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This is a Bill, not an Act. For current law, see the Acts databases.
Serial 119
Justice
Legislation Amendment Bill 2015
Mr
Elferink
A Bill for an Act to amend legislation administered by the Attorney-General and Minister for Justice
NORTHERN TERRITORY OF AUSTRALIA
JUSTICE LEGISLATION AMENDMENT ACT 2015
____________________
Act No. [ ] of 2015
____________________
Table of provisions
5A Application
of Criminal
Code
15 Delegation
66A Assessment
of complaint
66B Commissioner may seek response from respondent
66C Respondent to be notified if complaint accepted
66D Complaint declined
66E Commissioner may decline complaint if no further action can be taken
66F Complaint
declined – similar complaints
prohibited
78 Conciliation
of complaint
79 Conciliation
83 Commissioner
must evaluate complaint
84 Documents or information required to be produced
85 Witnesses
Division 4A Hearing by Tribunal
86 Hearing by Tribunal
87 Complaint not referred – similar complaints prohibited
87A Report
of Commissioner to
Tribunal
106 Appeals
against decision of
Tribunal
108 Confidentiality
of information
109 Discriminatory advertising prohibited
109A Inducement to publish advertisement
110 Obstruction
110A False
or misleading information
Part
9 Transitional matters
for Justice Legislation Amendment Act 2015
118 Definitions
119 Complaint made before commencement
120 Offence provisions – before and after commencement
2 Prescribed
amounts
49D Information
under Anti-Discrimination Act
84 Enforcement of monetary orders of Tribunal
84A Enforcement of other orders of Tribunal
84B Noncompliance
with
order
140A Parties
to review of original decision
Part
8 Transitional matters
for Justice Legislation Amendment Act 2015
156 Enforcement of orders made before commencement
6 Decisions not reviewable
NORTHERN
TERRITORY OF AUSTRALIA
____________________
Act No. [ ] of 2015
____________________
An Act to amend legislation administered by the Attorney-General and Minister for Justice
[Assented to [ ] 2015]
[Second reading [ ] 2015]
The Legislative Assembly of the Northern Territory enacts as follows:
Part
1 Preliminary
matters
1 Short
title
This Act may be cited as the Justice Legislation Amendment Act 2015.
This Act commences on the day fixed by the Administrator by Gazette notice.
Part
2 Amendment of Anti-Discrimination
Act
3 Act
amended
This Part amends the Anti-Discrimination Act.
Section 4(1)
insert (in alphabetical order)
acting in an official capacity, in relation to a person, means the person is exercising powers or performing functions under, or otherwise related to the administration of, this Act.
conciliation means a conciliation under Part 6, Division 3.
evaluate, in relation to a complaint, means to decide whether the complaint has a reasonable prospect of success at a hearing by the Tribunal.
proceeding includes a conciliation and an evaluation of a complaint.
Tribunal means the Civil and Administrative Tribunal.
After section 5, in Part 1
5A Application of Criminal Code
Part IIAA of the Criminal Code applies to an offence against this Act.
Note for section 5A
Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.
Section 13(1)(a)
omit, insert
(a) to assess complaints, conduct conciliations in relation to complaints and evaluate and refer complaints for hearing by the Tribunal;
Section 15
repeal, insert
The Commissioner may, in writing, delegate any of the Commissioner's powers and functions under this Act to a person.
Section 18(1) and (2)
omit
, to act as the Commissioner or to conduct a hearing under Part 6 Division 4
insert
or to act as the Commissioner
Section 26(2)(b), after "court"
insert
or tribunal
(1) After section 62(2)
insert
(2A) An authorisation under subsection (1) or (2) may be on any conditions the Commissioner considers appropriate.
(2) After section 62(3)
insert
Example for section 62
The Commissioner may authorise a lawyer, guardian, friend or family member to act on behalf of the complainant or respondent or to accompany and assist the complainant or respondent in any proceedings under this Act.
Section 65(1)
omit
6 months
insert
12 months
(1) Section 66, heading
omit
reject
insert
decline
(2) Section 66
omit
reject
insert
decline
13 Sections 66A, 66B, 66C, 66D, 66E and 66F inserted
After section 66
insert
The Commissioner must assess the complaint before accepting or declining the complaint under section 66.
66B Commissioner may seek response from respondent
(1) In assessing the complaint, the Commissioner may request information in relation to the complaint from a respondent.
(2) The Commissioner may request information from a respondent if:
(a) the Commissioner has notified the complainant that the Commissioner intends to request the information; and
(b) the Commissioner believes the respondent's information may result in a resolution of the complaint or for any other reason the Commissioner considers it appropriate to do so.
66C Respondent to be notified if complaint accepted
If a complaint is accepted under section 66, the Commissioner must, as soon as practicable after accepting the complaint, notify the respondent in writing of the substance of the complaint.
If a complaint is declined under section 66:
(a) the Commissioner must provide the complainant with written reasons as to why the complaint was declined; and
(b) the complaint lapses and the complainant cannot make another complaint in relation to the same conduct.
66E Commissioner may decline complaint if no further action can be taken
The Commissioner may decline a complaint at any time if the Commissioner reasonably believes that no further action can be taken on the complaint.
Examples for section 66E
Circumstances when the Commissioner may form the belief that no further action can be taken include the following:
(a) the complainant has not cooperated with the Commissioner in relation to the complaint.
(b) the respondent has gone into liquidation;
(c) the Commissioner is unable to contact the complainant or the respondent;
(d) the complainant or the respondent has died.
66F Complaint declined – similar complaints prohibited
(1) If the Commissioner declines a complaint under section 66E, the complainant cannot make another complaint in relation to the same conduct, unless the Commissioner gives the complainant permission to do so.
(2) Nothing in this section prevents the Commissioner from evaluating the complaint under section 83(c) after the complaint has been declined.
(1) Section 67, heading
omit
reject
insert
decline
(2) Section 67
omit
shall reject a complaint
insert
may decline a complaint at any time
(1) Section 68, heading
omit
reject
insert
decline
(2) Section 68(1)
omit
reject or stay a complaint
insert
decline or stay a complaint at any time
16 Sections 69 and 70 repealed
Sections 69 and 70
repeal
(1) Section 71(3)
omit
investigating
insert
evaluating
(2) Section 71(3)
omit
Division 2
insert
Division 4
18 Part 6, Division 2 repealed
Part 6, Division 2
repeal
19 Sections 78 and 79 replaced
Sections 78 and 79
repeal, insert
(1) The Commissioner may conduct a conciliation at any time after the complaint is made.
(2) The complainant or respondent may attend conciliation in relation to the complaint at any time after the complaint is made.
(1) The Commissioner may direct a person to take part in a conciliation.
(2) A direction under subsection (1) must be in writing and specify the time when and place where the conciliation will be held.
(3) A conciliation under this Division must be held in private.
(4) A person commits an offence if:
(a) the person is given a direction by the Commissioner under subsection (1); and
(b) the person does not comply with the direction.
Maximum penalty: 100 penalty units.
(5) Strict liability applies to subsection (4)(b).
(6) It is a defence to a prosecution for an offence against subsection (4) if the defendant has a reasonable excuse.
Section 80, heading
omit
proceedings
(1) Section 81, heading
omit
proceedings
(2) Section 81(1)(b)
omit
respondent.
insert
respondent; and
(3) After section 81(1)(b)
insert
(c) notify the complainant and the respondent that proceedings in relation to the complaint have ceased.
(4) After section 81(2)
insert
(3) If a complaint is not resolved by conciliation, the complainant may request the Commissioner to evaluate the complaint.
(4) The request must be made within 21 days after receiving the Commissioner's notification under subsection (2).
(5) The complainant may apply to the Commissioner for an extension of the time in subsection (4) or the Commissioner may extend the time on the Commissioner's own initiative.
(6) If the complainant does not request the complaint be evaluated, the complaint lapses and the complainant cannot make a further complaint in relation to the same conduct.
(1) Section 82, heading
omit
proceedings
(2) Section 82
omit
conciliation proceedings
insert
a conciliation
(3) Section 82
omit
subsequent proceedings under this Act
insert
any other proceedings under this Act or any other Act
23 Part 6, Division 4 heading amended
Part 6, Division 4, heading
omit
Hearings
insert
Evaluations
Sections 83 to 87
repeal, insert
83 Commissioner must evaluate complaint
(1) The Commissioner must evaluate a complaint:
(a) if requested under section 81(3); or
(b) if requested by the Minister; or
(c) if the Commissioner considers evaluation of the complaint is appropriate.
(2) The Commissioner may conduct the evaluation in any way the Commissioner considers appropriate.
84 Documents or information required to be produced
(1) In evaluating the complaint, the Commissioner may, in writing, order a person to give the Commissioner:
(a) a document or class of documents as specified in the order; or
(b) information in the possession of the person relevant to the proceedings as specified in the order.
(2) If a document or information is given to the Commissioner under subsection (1), the Commissioner:
(a) may take possession of, and copy or take extracts from, the document or information; and
(b) may give copies or extracts from the document or information to the complainant or respondent; and
(c) may retain possession of the document or information for such period as is reasonably necessary; and
(d) may allow a person who, if the document were not in the possession of the Commissioner, would be entitled to inspect it, to inspect the document at all reasonable times.
(3) A person commits an offence if the person:
(a) is the subject of an order under subsection (1); and
(b) fails to comply with the order.
Maximum penalty: 100 penalty units or imprisonment for 6 months.
(4) Strict liability applies to subsection (3)(a).
(5) It is a defence to a prosecution for an offence against subsection (3) if the defendant has a reasonable excuse.
(1) In evaluating the complaint, the Commissioner may order a person:
(a) to take an oath before giving evidence before the Commissioner; and
(b) to answer a question asked by the Commissioner.
(2) A person commits an offence if the person:
(a) is the subject of an order of the Commissioner under subsection (1); and
(b) fails to comply with the order.
Maximum penalty: 100 penalty units or imprisonment for 6 months.
(3) It is a defence to a prosecution for an offence against subsection (2) if the defendant has a reasonable excuse.
Division 4A Hearing by Tribunal
(1) After evaluating a complaint under section 83, the Commissioner may refer the complaint to the Tribunal if the Commissioner believes the complaint has a reasonable prospect of success at a hearing by the Tribunal.
(2) The Commissioner must, within 28 days of deciding whether to refer the complaint under subsection (1), give the complainant and respondent to the complaint written notice of:
(a) the decision; and
(b) reasons for the decision; and
(c) if the Commissioner decides not to refer the complaint – the fact that the complainant may apply under subsection (4) to have the complaint heard by the Tribunal.
(3) If the Commissioner refers the complaint to the Tribunal, the Commissioner must determine the parties to the complaint.
(4) If the Commissioner decides not to refer the complaint, the complainant may, within 21 days after receiving the written notice, apply to have the complaint heard by the Tribunal.
87 Complaint not referred – similar complaints prohibited
(1) This section applies if:
(a) the Commissioner decides not to refer a complaint to the Tribunal; and
(b) the complainant has not applied to have the complaint heard by the Tribunal within the time allowed by section 86(4).
(2) The complaint lapses and the complainant may not make a further complaint in relation to the same conduct.
87A Report of Commissioner to Tribunal
(1) If the Commissioner refers a complaint to the Tribunal under section 86(1), the Commissioner must give a report in relation to the complaint to the Tribunal and the parties within 60 days of referring the complaint.
(2) If a complainant applies to have the complaint heard by the Tribunal, the Tribunal may order the Commissioner to give a report in relation to the complaint to the Tribunal and the parties within 60 days of the application.
(3) The report must include all of the information in relation to the complaint that the Commissioner reasonably believes will be relevant for the hearing.
(4) This section does not prevent the Tribunal from taking any other evidence in relation to the hearing.
Section 88(1) and (4)
omit (all references)
Commissioner
insert
Tribunal
(1) Section 89(1) and (2)
omit (all references)
Commissioner
insert
Tribunal
(2) Section 89(1)
omit (all references)
apologize
insert
apologise
(1) Section 90
omit (all references)
Commissioner
insert
Tribunal
(2) Section 90(c)
omit
Commissioner's
insert
Tribunal's
28 Sections 92, 93, 95 and 96 repealed
Sections 92, 93, 95 and 96
repeal
Section 98(2)
omit, insert
(2) A person commits an offence if:
(a) the person is served with a notice under subsection (1); and
(b) the person fails to comply with the notice.
Maximum penalty: 100 penalty units.
(3) An offence against subsection (2) is an offence of strict liability.
(4) It is a defence to a prosecution for an offence against subsection (2) if the defendant has a reasonable excuse.
Section 99
repeal
Section 100(3)
omit, insert
(3) A person commits an offence if:
(a) the person is the subject of an order of the Commissioner under subsection (1); and
(b) the person fails to comply with the order.
Maximum penalty: 200 penalty units.
(4) An offence against subsection (3) is an offence of strict liability.
(5) It is a defence to a prosecution for an offence against subsection (3) if the defendant has a reasonable excuse.
(1) Section 101(1)
omit, insert
(1) Subject to subsection (2), the Commissioner may, at any stage in a proceeding under this Act in relation to a complaint prior to the complaint being referred to the Tribunal, make an interim order pending the completion of the proceedings to preserve:
(a) the status quo between the parties to the complaint; or
(b) the rights of the parties to the complaint; or
(c) the status quo between the parties to the complaint as existing before the prohibited conduct alleged in the complaint took place.
(2) Section 101(3)
omit, insert
(3) A person commits an offence if:
(a) the person is the subject of an order of the Commissioner under subsection (1); and
(b) the person fails to comply with the order.
Maximum penalty: 200 penalty units.
(4) An offence against subsection (3) is an offence of strict liability.
(5) It is a defence to a prosecution for an offence against subsection (3) if the defendant has a reasonable excuse.
33 Sections 102 to 104 repealed
Sections 102 to 104
repeal
Section 105(4)
omit (all references)
Commissioner
insert
Tribunal
Section 106
repeal, insert
106 Appeals against decision of Tribunal
(1) The following persons may appeal to the Supreme Court against a decision or order of the Tribunal:
(a) a party aggrieved by the decision or order of the Tribunal; or
(b) the Commissioner.
(2) An appeal may be on a question of law or fact or law and fact and must be made:
(a) within 28 days after the day on which the decision or order was made; or
(b) if the Tribunal did not give written reasons at the time the decision or order was made, and the party making the appeal subsequently requests the Tribunal to do so, not later than 28 days after the day on which the party received the reasons in writing.
(1) Section 107, heading
omit
Local
insert
Supreme
(2) Section 107
omit
Local
insert
Supreme
(3) Section 107(b) and (c)
omit
Commissioner
insert
Tribunal
37 Sections 108 to 111 replaced
Sections 108 to 111
repeal, insert
108 Confidentiality of information
(1) A person commits an offence if:
(a) the person obtains information in the course of performing functions connected with the administration of this Act; and
(b) the person engages in conduct that results in the disclosure of the information.
Maximum penalty: 200 penalty units or imprisonment for 2 years.
(2) Strict liability applies to subsection (1)(a).
(3) Subsection (1) does not apply if:
(a) the person discloses the information:
(i) for the administration of this Act; or
(ii) with the consent of the person to whom the information relates; or
(iii) for legal proceedings arising out of the operation of this Act; or
(b) the information is otherwise available to the public.
Note for subsection (3)
In addition to the circumstances mentioned in subsection (3), a person who discloses confidential information will not be criminally responsible for an offence if the disclosure is justified or excused by or under a law (see section 43BE of the Criminal Code).
109 Discriminatory advertising prohibited
(1) A person commits an offence if:
(a) the person publishes an advertisement; and
(b) the advertisement contains prohibited conduct or an intention to engage in prohibited conduct.
Maximum penalty: 200 penalty units or imprisonment for 2 years.
(2) A prosecution for an offence against subsection (1) must not be commenced or continued if a complaint has been made in respect of the advertisement and:
(a) the complaint has lapsed; or
(b) the complaint has been withdrawn; or
(c) the Commissioner has decided not to refer the complaint under section 86 and the time allowed for the complainant to apply to have the complaint heard by the Tribunal has expired; or
(d) the person alleged to have committed the offence has complied with an agreement or order made in respect of the complaint by the time specified by the agreement or order.
(3) Subsection (1) does not apply if the publication is authorised by the Commissioner.
(4) In this section:
publish includes cause or authorise to be published.
109A Inducement to publish advertisement
(1) A person commits an offence if:
(a) the person makes a statement to another person; and
(b) the person knows the statement is misleading; and
(c) in making the statement, the person intends to induce the other person to publish or display an advertisement; and
(d) the advertisement would contain prohibited conduct or an intention to engage in prohibited conduct.
Maximum penalty: 200 penalty units.
(2) In this section:
misleading, in relation to a statement, means a statement that is misleading in a material particular or because of the omission of a material particular.
(1) A person commits an offence if:
(a) the person obstructs another person; and
(b) the other person is acting in an official capacity; and
(c) the person knows the other person is acting in an official capacity.
Maximum penalty: 200 penalty units or imprisonment for 12 months.
(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant has a reasonable excuse.
(3) In this section:
obstruct, includes hinder and resist.
110A False or misleading information
(1) A person commits an offence if the person:
(a) gives information to another person; and
(b) knows the information is misleading; and
(c) knows the other person is acting in an official capacity.
Maximum penalty: 100 penalty units or imprisonment for 6 months.
(2) A person commits an offence if the person:
(a) gives a document to another person; and
(b) knows the document contains misleading information; and
(c) knows the other person is acting in an official capacity.
Maximum penalty: 100 penalty units or imprisonment for 6 months.
(3) Strict liability applies to subsections (1)(a) and (2)(a).
(4) Subsection (2) does not apply if the person, when giving the document:
(a) draws the misleading aspect of the document to the other person; and
(b) to the extent to which the person can reasonably do so – gives the other person the information necessary to remedy the misleading aspect of the document.
(5) In this section:
misleading information means information that is misleading in a material particular or because of the omission of a material particular.
Section 113(2)(b), after "Commissioner"
insert
or the Tribunal
Section 114
omit
92(5)
insert
85(2)
After section 117
insert
Part 9 Transitional matters for Justice Legislation Amendment Act 2015
In this Part:
commencement means the day on which Part 2 of the Justice Legislation Amendment Act 2015 commences.
119 Complaint made before commencement
This Act, as in force before the commencement, continues to apply in relation to a complaint if the complaint was made before the commencement.
120 Offence provisions – before and after commencement
(1) The offence provisions, as amended by the Justice Legislation Amendment Act 2015, apply only in relation to offences committed after the commencement.
(2) The offence provisions, as in force before the commencement, continue to apply in relation to offences committed on or before the commencement.
(3) For this section, if any of the conduct constituting an offence occurred on or before the commencement, the offence is taken to have been committed on or before the commencement.
(4) Subsection (3) does not apply in relation to an offence under section 108 if the only conduct that occurred before the commencement was the conduct referred to in section 108(1)(a).
(5) In this section:
offence provisions means the provisions of this Act that create or relate to offences (including in relation to criminal responsibility, defences and penalties).
Part
3 Amendment of Anti-Discrimination
Regulations
41 Regulations
amended
This Part amends the Anti-Discrimination Regulations.
Regulation 2
repeal, insert
For section 88(1)(b) of the Act, the prescribed amount is $60 000.
Regulation 3
repeal
Part
4 Amendment of Fences
Act
44 Act
amended
This Part amends the Fences Act.
Section 5(2)
omit (all references)
court
insert
Tribunal
Section 8(1)
omit
a court
insert
the Tribunal
Section 15(6)
omit
court
insert
Tribunal
Part
5 Amendment of Information
Act
48 Act
amended
This Part amends the Information Act.
After section 49C, in Part 4, Division 2
insert
49D Information under Anti-Discrimination Act
Information is exempt under section 44 if it:
(a) is obtained from a person seeking information, advice or assistance in relation to the operation of the Anti-Discrimination Act; or
(b) is contained in a complaint under that Act; or
(c) is obtained or created under that Act in relation to a complaint.
Part
6 Amendment of Northern Territory Civil and Administrative Tribunal
Act
50 Act
amended
This Part amends the Northern Territory Civil and Administrative Tribunal Act.
(1) Section 3, definition costs order
omit
(2) Section 3
insert (in alphabetical order)
costs order means an order requiring a party to a proceeding to pay for:
(a) all or part of the costs of another party; or
(b) all or part of the costs of a person who is required to appear before the Tribunal or to produce material; or
(c) the compensation of another party for any reasonable expenses or loss resulting from any proceedings or matter.
monetary order means an order of the Tribunal that requires the payment of money, and includes a costs order.
Section 63(6)
omit, insert
(6) The Tribunal may assess any costs or compensation mentioned in subsection (5) and the Tribunal may order a party to pay the amount assessed.
Section 84
repeal, insert
84 Enforcement of monetary orders of Tribunal
(1) This section applies if the Tribunal makes a monetary order.
(2) A person to whom payment is to be made under the monetary order may enforce the order by filing in a court of competent jurisdiction:
(a) a copy of the monetary order certified by the Registrar to be a true copy; and
(b) the person's affidavit about the amount not paid under the order.
(3) No fee is payable for filing a copy of the order or affidavit under this section.
(4) An order filed under subsection (2) is taken to be an order of the court in which it is filed and may be enforced accordingly.
Note for section 84
If a relevant Act allows for the imposition of fines, the enforcement provisions for those fines will apply.
84A Enforcement of other orders of Tribunal
(1) This section applies if the Tribunal makes an order that is not a monetary order.
(2) A person who was a party to the proceeding in which the order was made may enforce the order by filing in the Local Court:
(a) a copy of the order certified by the Registrar to be a true copy; and
(b) the person's affidavit about the non-compliance with the order.
(3) No fee is payable for filing a copy of the order or affidavit under this section.
(4) An order filed under subsection (2) is taken to be an order of the Local Court and may be enforced accordingly.
(5) Section 23(2) of the Local Court Act does not apply to an order mentioned in subsection (4).
(1) A person commits an offence if the person:
(a) is the subject of an order of the Tribunal (other than a monetary order); and
(b) fails to comply with the order.
Maximum penalty: 100 penalty units or imprisonment for 6 months.
(2) Strict liability applies to subsection (1)(a).
(3) It is a defence to a prosecution for an offence against subsection (1) if the defendant has a reasonable excuse.
Section 86(2)
omit
establishes
insert
has
Section 90(4)
omit
establishes
insert
has
Section 93(4)
omit
establishes
insert
has
Section 127, at the end
insert
Note for section 127
Section 140(1A) prevents the Tribunal from being a party to a proceeding for a review of a decision of the Tribunal in the exercise of its original jurisdiction.
Section 136(6)
omit
establishes
insert
has
After section 140(1)
insert
(1A) However, subsection (1) does not apply in relation to a decision of a kind prescribed by the Regulations.
After section 140, in Part 5, Division 1
insert
140A Parties to review of original decision
(1) A person who was a party to the proceeding in which a decision of the Tribunal was made is a party to a proceeding for a review of that decision.
(2) However, the Tribunal may order that a person who would otherwise be a party under subsection (1) not be a party to a proceeding for a review of its decision.
(3) Despite section 127(1)(c), the Tribunal is not a party to a proceeding for a review of a decision of the Tribunal in the exercise of its original decision.
Note for section 140A
The Tribunal has powers to join parties to a proceeding under section 128.
After section 155
insert
Part 8 Transitional matters for Justice Legislation Amendment Act 2015
156 Enforcement of orders made before commencement
Sections 84, 84A and 84B, as inserted by section 53 of the Justice Legislation Amendment Act 2015, apply to an order made by the Tribunal before the commencement of that section.
Part
7 Amendment of Northern Territory Civil and Administrative Tribunal
Regulations
62 Regulations
amended
This Part amends the Northern Territory Civil and Administrative Tribunal Regulations.
After regulation 5
insert
For section 140(1A) of the Act, a decision of the Tribunal under section 196 or 197 of the Health Practitioner Regulation National Law cannot be reviewed by the Tribunal.
Part
8 Amendment of Residential Tenancies
Act
64 Act
amended
This Part amends the Residential Tenancies Act.
Section 122(1) and (3)
omit
Commissioner
insert
Tribunal
Section 170(1)(a)
omit
(other than an application to the Commissioner under section 141 or 145)
This Act expires on the day after it commences.
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