Magistrates Court (Children's Division) Act 1998
An Act to establish the Children's Division of the Magistrates Court and for related purposes
[Royal Assent 22 May 1998]
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 1 - Preliminary
This Act may be cited as the Magistrates Court (Children's Division) Act 1998 .
This Act commences on the day on which the Children, Young Persons and Their Families Act 1997 commences.
In this Act, unless the contrary intention appears –Aboriginal child has the same meaning as in the Children, Young Persons and Their Families Act 1997 ;Aboriginal organisation means a recognised Aboriginal organisation within the meaning of the Children, Young Persons and Their Families Act 1997 ;Administrator means the Administrator appointed under section 16 of the Magistrates Court Act 1987 ;advocate means –(a) a legal practitioner; and(b) a person granted leave by the Court to represent a party;Chief Magistrate means the Chief Magistrate appointed under section 5 of the Magistrates Court Act 1987 ;child means a person under 18 years of age;Court means the Magistrates Court (Children's Division);district registrar means a district registrar appointed under section 16A of the Magistrates Court Act 1987 ;family, in relation to a child, has the same meaning as in the Children, Young Persons and Their Families Act 1997 ;guardian means –(a) a parent of a child; and(b) a person who is the legal guardian of a child; and(c) a person who has the legal custody of a child; and(d) any other person who generally acts in the place of a parent of a child and has done so for a significant length of time;[Section 3 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] legal practitioner means an Australian legal practitioner;Magistrates Court means the Magistrates Court of Tasmania established by the Magistrates Court Act 1987 ;process means any document required to be filed, issued, given or served under this Act;restraint order means –(a) a restraint order under section 106B of the Justices Act 1959 ; and(b) an interim restraint order under section 106D of that Act;[Section 3 Amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] special witness means a person declared to be a special witness under section 8 of the Evidence (Children and Special Witnesses) Act 2001 .
PART 2 - Establishment of Children's Division of Magistrates Court
4. Establishment of Children's Division of Magistrates Court
There is established a division of the Magistrates Court to be known as the Magistrates Court (Children's Division).
The Magistrates Court (Children's Division) is constituted by a magistrate.
The Magistrates Court (Children's Division) –(a) has jurisdiction to hear and determine all matters arising from and under the Children, Young Persons and Their Families Act 1997 ; and(b) has the jurisdiction conferred on it by the Adoption Act 1988 ; and(c) has any other jurisdiction conferred on it by any other Act.
PART 3 - Duty of Court
The Court has a duty, as far as practicable –(a) to ensure that parties to proceedings before the Court understand the nature and purpose of the proceedings; and(b) to respect the cultural identity of a child to whom proceedings before the Court relate; and(c) to consider the opinion of a child to whom proceedings before the Court relate if the Court considers the child able –(i) to understand the proceedings and their consequences; and(ii) to form a rational opinion.
PART 4 - Procedure of Court
Division 1 - Arrangement of sittings
The Court may sit at any time, including a Sunday.
The hearing of a matter before the Court must be held in a room in which the business of another court, or another division of the Magistrates Court, is not being conducted.
10. Adjournment from time to time and place to place
The Court may –(a) adjourn proceedings from time to time and from place to place; or(b) adjourn proceedings to a time and place to be fixed; or(c) order the transfer of proceedings from place to place.
Division 2 - Confidentiality of proceedings
11. Persons who may be present in Court
(1) Only the following persons may be present at a sitting of the Court:(a) the child to whom the proceeding relates;(b) the parents, other adult members of the child's family and guardians of the child;(c) parties to the proceedings and their advocates;(d) [Section 11 Subsection (1) amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] a person approved under section 4 or section 8(2)(b)(i) of the Evidence (Children and Special Witnesses) Act 2001 while the child or special witness whom the person is supporting remains in the Court;(e) a witness while giving evidence or permitted by the Court to remain in the Court;(f) an employee of the Department, within the meaning of the Children, Young Persons and Their Families Act 1997 ;(g) if the child is an Aboriginal child, a representative of an Aboriginal organisation;(h) officers of the Court;(i) a person engaged in professional study relevant to the operation of the Court or research, if the Court permits him or her to be present;(j) a person who, in the Court's opinion, will assist the Court;(k) if the proceedings relate to the making, variation or revocation of a restraint order, parties to those proceedings and any person for whose benefit, or against whom, the restraint order is sought or made;(l) any other person if the Court considers that the interests of justice require that person's presence;(m) an infant or young child who is in the care of an adult present at the sitting.(2) [Section 11 Subsection (2) amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] Subject to sections 4 and section 8 of the Evidence (Children and Special Witnesses) Act 2001 , the Court may exclude a person referred to in subsection (1) from the Court if it considers it necessary to do so in the interests of justice.(3) This section does not apply to proceedings in the Court on an application made under the Adoption Act 1988 .
12. Restrictions on reporting proceedings
(1) A person must not publish in any way a report of the proceedings of the Court if the report identifies, or contains any information, picture or film that may lead to the identification of, a child who is the subject of, a party to or a witness in the proceedings except where –(a) permission to publish the identity, information, picture or film has been granted under subsection (2) ; and(b) the identity, information, picture or film is published in accordance with any conditions specified in respect of the permission.Penalty: Fine not exceeding 100 penalty units or a term of imprisonment not exceeding 2 years, or both.(2) The Court may grant a person permission to publish an identity, information, picture or film subject to any conditions specified by the Court.(3) The Court may prohibit the publication of any report of its proceedings.(4) A person must not publish in any way a report of the proceedings of the Court if the Court prohibits publication of any report of the proceedings.Penalty: Fine not exceeding 100 penalty units or a term of imprisonment not exceeding 2 years, or both.(5) This section does not apply to proceedings in the Court on an application made under the Adoption Act 1988 .
Division 3 - Evidence and procedural matters
(1) In any proceedings before the Court, the Court is bound by the rules of evidence except where the Court determines otherwise.(2) The Court may determine that it is not bound by the rules of evidence in any proceedings before it if it is satisfied that it would not be in the best interests of the child to be bound by those rules.(3) In proceedings where the Court is not bound by the rules of evidence, the Court may inform itself in any way it considers appropriate.(4) A fact to be proved in proceedings before the Court is sufficiently proved if proved on the balance of probabilities.
(1) A party to proceedings before the Court may conduct his or her case and examine and cross-examine witnesses by –(a) himself or herself; or(b) a legal practitioner; or(c) another advocate approved by the Court.(2) A person who is not a legal practitioner is not entitled to have or recover any money or other reward for appearing or acting on behalf of any other person in the Court.(3) [Section 14 Subsection (3) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] This section has effect subject to the Legal Profession Act 2007 .
15. Court orders for separate representation of child
(1) The Court must not proceed to hear a matter unless –(a) the child is represented in the proceedings by a legal practitioner; or(b) the Court is satisfied that the child has made an informed and independent decision not to be so represented.(2) Subsection (1) does not apply if the Court is of the opinion that it is in the best interests of the child to proceed with the hearing in the absence of the child's representative.(3) In proceedings under this Act, if –the Court may make such orders as it considers necessary or appropriate to secure legal representation for the child and any orders it could make on adjournment of those proceedings were the child represented by a legal practitioner.(a) the child is not represented by a legal practitioner; and(b) the Court is not satisfied that the child has made an informed and independent decision not to be so represented –(4) In any proceedings before the Court, whether or not the child is represented by a legal practitioner, if it appears to the Court that the child ought to be separately represented, the Court may –(a) order that the child is to be separately represented; and(b) make such other orders as it considers necessary or appropriate to secure that separate representation.(5) The Court may make an order under this section –(a) on its own initiative; or(b) on the application of –(i) the child; or(ii) the Secretary; or(iii) a guardian of the child; or(iv) any other person.
16. Requiring attendance of witness or production of document
(1) The Court may, on the application of a party to proceedings or on its own initiative, issue a summons.(2) A summons may do one or more of the following:(a) require a person to appear before the Court at a specified time and place;(b) require a person to give evidence;(c) require a person to produce a document;(d) bring a child before the Court at a specified time and place.(3) A summons requiring the production of a document may, instead of providing for production of the material before the Court, provide for production of the document to an officer of the Court nominated in the summons.(4) A person must not, without reasonable excuse, fail or refuse to comply with a summons.Penalty: Fine not exceeding 20 penalty units.(5) The Court may issue a warrant to have a person arrested and brought before the Court if –(a) the person fails or refuses to comply with a summons without reasonable excuse; or(b) there are grounds for believing that, if a summons were issued, the person would fail or refuse to comply with it without reasonable excuse.(6) The Court may issue a warrant to have a child taken into the safe custody of the Secretary and brought before the Court as soon as practicable if –(a) a person fails or refuses to comply with a summons to bring the child before the Court without reasonable excuse; or(b) there are grounds for believing that, if such a summons were issued, the person would fail or refuse to comply with it without reasonable excuse.(7) A person served with a summons requiring his or her appearance before the Court may, at any reasonable time before the time he or she is required to appear, apply for an advance of a reasonable sum towards the costs and expenses of appearing as required.(8) An application under subsection (7) is to be made to –(a) the party responsible for the issue of the summons; or(b) the Court if it issued the summons on its own initiative.(9) On receipt of an application under subsection (7) , the party or Court is to –(a) advance the reasonable sum; or(b) provide the applicant with tickets or vouchers enabling him or her to travel to and from the attendance at the Court; or(c) arrange for the transportation of the applicant to and from the attendance at the Court.
17. Compelling the giving of evidence
A person who is called to give evidence or to produce a document before the Court must not –(a) refuse or fail to make an oath or affirmation when required to do so by the Court; or(b) refuse or fail to give evidence on a subject on which that person is compellable to give evidence; or(c) refuse or fail, without reasonable excuse, to produce a document that the person is required by the Court to produce.Penalty: Fine not exceeding 20 penalty units.
18. Production of persons held in custody
If the Court requires the attendance before it of any person who is held in custody in the State, the Court may issue a warrant authorising the person who has lawful custody of that person to bring that person before the Court.
19. Reservation of question of law
(1) The Court may reserve any question of law arising in proceedings for determination by the Supreme Court.(2) The Supreme Court may determine the question reserved and give any consequential orders or directions that may be appropriate in the circumstances of the case.
PART 5 - Appeals
(1) A party to proceedings in the Court may appeal to the Supreme Court against any order made in the proceedings.(2) On the appeal, the Supreme Court may exercise any one or more of the following powers:(a) it may confirm, vary or quash the order and, if the Supreme Court thinks the interests of justice so require, it may vary or quash any other order made in the same proceedings;(b) it may remit the matter for hearing or further hearing;(c) it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.(3) At the hearing of an appeal –(a) sections 11 and 12 apply as if the appeal were proceedings before the Court; and(b) the Supreme Court is to proceed as if the appeal were a notice of motion under section 107 of the Justices Act 1959 .
PART 6 - Administration
21. Duties of district registrar
Each district registrar must –(a) file, sign and issue all process, and register all orders of the Court made, within the district; and(b) keep an account of all proceedings of the Court within the district; and(c) keep accounts of all money paid into or out of the Court within the district.
PART 7 - Miscellaneous
[Section 23 Repealed by No. 6 of 2003, s. 33, Applied:01 Jul 2003] . . . . . . . .(1) A document required by this Act to be kept by an officer of the Court is admissible in any court as evidence of the matters referred to by the entries in the document.(2) A document purporting to be a copy of an entry referred to in subsection (1) and purporting to be signed and certified as a true copy by a district registrar is admissible as evidence of that entry under subsection (1) .(3) A document referred to in subsection (1) or a document purporting to be a copy as referred to in subsection (2) is, until the contrary is shown and without further proof, evidence of the proceedings to which the entry relates and of the regularity of those proceedings.
(1) The Governor may make regulations for the purposes of this Act.(2) The regulations may authorise any matter to be from time to time determined, applied or regulated by the Chief Magistrate or the Administrator.(3) The regulations may contain provisions of a savings or transitional nature consequent on the commencement of this Act.(4) A provision referred to in subsection (3) may take effect on and from the day on which this Act commences or a later day.
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Justice; and(b) the Department responsible to that Minister in relation to the administration of this Act is the Department of Justice.