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New South Wales
Courts and Other Legislation Further
Amendment Bill 2012
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Explanatory notes 2
Schedule 1 Amendment and repeal of legislation 3
b2012-127-11.d35
New South Wales
Courts and Other Legislation Further
Amendment Bill 2012
No , 2012
A Bill for
An Act to make miscellaneous amendments to certain legislation with respect to
courts and juries, civil and criminal procedure, the exchange of information by
certain government agencies and the enforcement of fines and to effect minor statute
law revision; and to repeal the Inebriates Act 1912.
Clause 1 Courts and Other Legislation Further Amendment Bill 2012
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Courts and Other Legislation Further Amendment Act 3
2012. 4
2 Commencement 5
(1) This Act commences on the date of assent to this Act, except as 6
provided by subsection (2). 7
(2) Schedule 1.8 commences on a day to be appointed by proclamation. 8
3 Explanatory notes 9
The matter appearing under the heading "Explanatory note" in 10
Schedule 1 does not form part of this Act. 11
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Courts and Other Legislation Further Amendment Bill 2012
Amendment and repeal of legislation Schedule 1
Schedule 1 Amendment and repeal of legislation 1
1.1 Anti-Discrimination Act 1977 No 48 2
Section 49ZYA What constitutes discrimination on the ground of age 3
Omit section 49ZYA (3). 4
Explanatory note 5
The proposed amendment to the Anti-Discrimination Act 1977 will result in the general 6
definitions of associate and relative in that Act applying in the same way to all 7
circumstances where discrimination against a person on the grounds that a relative or 8
an associate of a person has a particular characteristic is prohibited. This is achieved 9
by omitting the substantially similar, but not identical, definitions relating to 10
discrimination on the ground of age from section 49ZYA and relying instead on the 11
general definitions in section 4 of that Act. 12
1.2 Births, Deaths and Marriages Registration Act 1995 No 62 13
[1] Section 25 Record of adoption or discharge of adoption to be noted in 14
birth registration 15
Omit "a memorandum" wherever occurring. 16
Insert instead "a record of adoption, or discharge of adoption,". 17
[2] Section 25 18
Omit "the memorandum" wherever occurring. Insert instead "the record". 19
[3] Part 8, Division 4, heading 20
Insert "and certain applications" after "entries". 21
[4] Section 46A Access to change of name applications and information by 22
law enforcement agencies 23
Insert "applications for registration of a change of a person's name, and to" 24
after "agency to" in section 46A (1). 25
[5] Section 46A (2) 26
Insert "applications or" after "to whom the". 27
[6] Schedule 3 Savings, transitional and other provisions 28
Insert at the end of clause 1 (1): 29
any other Act that amends this Act 30
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Courts and Other Legislation Further Amendment Bill 2012
Schedule 1 Amendment and repeal of legislation
[7] Schedule 3, Part 9 1
Insert after Part 8: 2
Part 9 Provision consequent on enactment of 3
Courts and Other Legislation Further 4
Amendment Act 2012 5
26 Application of amendments relating to change of name 6
applications 7
Section 46A (1) and (2), as amended by the Courts and Other 8
Legislation Further Amendment Act 2012, extend to information 9
relating to applications made before the amendment of those 10
subsections by that Act. 11
Explanatory note 12
Items [1] and [2] of the proposed amendments to the Births, Deaths and Marriages 13
Registration Act 1995 update references to records of adoption or discharge of 14
adoption (which were formerly called memoranda). This is consistent with the 15
terminology used in the rest of the Act and in the Adoption Act 2000. 16
Item [3] updates a heading as a consequence of the proposed extension (by items [4] 17
and [5] of the proposed amendments) of the power to allow access to information. 18
Items [4] and [5] empower the Registrar of Births, Deaths and Marriages to allow 19
officers of law enforcement agencies to have access to applications to register the 20
change of a person's name and not just to changes of name that have been finalised 21
and registered (which officers of law enforcement agencies can currently access). 22
Item [6] provides for the making of savings and transitional regulations consequent on 23
the amendment of the Births, Deaths and Marriages Registration Act 1995. 24
Item [7] provides that the proposed amendments about access to information extend 25
to information relating to applications made before the amendments commenced. 26
1.3 Children (Community Service Orders) Act 1987 No 56 27
[1] Section 3 Definitions 28
Omit the definition of Department from section 3 (1). Insert instead: 29
Department means the Department of Attorney General and 30
Justice. 31
[2] Section 28B 32
Insert after section 28A: 33
28B Exchange of certain information 34
(1) The Director-General may enter into an arrangement (an 35
information sharing arrangement) with the Director of the State 36
Debt Recovery Office for the purposes of sharing or exchanging 37
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Courts and Other Legislation Further Amendment Bill 2012
Amendment and repeal of legislation Schedule 1
any information that is held by the Department or the State Debt 1
Recovery Office. 2
(2) The information to which an information sharing arrangement 3
may relate is limited to information that assists in the exercise of: 4
(a) the functions of the Director-General under this Act or the 5
regulations, or 6
(b) the functions of the State Debt Recovery Office under the 7
Fines Act 1996 or the regulations under that Act. 8
(3) Under an information sharing arrangement: 9
(a) the Director-General is, despite any other Act or law of the 10
State, authorised to request and receive information from 11
the State Debt Recovery Office comprising the name, 12
address and date of birth of a person who is the subject of 13
a children's community service order and is a fine 14
defaulter (within the meaning of the Fines Act 1996), and 15
(b) the Director of the State Debt Recovery Office is 16
authorised to disclose that information to the 17
Director-General, and 18
(c) the Director of the State Debt Recovery Office is, despite 19
any other Act or law of the State, authorised to request and 20
receive information from the Department comprising the 21
name, address and date of birth of a person who is the 22
subject of a children's community service order and is a 23
fine defaulter (within the meaning of the Fines Act 1996), 24
and 25
(d) the Director-General is authorised to disclose that 26
information to the Director of the State Debt Recovery 27
Office. 28
[3] Schedule 1 Savings and transitional provisions 29
Insert at the end of clause 1 (1): 30
Courts and Other Legislation Further Amendment Act 2012, to 31
the extent that it amends this Act 32
Page 5
Courts and Other Legislation Further Amendment Bill 2012
Schedule 1 Amendment and repeal of legislation
[4] Schedule 1, clause 6 1
Insert at the end of Schedule 1: 2
6 Provision consequent on enactment of Courts and Other 3
Legislation Further Amendment Act 2012 4
Section 28B extends to information obtained before the 5
commencement of that section. 6
Explanatory note 7
Item [1] of the proposed amendments to the Children (Community Service Orders) Act 8
1987 updates a reference to a Department. 9
Item [2] allows the Juvenile Justice division of the Department of Attorney General and 10
Justice to share information about young people who are the subject of children's 11
community service orders with the State Debt Recovery Office, so as to identify 12
outstanding fines of young people subject to such community service orders and to 13
facilitate participation by those young people in work and development orders as a way 14
of satisfying all or part of those fines. (A similar amendment is proposed to be made to 15
the Children (Detention Centres) Act 1987, by Schedule 1.4 to this Act, in relation to 16
children subject to detention orders.) 17
Item [3] provides for the making of savings and transitional regulations consequent on 18
the amendments made by items [1] and [2]. 19
Item [4] provides that the proposed amendment relating to the sharing of information 20
extends to information obtained before the commencement of that amendment. 21
1.4 Children (Detention Centres) Act 1987 No 57 22
[1] Section 3 Definitions 23
Omit the definitions of Chief Executive Officer, Justice Health and Justice 24
Health from section 3 (1). 25
Insert instead, respectively: 26
Chief Executive, Justice and Forensic Mental Health Network 27
means the person for the time being holding office or acting as the 28
chief executive of the Justice and Forensic Mental Health 29
Network under the Health Services Act 1997. 30
Justice and Forensic Mental Health Network means the 31
statutory health corporation of that name specified in Schedule 2 32
to the Health Services Act 1997. 33
[2] Section 14 Functions of the Director-General 34
Omit "Mental Health Act 1990" from section 14 (2). 35
Insert instead "Mental Health (Forensic Provisions) Act 1990". 36
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Courts and Other Legislation Further Amendment Bill 2012
Amendment and repeal of legislation Schedule 1
[3] Sections 27 (2) and (5), 37F, 37G (1), (3) and (5) and 37H 1
Omit "Chief Executive Officer, Justice Health" wherever occurring. 2
Insert instead "Chief Executive, Justice and Forensic Mental Health 3
Network". 4
[4] Sections 27 (5) and 37H (2) 5
Omit "Officer" wherever lastly occurring. 6
[5] Section 37E Functions of Justice and Forensic Mental Health Network 7
Omit "Justice Health". 8
Insert instead "Justice and Forensic Mental Health Network". 9
[6] Section 37F Chief Executive, Justice and Forensic Mental Health 10
Network to have access to detention centres, detainees and medical 11
records 12
Omit "of Justice Health". 13
Insert instead "of the Justice and Forensic Mental Health Network". 14
[7] Section 37H Delegation of functions of Chief Executive, Justice and 15
Forensic Mental Health Network 16
Omit "the Chief Executive Officer's" from section 37H (1). 17
Insert instead "the Chief Executive's". 18
[8] Section 39B 19
Insert after section 39A: 20
39B Exchange of certain information 21
(1) The Director-General may enter into an arrangement (an 22
information sharing arrangement) with the Director of the State 23
Debt Recovery Office for the purposes of sharing or exchanging 24
any information that is held by the Department or the State Debt 25
Recovery Office. 26
(2) The information to which an information sharing arrangement 27
may relate is limited to information that assists in the exercise of: 28
(a) the functions of the Director-General under this Act or the 29
regulations, or 30
(b) the functions of the State Debt Recovery Office under the 31
Fines Act 1996 or the regulations under that Act. 32
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Courts and Other Legislation Further Amendment Bill 2012
Schedule 1 Amendment and repeal of legislation
(3) Under an information sharing arrangement: 1
(a) the Director-General is, despite any other Act or law of the 2
State, authorised to request and receive information from 3
the State Debt Recovery Office comprising the name, 4
address and date of birth of a person who is the subject of 5
a detention order and is a fine defaulter (within the 6
meaning of the Fines Act 1996), and 7
(b) the Director of the State Debt Recovery Office is 8
authorised to disclose that information to the 9
Director-General, and 10
(c) the Director of the State Debt Recovery Office is, despite 11
any other Act or law of the State, authorised to request and 12
receive information from the Department comprising the 13
name, address and date of birth of a person who is the 14
subject of a detention order and is a fine defaulter (within 15
the meaning of the Fines Act 1996), and 16
(d) the Director-General is authorised to disclose that 17
information to the Director of the State Debt Recovery 18
Office. 19
[9] Schedule 1 Savings and transitional provisions 20
Insert at the end of clause 1A (1): 21
any other Act that amends this Act 22
[10] Schedule 1, Part 5 23
Insert after Part 4: 24
Part 5 Provision consequent on enactment of 25
Courts and Other Legislation Further 26
Amendment Act 2012 27
10 Application of amendment concerning exchange of information 28
Section 39B extends to information obtained before the 29
commencement of that section. 30
Explanatory note 31
Items [1] and [3]-[7] of the proposed amendments to the Children (Detention Centres) 32
Act 1987 update references to a statutory health corporation and its chief executive. 33
Item [2] updates a reference to the Act under which the term forensic patient is 34
defined. 35
Item [8] allows the Juvenile Justice division of the Department of Attorney General and 36
Justice to share information about young people subject to detention orders with the 37
State Debt Recovery Office, so as to identify outstanding fines of young people subject 38
Page 8
Courts and Other Legislation Further Amendment Bill 2012
Amendment and repeal of legislation Schedule 1
to detention and to facilitate participation by those young people in work and 1
development orders as a way of satisfying all or part of those fines. (A similar 2
amendment is proposed to be made to the Children (Community Service Orders) Act 3
1987, by Schedule 1.3 to this Act, in relation to children subject to community service 4
orders.) 5
Item [9] provides for the making of savings and transitional regulations consequent on 6
the amendment of the Children (Detention Centres) Act 1987. 7
Item [10] provides that the proposed amendment relating to the sharing of information 8
extends to information obtained before the commencement of that amendment. 9
1.5 Children's Court Act 1987 No 53 10
Section 16 Functions of the President 11
Omit "in accordance with the rules" from section 16 (1) (g). 12
Explanatory note 13
The proposed amendment to the Children's Court Act 1987 omits a reference to rules 14
about the manner in which the President of the Court can exercise the function of 15
overseeing the training of Children's Magistrates and prospective Children's 16
Magistrates. There are currently no such rules. 17
1.6 Civil Procedure Act 2005 No 28 18
[1] Section 3 Definitions 19
Omit the definition of civil dispute from section 3 (1). 20
[2] Part 2A Steps to be taken before the commencement of proceedings 21
Omit the Part. 22
[3] Section 56 Overriding purpose 23
Omit "a civil dispute or" wherever occurring in section 56 (1) and (4). 24
[4] Section 56 (1) 25
Omit "dispute or" where secondly occurring. 26
[5] Section 56 (3A) and (7) 27
Omit the subsections. 28
[6] Section 56 (4) 29
Omit "or (3A)". 30
[7] Section 56 (4) (a) 31
Omit "dispute or". 32
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Courts and Other Legislation Further Amendment Bill 2012
Schedule 1 Amendment and repeal of legislation
[8] Section 56 (5) 1
Omit ", (3A)". 2
[9] Schedule 3 Rule-making powers 3
Omit items 35 and 36. 4
[10] Schedule 6 Savings, transitional and other provisions 5
Omit Part 6. 6
Explanatory note 7
Item [2] of the proposed amendments to the Civil Procedure Act 2005 repeals Part 2A 8
of that Act (which requires steps to be taken to resolve a dispute by agreement, or to 9
clarify or narrow issues in dispute, before commencing court action, and is not yet in 10
operation). 11
Item [1] omits a definition of a term (civil dispute) that is only used in the Part proposed 12
to be repealed and other provisions being amended by the proposed Schedule. 13
Items [3]-[8] omit references to civil disputes the subject of the Part proposed to be 14
repealed and to provisions about civil disputes. 15
Item [9] omits rule-making powers that relate to civil disputes. 16
Item [10] omits transitional provisions regarding the application of the Part of the Civil 17
Procedure Act 2005 that is proposed to be repealed. 18
1.7 Civil Procedure Regulation 2012 19
Clause 16 Excluded proceedings under Part 2A of Act 20
Omit the clause. 21
Explanatory note 22
The proposed amendment repeals a clause of the Civil Procedure Regulation 2012 that 23
relates to Part 2A of the Civil Procedure Act 2005 (which is proposed to be repealed by 24
Schedule 1.6). 25
1.8 Court Security Act 2005 No 1 26
[1] Section 9A 27
Insert after section 9: 28
9A Prohibition on unauthorised transmission of court proceedings 29
from courtroom 30
(1) A person must not use any device to transmit sounds or images 31
(or both) from a room or other place where a court is sitting, or to 32
transmit information that forms part of the proceedings of a court 33
from a room or other place where that court is sitting, in any of 34
the following ways: 35
(a) by transmitting the sounds, images or information to any 36
person or place outside that room or other place, 37
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Courts and Other Legislation Further Amendment Bill 2012
Amendment and repeal of legislation Schedule 1
(b) by posting entries containing the sounds, images or 1
information on social media sites or any other website, 2
(c) by otherwise broadcasting or publishing the sounds, 3
images or information by means of the Internet, 4
(d) by otherwise making the sounds, images or information 5
accessible to any person outside that room or other place, 6
whether that transmission, posting, broadcasting, publishing or 7
other conduct occurs simultaneously with the proceedings or at a 8
later time (or both). 9
Maximum penalty: 200 penalty units or imprisonment for 10
12 months (or both). 11
(2) Subsection (1) does not apply to any of the following: 12
(a) a device being used for a purpose other than a purpose 13
referred to in subsection (1), 14
(b) the transmission of sounds, images or information by an 15
audio link, audio visual link, closed-circuit link or other 16
technology that enables communication between the room 17
or other place where the court is sitting and another place 18
and that has been expressly permitted by a judicial officer, 19
(c) any other transmission of sounds, images or information 20
that has been expressly approved by a judicial officer, 21
(d) the transmission of sounds, images or information for the 22
purpose of transcribing court proceedings for the court at a 23
place outside the room or other place where the court is 24
sitting, 25
(e) the use by a prosecutor of a tablet computer or other 26
similar device to transmit sounds, images or information 27
only to another prosecutor who either is not a witness in 28
the relevant court proceedings or, if he or she is such a 29
witness, who has already given evidence in those 30
proceedings, 31
(f) the transmission of sounds, images or information in any 32
circumstances that may be prescribed by the regulations. 33
[2] Section 12 Power to confiscate restricted items and other things 34
Insert "or other device" after "recording device" wherever occurring in 35
section 12 (1) (a) (iii) and (iv). 36
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Courts and Other Legislation Further Amendment Bill 2012
Schedule 1 Amendment and repeal of legislation
[3] Section 12 (1) (a) (iii) and (iv) 1
Insert "or 9A" after "section 9" wherever occurring. 2
Explanatory note 3
Item [1] of the proposed amendments to the Court Security Act 2005 prohibits the 4
unauthorised use of any device (including a phone) to transmit sounds, images or 5
information forming part of proceedings of a court from a room or other place where a 6
court is sitting to another place. For instance, this would prohibit the use of a mobile 7
phone to simultaneously transmit court proceedings to a witness who is not permitted 8
to be in the court room because he or she is yet to give evidence. The prohibition is 9
subject to exemptions, including for audio links, audio visual links or closed-circuit 10
television approved by a judicial officer, the official transcription of court proceedings 11
and the use of tablet computers by prosecutors in certain circumstances. 12
Items [2] and [3] provide for the confiscation of any device used in contravention of that 13
prohibition and of any film, tape or other recording medium used in such a device. 14
1.9 Crimes (Appeal and Review) Act 2001 No 120 15
[1] Section 59 Determination of appeals 16
Omit "section 56 (1) (b), (c) or (d)" from section 59 (2). 17
Insert instead "section 56 (1) (b), (c), (d) or (e)". 18
[2] Schedule 1 Savings, transitional and other provisions 19
Insert at the end of clause 1 (1): 20
any other Act that amends this Act 21
[3] Schedule 1, Part 9 22
Insert after Part 8: 23
Part 9 Provision consequent on enactment of 24
Courts and Other Legislation Further 25
Amendment Act 2012 26
17 Application of amendment concerning appeals 27
The amendment made to section 59 by the Courts and Other 28
Legislation Further Amendment Act 2012 extends to an appeal 29
that was commenced but not finally determined before the 30
commencement of the amendment. 31
Explanatory note 32
Item [1] of the proposed amendments to the Crimes (Appeal and Review) Act 2001 33
specifies the manner in which the Supreme Court may determine an appeal by a 34
prosecutor against an order for costs made by the Local Court against the prosecutor 35
in any summary proceedings. As a result of the proposed amendment, the Supreme 36
Court may determine such an appeal by setting aside the costs order and making such 37
other order as the Court thinks fit or by dismissing the appeal. 38
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Courts and Other Legislation Further Amendment Bill 2012
Amendment and repeal of legislation Schedule 1
Item [2] provides for the making of savings and transitional regulations consequent on 1
the amendment of the Crimes (Appeal and Review) Act 2001. 2
Item [3] provides that the proposed amendment relating to appeals extends to an 3
appeal that was commenced but not finally determined before the commencement of 4
that amendment. 5
1.10 Drug and Alcohol Treatment Act 2007 No 7 6
[1] Section 4 7
Omit the section. Insert instead: 8
4 Application of Act 9
(1) This Act does not apply to minors. 10
(2) Nothing in this Act affects the operation of the following Acts: 11
(a) the Mental Health Act 2007, 12
(b) the Mental Health (Forensic Provisions) Act 1990, 13
(c) the Public Health Act 2010, 14
(d) the Guardianship Act 1987, 15
(e) the Law Enforcement (Powers and Responsibilities) Act 16
2002. 17
[2] Section 55A Transitional provision for declaration of areas 18
Omit the section. 19
[3] Schedule 4 20
Insert after Schedule 3: 21
Schedule 4 Savings, transitional and other 22
provisions 23
1 Regulations 24
(1) The regulations may contain provisions of a savings or 25
transitional nature consequent on the enactment of any Act that 26
amends this Act. 27
(2) Any such provision may, if the regulations so provide, take effect 28
from the date of assent to the Act concerned or a later date. 29
(3) To the extent to which any such provision takes effect from a date 30
that is earlier than the date of its publication on the NSW 31
legislation website, the provision does not operate so as: 32
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Courts and Other Legislation Further Amendment Bill 2012
Schedule 1 Amendment and repeal of legislation
(a) to affect, in a manner prejudicial to any person (other than 1
the State or an authority of the State), the rights of that 2
person existing before the date of its publication, or 3
(b) to impose liabilities on any person (other than the State or 4
an authority of the State) in respect of anything done or 5
omitted to be done before the date of its publication. 6
2 Transitional provision relating to adults subject to orders under 7
Inebriates Act 1912 8
(1) This Act does not apply to a person who is a relevant adult 9
detainee for the duration of an order made under the Inebriates 10
Act 1912 that was in force in relation to the person immediately 11
before 4 September 2012. 12
(2) The Inebriates Act 1912 continues to apply to such a person for 13
the duration of the order, despite the repeal of that Act by the 14
Courts and Other Legislation Further Amendment Act 2012. 15
(3) In this clause: 16
relevant adult detainee means a person: 17
(a) who was being detained in an institution, pursuant to an 18
order made under the Inebriates Act 1912, immediately 19
before 4 September 2012 (the date on which the Drug and 20
Alcohol Treatment Act 2007 was extended to apply to the 21
whole State), and 22
(b) who was an adult at the time that order was made, and 23
(c) who was still being detained in an institution under such an 24
order, pursuant to section 55A of the Drug and Alcohol 25
Treatment Act 2007, immediately before the repeal of that 26
section by the Courts and Other Legislation Further 27
Amendment Act 2012. 28
3 Transitional provision relating to minors subject to orders under 29
Inebriates Act 1912 30
(1) The Inebriates Act 1912 continues to apply to a relevant minor 31
detainee for the duration of the relevant order under that Act, 32
despite the repeal of that Act by the Courts and Other Legislation 33
Further Amendment Act 2012. 34
(2) In this clause: 35
relevant minor detainee means a person: 36
(a) who was being detained in an institution, pursuant to an 37
order made under the Inebriates Act 1912, immediately 38
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Courts and Other Legislation Further Amendment Bill 2012
Amendment and repeal of legislation Schedule 1
before the commencement of the Courts and Other 1
Legislation Further Amendment Act 2012, and 2
(b) who was a minor at the time that order was made. 3
Explanatory note 4
Item [1] of the proposed amendments to the Drug and Alcohol Treatment Act 2007 5
restates the fact that the Act does not apply to persons under 18 years of age, makes 6
it clear that the Act applies to the whole of the State (because the regulations currently 7
prescribe the whole of the State as the area to which the Act applies and as a 8
consequence of the fact that the Inebriates Act 1912 is proposed to be repealed by 9
Schedule 1.13) and updates a reference to a repealed Act. 10
Item [2] omits a redundant transitional provision as a consequence of the fact that the 11
Drug and Alcohol Treatment Act 2007 now applies to the whole of the State. 12
Item [3] provides for the making of savings and transitional regulations consequent on 13
the amendment of the Drug and Alcohol Treatment Act 2007. It also inserts transitional 14
provisions relating to the repeal of the Inebriates Act 1912 (namely that a person 15
(whether an adult or a minor) who is being detained in an institution under an order 16
made under the Inebriates Act 1912 immediately before the repeal of that Act is to be 17
dealt with as if the Inebriates Act 1912 had not been repealed). 18
1.11 Drug and Alcohol Treatment Regulation 2012 19
Clause 4 Area where Act applies 20
Omit the clause. 21
Explanatory note 22
The proposed amendment to the Drug and Alcohol Treatment Regulation 2012 23
removes a clause that provides that the Drug and Alcohol Treatment Act 2007 applies 24
to the whole of the State (which is redundant now that the Inebriates Act 1912 is 25
proposed to be repealed by Schedule 1.13 and the Drug and Alcohol Treatment Act 26
2007 is being amended by Schedule 1.10 to make it clear that it applies to the whole 27
of the State). 28
1.12 Fines Act 1996 No 99 29
[1] Section 99A Definitions 30
Omit the definition of approved organisation. Insert instead: 31
approved organisation means a person or body approved for the 32
time being by: 33
(a) the Director-General of the Department of Attorney 34
General and Justice, or 35
(b) a member of staff of the Department of Attorney General 36
and Justice to whom the Director-General of that 37
Department has delegated the power to approve a person 38
or body under this definition. 39
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Courts and Other Legislation Further Amendment Bill 2012
Schedule 1 Amendment and repeal of legislation
[2] Section 101A Hardship Review Board 1
Omit "Attorney General's Department" from section 101A (1) (c). 2
Insert instead "Department of Attorney General and Justice". 3
Explanatory note 4
Item [1] of the proposed amendments to the Fines Act 1996 allows for approved 5
organisations (that is, organisations with which a person subject to a work and 6
development order must undertake unpaid work in order to satisfy all or part of a fine) 7
to be approved either by the Director-General of the Department of Attorney General 8
and Justice (as at present) or by a delegate of the Director-General who is a member 9
of staff of that Department. 10
Item [2] updates a reference to a Department. 11
1.13 Inebriates Act 1912 No 24 12
The Act is repealed. 13
Explanatory note 14
The proposed item repeals the Inebriates Act 1912. The Drug and Alcohol Treatment 15
Act 2007 now applies to the whole of the State and, accordingly, the Inebriates Act 16
1912 has no remaining operation in relation to adults. (This is because, since 17
4 September 2012, the regulations made under section 4 (1) of the Drug and Alcohol 18
Treatment Act 2007 have prescribed the whole of the State to be the area to which that 19
Act applies. Therefore, the Inebriates Act 1912 is now redundant, in relation to adults.) 20
As a result of the repeal there will be no legislation that requires the involuntary 21
treatment of minors for substance abuse problems, as detention is considered 22
inappropriate for minors. Such minors will be dealt with under non-legislative programs 23
and, where appropriate, under the Mental Health Act 2007. 24
1.14 Jury Amendment Act 2010 No 55 25
[1] Schedule 1 Amendment of Jury Act 1977 No 18 26
Insert at the end of clause 4 (2) (g) of Schedule 1 to the Jury Act 1977 (as 27
proposed to be substituted by Schedule 1 [22]): 28
, or 29
(h) subject to an interim control order, or a control order, 30
within the meaning of the Crimes (Criminal Organisations 31
Control) Act 2012. 32
[2] Schedule 1 [22] 33
Omit proposed clause 5 (1) (c) and (g)-(l) from Schedule 1 to the Jury Act 34
1977. 35
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Courts and Other Legislation Further Amendment Bill 2012
Amendment and repeal of legislation Schedule 1
[3] Schedule 1 [22] 1
Insert after proposed clause 5 of Schedule 1 to the Jury Act 1977: 2
5A Persons who are Australian lawyers 3
A person who is an Australian lawyer, whether or not an 4
Australian legal practitioner, is excluded from jury service. 5
[4] Schedule 1 [22] 6
Omit "an Australian lawyer or" from proposed clause 6 (1) of Schedule 1 to 7
the Jury Act 1977. 8
Insert instead "a". 9
[5] Schedule 1 [22] 10
Omit proposed clause 7 (1) (a)-(g) of Schedule 1 to the Jury Act 1977. 11
Insert instead: 12
(a) the Department of Attorney General and Justice, 13
(b) the State Parole Authority, 14
(c) the Serious Offenders Review Council, 15
(d) the Serious Young Offenders Review Panel, 16
(e) the Probation and Parole Service, 17
(f) the Justice and Forensic Mental Health Network, 18
(g) the Mental Health Review Tribunal. 19
[6] Schedule 1 [23] 20
Insert at the end of proposed Schedule 2 to the Jury Act 1977: 21
9 A person who resides with, and has the full-time care of, a person 22
who is sick, infirm or disabled. 23
Explanatory note 24
Item [1] of the proposed amendments to the Jury Amendment Act 2010 provides that 25
a person subject to an interim control order, or a control order, within the meaning of 26
the Crimes (Criminal Organisations Control) Act 2012 is excluded from jury service. 27
Persons subject to certain other orders (such as non-association or place restriction 28
orders and apprehended violence orders) are already excluded from jury service. 29
Item [2] omits references to office holders who are required to be Australian lawyers 30
from a proposed clause that provides that they are excluded from jury service. The 31
proposed amendment is made as a consequence of item [3], which proposes to 32
continue the current exclusion of all Australian lawyers from jury service. As a result of 33
that amendment, the specific references to office holders who are lawyers will be 34
redundant. 35
Item [3] amends an uncommenced provision, to continue the current exclusion of 36
Australian lawyers from jury service (which the amending Act proposed to remove). 37
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Courts and Other Legislation Further Amendment Bill 2012
Schedule 1 Amendment and repeal of legislation
Item [4] omits a reference to Australian lawyers from an uncommenced clause that 1
provides a limited exclusion from jury service for certain government lawyers. The 2
proposed amendment is made as a consequence of the continuation of the current 3
exclusion of Australian lawyers from jury service, which makes the reference to them 4
redundant. 5
Item [5] updates references to Departments and a statutory corporation. 6
Item [6] restores the current right of people who live with and have the full-time care of 7
a person who is sick, infirm or disabled to claim an exemption from serving on a jury. 8
1.15 Land and Environment Court Act 1979 No 204 9
[1] Section 11 Acting Judges 10
Insert after section 11 (3A): 11
(3B) While a person completes or otherwise continues under 12
subsection (3A) to deal with any matters relating to proceedings 13
that have been heard or partly heard by the person before the 14
expiration of the period of the person's appointment, the person 15
has all the entitlements and functions of a Judge and, for the 16
purpose of those proceedings, is taken to continue to be a Judge. 17
[2] Section 12 Commissioners 18
Insert after section 12 (2B): 19
(2C) A person appointed as a Commissioner may, despite the 20
expiration of the term of the person's appointment, complete or 21
otherwise continue to deal with any matters relating to 22
proceedings that have been heard or partly heard, or a 23
conciliation conference that has been presided over or partly 24
presided over, by the person before the expiration of that term. 25
(2D) While a person completes or otherwise continues under 26
subsection (2C) to deal with any matters relating to proceedings 27
that have been heard or partly heard by the person, or conciliation 28
conferences that have been presided over or partly presided over, 29
before the expiration of the term of the person's appointment, the 30
person has all the entitlements and functions of a Commissioner 31
and, for the purpose of those proceedings or conferences, is taken 32
to continue to be a Commissioner. 33
[3] Section 13 Acting Commissioners 34
Insert after section 13 (6): 35
(7) While a person completes or otherwise continues under 36
subsection (6) to deal with any matters relating to proceedings or 37
a conciliation conference, the person has all the entitlements and 38
functions of a Commissioner (in the case of a person who acted 39
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Courts and Other Legislation Further Amendment Bill 2012
Amendment and repeal of legislation Schedule 1
on a full-time basis) or a part-time Commissioner (in the case of 1
a person who acted on a part-time basis) and, for the purpose of 2
those proceedings or that conference, is taken to continue to be a 3
full-time Commissioner or part-time Commissioner (as the case 4
may be). 5
[4] Schedule 3 Savings, transitional and other provisions 6
Insert after clause 12: 7
13 Provisions consequent on enactment of Courts and Other 8
Legislation Further Amendment Act 2012 9
(1) Section 11 (3B) extends to a person who, immediately before the 10
insertion of that subsection by the amending Act, was an acting 11
Judge. 12
(2) Section 12 (2C) and (2D) extend to a person who, immediately 13
before the insertion of those subsections by the amending Act, 14
was a Commissioner. 15
(3) Section 13 (7) extends to a person who, immediately before the 16
insertion of that subsection by the amending Act, was an Acting 17
Commissioner (whether full-time or part-time). 18
(4) In this clause: 19
amending Act means the Courts and Other Legislation Further 20
Amendment Act 2012. 21
Explanatory note 22
Item [1] of the proposed amendments to the Land and Environment Court Act 1979 23
brings a provision about acting Judges of the Land and Environment Court into line with 24
provisions about acting Judges and officers of other courts. The new subsection 25
provides that while a person whose appointment as an acting Judge has expired 26
completes or otherwise continues to deal with matters relating to proceedings that have 27
been heard, or partly heard, before the expiration of the person's appointment, the 28
person has all the entitlements and functions of a Judge and, for the purposes of those 29
proceedings, is taken to continue to be a Judge. Similar provisions are found in section 30
13 (9) of the District Court Act 1973, clause 4 (2) of Schedule 1 to the Local Court Act 31
2007, clause 10 (2) of Schedule 1 to the Coroners Act 2009 and clause 8A (3) of 32
Schedule 3 to the Administrative Decisions Tribunal Act 1997. 33
Item [2] provides that a person appointed as a Commissioner of the Land and 34
Environment Court whose term of appointment has expired can complete or otherwise 35
continue to deal with any matters relating to proceedings that have been heard, or 36
partly heard, by the Commissioner before the expiration of his or her term, or a 37
conciliation conference that has been presided over or partly presided over by the 38
Commissioner before the expiration of that term. It also provides that while a person 39
deals with such matters the person has all the entitlements and functions of a 40
Commissioner and, for the purposes of those proceedings or conferences, is taken to 41
continue to be a Commissioner. 42
Item [3] brings a provision about acting Commissioners of the Land and Environment 43
Court into line with provisions about acting judges and officers of other courts whose 44
term of appointment has expired. The new provision provides that while a person 45
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Courts and Other Legislation Further Amendment Bill 2012
Schedule 1 Amendment and repeal of legislation
whose term of appointment as an acting Commissioner has expired completes or 1
otherwise continues to deal with matters relating to proceedings that have been heard, 2
or partly heard, or a conciliation conference that has been presided over or partly 3
presided over by the Commissioner, before the expiration of that term, the person has 4
all the entitlements and functions of a Commissioner and, for the purposes of those 5
proceedings or conference, is taken to continue to be a Commissioner. 6
Item [4] extends the proposed amendments about acting Judges, Commissioners and 7
acting Commissioners to persons who held office immediately before the 8
commencement of the amendments. 9
1.16 NSW Trustee and Guardian Act 2009 No 49 10
Section 13 Refusal of appointment as trustee or manager 11
Insert "for the benefit of creditors" after "arrangement" in section 13 (2) (a). 12
Explanatory note 13
The proposed amendment to the NSW Trustee and Guardian Act 2009 clarifies that a 14
provision that prohibits the NSW Trustee and Guardian from accepting a trust under a 15
deed of arrangement only applies to accepting trusts under deeds of arrangement for 16
the benefit of creditors. 17
1.17 Probate and Administration Act 1898 No 13 18
[1] Section 3 Definitions 19
Insert in alphabetical order in section 3 (1): 20
Rule Committee means: 21
(a) the committee established under section 123 of the 22
Supreme Court Act 1970, or 23
(b) the Uniform Rules Committee established under section 8 24
of the Civil Procedure Act 2005. 25
[2] Sections 44 (2) and 77 (b) 26
Omit "Public Trustee" wherever occurring. Insert instead "NSW Trustee". 27
[3] Section 63 To whom administration may be granted 28
Omit "pray" from section 63 (ii). Insert instead "apply". 29
[4] Section 75A Delegation 30
Omit "prescribed by the rules" from section 75A (5). 31
Insert instead "approved by a Rule Committee". 32
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Courts and Other Legislation Further Amendment Bill 2012
Amendment and repeal of legislation Schedule 1
[5] Section 83 Executor may sign acknowledgment in lieu of conveyance 1
Omit "prescribed by the rules" from section 83 (1). 2
Insert instead "approved by a Rule Committee". 3
Explanatory note 4
Item [1] of the proposed amendments to the Probate and Administration Act 1898 5
inserts a definition of a term (Rule Committee) used in other proposed amendments 6
about the approval of forms. 7
Item [2] updates references to an office (the Public Trustee is now called the NSW 8
Trustee and Guardian, and is referred to in the Probate and Administration Act 1898 as 9
the NSW Trustee). 10
Item [3] modernises terminology (a reference to a person who can "pray" for 11
administration is updated to refer to a person who can "apply" for administration). 12
Item [4] provides for a person who objects to the appointment of a delegate of an 13
executor or administrator to do so in the form approved by a Rule Committee rather 14
than the form prescribed by the rules (as at present). 15
Item [5] provides for an acknowledgement signed by an executor that a devisee is 16
entitled to real estate to be in a form approved by a Rule Committee rather than the 17
form prescribed by the rules (as at present). 18
1.18 Supreme Court Act 1970 No 52 19
[1] Section 36 Additional Judges of Appeal 20
Insert after section 36 (5): 21
(6) While a Judge attends a sitting to give a judgment or otherwise 22
complete any proceedings under subsection (5) that have been 23
heard while the Judge was acting as an additional Judge of 24
Appeal, the Judge has all the entitlements and functions of a 25
Judge of Appeal and, for the purpose of that judgment or those 26
proceedings, is taken to continue to be a Judge of Appeal. 27
[2] Section 37 Acting Judges 28
Insert after section 37 (3A): 29
(3AA) While a person completes or otherwise continues under 30
subsection (3A) to deal with any matters relating to proceedings 31
that have been heard or partly heard by the person before the 32
expiration of the period of the person's appointment, the person 33
has all the entitlements and functions of a Judge and, for the 34
purpose of those proceedings, is taken to continue to be a Judge 35
and (if the person was so appointed to act as such) a Judge of 36
Appeal. 37
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Courts and Other Legislation Further Amendment Bill 2012
Schedule 1 Amendment and repeal of legislation
[3] Third Schedule Criminal proceedings 1
Omit paragraph (e). 2
[4] Fourth Schedule Savings and transitional provisions 3
Insert at the end of clause 1 (2): 4
any other Act that amends this Act 5
[5] Fourth Schedule, Part 17 6
Insert after Part 16: 7
Part 17 Provisions consequent on enactment of 8
Courts and Other Legislation Further 9
Amendment Act 2012 10
26 Application of amendments 11
(1) Section 36 (6) extends to a person who, immediately before the 12
insertion of that subsection by the amending Act, was an 13
additional Judge of Appeal. 14
(2) Section 37 (3AA) extends to a person who, immediately before 15
the insertion of that subsection by the amending Act, was an 16
acting Judge. 17
(3) The repeal of paragraph (e) of the Third Schedule by the 18
amending Act does not affect any proceedings relating to an 19
order under the Inebriates Act 1912 that was taken to continue in 20
force by virtue of section 55A of the Drug and Alcohol Treatment 21
Act 2007, as in force immediately before the repeal of that section 22
by the amending Act. 23
(4) In this clause: 24
amending Act means the Courts and Other Legislation Further 25
Amendment Act 2012. 26
Explanatory note 27
Item [1] of the proposed amendments to the Supreme Court Act 1970 brings a provision 28
about additional Judges of Appeal into line with provisions about acting Judges and 29
officers of other courts. The new subsection provides that while a person whose term 30
of appointment as an additional Judge of Appeal has expired completes or otherwise 31
continues to deal with matters relating to proceedings that have been heard, or partly 32
heard, before the expiry of the term, the person has all the entitlements and functions 33
of a Judge of Appeal and, for the purposes of those proceedings, is taken to continue 34
to be a Judge of Appeal. Similar provisions are found in section 13 (9) of the District 35
Court Act 1973, clause 4 (2) of Schedule 1 to the Local Court Act 2007, clause 10 (2) 36
of Schedule 1 to the Coroners Act 2009 and clause 8A (3) of Schedule 3 to the 37
Administrative Decisions Tribunal Act 1997. 38
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Courts and Other Legislation Further Amendment Bill 2012
Amendment and repeal of legislation Schedule 1
Item [2] makes the same amendment in relation to acting Judges. 1
Item [3] omits a reference to the Inebriates Act 1912, which is proposed to be repealed 2
by Schedule 1.13. 3
Item [4] provides for the making of savings and transitional regulations consequent on 4
the amendment of the Supreme Court Act 1970. 5
Item [5] inserts transitional provisions that extend the proposed amendments relating 6
to additional Judges of Appeal and acting Judges to persons who held office 7
immediately before the commencement of the amendments and provide that the 8
proposed amendment relating to proceedings under the Inebriates Act 1912 does not 9
affect current proceedings under that Act. 10
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