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Magistrates Court Act 1987
An Act to provide for the establishment of a Magistrates Court, to make fresh provision with respect to the appointment and tenure of office of magistrates, and to provide for the appointment of a Chief Magistrate, a Deputy Chief Magistrate, and senior officers of that Court, and for other purposes
[Royal Assent 18 August 1987]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART I - Preliminary
This Act may be cited as the Magistrates Court Act 1987 .
(1) This section and section 1 shall commence on the day on which this Act receives the Royal Assent.(2) Except as provided in subsection (1) , this Act shall commence on a day to be fixed by proclamation.
In this Act, unless the contrary intention appears –Administrator of the Magistrates Court or Administrator means the person who is appointed as Administrator of the Magistrates Court pursuant to section 16 ;Chief Magistrate means the person who is appointed as Chief Magistrate pursuant to section 5 ;coroner means a coroner within the meaning of the Coroners Act 1995 ;Deputy Chief Magistrate means the person who is appointed as Deputy Chief Magistrate pursuant to section 6 (1) , and includes an acting Deputy Chief Magistrate temporarily appointed pursuant to section 6 (7) ;division means a division of the Magistrates Court;function includes duty;lower courts means –(a) the Magistrates Court;(b) courts of summary jurisdiction within the meaning of the Justices Act 1959 ;(c)(d)(e) children's courts within the meaning of the Child Welfare Act 1960 ;(f)magistrate means a person who is appointed as a magistrate pursuant to section 4 , and includes a person who, by virtue of section 19 (1) , is deemed to have been so appointed;Magistrates Court means the Magistrates Court of Tasmania established by this Act;the regulations means regulations made and in force under this Act.
PART II - The Magistrates Court
3A. Creation of the Magistrates Court
(1) There is established by this Act a court to be known as the Magistrates Court of Tasmania.(2) The Magistrates Court is a court of record and shall have jurisdiction throughout the State.(3) The Magistrates Court consists of the Chief Magistrate, the Deputy Chief Magistrate, and the magistrates.
3B. Jurisdiction and divisions of the Magistrates Court
(1) The Magistrates Court shall have such jurisdictions as are conferred on it by or under this Act or any other Act.(2) For the purposes of the organization and conduct of the business of the Magistrates Court, the Court shall exercise its jurisdictions in divisions, which may be created by or under this Act or any other Act and every proceeding in the Court shall be instituted, heard, and determined in one of those divisions.(3) Where an Act confers a jurisdiction on the Magistrates Court but does not specify in which division proceedings under that Act shall be adjudicated upon, the Chief Magistrate shall direct in which division the proceedings shall be instituted, heard, and determined.(4) The Chief Magistrate may assign in writing a magistrate (including himself and the Deputy Chief Magistrate) to such division or divisions of the Magistrates Court as he thinks fit.(5) A magistrate who is not assigned to a division or divisions of the Magistrates Court may take part in the exercise of the jurisdiction of the Magistrates Court in any of its divisions but, subject to subsection (6) , a magistrate who is assigned to a division or divisions of the Court shall take part in the exercise of the jurisdiction of the Court in that division or those divisions only.(6) Where he considers that circumstances make it desirable to do so, the Chief Magistrate may arrange for a magistrate who is assigned to a division or divisions of the Court to take part in the exercise of the jurisdiction of the Court in another division of the Court, and the magistrate shall take part in the exercise of that jurisdiction accordingly.
(1) Subject to this Act, the Governor may appoint such magistrates as he thinks fit.(2) A magistrate is not subject to the provisions of the Tasmanian State Service Act 1984 , but if a person who is an employee within the meaning of that Act is appointed as a magistrate he retains all his existing and accruing rights as if his services as a magistrate were a continuation of his service as an employee, within the meaning of that Act.(3) Where a person ceases to hold the office of magistrate and becomes an employee within the meaning of the Tasmanian State Service Act 1984 , his service in that office shall be regarded as service as an employee within the meaning of that Act for the purposes of determining his rights as an employee within the meaning of that Act.(4) The Governor may, for any temporary purpose, appoint such number of persons as he considers necessary as temporary magistrates, and each person so appointed shall hold office for such period, on such terms, and subject to such conditions, as may be specified in the instrument of his appointment.(5) The provisions of sections 9 , 10 (other than subsection (4) of that section), 11 , and 12 do not apply to a person who is appointed as a temporary magistrate under subsection (4) .
(1) Subject to section 19 (4) , the Governor may appoint a magistrate to be the Chief Magistrate.(2) The Chief Magistrate may resign from the office of Chief Magistrate but still retain the office of magistrate.
(1) Subject to section 19 (5) , the Governor may appoint a magistrate to be the Deputy Chief Magistrate.(2) The Deputy Chief Magistrate shall, in addition to exercising his functions as a magistrate, exercise such other functions as the Chief Magistrate may direct.(3) The Deputy Chief Magistrate shall act in the office of the Chief Magistrate during –(a) an absence from duty of the Chief Magistrate; or(b) a vacancy in the office of Chief Magistrate.(4) The Deputy Chief Magistrate shall, while he is acting in the office of the Chief Magistrate, have and may perform all the functions and exercise all the powers of that office and be entitled to receive the same remuneration as is ordinarily payable to the Chief Magistrate.(5) Any act, matter, or thing done by the Deputy Chief Magistrate while acting in the office of the Chief Magistrate shall be deemed to have been done by the Chief Magistrate.(6) The Deputy Chief Magistrate may resign from the office of Deputy Chief Magistrate but still retain the office of magistrate.(7) The Attorney-General may, during an absence from duty by, or vacancy in the office of, Deputy Chief Magistrate, appoint a magistrate to be acting Deputy Chief Magistrate and that magistrate shall, while he is acting in the office of Deputy Chief Magistrate, be entitled to receive the same remuneration as is ordinarily payable to the Deputy Chief Magistrate.
A magistrate shall, before exercising any of the functions or powers of his office, take and subscribe the oath of allegiance and the judicial oath prescribed by the Promissory Oaths Act 1869 .
8. Qualification for appointment
(1) A person is not eligible for appointment as a magistrate unless the person is a legal practitioner within the meaning of the Legal Profession Act 1993 of not less than 5 years' standing.(2) A person is not eligible for appointment as a magistrate if he has attained the age of 65 years.
(1) A magistrate shall not be suspended or removed from office except by the Governor on an address from both Houses of Parliament, praying for such suspension or removal on the ground of proved misbehaviour or incapacity.(2) Except as provided by subsection (1) , the Governor shall not suspend a magistrate or remove a magistrate from office.(3) A magistrate shall be deemed to have vacated the office of magistrate if –(a) he becomes bankrupt, applies to take the benefit of any laws for the relief of bankrupt or insolvent debtors, compounds with his creditors, or makes any assignment of his remuneration or estate for their benefit; or(b) he becomes liable to be detained under the Mental Health Act 1963 in a hospital, being a hospital within the meaning of section 3 (1) of that Act.(4) Notwithstanding anything in subsections (1) , (2) , and (3) , but subject to subsection (5) , a magistrate shall retire from office on attaining the age for retirement.(5) In this section, age for retirement means –(a) in the case of a person who is deemed to have been appointed by virtue of section 19 and who was appointed before 1st January 1971, the age of 70 years; or(b) in any other case, the age of 65 years.
10. Terms and conditions of service of magistrates
(1) A magistrate is entitled to be paid –(a) for the period 26 June 1995 to 30 September 1996, both days inclusive, a salary at the rate of –(i) 75% of the salary payable to a puisne judge of the Supreme Court of Tasmania for the same period, if the magistrate is the Chief Magistrate; or(ii) 70% of that salary, if the magistrate is the Deputy Chief Magistrate; or(iii) 65% of that salary, in any other case; and(ab) after 30 September 1996, a salary at the rate of –(i) 75% of the salary payable to a puisne judge of the Supreme Court of Tasmania, if the magistrate is the Chief Magistrate; or(ii) 70% of that salary, if the magistrate is the Deputy Chief Magistrate; or(iii) 6·75% of that salary, in any other case; and(b) such travelling and other allowances as the Governor may from time to time determine or, if there is for the time being no such determination, such travelling and other allowances as are applicable to a person who is a Head of an Agency, within the meaning of the Tasmanian State Service Act 1984 .(2) A magistrate is an employee for the purposes of the Long Service Leave (State Employees) Act 1994 .(3) A magistrate is an employee for the purposes of the Retirement Benefits Act 1993 .(4) A magistrate is a worker for the purposes of the Workers Rehabilitation and Compensation Act 1988 .(5) A magistrate is entitled to such leave as may be prescribed for an employee, within the meaning of the Tasmanian State Service Act 1984 .(6) For the purposes of subsection (5) , the Chief Magistrate shall perform the same functions and exercise the same powers as a Head of Agency within the meaning of the Tasmanian State Service Act 1984 in respect of the magistrates.(7) The Chief Magistrate, Deputy Chief Magistrate and a magistrate are entitled to be paid out of the Consolidated Fund.(8) Any allowance payable to the Chief Magistrate, Deputy Chief Magistrate or a magistrate under this Act is to be paid out of the Consolidated Fund.(9) The Consolidated Fund is appropriated to the extent necessary for the purposes of subsections (7) and (8) .
A magistrate, in performing any function or exercising any power of the office of magistrate, has the same immunities as a puisne judge of the Supreme Court has under section 6 (1) of the Supreme Court Act 1887 .
11. Where magistrates are to be stationed
A magistrate shall be stationed in such city or town as may be determined by the Attorney-General.
12. Magistrates not to undertake other work
A magistrate shall not –(a) engage in, or continue the practice of, the profession of a practitioner or barrister of the Supreme Court; or(b) engage in any occupation or hold any office, either on a full-time or part-time basis, where engaging in that occupation or holding that office interferes, or might reasonably be expected to interfere, with the ability of the magistrate to perform the functions of –(i) the office of magistrate; or(ii) any office lawfully held by the magistrate in conjunction with, or by virtue of, holding the office of magistrate.
13. Jurisdiction and powers of magistrates
(1) A magistrate has jurisdiction as a magistrate throughout the State.(2) A magistrate, by virtue of his office and without further commission or authority –(a) is a justice;(b) . . . . . . . .(c) . . . . . . . .(d) . . . . . . . .(3) A magistrate may exercise and perform, throughout the State, all the jurisdiction, powers, and functions conferred and imposed on magistrates by or under any law of the State.(4) The fact that a magistrate presides over or sits in a lower court, or exercises a jurisdiction or power, or performs a function, is conclusive evidence of his authority to do so.
14. Jurisdiction and powers of Chief Magistrate
(1) The Chief Magistrate has jurisdiction as Chief Magistrate throughout the State.(2) The Chief Magistrate, by virtue of his office and without further commission or authority –(a) . . . . . . . .(b) . . . . . . . .(c) may, in his capacities as Chief Magistrate and Chief Commissioner, exercise and perform, throughout the State, all the jurisdiction, powers, and functions conferred or imposed on the Chief Magistrate and Chief Commissioner by or under any law of the State.
15. Arrangement of business of courts, and administrative matters
(1) In consultation with the Chief Magistrate, the Administrator shall, before 1st December in each year, determine the places where lower courts may be held in the State for the period of 12 months commencing on 1st January next following and may vary the determination at any time during the period of 12 months.(2) Subject to subsection (3) , the Administrator shall –(a) cause a notice to be published in the Gazette in the month of December in each year specifying the places where lower courts shall be held in the State for the period of 12 months commencing on 1st January next following, as determined by the Administrator; and(b) from time to time cause a notice to be published in the Gazette varying the notice referred to in paragraph (a) in accordance with a variation of the determination made by the Administrator.(3) If a court is not held at a place specified in a notice referred to in subsection (2) or a court is held at a place not specified in the notice, the failure to hold the court or cause a notice referred to in subsection (2) (b) to be published in the Gazette does not affect the validity of the cancellation of the court or the holding of the court, as the case may be.(4) In consultation with the Administrator, the Chief Magistrate shall determine what jurisdictions shall be exercised by each lower court.(5) The Chief Magistrate must direct in which lower courts and at what times each magistrate, justice, or coroner is to sit.(6) The Chief Magistrate is responsible for ensuring the orderly and expeditious discharge of the business of the lower courts and shall, in consultation with the Administrator, determine the administrative procedures to be implemented to ensure the disposal of all matters allocated to the courts with the least possible delay.(7) The Chief Magistrate is responsible for the administrative co-ordination, and the allocation of work, between the magistrates.
PART III - Registries, Officers, and Seal
(1) The Governor may cause such registries of the Magistrates Court to be established as he thinks fit.(2) Each registry shall be a district registry in respect of such district as the Governor specifies.
16. Administrator of Magistrates Courts
(1) The Minister administering the Tasmanian State Service Act 1984 may appoint a person employed under that Act to be Administrator of the Magistrates Court and that person shall hold that office in conjunction with a position or an office under that Act.(1A) A person holding the office of Administrator of the Magistrates Court immediately before the commencement of the Administrative Arrangements (Miscellaneous Amendments) Act 1990 shall be deemed to hold that office under the provisions of the Principal Act as in force on that commencement and shall continue to hold that office under the same terms and conditions, including remuneration, that applied to that person immediately before that commencement.(2) In addition to any functions or powers conferred on him under any other Act, the Administrator shall, in consultation with the Chief Magistrate, be responsible for the allocation of all matters for first appearance under any Act or law in the lower courts throughout the State (whether the matter represents the exercise by a magistrate of an original or an appellate jurisdiction).(2A) The Administrator shall have and may exercise and discharge all such powers, authorities, duties, and functions as may be imposed on or given to a district registrar or a deputy district registrar under this or any other Act.(3) The Administrator shall be responsible to the Secretary of the Department for the control and direction of the staff of the lower courts appointed subject to and in accordance with the provisions of the Tasmanian State Service Act 1984 in the performance of their duties and the exercise of their powers.(4) Subsection (3) does not apply to police officers acting as coroners' clerks.
(1) The Minister administering the Tasmanian State Service Act 1984 may appoint a person employed under that Act to be the district registrar in respect of each district registry, and a person or persons employed under that Act to be a deputy district registrar or deputy district registrars in respect of each district registry, and those persons shall hold office in conjunction with their positions or offices under that Act.(2) A registrar shall have and may exercise and discharge such powers, authorities, duties, and functions as may be specified in this or any other Act.(3) Where there is no district registrar or deputy district registrar for a district registry or, for any reason, the district registrar or deputy district registrar is unable to act, the Administrator may authorize a suitable person to perform the duties and exercise the powers of district registrar in respect of that district registry.(4) A deputy district registrar or a person authorized under this section to perform the duties of district registrar may exercise any of the powers conferred by this Act or otherwise on the district registrar, and any act or other thing done by or before the deputy district registrar or the person so authorized has the same force and effect as if it were done by or before the district registrar.
(1) The Magistrates Court shall have a seal, the design of which shall be determined by the Attorney-General.(2) The seal of the Magistrates Court shall be kept at the office of the Administrator in such custody as the Chief Magistrate directs.(3) The district registrar in respect of a district registry shall have in his custody a seal the design of which shall, as nearly as practicable, be the same as the design of the seal of the Magistrates Court, with the addition of such words as the Chief Magistrate directs for the purpose of relating the seal to that district registry.(4) A document or a copy of a document sealed with a seal referred to in subsection (3) is as valid and effectual as if it had been sealed with the seal of the Magistrates Court.(5) The seal of the Magistrates Court shall be affixed to documents as provided by or under this or any other Act.
PART IV - Miscellaneous
(1) The Chief Magistrate may, by instrument in writing, delegate to a magistrate the performance or exercise of such of the functions and powers of the Chief Magistrate (other than this power of delegation) under this Act or any other Act as are specified in the instrument, and may, by instrument in writing, revoke wholly or in part any such delegation.(2) The Administrator may, by instrument in writing, delegate to a person employed in the Department the performance or exercise of such of the functions and powers of the Administrator (other than this power of delegation) as are specified in the instrument, and may, by instrument in writing, revoke wholly or in part any such delegation.(3) A function or power, the performance or exercise of which has been delegated under this section, may, while the delegation remains unrevoked, be performed or exercised from time to time in accordance with the terms of the delegation.(4) A delegation under this section may be made subject to such conditions or limitations as to the performance or exercise of any of the functions or powers delegated, or as to time or circumstances, as are specified in the instrument.(5) Notwithstanding any delegation under this section, the Chief Magistrate or the Administrator, as the case may be, may continue to perform or exercise all or any of the functions or powers delegated.(6) Any act or thing done by or to a delegate while acting in the exercise of a delegation under this section shall have the same force and effect as if the act or thing had been done by or to the Chief Magistrate or the Administrator, as the case may be, and shall be deemed to have been done by or to the Chief Magistrate or the Administrator, as the case may be.
(1) If a person –that person shall be deemed guilty of contempt of court, and the magistrate sitting in the Court may, by oral order, direct that person to be removed from the Court or other place, and to be taken into custody and may, by warrant, commit that person to imprisonment for a period not exceeding 3 months or may fine him an amount not exceeding 5 penalty units.(a) wilfully misbehaves himself before the Magistrates Court sitting in exercise of its jurisdiction under this or any other Act;(b) wilfully interrupts or obstructs any proceedings before the Court; or(c) is guilty of wilful prevarication in giving evidence before the Court –(2) Where a person is guilty of misconduct referred to in subsection (1) , the magistrate may, if he thinks fit, accept an apology for the misconduct, and may remit any penalty or punishment imposed either wholly or in part.
The Governor may make regulations for the purposes of this Act.
(1) A person holding office as a magistrate at the commencement of this Act is deemed to have been appointed as a magistrate under this Act.(2) Notwithstanding section 11 , a person who is holding office as a magistrate at the commencement of this Act shall not, by virtue of a determination made under section 11 on the commencement of this Act, be stationed in a city or town other than the city or town in which he is stationed at that commencement except with that person's consent.(3) In the case of a person who is holding office as a magistrate at the commencement of this Act, that person's service as a magistrate before that commencement is deemed to be service as a magistrate under this Act for the purpose of calculating his entitlements under section 10 .(4) The person who is senior magistrate in the Southern Magisterial District immediately before the commencement of this Act is deemed to have been appointed as the Chief Magistrate under this Act.(5) The person who is senior magistrate in the Northern Magisterial District immediately before the commencement of this Act is deemed to have been appointed as the Deputy Chief Magistrate under this Act.(6) The person who is holding office as Clerk of Petty Sessions and Registrar of the Court of Requests at Hobart immediately before the commencement of this Act is deemed to have been appointed as Administrator of the Magistrates Courts under this Act.(7) On and after the commencement of this Act, a reference to a police magistrate or to a stipendiary magistrate in an Act, or in a regulation, rule, by-law, proclamation, order-in-council, order, summons, warrant, notice, or other instrument or document made, issued, given, or filed under or for the purposes of an Act or for the purposes of any legal proceedings shall be read as a reference to a person who is appointed as a magistrate, or is deemed to have been so appointed, under this Act.(8) In this section –commencement of this Act means the day fixed by proclamation under section 2 (2) .
(1) The person appointed and holding office as the Special Commissioner under the Court of Requests (Small Claims Division) Act 1985 immediately before the proclaimed day is deemed to have been appointed a magistrate under this Act on that day and his or her services as Special Commissioner, for the purposes of section 4 (2) and (3) of this Act, be deemed to be services as an employee within the meaning of the Tasmanian State Service Act 1984 .(2) The person holding office as deputy registrar of the court of requests at Hobart immediately before the proclaimed day is deemed to have been appointed on that day as district registrar of the district registry established under the Magistrates Amendment Act 1989 which includes Hobart in its area of responsibility.(3) The persons holding office as registrar and deputy registrar of the court of requests at Launceston immediately before the proclaimed day are deemed to have been appointed as district registrar and deputy district registrar of the district registry established under the Magistrates Amendment Act 1989 which includes Launceston in its area of responsibility.(4) The persons holding office as registrar and deputy registrar of the court of requests at Devonport immediately before the proclaimed day are deemed to have been appointed as district registrar and deputy district registrar of the district registry established under the Magistrates Amendment Act 1989 which includes Devonport in its area of responsibility.(5) The persons holding office as registrar and deputy registrar of the court of requests at Burnie immediately before the proclaimed day are deemed to have been appointed as district registrar and deputy district registrar of the district registry established under the Magistrates Amendment Act 1989 which includes Burnie in its area of responsibility.(6) In this section, proclaimed day means the day fixed by proclamation under section 2 (2) of the Magistrates Amendment Act 1989 .
The Magistrates Act 1969 and the Stipendiary Magistrates Act 1972 are repealed.See Schedule 1.
SCHEDULE 1 - Consequential AmendmentsThe amendments effected by this Schedule have been incorporated into the authorised version of the following Acts:
(a) Child Welfare Act 1960 ;(b) Coroners Act 1957 ;(c) Court of Requests (Small Claims Division) Act 1985 ;(d) Justices Act 1959 ;(e) Local Courts Act 1896 ;(f) Local Government Act 1962 ;(g) Statutory Salaries Act 1979 .