Justices of the Peace and Commissioners for Declarations Act 1991 (Qld)

Justices of the Peace and Commissioners for Declarations Act 1991 An Act to provide for the appointment, registration and functions of justices of the peace and commissioners for declarations and for related purposes Part 1 Preliminary 1 Short title This Act may be cited as the Justices of the Peace and Commissioners for Declarations Act 1991. 2 Commencement (1) Section 1, this section and section 45 commence on the day this Act receives the Royal Assent. (2) The remaining provisions of this Act commence on a day to be fixed by proclamation. 3 Definitions In this Act— affidavit includes a statutory declaration. appointed commissioner for declarations means a person who holds office as a commissioner for declarations— (a) pursuant to an appointment made under section 15(3); or (b) under section 44(4). appointed justice of the peace means a person who holds office— (a) as a justice of the peace under section 41(a); or (b) as a justice of the peace (commissioner for declarations) under section 42(1); or (c) as a justice of the peace (qualified) pursuant to an appointment made under section 15(1); or (d) as a justice of the peace (magistrates court) pursuant to an appointment made under section 15(1). appointee, for part 3A, see section 31A. appointment, for part 3A, see section 31A. approved training course, for part 3A, see section 31A. Australian lawyer see the Legal Profession Act 2007, schedule 2. code of conduct means a code of conduct in effect under section 31G. commissioner for declarations means— (a) a person who holds office as a commissioner for declarations under section 19(3); or (b) a person who is an appointed commissioner for declarations. contact details, of a justice of the peace or commissioner for declarations, means the telephone number, email address (if any) and suburb or other locality of the residence of the justice of the peace or commissioner for declarations. conviction means a finding of guilt or acceptance of a plea of guilty by a court, whether or not a conviction is recorded. court includes a justice of the peace conducting an examination of witnesses in relation to an indictable offence under the Justices Act 1886. criminal history of a person— (a) means the person's convictions of offences committed in Queensland or elsewhere; and (b) despite the Criminal Law (Rehabilitation of Offenders) Act 1986, section 6, includes spent convictions. disqualifying conviction see section 17A. ground for revoking an appointment, for part 3A, see section 31A. information notice means a notice complying with the QCAT Act, section 157(2). investigator's report, for part 3A, see section 31A. justice of the peace means— (a) a person who holds office as a justice of the peace, including 1 of any category, under section 19; or (b) a person who is an appointed justice of the peace. possession includes control. prescribed mark of office means a prescribed mark of office within the meaning of section 31(4). procedural action or order means an action taken or order made for, or incidental to, proceedings not constituting a hearing and determination on the merits of the matter to which the proceedings relate, for example the charging of a defendant, the issue of a warrant, the granting of bail, the remand of a defendant or the adjournment of proceedings. Queensland Government website means— (a) www.qld.gov.au; or (b) another website prescribed by regulation. register means the register kept under section 13. registered particulars means particulars about justices of the peace and commissioners for declarations mentioned in section 13(2)(b) stated on the register. registrar means the registrar of justices of the peace and commissioners for declarations. repealed Act means the Justices of the Peace Act 1975. simple offence means a simple offence or breach of duty within the meaning given to those terms by section 4 of the Justices Act 1886. training course includes— (a) a training course with or without an examination; or (b) an examination only. Part 2 Administration 4 Advisory council (1) The Minister may establish an advisory council to advise the Minister in the administration of this Act. (2) The advisory council is to consist of the members appointed to the council by the Minister. (3) When appointing members to the council, the Minister must have regard to— (a) a person's knowledge of the roles and functions of justices; and (b) the special interest, knowledge or experience a person may bring to the council, including, for example, a special interest in, or knowledge or experience of— (i) the needs of particular areas of the State, including rural and remote areas, to be serviced by justices and the special needs of justices servicing the areas; or (ii) the needs of Aboriginal or Torres Strait Islander communities to be serviced by justices and the special needs of justices servicing the communities. (4) The advisory council is to meet at the times and conduct its proceedings in the way directed by the Minister. (5) In this section— justices means justices of the peace and commissioners for declarations. 5 [Repealed] 6 [Repealed] 7 [Repealed] 8 [Repealed] 9 [Repealed] 10 [Repealed] 11 [Repealed] 12 Registrar of justices of the peace and commissioners for declarations A registrar of justices of the peace and commissioners for declarations is to be employed under the Public Sector Act 2022. 12A Deputy registrars (1) Deputy registrars of justices of the peace and commissioners for declarations may be employed under the Public Sector Act 2022. (2) A deputy registrar may exercise the powers of the registrar. 13 Register of justices of the peace and commissioners for declarations (1) The registrar is to keep a register of all appointed justices of the peace and appointed commissioners for declarations. (2) The register— (a) may be in hard copy or electronic form; and (b) must state, for each person who is a justice of the peace or commissioner for declarations— (i) the person's name and contact details; and (ii) the person's particulars of appointment; and (c) must be kept available for inspection under section 38A at each office of the registrar. 14 Correction of register Without derogating from any other power conferred by this Act to correct the register, the registrar is to make such amendments from time to time to the register as are necessary to ensure that it contains an accurate record of the registered particulars of appointed justices of the peace and appointed commissioners for declarations. Part 3 Justices of the peace and commissioners for declarations 15 Appointments of justices of the peace and commissioners for declarations (1) The Governor in Council may appoint as justices of the peace as many persons as the Governor in Council thinks necessary to keep the peace in Queensland. (2) A justice of the peace appointed under subsection (1) is to be appointed to 1 of the categories— (a) justice of the peace (qualified); or (b) justice of the peace (magistrates court). (3) The Governor in Council may appoint as many persons as the Governor in Council thinks fit to be commissioners for declarations. (4) An appointment takes effect on and from registration under this Act. 15A Application for appointment (1) A person may apply to the chief executive for appointment as a justice of the peace or commissioner for declarations. (2) The application must be— (a) in the approved form; and (b) accompanied by the fee prescribed by regulation; and (c) otherwise made in the way prescribed by regulation. (3) The chief executive must consider the application and decide under this part whether or not the person is qualified for appointment. (4) If the person has a disqualifying conviction— (a) the application must include an application for an exemption under section 17B (an exemption application) in relation to the conviction; and (b) the chief executive must decide the exemption application before deciding whether the person is qualified for appointment. (5) The chief executive may ask the person for further information the chief executive needs to decide the application. (6) The application lapses if— (a) the chief executive gives the applicant a notice— (i) asking the applicant to do something to comply with this section including, for example, submitting an exemption application that is required under subsection (4)(a); or (ii) asking the applicant for further information under subsection (5); and (b) the chief executive states a day (the due day), at least 30 days after the day the notice is given, by which the applicant must comply with the request; and (c) the applicant does not comply with the request by the due day or any later day allowed by the chief executive. (7) If the chief executive decides the person is qualified for appointment— (a) the chief executive must notify the Minister of the decision; and (b) the Minister must recommend to the Governor in Council that the person be appointed. (8) If the chief executive decides the person is not qualified for appointment— (a) the chief executive must give the person an information notice for the decision; and (b) the person may apply to QCAT, as provided under the QCAT Act, for a review of the decision. 16 Qualification for appointment (1) Subject to subsection (2), a person is qualified for appointment as a justice of the peace or a commissioner for declarations if— (a) the chief executive is satisfied under section 17 that the person is suitable for appointment; and (b) the person is an adult; and (c) for a person other than an Australian lawyer—the person has completed any pre-appointment training course; and (d) the person is an Australian citizen; and (e) the person— (i) ordinarily resides in Queensland; or (ii) works, or proposes to work, in Queensland and cannot perform that work unless the person is a justice of the peace or a commissioner for declarations. (2) A person is not qualified for appointment as a justice of the peace or a commissioner for declarations if— (a) the person is an insolvent under administration; or (b) the person has a disqualifying conviction; or (c) a previous appointment of the person as a justice of the peace or a commissioner for declarations was revoked within the previous 5 years. (3) In this section— pre-appointment training course means a training course approved under section 32(1)(a). 17 Suitability for appointment (1) In deciding whether a person is suitable to be appointed as a justice of the peace or a commissioner for declarations, or continue to hold office, the chief executive may consider— (a) the person's character and standing in the community; and (b) anything that may affect the person's ability to competently fulfil the duties of a justice of the peace or a commissioner for declarations; and (c) whether the person has ever— (i) held an occupational licence that has been suspended or revoked; or (ii) been disqualified from holding an occupational licence; and (d) whether the person has ever been convicted of an offence and, if so— (i) the number of offences of which the person has been convicted; and (ii) the following matters relating to each offence— (A) the nature and seriousness of the offence; (B) the penalty imposed for the offence; (C) the person's age when they committed the offence; (D) how long ago the person committed the offence; and (e) for a person holding office or who has held office—whether the person has ever contravened the code of conduct without reasonable excuse and, if so, the number, recency, nature and seriousness of the contraventions; and (f) anything else relevant to the person's suitability to hold office. (2) In this section— occupational licence means a licence, permit or other authority to work in a profession, business, trade or industry. office means office as an appointed justice of the peace or appointed commissioner for declarations. revoked includes cancelled. 17A Disqualifying convictions (1) A disqualifying conviction is— (a) a conviction, including a spent conviction, for— (i) an indictable offence; or (ii) an offence involving dishonesty; or (iii) an offence involving a breach of confidentiality; or (iv) an offence against this Act; or (b) a conviction, including a spent conviction, for an offence for which a sentence of imprisonment was imposed, even if the sentence was suspended. (2) However, a conviction of a person is not a disqualifying conviction if the chief executive has granted the person an exemption under section 17B in relation to the conviction. 17B Exemptions for disqualifying convictions (1) A person who is a justice of the peace or commissioner for declarations, or is applying under section 15A for appointment, may apply to the chief executive for an exemption in relation to a conviction mentioned in section 17A(1). (2) The application must be— (a) in the approved form; and (b) accompanied by the fee prescribed by regulation; and (c) otherwise made in the way prescribed by regulation. (3) The chief executive may grant the exemption if satisfied— (a) it would be appropriate to grant the exemption, having regard to the matters mentioned in section 17(1)(d); and (b) because of special circumstances, it would be in the public interest to appoint the person as a justice of the peace or a commissioner for declarations or allow the person to continue to hold that office. Example of special circumstances— A particular community has needs that may not be sufficiently and appropriately served unless the person is appointed or continues in office. (4) The chief executive may not grant the exemption if the conviction is for an offence against this Act. (5) The chief executive may ask the person for further information the chief executive needs to decide the application. (6) The application lapses if— (a) the chief executive gives the applicant a notice— (i) asking the applicant to do something to comply with this section; or (ii) asking the applicant for further information under subsection (5); and (b) the chief executive states a day (the due day), at least 30 days after the day the notice is given, by which the applicant must comply with the request; and (c) the applicant does not comply with the request by the due day or any later day allowed by the chief executive. (7) If the chief executive decides to grant the exemption, the chief executive must give the person written notice of the decision. (8) If the chief executive decides not to grant the exemption— (a) the chief executive must give the person an information notice for the decision; and (b) the person may apply to QCAT, as provided under the QCAT Act, for a review of the decision. 18 [Repealed] 19 Justices of the peace and commissioners for declarations by virtue of office (1) Every person who holds office as— (a) a Supreme Court judge or a District Court judge; or (b) a magistrate; without further appointment, is a justice of the peace. (1A) A person who has retired, or resigned, from office as a Supreme Court or District Court judge or a magistrate is, without further appointment, a justice of the peace. (2) Every person who holds office— (a) as a registrar of the Supreme Court or of the District Court; or (b) as a clerk of the court or registrar of a Magistrates Court, not being a police officer; without further appointment, and for so long as the person holds the office, is— (c) if the person is an Australian lawyer—a justice of the peace (magistrates court); or (d) if the person is not an Australian lawyer—a justice of the peace (qualified). (3) Every clerk of or above the age of 18 who is employed as an officer of the public service in an office of the Supreme Court, the District Court or a Magistrates Court without further appointment, and for so long as the clerk is so employed, is a commissioner for declarations. (4) A person— (a) who is mentioned in subsection (2) or (3); and (b) who was, on 31 October 1991, a justice of the peace under section 9(vi) of the repealed Act; is, without further appointment and despite subsections (2) and (3), a justice of the peace (magistrates court) while the person continues to be employed as a public service officer in an office of the Supreme Court, the District Court or a Magistrates Court. (5) This section does not affect an office held by a person under a provision of this Act other than this section. 20 Oath or affirmation of office (1) Before a person other than a Supreme Court judge or District Court judge performs any of the functions of office as a justice of the peace, the person is to— (a) take an oath of allegiance and office in the following form— "I,_______, do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her Heirs and Successors, in the office of justice of the peace and I will do right to all manner of people according to law without fear or favour, affection or ill-will. SO HELP ME GOD!"; or (b) make an affirmation of allegiance and office in the following form— "I,_______, do solemnly, sincerely, declare and affirm that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her Heirs and Successors, in the office of justice of the peace and I will do right to all manner of people according to law without fear or favour, affection or ill-will.". (2) The oath or affirmation referred to in subsection (1) may be taken or made before, and administered or received by, a Supreme Court judge or a District Court judge, a magistrate or any person authorised in that behalf by writ of dedimus potestatem. (3) In the case of the death or abdication of Her Majesty, the name of Her Majesty's successor according to law for the time being is to be substituted in the form of the oath or affirmation prescribed by this section for the name of Her Majesty. (4) The form of oath to be taken or affirmation to be made by a justice of the peace under this section is in substitution for any oath or affirmation of allegiance or office otherwise prescribed by law. (5) Before a person performs any of the functions of office as a commissioner for declarations the person is to take or make the oath or affirmation prescribed by the regulations. (6) The oath or affirmation referred to in subsection (5) may be taken or made before— (a) a justice of the peace or a commissioner for declarations; or (b) a person before whom may be taken or made the oath or affirmation prescribed for justices of the peace. (7) If, in compliance with subsection (1) or with any Act authorising the appointment of justices of the peace in existence at any time before the commencement of this Act, a person has taken or made an oath or affirmation of allegiance and an oath or affirmation of office or an oath or affirmation of allegiance and office upon being appointed or becoming a justice of the peace, the person is not required to take or make any oath or affirmation referred to in this section— (a) on being continued in office as, or on again being appointed or becoming, a justice of the peace under any provision of this Act; or (b) on being appointed or becoming a commissioner for declarations under any provision of this Act; before performing any of the functions of office as justice of the peace or, as the case may be, commissioner for declarations. (8) If in compliance with subsection (5) a person has taken or made the oath or affirmation referred to in the subsection on being appointed or becoming a commissioner for declarations, the person is not required, on again being appointed or becoming a commissioner for declarations under any provision of this Act, to take or make the oath or affirmation before performing any of the functions of office as commissioner for declarations. 21 Registration of justices of the peace and commissioners for declarations (1) On proof to the satisfaction of the registrar that a person— (a) has been appointed to be a justice of the peace or a commissioner for declarations under section 15; and (b) has taken or made the prescribed oath or affirmation of allegiance and office; and (c) has complied with any prescribed conditions; the registrar is to register the person as a justice of the peace or, as the case may be, a commissioner for declarations, unless subsection (8) applies. (2) The registrar is to register a person under subsection (1) by entering in the register— (a) the name and contact details of the person; and (b) a note of the office to which the person has been appointed; and (c) the person's registered number of office mentioned in subsection (3); and (d) the date of registration. (3) On registering a person under subsection (2), the registrar is to issue to the person, in a form approved by the Minister— (a) a seal of office; and (b) a registered number of office. (4) A seal of office approved by the Minister is to allow for an imprint— (a) that indicates the office of the person to whom it is issued; and (b) provides a space for the insertion of the person's registered number of office. (5) The registrar must publish, on the Queensland Government website, notice of the appointment and registration of a person as a justice of the peace or commissioner for declarations. (6) However, the registrar is not required to notify the appointment and registration of a person under subsection (5) if the registrar considers withholding notification is necessary to protect the safety or wellbeing of the person or a relative of the person. Examples of persons for whom the registrar may consider withholding notification is necessary— • a person, or a relative of the person, whose occupation involves the administration or enforcement of the law, for example, a police officer, inspector or corrective services officer • a person who has reasonably held concerns for the safety or wellbeing of the person, or a relative, because of domestic violence or the commission of an offence (7) Upon payment of the prescribed fee, the registrar may issue to an appointed justice of the peace or appointed commissioner for declarations a certificate of registration in a form approved by the Minister. (8) If, 6 months after the appointment by the Governor in Council of a person as a justice of the peace or a commissioner for declarations— (a) the appointment has not been registered under subsection (1); and (b) proof of the matters mentioned in subsection (1)(a) to (c) has not been provided to the registrar's satisfaction; the appointment lapses. 22 Registrar to be notified of change to registered particulars (1) A person who is an appointed justice of the peace or an appointed commissioner for declarations is to notify the registrar of any change to the person's name or contact details as stated in the register within 30 days of the change and provide any reasonable proof the registrar may require of the change. (2) Upon receipt of such a notification, subject to any required proof being provided, the registrar is to record the change in the register. 22A End of appointment A person stops holding office as an appointed justice of the peace or appointed commissioner for declarations if— (a) the person resigns from office under section 23; or (b) the Governor in Council revokes the person's appointment under section 24; or (c) the person stops holding the office under section 25; or (d) the person— (i) stops being an Australian citizen; or (ii) becomes an insolvent under administration. 23 Resignation (1) A person who is an appointed justice of the peace or an appointed commissioner for declarations may resign from office at any time by giving a written resignation to the registrar. (2) On receiving the person's written resignation, the registrar must— (a) publish notice of the resignation on the Queensland Government website; and (b) remove the person's registered particulars from the register. (3) The person ceases to hold office as a justice of the peace or commissioner for declarations when the person's written resignation is given to the registrar. 24 Revocation of appointment (1) The Governor in Council may, by notice given to the registrar, revoke the appointment of a person as an appointed justice of the peace or an appointed commissioner for declarations. Note— See part 3A (Suspension and revocation of appointments). (2) On receiving a notice under subsection (1) in relation to a person, the registrar must— (a) give the person a copy of the notice; and (b) publish the notice on the Queensland Government website; and (c) remove the person's registered particulars from the register. (3) The person ceases to hold office as a justice of the peace or commissioner for declarations when the notice is published on the Queensland Government website. 24A Change in person's office (1) This section applies if a person holding office (the existing office) as an appointed justice of the peace or appointed commissioner for declarations is later appointed to hold office (the later office) as— (a) for an appointed justice of the peace—an appointed justice of the peace of another category or an appointed commissioner for declarations; or (b) for an appointed commissioner for declarations—an appointed justice of the peace. (2) The registrar is to remove the person's name from the register as the holder of the existing office and insert an entry that the person holds the later office. (3) When the entry is made, the person stops holding the existing office and holds the later office. (4) This section does not apply if section 42 or 44 applies. Editor's note— Sections 42 and 44 already provide transitional arrangements for certain office holders becoming justices of the peace (commissioners for declarations) and commissioners for declarations. 25 Prohibition on acting in office (1) The Governor in Council may, by notice given to the registrar, prohibit an appointed justice of the peace or an appointed commissioner for declarations from acting in the office for a period stated in the notice. (2) The Governor in Council may act under subsection (1) for the reasons the Governor in Council considers appropriate. (3) On receiving a notice under subsection (1) in relation to a person, the registrar must— (a) give the person a copy of the notice; and (b) publish the notice on the Queensland Government website; and (c) make the following changes to the register— (i) at the start of the period stated in the notice—remove the person's registered particulars from the register; (ii) at the end of the period stated in the notice—enter in the register the registered particulars that were removed under subparagraph (i). (4) A person prohibited from acting as a justice of the peace or commissioner for declarations under a notice given under subsection (1)— (a) ceases to hold the office from the start of the period stated in the notice; and (b) resumes the office from the end of the period stated in the notice. (5) A person who resumes office under subsection (4)(b) is not required to take the oath or make the affirmation prescribed by section 20 before performing any of the functions of the office. 26 Notification of cessation of office (1) A person who ceases to hold office as a justice of the peace or as a commissioner for declarations as mentioned in section 22A(d) must immediately notify the registrar. Maximum penalty—10 penalty units. (2) The registrar upon receiving such a notification or on otherwise becoming aware that an appointed justice of the peace or an appointed commissioner for declarations has ceased to hold office as mentioned in section 22A(d) is to— (a) publish notice of the cessation of office on the Queensland Government website; and (b) remove the person's registered particulars from the register. 27 Return of certificate of registration and seal of office (1) A person who ceases to hold office as an appointed justice of the peace or appointed commissioner for declarations as mentioned in section 22A(d) within 14 days is to deliver up to the registrar any seal of office or certificate of registration issued to the person under this Act or under the repealed Act. Maximum penalty—10 penalty units. (2) The registrar is to return to any person who resumes office as an appointed justice of the peace or as an appointed commissioner for declarations under section 25(4)(b), a certificate of registration or seal of office of the person delivered up to the registrar under subsection (1). (3) Without limiting subsection (1), if a person to whom a seal of office or certificate of registration is or was issued under this Act or the repealed Act ceases to hold the office for which the seal or certificate is or was issued, the registrar may give a notice to any person in possession of the seal or certificate requiring the person to deliver it up in accordance with reasonable directions specified in the notice. (4) A person to whom a notice under subsection (3) is given is to comply with the notice. Maximum penalty—20 penalty units. 28 Justices of the peace and commissioners for declarations hold office throughout State Justices of the peace and commissioners for declarations acting within the scope of their respective capacities are justices of the peace or, as the case may be, commissioners for declarations for the whole of the State. 29 Powers of justices of the peace and commissioners for declarations (1) A justice of the peace— (a) subject to subsections (3) to (5), has and may exercise all the powers conferred on the justice of the peace or on a commissioner for declarations by the Justices Act 1886 or any other Act; and (b) may take any affidavit or attest any instrument or document that may be taken or attested under any Act or law. (2) The powers of a justice of the peace mentioned in section 19(1) include, but are not limited to, all the powers specifically conferred under any Act or law on a justice of the peace (qualified) or justice of the