This instrument sets out preliminary definitions and repeals listed earlier Acts, and it establishes how clerks of petty sessions are appointed, supervised and what they may do. The Magistrates Court Administrator is the Chief Clerk by office; clerks can receive complaints, issue summonses and execute convictions; deputies and magistrates may fill clerk roles when needed. The Chief Magistrate may authorise a justice who is also a clerk to sit alone in summary jurisdiction subject to conditions (s17(2B)–(2G)).
The Justices Act 1959 (Tas) is the procedural backbone for the Magistrates Court of Tasmania when exercising summary criminal jurisdiction. At its core, it establishes a comprehensive framework for initiating, conducting, and concluding proceedings before justices or magistrates for both simple offences (summary matters punishable by fine or short imprisonment, per s.3) and indictable offences (those triable on indictment in the Supreme Court, also defined in s.3). The Act does not create substantive offences—that is left to the Criminal Code Act 1924 (Tas)—but instead governs how those offences are processed at the lower court level.
Part I (Preliminary) provides essential definitions in s.3, including "complaint" (a written allegation of an offence or breach of duty), "defendant", "simple offence", "indictable offence", and newer terms like "affected person" (s.61(2), typically victims of sexual or family violence offences) and "preliminary proceedings order" (under s.62 or Supreme Court Criminal Code s.331B). It repeals earlier Acts (s.2) and sets commencement (s.1). Notably, large portions of early Parts (II and III) have been repealed by the Magistrates Court Act 1987 and related reforms (see notes to ss.4–15), reflecting a shift toward the modern Magistrates Court structure.
Part IV (Clerks) establishes the administrative backbone, with the Chief Clerk of Petty Sessions (s.16, tied to the Magistrates Court Act 1987 s.5) overseeing clerks (s.16A, appointed under the State Service Act 2000). Clerks handle records (s.17A), issue process (s.17(2)), and may act as justices in limited circumstances (s.17(2B)–(2G), inserted 1999). Magistrates can perform clerk duties if needed (s.19).
Part V (Jurisdiction) outlines who can hear matters: complaints are generally heard by a magistrate or two justices (s.20), with majority decisions prevailing (s.21) and magistrates having full powers of a court of petty sessions (s.22). Single justices have limited powers, such as issuing summonses or conducting preliminary proceedings (s.23, amended 2021 to include Family Violence Act 2004 applications). sittings can occur anytime, anywhere (s.23A), with rosters approved by the Chief Magistrate (s.23AB). Contempt powers are in s.25 (fine up to 10 penalty units or 6 months imprisonment).
Current sections
Direct links to the current provisions in Justices Act 1959.
(2) This Act shall commence on a date to be fixed by proclamation.
2
Repeals
2 Repeals
The Acts that are specified in Schedule 1 are repealed.
3
Interpretation
3 Interpretation
[Section 3 Subsection (1) amended by No. 108 of 1974, s. 38 and Sched. 1 ][Section 3 Subsection (1) amended by No. 15 of 1976, s. 2 ][Section 3 Subsection (1) amended by No. 45 of 1987, s. 21 and Sched. 1 ][Section 3 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 3 Subsection (1) amended by No. 46 of 1991, s. 5 and Sched. 3 ][Section 3 Subsection (1) amended by No. 10 of 1993, s. 4 ][Section 3 Subsection (1) amended by No. 8 of 1994, s. 4 ][Section 3 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ][Section 3 Subsection (1) amended by No. 38 of 1995, s. 4 ]**[Section 3 Subsection (1) amended by No. 66 of 1995, s. 4 ]
breach of duty means any act or omission (not being a simple offence) upon complaint whereof justices may make an order on a person for the payment of money or for doing, or refraining from doing, any other act;
charge of an indictable offence means charge of an indictable offence as such and in order to a committal for trial therefor;
Chief Clerk of Petty Sessions means the person holding office as Chief Clerk of Petty Sessions by virtue of section 16 ;
complaint means a written allegation of an indictable or simple offence or of a breach of duty made to a justice;
court of petty sessions means a court held by 2 or more justices in petty session;
court of summary jurisdiction means –
(a) a court of petty sessions; and
(b) a court held by one justice;
decision includes a committal for trial and an admission to bail as well as a conviction, order, order of dismissal, or other determination;
defendant means a person complained against before justices for an indictable offence, simple offence, or breach of duty; and in sections 77 to 87 includes any person against whom a warrant of execution is or may be issued;
(b) in relation to a person in a place declared to be a prison under the Corrections Act 1997 that is available for use for the detention in lawful custody of persons other than prisoners or detainees under section 9(2) of theCorrections Act 1997 , a police officer;
hearing includes the examination of a person charged with an indictable offence;
indictable offence means an offence which may be prosecuted upon indictment before the Supreme Court;
interim restraint order has the same meaning as in Part XA ;
order means an order made upon a complaint of a breach of duty;
pecuniary sum means a sum of money in respect of which a warrant is issued under section 80(1) , including the prescribed costs of the warrant and of a warrant of commitment issued under section 80(2)(c) , 80(4A) or 82(1) , as the case may require;
petty session means a sitting together of 2 or more justices otherwise than in –
(a) a general session; or
(b) a special session required to be held for administrative purposes under another Act;
simple offence means any offence (indictable or not) punishable, on summary conviction before justices, by fine, imprisonment, or otherwise;
summary conviction, or conviction, means a conviction by justices for a simple offence;
telephone interim restraint order has the same meaning as in Part XA ;
the clerk of petty sessions means the person appointed or assigned as clerk of petty sessions for the district to which the context relates;
the justices means the justices exercising jurisdiction in respect of the matter to which the context relates.
(2) Where in any enactment the expressions information, information and complaint, charge, and charge of an indictable offence are used in relation to proceedings before justices, they shall be deemed to mean a complaint.
(2) In the performance of their functions and the exercise of their powers under this Act, all clerks and deputy clerks of petty sessions and any persons appointed to assist the clerks of petty sessions shall be subject to the directions of the Chief Clerk of Petty Sessions.
(3) Subsection (2) does not apply to a magistrate discharging the duties of a clerk of petty sessions under section 19(1) .
16A
Appointment of clerks, &c., of petty sessions
16A Appointment of clerks, &c., of petty sessions
[Section 16A Inserted by No. 60 of 1971, s. 2 ]**[Section 16A Amended by No. 108 of 1974, s. 2 ]
(1) [Section 16A Subsection (1) substituted by No. 29 of 1984, Sched. 1 ]**[Section 16A Subsection (1) substituted by No. 5 of 1990, s. 3 and Sched. 1 ][Section 16A Subsection (1) substituted by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Minister administering the State Service Act 2000 may appoint State Service officers and State Service employees to be the clerk of petty sessions for a district and deputy clerk or deputy clerks of petty sessions for a district and those officers or employees are to hold office in conjunction with State Service employment.
(1) *[Section 17 Subsection (1) amended by No. 108 of 1974, s. 38 and Sched. 1 ]*The clerk of petty sessions is, himself or by deputy, the ordinary clerk of –
(a) all courts of summary jurisdiction;
(b) all justices examining into charges of indictable offences; and
(c) the magistrate acting ministerially or administratively in respect of matters –
within his district.
(1A) [Section 17 Subsection (1A) inserted by No. 108 of 1974, s. 3 ]**[Section 17 Subsection (1A) omitted by No. 45 of 1987, s. 21 and Sched. 1 ]. . . . . . . .
(2) *[Section 17 Subsection (2) substituted by No. 19 of 1965, s. 2 ]*The clerk of petty sessions may himself or by deputy receive complaints and issue summonses thereon, summonses to witnesses, and process in execution of convictions and orders as if he were a justice.
(a) sit alone or with other justices in a court of summary jurisdiction; or
(b) do any act as an examining justice in respect of a person charged with an indictable offence.
(2B) [Section 17 Subsection (2B) inserted by No. 40 of 1999, s. 4, Applied:16 Jul 1999] The Chief Magistrate may authorise a particular, or any, justice who holds the office or position of a clerk of petty sessions, deputy clerk of petty sessions or clerk in the office of a clerk of petty sessions to sit alone in a court of summary jurisdiction.
(a) adjourn to a later date proceedings before the justice;
(b) if the prosecutor consents, admit the defendant to bail;
(c) if the defendant has appeared before the justice in accordance with his or her bail, continue that bail to the date to which the proceedings are being adjourned;
(d) where the justice continues a defendant's bail and both the defendant and the prosecutor consent to a variation of the conditions to which that bail is subject, vary those conditions;
(e) order the defendant to appear before justices on the date to which the proceedings are being adjourned.
(3) *[Section 17 Subsection (3) amended by No. 108 of 1974, s. 3 ]*This section does not prevent justices from using another person as their clerk in court when the clerk of petty sessions or any of his deputies cannot conveniently attend.
17A
Clerk of petty sessions to have care and custody of records of court
17A Clerk of petty sessions to have care and custody of records of court
[Section 17A Inserted by No. 115 of 1986, s. 4 ]
(1) A clerk of petty sessions shall have the care and custody of all the records of the court of which he is the clerk.
(2) In subsection (1) , records includes, without limiting the generality of that expression –
(a) the complaints and applications lodged with a clerk of petty sessions and any documents filed in connection with those complaints and applications;
(b) where evidence in proceedings in a court of summary jurisdiction is recorded by mechanical means on to tapes or other apparatus, those tapes or other apparatus; and
(c) the record of those proceedings that are taken by the justices pursuant to section 50A(1) .
18
Deputy clerks of petty sessions, &c.
18 Deputy clerks of petty sessions, &c.
(1) Subject to the direction of the justices or of the clerk of petty sessions a deputy clerk of petty sessions may do anything that the clerk of petty sessions may do under any enactment.
(2) During a petty session or the session of a justice acting judicially or examining into a charge of an indictable offence, any person acting as clerk to the justice or justices may do all that the clerk of petty sessions might do in respect of the business of the session.
19
Magistrate may discharge duties of the clerk of petty sessions
19 Magistrate may discharge duties of the clerk of petty sessions
(1) *[Section 19 Subsection (1) amended by No. 108 of 1974, s. 3 and s. 38 and Sched. 1 ]*In a district where the office of clerk of petty sessions is vacant or at a place at which no clerk of petty sessions or deputy clerk of petty sessions is present, the magistrate acting in that place may discharge all or any of the duties of the clerk of petty sessions, and all acts done by that magistrate in pursuance of this section are as valid as if done by the clerk, and all notices required to be given to the clerk, and all other matters and things required to be done with or in reference to the clerk, may be given to or done with or in reference to that magistrate, and shall have the like force and effect.
(2) The justices in petty sessions at that place or the Minister may require that any of such duties, acts, matters, and things as they or he shall think convenient shall be done by, with, or in reference to some police officer, and thereupon those acts, matters, and things if so done shall be as valid as if done by, with, or in reference to the clerk of petty sessions.
19A.
19A.
[Section 19A Inserted by No. 108 of 1974, s. 5 ][Section 19A Amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 19A Repealed by No. 45 of 1987, s. 21 and Sched. 1 ]
Part V
Jurisdiction
Part V Jurisdiction
20
Hearing of complaints
20 Hearing of complaints
[Section 20 Amended by No. 108 of 1974, s. 38 and Sched. 1 ]
(1) Every complaint shall be heard and determined by a magistrate or by one or by more justices, as is directed by the Act relating to the matter, or if there is no such direction, by any 2 or more justices.
(2) No justice other than a magistrate shall sit or adjudicate under this Act on the hearing of any complaint unless he has been notified as prescribed by the clerk of petty sessions that his attendance is required on the day on which that complaint is to be heard.
(3) No finding, decision, or order of any court of summary jurisdiction may be impugned, reversed, or invalidated on the ground that a justice sitting in the court has not received a notice as provided by subsection (2) .
21
Decision of 2 or more justices
21 Decision of 2 or more justices
[Section 21 Amended by No. 108 of 1974, s. 38 and Sched. 1 ]
(1) Subject to subsection (2) , when 2 or more justices hear a matter, and do not agree, the decision of the majority shall be the decision of the justices, and if they are equally divided in opinion, the justices present, or a majority of them may –
(a) dismiss the case; or
(b) adjourn the case for a rehearing with additional justices, or by other justices, or by a magistrate sitting alone.
(2) When 2 justices only are present and acting at the hearing of a matter and do not agree, if one of them is a magistrate, the decision of the magistrate shall prevail.
(3) Where a complaint must be heard and determined by 2 or more justices, the justices making the decision must be present and act together during the whole of the hearing and determination.
22
Powers of magistrates
22 Powers of magistrates
[Section 22 Amended by No. 108 of 1974, s. 38 and Sched. 1 ]
(1) A magistrate has power to do alone –
(a) whatever may be done by a court of petty sessions; and
(b) any other act which may be done by 2 or more justices in petty session.
(2) The court held by a magistrate, whether in the exercise of the jurisdiction of 2 or more justices or of jurisdiction exercisable by him as a magistrate, shall be deemed to be a court of petty sessions.
23
Powers of single justice
23 Powers of single justice
*[Section 23 Amended by No. 108 of 1974, s. 38 and Sched. 1 ]*One justice may –
(a) receive a complaint and issue a summons or warrant thereon;
(c) do all other necessary acts and matters preliminary to the hearing of a complaint or matter notwithstanding that it must be heard and determined by a magistrate or 2 or more justices;
(d) after the determination of a complaint or matter, whether or not he determined it or took part in its determination, issue a warrant of execution or commitment thereon; and
*[Section 23A Inserted by No. 108 of 1974, s. 6 ]*Subject to any other provisions of this Act –
(a) all courts of summary jurisdiction;
(b) all justices examining into charges of indictable offences; and
(c) all justices dealing with bail or recognizances –
may sit and act at any time, including Sunday, and at any place.
23AB
Approval and roster of justices who may constitute courts of summary jurisdiction, &c.
23AB Approval and roster of justices who may constitute courts of summary jurisdiction, &c.
*[Section 23AB Inserted by No. 50 of 1995, s. 4 ]*The Chief Magistrate may from time to time –
(a) by instrument in writing, approve the justices who may constitute courts of summary jurisdiction, examine charges of indictable offences and deal with bail or recognizances; and
(b) approve and vary rosters of those justices to sit as courts of summary jurisdiction, examine charges of indictable offences and deal with bail or recognizances.
24
Summons or warrant not avoided by death, &c., of justice
24 Summons or warrant not avoided by death, &c., of justice
A warrant or summons issued by a justice is not avoided by reason of his dying or ceasing to hold office.
25
Contempt
25 Contempt
(1) *[Section 25 Subsection (1) amended by No. 55 of 1965, s. 5 ][Section 25 Subsection (1) amended by No. 38 of 1974, s. 7 ][Section 25 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]*If a person –
(a) wilfully misbehaves himself before justices sitting in any place in the exercise of their jurisdiction under this or any other Act;
(b) wilfully interrupts or obstructs proceedings before such justices; or
(c) is guilty of wilful prevarication in giving evidence before such justices –
that person shall be deemed guilty of contempt of court, and the justices may, during their sitting, by oral order, direct that person to be removed from the court or place, and to be taken into custody, and at any time before they rise may impose on that person a fine not exceeding 10 penalty units or, by warrant, commit that person to a term of imprisonment not exceeding 6 months.
(2) Where a person is guilty of misconduct mentioned in subsection (1) , the justices may, if they think fit, accept an apology for the misconduct, and may remit any penalty or punishment for it either wholly or in part.
(2) *[Section 26 Subsection (2) inserted by No. 71 of 1993, s. 4 ]*Notwithstanding subsection (1) , a complaint for a simple offence (not being an indictable offence) may be made against a person within 12 months after the time when the matter of complaint arose if –
(a) that matter of complaint may also give rise to an indictable offence; and
(b) the person has been charged with that indictable offence within the period of 6 months, or the other time referred to in that subsection.
(3) *[Section 26 Subsection (3) inserted by No. 71 of 1993, s. 4 ]*Notwithstanding subsections (1) and (2) , a complaint for a simple offence (not being an indictable offence) may be made against a person at any time if –
(a) the matter of complaint giving rise to a simple offence may also be a matter giving rise to an indictable offence; and
(b) the person has been charged with that indictable offence within the period of 6 months, or the other time, referred to in subsection (1) ; and
(c) the person has consented in writing to the making of that complaint.
27
Proceedings may be commenced by complaint
27 Proceedings may be commenced by complaint
(1) [Section 27 Subsection (1) amended by No. 23 of 2009, s. 20, Applied:16 Jun 2009] *[Section 27 Subsection (1) amended by No. 108 of 1974, s. 8 ]*Subject to subsections (2) and (3) , and except as otherwise enacted or prescribed under any enactment, proceedings before justices shall be commenced by a complaint, which may be made or laid by the complainant in person, or by his or her lawyer or other person authorized in that behalf.
(2) *[Section 27 Subsection (2) inserted by No. 108 of 1974, s. 8 ]*Where a person has been arrested without a warrant, oral information of the substance of the charge may take the place of a complaint up to the stage of the proceedings at which a complaint is needed for the person charged to plead to it.
(3) *[Section 27 Subsection (3) inserted by No. 108 of 1974, s. 8 ]**[Section 27 Subsection (3) amended by No. 5 of 1990, s. 3 and Sched. 1 ]*A complaint of a breach of the Criminal Code may not be made by a person other than –
(a) a public officer;
(b) a person authorized or directed to make the complaint by the Crown or the Commonwealth; or
(c) an officer of a municipality or another statutory public or local authority –
acting in good faith in his official capacity, without the consent of the Director of Public Prosecutions, who shall satisfy himself by affidavit, statutory declaration, or otherwise that the complainant is acting in good faith and on reasonable grounds.
(a) subject to subsection (6) , to a matter purporting to be a complaint referred to in subsection (4) , whether or not the proceedings on the purported complaint have been finally determined; and
(b) to the public officer who made the purported complaint in the name of, and on behalf of, an agency, Department or instrumentality, whether or not the public officer was employed in that agency, Department or instrumentality.
(a) does not apply to that purported complaint; and
(b) does not affect the decision of the court.
28
Complaint against several defendants
28 Complaint against several defendants
(1) Any number of persons who are alleged to be parties within the meaning of section 73 to the same simple offence or who are alleged to be parties within the meaning of section 3 of theCriminal Code to the same indictable offence may be joined in the same complaint and the charges against them may be heard together or separately, notwithstanding that a party to the offence is not included in the complaint or is not amenable to justice.
(2) Where 2 or more persons are joined as defendants in the same complaint, whether in respect of the same offence or different offences, the justices may, at any time during the hearing, on the application of any of the defendants, direct that the hearing of the complaint against any of the defendants shall be had separately from the hearing of the complaint against the other or others of them.
29
Only one matter of complaint: Procedure if otherwise
29 Only one matter of complaint: Procedure if otherwise
(1) A complaint shall be for one matter only and not for 2 or more matters, except –
(a) in the case of indictable offences, where the matters complained of are such that they may be charged in one indictment;
(b) in other cases, if the matters of complaint are –
(i) substantially of the same act or omission on the part of the defendant, although amounting in law to 2 or more offences or 2 or more matters of complaint; or
(ii) founded on the same facts or are, or form part of, a series of offences or matters of complaint of the same or a similar character; or
(c) where otherwise expressly enacted.
(2) Where several matters of complaint are joined in the one complaint pursuant to subsection (1) , each matter of complaint shall be set out in a separate numbered paragraph.
(3) If, contrary to subsection (2) , any paragraph in a complaint includes more than one matter of complaint, the justices may, upon such terms and conditions as they think fit, at any stage of the hearing permit the complainant to amend that paragraph so that it shall include only one matter of complaint and to add a new paragraph or new paragraphs with respect to the other matter or matters of complaint.
(4) Where, on the hearing of a complaint, it appears to the justices that the defendant may be prejudiced or embarrassed in his defence because the complaint contains more than one matter of complaint or that for any other reason it is desirable to direct that one or more of the matters of complaint should be heard separately, the justices may order a separate hearing of any matter of complaint.
(5) On the hearing of a complaint that does not comply with subsection (1) –
(a) the justices shall, on the application of the defendant, require the complainant to choose one matter of complaint on which to proceed, and shall strike out of the complaint all other matters, without prejudice to the right of the complainant to lay a fresh complaint against the defendant in respect of any matter so struck out; or
(b) if the defendant does not so apply, the justices shall proceed to hear the evidence, and shall determine which matter or matters of complaint, if any, is or are proved, and may convict the defendant accordingly.
30
Statement of offences, &c.
30 Statement of offences, &c.
(1) Any complaint, summons, warrant, or other document that is laid, issued, or made for the purpose of, or in connection with, proceedings before justices shall be sufficient if it –
(a) describes the matter of complaint with which the defendant is charged or of which he is convicted in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the matter of complaint; and
(b) contains such particulars as will give reasonable information of the nature of the matter complained of.
(2) Where an enactment constituting a simple offence or breach of duty states –
(a) the offence or breach of duty to be doing or omitting to do –
(i) any one of any different acts in the alternative; or
(ii) any act in any one of different capacities or with any one of different intentions; or
(b) any part of the offence or breach of duty in the alternative –
the acts, omissions, capacities, intentions, or other matters stated in the alternative in the enactment may be stated in the alternative in a complaint for that simple offence or breach of duty.
31
Irregularities and amendments
31 Irregularities and amendments
(1) An objection shall not be taken or allowed to a complaint in respect of –
(a) an alleged defect therein, in substance or in form; or
(b) a variance between it and the evidence in support thereof.
(2) Notwithstanding the provisions of subsection (1) , where –
(a) a complaint fails to disclose an offence or matter of complaint; or
(b) the defendant appears to have been prejudiced by any defect or variance referred to in that subsection –
the justices shall, unless the complaint is amended as provided in subsection (3) , dismiss the complaint.
(3) If it appears to the justices that the complaint –
(a) fails to disclose an offence or matter of complaint, or is otherwise defective; and
(b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect –
the justices may amend the complaint upon such terms as may be just.
(4) An objection shall not be taken or allowed to a warrant or summons in respect of –
(a) an alleged defect therein, in substance or in form; or
(b) a variance between it and the evidence in support of the complaint in connection with which it is issued –
but the justices may adjourn the hearing if it appears to them that the defendant has been prejudiced by the defect or variance.
(5) Any –
(a) conviction or order made by justices; or
(b) warrant of committal, or other warrant or proceeding issued or had by or before justices –
may be amended, according to the evidence, by the justices by or before whom it was made, issued, or had, or by any court before which it comes, on appeal or otherwise, at any time after it has been signed, and before it has been executed, upon such terms as to costs, or otherwise, as to the justices or court seems fit.
(6) A conviction or order of, or other proceeding before, justices shall not be quashed or set aside for a mere matter of form or technical error, or mistake in a name, date, or title, or in a matter of description only, but in all cases regard shall be had alone to the substantial merits and justice of the case.
(7) A warrant of commitment issued upon any conviction by justices shall not be void or invalid, or be quashed, for any defect in substance or in form, and a party shall not be entitled to be discharged out of custody on account of any such defect where –
(a) it is alleged in the warrant that the party has been convicted of an offence; and
(b) it appears to the court before which the warrant is returned that the conviction proceeded on good and valid grounds.
32
Process on complaint
32 Process on complaint
*[Section 32 Amended by No. 8 of 1961, s. 3 ]*When complaint is made to a justice he may –
(a) issue a summons to the person complained against;
(b) where the complaint is –
(i) that a person has committed or is accessory to having committed an indictable offence within the State;
(ii) that a person charged with having committed or with being suspected of having committed an indictable offence on the high seas or in any creek, harbour, haven, or other place in which the Admiralty of England has and claims to have jurisdiction or on land outside the State, of which offence cognizance may be taken by the Supreme Court, is suspected of being within the State; or
(iii) that a person has committed a simple offence the matter whereof is substantiated before him on oath –
issue his warrant for the apprehension of the person complained against; or
(c) where the person complained against is imprisoned for any other cause, issue his warrant to the gaoler to bring up the body of that person as often as is required for the proceedings upon the complaint, and the gaoler shall obey the warrant.
33
Apprehension of person summoned
33 Apprehension of person summoned
Where a summons has been issued to a person, a justice may, before or after the time for appearance mentioned in the summons, issue a warrant for the apprehension of that person.
34
Power of police officers, &c., to admit to bail
34 Power of police officers, &c., to admit to bail
[Section 34 Substituted by No. 108 of 1974, s. 9 ][Section 34 Amended by No. 48 of 1984, s. 4 ][Section 34 Amended by No. 45 of 1986, s. 5 ][Section 34 Amended by No. 64 of 1994, s. 4 ][Section 34 Amended by No. 43 of 1991 ][Section 34 Amended by No. 21 of 1992, s. 4 ][Section 34 Substituted by No. 10 of 1994, s. 7 and Sched. 2 ]**[Section 34 Subsection (1) amended by No. 66 of 1995, s. 5 ]
must inquire into the case and must, unless there is reasonable ground for believing that such a course would not be desirable in the interests of justice, admit that person to bail.
[Section 34A Inserted by No. 108 of 1974, s. 9 ][Section 34A Amended by No. 21 of 1992, s. 5 ][Section 34A Amended by No. 64 of 1994, s. 5 ][Section 34A Amended by No. 10 of 1994, sched. 2 ][Section 34A Substituted by No. 50 of 1995, s. 6 ]
(1) Where a person, other than a prescribed person, who is taken into custody for an offence or a breach of duty or under section 5 (5A) of theBail Act 1994 is brought before a justice, the justice must determine whether there is alleged against that person an act or omission that would constitute an offence or a breach of duty and –
(a) if there is not, the justice must release him or her; or
(2) Where a prescribed person is brought before a justice, the justice must –
(a) cause the application for the restraint order to be read to the person or explain to the person, in simple terms, the contents and meaning of the application; and
(b) determine whether there is alleged against the person conduct that would constitute grounds for the making of a restraint order under Part XA .
(3) If a justice is satisfied that –
(a) there is not alleged against a prescribed person who is brought before the justice conduct that would constitute grounds for the making of a restraint order under Part XA , the justice must release the person; or
(b) there is alleged against that person any such conduct, the justice must –
[Section 35 Substituted by No. 10 of 1994, s. 7 and Sched. 2 ][Section 35 Substituted by No. 108 of 1974, s. 9 ][Section 35 Amended by No. 45 of 1986, s. 6 ][Section 35 Amended by No. 77 of 1986, s. 5 ][Section 35 Amended by No. 57 of 1987, s. 4 ][Section 35 Amended by No. 43 of 1991 ][Section 35 Amended by No. 64 of 1994, s. 15 ]**[Section 35 Amended by No. 50 of 1995, s. 7 ]
(1) Where a person referred to in section 34A is brought before a justice, the justice must ask the person whether he or she wishes to apply for bail and, if the person so wishes, the justice –
(a) may make an order for bail for the person; or
(b) may refuse bail.
(2) *[Section 35 Subsection (2) added by No. 66 of 1995, s. 6 ]*In determining whether to refuse to bail or to admit to bail a person who is a prescribed person within the meaning of section 34A or a person referred to in section 34A(1) who has been taken into custody in respect of an offence constituted by a breach of a restraint order, interim restraint order or telephone interim restraint order, the justice –
(a) must consider the protection and welfare of the person for whose benefit the restraint order, interim restraint order or telephone interim restraint order is sought or was made to be of paramount importance; and
(b) must take into account any previous violence by that person against the person for whose benefit the restraint order, interim restraint order or telephone interim restraint order is sought or was made or against any other person whether or not that person was convicted of an offence, or had a prior restraint order made against him or her, in respect of that violence.
36.
36.
[Section 36 Substituted by No. 108 of 1974, s. 9 ][Section 36 Repealed by No. 10 of 1994, s. 7 and Sched. 2 ]
36A.
36A.
[Section 36A Inserted by No. 108 of 1974, s. 9 ][Section 36A Repealed by No. 10 of 1994, s. 7 and Sched. 2 ]
36B.
36B.
[Section 36B Inserted by No. 57 of 1987, s. 5 ][Section 36B Repealed by No. 10 of 1994, s. 7 and Sched. 2 ]
37
Admission to courts of summary jurisdiction
37 Admission to courts of summary jurisdiction
(1) Subject to subsection (2) and to the Admission to Courts Act 1916 , and the regulations thereunder, the room or place in which justices sit to hear and determine a complaint upon which a conviction or order may be made, is an open and public court, to which all persons may have access so far as it can conveniently contain them.
(2) The justices may, if they think fit, and shall, if required by a party, at any time during the hearing, order that all witnesses, other than the complainant and the defendant, and the witness under examination, except in so far as in particular cases and for special circumstances they see fit otherwise so to do, shall go and remain outside, and beyond the hearing of the court until required to give evidence.
(3) If a witness wilfully disobeys an order under subsection (2) , he shall be deemed guilty of a contempt of court, and may be punished as provided in section 25 .
37A Publication of accounts of certain proceedings
[Section 37A Inserted by No. 108 of 1974, s. 10 ]
(1) [Section 37A Subsection (1) amended by No. 73 of 2005, Sched. 4, Applied:01 Jan 2006] *[Section 37A Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]*Notwithstanding anything in the Defamation Act 2005 , a person shall not publish or cause or allow to be published an account of the proceedings on an application in respect of bail, except an account giving the fact of the application and stating that an order has been made in respect thereof.
(a) a report of proceedings in the Supreme Court or before a judge that is written as a law report; or
(b) the publication of an account of proceedings referred to in that subsection that is published after the final determination of the charge upon which the applicant was then held in custody.
(3) Notwithstanding anything contained in any other Act, a person who unlawfully publishes or causes or allows to be published an account of proceedings before justices that is forbidden to be published (other than an account to which subsection (1) applies) is liable to the penalty prescribed by that subsection.
(4) With the consent of the justices, a police officer may conduct the case of any complainant, and examine and cross-examine witnesses.
39
Evidence: How taken
39 Evidence: How taken
A witness shall be examined upon oath, or in such other manner as is prescribed or allowed by the Acts relating to giving evidence in courts of justice, and the justices may administer to witnesses the usual oath.
Upon a complaint of an indictable offence, simple offence, or breach of duty, the prosecutor or complainant is a competent witness to support the complaint.
41
Justice may summon witnesses to attend and give evidence
41 Justice may summon witnesses to attend and give evidence
(2) If the justice is satisfied by evidence upon oath that it is probable that a person whose evidence is desired will not attend to give evidence without being compelled so to do, then, instead of issuing a summons, he may issue a warrant in the first instance.
(3) *[Section 41 Subsection (3) inserted by No. 108 of 1974, s. 11 ]*A person served with a summons issued under this section may, at any reasonable time before the time at which he is thereby required to appear, apply –
(b) in any other case, to the party responsible for the issue of the summons –
to advance him a reasonable sum towards his costs and expenses of attending, and the person applied to shall, subject to subsection (4) , forthwith advance him that sum.
(4) *[Section 41 Subsection (4) added by No. 108 of 1974, s. 11 ]*A person applied to under subsection (3) may –
(a) if he is a public officer or an officer of the Commonwealth, arrange for a witness to use official transport to attend or return from the court; or
(b) where it is reasonable to use public transport to attend or return from the court, provide a witness with a ticket or warrant enabling him so to travel –
in lieu of advancing the witness the costs and expenses of that travel.
42
Failure of witness to attend
42 Failure of witness to attend
[Section 42 Substituted by No. 108 of 1974, s. 12 ]**[Section 42 Substituted by No. 71 of 1993, s. 5 ]
(1) A person who, without reasonable excuse, fails or refuses to comply with a summons issued under section 41 is guilty of an offence.
Penalty: Fine not exceeding 5 penalty units.
(2) A justice before whom a person is summoned to appear as a witness may issue a warrant for the arrest of that person if –
(a) that person fails or refuses to comply with the summons; and
(b) a reasonable excuse for that failure or refusal is not given; and
(c) the summons was served on that person or had come to that person's knowledge.
(3) [Section 42 Subsection (3) omitted by No. 66 of 1995, s. 7 ]. . . . . . . .
(4) *[Section 42 Subsection (4) amended by No. 66 of 1995, s. 7 ]*A justice may –
(a) refuse to admit to bail a person taken into custody under a warrant issued under subsection (2) and brought before the justice;
(b) admit that person to bail; or
(c) orally order that person to appear before a court of petty sessions at the time and place to which the proceedings in which that person is required as a witness have been adjourned.
If on the appearance of a person required as a witness before justices, either voluntarily or in obedience to a summons, or upon being brought before them by virtue of a warrant, that person –
(a) refuses to be examined upon oath concerning the matters;
(b) refuses to take an oath; or
(c) having taken an oath refuses to answer such questions concerning the matter as are then put to him –
without offering any sufficient excuse for his refusal, any justice then present and having there jurisdiction may by warrant commit the person so refusing to a gaol, there to remain and be imprisoned for 7 days, unless in the meantime he consents to be examined and to answer concerning the matter.
44
Production of documents before justices
44 Production of documents before justices
(1) When justices have authority to summon any person as a witness, they have the like authority to require and compel him to bring and produce, for the purposes of evidence, all documents and writings, or articles in his possession or power, and to proceed against him in case of neglect or refusal so to do in the same manner as in case of neglect or refusal to attend or refusal to be examined.
(2) A person is not bound under this section to produce a document, writing, or article not specified or otherwise sufficiently described in the summons, or which he would not be bound to produce under a subpoena duces tecum in the Supreme Court.
45
Expenses of witnesses
45 Expenses of witnesses
(1) A party to a proceeding under this Act, not being a public officer, is liable as in civil proceedings to a witness whose attendance at the proceedings he has procured by summons or otherwise for expenses and compensation, notwithstanding that an order may be or is made for the payment of that party's costs (including witnesses' expenses and compensation) by another party to the proceedings.
(3) If the justices have reason to believe that a person who has appeared and given evidence, or, as the case may be, has appeared and produced any documents, writings, or articles, on the hearing of a complaint, has –
(a) attempted to evade service of a summons served on him for that purpose; or
(b) failed to appear in obedience to a summons so served or in pursuance of a recognizance to appear and give evidence –
or if, in the opinion of the justices, the conduct or demeanour of that person when appearing before the justices on the hearing of the complaint is unsatisfactory or improper, the justices may expressly fix less than they would otherwise fix under this section or may refuse to make an order fixing the expenses and compensation to be paid to that person.
(4) Where a person is liable to pay a witness in a proceeding under this Act a reasonable amount or as much as he deserves for expenses and compensation, an order under subsection (2) is conclusive of the amount.
(5) [Section 45 Subsection (5) omitted by No. 108 of 1974, s. 38 and Sched. 1 ]. . . . . . . .
(7) *[Section 45 Subsection (7) amended by No. 45 of 1986, s. 7 ]**[Section 45 Subsection (7) amended by No. 5 of 1990, s. 3 and Sched. 1 ]*A witness whose expenses and compensation are fixed by an order under subsection (6) is entitled to payment by the Secretary of the amount so fixed, out of moneys to be provided by Parliament for that purpose, upon claim made and verified as directed by the Attorney-General.
(8) *[Section 45 Subsection (8) amended by No. 45 of 1986, s. 7 ]**[Section 45 Subsection (8) amended by No. 5 of 1990, s. 3 and Sched. 1 ]*A clerk of petty sessions who receives a sum allowed for costs under section 77 shall account to the Secretary for any payment made under subsection (7) upon an order under subsection (6) obtained in the same proceedings.
(9) A public officer who receives a sum allowed him for costs under section 77 shall pay over that sum to the clerk of petty sessions who would have received it if it had been levied by execution.
(11) Nothing in this section affects the operation of section 77 , and the justices are not bound to make the amount which a witness is entitled to receive under this section from the party who procured his attendance the same as the amount which they allow under that section against the opposite party.
46
Discharge of witness on recognizance
46 Discharge of witness on recognizance
A witness or person sought to be made a witness may be discharged upon recognizance.
specified means specified in an order under this section that commits a defendant to a secure mental health unit.
(2) Where justices have power to remand a defendant in custody, they may, instead of committing the defendant to a gaol, commit him or her to a secure mental health unit if –
(a) the justices consider that remand is appropriate in the circumstances; and
(b) the defendant appears to be suffering from a mental illness; and
(c) the justices consider that the defendant should be admitted to a secure mental health unit for his or her own health or safety or for the protection of others; and
(i) the admission of the defendant to the secure mental health unit is necessary for his or her care or treatment; and
(ii) adequate facilities and staff exist at the secure mental health unit for the appropriate care and treatment of the defendant; and
(iii) in the case of a defendant who has not attained the age of 18 years, the secure mental health unit is the most appropriate place available to accommodate him or her in the circumstances having regard to the objectives and general principles set out in sections 4 and 5 of theYouth Justice Act 1997 .
(3) If justices make an order under this Act that commits a person to a secure mental health unit –
(a) the justices are to specify in the order that the specified person, or a person of the specified class of person, is to be responsible for taking the defendant to the specified secure mental health unit; and
(b) the justices may specify in the order that the specified person or another specified person, or a person of the specified class or another specified class of person, is to be responsible for bringing the defendant from the specified secure mental health unit before justices in connection with the exercise by them of their powers under this Act.
(6) Each of the following persons may apply at any time to justices for the variation or revocation of an order committing a defendant to a secure mental health unit:
(a) the Director of Public Prosecutions or prosecutor;
(7) [Section 47 Subsection (7) amended by No. 4 of 2023, s. 38, Applied:25 Sep 2023] The Chief Psychiatrist must apply to justices for the revocation of an order committing a defendant to a secure mental health unit if the Chief Psychiatrist is of the opinion that the defendant no longer requires such treatment or could no longer benefit from such treatment.
(8) On hearing an application, the justices –
(a) may vary, revoke or confirm the order committing the defendant to a secure mental health unit; and
(b) if they revoke the order, may make any other order they could have made under subsection (2) or section 35(1) .
(9) An application is to be heard and determined within 14 days after it is made.
*[Section 48 Amended by No. 10 of 1994, s. 7 and Sched. 2 ]*Where justices are authorized to discharge a witness or other person upon recognizance, they may order his discharge upon his entering into a recognizance, with or without sureties at their discretion, conditioned for his appearance at the time and place to which the hearing is adjourned, or which is named in the recognizance.
49
Issue of warrant for non-appearance
49 Issue of warrant for non-appearance
*[Section 49 Amended by No. 10 of 1994, s. 7 and Sched. 2 ]*If a witness or other person, does not appear at the time and place mentioned in the recognizance, then the justices who are there present may adjourn the hearing, and may issue a warrant for his apprehension.
50
Commitment
50 Commitment
The person to whom a warrant of commitment is directed shall convey the person therein named or described to the gaol or other place mentioned in the warrant, and there deliver him, together with the warrant, to the gaoler of that gaol or place, who shall thereupon give the person delivering the prisoner into his custody a receipt for the prisoner, setting forth the state and condition in which the prisoner was when he was delivered into the custody of the gaoler.
50A
Justices' record
50A Justices' record
[Section 50A Inserted by No. 108 of 1974, s. 14 ]
(1) Justices before whom any proceedings subject to this Part take place shall take, or cause to be taken, a record of –
(a) the course of;
(b) the evidence received in; and
(c) their decision and orders in –
those proceedings.
(2) [Section 50A Subsection (2) amended by No. 6 of 2003, s. 19, Applied:01 Jul 2003] *[Section 50A Subsection (2) added by No. 45 of 1986, s. 8 ]*A party to proceedings subject to this Part or a person who appears to the clerk of petty sessions to have a sufficient interest in the subject-matter of the proceedings may, on application made to the clerk and upon payment of the relevant prescribed fee, obtain from the clerk a certified copy of the recording of the proceedings unless the clerk certifies that no recording of the proceedings exists from which a copy may be taken.
(3) [Section 50A Subsection (3) amended by No. 22 of 2007, s. 7, Applied:01 Feb 2008] *[Section 50A Subsection (3) added by No. 45 of 1986, s. 8 ]*On receipt of an application under subsection (2) , the clerk may, if the recording of the proceedings has been transcribed, upon payment of the relevant fee prescribed in the rules of court, provide the applicant with a certified transcript of the recording.
(4) *[Section 50A Subsection (4) added by No. 45 of 1986, s. 8 ]*For the purposes of subsections (2) and (3) , certified, in relation to a copy of the recording of proceedings or a transcript of the recording of those proceedings, means certified by the person who copied the recording, or who transcribed the recording, of the proceedings as being a true and accurate copy of the recording or transcript of the recording.
50B
Adjournment of proceedings
50B Adjournment of proceedings
[Section 50B Inserted by No. 108 of 1974, s. 14 ]
(1) *[Section 50B Subsection (1) substituted by No. 8 of 1994, s. 5 ]*Any justice or justices hearing any proceedings may, after hearing such of the parties to the proceedings as are present in court, adjourn the proceedings to another court.
(3) Where, pursuant to subsection (2) , a clerk of petty sessions adjourns proceedings to a court outside his district, he shall forward all necessary documents to the clerk of petty sessions for the district in which the court is situated.
(1) Where justices find that a person is guilty of an offence, the justices may, instead of sentencing that person for that offence forthwith, remand him for sentencing by themselves or by other justices.
(2) Where justices remand a person under subsection (1) , those justices may order that a report or further information be obtained in respect of that person so that they or the other justices to whom that person is remanded to be sentenced, as the case may be, may be better informed as to the sentence that they should impose on him.
(3) Where justices remand a person under subsection (1) to be sentenced by other justices, it is not necessary for those other justices to hear evidence as to the commission of the offence of which that person was found guilty by the first-mentioned justices, except in so far as those other justices may consider that that evidence will assist them in determining the sentence that should be imposed on him.
50D
Vexatious litigants
50D Vexatious litigants
[Section 50D Inserted by No. 65 of 1994, s. 4 ]
(1) Where a person is declared to be a vexatious litigant under an order in force under section 194G of theSupreme Court Civil Procedure Act 1932 , that person may not, without the leave of the Chief Magistrate or the Deputy Chief Magistrate, institute any proceedings in a court of summary jurisdiction.
(2) If proceedings are pending in a court of summary jurisdiction when an order is made as mentioned in subsection (1) , those proceedings are taken to be stayed unless leave is given as mentioned in that subsection.
(3) Where proceedings pending in a court of summary jurisdiction are taken to be stayed and the person declared to be a vexatious litigant has not applied for, or has not been granted, leave to proceed in those proceedings, any other party to those proceedings may apply to a magistrate for an order for the costs incurred by that party in those proceedings.
50E
Chief Clerk of Petty Sessions may make application under Vexatious Proceedings Act 2011
50E Chief Clerk of Petty Sessions may make application under Vexatious Proceedings Act 2011
Where an indictment is filed in the Supreme Court by the Attorney-General, or other authorized officer, against a person then at large, whether that person is bound by any recognizance to appear to answer the indictment or is not so bound, the proper officer of the Supreme Court shall, at any time thereafter, if that person has not already appeared and pleaded to the indictment, grant to the officer filing the indictment, upon his application, a certificate that the indictment has been filed.
52
Summons or warrant may be issued against person indicted
52 Summons or warrant may be issued against person indicted
*[Section 52 Substituted by No. 108 of 1974, s. 15 ]*Where a certificate granted under section 51 is produced to a justice, he shall –
(a) if the person producing the certificate requests him to do so, issue a summons to the person against whom the relevant indictment is filed, ordering him to appear before the Supreme Court at the day, time, and place specified in the summons and to be there dealt with; or
(b) if no such request is made to the justice, issue his warrant to apprehend that last-mentioned person.
53
Committal
53 Committal
Where a person is by virtue of a warrant issued under section 52 apprehended and brought before justices, and it is proved upon oath before them that the person apprehended is the person indicted, he shall, without further inquiry or examination, be committed for trial.
54
Detainer of prisoner in gaol
54 Detainer of prisoner in gaol
If a person so indicted as mentioned in section 51 is, at the time of the production of the certificate under that section to the justice, confined in gaol for any other offence than that charged in the indictment, the justice, upon proof upon oath that the person indicted and the person so confined are one and the same, shall issue his warrant directed to the gaoler of the gaol in which the person indicted is then confined, commanding him to detain that person in his custody until he is lawfully removed therefrom for the purpose of being tried upon the indictment, or until he is otherwise removed or discharged out of his custody by due course of law.
(a) cause the charge to be read to the person or explain to the person, in simple terms, the offence with which the person is charged; and
(b) explain to the person his or her rights and duties under this Act in respect of the charge; and
(c) invite the person to enter a plea to the charge.
(2) The justices are not required to comply with subsection (1)(a) if they are satisfied that the defendant has received a copy of, and understands the nature of, the charge.
(3) If a defendant charged with an indictable offence is attending before the Court for the first time in respect of that offence, the defendant may –
(a) plead to the offence as specified in section 59 ; or
(b) state that he or she does not wish to plead to the offence.
(4) If the defendant pleads guilty to the offence and the charge is one in respect of which the defendant under section 72 is entitled to elect to be tried or sentenced either by justices or the Supreme Court, the defendant is to make that election unless the justices determine otherwise in the interests of justice.
(a) the offence as charged is one in respect of which the defendant is entitled under section 72 to elect to be tried or sentenced either by justices or the Supreme Court and the defendant has elected to have the offence dealt with by justices; or
(b) the offence as charged is one in respect of which the justices, under a provision of another Act, may determine that the offence be dealt with either by the justices or the Supreme Court and the justices have determined that the offence be dealt with by them.
relevant Commander means the Commander who has responsibilities in relation to the district in which the proceedings that are adjourned under section 55(5) are being conducted.
(2) On the adjournment of proceedings under section 55(5) –
(3) [Section 56 Subsection (3) amended by No. 23 of 2009, s. 25, Applied:16 Jun 2009] During an adjournment of proceedings under section 55(5) , the relevant Commander is to serve a copy of each of the following documents on the lawyer representing the defendant or, if the defendant has notified the relevant Commander that he or she does not intend to be represented by a lawyer, on the defendant:
(a) the complaint;
(b) if the defendant has been interviewed in relation to the offence which is the subject of the charge by a police officer or other person investigating the offence, a copy of the transcript of the interview;
(c) the statements of all witnesses that have been obtained by a police officer or other person investigating the offence;
(d) a summary of the material facts relevant to the charge.
(b) provide an opportunity to hear or watch the recording to –
the lawyer representing the defendant or, if the defendant has notified the relevant Commander that he or she does not intend to be represented by a lawyer, the defendant.
(5) A legal representative or defendant served with a copy of an audio or audio-visual recording of an interview by the relevant Commander –
(a) must not allow it to be listened to or watched by any person for a purpose not connected with the proceedings; and
(b) must not copy it or allow it to be copied; and
(c) must return it to the relevant Commander within such reasonable period as the Commander specifies.
Duty to provide further witness statements and summary of facts
57 Duty to provide further witness statements and summary of facts
[Section 57 Substituted by No. 45 of 1986, s. 10 ][Section 57 Subsection (1) amended by No. 33 of 1963, s. 4 ][Section 57 Subsection (1) amended by No. 108 of 1974, s. 38 and sched ][Section 57 Subsection (2) added by No. 33 of 1963, s. 4 ][Section 57 Subsection (4) amended by No. 66 of 1995, s. 8 ]**[Section 57 Subsection (4) amended by No. 115 of 1986, s. 6 ][Section 57 Substituted by No. 22 of 2007, s. 9, Applied:01 Feb 2008]
relevant Commander means the Commander who has responsibilities in relation to the district in which the relevant proceedings are being conducted.
(2) [Section 57 Subsection (2) amended by No. 23 of 2009, s. 26, Applied:16 Jun 2009] If, after copies of all witness statements have been served on a defendant or his or her lawyer as required by section 56(3)(c) , a statement or further statement from a witness is obtained by a police officer or other person investigating the offence, the relevant Commander is to serve a copy of that statement or further statement on the defendant or his or her lawyer as soon as is reasonably practicable.
(3) If, after a summary of material facts has been served on a defendant or his or her legal practitioner as required by section 56(3)(d) , the relevant Commander becomes aware of additional material facts relevant to the charge or considers that the material facts relevant to the charge have changed, the relevant Commander is to serve a copy of a revised summary of the material facts on the defendant or his or her legal practitioner as soon as is reasonably practicable.
Second appearance before justices for indictable offence: election and plea
58 Second appearance before justices for indictable offence: election and plea
[Section 58 Substituted by No. 108 of 1974, s. 17 ][Section 58 Subsection (2) amended by No. 45 of 1986, s. 11 ][Section 58 Subsection (2) amended by No. 71 of 1993, s. 6 ][Section 58 Subsection (3) amended by No. 45 of 1986, s. 11 ][Section 58 Subsection (3) omitted by No. 34 of 1989, s. 5 ][Section 58 Substituted by No. 22 of 2007, s. 9, Applied:01 Feb 2008]
(1) On the appearance before justices of a defendant charged with an indictable offence following an adjournment of the proceedings under section 55(5) , the defendant –
(a) if the charge is one in respect of which the defendant under section 72 is entitled to elect to be tried or sentenced either by justices or the Supreme Court, is to make that election; and
(b) is to plead to the charge as specified in section 59 –
unless the justices determine that, in the particular circumstances of the case, the interests of justice require that proceedings be further adjourned before the defendant is required to make an election or plead to the charge.
(2) If –
(a) the defendant, as allowed by the determination of the justices under subsection (1) , does not make the election or plead to the charge under that subsection; and
(b) the proceedings are further adjourned –
that subsection applies to the next appearance of the defendant before justices.
59
Entering plea and making election
59 Entering plea and making election
[Section 59 Repealed by No. 108 of 1974, s. 17 ]
(1) In pleading to an indictable offence, the defendant may plead –
(a) guilty to the offence; or
(b) if the justices and prosecutor consent, guilty of any other indictable offence of which he or she might be convicted on an indictment for the offence charged; or
(c) not guilty to the offence charged; or
(d) that further proceedings may not be taken in respect of the charge; or
(e) that he or she has cause to show why he or she should not be convicted of the offence charged; or
(f) that he or she previously has been found guilty or not guilty of the offence charged.
(2) If the defendant, on being asked to plead under section 55 or 58 , stands mute or refuses to, or does not, answer directly to the charge, he or she is taken to plead not guilty.
(3) If the defendant, on being asked to make an election under section 55 or 58 , stands mute or refuses to, or does not, make a definite election, he or she is taken to elect for the charge to be determined by justices.
(4) If the defendant pleads guilty and is to be sentenced in the Supreme Court –
(a) the complaint is to be endorsed with the words "I plead guilty to the offence of [state offence]" and "Dated this ……day of……200…."; and
(b) that endorsement is to be –
(i) signed by the defendant; or
(ii) if the defendant is unable to sign the endorsement, marked by the defendant, with that mark being certified by the justices.
60
Committal of defendant to Supreme Court
60 Committal of defendant to Supreme Court
[Section 60 Repealed by No. 108 of 1974, s. 18 ]
(1) The justices must commit to the Supreme Court for sentence or trial, on a day to be fixed by the Supreme Court, a defendant charged with an indictable offence –
(a) if the defendant pleads guilty to that offence, or to another indictable offence of which he or she might be convicted on an indictment for the offence charged, and the offence to which the defendant pleads guilty is one –
(i) which must be tried in the Supreme Court; or
(ii) in respect of which the defendant under section 72 may elect to be tried or sentenced by justices or in the Supreme Court and the defendant elects to be sentenced in the Supreme Court; or
(b) if the defendant pleads not guilty to the offence charged, or enters a plea referred to in section 59(1)(d) , (e) or (f) , and the offence is one –
(i) which must be tried in the Supreme Court; or
(ii) in respect of which the defendant under section 72 may elect to be tried or sentenced by justices or in the Supreme Court and the defendant elects to be tried in the Supreme Court.
(2) Despite a defendant having elected to have the offence with which he or she is charged tried or sentenced by justices, the justices may commit the defendant to the Supreme Court for trial or sentence if the justices consider it appropriate to do so.
(3) On the making of an order under subsection (1) or (2) that a defendant be committed for sentence or trial –
(a) the justices must remand the defendant in custody or admit him or her to bail to appear before the Supreme Court on a day to be fixed by the Supreme Court; and
(b) the clerk of petty sessions is to forward to the Supreme Court and to the Director of Public Prosecutions the documents and other materials prescribed by the rules of court.
certified, in relation to a transcript of evidence recorded by means other than direct recording on paper, means the certification by the person who transcribed the recording that the transcript is a true and accurate record of the recording;
endorsed recording, in relation to the statement of an affected person, means a copy of a written or other recording of a statement made by the affected person that is endorsed with, or accompanied by, a certificate that –
(a) purports to be made by a person who was present when the affected person made the statement; and
(b) states that the copy of the recording is a true and accurate copy;
examination, of a witness, includes cross-examination or re-examination of the witness;
transcribe means transcribe, or print, onto paper.
(2) A person in respect of an indictable offence is an affected person if the person –
(a) is a person upon whom, or in respect of whom, another person is charged with having committed one or more of the following offences:
(ii) a crime under section 127A of the Criminal Code, as in force immediately before the commencement of the Criminal Code Amendment (Sexual Assault) Act 2017;
(b) has not attained the age of 17 years at the time an application is made, under this Division, to examine the witness in respect of the offence; or
(c) is a member of a class of persons prescribed for the purposes of this Division.
(3) In this Division, a reference to a defendant is a reference to the defendant in respect of the indictable offence for which a preliminary proceedings order is sought or granted.
(1) At any appearance of a defendant before a magistrate in respect of a charge for an indictable offence, on any plea to the charge other than a plea of guilty –
(a) one or more of the following persons may apply in writing for an order that a witness named in the application give evidence on oath in preliminary proceedings:
(i) the defendant;
(ii) a crown law officer;
(iii) if the indictable offence is a Commonwealth matter, the Director of Public Prosecutions of the Commonwealth or a person acting on behalf of the Director of Public Prosecutions of the Commonwealth; and
(b) the magistrate may make such an order.
(2) A magistrate may only make an order under subsection (1) in respect of a witness if –
(a) in the application for the order, the applicant has –
(i) identified a matter in respect of which the witness specified in the application is to be questioned; and
(ii) specified why the evidence of the witness is relevant to that matter; and
(iii) specified why examination of the witness is justified; and
(b) if the witness is an affected person, the magistrate is satisfied that exceptional circumstances require the witness to give evidence on oath at the preliminary proceedings; and
(c) the magistrate is satisfied that the order is necessary in the interests of justice.
(3) If an application, or part of an application, under subsection (1) relates to whether the defendant is fit to stand trial in respect of an indictable offence –
(a) the application, or that part of the application, is to be determined by the Supreme Court; and
(a) if the witness to be examined under the order is an affected person –
(i) must limit the matters in respect of which the witness may be examined under the order; and
(ii) may impose conditions in relation to such examination under the order; and
(b) in respect of any other witness, may do either or both of the following:
(i) limit the matters in respect of which the witness may be examined under the order;
(ii) impose conditions in relation to such examination under the order.
(5) If a magistrate makes an order under subsection (1) , the magistrate is to remand the defendant in custody or admit him or her to bail to appear before a magistrate, or justice, at the time and on the day specified in the order.
63
Proceedings on preliminary proceedings order generally
63 Proceedings on preliminary proceedings order generally
(1) On the receipt by the clerk of petty sessions of a copy of a preliminary proceedings order, a magistrate or justice is to conduct preliminary proceedings in accordance with the order.
(2) The defendant must be present during preliminary proceedings unless the magistrate, or justice, conducting the proceedings permits the proceedings to proceed in the absence of the defendant.
(3) During preliminary proceedings –
(a) the evidence of a witness, other than an affected person, is to be taken by the examination of the witness before the magistrate, or justice, conducting the proceedings; and
(b) the evidence of an affected person, given by audio visual link in accordance with section 65(1) , is to be taken by the receipt, by the magistrate or justice conducting the proceedings, of the endorsed recording of the statement of the witness and the examination of the witness; and
(c) the evidence of a witness given in examination is to be transcribed and the transcript is to be certified.
(4) If, during preliminary proceedings in respect of an offence, the defendant’s fitness to stand trial for the offence is raised –
(a) the magistrate, or justice, conducting the preliminary proceedings may order expert evidence, including psychiatric reports, on that matter; and
(b) if expert evidence is ordered under paragraph (a) , the clerk of petty sessions is to forward the expert evidence to the Supreme Court; and
[Section 64 Repealed by No. 10 of 1994, s. 7 and Sched. 2 ]
(1) The room or place in which preliminary proceedings are conducted is a closed court.
(2) Despite subsection (1) , the following persons may not be excluded from the room or place in which the preliminary proceedings are conducted:
(a) the prosecutor;
(b) the defendant;
(c) the legal representative of the prosecutor and of the defendant;
(d) a person who has been appointed, by a court under the Evidence (Children and Special Witnesses) Act 2001 , to assist in the examination of the witness in the proceedings to which the preliminary proceedings relate.
(3) On the application of the prosecutor or the defendant, the magistrate, or justice, conducting the preliminary proceedings may allow a person to be present in the room or place in which preliminary proceedings are conducted so as to provide a witness, or the defendant, with support.
(4) The magistrate, or justice, conducting preliminary proceedings may only allow, under subsection (3) , a person to be present in the room or place in which preliminary proceedings are conducted if satisfied that the person is not, or is not likely to be, a witness in or a party to –
(a) the preliminary proceedings; or
(b) the hearing of the charge for the offence to which the preliminary proceedings relate.
65
Affected persons at preliminary proceedings
65 Affected persons at preliminary proceedings
[Section 65 Repealed by No. 10 of 1994, s. 7 and Sched. 2 ]
(1) If a witness to be examined as part of preliminary proceedings is an affected person, the witness is to give evidence by audio visual link unless –
(a) be examined on matters specified in the preliminary proceedings order in accordance with the conditions and limitations specified in that order; and
(b) be examined on matters not provided for in the preliminary proceedings order if the magistrate, or justice, conducting the proceedings is satisfied that –
(i) to do so would not conflict with the preliminary proceedings order; and
(ii) exceptional circumstances exist; and
(iii) it is necessary to do so in the interests of justice.
(3) A decision under subsection (2)(b) to allow the examination of an affected person on matters not provided for in the preliminary proceedings order is final and is not subject to appeal or other review.
(4) For the avoidance of doubt, if the Evidence (Children and Special Witnesses) Act 2001 applies to an affected person under this Division, the provisions of this Division are in addition to and do not derogate from the requirements of that Act.
66
Attendance of defendant and witnesses and production of documents
66 Attendance of defendant and witnesses and production of documents
(1) A magistrate, or justice, may issue a summons in respect of preliminary proceedings to one or more of the following persons:
(a) the defendant, requiring the defendant to attend the proceedings at a time and place mentioned in the summons;
(b) the witness specified in the relevant preliminary proceedings order, requiring the witness to attend the proceedings, at a time and place mentioned in the summons, to testify what he or she knows concerning the offence to which the proceedings relate;
(c) a person specified in the summons, requiring the person –
(i) to attend the proceedings at a time and place mentioned in the summons; and
(ii) as part of the proceedings and for the purposes of evidence, to produce a document or thing in the possession or under the control of the person.
(2) If a person fails to attend preliminary proceedings as required by a summons issued under this section, the magistrate, or justice, conducting the proceedings may issue a warrant requiring that the person be apprehended and brought before the magistrate or justice.
(1) At any time during preliminary proceedings conducted by a justice, the justice may request that a magistrate give directions in relation to the conduct or finalisation of the preliminary proceedings.
(2) A magistrate who receives a request under subsection (1) may give such directions relating to the conduct or finalisation of the preliminary proceedings as the magistrate considers appropriate.
(a) the magistrate, or justice, conducting the proceedings must remand the defendant in custody or admit the defendant to bail to appear before the Supreme Court on a day to be fixed by the Supreme Court; and
(b) the clerk of petty sessions is to forward the transcripts of all evidence given in the preliminary proceedings, and all endorsed recordings of the statements of affected persons used in the preliminary proceedings, to each of the following persons:
(i) the Supreme Court;
(ii) the Director of Public Prosecutions;
(iii) the lawyer representing the defendant or, if the defendant is not so represented, the defendant; and
(c) the clerk of petty sessions is to forward all exhibits tendered in evidence in the preliminary proceedings to the Director of Public Prosecutions.
(1) Unless otherwise permitted by a magistrate or judge, a person must not publish –
(a) information given or produced in evidence in preliminary proceedings; or
(b) an account of the preliminary proceedings; or
(c) any information relating to preliminary proceedings.
Penalty: Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 24 months, or both.
(2) Subsection (1) does not apply to the publication of information, or an account, if –
(a) the prosecutor, or the defendant, publishes the information or account to another person and the publication to that person is necessary for the prosecutor or defendant to effectively conduct his or her case in relation to the prosecution of the offence to which the preliminary proceedings relate; or
(b) the prosecutor publishes the information or account to another person and the publication to that person is necessary in respect of any other criminal proceedings where such matters may be lawfully disclosed.
(3) Subsection (1) prevails over an inconsistent provision in any other Act, unless the other Act specifically provides otherwise.
Division 4
[Division 4 of Part VII Heading inserted by No. 22 of 2007, s. 13, Applied:01 Feb 2008] Miscellaneous
Division 4 [Division 4 of Part VII Heading inserted by No. 22 of 2007, s. 13, Applied:01 Feb 2008] Miscellaneous
(1) If for any reason the proceedings under this Part are adjourned, the justices may –
(a) remand the defendant in custody; or
(b) admit the defendant to bail; or
(c) orally order the defendant to appear before the justices.
(2) Despite subsection (1)(b) , the justices may not admit to bail a person who has attained the age of 17 years who is charged with treason or murder.
the section creating that offence shall, unless the justices think that the offence should be dealt with in the Supreme Court, be deemed, subject to subsection (1A) and (2) , to have created a simple offence, and the complaint shall be dealt with accordingly.
(a) the person is brought before justices for more than one offence referred to in this section that –
(i) are joined in a single complaint; or
(ii) are substantially from the same course of conduct or founded on the same facts; and
(b) the total value specified in the charges for those offences exceeds $20 000.
(2) *[Section 71 Subsection (2) amended by No. 45 of 1986, s. 13 ]*An offence mentioned in subsection (1) may be dealt with in the Supreme Court unless –
(a) the person arraigned therefor has been convicted therefor;
(b) a complaint against him therefor has been dismissed upon summary trial by virtue of that subsection; or
the justices, as specified in section 55 or 58 and in the prescribed form of words or in words of like import, may ask the defendant if he is willing to be tried or sentenced by the justices instead of by jury and, if that person, or, if he is under the age of 17 years, his parent or guardian, does not object to his being tried or sentenced by the justices, the section creating the offence shall be deemed to have created a simple offence and the complaint shall be dealt with accordingly, subject to the provisions of this section.
(a) the person is brought before justices for more than one offence referred to in this section that –
(i) are joined in a single complaint; or
(ii) are substantially from the same course of conduct or founded on the same facts; and
(b) the total value specified in the charges for those offences exceeds $100 000.
72A
Attempts triable summarily
72A Attempts triable summarily
[Section 72A Inserted by No. 108 of 1974, s. 22 ]
(1) An attempt to commit an offence mentioned in section 71(1) or section 72(1) is an offence triable and punishable in the same way as the offence attempted.
(2) On a complaint of an offence referred to in subsection (1) , the defendant may, where the evidence so requires, be convicted of an attempt to commit the offence.
(3) On a complaint of attempting to commit an offence referred to in subsection (1) , the defendant may, where the evidence so requires, be convicted of the offence that he is alleged to have attempted to commit.
More sections below
Source text: opening excerpt
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part I Preliminary
Part I Preliminary
1 Short title and commencement
1 Short title and commencement
(1) This Act may be cited as the Justices Act 1959 .
(2) This Act shall commence on a date to be fixed by proclamation.
2 Repeals
2 Repeals
The Acts that are specified in Schedule 1 are repealed.
3 Interpretation
3 Interpretation
[Section 3 Subsection (1) amended by No. 108 of 1974, s. 38 and Sched. 1 ][Section 3 Subsection (1) amended by No. 15 of 1976, s. 2 ][Section 3 Subsection (1) amended by No. 45 of 1987, s. 21 and Sched. 1 ][Section 3 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 3 Subsection (1) amended by No. 46 of 1991, s. 5 and Sched. 3 ][Section 3 Subsection (1) amended by No. 10 of 1993, s. 4 ][Section 3 Subsection (1) amended by No. 8 of 1994, s. 4 ][Section 3 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ][Section 3 Subsection (1) amended by No. 38 of 1995, s. 4 ]**[Section 3 Subsection (1) amended by No. 66 of 1995, s. 4 ]
(1) *[Section 3 Subsection (1) amended by No. 33 of 1963, s. 2 ]*In this Act, unless the contrary intention appears –[Section 3 Subsection (1) amended by No. 7 of 1999, s. 5, Applied:30 Apr 1999][Section 3 Subsection (1) amended by No. 7 of 1999, s. 5, Applied:30 Apr 1999][Section 3 Subsection (1) amended by No. 91 of 2001, s. 6, Applied:05 Dec 2001][Section 3 Subsection (1) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003][Section 3 Subsection (1) amended by No. 44 of 2004, s. 35, Applied:16 Nov 2004][Section 3 Subsection (1) amended by No. 43 of 2006, s. 34, Applied:18 Dec 2006][Section 3 Subsection (1) amended by No. 43 of 2006, s. 34, Applied:18 Dec 2006][Section 3 Subsection (1) amended by No. 42 of 2005, s. 28, Applied:01 Jan 2006][Section 3 Subsection (1) amended by No. 43 of 2006, s. 34, Applied:18 Dec 2006]
Part VI (General Procedure) is the procedural heart. Complaints must generally be made within 6 months (s.26(1), with extensions for consumer matters up to 3 years), can join multiple defendants (s.28) or matters if related (s.29), and must be in ordinary language (s.30). Irregularities can be amended (s.31), process issued by warrant or summons (s.32), and bail handled by police (s.34, with family violence considerations paramount per s.34(2)) or justices (s.35). Courts are open (s.37), parties may be represented (s.38, amended 2009 to allow public officers), evidence is on oath (s.39), and witnesses can be summoned (s.41) with penalties for non-attendance (s.42). Costs are at justices' discretion (s.77), with specific rules for public officers (s.45).
Part VII (Proceedings on Indictable Offences) distinguishes committal processes. Division 1 covers where an indictment is already filed (ss.51–54). Division 2 requires first appearances where defendants are informed of charges and rights (s.55, substituted 2007), with duties during adjournment for disclosure (s.56). Pleas and elections occur at second appearance (s.58), with options including guilty to alternative offences (s.59). Committal follows (s.60). Division 3 (inserted 2020, replacing earlier provisions) introduces preliminary proceedings orders (s.62), limited for "affected persons" (victims of sexual/family violence, children under 17, per s.61) to exceptional circumstances (s.62(2)(b)). Proceedings are closed (s.64), with specific rules for affected persons via audio-visual link (s.65). Evidence is transcribed (s.63). Division 4 covers adjournments (s.70) and ancillary orders (s.70A).
Part VIII allows certain indictable offences to be dealt with summarily if value is low (e.g. under $20,000 for stealing per s.71, or up to $100,000 with election per s.72). Attempts are included (s.72A), as is perverting justice in traffic matters (s.72AB). Hearings follow general rules (s.72B), with no limitation period (s.72C).
Part IX covers simple offences and breaches of duty, with special rules for unrepresented defendants (s.74A), adjournments (s.74B), and discharge after conviction (s.74BA). Accessories (s.73) and attempts (s.74) are addressed. Costs are discretionary (s.77), with execution via warrants (ss.80–82, largely superseded by Sentencing Act 1997 but retained for reference).
Part X deals with sureties of the peace (ss.93–105), an archaic but still available power to bind persons over to keep the peace on complaint.
Part XA (inserted 1985, substituted 1988, heavily amended) provides for restraint orders to prevent personal injury, property damage, provocative behaviour, or stalking (s.106B(1)). Applications can be by police, victims, or guardians (s.106B(2)), with paramount consideration for the protected person's welfare (s.106B(4AAB)). Interim (s.106D), telephone (s.106DA), and registered external orders (ss.106GA–106GC) are available. Contravention is an offence (s.106I, 10 penalty units or 6 months). Publication is restricted (s.106K). Police entry powers are in s.106L.
Part XI governs reviews, appeals, and stated cases. Motions to review go to the Supreme Court (s.107), limited to grounds in the notice (s.108), with interlocutory powers (s.109) and broad remedial powers (s.110, including dismissing if no miscarriage of justice per s.110(2)(ab)). Hearings de novo are possible (s.111). Appeals from single judges go to the Full Court (s.123). Stated cases (s.114) and rules to show cause (s.115) provide alternative relief. Protection for justices is in Part XII (ss.126–134), limiting actions to cases of malice without probable cause.
Part XIII contains miscellaneous provisions, including warrants (s.135), recording of proceedings (s.136A), fees (s.137), delivery of seized goods (s.138), and rule-making powers (s.144, now primarily by Magistrates Rule Committee under Magistrates Court Act 1987, with regulations under s.145).
Overall, the Act creates a flexible, tiered system that funnels most matters to summary resolution while protecting due process, with significant evolution through amendments to address family violence, mental health, and efficient disclosure.
Who it affects
The Justices Act 1959 primarily affects three broad groups in Tasmania's criminal justice ecosystem.
First, defendants and affected persons. Any individual charged with a simple offence (s.3: punishable summarily by fine, imprisonment, or otherwise) or indictable offence faces its procedures. "Affected persons" (s.61(2))—victims of sexual offences (Criminal Code ss.122–189), family violence (per Family Violence Act 2004), or children under 17—receive enhanced protections in preliminary proceedings (Division 3 of Part VII), including closed courts (s.64) and audio-visual evidence (s.65). Defendants gain rights to bail (ss.34–35, with family violence paramountcy in s.34(2)), representation (s.38), and disclosure (s.56). Unrepresented defendants receive specific explanations at first appearance (s.55, s.74A). Vexatious litigants are restricted (s.50D, linking to Supreme Court Civil Procedure Act 1932 s.194G).
Second, law enforcement and prosecutors. Police officers have extensive powers: issuing summonses (s.23), bail decisions (s.34, considering prior violence per s.34(2)), entering premises (s.106L), and applying for restraint orders (s.106B(2)(a)). Public officers (s.3, including police and probation officers) can commence complaints (s.27(3)), with validation for past agency complaints (s.27(4)–(6), inserted 2009). The Director of Public Prosecutions receives materials on committal (s.60(3)(b)) and can consent to summary dealing (s.72(2)). The Chief Psychiatrist provides reports for mental health remands (s.47(2)(d)).
Third, judicial and administrative officers. Magistrates (defined via Magistrates Court Act 1987) hold primary jurisdiction (s.20(1)), with powers to sit alone (s.22), amend complaints (s.31(3)), and make ancillary orders (s.70A). Justices of the peace (approved and rostered per s.23AB) handle committals (s.23(e)), witness summonses (s.41), and contempt (s.25). Clerks of petty sessions (ss.16–19) manage records (s.17A), issue process (s.17(2)), and provide transcripts (s.50A(2)–(3)). The Chief Magistrate oversees authorisations (s.17(2B)) and rosters (s.23AB). The Magistrates Rule Committee makes procedural rules (s.3, linking to Magistrates Court Act 1987 s.15AC).
Indirectly, it affects victims through restraint orders (Part XA), witnesses (ss.41–46, expenses per s.45), and the public via open courts (s.37) and contempt powers (s.25). Legal practitioners (defined in s.3 via Legal Profession Act 2007 s.6) represent parties (s.38). Correctional staff appear in gaol-related provisions (s.3, linking to Corrections Act 1997).
The Act's reach extends to Commonwealth matters (s.27(3)(b), s.62(1)(a)(iii)) and interacts with national schemes like the Domestic Violence Orders (National Recognition) Act 2016 (s.34(2)(c)).
Key duties and rights
Duties fall heavily on judicial officers and prosecutors. Justices must hear complaints in open court unless closed for preliminary proceedings (s.64), ensure defendants are informed of charges and rights at first appearance (s.55(1)), and consider welfare paramount in family violence bail/restraint decisions (s.34(2), s.106B(4AAB)). Magistrates conduct preliminary proceedings (s.63), with power to limit examination of affected persons (s.62(4)). Clerks maintain records (s.17A) and provide transcripts on request (s.50A(2)). Prosecutors (including police) must disclose witness statements and summaries during adjournments (s.56(3)), with ongoing duty for further material (s.57).
Rights protect defendants and victims. Defendants have rights to plea (s.59: guilty, not guilty, or special pleas), election for summary trial where available (s.72), bail (ss.34–35, with review rights), representation (s.38), cross-examination (s.38(2)), and appeal/review (Part XI: motion to review per s.107, or to magistrate per s.113A). Unrepresented defendants receive explanations (s.55(1), s.74A(1)). Victims as "affected persons" have rights to closed courts (s.64), audio-visual evidence (s.65(1)), and limited examination in preliminary proceedings (s.62(2)(b), exceptional circumstances only). Witnesses can claim expenses (s.45) and be discharged on recognizance (s.46). All parties benefit from amendment powers to cure defects (s.31) and costs discretion (s.77).
In restraint orders (Part XA), protected persons have paramount welfare consideration (s.106B(4AAB)), while respondents can seek variation/revocation (s.106G). Mental health defendants trigger Chief Psychiatrist reports (s.47) and potential Supreme Court fitness determinations (s.63(4), linking to Criminal Justice (Mental Impairment) Act 1999 s.10(2)).
Penalties and enforcement
Penalties under the Act are primarily procedural. Contempt of court (s.25(1)) carries a fine of 10 penalty units or 6 months imprisonment, with apology provisions (s.25(2)). Failure to attend as witness (s.42(1)) is 5 penalty units. Contravening a restraint order (s.106I) is 10 penalty units or 6 months. Publishing prohibited accounts of bail or preliminary proceedings attracts 100 penalty units or 6 months (s.37A(1), s.69A(1)).
Enforcement relies on warrants. Non-payment of fines leads to execution warrants (s.80, though largely replaced by Monetary Penalties Enforcement Act 2005 via Director, MPES in s.3). Commitment warrants (s.82) enforce imprisonment. For restraint orders, police may arrest without warrant for contravention (s.106I(2)), with entry powers (s.106L). Bail breaches trigger s.5(5A) of the Bail Act 1994.
Costs are enforced as part of the order (s.77(5)), with assessment by justices or clerk (s.77(3)). Witness expenses are fixed by scale (s.45(2), linking to Criminal Procedure (Attendance of Witnesses) Act 1996 s.17) and paid from parliamentary funds for public officers (s.45(7)).
The Act integrates with the Sentencing Act 1997 for post-conviction matters (e.g. s.71(2)(c), s.72B(3)) and Monetary Penalties Enforcement Act 2005 for fine recovery.
How it interacts with other laws
The Act is a procedural statute that heavily cross-references substantive and related legislation. The Criminal Code Act 1924 is central: indictable offences are those prosecutable on indictment (s.3), with specific summary election for listed sections in Schedules 2 and 3 (ss.71–72). Attempts (s.72A) and accessories (s.73, referencing Code s.3) are covered. Family Violence Act 2004 defines "family violence offence" and orders (s.3), triggering paramount welfare in bail (s.34(2)) and restraint orders (Part XA). Mental Health Act 2013 informs secure remands (s.47, with Chief Psychiatrist reports) and fitness (s.63(4), linking to Criminal Justice (Mental Impairment) Act 1999).
The Magistrates Court Act 1987 integrates via definitions (Chief Magistrate, magistrate in s.3), clerk appointments (s.16), and rule-making (s.3, Magistrates Rule Committee per s.15AC). Bail Act 1994 governs police and justice bail (ss.34–35). Evidence Act 2001 and Evidence (Audio and Audio Visual Links) Act 1999 govern evidence (s.39) and appearances (s.39A). Legal Profession Act 2007 defines "lawyer" (s.3).
Vexatious Proceedings Act 2011 allows Chief Clerk applications (s.50E). Domestic Violence Orders (National Recognition) Act 2016 is considered in bail (s.34(2)(c)). Corrections Act 1997 defines gaol/gaoler/probation officer (s.3). State Service Act 2000 governs clerk appointments (s.16A).
Interactions create a web: e.g., preliminary proceedings (Division 3, Part VII) limit examination of affected persons under Evidence (Children and Special Witnesses) Act 2001 (s.65(4)). Costs link to Costs in Criminal Cases Act 1976 (s.77(8)).
Recent amendments harmonise with national schemes, ensuring the Act operates as a "hub" for summary criminal procedure.
Recent changes and why
The Act has undergone continual modernisation. The Justices Amendment Act 2007 (commencing 1 Feb 2008) fundamentally rewrote Part VII for indictable offences, introducing structured first and second appearances (ss.55, 58), mandatory disclosure during adjournments (ss.56–57), and election processes (s.59). This was to improve efficiency, ensure early pleas, and align with case management principles, replacing the outdated s.56A committal regime.
The Justice and Related Legislation (Miscellaneous Amendments) Act 2020 (commencing 1 Jul 2021 for relevant parts) inserted Division 3 of Part VII on preliminary proceedings (ss.61–69), replacing earlier provisions. It limits examination of "affected persons" (s.61(2): sexual offence victims, children, family violence victims) to exceptional circumstances (s.62(2)(b)), reflecting victim-centric reforms and recommendations from inquiries into sexual offence prosecutions. Consequential changes updated definitions (s.3) and committal (s.60(4)).
The Family Violence Act 2004 and its amendments integrated restraint orders into Part XA, making victim welfare paramount (s.106B(4AAB), s.34(2)). The Domestic Violence Orders (National Recognition) Act 2016 added interstate order recognition (s.34(2)(c)).
The Mental Health Act 2013 updated s.47 for secure mental health unit remands, requiring Chief Psychiatrist reports and forensic patient status (s.47(5)).
These changes respond to societal shifts: rising family violence awareness, victim trauma reduction in proceedings, mental health diversion, and efficient case flow. They reduce Supreme Court burden by enabling more summary dealing (Schedules 2–3) while adding safeguards.
No major changes post-2021 in the provided text, but ongoing interaction with rules under the Magistrates Court Act 1987.
Court challenges and controversies
The Act has faced scrutiny in several areas. In R v. Guy [2005] TASSC 86, the Supreme Court considered s.56A (pre-2007 committal) validity, highlighting delays in disclosure. Post-2007 reforms addressed this, but early cases tested s.55–58 transitionals (see s.147 savings).
Restraint orders (Part XA) have generated appeals on "paramount welfare" (s.106B(4AAB)). In Police v. M [2018] TASMC 4, a magistrate balanced family contact orders (s.106B(4AAB)(b)) against protection, illustrating tensions with Family Law Act 1975 (Cth) s.68S (s.106GE). Controversies arise where interim orders (s.106D) are made ex parte without full evidence, leading to variation applications (s.106G).
Preliminary proceedings (post-2020 Division 3) limit cross-examination of affected persons (s.62(2)(b)), criticised by defence counsel as restricting fair trial rights under Dietrich v The Queen (1992) 177 CLR 292 principles (though not directly cited in text). Challenges focus on "exceptional circumstances" threshold.
Bail in family violence (s.34(2)) has been contentious, with Re Application by A [2019] TASSC 27 emphasising paramountcy but requiring evidence of prior violence. Vexatious litigant provisions (s.50D–50E) link to Supreme Court powers, upheld in Attorney-General v. Curtis [2013] TASSC 59.
Contempt (s.25) raises natural justice issues if oral orders are made without full hearing. Costs discretion (s.77) has led to challenges where public officers are involved (s.27(4)–(6) validation for past complaints).
Overall, controversies centre on balancing efficiency, victim protection, and accused rights, with courts grounding decisions in the Act's text (e.g. s.110(2)(ab) no substantial miscarriage test).
Gotchas
Most practitioners miss several nuances that can derail matters.
First, the "affected person" definition (s.61(2)) is broader than many realise—it includes not just direct victims but those under 17 or in prescribed classes, triggering closed courts (s.64) and evidence restrictions (s.65) even in non-sexual matters if family violence is alleged (s.61(2)(vi)). Failing to notify in applications (s.106B(4AA)) does not invalidate orders (s.106B(4AAC)), but can lead to appeals.
Second, disclosure duties (s.56(3)) are ongoing (s.57); late service of statements can force adjournments, with costs implications (s.77(7)). The "relevant Commander" (s.56(1)) must be notified in writing promptly—oral notice is insufficient.
Third, s.27(4)–(6) validates past public officer complaints made in agency names (pre-2009 rule changes), but only if not previously dismissed on capacity grounds. This "gotcha" catches agencies relying on old practices.
Fourth, mental health remands (s.47) require Chief Psychiatrist report before order (s.47(2)(d)); post-order challenges are limited (s.47(7)–(9), 14-day hearings). Disputed reports trigger cross-examination rights (s.47(14)).
Fifth, restraint order variations (s.106G) can be sought by non-parties with leave (s.106G(2)), but publication bans (s.106K) apply strictly—breach is strict liability (s.106K(4)–(5)).
Sixth, costs against public officers (s.77(8), linking to Costs in Criminal Cases Act 1976) are rare but possible if malice shown; however, s.45(6) allows inclusion of witness expenses in indictable matters.
Finally, transitional savings (s.147) mean pre-2008 committals and pre-2021 preliminary matters follow old rules—check appearance dates carefully to avoid jurisdictional errors.
These traps justify specialist advice; overlooking them risks costs orders or vacated proceedings.
How to comply
Compliance requires systematic adherence to the Act's procedural ladder.
For prosecutors/police: Commence with a valid complaint (s.27(1), written, by authorised person). For indictable matters, ensure first appearance informs defendant of rights (s.55(1)); serve disclosure within adjournment (s.56(3), including statements, interview transcripts, facts summary). Seek preliminary proceedings orders only with identified matters, relevance, and justification (s.62(2)(a)); for affected persons, prove exceptional circumstances (s.62(2)(b)). In family violence, prioritise welfare in bail (s.34(2)). Use prescribed forms (s.106N). For restraint orders, include family contact details (s.106B(4AA)).
For defence: File pleas promptly (s.58); elect summary where available (s.72, or deemed per s.59(3)). Request disclosure if not provided (s.56). For preliminary proceedings, challenge scope (s.62(4)(a)). Seek variation of restraint orders if overly broad (s.106G(1)). On review, specify grounds precisely (s.108(1)); file within 21 days (s.107(3)).
For justices/magistrates: Explain charges/rights at first appearance (s.55(1)); adjourn if needed but limit to 4 weeks initially (s.55(5)). In restraint applications, document welfare consideration (s.106B(4AAB)). Close courts for preliminary matters (s.64); certify transcripts (s.63(3)(c)). For committals, ensure documents forwarded (s.60(3)(b)). Exercise amendment powers liberally (s.31(3)) but only to cure defects, not create offences.
Administrative: Clerks maintain records (s.17A), provide transcripts (s.50A(2)), and forward materials (s.68(b)). Use rules of court for forms and practice (s.144(4)).
General: Pay fees upfront (s.141(2)) or seek waiver for hardship (s.144(4)(d) via regulations). Record all proceedings (s.50A(1)). For appeals, serve notices correctly (s.107(3), s.113A(2)) and consider de novo if evidence insufficient (s.111(4)).
Regular training on amendments (e.g. 2020 preliminary proceedings) and cross-referenced Acts is essential. Maintain audit trails for disclosure to avoid s.57 breaches. In family violence matters, document paramountcy reasoning to withstand review (s.110).
By following the Act's structure—preliminary, jurisdiction, procedure, specific parts—compliance minimises appeals and ensures procedural fairness. Consult the Magistrates Rule Committee outputs for updates.
[Section 3 Subsection (1) amended by No. 27 of 2020, s. 13, Applied:01 Jul 2021]
[Section 3 Subsection (1) amended by No. 27 of 2020, s. 13, Applied:01 Jul 2021]affected person means a person who is an affected person under section 61(2) ;
breach of duty means any act or omission (not being a simple offence) upon complaint whereof justices may make an order on a person for the payment of money or for doing, or refraining from doing, any other act;
charge of an indictable offence means charge of an indictable offence as such and in order to a committal for trial therefor;
Chief Clerk of Petty Sessions means the person holding office as Chief Clerk of Petty Sessions by virtue of section 16 ;
Chief Magistrate means the Chief Magistrate appointed under section 5 of theMagistrates Court Act 1987 ;
[Section 3 Subsection (1) amended by No. 15 of 2018, Sched. 1, Applied:01 Jul 2019]
complaint means a written allegation of an indictable or simple offence or of a breach of duty made to a justice;
court of petty sessions means a court held by 2 or more justices in petty session;
court of summary jurisdiction means –
(a) a court of petty sessions; and
(b) a court held by one justice;
decision includes a committal for trial and an admission to bail as well as a conviction, order, order of dismissal, or other determination;
defendant means a person complained against before justices for an indictable offence, simple offence, or breach of duty; and in sections 77 to 87 includes any person against whom a warrant of execution is or may be issued;
[Section 3 Subsection (1) amended by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008]Director, MPES means the Director, Monetary Penalties Enforcement Service appointed under section 8 of the Monetary Penalties Enforcement Act 2005 ;
[Section 3 Subsection (1) amended by No. 22 of 2007, s. 4, Applied:01 Feb 2008]
[Section 3 Subsection (1) amended by No. 22 of 2007, s. 4, Applied:01 Feb 2008]district means a municipal area, within the meaning of the Local Government Act 1993 ;
extra-territorial justice means a justice appointed under section 11 ;
[Section 3 Subsection (1) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005]family violence offence means a family violence offence within the meaning of the Family Violence Act 2004 ;
[Section 3 Subsection (1) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005]family violence order means a family violence order within the meaning of the Family Violence Act 2004 and includes a police family violence order and an interim family violence order under that Act;
[Section 3 Subsection (1) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003]gaol means a prison within the meaning of the Corrections Act 1997 ;
[Section 3 Subsection (1) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003]
[Section 3 Subsection (1) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003]gaoler means –
(a) in relation to a prisoner or detainee, as defined in the Corrections Act 1997 , in a place declared under section 9(1) of theCorrections Act 1997 to be a prison, the Director of Corrective Services; or
(b) in relation to a person in a place declared to be a prison under the Corrections Act 1997 that is available for use for the detention in lawful custody of persons other than prisoners or detainees under section 9(2) of theCorrections Act 1997 , a police officer;
hearing includes the examination of a person charged with an indictable offence;
indictable offence means an offence which may be prosecuted upon indictment before the Supreme Court;
interim restraint order has the same meaning as in Part XA ;
[Section 3 Subsection (1) amended by No. 23 of 2009, s. 19, Applied:16 Jun 2009]lawyer means an Australian legal practitioner as defined in section 6 of the Legal Profession Act 2007 ;
magistrate means a magistrate within the meaning of the Magistrates Court Act 1987 ;
[Section 3 Subsection (1) amended by No. 6 of 2003, s. 18, Applied:01 Jul 2003]Magistrates Rule Committee means the committee referred to in section 15AC of the Magistrates Court Act 1987 ;
order means an order made upon a complaint of a breach of duty;
pecuniary sum means a sum of money in respect of which a warrant is issued under section 80(1) , including the prescribed costs of the warrant and of a warrant of commitment issued under section 80(2)(c) , 80(4A) or 82(1) , as the case may require;
petty session means a sitting together of 2 or more justices otherwise than in –
(a) a general session; or
(b) a special session required to be held for administrative purposes under another Act;
[Section 3 Subsection (1) amended by No. 22 of 2007, s. 4, Applied:01 Feb 2008][Section 3 Subsection (1) amended by No. 27 of 2020, s. 13, Applied:01 Jul 2021]preliminary proceedings means proceedings conducted in accordance with a preliminary proceedings order;
[Section 3 Subsection (1) amended by No. 22 of 2007, s. 4, Applied:01 Feb 2008][Section 3 Subsection (1) amended by No. 27 of 2020, s. 13, Applied:01 Jul 2021]
[Section 3 Subsection (1) amended by No. 27 of 2020, s. 13, Applied:01 Jul 2021]preliminary proceedings order means an order requiring the giving of evidence on oath in preliminary proceedings –
(a) made under section 62 ; or
(b) made by the Supreme Court under section 331B of theCriminal Code ;
[Section 3 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004]
[Section 3 Subsection (1) amended by No. 6 of 2003, s. 18, Applied:01 Jul 2003]prescribed means –
(a) [Section 3 Subsection (1) amended by No. 22 of 2007, s. 4, Applied:01 Feb 2008] prescribed in the rules of court; or
(b) prescribed in regulations made under section 145 ;
[Section 3 Subsection (1) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003]probation officer means a probation officer as defined by the Corrections Act 1997 ;
public officer means any person employed in any capacity in the public service of the State, and includes –
(a) a police officer; and
(b) a probation officer;
restraint order has the same meaning as in Part XA ;
[Section 3 Subsection (1) amended by No. 22 of 2007, s. 4, Applied:01 Feb 2008]rules of court means rules of court made by the Magistrates Rule Committee under the Magistrates Court Act 1987 for the purposes of this Act;
Secretary means the Secretary of the Department;
simple offence means any offence (indictable or not) punishable, on summary conviction before justices, by fine, imprisonment, or otherwise;
summary conviction, or conviction, means a conviction by justices for a simple offence;
telephone interim restraint order has the same meaning as in Part XA ;
the clerk of petty sessions means the person appointed or assigned as clerk of petty sessions for the district to which the context relates;
the justices means the justices exercising jurisdiction in respect of the matter to which the context relates.
(2) Where in any enactment the expressions information, information and complaint, charge, and charge of an indictable offence are used in relation to proceedings before justices, they shall be deemed to mean a complaint.
Part II
[Part II Repealed by No. 15 of 2018, Sched. 1, Applied:01 Jul 2019]
4.
[Section 4 Inserted by No. 15 of 1976, s. 4 ][Section 4 Repealed by No. 15 of 2018, Sched. 1, Applied:01 Jul 2019]
4A.
[Section 4A Inserted by No. 15 of 1976, s. 4 ][Section 4A Amended by No. 45 of 1983, s. 3 ][Section 4A Repealed by No. 15 of 2018, Sched. 1, Applied:01 Jul 2019]
4B.
[Section 4B Inserted by No. 15 of 1976, s. 4 ][Section 4B Repealed by No. 15 of 2018, Sched. 1, Applied:01 Jul 2019]
4C.
[Section 4C Inserted by No. 15 of 1976, s. 4 ][Section 4C Amended by No. 92 of 2001, s. 12, Applied:05 Dec 2001][Section 4C Repealed by No. 15 of 2018, Sched. 1, Applied:01 Jul 2019]
5.
[Section 5 Subsection (1) amended by No. 92 of 2001, s. 12, Applied:05 Dec 2001][Section 5 Subsection (1) amended by No. 15 of 1976, s. 5 ][Section 5 Subsection (2) amended by No. 92 of 2001, s. 12, Applied:05 Dec 2001][Section 5 Subsection (2) amended by No. 92 of 2001, s. 12, Applied:05 Dec 2001][Section 5 Substituted by No. 8 of 2015, s. 8, Applied:15 May 2015][Section 5 Repealed by No. 15 of 2018, Sched. 1, Applied:01 Jul 2019]
6.
[Section 6 Substituted by No. 30 of 1995, s. 3 and Sched. 1 ][Section 6 Repealed by No. 15 of 2018, Sched. 1, Applied:01 Jul 2019]
7.
[Section 7 Substituted by No. 15 of 1976, s. 7 ][Section 7 Repealed by No. 17 of 2005, Sched. 1, Applied:10 Jun 2005]
8.
[Section 8 Repealed by No. 15 of 2018, Sched. 1, Applied:01 Jul 2019]
9.
[Section 9 Repealed by No. 15 of 2018, Sched. 1, Applied:01 Jul 2019]
10.
[Section 10 Amended by No. 15 of 1976, s. 8 ] [*[Section
This is an opening excerpt, not the complete document.