Victoria
VALIDITY
1. The Constitutional Standards follow the United Nations global governance system, which in a voluntary manner and at different speeds can be applied at the supranational level (international public legal person), the national level (national public legal person), and the sub-national level (state legal persons or localities), including individual subjects at any level.
2. If any clause is deemed invalid , or a clause applied to any organization or individual or any situation is invalid, other parts of the Constitutional Standards and the application of such clauses to other levels, organizations or individuals, or circumstances will not be affected.
(1) Supranational level: according to the organization's charter, but in accordance with the law that does not violate the constitutional standards of permanent peace and does not endanger any individual or group.
(2) National level: The Constitution Standard is applicated directly, effectively and comprehensively, and can amend itself indefinitely, or a part of it may not be implemented for the time being, but the criterion is not to detract from the perfection of the Constitution Standards.
(3) Except for the Ad Hoc Committees of § 15, National Legislation of § 18, National Administration of § 22 (Central Government/Federal Government), and items subordinate to the Central Committee in the articles, the sub-national level (state, province, city, district, etc.) Autonomous bodies are directly effective and fully applicable.
3. All laws or rules involving the scope of the Constitutional Standards are bound by the Constitutional Standards clauses.
4. The various rights enumerated in the Constitutional Standards shall not be interpreted as denying or canceling other rights held by the people.
5. The Constitutional Standards are one of part of the basic great law for all supranational organizations (United Nations, etc.), national organizations, and subnational organizations (state, region, province, city, etc.). The following basic clauses bind legislation, administration, procuratorial, and trial operations and are directly effective supreme laws.
TWO KINDS OF SUBJECTIVE WILL
1. Humanity will enjoy Permanent Peace . Take natural law and international law as parent law, promote the Constitutional Standards in the ISO to consolidate a world under the rule of law and create the highest life value..
2. Sustainable development of the earth . Take the solar system and the United Nations as the system, promote government standards (ISO), enhance global governance and create the highest values on earth.
TWENTY-EIGHT LAWS OF NATURE
SECTION I. PERMANENT PEACE —RIGHTS AND DUTIES OF THE PEOPLE
CHAPTER 1. FREEDOM STANDARDS FOR PERMANENT PEACE
ARTICLE 1. FOUNDING A NATION ON FREEDOM
National sovereignty rests with the people. Constitutional power belongs to the people unconditionally . The constitution can freely determine whether a nation is a republic or monarchy, a unitary state, or a federation . The government is formed through votes by the people. The oath of allegiance to the Constitution produces public offices.
ARTICLE 2. REFORMING FREEDOM
Radio waves are owned by the whole people . Political candidates will gain one-hour free access to television broadcast and one item is published for free daily on the internet . The country’s nine major political parties can use the nation’s proprietary radio channels for free . Local governments shall handle the above matters in accordance with regulations.
ARTICLE 3. OPENING UP FREEDOM
Elections (and voting) are the most important element in education, allocation, dialogue , solidarity, consensus forming and elements of governance . Candidates should complete registration six months before elections Registration . Voting frequency and number of times are based on Switzerland or the US state of California, the two areas with the world’s highest per capita income.
ARTICLE 4. SAFEGUARDING FREEDOM
The people are obliged to perform military service, voting service and peacekeeping service. Severe punishment for disturbing the peace or arrest of whoever disturbs the peace and abuses the right of freedom , using violence or lavishing money to achieve their goals or preaching on behalf of dictatorships and spreading false information, attacking freedom and democracy, or in adhering to their enemies, giving them aid and comfort.
CHAPTER II. DEMOCRACY STANDARDS FOR PERMANENT PEACE
ARTICLE 5. FOUNDING A NATION ON DEMOCRACY
Innovate global democracy—advocate Permanent Peace, belief in value sharing and constitutional commonality, and take the lead in global republicanism. Vote frequently to resolve and reconcile contradictions, disagreements and antagonisms that continually arise.
ARTICLE 6. REFORMING DEMOCRACY
All government officials, military personnel and civil servants must pass the constitutional and international law graded examinations, with question banks published a year in advance . Each legislature should ensure that the power of the three parties is balanced and establish a global network to submit questions or proposals to the committee.
ARTICLE 7. OPENING UP DEMOCRACY
Registration is completed six months prior to elections to facilitate dialogue between voters and talented candidates with ability . Political parties with seats in the national legislature of a fully democratic country can set up party headquarters in our country and field candidates in elections for leaders at all levels in accordance with the Constitutional Standards and the law, thereby enhancing international competitiveness.
ARTICLE 8. SAFEGUARDING DEMOCRACY
Strictly control the flow of payment, movement of people, goods, and information from foreign countries. On referendum proposals, if 60% of eligible voters agree, the proposal is adopted . The elected president serves a term of five years, and together with his/her relatives is banned from running again in accordance with the law within six years of leaving the office . Attempts to modify the term of office shall be deemed acts of rebellion.
CHAPTER III. HUMAN RIGHTS STANDARDS FOR PERMANENT PEACE
ARTICLE 9. FOUNDING A NATION ON HUMAN RIGHTS
Creating the highest values in life, advocating the global basic Constitutional Standards, constructing Permanent Peace for humanity, and safeguarding sustainable development of the earth are the most sacred rights of the people and the most urgent obligations of the nation.
ARTICLE 10. REFORMING HUMAN RIGHTS
Innate human rights are superior to sovereignty . Any innocent victim harmed or dying from injury due to human factors and ergonomics should be compensated by the state . All victims have unlimited right to private prosecution . All citizens are good citizens, and criminal records of those who have not committed another crime within ten years should be completely expunged.
ARTICLE 11. OPENING UP HUMAN RIGHTS
A community with a shared future for humanity and human rights issues is a global internal affair , and any human rights victim is seen as suffering for all humanity. Half of the members of the National Human Rights Action and Citizenship Exercise Committee are appointed by authoritative international human rights organization.
ARTICLE 12. SAFEGUARDING HUMAN RIGHTS
Constitution guarantors guarantee: human rights, environmental rights, peace rights and development rights for all will never lag those of other countries . Power leaders in government are elected in alternating years. Amendments to human rights or peace clauses are not permitted.
CHAPTER IV. RULE OF LAW STANDARDS FOR PERMANENT PEACE
ARTICLE 13. FOUNDING A NATION ON RULE OF LAW
These Constitutional Standards are hereby established, to be promulgated throughout the country for faithful and perpetual observance by all. International law is deemed to be Customary International Law, as that is also the great fundamental law of the world , so international law is also deemed to be the parent law of the national constitution and the jus cogens of peace, directly imposing rights and duties on the people and central and local governments.
ARTICLE 14. REFORMING RULE OF LAW
The eternal weapon for safeguarding peaceful development: implementing the Constitutional Standards is a fundamental law to promote what is beneficial and abolish what is harmful/to eradicate internal disturbances and treason. It gathers all laws of all local governments and nations in the whole world as a part of national laws , and people can choose the ones best suited for them and use them in accordance with the law.
ARTICLE 15. OPENING UP RULE OF LAW
Create a great civilization under rule of law . Candidates for the President and the leaders of prosecution and justice shall nominate members for ad hoc committees to develop legislation, international law, and all laws of all nations. These ad hoc committees’ members are distributed among various standing committees..
ARTICLE 16. SAFEGUARDING RULE OF LAW
All legislative, administrative, procuratorial and adjudication acts shall be subject to International Law first. Anyone who is disloyal to the Constitutional Standards shall forfeit all basic rights. No country may invoke provisions of its National Laws or conditions, history, and cultural conflict to justify violation of International Law.
SECTION II. PERMANENT PEACE - BASIC ORGANIZATION OF THE NATION
CHAPTER V. LEGISLATIVE STANDARDS FOR PERMANENT PEACE
ARTICLE 17. GLOBAL LEGISLATION
Global Concurrent Legislative Powers : In order to create a global legal community , the legislatures have to open up global legislation and national or sub-national levels have the right to enact legislation so long as and to the extent that the supra-national level has not exercised its legislative power by enacting a law.
ARTICLE 18. NATIONAL LEGISLATION
Create a matrix committee-centric quasi-cabinet system with none of the disadvantages of contemporary systems . Hold at-large parliamentary elections in a single-district one-vote system to ensure candidates of three main political parties can be elected and part of representatives get re-elected each year . All bicameral parliaments shall proceed as described above. Parliament elections are handled separately and mandatory voting.
ARTICLE 19. LOCAL LEGISLATION
The Sub-national level (state/province/city) councils set up nine committees and 1/3 of all members face election each year . Local councils elect a Speaker from among their members for a one-session term with no right to run for Speaker again during the appointed dates . The local legislation should strive to enhance the value of globalization and localization.
ARTICLE 20. ADVOCATING LEGISLATION
The legislature shall create a human political community with the Constitutional Standards for international organizations and rule of international law as jus cogens. The legislature shall advise other countries or states, provinces, and cities to establish constitutional standards. Such actions shall be supported by special funds at least five ten thousandths (0.05%) of the total budget.
CHAPTER VI. ADMINISTRATIVE STANDARDS FOR PERMANENT PEACE
ARTICLE 21. GLOBAL ADMINISTRATION
Global Concurrent Administrative Powers: Implement the Constitutional Standards and practice a community with a shared future for mankind; when performing tasks on behalf of supranational organizations (the UN, etc.), national and local governments shall be considered executive agencies empowered by supranational organizations.
ARTICLE 22. NATIONAL ADMINISTRATION
Adopt a modified semi-presidential system . The President is elected by the people ; the President appoints or nominate the Prime Minister in accordance with the law , the Prime Minister must be born locally. The Prime Minister shall direct the actions of the Government. He/she shall be responsible for national defense. The various Minister of ministries and committees shall release their global performance rankings at the beginning of every year . All military forces shall be nationalized and globalized.
ARTICLE 23. LOCAL ADMINISTRATION
The sub-national level of the Constitutional Standards is comparable to the state, province, and district autonomous entities . Powers that are more beneficial to the locality belong to the local government, including the rights of local legislation, administration, justice, external trade, language, culture, and environmental development in accordance with the constitution.
ARTICLE 24. CONSTITUTIONAL GUARANTEES
The President, representatives of public opinion, military personnel, civil servants, teachers, and clergy shall act as constitutional guarantors . Leaders at all levels shall be responsible for the country’s centennial plans. The President and Armed forces shall be neutral in elections and are banned from voting . The country shall continue pursuing and perfecting all standards .
CHAPTER VII. PERMANENT PEACE JUSTICE PROSECUTION STANDARDS
ARTICLE 25. JUDICIAL REFORM
The Prosecutor-General is directly elected . The District Prosecutor-General are chosen in a single-district one-vote system, according to the number of votes, one district attorney general and two deputy district attorneys are elected, to form a collegial system of prosecution . Both parties may submit videos instead of appearing in court and have the right to replace the presiding judge before conclusion of the investigation/final statements.
ARTICLE 26. JUDICIAL DEVELOPMENT
The constitution represents the general will of the people, and the people can prosecute anyone who violates the constitution . Military or police personnel assuming office take an oath administered by a prosecutor . The nation shall set up a global legal comparison database to enhance audit, prevention, discovery and prosecution, and a trial ruling prediction system.
CHAPTER VIII. PERMANENT PEACE JUDICIAL TRIAL STANDARDS
ARTICLE 27. JUSTICE AND OPENING UP
Ensure justice is responsive . The head of the Judicial Department is elected by the people . The rulings of Constitutional Court Justices are regarded as exercise of the people's constitutional power, and half of all Constitutional Court Justices shall come from different countries on the five continents, with life-long tenure and full national benefits.
ARTICLE 28. CONSTITUTIONAL LAW AND OPENING UP
Constitutional global agreement , unconstitutional global review, and priority reviews of violations of international law . Except in cases involving unconstitutionality, if no remedy is at hand, everyone in the democratic world has the right not to cooperate, to resist non-violently or to protest.
Constitution Act 1975
No. 8750 of 1975
Version incorporating amendments as at
17 March 2021
The Parliament of Victoria enacts as follows:
Preamble
WHEREAS the Legislative Council of the Colony of Victoria did in the year 1854 pass a Bill intituled "An Act to establish a Constitution in and for the colony for Victoria":
And whereas the said Bill was presented to the then Lieutenant-Governor of Victoria for Her Majesty's assent and the said Lieutenant-Governor did thereupon declare that he reserved the said Bill for the signification of Her Majesty's pleasure thereon:
And whereas the Imperial Parliament deemed it expedient to authorize Her Majesty to assent to the said reserved Bill amended by the omission of certain provisions thereof:
And whereas the said Bill as amended was set forth in a Schedule to an Act of the Imperial Parliament passed in the 18th and 19th years of the reign of Her Majesty Queen Victoria intituled "An Act to enable Her Majesty to Assent to a Bill, as amended, of the Legislature of Victoria to establish a Constitution in and for the Colony of Victoria" by which Act Her Majesty in Council was authorized to assent to the said reserved Bill amended by the omission of certain provisions thereof, and the Bill was assented to accordingly:
And whereas by the said Bill as so amended the Colony of Victoria was established as a self-governing colony with responsible government:
And whereas the said Bill as so amended is the Constitution of Victoria and is known as The Constitution Act:
And whereas it is provided by section LX of the said The Constitution Act that the Legislature of Victoria has full power and authority from time to time by any Act or Acts to repeal alter or vary all or any of the provisions of The Constitution Act and to substitute others in lieu thereof:
Be it therefore enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
1 Short title and commencement
(1) This Act may be cited as the Constitution Act 1975.
(2) This Act shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.
S. 1(3) amended by No. 9254 s. 2(a), repealed by No. 108/1994 s. 6(1)(a).
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S. 1A inserted by No. 73/2004 s. 3.
1A Recognition of Aboriginal people
(1) The Parliament acknowledges that the events described in the preamble to this Act occurred without proper consultation, recognition or involvement of the Aboriginal people of Victoria.
(2) The Parliament recognises that Victoria's Aboriginal people, as the original custodians of the land on which the Colony of Victoria was established—
(a) have a unique status as the descendants of Australia's first people; and
(b) have a spiritual, social, cultural and economic relationship with their traditional lands and waters within Victoria; and
(c) have made a unique and irreplaceable contribution to the identity and well-being of Victoria.
(3) The Parliament does not intend by this section—
(a) to create in any person any legal right or give rise to any civil cause of action; or
(b) to affect in any way the interpretation of this Act or of any other law in force in Victoria.
S. XL and XLI.
2 Existing laws
(1) All laws which at the commencement of this Act are in force within Victoria shall remain and continue to be of the same force authority and effect as if this Act had not come into force except insofar as the same are repealed or varied by or under this or any subsequent Act.
(2) All courts within Victoria and all offices judicial administrative or ministerial therein and all charters legal commissions powers and authorities except insofar as the same may be abolished altered or varied by or may be inconsistent with the provisions of this Act or are abolished altered or varied by any Act or Acts shall continue to subsist in the same form and with the same effect as if this Act had not come into force.
(3) The Supreme Court of the State of Victoria as at present constituted shall continue under and subject to the provisions of this Act and shall for all purposes be deemed to be the same court after as before the commencement of this Act.
S. 2(4)(5) repealed by No. 2/2003 s. 7(1).
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9 Geo. IV. c. 83 s. 24.
3 Laws of England to be applied in the administration of justice
(1) Subject to the Imperial Acts Application Act 1922 all laws and statutes in force within the realm of England on the 25th day of July, 1828 (not being inconsistent with any law now in force) shall be applied in the administration of justice in the courts of Victoria, so far as they can be applied within Victoria.
(2) If any doubt arises as to the application of any such laws or statutes in Victoria, it shall be lawful for the Parliament by Act to declare whether such laws or statutes shall be deemed to extend to Victoria, and to be in force within Victoria, or to make and establish such limitations and modifications of such laws and statutes within Victoria as may be deemed expedient in that behalf.
4 Continuation of existing Houses
S. 4(1)(2) repealed by No. 2/2003 s. 7(1).
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No. 6224 s. 2(2).
(3) Except as in this Act expressly or by necessary implication provided—
(a) all persons things and circumstances appointed or created by or under any of the Acts or enactments repealed by this Act or existing or continuing under any of such Acts or enactments immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Acts or enactments had not been so repealed;
(b) in particular and without affecting the generality of the foregoing paragraph, such repeal shall not disturb the continuity of status operation or effect of any proclamation regulation rule by-law order appointment application probate letters of administration decision action cause matter appeal proceeding agreement examination affidavit declaration affirmation reference recognizance security certificate liability roll writ poll determination membership classification notice pension salary allowance liability or right made given issued accrued incurred or acquired or existing or continuing by or under any such Acts or enactments before the commencement of this Act.
5 Definitions
In this Act unless inconsistent with the context or subject-matter—
S. 5 def. of actuary inserted by No. 19/2001 s. 4.
actuary means a fellow or accredited member of the Institute of Actuaries of Australia approved by the Minister;
Assembly means Legislative Assembly of Victoria;
S. 5 def. of Associate Judge inserted by No. 24/2008 s. 3(a), amended by No. 63/2013 s. 3(b).
Associate Judge means an Associate Judge of the Court referred to in section 75(4) and, subject to this Act, and unless the context otherwise requires, in Part III includes a reserve Associate Judge engaged under section 105D of the Supreme Court Act 1986 to undertake the duties of an Associate Judge during any period of engagement or acting under section 105H of that Act;
S. 5 def. of Chief Justice amended by No. 109/1994 s. 4(1)(a) (as amended by No. 22/1995 s. 29(1)).
Chief Justice means the Chief Justice of the Supreme Court and includes Acting Chief Justice and in the absence of the Chief Justice and the Acting Chief Justice from duty means the senior Judge of the Court for the time being present;
S. 5 def. of Consolidated Fund amended by No. 18/1994 s. 66(Sch. 2 item 3).
Consolidated Fund means the Consolidated Fund constituted under the Financial Management Act 1994;
Council means Legislative Council of Victoria;
S. 5 def. of Court of Disputed Returns substituted by No. 23/2002 s. 189(1).
Court of Disputed Returns means the Court of Disputed Returns constituted under section 124 of the Electoral Act 2002;
S. 5 def. of deputy presiding officer inserted by No. 37/2013 s. 18(1).
deputy presiding officer means—
(a) in relation to the Legislative Council—the Deputy President; and
(b) in relation to the Legislative Assembly—the Deputy Speaker;
district means electoral district of the Assembly;
S. 5 def. of excluded judicial officer inserted by No. 63/2013 s. 54.
excluded judicial officer means—
(a) the Chief Justice;
(b) the President of the Court of Appeal;
(c) a Judge of the Court who is appointed as President of VCAT;
S. 5 def. of general election substituted by No. 10146 s. 7(3), amended by No. 2/2003 s. 7(2)(a).
general election means an election at which all the members of the Council and Assembly have to be elected;
S. 5 def. of insolvent under administration inserted by No. 53/1999 s. 5.
insolvent under administration means—
(a) a person who is an undischarged bankrupt; or
(b) a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of another jurisdiction) if the terms of the deed have not been fully complied with; or
(c) a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of another jurisdiction) if a final payment has not been made under that composition; or
(d) a person for whom a debt agreement has been made under Part IX of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of another jurisdiction) if the debt agreement has not ended or has not been terminated;
S. 5 def. of Judge of the Court inserted by No. 24/2008 s. 3(a), amended by Nos 5/2013 s. 3(2), 63/2013 s. 3(c).
Judge of the Court means a Judge of the Court referred to in section 75(3) and, subject to this Act, and unless the context otherwise requires, in Part III includes a reserve Judge engaged under section 81B to undertake the duties of a Judge of the Court during any period of engagement or acting under section 81GA;
S. 5 def. of Master substituted by No. 109/1994 s. 4(1)(b), repealed by No. 24/2008 s. 3(b).
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Parliament means Parliament of Victoria;
S. 5 def. of Parliamentary Committee inserted by No. 53/1999 s. 5.
Parliamentary Committee, in Division 3 of Part V, has the same meaning as in the Audit Act 1994;
S. 5 def. of Parliamentary Offices Committee repealed by No. 24/1996 s. 34(a).
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S. 5 def. of part-time service arrangement inserted by No. 63/2013 s. 54.
part-time service arrangement means—
(a) in relation to a Judge of the Court, an arrangement entered under section 75C;
(b) in relation to an Associate Judge, an arrangement entered under section 104JA of the Supreme Court Act 1986;
S. 5 def. of periodical election repealed by No. 2/2003 s. 7(2)(b).
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prescribed means prescribed by this Act or any regulation thereunder;
President means President of the Council and includes any person acting as the President of the Council;
presiding officer means—
(a) in relation to the Legislative Council—the President; and
(b) in relation to the Legislative Assembly—the Speaker;
S. 5 def. of province repealed by No. 2/2003 s. 49(1)(a).
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S. 5 def. of region inserted by No. 2/2003 s. 49(1)(b).
region means electoral region of the Council;
S. 5 def. of reserve Associate Judge inserted by No. 63/2013 s. 3(a).
reserve Associate Judge has the same meaning as it has in the Supreme Court Act 1986;
S. 5 def. of reserve Judge inserted by No. 5/2013 s. 3(1).
reserve Judge means a person appointed under section 81;
Speaker means Speaker of the Assembly and includes any person acting as the Speaker of the Assembly;
S. 5 def. of subdivision repealed by No. 24/1999 s. 44(1).
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S. 5 def. of super-annuation contributions surcharge inserted by No. 19/2001 s. 4.
superannuation contributions surcharge means the superannuation contributions surcharge imposed by the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 of the Commonwealth;
S. 5 def. of super-annuation contributions surcharge notice inserted by No. 19/2001 s. 4.
superannuation contributions surcharge notice means a notice issued by the Commissioner of Taxation under section 15(7) of the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 of the Commonwealth;
Supreme Court means the Supreme Court of the State of Victoria;
S. 5 def. of total pension entitlement inserted by No. 19/2001 s. 4.
total pension entitlement means, on a particular day, the current value of all future pension payments on that day.
S. 5A inserted by No. 23/2008 s. 3.
5A Definitions relating to pensions
S. 5A(1) amended by No. 63/2013 s. 55.
(1) For the purposes of section 83 and section 83AAA—
approved deposit fund has the meaning given by section 10(1) of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth;
S. 5A(1) def. of domestic partner substituted by No. 23/2008 s. 22(1), amended by No. 4/2009 s. 37(Sch. 1 item 7.1).
domestic partner of a person means—
(a) a person who is, or was at the time of the person's death, in a registered domestic relationship with the person; or
(b) a person to whom the person is not married but with whom, in the opinion of the Minister, the person is, or was at the time of the person's death, living as a couple on a genuine domestic basis (irrespective of gender);
eligible rollover fund means a fund within the meaning of section 242 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth;
eligible superannuation plan means—
(a) a regulated superannuation fund; or
(b) an approved deposit fund; or
(c) an exempt public sector superannuation scheme; or
(d) an RSA;
exempt public sector superannuation scheme means a public sector superannuation scheme within the meaning of section 10(1) of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth;
flag lifting agreement has the meaning given by section 90MN of the Family Law Act 1975 of the Commonwealth;
flagging order means an order mentioned in section 90MU(1) of the Family Law Act 1975 of the Commonwealth;
interest has the meaning given by section 90MD of the Family Law Act 1975 of the Commonwealth;
member means a Judge of the Supreme Court;
member spouse, in relation to a superannuation interest, means the spouse who has the superannuation interest;
non-member spouse, in relation to a superannuation interest, means the spouse who is not the member spouse in relation to that interest;
S. 5A(1)
def. of partner substituted by No. 40/2010 s. 104(1).
partner of a person means the person's spouse or domestic partner;
payment flag has the meaning given by section 90MD of the Family Law Act 1975 of the Commonwealth;
regulated superannuation fund means a superannuation fund which complies with section 19 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth;
relevant condition of release means a condition of release mentioned in item 101, 102, 103 or 106 of Schedule 1 to the Superannuation Industry (Supervision) Regulations 1994 of the Commonwealth;
reversionary interest has the meaning given by section 90MF of the Family Law Act 1975 of the Commonwealth;
RSA means a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth;
specified period means the period which is specified to be the specified period in the specified standards;
splitting order means an order mentioned in section 90MT of the Family Law Act 1975 of the Commonwealth;
S. 5A(1) def. of spouse amended by No. 38/2009 s. 17(1)(a).
spouse of a person (except in sections 83(8) to 83(22)) means a person to whom the person is, or was at the time of the person's death, married;
S. 5A(1) def. of super-annuation agreement amended by No. 38/2009 s. 17(1)(b).
superannuation agreement has the meaning given by section 90MD of the Family Law Act 1975 of the Commonwealth;
superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993 of the Commonwealth;
superannuation interest means an interest that a person has as a member of an eligible superannuation plan, but does not include a reversionary interest;
unsplittable interest has the meaning given by section 90MD of the Family Law Act 1975 of the Commonwealth;
value at a particular time of the non-member spouse's entitlement in respect of the superannuation interest means the value as determined in accordance with regulation 14G(8) of the Family Law (Superannuation) Regulations 2001 of the Commonwealth;
value of the member spouse's interest in the Fund means the value as determined in accordance with Part 5 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth.
S. 5A(1A) inserted by No. 38/2009 s. 17(2).
(1A) For the purposes of sections 83(8) to 83(22), spouse has the meaning given by section 90MD of the Commonwealth Family Law Act 1975.
S. 5A(2) substituted by No. 23/2008 s. 22(2).
(2) For the purposes of the definition of domestic partner in subsection (1)—
S. 5A(2)(a) amended by No. 4/2009 s. 37(Sch. 1 item 7.2(a)).
(a) registered domestic relationship has the same meaning as in the Relationships Act 2008; and
S. 5A(2)(b) amended by No. 4/2009 s. 37(Sch. 1 item 7.2(b)).
(b) in determining whether persons who are not or were not in a registered domestic relationship are or were domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.
S. 5A(2A) inserted by No. 40/2010 s. 104(2).
(2A) For the purposes of section 83(2), the definition of partner as substituted by section 104(1) of the Superannuation Legislation Amendment Act 2010 applies in respect of the entitlement
to a pension of a Judge of the Court or a former Judge of the Court only if the death of the Judge of the Court or former Judge of the Court occurs on or after the commencement of the substituting section.
(3) For the purposes of section 83, a reference to the transfer of an amount is to be construed as including a reference to the rollover of an amount.
Part I—The Crown
S. 6 substituted by No. 108/1994 s. 4.
6 The Governor ,
(1) There shall be a Governor of the State of Victoria.
(2) The appointment of a person as Governor shall be during Her Majesty's pleasure by Commission under Her Majesty's Sign Manual and the Public Seal of the State.
(3) Before assuming office, a person appointed as Governor shall take the Oath or Affirmation of Allegiance and the Oath or Affirmation of Office in the presence of the Chief Justice or another judge of the Supreme Court.
S. 6A
inserted by No. 108/1994 s. 4.
6A Lieutenant-Governor and Administrator
(1) There shall be—
(a) a Lieutenant-Governor of the State; and
(b) an Administrator of the State.
S. 6A(2) substituted by No. 70/2009 s. 7(1).
(2) The Governor may appoint a person as Lieutenant-Governor during the Governor's pleasure by Commission under the Public Seal of the State.
S. 6A(3) amended by No. 70/2009 s. 7(2).
(3) The Administrator is—
(a) the Chief Justice of the Supreme Court; or
(b) if—
(i) the Chief Justice of the Supreme Court is the Lieutenant-Governor; or
(ii) there is a vacancy in the office of Chief Justice of the Supreme Court or the Chief Justice is absent from the State or unable or unwilling to act as Administrator—
the most senior judge of the Supreme Court who is present in the State and able and willing to act as Administrator—
and shall be deemed to have been appointed as Administrator during the Governor's pleasure.
S. 6A(4) substituted by No. 70/2009 s. 7(3).
(4) The Governor may appoint a person as Administrator during the Governor's pleasure by Commission under the Public Seal of the State.
(5) Subsection (3) does not apply if—
(a) there is an Administrator appointed under subsection (4); and
(b) that Administrator is present in the State and able and willing to act.
(6) The Lieutenant-Governor or Administrator must not assume the administration of the government of the State or act as the Governor's deputy unless the Lieutenant-Governor or Administrator, as the case may be, has taken on that occasion, or has previously taken, the Oath or Affirmation of Allegiance and the Oath or Affirmation of Office in the presence of the Chief Justice or another judge of the Supreme Court.
S. 6B
inserted by No. 108/1994 s. 4.
6B Administration by Lieutenant-Governor or Administrator
(1) The Lieutenant-Governor or Administrator shall, subject to this section, assume the administration of the government of the State if—
(a) there is a vacancy in the office of Governor; or
(b) the Governor has assumed the administration of the government of the Commonwealth; or
(c) the Governor—
(i) is absent from the State; or
(ii) is unable or unwilling to act—
and there is not a subsisting appointment of a deputy under section 6C.
(2) The Administrator shall not assume the administration of the government of the State unless—
(a) there is a vacancy in the office of Lieutenant-Governor; or
(b) the Lieutenant-Governor—
(i) is absent from the State; or
(ii) is unable or unwilling to act.
(3) The Lieutenant-Governor or Administrator shall, upon assuming the administration of the government of the State, notify the Premier or, in the absence of the Premier, the Acting Premier.
(4) The powers and functions of the Governor vest in the Lieutenant-Governor or Administrator during the administration of the government of the State by the Lieutenant-Governor or Administrator, as the case may be.
(5) The Lieutenant-Governor shall cease to administer the government of the State when—
(a) a person is appointed to fill the vacancy in the office of Governor and has taken the required oaths or affirmations; or
(b) the Governor ceases to administer the government of the Commonwealth; or
(c) the Governor is no longer absent from the State or no longer unable or unwilling to act—
as the case requires, and the Lieutenant-Governor has been notified accordingly.
(6) The Administrator shall cease to administer the government of the State when—
(a) a person is appointed to fill the vacancy in the office of Governor or Lieutenant-Governor and has taken the required oaths or affirmations; or
(b) the Governor ceases to administer the government of the Commonwealth; or
(c) the Governor or Lieutenant-Governor is no longer absent from the State or no longer unable or unwilling to act—
as the case requires, and the Administrator has been notified accordingly.
(7) A request in writing by the Premier (or, in the absence of the Premier, the Acting Premier) that the Lieutenant-Governor or the Administrator assume the administration of the State is sufficient authority for the Lieutenant-Governor or Administrator to do so.
S. 6C
inserted by No. 108/1994 s. 4.
6C Deputy for Governor during short illness or absence
(1) If—
(a) the Governor is to be absent from the State or absent from Melbourne but not the State or is suffering from illness; and
(b) the Governor has reason to believe that the duration of the absence or illness will not exceed 4 weeks—
the Governor may, by instrument in writing, appoint the Lieutenant-Governor or Administrator—
(c) to be the Governor's deputy during that absence or illness; and
(d) in that capacity, to exercise and perform on behalf of the Governor such of the powers and functions of the Governor as are specified or described in the instrument—
during the period specified or described in the instrument.
(2) The Administrator shall not be appointed as deputy under this section unless—
(a) there is a vacancy in the office of Lieutenant-Governor; or
(b) the Lieutenant-Governor—
(i) is absent from the State; or
(ii) is unable or unwilling to act; or
(c) the Lieutenant-Governor has assumed the administration of the government of the State.
(3) The Governor shall not appoint a deputy under this section except with the concurrence of the Premier or, in the absence of the Premier, the Acting Premier.
(4) The appointment of a person as deputy under this section may be revoked by the Governor at any time.
(5) The powers and functions of the Governor shall not be abridged, altered or in any way affected by the appointment of a person as deputy under this section.
S. 6D
inserted by No. 108/1994 s. 4.
6D Oath or Affirmation
For the purposes of this Part—
(a) a reference to the Oath or Affirmation of Allegiance is a reference to an Oath or Affirmation swearing or affirming to be faithful and bear true allegiance to Her Majesty and Her Majesty's heirs and successors according to law; and
(b) a reference to the Oath or Affirmation of Office is a reference to an Oath or Affirmation swearing or affirming well and truly to serve Her Majesty and Her Majesty's heirs and successors in the particular office and to do right to all manner of people after the laws and usages of the State, without fear or favour, affection or ill-will.
S. 6E
inserted by No. 13/1997 s. 3.
6E Offices are not agencies under Freedom of Information Act 1982
Despite anything to the contrary in the Freedom of Information Act 1982, the Governor, the Lieutenant-Governor or the Administrator is not an agency within the meaning of that Act.
No. 6224 s. 10(1).
7 Appropriation for staff and other expenses of the Governor
S. 7(1) amended by Nos 9773 s. 2, 1/1986 s. 4, substituted by No. 5/1992 s. 4,
amended by Nos 109/1994 s. 4(2) (as amended by No. 22/1995 s. 29(2)), 8/2002 s. 3(1).
(1) The Governor is entitled to an annual salary equal to the annual salary payable to a judge of the Supreme Court (other than the Chief Justice, the President of the Court of Appeal or a Judge of Appeal) from time to time.
S. 7(1A) inserted by No. 5/1992 s. 4.
(1A) The expenses of the office of Governor shall be met from money appropriated by the Parliament for that purpose.
S. 7(1AA) inserted by No. 38/2009 s. 18(1).
(1AA) If the Governor enters into an arrangement under Schedule 1A to the Public Administration Act 2004, the Governor may receive the whole or part of his or her total amount of future remuneration as non-salary benefits of an equivalent value.
S. 7(1B) inserted by No. 5/1992 s. 4.
(1B) Despite any other provision made by, or under the authority of, this or any other Act, the right of the Governor to a pension payable by the State is suspended while he or she holds the office of Governor.
S. 7(2) amended by No. 38/2009 s. 18(2).
(2) The salary (including the amount of any non-salary benefits) of the Governor shall be paid out of the Consolidated Fund which is hereby to the necessary extent appropriated accordingly.
S. 7(3) inserted by No. 8/2002 s. 3(2).
(3) Despite the commencement of the amendment of subsection (1) made by section 3(1) of the Constitution (Governor's Salary) Act 2002, subsection (1) (as in force immediately before the commencement of that Act) continues to apply during the continuance in office after that commencement of the person who held office as Governor on 28 June 2001.
S. 7(4) inserted by No. 38/2009 s. 18(3).
(4) Despite the commencement of the amendments of this section made by section 18 of the Superannuation Legislation Amendment Act 2009, this section (as in force immediately before the commencement of that section 18) continues to apply during the continuance in office after that commencement of the person who held office as Governor immediately before that commencement.
S. 7(5) inserted by No. 38/2009 s. 18(3).
(5) In this section, non-salary benefits has the same meaning as it has in clause 3(5) of Schedule 1A to the Public Administration Act 2004.
S. 7A
inserted by No. 9251 s. 2.
7A Governor's pension
S. 7A(1) amended by No. 9721 s. 2(a).
(1) Every Governor who—
(a) has resigned or retired after serving in the office of Governor for a period of not less than five years; or
S. 7A(1)(b) amended by No. 46/1987 s. 6.
(b) having served in the office of Governor for a period less than five years has retired or resigned and the Governor in Council is satisfied that that person's retirement or resignation was due to ill health or physical or mental incapacity to perform the duties of that person's office—
shall subject to subsection (4) be entitled upon resignation or retirement from his office to a pension payable fortnightly at the rate per annum of sixty per centum of the annual salary of the Chief Justice of Victoria for the time being fixed under section 82(1).
(2) Reference to a Governor in subsection (1) of this section shall include a reference to any former Governor provided that any pension to which such former Governor thereby becomes entitled under this section shall only become due and payable on and from the date on which the Constitution (Governor's Pension) Act 1978 comes into operation and not before.
S. 7A(2A) inserted by No. 1/1986 s. 5(1).
(2A) A Governor who—
(a) resigns or retires after serving in the office of Governor for a period of not less than one year but less than five years; and
(b) is not entitled to a pension under subsection (1)(b)—
is, subject to subsection (4), entitled upon resignation or retirement from office to a pension payable fortnightly—
(c) at the rate per annum calculated in accordance with the formula where—
A is the amount of the pension to which the Governor would have been entitled under subsection (1) if the Governor had served in the office for five years; and
B is the number of full years served by the Governor in the office; or
S. 7A(2A)(d) amended by No. 46/1998
s. 7(Sch. 1).
(d) at such higher rate per annum as was determined by the Governor in Council on the recommendation of the Premier and Minister administering Part 7 of the Financial Management Act 1994 when the Governor was appointed or as is so determined when the Governor resigns or retires.
S. 7A(2B) inserted by No. 1/1986 s. 5(1).
(2B) A reference to a Governor in subsection (2A) includes a reference to a former Governor who resigns or retires on or after the commencement of section 5 of the Constitution (Governor's Salary and Pension) Act 1985.
S. 7A(3) amended by Nos 9721 s. 2(b), 1/1986 s. 5(2), 46/1987 s. 6, 23/2008 s. 4(1)(a)(b).
(3) Upon the death—
S. 7A(3)(a) amended by No. 46/1987 s. 6.
(a) of any person who at the time of that person's death was serving in the office of Governor; or
(b) of any person who being a former Governor is entitled to a pension under this section—
that person's partner shall subject to subsection (4) until the partner's death or marriage or until the partner becomes the domestic partner of another person be entitled to a pension payable fortnightly at the rate per annum of—
S. 7A(3)(c) inserted by No. 1/1986 s. 5(2).
(c) if the person was entitled to a pension under subsection (1)—three-eighths of the annual salary of the Chief Justice of Victoria for the time being fixed under section 82(1);
S. 7A(3)(d) inserted by No. 1/1986 s. 5(2).
(d) if the person was entitled to a pension under subsection (2A)—three-eighths of the pension to which the person would have been entitled but for the death.
S. 7A(4) amended by Nos 46/1987 s. 6, 48/1987 s. 7, 23/2008 s. 4(1)(a).
(4) The pension to which a person is entitled under this section shall be reduced by an amount equal to the total of the amounts, if any, that that person is entitled to receive by way of pension or retirement allowance in respect of that person's service or the service of the partner of that person under the Crown whether in right of the State of Victoria or otherwise in respect of public service in any part of the British Commonwealth of Nations but not including any amounts payable to that person under the Commonwealth Veterans' Entitlements Act 1986 as amended from time to time or under any other Act enacted in any part of the British Commonwealth of Nations and proclaimed by proclamation of the Governor in Council published in the Government Gazette as an Act for the purposes of this subsection.
S. 7A(5) amended by Nos 46/1987 s. 6, 23/2008 s. 4(1)(a)(c).
(5) Notwithstanding anything contained in subsection (3) of this section no pension shall be payable to the partner of any former Governor in any case where that partner married or became the domestic partner of that former Governor after that person ceased to be the Governor.
S. 7A(5A)
inserted by No. 23/2008 s. 5.
(5A) Subsections (8) to (22) of section 83 apply with such modifications as are necessary to and in respect of a pension under this section in the same circumstances and to the same extent as those subsections apply to and in respect of a pension under section 83.
S. 7A(6) amended by No. 19/2001 s. 5.
(6) All pensions payable pursuant to this section and any payments of lump sums provided by the commutation of those pensions shall be payable out of the Consolidated Fund which is hereby to the necessary extent appropriated accordingly.
S. 7B
inserted by No. 19/2001 s. 6.
7B Election of Governor to commute future pensions for payment of superannuation contributions surcharge
S. 7B(1) amended by No. 23/2008 s. 4(2).
(1) The Governor may elect in writing to the Minister to have part of his or her future pension entitlement and that of his or her partner under this Act commuted to provide a lump sum for the purposes of payment of the whole of the liability for the superannuation contributions surcharge arising because of the entitlement of the Governor or his or her partner to receive a pension under this Act.
(2) The Governor may by notice in writing to the Minister revoke his or her election under subsection (1).
S. 7C
inserted by No. 19/2001 s. 6.
7C Actuary's first calculation after Governor's election to commute pensions
(1) If an election under section 7B is in operation, within 10 days after the day on which the Governor resigns, retires or dies while in office, the Minister must—
S. 7C(1)(a) amended by No. 23/2008 s. 4(2).
(a) cause an actuary to determine the extent to which the former Governor's pension and any future entitlement of the former Governor's partner to a pension upon the Governor's death otherwise payable under this Act will be reduced subject to subsection (4) and taking into account the lump sum to be provided by the commutation of part of the Governor's total pension entitlement and that of his or her partner at the time at which the former Governor became entitled to his or her pension for the purposes of payment of the whole of the liability for the superannuation contributions surcharge; and
S. 7C(1)(b) amended by No. 23/2008 s. 4(2).
(b) notify the former Governor or, if he or she has died, the former Governor's partner of the actuary's determination under subsection (1)(a).
S. 7C(2) amended by No. 23/2008 s. 4(2).
(2) A former Governor or, if he or she has died, the former Governor's partner may revoke the election under section 7B within 10 days after the Minister's notification under subsection (1)(b).
S. 7C(3) amended by No. 23/2008 s. 4(2).
(3) If an election under section 7B is in operation, the former Governor's pension and any future entitlement of the Governor's partner to a pension upon the Governor's death otherwise payable from time to time under this Act must be reduced to the extent determined under subsection (1).
(4) For the purposes of subsection (1)—
(a) the reduction of the former Governor's pension must not exceed 15% of his or her total pension entitlement under the Act on the day on which the Governor resigned or retired; and
S. 7C(4)(b) amended by No. 23/2008 s. 4(2).
(b) the reduction of any future entitlement of the Governor's partner to a pension must not exceed 15% of an amount equal to the total pension entitlement of the Governor's partner on the day on which the Governor resigned, retired or died while in office; and
(c) each reduction referred to in paragraph (a) and (b) must be a fixed percentage to be applied to the pension entitlement under the Act and, if paragraphs (a) and (b) both apply, the percentage must be the same; and
(d) each reduction must be applied from the entitlement day according to paragraph (a) or (b).
S. 7D
inserted by No. 19/2001 s. 6.
7D Actuary's second calculation after Governor's election to commute pensions and payment of lump sum
S. 7D(1) amended by No. 23/2008 s. 4(2)(3).
(1) If an election under section 7B is in operation, the former Governor or, if he or she has died, the former Governor's partner must, within 60 days after the day on which a superannuation contributions surcharge notice was issued in respect of the former Governor's pension or his or her partner's pension, lodge with the Minister—
S. 7D(1)(a) amended by No. 23/2008 s. 4(2).
(a) a notice that authorises the Minister to pay the lump sum that is equal to the superannuation contributions surcharge on behalf of the former Governor or his or her partner to the Commissioner of Taxation to be applied wholly towards payment of the superannuation contributions surcharge; and
(b) a copy of the superannuation contributions surcharge notice.
(2) Within 10 days after the day on which the Minister received the authorisation and a copy of the superannuation contributions surcharge notice under subsection (1), the Minister must cause an actuary—
(a) to review the determination made under section 7C(1); and
S. 7D(2)(b) amended by No. 23/2008 s. 4(2).
(b) subject to section 7C(4), make any necessary adjustments to the determination and to the pension payable to the former Governor and to any future entitlement of the former Governor's partner to a pension upon the former Governor's death.
(3) If an election under section 7B is in operation and the Minister has received an authorisation under subsection (1), the Minister must cause the amount of the lump sum to be paid to the Commissioner of Taxation within the period stated in the superannuation contributions surcharge notice to be applied towards payment of the superannuation contributions surcharge.
S. 7E
inserted by No. 19/2001 s. 6.
7E Election of former Governor to commute pensions for payment of superannuation contributions surcharge
S. 7E(1) amended by No. 23/2008 s. 4(2).
(1) If no election under section 7B is in operation, a former Governor who is entitled to receive a pension under this Act may elect to have part of his or her pension and that of his or her partner commuted to provide a lump sum for the purposes of payment of the whole or part of the liability for the superannuation contributions surcharge arising because of the entitlement of the former Governor or his or her partner to receive a pension under this Act.
(2) An election under subsection (1) must—
S. 7E(2)(a) amended by No. 23/2008 s. 4(3).
(a) be made in writing to the Minister within 60 days after the day on which a superannuation contributions surcharge notice is issued in respect of a former Governor's pension or his or her partner's pension; and
(b) specify the amount of the lump sum (not exceeding the superannuation contributions surcharge) to be provided by the commutation of the pensions; and
S. 7E(2)(c) amended by No. 23/2008 s. 4(2).
(c) authorise the Minister to pay the lump sum on behalf of the former Governor or his or her partner to the Commissioner of Taxation to be applied wholly towards payment of the superannuation contributions surcharge; and
(d) be accompanied by a copy of the superannuation contributions surcharge notice.
S. 7F
inserted by No. 19/2001 s. 6.
7F Actuary's calculation after former Governor's election to commute pensions
(1) If an election under section 7E is in operation, the Minister must within 10 days after the day on which the Minister received the election—
S. 7F(1)(a) amended by No. 23/2008 s. 4(2).
(a) cause an actuary to determine the extent to which a former Governor's pension and any future entitlement of the former Governor's partner to a pension upon the Governor's death otherwise payable under this Act will be reduced subject to section 7G(3) and taking into account the specified amount of the lump sum to be provided by the commutation of the pensions; and
S. 7F(1)(b) amended by No. 23/2008 s. 4(2).
(b) notify the former Governor or, if he or she has died, the former Governor's partner of the actuary's determination under subsection (1)(a).
S. 7F(2) amended by No. 23/2008 s. 4(2).
(2) A former Governor or, if he or she has died, the former Governor's partner may revoke the election under section 7E within 10 days after the Minister's notification under subsection (1)(b).
S. 7G
inserted by No. 19/2001 s. 6.
7G Payment and commutation of the former Governor's pension
(1) If an election under section 7E is in operation, the Minister must cause the amount of the lump sum to be paid to the Commissioner of Taxation within the period stated in the superannuation contributions surcharge notice to be applied towards payment of the superannuation contributions surcharge.
S. 7G(2) amended by No. 23/2008 s. 4(2).
(2) The former Governor's pension and any future entitlement of the Governor's partner to a pension upon the Governor's death otherwise payable from time to time under this Act must be reduced to the extent determined under section 7F in consequence of the payment of the lump sum.
(3) For the purposes of section 7F—
(a) the reduction of the former Governor's pension must not exceed 15% of his or her total pension entitlement under the Act on the day on which the Governor resigned or retired; and
S. 7G(3)(b) amended by No. 23/2008 s. 4(2).
(b) the reduction of any future entitlement of the Governor's partner to a pension must not exceed 15% of an amount equal to the total pension entitlement of the Governor's partner on the day on which the Governor resigned or retired; and
(c) each reduction referred to in paragraph (a) and (b) must be a fixed percentage to be applied to the pension entitlement under the Act and, if paragraphs (a) and (b) both apply, the percentage must be the same; and
(d) the reduction must be applied from the day of payment of the lump sum under subsection (1).
S. 7H (Heading) amended by No. 23/2008 s. 4(2).
S. 7H
inserted by No. 19/2001 s. 6.
7H Election of Governor's partner to commute pension for payment of superannuation contributions surcharge
S. 7H(1) amended by No. 23/2008 s. 4(2).
(1) If no election made under section 7B or 7E is in operation, a person who is entitled to receive a pension under this Act as the partner of a deceased former Governor may elect to have part of his or her pension commuted to provide a lump sum for the purposes of payment of the whole or part of the liability for the superannuation contributions surcharge arising because of the entitlement of the former Governor to receive a pension under this Act or the entitlement of the deceased former Governor's partner to receive a pension under this Act.
(2) An election under subsection (1) must—
S. 7H(2)(a) amended by No. 23/2008 s. 4(3).
(a) be made in writing to the Minister within 60 days after the day on which a superannuation contributions surcharge notice was issued in respect of the deceased former Governor's pension or his or her partner's pension; and
(b) specify the amount of the lump sum (not exceeding the superannuation contributions surcharge) to be provided by the commutation of the pension; and
S. 7H(2)(c) amended by No. 23/2008 s. 4(2).
(c) authorise the Minister to pay the lump sum on behalf of the person who is entitled to receive a pension under this Act as the partner of a deceased former Governor to the Commissioner of Taxation to be applied wholly towards payment of the superannuation contributions surcharge; and
(d) be accompanied by a copy of the superannuation contributions surcharge notice.
S. 7I (Heading) amended by No. 23/2008 s. 4(2).
S. 7I
inserted by No. 19/2001 s. 6.
7I Actuary's calculation of reduction of pension of former Governor's partner
(1) If an election is made under section 7H, the Minister must within 10 days after the day on which the Minister received the election—
S. 7I(1)(a) amended by No. 23/2008 s. 4(2).
(a) cause an actuary to determine the extent to which the pension of a person who is entitled to receive a pension under this Act as the partner of a deceased former Governor otherwise payable under this Act will be reduced subject to section 7J(3) and taking into account the specified amount of the lump sum to be provided by the commutation of the pension; and
(b) notify the person of the actuary's determination under subsection (1)(a).
S. 7I(2) amended by No. 23/2008 s. 4(2).
(2) A person who is entitled to receive a pension under this Act as the partner of a deceased former Governor may revoke his or her election under section 7H within 10 days after the Minister's notification under subsection (1)(b).
S. 7J (Heading) amended by No. 23/2008 s. 4(2).
S. 7J
inserted by No. 19/2001 s. 6.
7J Payment and commutation of pension of former Governor's partner
(1) If an election under section 7H is in operation, the Minister must cause the amount of the lump sum to be paid to the Commissioner of Taxation within the period stated in the superannuation contributions surcharge notice to be applied towards payment of the superannuation contributions surcharge.
S. 7J(2) amended by No. 23/2008 s. 4(2).
(2) On payment of the lump sum, the pension of a person entitled to receive a pension as the partner of the deceased former Governor otherwise payable from time to time under this Act must be reduced to the extent determined under section 7I.
(3) For the purposes of section 7I—
S. 7J(3)(a) amended by No. 23/2008 s. 4(2).
(a) the reduction of any future entitlement of the Governor's partner to a pension must not exceed 15% of—
S. 7J(3)(a)(i) amended by No. 23/2008 s. 4(2).
(i) an amount equal to the total pension entitlement of the Governor and his or her partner on the day on which the Governor resigned or retired; or
S. 7J(3)(a)(ii) amended by No. 23/2008 s. 4(3).
(ii) in the case of the Governor's death while in office, an amount equal to his or her partner's total pension entitlement on the day on which the Governor died; and
(b) the reduction must be a fixed percentage to be applied to the pension entitlement under the Act; and
(c) the reduction must be applied from the day of payment of the lump sum under subsection (1).
Constitution Act s. XXVIII.
8 Convocation, prorogation and dissolution
(1) The Governor may by proclamation or otherwise fix such places within Victoria and subject to this Act such times for holding every session of the Council and Assembly and may vary and alter the same respectively in such manner as he thinks fit.
S. 8(2) amended by No. 10106 s. 4(a).
(2) Subject to subsection (3) the Governor may if he thinks fit by proclamation or otherwise from time to time—
(a) prorogue the Council the Assembly or both the Council and the Assembly; or
(b) dissolve the Assembly.
S. 8(3) inserted by No. 10106 s. 4(b), substituted by No. 2/2003 s. 3.
(3) The Governor may not dissolve the Assembly (including the Assembly last elected before the Constitution (Parliamentary Reform) Act 2003 receives the Royal Assent) unless—
(a) the Assembly is dissolved in accordance with section 8A; or
(b) the Premier has given advice to the Governor under section 65E(2) to dissolve the Assembly.
S. 8(4)–(6) inserted by No. 10106 s. 4(b), repealed by No. 2/2003 s. 3.
* * * * *
S. 8A inserted by No. 2/2003 s. 4.
8A Dissolution of Assembly after a no confidence motion
(1) The Assembly may be dissolved if—
(a) a motion of no confidence in the Premier and the other Ministers of State for the State of Victoria is passed by the Assembly; and
(b) during the period commencing on the day of the passage of the motion of no confidence and ending 8 clear days after that day, the Assembly has not passed a motion of confidence in the then Premier and the other Ministers of State for the State of Victoria.
(2) Notice of a proposed motion of no confidence under subsection (1)(a) must be given at least 3 clear days before it is moved.
(3) After a motion of no confidence under subsection (1)(a) is passed, unless a motion of confidence is passed under subsection (1)(b), the Assembly may not be—
(a) prorogued before the end of the period specified in subsection (1)(b); or
(b) adjourned for a period extending beyond the end of the period specified in subsection (1)(b).
No. 6224 s. 5.
9 Demise of the Crown not to dissolve Parliament
The Parliament in being at any demise of the Crown shall not be determined or dissolved by such demise, but shall continue so long as it would have continued but for such demise, unless it is sooner prorogued or dissolved by the Governor.
No. 6224 s. 4.
10 Certain acts not to be affected by a demise of the Crown
All things done within Victoria at any time after any demise of the Crown but before the Governor by his proclamation published in the Government Gazette has notified such demise and which but for this Act might be affected by such demise shall have the same effect and be of the same force as if no such demise had happened.
No. 6224 s. 6.
11 All appointments etc. by the Governor to continue in force notwithstanding demise of the Crown
(1) Every commission warrant or other authority for the exercise of any office or employment of any kind or nature within Victoria issued or exercised by the Governor or the Governor in Council or by any other person in the name and on behalf of Her Majesty in virtue of his office or under the authority of any Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland or of the Parliament of Victoria or of any rules or regulations made thereunder respectively shall continue in full force notwithstanding any demise of the Crown and be of the same effect as if no such demise had happened.
(2) No action suit or other process or proceeding civil or criminal in or to which Her Majesty is a party or which has been commenced or carried on in her name or by her authority shall by reason of her demise abate discontinue or be in any manner affected; but every such action suit process or proceeding shall be carried on enforced or otherwise completed or acted on in the name of the reigning Sovereign for the time being and as if such demise had not happened.
(3) The Public Seal of the State and other Public Seals in being at the time of the demise of the Crown shall continue and be made use of as if no such demise had happened.
No. 6224 s. 8.
12 Exercise by the Governor of powers given to and reservation in favour of Her Majesty
Where in and by any grant or lease from the Crown or deed or document any exception or reservation is made in favour of or any power is given to Her Majesty or Her Majesty her heirs and successors, the Governor may on behalf of Her Majesty or Her Majesty her heirs and successors take the benefit and advantage of any such exception or reservation and may exercise any such power in the same manner as Her Majesty or Her Majesty her heirs and successors might have done.
S. 12A inserted by No. 10096 s. 4(4)(Sch. item 6(a)), substituted by No. 70/1992 s. 3, repealed by No. 108/1994 s. 6(1)(b).
* * * * *
No. 6224 s. 7.
13 Contracts by or on behalf of Her Majesty
All contracts of every kind lawfully entered into by or on behalf of Her Majesty or any of her successors to the Crown with any person body or authority and all benefit and advantage thereof and all liability in respect thereof shall attach and belong to the heirs and successors of Her Majesty or of such successors (as the case may be) although they are not expressly named in any such contract.
Constitution Act s. XXXVI.
14 Governor's amendments
The Governor may transmit by message to the Council or the Assembly for its consideration any amendment which he desires to be made in any Bill presented to him for Her Majesty's assent and all such amendments shall be taken into consideration in such convenient manner as the standing rules and orders of the Council and the Assembly provide.
Part II—The Parliament
Division 1—Constitution and powers
No. 6224 s. 11.
15 Parliament
The legislative power of the State of Victoria shall be vested in a Parliament, which shall consist of Her Majesty, the Council, and the Assembly, to be known as the Parliament of Victoria.
Constitution Act s. I.
16 Legislative power of Parliament
The Parliament shall have power to make laws in and for Victoria in all cases whatsoever.
S. 16A inserted by No. 2/2003 s. 12.
16A The principle of Government mandate
(1) It is the intention of the Parliament that regard should be given to the following principle—
The Council as a House of Review will exercise its powers in recognition of the right and obligation of the current Government to implement—
(a) the Government's specific mandate—the policies, promises and initiatives which were publicly released by or on behalf of the Government during the last election campaign; and
(b) the Government's general mandate—to govern for and on behalf of the people of Victoria.
(2) The principle in subsection (1) is not to be construed as limiting the powers of the Council, the Assembly or the Parliament.
Constitution Act s. LIV.
17 Waste lands of the Crown
Subject to this Act the Parliament may make laws regulating the sale letting disposal and occupation of the waste lands of the Crown within Victoria and of all mines and minerals which are within the jurisdiction control or disposition of Her Majesty in and adjacent to Victoria.
Constitution Act ss LX and LXI.
18 Power for Parliament to alter this Act
S. 18(1) amended by No. 2/2003 s. 17(1).
(1) Subject to this section, the Parliament may by any Act repeal alter or vary all or any of the provisions of this Act and substitute others in lieu thereof.
S. 18(1A) inserted by No. 2/2003 s. 17(2).
(1A) In this section—
referendum means a referendum conducted in accordance with Part 9A of the Electoral Act 2002;
special majority means 3/5ths of the whole number of the members of the Assembly and of the Council respectively.
S. 18(1B) inserted by No. 2/2003 s. 17(2).
(1B) It shall not be lawful to present to the Governor for Her Majesty's assent any Bill by which—
(a) this subsection or subsection (1A), (1BA), (1C) or (3); or
(b) Subdivision 1 of Division 5 of Part II; or
(c) Subdivision 2 of Division 5 of Part II; or
(d) Subdivision 1 of Division 6 of Part II; or
(e) Subdivision 2 of Division 6 of Part II; or
(f) Subdivision 3 of Division 6 of Part II; or
(g) section 41; or
(h) Division 9 of Part II; or
(i) Division 9A of Part II; or
(j) Part IIA; or
(k) section 75(1); or
(l) Part IIIA; or
(m) Part IV; or
(n) Division 3 of Part V; or
(o) Part VA; or
(p) any provision substituted for any provision specified in paragraphs (a) to (o)—
may be repealed, altered or varied unless the Bill has been passed by the Assembly and the Council and approved by the majority of the electors voting at a referendum.
S. 18(1BA) inserted by No. 2/2003 s. 17(2).
(1BA) For the purposes of subsection (1B), a provision of a Bill is not to be taken to repeal, alter or vary Part IIA unless the Bill expressly refers to that Part in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary Part IIA.
S. 18(1C) inserted by No. 2/2003 s. 17(2).
(1C) A Bill to which subsection (1B) applies must be submitted to a referendum on a day not sooner than 59 days after the Bill has been passed by the Assembly and the Council.
S. 18(2) amended by Nos 9254 s. 2(b), 35/1991 s. 5(1), 62/1999 s. 10, 53/1999 s. 4, substituted by No. 2/2003 s. 17(2), amended by No. 37/2003 s. 4(1)(d).
(2) It shall not be lawful to present to the Governor for Her Majesty's assent any Bill by which—
S. 18(2)(aa) inserted by No. 73/2004 s. 4.
(aa) section 1A; or
(a) Part I; or
(b) Division 1 of Part II (other than section 18); or
S. 18(2)(c) amended by No. 37/2003 s. 4(1)(a).
(c) this subsection or subsection (4) or (6); or
(d) Subdivision 1 of Division 7 of Part II; or
(e) Subdivision 2 of Division 7 of Part II; or
(f) Section 61A; or
S. 18(2)(fa) inserted by No. 37/2003 s. 4(1)(b).
(fa) Part VII; or
S. 18(2)(fab) inserted by No. 8/2021 s. 3.
(fab) Part VIII; or
S. 18(2)(fb) inserted by No. 16/2005 s. 3(1).
(fb) Part IIIAA; or
S. 18(2)(g) amended by Nos 37/2003 s. 4(1)(c), 16/2005 s. 3(2).
(g) any provision substituted for any provision specified in paragraphs (a) to (fb)—
may be repealed, altered or varied or any Bill by which—
S. 18(2)(h) inserted by No. 37/2003 s. 4(1)(d).
(h) responsibility for ensuring the delivery of a water service (within the meaning of Part VII) may be transferred to a person or body that is not a public authority (within the meaning of that Part) or the accountability to a responsible Minister of the Crown of such an authority for ensuring the delivery of such a service may be removed—
unless the third reading of the Bill is passed by a special majority.
S. 18(2AA) inserted by No. 2/2003 s. 17(2).
(2AA) It shall not be lawful to present to the Governor for Her Majesty's assent any Bill by which—
(a) this subsection or subsection (2A) or (5); or
(b) Part III (other than section 75(1) or 85); or
(c) any provision substituted for any provision specified in paragraph (a) or (b)—
may be repealed, altered or varied unless the third reading of the Bill is passed by an absolute majority.
S. 18(2A) inserted by No. 35/1991 s. 5(2), amended by No. 2/2003 s. 17(3).
(2A) A provision of a Bill by which section 85 may be repealed, altered or varied is void if the third reading of the Bill is not passed with the concurrence of an absolute majority of the whole number of the members of the Council and of the Assembly respectively.
S. 18(3) substituted by No. 2/2003 s. 17(4).
(3) Any Bill dealing with any of the matters specified in subsection (1B) which has not been approved in accordance with that subsection is void.
S. 18(4) substituted by No. 2/2003 s. 17(4).
(4) Any Bill dealing with any of the matters specified in subsection (2) which has not been passed in accordance with that subsection is void.
S. 18(5) inserted by No. 2/2003 s. 17(4).
(5) Any Bill dealing with any of the matters specified in subsection (2AA) which has not been passed in accordance with that subsection is void.
S. 18(6) inserted by No. 37/2003 s. 4(2).
(6) Subsection (2) does not apply to any Bill to—
(a) enable a public authority (within the meaning of Part VII) to enter into an arrangement of any kind with a person or body (including an independent contractor) relating to the delivery of a water service (within the meaning of that Part); or
(b) alter the structure, composition or membership of a public authority (within the meaning of Part VII) that has responsibility for ensuring the delivery of a water service (within the meaning of that Part) if the alteration does not affect its status or the status of a successor body as such a public authority accountable to a responsible Minister of the Crown for ensuring the delivery of that service.
Division 2—Privileges of Parliament
No. 6224 s. 12.
19 Privileges powers etc. of Council and Assembly
(1) The Council and the Assembly respectively and the committees and members thereof respectively shall hold enjoy and exercise such and the like privileges immunities and powers as at the 21st day of July, 1855 were held enjoyed and exercised by the House of Commons of Great Britain and Ireland and by the committees and members thereof, so far as the same are not inconsistent with any Act of the Parliament of Victoria, whether such privileges immunities or powers were so held possessed or enjoyed by custom statute or otherwise.
(2) The Parliament may by Act legislate for or with respect to the privileges immunities and powers to be held enjoyed and exercised by the Council and the Assembly and by the committees and the members thereof respectively.
No. 6224 s. 13.
(3) Any copy of the Journals of the House of Commons printed or purporting to be printed by the order or printer of the House of Commons shall be received as prima facie evidence without proof of its being such copy, upon any inquiry touching the privileges immunities and powers of the Council or the Assembly or of any committee or member thereof respectively.
S. 19A inserted by No. 9695 s. 2.
19A Power to the Council and the Assembly and committees and joint committees thereof to administer oaths to witnesses
S. 19A(1) amended by No. 9765 s. 10, substituted by No. 110/2003 s. 55(1).
(1) In this section, committee means a committee of the Council or of the Assembly or a joint committee of the Council and the Assembly or a sub-committee of a Joint Investigatory Committee within the meaning of the Parliamentary Committees Act 2003 or a member of a Joint Investigatory Committee or such a sub-committee who is empowered to take evidence under section 28 or 32 of that Act.
(2) The Council or the Assembly may administer an oath to the witnesses examined at the bar of the Council or the Assembly (as the case may be).
S. 19A(3) amended by No. 44/2006 s. 23(1).
(3) Any committee may administer an oath to the witnesses examined before such committee including by means of audio link or audio visual link in accordance with section 28(4A) of the Parliamentary Committees Act 2003.
(4) Any oath or affirmation taken or made by any witness before the Council or the Assembly or a committee of the whole Council or of the whole Assembly may be administered by the Clerk of the Council or the Clerk of the Assembly (as the case may be) at the table.
S. 19A(5) amended by No. 9765 s. 10, substituted by No. 110/2003 s. 55(2).
(5) Any oath or affirmation taken or made by any witness before any other committee may be administered by—
(a) the chairperson of the committee; or
(b) the clerk attending the committee; or
S. 19A(5)(c) amended by No. 44/2006 s. 23(2).
(c) a member of a Joint Investigatory Committee or sub-committee of a Joint Investigatory Committee within the meaning of the Parliamentary Committees Act 2003 empowered to take evidence under that Act or if section 28(4A)(b) of that Act applies, a person authorised by the Joint Investigatory Committee for the purposes of that section.
(6) In any case where a witness, if to be examined before the Supreme Court, would be permitted to make a solemn affirmation or declaration or to give evidence in any other way than upon oath, a witness to be examined under this section shall be in like manner allowed to give evidence upon affirmation or declaration or otherwise, as aforesaid.
(7) No action shall be maintainable against any witness who has given evidence, whether on oath or otherwise, under the authority of this Act, for or in respect of any defamatory words spoken by him while giving such evidence.
(8) Every person examined under this section who wilfully gives false evidence shall be liable to the penalties of perjury.
(9) Nothing in this section shall derogate from any power or privilege of either House, or of the members or committees of either House or of the joint committees of the Council and the Assembly, but no person shall be liable to be proceeded against or punished twice for the same offence whether as a breach of privilege or as an offence against this section or any other enactment or at common law.
Division 3—Summoning of Parliament. Oath of allegiance
No. 6224 s. 50.
20 Summoning of Parliament
The Governor may by proclamation summon the Council and the Assembly to meet for the despatch of the business of the Parliament on any day not less than six days from the date of such proclamation or in a case of emergency upon such shorter notice as he may think fit.
No. 6224 s. 51.
21 Effect of summoning of Parliament
When the Governor by proclamation summons the Council and the Assembly for the despatch of the business of the Parliament as provided by the last preceding section the Council and the Assembly shall thereupon stand adjourned to the day and time declared in such proclamation notwithstanding any previous adjournment of the Council and the Assembly or either of them to any later day and notwithstanding any former law usage or practice to the contrary.
No. 6224 s. 52.
22 How in case of adjournment orders of either House shall be deemed to have been appointed
All orders made by the Council or the Assembly and appointed for the day to which the Council or the Assembly (as the case may be) has been adjourned or to any day or days subsequent thereto other than and except any order or orders specially appointed for particular days and declared to be so fixed notwithstanding any meeting under the provisions of section 20 and other than any order made under the express provisions of any Act shall be deemed and taken to have been appointed for the day on which the Council and the Assembly shall meet in pursuance of such proclamation.
No. 6224 s. 53.
23 Oath of allegiance
(1) No member either of the Council or the Assembly shall be permitted to sit or vote therein respectively until he has taken and subscribed before the Governor or some person authorized by the Governor in that behalf the oath or affirmation in the Second Schedule.
(2) Whenever the demise of the Crown is notified by the Governor to the Council and the Assembly, the members of the Council and of the Assembly shall before they are permitted to sit or vote therein respectively take and subscribe the like oath or affirmation to the successor for the time being to the Crown.
Division 4—Presiding officers
24 As to term of office and power of presiding officers
S. 24(1) amended by No. 27/2017 s. 57(a).
(1) If the presiding officer of the Council or the Assembly resigns his office or his seat, he shall, for the purposes of the exercise of any powers or functions by the presiding officer of that House under this or any other Act or under the standing orders or the joint standing orders be deemed to continue to be the presiding officer of that House (whether or not that House expires or is dissolved after he so resigns) until the day before a presiding officer is to be chosen by that House.
S. 24(2) amended by No. 2/2003 s. 49(2).
(2) If the President of the Council ceases to be a member of the Council by reason of the expiration of his term of office, he shall, for the purposes of the exercise of any powers or functions by the President of the Council under this or any other Act or under the standing orders or the joint standing orders be deemed to continue to be the President of the Council until the day before a President is to be chosen by the Council.
S. 24(3) amended by Nos 37/2013 s. 18(2), 27/2017 s. 57(a).
(3) If—
(a) the presiding officer of either House; or
(b) a person who, by virtue of this section, is deemed to be, for the purposes of the exercise of any powers or functions of the presiding officer of either House, to be or to continue to be the presiding officer of that House—
dies, is absent from Victoria or is incapable by reason of illness leave of absence or other unavoidable cause from exercising any powers or functions conferred or imposed upon the presiding officer, the deputy presiding officer of that House shall, for the purposes of the exercise of any powers or functions of the presiding officer of that House, be deemed to be the presiding officer of that House (whether or not that House expires or is dissolved after the death or during the absence or incapacity) until a presiding officer is chosen by that House or the absence or incapacity terminates, as the case may be.
S. 24(4) amended by No. 37/2013 s. 18(2).
(4) For the purposes of subsection (3) where there is no deputy presiding officer of a House, the person who last held office as deputy presiding officer of that House shall be deemed to continue to be deputy presiding officer of that House until a deputy presiding officer of that House is appointed by that House.
S. 24(5) amended by Nos 2/2003 s. 7(3)(a)(b), 27/2017 s. 57(b).
(5) Where the Assembly expires or is dissolved, the person, if any, who is the presiding officer of a House immediately before the expiry or dissolution shall, for the purposes of the exercise of any powers or functions of the presiding officer of that House under this or any other Act or under the standing orders or the joint standing orders, be deemed to continue to be the presiding officer of that House until the day before a presiding officer is to be chosen by that House.
S. 24(6) amended by Nos 2/2003 s. 7(4)(a)(b), 37/2013 s. 18(2), 27/2017 s. 57(c).
(6) If, after the Assembly has expired or been dissolved the person (if any) who was the presiding officer of a House immediately before the expiry or dissolution dies, is absent from Victoria or is incapable by reason of illness of exercising any powers or functions under this or any other Act or under the standing orders or the joint standing orders, the person who last held office as deputy presiding officer of that House shall, for the purposes of the exercise of any powers or functions by the presiding officer of that House under any such Act or Order be deemed to be the presiding officer of that House until a presiding officer is chosen by that House or the absence or incapacity terminates, as the case may be.
Division 5—Legislative Council
No. 6224 s. 67.
25 Definitions
In this Division unless inconsistent with the context or subject-matter—
member means a member of the Council;
seat means the right of sitting and voting as a member in the Council.
Pt 2 Div. 5 Subdiv. (1) (Heading) amended by No. 2/2003 s. 49(3).
Subdivision (1)—Regions and members
No. 6224 s. 68.
S. 26 substituted by No. 2/2003 s. 8.
26 Number of members of the Council
(1) This section and section 27 apply in respect of the first Council to be elected after the Constitution (Parliamentary Reform) Act 2003 receives the Royal Assent and each subsequent Council.
(2) The Council is to consist of 40 members who are to be representatives of, and elected by, the electors of the respective regions.
No. 6224 s. 69.
S. 27 amended by Nos 9892 s. 2(1), 24/1999 s. 44(2)(3), substituted by No. 2/2003 s. 8.
27 Division of Victoria into 8 regions
(1) The State of Victoria is to be divided into 8 regions each of which is to return 5 members to the Council.
(2) Each region must—
(a) consist of 11 districts; and
(b) have a boundary that is contiguous with the boundaries of the districts that constitute the region.
(3) The Electoral Boundaries Commission must in accordance with the Electoral Boundaries Commission Act 1982—
(a) divide the State of Victoria into regions; and
(b) publish the name and boundaries of each region in the Government Gazette.
S. 27A inserted by No. 2/2003 s. 9.
27A Filling of casual vacancies in the Council
(1) Subject to this section, if a casual vacancy occurs in the seat of a member of the Council, a person must be chosen to occupy the vacant seat by a joint sitting of the Council and the Assembly.
(2) A joint sitting of the Council and the Assembly need not be held if the casual vacancy occurs 3 months or less before the day on which the seat would have become vacant due to the expiry of the Assembly.
(3) Subsection (4) applies if a casual vacancy occurs in the seat of a member of the Council who was at the time that the member was elected endorsed as a candidate in the election by a registered political party the name of which was printed adjacent to the name of the candidate on the ballot-paper under section 74 of the Electoral Act 2002.
(4) If this subsection applies, the joint sitting of the Council and the Assembly must choose a member of the registered political party referred to in subsection (3) nominated by that registered political party if the registered political party nominates a member of the registered political party for the vacancy who would otherwise be qualified to be elected a member of the Council.
(5) If subsection (4) does not apply, the joint sitting of the Council and the Assembly must choose a person who—
(a) would otherwise be qualified to be elected as a member of the Council and has resided in the region to which the vacancy relates for a period of not less than 12 months immediately before the joint sitting; and
(b) has not been a member of a political party at any time during the period of 5 years immediately before the joint sitting.
(6) Subject to subsection (7), the joint sitting of the Council and the Assembly is to be conducted in accordance with the rules adopted by the members present at the joint sitting.
(7) At the joint sitting of the Council and the Assembly—
(a) the members have the same privileges and immunities as the members of the Assembly in relation to proceedings before that House;
(b) a question—
(i) other than a question to which subparagraph (ii) applies, is to be decided by a majority of the votes cast by the members present at the joint sitting;
(ii) for the purpose of subsection (5) is to be decided by a special majority being 3/5ths of the whole number of members of both the Council and the Assembly present at the joint sitting;
(c) in the event of an equality of votes on a question, the question is to be taken to have been determined in the negative.
No. 6224 ss 70–72.
S. 28 substituted by Nos 10106 s. 5, 2/2003 s. 5.
28 Duration of the Council
(1) The Council which is in existence immediately before the Constitution (Parliamentary Reform) Act 2003 receives the Royal Assent shall exist and continue until the dissolution or other lawful determination of the Assembly last elected before that Royal Assent is received.
(2) The Council (other than the Council to which subsection (1) applies) shall exist and continue until the dissolution or other lawful determination of the Assembly.
Constitution Act s. XVI.
29 Member of Assembly not capable of being member of Council
A member of the Assembly may not be elected to or sit or vote as a member of the Council.
S. 29A inserted by No. 2/2003 s. 10.
29A Title of members
(1) A member of the Council who is not the President or a member of the Executive Council is not entitled to be styled "The Honourable".
(2) Nothing in subsection (1) affects any privilege or right of a person who ceased to be a member of the Council before the commencement of section 10 of the Constitution (Parliamentary Reform) Act 2003 to be styled "The Honourable".
Constitution Act s. VIII.
30 Resignation of members
A member may resign his seat by a letter addressed to the Governor and on its receipt by the Governor the seat of such member shall become vacant.
Subdivision (2)—Proceedings of the Council
Constitution Act s. VI.
31 Election of President
(1) The Council, if there is no President, shall before proceeding to the despatch of any other business elect a member of the Council to be the President.
(2) In the case of the death resignation or removal by a vote of the Council of the President the Council shall before proceeding to the despatch of any other business elect some other member to be the President.
(3) The President so elected shall preside at the meetings of the Council except as may be provided by the standing rules and orders.
Constitution Act s. IX.
32 Quorum of Legislative Council
S. 32(1) amended by No. 2/2003 s. 11(1).
(1) The Council shall not proceed to the despatch of business unless there be present inclusive of the President one-third at least of the members.
S. 32(2) substituted by No. 2/2003 s. 11(2).
(2) Subject to subsection (2A) and section 18, all questions arising in the Council shall be determined by a majority of the members present including the President.
S. 32(2A) inserted by No. 2/2003 s. 11(2).
(2A) The President has a deliberative vote but not a casting vote.
(3) The Chairman of Committees shall be the Deputy President of the Council.
Division 6—Legislative Assembly
33 Definitions
In this Division unless inconsistent with the context or subject-matter—
member means a member of the Assembly;
seat means the right of sitting and voting as a member in the Assembly.
Subdivision (1)—Districts and members
No. 6224 s. 85.
34 Constitution of Assembly
The Assembly shall consist of members who shall be representatives of and be elected by the electors of the respective districts.
No. 6224 ss 86, 87.
35 Division of Victoria into electoral districts
S. 35(1) amended by No. 9892 s. 3(1).
(1) Victoria shall be divided into 88 districts each of which shall return one member to the Assembly.
S. 35(1A) inserted by No. 24/1999 s. 44(4).
(1A) The abolition of subdivisions does not affect the election of members of the Assembly or the enrolment of electors in respect of a district.
(2) The name and boundaries of each district shall be published in the Government Gazette.
S. 35(3)(4) repealed by No. 24/1999 s. 44(2).
* * * * *
Constitution Act s. XVI.
36 Member of Council not capable of being member of Assembly
A member of the Council may not be elected to or sit or vote as a member of the Assembly.
Constitution Act s. XXIII.
37 Resignation of members
A member may resign his seat by a letter addressed to the Speaker and on its receipt by the Speaker the seat of such member shall become vacant.
Subdivision (2)—Duration of the Assembly
No. 6224 s. 101.
S. 38 substituted by Nos 10106 s. 6, 2/2003 s. 6.
38 Duration of Assembly
(1) Subject to subsection (2), the Assembly last elected before the Constitution (Parliamentary Reform) Act 2003 receives the Royal Assent and each subsequent Assembly shall expire on the Tuesday which is 25 days before the last Saturday in November which is nearest to the fourth anniversary of the election day on which it was elected.
(2) If the previous Assembly is dissolved, the subsequent Assembly shall expire on the Tuesday which is 25 days before the last Saturday in November which is nearest to the last anniversary of the election day on which it was elected that occurs not more than 4 years after it was elected.
S. 38A inserted by No. 2/2003 s. 6.
38A Date of general election
(1) The writs issued under the Electoral Act 2002 for a general election of the Assembly and Council must name as the election day—
(a) if the previous Assembly expired, the last Saturday in November nearest to the fourth anniversary of the election day on which the previous Assembly was elected or if section 38(2) applies, the Saturday referred to in that section; or
(b) if the previous Assembly was dissolved, a Saturday within the period that starts 15 days after the final nomination day and ends 30 days after the final nomination day.
(2) Despite subsection (1)(a), in exceptional circumstances, on the recommendation of the Premier with the agreement of the Leader of Her Majesty's Opposition, the Governor may postpone the election day under subsection (1)(a) to another Saturday as nearest as possible to the fourth anniversary of the election day on which the previous Assembly was elected or to another Saturday as nearest as possible to the Saturday referred to in section 38(2) as the case may be.
Subdivision (3)—Proceedings of the Assembly
Constitution Act s. XX.
39 Election of Speaker
(1) The Assembly shall at its first meeting after a general election and before proceeding to the despatch of any other business elect a member of the Assembly to be Speaker.
(2) In case of the death resignation or removal by a vote of the Assembly of the Speaker the Assembly shall before proceeding to the despatch of any other business elect some other member to be Speaker.
(3) The Speaker shall preside at the meetings of the Assembly except as may be provided by the standing rules and orders.
Constitution Act s. XXI.
40 Quorum of Assembly
(1) The Assembly shall not proceed to the dispatch of business unless there be present exclusive of the Speaker at least twenty of the members.
(2) Subject to section 18 all questions arising in the Assembly shall be decided by a majority of members present other than the Speaker and when the votes are equal the Speaker shall have a casting vote.
(3) The Chairman of Committees shall be the Deputy Speaker of the Assembly.
Division 7—Provisions applicable to both the Council and the Assembly
Constitution Act s. XXIX.
41 Sessions of Council and Assembly
There shall be a session of the Council and the Assembly once at least in every year so that a period of twelve calendar months shall not intervene between the last sitting of the Council and the Assembly in one session and the first sitting of the Council and the Assembly in the next session.
Constitution Act s. XXII.
S. 42 amended by No. 2/2003 s. 49(4).
42 Quorum of Houses may act though election may have failed
No omission or failure to elect a member or members in or for any region or district nor the vacating of the seat or avoiding of the election of any such member or members shall be deemed or taken to make either the Council or the Assembly (as the case may be) incomplete or to invalidate any proceedings thereof or to prevent the Council or the Assembly from meeting and despatching business so long as there shall be a quorum of members present.
Constitution Act s. XXXIV.
43 Standing rules and orders
(1) The Council and the Assembly may from time to time make amend or vary standing rules and orders for or with respect to—
(a) the manner in which the Council and the Assembly shall be presided over in case of the absence of the President and Deputy President or Speaker and Deputy Speaker (as the case may be);
(b) the mode in which the Council and the Assembly shall communicate;
(c) the proper passing intituling and numbering of the Bills introduced into and passed by the Council and the Assembly;
(d) the proper presentation of such Bills to the Governor for Her Majesty's assent and the consideration of any amendment that the Governor desires to be made;
(e) the due publication of all proposed proceedings in the Council and the Assembly; and
(f) the conduct of all business and proceedings in the Council and the Assembly severally and collectively.
(2) A standing rule or order affecting the mode of communication between the Council and the Assembly or the proceedings of the Council and the Assembly collectively shall be of no force unless the same shall have been adopted both by the Council and the Assembly.
Subdivision (1)—Membership of the Council and the Assembly
No. 6224
ss 73, 99.
44 Membership of the Council and the Assembly
S. 44(1) amended by No. 10146 s. 4, substituted by No. 23/2002 s. 189(2).
(1) Subject to this Act, a person is qualified to be elected a member of the Council or the Assembly if, at the close of the roll in relation to the election for which the person is a candidate—
(a) the person is enrolled on the register of electors within the meaning of the Electoral Act 2002 and is entitled to vote at an election; and
(b) the person's principal place of residence is in Victoria.
(2) An elector who—
(a) is a judge of a court of Victoria;
(b) is a member of either House of the Parliament of the Commonwealth;
(c) is an undischarged bankrupt—
shall not be qualified to be elected a member of the Council or the Assembly.
Constitution Act s. XI.
S. 44(3) amended by No. 9576 s. 11(1).
(3) An elector who has been convicted or found guilty of an indictable offence which by virtue of any enactment is punishable upon first conviction by imprisonment for life or for a term of five years or more committed by him when of or over the age of 18 years under the law of Victoria or under the law of any other part of the British Commonwealth of Nations shall not be qualified to be elected a member of the Council or the Assembly.
Constitution Act s. XXVI.
No. 6224 s. 74.
45 Avoidance of election of unqualified person
(1) If a person who is not qualified to be elected a member of the Council or the Assembly (as the case may be) is elected and returned as such a member the election and return shall be declared by the Court of Disputed Returns to be void.
(2) If a person so elected and returned contrary to the provisions of this Part sits or votes in the Council or the Assembly he shall be guilty of an offence against this Act.
Penalty: $500.
Constitution Act s. XXIV.
46 Vacation of seat
If a member of the Council or the Assembly—
(a) ceases to be qualified to be elected a member of the Council or the Assembly; or
(b) fails to attend the Council or the Assembly without the permission of the Council or the Assembly (as the case may be) for one entire session—
his seat in the Council or the Assembly shall become vacant.
No. 6224 s. 48.
47 Member of Victorian Parliament elected to Federal Parliament
If a member of the Council or the Assembly is elected a member of either House of the Parliament of the Commonwealth his seat in the Council or the Assembly shall become vacant—
(a) if a petition against the return of the member to the Parliament of the Commonwealth is not lodged within the time allowed for the lodging of such petitions, upon the expiration of the time so allowed; or
(b) if a petition is lodged within the time allowed for the lodging of such petitions, upon the final determination of that petition in favour of the member.
Subdivision (2)—Qualification of electors for the Council and the Assembly
No. 6224
ss 76, 77, 102, 103.
S. 48 amended by Nos 9077 s. 2, 9427 s. 6(1)(Sch. 5 item 24),
9826 s. 2, substituted by No. 10146 s. 5.
48 Qualification of electors for the Council and the Assembly
(1) Subject to this Act, a person who—
(a) is—
(i) an Australian citizen; or
S. 48(1)(a)(ii) substituted by No. 61/1986 s. 3(a).
(ii) a person (other than an Australian citizen) who would, if the relevant citizenship law had continued in force, be a British subject within the meaning of that relevant citizenship law and whose name was, at any time within the three months immediately before 26 January 1984, enrolled on—
(A) an electoral roll for an electoral district of the Assembly; or
(B) an electoral roll maintained under any one of the Commonwealth Acts known as the Commonwealth Electoral Act 1918, the Australian Capital Territory Representation (House of Representatives) Act 1973 and the Northern Territory Representation Act 1922; and
(b) is of the full age of eighteen years—
shall be entitled to enrol as an elector for the Council and the Assembly.
S. 48(2) amended by No. 23/2002 s. 189(4).
(2) A person who—
(a) has been convicted of treason under the law of Victoria or treason or treachery under the law of the Commonwealth or a State or Territory of the Commonwealth and has not been pardoned;
S. 48(2)(b) substituted by No. 23/2002 s. 189(3).
(b) is serving a sentence of 5 years imprisonment or more for an offence against the law of Victoria, the Commonwealth or another State or a Territory of the Commonwealth;
(c) is—
(i) the holder of a temporary entry permit for the purposes of the Commonwealth Act known as the Migration Act 1958; or
(ii) a prohibited immigrant under that Act; or
(d) by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting—
is not entitled to be enrolled as an elector for the Council or Assembly.
S. 48(2A) inserted by No. 10244 s. 10, amended by No. 43/1996
s. 65(Sch.
item 4.1), repealed by No. 23/2002 s. 189(5).
* * * * *
(3) Any entitlement to enrolment shall be subject to compliance with any law relating to enrolment for and voting at elections for the Council or Assembly.
(4) Subject to this section, the Parliament may make such laws as it deems necessary or expedient for or with respect to enrolment for and voting at elections for the Council or Assembly.
S. 48(5) inserted by No. 61/1986 s. 3(b).
(5) In subsection (1), relevant citizenship law means the Australian Citizenship Act 1948 of the Commonwealth as amended and in force immediately before the day fixed by Proclamation for the purposes of section 2(2) of the Australian Citizenship Amendment Act 1984 of the Commonwealth and the regulations in force immediately before that day under the Australian Citizenship Act 1948 as so amended and in force.
Division 8—Offices and places of profit
No. 6224 s. 14.
S. 49 amended by No. 38/2005 s. 14.
49 Public officers not to sit in Parliament except as mentioned
Except where express provision is made to the contrary by any Act or enactment no person who holds any office or place of profit under the Crown (whether in right of Victoria or any other capacity), or is in any manner employed in the public service of Victoria or of the Commonwealth for salary wages fees or emolument, shall sit or vote in the Council or the Assembly; and the election of any such person to be a member of the Council or the Assembly shall be null and void.
No. 6224 s. 15.
50 Salaried officers in Parliament
S. 50(1) amended by Nos 8834 s. 2(a), 59/1992 s. 3(a).
(1) The Governor may from time to time appoint any number of officers so that the entire number shall not at any one time exceed 22 who shall be entitled to be elected members of either House of the Parliament and to sit and vote therein.
(2) Such officers shall be responsible Ministers of the Crown and members of the Executive Council, and ten at least of such officers shall be members of the Council or the Assembly.
S. 50(3) amended by Nos 8834 s. 2(b), 59/1992 s. 3(b).
(3) Not more than six of such officers shall at any one time be members of the Council and not more than 17 of such officers shall at any one time be members of the Assembly.
No. 6224 s. 16.
51 Ministers to be in Council or Assembly
A responsible Minister of the Crown shall not hold office for a longer period than three months unless he is or becomes a member of the Council or the Assembly.
No. 6224 s. 17.
52 Power of Ministers to speak in either House
(1) Notwithstanding anything contained in any Act any responsible Minister of the Crown who is a member of the Council or of the Assembly may at any time with the consent of the House of the Parliament of which he is not a member sit in such House for the purpose only of explaining the provisions of any Bill relating to or connected with any department administered by him, and may take part in any debate or discussion therein on such Bill, but he shall not vote except in the House of which he is an elected member.
(2) It shall not be lawful at any one time for more than one responsible Minister under the authority of this section to sit in the House of which he is not a member.
No. 6224
ss 19, 20.
53 Responsible Minister not required to vacate seat on appointment to office
(1) Notwithstanding anything in this Act where a person is appointed by the Governor to be a responsible Minister of the Crown the acceptance by him of the appointment shall not prevent him from becoming a member of the Council or the Assembly or from sitting and voting as a member or if he is a member shall not vacate his seat.
(2) If any person accepts more than one of the offices referred to in subsection (1), he shall not receive the salaries of more than one of such offices.
No. 6224 s. 23.
54 Contractors not to be elected
A person who is either directly or indirectly concerned or interested in any bargain or contract entered into by or on behalf of Her Majesty in right of the State of Victoria, or who participates or claims or is entitled to participate either directly or indirectly in the profit thereof or in any benefit or emolument arising from the same, shall not sit or vote in the Council or the Assembly; and the election of any such person to be a member of either the Council or the Assembly shall be void.
No. 6224 s. 24.
55 Seats to become vacant in certain cases
If any member of the Council or the Assembly—
(a) either directly or indirectly becomes concerned or interested in any bargain or contract entered into by or on behalf of Her Majesty in right of the State of Victoria;
(b) participates or claims or is entitled to participate either directly or indirectly in the profit of any such bargain or contract or in any benefit or emolument arising therefrom;
(c) becomes bankrupt or applies to take the benefit of any Act for the relief of bankrupt debtors; or
(d) except where otherwise expressly provided or permitted by any Act or enactment, accepts any office or place of profit under the Crown, or in any character or capacity for or in expectation of any fee gain or reward performs any duty or transacts any business whatsoever for or on behalf of the Crown—
his seat shall thereupon become vacant.
No. 6224 s. 25.
56 Reference to certain contracts in last two preceding sections
(1) Any reference in the last two preceding sections to any bargain or contract entered into by or on behalf of Her Majesty in right of the State of Victoria shall subject to subsection (2) be deemed to include a reference to—
(a) any contract entered into by any Government department or by any Minister of the Crown in his capacity as such; and
(b) (without affecting the generality of the last preceding paragraph) any contract entered into by any public statutory body.
(2) It is hereby declared that any such reference in the said sections does not extend to—
(a) the supply or provision by Her Majesty (including any department Minister or body referred to in subsection (1)) of goods chattels or services where such goods chattels or services are supplied or provided to a member of the Council or the Assembly on no better terms than they are supplied or provided to persons other than members who are in similar circumstances or who are otherwise similarly qualified or eligible;
(b) any contract or agreement the benefit or burden of which or any interest in which devolves upon a member of the Council or the Assembly as beneficiary under a will or as a person entitled to share in the estate of an intestate or as executor administrator or trustee, until twelve months after such devolution;
(c) any isolated casual sale or supply of goods chattels or services to Her Majesty (including any department Minister or body referred to in subsection (1)) where at the time of such sale or supply the member of the Council or the Assembly concerned did not know and could not reasonably have known that such sale or supply was a sale or supply to Her Majesty (or to a department Minister or body referred to in subsection (1)); or
(d) any compromise in respect of any compensation or other money payable by Her Majesty (including any department Minister or body referred to in subsection (1)).
No. 6224 s. 26.
57 Certain contracts excepted
Nothing hereinbefore contained shall extend or apply to—
(a) any bargain or contract entered into by any company partnership or association consisting of more than twenty persons where such bargain or contract is entered into for the general benefit of such company partnership or association;
(b) any lease licence for occupation sale or purchase of any land;
(c) any agreement for any such lease sale or purchase or for the occupation of such land or for any easement therein or for the loan of money; or
(d) any security for the payment of money only.
No. 6224 s. 27.
58 With certain exceptions members of Parliament not to accept offices of profit under the Crown
Except where express provision is made to the contrary by any Act or enactment other than this section, if any person while he is a member of the Council or the Assembly accepts any office or place of profit under the Crown other than an office as a responsible Minister of the Crown, he shall be guilty of an offence against this Act and shall be liable to a penalty of $100 for every week that he holds such office.
No. 6224 s. 31.
59 Penalties for offences against this Division
Any person who wilfully contravenes or fails to comply with any of the foregoing provisions of this Division shall be guilty of an offence against this Act.
Penalty: $500.
No. 6224 s. 28.
60 Removal of disqualification by reason of certain naval, military or air services
(1) Notwithstanding anything in this Act or any corresponding previous enactment, the seat of a member of the Council or the Assembly shall not become vacant and shall not be deemed to have become vacant, and the election of any person to be a member of the Council or the Assembly shall not be and shall not be deemed to have been void, and no person shall be or be deemed to have been disqualified or incapable to be elected or to be or continue a member of or incapable of sitting or voting in the Council or the Assembly, and no such member or person shall be or be deemed to have been liable to any penalty under this Act or any corresponding previous enactment by reason only that such member or person was or is an officer or member of the naval military or air forces of the Commonwealth whose services were not or are not wholly employed by the Commonwealth or received or receives any pay half-pay allowance or pension as such an officer or member of any of the said forces.
(2) A person shall not for the purposes of this Act or any corresponding previous enactment be deemed to have accepted or to accept an office or place of profit under the Crown by reason only that such person (while he was or is a member of the Council or the Assembly) was or is or served or serves as an officer or member of any of the forces aforesaid or received or receives any pay half-pay allowance or pension as aforesaid.
S. 61 substituted by No. 9077 s. 3, amended by Nos 9788 s. 3(1)(a), 9921 s. 255, 10029 s. 22, 46/1998 s. 7(Sch. 1), 108/2004 s. 117(1) (Sch. 3 item 40), 38/2005 s. 15, 24/2006 s. 6.1.2(Sch. 7 item 8.1), 6/2010 s. 203(1) (Sch. 6 item 9.1) (as amended by No. 45/2010 s. 22), 37/2014 s. 10(Sch. item 27.1).
61 Holders of offices etc. not to be disqualified from election to Council or Assembly
Notwithstanding anything in this Act or the Public Administration Act 2004, the Education and Training Reform Act 2006, the Transport (Compliance and Miscellaneous) Act 1983, the Transport Integration Act 2010, the Victoria Police Act 2013 or any other Act a person shall not be disqualified or disabled from or be ineligible to be a candidate at any election whether for the Council or for the Assembly or being elected or returned a member of the Council or of the Assembly by reason only of his being the holder of any office or place of profit under the Crown (whether in right of Victoria or any other capacity) or in any manner employed in the public service of Victoria or of the Commonwealth for salary wages fees or emolument and the election and return of any such person shall not be or be declared void by reason only of his holding such an office or place of profit under the Crown or being so employed; and on the election of any such person to be a member of the Council or the Assembly he shall cease to hold that office or place of profit under the Crown or to be so employed.
S. 61A inserted by No. 9077 s. 4.
61A Power to Houses to relieve from consequences of alleged defaults
(1) Notwithstanding anything in this Act where it is made to appear to the relevant House that any act matter or thing whether occurring before or after the commencement of this Act has or may have caused a person to be disqualified from election to that House or the seat of a member of that House to become vacant the relevant House may, if it is satisfied that the act matter or thing—
(a) has ceased to have effect;
(b) was in all the circumstances of a trifling nature; and
(c) occurred or arose without the actual knowledge or consent of the person or was accidental or due to inadvertence—
by resolution direct that any such act matter or thing for the purposes of all or any of the provisions of this Act be deemed never to have occurred or arisen but any such resolution shall save as aforesaid not affect the determination of any petition with respect to the validity of any election or return that has been addressed to the Court of Disputed Returns.
(2) In any case where apart from this provision the Governor, the President of the Legislative Council or the Speaker of the Legislative Assembly would be required to issue during the recess of the relevant House a writ for election of a member of that House in the place of a member disqualified under any of the provisions of this Act the Governor, the President or the Speaker may if it appears to him that an opportunity should be given to the relevant House to consider the making of an order under subsection (1) defer the issue of the writ pending the determination of the relevant House.
(3) In this section the relevant House means—
(a) in relation to any question concerning the qualification for election of a person to the Legislative Council or a vacancy in the Legislative Council—the Legislative Council; and
(b) in relation to any question concerning the qualification for election of a person to the Legislative Assembly or a vacancy in the Legislative Assembly—the Legislative Assembly.
Pt 2 Div. 9 (Heading) amended by No. 2/2003 s. 16.
Division 9—Provisions relating to Appropriation Bills
Constitution Act s. LVI.
S. 62 substituted by No. 2/2003 s. 13.
62 Appropriation Bills
(1) A Bill for appropriating any part of the Consolidated Fund or for imposing any duty, rate, tax, rent, return or impost must originate in the Assembly.
(2) Subject to section 65, a Bill for appropriating any part of the Consolidated Fund or for imposing any duty, rate, tax, rent, return or impost may be rejected but not altered by the Council.
Constitution Act s. LVII.
S. 63 amended by No. 13/1997 s. 4(1).
63 Appropriation to be in pursuance of message
The Assembly may not pass any vote resolution or Bill for appropriating any part of the Consolidated Fund or of any duty rate tax rent return or impost for any purpose which has not been first recommended by a message of the Governor to the Assembly during the session in which such vote resolution or Bill is passed.
No. 6224 s. 54.
64 Appropriation Bills
(1) A Bill shall not be taken to be a Bill for appropriating any part of the Consolidated Fund or for imposing any duty rate tax rent return or impost by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties or for the demand or payment or appropriation of fees for licences or fees for services under such Bill.
(2) The Council may once at each of the undermentioned stages of a Bill which the Council cannot alter return such Bill to the Assembly suggesting by message the omission or amendment of any items or provisions therein, and the Assembly may if it thinks fit make any of such omissions or amendments with or without modifications:
Provided that the Council may not suggest any omission or amendment the effect of which will be to increase any proposed charge or burden on the people.
(3) The stages of a Bill at which the Council may return the Bill with a message as aforesaid shall be—
(a) the consideration of the Bill in Committee;
(b) the consideration of the report of the Committee; and
(c) the consideration of the question that the Bill be read a third time.
No. 6224 s. 55.
S. 65 substituted by No. 2/2003 s. 14.
65 Annual Appropriation Bills
(1) In this section Annual Appropriation Bill means a Bill which deals only with the annual appropriation of the Consolidated Fund for the ordinary annual services of the Government for a particular year only but does not include a Bill to appropriate money for appropriations for or relating to the Parliament.
(2) For the purposes of subsection (1), ordinary annual services includes—
(a) the construction or acquisition of public works, land or buildings; and
(b) the construction or acquisition of plant or equipment which normally would be regarded as involving an expenditure of capital; and
(c) services proposed to be provided by the Government which have not formerly been provided by the Government.
(3) An Annual Appropriation Bill must deal only with appropriation.
(4) Subsection (5) applies if an Annual Appropriation Bill is passed by the Assembly and within 1 month of its passing by the Assembly—
(a) the Council rejects or fails to pass it; or
(b) the Council returns it to the Assembly with a message suggesting any amendment to which the Assembly does not agree.
(5) If this subsection applies, the Annual Appropriation Bill, with any amendments suggested by the Council and made by the Assembly, must be presented to the Governor for Her Majesty's Assent and becomes an Act of Parliament on the Royal Assent being signified notwithstanding that the Council has not passed the Bill.
(6) The words of enactment for an Annual Appropriation Bill that is to be presented to the Governor for Her Majesty's Assent under subsection (5) are to be altered to "Her Majesty and the Legislative Assembly in accordance with section 65(5) of the Constitution Act 1975 enact as follows:".
(7) There is to be endorsed on the Annual Appropriation Bill when it is presented to the Governor for Her Majesty's Assent under subsection (5), the certificate of the Speaker signed by the Speaker that the Bill is a Bill to which section 65(5) of the Constitution Act 1975 applies and has been passed in accordance with that section.
(8) The certificate of the Speaker under this section is conclusive evidence for all purposes and cannot be questioned in any court.
(9) The alteration of an Annual Appropriation Bill to give effect to subsection (6) is not to be taken to be an amendment of the Bill.
Pt 2 Div 9A (Heading and ss 65A–65G) inserted by No. 2/2003 s. 15.
Division 9A—Provisions relating to disputes concerning Bills
S. 65A inserted by No. 2/2003 s. 15.
65A Definitions
(1) In this Division—
Deadlocked Bill means a Disputed Bill to which section 65C(3) or 65D(1) applies;
Dispute Resolution means a resolution reached by the Dispute Resolution Committee recommending to the Assembly and the Council that the Disputed Bill specified in the resolution—
(a) be passed as transmitted by the Assembly to the Council without amendment; or
(b) be passed with the amendment or amendments specified in the resolution; or
(c) not be passed;
Dispute Resolution Committee means the Committee established under section 65B;
Disputed Bill means a Bill which has passed the Assembly and having been transmitted to and received by the Council not less than 2 months before the end of the session has not been passed by the Council within 2 months after the Bill is so transmitted, either without amendment or with such amendments only as may be agreed to by both the Assembly and the Council.
(2) For the purposes of this Division, any omission or amendment suggested by the Council in accordance with section 64 is deemed to be an amendment made by the Council.
(3) This Division does not apply to an Annual Appropriation Bill within the meaning of section 65.
S. 65B inserted by No. 2/2003 s. 15.
65B Dispute Resolution Committee
(1) A Dispute Resolution Committee is to be established as soon as conveniently practicable after the commencement of each Parliament.
(2) The Dispute Resolution Committee holds office for the Parliament during which it is appointed until the dissolution or other lawful determination of the Assembly.
(3) The Dispute Resolution Committee is to consist of 12 members of whom—
(a) 7 are to be members of, and appointed by, the Assembly; and
(b) 5 are to be members of, and appointed by, the Council.
(4) When appointing members under subsection (3), each House of the Parliament must take into account the political composition of that House.
(5) The Dispute Resolution Committee cannot meet until both the Assembly and the Council have made the appointments referred to in subsection (3).
(6) A member of the Dispute Resolution Committee is to be appointed by the Dispute Resolution Committee as the Chair.
(7) Each member of the Dispute Resolution Committee is entitled to 1 vote.
(8) In the event of an equality of votes, the Chair also has a casting vote.
(9) The Dispute Resolution Committee—
(a) must meet in private; and
(b) subject to this Division, may determine the rules to be adopted for the conduct of meetings.
S. 65C inserted by No. 2/2003 s. 15.
65C Dispute Resolution
(1) The Dispute Resolution Committee must seek to reach a Dispute Resolution on a Disputed Bill within 30 days after the Disputed Bill is referred to the Dispute Resolution Committee by a resolution of the Assembly.
(2) If the Dispute Resolution Committee reaches a Dispute Resolution, a copy of the Dispute Resolution must be tabled in the Assembly and the Council on the first sitting day of that House after the Dispute Resolution has been reached.
(3) If the Dispute Resolution Committee—
(a) cannot reach a Dispute Resolution; or
(b) cannot meet or fails to meet for any reason—
the Disputed Bill becomes a Deadlocked Bill.
S. 65D inserted by No. 2/2003 s. 15.
65D Consideration of Dispute Resolution by Assembly and Council
(1) If either the Assembly or the Council fails to give effect to the Dispute Resolution within the period of 30 days or the period of 10 sitting days (whichever period is longer) after the tabling of the Dispute Resolution in that House, the Disputed Bill becomes a Deadlocked Bill.
(2) For the purposes of subsection (1), the Assembly or the Council fails to give effect to the Dispute Resolution—
(a) if the Dispute Resolution provided that the Disputed Bill be passed by the Council as transmitted by the Assembly to the Council without amendment, and the Council does not pass the Bill without amendment;
(b) if the Dispute Resolution provided that the Disputed Bill be passed with the amendment or amendments specified in the Dispute Resolution, and the Assembly or the Council does not pass the Bill with the specified amendment or amendments;
(c) if the Dispute Resolution provided that the Disputed Bill not be passed, and the Assembly or the Council resolves not to accept the Dispute Resolution.
(3) If the Assembly or the Council has, in relation to a Bill to which section 18(1B) applies, given effect to a Dispute Resolution, it is only lawful to present the Bill to the Governor for Her Majesty's assent if the Bill has been approved by the majority of electors voting at a referendum.
(4) If the Assembly or the Council has, in relation to a Bill to which section 18(2) or 18(2AA) applies, given effect to a Dispute Resolution, it is only lawful to present the Bill to the Governor for Her Majesty's assent if the third reading of the Bill was passed by a special majority or an absolute majority, as the case may be.
S. 65E inserted by No. 2/2003 s. 15.
65E Provisions applying if dispute not resolved
(1) This section applies in the case of a Deadlocked Bill.
(2) The Premier may advise the Governor in writing that the Assembly be dissolved as a result of this section applying to the Deadlocked Bill specified in the advice.
(3) There is to be attached to the advice under subsection (2) a copy of the Deadlocked Bill endorsed with the certificate of the Speaker signed by the Speaker that the Bill is a Bill to which section 65E of the Constitution Act 1975 applies.
(4) The certificate of the Speaker under this section is conclusive evidence for all purposes and cannot be questioned in any court.
(5) If the Premier does not give advice under subsection (2), the Deadlocked Bill may be re-introduced in the Assembly in accordance with section 65F.
S. 65F inserted by No. 2/2003 s. 15.
65F Provisions applying to Deadlocked Bills
(1) This section applies if during the existence of the Assembly first elected after the previous Assembly has been dissolved under section 65E(2) or otherwise dissolved or lawfully determined, a Deadlocked Bill from the previous Assembly is again introduced in the Assembly.
(2) For the purposes of this section, a Deadlocked Bill may be introduced in the Assembly in the form in which—
(a) it was introduced in the previous Assembly; or
(b) it was passed by the previous Assembly and transmitted to the previous Council; or
(c) it is consistent with the Dispute Resolution reached in respect of the Deadlocked Bill.
(3) If a Bill introduced in accordance with this section again becomes a Disputed Bill, the Premier may advise the Governor in writing to convene a joint sitting of the Assembly and the Council.
(4) There is to be attached to the advice under subsection (3) a copy of the Disputed Bill endorsed with the certificate of the Speaker signed by the Speaker that the Bill is a Bill to which section 65F(3) of the Constitution Act 1975 applies.
(5) The certificate of the Speaker under this section is conclusive evidence for all purposes and cannot be questioned in any court.
(6) A joint sitting of the Assembly and the Council convened in accordance with this section may consider all the Bills that are Disputed Bills in accordance with this section.
S. 65G inserted by No. 2/2003 s. 15.
65G Joint Sitting
(1) A joint sitting of the Assembly and the Council convened in accordance with section 65F must consider a Disputed Bill to which that section applies in the form in which it was last passed by the Assembly and transmitted to the Council.
(2) Subject to subsection (3), the joint sitting of the Assembly and the Council is to be conducted in accordance with the rules adopted by the members present at the joint sitting.
(3) At the joint sitting of the Assembly and the Council—
(a) the members have the same privileges and immunities as the members of the Assembly in relation to proceedings before that House;
(b) subject to subsection (4), a question is to be decided by a majority of the votes cast by the members present at the joint sitting;
(c) in the event of an equality of votes on a question, the question is to be taken to have been determined in the negative.
(4) If an absolute majority of the total number of the members of the Assembly and the Council passes the third reading of the Disputed Bill with or without any amendments at the joint sitting of the Assembly and the Council, the Bill so passed is to be taken to have been duly passed by both Houses of the Parliament, whether or not it is a Bill to which section 18(2) or 18(2AA) applies.
(5) Subject to subsections (6) and (7), a Bill passed in accordance with this section must be presented to the Governor for Her Majesty's Assent and becomes an Act of Parliament on the Royal Assent being signified.
(6) If a Bill to which section 18(1B) applies is passed in accordance with this section, it must be submitted to a referendum.
(7) A Bill that is referred to in subsection (6) and that is approved by the majority of electors voting at a referendum must be presented to the Governor for Her Majesty's assent and becomes an Act of Parliament on the Royal Assent being signified.
(8) There is to be endorsed on the Bill when it is presented to the Governor for Her Majesty's Assent under subsection (5) or (7), the certificate of the Speaker signed by the Speaker that the Bill is a Bill to which section 65G of the Constitution Act 1975 applies and has been passed in accordance with that section.
(9) The certificate of the Speaker under this section is conclusive evidence for all purposes and cannot be questioned in any court.
(10) If a Bill is passed in accordance with this section, the Bill is deemed for all purposes to be a Bill that has been passed by the Assembly and the Council.
No. 6224 s. 56(1)–(7).
Ss 66–68 amended by No. 10106 s. 7(1)(2), repealed by No. 2/2003 s. 7(1).
* * * * *
Division 10—Acts of Parliament
No. 6224 s. 60.
69 Date of passing of Act to be endorsed by Clerk
S. 69(1) amended by Nos 10096 s. 4(4)(Sch. item 6(b)), 108/1994 s. 6(1)(c)(i).
The Clerk of the Parliaments shall indorse on every Act of the Parliament immediately after the title of such Act the day month and year when the same has received the Royal assent, and such indorsement shall be taken to be part of such Act.
S. 69(2) repealed by No. 108/1994 s. 6(1)(c)(ii).
* * * * *
No. 6224 s. 61.
70 Where the time fixed by an Act for the doing of any act etc. cannot be observed
Whenever by any Act of the Parliament a day or time is appointed fixed or indicated as the day or time on or at which any act matter or thing is to be done or effected and such day or time is antecedent to the passing of such Act and its receiving the Royal assent the Governor in Council unless the contrary is expressly enacted may by proclamation in the Government Gazette appoint or fix or indicate a day or time for doing or effecting such act matter or thing and every such act matter or thing done or effected upon the day or time so appointed fixed or indicated shall be as good valid and effectual as if it had been done or effected on the day or at the time appointed fixed or indicated in the Act and all provisions of the Act following and dependent directly upon the doing or effecting of such act matter or thing shall be read and construed as if the date or time so appointed fixed or indicated by the Governor in Council had been the date appointed fixed or indicated in the Act.
No. 6224 s. 62.
71 Where Bill for continuing Act which expires during the session does not pass
Where in any session any Bill is introduced into either the Council or the Assembly for the continuance of any Act which would expire in such session and such Act has expired before the Bill for continuing the same has received the Royal assent such continuing Act shall be deemed and taken to have effect from the expiration of the Act intended to be continued as fully and effectually to all intents and purposes as if such continuing Act had actually passed before the expiration of the Act intended to be continued unless otherwise specially provided in such continuing Act: Provided that nothing herein contained shall extend or be construed to extend to affect any person with any punishment penalty or forfeiture whatsoever by reason of any thing done or omitted to be done by any such person contrary to the provisions of the Act so continued between the expiration of the same and the date on which the Act continuing the same receives the Royal assent.
Pt 2 Div. 11 (Heading) amended by No. 95/1997
s. 3(a).
Division 11—Publication, transmission and broadcasting of Parliamentary proceedings
No. 6224 s. 63.
72 Government Printer
S. 72(1) substituted by Nos 46/1998
s. 7(Sch. 1), 108/2004 s. 114.
(1) There continues to be a Government Printer for Victoria.
S. 72(1A) inserted by No. 108/2004 s. 114.
(1A) The person who is for the time being employed under Part 3 of the Public Administration Act 2004 as Chief Parliamentary Counsel is also the Government Printer without the need for any further appointment.
(2) The Government Printer shall be deemed to be and always to have been authorized by each House of the Parliament to publish the reports of debates in each such House and to publish extracts from the reports of such debates.
No. 6224 s. 64.
73 Publication of reports, proceedings etc. of either House of Parliament protected
S. 73(1) amended by Nos 57/1989 s. 3(Sch. item 28.1), 95/1997
s. 3(b)(i), 68/2009 s. 97(Sch. item 25.1).
(1) Any person who is defendant, accused or respondent in any civil criminal or mixed proceeding commenced or prosecuted in any manner whatsoever for or on account or in respect of the publication, in written or electronic form, of any report paper votes or proceedings of the Houses of the Parliament or either of them or of any committee of such Houses or either of them by such person or by his officer or servant by or under the authority of such Houses or either of them or of any committee of such Houses or either of them may bring before the court in which such proceeding has been or is so commenced or prosecuted, first giving twenty-four hours notice of his intention so to do to the prosecutor or plaintiff in such proceeding, a certificate under the hand of the President or of the Speaker or under the hands of the President and the Speaker or under the hand of the Clerk of the Parliaments or of the Clerk of the Council or of the Clerk of the Assembly (as the case may require) stating that the report paper votes or proceedings (as the case may be) in respect whereof such proceeding has been commenced or prosecuted was published by such person or by his officer or servant by order or under the authority of such Houses or either of them or of any committee of such Houses or either of them together with an affidavit verifying such certificate.
S. 73(2) amended by No. 57/1989 s. 3(Sch. item 28.2).
(2) The court shall thereupon immediately stay such proceeding; and the same and every writ or process issued therein shall be determined and superseded by virtue of this Act.
S. 73(3) amended by No. 95/1997
s. 3(b)(ii).
(3) In this and the next succeeding section any reference to the publication of proceedings of either House of the Parliament shall include and shall be deemed always to have included a reference to the publication, in written or electronic form, of the reports of debates in either such House and to the publication, in written or electronic form, of extracts from such reports.
No. 6224 s. 65.
74 Copy of authenticated report thereof
S. 74(1) amended by Nos 57/1989 s. 3(Sch. item 28.3), 95/1997
s. 3(c), 68/2009 s. 97(Sch. item 25.2).
(1) In any civil criminal or mixed proceeding for or on account or in respect of the publication, in written or electronic form, of any copy of such report paper votes or proceedings the defendant or accused at any stage of the proceeding may lay before the court such report paper votes or proceedings and such copy, with an affidavit verifying such report paper votes or proceedings and the correctness of such copy.
S. 74(2) amended by No. 57/1989 s. 3(Sch. item 28.4).
(2) The court shall immediately stay such proceeding; and the same and every writ or process issued therein shall be determined and superseded by virtue of this Act.
S. 74(3) amended by No. 68/2009 s. 97(Sch. item 25.3).
(3) It shall be lawful, in any civil criminal or mixed proceeding for printing any abstract of such report paper votes or proceedings, to give in evidence such report paper votes or proceedings, and to show that such abstract was published bona fide and without malice; and if such is the opinion of the judge or of the jury (as the case may be) in any such proceeding a judgment or a verdict (as the case may require) shall be entered for the defendant or accused.
S. 74AA inserted by No. 95/1997
s. 4.
74AA Transmission and broadcasting of Parliamentary proceedings
No action or proceeding, civil, criminal or mixed, lies against a person who—
(a) transmits or broadcasts by electronic means any proceedings—
(i) of the Council or the Assembly, or both of them; or
(ii) of a committee of the Council or the Assembly, or both of them; or
(b) broadcasts or re-broadcasts by electronic means a recording of any proceedings—
(i) of the Council or the Assembly, or both of them; or
(ii) of a committee of the Council or the Assembly, or both of them—
with the authority of the Council, Assembly or committee (as the case requires).
S. 74AB inserted by No. 40/2001 s. 3,
repealed by No. 40/2001 s. 5.
* * * * *
Pt 2A (Heading and ss 74A–74D) inserted by No. 9254 s. 2(c), amended by Nos 9576 s. 11(1), 9870 ss 2, 3(a)–(e), 9937 s. 2, substituted as Pt 2A (Heading and ss 74A, 74B) by No. 55/1988 s. 3.
Part IIA—Local government
S. 74A substituted by No. 55/1988 s. 3.
74A Local government
S. 74A(1) substituted by No. 2/2003 s. 18.
(1) Local government is a distinct and essential tier of government consisting of democratically elected Councils having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district.
S. 74A(1A) inserted by No. 2/2003 s. 18.
(1A) Subject to section 74B, each Council—
(a) is responsible for the governance of the area designated by its municipal boundaries; and
(b) is constituted by democratically elected Councillors as the governing body which is—
(i) accountable for its decisions and actions; and
(ii) responsible for ensuring good governance; and
(c) includes an administration which—
(i) implements the decisions of the Council; and
(ii) facilitates the performance of the duties and functions of the Council.
(2) An elected Council does not have to be constituted in respect of any area in Victoria—
(a) which is not significantly and permanently populated; or
(b) in which the functions of local government are carried out by or under arrangements made by a public statutory body which is carrying on large-scale operations in the area.
S. 74B substituted by No. 55/1988 s. 3.
74B Local government laws
(1) Parliament may make any laws it considers necessary for or with respect to—
(a) the constitution of Councils; and
(b) the objectives, functions, powers, duties and responsibilities of Councils; and
(c) entitlement to vote and enrolment for elections of Councils; and
(d) the conduct of and voting at elections of Councils; and
(e) the counting of votes at elections of Councils; and
(f) the qualifications to be a Councillor; and
(g) the disqualification of a person from being or continuing to be a Councillor; and
(h) the powers, duties and responsibilities of Councillors and Council staff; and
(i) any other act, matter or thing relating to local government administration.
(2) A Council cannot be dismissed except by an Act of Parliament relating to the Council.
(3) Parliament may make laws for or with respect to—
(a) the suspension of a Council; and
(b) the administration of a Council during a period in which the Council is suspended or dismissed; and
(c) the re-instatement of a Council which has been suspended; and
(d) the election of a Council if a suspended Council is not re-instated; and
(e) the election of a Council where a Council has been dismissed.
Part III—The Supreme Court of the State of Victoria
No. 6387 s. 6.
75 Supreme Court of the State of Victoria
(1) A Court shall be held in and for Victoria and its dependencies which shall be styled "The Supreme Court of the State of Victoria" which in this Part is called "the Court".
S. 75(2) amended by Nos 9959 s. 2, 110/1986 s. 132(a), substituted by No. 109/1994 s. 5,
amended by Nos 24/2008 s. 4(1), 34/2010 s. 7(1).
(2) The Court consists of the Judges of the Court, the Associate Judges of the Court and the judicial registrars of the Court.
S. 75(3) substituted by No. 109/1994 s. 5.
(3) The Judges of the Court are—
(a) the Chief Justice;
(b) the President of the Court of Appeal;
(c) such number of other Judges of Appeal as are from time to time appointed;
(d) such number of other Judges as are from time to time appointed.
S. 75(4) substituted by Nos 110/1986 s. 132(b), 109/1994 s. 5, 24/2008 s. 4(2).
(4) The Associate Judges of the Court are the Associate Judges appointed from time to time under section 104 of the Supreme Court Act 1986, including an Associate Judge who is the Senior Master.
S. 75(5) repealed by No. 109/1994 s. 5, new s. 75(5) inserted by No. 34/2010 s. 7(2).
(5) The judicial registrars of the Court are the judicial registrars appointed from time to time under Division 2A of Part 7 of the Supreme Court Act 1986.
S. 75(6) inserted by No. 8951 s. 5(6), amended by No. 110/1986 s. 132(c), repealed by No. 109/1994 s. 5.
* * * * *
S. 75A inserted by No. 109/1994 s. 6.
75A Divisions of Court
(1) The Court is divided into—
(a) the Court of Appeal; and
(b) the Trial Division.
(2) The Court of Appeal consists of—
(a) the Chief Justice, who is the senior member of the Court of Appeal;
(b) the President of the Court of Appeal;
(c) the other Judges of Appeal;
(d) the additional Judges of Appeal appointed or acting under section 80B.
S. 75A(2A) inserted by No. 24/2007 s. 10(1), amended by No. 24/2008 s. 5(a).
(2A) The Court of Appeal may be constituted by an Associate Judge in the case of a proceeding for which provision is made by an Act or enactment or by rules of court for the Court of Appeal to be so constituted.
S. 75A(2B) inserted by No. 34/2010 s. 8(1).
(2B) The Court of Appeal may be constituted by a judicial registrar appointed in accordance with Division 2A of Part 7 of the Supreme Court Act 1986 in the case of a proceeding for which provision is made by the Supreme Court Act 1986 or by rules of court for—
(a) the Court of Appeal to be so constituted; and
(b) the delegation to judicial registrars of powers of the Court of Appeal to hear and determine such a matter or proceeding.
(3) The Trial Division consists of—
(a) the Chief Justice;
(b) the other Judges of the Court referred to in section 75(3).
S. 75A(4) amended by No. 24/2008 s. 5(b).
(4) The Trial Division may be constituted by an Associate Judge in the case of a proceeding for which provision is made by an Act or enactment or by rules of court for the Court or the Trial Division to be so constituted.
S. 75A(5) inserted by No. 34/2010 s. 8(2).
(5) The Trial Division may be constituted by a judicial registrar appointed in accordance with Division 2A of Part 7 of the Supreme Court Act 1986 in the case of a proceeding for which provision is made by the Supreme Court Act 1986 or by rules of court for—
(a) the Court or the Trial Division to be so constituted; and
(b) the delegation to judicial registrars of powers of the Court or Trial Division to hear and determine such a matter or proceeding.
S. 75A(6) inserted by No. 5/2013 s. 4, amended by No. 63/2013 s. 4(1).
(6) In this section, a reference to "Judges of Appeal" includes any reserve Judges engaged under section 81B or taken to be engaged under section 81GA to undertake the duties of a Judge of Appeal during any period of engagement.
S. 75A(7) inserted by No. 63/2013 s. 4(2).
(7) For the avoidance of doubt, in subsection (3)(b) "Judges of the Court" includes any reserve Judge engaged under section 81B to undertake the duties of a Judge of the Court during any period of engagement or acting under section 81GA.
S. 75B inserted by No. 109/1994 s. 6.
75B Qualification and appointment of Judges
S. 75B(1) substituted by No. 66/2003 s. 3, amended by No. 24/2008 s. 6(a).
(1) A person is not eligible for appointment as a Judge of the Court unless he or she—
(a) is or has been a judge of—
(i) the High Court of Australia or of a court created by the Parliament of the Commonwealth; or
(ii) a court of Victoria or of another State or of the Northern Territory or the Australian Capital Territory; or
(b) has been admitted to legal practice in Victoria, another State, the Northern Territory or the Australian Capital Territory, or has been enrolled as a legal practitioner of the High Court of Australia, for not less than 5 years.
Note to s. 75B(1) inserted by No. 3/2016 s. 39.
Note
See also section 8(1B) of the County Court Act 1958 in relation to a Judge of the Court who is a dual commission holder as Chief Judge.
S. 75B(2) amended by Nos 24/2007 s. 8(1), 24/2008 s. 6(b).
(2) The Judges of the Court shall be appointed by the Governor by commission with the advice of the Executive Council.
S. 75C inserted by No. 63/2013 s. 56.
75C Entry into part-time service arrangement
(1) A Judge of the Court other than an excluded judicial officer may enter into an arrangement with the Chief Justice to carry out the duties of Judge of the Court on a part-time basis.
(2) A part-time service arrangement—
(a) must be in writing;
(b) must specify the proportion of full-time duties to be worked by the Judge of the Court to whom the part-time service arrangement applies, which must be a minimum of 0∙4 of full-time duties;
(c) may specify an expiry date, but is not required to do so.
(3) The Chief Justice may have regard to the following factors in considering whether to enter into a part-time service arrangement—
(a) the operational needs of the Court;
(b) the personal and professional circumstances of the Judge of the Court;
(c) parity and equity with other Judges of the Court;
(d) any other relevant consideration.
(4) A part-time service arrangement takes effect from the date specified in the part-time service arrangement.
S. 75D inserted by No. 63/2013 s. 56.
75D Variation of part-time service arrangement
(1) A part-time service arrangement may be varied by agreement between the Judge of the Court to whom the arrangement applies and the Chief Justice.
(2) A variation of a part-time service arrangement—
(a) must be in writing;
(b) must specify the proportion of full-time duties to be worked by the Judge of the Court to whom the part-time service arrangement applies, which must be a minimum of 0∙4 of full-time duties.
(3) The Chief Justice may have regard to the factors referred to in section 75C(3) in considering whether to vary a part-time service arrangement.
(4) A variation of a part-time service arrangement takes effect from the date specified in the written variation of the part-time service arrangement.
S. 75E inserted by No. 63/2013 s. 56.
75E Suspension of part-time service arrangement
(1) A part-time service arrangement is suspended if the Judge of the Court to whom the part-time service arrangement applies is appointed as any one of the following—
(a) Acting Chief Justice;
(b) Acting President of the Court of Appeal;
(c) Acting President of VCAT.
(2) A suspension under subsection (1) is for the period of the acting appointment.
S. 75F inserted by No. 63/2013 s. 56.
75F Termination of part-time service arrangement
(1) A part-time service arrangement is terminated if the Judge of the Court to whom the part-time service arrangement applies is appointed as any one of the following—
(a) Chief Justice;
(b) President of the Court of Appeal;
(c) President of VCAT.
(2) A part-time service arrangement may be terminated by agreement between the Judge of the Court to whom the part-time service arrangement applies and the Chief Justice.
No. 6387 s. 14.
76 Court to be a court of record and to have a seal
The Court shall be a court of record, and shall have and use as occasion may require a seal bearing an impression of the Royal Arms having inscribed thereon the words "The seal of the Supreme Court of the State of Victoria"; and such seal shall be kept in the custody of the Chief Justice of the Court.
Constitution Act s. XXXVIII. 12 and 13
Will. III
c. 2 s. 3.
1 Geo. III
c. 23 ss 1, 2.
S. 77(1) amended by No. 16/2005 s. 5(1).
77 Commissions of Judges
(1) The commissions of the Judges of the Court shall subject to subsection (4) continue and remain in full force notwithstanding the demise of Her Majesty any law usage or practice to the contrary hereof in anywise notwithstanding.
Constitution Act s. XXXIX.
(2) The salaries of such Judges as set out in section 82 shall be paid to each of them so long as their commissions remain in force respectively.
No. 6389 s. 7.
S. 77(3) amended by No. 16/1986 s. 4(a).
(3) A person who has attained the age of 70 years shall not be appointed a Judge of the Court.
S. 77(3A) inserted by No. 109/1994 s. 7(1).
(3A) Subsection (3) applies to the appointment as President of the Court of Appeal or as a Judge of Appeal of a judge appointed before the commencement of section 4 of the Courts Amendment Act 1986 as if the reference to 70 years were a reference to 72 years.
S. 77(4) substituted by No. 16/1986 s. 4(b), amended by No. 3/2016 s. 40(1).
(4) The commission of a Judge of the Court ceases to be in force and the office becomes vacant—
S. 77(4)(aaa) inserted by No. 16/2005 s. 5(2) (as amended by No. 14/2006 s. 12).
(aaa) on the judge being removed from office by the Governor in Council in accordance with Part IIIAA; or
S. 77(4)(aa) inserted by No. 16/2005 s. 5(2) (as amended by No. 14/2006 s. 12).
(aa) on the abolition of the office of the judge by or under an Act; or
S. 77(4)(a) amended by No. 14/2006 s. 4(1).
(a) in the case of a judge appointed before the commencement of section 4 of the Courts Amendment Act 1986 who did not make an election under section 80A before the commencement of section 3 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005—upon the judge attaining the age of 72 years; or
S. 77(4)(b) amended by No. 14/2006 s. 4(2).
(b) in the case of a judge appointed before the commencement of section 4 of the Courts Amendment Act 1986 who made an election under section 80A before the commencement of section 3 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005—upon the judge attaining the age of 70 years; or
S. 77(4)(c) amended by Nos 109/1994 s. 7(2), 14/2006 s. 4(3).
(c) in the case of a judge appointed on or after the commencement of section 4 of the Courts Amendment Act 1986—upon the judge attaining the age of 70 years; or
S. 77(4)(d) inserted by No. 109/1994 s. 7(2), amended by No. 24/2007 s. 8(2).
(d) in the case of a judge to whom subsection (3A) applies, upon the judge attaining the age of 72 years; or
S. 77(4)(e) inserted by No. 24/2007 s. 8(3).
(e) on the resignation in writing of the judge at any time before attaining the age specified in whichever of paragraphs (a), (b), (c) or (d) is applicable to the judge.
Note to s. 77(4) inserted by No. 3/2016 s. 40(2).
Note
See also section 8AA of the County Court Act 1958 in relation to resignation by a Judge of the Court who is a dual commission holder as Chief Judge.
S. 77(5) inserted by No. 5/2013 s. 5.
(5) In this section, a reference to a Judge of the Court does not include a reserve Judge.
No. 6387 s. 8.
S. 78 amended by No. 109/1994 s. 8.
78 Chief Justice
The Chief Justice shall be styled "The Chief Justice of the Supreme Court of the State of Victoria", and until Her Majesty's pleasure is known he shall have rank and precedence above and before all persons whomsoever in Victoria excepting the Governor and Lieutenant-Governor thereof.
S. 78A inserted by No. 109/1994 s. 9, amended by No. 5/2013 s. 6 (ILA s. 39B(1)).
78A Chief Justice and Judges of Court of Appeal
(1) A Judge may be appointed to be the Chief Justice, the President of the Court of Appeal or a Judge of Appeal either at the time of appointment as a Judge of the Court or, by further commission, at any later time.
S. 78A(2) inserted by No. 5/2013 s. 6.
(2) A reserve Judge must not be appointed as Chief Justice or President of the Court of Appeal.
S. 78B inserted by No. 109/1994 s. 9.
78B Seniority
(1) The President of the Court of Appeal is senior to all other Judges of the Court apart from the Chief Justice.
(2) The Judges of Appeal have seniority after the President of the Court of Appeal and have seniority in relation to each other according to the dates of their commissions as Judges of Appeal.
(3) The other Judges of the Court have seniority after the Judges of Appeal and have seniority in relation to each other according to the dates of their commissions as Judges of the Court.
(4) If—
(a) the commissions of 2 or more Judges of Appeal; or
(b) the commissions of 2 or more other Judges of the Court—
bear the same date, then, subject to this section, the Judges have seniority according to the seniority assigned by the commissions or, if there is no such assignment, according to the order of their being sworn.
S. 78B(5) inserted by No. 5/2013 s. 7, amended by No. 63/2013 s. 5.
(5) Despite subsections (2) and (3), the Chief Justice may determine the rank, status and precedence of any reserve Judge engaged under section 81B or reserve Associate Judge engaged under section 105D of the Supreme Court Act 1986.
No. 6387 s. 9.
79 Governor in Council may appoint Acting Chief Justice
S. 79(1) amended by No. 109/1994 s. 10.
(1) When and so often as the Chief Justice for the time being is absent on leave or in consequence of sickness or for any reason is temporarily unable to perform the duties of his office, the Governor in Council may, if he thinks fit, appoint a Judge of the Court to be Acting Chief Justice thereof for the period during which the said Chief Justice is temporarily absent or unable to perform the duties of his office and for no longer.
S. 79(1A) inserted by No. 66/2003 s. 4.
(1A) The Governor in Council may, when there is, or is about to be, a vacancy in the office of Chief Justice, appoint a Judge of the Court to be Acting Chief Justice for a period not exceeding 6 months.
S. 79(2) amended by No. 109/1994 s. 10.
(2) Any Judge so appointed to be Acting Chief Justice shall during the period of his appointment as Acting Chief Justice have the same powers and jurisdiction as the Chief Justice.
S. 79(3) inserted by No. 5/2013 s. 8.
(3) A reserve Judge must not be appointed as Acting Chief Justice.
S. 79A inserted by No. 109/1994 s. 11.
79A Governor in Council may appoint acting President
(1) When and so often as the President of the Court of Appeal is absent on leave or in consequence of sickness or for any reason is temporarily unable to perform the duties of the office, the Governor in Council may, if the Governor in Council thinks fit, appoint a Judge of Appeal to be Acting President for the period during which the President is temporarily absent or unable to perform the duties of the office and for no longer.
S. 79A(1A) inserted by No. 66/2003 s. 5.
(1A) The Governor in Council may, when there is, or is about to be, a vacancy in the office of President of the Court of Appeal, appoint a Judge of Appeal to be Acting President for a period not exceeding 6 months.
(2) A Judge of Appeal so appointed to be Acting President of the Court of Appeal has the same powers and jurisdiction as the President.
S. 79A(3) inserted by No. 5/2013 s. 9.
(3) A reserve Judge must not be appointed as Acting President.
No. 6387 s. 10.
80 Filling vacancies
If by reason of death resignation or removal or otherwise the office of a Judge of the Court becomes vacant a new Judge may be appointed by the Governor in Council.
S. 80A inserted by No. 16/1986 s. 5(1), amended by Nos 4/1987 s. 3(2), 64/1990 s. 20(Sch. item 1.1), 43/1991 s. 40(1), 109/1994 s. 12, 9/1995 s. 7(1)-(4)(c), 22/1995 s. 16, 35/1996 s. 453(Sch. 1 item 11.1, 11.2, 1/2000 s. 3(1), repealed by No. 3/2005 s. 3.
* * * * *
S. 80B inserted by No. 109/1994 s. 13.
80B Additional Judges of Appeal
(1) When and so often as the President of the Court of Appeal or a Judge of Appeal is absent on leave or in consequence of sickness or for any other reason is temporarily unable to perform the duties of the office, the Governor in Council may, by commission, appoint a Judge of the Court to act as an additional Judge of Appeal for such period, not exceeding 6 months, as is specified in the commission.
(2) If the President of the Court of Appeal with the concurrence of the Chief Justice, determines that a Judge of the Court should act as an additional Judge of Appeal for a period, not exceeding 6 months, the Chief Justice must nominate a Judge of the Court to act as a Judge of Appeal and, if that Judge is willing, the Judge may act as an additional Judge of Appeal for that period.
(3) If—
(a) the President of the Court of Appeal with the concurrence of the Chief Justice, determines that it is expedient that a specified Judge of the Court should act as an additional Judge of Appeal in a specified proceeding before the Court of Appeal; and
(b) the Judge of the Court is willing to act as an additional Judge of Appeal in that proceeding—
the Judge may act as an additional Judge of Appeal for the purposes of the proceeding.
(4) An additional Judge of Appeal appointed or otherwise acting as such a Judge under this section is deemed to hold office as an additional Judge of Appeal for all purposes and, while so acting, has the same powers and jurisdiction as a Judge of Appeal.
(5) A Judge of the Court who, under this section, has been appointed or has otherwise acted as an additional Judge of Appeal may attend the Court of Appeal for the purpose of giving judgment in, or otherwise completing, any proceeding heard by that Court while the Judge was so appointed or so acted, notwithstanding that the Judge is no longer an additional Judge of Appeal.
S. 80C inserted by No. 12/2001 s. 3.
80C Additional Judges of Trial Division
(1) If the Chief Justice, with the concurrence of the President of the Court of Appeal, determines that a Judge of Appeal should act as an additional Judge of the Trial Division for a period, not exceeding 6 months, the President must nominate a Judge of Appeal to act as a Judge of the Trial Division and, if that Judge is willing, the Judge may act as an additional Judge of the Trial Division for that period.
(2) If—
(a) the Chief Justice, with the concurrence of the President of the Court of Appeal, determines that it is expedient that a specified Judge of Appeal should act as an additional Judge of the Trial Division in a specified proceeding before the Trial Division; and
(b) the Judge of Appeal is willing to act as an additional Judge of the Trial Division in that proceeding—
the Judge may act as an additional Judge of the Trial Division for the purposes of the proceeding.
(3) A Judge of Appeal who, under this section, has acted as an additional Judge of the Trial Division may attend the Trial Division for the purposes of giving judgment in, or otherwise completing, any proceeding heard by the Trial Division while the Judge so acted, notwithstanding that the Judge is no longer an additional Judge of the Trial Division.
S. 80D inserted by No. 3/2005 s. 4, amended by Nos 24/2008 s. 7(a), 83/2008 s. 4, repealed by No. 5/2013 s. 10.
* * * * *
S. 80E inserted by No. 3/2005 s. 4, repealed by No. 5/2013 s. 11.
* * * * *
S. 81 amended by No. 109/1994 s. 14, repealed by No. 3/2005 s. 3, new s. 81 inserted by No. 5/2013 s. 12.
81 Appointment of reserve Judges
(1) The Governor in Council may appoint as many reserve Judges of the Court as are necessary for transacting the business of the Court.
(2) A person is not eligible for appointment as a reserve Judge unless he or she—
S. 81(2)(a) amended by No. 63/2013 s. 6.
(a) has not attained the age of 78 years; and
(b) is, or has been—
(i) a Judge of the Court; or
(ii) a judge of the Federal Court of Australia; or
(iii) a judge of a Supreme Court (however designated) of another State, the Northern Territory or the Australian Capital Territory.
(3) The instrument of appointment of a person as a reserve Judge must specify the terms and conditions of appointment.
(4) A reserve Judge is eligible for re appointment as a reserve Judge.
S. 81A inserted by No. 5/2013 s. 12.
81A Cessation of office
(1) A reserve Judge ceases to hold office on the earlier of—
(a) the end of 5 years from the date of his or her appointment as a reserve Judge; or
S. 81A(1)(b) amended by No. 63/2013 s. 7(1).
(b) attaining the age of 78 years.
S. 81A(1A) inserted by No. 63/2013 s. 7(2).
(1A) A reserve Judge may resign by sending his or her resignation in writing to the Governor.
S. 81A(2) repealed by No. 16/2016 s. 148.
* * * * *
S. 81B (Heading) amended by No. 63/2013 s. 8(1).
S. 81B inserted by No. 5/2013 s. 12.
81B Chief Justice may engage reserve Judge to undertake duties of Judge of the Court
S. 81B(1) amended by No. 63/2013 s. 8(2).
(1) The Chief Justice may, from time to time, by notice in writing, engage a reserve Judge to undertake the duties of a Judge of the Court—
(a) on a full time basis; or
(b) on a sessional basis.
(2) Without limiting subsection (1), an engagement under that subsection—
(a) may specify that a reserve Judge is to undertake—
(i) the duties of a Judge of Appeal;
(ii) the duties of a Judge of the Court other than a Judge of Appeal;
(b) must specify the period of the engagement.
S. 81B(3) amended by No. 63/2013 s. 8(3).
(3) The Chief Justice does not have the power to revoke or amend a notice of engagement under subsection (1), other than with the consent of the reserve Judge.
S. 81B(4) inserted by No. 63/2013 s. 8(4).
(4) An engagement under subsection (1) must not exceed 6 months.
S. 81B(5) inserted by No. 63/2013 s. 8(4).
(5) For the purpose of deciding whether, when, or on what basis to engage a reserve Judge to undertake duties, the Chief Justice may request the reserve Judge to provide any information that the Chief Justice considers may be relevant to enable a decision to engage to be made.
S. 81C inserted by No. 5/2013 s. 12.
81C Powers, jurisdiction, immunities and protection of reserve Judge
Subject to this Act and the Supreme Court Act 1986, a reserve Judge has the same powers, jurisdiction, immunities and protection as a Judge of the Court when undertaking the duties of a Judge of the Court in accordance with an engagement under section 81B.
S. 81D inserted by No. 5/2013 s. 12.
81D Pension rights and service not affected by being a reserve Judge
(1) Service as a reserve Judge does not count as service in the office of Judge of the Court for the purposes of section 83.
(2) Despite section 83(4)(i) and (ii), appointment as a reserve Judge does not affect the right of a Judge to a pension under section 83.
S. 81E inserted by No. 5/2013 s. 12, amended by No. 63/2013 s. 9 (ILA s. 39B(1)).
81E Engaging in legal practice or other paid employment
(1) Except with the approval of the Chief Justice, a reserve Judge must not engage in legal practice, undertake paid employment or conduct a business, trade or profession of any kind while engaged to undertake the duties of a Judge of the Court under section 81B or acting under section 81GA.
S. 81E(2) inserted by No. 63/2013 s. 9(2).
(2) Except with the approval of the Chief Justice, a reserve Judge must not hold an office in any company, trustee company, incorporated association or other entity, whether public or private, in respect of which the reserve Judge receives remuneration while engaged to undertake the duties of a Judge under section 81B or acting under section 81GA.
S. 81E(3) inserted by No. 63/2013 s. 9(2).
(3) This section is in addition to the requirements of section 84.
S. 81F (Heading) amended by No. 29/2015 s. 74.
S. 81F inserted by No. 5/2013 s. 12.
81F Salary, allowances and other conditions of service of reserve Judge
S. 81F(1) substituted by Nos 63/2013 s. 10(1), 29/2015 s. 75(1).
(1) Each reserve Judge engaged to undertake the duties of a Judge of the Court under section 81B is entitled to be paid a salary in accordance with the rate for the time being applicable for that office under the Judicial Entitlements Act 2015.
S. 81F(2) substituted by No. 29/2015 s. 75(1).
(2) Each reserve Judge engaged to undertake the duties of a Judge of the Court under section 81B is entitled to the allowances and other conditions of service for that office that are for the time being applicable under the Judicial Entitlements Act 2015.
S. 81F(3) substituted by No. 63/2013 s. 10(2), repealed by No. 29/2015 s. 75(2).
* * * * *
S. 81F(4)–(9) repealed by No. 29/2015 s. 75(2).
* * * * *
S. 81F(9A) inserted by No. 63/2013 s. 10(3), amended by No. 29/2015 s. 75(3).
(9A) Despite subsection (1), a reserve Judge who is also a serving judge of a court of another State, the Northern Territory or the Australian Capital Territory or of the Commonwealth is not entitled to be paid a salary under this section if that person receives a salary in relation to his or her office in that other State or Territory or the Commonwealth.
S. 81F(10) repealed by No. 29/2015 s. 75(2).
* * * * *
S. 81G inserted by No. 5/2013 s. 12, amended by No. 29/2015 s. 54 (ILA s. 39B(1)).
81G Appropriation of certain amounts in relation to reserve Judges
(1) The following are to be paid out of the Consolidated Fund, which is appropriated to the necessary extent—
(a) the amounts (including the amount of any non-salary benefits) payable to or for reserve Judges; and
S. 81G(b) amended by No. 67/2013 s. 649(Sch. 9 item 5(1)).
(b) premiums and other amounts payable under the Workplace Injury Rehabilitation and Compensation Act 2013 in respect of any reserve Judge; and
(c) payroll tax payable under the Payroll Tax Act 2007 in respect of wages paid or payable to any reserve Judge; and
(d) tax payable under the Fringe Benefits Tax Act 1986 of the Commonwealth in respect of fringe benefits provided to any reserve Judge; and
(e) superannuation contributions within the meaning of the Payroll Tax Act 2007 payable in respect of any reserve Judge.
S. 81G(2) inserted by No. 29/2015 s. 54.
(2) In this section, non-salary benefits has the same meaning as it has in clause 3(5) and (6) of Schedule 1A to the Public Administration Act 2004.
S. 81GA inserted by No. 63/2013 s. 11.
81GA Power to complete matters—Judges of the Court and reserve Judges
(1) This section applies to—
(a) a Judge of the Court whose commission under section 77 ceases under section 77(4)(a), (b), (c), (d) or (e);
(b) a reserve Judge engaged under section 81B whose engagement expires;
(c) a reserve Judge engaged under section 81B—
(i) whose engagement expires; and
(ii) whose appointment as a reserve Judge ceases, other than by way of resignation—
but only if at the time of that cessation or expiry the Judge of the Court or reserve Judge had a matter—
(d) that was part-heard before him or her; or
(e) in respect of which his or her decision or determination is pending.
(2) Subject to subsection (4), a former Judge of the Court, reserve Judge or former reserve Judge to whom this section applies may give judgment, make any order or complete or otherwise continue to deal with any matters relating to any proceeding that the former Judge of the Court, reserve Judge or former reserve Judge (as the case may be) had heard, or partly heard, before the cessation of his or her commission or expiry of his or her engagement.
(3) For the purposes of subsection (2)—
(a) a reserve Judge to whom this section applies whose engagement has expired is taken to be engaged under section 81B; and
(b) a former Judge of the Court or former reserve Judge to whom this section applies—
(i) holds office as a reserve Judge by virtue of this section as if he or she had been appointed under section 81; and
(ii) is taken to be a reserve Judge engaged under section 81B; and
(c) section 81F does not apply and that person is not entitled to remuneration and entitlements under that section for the period during which he or she is acting in accordance with subsection (2) after the cessation of his or her commission or appointment or the expiry of his or her engagement, as the case requires; and
(d) the person may continue to serve as a reserve Judge for the purposes of subsection (2) despite having attained the age of 78 years.
(4) Subject to subsection (5), any appointment or engagement of a person under this section ceases on the earlier of—
(a) the completion of the matters referred to in subsection (2); or
(b) 6 months from the date of that appointment or engagement; or
(c) the person being appointed under section 81 as a reserve Judge.
(5) A person to whom this section applies may resign his or her office as reserve Judge under this section by notice in writing to the Governor.
(6) Nothing in this section prevents a person being appointed as a reserve Judge under section 81 at any time, if he or she is eligible to be so appointed.
(7) Nothing in this section affects the operation of section 87 or of section 15 of the Supreme Court Act 1986.
S. 81H inserted by No. 5/2013 s. 12.
81H Construction of references—Courts Legislation Amendment (Reserve Judicial Officers) Act 2013
Unless inconsistent with the context or the subject matter, on and from the commencement of section 10 of the Courts Legislation Amendment (Reserve Judicial Officers) Act 2013, a reference in any Act (other than this Act, the Supreme Court Act 1986 or the Courts Legislation Amendment (Reserve Judicial Officers) Act 2013), subordinate instrument or any other document to an acting Judge, being an acting Judge appointed under section 80D as in force immediately before its repeal, is to be construed as a reference to a reserve Judge so far as the reference relates to any period on or after that commencement.
S. 81I inserted by No. 5/2013 s. 12, repealed by No. 8750 s. 81I(4).
* * * * *
S. 81J inserted by No. 63/2013 s. 12.
81J Transitional provision—Courts Legislation Amendment (Judicial Officers) Act 2013
A reserve Judge currently engaged by the Attorney-General under section 81B as in force immediately before the amendment of that section by the Courts Legislation Amendment (Judicial Officers) Act 2013 is taken to have been engaged by the Chief Justice under section 81B as amended by that Act and his or her engagement continues and has effect accordingly.
S. 81K inserted by No. 3/2016 s. 41.
81K Transitional provision—Justice Legislation Further Amendment Act 2016
(1) Within 3 months of the commencement of section 25(2) of the Justice Legislation Further Amendment Act 2016, the Attorney-General must recommend to the Governor under section 75B(2) the appointment of the person who holds the office of Chief Judge immediately before that commencement and also at the date of the recommendation to the office of Judge of the Court referred to in section 75(3)(d).
(2) On the making of the appointment referred to in subsection (1), the Chief Judge concurrently holds both the office of Chief Judge under the County Court Act 1958 and the office of Judge of the Supreme Court referred to in section 75(3)(d).
S. 82 (Heading) inserted by No. 29/2015 s. 76(1).
S. 82 amended by Nos 8853 s. 2(a)(b), 9063 s. 2(a)(b), 9176 s. 2(a)(b), 9293 s. 2(a)(b), substituted by No. 9468 s. 2(a).
82 Salaries, allowances, other conditions of service and pension entitlements of Judges of the Supreme Court
S. 82(1) amended by Nos 9813 s. 2(a), 4/1987 s. 3(1)(a)(i)–(iv), 64/1990 s. 20(Sch. item 1.2(a)), 22/1995 s. 17(1)(a)(b), 4/2002 s. 12(1)(a)(i), 38/2004 s. 12(1), 29/2015 s. 76(5).
(1) The Chief Justice shall be paid a salary at the rate for the time being applicable under the Judicial Entitlements Act 2015.
S. 82(1A) inserted by No. 109/1994 s. 15(1) (as amended by No. 22/1995 s. 29(3)(a)), amended by Nos 22/1995 s. 17(2), 95/1997
s. 6, 4/2002 s. 12(1)(a)(ii), 38/2004 s. 12(2), 29/2015 s. 76(5).
(1A) The President of the Court of Appeal shall be paid a salary at the rate for the time being applicable under the Judicial Entitlements Act 2015.
S. 82(1B) inserted by No. 109/1994 s. 15(1) (as amended by No. 22/1995 s. 29(3)(b)), amended by Nos 22/1995 s. 17(2), 95/1997
s. 6, 19/2001 s. 10, 4/2002 s. 12(1)(a)(ii), 38/2004 s. 12(3), 63/2013 s. 57(1), 29/2015 s. 76(5)(6)(a).
(1B) Each Judge of Appeal shall be paid a salary at the rate for the time being applicable under the Judicial Entitlements Act 2015.
Note to s. 82(1B) inserted by No. 29/2015 s. 76(2).
Note
See section 5 of the Judicial Entitlements Act 2015 for the rates of salaries, including pro-rata salaries of Judges to whom a part-time service arrangement applies.
S. 82(1C) inserted by No. 63/2013 s. 57(2), repealed by No. 29/2015 s. 76(3).
* * * * *
S. 82(2) amended by Nos 9813 s. 2(b), 4/1987 s. 3(1)(b)(i)–(iv), 64/1990 s. 20(Sch. item 1.2(b)), 109/1994 s. 15(2), 22/1995 s. 17(3)(a)(b), 4/2002 s. 12(1)(a)(i), 38/2004 s. 12(4), 63/2013 s. 57(3), 29/2015 s. 76(5)(6)(b).
(2) Each other Judge of the Court shall be paid a salary at the rate for the time being applicable under the Judicial Entitlements Act 2015.
S. 82(2A) inserted by No. 63/2013 s. 57(4), repealed by No. 29/2015 s. 76(3).
* * * * *
S. 82(3) substituted by Nos 9813 s. 3, 4/1987 s. 3(1)(c), amended by Nos 64/1990 s. 20(Sch. item 1.2(c)(i)–(iv)), 109/1994 s. 15(3)(4)(a), substituted by No. 22/1995 s. 17(4), amended by No. 4/2002 s. 12(1)(a)(ii), substituted by Nos 38/2004 s. 12(5) 29/2015 s. 76(4).
(3) Each Judge of the Court is entitled to the allowances and the other conditions of service for that office that are for the time being applicable under the Judicial Entitlements Act 2015.
S. 82(3A) inserted by No. 3/2016 s. 42(1).
(3A) Despite subsections (2) and (3), a Judge of the Court who is a dual commission holder as Chief Judge—
(a) is not entitled to the salary, allowances and conditions of service of a Judge of the Court during the period of being a dual commission holder; and
(b) is entitled to the salary, allowances and conditions of service of the Chief Judge referred to in section 10(1A) of the County Court Act 1958.
S. 82(4) substituted by Nos 9813 s. 3, 4/1987 s. 3(1)(c), amended by Nos 64/1990 s. 20(Sch. item 1.2(d)
(i)–(viii)), 109/1994 s. 15(4)(b)(c), repealed by No. 22/1995 s. 17(5)(a), new s. 82(4) inserted by No. 83/2008 s. 3(1), repealed by No. 29/2015
s. 76(6)(c).
* * * * *
S. 82(4A) inserted by No. 9813 s. 3, repealed by No. 4/1987 s. 3(1)(c).
* * * * *
S. 82(5) substituted by No. 4/1987 s. 3(1)(c), amended by Nos 64/1990 s. 20(Sch. item 1.2(e)), 109/1994 s. 15(4)(a), repealed by No. 22/1995 s. 17(5)(a), new s. 82(5) inserted by No. 83/2008 s. 3(1), repealed by No. 29/2015 s. 76(6)(c).
* * * * *
S. 82(5A) inserted by No. 83/2008 s. 3(1), repealed by No. 29/2015 s. 76(6)(c).
* * * * *
S. 82(6) substituted by No. 4/1987 s. 3(1)(c), amended by Nos 64/1990 s. 20(Sch. item 1.2(e)), 109/1994 s. 15(4)(c), repealed by No. 22/1995 s. 17(5)(a), new s. 82(6) inserted by No. 83/2008 s. 3(1), repealed by No. 29/2015 s. 76(6)(c).
* * * * *
S. 82(6A) inserted by No. 4/1987 s. 3(1)(c), amended by No. 109/1994 s. 15(4)(d), repealed by No. 22/1995 s. 17(5)(a).
* * * * *
S. 82(6B) inserted by No. 4/1987 s. 3(1)(c), amended by Nos 109/1994 s. 15(4)(a), 22/1995 s. 17(5)(b).
(6B) Nothing in this section authorises the salaries or the aggregate value of the allowances payable to the Chief Justice, the President of the Court of Appeal, the Judges of Appeal and the other Judges of the Court to be reduced.
S. 82(6C) inserted by No. 83/2008 s. 3(2), repealed by No. 29/2015 s. 76(6)(d).
* * * * *
S. 82(6D) inserted by No. 63/2013 s. 57(5).
(6D) A part-time service arrangement does not constitute a reduction in the salary of the Judge of the Court or Associate Judge who enters into the arrangement.
S. 82(6E) inserted by No. 3/2016 s. 42(2).
(6E) The appointment of a Judge of the Court as a dual commission holder as Chief Judge does not constitute a reduction in the salary or allowances of the Judge of the Court who takes the appointment.
S. 82(7) amended by Nos 64/1990 s. 20(Sch. item 1.2(f)), 22/1995 s. 17(5)(c), substituted by No. 1/2000 s. 3(2).
(7) The following are to be paid out of the Consolidated Fund, which is appropriated to the necessary extent—
S. 82(7)(a) amended by Nos 83/2008 s. 3(3), 29/2015 s. 55(1)(a).
(a) the amounts (including the amount of any non-salary benefits) payable to or for a Judge; and
S. 82(7)(b) amended by No. 67/2013 s. 649(Sch. 9 item 5(2)).
(b) premiums and other amounts payable under the Workplace Injury Rehabilitation and Compensation Act 2013 in respect of the Judges of the Court; and
S. 82(7)(c) amended by No. 24/2008 s. 7(b).
(c) payroll tax payable under the Payroll Tax Act 2007 in respect of wages paid or payable to the Judges of the Court; and
S. 82(7)(d) amended by No. 29/2015 s. 55(1)(b).
(d) tax payable under the Fringe Benefits Tax Act 1986 of the Commonwealth in respect of fringe benefits provided to the Judges of the Court; and
S. 82(7)(e) inserted by No. 29/2015 s. 55(1)(c).
(e) superannuation contributions and payments, if applicable, that are payable.
S. 82(7A) inserted by No. 83/2008 s. 3(4), repealed by No. 29/2015 s. 76(6)(d).
* * * * *
S. 82(7B) inserted by No. 83/2008 s. 3(4), repealed by No. 29/2015 s. 76(6)(d).
* * * * *
S. 82(8) repealed by No. 64/1990 s. 20(Sch. item 1.2(g)).
* * * * *
S. 82(9) inserted by No. 16/1986 s. 5(2), amended by No. 14/2006 s. 5, repealed by No. 29/2015 s. 76(6)(d).
* * * * *
S. 82(10) inserted by No. 83/2008 s. 3(5), amended by No. 29/2015 ss 55(2), 76(7).
(10) In this section, non-salary benefits has the same meaning as it has in clause 3(5) and (6) of Schedule 1A to the Public Administration Act 2004.
No. 6387 s. 12.
S. 83 (Heading) inserted by No. 23/2008 s. 6(1).
83 As to pensions of Judges of the Supreme Court and their partners and children
S. 83(1) amended by No. 9468 s. 2(b).
(1) Every Judge of the Court who—
S. 83(1)(a) substituted by No. 22/1995 s. 18(1).
(a) has attained—
(i) the age of 65 years; or
S. 83(1)(a)(ii) amended by No. 39/2003 s. 3(1)(a).
(ii) in the case of a Judge appointed as a Judge of the Court before the commencement of section 18 of the Judicial Remuneration Tribunal Act 1995, the age of 60 years; or
S. 83(1)(a)(iii) inserted by No. 39/2003 s. 3(1)(b), amended by No. 38/2008 s. 3.
(iii) in the case of a Judge to whom subsection (6)(b) or (6)(ba) applies who was appointed as a Judge of the Court after the commencement of section 18 of the Judicial Remuneration Tribunal Act 1995 but who before that commencement had service that, by force of that subsection, counts as service in the office of Judge of the Court, the age of 60 years—
and has served for not less than 10 years in the office of Judge of the Court; or
Note to s. 83(1)(a) inserted by No. 29/2015 s. 77.
Note
Section 18 of the Judicial Remuneration Tribunal Act 1995 commenced on 18 May 1995. Section 18 was repealed on 29 March 2000 by the Courts and Tribunals Legislation (Amendment) Act 2000 and the Judicial Remuneration Tribunal Act 1995 was repealed by the Judicial Entitlements Act 2015.
S. 83(1)(aa) inserted by No. 22/1995 s. 18(1).
(aa) has served for not less than 20 years in the office of Judge of the Court; or
(b) having been appointed before he attained the age of sixty years has become afflicted with some permanent incapacity disabling him from the due execution of his office—
shall upon resignation or retirement from his office be entitled to a pension payable fortnightly at the rate per annum of 60 per centum of the annual salary for the time being applicable to the office that he held immediately before his retirement.
Note to s. 83(1) inserted by No. 5/2013 s. 13(1).
Note
See sections 81D and 81F as to pension entitlements and appointment as a reserve Judge.
S. 83(1A) inserted by No. 22/1995 s. 18(2).
(1A) A Judge of the Court who—
(a) had attained the age of 60 years when appointed as a Judge of the Court; and
(b) has attained the age of 70 years—
is entitled upon resignation or retirement from office to a pension payable fortnightly at the proportion of the rate of the pension that would have been payable if he or she had served 10 years that is equal to the proportion of 10 years served as a Judge.
S. 83(1B) inserted by No. 22/1995 s. 18(2).
(1B) A Judge of the Court who—
(a) had attained the age of 60 years when appointed as a Judge of the Court; and
(b) has become afflicted with some permanent incapacity disabling him or her from the due execution of his or her office—
is entitled, upon resignation or retirement from office, to a pension payable fortnightly at the rate of the pension that would have been payable under subsection (1A) if he or she had served until attaining the age of 70 years.
S. 83(1C) inserted by No. 14/2006 s. 6, amended by No. 24/2007 s. 8(4).
(1C) A Judge of the Court who—
(a) was appointed as a Judge of the Court before the commencement of section 16 of the Judicial Remuneration Tribunal Act 1995; and
(b) has served for not less than 10 years in the office of Judge of the Court; and
(c) has attained the age of 60 years—
may resign in writing from his or her office before attaining the age of 65 years and then on attaining the age of 65 years shall be entitled to a pension payable fortnightly at the rate per annum of 60 per centum of the annual salary for the time being applicable to the office that he or she held immediately before his or her resignation.
S. 83(1D) inserted by No. 24/2007 s. 9(1).
(1D) A person who—
(a) having resigned from the office of Judge of the Court in the circumstances set out in subsection (1C); and
(b) before attaining the age of 65 years has become afflicted with some permanent incapacity which, had he or she not resigned, would have disabled him or her from the due execution of his or her office—
is entitled, on becoming so afflicted, to a pension payable fortnightly at the rate of the pension that would have been payable under subsection (1C) if he or she had attained the age of 65 years before becoming so afflicted.
S. 83(2) substituted by No. 9468 s. 2(c), amended by No. 46/1987 s. 6, substituted by No. 109/1994 s. 16(1), amended by No. 23/2008 s. 6(2).
(2) Upon the death—
(a) of any Judge of the Court; or
S. 83(2)(b) amended by No. 24/2007 s. 9(2).
(b) of any person who was formerly a Judge of the Court and entitled to a pension under subsection (1), (1A), (1B), (1C) or (1D)—
the partner of the Judge or former Judge is entitled, until death or marriage or until the partner becomes the domestic partner of another person, to a pension payable fortnightly at the rate of three-eighths of the annual salary for the time being payable under section 82 in respect of the office held by the Judge at the date of death or by the former Judge at the date of resignation or retirement, as the case requires.
S. 83(2A) inserted by No. 9468 s. 2(d).
(2A) Where there are eligible children of a deceased judge and no pension is otherwise payable under subsection (1) or (2) to or in respect of that judge there shall be paid to such person or persons as the Attorney-General directs a pension in respect of each eligible child at the rate of pension applicable to the child under subsection (2B).
S. 83(2B) inserted by No. 9468 s. 2(d), amended by No. 23/2008 s. 6(2)(a).
(2B) The pension applicable to each child shall be the amount of the pension that would be payable to the partner of the judge if the partner was entitled to a pension under this Part divided by four or the number of eligible children (whichever is the greater).
S. 83(2C) inserted by No. 9468 s. 2(d), amended by No. 23/2008 s. 7.
(2C) Eligible child in relation to a judge means a child adopted child or stepchild of the judge or his or her partner—
(a) who is under the age of 16 years; or
S. 83(2C)(b) amended by No. 9902 s. 2(1)(Sch. item 29).
(b) who—
(i) has attained the age of 16 years but is under the age of 25 years; and
(ii) is receiving full-time education at a school college or university.
S. 83(3) inserted by No. 46/1987 s. 6, substituted by No. 23/2008 s. 6(3).
(3) Notwithstanding subsection (2), no pension is payable to the partner of any former Judge in any case where that partner married or became the domestic partner of the former Judge after that Judge's resignation or retirement, unless in the case of marriage, the spouse was the domestic partner of the Judge immediately prior to that Judge's resignation or retirement.
S. 83(3A) inserted by No. 3/2016 s. 43(1).
(3A) If a dual commission holder resigns the office of Judge of the Court but continues in the office of Chief Judge, that person is taken not to have resigned or retired from the office of Judge of the Court for the purposes of subsections (1), (1A), (1B), (1C) and (1D).
S. 83(3B) inserted by No. 3/2016 s. 43(1).
(3B) If a dual commission holder simultaneously resigns the office of Judge of the Court and the office of Chief Judge, that person is taken not to have resigned or retired from the office of Judge of the Court for the purposes of subsections (1), (1A), (1B), (1C) and (1D), but section 14 of the County Court Act 1958 may apply if the person would otherwise be entitled to a pension under that section.
S. 83(3C) inserted by No. 3/2016 s. 43(1).
(3C) In the case of the death of a Judge of the Court who is a dual commission holder as Chief Judge, subsection (2) does not apply and section 14 of the County Court Act 1958 applies.
(4) Unless the Governor in Council by Order otherwise determines in any particular case the right of a Judge to a pension under this section—
(i) shall cease upon his accepting appointment to any judicial office in or outside Victoria; and
S. 83(4)(ia) inserted by No. 39/2003 s. 3(2), amended by No. 3/2005 s. 14(1).
(ia) shall be diminished by the amount of any pension to which he or she is entitled under the law of the Commonwealth or of another State or of the Northern Territory or the Australian Capital Territory, being a pension for which he or she qualified because of service that, by force of subsection (6)(ac) or (6)(ba), was or could have been counted as service in the office of Judge of the Court; and
S. 83(4)(ii) amended by No. 35/1996 s. 453(Sch. 1 item 11.3(a) (b)).
(ii) shall be suspended while—
he holds any office or place of profit under the Crown in right of the Commonwealth or of a State; or
he is engaged in legal practice in any State or Territory of the Commonwealth or is employed by any legal practitioner in connexion with his practice in any such State or Territory:
Provided that this subsection does not apply to or in relation to a Judge who resigned or retired before the 15th day of February, 1970.
S. 83(5) amended by No. 19/2001 s. 7.
(5) All pensions under this section or under any corresponding previous enactment and any payments of lump sums provided by the commutation of those pensions shall be payable out of the Consolidated Fund which is hereby to the necessary extent appropriated accordingly.
S. 83(6) amended by No. 63/2013 s. 58.
(6) For the purposes of this section and section 83AAA—
S. 83(6)(aa) inserted by No. 3/2005 s. 5, amended by Nos 24/2008 s. 8(a), 5/2013 s. 13(2).
(aa) if, before the repeal of section 80D by section 10 of the Courts Legislation Amendment (Reserve Judicial Officers) Act 2013, any Judge or Associate Judge of the Court was immediately prior to his or her appointment—
(i) an acting Judge of the Court; or
(ii) an acting judge of the County Court—
his or her service as acting Judge shall count as service in the office of Judge or Associate Judge of the Court (as the case may be);
(a) if any Judge of the Court was immediately prior to his appointment Solicitor-General his service as Solicitor-General shall count as service in the office of Judge of the Court;
S. 83(6)(ab) inserted by No. 43/1994 s. 53, amended by No. 36/1995 s. 12(a)(b).
(ab) if any Judge of the Court was immediately prior to his or her appointment Director of Public Prosecutions, Chief Crown Prosecutor or a Senior Crown Prosecutor, his or her service as Director of Public Prosecutions, Chief Crown Prosecutor or a Senior Crown Prosecutor shall count as service in the office of Judge of the Court;
S. 83(6)(ac) inserted by No. 3/2005 s. 14(2).
(ac) if any Judge of the Court was immediately prior to his or her appointment—
S. 83(6)(ac)(i) amended by No. 24/2008 s. 8(b)(i).
(i) a Master or Associate Judge of the Court; or
S. 83(6)(ac)(ii) amended by Nos 24/2008 s. 8(b)(ii), 29/2015 s. 56(2).
(ii) a master of the County Court or an associate judge of the County Court or a master or associate judge (however described) of a court of another State, the Northern Territory or the Australian Capital Territory, other than a Local Court, Magistrates' Court or equivalent court—
his or her service as such shall count as service in the office of Judge of the Court;
S. 83(6)(ad) inserted by No. 28/2013 s. 5.
(ad) if any Judge of the Court was immediately prior to his or her appointment the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 or the Inspector within the meaning of the Victorian Inspectorate Act 2011, his or her service as Commissioner or Inspector, as the case requires, shall count as service in the office of Judge of the Court;
(b) if any Judge of the Court was immediately prior to his appointment a Judge of the County Court his service as a Judge of the County Court or of County Courts shall count as service in the office of Judge of the Court;
S. 83(6)(baa) inserted by No. 29/2015 s. 56(1).
(baa) if any Judge of the Court was immediately prior to the Judge's appointment Chief Magistrate and the appointment as Chief Magistrate was made on or after 6 March 2001, that person's service as Chief Magistrate shall count as service in the office of Judge of the Court;
S. 83(6)(ba) inserted by No. 39/2003 s. 3(3).
(ba) if any Judge of the Court was immediately prior to his or her appointment—
S. 83(6)(ba)(i) amended by No. 29/2015 s. 56(3).
(i) a judge of the High Court of Australia or of a court created by the Parliament of the Commonwealth, other than the Federal Circuit Court of Australia; or
S. 83(6)(ba)(ii) amended by No. 29/2015 s. 56(4).
(ii) a judge of a court of another State or of the Northern Territory or the Australian Capital Territory, other than a Local Court, Magistrates' Court or equivalent court—
his or her service as such a judge shall count as service in the office of Judge of the Court;
S. 83(6)(bb) inserted by No. 3/2016 s. 43(2).
(bb) if a Judge of the Court is a dual commission holder as Chief Judge, the Judge is taken to not hold the office of Judge of the Court during the period of holding the dual commission when counting service in the office of Judge of the Court;
S. 83(6)(bc) inserted by No. 3/2016 s. 43(2).
(bc) if a Judge of the Court is a dual commission holder as Chief Judge, the person's service in the office of judge of the County Court, whilst a dual commission holder, shall count as service in the office of Judge of the Court;
S. 83(6)(c) amended by No. 16/1986 s. 4(c).
(c) any reference to retirement of a Judge of the Court shall be deemed to be a reference to his commission ceasing to be in force in accordance with section 77(4).
S. 83(6A) inserted by No. 30/2005 s. 4,
amended by No. 29/2015 s. 56(5).
(6A) For the purposes of subsection (6)(ab), if a Judge of the Court who immediately prior to his or her appointment held the office of Director of Public Prosecutions, Chief Crown Prosecutor or a Senior Crown Prosecutor (a relevant office) had also held another one or more of those relevant offices immediately prior to, or successively prior to, the person's appointment to the last relevant office held by that person, then that person's service in that other relevant office or those other relevant offices counts as service in the last of the relevant offices held by the person.
S. 83(6B) inserted by No. 29/2015 s. 56(6).
(6B) Without limiting subsection (6A), for the purposes of subsections (6) and (6A), if a Judge of the Court who held a recognised service office immediately prior to the Judge's appointment had also held another one or more recognised service offices immediately prior to, or successively prior to, that person's appointment to the last recognised service office held by that person, then that person's service in that other recognised service office or those other recognised service offices counts as service in the last recognised service office held by that person.
S. 83(6C) inserted by No. 29/2015 s. 56(6).
(6C) For the purposes of this section—
recognised service office means an office specified in subsection (6) or (6A) as counting as service in the office of Judge of the Court.
S. 83(7) inserted by No. 109/1994 s. 16(2), amended by No. 23/2008 s. 6(2)(a).
(7) A reference in this section to the annual salary for the time being applicable or payable in respect of an office held immediately before retirement or at the date of death, resignation or retirement is, in relation to a puisne judge who resigned or retired before the commencement of section 16 of the Constitution (Court of Appeal) Act 1994 or the partner of such a puisne judge, a reference to the annual salary for the time being payable under section 82(2).
S. 83(8) inserted by No. 23/2008 s. 8.
(8) For the purpose of regulation 65 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth, the Minister on the advice of an actuary appointed by the Minister may from time to time determine the accrued benefit multiple.
S. 83(9) inserted by No. 23/2008 s. 8, amended by No. 38/2009 s. 19(1).
(9) Subject to subsections (13) and (14), the Minister must comply with subsections (11) and (12) if—
(a) a superannuation agreement which provides for a payment split; or
(b) a flag lifting agreement which provides for a payment split; or
(c) a splitting order—
is served on the Minister under Part VIIIB or VIIIAB of the Family Law Act 1975 of the Commonwealth.
S. 83(10) inserted by No. 23/2008 s. 8.
(10) Subsections (11) and (12) also apply to—
(a) a superannuation agreement which provides for a payment split; or
(b) a flag lifting agreement which provides for a payment split; or
(c) a splitting order—
which was served on the Minister under Part VIIIB of the Commonwealth Family Law Act 1975 before the commencement of section 3 of the Constitution Amendment (Judicial Pensions) Act 2008 if the non-member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement.
S. 83(10A) inserted by No. 38/2009 s. 19(2).
(10A) This section also applies to—
(a) a superannuation agreement which provides for a payment split; or
(b) a flag lifting agreement which provides for a payment split; or
(c) a splitting order—
which was served on the Minister under Part VIIIAB of the Commonwealth Family Law Act 1975 before the commencement of section 19 of the Superannuation Legislation Amendment Act 2009 if the non-member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement.
S. 83(11) inserted by No. 23/2008 s. 8.
(11) If the non-member spouse has not satisfied a relevant condition of release and the member spouse is not receiving a pension under this Act, the Minister must if the value of the non-member spouse's entitlement in respect of the superannuation interest at the particular time does not exceed the value of the member spouse's interest in the Fund—
(a) transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible superannuation plan nominated in writing by the non-member spouse within the specified period; or
(b) if the non-member spouse fails to nominate in writing an eligible superannuation plan within the specified period, transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Minister.
S. 83(12) inserted by No. 23/2008 s. 8.
(12) If the non-member spouse has satisfied a relevant condition of release or the member spouse is receiving a pension under this Act, the Minister must if the value of the non-member spouse's entitlement in respect of the superannuation interest at the particular time does not exceed the value of the member spouse's interest in the Fund—
(a) if so requested in writing by the non-member spouse within the specified period, pay the non-member spouse a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment; or
(b) if so requested in writing by the non-member spouse within the specified period, transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible superannuation plan nominated in writing by the non-member spouse; or
(c) if no request is received from the non-member spouse within the specified period, transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Minister.
S. 83(13) inserted by No. 23/2008 s. 8.
(13) Subsections (11) and (12) do not apply if—
(a) the member spouse's superannuation interest is an unsplittable interest; or
(b) a payment flag is operating in respect of the member spouse's superannuation interest; or
(c) the non-member spouse has served a waiver notice on the Minister under section 90MZA of the Family Law Act 1975 of the Commonwealth in respect of the member spouse's superannuation interest; or
(d) the member spouse's superannuation interest is a payment that is not a splittable payment under Part 2 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth.
S. 83(14) inserted by No. 23/2008 s. 8.
(14) If the member spouse's superannuation interest is a pension under this Act due to a disability which is a splittable payment, the Minister may determine that subsections (11) and (12) do not apply.
S. 83(15) inserted by No. 23/2008 s. 8.
(15) If the non-member spouse serves a waiver notice on the Minister under section 90MZA of the Family Law Act 1975 of the Commonwealth in respect of the member spouse's superannuation interest, the Minister may make a payment to the non-member spouse not exceeding the value at a particular time of the non-member spouse's entitlement in respect of the superannuation interest less any payments previously made by the Minister to the non-member spouse in accordance with this section.
S. 83(16) inserted by No. 23/2008 s. 8.
(16) Despite anything to the contrary in this Act, if under subsection (11), (12) or (15) an amount is paid by the Minister to a non-member spouse or transferred by the Minister on behalf of a non-member spouse, the benefit of a member spouse must be reduced by the Minister in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Minister.
S. 83(17) inserted by No. 23/2008 s. 8.
(17) On the application of an eligible person within the meaning of section 90MZB(8) of the Family Law Act 1975 of the Commonwealth, the Minister may provide information additional to the information required to be provided under section 90MZB of that Act if the Minister considers that the additional information is necessary to understand the member spouse's benefit entitlements.
S. 83(18) inserted by No. 23/2008 s. 8.
(18) The entitlement of a person to convert or commute a benefit or pension under this Act is not affected by the making of a payment or transfer under subsection (11), (12) or (15).
S. 83(19) inserted by No. 23/2008 s. 8.
(19) The Minister may charge reasonable fees in respect of—
(a) a payment split;
(b) a payment flag;
(c) flag lifting under a flag lifting agreement that does not provide for a payment split;
(d) an order under section 90MM of the Family Law Act 1975 of the Commonwealth terminating the operation of a payment flag;
(e) an application under section 90MZB of the Family Law Act 1975 of the Commonwealth for information about a superannuation interest;
(f) any other thing done by the Minister in relation to a superannuation interest covered by a superannuation agreement, flag lifting agreement or splitting order;
(g) the provision of information under subsection (17).
S. 83(20) inserted by No. 23/2008 s. 8.
(20) Fees charged under subsection (19) must not exceed the maximum levels of fees fixed by the Minister for the purposes of this section by notice published in the Government Gazette.
S. 83(21) inserted by No. 23/2008 s. 8.
(21) If the Minister charges a fee under subsection (19), the fee is payable—
(a) unless paragraph (b) applies, in the case of subsection (19)(a), (19)(b), (19)(c), (19)(d) or (19)(f), by the member spouse and the non-member spouse in equal parts;
(b) if the fee is in respect of a payment split under which the non-member spouse is entitled to be paid the whole of the amount of each splittable payment that becomes payable, by the non-member spouse;
(c) in the case of subsection (19)(e) or (19)(g), by the person who made the application.
S. 83(22) inserted by No. 23/2008 s. 8.
(22) For the purposes of this section, the Minister may, with such modifications as are necessary, adopt any specified standards made by Order in Council under section 92A of the State Superannuation Act 1988 for the purposes of Part 7A of that Act.
S. 83(23) inserted by No. 16/2016 s. 149.
(23) For the purposes of this section, a reference to the resignation or retirement of a Judge of the Court includes a reference to the removal of a Judge from office by the Governor in Council under section 87AAB on the ground of proved incapacity if both Houses of the Parliament pray for the removal solely on the ground of proved incapacity.
S. 83(24) inserted by No. 16/2016 s. 149.
(24) A removal referred to in subsection (23) is taken to be a resignation or retirement due to the Judge of the Court having become afflicted with some permanent incapacity disabling the Judge from the due execution of the Judge's office.
S. 83AAA inserted by No. 63/2013 s. 59.
83AAA Effect of part-time service arrangement on judicial pensions
(1) If a Judge of the Court has served under a part-time service arrangement, his or her pension under section 83, and any pension payable in relation to the Judge's partner or eligible children under that section, is reduced by multiplying the amount of the pension by the relevant factor determined under subsection (2) or (3).
(2) Subject to subsection (3), the factor for the purposes of subsection (1) is the highest of—
(a) the proportion of service that occurs during the period when the Judge served in the office of Judge of the Court;
(b) if the Judge is eligible for a pension under section 83(1)(a), the proportion of service that occurs within the 10 year period immediately before the Judge's retirement or resignation;
(c) if the Judge is eligible for a pension under section 83(1)(aa), the proportion of service that occurs in the periods in office that—
(i) involve the highest proportion of full-time duties; and
(ii) cumulatively total 20 years.
(3) If a Judge of the Court continues service in office beyond the date on which he or she would qualify for a pension and a higher factor would have been calculated under subsection (2) if the Judge's period of office had ended on a date between that date of qualification and the date the Judge actually resigns or retires, that higher factor is the factor by which the pension must be multiplied under subsection (1).
(4) In this section—
judicial service means the sum of—
(a) all part-time service performed by a Judge of the Court calculated by reference to the proportion of full time duties specified by each part-time service arrangement; and
(b) all full-time service performed by the Judge;
proportion of service means the judicial service during the relevant period divided by the relevant period.
Example
Judge A is appointed at the age of 55 and retires after 15 years at the age of 70. Judge A serves a combination of full-time and part-time service as follows—
(a) first 8 years as a Judge is part-time service at 0∙8 of full-time service;
(b) next 7 years as a Judge is full-time service.
At the time of Judge A's retirement, the period that Judge A served in the office of Judge under subsection (2)(a) was 15 years and the proportion of service during that period was 13∙4 years (i.e. 8 × 0∙8 + 7). In the 10 year period immediately before Judge A's retirement, the proportion of service was 9∙4 years
(i.e. 3 × 0∙8 + 7).
The proportion of service under subsection (2)(a) is 0∙893 (i.e. 13∙4 ÷ 15) and under subsection (2)(b) is 0∙94
(i.e. 9∙4 ÷ 10) and these are the relevant factors.
Subsection (3) does not alter the relevant factor in this case.
The highest proportion of service is 0∙94, which is the relevant factor. Judge A will therefore receive 94∙0% of a full judicial pension.
S. 83AA inserted by No. 19/2001 s. 8.
83AA Election of Judges of the Supreme Court to commute future pensions for payment of superannuation contributions surcharge
S. 83AA(1) amended by No. 23/2008 s. 6(4).
(1) A Judge of the Court may elect in writing to the Minister to have part of his or her future pension entitlement and that of his or her partner or eligible child, if any, under this Act commuted to provide a lump sum for the purposes of payment of the whole of the liability for the superannuation contributions surcharge arising because of the entitlement of the Judge or his or her partner or eligible child to receive a pension under this Act.
(2) A Judge of the Court may by notice in writing to the Minister revoke his or her election under subsection (1).
S. 83AB
inserted by No. 19/2001 s. 8.
83AB Actuary's first calculation after election of Judges of the Court to commute pensions
(1) If an election under section 83AA is in operation, within 10 days after the day on which a Judge of the Court resigns, retires or dies while in office, the Minister must—
S. 83AB(1)(a) amended by No. 23/2008 s. 6(4).
(a) cause an actuary to determine the extent to which the former Judge of the Court's pension and any future entitlement of the Judge's partner or eligible child to a pension upon the Judge's death otherwise payable under this Act will be reduced subject to subsection (4) and taking into account the lump sum to be provided by the commutation of part of the Judge's total pension entitlement and that of his or partner or eligible child at the time at which the former Judge became entitled to his or her pension for the purposes of payment of the whole of the liability for the superannuation contributions surcharge; and
S. 83AB(1)(b) amended by No. 23/2008 s. 6(4).
(b) notify the former Judge of the Court or, if he or she has died, the former Judge's partner or eligible child of the actuary's determination under subsection (1)(a).
S. 83AB(2) amended by No. 23/2008 s. 6(4).
(2) A former Judge of the Court or, if he or she has died, the former Judge's partner or eligible child may revoke the election under section 83AA within 10 days after the Minister's notification under subsection (1)(b).
S. 83AB(3) amended by No. 23/2008 s. 6(4).
(3) If an election under section 83AA is in operation, the former Judge of the Court's pension and any future entitlement of the former Judge's partner or eligible child to a pension upon the Judge's death otherwise payable from time to time under this Act must be reduced to the extent determined under subsection (1).
(4) For the purposes of subsection (1)—
(a) the reduction of the former Judge's pension must not exceed 15% of his or her total pension entitlement under the Act on the day on which the Judge resigned or retired; and
S. 83AB(4)(b) amended by No. 23/2008 s. 6(4).
(b) the reduction of any future entitlement of the Judge's partner or eligible child to a pension must not exceed 15% of an amount equal to the total pension entitlement of the Judge's partner and eligible children on the day on which the Judge resigned, retired or died while in office; and
(c) each reduction referred to in paragraph (a) and (b) must be a fixed percentage to be applied to the pension entitlement under the Act and, if paragraphs (a) and (b) both apply, the percentage must be the same; and
(d) each reduction must be applied from the entitlement day according to paragraph (a) or (b).
S. 83AC
inserted by No. 19/2001 s. 8.
83AC Actuary's second calculation after the Judges' elections to commute pensions and payment of lump sums
S. 83AC(1) amended by No. 23/2008 s. 6(4).
(1) If an election under section 83AA is in operation, a former Judge of the Court or, if he or she has died, the Judge's partner or eligible child must, within 60 days after the day on which a superannuation contributions surcharge notice was issued in respect of the Judge's pension, lodge with the Minister—
S. 83AC(1)(a) amended by No. 23/2008 s. 6(4).
(a) a notice that authorises the Minister to pay the lump sum that is equal to the superannuation contributions surcharge on behalf of the former Judge or his or her partner or eligible child to the Commissioner of Taxation to be applied wholly towards payment of the superannuation contributions surcharge; and
(b) a copy of the superannuation contributions surcharge notice.
(2) Within 10 days after the day on which the Minister received the authorisation and a copy of the superannuation contributions surcharge notice under subsection (1), the Minister must cause an actuary—
(a) to review the determination made under section 83AB(1); and
S. 83AC(2)(b) amended by No. 23/2008 s. 6(4).
(b) subject to section 83AB(4), make any necessary adjustments to the determination and to the pension payable to the former Judge of the Court and to any future entitlement of the former Judge's partner or eligible child to a pension upon the Judge's death.
(3) If an election under section 83AA is in operation and the Minister has received an authorisation under subsection (1), the Minister must cause the amount of the lump sum to be paid to the Commissioner of Taxation within the period stated in the superannuation contributions surcharge notice to be applied towards payment of the superannuation contributions surcharge.
S. 83AD
inserted by No. 19/2001 s. 8.
83AD Election of former Judges of Court to commute pensions for payment of superannuation contributions surcharge
S. 83AD(1) amended by No. 23/2008 s. 6(4).
(1) If no election under section 83AA is in operation, a former Judge of the Court who is entitled to receive a pension under this Act may elect to have part of his or her pension and that of his or her partner or eligible child, if any, commuted to provide a lump sum for the purposes of payment of the whole or part of the liability for the superannuation contributions surcharge arising because of the entitlement of the former Judge or his or her partner or eligible child to receive a pension under this Act.
(2) An election under subsection (1) must—
S. 83AD(2)(a) amended by No. 23/2008 s. 6(5).
(a) be made in writing to the Minister within 60 days after the day on which a superannuation contributions surcharge notice is issued in respect of a former Judge of the Court's pension or his or her partner's or eligible child's pension; and
(b) specify the amount of the lump sum (not exceeding the superannuation contributions surcharge) to be provided by the commutation of the pensions; and
S. 83AD(2)(c) amended by No. 23/2008 s. 6(4).
(c) authorise the Minister to pay the lump sum on behalf of the former Judge or his or her partner or eligible child to the Commissioner of Taxation to be applied wholly towards payment of the superannuation contributions surcharge; and
(d) be accompanied by a copy of the superannuation contributions surcharge notice.
S. 83AE
inserted by No. 19/2001 s. 8.
83AE Actuary's calculation after former Judges' election to commute pensions
(1) If an election under section 83AD is in operation, the Minister must within 10 days after the day on which the Minister received the election—
S. 83AE(1)(a) amended by No. 23/2008 s. 6(4).
(a) cause an actuary to determine the extent to which a former Judge of the Court's pension and any future entitlement of the partner or eligible child of the former Judge to a pension upon the Judge's death otherwise payable under this Act will be reduced subject to section 83AF(3) and taking into account the specified amount of the lump sum to be provided by the commutation of the pensions; and
S. 83AE(1)(b) amended by No. 23/2008 s. 6(4).
(b) notify the former Judge of the Court or, if he or she has died, the former Judge's partner or eligible child of the actuary's determination under subsection (1)(a).
S. 83AE(2) amended by No. 23/2008 s. 6(4).
(2) A former Judge of the Court or, if he or she has died, the former Judge's partner or eligible child may revoke the election under section 83AD within 10 days after the Minister's notification under subsection (1)(b).
S. 83AF
inserted by No. 19/2001 s. 8.
83AF Payment and commutation of pensions of former Judges of the Court
(1) If an election under section 83AD is in operation, the Minister must cause the amount of the lump sum to be paid to the Commissioner of Taxation within the period stated in the superannuation contributions surcharge notice to be applied towards payment of the superannuation contributions surcharge.
S. 83AF(2) amended by No. 23/2008 s. 6(4).
(2) The former Judge of the Court's pension and any future entitlement of the Judge's partner or eligible child to a pension upon the Judge's death otherwise payable from time to time under this Act must be reduced to the extent determined under section 83AE in consequence of the payment of the lump sum.
(3) For the purposes of section 83AE—
(a) the reduction of the former Judge's pension must not exceed 15% of his or her total pension entitlement under the Act on the day on which the Judge resigned or retired; and
S. 83AF(3)(b) amended by No. 23/2008 s. 6(4).
(b) the reduction of any future entitlement of the Judge's partner or eligible child to a pension must not exceed 15% of an amount equal to the total pension entitlement of the Judge's partner and eligible children on the day on which the Judge resigned or retired; and
(c) each reduction referred to in paragraph (a) and (b) must be a fixed percentage to be applied to the pension entitlement under the Act and, if paragraphs (a) and (b) both apply, the percentage must be the same; and
(d) the reduction must be applied from the day of payment of the lump sum under subsection (1).
S. 83AG (Heading) amended by No. 23/2008 s. 6(6).
S. 83AG
inserted by No. 19/2001 s. 8.
83AG Election of Judges' partners and eligible children to commute pensions for payment of superannuation contributions surcharge
S. 83AG(1) amended by No. 23/2008 s. 6(4).
(1) If no election under section 83AA or 83AD is in operation, a person who is entitled to receive a pension under this Act as the partner or eligible child of a deceased former Judge of the Court may elect to have part of his or her pension commuted to provide a lump sum for the purposes of payment of the whole or part of the liability for the superannuation contributions surcharge arising because of the entitlement of the former Judge to receive a pension under this Act or the entitlement of the deceased former Judge's partner or eligible child to receive a pension under this Act.
(2) An election under subsection (1) must—
S. 83AG(2)(a) amended by No. 23/2008 s. 6(5).
(a) be made in writing to the Minister within 60 days after the day on which a superannuation contributions surcharge notice was issued in respect of the deceased former Judge's pension or his or her partner's or eligible child's pension; and
(b) specify the amount of the lump sum (not exceeding the superannuation contributions surcharge) to be provided by the commutation of the pension; and
S. 83AG(2)(c) amended by No. 23/2008 s. 6(4).
(c) authorise the Minister to pay the lump sum on behalf of the person who is entitled to receive a pension under this Act as the partner or eligible child of the deceased former Judge of the Court to the Commissioner of Taxation to be applied wholly towards payment of the superannuation contributions surcharge; and
(d) be accompanied by a copy of the superannuation contributions surcharge notice.
S. 83AH (Heading) amended by No. 23/2008 s. 6(6).
S. 83AH
inserted by No. 19/2001 s. 8.
83AH Actuary's calculation of reduction of pensions of Judges' partners and eligible children
(1) If an election is made under section 83AG, the Minister must within 10 days after the day on which the Minister received the election—
S. 83AH(1)(a) amended by No. 23/2008 s. 6(4).
(a) cause an actuary to determine the extent to which the pension of a person who is entitled to receive a pension under this Act as the partner or eligible child of a deceased former Judge of the Court otherwise payable under this Act will be reduced subject to section 83AI(3) and taking into account the specified amount of the lump sum to be provided by the commutation of the pension; and
(b) notify the person of the actuary's determination under subsection (1)(a).
S. 83AH(2) amended by No. 23/2008 s. 6(4).
(2) A person who is entitled to receive a pension under this Act as the partner or eligible child of a deceased former Judge of the Court may revoke his or her election under section 83AG within 10 days after the Minister's notification under subsection (1)(b).
S. 84AI (Heading) amended by No. 23/2008 s. 6(6).
S. 83AI
inserted by No. 19/2001 s. 8.
83AI Payment and commutation of pensions of former Judges' partners and eligible children
(1) If an election under section 83AG is in operation, the Minister must cause the amount of the lump sum to be paid to the Commissioner of Taxation within the period stated in the superannuation contributions surcharge notice to be applied towards payment of the superannuation contributions surcharge.
S. 83AI(2) amended by No. 23/2008 s. 6(4).
(2) On payment of the lump sum, the pension of a person entitled to receive a pension as the partner or eligible child of the deceased former Judge of the Court otherwise payable from time to time under this Act must be reduced to the extent determined under section 83AH.
(3) For the purposes of section 83AH—
S. 83AI(3)(a) amended by No. 23/2008 s. 6(4).
(a) the reduction of any future entitlement of the Judge's partner or eligible child to a pension must not exceed 15% of—
S. 83AI(3)(a)(i) amended by No. 23/2008 s. 6(4).
(i) an amount equal to the total pension entitlement of the Judge and his or her partner and eligible children on the day on which the Judge resigned or retired; or
S. 83AI(3)(a)(ii) amended by No. 23/2008 s. 6(5).
(ii) in the case of the Judge's death while in office, an amount equal to his or her partner's and eligible children's total pension entitlement on the day on which the Judge died; and
(b) the reduction must be a fixed percentage to be applied to the pension entitlement under the Act; and
(c) the reduction must be applied from the day of payment of the lump sum under subsection (1).
S. 83A
(Heading) inserted by No. 24/2008 s. 9(1), amended by No. 29/2015 s. 78(1).
S. 83A inserted by No. 22/1995 s. 19.
83A Salaries, allowances and other conditions of service of Associate Judges
S. 83A(1) amended by No. 4/2002 s. 12(1)(b), substituted by No. 38/2004 s. 12(6), amended by Nos 24/2008 s. 9(2)(a), 63/2013 s. 60(1), 29/2015 s. 78(2).
(1) Each Associate Judge shall be paid a salary at the rate for the time being applicable under the Judicial Entitlements Act 2015.
Note to s. 83A(1) inserted by No. 29/2015 s. 78(3).
Note
See section 5 of the Judicial Entitlements Act 2015 for the rates of salaries, including pro-rata salaries of Associate Judges to whom a part-time service arrangement applies.
S. 83A(1A) inserted by No. 63/2013 s. 60(2), repealed by No. 29/2015 s. 78(4).
* * * * *
S. 83A(2) amended by No. 4/2002 s. 12(1)(b), substituted by No. 38/2004 s. 12(7), amended by No. 24/2008 s. 9(2)(a), substituted by No. 29/2015 s. 78(5).
(2) Each Associate Judge is entitled to the allowances and the other conditions of service for that office that are for the time being applicable under the Judicial Entitlements Act 2015.
S. 83A(2A) inserted by No. 83/2008 s. 5(1), amended by No. 83/2008 s. 6, repealed by No. 29/2015 s. 78(6)(a).
* * * * *
S. 83A(2B) inserted by No. 83/2008 s. 5(1), repealed by No. 29/2015 s. 78(6)(a).
* * * * *
S. 83A(2C) inserted by No. 83/2008 s. 5(1), amended by No. 83/2008 s. 6(a), repealed by No. 29/2015 s. 78(6)(a).
* * * * *
S. 83A(2D) inserted by No. 83/2008 s. 5(1), repealed by No. 29/2015 s. 78(6)(a).
* * * * *
S. 83A(3) amended by No. 24/2008 s. 9(2)(b).
(3) Nothing in this section authorises the salaries or the aggregate value of the allowances payable to the Associate Judges to be reduced.
S. 83A(3A) inserted by No. 83/2008 s. 5(2), amended by No. 83/2008 s. 6(c), repealed by No. 29/2015 s. 78(6)(b).
* * * * *
S. 83A(4) substituted by No. 1/2000 s. 3(3).
(4) The following are to be paid out of the Consolidated Fund, which is appropriated to the necessary extent—
S. 83A(4)(a) amended by Nos 83/2008 s. 5(3), 29/2015 s. 57(1)(a).
(a) the amounts (including the amount of any non-salary benefits) payable to or for an Associate Judge; and
S. 83A(4)(b) amended by Nos 24/2008 s. 9(2)(c)(i), 67/2013 s. 649(Sch. 9 item 5(3)).
(b) premiums and other amounts payable under the Workplace Injury Rehabilitation and Compensation Act 2013 in respect of the Associate Judges; and
S. 83A(4)(c) amended by No. 24/2008 s. 9(2)(c).
(c) payroll tax payable under the Payroll Tax Act 2007 in respect of wages paid or payable to the Associate Judges; and
S. 83A(4)(d) amended by Nos 24/2008 s. 9(2)(c)(i), 29/2015 s. 57(1)(b).
(d) tax payable under the Fringe Benefits Tax Act 1986 of the Commonwealth in respect of fringe benefits provided to the Associate Judges; and
S. 83A(4)(e) inserted by No. 29/2015 s. 57(1)(c).
(e) superannuation contributions and payments, if applicable, that are payable.
S. 83A(5) repealed by No. 38/2004 s. 12(8), new s. 83A(5) inserted by No. 83/2008 s. 5(4) repealed by No. 29/2015 s. 78(6)(b).
* * * * *
S. 83A(6) inserted by No. 83/2008 s. 5(4), repealed by No. 29/2015 s. 78(6)(b).
* * * * *
S. 83A(7) inserted by No. 83/2008 s. 5(4), amended by No. 29/2015 ss 57(2), 78(7).
(7) In this section non-salary benefits has the same meaning as it has in clause 3(5) and (6) of Schedule 1A to the Public Administration Act 2004.
S. 83B (Heading) amended by No. 29/2015 s. 79(1).
S. 83B inserted by No. 63/2013 s. 13.
83B Salary, allowances and other conditions of service of reserve Associate Judges
S. 83B(1) substituted by No. 29/2015 s. 79(2).
(1) Each reserve Associate Judge engaged to undertake the duties of an Associate Judge under section 105D of the Supreme Court Act 1986 is entitled to be paid a salary in accordance with the rate for the time being applicable for that office under the Judicial Entitlements Act 2015.
S. 83B(2) substituted by No. 29/2015 s. 79(2).
(2) Each reserve Associate Judge engaged to undertake the duties of an Associate Judge under section 105D of the Supreme Court Act 1986 is entitled to the allowances and other conditions of service for that office that are for the time being applicable under the Judicial Entitlements Act 2015.
S. 83B(3)–(9) repealed by No. 29/2015 s. 79(3).
* * * * *
S. 83B(10) amended by No. 29/2015 s. 79(4).
(10) Despite subsection (1), a reserve Associate Judge who is also a serving associate judge or a master (however designated) of a court of another State, the Northern Territory or the Australian Capital Territory or of the Commonwealth is not entitled to be paid a salary under this section if that person receives a salary in relation to his or her office in that other State or Territory or the Commonwealth.
S. 83B(11) repealed by No. 29/2015 s. 79(3).
* * * * *
S. 83C inserted by No. 63/2013 s. 13, amended by No. 29/2015 s. 58 (ILA s. 39B(1)).
83C Appropriation of certain amounts in relation to reserve Associate Judges
(1) The following are to be paid out of the Consolidated Fund, which is appropriated to the necessary extent—
(a) the amounts (including the amount of any non-salary benefits) payable to or for reserve Associate Judges; and
(b) premiums and other amounts payable under the Accident Compensation (WorkCover Insurance) Act 1993 in respect of any reserve Associate Judge; and
(c) payroll tax payable under the Payroll Tax Act 2007 in respect of wages paid or payable to any reserve Associate Judge; and
(d) tax payable under the Fringe Benefits Tax Act 1986 of the Commonwealth in respect of fringe benefits provided to any reserve Associate Judge; and
(e) superannuation contributions within the meaning of the Payroll Tax Act 2007 payable in respect of any reserve Associate Judge.
S. 83C(2) inserted by No. 29/2015 s. 58.
(2) In this section, non-salary benefits has the same meaning as it has in clause 3(5) and (6) of Schedule 1A to the Public Administration Act 2004.
No. 6387 s. 13.
84 Judges not to hold any other place of profit
(1) A Judge of the Court may not accept take or perform the duties of any other office or place of profit or emolument within Victoria excepting such office as is granted to him by Her Majesty's sign manual or the office of Judge of a Vice-Admiralty Court.
S. 84(2) amended by No. 64/1990 s. 20(Sch. item 1.3).
(2) Any such acceptance taking or performance of the duties of any such other office shall be deemed in law an avoidance of his office of Judge, and his office and commission shall be thereby in fact superseded and his salary thereupon cease.
(3) Notwithstanding anything in subsection (1) a Judge may accept take and perform the duties of another office or place to which, with his consent—
(a) he is appointed by the Governor in Council;
(b) he is appointed with the consent of the Chief Justice and the Governor in Council—
but notwithstanding anything in any other Act or regulation a Judge shall not receive and shall not be eligible to receive any payment for or in respect of any such other office or place.
S. 84(4) amended by Nos 117/1986 s. 6(Sch. 1 item 5(5)), 12/2001 s. 4.
(4) Subsection (1) does not apply to or in relation to a judge nominated to an office on the Parole Board pursuant to Part 8 of the Corrections Act 1986.
S. 84(4A) inserted by No. 3/2016 s. 44.
(4A) Subsection (1) does not apply to or in relation to a Judge of the Court who accepts, takes or performs the duties of the office of Chief Judge as a dual commission holder.
S. 84(4B) inserted by No. 16/2016 s. 150.
(4B) Subsection (1) does not apply to or in relation to a Judge appointed to an investigating panel under section 87AAS.
S. 84(5) inserted by No. 43/1991 s. 40(2), amended by No. 14/2006 s. 7.
(5) This section does not apply to a Judge who made an election under section 80A before the commencement of section 3 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005.
S. 84(6) inserted by No. 5/2013 s. 14, repealed by No. 63/2013 s. 14.
* * * * *
S. 84A inserted by No. 63/2013 s. 61.
84A Judges serving under part-time service arrangement not to engage in legal practice or other paid employment
(1) Without limiting section 84, a Judge of the Court serving under a part-time service arrangement must not engage in legal practice.
(2) Except with the approval of the Chief Justice, a Judge of the Court serving under a part-time service arrangement must not undertake paid employment or conduct a business, trade or profession of any kind.
(3) Except with the approval of the Chief Justice, a Judge of the Court serving under a part-time service arrangement must not hold an office in any company, trustee company, incorporated association or other entity, whether public or private, in respect of which the Judge receives remuneration.
Comp. No. 6387
ss 15–19.
85 Powers and jurisdiction of the Court
(1) Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction.
S. 85(2) repealed by No. 110/1986 s. 132(d).
* * * * *
S. 85(3) substituted by No. 110/1986 s. 132(e).
(3) The Court has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986.
(4) This Act does not limit or affect the power of the Parliament to confer additional jurisdiction or powers on the Court.
S. 85(5) inserted by No. 35/1991 s. 4.
(5) A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless —
(a) the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; and
(b) the member of the Parliament who introduces the Bill for the Act or, if the provision is inserted in the Act by another Act, the Bill for that other Act, or a person acting on his or her behalf, makes a statement to the Council or the Assembly, as the case requires, of the reasons for repealing, altering or varying this section; and
(c) the statement is so made—
(i) during the member's second reading speech; or
(ii) after not less than 24 hours' notice is given of the intention to make the statement but before the third reading of the Bill; or
(iii) with the leave of the Council or the Assembly, as the case requires, at any time before the third reading of the Bill.
S. 85(6) inserted by No. 35/1991 s. 4.
(6) A provision of a Bill which excludes or restricts, or purports to exclude or restrict, judicial review by the Court of a decision of another court, tribunal, body or person is to be taken to repeal, alter or vary this section and to be of no effect unless the requirements of subsection (5) are satisfied .
S. 85(7) inserted by No. 35/1991 s. 4.
(7) A provision of an Act which creates, or purports to create, a summary offence is not to be taken, on that account, to repeal, alter or vary this section .
S. 85(8) inserted by No. 35/1991 s. 4.
(8) A provision of an Act that confers jurisdiction on a court, tribunal, body or person which would otherwise be exercisable by the Supreme Court, or which augments any such jurisdiction conferred on a court, tribunal, body or person, does not exclude the jurisdiction of the Supreme Court except as provided in subsection (5) .
S. 85(8A) inserted by No. 95/1997
s. 5.
(8A) The following sections of this Act alter or vary this section and have effect, for the purposes of this section, as direct amendments of this section—
(a) sections 73 and 74 as they apply to publication within the meaning of those sections as amended by section 3 of the Constitution (Amendment) Act 1997;
(b) section 74AA.
S. 85(8B) inserted by No. 40/2001 s. 4,
repealed by No. 40/2001 s. 5.
* * * * *
S. 85(9) inserted by No. 67/1992 s. 63(2), amended by Nos 50/1994 s. 65(2), 7/1996 s. 50(2), 60/1996 s. 30(2), 107/1997 s. 63(1).
(9) Section 63 of the Accident Compensation (WorkCover) Act 1992 as amended by section 65(1) of the Accident Compensation (Amendment) Act 1994 and as amended by section 50(1) of the Accident Compensation (Amendment) Act 1996 and as amended by section 30 of the Accident Compensation (Further Amendment) Act 1996 and as amended by sections 11, 45, 46, 47 and 48 of the Accident Compensation (Miscellaneous Amendment) Act 1997 alters or varies this section to the extent necessary to limit the jurisdiction of the Supreme Court as specified in that section and has effect as a direct amendment of this section.
S. 85(10) inserted by No. 107/1997 s. 63(2).
(10) Section 252C of the Accident Compensation Act 1985 alters or varies this section and has effect as a direct amendment of this section.
S. 85(11) inserted by No. 6/2001 s. 10.
(11) Section 4 of the Corporations (Commonwealth Powers) Act 2001 alters or varies this section and has effect as a direct amendment of this section.
S. 85(12) inserted by No. 39/2004 s. 259.
(12) Divisions 2 and 3 of Part 6 of the Road Management Act 2004 (as inserted by section 270 of the Mitcham-Frankston Project Act 2004) and section 129 of the Road Management Act 2004 (as inserted by section 272 of the Mitcham-Frankston Project Act 2004) alter or vary this section and have effect as direct amendments of this section.
S. 85(13) inserted by No. 39/2004 s. 259.
(13) Section 52(4) of the Victorian Civil and Administrative Tribunal Act 1998 (as amended by section 167(1) of the Road Management Act 2004 as that Act is amended by section 276 of the Mitcham-Frankston Project Act 2004) alters or varies this section and has effect as a direct amendment of this section.
S. 85(14) inserted by No. 25/2005 s. 16.
(14) Section 246CZC of the Transport Act 1983 (as inserted by section 15 of the Transport Legislation (Further Amendment) Act 2005) alters or varies this section and has effect as a direct amendment of this section.
44 Geo. III.
c. 102.
S. 86 amended by Nos 110/1986 s. 132(f), 24/2008 s. 10.
86 Power to Judges to award habeas corpus
The Court constituted by a Judge of the Court may award a writ of habeas corpus for bringing any prisoner detained in any gaol or prison before any Court to be there examined as a witness.
No. 6387 s. 15(2).
S. 87 (Heading) inserted by No. 63/2013 s. 15(1).
87 Exercise of jurisdiction if jurisdiction conferred on other bodies and constitution of Court in certain circumstances
S. 87(1) amended by Nos 110/1986 s. 132(g), 64/1990 s. 7(2).
(1) Except as is provided by any Act or the rules of the Court the Court shall not be bound to exercise any jurisdictions powers or authorities in relation to any matters in respect of which jurisdiction is given by or under any Act to any other Court tribunal or body.
S. 87(2) substituted by No. 110/1986 s. 132(h), amended by No. 24/2008 s. 11.
(2) Despite anything in any Act or the Rules, any power, duty or act which might have been exercised or performed by the Court constituted by a Judge or by an Associate Judge may be exercised or performed by the Court constituted by any other Judge or Associate Judge (as the case requires) if the Court cannot for any reason be constituted by that first-mentioned Judge or Associate Judge.
S. 87(3) inserted by No. 63/2013 s. 15(2).
(3) For the avoidance of doubt, for the purpose of completion of any matter under section 81GA or otherwise, the Court may be constituted or continue to be constituted by a reserve Judge who is a Judge of the Court without reconstitution of the Court despite any interruption in continuity of his or her tenure, appointment or engagement.
Pt 3AA (Heading and ss 87AAA–87AAJ) inserted by No. 16/2005 s. 4.
Part IIIAA—The judiciary
Pt 3AA Div. 1 (Heading) inserted by No. 16/2016 s. 151.
Division 1—Preliminary
S. 87AAA inserted by No. 16/2005 s. 4,
amended by No. 16/2016 s. 152(3) (ILA s. 39B(1)).
87AAA Definitions
(1) In this Part—
S. 87AAA(1) def. of appointed member inserted by No. 16/2016 s. 152(1).
appointed member, of the Board, means a member of the Board appointed under section 87AAO;
S. 87AAA(1) def. of Australian court inserted by No. 16/2016 s. 152(1).
Australian court has the same meaning as in the Judicial Commission of Victoria Act 2016;
S. 87AAA(1) def. of Board inserted by No. 16/2016 s. 152(1).
Board means the Board of the Judicial Commission established under section 87AAM;
S. 87AAA(1) def. of complaint inserted by No. 16/2016 s. 152(1).
complaint has the same meaning as in the Judicial Commission of Victoria Act 2016;
S. 87AAA(1) def. of investigating committee repealed by No. 16/2016 s. 152(2).
* * * * *
S. 87AAA(1) def. of investigating panel inserted by No. 16/2016 s. 152(1).
investigating panel means a panel appointed by the Judicial Commission under Division 5;
S. 87AAA(1) def. of Judicial Commission inserted by No. 16/2016 s. 152(1).
Judicial Commission means the Judicial Commission of Victoria established by section 87AAK;
S. 87AAA(1) def. of judicial member inserted by No. 16/2016 s. 152(1).
judicial member, of the Board, means a member of the Board referred to in section 87AAN;
S. 87AAA(1) def. of
judicial office amended by No. 24/2008 s. 12.
judicial office means the office of any of the following—
(a) Judge of the Supreme Court;
(b) Associate Judge of the Supreme Court;
(c) judge of the County Court;
(d) associate judge of the County Court;
(e) magistrate;
S. 87AAA(1) def. of judicial officer inserted by No. 16/2016 s. 152(1).
judicial officer means the following—
(a) a Judge of the Court;
(b) a reserve Judge;
(c) an Associate Judge;
(d) a reserve Associate Judge;
(e) a Judge or reserve Judge of the Supreme Court who is appointed or assigned to VCAT;
(f) a judge of the County Court;
(g) a reserve judge within the meaning of the County Court Act 1958;
(h) an associate judge of the County Court appointed under section 17A of the County Court Act 1958;
(i) a reserve associate judge within the meaning of the County Court Act 1958;
(j) a person referred to in paragraph (f) or (g) who is appointed or assigned to VCAT;
(k) a magistrate;
(l) a reserve magistrate within the meaning of the Magistrates' Court Act 1989;
(m) a magistrate or reserve magistrate who is appointed or assigned to the Children's Court, the Coroners Court or VCAT;
(n) a reserve coroner within the meaning of the Coroners Act 2008;
(o) a person appointed under section 94 of the Coroners Act 2008;
(p) a judicial registrar;
S. 87AAA(1) def. of judicial registrar inserted by No. 16/2016 s. 152(1).
judicial registrar means a judicial registrar of the Supreme Court, the County Court, the Magistrates' Court, the Children's Court or the Coroners Court;
S. 87AAA(1) def. of member inserted by No. 16/2016 s. 152(1).
member, in relation to VCAT, has the same meaning as in section 3 of the Victorian Civil and Administrative Tribunal Act 1998;
S. 87AAA(1) def. of
non-judicial member
of VCAT inserted by No. 16/2016 s. 152(1).
non-judicial member of VCAT means a member of VCAT who is not a judicial officer;
S. 87AAA(1) def. of panel repealed by No. 16/2016 s. 152(2).
* * * * *
S. 87AAA(1) def. of protected disclosure complaint inserted by No. 16/2016 s. 152(1).
protected disclosure complaint means a disclosure that the IBAC has determined under section 26 of the Protected Disclosure Act 2012 to be a protected disclosure complaint;
S. 87AAA(1) def. of qualifying office repealed by No. 16/2016 s. 152(2).
* * * * *
S. 87AAA(1) def. of referral inserted by No. 16/2016 s. 152(1).
referral has the same meaning as in the Judicial Commission of Victoria Act 2016;
special majority has the same meaning as in section 18;
S. 87AAA(1) def. of Victorian court inserted by No. 16/2016 s. 152(1).
Victorian court has the same meaning as in the Judicial Commission of Victoria Act 2016.
S. 87AAA(2) inserted by No. 16/2016 s. 152(3).
(2) In this Part, other than in section 87AAJ, a reference to the holder of a judicial office includes a reference to the following—
(a) a reserve Judge;
(b) a reserve Associate Judge;
(c) a reserve judge within the meaning of the County Court Act 1958;
(d) a reserve associate judge within the meaning of the County Court Act 1958;
(e) a reserve magistrate within the meaning of the Magistrates' Court Act 1989;
(f) a reserve coroner within the meaning of the Coroners Act 2008;
(g) a person appointed under section 94 of the Coroners Act 2008;
(h) a judicial registrar.
Pt 3AA Div. 2 (Heading) inserted by No. 16/2016 s. 153.
Division 2—Judicial offices
S. 87AAB inserted by No. 16/2005 s. 4.
87AAB Removal from judicial office
(1) The Governor in Council may remove the holder of a judicial office from that office on the presentation to the Governor of an address from both Houses of the Parliament agreed to by a special majority in the same session praying for that removal on the ground of proved misbehaviour or incapacity.
S. 87AAB(2) amended by No. 16/2016 s. 154.
(2) A resolution of a House of the Parliament or of both Houses of the Parliament praying for the removal from office of the holder of a judicial office is void if an investigating panel has not concluded that facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of that office holder from office.
(3) This section extends to term appointments or acting appointments to a judicial office but does not prevent the holder of the office ceasing to hold office on the expiry of the term or the period for which he or she is appointed to act.
(4) Except as provided by this Part, no holder of a judicial office can be removed from that office.
S. 87AAC‒
87AAE inserted by No. 16/2005 s. 4,
repealed by No. 16/2016 s. 155.
* * * * *
S. 87AAF inserted by No. 16/2005 s. 4, amended by No. 69/2009 s. 54(Sch. Pt 2 item 11.1), repealed by No. 16/2016 s. 155.
* * * * *
Ss 87AAG, 87AAH inserted by No. 16/2005 s. 4,
repealed by No. 16/2016 s. 155.
* * * * *
S. 87AAI inserted by No. 16/2005 s. 4.
87AAI Retirement
This Part does not prevent the fixing by or under an Act of an age at which all holders of a judicial office, or all holders of a judicial office in a court, are required to retire or the alteration from time to time of an age so fixed.
S. 87AAJ inserted by No. 16/2005 s. 4.
87AAJ Abolition of judicial office
(1) This Part does not prevent the abolition of a judicial office by or under an Act.
(2) The person who held an abolished judicial office is entitled (without loss of remuneration) to be appointed to and to hold another judicial office in the same court or in a court of equivalent or higher status, unless already the holder of such an office.
(3) That right remains operative for the period during which the person was entitled to hold the abolished office, subject to removal as provided by this Part. The right lapses if the person declines appointment to the other office or resigns from it.
(4) This section applies whether the judicial office was—
(a) abolished directly; or
(b) abolished indirectly by the abolition of a court or part of a court.
Pt 3AA Div. 3 (Heading and ss 87AAK, 87AAL) inserted by No. 16/2016 s. 156.
Division 3—Judicial Commission of Victoria
S. 87AAK inserted by No. 16/2016 s. 156.
87AAK Establishment of Judicial Commission
(1) The Judicial Commission of Victoria is established.
(2) The Judicial Commission—
(a) is a body corporate with perpetual succession; and
(b) must have an official seal; and
(c) may sue and be sued in its corporate name; and
(d) may acquire, hold and dispose of personal property; and
(e) subject to this Act, may do and suffer all acts and things that a body corporate may by law do and suffer.
(3) The official seal of the Judicial Commission must be kept as directed by the Judicial Commission and must not be used except as authorised by the Judicial Commission.
Note
The Judicial Commission is an exempt body: see section 4(1) of the Public Administration Act 2004.
S. 87AAL inserted by No. 16/2016 s. 156.
87AAL Functions of the Judicial Commission
(1) The Judicial Commission has the following functions—
(a) professional standards functions, being to make guidelines regarding the standards of ethical and professional conduct and general standards of appropriate conduct expected of judicial officers and non-judicial members of VCAT;
(b) complaints handling functions, being the receipt, investigation and referral of complaints and referrals regarding judicial officers and non-judicial members of VCAT, including disclosures made under the Protected Disclosure Act 2012;
(c) to provide support to any investigating panel to assist the investigating panel in the performance of its functions;
(d) to disseminate information and educate the public about the functions of the Judicial Commission and investigating panels;
(e) any other function conferred on the Judicial Commission by or under this or any other Act.
(2) The Judicial Commission has all the powers necessary to perform its functions, including any power conferred on it by or under this or any other Act.
Pt 3AA Div. 4 (Heading and ss 87AAM‒
87AAQ) inserted by No. 16/2016 s. 156.
Division 4—Board of Judicial Commission
S. 87AAM inserted by No. 16/2016 s. 156.
87AAM Board of Judicial Commission
(1) The Judicial Commission is to have a governing body called a Board.
(2) The Board is responsible for—
(a) performing the functions of the Judicial Commission; and
(b) exercising the powers of the Judicial Commission.
(3) The Board consists of—
(a) the judicial members of the Board; and
(b) 4 members appointed under section 87AAO.
S. 87AAN inserted by No. 16/2016 s. 156.
87AAN Judicial members of the Board
(1) The judicial members of the Board are—
(a) the Chief Justice; and
(b) the Chief Judge; and
(c) the Chief Magistrate; and
(d) the President of the Children's Court; and
(e) the State Coroner; and
(f) the President of VCAT.
(2) A judicial member of the Board is entitled to the allowances determined by the Governor in Council but is not entitled to remuneration.
S. 87AAO inserted by No. 16/2016 s. 156.
87AAO Appointed members of the Board
(1) The Governor in Council may appoint a person to be a member of the Board on the recommendation of the Attorney-General.
(2) The Attorney-General may recommend a person of high standing in the community, other than a person—
(a) who is, or has been a judicial officer, non judicial member of VCAT or member of a prescribed tribunal; or
(b) who is, or has been a judge, associate judge, master or magistrate (by whatever name called) of an Australian court (other than a Victorian court); or
(c) who is, or has been the holder of an office equivalent to the office of judicial registrar in an Australian court; or
(d) who is, or has been an Australian legal practitioner; or
(e) who is a member of the Parliament of Victoria or the Parliament of the Commonwealth or of another State or a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory; or
(f) who is employed under Part 3 of the Public Administration Act 2004.
(3) An appointed member of the Board holds office—
(a) on the terms and conditions specified in the instrument of appointment; and
(b) for the period, not exceeding 5 years, specified in the instrument of appointment.
(4) An appointed member of the Board is eligible for reappointment, but must not hold office as a member of the Board for a period, or an aggregate of periods, exceeding 10 years.
(5) An appointed member of the Board is entitled to the remuneration and allowances determined by the Governor in Council.
S. 87AAP inserted by No. 16/2016 s. 156.
87AAP Suspension of appointed member
(1) The Attorney-General may recommend to the Governor in Council that an appointed member of the Board be suspended if the Attorney-General is of the opinion that the member—
(a) is mentally or physically incapable of satisfactorily performing functions as a member of the Board; or
(b) is guilty of improper conduct in performing functions as a member of the Board; or
(c) has failed to attend 3 consecutive meetings of the Board without reasonable excuse; or
(d) has otherwise engaged in improper conduct of a nature or seriousness that is incompatible with the person continuing to hold office as a member of the Board.
(2) The Governor in Council may suspend an appointed member of the Board from office on the recommendation of the Attorney-General under subsection (1).
(3) If an appointed member of the Board is suspended from office, the Attorney-General must cause a full statement of the grounds of the suspension to be laid before each House of Parliament within 7 sitting days of that House suspension.
(4) The Governor in Council must remove the appointed member from office if each House of the Parliament within 20 sitting days of that House after the statement is laid before it passes a resolution calling for the member's removal from office.
(5) The Governor in Council must remove the suspension unless each House of the Parliament, within 20 sitting days after the statement is laid before it, passes a resolution calling for the member's removal from office.
S. 87AAQ inserted by No. 16/2016 s. 156.
87AAQ Cessation of appointment of appointed member
(1) An appointed member of the Board ceases to hold office if the appointed member—
(a) is removed from office by the Governor in Council in accordance with section 87AAP(4); or
(b) is found guilty of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or
(c) becomes an insolvent under administration; or
(d) nominates for election for a House of the Parliament of Victoria or of the Parliament of the Commonwealth or of another State or of a Territory; or
(e) delivers a signed letter of resignation to the Governor; or
(f) becomes—
(i) a judicial officer, non-judicial member of VCAT or member of a prescribed tribunal; or
(ii) a judge, associate judge, master or magistrate (by whatever name called) of an Australian court; or
(iii) the holder of an office equivalent to the office of judicial registrar in an Australian court; or
(iv) an Australian legal practitioner; or
(v) employed under Part 3 of the Public Administration Act 2004.
(2) An appointed member of the Board must not be suspended or removed from office except in accordance with this Division.
Pt 3AA Div. 5 (Heading and ss 87AAR‒
87AAY) inserted by No. 16/2016 s. 156.
Division 5—Investigating panels
S. 87AAR inserted by No. 16/2016 s. 156.
87AAR Appointment of investigating panels
(1) The Judicial Commission may appoint an investigating panel for the purposes of investigating a complaint or referral referred to an investigating panel under section 13(3) of the Judicial Commission of Victoria Act 2016.
(2) The Judicial Commission may appoint more than one investigating panel at any time for the purposes of the investigation of different complaints or referrals referred under section 13(3) of the Judicial Commission of Victoria Act 2016.
(3) An investigating panel may investigate
2 or more complaints or referrals referred under section 13(3) of the Judicial Commission of Victoria Act 2016 if the Judicial Commission considers it appropriate in the circumstances.
S. 87AAS inserted by No. 16/2016 s. 156.
87AAS Membership of investigating panel
(1) An investigating panel consists of 3 members appointed by the Judicial Commission of whom—
(a) one member must be a person appointed to the pool of persons under section 87AAW; and
(b) one member must be a person who, at the time the person is appointed to the investigating panel—
(i) has been but is no longer, a judicial officer; or
(ii) has been but is no longer, a non judicial member of VCAT or a member of a prescribed tribunal; or
(iii) is the holder of an office referred to in paragraphs (a) to (g) of section 87AAA(2) and is not engaged to perform judicial duties; or
(iv) has been but is no longer, a judge, associate judge, master or magistrate (by whatever name called) of an Australian court (other than a Victorian court); or
(v) has been but is no longer, the holder of an office equivalent to the office of judicial registrar in an Australian court (other than a Victorian court); and
(c) one member must be a person who is or has been—
(i) a judicial officer; or
(ii) a non-judicial member of VCAT or a member of a prescribed tribunal; or
(iii) a judge, associate judge, master or magistrate (by whatever name called) of an Australian court (other than a Victorian court); or
(iv) the holder of an office equivalent to the office of judicial registrar in an Australian court (other than a Victorian court).
(2) A person must not be appointed under subsection (1) if the person—
(a) is a member of the Board; or
(b) does not consent to the appointment.
(3) A person must not be appointed under subsection (1)(c) if the person is a judicial officer (other than a person who is a holder of an office referred to in paragraphs (a) to (g) of section 87AAA(2) and is not engaged to perform judicial duties) who is—
(a) of the same court as the judicial officer who is the subject of the complaint or referral that is to be investigated by the panel; or
(b) of a lower court than the judicial officer who is the subject of the complaint or referral that is being investigated by the panel.
(4) A person who is, or has been, a judicial registrar or the holder of an equivalent office in an Australian court (other than a Victorian court) may only be appointed as a member of an investigating panel if the panel is investigating a complaint or referral that relates to a judicial registrar.
(5) A person who is, or has been a non-judicial member of VCAT or a member of a prescribed tribunal may only be appointed as a member of an investigating panel if the panel is investigating a complaint or referral that relates to a non-judicial member of VCAT.
(6) A person may be appointed to more than one investigating panel at the same time.
S. 87AAT inserted by No. 16/2016 s. 156.
87AAT Remuneration and allowances of investigating panel members
(1) A member of an investigating panel may, or may not, be entitled to remuneration and allowances as a panel member as provided in this section.
(2) A member of an investigating panel is not entitled to remuneration for the performance of duties as a member of an investigating panel if—
(a) the member is a judicial officer (other than a person who is the holder of an office referred to in paragraphs (a) to (g) of section 87AAA(2) and is not engaged to perform judicial duties); or
(b) the member is a judge, associate judge, master or magistrate (by whatever name called) of an Australian Court (other than a Victorian court) who receives a salary in relation to that office.
(3) A member of an investigating panel other than a member specified in subsection (2) is entitled to be remunerated for the performance of duties as a member of an investigating panel as if the member were appointed as a reserve Judge under section 81 and engaged to undertake the duties of a Judge of Appeal on a sessional basis under section 81B.
Note
See section 7 of the Judicial Entitlements Act 2015.
(4) A member of an investigating panel is entitled to the prescribed allowances (if any).
(5) The amounts payable to a person as a member of an investigating panel are to be paid out of the Consolidated Fund which is appropriated to the necessary extent.
S. 87AAU inserted by No. 16/2016 s. 156.
87AAU Pension rights of investigating panel member not affected
If a person who has been a Judge or Associate Judge of the Supreme Court, a judge or associate judge of the County Court or has been the Chief Magistrate is appointed as a member of an investigating panel, the appointment does not affect any pension or other rights or privileges the person has as a former Judge or Associate Judge of the Supreme Court, judge or associate judge of the County Court or Chief Magistrate.
S. 87AAV inserted by No. 16/2016 s. 156.
87AAV Establishment of pool
(1) For the purposes of making appointments under section 87AAS(1)(a) to an investigating panel there is to be a pool of persons.
(2) The pool of persons must consist of no fewer than 3 persons appointed by the Governor in Council under section 87AAW.
S. 87AAW inserted by No. 16/2016 s. 156.
87AAW Appointment of persons to pool
(1) The Governor in Council may appoint a person to be a member of the pool of persons on the recommendation of the Attorney-General.
(2) The Attorney-General may recommend a person of high standing in the community, other than a person—
(a) who is or has been a judicial officer, non judicial member of VCAT or member of a prescribed tribunal; or
(b) who is or has been a judge, associate judge, master or magistrate (by whatever name called) of an Australian court (other than a Victorian court); or
(c) who is or has been the holder of an office equivalent to the office of judicial registrar in an Australian court; or
(d) who is or has been an Australian legal practitioner; or
(e) who is a member of the Parliament of Victoria or the Parliament of the Commonwealth or of another State or a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory; or
(f) who is employed under Part 3 of the Public Administration Act 2004.
S. 87AAX inserted by No. 16/2016 s. 156.
87AAX Conditions for members of pool
(1) A member of the pool of persons—
(a) is a member of the pool for the period, not exceeding 5 years, specified in the instrument of appointment; and
(b) may be reappointed as a member of the pool.
(2) A member of an investigating panel whose membership of the pool expires by effluxion of time, or ceases under section 87AAY(1)(a), (b), (c), (d), (e), (f), (g) or (h), before the panel makes a decision under section 34 of the Judicial Commission of Victoria Act 2016 in respect of the matter it is investigating, remains a member of the panel until the panel makes such a decision.
S. 87AAY inserted by No. 16/2016 s. 156.
87AAY Cessation of appointment or removal from pool
(1) A member of the pool of persons appointed under section 87AAW ceases to be a member if the person—
(a) becomes a judicial officer; or
(b) becomes a judge, associate judge, master or magistrate (by whatever name called) of an Australian court (other than a Victorian court); or
(c) becomes the holder of an office equivalent to the office of judicial registrar in an Australian court (other than a Victorian court); or
(d) becomes a non-judicial member of VCAT or member of a prescribed tribunal; or
(e) becomes a member of the Parliament of Victoria or of the Parliament of the Commonwealth or of another State or Territory; or
(f) becomes employed under Part 3 of the Public Administration Act 2004; or
(g) becomes an Australian legal practitioner; or
(h) becomes a member of the Board; or
(i) delivers a signed letter of resignation to the Governor; or
(j) is found guilty of—
(i) an indictable offence; or
(ii) an offence that, if committed in Victoria, would be an indictable offence; or
(k) becomes an insolvent under administration.
(2) The Judicial Commission may make a recommendation to the Attorney-General for the removal of a member from the pool of persons.
(3) The Governor in Council may remove a member from the pool of persons on the recommendation of the Attorney-General.
(4) The Attorney-General and the Judicial Commission must not make a recommendation under subsection (2)
or (3) unless the Attorney General and the Judicial Commission (as appropriate) is satisfied that that the member of the pool of persons—
(a) is mentally or physically incapable of satisfactorily carrying out the member's functions as a member of the pool; or
(b) has engaged in improper conduct of a nature or seriousness that is incompatible with being a member of the pool.
Pt 3AA Div. 6 (Heading and s. 87AAZ) inserted by No. 16/2016 s. 156.
Division 6—Judicial Commission regulations
S. 87AAZ inserted by No. 16/2016 s. 156.
87AAZ Judicial Commission regulations
(1) The Governor in Council may make regulations for or with respect to the following—
(a) prescribing the allowances of persons appointed as members of an investigating panel;
(b) prescribing a tribunal of another State or Territory, or a tribunal created by the Parliament of the Commonwealth, for the purposes of Divisions 3, 4 and 5;
(c) generally prescribing any other matter or thing required or permitted by Divisions 3, 4 and 5 to be prescribed to give effect to those Divisions.
Pt 3A (Heading and ss 87AA–87AF) inserted by No. 62/1999 s. 11.
Part IIIA—Director of Public Prosecutions
S. 87AA inserted by No. 62/1999 s. 11.
87AA Definition
In this Part—
Director means Director of Public Prosecutions appointed under section 87AB.
S. 87AB inserted by No. 62/1999 s. 11.
87AB Appointment
(1) The Governor in Council may appoint as Director of Public Prosecutions a person who is a barrister and solicitor of the Supreme Court of not less than 8 years' standing.
(2) Subject to this Part, a person appointed as Director holds office for a term of 10 years or for the longer term, not exceeding 20 years, that is specified in his or her instrument of appointment and is eligible for re-appointment.
S. 87AC inserted by No. 62/1999 s. 11.
87AC Terms and conditions
(1) The Director is entitled to be paid the same salary as that payable to a judge of the Supreme Court under section 82(2).
(2) The Director must not, without the consent of the Attorney-General and in accordance with any conditions attached to that consent, engage in the practice of the law or in any paid employment (whether within or outside Victoria) outside the duties of his or her office.
(3) The office of Director is not an authority within the meaning of section 47(1) of the Public Sector Management and Employment Act 1998.
S. 87AD inserted by No. 62/1999 s. 11.
87AD Resignation
The Director may resign from office by delivering to the Governor a signed letter of resignation.
S. 87AE inserted by No. 62/1999 s. 11.
87AE Suspension and removal from office
(1) The Governor in Council may suspend the Director from office.
(2) If the Director is suspended from office the Attorney-General must cause a full statement of the ground or grounds of the suspension to be laid before each House of Parliament on or before the 7th sitting day of that House after the suspension.
(3) The Governor in Council must remove the Director from office if each House of Parliament on or before the 7th sitting day of that House after the statement is laid before it passes a resolution declaring that the Director ought to be removed from office.
(4) If both Houses of Parliament do not pass a resolution of the kind specified in subsection (3) within the time specified in that subsection, the Governor in Council must without delay remove the suspension and restore the Director to office.
(5) The Director can only be removed from office in accordance with this section.
S. 87AF inserted by No. 62/1999 s. 11.
87AF Pension of Director and of his or her spouse and children
(1) The Director and his or her spouse and children are entitled to pensions in the same circumstances and at the same rates and on the same terms and conditions as a judge of the Supreme Court (other than the Chief Justice, the President of the Court of Appeal or a Judge of Appeal) and his or her spouse and children are entitled to under section 83.
(2) A pension under this section is liable to be suspended or determined in the same circumstances and to the same extent as pensions under section 83 are liable to be suspended or determined.
S. 87AF(2A) inserted by No. 19/2001 s. 9(1).
(2A) A pension under this section may be commuted in the same circumstances and to the same extent as pensions under sections 83AC, 83AF and 83AI may be commuted and for that purpose sections 83AA to 83AI of that Act apply with such modifications as are necessary.
S. 87AF(3) amended by No. 19/2001 s. 9(2).
(3) All pensions under this section or under any corresponding previous enactment and any payments of lump sums provided by the commutation of those pensions are payable out of the Consolidated Fund which is to the necessary extent appropriated accordingly.
Part IV—The Executive
S. 87A inserted by No. 108/1994 s. 5.
87A Executive Council ,
There shall be an Executive Council of the State of Victoria.
S. 87B inserted by No. 108/1994 s. 5.
87B Members of Executive Council
(1) The Executive Council consists of—
(a) the persons who, immediately before the commencement of section 5 of the Constitution (Amendment) Act 1994, are members of the Executive Council; and
(b) persons who may, at any time, be members of the Executive Council in accordance with any Act; and
(c) such other persons as the Governor, from time to time in the name and on behalf of Her Majesty and subject to any Act, appoints under the Public Seal of the State to be members of the Executive Council—
until resignation or removal from membership by the Governor.
(2) A member of the Executive Council may attend a meeting of the Executive Council or exercise the powers of such a member only if he or she is a Minister.
S. 87C inserted by No. 108/1994 s. 5.
87C Meetings of Executive Council
(1) The Governor shall preside at meetings of the Executive Council.
(2) If the Governor is absent from a meeting of the Executive Council and—
(a) the Lieutenant-Governor or Administrator has assumed the administration of the Government of the State under section 6B; or
(b) the meeting is held while there is a subsisting appointment of the Lieutenant-Governor or Administrator as deputy under section 6C—
the Lieutenant-Governor or Administrator (as the case requires) shall preside.
(3) The quorum for a meeting of the Executive Council is 2 members of the Executive Council.
(4) The Executive Council shall not proceed to dispatch of business unless it has been duly summoned by authority of the Governor.
S. 87D inserted by No. 108/1994 s. 5.
87D Rules of Executive Council
The Governor in Council may, by instrument, make rules in respect of the practices and procedures of the Executive Council.
S. 87E inserted by No. 108/1994 s. 5.
87E Advice to Governor
Where the Governor is bound by law or established constitutional convention to act in accordance with advice—
(a) the Executive Council shall advise the Governor on the occasions when the Governor is permitted or required by any statute or other instrument to act in Council; and
(b) the Premier (or, in the absence of the Premier, the Acting Premier) shall tender advice to the Governor in relation to the exercise of the other powers and functions of Governor.
Constitution Act s. XXXVII.
88 Appointment to public offices
Subject to the express provisions of any other Act the appointment to public offices under the Government of Victoria hereafter to become vacant or to be created whether such offices be salaried or not shall be vested in the Governor in Council with the exception of the appointments of the officers liable to retire from office on political grounds which appointments shall be vested in the Governor alone.
S. 88AA inserted by No. 46/1998
s. 7(Sch. 1).
88AA Oath of office
If an oath of office is required to be taken by a person who accepts employment in the public service or who is otherwise required by or under this or any other Act to take an oath of office, the oath, unless the contrary intention appears, must be taken in the form set out in Schedule 3.
S. 88A inserted by No. 9721 s. 3.
88A Governor in Council may order that Ministers exercise duties etc. concurrently
The Governor in Council may by Order published in the Government Gazette direct that all or any of the functions powers and duties of a Minister of the Crown shall be exercisable concurrently with another Minister of the Crown or shall cease to be so exercisable.
Pt 4A (Heading and ss 88B, 88C) inserted by No. 13/1997 s. 5, repealed by No. 67/2014 s. 147(Sch. 2 item 9).
* * * * *
Part V—Financial
Division 1—Consolidated Revenue
Constitution Act s. XLIV.
89 Consolidated Revenue
All taxes imposts rates and duties and all territorial casual and other revenues of the Crown in right of the State of Victoria (including royalties) which the Parliament has power to appropriate shall form one Consolidated Revenue to be appropriated for the public service of Victoria in the manner and subject to the charges hereinafter mentioned.
Constitution Act s. XLV.
90 Charges of collection and management
The Consolidated Revenue shall be permanently charged with all the costs charges and expenses incidental to the collection management and receipt thereof such costs charges and expenses being subject nevertheless to be reviewed and audited in such manner as shall be directed by any Act of the Parliament.
Constitution Act s. XLVII.
91 Her Majesty not entitled to Crown revenues
Her Majesty shall not be entitled to any territorial casual or other revenues of the Crown (including royalties) from any source whatsoever accruing to the Crown in right of the State of Victoria.
Constitution Act s. LV.
92 Power to appropriate Consolidated Revenue
The Consolidated Revenue arising from taxes duties rates and imposts levied by virtue of an Act and from the disposal of the waste lands of the Crown under any such Act made in pursuance of the authority herein contained shall be subject to be appropriated to such specific purposes as by any Act shall be provided in that behalf.
Constitution Act s. LVIII.
93 Warrants for issue of money
No part of the Consolidated Fund shall be issued or shall be made issuable except in pursuance of warrants under the hand of the Governor directed to the Treasurer of Victoria.
Division 2—Expenses of Executive Council Legislative Council and Legislative Assembly
No. 6224 s. 66.
94 Special appropriations for expenses of Executive Council, Legislative Council and Legislative Assembly
(1) There shall be payable in every year to Her Majesty out of the Consolidated Fund (which is hereby to the necessary extent appropriated accordingly)—
S. 94(1)(a) amended by Nos 9087 s. 2, 9730 s. 2.
(a) for the Clerk and expenses of the Executive Council a sum not exceeding $50 000;
S. 94(1)(b) amended by No. 20/2005 s. 36(1)(a).
(b) for the Clerk of the Parliaments the sum of $2000;
S. 94(1)(c) amended by No. 20/2005 s. 36(1)(b).
(c) for the Clerk and expenses of the Council a sum not exceeding $200 000; and
S. 94(1)(d) amended by No. 20/2005 s. 36(1)(c).
(d) for the Clerk and expenses of the Assembly a sum not exceeding $550 000.
S. 94(2) amended by No. 46/1998
s. 7(Sch. 1).
(2) The said sums shall be issued by the Minister administering Part 7 of the Financial Management Act 1994 in discharge of such warrants as shall from time to time be directed to him by the Governor.
S. 94(3) amended by No. 8834 s. 3(a), repealed by No. 20/2005 s. 36(2).
* * * * *
S. 94(4) amended by No. 8834 s. 3(b), repealed by No. 20/2005 s. 36(2).
* * * * *
Pt 5 Div. 3 (Heading and ss 94A–94C) inserted by No. 53/1999 s. 3.
Division 3—Auditor-General
S. 94A
inserted by No. 53/1999 s. 3.
94A Auditor-General
(1) There is to be an Auditor-General for the State of Victoria.
(2) The Auditor-General is to be appointed by the Governor in Council on the recommendation of the Parliamentary Committee.
(3) The Auditor-General—
(a) holds office, subject to this Division, on the terms and conditions determined by the Governor in Council; and
(b) is entitled to the remuneration determined by the Governor in Council; and
(c) is not subject to the Public Sector Management and Employment Act 1998, except section 16 of that Act.
(4) The Auditor-General must not directly or indirectly engage in any paid employment outside the duties of the office.
(5) Before undertaking the duties of office, the Auditor-General must take an oath of office before the Executive Council.
(6) The remuneration of the Auditor-General is to be paid out of the Consolidated Fund, which is appropriated to the necessary extent.
(7) Nothing in this section authorises the remuneration of the Auditor-General to be reduced.
S. 94B
inserted by No. 53/1999 s. 3.
94B Independence of the Auditor-General
(1) The Auditor-General is an independent officer of the Parliament.
(2) The functions, powers, rights, immunities and obligations of the Auditor-General are as specified in this Act, the Audit Act 1994 and other laws of the State.
(3) There are no implied functions, powers, rights, immunities or obligations arising from the Auditor-General being an independent officer of the Parliament.
(4) The powers of the Parliament to act in relation to the Auditor-General are as specified in or applying under this Act, the Audit Act 1994 and other laws of the State.
(5) There are no implied powers of the Parliament arising from the Auditor-General being an independent officer of the Parliament.
(6) Subject to this Act, the Audit Act 1994 and other laws of the State, the Auditor-General has complete discretion in the performance or exercise of his or her functions or powers and, in particular, is not subject to direction from anyone in relation to—
(a) whether or not a particular audit is to be conducted;
(b) the way in which a particular audit is to be conducted;
(c) the priority to be given to any particular matter.
(7) In subsection (4), Parliament includes each House of the Parliament, the members of each House, the committees of each House and joint committees of both Houses.
S. 94C
inserted by No. 53/1999 s. 3.
94C Tenure of office
(1) Subject to this section, the Auditor-General—
(a) holds office for 7 years; and
(b) is eligible for re-appointment.
(2) The Governor in Council may suspend the Auditor-General from office at any time when the Parliament is not in session.
(3) If the Auditor-General is suspended from office, the Minister must cause to be laid before each House of the Parliament a full statement of the grounds of the suspension within 7 sitting days of that House after the suspension.
(4) The Governor in Council must remove the suspension and restore the Auditor-General to office unless each House of the Parliament, within 20 sitting days after the statement is laid before it, passes an address praying for his or her removal from office.
(5) The Auditor-General ceases to hold office if he or she—
(a) is removed from office on the presentation of an address of both Houses of the Parliament praying for his or her removal from office; or
(b) is suspended from office under subsection (2) and is not restored to office; or
(c) becomes an insolvent under administration; or
(d) nominates for election for either House of the Parliament of Victoria or for the Parliament of the Commonwealth or of another State or of a Territory; or
(e) delivers to the Governor in Council a signed letter of resignation.
(6) The Auditor-General is not to be suspended or removed from office except in accordance with this section.
Pt VA (Heading and ss 94E–94H) inserted by No. 2/2003 s. 19.
Part VA—Special provisions
S. 94E inserted by No. 2/2003 s. 19.
94E Independence of the Ombudsman
(1) The Ombudsman appointed in accordance with the Ombudsman Act 1973 is an independent officer of the Parliament.
(2) The functions, powers, rights, immunities and obligations of the Ombudsman are as specified in this section, the Ombudsman Act 1973 and other laws of the State.
(3) There are no implied functions, powers, rights, immunities or obligations arising from the Ombudsman being an independent officer of the Parliament.
(4) The powers of the Parliament to act in relation to the Ombudsman are as specified in the Ombudsman Act 1973.
(5) There are no implied powers of the Parliament arising from the Ombudsman being an independent officer of the Parliament.
(6) Subject to this section, the Ombudsman Act 1973 and other laws of the State, the Ombudsman has complete discretion in the performance or exercise of his or her functions or powers.
(7) The Ombudsman is not to be removed or suspended from office except in accordance with the provisions of sections 3 and 4 of the Ombudsman Act 1973 as in force immediately before the commencement of section 19 of the Constitution (Parliamentary Reform) Act 2003 or provisions substituted for those sections which have the same effect.
S. 94F inserted by No. 2/2003 s. 19.
94F Independence of the Electoral Commissioner
(1) The Electoral Commissioner appointed in accordance with the Electoral Act 2002 is an independent officer of the Parliament.
(2) The functions, powers, rights, immunities and obligations of the Electoral Commissioner are as specified in this section, the Electoral Act 2002 and other laws of the State.
(3) There are no implied functions, powers, rights, immunities or obligations arising from the Electoral Commissioner being an independent officer of the Parliament.
(4) The powers of the Parliament to act in relation to the Electoral Commissioner are as specified in the Electoral Act 2002.
(5) There are no implied powers of the Parliament arising from the Electoral Commissioner being an independent officer of the Parliament.
(6) Subject to this section, the Electoral Act 2002 and other laws of the State, the Electoral Commissioner has complete discretion in the performance or exercise of his or her functions or powers.
(7) The Electoral Commissioner is not to be removed or suspended from office except in accordance with the provisions of sections 12 and 14 of the Electoral Act 2002 as in force immediately before the commencement of section 19 of the Constitution (Parliamentary Reform) Act 2003 or provisions substituted for those sections which have the same effect.
S. 94G inserted by No. 2/2003 s. 19.
94G Electoral Boundaries
There is to be in force at all times as part of the laws of Victoria an Act that provides for—
(a) the constitution of an Electoral Boundaries Commission as specified in section 3 of the Electoral Boundaries Commission Act 1982 as in force immediately before the commencement of section 19 of the Constitution (Parliamentary Reform) Act 2003 or provisions substituted for that section 3 which have the same effect; and
(b) the Electoral Boundaries Commission to have the function specified in section 5 of the Electoral Boundaries Commission Act 1982 as in force immediately after the commencement of section 45 of the Constitution (Parliamentary Reform) Act 2003 or provisions substituted for that section 5 which have the same effect; and
(c) the Electoral Boundaries Commission to perform the function referred to in paragraph (b) in accordance with the factors specified in section 5 of the Electoral Boundaries Commission Act 1982 as in force immediately after the commencement of section 45 of the Constitution (Parliamentary Reform) Act 2003 or provisions substituted for that section 5 which have the same effect.
S. 94H inserted by No. 2/2003 s. 19.
94H Access to information
There is to be in force at all times as part of the laws of Victoria an Act the objectives and functions of which are to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information by creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.
Part VI—Relation of public officers to political affairs
No. 6224 s. 415.
95 Officers in the public service not to take part in political affairs
(1) A person employed in any capacity (whether permanently or temporarily) in the service of the State of Victoria shall not—
(a) publicly comment upon the administration of any department of the State of Victoria;
(b) use except in or for the discharge of his official duties any information gained by or conveyed to him through his connexion with the public service; or
(c) directly or indirectly use or attempt to use any influence with respect to the remuneration or position of himself or of any person in the public service.
S. 95(2) amended by Nos 9788 s. 3(1)(b)(i), 9921 s. 255, 2/1990 s. 7(2), 46/1998
s. 7(Sch. 1).
(2) Any person who contravenes this section shall on proof thereof to the satisfaction of body or person to which or whom he is subject in matters of discipline (as the case requires) be liable to a fine not exceeding $100 and in addition to such fine may be reduced in class subdivision grade status or salary or dismissed or have his services dispensed with.
(3) This section—
S. 95(3)(a) amended by Nos 9788 s. 3(1)(b)(ii), 9921 s. 255, 10029 s. 22, 46/1998
s. 7(Sch. 1), 108/2004 s. 117(1) (Sch. 3 item 40), 24/2006 s. 6.1.2(Sch. 7 item 8.2), 6/2010 s. 203(1) (Sch. 6 item 9.2) (as amended by No. 45/2010 s. 22), 37/2014 s. 10(Sch. item 27.2).
(a) shall apply to every person employed as aforesaid notwithstanding that he may not be subject to the Public Administration Act 2004 or the Education and Training Reform Act 2006 or the Transport (Compliance and Miscellaneous) Act 1983 or the Transport Integration Act 2010 or the Victoria Police Act 2013;
S. 95(3)(b) amended by No. 24/1996 s. 34(b).
(b) shall not apply to officers in the service of the Parliament, but the Governor in Council on the joint recommendation of the presiding officers may make regulations applying to such officers in relation to matters referred to herein.
Pt 7 (Heading and ss 96, 97) inserted by No. 37/2003 s. 5.
Part VII—Delivery of water services
New s. 96 inserted by No. 37/2003 s. 5.
96 Definitions
In this Part—
S. 96 def. of public authority amended by No. 9/2020 s. 390(Sch. 1 item 17).
public authority means—
(a) a public statutory authority; or
(b) a Council within the meaning of the Local Government Act 2020; or
(c) a company (within the meaning of the Corporations Act) all the shares in which are held by or on behalf of the State; or
(d) an Agency Head within the meaning of the Public Sector Management and Employment Act 1998 who is a corporation sole;
public statutory authority means a body, whether corporate or unincorporate, that is established by or under an Act for a public purpose but does not include a company (within the meaning of the Corporations Act) in which all the shares are not held by or on behalf of the State;
water legislation means the Water Act 1989, the Water Industry Act 1994 or the Melbourne and Metropolitan Board of Works Act 1958;
water service means a service relating to—
(a) water supply; or
(b) sewerage; or
(c) irrigation; or
(d) water collection and storage; or
(e) sewage treatment—
for ensuring the delivery of which a public authority has responsibility under water legislation, including under a licence issued under water legislation.
S. 97 inserted by No. 37/2003 s. 5.
97 Delivery of water services
(1) If at any time on or after the commencement of section 5 of the Constitution (Water Authorities) Act 2003 a public authority has responsibility for ensuring the delivery of a water service, that or another public authority must continue to have that responsibility.
(2) A public authority that, at any time on or after the commencement of section 5 of the Constitution (Water Authorities) Act 2003, has responsibility for ensuring the delivery of a water service must, while it has that responsibility, be accountable to a responsible Minister of the Crown for ensuring the delivery of that service.
(3) Nothing in this section prevents a public authority that has responsibility for ensuring the delivery of a water service entering into an arrangement of any kind with a person or body (including an independent contractor) relating to the delivery of that service while itself retaining that responsibility and remaining accountable to a responsible Minister of the Crown for ensuring the delivery of that service.
(4) Nothing in this section prevents the making of an alteration to the structure, composition or membership of a public authority that has responsibility for ensuring the delivery of a water service if the alteration does not affect its status or the status of a successor body as a public authority accountable to a responsible Minister of the Crown for ensuring the delivery of that service.
Pt 8
(Heading
and s. 96) repealed by No. 24/1996 s. 34(c), new Pt 8 (Heading and ss 98, 99) inserted by No. 8/2021 s. 4.
Part VIII—Maintaining the prohibitions on hydraulic fracturing and coal seam gas exploration and mining
S. 98 inserted by No. 8/2021 s. 4.
98 Purpose of this Part
The purpose of this Part is to constrain the power of the Parliament to make laws repealing, altering or varying provisions that prohibit hydraulic fracturing and coal seam gas exploration and mining, in order to ensure that the prohibitions, or prohibitions that are no less onerous, remain in force at all times as part of the law of Victoria.
S. 99 inserted by No. 8/2021 s. 4.
99 Parliament's legislative power constrained in relation to repealing, altering or varying provisions that prohibit hydraulic fracturing and coal seam gas exploration and mining
(1) The Parliament may not by any Act, whether expressly or by implication, repeal, alter or vary any of the following—
(a) section 16A of the Petroleum Act 1998, which prohibits hydraulic fracturing in the course of carrying out a petroleum operation;
(b) section 8AD of the Mineral Resources (Sustainable Development) Act 1990, which prohibits hydraulic fracturing on land by the holder of an exploration licence, a mining licence or a retention licence, in the course of carrying out exploration or mining under the licence;
(c) section 8AC of the Mineral Resources (Sustainable Development) Act 1990, which prohibits carrying out exploration for, or mining of, coal seam gas on land;
(d) section 15(1BAA) of the Mineral Resources (Sustainable Development) Act 1990, which prohibits the Minister accepting an application for an exploration licence, a mining licence or a retention licence, to the extent that it specifies that the licence is to relate to coal seam gas;
(e) a provision of an Act to the extent that the provision is necessary for the effective operation of a provision referred to in paragraph (a), (b), (c) or (d).
(2) Despite subsection (1), the Parliament may by any Act repeal, alter or vary a provision referred to in that subsection if the repeal, alteration or variation—
(a) substitutes for the provision one or more other provisions that have the same effect; or
(b) repeals and re-enacts the provision; or
(c) makes editorial changes that do not derogate from the substantive operation of the provision including, but not limited to, any of the following changes—
(i) changes made to correct typographical, grammatical or clerical errors;
(ii) changes to numbering;
(iii) changes of references to a re named entity or Act;
(iv) changes of a consequential nature that are required because of amendments or repeals of any Act, alterations in the arrangements relating to the machinery of government (however described), or for any other reason; or
(d) increases the penalty for contravening the provision; or
(e) widens the class of persons liable to a penalty for contravening the provision.
(3) Without limiting subsection (1), an Act is taken to repeal, alter or vary a provision referred to in that subsection if the Act—
(a) reduces the penalty for contravening the provision; or
(b) narrows the class of persons liable to a penalty for contravening the provision; or
(c) reduces the geographical area to which the provision applies.
(4) In this section—
coal seam gas has the same meaning as in section 4(1) of the Mineral Resources (Sustainable Development) Act 1990;
commencement day means the day on which section 4 of the Constitution Amendment (Fracking Ban) Act 2021 commences;
exploration has the same meaning as in section 4(1) of the Mineral Resources (Sustainable Development) Act 1990;
exploration licence means an exploration licence under Part 2 of the Mineral Resources (Sustainable Development) Act 1990;
hydraulic fracturing has the same meaning as in section 4(1) of the Mineral Resources (Sustainable Development) Act 1990;
Mineral Resources (Sustainable Development) Act 1990 means the Mineral Resources (Sustainable Development) Act 1990 as in force immediately before the commencement day;
mining has the same meaning as in section 4(1) of the Mineral Resources (Sustainable Development) Act 1990;
mining licence means a mining licence under Part 2 of the Mineral Resources (Sustainable Development) Act 1990;
Petroleum Act 1998 means the Petroleum Act 1998 as in force immediately before the commencement day;
petroleum operation has the meaning given by section 4 of the Petroleum Act 1998;
retention licence means a retention licence under Part 2 of the Mineral Resources (Sustainable Development) Act 1990.
Schedules
Sch. 1 amended by No. 9863 s. 2, repealed by No. 24/1996 s. 34(c).
* * * * *
S. 23.
Sch. 2 substituted by No. 108/1994 s. 6(2), amended by Nos 69/2009 s. 54(Sch. Pt 2 item 11.2), 6/2018 s. 64.
Second Schedule
Oath
I swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty and Her Majesty's heirs and successors according to law.
Affirmation
I do solemnly and sincerely affirm that I will be faithful and bear true allegiance to Her Majesty and Her Majesty's heirs and successors according to law.
[If circumstances so require, His Majesty is to be substituted for Her Majesty.]
Note
For the forms of administering oaths and affirmations, see Part 2 of the Oaths and Affirmations Act 2018.
Sch. 3 inserted by No. 46/1998
s. 7(Sch. 1).
Schedule 3—Oath of office
Section 88AA
I (name of deponent) swear by almighty God that as (name of office) in the State of Victoria, I will at all times and in all things discharge the duties of (name of office) according to law and to the best of my knowledge and ability without fear, favour or affection.
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