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This is a Bill, not an Act. For current law, see the Acts databases.
JUSTICE AND COMMUNITY SAFETY LEGISLATION AMENDMENT BILL 2008 (NO 2)
2008
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Justice and
Community Safety Legislation Amendment Bill 2008 (No 2)
Contents
Page
Part
1.1 Administration and Probate Act
1929 3
Part 1.2 Agents Act
2003 4
Part 1.3 Civil Law
(Sale of Residential Property) Regulation 2004 4
Part 1.4 Civil Law
(Wrongs) Act 2002 6
Part 1.5 Crimes Act
1900 7
Part 1.6 Crimes
(Restorative Justice) Act 2004 8
Part
1.7 Discrimination Act
1991 11
Part 1.8 Legal
Profession Act 2006 12
Part 1.9 Legal
Profession Regulation 2007 17
Part
1.10 Magistrates Court Act
1930 17
Part 1.11 Regulatory
Services Legislation Amendment Act 2008 18
2008
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Justice and Community
Safety Legislation Amendment Bill 2008 (No 2)
A Bill for
An Act to amend the law relating to justice and community
safety
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Justice and Community Safety Legislation Amendment Act
2008 (No 2).
This Act commences on the 14th day after its notification day.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
3 Legislation
amended––sch 1
This Act amends the legislation mentioned in schedule 1.
Schedule
1 Legislation
amended
(see s 3)
Part
1.1 Administration and Probate Act
1929
omit
3 months
substitute
6 months
[1.2] Section
44, definition of eligible partner
after
spouse
insert
or civil partner
[1.3] Section
44, definition of partner, paragraph (a)
after
spouse
insert
or civil partner
[1.4] Section
45A heading
substitute
45A Distribution between spouse or civil partner and
eligible partner
after
spouse
insert
or civil partner
substitute
(2) As soon as practicable after the beginning of a financial year, the
Minister must determine an amount for the compensation fund, if the Minister
considers it necessary to increase the amount in the compensation fund to meet
the likely claims against the fund during the financial year.
Part
1.3 Civil Law (Sale of Residential
Property) Regulation 2004
substitute
(7) For subsection (1), AS 4349.1 is taken to be modified as
follows:
(a) omit section 2 (Inspection agreement);
(b) in clause C4.2 (Report content commentary), insert the following new
paragraph (e):
(e) An assessment of the property in relation to cosmetic or minor
maintenance matters.
Examples of cosmetic or minor maintenance
matters
1 leaking taps
2 exposed nail heads
3 peeling paint
(c) omit clause 4.2.4.2 (Minor defects);
(d) omit clause C4.2.4.2 (Minor defects commentary);
(e) in clause 4.2.8 (Conclusion), omit the following words:
and an opinion regarding the incidence of minor defects, relative to the
average condition of similar buildings of approximately the same age that have
been reasonably well maintained.
(f) omit clause C4.2.8 (Conclusion commentary).
[1.8] Section
7 (8), definition of AS 4349.1 and note
substitute
AS 4349.1 means Australian Standard 4349.1 (Inspection of
buildings – Pre-purchase inspections – Residential buildings),
as in force from time to time.
Note This standard may be obtained on the internet at the web site
www.standards.org.au.
[1.9] Section
10 (6), definition of AS 4349.3 and note
substitute
AS 4349.3 means Australian Standard 4349.3 (Inspection of
buildings – Timber pest inspections), as in force from time to
time.
Note This standard may be obtained on the internet at the web site
www.standards.org.au.
Part
1.4 Civil Law (Wrongs) Act
2002
insert
Part 2.2A Food donors
11A Definitions—pt 2.2A
In this part:
donor—
(a) means a person who donates food—
(i) in good faith for a charitable or benevolent purpose; and
(ii) with the intention that the consumer of the food would not have to
pay for it; but
(b) does not include a person who distributes food donated by another
person for human consumption.
fit for human consumption, in relation to food,
means food that is not unsafe or unsuitable.
food—see the Food Act 2001, section 8.
unsafe, in relation to food—see the Food Act
2001, section 12.
unsuitable, in relation to food—see the Food Act
2001, section 13.
11B Protection of food donors from
liability
A donor does not incur civil liability for any personal injury that results
from the consumption of food donated by the donor if—
(a) the food was fit for human consumption when it left the possession or
control of the donor; and
(b) for food that is required to be handled in a particular way to ensure
it remains fit for human consumption—the donor told the person to whom the
donor gave the food about the handling requirements for the food; and
(c) for food that would remain fit for human consumption for only a
limited amount of time after it leaves the possession or control of the
donor—the donor told the person to whom the donor gave the food about the
time limit on the consumption of the food.
omit
who knows that that other person does not consent, or who is reckless as to
whether that other person consents,
substitute
who is reckless as to whether that other person consents
omit
who knows that that other person does not consent, or who is reckless as to
whether that other person consents,
substitute
who is reckless as to whether that other person consents
[1.13] New
section 54 (3)
insert
(3) For this section, proof of knowledge or recklessness is sufficient to
establish the element of recklessness.
Part
1.6 Crimes (Restorative Justice) Act
2004
[1.14] Section
24 (1) (c) (except note)
substitute
(c) an explanation has been given under section 25 to the eligible
offender, before the offender agrees to take part in restorative
justice.
omit everything before paragraph (a), substitute
25 Explanation of restorative
justice
Before an offence is referred for restorative justice, the referring entity
must ensure that reasonable steps are taken to explain to the eligible offender
(in language that the offender can readily understand)––
omit
person
substitute
offender
[1.17] Section
27 (1) (c) (ii)
substitute
(ii) the court considers that it is appropriate to refer the offence for
restorative justice, and the court has ensured that an explanation has been
given under section 25 (Explanation of restorative justice) to the
offender.
[1.18] Section
28 (3) and (5) (a)
omit
victim and parent mentioned in section 27 (1) (c) (ii)
substitute
person of whom the court is aware who is a victim, or a parent of a child
victim, of the offence
omit
If the
substitute
Subject to section 32A, if the
insert
32A Explanation of restorative
justice––before consent
Before obtaining written consent under section 32 (3), the chief executive
must ensure that reasonable steps are taken to explain to each eligible victim
and parent, and the offender (in language that the victim, parent or offender
can readily understand)—
(a) the purpose of restorative justice generally and for the particular
offence; and
(b) the nature of restorative justice, including the following:
(i) the nature of a restorative justice conference;
(ii) who may take part in a restorative justice conference;
(iii) the nature of a restorative justice agreement; and
(c) that the person may seek independent legal advice about taking part in
restorative justice; and
(d) that no-one is under an obligation to take part, or continue to take
part, in restorative justice after it has started; and
(e) if the offender has not entered a plea for the offence—that the
acceptance of responsibility for the commission of the offence by the offender
for the purpose of restorative justice does not prevent the offender from
pleading not guilty to the offence; and
(f) if a sentence-related order has not been made for the
offender—that, if the offender is found guilty of the offence, a court, in
sentencing the offender—
(i) may consider whether the offender accepts responsibility for the
offence to take part in restorative justice, but is not required to reduce the
severity of any sentence as a result; and
(ii) must not consider whether the offender has chosen not to take part,
or not to continue to take part, in restorative justice.
[1.21] Section
40 (2) (b) (i)
omit
at law and
substitute
in relation to restorative justice
Part
1.7 Discrimination Act
1991
insert
121A Acts and omissions of
representatives
(1) This section applies to doing an act (conduct) that is
unlawful under 1 or more of the following provisions:
(a) part 3 (Unlawful discrimination);
(b) part 5 (Sexual harassment);
(c) section 66 (Unlawful vilification––race, sexuality
etc);
(d) part 7 (Other unlawful acts).
Note 1 Complaints about these matters may be made under the HRC Act
(see HRC Act, s 42 (1) (c)).
Note 2 Doing an act––see s 4A.
(2) Conduct engaged in on behalf of a person by a representative of the
person is taken to have been engaged in by the person if the conduct was within
the scope of the representative’s actual or apparent authority.
(3) However, subsection (2) does not apply if the person establishes that
the person took all reasonable steps to prevent the representative from engaging
in the conduct.
(4) In this section:
representative, of a person, means an employee or agent of
the person.
Part
1.8 Legal Profession Act
2006
[1.23] Section
21 (5), definition of government agency and note
omit
[1.24] Section
38 (2) (a)
omit
legal officer
substitute
lawyer
[1.25] Section
390 (8), definition of government agency
omit
substitute
428 Powers of disciplinary tribunal in relation to
witnesses etc
(1) The disciplinary tribunal may, by subpoena given to a person, require
the person, at a stated time and place, to appear before the disciplinary
tribunal to do 1 or more of the following:
(a) produce a stated document or other thing relevant to a
hearing;
(b) give evidence.
Note 1 Documents may be produced electronically in certain
circumstances (see Electronic Transactions Act 2001).
Note 2 For non-compellability of certain witnesses, see s
469.
Note 3 If a form is approved under the Court Procedures Act
2004, s 8 for this provision, the form must be used.
(2) A person is taken to have complied with a subpoena under subsection
(1) (a) if the person gives the document or other thing to the disciplinary
tribunal before the date stated in the subpoena for its production.
(3) The disciplinary tribunal may give a party leave to inspect a document
produced under a subpoena.
(4) A judicial member may require a person appearing before the
disciplinary tribunal at the hearing of an application to give evidence to do 1
or more of the following:
(a) take an oath;
(b) answer a question relevant to the hearing;
(c) produce a stated document or other thing relevant to the
hearing.
Note 1 The Legislation Act, s 170 and s 171 deal with the
application of the privilege against selfincrimination and client legal
privilege.
Note 2 Oath includes affirmation and take an
oath includes make an affirmation (see Legislation Act, dict, pt 1).
(5) If a subpoena is issued to give evidence under subsection (1) (b), the
subpoena must—
(a) state the time and place at which the person must appear before the
disciplinary tribunal; and
(b) contain a statement to the effect that the person may be represented
before the disciplinary tribunal by an Australian legal practitioner, or with
the disciplinary tribunal’s leave under section 425 (5), someone else and
that the person may wish to obtain legal advice in relation to the
subpoena.
Note If a form is approved under the Court Procedures Act
2004, s 8 for a subpoena, the form must be used.
428A Arrest warrant for failing to
appear
(1) If a person who is subpoenaed to appear before the disciplinary
tribunal under section 428 does not appear, a judicial member may, on proof of
the service of the subpoena, issue a warrant to
arrest the person and bring the person before the tribunal.
(2) However, the judicial member may only issue
a warrant if satisfied that—
(a) the disciplinary tribunal has taken reasonably practicable steps to
contact the person; and
(b) the issue of a warrant is in the interests of justice.
(3) In deciding whether it is in the interests of justice to issue a
warrant, the judicial member must consider the following:
(a) the importance of the evidence that the member expects the person to
give;
(b) whether the evidence could be obtained by other means;
(c) the nature of the application;
(d) the degree of urgency to resolve the matter;
(e) the likelihood that issuing the warrant would secure the
person’s attendance at the hearing;
(f) if the disciplinary tribunal has contacted the person—
(i) the reason (if any) given by the person for not attending under the
subpoena; and
(ii) the impact of using the warrant for the arrest of the
person.
428B Executing a warrant
(1) This section applies if a judicial member issues a warrant under
section 428A.
(2) The warrant authorises a police officer to—
(a) arrest the person named in the warrant; and
(b) bring the person before the disciplinary tribunal.
(3) A police officer executing the warrant—
(a) may, with necessary assistance and force, enter any premises to arrest
the person named in the warrant; and
(b) must use not more than the minimum amount of force necessary to arrest
the person and remove the person to the place stated in the warrant;
and
(c) must, before removing the person, explain to the person the
purpose of the warrant; and
(d) must bring the person immediately before a judicial member;
and
(e) if a person is under a legal disability—must inform a parent or
guardian of the person of the arrest.
(4) If, after arresting the person, the police officer believes on
reasonable grounds that the person cannot be brought immediately before a
judicial member, the police officer must immediately release the
person.
[1.27] Dictionary,
new definition of government agency
insert
government agency means––
(a) a government department (however described) of the Territory, the
Commonwealth or another jurisdiction; or
Note Jurisdiction means a State or Territory (see
dict).
(b) an entity prescribed by regulation as a government agency.
[1.28] Dictionary,
definition of government lawyer
substitute
government lawyer means an Australian lawyer, or a person
eligible to be admitted as an Australian lawyer, employed
by––
(a) the Territory, the Commonwealth or another jurisdiction; or
Note Jurisdiction means a State or Territory (see the
dictionary).
(b) a government agency.
Part
1.9 Legal Profession Regulation
2007
[1.29] Section
8 (2), definition of government agency
omit
[1.30] Section
16 heading
substitute
16 Prescribed agency––Act, dict, def
government agency, par (b)
[1.31] Dictionary,
note 3, new dot point
insert
• government agency
Part
1.10 Magistrates Court Act
1930
after
conviction
insert
or sentence
Part
1.11 Regulatory Services Legislation
Amendment Act 2008
substitute
2 Commencement––pt 5
(1) Part 5 (Door-to-Door Trading Act 1991) commences on a day fixed by the
Minister by written notice.
Note 1 The naming and commencement provisions automatically
commenced on the notification day (see Legislation Act, s 75 (1)).
Note 2 Parts 2 to 4 and parts 6 to 8 commenced on 1 July 2008 by
written notice by the Minister.
(2) If part 5 does not commence before 15 October 2009, it automatically
commences on that day.
(3) The Legislation Act, section 79 (Automatic commencement of postponed
law) does not apply to this Act.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2008.
2 Notification
Notified under the Legislation Act on 2008.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2008
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