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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Courts and Other Justice Portfolio
egislation Amendment Bill 2015
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The objects of this Bill are as follows:
(a) to amend the Civil Procedure Act 2005 in relation to payments attached to garnishee orders,
persons under legal incapacity, judgment debts and interest paid on orders for costs,
(b) to amend the Classification (Publications, Films and Computer Games) Enforcement Act
1995 as a consequence of amendments to the Classification (Publications, Films and
Computer Games) Act 1995 of the Commonwealth in relation to conditional cultural
exemptions,
(c) to amend the Community Services (Complaints, Reviews and Monitoring) Act 1993 to
extend reporting periods for child deaths and to require reports to be on all child deaths
during the reporting period,
(d) to amend the Crimes (Sentencing Procedure) Act 1999 to make it clear that a court may
consider work arrangements in another State or Territory when considering whether to
make a community service order with respect to an offender,
(e) to amend the Criminal Procedure Act 1986 to clarify provisions relating to the
commencement of proceedings for offences (including common law offences) by police
officers and public officers,
(f) to amend the Evidence (Audio and Audio Visual Links) Act 1998 to make it clear that all
parties' interests must be considered before the court makes a direction that a person may
give evidence or make a submission by audio link or audio visual link,
b2015-077.d14
Courts and Other Justice Portfolio Legislation Amendment Bill 2015 [NSW]
Explanatory note
(g) to amend the Fines Act 1996 to make it clear that a monetary penalty imposed by a court
for contempt is a fine that may be collected by the State Debt Recovery Office,
(h) to amend the Government Information (Public Access) Act 2009 to provide that certain
information held by the State Parole Authority is information for which there is a conclusive
presumption against disclosure,
(i) to amend the Legal Aid Commission Act 1979 to ensure that the rights of appeal under that
Act extend to the determination or redetermination of online applications,
(j) to amend the Legal Profession Uniform Law Application Act 2014 with respect to
procedures for costs assessment and the appointment of acting and retired judges to the
Legal Profession Admission Board,
(k) to provide for fees for applications for orders under the Community Land Management Act
1989 and the Strata Schemes Management Act 1996 to be set under the Civil and
Administrative Tribunal Act 2013.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on the date of assent to the
proposed Act, other than Schedule 1.6 which will commence on 1 January 2016.
Schedule 1 Amendments
Schedule 1.1, 1.4, 1.5, 1.15 and 1.16 transfer the power to set fees for applying for certain orders
under the Community Land Management Act 1989 and the Strata Schemes Management Act 1996
to the Civil and Administrative Tribunal Act 2013.
Schedule 1.2 [1] amends the Civil Procedure Act 2005 to provide that the approval of the court is
not required for the compromise or settlement of any matter in dispute in proceedings commenced
by or on behalf of, or against, a person under legal incapacity if, on the day the agreement for the
compromise or settlement is made, that person has attained the age of 18 years and is not otherwise
a person of legal incapacity or a person who is incapable of managing his or her own affairs.
Schedule 1.2 [2] amends the Civil Procedure Act 2005 to provide for interest to be payable on
costs ordered by a court at the same rate of interest as for judgment debts and from the date of the
costs order, unless the court otherwise orders. Currently, interest is at the discretion of the court
and is calculated as from the date or dates on which the costs concerned were paid.
Schedule 1.2 [3] amends the Civil Procedure Act 2005 to make it clear that a garnishee is not
required to pay an amount under any garnishee order that exceeds the greatest amount payable
under a limited garnishee order attached to a wage or salary in respect of which other garnishee
orders are attached.
Schedule 1.2 [4] amends the Civil Procedure Act 2005 to enable a garnishee to retain, after the
payment of each amount attached under a garnishee order, up to the amount prescribed by the
Uniform Civil Procedure Rules 2005 to cover the garnishee's expenses in complying with the
garnishee order. The amount retained is in addition to the amount attached under the order.
Currently, the garnishee may retain that amount out of each amount attached under the garnishee
order, provided that the balance of the amount is paid to the judgment creditor within the time
required by the Act.
Schedule 1.2 [5] amends the Civil Procedure Act 2005 to insert a note to emphasise that a
judgment debt can only be enforced by a charging order in the Supreme Court or the District
Court, and not the Local Court.
Schedule 1.2 [6] inserts a savings and transitional provision consequent on the amendments made
by Schedule 1.2 to the proposed Act.
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Courts and Other Justice Portfolio Legislation Amendment Bill 2015 [NSW]
Explanatory note
Schedule 1.3 amends the Classification (Publications, Films and Computer Games) Enforcement
Act 1995 to make changes as a consequence of changes to the National Classification Scheme in
respect of conditional cultural exemptions under the Classification (Publications, Films and
Computer Games) Act 1995 of the Commonwealth. Conditional cultural exemptions exempt
certain demonstrations, exhibitions or screenings held at certain registered events and by approved
cultural institutions from the provisions of the Act. Schedule 1.3 [6] makes a consequential
amendment. Schedule 1.3 [7] provides for a transitional matter consequent on the changes.
Schedule 1.6 amends the Community Services (Complaints, Reviews and Monitoring) Act 1993
to require the Child Death Review Team whose convenor is the Ombudsman to report to
Parliament every 2 years (instead of annually) and to report on child deaths that occurred during
the reporting period (instead of deaths that were registered with the Team during the reporting
period). The report must be provided as soon as practicable after 30 June following the reporting
period (instead of within 4 months of the end of the period). The amendment aligns the child death
review reporting requirements with the Ombudsman's reviewable death reporting requirements.
As a transitional measure the amendment also requires the Team to report on child deaths that
occurred during 2015 as soon as practicable after 30 June 2016 (instead of within 4 months after
30 June 2016 on child deaths that were registered with the Team).
Schedule 1.7 [1] amends the Crimes (Sentencing Procedure) Act 1999 to provide that an intensive
correction order commences on the date on which it is made. Schedule 1.7 [2] amends that Act to
provide that a community service order may be made if arrangements exist in another State or
Territory for the offender to perform community service work if the offender is able and willing
to travel to that State or Territory.
Schedule 1.8 amends the Criminal Procedure Act 1986 to clarify provisions relating to the
commencement of proceedings for offences (including common law offences) by police officers
and public officers. In particular, the amendments ensure that police officers and public officers
have authority to commence proceedings for common law offences.
Schedule 1.9 amends the Evidence (Audio and Audio Visual Links) Act 1998 to make it clear that
the court must consider all parties to the proceeding in determining whether a direction to give
evidence or make a submission by audio link or audio visual link would be unfair.
Schedule 1.10 extends the definition of fine in section 4 of the Fines Act 1996 to include any
monetary penalty imposed by a court for contempt of court, having the effect of enabling the State
Debt Recovery Office to collect that penalty.
Schedule 1.11 amends the Government Information (Public Access) Act 2009 to provide that the
disclosure of information prohibited by section 194 of the Crimes (Administration of Sentences)
Act 1999 (relating to information held by the State Parole Authority) is information for which
there is a conclusive presumption of overriding public interest against disclosure.
Schedule 1.12 [2] amends the Legal Aid Commission Act 1979 to make it clear that the rights of
appeal extend to the determination or redetermination of online applications. Schedule 1.12 [1]
also makes it clear that if there is a right of appeal, the applicant must be given notice of that right
and the reasons for the determination or redetermination must be recorded.
Schedule 1.13 [1] and [4] amend the Legal Profession Uniform Law Application Act 2014 to
enable costs assessors to hold oral hearings into applications for assessment of legal costs, but only
in accordance with the costs assessment rules, and to enable those rules to confer power on costs
assessors to take evidence orally or in writing and to examine witnesses and administer oaths.
Schedule 1.13 [2] and 1.14 transfer from the Legal Profession Uniform Law Application
Regulation 2015 to section 83 of the Legal Profession Uniform Law Application Act 2014 the
requirement that a party to a costs assessment apply for any review of the determination of the
costs assessor within 30 days.
Schedule 1.13 [3] amends the Legal Profession Uniform Law Application Act 2014 to confer an
additional right to appeal to the Supreme Court against a decision on a review of a costs
assessment. Leave is required if the disputed costs are less than $100,000. A requirement to obtain
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Courts and Other Justice Portfolio Legislation Amendment Bill 2015 [NSW]
Explanatory note
leave to appeal is also imposed for appeals to the District Court if the disputed costs are less than
$25,000.
Schedule 1.13 [5] amends the Legal Profession Uniform Law Application Act 2014 to allow the
Chief Justice of the Supreme Court to nominate an acting or retired judge of the Supreme Court
for membership of the NSW Admission Board.
Page 4
First print
New South Wales
Courts and Other Justice Portfolio
egislation Amendment Bill 2015
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendments 3
b2015-077.d14
New South Wales
Courts and Other Justice Portfolio
egislation Amendment Bill 2015
No , 2015
A Bill for
An Act to amend various Acts relating to courts and other Justice portfolio matters.
Courts and Other Justice Portfolio Legislation Amendment Bill 2015 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Courts and Other Justice Portfolio Legislation Amendment Act 2015. 3
2 Commencement 4
(1) This Act commences on the date of assent to this Act, except as provided by 5
subsection (2). 6
(2) Schedule 1.6 commences on 1 January 2016. 7
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Courts and Other Justice Portfolio Legislation Amendment Bill 2015 [NSW]
Schedule 1 Amendments
Schedule 1 Amendments 1
1.1 Civil and Administrative Tribunal Regulation 2013 2
[1] Clause 5 Fees generally 3
Omit clause 5 (2). 4
[2] Schedule 2 Fees 5
Insert ", unless otherwise prescribed by this Schedule" after "strata proceedings" in Item 2 6
of the table. 7
[3] Schedule 2 8
Insert at the end of the table: 9
10
13 Lodgment of an application under section 62 of the Community Land
Management Act 1989 for an order under Division 3 or Division 4 of Part 4
of the Act for settlement of a dispute or complaint:
(a) if the application includes an application for an interim order under $163 --
section 72 of that Act
(b) if the application does not include an application referred to in $81 --
paragraph (a)
14 Lodgment of an application under section 124 of the Strata Schemes $81 --
Management Act 1996 for order by an Adjudicator
15 Lodgment of an application under section 124 of the Strata Schemes $81 --
Management Act 1996 requesting an interim order by an Adjudicator
1.2 Civil Procedure Act 2005 No 28 11
[1] Section 76 Settlement of proceedings commenced by or on behalf of, or against, 12
person under legal incapacity 13
Insert after section 76 (3): 14
(3A) However, the approval of the court is not required in relation to any agreement 15
for the compromise or settlement of any matter in dispute in proceedings 16
commenced by, or on behalf of, or against, a person under legal incapacity if, 17
on the day the agreement for the compromise or settlement is made, that 18
person has attained the age of 18 years and is not otherwise a person referred 19
to in subsection (1). Accordingly, subsections (4)-(6) do not apply in relation 20
to any such agreement. 21
[2] Section 101 Interest after judgment 22
Omit section 101 (4) and (5). Insert instead: 23
(4) Unless the court orders otherwise, interest is payable on an amount payable 24
under an order for the payment of costs. 25
(5) Interest on an amount payable under an order for the payment of costs is to be 26
calculated, at the prescribed rate or at any other rate that the court orders, as 27
from the date the order was made or any other date that the court orders. 28
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Courts and Other Justice Portfolio Legislation Amendment Bill 2015 [NSW]
Schedule 1 Amendments
[3] Section 121 Maximum payment under one of several concurrent garnishee orders 1
Omit section 121 (1) and (2). Insert instead: 2
(1) This section applies to a garnishee in respect of a wage or salary that is 3
attached by one or more garnishee orders of which one or more (but not all) 4
are limited garnishee orders. 5
(2) Unless the court orders otherwise, a garnishee to whom this section applies is 6
not required to pay an amount under any garnishee order that exceeds the 7
greatest amount payable by the garnishee under any limited garnishee order 8
attached to the relevant wage or salary. 9
Note. Section 122 specifies the maximum total payment payable under one or more 10
garnishee orders in respect of a wage or salary. 11
[4] Section 123 Payments by garnishee 12
Omit section 123 (2). Insert instead: 13
(2) The garnishee may, after the payment of each amount attached under the 14
garnishee order, retain up to the amount prescribed by the uniform rules to 15
cover the garnishee's expenses in complying with the garnishee order. The 16
amount retained by the garnishee is in addition to the amount attached under 17
the order. 18
(2A) If sufficient funds are not available to cover the prescribed amount referred to 19
in subsection (2), the garnishee may retain that amount as soon as sufficient 20
funds become available. 21
[5] Section 126 Operation of charging order in relation to specified security interests 22
Insert at the end of the section: 23
Note. Section 106 (1) (c) provides that a judgment debt may be enforced by a charging 24
order only in the case of a judgment of the Supreme Court or the District Court. 25
[6] Schedule 6 Savings, transitional and other provisions 26
Insert at the end of the Schedule: 27
Part 8 Provisions consequent on enactment of Courts and 28
Other Justice Portfolio Legislation Amendment Act 29
2015 30
21 Pending proceedings 31
The amendments made to this Act by Schedule 1.2 to the Courts and Other 32
Justice Portfolio Legislation Amendment Act 2015 do not extend to 33
proceedings commenced before the commencement of that Subschedule and 34
those proceedings may continue as if those amendments had not been enacted. 35
1.3 Classification (Publications, Films and Computer Games) 36
Enforcement Act 1995 No 63 37
[1] Section 4 Definitions 38
Insert in alphabetical order in section 4 (1): 39
subject to a conditional cultural exemption has the same meaning as in the 40
Commonwealth Act. 41
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Courts and Other Justice Portfolio Legislation Amendment Bill 2015 [NSW]
Schedule 1 Amendments
[2] Section 4A Application of Act 1
Insert at the end of section 4A (b): 2
, or 3
(c) a publication, film or computer game that is subject to a conditional 4
cultural exemption. 5
Note. A publication, film or computer game is subject to a conditional cultural 6
exemption only in relation to the relevant demonstration, exhibition or screening (see 7
sections 6C and 6E of the Commonwealth Act). 8
[3] Section 46 Calling in submittable publications for classification 9
Insert at the end of section 46 (1) (b): 10
and 11
(c) the publication is not subject to a conditional cultural exemption, 12
[4] Section 46A Calling in films for classification 13
Insert at the end of section 46A (1) (b): 14
and 15
(c) the film is not subject to a conditional cultural exemption, 16
[5] Section 47 Calling in computer games for classification 17
Insert at the end of section 47 (1) (b): 18
and 19
(c) the computer game is not subject to a conditional cultural exemption, 20
[6] Section 51 Exemptions 21
Omit the section. 22
[7] Schedule 1 Savings and transitional provisions 23
Insert at the end of the Schedule: 24
Part 7 Provisions consequent on Courts and Other 25
Justice Portfolio Legislation Amendment Act 2015 26
14 Exemptions 27
(1) An exemption under section 51 that was in force immediately before the repeal 28
of that section by the Courts and Other Justice Portfolio Legislation 29
Amendment Act 2015 remains in force according to its terms and section 51, 30
as in force immediately before its repeal, continues to apply in respect of that 31
exemption. 32
(2) If an application made under section 51 has not been decided before the repeal 33
of that section, the application is taken never to have been made. 34
1.4 Community Land Management Act 1989 No 202 35
Section 63 Application for order to be made to principal registrar 36
Omit "prescribed by the regulations" from section 63 (1) (c). 37
Insert instead "prescribed under the Civil and Administrative Tribunal Act 2013". 38
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Courts and Other Justice Portfolio Legislation Amendment Bill 2015 [NSW]
Schedule 1 Amendments
1.5 Community Land Management Regulation 2007 1
Schedule 2 Fees 2
Omit the matter relating to Item 3. 3
1.6 Community Services (Complaints, Reviews and Monitoring) Act 1993 4
No 2 5
Section 34G Biennial child death review report 6
Omit section 34G (1). Insert instead: 7
(1) The Team is required to prepare and to provide to the Presiding Officer of each 8
House of Parliament: 9
(a) as soon as practicable after 30 June 2016, a report consisting of data 10
collected and analysed in relation to child deaths that occurred during 11
2015, and 12
(b) as soon as practicable after 30 June 2018 (and as soon as practicable 13
after 30 June every 2 years after that), a report consisting of data 14
collected and analysed in relation to child deaths that occurred during 15
the previous 2 calendar years. 16
1.7 Crimes (Sentencing Procedure) Act 1999 No 92 17
[1] Section 71 18
Omit the section. Insert instead: 19
71 Commencement of ICOs 20
An intensive correction order commences on the date on which it is made. 21
[2] Section 86 Suitability of offender for community service work 22
Insert ", or in another State or Territory (but only if the offender is able and willing to travel 23
to that State or Territory)," after "intends to reside" in section 86 (1) (c). 24
1.8 Criminal Procedure Act 1986 No 209 25
[1] Section 3 Definitions 26
Insert "(including a common law offence)" after "State" in the definition of offence in 27
section 3 (1). 28
[2] Section 48 Commencement of proceedings by police officer or public officer 29
Omit "If a police officer or public officer is authorised under section 14 of this Act or under 30
any other law to commence committal proceedings, the officer may commence". 31
Insert instead "A police officer or public officer may commence". 32
[3] Section 49 Commencement of private prosecutions 33
Omit "If a person other than a police officer or public officer is authorised under section 14 34
of this Act or under any other law to commence committal proceedings against a person for 35
an offence, the person may commence the proceedings" from section 49 (1). 36
Insert instead "A person other than a police officer or public officer may commence 37
committal proceedings against a person for an offence". 38
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Courts and Other Justice Portfolio Legislation Amendment Bill 2015 [NSW]
Schedule 1 Amendments
[4] Section 173 Commencement of proceedings by police officer or public officer 1
Omit "If a police officer or public officer is authorised under section 14 of this Act or under 2
any other law to commence proceedings for an offence against a person, the officer may 3
commence the proceedings". 4
Insert instead "A police officer or public officer may commence proceedings for an offence 5
against a person". 6
[5] Section 174 Commencement of private prosecutions 7
Omit "If a person other than a police officer or public officer is authorised under section 14 8
of this Act or under any other law to commence proceedings for an offence against a person, 9
the person may commence the proceedings" from section 174 (1). 10
Insert instead "A person other than a police officer or public officer may commence 11
proceedings against a person for an offence". 12
1.9 Evidence (Audio and Audio Visual Links) Act 1998 No 105 13
Section 5B Taking evidence and submissions from outside courtroom or place 14
where court is sitting--proceedings generally 15
Omit "the party" from section 5B (2) (c). Insert instead "any party to the proceeding". 16
1.10 Fines Act 1996 No 99 17
Section 4 Meaning of "fine" 18
Insert after section 4 (1) (a): 19
(a1) any monetary penalty imposed by a court for contempt of court, or 20
1.11 Government Information (Public Access) Act 2009 No 52 21
Schedule 1 Information for which there is conclusive presumption of overriding 22
public interest against disclosure 23
Insert "section 194 (Security of certain information) and" after "Crimes (Administration of 24
Sentences) Act 1999--" in clause 1 (1). 25
1.12 Legal Aid Commission Act 1979 No 78 26
[1] Section 34 Determination of application 27
Omit section 34 (4) and (5). Insert instead: 28
(4) If there is a right of appeal to a Legal Aid Review Committee against a 29
determination or redetermination of an application: 30
(a) the notice required under subsection (2) must inform the applicant of 31
that right, and 32
(b) the reasons for the determination or redetermination are to be recorded. 33
[2] Section 56 Appeals 34
Insert "(including the determination or redetermination of an online application)" after 35
"application" in section 56 (1) (a). 36
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Courts and Other Justice Portfolio Legislation Amendment Bill 2015 [NSW]
Schedule 1 Amendments
1.13 Legal Profession Uniform Law Application Act 2014 No 16 1
[1] Section 69 Consideration of applications 2
Insert after section 69 (1): 3
(1A) A costs assessor may hold an oral hearing for the purposes of an application in 4
accordance with the costs assessment rules. 5
[2] Section 83 Application by party for review 6
Omit section 83 (1). Insert instead: 7
(1) A party to a costs assessment may, within 30 days after the issue of a certificate 8
of determination by a costs assessor, apply for a review of the determination. 9
(1A) The Manager, Costs Assessment may extend the period for lodging an 10
application. 11
[3] Section 89 Appeals on matters of law and fact 12
Omit section 89 (1)-(3). Insert instead: 13
(1) A party to a costs assessment that has been the subject of a review under this 14
Part may appeal against a decision of the review panel concerned to: 15
(a) the District Court, in accordance with the rules of the District Court, but 16
only with the leave of the Court if the amount of costs in dispute is less 17
than $25,000, or 18
(b) the Supreme Court, in accordance with the rules of the Supreme Court, 19
but only with the leave of the Court if the amount of costs in dispute is 20
less than $100,000. 21
(2) The District Court or the Supreme Court (as the case requires) has all the 22
functions of the review panel. 23
(3) The Supreme Court may, on the hearing of an appeal or application for leave 24
to appeal under this section, remit the matter to the District Court for 25
determination by that Court in accordance with any decision of the Supreme 26
Court and may make such other order in relation to the appeal as the Supreme 27
Court thinks fit. 28
(3A) The Supreme Court may, before the conclusion of any appeal or application 29
for leave to appeal under this section in the District Court, order that the 30
proceedings be removed into the Supreme Court. 31
[4] Section 93 Costs assessment rules 32
Insert after section 93 (1) (b) (i): 33
(ia) conferring power on costs assessors to take evidence orally or in 34
writing and to examine witnesses and administer oaths, and 35
[5] Schedule 3 Legal Profession Admission Board 36
Insert after clause 1 (2): 37
(3) A reference in this clause to a Judge of the Supreme Court includes a reference 38
to the following: 39
(a) an acting Judge appointed under section 37 of the Supreme Court Act 40
1970, 41
(b) a retired Judge (within the meaning of the Judges' Pensions Act 1953) 42
of the Supreme Court. 43
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Courts and Other Justice Portfolio Legislation Amendment Bill 2015 [NSW]
Schedule 1 Amendments
1.14 Legal Profession Uniform Law Application Regulation 2015 1
Clause 45 Application for review of determination 2
Omit clause 45 (2) and (3). 3
1.15 Strata Schemes Management Act 1996 No 138 4
Section 124 Applications for order to be made to principal registrar 5
Omit "prescribed fee" from section 124 (c). 6
Insert instead "fee prescribed under the Civil and Administrative Tribunal Act 2013". 7
1.16 Strata Schemes Management Regulation 2010 8
Schedule 1 Fees 9
Omit the matter relating to Items 1 and 2. 10
Page 9
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