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1
Justice and Other Legislation Amendment Bill 2004
These explanatory notes were replaced on 3 November 2004
and tabled on 9 November 2004. See Votes and Proceedings
No. 35
JUSTICE AND OTHER LEGISLATION
AMENDMENT BILL 2004
EXPLANATORY NOTES
General Outline
Short Title
The short title of the Bill is the Justice and Other Legislation Amendment
Bill 2004.
Policy Objectives of the Legislation
The objective of the Bill is to make minor amendments to legislation
administered by the Attorney-General and Minister for Justice, in order to
improve the operation of the system of justice.
Reasons for the Bill
The Attorney-General and Minister for Justice is responsible for the
administration of a wide range of legislation. Periodically, these are
examined to identify minor amendments which can be made to improve the
operation of the legislation and also to clarify the legislation, for example,
as the result of judicial decisions. The need for some amendments was
identified by members of the community or the judiciary. The Bill also
includes amendments suggested by the Queensland Law Reform
Commission in their important function of reporting upon and
recommending statutory reform.
These minor amendments also include the following non-contentious
policy changes:
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Justice and Other Legislation Amendment Bill 2004
· to require courts in deciding whether or not to grant bail to an
indigenous defendant to take into account the views of a
community justice group;
· to provide for the electronic transmission of bench charge sheets;
· to protect from liability those who donate food to a community
organisation which is intended to be provided at no cost to the
recipient;
· to introduce a scheme for the counselling of jurors;
· to clarify the law in relation to the assessment of damages for
wrongful death;
· to simplify the mechanism by which sentencing courts take into
account presentence custody; and
· to update the capital and shareholding requirements of two
trustee companies.
Achieving the Objective
The Bill achieves the objective by making minor or non-controversial
amendments to the legislation as described below.
Administrative Costs and Cost of Implementation to the
Government
Nil.
Fundamental Legislation Principles
Two provisions of the Bill need to have retrospective operation. Both are
technical corrections and do not adversely affects rights and liberties, or
impose obligations on individuals. The first is an amendment of the
Coroners Act to include a declaration about the effectiveness of an
amendment that contained a numbering error. The second is an
amendment of the Civil Liability Act to include a provision excluding the
operation of that Act in relation to certain injuries under the Workers
Compensation and Rehabilitation Act 2003. The amendment needs to have
retrospective operation to the commencement of that Act to ensure that
there is no gap in coverage.
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Justice and Other Legislation Amendment Bill 2004
Consultation
There has been extensive consultation conducted with the Judiciary, the
Director of Public Prosecutions, the Queensland Law Society, Bar
Association of Queensland, Presidents of affected Tribunals, the Adult
Guardian, Legal Aid Queensland, the Public Trustee, and representatives of
Perpetual Trustees Australia Limited. The Queensland Law Reform
Commission was consulted about the provisions relevant to the reform of
the law related to actions for wrongful death.
Notes on Provisions
Part 1--Preliminary
Short title
Clause 1 provides that the short title is the Justice and Other Legislation
Amendment Act 2004.
Commencement
Clause 2 provides for the commencement of the Act.
Acts Amended in schedule
Clause 3 provides that the schedule amends the Acts mentioned in it.
Part 2--Amendment of Bail Act 1980
Clause 4 provides that this part amends the Bail Act 1980.
Clause 5 amends section 6 (Definitions) by inserting definitions of the
`community justice group' and `defendant's community'. These definitions
are similar to the definitions of the same terms in the Penalties and
Sentences Act 1992.
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Justice and Other Legislation Amendment Bill 2004
Clause 6 amends section 14 (Release of persons apprehended on making of
deposit of money as security for appearance) by ensuring that a bench
charge sheet may be forwarded by electronic transmission. This
amendment clarifies that a bench charge sheet can be forwarded
electronically and will assist in the implementation of the Integrated Justice
Information Strategy. The clause also amends section 14 to clarify that the
description of police officers who may grant bail under section 7 is the
same as for the granting of cash bail under section 14.
Clause 7 amends section 15 (Procedure upon application for bail) to
require the court when considering whether to grant bail, to have regard to
any submissions made by a representative of the community justice group
in the defendant's community that are relevant, for example, the
defendant's relationship to the defendant's community and any cultural
considerations. These provisions are similar to the sentencing guidelines
provisions of the Penalties and Sentences Act 1992 and the Juvenile Justice
Act 1992 that require, where the defendant is an Aboriginal or Torres Strait
Islander person, the court to have regard to any submissions made by a
representative of the community justice group in the offender's community
that are relevant to sentencing the defendant. The clause requires a
representative of the community justice group to advise the court of any
situation of conflict arising for any member of the community justice
group.
Clause 8 amends section 16 (Refusal of bail) to require the court in
deciding to refuse bail to have regard to any submissions made by a
representative of the community justice group in the defendant's
community that are relevant. The clause requires a representative of the
community justice group to advise the court of any situation of conflict
arising for any member of the community justice group.
Part 3--Amendment of Births, Deaths and
Marriages Registration Act 2003
Clause 9 provides that this part amends the Births, Deaths and Marriages
Registration Act 2003.
Clause 10 amends section 13 to provide consistency with sections 19 and
20 to reject a prohibited name. Under section 13 of the Act, the parents of a
child may apply to change the child's first names within a year of birth.
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Justice and Other Legislation Amendment Bill 2004
Section 12 of the Act currently provides that the parents of a child cannot
register the name of a child if the name stated in the birth registration is a
"prohibited name." Similarly, sections 19 and 20 of the Act also give the
registrar the power to reject an application for a change of name if the name
is a prohibited name. The amendment to section 13 gives an equivalent
power to reject an application for change of name if the proposed name is a
prohibited name.
Clause 11 amends section 15 to ensure that a person is allowed to register a
change of their name, if the person has registered the change under a
corresponding law or has changed their name by other legal process in
another State. A person who has done the latter can have the change noted
on their birth or adoption entry under section 20. The restriction means that
a person (i) born outside Australia and (ii) who is ordinarily resident in
Queensland and (iii) who changed name by deed poll interstate, perhaps
many years ago, (the "latter" referred to in the preceding paragraph) cannot
register a change of name in the change of name register. Further, the
change may not be noted under section 20 because there is no Queensland
birth or adoption entry for that person.
This has caused problems for people who are in this category in dealing
with the Passports Office. The Passports Office will no longer accept a
deed poll as evidence of the change of name - applicants must produce a
Change of Name Certificate issued by a State Registrar of Births, Deaths
and Marriages.
The amendment therefore removes the restriction in section 15 to enable a
change of name to be registered in Queensland by removing the reference
to "other legal process in another State".
Clause 12 amends section 16 to include the factors the registrar may
consider in deciding if a person ordinarily resides in Queensland. Section
16 of the Act provides that a person born outside of Australia must
ordinarily reside in Queensland before they can register a change of their
name.
The concept of `ordinarily resides' creates problems in that every
applicant's circumstances are different. Citizens from overseas countries
may argue that they `ordinarily reside' in Queensland even though they
only hold a student or other temporary visa. Other State registering
authorities have policies that have various requirements, which include that
a person must provide evidence of at least 3 months residence in that State
at the time of application.
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Justice and Other Legislation Amendment Bill 2004
The amendment provides that the registrar may take into account a number
of factors when deciding whether a person is ordinarily resident in the
State. These will include how long the person has resided in Queensland,
whether the person is employed in Queensland and whether the person is
enrolled on the electoral roll. The amendment also allows a regulation to
prescribe a minimum period of residence for the section and to prescribe
"any other consideration" by regulation. These "other considerations"
might include whether the person holds Australian citizenship or a
permanent resident visa.
Clause 13 amends section 17 to establish the criteria the registrar may
consider in deciding if a child ordinarily resides in Queensland. Section 17
of the Act provides that an application may be made to change a child's
name if the child was born outside Australia but ordinarily resides in
Queensland. The amendment to section 17 is in similar terms to the
amendment to section 16, in that the amendment establishes criteria which
the registrar can consider when deciding whether a child is "ordinarily
resident" in Queensland.
Clause 14 amends section 19 to allow the registrar to note the change of a
person's name on the entry for the person in the change of name register.
Under section 12(2) of the Act, if a birth registration statement states only
one name for the child (i.e. only a first name or only a surname); the name
is taken, for the Act, to be the child's surname. This provision is for
administrative purposes so that the name can be filed and retrieved
efficiently. The amendment inserts the same requirement for section 19
when only one name is provided when registering a change of name.
The amendment also provides that where a person has made an application
for change of name more than once, the entry in the Change of Name
Register that is being changed must be noted with the new change of name.
The entry which relates to the new name must also be noted with the
previous details of change of name. This procedure will ensure that there is
an audit trail for all changes of name.
Clause 15 amends section 20. Under section 12(2) of the Act, if a birth
registration statement states only one name for the child (i.e. only a first
name or only a surname); the name is taken, for the Act, to be the child's
surname. This provision is for administrative purposes, so that the name
can be filed and retrieved efficiently. The amendment inserts the same
requirement for section 20 when only one name is provided when noting a
change of name on the birth or adoption of children registers.
Clause 16 amends section 21. Section 21 limits the number of times that a
person can apply to change their name in Queensland. The section provides
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Justice and Other Legislation Amendment Bill 2004
that an adult cannot change name more than once per year. There is a
similar requirement for children's surnames. A Magistrates Court can
approve more frequent changes in exceptional circumstances.
Overseas nationals may apply to change name under section 16 or 17 if
they were born outside Australia and are ordinarily resident in Queensland.
Other States generally require a residency period of only 3 months for
overseas nationals before a change of name can be effected and
Queensland currently has no statutory residency period for such persons.
Consequently, there is the potential for a person to `forum shop' and
change name on a more regular basis than envisaged by the Act.
The amendment therefore provides that the one year limit runs from when
the person's change of name was registered under this Act or under a
corresponding law, whichever is later in time.
Clause 17 amends section 41 by allowing the registrar to enter application
information.
Clause 18 amends section 43 by inserting a definition of registrable event.
Part 4--Amendment of Children Services
Tribunal Act 2000
Clause 19 provides that this part amends the Childrens Services Tribunal
Act 2000.
Clause 20 amends section 11 to ensure that existing members can be
reappointed without the need to advertise. Pursuant to section 11 of the
Children Service Tribunal Act 2000, a member can only be appointed after
a process of advertisement for applicants has been completed. There would
be more administrative efficiency if existing members could be reappointed
without the need for advertisement.
Part 5--Amendment of Civil Liability Act 2003
Clause 21 provides that this part amends the Civil Liability Act 2003.
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Justice and Other Legislation Amendment Bill 2004
Clause 22 amends section 5 of the Act to preclude operation of the Act to
workers' compensation claims under the Workers' Compensation and
Rehabilitation Act 2003 in the same way that claims under the WorkCover
Queensland Act 1996 were excluded by section 5(a) of the Act. The
example of application of section 5(a) would correspond to the application
of the new section 5(b).
Clause 23 amends the definition of "community work" to include the act of
donating food. This clarifies that persons who donate food are able to be
considered to be doing community work. As a result, those persons who
are providing food on behalf of community organisations on a voluntary
basis and who are otherwise within the requirements of the division, will be
able to seek exemption under section 39. The liability of community
organisations will remain unaffected.
The clause also amends the definition of "volunteer" in section 38 of the
Act to provide that persons who donate food are within the definition for
the purposes of the division. As a result, despite being provided with
indemnity under the proposed amendment to section 39 (below), the person
will still be subject to the restrictions otherwise within the division of the
Act, for example, with respect to criminal behaviour, intoxication, etc, that
apply to volunteers and the protection offered by section 39.
Clause 24 amends section 39 of the Act to provide that persons who donate
food in good faith and without reward to community organisations, with
the intention that the food will be used for advancement of the community
work of the organisation (such as providing assistance to the homeless or
disadvantaged by way of food packages or meals), are able to obtain
protection from civil liability under the section. At the time of providing
the food to the community organisation, the person must provide to the
community organisation any necessary information relating to keeping the
food fit for human consumption.
Clause 25 amends the Act by inserting a new Part heading to Chapter 5 of
the Act, which deals with transitional provisions.
Clause 26 amends the Act by inserting a new Part 2 to Chapter 5 of the Act.
This part provides transitional provisions. Section 79 provides amendments
to the section 38 definitions of "community work" and "volunteer" which
specifically apply to donations of food made in the circumstances
mentioned in section 39 on or after commencement of the amendment.
Section 80 provides that injuries under the Workers Compensation and
Rehabilitation Act 2003 excluded by the new section 5(b) are excluded no
matter when the injury occurred.
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Justice and Other Legislation Amendment Bill 2004
Part 6--Amendment of Criminal Code
Clause 27 provides that this part amends the Criminal Code.
Clause 28 amends section 98C(2) (Bribery) to remove any doubt regarding
the scope of the offence by clarifying that it covers direct and indirect
bribes, i.e. that it is a crime to give (or promise or offer to give) a benefit of
any kind to a person in order to influence or affect their election conduct or
to a third person in order to influence or affect that first person's election
conduct.
Part 7--Amendment of Criminal Law
(Rehabilitation of Offenders) Act 1986
Clause 29 provides that this part amends the Criminal Law (Rehabilitation
of Offenders) Act 1986.
Clause 30 amends section 3 (Interpretation) by inserting a definition of
"approved form".
Clause 31 amends section 10 (Permit to disclose convictions) by deleting
the word "prescribed" and inserting the word "approved".
Clause 32 inserts a new section 14 (Approved forms) which permits the
chief executive to approve forms for use under the Act.
Part 8--Amendment of Criminal Proceeds
Confiscation Act 2002
Clause 33 provides that this part amends the Criminal Proceeds
Confiscation Act 2002.
Clause 34 amends section 8 (Proceeding other than for offence is not
criminal proceeding) by inserting a new heading "Proceedings are civil, not
criminal". A new subsection is also inserted to provide that the Uniform
Civil Procedure Rules 1999, except to the extent of any inconsistency,
apply to proceedings under the Act other than prosecutions for an offence
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Justice and Other Legislation Amendment Bill 2004
against the Act. The purpose of the amendment is to clarify that
proceedings under the Act, other than prosecutions for an offence against
the Act, are civil proceedings and the rules applicable to civil proceedings
apply except where they are inconsistent with a provision of the Act.
Clause 35 amends section 29 (Affidavit) to insert the requirements for an
affidavit of an authorised commission officer or police officer supporting
an application by the State for a restraining order relating to property under
the effective control of a prescribed respondent.
Clause 36 inserts new sections 39A - 39D. Section 39A requires the
examination of a person to be conducted at the time and place specified in
the examination notice. Section 39B provides for the examination to take
place in private and provides for the persons who are entitled to be present
at the examination. Section 39C provides for the role of the person's lawyer
at the examination. Section 39D provides for a record of the examination to
be made under the Recording of Evidence Act 1962.
Clause 37 amends section 104 (Meaning of "tainted property") by inserting
a new subsection (5) containing an additional definition of "tainted
property" for the purposes of Chapter 3, Part 3. The purpose of the
amendment is to include benefits of certain contracts as property which is
able to be restrained under Part 3. These particular benefits can be the
subject of an application for a special forfeiture order under Chapter 4 of
the Act. However, in some cases it may be appropriate for an application
for a restraining order to be made before the application for the special
forfeiture order is finally decided, for example, because the prescribed
respondent has not yet been convicted of the relevant confiscation offence.
Clause 38 inserts new sections 131A - 131D. Section 131A requires the
examination of a person to be conducted at the time and place specified in
the examination notice. Section 131B provides for the examination to take
place in private and provides for the persons who are entitled to be present
at the examination. Section 131C provides for the role of the person's
lawyer at the examination. Section 131D provides for a record of the
examination to be made under the Recording of Evidence Act 1962.
Clause 39 amends section 200 (Application for special forfeiture order) by
omitting the words "or alleged confiscation offence".
Clause 40 amends section 220 (Application of proceeds to satisfy order) to
clarify that realised proceeds from the disposal of property means the
proceeds remaining after the satisfaction of all registered or statutory
encumbrances.
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Justice and Other Legislation Amendment Bill 2004
Clause 41 replaces section 258 (Publication of proceedings) with a new
section which will enable the Supreme Court to make appropriate orders
about the publication of matters arising under the Act once a proceeding
has been started under the Act.
Part 9--Amendment of Drug Rehabilitation
(Court Diversion) Act 2000
Clause 42 provides that this part amends the Drug Rehabilitation (Court
Diversion) Act 2000.
Clause 43 amends section 47 (Expiry of Act) by ensuring that the Act
expires on 31 December 2006. Pursuant to section 12 of the Drug
Rehabilitation (Court Diversion) Regulation 2000, the Drug Rehabilitation
(Court Diversion) Act 2000 (the Act) will expire on 13 December 2004.
The Act is the legislative framework for the operation of the drug court
pilot. The purpose of the amendment is to extend the operation of the Act
until the Drug Court can be reviewed.
Part 10--Amendment of Guardianship and
Administration Act 2000
Clause 44 provides that this part amends the Guardianship and
Administration Act 2000.
Clause 45 amends section 18 (Inquiries about appropriateness and
competence) by enabling the Registrar to make inquiries prior to a hearing.
Currently section 18 of the Act provides that the Tribunal may make
inquiries into the appropriateness and competence of proposed guardians
or administrators. While the Tribunal may make these inquiries in a
hearing, in practice the Registrar initiates the inquiries prior to the Tribunal
hearing the matter.
Clause 46 amends section 26 (Automatic revocation of appointment of
guardian or administrator) to automatically revoke the appointment of the
guardian or administrator on the death of the adult as is the case in the
Powers of Attorney Act and to require the former guardian or administrator
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Justice and Other Legislation Amendment Bill 2004
to notify the Tribunal in writing without delay if the represented person
dies. This notification will assist the Registry for administrative purposes to
keep its records up to date. There is no penalty for failure to notify. The
clause is also amended to ensure that residential service providers are
excluded from being eligible to be attorneys or guardians.
Clause 47 amends section 86 (Appointment of president and deputy
presidents) to ensure that the president or deputy president can be
reappointed without the need to advertise.
Clause 48 amends section 90 (Appointment of other tribunal members) to
ensure that other tribunal members can be reappointed without the need to
advertise.
Clause 49 amends section 91 (Selection) to ensure that the requirement to
advertise before filling positions only applies to new appointments and not
to existing members who are reappointed.
Clause 50 amends section 111 to ensure that the Tribunal is able to receive
evidence that is recorded on audio or videotape or by another medium.
Clause 51 amends section 145E(2) (Mediator must disclose conflict of
interest) to correct a drafting error in earlier amendments. The section
provides that the mediator must disclose the issue giving rise to a conflict
of interest to the President constituted for the proceeding (emphasis added).
The words "constituted for the proceeding" are to be omitted as there is
only one President.
Clause 52 inserts in Schedule 2, section 1 as a type of matter the acts of
withdrawal of money from or depositing money into the adult's account
with a financial institution.
Part 11--Amendment of Jury Act 1995
Clause 53 provides that this part amends the Jury Act 1995.
Clause 54 amends section 70 (Confidentiality of jury deliberations) to
make it clear that a former member of a jury may disclose information
about jury deliberations to a health professional who is treating the former
member in relation to issues arising out of the former member's service on
the jury. The amendment also allows the sheriff to disclose to the health
professional information advising whether the patient was a former
member of a jury.
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Justice and Other Legislation Amendment Bill 2004
Part 12--Amendment of Justices Act 1886
Clause 55 provides that this part amends the Justices Act 1886.
Clause 56 amends section 142A (Permissible procedure in absence of
defendant in certain cases) expressly to extend to cases where a person fails
to appear after the person is granted bail, or permitted to go at large without
bail.
Part 13--Amendment of Land and Resources
Tribunal Act 1999
Clause 57 provides that this part amends the Land and Resources Tribunal
Act 1999.
Clause 58 amends section 27A (Membership of other decision-making
entity) to facilitate the appointment of a presiding member of the Land and
Resources Tribunal to act as a member of the Land Court. This is presently
prevented by the section.
Clause 59 amends section 39 (General requirements for constituting
tribunal for proceeding) to allow a standard panel to be constituted by one
or more presiding members and a referee non-presiding member who has
been appointed as a mining referee. This would give greater flexibility in
constituting a tribunal panel and result in various cost and time savings for
tribunal hearings.
Part 14--Amendment of Land Court Act 2000
Clause 60 provides that this part amends the Land Court Act 2000.
Clause 61 amends section 16 (Appointment of president and other
members of Land Court) to ensure that a member who ceases to be a
member remains a member to complete judgments and make ancillary
orders.
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Justice and Other Legislation Amendment Bill 2004
Clause 62 amends section 42 (Retirement of members) to ensure that a
member who retires remains a member to complete judgments and make
ancillary orders.
Part 15--Amendment of Magistrates Act 1991
Clause 63 provides that this part amends the Magistrates Act 1991.
Clause 64 amends section 23 ( Decisions about constituting Magistrates
Courts) to provide expressly for the Chief Magistrate to refer to the
Advisory Committee the question of which magistrate is to constitute a
Magistrates Court at a place where a vacancy arises due to a magistrate's
resignation, retirement or removal from office.
Part 16--Amendment of Peace and Good
Behaviour Act 1982
Clause 65 provides that the Peace and Good Behaviour Act 1982 is
amended by this Part.
Clause 66 amends section 4 of the Act by replacing the basis for complaint
under section 4(2) and providing that a complaint may be made where the
intentional conduct of a person directed at the complainant has caused the
complainant to fear that the defendant will destroy or damage property
which the complainant owns or possesses. The complainant's fear of
damage or destruction must be reasonable in the circumstances.
Section 4(3) is also amended to make it clear that any complaint brought
under section 4(1) or (2) may be referred to mediation if the complainant
consents and if the justice before whom the complaint is made considers
the matter would be better resolved by mediation.
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Justice and Other Legislation Amendment Bill 2004
Part 17--Amendment to Penalties and
Sentences Act 1992
Clause 67 provides that this part amends the Penalties and Sentences Act
1992.
Clause 68 amends section 4 (Definitions) by deleting the reference to
"(corrective services)" from the definition of "approved form".
Clause 69 amends section 9(2)(n) by relocating section 2 of the Penalties
and Sentences Regulation 1992 (the Regulation) into the Act.
Clause 70 amends section 15 by relocating section 4 of the Regulation into
the Act.
Clause 71 amends section 57 by relocating sections 4, 5 and 6 of the
Regulation into the Act.
Clause 72 amends section 67 by relocating sections 13 and 14 of the
Regulation into the Act.
Clause 73 amends section 68 by relocating section 8 of the Regulation into
the Act.
Clause 74 amends section 114 by relocating section 10 of the Regulation
into the Act.
Clause 75 amends section 128 by relocating section 11 of the Regulation
into the Act.
Clause 76 amends section 129 by relocating section 11 of the Regulation
into the Act.
Clause 77 amends section 135 by relocating sections 13 and 14 of the
Regulation into the Act.
Clause 78 amends section 154 to reflect the repeal of section 158.
Clause 79 repeals section 158.
Clause 80 makes a number of amendments to section 161 (Time held in
presentence custody to be deducted) to create a simplified mechanism for
calculating time spent in custody on remand and how it is to be taken into
account on sentence.
Section 161(1) sets out the general principle that will apply to taking into
account presentence custody, that is, all time spent in presentence custody
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Justice and Other Legislation Amendment Bill 2004
in relation to the offence will form part of the imprisonment served, unless
the court otherwise orders.
Section 161(3) now provides that unless the court "otherwise orders" under
section 161(1), the court must as part of the sentencing order -
· state the dates between which the offender was held in
presentence custody in relation to each offence;
· calculate the period of presentence custody; and
· declare that the presentence custody is to be taken to be
imprisonment already served under the sentence.
The obligation in existing section 161(3)(d) has been omitted, as now the
court will be required to make the declaration as part of the sentencing
order.
The obligation in existing section 161(3)(e) has been omitted and relocated
to the new subsection (3C).
New section 161(3A) and (3B) applies to the situation where the court
makes an order that all or any of the presentence custody will not form part
of the imprisonment served (that is, where the court "otherwise orders"
under subsection (1)).
The sentencing court must as part of the sentencing order -
· state the dates between which the offender was held in custody in
relation to each offence;
· calculate the period of pre-sentence custody; and
· declare the part of the time that is to be taken to be imprisonment
already served under the sentence or declare that no time is taken
to be imprisonment already served.
New subsection (3C) requires the court to cause the chief executive
(corrective services) to be advised in writing of a declaration made by a
sentencing court and its details. This obligation was previously contained
in section 161(3).
Section 161(4) has been redrafted to replace the term "series of offences"
with "a number of offences" to clarify that a connection between the
offences is not required, and to remove the requirement in existing section
161(4)(b) for the offender to be in custody "continuously" from arrest.
New section 161(4A) provides that to assist the court in making the
required declarations, the prosecution must provide to the sentencing court
a "presentence custody certificate".
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Justice and Other Legislation Amendment Bill 2004
"Presentence custody certificate" is defined in new subsection (10) as a
certificate in the approved form, signed by the chief executive (corrective
services), that -
· states the offence or offences for which the offender was held in
presentence custody; and
· states the dates between which the offender was held in pre-
sentence custody in relation to each offence; and
· calculates the period of pre-sentence custody.
The substance of existing sections 161(5) and (6) has been retained,
although subsection (6) has been redrafted to reflect the inclusion of a
definition of "prosecuting authority" in new subsection (10).
If an error has been made in a declaration, new section 161(7), (8) and (9)
provide a mechanism for the prosecution and defence to make a joint
application to be filed in the registry for a court to correct a declaration
under section 161(5) "on the papers".
The court may make the declaration on the papers and without the parties
attending before it, if the parties propose that the declaration be made in
this way, and the application includes written submissions and a draft order.
If the court decides the application is inappropriate for decision without an
oral hearing, the court must notify the parties and may set a date for
hearing.
Clause 81 inserts a new section 195A to relocate section 7 of the
Regulation into the Act.
Clause 82 inserts a new section 197 to provide that the chief executive may
approve forms for use under the Act.
Clause 83 inserts a new section 212 containing transitional provisions. (1)
provides that a form approved by the chief executive (corrective services)
and in force prior to amendment of the Act continues to be an approved
form after amendment. (2) provides that the amendment to section 161
applies regardless of when the offences were committed. (3) provides that
the amendment to the serious violent offences schedule applies regardless
of when the offences were committed.
Clause 84 amends the serious violent offences schedule by deleting
Criminal Code section 62 (Unlawful assembly); section 421(2) (Entering
or being in premises and committing indictable offence); and section
419(3) (b) (iii) and (iv) (Burglary, where the offender is in company of
damaged property). The following Criminal Code offences are being added
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Justice and Other Legislation Amendment Bill 2004
to the schedule - 219 (Taking child for immoral purpose); 309 (Conspiring
to murder); 364 (Cruelty to children); and 417A (Taking control of
aircraft).
Part 18--Amendment to Personal Injuries
Proceedings Act 2002
Clause 85 provides that this part amends the Personal Injuries Proceedings
Act 2002.
Clause 86 amends section 9A of the Act to specifically provide that the
making of a complaint to the Health Rights Commission will be a
reasonable excuse for delay in forwarding an initial notice under section
9A(2) outside of the applicable timeframe referred to in section 9A(4) of
the Act . The provision mirrors that in section 9(6) of the Act, with respect
to a reasonable excuse in failing to provide Part 1 of the notice of claim
within the timeframe under the Act.
Clause 87 amends Chapter 4 Part 2 of the Act by inserting provisions
relating to section 77D of the Act. Section 77D of the Act was inserted by
the Personal Injuries Proceedings Amendment Act 2002, which made the
requirements under the Act to enter into a pre-court procedure retrospective
to apply to all personal injury actions that were not otherwise decided,
settled, subject to proceedings or in which offers had been made. The
purpose of the transitional provisions was to provide legislative guidance
on the application of the provisions to those claims which arose before 18
June 2002.
Specifically, section 77D was drafted to provide for the finalisation of entry
in to the pre-court procedure under the Act of claims that arose prior to 18
June 2002 and which were subject to the Limitation of Actions Act 1974 so
that the relevant limitation period ended on or after 18 June 2002 but on or
before 18 December 2003. It was intended that all possible claims that
arose prior to 18 June 2002 were to be within the pre-court procedure, with
their rights as to the Limitation of Actions Act 1974 protected, on or before
18 December 2003.
For those actions concerned, where the limitation period had ended, parties
could commence proceedings as of right on or before 18 June 2003
pursuant to subsection (2)(a) if they had given a complying notice of claim
prior to commencing proceedings. The provision made no requirement that
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the person had to wait 6 months after giving the complying notice of claim
before they commenced proceedings.
If the complying notice was either not provided prior to close of business
on 18 June 2003, or provided, but no proceedings were started under
subsection (2)(a), the party was then required under subsection (2)(b) to
seek the leave of the court to commence proceedings. Application for leave
to commence proceedings had to be sought within 6 months after giving
the complying notice of claim. Commencement of proceedings had to
occur by the close of business on 18 December 2003. This allowed a court,
on or before 18 December 2003, and to grant leave under section 77D(2)(b)
or to make an order under section 18 deeming the notice compliant and
then granting leave under section 77D(2)(b). The provision made no
requirement that a complying notice of claim be given before 18 June 2003.
Subsection (3) dealt with the instances where proceedings were
commenced and parties had not finalised the requirements under chapter 2
part 1, such as the compulsory conference under section 36 of the Act.
Where a claim had not proceeded through the procedure, any proceedings
started under subsection (2)(a) or (b) was stayed until such time as the
requirements were complied with.
In Patterson v The Baptist Union of Queensland, the Queensland Court of
Appeal placed an interpretation upon section 77D that was not in
accordance with the legislative intention of section 77D. Clause 87 inserts
an amendment that declares the application of section 77D to be, and as
always having been, as stated above.
Part 19--Amendment of Police Service
Administration Act 1990
Clause 88 provides that this part amends the Police Service Administration
Act 1990.
Clause 89 amends section 10.5(3) (Liability for tort generally) by placing
the words "by the Crown" after the words "as constituting contributory
negligence".
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Justice and Other Legislation Amendment Bill 2004
Part 20--Amendment of Powers of Attorney Act
1998
Clause 90 provides that this part amends the Powers of Attorney Act 1998.
Clause 91 amends section 29 (Meaning of eligible attorney) to exclude
residential service providers from being eligible to be attorneys for the
purposes of the Act.
Clause 92 inserts a new section 59AA (Service provider) to revoke an
enduring document if the attorney becomes a residential service provider.
Clause 93 inserts a matter in schedule 2 (Types of matters) to include the
acts of withdrawing money from or depositing money into the principal's
account, so that financial institutions are clear that attorneys can access
financial information and accounts.
Clause 94 inserts into schedule 3 (Dictionary) definitions of resident,
residential service provider and service provider.
Part 21--Amendment to Public Trustee Act
1978
Clause 95 provides that this part amends the Public Trustee Act 1978.
Clauses 96 to 106 amend the monetary limits imposed in sections 30, 31,
33, 35, 43, 45, 48, 51, 54, 88 and 104 of the Act which relate to the exercise
of certain of the Public Trustee's powers.
Part 22--Amendment to Regulatory Offences
Act 1985
Clause 107 provides that this part amends the Regulatory Offences Act
1985.
Clause 108 amends section 5 (Unauthorised dealing with shop goods) to
ensure "price shown" for the purposes of the Act covers bar codes and any
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other shop price indicators that operate in conjunction with electronic
equipment.
Part 23--Amendment of Succession Act 1981
Clause 109 provides that the Succession Act 1981 is amended by this Part.
Clause 110 amends section 41 of the Act to correct an error and make it
clear that certain persons may apply on behalf of a person under a legal
incapacity for adequate provision out of a deceased person's estate or may
apply to the court for advice or directions about whether an application for
adequate provision should be made.
Part 24--Amendment of Supreme Court Act 1995
Clause 111 provides that this part amends the Supreme Court Act 1995.
Clause 112 amends section 18 (Actions how brought) by deleting all
references to a trial by jury and inserting reference to the court. This
recognises the policy that jury trials are no longer an option in personal
injury actions.
Clause 113 amends section 22 (Payment into court in one sum) by deleting
all references to a trial by jury and inserting reference to the court. This
recognises the policy that jury trials are no longer an option in personal
injury actions.
Clause 114 inserts new sections 23A to 23D which implement the
recommendations of the Queensland Law Reform Commission into
wrongful death.
New section 23A applies where a court is assessing under that division
damages in relation to financial benefits lost by a spouse of the deceased
person as a result of their death. The section contains definitions of
"financial benefits', "spouse" and "relationship".
The section abolishes any discount for the possibility of a surviving spouse
forming a future relationship. This is because the possibility that the
surviving spouse may form a future relationship should have no effect on
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the assessment of the surviving spouse's damages. It is made clear that this
applies even if the spouse intends to enter into a new relationship.
The section provides for the treatment of any financial benefits the spouse
has or is likely to receive as a result of a new relationship the spouse has
entered. These financial benefits may be taken into account, even if the
relationship has ended, but it cannot be assumed, that the new relationship
will necessarily continue or that the spouse will continue to receive the
same financial benefits.
New section 23B applies where the court is assessing under the division
damages in relation to financial benefits lost by a child of a deceased
person as a result of their death.
The section provides as to how the court may treat various contingencies. It
provides that if there was a relationship between the deceased parent and
the surviving parent immediately before the death of the deceased, that it is
irrelevant whether the relationship would have continued but for the death.
The section provides that if the relationship between the parents ended
before the death, this is irrelevant to the assessment.
Finally, the section provides that the court must not take into account any
financial benefits the child has received or may receive from any person
other than the deceased person, including as a result of any new
relationship the surviving parent has or may enter into.
New section 23C ensures that sections 23A and 23B do not limit other
matters the court must or may take into account in assessing damages or
the matters the court must not or may not take into account.
New section 23D provides that these provisions apply when a court
assesses damages in a proceeding under this division for a person's death
after the commencement of section 23D, irrespective of when the
proceeding was brought.
Part 25--Amendment of Transport Operations
(Road Use Management Act) 1995
Clause 115 provides that this part amends the Transport Operations (Road
Use and Management) Act 1995.
Clause 116 inserts a new section 131A, which provides an administrative
procedure for removing an absolute disqualification imposed before 13
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March 2002. The person will be eligible to reapply directly to Queensland
Transport for a licence after a period of 5 years, from the start of the
disqualification, removing the need to apply first to a court for the removal
of the absolute disqualification.
Part 26--Amendment of Trustee Companies Act
1968
Clause 117 provides that this part amends the Trustee Companies Act 1968.
Clause 118 replaces section 66B, which prohibited the giving of
guarantees. A new section 66B is inserted which provides that estates
cannot be liable for payments under a guarantee from a trustee company,
except where the guarantee is given on behalf of the estate.
Clause 119 omits from Schedule 2, part 2 the entries for Perpetual Trustees
Australia Limited and Perpetual Trustees Queensland Limited and inserts
new entries for each which provide that the paid up capital of the company
must be at least $ 2 000 000 and that a member (other than, in the case of
Perpetual Trustees Queensland Limited, Perpetual Trustees Australia
Limited) must not be the beneficial holder of more than 10% of the capital
of the company from time to time.
Schedule - Minor Amendments
Anti-Discrimination Act 1991
Clause 1
This amendment makes a grammatical change to section 181(2)(c) by
deleting the word "tribunal" and inserting in its place "tribunal,"
Clause 2
This amendment corrects an error and renumbers section 236H as 263H.
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Bail Act 1980
Clause 1
This amendment inserts into the schedule the Racing Act 2002, section
321, 323 or 325.
Births, Deaths and Marriages Registration Act 2002
Clause 1
This amendment corrects an omission by replacing the word "state" in
section 44(5).
Clause 2
This amendment corrects section 44(5)(a) by deleting the word "state".
Clause 3
This corrects the heading to Part 10.
Childrens Court Act 1992
Clause 1
This amendment deletes from section 26(2) reference to the District Court
Act 1967 and substitutes reference to " District Court of Queensland Act
1967".
Coroners Act 2003
Clause 1
This amendment changes the references to the sections of the Juvenile
Justice Act 1992 used in the definition of custody in section 10(2) of the
Coroners Act 2003 as a result of the renumbering of the provisions of the
Juvenile Justice Act 1992.
Clause 2
This amendment changes the references to the section of the Juvenile
Justice Act 1992 referred to in the example in section 17(1) of the Coroners
Act 2003 as a result of the renumbering of the provisions of the Juvenile
Justice Act 1992.
Clause 3
This amendment corrects the citation to the Child Protection Act 1999
contained in the example in section 17 (1) of the Coroners Act 2003.
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Justice and Other Legislation Amendment Bill 2004
Clause 4
A new section 107 is inserted. The Births, Deaths and Marriages
Registration Act 2003 amended the Coroners Act 2003 by inserting a
transitional provision into Part 8 of the Coroners Act 2003. The provision
should have been inserted into Part 6 of the Coroners Act 2003. This clause
corrects this error and declares the correction to have always been in
operation.
Criminal Code
Clause 1 amends section 1 definition of carnal knowledge by removing the
first entry.
Clause 2 amends section 6 by inserting a new sub-section to define carnal
knowledge to include sodomy.
Criminal Law (Rehabilitation of Offenders) Act 1986
Clauses 1 and 2 correct the numbering of items within item 5.
Criminal Offence Victims Act 1995
Clause 1 amends section 45 of the Act to replace the reference to the
"Criminal Practice Rules 1900" with the "Criminal Practice Rules 1999".
Clause 2 amends the example in section 17(2) by replacing the word
"included" with "includes".
Criminal Proceeds Confiscation Act 2002
Clause 1 amends section 58(9) by adding "and" at the end of paragraph (a).
This had been inadvertently omitted.
Clause 2 amends section 176(4) to correct a grammatical error by replacing
"consider" with "considers".
Clause 3 amends section 234(2) (a) by adding "and" at the end of
subparagraph (vi). This had been inadvertently omitted.
Clause 4 amends the definition of "ancillary" in Schedule 6 to delete the
note for paragraph (c).
Clause 5 amends the definition of "encumbrance" in Schedule 6 to correct
a drafting error by replacing "and" with "or".
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Clause 6 amends the definition of "money laundering" in Schedule 6 to
correct a drafting error by replacing "the" with "an".
Clause 7 amends the definition of "spouse" in Schedule 6 to delete the
reference to "a former spouse".
Clause 8 amends the definition of "weapon" in Schedule 6.
Criminal Law Amendment Act 1892
Clause 1 updates the schedule by removing reference to 1993 and
substituting reference to "20".
Criminal Law (Sexual Offences) Act 1978
Clause 1 corrects the reference in the heading to section 15 to an Act by
inserting before the word "Act", the word "Amendment".
Dispute Resolution Centres Act 1990
Clause 1 deletes reference to the "District Court Act 1967" from section
2(1) and inserts reference to the "District Court of Queensland Act 1967".
District Court of Queensland Act 1967
Clause 1 deletes from section 69(4) reference to "Without affecting the
generality of subsection (3), the" and inserts reference to "The".
Clause 2 replaces the reference in section 87 to the "Limitations of Action
Act 1974" with a reference to the "Limitation of Actions Act 1974".
Drug Rehabilitation (Court Diversion) Act 2000
Clause 1 makes a grammatical correction to section 23(5).
Evidence Act 1977
Clause 1 inserts after section 136 a new division heading.
Clause 2 corrects the numbering of section 137 by renumbering that section
as 136A.
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Financial Transaction Reports Act 1992
Clause 1 corrects the reference in the long title to a Commonwealth Act by
deleting reference to the "Financial Transaction Act 1988" and substituting
reference to the "Financial Transaction Reports Act 1988".
Guardianship and Administration Act 2000
Clause 1 corrects the definitions of recognised provision and registrable
order in Schedule 4 by deleting reference to "chapter 9" and substituting
reference to "chapter 7, part 9".
Judicial Review Act 1991
Clauses 1 to 5 amend various entries in schedule 3.
Jury Act 1995
Clause 1 corrects the numbering of section 4(3) by renumbering the second
paragraph (m) as (n).
Legal Profession Act 2004
Clauses 1 to 3
Section 629 of the Legal Profession Act 2004 provides for Schedule 2 of
the Act to amend section 58 of the Legal Practitioners Act 1995 and
relocate section 58, as amended, to Schedule 3. Where section 629 has
been proclaimed and the amendments and relocation have been executed,
section 629, Schedule 2 and the reference in Schedule 3 to section 629 are
omitted by these clauses.
Powers of Attorney Act 1998
Clause 1 amends section 23(2) by replacing the reference to section 68 in
the example and footnote with the correct reference to section 59A.
Clause 2 simplifies section 24 by deleting the rest of the section and the
footnote after "the attorney".
Property Law Act 1974
Clause 1 corrects section 254(2) by replacing the reference to section 260
with a reference to section 350.
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Small Claims Tribunals Act 1973
Clause 1 inserts in section 4(1) in the definition of "claimant", at the end of
paragraphs (a) to (f), the word "or"
Clause 2 inserts in section 4(1) in the definition of "respondent", at the end
of paragraph (a), the word "or"
Clause 3 inserts in section 4(1) in the definition of "small claim", at the end
of paragraphs (a)(i) to (iv), the word "or"
Clause 4 amends section 14(3)(a) and (b) by inserting at the end, the word
"and".
Clause 5 amends section 14(3)(b) and the footnote by deleting reference to
the "Commissioner for Consumer Affairs" and inserting reference to the
"commissioner for fair trading".
Clause 6 amends section 20(2)(a)(i) to (iv) by inserting at the end of the
paragraph the word "or".
Clause 7 amends section 20(2)(a)(v) by inserting at the end of the
paragraph the word "or".
Clause 8 amends section 20(2)(b) to (e) by inserting at the end of the
paragraph the word "or".
Clause 9 amends section 22(3)(a) by inserting at the end of the paragraph
the word "and".
Clause 10 amends section 23A(3)(c)(i) by inserting at the end of the
paragraph the word "and".
Clause 11 amends section 23A(5) and the footnote by replacing the
reference to the Magistrates Courts Rules 1960 with reference to the
Uniform Civil Procedure Rules 1999.
Clause 12 amends section 25(1)(a) by inserting at the end of the paragraph
the word "and".
Clause 13 amends section 32(4)(a) by inserting at the end of the paragraph
the word "and".
Clause 14 amends section 33(2)(a) by inserting at the end of the paragraph
the word "and".
Clause 15 amends section 38(3)(a) to (d) by inserting at the end of the
paragraphs the word "and".
Clause 16 amends section 44 by inserting after the words "with respect to"
the words "the following".
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Succession Act 1981
Clause 1 amends section 28(a), (b), (c) and (d) by inserting at the end of
paragraphs (a) to (d) the word "and".
Clause 2 amends section 37(2)(a) by inserting at the end of the paragraph
the word "or".
Clause 3 amends section 52(1)(a), (b), (c) and (d) by inserting at the end of
paragraphs (a) to (d) the word "and".
Clause 4 amends section 66(2)(a), (b) and (c) by inserting at the end of
paragraphs (a) to (c) the word "and".
Clause 5 amends section 66(2)(d) (i) by inserting at the end of the
paragraph the word "or".
Vexatious Litigants Act 1981
Clause 1 corrects the reference in section 9(1) (b) to the District Court.
© State of Queensland 2004