An Act to amend various Acts with respect to courts, crimes and other matters.
1 Name of Act
This Act is the Courts and Crimes Legislation Amendment Act 2009.
2 Commencement
(1) This Act commences on the date of assent to this Act, except as provided by subsections (2) and (3).(2) Schedule 2.6 [3] commences on a day to be appointed by proclamation.(3) Schedule 2.9 commences, or is taken to have commenced, on the commencement of the Industrial Relations Amendment (Jurisdiction of Industrial Relations Commission) Act 2009.
Schedule 1 Amendment of Acts relating to eligible Judges and Magistrates
Section 5 Eligible Judges
Omit section 5 (6). Insert instead:(6) A declaration of an eligible Judge under subsection (3) cannot be revoked by the Attorney General. However, the declaration of a Judge as an eligible Judge is revoked if:(a) the eligible Judge revokes his or her consent in accordance with subsection (5) or ceases to be a Judge, or(b) the Chief Justice notifies the Attorney General that the Judge should not continue to be an eligible Judge.(7) To avoid doubt, the selection of the eligible Judge to exercise any particular function conferred on eligible Judges is not to be made by the Attorney General or other Minister of the Crown, and the exercise of that particular function is not subject to the control and direction of the Attorney General or other Minister of the Crown.
Section 8 Eligible Judges
Omit section 8 (6). Insert instead:(6) A nomination of an eligible Judge under subsection (3) cannot be revoked by the Attorney General. However, the nomination of a Judge as an eligible Judge is revoked if:(a) the eligible Judge revokes his or her consent in accordance with subsection (5) or ceases to be a Judge, or(b) the Chief Justice notifies the Attorney General that the Judge should not continue to be an eligible Judge.(7) To avoid doubt, the selection of the eligible Judge to exercise any particular function conferred on eligible Judges is not to be made by the Attorney General or other Minister of the Crown, and the exercise of that particular function is not subject to the control and direction of the Attorney General or other Minister of the Crown.
Section 46B Eligible Judges
Omit section 46B (6). Insert instead:(6) A declaration of an eligible Judge under subsection (3) cannot be revoked by the Attorney General. However, the declaration of a Judge as an eligible Judge is revoked if:(a) the eligible Judge revokes his or her consent in accordance with subsection (5) or ceases to be a Judge, or(b) the Chief Justice notifies the Attorney General that the Judge should not continue to be an eligible Judge.(7) To avoid doubt, the selection of the eligible Judge to exercise any particular function conferred on eligible Judges is not to be made by the Attorney General or other Minister of the Crown, and the exercise of that particular function is not subject to the control and direction of the Attorney General or other Minister of the Crown.
Section 5 Eligible Judges and Magistrates
Omit section 5 (7). Insert instead:(7) A declaration of an eligible Judge under subsection (3) cannot be revoked by the Attorney General. However, the declaration of a Judge as an eligible Judge is revoked if:(a) the eligible Judge revokes his or her consent in accordance with subsection (6) or ceases to be a Judge, or(b) the Chief Justice notifies the Attorney General that the Judge should not continue to be an eligible Judge.(8) A declaration of an eligible Magistrate under subsection (3) cannot be revoked by the Attorney General. However, the declaration of a Magistrate as an eligible Magistrate is revoked if:(a) the eligible Magistrate revokes his or her consent in accordance with subsection (6) or ceases to be a Magistrate, or(b) the Chief Magistrate notifies the Attorney General that the Magistrate should not continue to be an eligible Magistrate.(9) To avoid doubt, the selection of the eligible Judge or eligible Magistrate to exercise any particular function conferred on eligible Judges or eligible Magistrates is not to be made by the Attorney General or other Minister of the Crown, and the exercise of that particular function is not subject to the control and direction of the Attorney General or other Minister of the Crown.
Section 27B Eligible Judges
Omit section 27B (6). Insert instead:(6) A declaration of an eligible Judge under subsection (3) cannot be revoked by the Attorney General. However, the declaration of a Judge as an eligible Judge is revoked if:(a) the eligible Judge revokes his or her consent in accordance with subsection (5) or ceases to be a Judge, or(b) the Chief Justice notifies the Attorney General that the Judge should not continue to be an eligible Judge.(7) To avoid doubt, the selection of the eligible Judge to exercise any particular function conferred on eligible Judges is not to be made by the Attorney General or other Minister of the Crown, and the exercise of that particular function is not subject to the control and direction of the Attorney General or other Minister of the Crown.
Schedule 2 Other amendments of Acts
[1] Section 22A Power to refuse to hear bail application
Omit section 22A (1). Insert instead:(1) A court is to refuse to entertain an application for bail by a person accused of an offence if an application by the person in relation to that bail has already been made and dealt with by the court, unless there are grounds for a further application for bail.(1A) For the purposes of this section, the grounds for a further application for bail are:(a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or(b) information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or(c) circumstances relevant to the grant of bail have changed since the previous application was made.
[2] Section 22A (5)
Omit the subsection. Insert instead:(5) If a court has previously dealt with an application for bail for a person accused of an offence, a lawyer may refuse to make a further application to the court on behalf of that person if there are no grounds for a further application for bail.
Section 107 Examination and cross-examination of witnesses
Omit “an authorised Magistrate within the meaning” from section 107 (4).Insert instead “a Magistrate within the meaning of section 13 (2)”.
Section 39 Expediting trials and appeals
Omit “or any authorised Magistrate” from section 39 (3) (c).Insert instead “or Magistrate”.
Schedule 2 Amendments relating to recommendations 11.2, 13.1, 13.3, 13.4, 13.9 and 13.12
Omit Schedule 2.1 [3].
[1] Section 13 Single member to exercise jurisdiction of the Court
Insert at the end of section 13 (b):or(c) a Magistrate,
[2] Section 13 (2)
Insert at the end of section 13:(2) In this section, Magistrate means a Magistrate authorised by the President and Chief Magistrate to exercise any function conferred or imposed on a Children’s Magistrate by or under this or any other Act.
[3] Schedule 2 Savings and transitional provisions
Insert after Part 3:Part 4 Provision consequent on enactment of Courts and Crimes Legislation Amendment Act 20099 Authorised Magistrates(1) Anything done before the commencement of this clause by an authorised Magistrate in the purported exercise of jurisdiction conferred by the proclamation referred to in clause 4 in accordance with the directions of the President or Chief Magistrate and which would have been validly done had section 13 (c) and (2) (as inserted by the amending Act) been in force when it was done is validated.(2) In this clause:amending Act means the Courts and Crimes Legislation Amendment Act 2009.
[1] Section 8 Uniform Rules Committee
Omit “11 members” from section 8 (1). Insert instead “12 members”.
[2] Section 8 (1) (c2)
Insert after section 8 (1) (c1):(c2) one is to be the President of the Industrial Relations Commission or a judicial member of the Commission (within the meaning of the Industrial Relations Act 1996) nominated for the time being by the President, and
[3] Schedule 1 Application of Act
Insert in Columns 1 and 2, after the matter relating to the Land and Environment Court:
[4] Schedule 2 Constitution and procedure of Uniform Rules Committee
Insert “the President of the Industrial Relations Commission,” after “the Chief Judge of the Land and Environment Court,” in the definition of ex officio member in clause 1.
[5] Schedule 2, clause 5
Omit “6”. Insert instead “7”.
[6] Schedule 6 Savings, transitional and other provisions
Insert at the end of clause 1 (1):Courts and Crimes Legislation Amendment Act 2009 (but only to the extent to which it amends this Act)
[1] Section 35 Definitions
Omit the definition of from section 35 (1).
[2] Section 36 Search warrants
Insert “(within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002)” after “authorised officer” in section 36 (1).
[1] Section 16 Notice of making of interim control order
Insert after section 16 (5):(6) A police officer who has reasonable cause to suspect that a person is a person on whom notice of the making of an interim control order is required to be served under this section may:(a) request the person to disclose his or her identity, and(b) request the person to remain at a particular place for such period (not exceeding 2 hours) as is reasonably necessary to serve the notice.Note—It is an offence for a person to fail or refuse without reasonable excuse to comply with a request to disclose his or her identity or to give false or misleading information about his or her identity—see section 35A.(7) If the person refuses or fails to comply with a request under subsection (6) (b), the police officer may detain the person at that place for such period (not exceeding 2 hours) as is reasonably necessary to serve the notice.
[2] Section 16A Service of notice of interim control order
Insert after section 16A (2):(2A) An order may be made under subsection (1) whether or not the 28-day period referred to in section 16 (1) has expired.
[3] Section 19 Court may make control order
Omit section 19 (1) (a). Insert instead:(a) the person:(i) is a member of a particular declared organisation, or(ii) is or purports to be a former member of a particular declared organisation but has an on-going involvement with the organisation and its activities, and
[4] Section 19 (8)
Insert after section 19 (7):(8) For the purposes of determining whether subsection (1) (a) (ii) applies to a person, the Court may take into account whether the person regularly associates with members of the declared organisation without reasonable cause and the extent to which the conduct of the person demonstrates that the person has genuinely dissociated himself or herself from the organisation.
[5] Section 26 Association between members of declared organisations subject to interim control order or control order
Insert after section 26 (1):(1A) A controlled member of a declared organisation who, at any time within a period of 3 months, associates with another controlled member of the declared organisation on 3 or more occasions is guilty of an offence.Maximum penalty: Imprisonment for 3 years.
[6] Section 26 (2)–(4)
Insert “or (1A)” after “subsection (1)” wherever occurring.
[7] Section 26 (7A)
Insert after section 26 (7):(7A) A police officer who has reasonable cause to suspect that a person is a controlled member of a declared organisation who is associating with another controlled member of the declared organisation may request the person to disclose his or her identity.Note—It is an offence for a person to fail or refuse without reasonable excuse to comply with a request to disclose his or her identity or to give false or misleading information about his or her identity—see section 35A.
[8] Section 35A
Insert after section 35:35A Failure of person to disclose identity on request(1) A person who is requested by a police officer in accordance with section 16 (6) or 26 (7A) to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the request.Maximum penalty: 20 penalty units.(2) A person must not, without reasonable excuse, in response to a request made by a police officer in accordance with a provision referred to in subsection (1):(a) give a name that is false in a material particular, or(b) give an address other than the person’s full and correct address.Maximum penalty: 20 penalty units.Note—Section 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 sets out safeguards in relation to such a request.
[9] Section 36 Proceedings for offences
Insert “or an offence under section 26 (1A)” after “order)” in section 36 (2).
Section 245 Summary jurisdiction of Supreme Court
Insert after the note at the end of section 245 (2):(3) Despite subsection (2), the Industrial Registrar within the meaning of the Industrial Relations Act 1996 may, subject to the rules, make an order under section 246 with respect to an offence that may be dealt with by the President or a judicial member of the Industrial Relations Commission under this Part.
[1] Section 5BAA Taking evidence of government agency witnesses from outside courtroom or place where court is sitting—proceedings generally
Omit “police officer” wherever occurring from paragraph (b) of the definition of government agency witness in section 5BAA (5).Insert instead “member of the NSW Police Force”.
[2] Schedule 1 Savings, transitional and other provisions
Insert after clause 1:2 Evidence of government agency witnessesSection 5BAA, as amended by the Courts and Crimes Legislation Amendment Act 2009, does not apply to proceedings commenced before the commencement of that amendment.
Sections 185A–185C
Insert after section 185:185A Practice notes(1) Subject to rules of the Commission, the President may issue practice notes with respect to any matter for which rules may be made.(2) A practice note must be published in the Gazette.(3) Sections 40 and 41 of the Interpretation Act 1987 apply to a practice note in the same way as they apply to a statutory rule.185B Commission may dispense with rules in particular casesIn relation to particular civil proceedings, the Commission may, by order, dispense with any requirement of rules of the Commission if satisfied that it is appropriate to do so in the circumstances of the case.185C Commission may give directions in circumstances not covered by rules(1) In relation to particular proceedings, the Commission may give directions with respect to any aspect of practice or procedure not provided for by or under this Act, the Criminal Procedure Act 1986, the Civil Procedure Act 2005 or any other Act.(2) Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done.
[1] Section 46 Interpretation
Omit the definition of from section 46 (1).
[2] Section 47 Power to apply for search warrants
Omit “who proposes to enter and search premises covertly may apply to an eligible issuing officer for the issue of a covert search warrant” from section 47 (3).Insert instead “may apply to an eligible issuing officer for a covert search warrant to authorise the covert entry and search of premises”.
Schedule 9 Savings, transitional and other provisions
Insert at the end of clause 34:(2) The reference to an appeal in subclause (1) extends to an appeal made to the Supreme Court under section 208L (Appeal against decision of costs assessor as to matter of law) of the Legal Profession Act 1987.
[1] Section 25 Local Court Rule Committee
Omit “a registrar” from section 25 (2) (e). Insert instead “an officer”.
[2] Section 25 (2) (g)
Omit the paragraph. Insert instead:(g) if the Minister thinks that it is appropriate to appoint a person as a member—a person appointed by the Minister,
[3] Schedule 4 Savings, transitional and other provisions
Insert after clause 12:Part 4 Provision consequent on enactment of Courts and Crimes Legislation Amendment Act 200913 Member of Rule Committee appointed by Attorney GeneralA person appointed and holding office under section 25 (2) (g), as in force immediately before its substitution by the Courts and Crimes Legislation Amendment Act 2009, is taken to have been appointed under section 25 (2) (g) as substituted by that Act.