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2010
THE LEGISLATIVE ASSEMBLY FOR
THE
AUSTRALIAN CAPITAL
TERRITORY
JUSTICE AND
COMMUNITY SAFTEY LEGISLATION AMENDMENT BILL 2010 (NO 2)
EXPLANATORY
STATEMENT
Presented by
Simon Corbell MLA
Attorney
General
Justice and Community Safety Legislation Amendment Bill 2010 (No 2)
Overview of the Bill
The Justice and Community Safety
Legislation Amendment Bill 2010 (No 2) (the Bill) amends a number of laws
administered by the Department of Justice and Community Safety.
The
detail of these amendments is listed
below.
ACT Civil and Administrative Tribunal
Act 2008
Amendments to the ACT Civil and
Administrative Tribunal Act 2008 will clarify an ambiguity in the Act in
relation to the appointment of temporary presidential and non-presidential
members to the Tribunal. The amendments will disaggregate the generic reference
to temporary appointment of ‘tribunal members’ referred to in
existing section 101 of the Act by describing the way temporary appointments
apply to each type of member. Temporary appointments will be permissible for a
term of not longer than 12 months.
Magistrates Court Act
1930
Section 89 of the Magistrates Court Act 1930 authorises
the court (subject to a number of procedural requirements) to issue a warrant
for arrest in the event of a person failing to attend court in response to a
summons for an indictable offence. Section 110 of the Act provides similarly in
respect of summary offences. However, neither section empowers the court to
issue a warrant in the event of a person attending court in answer to the
summons, but then failing to attend on any subsequent adjourned date. At
present, the court is utilising provisions under Division 3.3.4 of the Act,
which permit a warrant to be issued, but are not entirely appropriate where a
person has already attended court in answer to a summons.
Accordingly,
the Act is amended to allow the court to issue a warrant where a person appears
in court, is informed of the adjourned date and time of the adjourned hearing,
but fails to appear on the adjourned date. The information must be
substantiated by oath of the informant or witness before a warrant may be
issued. The amendment is consistent with equivalent legislation other
jurisdictions, including the New South Wales Criminal Procedure Act 1986
(section 181).
In addition, section 110 does not allow the court to
issue a warrant in the event of a person having appeared by lawyer in accordance
with section 53(2) in the first instance, and then failing to appear at a later
date. This issue does not arise in relation to section 89, as section 89A
provides for these circumstances. This problem is addressed by amendment to
section 110 so that in the event of appearance by lawyer, but the court
requiring attendance in person, the court must adjourn the case and inform the
defendant of the place, date and time of the adjourned hearing. If the
defendant then fails to attend a hearing following service of the adjournment
notification, the court may issue an arrest
warrant.
Prostitution Act 1992
Amendments have
been made to the Prostitution Act 1992 to update the language used in the
Act to reflect the terminology used in Australian national policy.
Specifically, the amendments replace references to ‘sexually transmitted
disease’ with references to ‘sexually transmissible
infection’. The term sexually transmissible infection
reflects the terminology that is used in Australian national policy that
addresses this issue - specifically the National Sexually Transmissible
Infections Strategy 2010- 2013. Local policy also uses this terminology
including the ACT document which is entitled HIV/AIDS, Hepatitis C and
Sexually Transmissible Infections: A Strategic Framework for the ACT 2007-2012.
An amendment has also been made to the heading of section 25 to more
appropriately reflect the content of the provision.
Update of
bankruptcy and insolvency terminology
The Statute Law Amendment
Act 2009 (No. 2) inserted a definition into the Legislation Act 2001
of bankrupt or personally insolvent. The definition establishes a single term
to cover the range of circumstances by which an individual may be considered
bankrupt or insolvent under the Bankruptcy Act 1966 (Cwlth). The
definition includes individuals having a similar bankruptcy or personal
insolvency status in a foreign country and people in any other circumstances
seeking to benefit from any law for the relief of bankrupt or insolvent debtors.
Consequential amendments were made to 19 Acts and regulations to apply the new
definition. The Statute Law Amendment Bill 2010 continued this process for
non-Justice and Community Safety portfolio legislation.
The amendments in the Bill continue the process with similar amendments being
made to:
• Associations Incorporation Act
1991;
• Associations Incorporation Regulation
1991;
• Cooperatives Act 2002;
• Corrections
Management Act 2007;
• Crimes (Sentence Administration) Act
2005;
• Director of Public Prosecutions Act
1990;
• Domestic Violence Agencies Act
1986;
• Guardianship and Management of Property Act
1991;
• Human Rights Commission Act
2005;
• Independent Competition and Regulatory Commission Act
1997;
• Justices of the Peace Act 1989;
• Legal
Aid Act 1977;
• Ombudsman Act 1989;
• Powers of
Attorney Act 2006;
• Public Advocate Act
2005;
• Public Trustee Act 1985.
The
amendments to the listed Acts and regulations above will ensure that legislation
within the Justice and Community Safety portfolio is consistent with the rest of
the ACT statute book.
Clause 1 Name of Act
Provides that the name of the Act is
the Justice and Community Safety Legislation Amendment Act 2010 (No
2).
Clause 2 Commencement
Provides that all provisions
in the Act will commence on the 28th day after notification, except
for the amendments to the ACT Civil and Administrative Tribunal Act 2008
(Part 1.1) which will commence on the day after notification.
Clause
3 Legislation amended
Provides that the Act amends legislation
mentioned in schedule 1.
Schedule 1 Legislation amended
Part 1.1 ACT Civil and Administrative Tribunal Act
2008
Clause 1.1 Section
94(2)
Section 94 of the Act provides for the
appointment of presidential members to the ACT Civil and Administrative Tribunal
(ACAT). New subsection 94(1A) will permit the Executive to appoint a temporary
presidential member to the ACAT. The substance of existing subsection 94(2) is
retained but is revised to include a new reference to subsection (1A).
Clause 1.2 Section 96(2)
Section 96 of the Act provides
for the appointment of non-presidential members to the ACT Civil and
Administrative Tribunal (ACAT). New subsection 96(1A) will permit the Attorney
General to appoint a temporary senior member or temporary ordinary member to the
ACAT. The substance of existing subsection 96(2) is retained but is revised to
include a new reference to subsection (1A).
Clause 1.3 Section
96(3)
This amendment replaces the phrase ‘appointment of senior
and ordinary members’ with the phrase ‘appointment of
non-presidential members’ for consistency with references used throughout
section 96.
Clause 1.4 Section 98(1)
Subsection
98(1) of the Act provides for the term of appointment for a presidential member.
Subsection 98(1) is revised to exclude the operation of the section to temporary
presidential members (see clause 1.5 for the term of appointment for a temporary
presidential member).
Clause 1.5 New section 98(1A)
This
amendment inserts a new subsection 98(1A) into the Act to provide for the
appointment of a temporary presidential member for up to 12 months.
Clause 1.6 Section 98(2)
Subsection 98(2) of the Act
provides for the term of appointment for a non-presidential member. Subsection
98(2) is revised to exclude the operation of the section to temporary
non-presidential members (see clause 1.7 for the term of appointment for a
temporary non-presidential member).
Clause 1.7 New section
98(2A)
This amendment inserts a new subsection 98(2A) into the Act to
provide for the appointment of a temporary non-presidential member for up to 12
months.
Clause 1.8 Section 101
This amendment removes
section 101. Section 101 provides for the appointment of temporary tribunal
members. This section is now redundant through the inclusion of new subsections
94(1A) and 96(1A) (see clauses 1.1 and 1.2).
Clause 1.9 Section 103
heading
This amendment replaces the heading for section 103 to more
appropriately reflect the content of the provision.
Clause
1.10 Section 103
Section 103 of the Act provides that a presidential
member must not do other work (including engaging in remunerative employment, or
accepting appointment to another position) without the Attorney General’s
written consent. The amendment revises section 103 to exclude the operation of
the section to temporary presidential members.
Clause
1.11 Dictionary, definition of non-presidential member
This
amendment amends the definition of non-presidential member in the
dictionary to include a new reference to temporary non-presidential members
appointed under subsection 96(1A).
Clause 1.12 Dictionary, definition
of presidential member
This amendment amends the definition of
presidential member in the dictionary to include a new reference
to temporary presidential members appointed under subsection
94(1A).
Part 1.2 Associations Incorporation Act
1991
Clause 1.13 Section 63(2)
This amendment
substitutes language in relation to bankruptcy with the term ‘bankrupt or
personally insolvent’, which is defined in the Legislation Act
2001, dictionary, part 1. The definition covers the range of circumstances
in which an individual may be considered bankrupt or insolvent.
Clause
1.14 Section 64(2)(d)
This amendment substitutes language in relation
to bankruptcy with the term ‘bankrupt or personally insolvent’,
which is defined in the Legislation Act 2001, dictionary, part 1. The
definition covers the range of circumstances in which an individual may be
considered bankrupt or insolvent.
Clause 1.15 Dictionary, note
2
This amendment inserts a new defined term in the list of terms
defined in the Legislation Act 2001 as a consequence of the insertion of
the new term in sections 63 and 64 (see clauses 1.13 –
1.14).
Part 1.3 Associations Incorporation Regulation
1991
Clause 1.16 Schedule 1, section 16(1)(e)
This
amendment substitutes language in relation to bankruptcy with the term
‘bankrupt or personally insolvent’, which is defined in the
Legislation Act 2001, dictionary, part 1. The definition covers the
range of circumstances in which an individual may be considered bankrupt or
insolvent.
Part 1.4 Cooperatives Act 2002
Clause
1.17 Section 67(1)(c)
This amendment substitutes language in relation
to bankruptcy with the term ‘bankrupt or personally insolvent’,
which is defined in the Legislation Act 2001, dictionary, part 1. The
definition covers the range of circumstances in which an individual may be
considered bankrupt or insolvent.
Clause 1.18 Dictionary,
note 2
This amendment inserts a new defined
term in the list of terms defined in the Legislation Act 2001 as a
consequence of the insertion of the new term in section 67 (see clause
1.17).
Part 1.5 Corrections Management Act 2007
Clause
1.19 Section 61(1)(c)
This amendment substitutes language in relation
to bankruptcy with the term ‘bankrupt or personally insolvent’,
which is defined in the Legislation Act 2001, dictionary, part 1. The
definition covers the range of circumstances in which an individual may be
considered bankrupt or insolvent.
Clause 1.20 Dictionary, note
2
This amendment inserts a new defined term in the list of terms
defined in the Legislation Act 2001 as a consequence of the insertion of
the new term in section 61 (see clause 1.19).
Part 1.6 Crimes
(Sentence Administration) Act 2005
Clause 1.21 Section
178(1)(c)
This amendment substitutes language in relation to
bankruptcy with the term ‘bankrupt or personally insolvent’, which
is defined in the Legislation Act 2001, dictionary, part 1. The
definition covers the range of circumstances in which an individual may be
considered bankrupt or insolvent.
Clause 1.22 Dictionary, note
2
This amendment inserts a new defined term in the list of terms
defined in the Legislation Act 2001 as a consequence of the insertion of
the new term in section 178 (see clause 1.21).
Part 1.7 Director of
Public Prosecutions Act 1990
Clause 1.23 Section
28(2)(a)
This amendment substitutes language in relation to
bankruptcy with the term ‘bankrupt or personally insolvent’, which
is defined in the Legislation Act 2001, dictionary, part 1. The
definition covers the range of circumstances in which an individual may be
considered bankrupt or insolvent.
Clause
1.24 Dictionary, note 2
This amendment inserts a new defined term in
the list of terms defined in the Legislation Act 2001 as a consequence of
the insertion of the new term in section 28 (see clause 1.23).
Part
1.8 Domestic Violence Agencies Act 1986
Clause 1.25 Section
8(3)(c)
This amendment substitutes language in relation to bankruptcy
with the term ‘bankrupt or personally insolvent’, which is defined
in the Legislation Act 2001, dictionary, part 1. The definition covers
the range of circumstances in which an individual may be considered bankrupt or
insolvent.
Clause 1.26 Dictionary, note 2
This amendment
inserts a new defined term in the list of terms defined in the Legislation
Act 2001 as a consequence of the insertion of the new term in section 8 (see
clause 1.25).
Part 1.9 Guardianship and Management of Property Act
1991
Clause 1.27 Section 10(2)(c)
This amendment
substitutes language in relation to bankruptcy with the term ‘bankrupt or
personally insolvent’, which is defined in the Legislation Act
2001, dictionary, part 1. The definition covers the range of circumstances
in which an individual may be considered bankrupt or insolvent.
Clause
1.28 Dictionary, note 2
This amendment inserts a new defined term in
the list of terms defined in the Legislation Act 2001 as a consequence of
the insertion of the new term in section 10 (see clause 1.27).
Part
1.10 Human Rights Commission Act 2005
Clause 1.29 Section
29(1)(c)
This amendment substitutes language in relation to
bankruptcy with the term ‘bankrupt or personally insolvent’, which
is defined in the Legislation Act 2001, dictionary, part 1. The
definition covers the range of circumstances in which an individual may be
considered bankrupt or insolvent.
Clause
1.30 Dictionary, note 2
This amendment inserts a new defined term in
the list of terms defined in the Legislation Act 2001 as a consequence of
the insertion of the new term in section 29 (see clause 1.29).
Part
1.11 Independent Competition and Regulatory Commission Act
1997
Clause 1.31 Schedule 2, section 2.5(6)
This
amendment substitutes language in relation to bankruptcy with the term
‘bankrupt or personally insolvent’, which is defined in the
Legislation Act 2001, dictionary, part 1. The definition covers the
range of circumstances in which an individual may be considered bankrupt or
insolvent.
Clause 1.32 Schedule 3, section 3.9(6)
This
amendment substitutes language in relation to bankruptcy with the term
‘bankrupt or personally insolvent’, which is defined in the
Legislation Act 2001, dictionary, part 1. The definition covers the
range of circumstances in which an individual may be considered bankrupt or
insolvent.
Clause 1.33 Dictionary, note 2
This amendment
inserts a new defined term in the list of terms defined in the Legislation
Act 2001 as a consequence of the insertion of the new term in schedule 2,
section 2.5(6) and schedule 3, section 3.9(6) (see clauses
1.31-1.32).
Part 1.12 Justices of the Peace Act
1989
Clause 1.34 Section 3B(1)(a)
This amendment
substitutes language in relation to bankruptcy with the term ‘bankrupt or
personally insolvent’, which is defined in the Legislation Act,
dictionary, part 1. The definition covers the range of circumstances in which
an individual may be considered bankrupt or insolvent.
Part 1.13 Legal
Aid Act 1977
Clause 1.35 Section 52(2)(a)
This
amendment substitutes language in relation to bankruptcy with the term
‘bankrupt or personally insolvent’, which is defined in the
Legislation Act 2001, dictionary, part 1. The definition covers the
range of circumstances in which an individual may be considered bankrupt or
insolvent.
Clause 1.36 Section 60(2)(a)
This
amendment substitutes language in relation to bankruptcy with the term
‘bankrupt or personally insolvent’, which is defined in the
Legislation Act 2001, dictionary, part 1. The definition covers the
range of circumstances in which an individual may be considered bankrupt or
insolvent.
Clause 1.37 Section 78(2)(a)
This amendment
substitutes language in relation to bankruptcy with the term ‘bankrupt or
personally insolvent’, which is defined in the Legislation Act
2001, dictionary, part 1. The definition covers the range of
circumstances in which an individual may be considered bankrupt or
insolvent.
Clause 1.38 Dictionary, note 2
This amendment
inserts a new defined term in the list of terms defined in the Legislation
Act 2001 as a consequence of the insertion of the new term in sections 52,
60 and 78 (see clauses 1.35-1.37).
Part 1.14 Magistrates Court Act
1930
Clause 1.39 Section 89 heading
This amendment
creates a new heading for section 89. The new heading indicates that section 89
allows for warrants in cases of disobedience of a summons.
Clause
1.40 New section 89(1A)
This amendment extends the court’s
power to issue a warrant when a person fails to appear as directed by a summons
in relation to an indictable offence. The court will be empowered to issue
warrants when a person first appears in response to a summons, but then fails to
appear for further hearings as directed by the court. The requirements to issue
a warrant following an initial appearance are the same as those applicable to a
failure to appear as directed by a summons.
Clause 1.41 New sections
112 and 112A
This amendment provides the court with the power to
issue warrants for failure to appear for further hearings in relation to summary
offences. The warrant will be available in cases where a summons has been
issued, and the person subject to the summons has already appeared before the
court, either in person or through a lawyer. If the person fails to appear as
directed for further hearings related to the same offence, the court may issue a
warrant as if the person had failed to appear in response to the initial
summons.
Part 1.15 Ombudsman Act
1989
Clause 1.42 Section 28(6)
This amendment
substitutes language in relation to bankruptcy with the term ‘bankrupt or
personally insolvent’, which is defined in the Legislation Act
2001, dictionary, part 1. The definition covers the range of circumstances
in which an individual may be considered bankrupt or insolvent.
Clause
1.43 Dictionary, note 2
This amendment inserts a new defined term in
the list of terms defined in the Legislation Act 2001 as a consequence of
the insertion of the new term in sections 28 (see clause 1.42).
Part
1.16 Powers of Attorney Act 2006
Clause 1.44 Section 14(1)(b) and
note
This amendment substitutes language in relation to bankruptcy
with the term ‘bankrupt or personally insolvent’, which is defined
in the Legislation Act 2001, dictionary, part 1. The definition covers
the range of circumstances in which an individual may be considered bankrupt or
insolvent.
Clause 1.45 Section 62(1)(b)
This amendment
substitutes language in relation to bankruptcy with the term ‘bankrupt or
personally insolvent’, which is defined in the Legislation Act
2001, dictionary, part 1. The definition covers the range of circumstances
in which an individual may be considered bankrupt or insolvent.
Clause
1.46 Section 62(2), note
This amendment removes the note in
subsection 62(2) which will become redundant on the amendment made in clause
1.45.
Clause 1.47 Dictionary, note 2
This amendment
inserts a new defined term in the list of terms defined in the Legislation
Act 2001 as a consequence of the insertion of the new term in sections 14
and 62 (see clauses 1.44-1.45).
Clause 1.48 Dictionary, definitions of
bankrupt and personal insolvency agreement
This
amendment removes the existing definitions of bankrupt and
personal insolvency agreement, consequential on the amendments
made in clauses 1.44-1.45.
Part 1.17 Prostitution Act
1992
Clause 1.49 Section 24
This amendment replaces
the term sexually transmitted disease with the term sexually
transmissible infection to update the language to reflect the
terminology used in Australian national policy.
The term sexually
transmissible infection reflects the terminology that is used in
Australian national policy that addresses this issue - specifically the
National Sexually Transmissible Infections Strategy 2010- 2013. Local
policy also uses this terminology including the ACT document which is
entitled HIV/AIDS, Hepatitis C and Sexually Transmissible Infections: A
Strategic Framework for the ACT 2007-2012.
Clause 1.50 Section 25
heading
This amendment replaces the heading for section 25 to more
appropriately reflect the content of the provision.
Clause
1.51 Sections 25 and 26
This amendment substitutes the term
sexually transmissible infection where the legislation currently
refers to sexually transmitted disease.
Clause
1.52 Section 32(2)(g)
This amendment replaces the term sexually
transmitted diseases with the term sexually transmissible
infections to update the language to reflect the terminology used in
Australian national policy.
Clause 1.53 Schedule 2, item 7, column
3
This amendment replaces the term sexually transmitted
disease with the term sexually transmissible infection to
update the language to reflect the terminology used in Australian national
policy.
Clause 1.54 Dictionary, definition of
prophylactic
This amendment replaces the term sexually
transmitted disease with the term sexually transmissible
infection to update the language to reflect the terminology used in
Australian national policy.
Clause 1.55 Dictionary, definition of
sexually transmitted disease
This amendment replaces the
existing definition of sexually transmitted disease with a
definition of sexually transmissible infection as a consequence of
the replacement of the new term (see clauses 1.49 and 1.51-1.53). The amendment
also replaces the term chlamydial disease with chlamydial infection for
consistency. The definition is otherwise identical to the previous definition.
Part 1.18 Public Advocate Act 2005
Clause 1.56 Section
7(1)(c)
This amendment substitutes language in relation to bankruptcy
with the term ‘bankrupt or personally insolvent’, which is defined
in the Legislation Act 2001, dictionary, part 1. The definition covers
the range of circumstances in which an individual may be considered bankrupt or
insolvent.
Clause 1.57 Dictionary, note 2
This amendment
inserts a new defined term in the list of terms defined in the Legislation
Act 2001 as a consequence of the insertion of the new term in section 7 (see
clause 1.56).
Part 1.19 Public Trustee Act 1985
Clause
1.58 Section 53(2)(c)
This amendment substitutes language in relation
to bankruptcy with the term ‘bankrupt or personally insolvent’,
which is defined in the Legislation Act 2001, dictionary, part 1. The
definition covers the range of circumstances in which an individual may be
considered bankrupt or insolvent.
Clause 1.59 Dictionary, note
2
This amendment inserts a new defined term in the list of terms
defined in the Legislation Act 2001 as a consequence of the insertion of
the new term in section 53 (see clause 1.58).