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

1Short title

This Act may be cited as the Justices of the Peace and Commissioners for Declarations Act 1991 .

2Commencement

(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.

s 2 amd 1993 No. 76 s 3 sch 1

3Interpretation

In this Act—

affidavit includes a statutory declaration.

def affidavit ins 1993 No. 76 s 3 sch 1

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).

Australian lawyer see the Legal Profession Act 2007 , schedule 2.

def Australian lawyer ins 2004 No. 11 s 596 sch 1

amd 2007 No. 24 s 770 sch 1

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.

def contact details ins 2010 No. 42 s 127

amd 2013 No. 35 s 99

Council ...

def Council om 1996 No. 40 s 3

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 criminal history within the meaning of the Criminal Law (Rehabilitation of Offenders) Act 1986 ; and

(b)despite section 6 of the Criminal Law (Rehabilitation of Offenders) Act 1986 , includes a conviction to which the section applies.

def criminal history ins 1993 No. 76 s 3 sch 1

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.

legal practitioner ...

def legal practitioner om 2004 No. 11 s 596 sch 1

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.

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.

def registered particulars ins 2010 No. 42 s 127

registrar means the registrar of justices of the peace and commissioners for declarations.

def registrar sub 1993 No. 76 s 3 sch 1

repealed Act means the Justices of the Peace Act 1975 .

def repealed Act sub 1993 No. 76 s 3 sch 1

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.

def training course ins 1991 No. 97 s 3 sch 1

4Advisory 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.

s 4 amd 1991 No. 97 s 3 sch 1

sub 1996 No. 40 s 4

12Registrar 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 Service Act 2008 .

s 12 sub 1995 No. 24 s 22; 1996 No. 37 s 147 sch 2

amd 2009 No. 25 s 83 sch

12ADeputy registrars

(1)Deputy registrars of justices of the peace and commissioners for declarations may be employed under the Public Service Act 2008 .

(2)A deputy registrar may exercise the powers of the registrar.

s 12A ins 1996 No. 37 s 147 sch 2

amd 2009 No. 25 s 83 sch

13Register 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.

s 13 amd 2010 No. 42 s 128; 2013 No. 35 s 100

14Correction 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.

s 14 amd 2010 No. 42 s 129

15Appointments 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.

(5)Application by a person for appointment as a justice of the peace or commissioner for declarations is to be made in the manner prescribed by the regulations.

16Qualifications of office

(1)A person is not qualified to be appointed under this Act as a justice of the peace or a commissioner for declarations unless—

(a)the Governor in Council considers the person to be fit and proper; and

(b)the person is of or above the age of 18 years; and

(c)if the Minister has approved a training course that the person is required to complete before being so appointed—the person has completed the course; and

(d)the person is an Australian citizen.

(2) Subsection (1) (c) does not apply to the appointment of an Australian lawyer.

(3) Subsection (1) (d) does not apply to a person who has continued to hold office as a justice of the peace because of section 41 (a).

s 16 amd 1995 No. 24 s 23; 1996 No. 40 s 5; 2004 No. 11 s 596 sch 1; 2008 No. 59 s 77

17Disqualification from office

(1)A person is not qualified to be appointed to, or to continue in, office under this Act as an appointed justice of the peace or as an appointed commissioner for declarations if the person—

(a)is an insolvent under administration within the meaning of the Corporations Act, section 9; or

(b)is or has been convicted of an indictable offence, whether dealt with on indictment or summarily; or

(c)is or has been convicted of an offence against this Act; or

(d)is or has been convicted of more than 2 relevant offences; or

(e)within the last 5 years—

(i)has been convicted of a relevant offence; or

(ii)has been convicted of an offence under the Road Use Act, section 79 or 80; or

(f)within the last 4 years, has been convicted of more than 2 offences under the Road Use Act.

(2)Also, if a person has been convicted of more than 6 offences under the Road Use Act in a 4 year period, the person is not qualified to be appointed to, or to continue in, office under this Act as an appointed justice of the peace or as an appointed commissioner for declarations for 5 years after the date of the last conviction.

(3) Subsections (1) (f) and (2) do not apply to an offence in relation to regulated parking under the Road Use Act, chapter 5, part 6.

(4)For subsections (1) (f) and (2), a person who pays an amount by way of penalty for an offence, without court proceedings being involved, in compliance with a notice fixed to a vehicle or given to the person under the Road Use Act is taken to have been convicted under that Act of the offence on the day the amount is paid.

(5)The Minister may exempt an applicant for appointment as a commissioner for declarations from a disqualification mentioned in subsection (1) (f) or subsection (2) if the Minister considers special circumstances exist.

(7)In this section—

relevant offence means an offence other than—

(a)an offence under the Road Use Act; or

(b)an offence mentioned in subsection (1) (b) or (c).

Road Use Act means the Transport Operations (Road Use Management) Act 1995.

s 17 amd 1991 No. 97 s 3 sch 1; 1993 No. 76 s 3 sch 1; 1995 No. 58 s 4 sch 2; 2000 No. 16 s 590 sch 1 pt 2; 2007 No. 37 s 100 sch

sub 2008 No. 59 s 78

18Cessation of office on disqualification

A person holding office as an appointed justice of the peace or appointed commissioner for declarations ceases to hold the office on becoming disqualified from continuing in the office.

s 18 ins 1991 No. 97 s 3 sch 1

19Justices 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.

s 19 amd 1991 No. 97 s 3 sch 1; 1996 No. 40 s 6; 1999 No. 19 s 3 sch; 2004 No. 11 s 596 sch 1

20Oath 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.

s 20 amd 1992 No. 68 s 3 sch 1

21Registration 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 is to cause notification of the appointment and registration of a person as a justice of the peace or commissioner for declarations to be published in the gazette.

(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.

s 21 amd 1991 No. 97 s 3 sch 1; 2010 No. 42 s 130; 2013 No. 35 s 101

22Registrar 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.

s 22 amd 1991 No. 97 s 3 sch 1; 2010 No. 42 s 131

23Resignation

(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)The registrar is to cause notification of the resignation to be published in the gazette.

(3)Upon publication in the gazette of a notification—

(a)the person ceases to hold office; and

(b)the registrar is to remove the person’s registered particulars from the register;

as a justice of the peace or, as the case may be, a commissioner for declarations.

s 23 amd 2010 No. 42 s 132

24Revocation of appointment

(1)The Governor in Council, by notification published in the gazette, may revoke the appointment of a person as an appointed justice of the peace or an appointed commissioner for declarations for such reason as the Governor in Council thinks fit.

(2)Upon publication in the gazette of a notification—

(a)the person ceases to hold office; and

(b)the registrar is to remove the person’s registered particulars from the register;

as a justice of the peace or, as the case may be, a commissioner for declarations.

s 24 amd 2010 No. 42 s 133

24AChange 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.

s 24A ins 1996 No. 40 s 7

25Prohibition on acting in office

(1)The Governor in Council, by notification published in the gazette, may prohibit an appointed justice of the peace or an appointed commissioner for declarations from acting in office for a period defined in the notification.

(2)The Governor in Council may act under subsection (1) for such reasons as the Governor in Council thinks fit.

(3)A person prohibited from acting as a justice of the peace or commissioner for declarations pursuant to a notification—

(a)ceases to hold office as a justice of the peace or, as the case may be, a commissioner for declarations on and from the commencement of the period defined in the notification; and

(b)resumes office as a justice of the peace or, as the case may be, a commissioner for declarations, on and from the expiration of the period defined in the notification.

(4)Upon publication in the gazette of a notification, the registrar—

(a)at the commencement of the period defined in the notification, is to remove the registered particulars of the person from the register; and

(b)at the expiration of the period defined in the notification, is to enter the registered particulars of the person in the register;

as a justice of the peace or, as the case may be, a commissioner for declarations.

(5)A person who resumes office under subsection (3) (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.

s 25 amd 2010 No. 42 s 134

26Notification of cessation of office

(1)A person who ceases to hold office as a justice of the peace or as a commissioner for declarations by virtue of being disqualified under a provision of this Act 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 by virtue of disqualification under this Act is to—

(a)cause notification of the cessation of office to be published in the gazette; and

(b)remove the person’s registered particulars from the register.

s 26 amd 1991 No. 97 s 3 sch 1; 2007 No. 37 s 100 sch; 2010 No. 42 s 135

27Return 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 under section 17 (1) (a), (b) or (c), 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 (3) (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.

s 27 amd 1991 No. 97 s 3 sch 1; 1996 No. 40 s 8; 2007 No. 37 s 100 sch; 2010 No. 42 s 126 sch

28Justices 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.

29Powers 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 peace (magistrates court).

(3)A justice of the peace (qualified), in the exercise of any power to constitute a court for the purpose of a proceeding is limited to taking or making a procedural action or order.

(4)A justice of the peace (magistrates court), in the exercise of any power to constitute a court for the purpose of a proceeding is limited to—

(a)the hearing and determination of a charge of a simple offence or a regulatory offence pursuant to proceedings taken under the Justices Act 1886 in a case where the defendant pleads guilty; and

(b)conducting an examination of witnesses in relation to an indictable offence under the Justices Act 1886 ; and

(c)taking or making a procedural action or order.

(5)A justice of the peace (commissioner for declarations) is limited to the exercise of the powers of a commissioner for declarations.

(6)To allay any doubts, it is declared that subsections (3) to (5) do not limit the powers of—

(a)a magistrate exercising jurisdiction conferred on justices of the peace; or

(b)a justice of the peace whose office is preserved by section 41 (a); or

(c)a justice of the peace mentioned in section 19 (1).

(7)A limitation imposed by subsection (3), (4) or (5) on the powers exercisable by a justice of the peace of a specified category applies despite the provisions of any Act conferring powers on a justice of the peace unless the Act expressly excludes the operation of the subsection.

(8)A commissioner for declarations—

(a)has and may exercise all the powers conferred on a commissioner for declarations by any Act or law; and

(b)may take any affidavit or attest any instrument or document that may be taken or attested under any Act or law.

(9)If justices of the peace generally are authorised under an Act or law to do an act mentioned in subsection (8) (b)—

(a)a commissioner for declarations may also do the act; and

(b)the Act or law applies to the commissioner for declarations as if the commissioner for declarations were a justice of the peace;

unless the operation of this subsection is expressly excluded.

s 29 amd 1993 No. 76 s 3 sch 1

30Act done beyond State

An act done outside Queensland by a justice of the peace or a commissioner for declarations for the purpose of taking any affidavit or attesting any instrument or document intended to take effect in Queensland is as valid and effectual as if the act were done in Queensland unless the act is required by law to be done in Queensland.

31Proof of acts done in the performance of office

(1)A person placing his or her signature on an instrument or document as the holder of the office of justice of the peace or commissioner for declarations is to insert immediately beneath, beside or close to the signature—

(a)the imprint of a seal of office issued to the person under this Act with the person’s registered number of office inserted in the space provided; or

(b)subject to subsection (2), the prescribed mark of office.

(2)If a seal of office has been issued under this Act to a justice of the peace, the justice of the peace when placing his or her signature upon an instrument or document in the exercise of a power—

(a)to constitute a court for the purpose of any proceedings; or

(b)to issue a summons or warrant of any description;

is to insert, as prescribed by subsection (1), the imprint of the seal complete with registered number of office.

(3)In any proceedings evidence that—

(a)an imprint in the form of an imprint of a seal of office of a kind issued under this Act with a number inserted in the space provided; or

(b)a mark in the form of a prescribed mark of office;

has been inserted beneath, beside or close to a signature placed on an instrument or document is evidence that the person whose signature it purports to be duly signed the instrument or document in the performance of the functions of the office indicated by the mark or imprint.

(4)The prescribed mark of office of each office specified in the first column of the following table is the mark specified in the second column opposite the office.

Table
the office of justice of the peace preserved by section 41 or held under section 19 (1)	“Justice of the Peace” or “J.P.”
justice of the peace (magistrates court)	“Justice of the Peace (Magistrates Court)” or “J.P. (Magistrates Court)” or “J.P. (MAG. CT.)”
justice of the peace (qualified)	“Justice of the Peace (Qualified)” or “J.P. (Qualified)” or “J.P. (Qual.)”
justice of the peace (commissioner for declarations)	“Justice of the Peace (Commissioner for Declarations)” or “J.P. (C.dec)”
commissioner for declarations	“Commissioner for Declarations” or “C.dec”

(5)Variations of no significance between an imprint or mark appearing on a document or instrument and an imprint or mark prescribed by this section are to be disregarded for the purposes of this section.

s 31 amd 1992 No. 68 s 3 sch 1

32Approved training courses

The Minister may approve, in relation to an office provided for by this Act, a training course that is to be completed by a person or class of person—

(a)before appointment to the office; or

(b)while holding the office.

33Inquiries about person’s appropriateness to hold office

(1)The chief executive may make inquiries about a person to assist in deciding whether the person is an appropriate person to hold office under this Act.

(2)If requested by the chief executive, the commissioner of the police service must give the chief executive a written report about the person’s criminal history.

(3) Subsection (2) applies to the criminal history—

(a)that is in the commissioner’s possession; or

(b)to which the commissioner ordinarily has access through arrangements with the police service of the Commonwealth, another State or Territory.

(4)The report may only be used for the purposes of this Act.

s 33 ins 1993 No. 76 s 3 sch 1

34Wrongfully acting as justice of the peace or commissioner for declarations

(1)A person who assumes to act in the office of justice of the peace or commissioner for declarations that the person does not hold commits an offence against this Act.

Maximum penalty—20 penalty units or imprisonment for 1 year.

(2)In any proceedings evidence that a person caused to appear or allowed to remain immediately beneath, beside or close to the person’s signature on an instrument or document an imprint or a mark that under section 31 is evidence that the person duly signed the instrument or document in the performance of the functions of the office indicated by the imprint or mark, is evidence, if the person did not hold the office, that the person assumed to act in the office.

35Prohibition on reward

(1)A justice of the peace or commissioner for declarations is not to seek or receive, directly or indirectly, any reward in connection with the performance of the functions of office.

Maximum penalty—20 penalty units or imprisonment for 1 year.

(2)In this section—

in connection with includes under colour or pretext of.

receive includes take or accept.

reward includes charge, fee, gratuity or any consideration but, for a justice of the peace (magistrates court), does not include a daily sitting fee paid to the person for constituting a court at a place at which a Magistrates Court may be constituted, if the place is within a community area under the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 .

seek includes request, require, extort or demand.

(3)A court that finds a person guilty of an offence under this section may make an order—

(a)requiring the offender to return the reward to its rightful owner; or

(b)confiscating the reward to the Crown.

(4)A court may make any further order necessary to enforce an order made under subsection (3).

(5)An order for the payment of an amount of money to a person under subsection (3) (a)—

(a)may be enforced as prescribed by the Justices Act 1886 ; or

(b)upon the order being filed in any court with jurisdiction in actions for debt of that amount, as an order of that court.

s 35 amd 2007 No. 59 s 74

35AProof of identity documents

(1)A justice of the peace or commissioner for declarations may sight a proof of identity document and record information in the document for the purpose of taking an affidavit or attesting an instrument or document.

(2)However, a justice of the peace or commissioner for declarations must not disclose information recorded under this section other than in the performance of the office of justice of the peace or commissioner for declarations or as otherwise required by law.

(3)A justice of the peace or commissioner for declarations who records information under this section must take reasonable steps to ensure the information is kept in a secure way.

s 35A ins 2011 No. 45 s 237 (amd 2013 No. 35 s 34)

36Action against justices

(1)A person injured—

(a)by an act done by a justice of the peace or a commissioner for declarations purportedly in the performance of the functions of office but which the justice of the peace or commissioner for declarations knows is not authorised by law; or

(b)by an act done by a justice of the peace or commissioner for declarations in the discharge of the functions of office but done maliciously and without reasonable cause;

may recover damages or loss sustained by the person by action against the justice of the peace or commissioner for declarations in any court of competent jurisdiction.

(2)Subject to subsection (1), action is not to be brought against a justice of the peace or commissioner for declarations in respect of anything done or omitted to be done in, or purportedly in, the performance of the functions of office.

37Proceedings generally

(1)Proceedings for an offence against this Act are to be taken in a summary way under the Justices Act 1886 within 12 months after the offence is committed or within 6 months after the commission of the offence comes to the knowledge of the registrar, whichever period is later to expire, upon the complaint of the registrar or a person authorised for the purpose by the registrar.

(2)Without derogating from the provisions of section 139 of the Justices Act 1886 , a complaint for an offence against this Act may be heard at a place within the district appointed for the purposes of Magistrates Courts under the Justices Act 1886 in which the defendant resides.

(3)In proceedings referred to in this section the authority of the complainant to make the complaint is to be presumed unless the contrary is proved.

38Publication of office holders

(1)The registrar, whenever directed to do so by the Minister, is to cause to be published in such manner as the Minister directs, a list of names of persons registered under this Act as justices of the peace or commissioners for declarations.

(2)A list of persons referred to in subsection (1)—

(a)may contain such particulars shown on the register concerning those persons as the Minister directs, other than contact details withheld from inspection by the registrar under section 38A (3); and

(b)may be a list of all persons or such class of person registered under this Act as justices of the peace or commissioners for declarations as the Minister directs, other than contact details withheld from inspection by the registrar under section 38A (3).

(3)Notwithstanding subsection (1), for the purpose of ensuring that as many justices of the peace as may be practicable perform functions of office, the registrar is to compile and deliver to the commissioner of the police service from time to time lists of the names and contact details of justices of the peace residing in particular areas of the State.

(4)The lists referred to in subsection (3) may include such information as may be necessary to identify functions of office the justices of the peace included in the lists are authorised to perform.

(5)A police officer, in selecting a justice of the peace to perform a function of office, is to have regard, if practicable, to the list provided under subsection (3) for the area in which the function is to be performed.

s 38 amd 2010 No. 42 s 136; 2013 No. 35 s 102

38AAccess to register

(1)A person may apply to the registrar to inspect the register.

(2)The registrar may grant the application only if the registrar considers the applicant has a sufficient interest in inspecting the register.

(3)The registrar may withhold from inspection the contact details of a person who is a justice of the peace or commissioner for declarations if the registrar considers it 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 it necessary to protect the safety or wellbeing—

•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

s 38A ins 2013 No. 35 s 103

39Evidentiary provisions

(1)In any proceedings, a certificate purporting to be signed by the registrar stating that a person named in the certificate—

(a)was, or was not, on a date or during a specified period—

(i)registered under this Act or under the repealed Act as holding a specified office; or

(ii)issued with a specified seal or specified registered number; or

(iii)prohibited under this Act or the repealed Act from acting in a specified office; or

(iv)being a justice of the peace or commissioner for declarations, a person in respect of whom a specified event defined in section 17 (1) (a) to (d) had occurred; or

(b)had failed, on or before a date or during a specified period, to notify the registrar of a specified matter;

is evidence of the matters stated in the certificate.

(2)In any proceedings, a document purporting to be a list published under section 38 is evidence of the matters contained in the document.

(3)Judicial notice is to be taken of a notification published in the gazette under this Act.

s 39 amd 2010 No. 42 s 126 sch

40Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)A regulation may be made about—

(a)preventing or suppressing improper or undesirable practices relating to the performance of functions by justices of the peace or commissioners for declarations; or

(b)imposing requirements upon justices of the peace or commissioners for declarations; or

(c)prescribing fees payable in connection with the administration of this Act.

(3)The regulations may provide for offences punishable by penalties not exceeding 20 penalty units.

s 40 amd 1991 No. 97 s 3 sch 1; 1993 No. 76 s 3 sch 1; 2008 No. 59 s 79; 2010 No. 42s 126 sch

pt hdg (prev pt 6 hdg) sub 2007 No. 37 s 100 sch

div hdg ins 2007 No. 37 s 100 sch

41Transitional office holders and register

On and from the commencement of this Act—

(a)subject to section 42, a person who immediately before the commencement holds office as a justice of the peace—

(i)pursuant to an appointment made under section 8 of the repealed Act; or

(ii)pursuant to an appointment deemed to have been made under the repealed Act because of section 4 of that Act;

continues to hold office as a justice of the peace under this Act; and

(b)the Register of Justices kept pursuant to section 7 of the repealed Act continues in existence as the register of justices of the peace and commissioners for declarations required to be kept under section 13 of this Act; and

(c)the person holding office immediately before the commencement as registrar of justices appointed under section 6 of the repealed Act is taken to be appointed registrar of justices of the peace and commissioners for declarations under section 12 of this Act.

42Justice of the peace (commissioner for declarations)

(1)If at 30 June 2000, a person remains in office as a justice of the peace under section 41 (a), the person then ceases to hold that office and instead holds office as a justice of the peace (commissioner for declarations).

(2)The registrar is to remove the person’s name from the register as a justice of the peace and insert an entry that the person is a justice of the peace (commissioner for declarations).

(3) Subsection (1) does not apply to a lawyer.

s 42 amd 1996 No. 40 s 9

43Power to appoint and revoke in case of transitional office holder

The power of the Governor in Council under sections 15 and 24 to appoint, or to revoke the appointment of, a person as a justice of the peace includes the power—

(a)to revoke an appointment preserved by section 41 (a) or conferred by section 42 (1); and

(b)to revoke an appointment preserved by section 41 (a) or conferred by section 42 (1) and appoint the person whose appointment is so revoked afresh as a justice of the peace to 1 of the categories mentioned in section 15 (2).

44Transitional office holder entitled to become commissioner for declarations

(1)A person who holds office as—

(a)a justice of the peace under section 41 (a); or

(b)a justice of the peace (commissioner for declarations) under section 42 (1);

may apply to the registrar to be registered as a commissioner for declarations.

(2)The application is to be made in accordance with the regulations.

(3)Upon receipt of the application, the registrar is to—

(a)remove the person’s name from the register as a justice of the peace or justice of the peace (commissioner for declarations) and insert an entry that the person is a commissioner for declarations; and

(b)issue the person with the seal of office and registered number of office prescribed by section 21 (3).

(4)The person then ceases to be a justice of the peace or, as the case may be, a justice of the peace (commissioner for declarations) and is taken to be appointed as a commissioner for declarations under section 15 (3).

(5)The registrar is to cause notification of the cessation of office of the person under this section and of the person’s commencement in office as a commissioner for declarations to be published in the gazette.

s 44 amd 1991 No. 97 s 3 sch 1

45Transitional applications

(1)An application under section 8 (5) of the repealed Act for appointment as a justice of the peace pending immediately before the commencement of this section, on and from the commencement of this section is taken to be an application under section 15 (5) for appointment as a commissioner for declarations.

(2)An application is pending if, before the commencement of this section—

(a)the application has been received by the registrar; and

(b)the person by or on whose behalf the application was made has not been appointed a justice of the peace; and

(c)the application has not been refused.

div hdg ins 2007 No. 37 s 101

46Validation of approved application forms

(1)An approved application form is taken to have been valid during the relevant period.

(2)Without limiting subsection (1), a requirement in an approved application form for the application to be endorsed by a nominator, in a way stated by the form, is taken to have been valid during the relevant period.

(3)In this section—

approved application form means a form—

(a)made available by the department for use, under the regulation, for applying for appointment as a justice of the peace or commissioner for declarations; and

(b)published in the gazette on 22 April 2005 at page 1301.

regulation means the Justices of the Peace and Commissioners for Declarations Regulation 1991.

relevant period means the period—

(a)starting on 22 April 2005; and

(b)ending on 10 August 2006.

s 46 prev s 46 ins 1992 No. 68 s 3 sch 1

sub 1993 No. 76 s 3 sch 1

om R2 (see RA s 39)

pres s 46 ins 2007 No. 37 s 101

div hdg ins 2010 No. 42 s 137

47Correction of register to comply with amended Act

(1)This section applies to any corrections the registrar is required to make to the register because of the amendment of section 13 made by the Justice and Other Legislation Amendment Act 2010 .

(2)The registrar may correct the register as soon as the registrar considers it practicable to do so after the commencement of the amendment of the section.

s 47 prev s 47 ins 1993 No. 76 s 3 sch 1

exp 14 December 1993 (see s 47 (2))

pres s 47 ins 2010 No. 42 s 137