation to the conditions of
          service for acting judges of the Supreme and County Courts.


                                       9
       Division 2—Amendment of Judicial Salaries Act 2004
Clause 22 amends section 4(2)(b) and inserts sections 4(2)(c), 4(3) and 4(4)
          into the Judicial Salaries Act 2004 to provide for the sessional
          rate of remuneration for acting judges of the Supreme and
          County Courts and acting magistrates.

Clause 23 inserts sections 6(2A) and 6(2B) into the Judicial Salaries Act
          2004 to provide for the sessional rate for acting judges of the
          Supreme and County Courts from 1 July 2005. Clause 23 also
          amends section 6(3) of the Judicial Salaries Act 2004 to provide
          for the calculation of the sessional rate of an acting magistrate
          from 1 July 2005.

Clause 24 inserts section 7(2) into the Judicial Salaries Act 2004 to
          provide for allowances for acting judges of the Supreme and
          County Courts and acting magistrates.

Clause 25 inserts section 7A into the Judicial Salaries Act 2004 to provide
          for transitional arrangements for the remuneration of acting
          magistrates applicable immediately before the commencement of
          section 22 of the Courts Legislation (Judicial Appointments
          and Other Amendments) Act 2004.

    PART 6—AMENDMENT OF MAGISTRATES' COURT
                  ACT 1989
Clause 26 amends section 82D(1)(c)(iii)(A) of the Magistrates' Court Act
          1989 to replace reference to a dollar amount with penalty unit or
          part of a penalty unit.

Clause 27 amends clause 5(1)(a) in Schedule 7 to the Magistrates' Court
          Act 1989 to replace reference to a dollar amount with penalty
          unit or part of a penalty unit.

Clause 28 amends clause 24(2)(a) in Schedule 7 to the Magistrates' Court
          Act 1989 to replace reference to a dollar amount with penalty
          unit or part of a penalty unit.




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