Australian Capital Territory Bills
[Index]
[Search]
[Download]
[Related Items]
[Help]
This is a Bill, not an Act. For current law, see the Acts databases.
STATUTE LAW AMENDMENT BILL 2005
2005
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Statute Law
Amendment Bill 2005
Contents
Page
Part 1.1 Dangerous
Substances Act 2004 4
Part 1.2 Domestic
Animals Act 2000 9
Part
1.3 Occupational Health and Safety Act
1989 9
Part 1.4 Road
Transport (General) Act 1999 13
Part 1.5 University
of Canberra Act 1989 16
Part 2.1 Legislation
Act 2001 24
Part 2.2 Legislation
Regulation 2003 86
Part 3.1 Agents Act
2003 88
Part 3.2 Agents
Regulation 2003 91
Part
3.3 Associations Incorporation Act
1991 92
Part 3.4 Bail Act
1992 93
Part 3.5 Births,
Deaths and Marriages Registration Act 1997 93
Part 3.6 Board of
Senior Secondary Studies Act 1997 113
Part 3.7 Building
Act 2004 136
Part 3.8 Business
Names Regulation 1966 136
Part
3.9 Construction Occupations (Licensing) Act
2004 138
Part 3.10 Coroners
Act 1997 139
Part 3.11 Court
Procedures Act 2004 140
Part 3.12 Crimes Act
1900 143
Part 3.13 Crimes
(Forensic Procedures) Act 2000 144
Part 3.14 Cultural
Facilities Corporation Act 1997 144
Part 3.15 Dangerous
Substances Act 2004 154
Part 3.16 Domestic
Animals Act 2000 158
Part 3.17 Domestic
Animals Regulation 2001 159
Part 3.18 Duties Act
1999 160
Part
3.19 Environment Protection Act
1997 162
Part
3.20 Environment Protection Regulation
1997 164
Part 3.21 Fair
Trading Act 1992 164
Part 3.22 Financial
Management Act 1996 165
Part 3.23 Food Act
2001 166
Part 3.24 Food
Regulation 2002 168
Part 3.25 Gene
Technology Regulation 2004 168
Part 3.26 Gungahlin
Drive Extension Authorisation Act 2004 169
Part 3.27 Heritage
Act 2004 169
Part 3.28 Hotel
School Act 1996 170
Part
3.29 Intoxicated Persons (Care and Protection)
Act 1994 170
Part 3.30 Judicial
Commissions Act 1994 178
Part 3.31 Land
(Planning and Environment) Act 1991 179
Part 3.32 Land Tax
Act 2004 181
Part 3.33 Leases
(Commercial and Retail) Act 2001 181
Part 3.34 Long
Service Leave (Building and Construction Industry) Act
1981 182
Part
3.35 Magistrates Court Act
1930 184
Part
3.36 Magistrates Court (Land Planning and
Environment Infringement Notices) Regulation 2003 239
Part
3.37 Magistrates Court (Sale of Residential
Property Infringement Notices) Regulation 2004 240
Part
3.38 Magistrates Court (Security Industry
Infringement Notices) Regulation 2003 241
Part
3.39 Magistrates Court (Trade Measurement
Infringement Notices) Regulation 2002 242
Part
3.40 Magistrates Court (Utilities Infringement
Notices) Regulation 2002 243
Part 3.41 National
Environment Protection Council Act 1994 244
Part 3.42 Nature
Conservation Act 1980 244
Part
3.43 Occupational Health and Safety Act
1989 246
Part 3.44 Pharmacy
Act 1931 247
Part 3.45 Planning
and Land Act 2002 248
Part 3.46 Public
Health Regulation 2000 248
Part 3.47 Public
Sector Management Act 1994 249
Part 3.48 Rates Act
2004 251
Part
3.49 Rehabilitation of Offenders (Interim) Act
2001 252
Part 3.50 Remand
Centres Act 1976 252
Part
3.51 Residential Tenancies Amendment Act
2004 253
Part 3.52 Roads and
Public Places Act 1937 253
Part 3.53 Road
Transport (Alcohol and Drugs) Act 1977 254
Part 3.54 Road
Transport (Dimensions and Mass) Act 1990 256
Part 3.55 Road
Transport (Driver Licensing) Act 1999 257
Part 3.56 Road
Transport (General) Act 1999 261
Part 3.57 Road
Transport (Public Passenger Services) Act 2001 266
Part 3.58 Road
Transport (Safety and Traffic Management) Act 1999 268
Part 3.59 Road
Transport (Vehicle Registration) Act 1999 272
Part 3.60 Road
Transport (Vehicle Registration) Regulation 2000 277
Part 3.61 Sale of
Motor Vehicles Act 1977 278
Part 3.62 Sale of
Motor Vehicles Regulation 1977 281
Part
3.63 Superannuation (Legislative Assembly
Members) Act 1991 281
Part 3.64 Supreme
Court Act 1933 282
Part 3.65 Supreme
Court Rules 1937 282
Part 3.66 Territory
Owned Corporations Act 1990 283
Part 3.67 Territory
plan 283
Part 3.68 Tertiary
Accreditation and Registration Act 2003 284
Part 3.69 Trustee
Act 1925 285
Part 3.70 Unit
Titles Act 2001 300
Part 3.71 Victims of
Crime (Financial Assistance) Act 1983 304
Part 3.72 Waste
Minimisation Act 2001 304
Part 3.73 Workers
Compensation Act 1951 306
Part 3.74 Workers
Compensation Regulation 2002 306
2005
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Statute Law Amendment
Bill 2005
A Bill for
An Act to amend certain legislation for the purpose of statute law
revision
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Statute Law Amendment Act 2005.
(1) This Act commences 21 days after its notification day.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
(2) However, a date or time provided by a special commencement provision
for an amendment made by this Act has effect, or is taken to have had effect, as
the commencement date or time of the amendment.
(3) In this section:
special commencement provision, for an amendment made by this
Act, is a provision, in brackets beginning with the text
‘commencement:’, at the end of the amendment.
Example
An amendment followed by ‘(commencement: 8 March 2005)’ means
that the amendment is taken to have commenced on 8 March 2005.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
The purpose of this Act is to improve the quality of the statute law of the
Territory by amending Acts and regulations for the purpose of statute law
revision.
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
5 Legislation
amended—schs 1–3
This Act amends the legislation mentioned in schedules 1 to 3.
Schedule
1 Minor
amendments
(see s 5)
Part
1.1 Dangerous Substances Act
2004
[1.1] Section
86 (1), note 1
substitute
Note 1 An inspector may issue a prohibition notice in relation to
the site of a dangerous occurrence (see s 109 (2) (b) (ii)).
Explanatory note
This amendment is consequential on the remaking of section 109 by another
amendment.
[1.2] Section
108, definition of basis
substitute
basis, for giving a prohibition notice,
means—
(a) the contravention of this Act in relation to which the prohibition
notice was given and the risk to be prevented or minimised under the notice (see
section 109 (1)); or
(b) the contravention of the improvement notice in relation to which the
prohibition notice was given (see section 109 (2) (a));
or
(c) the inspection, testing or monitoring to be allowed under the notice
(see section 109 (2) (b) (i)); or
(d) the accident or other incident to be investigated under the notice
(see section 109 (2) (b) (ii)).
Explanatory note
This amendment is consequential on the remaking of section 109 by another
amendment.
substitute
109 Giving prohibition notices
(1) An inspector may give a notice (a prohibition notice) to
a responsible person for a dangerous substance at premises if the inspector
believes, on reasonable grounds, that—
(a) someone at the premises has contravened, is contravening, or is likely
to contravene, this Act in relation to the substance; and
(b) giving the notice is necessary to prevent or minimise risk of serious
harm to the health or safety of people, or substantial damage to property or the
environment, from a hazard at the premises associated with the
substance.
(2) An inspector may also give a notice (also a prohibition
notice) to a responsible person for a dangerous substance at premises if
the inspector believes, on reasonable grounds, that—
(a) someone at the premises has contravened, is contravening, or is likely
to contravene, an improvement notice; or
(b) giving the notice is necessary to allow—
(i) the inspection, testing or monitoring of anything at the premises used
in relation to the handling of the substance; or
(ii) the investigation of an accident or other incident (including a
dangerous occurrence) at the premises in relation to the substance.
Example for par (2) (b)
(i)
to allow for routine compliance testing of plant and systems if the
responsible person has not voluntarily agreed to the plant or system being shut
down for the test
Note 1 For how documents may be served, see the Legislation Act,
pt 19.5.
Note 2 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Note 3 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Explanatory note
Existing section 109 (a) provides for a prohibition notice to be issued if
an inspector believes, on reasonable grounds, that a person at premises has
contravened, is contravening, or is likely to contravene, the Act. That
provision is too general and unnecessarily applies to minor contraventions.
Existing section 109 (b) (i) provides for a notice to be issued if an inspector
believes, on reasonable grounds, that it is necessary to prevent or minimise
risk of serious harm to the health or safety of people, or substantial damage to
property or the environment, from a hazard at premises associated with a
dangerous substance. The issue of a notice in those circumstances is not
appropriate if there is not a contravention of the Act. This amendment (see new
section 109 (1)) combines those requirements so that both requirements must be
satisfied before a prohibition notice can be issued.
Existing section 109 (b) (ii) and (iii) (which are about notices given to
allow inspection, testing, monitoring and investigation) are retained as
independent grounds for the issue of a prohibition notice (see new section 109
(2) (b)).
The amendment also adds new section 109 (2) (a). That paragraph provides
for a prohibition notice to be issued for a contravention or likely
contravention of an improvement notice. This new ground recognises that a
prohibition notice may need to be issued in relation to a dangerous substance
even though the risk is less than that of the serious harm required for the
issue of a prohibition notice under new section 109 (1). However, new section
109 (2) (a) has a considerably narrower scope than existing section 109 (a) (see
above) and it is balanced by the requirement that an improvement notice must
have been issued.
[1.4] Section
110 (2) (b)
omit
section 109 (a) or (b) (i) (which are about notices given in relation to
contravention of this Act or to prevent or minimise risk of serious harm or
substantial damage)
substitute
section 109 (1) or (2) (a) (which are about notices given to prevent or
minimise risk of serious harm etc from contravention of this Act or the
contravention of an improvement notice)
Explanatory note
This amendment is consequential on the remaking of section 109 by another
amendment.
[1.5] Section
110 (2) (c)
omit
section 109 (b) (ii) or (iii) (which are about
substitute
section 109 (2) (b) (which is about
Explanatory note
This amendment is consequential on the remaking of section 109 by another
amendment.
omit
section 109 (b) (ii) or (iii)
substitute
section 109 (2) (b)
Explanatory note
This amendment is consequential on the remaking of section 109 by another
amendment.
substitute
(1) This section applies to a prohibition notice if the notice was given
under section 109 (1) or (2) (a) (which are about notices given to prevent
or minimise risk of serious harm etc from contravention of this Act or the
contravention of an improvement notice).
Explanatory note
This amendment is consequential on the remaking of section 109 by another
amendment.
omit
section 109 (a) or (b) (i)
substitute
section 109 (1) or (2) (a)
Explanatory note
This amendment is consequential on the remaking of section 109 by another
amendment.
omit
section 109 (b) (ii) or (iii) (which are about
substitute
section 109 (2) (b) (which is about
Explanatory note
This amendment is consequential on the remaking of section 109 by another
amendment.
Part
1.2 Domestic Animals Act
2000
before
during stated times
insert
at all times or
Explanatory note
This amendment makes it clear that a cat curfew can operate on a 24-hour
basis.
Part
1.3 Occupational Health and Safety Act
1989
[1.11] Section
154, definition of basis
substitute
basis, for giving a prohibition notice,
means—
(a) the contravention of this Act in relation to which the prohibition
notice was given and the risk to be prevented or minimised under the notice (see
section 155 (1)); or
(b) the inspection, testing or monitoring to be allowed under the notice
(see section 155 (2) (a)); or
(c) the accident or other incident to be investigated under the notice
(see section 155 (2) (b)).
Explanatory note
This amendment is consequential on the remaking of section 155 by another
amendment.
substitute
155 Giving prohibition notices
(1) An inspector may give a notice (a prohibition notice) to
a responsible person for a workplace if the inspector believes, on reasonable
grounds, that—
(a) someone at the workplace has contravened, is contravening, or is
likely to contravene, this Act; and
(b) giving the notice is necessary to prevent or minimise risk of serious
harm to the health or safety of people from a hazard at the workplace.
(2) An inspector may also give a notice (also a prohibition
notice) to a responsible person for a workplace if the inspector
believes, on reasonable grounds, that giving the notice is necessary to
allow—
(a) the inspection, testing or monitoring of anything at the workplace;
or
(b) the investigation of an accident or other incident (including a
dangerous occurrence) at the workplace.
Example for par (2) (a)
to allow for routine compliance testing of plant and systems if the
responsible person has not voluntarily agreed to the plant or system being shut
down for the test
Note 1 For how documents may be served, see the Legislation Act,
pt 19.5.
Note 2 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Note 3 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Explanatory note
Existing section 155 (a) provides for a prohibition notice to be issued if
an inspector believes, on reasonable grounds, that a person at premises has
contravened, is contravening, or is likely to contravene, the Act. That
provision is too general and unnecessarily applies to minor contraventions.
Existing section 155 (b) (i) provides for a notice to be issued if an inspector
believes, on reasonable grounds, that it is necessary to prevent or minimise
risk of serious harm to the health or safety of people from a hazard at a
workplace. The issue of a notice in those circumstances is not appropriate if
there is not a contravention of the Act. This amendment (see new section 155
(1)) combines those requirements so that both requirements must be satisfied
before a prohibition notice can be issued.
Existing section 155 (b) (ii) and (iii) (which are about notices given to
allow inspection, testing, monitoring and investigation) are retained as
independent grounds for the issue of a prohibition notice (see new section 155
(2)).
[1.13] Section
156 (2) (b)
omit
section 155 (a) or (b) (i) (which are about notices given in relation to
contravention of this Act or to prevent or minimise risk of serious
harm)
substitute
section 155 (1) (which is about a notice given to prevent or minimise risk
of serious harm from contravention of this Act)
Explanatory note
This amendment is consequential on the remaking of section 155 by another
amendment.
[1.14] Section
156 (2) (c)
omit
section 155 (b) (ii) or (iii) (which are about
substitute
section 155 (2) (which is about
Explanatory note
This amendment is consequential on the remaking of section 155 by another
amendment.
omit
section 155 (b) (ii) or (iii)
substitute
section 155 (2)
Explanatory note
This amendment is consequential on the remaking of section 155 by another
amendment.
substitute
(1) This section applies to a prohibition notice if the notice was given
under section 155 (1) (which is about a notice given to prevent or minimise
risk of serious harm from contravention of this Act).
Explanatory note
This amendment is consequential on the remaking of section 155 by another
amendment.
omit
section 155 (a) or (b) (i)
substitute
section 155 (1)
Explanatory note
This amendment is consequential on the remaking of section 155 by another
amendment.
omit
section 155 (b) (ii) or (iii) (which are about
substitute
section 155 (2) (which is about
Explanatory note
This amendment is consequential on the remaking of section 155 by another
amendment.
Part
1.4 Road Transport (General) Act
1999
[1.19] New
section 24 (1A)
insert
(1A) To remove any doubt, an authorised person may not serve an
infringement notice on a person under this section for an offence after the end
of the time within which a prosecution may be brought for the offence.
Note For the time within which a prosecution must be begun, see the
Legislation Act, s 192.
Explanatory note
Section 24 deals with the service of infringement notices for offences
against the road transport legislation generally. The amendment makes it clear
that an infringement notice cannot be served under the section for an offence
that cannot be prosecuted. This is implicit in the nature of an infringement
notice scheme and in the provisions of the Road Transport (General)
Act 1999, part 3. For example, section 22 (1) provides ‘the
purpose of this part is to create a system of infringement notices ... as an
alternative to prosecution’ (emphasis added). However, the point is
not expressly dealt with in the part. The amendment will put the matter beyond
doubt by expressly providing that infringement notices may not be served for
‘stale’ offences.
This amendment brings section 24 into line with the comparable provision of
the infringement notice scheme under the Magistrates Court Act 1930 (see
section 120 (2)).
renumber subsections when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new section 24 (1A) by
another amendment.
[1.21] New
section 36 (7A)
insert
(7A) To remove any doubt, an authorised person may not serve an
infringement notice on a person under this section for an offence
after—
(a) if a regulation under subsection (7) prescribes a period for the
offence—the end of the prescribed period; or
(b) in any other case—the end of the time within which a prosecution
may be brought against the person for the offence.
Explanatory note
Section 36 deals with the service of infringement notices for offences
against the road transport legislation involving a vehicle on the responsible
person for the vehicle. The amendment makes it clear that an infringement
notice cannot be served under the section for an offence that cannot be
prosecuted.
Under section 36 (7) the regulations may provide that an infringement
notice for an offence may only be served under section 36 within the prescribed
period after the day the offence was committed. For example, the Road
Transport (Offences) Regulation 2001, section 15 provides that infringement
notices for camera-detected offences may only be served within 28 days after the
day the offence was committed. The effect of section 36 (7) (and the regulation
provision made for it) is reflected in the subsection inserted by the
amendment.
This amendment brings section 36 into line with the comparable provision of
the infringement notice scheme under the Magistrates Court Act 1930 (see
section 131B (8)).
renumber subsections when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new section 36 (7A) by
another amendment.
[1.23] New
section 53 (6)
insert
(6) To remove any doubt, subsection (2) does not permit the administering
authority to lay an information against a person for an offence after the end of
the time within which, apart from this section, a prosecution may be brought
against the person for the offence.
Note For the time within which a prosecution must be begun, see the
Legislation Act, s 192.
Explanatory note
This amendment makes it clear that this section does not provide for an
extended period within which a prosecution for an offence may be brought. The
Legislation Act, section 192 limits the time for bringing prosecutions for
minor summary offences to 1 year after the day of the commission of the offence
unless a territory law provides for another period.
The Road Transport (General) Act 1999, section 53 (2) provides that
an administering authority ‘may’ lay an information against a person
for an offence for which an infringement notice has been served within 60 days
after being given a notice disputing liability is received.
The better view is that the word ‘may’ in this context
indicates that the laying of an information is discretionary rather than
mandatory (see Legislation Act, section 146 (1)) and does not empower the laying
of an information within the 60-day period after the 1-year period for bringing
a prosecution has ended. This view is supported by section 53 (5)
which has the effect that a prosecution for an offence must be begun within 60
days after the receipt of a notice disputing liability for the
offence.
The amendment will put the matter beyond doubt by expressly providing that
the section does not permit the laying of an information after the end of the
1-year period.
This amendment brings section 53 into line with the comparable provision of
the infringement notice scheme under the Magistrates Court Act 1930 (see
section 134 (6)).
Part
1.5 University of Canberra Act
1989
[1.24] Section
11 (1) (b)
omit
Explanatory note
The Higher Education Support Act 2003 (Cwlth), section 33-15
provides for increased financial assistance to universities that satisfy certain
requirements, including the applicable National Governance Protocols (see
www.dest.gov.au/highered/governance/nat_gov_prot.htm).
National Governance Protocol 3 (see par 7.5.15) includes the requirement
that, with stated exceptions, the members of the governing body of a university
must be personally appointed. The exceptions are the chancellor, the
vice-chancellor and the presiding member of an academic board who may be on the
governing body because of their position.
Section 11 deals with membership of the council. Paragraph (1) (b)
provides that the deputy chancellor is a member of the council because of that
person’s position. This amendment omits the paragraph.
renumber paragraphs when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the omission of section 11 (1) (b) by
another amendment.
substitute
(2) If the council considers that it is necessary to appoint extra members
of the council to enable the council to exercise its functions efficiently, the
council may appoint up to 3 people as members of the council.
Note For the making of appointments (including acting appointments),
see the Legislation Act, pt 19.3.
Explanatory note
This amendment increases from 2 to 3 the number of extra people the council
may appoint to exercise its functions efficiently. It is related to the
omission of section 11 (1) (b) by another amendment.
[1.27] New
section 11 (6)
insert
(6) The maximum period that a person can be a member of the council is 12
years (whether consecutive or not) unless the council otherwise decides to
extend the maximum period for the person.
Note A person may be reappointed to a position if the person is
eligible to be appointed to the position (see Legislation Act, s 208 and
dict, pt 1, def appoint).
Explanatory note
The Higher Education Support Act 2003 (Cwlth), section 33-15
provides for increased financial assistance to universities that satisfy certain
requirements, including the applicable National Governance Protocols (see
www.dest.gov.au/highered/governance/nat_gov_prot.htm).
National Governance Protocol 6 (see par 7.5.50) includes the requirement
that a university’s governing body must establish the maximum period that
a person may serve on the body which should not generally exceed 12 years unless
otherwise specifically agreed by a majority of the governing body.
This amendment provides for a maximum period or periods of 12 years or any
other period set by the council.
substitute
12 Qualifications for membership of
council
(1) A person is not qualified to become or remain a member of the council
if the person—
(a) is under 18 years old; or
(b) is disqualified from managing corporations under the Corporations Act,
part 2D.6 (Disqualification from managing corporations); or
(c) is convicted, in the ACT, of an offence punishable by imprisonment for
at least 1 year; or
(d) is convicted outside the ACT, in Australia or elsewhere, of an offence
that, if it had been committed in the ACT, would be punishable by imprisonment
for at least 1 year.
(2) Disqualification under subsection (1) (c) or (d) ends on the later of
the following:
(a) 5 years after the date of the person’s conviction;
(b) 5 years after the date of the person’s release from prison.
Explanatory note
The Higher Education Support Act 2003 (Cwlth), section 33-15
provides for increased financial assistance to universities that satisfy certain
requirements, including the applicable National Governance Protocols (see
www.dest.gov.au/highered/governance/nat_gov_prot.htm).
National Governance Protocol 3 (see par 7.5.25) provides that a member of a
university’s governing body automatically vacates the position if the
person is, or becomes, disqualified from acting as a director of a company or
managing corporations under the Corporations Act, part 2D.6.
This amendment inserts new section 12 (1) (b) which provides that a person
is not qualified to become or remain a member of the council if the person is
disqualified under the Corporations Act, part 2D.6. The period of
disqualification under existing section 12 (2) is increased from
2 years to 5 years to bring it into line with the disqualification period
under the Corporations Act.
Existing section 12 does not apply to the vice-chancellor. This exception
is not included in new section 12 and, accordingly, the vice-chancellor is
covered by the same qualification requirements as the other members of the
council.
Existing section 12 (1) (b) (which is about bankruptcy and personal
insolvency agreements) is omitted because these matters are grounds for
automatic disqualification under the Corporations Act, part 2D.6 (see s
206A).
Existing section 12 (1) (c) provides for disqualification if a person has
been convicted of an offence against a Commonwealth, State or Territory law and
sentenced to imprisonment for 1 year or longer. It is updated in new
section 12 (1) (c) and (d) in accordance with current drafting practice. In
particular, a person is disqualified if the person is convicted of an offence
committed outside Australia that, if it had been committed in the ACT, would be
punishable by imprisonment for at least 1 year.
insert
12A Duties of members of council
(1) In exercising the functions of a member of the council, a council
member must—
(a) act always in the best interests of the university as a whole;
and
(b) act honestly and for a proper purpose; and
(c) exercise reasonable care and diligence.
(2) Also, a member of the council—
(a) must avoid conflicts of interest; and
(b) must disclose to the council, in accordance with section 14 and the
statutes, any conflict between the member’s interests and the
university’s interests; and
(c) must not improperly use the member’s position, or information
obtained because of the member’s position, to—
(i) gain an advantage for the member or someone else; or
(ii) cause detriment to the university or someone else.
(3) The duty under subsection (1) (a) must be observed in priority to any
duty a member may owe to those electing or appointing the member.
(4) The council may, by resolution passed by
2/3 of the members of the
council for the time being, remove a council member from office if the member
fails to comply with a duty under subsection (1).
Explanatory note
The Higher Education Support Act 2003 (Cwlth), section 33-15
provides for increased financial assistance to universities that satisfy certain
requirements, including the applicable National Governance Protocols (see
www.dest.gov.au/highered/governance/nat_gov_prot.htm).
This amendment gives effect to National Governance Protocol 3 (see par
7.5.20). It also includes in subsection (2) (c) the additional elements of the
improper use of information and the improper use of position or information to
cause detriment to the university or someone else (see section (2)
(c) (ii)).
[1.30] Section
14 (1) and (3)
omit
a direct or indirect pecuniary interest
substitute
an interest
Explanatory note
Section 14 is about the disclosure of interests by council members. This
amendment brings the references to interest into line with new section 12A (2)
(a) and (b) which is inserted by another amendment. Section 14 operates subject
to the University’s statutes (see section (4)). Accordingly, details of
council members’ obligations etc in relation to disclosure of interests
(including, for example, conformity with a director’s obligations under
the Corporations Act) can be set-out in the statutes.
omit
(other than the vice-chancellor)
Explanatory note
This amendment is related to the removal of an exception for the
vice-chancellor from section 12 by another amendment.
[1.32] New
section 15 (1) (ab)
insert
(ab) is removed from office under section 12A (4) (Duties of members of
council); or
Explanatory note
This amendment provides that the office of a member of the council becomes
vacant if the member is removed from office under new section 12A (4) which is
inserted by another amendment.
[1.33] Section
15 (1) (e)
omit
Explanatory note
Section 15 (1) (e) provides that the office of a member of the council
(other than the vice-chancellor) becomes vacant if the member, without
reasonable excuse, contravenes section 14 (1). That section is about
the disclosure of interests by council members.
This amendment omits the paragraph because a council member (including the
vice-chancellor) who fails to disclose a conflict of interest may be removed
under new section 12A (4) which is inserted by another amendment.
renumber paragraphs when Act next republished under Legislation Act
Explanatory note
This amendment is consequential on the insertion of new section 15 (1) (ab)
and the omission of section 15 (1) (e).
[1.35] New
section 24 (3)
insert
(3) A person is not eligible to be appointed as the chancellor if the
person is disqualified from managing corporations under the Corporations Act,
part 2D.6 (Disqualification from managing corporations).
Explanatory note
The chancellor is automatically a member of the university’s council
(see section 11 (1) (a)). This amendment is related to new section 12 (1) (b)
which provides that a person is not qualified to become or remain a member of
the council if the person is disqualified under the Corporations Act, part
2D.6.
omit
or another person
Explanatory note
This amendment restricts the people who may be appointed as the deputy
chancellor to members of the council. It is related to the omission of section
11 (1) (b) by another amendment.
[1.37] New
section 25 (4)
insert
(4) A person is not eligible to be appointed as the vice-chancellor if the
person is disqualified from managing corporations under the Corporations Act,
part 2D.6 (Disqualification from managing corporations).
Explanatory note
The vice-chancellor is automatically a member of the university’s
council (see section 11 (1) (c)). This amendment is related to new section 12
(1) (b) which provides that a person is not qualified to become or remain a
member of the council if the person is disqualified under the Corporations Act,
part 2D.6.
[1.38] Section
40 (2) (e) (iii)
omit
pecuniary interests
substitute
interests
Explanatory note
This amendment brings the reference to pecuniary interests into line with
that in new section 12A (2) (a) and (b) which is inserted by another
amendment.
Schedule
2 Structural
amendments
(see s 5)
Part
2.1 Legislation Act
2001
substitute
Note 2 Section 100 (1) deals with references to particular
Acts.
Explanatory note
This amendment replaces a note to section 7 consequential on the remaking
of chapter 10 (Referring to laws) by another amendment.
[2.2] Section
19 (5), example 3
omit
Explanatory note
This amendment omits an example that is no longer appropriate. The
Australian Road Rules currently in force were notified as a notifiable
instrument on 16 July 2004.
[2.3] Section
22A, definition of legislative material, example 1
substitute
1 Additional material entered in the register under section 19 (3)
(Contents of register) that is not an Act or statutory instrument, for example,
appointments of Ministers. Ministers are appointed by the Chief Minister under
the Self-Government Act, section 41. An instrument notifying an appointment may
be entered in the register even though the instrument is not a statutory
instrument.
Explanatory note
This amendment omits part of an example that is no longer appropriate. The
Australian Road Rules currently in force were notified as a notifiable
instrument on 16 July 2004.
substitute
(h) amendments or other changes made under chapter 11 (Republication of
Acts and statutory instruments); or
Explanatory note
This amendment adds a reference to amendments made under chapter 11 to more
accurately reflect the wording used in chapter 11.
omit
, in writing,
Explanatory note
This amendment is consequential on the insertion of new section 42 (2)
by another amendment.
omit
issued under this section
Explanatory note
This amendment omits words that are unnecessary in the context of the
section.
omit
, in writing,
Explanatory note
This amendment is consequential on the insertion of new section 42 (2)
by another amendment.
omit
in whole or in part
Explanatory note
This amendment removes unnecessary words.
omit
after the disallowance of the RIS exemption
substitute
after the day the RIS exemption is disallowed
Explanatory note
This amendment expressly provides that, in working out the period within
which a regulatory impact statement must be presented to the Legislative
Assembly after a RIS exemption is disallowed, the day on which the RIS exemption
is disallowed is not counted. The amendment is in accordance with current
drafting practice and reflects the present position under the Legislation Act,
section 151 (2) and (3) (b).
[2.10] Section
36 (1) (d)
substitute
(d) the commencement of an Act or statutory instrument;
Note A reference to an Act or statutory
instrument includes a reference to a provision of the Act or instrument (see s 7
and s 13).
Explanatory note
This amendment revises the paragraph to omit unnecessary words. Under the
definitions of Act and statutory instrument in
sections 7 and 13, a reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument. The amendment also inserts a
note to this effect.
omit
in whole or part
Explanatory note
This amendment removes unnecessary words.
[2.12] New
section 42 (2)
insert
(2) If an Act or statutory instrument gives power to make an instrument
that would be a registrable instrument, the power can only be exercised by
making an instrument.
Examples
See examples to section 56 (3) and section 255 (3).
Explanatory note
This amendment provides that power to make an instrument that would be a
registrable instrument (eg a disallowable instrument) can only be exercised by
making an instrument. The amendment removes any possibility that the safeguards
attaching to these instruments (notification and, for disallowable instruments,
presentation in the Legislative Assembly and possible disallowance or amendment)
could be avoided by exercising the power orally rather than in writing. The
amendment will remove the need to state in provisions giving power to make a
registrable instrument that the power must be exercised in writing. For
example, see the amendments of section 33 (1) and section
34 (2).
[2.13] Section
42 (2) and (3)
renumber as section 42 (3) and (4)
Explanatory note
This amendment is consequential on the insertion of new section 42 (2)
by another amendment.
[2.14] Section
44 (1) and (2) (a)
omit
(or for the purposes of)
Explanatory note
This amendment omits words that are no longer necessary.
For, in relation to an Act or statutory instrument, is defined in
the dictionary, part 1 to include for the purposes of the Act or statutory
instrument.
[2.15] Section
45 (4), definition of disallowable instrument
substitute
disallowable instrument, for a Commonwealth Act, means an
instrument that can be disallowed under the Legislative Instruments Act 2003
(Cwlth), part 5 (Parliamentary scrutiny of legislative instruments),
including that part, or provisions of that part, applied by another Commonwealth
law.
Explanatory note
This amendment updates the definition to take account of the enactment of
the Legislative Instruments Act 2003 (Cwlth).
[2.16] Section
45 (4), definition of law
substitute
law means—
(a) an Act, subordinate law or disallowable instrument; or
Note A reference to an Act, subordinate
law or disallowable instrument includes a reference to a provision of the Act,
law or instrument (see s 7, s 8 and s 9).
(b) a Commonwealth Act or a disallowable instrument under a Commonwealth
Act (or a provision of such an Act or instrument).
Explanatory note
This amendment is consequential on the revised definition of
disallowable instrument substituted by another amendment. The
amendment also revises the definition to omit unnecessary words. Under the
definitions of Act, subordinate law and
disallowable instrument in sections 7 to 9, a reference to an Act,
subordinate law or disallowable instrument includes a reference to a provision
of the Act, law or instrument. The amendment also inserts a note to this
effect.
[2.17] Section
47 (10), definition of ACT law
substitute
ACT law means an Act, subordinate law or disallowable
instrument.
Note A reference to an Act, subordinate law or disallowable
instrument includes a reference to a provision of the Act, law or instrument
(see s 7, s 8 and s 9).
Explanatory note
The amendment revises the definition to omit unnecessary words. Under the
definitions of Act, subordinate law and
disallowable instrument in sections 7 to 9, a reference to an Act,
subordinate law or disallowable instrument includes a reference to a provision
of the Act, law or instrument. The amendment also inserts a note to this
effect.
[2.18] Section
47 (10), definition of disallowable instrument
substitute
disallowable instrument, for a Commonwealth Act, means an
instrument that can be disallowed under the Legislative Instruments Act 2003
(Cwlth), part 5 (Parliamentary scrutiny of legislative instruments),
including that part, or provisions of that part, applied by another Commonwealth
law.
Explanatory note
This amendment updates the definition to take account of the enactment of
the Legislative Instruments Act 2003 (Cwlth).
[2.19] Section
47 (10), definition of law of another jurisdiction, paragraph
(a)
substitute
(a) a Commonwealth Act or a disallowable instrument under a Commonwealth
Act; or
Explanatory note
This amendment is consequential on the revised definition of
disallowable instrument substituted by another
amendment.
after
available for inspection
insert
(on the internet or otherwise)
Explanatory note
This amendment makes it clear that it is sufficient for this section if the
map, plan or register is available for inspection on the internet and does not
need to be physically available for inspection.
substitute
(1) This section applies if an Act (the authorising law)
authorises fees to be determined for an Act or statutory instrument (the
relevant law).
Explanatory note
This amendment makes it clear that an Act can authorise fees to be
determined for a number of laws (see also Legislation Act, section 49 (Single
instrument may exercise several powers or satisfy several requirements) and
section 145 (Gender and number)).
[2.22] Section
56 (3), example
substitute
Example
The X Act, section 15 provides for a person to apply for an approval but
makes no mention of a fee for the approval. However, the Act, section 79 (1)
provides:
(1) The Minister may determine fees for this Act.
Because section 79 (1) permits a fee to be determined ‘for this
Act’, this Act, section 56 applies in relation to section 15 and the
Minister may, in writing, determine an application fee for the
approval.
Note 1 The determination must be in writing (see s
42 (2)).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see s 126 and s 132).
Explanatory note
This amendment is consequential on the insertion of a new section
42 (2) by another amendment.
[2.23] Section
56 (4) (a)
omit
specifying
substitute
stating
Explanatory note
This amendment updates language.
[2.24] Section
56 (4) (c)
omit
specified
substitute
stated
Explanatory note
This amendment updates language.
[2.25] Section
56 (4), example
omit
specifying
substitute
stating
Explanatory note
This amendment updates language.
[2.26] Section
56 (5) (g)
omit
(in whole or part)
substitute
(completely or partly)
Explanatory note
This amendment updates language.
[2.27] Section
56 (5), examples for par (e), example 1
substitute
1 a provision that a levy is payable within 30 days after the day goods are
sold
Explanatory note
This amendment brings the language of the example into line with current
drafting practice.
[2.28] Section
58 (2) (b)
omit
(in whole or part)
substitute
(completely or partly)
Explanatory note
This amendment updates language.
[2.29] Section
59 (2), example 2
omit
could
substitute
may
Explanatory note
This amendment makes the language of the example consistent with example
1.
omit
the maker of, or the appropriate person for,
substitute
an authorised person for making a notification request for
Explanatory note
This amendment simplifies the subsections by substituting a single
self-explanatory concept for the people who can request notification of the
making of a registrable instrument. The amendment also recognises that, under
the replacement of section 61 (12) by another amendment, usually a
notification request can be made by 1 of a number of people.
omit
the maker of, or appropriate person for,
substitute
an authorised person for making a notification request for
Explanatory note
This amendment is consequential on the amendment of section
61 (1).
substitute
(10) The notification of a registrable instrument is valid even
if—
(a) a prescribed requirement was not complied with; or
(b) the notification was made on the request of a person who was not, or
was no longer, a delegate of an authorised person for making a notification
request for the instrument.
Explanatory note
This amendment ensures the legal effectiveness of the notification of a
registrable instrument made on the request of a person who was not, or was no
longer, a delegate of an authorised person for making a notification request for
the instrument. Once a registrable instrument is notified it will not matter
that there may have been, for example, a defect in a delegation relied on to
make the notification request. The amendment will remove any need for people
seeking to rely on a notified registrable instrument to check the validity of a
delegation used in making the notification request. The amendment complements
the judicial notice provision about notification made by the Legislation Act,
section 26 (1) (b) and section 242 (Delegation not affected by defect
etc).
substitute
(12) In this section:
authorised person, for making a notification request for a
registrable instrument, means—
(a) the maker of the instrument; or
(b) for a registrable instrument made by the Executive—a Minister or
chief executive; or
(c) for a registrable instrument made by a Minister—a chief
executive; or
(d) for a registrable instrument made by the rule-making
committee—
(i) the secretary of the committee; or
(ii) the registrar of a court or tribunal in relation to which the
instrument applies; or
(e) for any other registrable instrument made by a court or tribunal, or
by a member (however described) of a court or tribunal—the registrar of
the court or tribunal; or
(f) for any other registrable instrument (other than an instrument
prescribed by regulation for this paragraph)—a chief executive;
or
(g) for a registrable instrument prescribed by regulation for this
paragraph—a person prescribed by regulation as an authorised person for
making a notification request for the instrument.
rule-making committee means the rule-making committee
established under the Court Procedures Act 2004.
Explanatory note
This amendment simplifies existing section 61 by including the maker of a
registrable instrument within the definition of authorised person
for making a notification request for the instrument. It also broadens, in a
number of respects, the people who (apart from the maker) can request the
notification of registrable instruments.
First, the definition of authorised person, paragraph (b)
will allow any Minister or chief executive to request the notification of a
registrable instrument made by the Executive. Under the existing definition of
appropriate person a notification request for an Executive
instrument can only be made by a Minister. However, in practice registrable
instruments made by the Executive are notified under a delegation made by a
Minister (usually the Chief Minister) to a chief executive (usually the Chief
Executive, Chief Minister’s Department) and a subdelegation made by the
chief executive to the public servants who in fact make the notification
requests. Paragraph (b) will allow this process to be simplified.
Second, the definition of authorised person, paragraph (c)
will allow any chief executive to request the notification of a registrable
instrument made by a Minister. Under the Legislation Regulation 2003,
section 11 a notification request for a Ministerial instrument can only be made
by the chief executive of the administrative unit responsible for the provision
under which the instrument is made. In practice this has been unnecessarily
restrictive. For example, it can be more convenient for concurrent notification
requests to be made for a Ministerial instrument (eg a disallowable instrument
or commencement notice) that is made as part of a package with an Executive
instrument (eg a regulation). At present this can only be achieved through
delegations between administrative units.
Third, the definition of authorised person, paragraph (d)
will allow notification requests for registrable instruments made by the
rule-making committee under the Court Procedures Act 2004 to be made
by the secretary of the committee or the registrar of a court or tribunal in
relation to which the instrument applies. This will remove the need for the
Chief Justice to appoint people for making notification requests. The amendment
inserts a definition of rule-making committee for the
paragraph.
Fourth, the definition of authorised person, paragraph (e)
will allow notification requests for any other registrable instruments made by a
court or tribunal (or a member of the court or tribunal) to be made by the
registrar of the court or tribunal.
Fifth, the definition of authorised person, paragraphs (f)
and (g) will allow a notification request for any other registrable instrument
to be made by any chief executive or someone prescribed by regulation. Under
the Legislation Regulation 2003, section 11 such a notification request
can only be made by the chief executive of the administrative unit responsible
for the provision under which the instrument is made. In practice this has been
unnecessarily restrictive.
Although the amendment broadens the people who can request the notification
of registrable instruments, it does not affect the power to make registrable
instruments (nor the people who can make registrable instruments).
omit
under
substitute
in accordance with
Explanatory note
This amendment tightens language.
[2.35] Section
65 (2) (a)
substitute
(a) on the day after the day the disallowance is notified; or
Explanatory note
This amendment brings the default repeal commencement provision for
disallowances of subordinate laws or disallowable instruments arising from
Legislative Assembly resolutions into line with the default commencement
provision for Acts and registrable instruments under the Legislation Act,
section 73.
omit
after the disallowance
substitute
after the day of the disallowance
Explanatory note
This amendment expressly provides that, in working out the period within
which a law the same in substance as a disallowed law must not be made, the day
of the disallowance is not counted. The amendment is in accordance with current
drafting practice and reflects the present position under the Legislation Act,
section 151 (2) and (3) (b).
[2.37] Section
68 (3) (a)
substitute
(a) on the day after the day the amendment is notified; or
Explanatory note
This amendment brings the default commencement provision for amendments of
subordinate laws or disallowable instruments arising from Legislative Assembly
resolutions into line with the default commencement provision for Acts and
registrable instruments under the Legislation Act, section 73.
omit
after the making of the amendment
substitute
after the day the amendment is made
Explanatory note
This amendment expressly provides that, in working out the period within
which a law the same in substance as a subordinate law or disallowable
instrument amended by resolution of the Legislative Assembly must not be made,
the day the amendment is made is not counted. The amendment is in accordance
with current drafting practice and reflects the present position under the
Legislation Act, section 151 (2) and (3) (b).
[2.39] Section
71 (1) (a)
omit
after the instrument
substitute
after the day the instrument
Explanatory note
This amendment clarifies how to work out a period required for the
application of this section. The amendment is in accordance with current
drafting practice and reflects the present position under the Legislation Act,
section 151 (2) and (3) (b).
[2.40] Section
71 (1) (b)
omit
after the notice
substitute
after the day the notice
Explanatory note
This amendment clarifies how to work out a period required for the
application of this section. The amendment is in accordance with current
drafting practice and reflects the present position under the Legislation Act,
section 151 (2) and (3) (b).
[2.41] Section
72, definition of law
substitute
law means an Act or statutory instrument.
Note A reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument (see s 7 and s 13).
Explanatory note
This amendment revises the definition to omit unnecessary words. Under the
definitions of Act and statutory instrument in
sections 7 and 13, a reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument. The amendment also inserts a
note to this effect.
[2.42] Section
73 (2), examples for par (b), example 2
substitute
2 A disallowable instrument may provide that it commences on the
commencement of a stated law or a stated provision of a stated law.
Explanatory note
This amendment amends the example to reflect current drafting practice and
brings the example into line with the Legislation Act, section
79A (3).
omit
may not
substitute
cannot
Explanatory note
This amendment tightens language.
[2.44] Section
79 (4), definition of law
substitute
law means an Act, subordinate law, disallowable instrument or
notifiable instrument.
Note A reference to an Act, subordinate law, disallowable instrument
or notifiable instrument includes a reference to a provision of the Act, law or
instrument (see s 7, s 8, s 9 and s 10).
Explanatory note
This amendment revises the definition to omit unnecessary words. Under the
definitions of Act, subordinate law,
disallowable instrument and notifiable instrument in
sections 7 to 10, a reference to an Act, subordinate law, disallowable
instrument or notifiable instrument includes a reference to a provision of the
Act, law or instrument. The amendment also inserts a note to this
effect.
[2.45] Section
79 (4), definition of postponed law
omit
the notification day
substitute
its notification day
Explanatory note
This amendment tightens language.
[2.46] Section
81 (1), new examples
insert
Examples of powers to which section
applies
1 power to delegate a function
2 power to give or issue an approval, consent, licence, permit or other
authority (however described)
3 power to make an acting appointment
4 power to issue guidelines
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Explanatory note
This amendment includes examples of powers to which section 81 applies.
The examples are largely drawn from section 94 (Continuance of appointments etc
made under amended provisions).
[2.47] Section
82, definition of law
substitute
law means an Act or statutory instrument.
Note A reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument (see s 7 and s 13).
Explanatory note
This amendment revises the definition to omit unnecessary words. Under the
definitions of Act and statutory instrument in
sections 7 and 13, a reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument. The amendment also inserts a
note to this effect.
omit
begun
substitute
started
Explanatory note
This amendment updates language.
[2.49] Section
84A (4), definition of law
substitute
law means an Act or subordinate law.
Note A reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument (see s 7 and s 8).
Explanatory note
This amendment revises the definition to omit unnecessary words. Under the
definitions of Act and subordinate law in sections 7
and 8, a reference to an Act or subordinate law includes a reference to a
provision of the Act or law. The amendment also inserts a note to this
effect.
[2.50] Section
88 (1) (b)
omit
otherwise
Explanatory note
This amendment omits an unnecessary word.
[2.51] New
section 88 (1A)
insert
(1A) Subsection (1) does not apply to a declaration or validation that is
made by a law modifying another law.
Explanatory note
This amendment makes it clear that the effect of a modification ends when
the modification ends and is not saved by section 88 (1).
renumber subsections when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new section
88 (1A) by another amendment.
[2.53] Section
89 (12), definition of amending law, paragraph
(b)
substitute
(b) a preamble or recital (however described);
Explanatory note
This amendment expands the paragraph to include recitals (which are
sometimes used in statutory instruments) in the definition of amending
law.
[2.54] Section
89 (12), definition of amending law, paragraph (f), new
note
insert
Note A note itself is not part of an Act or statutory instrument
(see s 127).
Explanatory note
This amendment includes a note drawing attention to the legal status of
notes.
[2.55] Section
89, example 1
after
12 April 2002.
insert
The Act is automatically repealed under section 89 on the day after all of
its provisions have commenced, 13 April 2002.
Explanatory note
This amendment adds material to the example to explain when the Act given
in the example is automatically repealed.
[2.56] Section
89, example 2
after
subsection (1).
insert
It is, therefore, not automatically repealed under section 89.
Explanatory note
This amendment adds material to the example to state expressly that the Act
given in the example is not automatically repealed under section 89.
substitute
(8) In applying this section to a law that is divided otherwise than into
sections, a reference to a section or subsection is a reference to a
corresponding provision of the law.
Explanatory note
This amendment remakes subsection (8) so that it is expressed to apply to a
law that is divided otherwise than into sections. Existing subsection (8) is
expressed to apply to a statutory instrument or a provision of a schedule to an
Act. However, to simplify the naming of provisions of statutory instruments and
schedules to Acts current drafting practice is to use ‘section’
instead of ‘regulation’ or ‘clause’ and
‘subsection’ instead of ‘subregulation’ or
‘subclause’. Because of the definition of law in
section 82 (and the definitions of Act and statutory
instrument in sections 7 and 13), the remade subsection will also apply
to provisions of an Act or statutory instrument (eg a schedule that sets out a
list of items).
[2.58] Section
92 (1), example
omit
and twice in section 20 (3)
substitute
, twice in section 20 (3), once in an example to section 20 (4)
and twice in a note to section 20 (5)
Explanatory note
This amendment amends an example to expressly cover notes and
examples.
substitute
(10) In applying this section to a law that is divided otherwise than into
sections, a reference to a section or subsection is a reference to a
corresponding provision of the law.
Explanatory note
This amendment remakes subsection (10) so that it is expressed to apply to
a law that is divided otherwise than into sections. Existing subsection (10) is
expressed to apply to a statutory instrument or a provision of a schedule to an
Act. However, to simplify the naming of provisions of statutory instruments and
schedules to Acts current drafting practice is to use ‘section’
instead of ‘regulation’ or ‘clause’ and
‘subsection’ instead of ‘subregulation’ or
‘subclause’. Because of the definition of law in
section 82 (and the definitions of Act and statutory
instrument in sections 7 and 13), the remade subsection will also apply
to provisions of an Act or statutory instrument (eg a schedule that sets out a
list of items).
after
made to
insert
, or in relation to,
Explanatory note
This amendment recognises that the operation of a relocated provision may
be affected by changes made to other provisions of the law to which the
provision is relocated and by existing provisions of that law.
substitute
Chapter 10 Referring to
laws
97 Definitions for ch 10
(1) In this chapter:
ACT law means an Act or statutory instrument.
Note A reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument (see s 7 and s 13).
law means an ACT law or a law of another
jurisdiction.
law of another jurisdiction means an Act or statutory
instrument of another jurisdiction, and includes a provision of an Act or
statutory instrument of another jurisdiction.
Note Another jurisdiction means the Commonwealth, a State,
another Territory, the United Kingdom or New Zealand (see dict, pt 2).
(2) In this section:
Act, in relation to another Territory, includes
ordinance.
statutory instrument, of another jurisdiction, means an
instrument (whether or not legislative in nature) made under—
(a) an Act of the other jurisdiction; or
(b) another statutory instrument of the other jurisdiction; or
(c) power given by an Act or statutory instrument of the other
jurisdiction and also power given otherwise by law.
98 References to ACT law include law containing
reference
In an ACT law, a reference in general terms to an ACT law of the same kind
includes a reference to the law itself.
Example
The ABC Act 2001, section 27 gives a power to confiscate property
under certain circumstances. Section 93 of the same Act provides ‘If an
Act authorises the confiscation of property, the owner of the property has a
right of appeal to the Magistrates Court.’ The right of appeal under
section 93 also applies to the power given by section 27 because the reference
to ‘an Act’ in section 93 includes a reference to the ABC Act
2001.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see s 126 and s 132).
99 References in ACT statutory instruments to the
Act
In a statutory instrument, a reference to Act or the
Act, without mentioning a particular Act, is a reference to the Act
under which the instrument is made or in force.
100 Referring to particular ACT
laws
(1) An Act may be referred to by—
(a) the name the Act gives to itself; or
(b) the year it was passed and its number, together with a reference (if
necessary) to indicate that it is an Act.
Example of reference to indicate
Act
An Act may be referred to using the word Act or the letter ‘A’
(eg ‘A1993-1’ is a reference to Act No 1 of 1993).
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see s 126 and s 132).
(2) A statutory instrument may be referred to by—
(a) any name the instrument gives to itself; or
(b) if the instrument was notified in the register or gazette and was
numbered under this Act or another territory law—the year it was notified
and its number, together with a reference (if necessary) to the kind of
instrument; or
(c) if the instrument was not notified but was numbered under a territory
law—the year it was made and its number, together with a reference (if
necessary) to the kind of instrument; or
(d) if the instrument was notified in the gazette before the commencement
of this Act—the number, date and page of the gazette where it was
notified; or
(e) the date it was made, together with a reference to the Act or
statutory instrument under which it was made.
Examples of references to kind of instrument
for par (b)
1 A subordinate law may be referred to using the letters ‘SL’
(eg ‘SL2000-11’ is a reference to subordinate law No 11 of
2000).
2 A disallowable instrument may be referred to using the letters
‘DI’ (eg ‘DI1997-101’ is a reference to
disallowable instrument No 101 of 1997).
3 A notifiable instrument that is not an approved form may be referred to
using the letters ‘NI’ (eg ‘NI2002-226’ is a reference
to notifiable instrument No 226 of 2002).
4 An approved form may be referred to using the letters ‘AF’
(eg ‘AF2003-1’ is a reference to approved form No 1 of
2003).
5 A commencement notice may be referred to using the letters
‘CN’ (eg ‘CN2002-3’ is a reference to commencement
notice No 3 of 2002).
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see s 126 and s 132).
101 Referring to particular laws of other
jurisdictions etc
(1) In an ACT law, a law of another jurisdiction (the relevant
law) may be referred to—
(a) by the name the relevant law gives to itself; or
(b) in any other way sufficient in a law of the other jurisdiction for
referring to the relevant law; or
(c) in any way that, under current legislative drafting practice, would be
sufficient for referring to the relevant law if it were an ACT law;
together with a reference to the jurisdiction (or an abbreviation of the
jurisdiction).
(2) In an ACT law, a provision of a law of another jurisdiction may be
referred to—
(a) in a way sufficient in a law of the other jurisdiction for referring
to the provision; or
(b) in any way that, under current legislative drafting practice, would be
sufficient for referring to the provision if it were a provision of an ACT
law.
(3) Subsection (2) does not limit any other provision of this
chapter.
102 References to laws include references to laws as
in force from time to time
(1) In an ACT law, a reference to a law includes a reference to the
following:
(a) the law as originally made, and as amended from time to time since it
was originally made;
(b) if the law has been repealed and remade (with or without changes)
since the reference was made—the law as remade (or last remade), and as
amended from time to time since it was remade (or last remade);
(c) if a relevant provision of the law has been omitted and remade (with
or without changes) in another law since the reference was made—the law in
which the provision was remade (or last remade), as in force when the provision
was remade (or last remade), and as amended from time to time since the
provision was remade (or last remade).
(2) In an ACT law, a reference to a provision of a law includes a
reference to the following:
(a) the provision as originally made, and as amended from time to time
since it was originally made;
(b) if the provision has been omitted and remade (with or without changes
and whether in the law or another law) since the reference was made—the
provision as remade (or last remade), and as amended from time to time since it
was remade (or last remade).
(3) To remove any doubt, if the name of a law is amended, a reference in
an ACT law to the law by its name before the amendment includes a reference to
the law by its name as amended.
(4) This section is subject to section 47 (Statutory instrument may make
provision by applying law or instrument).
(5) In this section:
made includes enacted.
103 References to repealed laws
In an ACT law, a reference to a law as repealed is a reference to the law
as in force immediately before it was repealed.
Example
A reference to the ‘XYZ Act 2000 (repealed)’ is a
reference to the XYZ Act 2000 immediately before it was
repealed.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see s 126 and s 132).
104 References to laws include references to
instruments under laws
(1) In an ACT law, a reference (either generally or specifically) to a law
includes a reference to the statutory instruments made or in force under the
law.
(2) In subsection (1), a reference to the statutory instruments made or in
force under the law includes a reference to any law or instrument applied,
adopted or incorporated (with or without change) under the law.
(3) This chapter applies to an instrument applied, adopted or incorporated
under a law as if—
(a) the instrument were a law; and
(b) any other necessary changes were made.
(4) In this section:
statutory instrument, of another jurisdiction—see
section 97 (2).
105 Referring to provisions of
laws
In an ACT law, a provision of a law may be referred to by reference to the
provision of the law in which it is contained.
Example
Paragraph (b) of subsection (2) of section 10 of an Act may be referred to
by reference to the section, subsection and paragraph, that is, as section 10
(2) (b).
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see s 126 and s 132).
106 References to provisions of laws are
inclusive
In an ACT law, a reference to any part of a law is a reference to the
following:
(a) the provision of the law that begins the part;
(b) the provision of the law that ends the part;
(c) any provision of the law between the beginning and end of the
part.
Examples
1 A reference to ‘sections 5 to 9’ includes both section 5 and
section 9.
2 A reference to ‘sections 260 to 264’ includes a provision
such as a part heading between section 260 and section 261.
3 A reference to ‘from child to adult’ includes
both the word ‘child’ and the word ‘adult’.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see s 126 and s 132).
106A References to paragraphs etc of
laws
(1) In an ACT law, a reference to a paragraph of a provision of a law
includes any words in the provision before or after the paragraph that are
necessary or desirable to make the reference meaningful.
Example
A subsection may be divided into paragraphs as follows:
‘(2) An application must be—
(a) in writing; and
(b) accompanied by a copy of the advertisement of the applicant’s
intention to apply.’
Paragraphs form part of the sentence in which they are contained. A
reference to paragraph (a) in this example that did not include the preceding
words ‘An application must be’ would be meaningless. Section 106A
therefore allows the paragraph to be read with those words so that it makes
sense.
Note 1 Although this section contains a reference to an ACT law and
a reference to a law, s 98 makes it clear that the references can be to the same
law.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see s 126 and s 132).
(2) In this section:
paragraph includes a subparagraph and a
sub-subparagraph.
Explanatory note
This amendment remakes chapter 10 (Referring to laws) to simplify its
provisions and reorganise them into a more logical arrangement. The
simplification is achieved largely by the insertion of new definitions of
ACT law, law and law of another
jurisdiction for the chapter in new section 97.
The definition of ACT law includes all statutory instruments.
At present a number of provisions of the chapter distinguish between subordinate
laws and disallowable instruments and other statutory instruments (see eg
existing section 97). There is no reason in principle why this distinction
needs to be maintained as a general rule. There is in fact considerable
advantage to users of ACT legislation in having the provisions of the chapter
apply as consistently as possible to all statutory instruments.
The definitions of law and law of another jurisdiction
are inserted to enable the provisions of the chapter to be simplified.
The definition of law of another jurisdiction provides a
definition for certain other jurisdictions equivalent to the definition of
ACT law. The definition of statutory instrument in
new section 97 (2) mirrors the existing definition of statutory
instrument in the Legislation Act, section 13. Another
jurisdiction is defined (in a definition being inserted in the
dictionary, part 2 by another amendment) to include the Commonwealth, a State,
another Territory, the United Kingdom and New Zealand. The application of the
definition has the effect of extending the operation of the chapter to
references to United Kingdom and New Zealand laws. Most, but not all, of the
provisions of the chapter already operate in relation to references to laws of
the Commonwealth, a State or a Territory. Presently only existing section 99
(Referring to particular Acts) and existing section 100 (Referring to statutory
instruments) apply to United Kingdom laws. None of the provisions of the
chapter presently apply to New Zealand laws even though New Zealand laws are
occasionally referred to in ACT laws.
The new definitions are inserted at the beginning of the chapter as new
section 97. The subsequent sections of new chapter 10 are organised as
follows:
• new sections 98 to 100 deal with references to ACT laws
only
• new section 101 deals with references to laws of other
jurisdictions only
• new sections 102 to 104 deal with references to laws generally (ie
ACT laws and laws of other jurisdictions)
• new sections 105 to 106A also apply to references to laws generally
but focus on references to provisions of those laws.
The following table lists the provisions of existing chapter 10 and the
corresponding provision of the new chapter.
Provision of existing ch 10
|
Corresponding provision of new ch 10
|
section 97 (References to law or instrument include law or instrument
containing reference)
|
section 98 (References to ACT law include law containing
reference)
|
section 98 (Referring to laws in general terms)
|
[covered by general provisions]
|
section 99 (Referring to particular Acts)
|
s 100 (1) (Referring to particular ACT laws)
s 101 (Referring to particular laws of other jurisdictions etc)
|
section 100 (Referring to statutory instruments)
|
section 100 (2) (Referring to particular ACT laws)
section 101 (Referring to particular laws of other jurisdictions
etc)
|
section 101 (Referring to provisions of laws or instruments)
|
section 105 (Referring to provisions of laws)
|
section 101A (Reference to provisions of law or instrument is
inclusive)
|
section 106 (References to provisions of laws are inclusive)
|
section 101B (References to paragraphs etc)
|
section 106A (References to paragraphs etc of laws)
|
section 102 (Meaning of references to a law or instrument
generally)
|
section 102 (References to laws include references to laws as in force from
time to time)
|
section 103 (References to laws and instruments with amended
names)
|
section 102 (3)
|
section 104 (References to laws include references to instruments under
laws)
|
section 104 (References to laws include references to instruments under
laws)
|
section 105 (References in statutory instruments to the
Act)
|
section 99 (References in ACT statutory instruments to the
Act)
|
section 106 (References to repealed laws)
|
section 103 (References to repealed laws)
|
Most provisions of existing chapter 10 have been consequentially amended
and substantially simplified (eg by removing section definitions and redundant
words) because of the new definitions.
In addition, the headings of a number of sections have been changed to more
accurately indicate their scope and content. For example, the heading to
existing sections 97, 99 and 105 have been changed to make it clear to the
reader that the sections are only about ACT laws.
Additional changes made to particular sections are noted below.
New section 100 has been revised to bring the section more closely
into line with the provisions of the Legislation Act about the numbering of Acts
and registrable instruments (see section 27 and section 59). In
particular, new section 100 (2) now deals separately with instruments that
have been notified and numbered under a territory law and instruments that have
not been notified but have been numbered under a territory law. For an
instrument that is notified, the year of notification rather than the year of
making is used in referring to the instrument (see Legislation Act, section
59 (1) and section 60 (1) (a)). The existing provision has been
simplified by omitting subsection (1) (c) (iii). That provision is no
longer necessary as all instruments notified in the register are numbered and so
are covered by new section 100 (2) (b).
New section 101 is about referring to laws, and provisions of laws,
of other jurisdictions. The section replaces in a simplified form the existing
provisions of section 99 (2) to (4) and section 100 (2) to (4).
Subsection (1) recognises that current ACT legislative drafting practice is used
in referring to all laws (including laws of other jurisdictions). For example,
ACT legislative styles in the use of italics in legislation names are used
rather than any different style of another jurisdiction. Subsection (2)
recognises that current ACT legislative drafting practice is used in referring
to the provisions of all laws (including laws of other jurisdictions). For
example, Commonwealth provisions are referred to using ACT legislative reference
styles rather than Commonwealth styles eg ‘section 20 (1)’
rather than ‘subsection 20 (1)’.
Existing section 99 (2) to (4) covers references to Acts and
ordinances of the Commonwealth, a State, another Territory and the United
Kingdom. Existing section 100 (2) to (4) covers references to instruments
of the Commonwealth, a State, another Territory and the United Kingdom. The
amendment broadens the existing provisions to include references to laws of New
Zealand.
New subsection (3) makes it clear that other provisions of the chapter
apply to references to provisions of laws of other jurisdictions eg new section
102 (References to laws include references to laws as in force from time to
time), new section 105 (Referring to provisions of laws), new section 106
(References to provisions of laws are inclusive) and new section 106A
(References to paragraphs etc of laws).
New section 102 (1) and (2) has been revised to clarify its
operation to laws and provisions that have been remade more than once. In this
case, a reference to the law or provision includes a reference to the law or
provision as last remade, and as amended from time to time since then.
New section 102 (3)—under existing section 103, if the
name of a law is amended, a reference to the name includes a reference to the
name as amended. It is likely that this is already covered under the terms of
existing (and proposed replacement) section 102 (1) (a). However, to
remove any doubt the provision is included expressly as new section
102 (3).
New section 104 (3) has been included to apply the provisions
of the chapter to instruments applied, adopted or incorporated under laws. The
subsection will, for example, ensure that new section 106 (References to
provisions of laws are inclusive) applies to a reference to a part of an applied
instrument. This result is achieved in existing chapter 10 by the definitions
of instrument contained in most of the sections of the chapter
(see eg section 101A (2)).
New section 106A extends the operation of existing section 101B to
references to a paragraph of a law of another jurisdiction. The amendment
brings the section into line with other provisions of the chapter that already
apply to references to provisions of laws of other jurisdictions eg existing
section 101 (Referring to provisions of laws or instruments) and existing
section 101A (Reference to provisions of law or instrument is
inclusive).
Existing section 98 is not reproduced in new chapter 10. This is
because the existing section does not add anything that is not already covered
in the Act as amended so separate provision for it is not necessary. For
example, existing section 98 (1) states that an Act may be referred to by
the word ‘Act’ alone. However, the combined effect of the
definition of the term Act in section 7 and the provisions of new
sections 98 and 100 (1) now cover this point. Similarly, the combined
effect of the definition of statutory instrument in section 13 and
the provisions of new sections 98 and 100 (2) cover what existing section
98 (2) provides. In addition, under the Legislation Act, section
122 (1) (b) a reference to anything by name or description is a
reference to the thing of that name or description in or for the Territory
(unless the provision is displaced). A reference to an ‘Act’ or
‘statutory instrument’ without more is, therefore, a reference to an
‘ACT Act’ or ‘ACT statutory instrument’.
[2.62] Section
107, definition of law, new note
insert
Note A reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument (see s 7 and s 13).
Explanatory note
This amendment inserts a new note for consistency with other
amendments.
omit
Explanatory note
This amendment is consequential on the amendments of section 116.
renumber as section 111 (3)
Explanatory note
This amendment is consequential on the omission of section 111 (3) by
another amendment.
[2.65] New
section 116 (1) (o)
insert
(o) is consequential on any amendment made to the law by another law;
or
Explanatory note
The effect of this amendment is to relocate the power to make editorial
amendments consequential on substantive amendments made by laws from part 11.2
(Substantive amendments made by laws) to part 11.3 (Editorial changes). This
power is more appropriately located in part 11.3. In part 11.3 the following
provisions will apply to consequential amendments made under the relocated
power:
• section 115 (Amendments not to change effect)
• section 117 (Legal effect of editorial changes)
• section 118 (Reference to editorial amendments).
Examples of the kinds of amendments that could be made under the power are
inserted by another amendment of section 116.
[2.66] Section
116 (1) (o)
renumber as section 116 (1) (p)
Explanatory note
This amendment is consequential on the insertion of new section
116 (1) (o) by another amendment.
[2.67] Section
116 (1), new examples
insert
Examples of consequential amendments for par
(o)
1 If an amendment adds 1 or more subsections to a section that is not
already divided into subsections, the subsection number (1) may be
inserted.
2 If an amendment omits subsection (1) from a section with
2 subsections, the subsection number (2) may be omitted.
3 If an amendment omits subsection (2) from a series of 4 subsections
(subsections (1) to (4)), subsections (3) and (4) may be renumbered as
subsections (2) and (3).
4 If an amendment adds a new subsection (3A) to a series of
5 subsections (subsections (1) to (5)), the new subsection and subsections
(4) and (5) may be renumbered as subsections (4), (5), and (6).
5 If an amendment omits paragraph (b) from a series of 4 paragraphs
(paragraphs (a) to (d)), paragraphs (c) and (d) may be renumbered as paragraphs
(b) and (c).
6 If an amendment adds a new paragraph (aa) to a series of 3 paragraphs
(paragraphs (a) to (c)), the paragraphs may be renumbered as paragraphs (a),
(b), (c) and (d).
7 If an amendment makes a change mentioned in any of examples 1 to 6, a
cross-reference in any law to any of the provisions that have been renumbered
may be correspondingly renumbered.
8 If an amendment adds a paragraph as the last paragraph in a series of
paragraphs that end in a full stop, the full stop may be changed to a semicolon
and, if the series of paragraphs is joined by a conjunction
(eg ‘and’), the conjunction may be added after the
semicolon.
9 If an amendment omits a section example from a section that has
2 section examples, the number of the remaining example may be
omitted.
10 If an amendment adds a subsection note to a subsection that already has
a subsection note, the notes may be numbered.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Explanatory note
This amendment includes examples of some of the more common consequential
editorial amendments that are authorised by new section 116 (1) (o),
which is inserted by another amendment.
substitute
(2) In this section:
law includes a law of another jurisdiction.
law of another jurisdiction—see section
97 (1).
Explanatory note
This amendment remakes the existing definition of law using
the term ‘another jurisdiction’. A definition of that term is
inserted in the dictionary, part 2 by another amendment. The amendment also
inserts a definition of law of another jurisdiction to clarify the
meaning of that term.
[2.69] Section
125, definition of law
substitute
law means an Act, subordinate law or disallowable
instrument.
Note A reference to an Act, subordinate law or disallowable
instrument includes a reference to a provision of the Act, law or instrument
(see s 7, s 8 and s 9).
Explanatory note
This amendment revises the definition to omit unnecessary words. Under the
definitions of Act, subordinate law and
disallowable instrument in sections 7 to 9, a reference to an Act,
subordinate law or disallowable instrument includes a reference to a provision
of the Act, law or instrument. The amendment also inserts a note to this
effect.
substitute
(8) In applying this section to an Act or statutory instrument that is
divided otherwise than into sections, a reference to a section or subsection is
a reference to a corresponding provision of the Act or instrument.
Note A reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument (see s 7 and s
13).
Explanatory note
This amendment remakes subsection (8) so that it is expressed to apply to
an Act or statutory instrument that is divided otherwise than into sections.
Existing subsection (8) is expressed to apply to a statutory instrument or a
provision of a schedule to an Act. However, to simplify the naming of
provisions of statutory instruments and schedules to Acts current drafting
practice is to use ‘section’ instead of ‘regulation’ or
‘clause’ and ‘subsection’ instead of
‘subregulation’ or ‘subclause’. Because of the
definition of Act and statutory instrument in
sections 7 and 13, the remade subsection will also apply to provisions of an Act
or statutory instrument (eg a schedule that sets out a list of items).
substitute
(6) In applying this section to an Act or statutory instrument that is
divided otherwise than into sections, a reference to a section or subsection is
a reference to a corresponding provision of the Act or instrument.
Note A reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument (see s 7 and s
13).
Explanatory note
This amendment remakes subsection (6) so that it is expressed to apply to
an Act or statutory instrument that is divided otherwise than into sections.
Existing subsection (6) is expressed to apply to a statutory instrument or a
provision of a schedule to an Act. However, to simplify the naming of
provisions of statutory instruments and schedules to Acts current drafting
practice is to use ‘section’ instead of ‘regulation’ or
‘clause’ and ‘subsection’ instead of
‘subregulation’ or ‘subclause’. Because of the
definition of Act and statutory instrument in
sections 7 and 13, the remade subsection will also apply to provisions of an Act
or statutory instrument (eg a schedule that sets out a list of items).
omit
Explanatory note
This amendment omits an unnecessary provision as the provisions to which
this section would apply are now all called sections or subsections.
renumber as section 134 (7)
Explanatory note
This amendment is consequential on the omission of section 134 (7) by
another amendment.
omit
Explanatory note
This amendment omits an unnecessary provision as the provisions to which
this section would apply are now all called sections or subsections.
renumber as section 135 (6)
Explanatory note
This amendment is consequential on the omission of section 135 (6) by
another amendment.
omit
body
substitute
entity
Explanatory note
This amendment updates language. Entity is defined in the
Legislation Act, dictionary, part 1.
[2.77] Section
146 (4), definitions of applicable law and applicable
provision
substitute
applicable law means an Act enacted, or statutory instrument
made, after the application date.
applicable provision means a provision inserted after the
application date into an Act or statutory instrument that is not an applicable
law.
application date means—
(a) for an Act, subordinate law or disallowable
instrument—1 January 2000; and
(b) for any other statutory instrument—1 January 2006.
Explanatory note
This amendment has the effect of extending the operation of section
146 (3), from 1 January 2006, to statutory instruments that are
not subordinate laws or disallowable instruments. Section 146 (3) has
applied to Acts, subordinate laws and disallowable instruments since
1 January 2000.
As a result of section 146 (3), section 146 (which deals with the
meaning of may and must) is a determinative
provision in relation to laws and provisions to which section 146 (3)
applies (but not other laws or provisions). Determinative provisions may only
be displaced expressly or by a manifest contrary intention (see Legislation Act,
section 6).
[2.78] Section
156 (1), new example 3
insert
3 In part 6 of an Act (which is headed ‘Part 6 Complaints’),
the word a is defined in section 50. The section is not divided
into subsections but contains a number of definitions. Section 50 begins with
the words ‘In this part:’. However, the dictionary to the Act
contains the following definition:
a—see section 50.
The definition of a applies to the entire Act (compare
s (2) eg 2).
Explanatory note
This amendment inserts a new example to clarify the application of
definitions in dictionaries. The example is consistent with current drafting
practice.
[2.79] Section
156 (2), example 2
substitute
2 In part 6 of an Act (which is headed ‘Part 6 Complaints’),
the word a is defined in section 50. The section is not divided
into subsections but contains a number of definitions. Section 50 begins with
the words ‘In this part:’. However, the dictionary to the Act
contains the following definition:
a, for part 6 (Complaints)—see section 50.
The definition of a applies to all of part 6, but not to
provisions of the Act outside part 6 (compare s (1) eg 3).
Explanatory note
This amendment revises an example to clarify the application of definitions
that are not in dictionaries. The revised example complements section
156 (1), new example 3 and is consistent with current drafting
practice.
substitute
(4) In applying this section to an Act or statutory instrument that is
divided otherwise than into sections, a reference to a section is a reference to
a corresponding provision of the Act or instrument.
Note A reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument (see s 7 and s
13).
Explanatory note
This amendment remakes subsection (4) so that it is expressed to apply to
an Act or statutory instrument that is divided otherwise than into sections.
Existing subsection (4) is expressed to apply to a statutory instrument or a
provision of a schedule to an Act. However, to simplify the naming of
provisions of statutory instruments and schedules to Acts current drafting
practice is to use ‘section’ instead of ‘regulation’ or
‘clause’ and ‘subsection’ instead of
‘subregulation’ or ‘subclause’. Because of the
definition of Act and statutory instrument in
sections 7 and 13, the remade subsection will also apply to provisions of an Act
or statutory instrument (eg a schedule that sets out a list of items).
[2.81] Section
175, definition of law
substitute
law means an Act, subordinate law or disallowable
instrument.
Note A reference to an Act, subordinate law or disallowable
instrument includes a reference to a provision of the Act, law or instrument
(see s 7, s 8 and s 9).
Explanatory note
This amendment revises the definition to omit unnecessary words. Under the
definitions of Act, subordinate law and
disallowable instrument in sections 7 to 9, a reference to an Act,
subordinate law or disallowable instrument includes a reference to a provision
of the Act, law or instrument. The amendment also inserts a note to this
effect.
[2.82] Section
182, definition of law
substitute
law means an Act or statutory instrument.
Note A reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument (see s 7 and s 13).
Explanatory note
This amendment revises the definition to omit unnecessary words. Under the
definitions of Act and statutory instrument in
sections 7 and 13, a reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument. The amendment also inserts a
note to this effect.
substitute
183 Change of name of entity
(1) If a law changes the name of an entity established under a law, the
entity continues in existence under the new name and its identity is not
affected by the change.
(2) If the name of an entity is changed, a reference in a law to the
entity by its previous name is taken, after the change, to be a reference to the
entity by its new name.
(3) To remove any doubt, subsection (2) applies to all entities, whether
or not in or for the Territory, including entities established under a law of
another jurisdiction.
Note Another jurisdiction means the Commonwealth, a State,
another Territory, the United Kingdom or New Zealand (see dict, pt 2).
Explanatory note
Existing section 183 deals with the effect of a change of the name on the
status of an entity established under an ACT law. The section also deals with
the operation of references in ACT laws to the entity by its previous name. The
amendment remakes the section to deal with the operation of references in ACT
laws to an entity that is not established under ACT law. The remade section
will, for example, deal with references in ACT laws to an entity established
under a Commonwealth law by a previous name.
insert
184A References to entity
(1) In a law, a reference to an entity includes a reference to a person
exercising a function of the entity, whether under a delegation, subdelegation
or otherwise.
(2) To remove any doubt, this section applies to all entities, whether or
not in or for the Territory, including entities established under a law of
another jurisdiction.
Explanatory note
This amendment inserts a new section to make it clear that a reference in
an ACT law to an entity established otherwise than under ACT law includes a
reference to a person exercising a function of the entity, whether under a
delegation, subdelegation or otherwise. The Legislation Act, section
239 (2) already deals with delegates and subdelegates of entities
established under ACT law. The amendment complements the amendments of section
185.
omit
In
substitute
(1) In
Explanatory note
This amendment is consequential on the insertion of new section
185 (2) by another amendment.
[2.86] New
section 185 (2)
insert
(2) To remove any doubt, this section applies to all positions, whether or
not in or for the Territory, including positions established under a law of
another jurisdiction.
Explanatory note
This amendment makes it clear that section 185 (which is about the meaning
of references to the occupant of a position) applies to all positions and not
just positions established under ACT law. Although section 185 is presently
expressed in sufficiently general terms to cover all positions, it is arguable
that, because of the Legislation Act, section 122 (1) (b), the section
only applies to positions in or for the Territory. On this basis, the section
may not, for example, presently apply to references in ACT law to positions
established under Commonwealth law eg the commissioner of police or chief
police officer. The amendment will remove any doubt that the section applies to
all references in ACT law to the occupants of positions, whether or not the
positions are established under ACT law.
substitute
186 Change of name of position
(1) If a law changes the name of a position established under a law, the
position continues in existence under the new name and its identity is not
affected by the change.
(2) If the name of a position is changed, a reference in a law to the
position by its previous name is taken, after the change, to be a reference to
the position by its new name.
(3) To remove any doubt, subsection (2) applies to all positions, whether
or not in or for the Territory, including positions established under a law of
another jurisdiction.
Explanatory note
Existing section 186 deals with the effect of a change of the name on the
status of a position established under an ACT law. The section also deals with
the operation of references in ACT laws to the position by its previous name.
The amendment remakes the section to deal with the operation of references in
ACT laws to a position that is not established under ACT law. The remade
section will, for example, deal with references in ACT laws to a position
established under a Commonwealth law by a previous name.
substitute
187 Chair and deputy chair etc
(1) If a law establishes a position of chair or chairperson of an entity,
the chair or chairperson may be referred to as chairman, chairwoman, chairperson
or chair.
(2) If a law establishes a position of deputy chair or deputy chairperson
of an entity, the deputy chair or deputy chairperson may be referred to as
deputy chairman, deputy chairwoman, deputy chairperson or deputy
chair.
Explanatory note
This amendment updates the provision to allow for laws that establish a
position of ‘chair’ or ‘deputy chair’.
substitute
188 Meaning of ACT law in ch
18
In this chapter:
ACT law means an Act or subordinate law.
Note A reference to an Act or subordinate law includes a reference
to a provision of the Act or law (see s 7 and s 8).
Explanatory note
This amendment changes the defined term from territory law to
ACT law for consistency with the equivalent defined term proposed
for chapter 10 by another amendment. The replacement definition has been
simplified by omitting unnecessary words.
omit
a territory law
substitute
an ACT law
Explanatory note
This amendment is consequential on the use of the defined term ACT
law rather than the defined term territory law.
omit
the territory law
substitute
the ACT law
Explanatory note
This amendment is consequential on the use of the defined term ACT
law rather than the defined term territory law.
[2.92] Section
190 (1) (b)
omit
a law
substitute
an ACT law
Explanatory note
This amendment ensures that the definition of ACT law
proposed for section 188 applies to the paragraph.
omit
territory laws
substitute
ACT laws
Explanatory note
This amendment is consequential on the use of the defined term ACT
law rather than the defined term territory law.
[2.94] Section
191 (2) (a)
omit
a territory law
substitute
an ACT law
Explanatory note
This amendment is consequential on the use of the defined term ACT
law rather than the defined term territory law.
omit
the territory law
substitute
the ACT law
Explanatory note
This amendment is consequential on the use of the defined term ACT
law rather than the defined term territory law.
omit
Explanatory note
This amendment omits a subsection that contains a definition made redundant
by the definition of another jurisdiction inserted into the
dictionary, part 2 by another amendment.
omit
a territory law
substitute
an ACT law
Explanatory note
This amendment is consequential on the use of the defined term ACT
law rather than the defined term territory law.
[2.98] Section
193 (1) (a)
omit
a law
insert
an ACT law
Explanatory note
This amendment ensures that the definition of ACT law
proposed for section 188 applies to the paragraph.
[2.99] Section
195, definition of law
substitute
law means an Act, subordinate law or disallowable
instrument.
Note A reference to an Act, subordinate law or disallowable
instrument includes a reference to a provision of the Act, law or instrument
(see s 7, s 8 and s 9).
Explanatory note
This amendment revises the definition to omit unnecessary words. Under the
definitions of Act, subordinate law and
disallowable instrument in sections 7 to 9, a reference to an Act,
subordinate law or disallowable instrument includes a reference to a provision
of the Act, law or instrument. The amendment also inserts a note to this
effect.
[2.100] Section
197, note
omit
42 (2)
substitute
42 (3)
Explanatory note
This amendment is consequential on the renumbering of section 42 (2) and
(3) by another amendment.
substitute
(2) The power to suspend the appointee, end the appointment or reappoint
the appointee is exercisable in the same way, and subject to the same
conditions, as the power to make the appointment.
Example
If the appointment power is exercisable only on the recommendation of a
body, the power to suspend, end the appointment or reappoint is exercisable only
on the recommendation of the body.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see s 126 and s 132).
Explanatory note
Section 208 provides that the power to appoint a person includes the power
to suspend the person, end the person’s appointment or reappoint the
person. It also provides that the power to suspend or end the appointment is
exercisable in the same way and subject to the same conditions as the power to
make the appointment. This amendment will extend the section so that the power
to reappoint a person will also be exercisable in the same way and subject to
the same conditions as the power to make the appointment. The example is
consequentially updated.
[2.102] Section
225B heading
substitute
225B Person acting under standing acting arrangement
may exercise functions etc
Explanatory note
This amendment revises the section heading to more clearly reflect the
scope of the section.
omit
(1)
Explanatory note
This amendment is consequential on the omission of section 230 (2) by
another amendment.
omit
Explanatory note
This amendment omits a subsection that is no longer necessary because of
the express way in which delegations (and subdelegations) are created in ACT
law. The omission of the subsection will remove any argument that the
subsection itself creates a delegation power.
omit
in whole or part
substitute
completely or partly
Explanatory note
This amendment updates language.
[2.106] Section
250 heading
substitute
250 When document taken to be
served
Explanatory note
This amendment updates language.
substitute
(1) This section applies if an Act, subordinate law or disallowable
instrument (the authorising law) authorises or requires a form to
be approved or prescribed under an Act or statutory instrument (the
relevant law).
Note See also s 46 (3), which deals with the repeal and replacement
of forms that are registrable instruments and prevents their
amendment.
Explanatory note
This amendment extends the operation of the section to cases where a
subordinate law or disallowable instrument authorises or requires a form to be
approved or prescribed.
[2.108] Section
255 (3), example
substitute
Example
The X Act, section 23 provides for a person to apply for registration but
makes no mention of a form for the application. However, the Act, section 80
(1) provides:
(1) The Minister may approve forms for this Act.
Because section 80 (1) permits a form to be approved ‘for this
Act’, this Act, section 255 applies in relation to section 23 and the
Minister may, in writing, approve a form for the application.
Note 1 The approval must be in writing (see s
42 (2)).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see s 126 and s 132).
Explanatory note
This amendment is consequential on the insertion of a new section
42 (2) by another amendment.
[2.109] Section
256 (1) (b)
omit
a law requires the person
substitute
the person is required under a law
Explanatory note
This amendment widens the language of the provision so that it applies to a
requirement made under a law as well as a requirement made by the law (see
Legislation Act, dictionary, part 1, definition of
under).
[2.110] Dictionary,
part 1, definition of Act, note
substitute
Note See also s 102 (References to laws include references to laws
as in force from time to time) and s 104 (References to laws include references
to instruments under laws).
Explanatory note
This amendment is consequential on the amendment of the section heading to
section 102 by another amendment.
[2.111] Dictionary,
part 1, definition of amend, paragraph (d)
omit
alter; and
substitute
alter.
Explanatory note
This amendment is consequential on the next amendment.
[2.112] Dictionary,
part 1, definition of amend, paragraph (e)
omit
Explanatory note
This amendment omits a paragraph of the definition of amend
that only applies within the Legislation Act. The paragraph is remade as a
definition in the dictionary, part 2 by another amendment. The dictionary, part
2 defines terms that apply only to the Legislation Act.
[2.113] Dictionary,
part 1, definition of auditor-general
substitute
auditor-general means the Auditor-General for the Territory
under the Auditor-General Act 1996.
Explanatory note
This amendment remakes the definition in accordance with current drafting
practice.
[2.114] Dictionary,
part 1, new definition of Australian statistician
insert
Australian statistician means the Australian Statistician
under the Australian Bureau of Statistics Act 1975 (Cwlth).
Explanatory note
This amendment inserts a new definition that will apply across the ACT
statute book.
[2.115] Dictionary,
part 1, new definition of by
insert
by regulation includes under a regulation.
Explanatory note
This amendment defines by in relation to a regulation to
include under a regulation. Current drafting practice is to use the expression
‘prescribed by regulation’ instead of ‘prescribed under the
regulations’. The amendment ensures that the expression keeps the wider
meaning provided by the definition of under in the dictionary,
part 1.
[2.116] Dictionary,
part 1, definition of by-laws
substitute
by-law, in relation to an Act, means a by-law made or in
force under the Act.
Explanatory note
This amendment changes the defined term to the singular consistent with the
amendment of the definition of the term regulations by another
amendment.
[2.117] Dictionary,
part 1, definition of chief planning executive
substitute
chief planning executive means the Chief Planning Executive
under the Planning and Land Act 2002.
Explanatory note
This amendment remakes the definition in accordance with current drafting
practice.
[2.118] Dictionary,
part 1, definition of city area, note
substitute
Note See s 103 for the meaning of
references to repealed laws.
Explanatory note
This amendment is consequential on the remaking of chapter 10 (Referring to
laws) by another amendment.
[2.119] Dictionary,
part 1, definition of commissioner for fair trading
substitute
commissioner for fair trading means the Commissioner for Fair
Trading of the Australian Capital Territory under the Fair Trading (Consumer
Affairs) Act 1973.
Explanatory note
This amendment remakes the definition in accordance with current drafting
practice.
[2.120] Dictionary,
part 1, new definition of Commonwealth DPP
insert
Commonwealth DPP means the Director of Public Prosecutions
under the Director of Public Prosecutions Act 1983 (Cwlth).
Explanatory note
This amendment inserts a new definition that will apply across the ACT
statute book.
[2.121] Dictionary,
part 1, definition of construction occupations
registrar
substitute
construction occupations registrar means the Australian
Capital Territory Construction Occupations Registrar under the Construction
Occupations (Licensing) Act 2004.
Explanatory note
This amendment remakes the definition in accordance with current drafting
practice.
[2.122] Dictionary,
part 1, definition of credit tribunal
substitute
credit tribunal means the Australian Capital Territory Credit
Tribunal established under the Consumer Credit (Administration) Act
1996.
Explanatory note
This amendment remakes the definition in accordance with current drafting
practice.
[2.123] Dictionary,
part 1, new definition of Deputy Speaker
insert
Deputy Speaker means the Deputy Presiding Officer of the
Legislative Assembly.
Note The Deputy Presiding Officer is elected under the
Self-Government Act, s 21 (2).
Explanatory note
This amendment inserts a new definition that will apply across the ACT
statute book.
[2.124] Dictionary,
part 1, definition of insolvent under administration
omit
Explanatory note
This amendment omits a redundant definition.
[2.125] Dictionary,
part 1, definition of land development agency
substitute
land development agency means the Land Development Agency
established under the Planning and Land Act 2002.
Explanatory note
This amendment remakes the definition in accordance with current drafting
practice.
[2.126] Dictionary,
part 1, definition of occupy
substitute
occupy a position includes hold the position, act in the
position or exercise functions of the position (including under a delegation or
subdelegation).
Explanatory note
This amendment remakes the definition to make it clear that occupying a
position includes acting in the position under an acting appointment or standing
acting arrangement and exercising functions of the position under a delegation
or subdelegation. The amendment makes explicit the position that is currently
implicit in a number of provisions of the Legislation Act (see section
220 (b), section 225B (2) and section 239 (2)).
[2.127] Dictionary,
part 1, definition of office of fair trading
substitute
office of fair trading means the Office of Fair Trading of
the Australian Capital Territory established under the Fair Trading (Consumer
Affairs) Act 1973.
Explanatory note
This amendment remakes the definition in accordance with current drafting
practice.
[2.128] Dictionary,
part 1, definition of planning and land authority
substitute
planning and land authority means the Planning and Land
Authority established under the Planning and Land Act 2002.
Explanatory note
This amendment remakes the definition in accordance with current drafting
practice.
[2.129] Dictionary,
part 1, definition of planning and land council
substitute
planning and land council means the Planning and Land Council
established under the Planning and Land Act 2002.
Explanatory note
This amendment remakes the definition in accordance with current drafting
practice.
[2.130] Dictionary,
part 1, definition of prescribed
omit
under regulations
substitute
by regulation
Explanatory note
This amendment is consequential on the change mentioned under the
definition of regulations and brings the definition into line with
current drafting practice.
[2.131] Dictionary,
part 1, definition of public health officer
substitute
public health officer means a public health officer under the
Public Health Act 1997.
Explanatory note
This amendment remakes the definition in accordance with current drafting
practice.
[2.132] Dictionary,
part 1, definition of regulations
substitute
regulation, in relation to an Act, means a regulation made or
in force under the Act.
Explanatory note
This amendment changes the defined term to the singular to reflect the
recent name change of ACT regulations to the singular ‘Regulation’
rather than the plural ‘Regulations’.
[2.133] Dictionary,
part 1, definition of repeal, paragraph (f)
omit
cancel it; and
substitute
cancel it.
Explanatory note
This amendment is consequential on the next amendment.
[2.134] Dictionary,
part 1, definition of repeal, paragraph (g)
omit
Explanatory note
This amendment omits a paragraph of the definition of repeal
that only applies within the Legislation Act. The paragraph is remade as a
definition in the dictionary, part 2 by another amendment. The dictionary, part
2 defines terms that apply only to the Legislation Act.
[2.135] Dictionary,
part 1, definition of rules, paragraph (a)
omit
person or body
substitute
entity
Explanatory note
This amendment updates language. Entity is defined in the
dictionary, part 1.
[2.136] Dictionary,
part 1, definition of transitional
substitute
transitional includes application and saving.
Explanatory note
This amendment remakes the definition to expressly include
‘application’. Transitional provisions frequently deal with the
application of new laws and provisions as well as the saving of old laws and
provisions.
[2.137] Dictionary,
part 1, definition of under
omit
or a provision of an Act or statutory instrument
Explanatory note
This amendment omits unnecessary words. Under the definitions of
Act and statutory instrument in sections 7 and 13, a
reference to an Act or statutory instrument includes a reference to a provision
of the Act or instrument.
[2.138] Dictionary,
part 1, definition of under, new note
insert
Note A reference to an Act or statutory instrument includes a
reference to a provision of the Act or instrument (see s 7 and s 13).
Explanatory note
This amendment includes a note consequential on the amendment of the
definition of under by another amendment.
[2.139] Dictionary,
part 2, new definition of ACT law
insert
ACT law—
(a) for chapter 10 (Referring to laws)—see section 97 (1);
and
(b) for chapter 18 (Offences)—see section 188.
Explanatory note
This amendment inserts new signpost definitions in accordance with current
drafting practice.
[2.140] Dictionary,
part 2, new definition of amend
insert
amend, for chapter 9 (Repeal and amendment of laws)—see
section 82.
Explanatory note
This amendment inserts a definition of amend for chapter 9.
The material covered by the definition is currently in a definition in the
dictionary, part 1 and is omitted from that definition by another
amendment.
[2.141] Dictionary,
part 2, new definition of another jurisdiction
insert
another jurisdiction means the Commonwealth, a State, another
Territory, the United Kingdom or New Zealand.
Explanatory note
This amendment inserts a new definition to enable the provisions of the Act
to be simplified.
[2.142] Dictionary,
part 2, definition of law, new paragraph (ca)
insert
(ca) for chapter 10 (Referring to laws)—see section 97 (1);
and
Explanatory note
This amendment is consequential on the insertion of a new definition of
law for chapter 10 by another amendment.
[2.143] Dictionary,
part 2, definition of law, paragraph (g)
omit
section 185
substitute
section 182
Explanatory note
This amendment corrects a cross-reference.
[2.144] Dictionary,
part 2, definition of law
renumber paragraphs when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new paragraph (ca) by
another amendment.
[2.145] Dictionary,
part 2, new definition of law of another
jurisdiction
insert
law of another jurisdiction, for chapter 10 (Referring to
laws)—see section 97 (1).
Explanatory note
This amendment is consequential on the insertion of a new definition of
law of another jurisdiction for chapter 10 by another
amendment.
[2.146] Dictionary,
part 2, definition of referential term
relocate to section 116 (2)
Explanatory note
This amendment relocates the definition to section 116 (2) because the
term is used only in that section.
[2.147] Dictionary,
part 2, new definition of repeal
insert
repeal, for chapter 9 (Repeal and amendment of
laws)—see section 82.
Explanatory note
This amendment inserts a definition of repeal for chapter 9.
The material covered by the definition is currently in a definition in the
dictionary, part 1 and is omitted from that definition by another
amendment.
[2.148] Dictionary,
part 2, definition of retrospectively
relocate to dictionary, part 1
Explanatory note
This amendment relocates the definition to the dictionary, part 1 as it is
appropriate to apply this definition across the ACT statute book.
Part
2.2 Legislation Regulation
2003
[2.149] Section
8 (3) (d)
substitute
(d) whether the person is making the request as an authorised person for
making the request or a delegate.
Explanatory note
This amendment is consequential on amendments of the Legislation Act,
section 61.
[2.150] Section
9 (3) (d)
substitute
(d) whether the person is making the request as an authorised person for
making the request or a delegate.
Explanatory note
This amendment is consequential on amendments of the Legislation Act,
section 61.
[2.151] Section
10 (3) (d)
substitute
(d) whether the person is making the request as an authorised person for
making the request or a delegate.
Explanatory note
This amendment is consequential on amendments of the Legislation Act,
section 61.
omit
Explanatory note
This amendment omits a section made redundant by the remaking of the
Legislation Act, section 61 (12).
[2.153] Dictionary,
definition of appropriate person
substitute
authorised person, for making a notification
request—see the Act, section 61 (12).
Explanatory note
This amendment is consequential on amendments of the Legislation Act,
section 61.
Schedule
3 Technical
amendments
(see s 5)
substitute
(6) Subsections (4) and (5) apply whether or not anyone has been convicted
of an offence against subsection (1).
Explanatory note
This amendment corrects a cross-reference and is made to confirm an
editorial correction made under the Legislation Act, section 114.
[3.2] Section
81, examples for paragraph (c)
substitute
Examples of people who may receive a benefit
for par (c)
1 finance broker
2 financial adviser
3 financier
4 property valuer
5 lawyer
6 real estate agent
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Explanatory note
This amendment removes ‘seller’ as an example for section 81
(c). The seller is expressly excluded from the paragraph.
omit
the agent’s audit period
substitute
an audit period of the agent
Explanatory note
Section 113 (1) provides that the commissioner for fair trading may fix a
period as an agent’s audit period. Section 113 (2) provides that, if no
period is fixed, the audit period is each financial year. This amendment makes
it clear that the audit requirements under section 115 apply whether or not an
audit period is fixed under section 113 (1).
omit everything before
, by written notice
substitute
(2) The commissioner for fair trading may
Explanatory note
This amendment corrects a typographical error and is made to confirm an
editorial correction made under the Legislation Act, section 114.
omit
trustee)—
substitute
trustee), the commissioner must
Explanatory note
This amendment corrects a typographical error.
omit
—decide that the applicant is not entitled to any amount.
substitute
, the commissioner must reject the application.
Explanatory note
This amendment corrects a minor drafting error.
omit
Explanatory note
This amendment omits an unnecessary definition of claim
period. The period for making a claim is set out in section 151
(3).
[3.8] Section
169 (1), definition of relevant matter,
paragraph (b)
substitute
(b) the making of an objection to the issue of a licence or the granting
of registration;
Explanatory note
This amendment brings the reference in the paragraph to registration into
line with similar references to registration elsewhere in the Act.
Part
3.2 Agents Regulation
2003
insert
(4) Subsection (3) and this subsection expire on 1 November
2007.
Explanatory note
This amendment expires section 8A (3). The sections to which section 8A
(3) apply all expire by 1 November 2007.
[3.10] Section
8.1, definition of property manager
substitute
property manager means—
(a) for part 8.2 (General rules applying to all licensees and registered
salespeople)—a person employed by an agent in relation to the management
of property to which division 8.3.3 or division 8.4.2 applies; and
(b) for division 8.3.3 (Property management—real estate
agents)—a person employed by an agent in relation to the management of
property to which the division applies; and
(c) for division 8.4.2 (Property management—stock and station
agents)—a person employed by an agent in relation to the management of
property to which the division applies.
Explanatory note
This amendment corrects the references to ‘this part’ in
paragraphs (b) and (c) of the definition to ‘this
division’.
[3.11] Division
8.3.3 heading
substitute
Division 8.3.3 Property
management—real estate agents
Explanatory note
This amendment revises the heading to more accurately reflect the
division’s application.
[3.12] Division
8.4.2 heading
substitute
Division 8.4.2 Property
management—stock and station agents
Explanatory note
This amendment revises the heading to more accurately reflect the
division’s application.
Part
3.3 Associations Incorporation Act
1991
insert
141 Expiry of pt 11 etc
(1) Section 129 to section 140 are laws to which the Legislation Act,
section 88 (Repeal does not end effect of transitional laws etc)
applies.
(2) This part expires on the day this section commences.
Explanatory note
This amendment expires a transitional part. The amendment makes it clear
that the effect of the provisions is saved under the Legislation Act, section
88.
[3.14] Section
13 (1) (b)
omit
the Magistrates Court Act 1930, section 42 (1)
substitute
the Magistrates Court Act 1930, section 42 (2) (Issue of warrant and
summons)
Explanatory note
This amendment is consequential on the amendment of the Magistrates
Court Act 1930, section 42 by another amendment.
Part
3.5 Births, Deaths and Marriages
Registration Act 1997
substitute
1 Name of Act
This Act is the Births, Deaths and Marriages Registration Act
1997.
Explanatory note
This amendment brings the naming section into line with current drafting
practice.
substitute
6 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere in this Act.
For example, the signpost definition ‘sexual reassignment
surgery—see section 23.’ means that the term ‘sexual
reassignment surgery’ is defined in that section.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the
definition, or another provision of the Act, provides otherwise or the contrary
intention otherwise appears (see Legislation Act, s 155 and
s 156 (1)).
7 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
8 Meaning of adult and
child
In this Act:
adult means a person who—
(a) is at least 18 years old; or
(b) is under 18 years old, but is or has been married.
child means a person other than an adult, and includes a
stillborn child.
Explanatory note
This amendment adds standard dictionary and notes provisions. The
definitions in existing section 4 that are still needed (other than the
definitions of adult and child) are included in the
new dictionary which is inserted by another amendment. The definitions of
adult and child are defined in a separate section
because they are important terms for the Act.
substitute
(2) The birth of a child may be registered under this Act if the
child—
(a) is born outside Australia; and
(b) is to become a resident of the ACT.
Explanatory note
This amendment brings the structure of the subsection into line with
current drafting practice.
substitute
(2) However, the registrar-general may accept a birth registration
statement—
(a) that is signed by only 1 of the parents, if satisfied that it is not
practicable to obtain the signature of the other parent; or
(b) that does not set out particulars required under subsection (1), if
satisfied that it is not practicable to obtain the missing
particulars.
(2A) If the registrar-general accepts a birth registration statement for a
child under subsection (2), a person’s obligation to have the
child’s birth registered under this Act is taken to be
discharged.
Explanatory note
This amendment brings the language and structure of the subsection into
line with current drafting practice.
renumber subsections when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new section 9 (2A) by
another amendment.
omit
subsection (2) and
Explanatory note
This amendment updates the subsection consequentially on the remaking of
section 11 (2) by the next amendment.
substitute
(2) However, if not all the prescribed particulars are available to the
registrar-general, the registrar-general may register a birth by including in
the entry the prescribed particulars that are available to the
registrar-general.
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
substitute
(2) An application to the registrar-general for the addition of
registrable information in the register must—
(a) be made in writing; and
(b) include the information required by the registrar-general;
and
(c) if the registrar-general requires verification of the information in
the application—be accompanied by a statutory declaration verifying the
information and any other evidence that the registrar-general
requires.
Note The Statutory Declarations Act 1959
(Cwlth) applies to the making of statutory declarations under ACT
laws.
Explanatory note
This amendment brings the structure of the subsection into line with
current drafting practice.
substitute
18 Application to register change of adult’s
name
A person who is an adult may apply to the registrar-general for
registration of a change of the person’s name if—
(a) the person is domiciled or resident in the ACT; or
(b) the person’s birth is registered in the ACT.
Note 1 If a form is approved under s 69 for an application, the form
must be used.
Note 2 A fee may be determined under s 67 for this
section.
Explanatory note
This amendment brings the structure of the subsection into line with
current drafting practice.
substitute
(1) The parents of a child may apply to the registrar-general for
registration of a change of the child’s name if—
(a) the child is domiciled or resident in the ACT; or
(b) the child’s birth is registered in the ACT.
Note 1 If a form is approved under s 69 for an application, the form
must be used.
Note 2 A fee may be determined under s 67 for this
section.
Explanatory note
This amendment brings the structure of the subsection into line with
current drafting practice.
substitute
(1) The registrar-general must register a change of name.
Explanatory note
This amendment (and the amendments of section 20 (2) and (3)) brings the
language and structure of the section into line with current drafting
practice.
omit everything before paragraph (a), substitute
(2) However, the registrar-general must not registrar a change of name
unless satisfied—
Explanatory note
This amendment (and the amendments of section 20 (1) and (3)) brings the
language and structure of the section into line with current drafting
practice.
omit
The
substitute
Also, the
Explanatory note
This amendment (and the amendments of section 20 (1) and (2)) brings the
language and structure of the section into line with current drafting
practice.
[3.28] Section
23, definition of birth certificate
omit
Explanatory note
This amendment omits a definition that is included in the new dictionary
inserted by another amendment. The definition is needed outside part 4 (see eg
section 21 (2))
substitute
24 Application to alter register to record change of
sex
(1) A person may apply to the registrar-general for alteration of the
record of the person’s sex in the registration of the person’s birth
if—
(a) the person is at least 18 years old; and
(b) the person’s birth is registered in the ACT; and
(c) the person has undergone sexual reassignment surgery; and
(d) the person is not married.
Note 1 If a form is approved under s 69 for
this provision, the form must be used.
Note 2 A fee may be determined under s 67 for this
provision.
(2) The parents or guardian of a child may apply to the registrar-general
for alteration of the record of the child’s sex in the registration of the
child’s birth if—
(a) the child’s birth is registered in the ACT; and
(b) the child has undergone sexual reassignment surgery.
(3) However, an application under subsection (2) may be made by
1 parent if—
(a) the applicant is the only parent named in the register; or
(b) there is no other surviving parent of the child.
(4) An application under this section must set out, or be accompanied by,
the particulars prescribed by regulation.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
omit
Subject to subsection (2), a
substitute
A
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
[3.31] Section
29 heading
substitute
29 Effect of certificates issued in relation to
transsexual people
Explanatory note
This amendment brings the heading into line with current drafting
practice.
substitute
34 Circumstances in which deaths are not to be
registered
(1) The registrar-general must not register a death unless the
registrar-general has been given—
(a) a notice under section 35; or
(b) a notice under the Coroners Act 1997, section 56; or
(c) a document issued, made or given under the law of a State, the
Commonwealth, another Territory or any other place that the registrar-general is
satisfied is equivalent to a document mentioned in paragraph (a) or
(b).
(2) However, the registrar-general must register a death if
satisfied—
(a) that a court of the Territory, a State, the Commonwealth or another
Territory has found that a person whose death is not registered in the register
died in the ACT; or
(b) that, having regard to the circumstances of the case, it is proper
that the death be registered.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
omit
Explanatory note
This amendment omits a transitional provision that is no longer needed.
Unlike for section 36 (see the next amendment), the operation of this
provision does not need to be expressly saved under the Legislation Act, section
88.
[3.34] New
section 36 (3) and (4)
insert
(3) Subsection (2) is a law to which the Legislation Act, section 88
(repeal does not end effect of transitional laws etc) applies.
(4) Subsections (2) and (3) and this subsection expire on the day this
subsection commences.
Explanatory note
This amendment expires a transitional provision. The amendment makes it
clear that the effect of the provision is saved under the Legislation Act,
section 88.
insert
disposal, in relation to human remains,
means—
(a) cremation; or
(b) burial, including burial at sea; or
(c) placing the remains in a mausoleum or other permanent resting place;
or
(d) placing the remains in the custody of an educational or scientific
institution for the purpose of medical eduction or research; or
(e) removal from the ACT, unless the remains have been cremated.
funeral director means a person who carries on the business
of arranging for the disposal of human remains.
Explanatory note
This amendment adds the definitions disposal and
funeral director to the subsection. These definitions have been moved
from the interpretation section of the Act (existing section 4) to this
subsection because the definitions are only needed for section 37. The
interpretation section is being omitted by another amendment.
substitute
38 How deaths are registered
(1) The registrar-general must register a death by making in the register
an entry about the death that includes the particulars prescribed by
regulation.
(2) However, if not all the prescribed particulars are available for the
registrar-general, the registrar-general may register the death by including in
the entry the prescribed particulars that are available to the
registrar-general.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
[3.37] New
section 39 (6) and (7)
insert
(6) Subsection (5) is a law to which the Legislation Act, section 88
(Repeal does not end effect of transitional laws etc) applies.
(7) Subsections (5) and (6) and this subsection expire on the day this
subsection commences.
Explanatory note
This amendment expires a transitional provision. The amendment makes it
clear that the effect of the provision is saved under the Legislation Act,
section 88.
[3.38] Sections
42 and 43
substitute
42 Access to register
(1) A person may apply to the registrar-general for—
(a) access to the register; or
(b) the provision from the register of the information stated in the
application.
Note A fee may be determined under s 67 for this section.
(2) The registrar-general may give the applicant access to the register,
or give the applicant any of the stated information that is available, if
satisfied that—
(a) the applicant has an adequate reason for wanting the access or the
information; and
(b) the giving of the access or information is in accordance with the
statement of policies under section 46.
(3) The access or information—
(a) must be given subject to the conditions stated in the statement of
policies under section 46; and
(b) may be given subject to any other conditions that are reasonable and
necessary to protect the privacy of anyone to whom an entry in the register
relates.
(4) In deciding, for subsection (2) (a), whether an applicant has an
adequate reason, the registrar-general must have regard to—
(a) the nature of the applicant’s interest; and
(b) the sensitivity of the information to be accessed or provided;
and
(c) the use to be made of the information.
(5) The registrar-general may also have regard to any other relevant
consideration.
(6) In this section:
information does not include information that may be applied
for under section 43.
43 Search of register
(1) A person may apply to the registrar-general for a search of the
register for an entry about a particular registrable event.
Note A fee may be determined under s 67 for this section.
(2) The registrar-general may search the register for the entry if
satisfied that—
(a) the applicant has an adequate reason for wanting the information;
and
(b) the giving of the information is in accordance with the statement of
policies under section 46.
(3) In deciding whether an applicant has an adequate reason, the
registrar-general must have regard to—
(a) the matters mentioned in section 42 (4); and
(b) the relationship (if any) between the applicant and the person to whom
the information relates; and
(c) the age of the entry; and
(d) the contents of the entry.
(4) The registrar-general may also have regard to any other relevant
consideration.
Explanatory note
This amendment brings the language and structure of the sections into line
with current drafting practice.
substitute
(2) For subsection (1) (a), if an entry in the register includes the word
‘illegitimate’, or any other term indicating that a child was born
outside marriage, the entry is taken not to include the word or term.
Explanatory note
This amendment brings the structure of the subsection into line with
current drafting practice.
[3.40] Section
48 (1), new note
insert
Note A provision of a law that gives an entity (including a person)
a function also gives the entity the powers necessary and convenient to exercise
the function (see Legislation Act, s 196 (1) and dict, pt 1, def
entity).
Explanatory note
This amendment inserts a standard note about the power to exercise
functions.
[3.41] Section
51 heading
substitute
51 Confiscation of forged etc
instruments
Explanatory note
This amendment revises the heading consequential on other amendments of the
section.
[3.42] Section
51 (1) (a) and (b)
substitute
(a) an instrument that purports to have been made for this Act or the
repealed Act if the registrar-general believes, on reasonable grounds, that the
instrument has a forged impression of the registrar-general’s signature or
seal or is forged or falsified; or
Explanatory note
This amendment brings the language of the paragraphs into line with current
drafting practice. Instrument is defined in the Legislation Act,
section 14.
renumber paragraphs when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the omission of paragraph (b) by another
amendment.
omit
document
substitute
instrument
Explanatory note
This amendment is consequential on the amendment of section 51 (1) (a) and
(b).
[3.45] Section
52 heading
substitute
52 Confiscation of erroneous or false
instruments
Explanatory note
This amendment is consequential on amendments of section 51.
[3.46] Section
52 (1) and (2)
omit
or other document
substitute
or other instrument
Explanatory note
This amendment is consequential on amendments of section 51.
[3.47] Section
52 (2) (a)
omit
document
substitute
instrument
Explanatory note
This amendment is consequential on amendments of section 51.
[3.48] Section
52 (2) (b)
omit
of document
substitute
or instrument
Explanatory note
This amendment is consequential on amendments of section 51 and corrects a
typographical error.
insert
Division 9.6 Expiry of
part
64A Expiry etc
(1) Divisions 9.1 to 9.5 are laws to which the Legislation Act,
section 88 (Repeal does not end effect of transitional laws etc)
applies.
(2) This part expires on the day this division commences.
Explanatory note
This amendment expires a transitional part. The amendment makes it clear
that the effect of the provisions is saved under the Legislation Act, section
88.
substitute
65 Certificate evidence
(1) A certificate or other instrument that purports to state information
obtained by the registrar-general under this Act or the repealed Act is evidence
of the matters stated in it if it purports—
(a) to be signed and sealed by the registrar-general; or
(b) to have attached to it, or be otherwise authenticated by, a facsimile
of the registrar-general’s signature and seal produced by a stamp, machine
imprint or any other method authorised by regulation.
(2) This section is subject to section 29 (Effect of certificates issued
in relation to transsexual people).
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
[3.51] Section
66 (1) and (2)
omit
powers and
Explanatory note
This amendment omits unnecessary words. The Legislation Act, dictionary,
pt 1 defines function to include power.
[3.52] Section
66, new note
insert
Note A provision of a law that gives an entity (including a person)
a function also gives the entity the powers necessary and convenient to exercise
the function (see Legislation Act, s 196 (1) and dict, pt 1, def
entity).
Explanatory note
This amendment inserts a standard note about the power to exercise
functions.
[3.53] Section
69 (2), new note
insert
Note For other provisions about forms, see the Legislation Act, s
255.
Explanatory note
This amendment inserts a standard note about approved forms.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• ACT
• change
• Commonwealth
• doctor
• exercise
• fail
• function
• instrument (see s 14)
• penalty unit (see s 133)
• registrar-general
• under.
adult—see section 4.
birth includes a stillbirth.
birth certificate means a certificate issued under section 27
(2) or section 45 certifying particulars contained in an entry in the register
of a person’s birth.
birth registration statement, for division 2.2 (Registration
of births)—see section 6.
child—see section 4.
corresponding law means a law of a State or another Territory
that provides for the registration of births, deaths and marriages.
death does not include a stillbirth.
doctor, for part 4 (Change of sex)—see
section 23.
parents, of a child, means the parents jointly.
prohibited name means a name that—
(a) is obscene or offensive; or
(b) could not practically be established by repute or
usage—
(i) because it is too long; or
(ii) because it consists of or includes symbols without phonetic
significance in the English language; or
(iii) for any other reason; or
(c) includes or resembles an official title or rank; or
(d) is misleading because of similarity with the name of a body or
organisation; or
(e) is, in the registrar-general’s opinion, undesirable;
or
(f) is prohibited by regulation.
register means a register maintained under section
39.
registering authority means an authority responsible under a
corresponding law for the registration of births, deaths and
marriages.
registrable event means a birth, death, marriage, change of
name or change of sex.
registrable information means information that is to be or
may be included in the register.
repealed Act means the Registration of Births, Deaths and
Marriages Act 1963.
sexual reassignment surgery, for part 4 (Change of
sex)—see section 23.
stillbirth means the birth of a stillborn child.
stillborn child means—
(a) a child of at least 20 weeks gestation; or
(b) if it cannot be established reliably whether the period of gestation
is more or less than 20 weeks—a child with a body mass of at least 400g at
birth, who shows no sign of respiration or heart beat, or other sign of life,
immediately after birth.
transsexual person, for part 4 (Change of sex)—see
section 23.
Explanatory note
This amendment inserts a dictionary consequential on the omission of the
interpretation section (existing section 4) by another amendment. The language
and structure of the definitions is updated to bring them into line with current
drafting practice. In particular:
• the definition of change and
registrar-general have been omitted because the terms are defined
in the Legislation Act, dictionary, part 1
• the definition of authorised celebrant has been
omitted because the term is not used in the Act
• the definition of commencement of this Act has been
omitted because the definition is no longer needed (see Legislation Act, section
80)
• the definitions of disposal and funeral
director have been relocated to section 37 as the definitions are (with
the exception of a transitional provision that is being omitted) only used in
that section
• the definition of birth certificate in existing
section 23 has been relocated to the dictionary because the definition is used
outside the part for which it is presently defined
• the definition of parents (see existing section 4
(2)) has been updated in accordance with current drafting practice and added to
the dictionary.
In accordance with current drafting practice, signpost definitions have
been included in the dictionary for defined terms that are used outside the
section where they are defined (see eg the definition of transsexual
person).
Part
3.6 Board of Senior Secondary Studies
Act 1997
substitute
1 Name of Act
This Act is the Board of Senior Secondary Studies Act
1997.
Explanatory note
This amendment brings the naming section into line with current drafting
practice.
substitute
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere in this Act.
For example, the signpost definition ‘senior secondary
education—see section 3A’ means that the term ‘senior
secondary education’ is defined in that section.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
Explanatory note
This amendment adds standard dictionary and notes provisions. The
definitions in existing section 2 that are still needed are included in the
dictionary which is inserted by another amendment.
substitute
Part 2 Key concepts
3A What is senior secondary
education?
Education is senior secondary education if it is normally
provided to students in the final 2 years of full-time secondary
schooling.
3B What is a recognised educational
institution?
An educational institution is a recognised educational
institution if it—
(a) is established or registered under a law of the Commonwealth, a State
or another Territory; and
(b) provides, or offers to provide, courses suitable for senior
secondary education.
3C What is a national
agreement?
(1) This section applies to an agreement if it—
(a) is entered into by the Territory, the Commonwealth, a State or the
Northern Territory; and
(b) deals with the provision of vocational education.
(2) The Minister may, in writing, declare the agreement is a
national agreement.
(3) A declaration under subsection (2) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
Explanatory note
This amendment creates a new part 2 dealing with important concepts for the
Act which are presently defined in existing section 2. New section 3C (2) also
incorporates existing section 3.
renumber as part 3 when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new part 2 by another
amendment.
substitute
4 Establishment of board
(1) The Board of Senior Secondary Studies is established.
Note The Legislation Act, dict, pt 1, defines
establish as including continue in existence.
(2) The board—
(a) is a corporation; and
(b) may sue and be sued in its corporate name; and
(c) may have a seal.
(3) The board represents the Territory when exercising its functions,
unless this Act or another territory law otherwise provides.
Explanatory note
This amendment adds subsection (3) and brings the language of the section
into line with current drafting practice.
substitute
5 Functions of board
The main functions of the board are as follows:
(a) to accredit or register courses taught by recognised educational
institutions;
(b) to approve, consistent with national agreements, recognised
educational institutions for teaching vocational education courses;
(c) to establish guidelines for the development of courses by the board or
by a recognised educational institution;
(d) to establish principles and procedures for the assessment of
attainments of students and the moderation of the assessments;
(e) to provide to people who have undertaken courses, or units of courses,
certificates and transcripts of their attainments;
(f) to provide information on—
(i) the performance of students and former students; and
(ii) the policies and procedures of the board;
(g) to review its own operations and the operation of this Act;
(h) to advise the Minister on any matter mentioned in this section
(including something mentioned in section 5A to section 5D).
Note A provision of a law that gives an entity a function
also gives the entity powers necessary and convenient to exercise the function
(see Legislation Act, s 196 and dict, pt 1, def entity).
5A Additional functions about accreditation of
courses
For section 5 (a), the board has the following additional
functions:
(a) to establish guidelines (accreditation guidelines) for
the accreditation of courses, including vocational education courses;
(b) to ensure national agreements about the accreditation of vocational
education and training courses are applied, if appropriate;
(c) to identify the minimum resources necessary for the satisfactory
provision of the courses that the board decides.
5B Additional functions about assessment of
students
For section 5 (d), the board has the following additional
functions:
(a) to prepare guidelines and requirements for the assessment of
students’ attainments;
(b) to make arrangements for the administration by recognised educational
institutions of the test known as the Australian Scaling Test, or any other test
instead of the Australian Scaling Test that is approved by the board;
(c) to develop and implement procedures for the moderation of
students’ assessments;
(d) to develop procedures for—
(i) recognised educational institutions to review the assessments of their
students; and
(ii) the board to review the procedures used by recognised educational
institutions to assess their students or review their student assessments;
and
(iii) recognised educational institutions, or the board, to review
disciplinary action taken by recognised educational institutions in relation to
their student assessments.
5C Additional functions about certificates of
attainment
For section 5 (e), the board has the following additional
functions:
(a) to prepare guidelines for the issue of certificates of
attainment;
(b) to make the arrangements that the board considers appropriate to
ensure to the greatest extent possible that certificates issued by the board are
recognised by employers and providers of further training or higher
education;
(c) to consult with institutions that provide tertiary education or
vocational education or training for the purpose of reviewing from time to time
the effect of their requirements and procedures for the admission of students
and to provide appropriate guidance to the institutions;
(d) to issue, consistent with national agreements, certificates or other
evidence of the achievements of vocational education or training
qualifications.
5D Additional functions about performance and
policies
For section 5 (f), the board has the following additional
functions:
(a) to collect and record information about the performances of
students;
(b) to provide, to institutions that provide tertiary education or
vocational education or training, information on applicants for admission to the
institutions;
(c) to publicise the guidelines, requirements, procedures and standards
for assessments, certification and accreditation used by the board;
(d) to make available, as decided by the board, statistical information
about—
(i) senior secondary education in the ACT; and
(ii) the functions of the board;
(e) if appropriate, to recognise secondary educational attainments
obtained outside the ACT and provide statements of equivalence if
asked.
Explanatory note
This amendment brings the language and structure of section 5 into line
with current drafting practice. It revises existing section 5 (2)-(5) as new
sections 5A-5D.
substitute
6 Other functions of board
The board may—
(a) appoint the committees and advisory panels that it considers
appropriate; and
(b) issue certificates of attainment to people who have undertaken courses
or units of courses.
Note A provision of a law that gives an entity a function
also gives the entity powers necessary and convenient to exercise the function
(see Legislation Act, s 196 and dict, pt 1, def entity).
Explanatory note
This amendment omits existing section 6 (1) which is no longer necessary
because of the Legislation Act, section 196 and replaces it with a standard note
about the power to exercise functions.
omit
directions to the board in relation to
substitute
a direction to the board about
Explanatory note
This amendment updates language.
[3.63] Sections
7 (3) and 8 (1)
omit
shall
substitute
must
Explanatory note
This amendment updates language.
omit
chairperson
substitute
chair
Explanatory note
This amendment updates language.
[3.65] Section
8 (2) and (3)
substitute
(2) The Minister must appoint the board members (other than the chief
executive).
Note 1 For the making of appointments (including acting
appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person
or nominating the occupant of a position (see s 207).
Note 3 Certain Ministerial appointments require consultation with a
Legislative Assembly committee and are disallowable (see Legislation Act,
div 19.3.3).
(3) The Minister may appoint a person to be a board member only if
satisfied that the person has qualifications and expertise relevant to the
functions of the board.
Explanatory note
This amendment brings the language of the subsections into line with
current drafting practice and adds standard appointment notes.
omit
Explanatory note
This amendment omits a redundant section. Vacancies are dealt with under
the Legislation Act, section 199 (5) (Functions of bodies).
substitute
10 Term of appointment of board
members
An appointment of a board member must be for a term of not longer than 3
years.
Note A person may be reappointed to a position if the person is
eligible to be appointed to the position (see Legislation Act, s 208 and
dict, pt 1, def appoint).
Explanatory note
This amendment brings the language of the section into line with current
drafting practice and replaces unnecessary words with a standard note about
reappointment.
substitute
11 Disclosure of interests by board
members
(1) A board member who has a material interest in an issue being
considered, or about to be considered, by the board must, as soon as practicable
after the relevant facts have come to the member’s knowledge, disclose the
nature of the interest at a board meeting.
(2) The disclosure must be recorded in the board’s minutes and,
unless the board otherwise decides, the board member must not—
(a) be present when the board considers the issue; or
(b) take part in a decision of the board on the issue.
Example
Albert, Boris and Chloe are members of the board. They have an interest in
an issue being considered at a board meeting and they disclose the interest as
soon as they become aware of it. Albert’s and Boris’ interests are
minor but Chloe has a direct financial interest in the issue.
The board considers the disclosures and decides that because of the nature
of the interests:
• Albert may be present when the board considers the issue but not
take part in the decision
• Boris may be present for the consideration and take part in the
decision.
The board does not make a decision allowing Chloe to be present or take
part in the board’s decision. Accordingly, Chloe cannot be present for
the consideration of the issue or take part in the decision.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) Any other board member who also has a material interest in the issue
must not be present when the board is considering its decision under subsection
(2).
(4) In this section:
associate, of a person, means—
(a) the person’s business partner; or
(b) a close friend of the person; or
(c) a family member of the person.
executive officer, of a corporation, means a person, by
whatever name called and whether or not the person is a director of the
corporation, who is concerned with, or takes part in, the corporation’s
management.
indirect interest—without limiting the kinds of
indirect interests a person may have, a person has an indirect interest
in an issue if any of the following has an interest in the
issue:
(a) an associate of the person;
(b) a corporation with not more than 100 members that the person, or an
associate of the person, is a member of;
(c) a subsidiary of a corporation mentioned in paragraph (b);
(d) a corporation that the person, or an associate of the person, is an
executive officer of;
(e) the trustee of a trust that the person, or an associate of the person,
is a beneficiary of;
(f) a member of a firm or partnership that the person, or an associate of
the person, is a member of;
(g) someone else carrying on a business if the person, or an associate of
the person, has a direct or indirect right to participate in the profits of the
business.
material interest—a board member has a material
interest in an issue if the member has—
(a) a direct or indirect financial interest in the issue; or
(b) a direct or indirect interest of any other kind if the interest could
conflict with the proper exercise of the member’s functions in relation to
the board’s consideration of the issue.
12 Ending board member
appointments
(1) This section applies to a board member other than the chief
executive.
(2) The Minister must end the board member’s
appointment—
(a) if the member is convicted, in the ACT, of an offence punishable by
imprisonment for at least 1 year; or
(b) if the member is convicted outside the ACT, in Australia or elsewhere,
of an offence that, if it had been committed in the ACT, would be punishable by
imprisonment for at least 1 year; or
(c) if the member contravenes section 11 (Disclosure of interests by
board members); or
(d) if the member is absent, other than on leave approved by the chair,
from 3 consecutive meetings of the board.
Note A person’s appointment also ends if the person resigns
(see Legislation Act, s 210).
13 Time and place of board
meetings
Meetings of the board are to be held at the times and places the chair
decides.
14 Presiding member at board
meetings
(1) The chair presides at all board meetings at which the chair is
present.
(2) However, if the chair is absent, the board member chosen by the board
members present presides.
15 Quorum at board meetings
Business may be carried on at a board meeting only if at least 8 board
members (other than the chief executive) are present.
16 Voting at meetings
(1) At a board meeting, each board member has a vote on each question to
be decided.
(2) A question is to be decided by a majority of the votes of the board
members present and voting but, if the votes are equal, the member presiding has
a deciding vote.
17 Conduct of meetings etc
(1) The board may conduct its proceedings (including its meetings) as it
considers appropriate.
(2) A meeting may be held using a method of communication, or a
combination of methods of communication, that allows a board member taking part
to hear what each other member taking part says without the members being in
each other’s presence.
(3) A board member who takes part in a meeting conducted under
subsection (2) is taken, for all purposes, to be present at the
meeting.
(4) The board must keep minutes of its meetings.
18 Delegation by board
The board may delegate the board’s functions under this Act or
another territory law to a board member or a board staff member mentioned in
section 19.
Note For the making of delegations and the exercise of delegated
functions, see the Legislation Act, pt 19.4.
Explanatory note
This amendment brings the provisions about the board’s operations
into line with current drafting practice. In particular:
• existing sections 11 and 12 are omitted because of the Legislation
Act, sections 209 and 216 and replaced with standard appointment notes
(including in relation to acting appointments) which are inserted after new
section 8 (2) by another amendment
• existing section 12A is omitted because delegation of powers by a
chief executive is dealt with by the Public Sector Management Act 1994,
section 36
• existing section 14 is omitted because of the Legislation Act,
section 210 and replaced with a standard note about resignation which is
inserted after new section 12 (2).
omit
public servants
insert
a public servant (a board staff member)
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
omit
public servants who are the subject of an arrangement under this
section
insert
a board staff member
Explanatory note
This amendment brings language into line with current drafting
practice.
substitute
20 Protection of board members from
liability
(1) A board member does not incur civil liability for an act or omission
done honestly and without recklessness for this Act.
(2) Any civil liability that would, apart from this section, attach to a
person, attaches instead to the Territory
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
substitute
Part 4 Accredited and registered
courses
Explanatory note
This amendment revises the heading to more accurately reflect the
part’s application.
[3.73] Division
3.1 heading
substitute
Division 4.1 Accreditation of
courses
Explanatory note
This amendment is consequential on the insertion of another division in
this part.
substitute
21 Board may initiate accreditation of
course
(1) The board may, on its own initiative, accredit a course.
(2) In deciding whether to initiate accreditation of a course, the board
must consider the accreditation guidelines.
(3) An accreditation under subsection (1) may be conditional.
22 Application for accreditation of
course
(1) A recognised educational institution may apply to the board for the
accreditation of a course to be taught at the institution.
(2) The board must either—
(a) accredit the course; or
(b) refuse to accredit the course.
(3) An accreditation is in force for the period that the board
decides.
(4) An accreditation may be conditional.
(5) The board must tell the applicant, in writing, of its
decision.
23 Review of conditional accreditation or
refusal
(1) This section applies if the board, under section 22—
(a) accredits a course conditionally; or
(b) refuses to accredit a course.
(2) The applicant for accreditation may, within 1 month after the day the
board tells the applicant about the board’s decision under
section 22, ask the board, in writing, to review the decision.
(3) Within 1 month after the day the board receives the request, the chair
of the board must set up a committee to advise the board about the
request.
(4) As soon as practicable after the board receives advice from the
committee, the board must review its decision and either—
(a) confirm the original decision; or
(b) replace the original decision with a decision that the board may make
under section 22.
(5) The board must tell the applicant, in writing, of the board’s
decision.
Explanatory note
This amendment brings the language and structure of the sections into line
with current drafting practice.
omit
section 21, 22 or 23, the board shall have regard to
substitute
this division, the board must consider
Explanatory note
This amendment updates language and cross-references.
substitute
Division 4.2 Registration of
courses
25 Application for registration of
course
(1) A recognised educational institution may apply to the board for the
registration of a course to be taught at the institution.
(2) The board must—
(a) if the application is accompanied by documents and information that
satisfies the board that the course complies with the relevant guidelines of the
board—register the course; or
(b) in any other case—refuse to register the course.
(3) A registration is in force for the period that the board
decides.
(4) A registration may be conditional.
(5) The board must tell the applicant, in writing, of its
decision.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
[3.77] Division
3.2 heading
substitute
Division 4.3 Certificates of
attainment
Explanatory note
This amendment is consequential on the insertion of another division in
this part.
[3.78] Sections
26 and 27
substitute
26 Issue of certificates of
attainment
(1) If a person has satisfactorily completed an accredited course or
registered course, or a unit of an accredited course or registered course, at a
recognised educational institution, the board must give the person a certificate
showing the person’s attainment (a certificate of
attainment).
(2) However, the board may give a certificate of attainment only if the
board is satisfied that—
(a) the course has been taught in accordance with—
(i) the relevant accreditation guidelines; and
(ii) if the accreditation is conditional—the conditions of the
accreditation; and
(iii) any guidelines and requirements of the board about the teaching of
the course; and
(b) the person has been assessed in accordance with any guidelines and
requirements of the board about the assessment of students’ attainments
(see section 5B (a)).
(3) In making a decision under subsection (2), the board may rely on
information in a certificate from a recognised educational
institution.
(4) A certificate of attainment may state any information that is
available from the records of the board and appears to the board to be connected
with the person’s studies.
26A Application for review if board refuses to issue
certificate
(1) This section applies to a certificate of any kind ordinarily issued by
the board to a person who has completed the studies to which the certificate
relates, including a certificate of attainment.
(2) A person dissatisfied by a refusal of the board to issue a certificate
may apply, in writing, to the board for a review of the refusal.
(3) The application must—
(a) state the grounds on which the review is sought; and
(b) be given to the board within 1 month after the day the board states is
the day when the certificate would have been issued.
27 Review of refusal to issue
certificate
(1) Within 1 month after the day the board receives an application under
section 26A, the chair of the board must set up a committee to advise the
board about the application.
(2) As soon as practicable after the board receives advice from the
committee, the board must review its decision and either—
(a) confirm the refusal; or
(b) issue the certificate.
(3) The board must tell the applicant, in writing, of its
decision.
Explanatory note
This amendment brings the language and structure of the sections into line
with current drafting practice.
[3.79] Division
3.3 heading
substitute
Division 4.4 Specialist education
providers
Explanatory note
This amendment is consequential on the insertion of another division in
this part.
renumber as part 5 when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new part 2 by another
amendment.
substitute
28 Information about academic
performance
(1) A person who has completed the person’s senior secondary
education may apply in writing to the board for a copy of the information held
by the board about the person’s academic performance.
(2) The board must give a copy of the information to the applicant or to
someone else nominated in writing by the applicant.
Explanatory note
This amendment makes the section heading more descriptive, omits redundant
words and brings the language of the section into line with current drafting
practice.
substitute
29 Register of courses
(1) The board must keep a register of courses (the
register).
(2) The board must enter in the register details of the
following:
(a) courses that the board has accredited;
(b) courses that the board has registered;
(c) anything else decided by the board.
(3) The register must be kept in the form the board decides.
(4) The register must be available for inspection by the public during
ordinary office hours at a place decided by the chair of the board.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice and omits subsection (5) which is a redundant
transitional provision.
[3.83] Section
30 (2), new note
insert
Note For other provisions about forms, see the Legislation Act, s
255.
Explanatory note
This amendment adds a standard note about approved forms.
omit
Explanatory note
This amendment omits a redundant transitional provision.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• appoint
• establish
• exercise
• function
• month.
accreditation guidelines—see section 5A (a) (Additional
functions about accreditation of courses).
accredited course means a course accredited under
section 21 (Board may initiate accreditation of course) or section 22
(Application for accreditation of course).
board means the Board of Senior Secondary Studies.
board member means a member of the board, and includes the
chair.
certificate of attainment—see
section 26 (1).
course means a course of study for senior secondary
students.
national agreement—see section 3C.
recognised educational institution—see section
3B.
registered course means a course registered under
section 25.
senior secondary education—see section 3A.
Explanatory note
This amendment inserts a dictionary consequential on the omission of the
definitions section (existing section 3) by another amendment. The
language and structure of the definitions is updated to bring them into line
with current drafting practice. In particular:
• new definitions of accreditation guidelines and
certificate of attainment are added to assist in improving the
Act’s language
• the definitions of alternate and appointed
member are omitted because they are made redundant by other
amendments
• the definition of member is replaced by the new
definition of board member and references to members
consequentially amended by other amendments.
Part
3.7 Building Act
2004
[3.86] Section
42 (1) (d)
substitute
(d) building work must be carried out in accordance with approved
plans;
Explanatory note
This amendment omits unnecessary words.
Part
3.8 Business Names Regulation
1966
[3.87] Section
2, definition of agent
substitute
agent—see the Corporations Regulations 2001
(Cwlth), regulation 1.0.02 (1).
Explanatory note
This amendment updates the reference to the Corporations Regulations
2001 (Cwlth).
substitute
(2) An annexure to a form must be marked with an identifying letter and
endorsed with the words:
This is the annexure of (number) pages marked with the letter
(appropriate letter ie ‘A’ for the 1st annexure, ‘B’
for the 2nd annexure etc) mentioned in the (description of document)
signed by *[me/us] and dated (date).
Signature/s
(2A) The annexure must be signed by each person who signs the form to
which the annexure is annexed.
Explanatory note
This amendment makes the form of annexure clearer.
renumber subsections when regulation next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new section 6 (2A) by
another amendment.
substitute
7 Signature of documents
(1) A document relating to a corporation that is lodged for a corporation
must be signed by—
(a) if the corporation is a foreign company—
(i) a director or secretary of the company; or
(ii) the agent of the company; or
(b) in any other case—a director or secretary of the
corporation.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
(2) However, if a foreign company’s agent is a company, the document
must be signed by a director or secretary of the agent.
(3) This section is subject to the Act, section 15 (Signing of
statements).
(4) In this section:
foreign company—see the Corporations Act 2001 (Cwlth),
section 9.
Explanatory note
This amendment brings the language of the section into line with the
Corporations Act 2001 (Cwlth) and its structure into line with current
drafting practice.
Part
3.9 Construction Occupations
(Licensing) Act 2004
substitute
(1) The registrar must give a compliance auditor an identity card stating
the person’s name and that the person is a compliance auditor.
(1A) The identity card must show—
(a) a recent photograph of the person; and
(b) the card’s date of issue and expiry; and
(c) anything else prescribed by regulation.
Explanatory note
This amendment brings the structure of the subsection into line with
current drafting practice.
renumber subsections when next republished under the Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new section 78 (1A) by
another amendment.
Part
3.10 Coroners Act
1997
[3.93] Section
3 (1), definition of custodial officer, paragraph
(g)
substitute
(g) a carer within the meaning of the Intoxicated People (Care and
Protection) Act 1994; or
Explanatory note
This amendment is consequential on the changing of the name of the
Intoxicated Persons (Care and Protection) Act 1994 by another
amendment.
[3.94] Section
3 (2) (b) (v)
substitute
(v) at a licensed place under the Intoxicated People (Care and
Protection) Act 1994; or
Explanatory note
This amendment is consequential on the changing of the name of the
Intoxicated Persons (Care and Protection) Act 1994 by another
amendment.
[3.95] Section
49 (1), definition of relevant provisions
omit
• section 314 (Registrar to give directions for preparation of
transcripts)
substitute
• section 314 (Registrar to give directions for preparation of
transcript)
Explanatory note
This amendment corrects a reference to the Magistrates Court Act
1930, section 314 heading.
Part
3.11 Court Procedures Act
2004
substitute
(3) This section does not limit any inherent or other power of a court,
judge, magistrate or prescribed tribunal to control proceedings.
Explanatory note
Section 7 (Rule-making power) provides that the rule-making committee may
make rules in relation to (among other things) the practice and procedure of
prescribed tribunals. This amendment adds a reference to a prescribed tribunal
in subsection (3).
omit
this Act
substitute
this part
Explanatory note
Section 21 was relocated from the Crown Proceedings Act 1992 to the
Court Procedures Act 2004, part 4 by the Court Procedures
(Consequential Amendments) Act 2004. The reference to ‘this
Act’ in section 21 should, therefore, be a reference to ‘this
part’.
[3.98] Section
21 (3), definition of proceeding
omit
due
substitute
owing
Explanatory note
This amendment updates language.
substitute
(2) The Attorney-General of a State or another Territory may, on behalf of
the State or other Territory, represent the Crown in right of the State or other
Territory in any action, proceeding or matter (whether civil or criminal) in
which the Crown in right of the State or other Territory is a party.
Explanatory note
This amendment adds ‘(whether civil or criminal)’ to subsection
(2) to mirror subsection (1) and make it clear that the provision applies to
civil and criminal actions, proceedings and matters.
[3.100] Section
27 (1) and (2)
substitute
(1) This section applies if any of the following are in issue in a
proceeding:
(a) the interpretation or validity of a law of the Territory or
Commonwealth;
(b) legislative or executive powers of the Territory or Commonwealth, or
an instrumentality or agency of the Territory or Commonwealth;
(c) judicial powers of a court or tribunal established under the law of
the Territory or Commonwealth.
(2) The Attorney-General may intervene in the proceeding, on behalf of the
Crown, to submit argument on the issue.
(2A) If the Attorney-General intervenes in a proceeding under this
section, the Attorney-General has the same right of appeal in the proceeding as
a party to the proceeding.
Explanatory note
This amendment brings the structure of the subsections into line with
current drafting practice.
renumber subsections when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new section 27 (2A) by
another amendment.
[3.102] Section
40, definition of court, paragraph (l)
omit
Explanatory note
This amendment omits a redundant paragraph.
[3.103] Section
40, definition of court, paragraphs (m) to (q)
renumber as paragraphs (l) to (p)
Explanatory note
This amendment is consequential on omission of paragraph (l) by another
amendment.
insert
53A Delegation by secretary of rule-making
committee
The secretary of the rule-making committee may delegate a function under
the Legislation Act, section 61 (Notification of registrable instruments) to a
public servant.
Note For the making of delegations and the exercise of delegated
functions, see the Legislation Act, pt 19.4.
Explanatory note
This amendment allows the secretary of the rule-making committee to
delegate the function of requesting the notification of registrable instruments
made by the rule-making committee.
Part
3.12 Crimes Act
1900
substitute
(9) If an information is laid before a magistrate under subsection (8),
the magistrate must issue a warrant for the person’s arrest under the
Magistrates Court Act 1930, section 42 (2) (Issue of warrant and
summons).
Explanatory note
This amendment is consequential on the amendment of the Magistrates
Court Act 1930, section 42 by another amendment.
Part
3.13 Crimes (Forensic Procedures) Act
2000
[3.106] Dictionary,
definition of warrant
omit
division 3.3.4 (Warrants of arrest)
substitute
division 3.3.4 (Warrants)
Explanatory note
This amendment is consequential on the amendment of the Magistrates
Court Act 1930, division 3.3.4 heading by another amendment.
Part
3.14 Cultural Facilities Corporation
Act 1997
substitute
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere.
For example, the signpost definition ‘designated
location—see section 3A’ means that the term
‘designated location’ is defined in that section.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the
definition, or another provision of the Act, provides otherwise or the contrary
intention otherwise appears (see Legislation Act, s 155 and
s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
Explanatory note
This amendment adds standard dictionary and notes provisions. The
definitions in existing section 3 that are still needed are included in the new
dictionary which is inserted by another amendment.
substitute
3A What is a designated
location?
(1) A location is a designated location if it
is—
(a) a location mentioned in schedule 1; or
(b) a location declared by the Minister under subsection (2) to be a
designated location.
(2) The Minister may, in writing, declare a location to be a designated
location.
(3) A declaration under subsection (2) is a disallowable
instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
substitute
Part 2 Cultural Facilities
Corporation
Explanatory note
This amendment brings the heading into line with current drafting
practice.
[3.110] Division
2.1 heading
substitute
Division 2.1 Establishment and functions of
corporation
Explanatory note
This amendment brings the heading into line with current drafting
practice.
substitute
4 Establishment of corporation
(1) The Cultural Facilities Corporation is established.
Note The Legislation Act, dict, pt 1, defines
establish as including continue in existence.
(2) The corporation—
(a) is a corporation; and
(b) may sue and be sued in its corporate name; and
(c) may have a seal.
(3) The corporation represents the Territory when exercising its
functions, unless this Act or another territory law otherwise
provides.
Explanatory note
This amendment adds subsection (3) and brings the language of the section
into line with current drafting practice.
[3.112] Section
5 heading
substitute
5 Functions of corporation
Explanatory note
This amendment brings the heading into line with current drafting
practice.
[3.113] Section
5 (e) and (f)
substitute
(e) to undertake activities, in cooperation with other people if
appropriate, to exercise its other functions; and
(f) to exercise other functions given to the corporation under this Act or
another territory law.
Explanatory note
This amendment brings the language of the paragraphs into line with current
drafting practice.
[3.114] Section
5, new note
insert
Note A provision of a law that gives a function to an entity also
gives the entity the powers necessary and convenient to exercise the function
(see Legislation Act, s 196 and dict, pt 1, def entity).
Explanatory note
This amendment is consequential on the omission of section 6 (1) by another
amendment.
substitute
6 Powers of corporation
generally
The corporation has all the powers of an individual.
Examples
1 to enter into a contract
2 to own, deal with and dispose of property
3 to act as a trustee
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Explanatory note
This amendment omits existing section 6 (1) which is no longer necessary
because of the Legislation Act, section 196 and replaces it with a standard note
about the power to exercise functions.
substitute
7 Considerations for corporation exercising
functions
In exercising its functions, the corporation must consider—
(a) any cultural policies or priorities of the Executive known to the
corporation; and
(b) other cultural activities in the ACT.
Note Function includes power and duty (see Legislation Act,
dict, pt 1).
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
substitute
8 Advisory committees
(1) To assist the corporation in the exercise of its functions, the
corporation—
(a) must set up advisory committees for—
(i) museum collections; and
(ii) historic places; and
(iii) the performing arts; and
(b) may set up other advisory committees that the corporation considers
necessary.
(2) An advisory committee may decide how to exercise its
functions.
(3) However, an advisory committee is subject to the direction of the
corporation in the exercise of its functions.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
omit
(1) The corporation
substitute
The corporation
Explanatory note
This amendment is consequential on the omission of section 10 (2) by
another amendment.
omit
Explanatory note
This amendment omits a redundant subsection. Vacancies are dealt with
under the Legislation Act, section 199 (5) (Functions of bodies).
omit
Public Sector Management Act
substitute
Public Sector Management Act 1994
Explanatory note
This amendment allows for the definition of Public Sector Management
Act to be omitted by another amendment.
substitute
28 Ministerial directions
(1) The Minister may direct the corporation, in writing, about the
exercise of its functions, either generally or for a particular
matter.
(2) The corporation must give effect to the direction.
(3) The Minister must present a copy of a direction to the
Legislative Assembly within 5 sitting days after the day it is given to the
corporation.
(4) The Territory must pay to the corporation the reasonable costs of
complying with a direction.
(5) The amount payable under subsection (4) is—
(a) the amount agreed by the corporation and the Treasurer; or
(b) if the corporation and the Treasurer cannot agree—the amount
decided by the Chief Minister.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
This amendment also expressly provides that, in working out the period
within which a direction must be presented to the Legislative Assembly, the day
on which the direction is received is not counted. The amendment is in
accordance with current drafting practice and reflects the present position
under the Legislation Act, section 151 (2) and (3) (b).
substitute
29 Quarterly reports
(1) As soon as practicable after the end of each quarter, the corporation
must give the Minister a report on the operation during the quarter
of—
(a) this Act; and
(b) the corporation.
(2) The Minister must present the report to the Legislative
Assembly within 6 sitting days after the day the report is received.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice and omits the definition of quarter because it
is defined in the Legislation Act, dict, pt 1.
This amendment also expressly provides that, in working out the period
within which a report must be presented to the Legislative Assembly, the day on
which the report is received is not counted. The amendment is in accordance
with current drafting practice and reflects the present position under the
Legislation Act, section 151 (2) and (3) (b).
omit
of
Explanatory note
This amendment omits a redundant word.
insert
33 Repeal of designated location
declaration
(1) The Cultural Facilities Corporation (Designated Location)
Declaration 2004 (No 1) DI2004-182 is repealed.
(2) This section expires on the day this section commences.
Explanatory note
This amendment repeals the declaration of Mugga Mugga as a designated
location consequent on its inclusion in new schedule 1 by another amendment.
The status of Mugga Mugga under the Act is not affected by this and the related
amendment.
substitute
Schedule 1 Designated
locations
(see s 3A)
column 1
item
|
column 2
designated locations
|
1
|
Canberra Theatre Centre
|
2
|
Canberra Museum and Gallery
|
3
|
Lanyon Historic Property
|
4
|
Calthorpes’ House
|
5
|
Nolan Gallery
|
6
|
Mugga Mugga (block 6, section 103, Symonston)
|
Explanatory note
This amendment updates the list of designated locations to which the Act
applies. It corrects minor typographical errors in existing item 2 (Canberra
Museum & Gallery) and existing item 4 (Calthorpe’s House). Also, new
item 6 (Mugga Mugga) is added to the list. Mugga Mugga is declared by
disallowable instrument DI2004-182 to be a designated location. This amendment,
in conjunction with the repeal of the instrument by another amendment,
consolidates the list of designated locations without affecting Mugga
Mugga’s status under the Act.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1 defines the
following terms:
• ACT
• public servant
• quarter
• sitting day
• under.
Civic Square precinct means the land making up blocks 18, 20
and 22, section 19, division of City, Canberra Central district.
corporation means the Cultural Facilities
Corporation.
cultural activities includes artistic, historical or other
cultural entertainments, displays and exhibitions.
designated location—see section 3A.
member means a member of the corporation.
Explanatory note
This amendment inserts a dictionary consequential on the omission of the
definitions section (existing section 3) by another amendment. The language of
the definitions is updated to bring them into line with current drafting
practice. In particular:
• the definition of plan (ie the Territory plan) has
been omitted because the term (other than in the context of a business plan) is
not used in the Act
• the definition of Public Sector Management Act has
been omitted because the amendment of section 19 makes the definition
redundant.
Part
3.15 Dangerous Substances Act
2004
[3.127] Section
97 (2) (a)
omit
measures; and
substitute
measures; or
Explanatory note
Section 97 (2) requires the notification and display of compliance
agreements. Similar provisions of the Act are section 103 (2) for
improvement notices and section 112 (2) for prohibition notices. In
section 97 (2) and section 103 (2) the conjunction used for linking
the requirements is ‘and’ and in section 112 (2)
‘or’ is used. The intention is that a person who fails to notify or
display the notice in accordance with paragraph (a) or paragraph (b) contravenes
the section. This amendment changes ‘and’ to ‘or’ to
make the separate obligations clearer, to bring the subsection into line with
current drafting practice and to make it consistent with section
112 (2).
[3.128] Section
103 (2) (a)
omit
under it; and
substitute
under it; or
Explanatory note
Section 103 (2) requires the notification and display of improvement
notices. Similar provisions of the Act are section 97 (2) for compliance
agreements and section 112 (2) for prohibition notices. In section
97 (2) and section 103 (2) the conjunction used for linking the
requirements is ‘and’ and in section 112 (2) ‘or’
is used. The intention is that a person who fails to notify or display the
notice in accordance with paragraph (a) or paragraph (b) contravenes the
section. This amendment changes ‘and’ to ‘or’ to make
the separate obligations clearer, to bring the subsection into line with current
drafting practice and to make it consistent with section 112 (2).
[3.129] Section
108, definitions of dangerous substance and
premises
omit
Explanatory note
This amendment omits the definitions of dangerous substance
and premises for part 6.4. The terms are defined for the Act
generally (see section 10 for dangerous substance and the
dictionary for premises). With 1 exception, defining these terms
for part 6.4 adds nothing to the definitions for the Act. This amendment also
brings this aspect of the Act into line with the Occupational Health and
Safety Act 1989 which does not have similar definitions for its prohibition
notice provisions.
The exception is the definition of relevant responsible
person which is amended by another amendment.
[3.130] Section
108, definition of relevant responsible person
substitute
relevant responsible person, for a prohibition notice, means
the responsible person for the dangerous substance stated in the notice to whom
the notice is given.
Explanatory note
This amendment is consequential on the omission of the definition of
dangerous substance in section 108 by another amendment.
omit
A relevant responsible person
substitute
The relevant responsible person
Explanatory note
This amendment makes a minor change to bring the subsection into line with
section 107 (1) in relation to improvement notices and the comparable provisions
in the Occupational Health and Safety Act 1989 about improvement and
prohibition notices.
omit
a dangerous substance to which a prohibition notice relates
substitute
a prohibition notice
Explanatory note
This amendment omits words that are unnecessary because a prohibition
notice must relate to a dangerous substance (see section 110 (2) (a) (ii)). It
also brings the subsection into line with section 107 (1) in relation to
improvement notices and the comparable provisions in the Occupational Health
and Safety Act 1989 about improvement and prohibition notices.
[3.133] Section
169 (1) (c) (i)
omit
infringement notice
substitute
information
Explanatory note
This amendment corrects a typographical error.
[3.134] Section
200 (4), definition of authorised person
substitute
authorised person, for an infringement notice offence, means
an authorised person for the infringement notice offence under the
Magistrates Court Act 1930, section 134A.
Explanatory note
This amendment specifies the relevant provision of the Magistrates Court
Act 1930.
[3.135] Dictionary,
definitions of dangerous substance and
premises
substitute
dangerous substance—see section 10.
premises includes land or a structure or vehicle and any part
of an area of land or a structure or vehicle.
Explanatory note
This amendment is consequential on the omission of the definitions of
dangerous substance and premises in section 108 by
another amendment.
Part
3.16 Domestic Animals Act
2000
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment omits the part that deals with infringement notices. The
Magistrates Court Act 1930, part 3.8 (Infringement notices for
certain offences) provides a system of infringement notices for offences against
various Acts. Regulations are made under the Magistrates Court
Act 1930 that contain the detail for the infringement notice scheme for
a particular Act.
The commencement of this amendment is delayed to allow a new Magistrates
Court (Domestic Animals Infringement Notices) Regulation 2005 to be
prepared.
[3.137] Dictionary,
definitions of administering authority, authorised person, date
of service, infringement notice and infringement notice
offence
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of part 4 by another
amendment. The commencement of this amendment is delayed because the omission
of part 4 is delayed.
[3.138] Dictionary,
definition of infringement notice penalty
substitute
infringement notice penalty, for an infringement notice
offence under the Magistrates Court (Domestic Animals Infringement Notices)
Regulation 2005—see the Magistrates Court Act 1930, section
117.
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of part 4 by another
amendment. The commencement of this amendment is delayed because the omission
of part 4 is delayed. The term infringement notice penalty is used in section
62 (3), section 63 (3) and section 64 (3).
[3.139] Dictionary,
definition of reminder notice
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of part 4 by another
amendment. The commencement of this amendment is delayed because the omission
of part 4 is delayed.
Part
3.17 Domestic Animals Regulation
2001
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of the Domestic Animals
Act 2000, part 4 (Infringement notices for certain offences) by another
amendment. The commencement of this amendment is delayed because the omission
of part 4 is delayed.
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of the Domestic Animals
Act 2000, part 4 (Infringement notices for certain offences) by another
amendment. The commencement of this amendment is delayed because the omission
of part 4 is delayed.
Part
3.18 Duties Act
1999
substitute
65 Transfer of land under Workplace Relations Act
Duty of $20 is chargeable on a transfer of land made in accordance with the
Workplace Relations Act 1996 (Cwlth), schedule 1B, section 82.
Explanatory note
This amendment updates the reference to the relevant Commonwealth
legislation.
omit
Industrial Relations Act 1988 (Cwlth), section 253ZA
substitute
Workplace Relations Act 1996 (Cwlth), schedule 1B, section
84
Explanatory note
This amendment updates the reference to the relevant Commonwealth
legislation.
substitute
(b) both the following paragraphs apply—
(i) a doctor has certified that the applicant is permanently unable to use
public transport because of the loss of, or loss of use of, a leg or both
legs;
(ii) the vehicle is for use by the person in travelling to and from
gainful employment.
Explanatory note
This amendment omits a reference to the abolished Commonwealth Department
of Social Security and updates the language and structure of the paragraph to
bring it into line with current drafting practice. In particular, it provides
for a doctor rather than a Commonwealth official to provide the required
assessment and makes it clear that the doctor does not certify that the vehicle
is for use by the person for travel to or from employment.
substitute
215 Organisations registered under Workplace
Relations Act
Duty under this chapter is not chargeable on an application to register a
motor vehicle made by an organisation registered under the Workplace
Relations Act 1996 (Cwlth) if the registration is to happen in accordance
with that Act, schedule 1B, section 85.
Explanatory note
This amendment updates the reference to the relevant Commonwealth
legislation.
[3.146] Section
221 (1) (a)
omit
the Motor Traffic Act 1936
substitute
any other territory law
Explanatory note
This amendment replaces a reference to a repealed Act with a reference to
any other territory law.
Part
3.19 Environment Protection Act
1997
[3.147] Section
10 (2) (b)
substitute
(b) an offence against a regulation that is prescribed for this
section.
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of division 13.1
(On-the-spot fines) by another amendment. Existing paragraph (b) refers to
minor environmental offences within the meaning of division 13.1 that are
prescribed for that division (see section 114). The commencement of this
amendment is delayed because the omission of division 13.1 is delayed.
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment omits the division that deals with infringement notices.
The Magistrates Court Act 1930, part 3.8 (Infringement notices for
certain offences) provides a system of infringement notices for offences against
various Acts. Regulations are made under the Magistrates Court Act 1930
that contain the detail for the infringement notice scheme for a particular
Act.
The commencement of this amendment is delayed to allow a new Magistrates
Court (Environment Protection Infringement Notices) Regulation 2005 to be
prepared.
[3.149] Sections
153 (1), 154 (1) and 155
omit
a minor environmental offence within the meaning of division 13.1
substitute
an offence against a regulation that is prescribed for this section
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of division 13.1
(On-the-spot fines) by another amendment. Sections 153 and 154 provide for
defences to certain offences, including minor environmental offences that are
prescribed for division 13.1 (see section 114). The commencement of this
amendment is delayed because the omission of division 13.1 is delayed.
[3.150] Section
165 (1) (c) and (d)
substitute
(c) the annual percentage rate at which interest accruing under section 91
(a) is to be calculated.
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of division 13.1
(On-the-spot fines) by another amendment. It relates to the determination of
the administrative charge for the service of a final notice under that division.
The commencement of this amendment is delayed because the omission of division
13.1 is delayed.
Part
3.20 Environment Protection Regulation
1997
[3.151] Section
23G, definition of units plan
substitute
units plan means a units plan under the Unit Titles Act
2001, section 7.
Explanatory note
This amendment is consequential on the amendment of the definition of
units plan in the Unit Titles Act 2001 by another
amendment.
Part
3.21 Fair Trading Act
1992
[3.152] Section
51 (1) (e)
omit
sell or refund other property
substitute
sell or return other property
Explanatory note
This amendment replaces the word ‘refund’ with the more
appropriate word ‘return’ and brings the paragraph into line with
section 50 (7) (d).
Part
3.22 Financial Management Act
1996
substitute
(4) The financial management guidelines may prescribe when there is
an urgent need for expenditure for subsection (2) (a)
(i).
Explanatory note
This amendment makes it clear that the guidelines mentioned in the
subsection are the financial management guidelines made under the Act and makes
the reference to the guidelines consistent with other references in the
Act.
[3.154] Section
31 (2) (c)
substitute
(c) that the officers and employees of the department comply with this Act
(including the financial management guidelines); and
Note A reference to an Act includes a
reference to the statutory instruments made or in force under the Act, including
any guideline (see Legislation Act, s 104).
Explanatory note
This amendment brings the paragraph into line with current drafting
practice. In particular, it changes the reference to ‘this Act and the
financial management guidelines’ to reflect the Legislation Act, section
104 and a standard note about that section is inserted.
[3.155] Section
54 (3) (d)
substitute
(d) that the officers and staff of the authority comply with this Act
(including the financial management guidelines); and
Note A reference to an Act includes a
reference to the statutory instruments made or in force under the Act, including
any guideline (see Legislation Act, s 104).
Explanatory note
This amendment brings the paragraph into line with current drafting
practice. In particular, it changes the reference to ‘this Act and the
financial management guidelines’ to reflect the Legislation Act, section
104 and a standard note about that section is inserted.
[3.156] Section
57 (1) (c)
substitute
(c) an infringement notice for an offence relating to the thing is served
on its owner within 6 months after the day of the seizure, liability for the
offence is disputed in accordance with the Magistrates Court Act 1930,
section 132 (Disputing liability for infringement notice offence) and
either—
(i) an information is not laid in the Magistrates Court against the person
for the offence within 60 days after the day the person gives notice under
section 132 that liability is disputed; or
(ii) the Magistrates Court does not find the offence proved; or
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of part 9 by another
amendment. The commencement of this amendment is delayed because the omission
of part 9 is delayed.
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment omits the part that deals with infringement notices. The
Magistrates Court Act 1930, part 3.8 (Infringement notices for
certain offences) provides a system of infringement notices for offences against
various Acts. Regulations are made under the Magistrates Court Act 1930
that contain the detail for the infringement notice scheme for a particular
Act.
The commencement of this amendment is delayed to allow a new Magistrates
Court (Food Infringement Notices) Regulation 2005 to be prepared.
[3.158] Dictionary,
definitions of date of service, infringement notice,
infringement notice offence, infringement notice
penalty and reminder notice
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of part 9 by another
amendment. The commencement of this amendment is delayed because the omission
of part 9 is delayed.
[3.159] Dictionary,
definitions of unsafe and unsuitable
substitute
unsafe, in relation to food—see section 12.
unsuitable, in relation to food—see section
13.
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment brings the definitions into line with current drafting
practice by including the qualification ‘in relation to food’ in
each definition. The delayed commencement removes the need for the Act to be
republished only for this amendment before the omission of part 9.
Part
3.24 Food Regulation
2002
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of the Food Act
2001, part 9 (Infringement notices for certain offences) by another
amendment. The commencement of this amendment is delayed because the omission
of part 9 is delayed.
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of the Food Act
2001, part 9 (Infringement notices for certain offences) by another
amendment. The commencement of this amendment is delayed because the omission
of part 9 is delayed.
Part
3.25 Gene Technology Regulation
2004
[3.162] New
section 3A (4)
before note 1, insert
(4) Also, a provision of this regulation may be referred to in the way in
which a corresponding provision may be referred to in Commonwealth
regulations.
Explanatory note
This amendment makes it clear that provisions of the regulation may be
referred to using the provision names used in Commonwealth regulations. For
example, a section of this regulation may be referred to as a regulation. The
amendment is intended to facilitate the integrated administration of the scheme
established by the Gene Technology Act 2003 and corresponding laws of the
Commonwealth and the States.
Part
3.26 Gungahlin Drive Extension
Authorisation Act 2004
[3.163] Section
6A (6), example heading
substitute
Examples for par (d)
Explanatory note
This amendment corrects a typographical error.
Part
3.27 Heritage Act
2004
[3.164] Section
94 (1) (c)
omit
information
substitute
infringement notice
Explanatory note
This amendment corrects a typographical error.
[3.165] Section
94 (1) (c) (i)
omit
infringement notice
substitute
information
Explanatory note
This amendment corrects a typographical error.
[3.166] Section
94 (2) (a)
substitute
(a) is forfeited to the Territory; and
Explanatory note
This amendment corrects a typographical error.
Part
3.28 Hotel School Act
1996
substitute
(3) An arrangement or direction under subsection (2) must not be
inconsistent with the Financial Management Act 1996.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any guideline (see
Legislation Act, s 104).
Explanatory note
This amendment brings the subsection into line with current drafting
practice. In particular, it changes the reference to ‘or the financial
management guidelines under that Act’ to reflect the Legislation Act,
section 104 and a standard note about that section is inserted.
Part
3.29 Intoxicated Persons (Care and
Protection) Act 1994
substitute
1 Name of Act
This Act is the Intoxicated People (Care and Protection) Act
1994.
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain words
and expressions used in this Act, and includes references (signpost
definitions) to other words and expressions defined elsewhere in this
Act or in other legislation.
For example, the signpost definition ‘prohibited
substance—see the Drugs of Dependence Act 1989,
section 3.’ means that the term ‘prohibited substance’
is defined in that section and the definition
applies to this Act.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
Explanatory note
This amendment brings the naming section into line with current drafting
practice and inserts standard dictionary and notes provisions. The definitions
in existing section 3 are included in the new dictionary which is inserted by
another amendment.
This amendment also changes the name of the Act by changing
‘Persons’ to ‘People’ in accordance with current
drafting practice.
[3.169] Section
6 (2) (a)
substitute
(a) the full name of the intoxicated person (if known);
Explanatory note
This amendment is consequential on the omission of the definition of
name and address in existing section 3 (2) by another
amendment.
omit
An officer referred to in subsection (1)
substitute
The police officer
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
[3.171] Section
15 (2) (c) (iii)
substitute
(iii) if the applicant is an incorporated association or any other kind of
entity—a written statement signed on behalf of the association or entity
by an office-holder stating that the association or entity can meet its
debts.
Explanatory note
This amendment brings the language of the paragraph into line with current
drafting practice.
[3.172] New
section 15 (3)
insert
(3) In this section:
name and address, of an applicant, means—
(a) if the applicant is an individual—the individual’s full
name and business address; or
(b) in any other case—the full name and residential address of each
office-holder of the applicant.
office-holder means—
(a) for a corporation—an executive officer; or
(b) for an incorporated association—the president, secretary or
public officer of the association; or
(c) for any other entity—anyone with overall responsibility for the
conduct of the entity.
Explanatory note
This amendment is consequential on the omission of the definition of
name and address in existing section 3 (2) by another amendment.
The definition of office-holder in existing section 3 (1) is
included in this section in accordance with current drafting practice because it
is the only provision in the Act in which it is used.
[3.173] New
section 16 (2) (a)
substitute
(a) the full name and address of the person to whom it is granted;
and
Explanatory note
This amendment is consequential on the omission of the definition of
name and address in existing section 3 (2) by another
amendment.
[3.174] Section
20 (3) (b)
substitute
(b) whether, in the opinion of the licensee, the licensee has complied
with the Act (including any standards);
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Explanatory note
This amendment brings the paragraph into line with current drafting
practice. In particular, it changes the reference to ‘the Act and
standards’ to reflect the Legislation Act, section 104 and a standard note
about that section is inserted.
[3.175] Section
23 (1) (e)
substitute
(e) the licensee has contravened this Act (including any
standards);
Explanatory note
This amendment brings the paragraph into line with current drafting
practice. In particular, it changes the reference to ‘the Act and
standards’ to reflect the Legislation Act, section 104 and a standard note
about that section is inserted.
substitute
27 Inspectors
(1) The chief executive may appoint a public servant as an inspector for
this Act.
Note 1 For the making of appointments (including acting
appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see
s 207).
(2) If—
(a) immediately before the commencement of this section, the duties of an
office in the public service included exercising the functions of an inspector;
and
(b) the chief executive has not made an appointment under subsection (1);
and
(c) the duties of the office have not ceases to include exercising the
functions of an inspector;
the public servant for the time being occupying the office is an
inspector.
Note Occupying a position is defined in the Legislation Act,
dict, pt 1 (see also def office).
(3) Subsection (2) is a law to which the Legislation Act, section 88
(Repeal does not end effect of transitional laws etc) applies.
(4) Subsections (2) and (3) and this subsection expire 1 year after the
day this section commences.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice and adds standard appointment notes.
The amendment includes transitional arrangements that operate until new
appointments are made.
substitute
(1) The Minister must issue to an inspector an identity card that
specifies the inspector’s full name and office, and on which appears a
recent photograph of the inspector.
Explanatory note
This amendment is consequential on the omission of the definition of
name and address in existing section 3 (2) by another
amendment.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1 defines the
following terms:
• administrative appeals tribunal
• adult
• police officer
• under.
carer means a person who works with intoxicated people at a
licensed place.
caring service means a service that provides immediate,
short-term care for intoxicated people, but does not include a service provided
at a hospital or other medical facility.
inspector means an inspector under section 27.
intoxicated means apparently under the influence of alcohol,
another drug or substance, or a combination of alcohol, drugs or
substances.
Examples of substances
1 glue
2 petrol
3 another solvent
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
licensed place means a place where a licensee is licensed to
provide a caring service.
licensee means a person who holds a licence under
section 16.
manager, for a licensed place, means the person in charge of
the place.
prescribed includes prescribed by the standards.
prohibited substance—see the Drugs of Dependence Act
1989, section 3.
public place means a place to which the public, or a section
of the public, has access, whether by payment or not, and includes a school and
any land or premises that belong to or are occupied or used in relation to a
school.
responsible person, in relation to an intoxicated person,
includes—
(a) a relative, guardian or friend of the intoxicated person who is an
adult; or
(b) a lawyer acting on behalf of the intoxicated person.
school means a government school (including a pre-school) or
non-government school under the Education Act 2004.
standard means a standard made under section 31.
Explanatory note
This amendment inserts a dictionary consequential on the omission of the
definitions section (existing section 3) by another amendment. The language and
structure of the definitions is updated to bring them more closely into line
with current drafting practice. In particular:
• the definition of admission statement is omitted
because the term is used only in section 6 and a definition is
unnecessary
• the definition of caring service is amended
consequential on another amendment
• the definition of health practitioner is omitted as
the term is no longer used in the Act
• the definition of office-holder has been moved to
section 15 (3) by another amendment
• the definition of public place is simplified and
includes school-related areas previously covered by the definition of
school
• the definition of responsible person is updated by
changing the reference to ‘solicitor’ to
‘lawyer’.
[3.179] Further
amendments, mentions of persons
omit
persons
substitute
people
in
• part 2 heading
• section 4 heading
• section 5 heading
• section 15 (2) (b) (iii)
• section 16 (1) (a)
• section 20 (3) (a)
• section 21 (1)
• section 22 (1)
• section 29 (1) (a)
• section 31 (2) (c), (d), (e) and (f)
Explanatory note
This amendment is consequential on the change of the Act’s name by
another amendment.
Part
3.30 Judicial Commissions Act
1994
[3.180] Section
3 (1), definition of magistrate
substitute
magistrate does not include a registrar.
Explanatory note
This amendment updates the definition. Magistrate is defined
in the Legislation Act, dictionary, part 1 as a magistrate under the
Magistrates Court Act 1930. The Magistrates Court Act 1930,
dictionary defines magistrate as the Chief Magistrate, a
magistrate, or a special magistrate and, if a function of a magistrate is
exercisable by a registrar, includes a registrar exercising the function. The
existing definition in the Judicial Commissions Act 1994 does not include
a registrar.
Part
3.31 Land (Planning and Environment)
Act 1991
[3.181] Section
172A (5), definition of units plan
substitute
units plan means a units plan under the Unit Titles Act
2001, section 7.
Explanatory note
This amendment is consequential on the amendment of the definition of
units plan in the Unit Titles Act 2001 by another
amendment.
substitute
(1) The planning and land authority must give an inspector an identity
card stating the person’s name and that the person is a compliance
auditor.
(1A) The identity card must show—
(a) a recent photograph of the person; and
(b) the card’s date of issue and expiry; and
(c) anything else prescribed by regulation.
Explanatory note
This amendment brings the language and structure of the subsection it into
line with current drafting practice.
renumber subsections when next republished under the Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new section 264 (1A) by
another amendment.
substitute
283 Delegation by Executive
(1) The Executive may delegate to a person a function under part 2
(Planning) or part 5 (Land administration), other than a function under the
following provisions:
• section 163 (4) (Leases to community organisations)
• section 164 (3) (Special leases)
• section 167 (1) (Eligibility for certain classes of
leases).
Note For the making of delegations and the exercise of delegated
functions, see the Legislation Act, pt 19.4.
(2) If, immediately before the commencement of this section, a person was
authorised to act on the Executive’s behalf in the exercise of a function
mentioned in subsection (1), then, on the commencement of this section, the
Executive is taken to have delegated the function to the person.
(3) Subsection (2) is a law to which the Legislation Act, section 88
(Repeal does not end effect of transitional laws etc) applies.
(4) Subsections (2) and (3) and this subsection expire 1 year after the
day this section commences.
Explanatory note
This amendment changes the power of authorisation under the section to a
power of delegation and inserts a standard note about delegations in line with
current drafting practice. The reference to section 178 (3) is omitted because
the relevant power is exercisable by the planning and land authority.
Part
3.32 Land Tax Act
2004
[3.185] Section
27 (6), definition of units plan
substitute
units plan means a units plan under the Unit Titles Act
2001, section 7.
Explanatory note
This amendment is consequential on the amendment of the definition of
units plan in the Unit Titles Act 2001 by another
amendment.
Part
3.33 Leases (Commercial and Retail)
Act 2001
[3.186] Dictionary,
new definition of continuous occupation lease
insert
continuous occupation lease—see section 10.
Explanatory note
This amendment adds a new signpost definition for continuous
occupation lease.
[3.187] Dictionary,
definition of enter into
substitute
entered into, for a lease—see section 5.
Explanatory note
This amendment brings the definition into line with current drafting
practice by including the qualification ‘for a lease’.
[3.188] Dictionary,
new definition of retail premises
insert
retail premises—see section 7 (2).
Explanatory note
This amendment adds a new signpost definition for retail
premises.
Part
3.34 Long Service Leave (Building and
Construction Industry) Act 1981
substitute
(3) For subsection (1) (b), the prescribed amount for a
2-month period is—
(a) 1.5% of the total of the amounts of ordinary remuneration paid or
payable by the employer to his or her employees (other than apprentices) during
that period; or
(b) if the Minister determines another percentage of that total—the
other percentage.
Note A determination under par (b) must be made on the advice of the
board and is a notifiable instrument (see s (9A) and s (9B)).
Explanatory note
This amendment omits an outdated reference to the gazette and brings the
subsection into line with current drafting practice. The requirement to notify
the other percentage in the gazette is replaced, by another amendment, with a
requirement that the determination be a notifiable instrument under the
Legislation Act. This amendment reflects the current position applying under
transitional provisions of the Legislation Act.
[3.190] New
section 37 (9A) and (9B)
insert
(9A) The Minister may, on the advice of the board, determine, in writing,
a percentage for subsection (3) (b).
(9B) A determination under subsection (3) (b) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
Explanatory note
This amendment is consequential on the amendment of section 37 (3) by
another amendment.
renumber subsections when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new section 37 (9A) and
(9B) by another amendment.
[3.192] Section
38 (3) and (4)
substitute
(3) For subsection (1) (b), the defined amount for a 2-month
period is—
(a) 2.5% of the total of the amounts of ordinary remuneration paid or
payable to the registered contractor during that period for the performance by
the contractor of building and construction work; or
(b) if the Minister determines another percentage of that total—the
other percentage.
(4) The Minister may, on the advice of the board, determine, in writing, a
percentage for subsection (3) (b).
(5) A determination under subsection (3) (b) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
Explanatory note
This amendment brings the subsections into line with section 37 as amended
by other amendments.
Part
3.35 Magistrates Court Act
1930
[3.193] Section
2, note 1
substitute
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere.
For example, the signpost definition ‘vehicle, for part
3.8 (Infringement notices for certain offences)—see the Road Transport
(Vehicle Registration) Act 1999, dictionary.’ means that the term
‘vehicle’ is defined in that dictionary and the definition applies
to part 3.8.
Explanatory note
This amendment replaces the reference to the signpost definition
registered operator. The definition of registered
operator in the dictionary is omitted by another amendment.
substitute
(3) If 2 or more special magistrates are divided in opinion on a case, the
case must be—
(a) if there is a majority—decided according to the decision of the
majority; or
(b) if the court is equally divided in opinion—adjourned for hearing
and decision by a magistrate (other than a special magistrate).
Explanatory note
This amendment brings the language and structure of the subsection into
line with current drafting practice.
in pt 2.1, insert
5 Arrangement of court business
(1) The Chief Magistrate is responsible for ensuring the orderly and
prompt discharge of the Magistrates Court’s business.
(2) The Chief Magistrate may, subject to consultation with the magistrates
that is appropriate and practicable, make arrangements about a magistrate who is
to constitute the court in particular matters or classes of matters.
(3) In this section:
magistrate includes special magistrate.
Explanatory note
This amendment remakes existing section 10G as new section 5 and brings the
structure of the section into line with current drafting practice. The section
deals with arrangements about the Magistrates Court’s business and is more
appropriately placed in part 2.1.
The definition of magistrate in subsection (3) has been
included to ensure that the definition of magistrate in the
dictionary does not apply to the section despite its relocation.
substitute
Division 2.2.1 Magistrates other than
special magistrates
6 Meaning of magistrate in div
2.2.1
In this division:
magistrate means—
(a) the Chief Magistrate; or
(b) a person who is appointed under section 7 as a magistrate.
7 Appointment of Chief Magistrate and other
magistrates
(1) There is to be a Chief Magistrate and other magistrates.
(2) The Chief Magistrate and other magistrates are appointed by the
Executive.
Note For the making of appointments (including acting appointments),
see the Legislation Act, pt 19.3.
(3) If a magistrate is appointed as the Chief Magistrate, the person stops
holding the position of magistrate.
7A Eligibility for appointment as
magistrate
A person is not eligible for appointment as a magistrate unless the person
is a lawyer and has been a lawyer for at least 5 years.
7B Seniority of magistrates
Magistrates other than the Chief Magistrate have seniority according
to—
(a) the dates their appointments took effect; or
(b) if the appointments of 2 or more of them took effect on the same
date—the precedence given to them by the instruments of their
appointment.
7C Conditions of appointment of
magistrates
A magistrate holds the position on the conditions (if any) about matters
not provided for under this Act or another territory law that are decided by the
Executive.
7D Term of appointment of
magistrates
(1) A magistrate is appointed for the term ending when the magistrate
turns 65 years old.
Note 1 The Judicial Commissions Act 1994, s 4 provides that a
magistrate may only be removed from office in accordance with that
Act.
Note 2 A magistrate’s appointment also ends if the magistrate
resigns (see Legislation Act, s 210).
(2) A person who is at least 65 years old must not be appointed as a
magistrate.
7E Acting Chief Magistrate
(1) The Executive may appoint a magistrate to act as Chief
Magistrate.
Note See the Legislation Act, s 209, div 19.3.2 and div 19.3.2A
about acting appointments.
(2) If no appointment is made under subsection (1), the senior magistrate
who is in the ACT and is able and willing to act must act as Chief
Magistrate.
7F Retirement
(1) This section applies if a magistrate is—
(a) an eligible employee for the Superannuation Act 1976 (Cwlth);
or
(b) a member of the superannuation scheme for the Superannuation Act
1990 (Cwlth).
(2) The Executive may retire the magistrate on the ground of invalidity
with the magistrate’s consent.
7G Magistrates not to do other
work
(1) A magistrate must not practise as a lawyer.
(2) A magistrate must not, without the Attorney-General’s written
consent—
(a) engage in remunerative employment otherwise than in connection with
duties as a magistrate; or
(b) accept appointment to another position under a law of the Territory,
the Commonwealth, a State or another Territory.
(3) The Attorney-General must consult with the Chief Magistrate before
giving consent.
7H Rights of public servants
(1) A magistrate who was a public servant or APS employee immediately
before his or her appointment keeps his or her existing and accruing
rights.
(2) In this section:
APS employee—see the Public Service Act 1999
(Cwlth), section 7.
Explanatory note
This amendment brings the language and structure of the sections into line
with current drafting practice and renumbers the sections.
The amendment of existing section 6A (new section 6) brings the definition
into line with current drafting practice.
The amendment of existing section 7 (new section 7) replaces the term
‘office’ with ‘position’. Position is
defined in the Legislation Act, dictionary, part 1 to include office. A
standard note about appointments is also inserted.
The amendment of existing section 8 (new section 7A) replaces the term
‘legal practitioner’ with ‘lawyer’.
Lawyer is defined in the Legislation Act, dictionary, part
1.
The amendment of existing section 10 (new section 7C) recognises that other
territory laws, for example, the Remuneration Tribunal Act 1995, make
provision about conditions of appointment of magistrates.
The amendment of existing section 10A (new section 7D) inserts notes about
the Judicial Commissions Act 1994 and resignation.
Existing section 10B is no longer necessary because of the Legislation Act,
section 210 which deals with resignation. A standard note about resignation is
inserted in section 7D.
Most of existing section 10C (1) (new section 7E) is no longer necessary
because of the Legislation Act, section 209 which deals with acting
appointments. A standard note about acting appointments is inserted.
The amendment of existing section 10C (2) replaces the term
‘Territory’ with ‘ACT’. When ‘the
Territory’ is used in the geographical sense, current drafting practice is
to use ‘ACT’ instead. ACT is defined in the
Legislation Act, dictionary, part 1.
Existing section 10C (3) is no longer necessary because the bar on acting
for longer than 1 year is contained in the Legislation Act, section 221
(1).
Existing section 10C (4) is no longer necessary because of the Legislation
Act, section 220 which provides that while the appointee is acting in the
position—
(a) the appointee has, subject to the instrument making or evidencing the
appointment, all the functions of the occupant of the position; and
(b) all territory laws apply in relation to the appointee as if the
appointee were the occupant of the position.
Existing section 10C (5) is no longer necessary because of the Legislation
Act, section 219 (1) which provides that the appointer may decide the
terms of the acting appointment and end the appointment at any time.
Existing section 10C (6) is no longer necessary because of the Legislation
Act, section 221 (2) which provides that, if the appointee is acting
in a position that becomes vacant while the appointee is acting, the appointee
may continue to act until the first of the following happens:
(a) the appointer ends the appointment;
(b) the vacancy is filled;
(c) 1 year after the position became vacant.
Existing section 10C (7) is no longer necessary because of the Legislation
Act, section 222 which provides that an acting appointment ends if the appointee
resigns.
Existing section 10C (8) is no longer necessary because of the Legislation
Act, section 225 which provides that an acting appointment, or anything done
under an acting appointment, is not invalid only because of a defect or
irregularity in or in relation to the appointment. It also provides that
anything done by or in relation to the appointee while the appointee purports to
act in the position is not invalid only because—
(a) the occasion for the appointment had not arisen or had ended;
or
(b) the appointment had ended; or
(c) the occasion for the appointee to act had not arisen or had
ended.
The amendment of existing section 10E (1) (new section 7G) replaces the
term ‘legal practitioner’. Lawyer is defined in the
Legislation Act, dictionary, part 1.
The amendment of existing section 10E (2) and (3) replaces the term
‘duties’ with ‘functions’ and ‘office’ with
‘position’. Function is defined in the Legislation
Act, dictionary, part 1 to include authority, duty and power and
position is defined in the Legislation Act, dictionary,
part 1 to include office.
The amendment of existing section 10F (new section 7H) removes a reference
to a repealed Commonwealth Act and updates terms. ‘Public servant’
is the term used instead of ‘officer of the public service’, and is
defined in the Legislation Act, dictionary, part 1. ‘APS employee’
is the term used instead of ‘officer of the Australian Public
Service’, and is defined in the Commonwealth Public Service Act
1999.
Existing section 10G has been moved to part 2.1 as new section 5. The
section deals with arrangements about the Magistrates Court’s business and
is more appropriately placed in part 2.1.
substitute
Division 2.2.2 Special
magistrates
8 Appointment of special
magistrates
The Executive may appoint special magistrates.
Note For the making of appointments (including acting appointments),
see the Legislation Act, pt 19.3.
8A Term of appointment of special
magistrates
(1) A special magistrate is appointed—
(a) for the term mentioned in the instrument of appointment; or
(b) if a term is not mentioned—for the term ending when the special
magistrate turns 70 years old.
Note 1 The Judicial Commissions Act 1994, s 4 provides that a
magistrate may only be removed from office in accordance with that
Act.
Note 2 A special magistrate’s appointment also ends if the
special magistrate resigns (see Legislation Act, s 210).
(2) A person who is at least 70 years old must not be appointed as a
special magistrate.
(3) A person must not be appointed as a special magistrate for a term that
extends beyond the person’s 70th birthday.
8B Conditions of appointment of special
magistrates
A special magistrate holds the position on the conditions (if any) about
matters not provided for under this Act or another territory law that are
decided by the Executive.
Explanatory note
This amendment brings the language and structure of the sections into line
with current drafting practice and renumbers the sections. In
particular:
• a standard note about appointments is inserted in new section
8
• existing section 10K is omitted because of the Legislation Act,
section 210 and replaced with a standard note about resignation which is
inserted in section 8A
• the amendment of existing section 10L (new section 8B) recognises
that other territory laws make provision about conditions of appointment of
special magistrates.
substitute
Division 2.2.3 Registrar and other court
officers
9 Appointment of registrar etc
(1) The Minister may appoint a registrar of the Magistrates
Court.
Note 1 For the making of appointments (including acting
appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person
or nominating the occupant of a position (see Legislation Act,
s 207).
(2) The registrar may appoint the deputy registrars of the court, bailiffs
and other officers that are required.
(3) In subsection (2):
registrar does not include a deputy registrar.
9A Staff assisting registrar
The staff assisting the registrar are to be employed under the Public
Sector Management Act 1994.
9B Registrar’s functions
The registrar must exercise the functions that are given to the registrar
under this Act or another territory law or that the Chief Magistrate
directs.
Explanatory note
This amendment brings the language and structure of the sections into line
with current drafting practice and renumbers the sections.
Standard notes about appointments are inserted in new section 9.
The amendment of existing section 10MA (new section 9A) removes an
unnecessary provision (existing section 10MA (2)). It is not necessary to state
that the Public Sector Management Act 1994 applies in relation to
the management of the staff because the fact that the staff are employed under
the Act (stated in existing section 10MA (1), remade as new section 9A) means
that the Act applies in relation to their management.
The amendment of existing section 10N (new section 9B) replaces the term
‘perform’ with ‘exercise’. The Legislation Act,
dictionary, part 1 defines exercise a function to include perform
the function. Also, the term ‘duties’ is replaced with
‘function’. The Legislation Act, dictionary, part 1 defines
function to include duty.
New section 9B recognises that the registrar is given functions by
territory laws apart from this Act.
substitute
10P Oath etc of office
(1) A person appointed as the Chief Magistrate, a magistrate or special
magistrate must not exercise the functions given to a magistrate under any
territory law unless the person has sworn an oath or made an affirmation in
accordance with the form in schedule 1.
(2) The oath must be sworn or affirmation made before the Chief
Justice.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice and renumbers the section. The Legislation Act, dictionary,
part 1 defines function to include duty and power, and is the
drafting term used now. Chief Justice is defined in the
Legislation Act, dictionary, part 1 as the Chief Justice of the Supreme
Court.
omit
by virtue
substitute
because
Explanatory note
This amendment updates language.
renumber as section 11
Explanatory note
This amendment is consequentially on the renumbering of sections by other
amendments.
relocate to Magistrates Court Rules 1932, part 19 as section
99
Explanatory note
This amendment relocates a section about procedural matters (authentication
of court processes) to the rules.
[3.203] Sections
12 and 13
substitute
12 Acts by magistrate out of court
etc
(1) Any magistrate out of court or the registrar may do all or any of the
following:
(a) receive an information;
(b) issue a summons or warrant on an information;
(c) issue a summons or warrant to compel the attendance of a
witness;
(d) do anything else that is necessary and preliminary to a
hearing.
(2) Without limiting subsection (1), if a law in force in the ACT provides
that an information or complaint may be laid or made before, or a summons or
warrant issued by, a court or justice of the peace, the information or complaint
may be laid or made, and the summons or warrant may be issued, by a magistrate
or the registrar.
13 Issue of warrant of commitment etc after case
decided
After a case has been heard and decided, any magistrate or the registrar
may issue a warrant of commitment or writ of execution for the purposes of the
case.
Explanatory note
The amendment of section 12 brings the language of the section into line
with current drafting practice. The amendment also removes redundant references
to a clerk or registrar ‘of petty sessions’.
The amendment of section 13 updates language. In particular, the amendment
removes the archaic word ‘thereon’.
substitute
15 Process not invalid only because of death of
magistrate etc
A summons, warrant or writ issued by a magistrate or registrar is not
invalid only because of the magistrate or registrar dying or otherwise ceasing
to hold the position.
Explanatory note
This amendment updates language.
[3.205] Section
17 heading
substitute
17 Magistrates may exercise functions of justices of
peace
Explanatory note
This amendment updates language and substitutes a heading that more
accurately reflects the contents of the section. The Legislation Act,
dictionary, part 1 defines function to include power, and is the
drafting term used now.
omit
or plaint
Explanatory note
This amendment omits a reference to redundant Supreme Court
procedure.
omit
some person at his or her last-known or usual place of abode or
business
substitute
someone at the person’s last-known or usual home or business
address
Explanatory note
This amendment updates language.
substitute
17D No action for acts done under Supreme Court
order
An action is not maintainable against a magistrate for doing an act if the
magistrate does the act in accordance with a Supreme Court order.
Explanatory note
This amendment updates language. In particular, a redundant reference to
‘an order of the judge’ has been removed. It is a hangover from
when there was only 1 judge of the Supreme Court, and when there was a
distinction between court and chambers in the Supreme Court.
omit
judge
substitute
Supreme Court
Explanatory note
This amendment updates a reference. Referring to ‘the judge’
rather than ‘the Supreme Court’ is a hangover from when there was
only 1 judge of the Supreme Court, and when there was a distinction between
court and chambers in the Supreme Court.
substitute
17G Payment into court
(1) After an action under this part has been started but before the case
has been heard, a defendant may pay into court the amount the defendant
considers appropriate.
(2) Judgment must be given for the defendant if the Supreme Court at the
trial considers that the plaintiff is not entitled to damages beyond the amount
paid into court, and the amount paid into court, or the part of it that is
enough to meet the defendant’s costs, must be paid out of court to the
defendant, and the rest (if any) must be paid to the plaintiff.
(3) If the plaintiff accepts the amount paid into court in satisfaction of
the plaintiff’s damages in the action, the plaintiff may apply to the
Supreme Court for an order for the payment of the amount out of court to the
plaintiff, with or without costs.
(4) If the Supreme Court makes the order, the action is decided and the
order is a bar to any other action for the same cause.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
omit
or plaint
Explanatory note
This amendment omits a reference to redundant Supreme Court
procedure.
omit
, and the jurisdiction is taken to be given to and may be exercised by the
court
Explanatory note
This amendment omits words that are redundant because of the Legislation
Act, section 176. Under that section, if a law authorises a proceeding to be
brought in a particular court or tribunal in relation to a matter, the law vests
the court or tribunal with jurisdiction in the matter.
substitute
(1) In this section:
penalty includes—
(a) the cancellation, forfeiture, suspension or other loss of a licence or
privilege; and
(b) the disqualification from obtaining or holding a licence or exercising
a privilege.
the court, in relation to a proceeding, means the magistrate
who convicted the defendant or made the order against the defendant.
Explanatory note
This amendment brings the language and structure of the definitions into
line with current drafting practice.
The amendment also omits the definition of business day,
because that term is defined in the Legislation Act, dictionary, part
1.
substitute
(6) If, under subsection (2), the court reopens a proceeding and, in the
absence of a party to the proceeding, amends a conviction or order, the
registrar must serve written notice of the amended conviction or order on the
absent party as soon as practicable.
Explanatory note
This amendment updates language.
substitute
25 Informations
A proceeding may be started in the court by information laid by the
informant or by a lawyer or anyone else representing the informant.
Explanatory note
This amendment replaces the term ‘legal practitioner’ with
‘lawyer’ in accordance with current drafting practice and updates
language. Lawyer is defined in the Legislation Act, dictionary,
part 1.
substitute
30 Form of information
(1) If a warrant is intended to be issued in the first instance against
the person charged, the information must be in writing and on oath.
(2) The oath may be made by the informant or someone else.
(3) If a summons instead of a warrant is intended to be issued in the
first instance against the person charged, the information may be made orally
and without oath.
(4) Subsection (3) applies whether or not the law under which the
information is laid requires it to be in writing.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
[3.217] Section
41 (1) (b)
substitute
(b) by leaving a copy of the summons at the last-known or usual home or
business address of the person with someone who appears to be at least 16 years
old and to live or be employed at the address.
Explanatory note
This amendment updates language.
[3.218] Division
3.3.4 heading
substitute
Division 3.3.4 Warrants
Explanatory note
This amendment revises the heading to more accurately reflect the
division’s application.
substitute
42 Issue of warrant and summons
(1) This section applies if—
(a) an information is laid before a magistrate under division 3.3.2
against a person for an offence; and
(b) the information is substantiated by the oath of the informant or a
witness; and
(c) the person is not in custody.
(2) The magistrate may issue a warrant for the person’s arrest, and
for bringing the person before the court to answer to the information and to be
further dealt with according to law.
(3) However, the magistrate may issue a summons instead of the warrant if
the magistrate considers it appropriate.
(4) The issue of the summons does not prevent a magistrate from issuing a
warrant at any time before or after the time mentioned in the summons for the
person’s appearance.
(5) However, subsection (4) does not authorise the issue of a warrant to
bring the person before the court to answer to the information if a summons has
been served on the person for the offence in accordance with section 116B
(Service of summons for prescribed offence).
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
substitute
47 Form of arrest warrant
A warrant issued on an information must—
(a) briefly state the offence or matter of the information; and
(b) name or otherwise describe the person against whom it is issued;
and
(c) order the police officers to whom it is directed to—
(i) arrest the person; and
(ii) bring the person before the court to answer the information and to be
further dealt with according to law.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice. It ensures that the language of this section and section 42
(Issue of warrant and summons) is consistent.
omit
grant or
Explanatory note
This amendment omits words made redundant by other amendments.
[3.222] Sections
53 and 54
substitute
53 Conduct of case generally
(1) The informant may—
(a) conduct his or her case personally or by a lawyer; and
(b) examine and cross-examine the witnesses giving evidence for or against
the informant; and
(c) if the defendant gives any evidence or examines any witness about
anything other than general character—call and examine witnesses in
reply.
(2) The defendant may—
(a) fully answer and defend personally or by a lawyer; and
(b) give evidence; and
(c) examine and cross-examine the witnesses giving evidence for or against
the defendant.
54 If both parties present in court to hear
case
The court must hear and decide an information if both parties to the
information appear personally or by lawyers or anyone else appearing for
them.
Explanatory note
This amendment brings the language of the sections into line with current
drafting practice. In particular, the term ‘legal practitioner’ is
replaced with ‘lawyer’. Lawyer is defined in the
Legislation Act, dictionary, part 1.
[3.223] Division
3.4.2 heading
substitute
Division 3.4.2 Warrants for
witnesses
Explanatory note
This amendment is consequential on the omission of section 55.
omit
Explanatory note
This amendment omits a section that deals with matters now covered by other
laws and that is, in a number of respects, inconsistent with the Evidence Act
1995 (Cwlth). That Act, section 21 deals with when sworn evidence of
witnesses in the Magistrates Court must be on oath or affirmation. The Oaths
and Affirmations Act 1984, section 11 and the Legislation Act,
section 178 provide authority for the administration of oaths and
affirmations by the Magistrate’s Court.
omit
division 3.3.4 (Warrants of arrest)
substitute
division 3.3.4 (Warrants)
Explanatory note
This amendment is consequential on the amendment of division 3.3.4 heading
by another amendment.
substitute
79 Recognisances taken out of
court
(1) A recognisance under this Act need not be entered into before the
court, but may be entered into by the parties before—
(a) a magistrate; or
(b) the registrar; or
(c) a police officer in charge of a police station; or
(d) if a party is in a prison or remand centre—the officer in charge
of the prison or the administrator of the remand centre.
(2) The provisions of this Act in relation to recognisances taken before
the court apply in relation to the recognisance as if it had been entered into
before the court.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
omit
legal practitioners
substitute
lawyers
Explanatory note
This amendment updates the term in accordance with current drafting
practice. Lawyer is defined in the Legislation Act, dictionary,
part 1.
[3.228] Sections
85 to 87
substitute
85 Proceeding if either party not present at
adjourned hearing
(1) This section applies if either or both of the parties do not appear
personally or by lawyers or anyone else appearing for them at the time and place
to which the hearing or further hearing is adjourned.
(2) The court may—
(a) go ahead with the hearing or further hearing as if the party or
parties were present; or
(b) if the informant does not appear—dismiss the information, with
or without costs as the court considers just.
86 Proceeding if both parties present at adjourned
hearing
(1) This section applies if the parties appear personally or by lawyers or
anyone else appearing for them at the time and place to which the hearing or
further hearing is adjourned.
(2) The court may go ahead with the hearing or further hearing.
87 Witness to attend adjourned etc
hearing
(1) This section applies to a person who is required by summons to attend
a hearing to give evidence or produce a document if the hearing is adjourned or
postponed.
(2) The person must attend at the time and place to which the hearing is
adjourned or postponed without the issue or service of a further
summons.
(3) However, the person is entitled to additional expenses for
attending.
Explanatory note
This amendment brings the language of the sections into line with current
drafting practice. In particular, the amendment of sections 85 and 86 replaces
the term ‘legal practitioners’ with ‘lawyers’.
Lawyer is defined in the Legislation Act, dictionary, part
1.
substitute
89 Disobedience of summons
(1) This section applies if—
(a) a person is alleged by an information to have committed an indictable
offence; and
(b) a summons is issued against the person; and
(c) the person does not appear before the court at the time and place
mentioned in the summons; and
(d) the court is satisfied, on oath, that the summons was properly served
on the person a reasonable time before the time mentioned in the summons for the
appearance; and
(e) the information is substantiated by the oath of the informant or a
witness.
(2) The court may issue a warrant for the person’s arrest and for
bringing the person before the court to answer to the information and to be
further dealt with according to law.
(3) This section does not apply if an order has been made under
section 89A (1) excusing the person from attending before the
court.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
omit
legal practitioner
substitute
lawyer
Explanatory note
This amendment updates the term in accordance with current drafting
practice. Lawyer is defined in the Legislation Act, dictionary,
part 1.
substitute
(6) A notice under subsection (4) or (5) may be given to a person
by—
(a) giving a copy of the notice to the person; or
(b) leaving a copy of the notice at the last-known or usual home or
business address of the person with someone who appears to be at least 16 years
old and to live or be employed at the address.
Explanatory note
This amendment brings the language of the subsection into line with
current drafting practice.
omit
legal practitioner
substitute
lawyer
Explanatory note
This amendment updates the term in accordance with current drafting
practice. Lawyer is defined in the Legislation Act, dictionary,
part 1.
substitute
(1) If the informant has given notice to the accused person in accordance
with section 90, the court at the preliminary examination may admit a written
statement (a copy of which accompanied the notice) as evidence of the matters in
the statement.
(1A) The statement is the deposition of the person who made it if admitted
into evidence.
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
omit
legal practitioner
substitute
lawyer
Explanatory note
This amendment updates the term in accordance with current drafting
practice. Lawyer is defined in the Legislation Act, dictionary,
part 1.
renumber subsections when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new section 90AA (1A)
by another amendment.
substitute
90AB Preliminary examination if written statements
not tendered
(1) This section applies if—
(a) a person is alleged to have committed an indictable offence;
and
(b) a notice has not been given to the person in accordance with section
90.
(2) The court must take the preliminary examination or statement on oath
of anyone (a sworn person) who knows the facts and circumstances
of the case.
(3) The examination or statement must be taken in the presence or hearing
of—
(a) the person; and
(b) if the person asks—a lawyer representing the person.
(4) The person or the person’s lawyer may cross-examine a sworn
person.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice. In particular, it replaces the term ‘legal
practitioner’ with ‘lawyer’. Lawyer is defined
in the Legislation Act, dictionary, part 1.
[3.237] Section
90ABA heading
substitute
90ABA Attendance not required under s 90AA or s 90AB
if order made under s 89A
Explanatory note
This amendment updates a cross-reference.
[3.238] Section
90A (6) and (7)
substitute
(6) If—
(a) the court accepts the plea; and
(b) any of the following subparagraphs applies to the offence:
(i) the offence is under a law in force in the ACT punishable either on
indictment or summary conviction;
(ii) the offence may be dealt with summarily without the accused
person’s consent;
(iii) the offence may be dealt with summarily if the accused person
consents and the accused person consents to it being dealt with
summarily;
(iv) the offence may be dealt with summarily if the prosecutor requests
and the prosecutor requests that it be dealt with summarily; and
(c) it appears to the court that it is proper to deal with the case
summarily;
the court may, without hearing further evidence, sentence or otherwise deal
with the accused person and finally dispose of the charge and all incidental
matters.
(7) If—
(a) the court accepts the plea; and
(b) any of the following subparagraphs applies to the offence:
(i) it does not appear to the court that it is proper to deal with the
case summarily;
(ii) the offence is punishable only on indictment;
(iii) the offence may be dealt with summarily if the accused person
consents, but the accused person does not consent to it being dealt with
summarily;
(iv) the offence may be dealt with summarily if the prosecutor requests,
but the prosecutor does not request that it be dealt with summarily;
(v) this subsection applies to the accused person under the Crimes Act,
section 375;
the Magistrates Court must commit the accused person to the sittings of the
Supreme Court that the Supreme Court directs and the Supreme Court must deal
with the accused person in accordance with subsections (8) to (12).
Explanatory note
This amendment brings the language and structure of the subsections into
line with current drafting practice.
substitute
(9) The Supreme Court may order that the proceeding before the Magistrates
Court where the accused person pleaded guilty be continued at a time and place
stated in the order.
(9A) The Supreme Court must make an order under subsection (9)
if—
(a) it appears to the Supreme Court from the information or evidence given
to or before it that the facts in relation to which the accused person was
charged before the Magistrates Court do not support the charge to which the
accused person pleaded guilty; or
(b) the accused person or a lawyer representing the accused person or
informant asks that the order be made.
Explanatory note
This amendment brings the language and structure of the subsection into
line with current drafting practice.
omit
specified
substitute
stated
Explanatory note
This amendment is consequential on the remaking of section 90A
(9).
renumber subsections when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new section 90A (9A) by
another amendment.
substitute
91 Court may discharge accused
When all the evidence offered by the prosecution in relation to the
indictable offence with which the accused person is charged has been taken, the
court must—
(a) if the court is of the opinion, having regard to all the evidence
before it, that the evidence is capable of satisfying a jury beyond reasonable
doubt that the person has committed an indictable offence—proceed in
accordance with section 92; or
(b) if the court is not of the opinion mentioned in paragraph (a) and the
person is in custody in relation to the offence—immediately order that the
person be released from custody in relation to the offence.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
omit
, which by law would be
substitute
if it is
Explanatory note
This amendment updates language.
substitute
94 Discharge or committal for
trial
When all the evidence for the prosecution and the defence have been taken
in relation to the indictable offence with which the accused person is charged,
the court must—
(a) if the court is of the opinion, having regard to all the evidence
before it, that a jury would not convict the person of an indictable offence and
the person is in custody in relation to the offence—immediately order that
the person be released from custody in relation to the offence; or
(b) if the court is not of the opinion mentioned in paragraph (a)—it
must commit the person for trial for the offence before the Supreme Court and,
by warrant, commit the person in custody until the trial or until the defendant
is released on bail.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
omit
legal practitioner
substitute
lawyer
Explanatory note
This amendment updates the term in accordance with current drafting
practice. Lawyer is defined in the Legislation Act, dictionary,
part 1.
substitute
105 Court may commit noncompliant
witness
(1) If a witness does not enter into a recognisance required by the court,
the court may, by warrant, commit the witness to a prison or remand centre until
after the defendant’s trial, unless the witness enters into the
recognisance before a magistrate.
(2) If the witness is committed to a prison or remand centre, a magistrate
may, by order, direct the person in charge of the prison or the superintendent
of the remand centre to release the witness from custody on the warrant
if—
(a) the defendant is not committed for trial for the offence with which
the defendant is charged; or
(b) the relevant officer declines to file an information against the
defendant for the offence; or
(c) the witness enters into the recognisance before a
magistrate.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
substitute
105A Meaning of certified copy of depositions
in div 3.5.6
In this division:
certified copy, of depositions, means—
(a) if a record of the deposition was made in accordance with section 316
(2)—a transcript of the record certified in accordance with section 314
(2); or
(b) if the depositions were taken down in writing and signed in accordance
with section 316 (3)—the depositions as taken down and signed.
Explanatory note
This amendment brings the language and structure of the definition into
line with current drafting practice.
substitute
(2) In this section:
depositions means a certified copy of depositions.
statement includes a certified copy of the statement (if any)
made by a defendant in reply to the question mentioned in section 92
(1).
Explanatory note
This amendment brings the structure of the definitions into line with
current drafting practice and updates language.
omit
or cause to be given
Explanatory note
This amendment omits unnecessary words.
substitute
108 Accused person may obtain copies of depositions
etc
(1) This section applies if—
(a) a person is charged with an indictable offence; and
(b) the Magistrates Court commits the person for trial before the Supreme
Court.
(2) At any time before the person’s trial before the Supreme Court
starts, the person may apply to the registrar—
(a) for certified copies of depositions in the case; and
(b) for the evidence given on the cross-examination or the examination of
any witnesses in the case.
(3) The registrar must give the person the certified copies of depositions
and the evidence applied for under subsection (2).
(4) If the person is in custody, the person having the custody of the
person must give any application under subsection (2) to the
registrar.
Explanatory note
This amendment omits unnecessary words from the heading and brings the
language of the section into line with current drafting practice .
[3.251] Section
109 (1) (b)
omit
legal practitioner
substitute
lawyer
Explanatory note
This amendment updates the term in accordance with current drafting
practice. Lawyer is defined in the Legislation Act, dictionary,
part 1.
[3.252] Section
110 heading
substitute
110 Hearing in absence of
defendant
Explanatory note
This amendment omits unnecessary words.
[3.253] Section
110 (1) (a)
omit
ex parte
Explanatory note
This amendment omits unnecessary words.
[3.254] Section
110 (1) (b)
omit 2nd mention
of
its
substitute
a
Explanatory note
This amendment updates language.
[3.255] Section
110 (4) (a)
substitute
(a) a lawyer; or
Explanatory note
This amendment replaces the term ‘legal practitioner’ with
‘lawyer’ in accordance with current drafting practice.
Lawyer is defined in the Legislation Act, dictionary, part
1.
[3.256] Section
110 (4) (d)
substitute
(d) a person prescribed by regulation or rule.
Explanatory note
This amendment makes it clear that a person can be prescribed for the
paragraph by regulation or rule of court.
substitute
111 Adjournment if defendant does not
appear
(1) This section applies if—
(a) the defendant does not appear before the court for the hearing of the
information; and
(b) the court has issued a warrant for the defendant’s
arrest.
(2) The court must adjourn the hearing until the defendant is
arrested.
(3) If the defendant is arrested under the warrant, the defendant must be
detained in safe custody, until the defendant can be brought before the court at
a time and place fixed by the court.
(4) The court must give the informant notice of the time and place
fixed.
Explanatory note
This amendment brings the structure of the section into line with current
drafting practice. The amendment also revises the heading to accurately reflect
the section’s application.
omit
Explanatory note
This amendment omits an unnecessary provision (see Magistrates Court Act
1930, section 54).
[3.259] Sections
114 to 116
substitute
114 If defendant does not admit the
case
(1) This section applies if the defendant does not admit the truth of the
information.
(2) The court must hear—
(a) the informant and the informant’s witnesses (if any);
and
(b) if the defendant wants to give evidence—the defendant;
and
(c) the defendant’s witnesses (if any); and
(d) if the defendant has given evidence other than about the
defendant’s general character—the informant’s witnesses in
reply (if any).
(3) Having heard each party and the evidence, the court must decide the
information and do 1 of the following as justice requires:
(a) convict the defendant;
(b) make an order on the defendant;
(c) dismiss the information.
115 Conduct of summary
proceeding
(1) The defendant or a lawyer representing the defendant may address the
court after all the evidence for the informant and the evidence (if any) for the
defendant and for the informant in reply has been given.
(2) The informant or a lawyer representing the informant may make a
closing address.
Explanatory note
This amendment brings the language and structure of the sections into line
with current drafting practice. In particular, the amendment replaces the term
‘legal practitioner’ with ‘lawyer’.
Lawyer is defined in the Legislation Act, dictionary, part
1.
The amendment also omits existing section 115 as it is unnecessary (see
section 85).
substitute
116A Definitions for pt 3.7
(1) In this part:
defendant means a person who has been properly served with a
summons in accordance with section 116B.
law in force in the ACT includes a statute of the Australian
National University about parking or traffic.
(2) For this part (other than section 116B (2)), a notice to
defendant form, notice of intention to defend form and
plea of guilty form includes a copy of the form printed on the
back of a copy of a summons.
Explanatory note
This amendment brings the language of the definitions into line with
current drafting practice.
[3.261] Section
116AA (2) (g) and (h)
substitute
(g) any other Act or any regulation prescribed by regulation.
Note 1 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Note 2 A reference to an Act includes a reference to a provision of
an Act, and a reference to a subordinate law includes a reference to a provision
of a subordinate law (see Legislation Act, s 7 and s 8).
Explanatory note
This amendment amends paragraph (g) by omitting the reference to ‘a
provision of an Act or regulation’. This is no longer necessary because
of the Legislation Act, section 7 and section 8. The amendment also omits
paragraph (h) which is no longer necessary because of the Legislation Act,
section 104. Standard notes about those sections are inserted.
The amendment also inserts notes to assist in the interpretation of the
subsection.
substitute
(1) A summons for a person in relation to a prescribed offence may be
served on the person—
(a) by giving 2 copies of the summons to the person; or
(b) by sending 2 copies of the summons by prepaid post, addressed to the
person, at the person’s last-known home or business address; or
(c) by leaving 2 copies of the summons at the person’s last-known
home or business address with someone who appears to be at least 16 years old
and to live or be employed at the address.
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
substitute
(3) Service of a summons on a person in relation to a prescribed offence
in a way mentioned in subsection (1) (a) or (c) must be made not less than 14
days before the day the person is required by the summons to appear before the
court.
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
substitute
116BA Giving of notice by
registrar
If the registrar is required to give notice to a person under this part,
the notice may be given by sending the notice by prepaid post, addressed to the
person, at the person’s last-known home or business address.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
[3.265] Section
116C (3) (b)
substitute
(b) a lawyer;
Explanatory note
This amendment replaces the term ‘legal practitioner’ with
‘lawyer’ in accordance with current drafting practice.
Lawyer is defined in the Legislation Act, dictionary, part
1.
[3.266] Section
116C (3) (d)
substitute
(d) a person prescribed by regulation or rule.
Explanatory note
This amendment makes it clear that a person can be prescribed for the
paragraph by regulation or rule of court.
[3.267] Section
116H (1) (b)
omit
legal practitioner
substitute
lawyer
Explanatory note
This amendment updates the term in accordance with current drafting
practice. Lawyer is defined in the Legislation Act, dictionary,
part 1.
substitute
(2) If—
(a) the court convicts a defendant of an offence against a law mentioned
in a paragraph of section 116AA (1); and
(b) the law provides in effect that a penalty other than a fine may be
imposed on the defendant; and
(c) when the defendant is sentenced, the defendant is not before the court
or is not represented before the court by a lawyer; and
(d) the court considers that a penalty other than a fine may be
appropriate;
the court must adjourn the hearing and fix a time and place for
sentence.
(2A) The registrar must give the defendant notice of the time and place
fixed.
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
renumber subsections when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new section 116H
(2A).
[3.270] Section
116I heading
substitute
116I Consequences of conviction in absence of
defendant
Explanatory note
This amendment replaces the term ‘ex parte’ in the
heading.
[3.271] Section
117, definitions of registered operator and trader’s
plate
omit
Explanatory note
This amendment omits definitions that are not used.
substitute
(1) The conviction or order must, if required, be drawn up by the court in
proper form and be filed by the registrar in the court’s
records.
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
substitute
143 Consequences if information
dismissed
(1) The court must make an order of dismissal if the court dismisses an
information.
(2) The court must give the defendant a certificate of dismissal signed by
the adjudicating magistrate or the registrar if the defendant applies for
it.
(3) If a certificate of dismissal is produced to a court—
(a) the court must accept it as proof of the matters stated in it if there
is no evidence to the contrary; and
(b) it is a bar to any other information or proceeding in any court (other
than an appeal) for the same matter against the same party.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
[3.274] Section
146, definition of fine, paragraph (a)
omit
pecuniary
substitute
financial
Explanatory note
This amendment updates language.
[3.275] Section
146, definition of government agency,
paragraph (c)
substitute
(c) a territory entity prescribed by regulation.
Explanatory note
This amendment brings the language of the paragraph into line with current
drafting practice.
[3.276] Section
146, definition of outstanding fine
substitute
outstanding fine, in relation to a person, means the total
of—
(a) the whole or any part of a fine that the person is liable to pay;
and
(b) the whole or any part of an administrative fee that the person is
liable to pay in relation to the fine.
Explanatory note
This amendment brings the structure of the definition into line with
current drafting practice.
substitute
(1) If the court imposes a fine on a person for an offence, the
court—
(a) must allow time for payment, if the summons for the offence was served
in accordance with section 116B; or
(b) may allow time for payment, in any other case.
Explanatory note
This amendment brings the structure of the subsection into line with
current drafting practice.
[3.278] Sections
155 and 156
substitute
155 Fine amounts to be paid to
registrar
(1) This section applies if—
(a) a person must pay an amount because of a conviction or court order;
and
(b) the person pays the amount to a police officer or someone
else.
(2) The police officer or other person must immediately pay the amount to
the registrar.
156 Execution to stop on payment
(1) This section applies if—
(a) a warrant is issued under section 154D (Committal to prison—fine
defaulters) for a fine defaulter; and
(b) the fine defaulter pays the police officer executing the warrant the
amounts mentioned in it.
(2) The police officer must stop executing the warrant.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
[3.279] Section
166A, definition of fine, paragraph (a)
omit
pecuniary
substitute
financial
Explanatory note
This amendment updates language.
[3.280] Section
166A, definition of reciprocating court
substitute
reciprocating court means a court declared under section 166B
to be a reciprocating court.
Explanatory note
This amendment revises the definition to remove references to classes of
courts that are unnecessary because of the Legislation Act, section
48.
substitute
(1) If a State has laws providing for the enforcement in the State of a
territory fine against a body corporate, the Attorney-General may, in writing,
declare a court of summary jurisdiction in the State to be a reciprocating
court.
Explanatory note
This amendment revises the subsection to remove references to classes of
courts that are unnecessary because of the Legislation Act, section
48.
substitute
(1) If—
(a) a fine is payable by a body corporate under a conviction of a
reciprocating court; and
(b) the registrar receives a written request from the relevant officer of
the reciprocating court for the enforcement of the conviction accompanied
by—
(i) a copy, certified by the relevant officer to be correct, of the
conviction; and
(ii) a certificate signed by the relevant officer stating the amount of
the fine that remains unpaid;
the registrar must register the conviction by filing in the court the
certified copy of the conviction and noting the date of the registration on the
copy.
Explanatory note
This amendment brings the language and structure of the subsection into
line with current drafting practice.
[3.283] Section
166C (2) (a)
omit
specified
substitute
stated
Explanatory note
This amendment is consequential on the remaking of section 166C
(1).
substitute
(4) If—
(a) a writ is issued under subsection (2) in relation to a fine;
and
(b) before execution, the registrar receives a notification mentioned in
subsection (3) in relation to the fine;
the registrar must arrange for the return of the writ.
(4A) On the return of the writ, the registrar must—
(a) if the amount of the fine has been paid in full—withdraw the
writ; or
(b) if part of the amount of the fine remains unpaid—amend the writ
to show the amount still unpaid.
Explanatory note
This amendment brings the structure of the subsection into line with
current drafting practice.
renumber subsections when Act next republished under Legislation
Act
Explanatory note
This amendment is consequential on the insertion of new section 166C
(4A).
[3.286] Section
185 (1) (b)
omit
neglects or refuses
substitute
fails
Explanatory note
This amendment updates language.
omit
in that behalf
Explanatory note
This amendment omits unnecessary words.
substitute
(2) In subsection (1) (b):
order does not include an order under the Crimes Act, section
350.
Explanatory note
This amendment brings the definition into line with current drafting
practice.
omit
forthwith
substitute
immediately
Explanatory note
This amendment updates language.
omit
pecuniary
substitute
financial
Explanatory note
This amendment updates language.
substitute
195 Convictions etc to be given to Supreme Court
registrar
(1) This section applies if a person is convicted of an indictable offence
by the court or an information in relation to an indictable offence is dismissed
by the court.
(2) The court must immediately give the registrar of the Supreme Court a
copy of the conviction and recognisances or a copy of the certificate of
dismissal (if any).
(3) The court must keep a conviction and dismissal book and record each
conviction or dismissal in it.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
[3.292] Section
214 (3) (a) (i)
substitute
(i) order the production of a document or anything else that was an
exhibit in, or was otherwise connected with, the proceeding out of which the
appeal arose and that appears to it to be necessary to produce for deciding the
appeal; and
Explanatory note
This amendment brings the language of the subparagraph into line with
current drafting practice.
substitute
(2) In subsection (1) (f):
sentence or penalty includes a decision or order made under
the Crimes Act, section 402 (1) or (3), section 403 (1), section 404 (4) or (7)
or section 405 (1) or (3), whether or not the person is convicted of the
offence.
Explanatory note
This amendment brings the structure of the definition into line with
current drafting practice.
omit
If
substitute
This section applies if—
Explanatory note
This amendment, and the other amendments of section 219C (1), bring the
structure of the subsection into line with current drafting practice.
[3.295] Section
219C (1) (c)
omit
Magistrates Court;
substitute
Magistrates Court.
Explanatory note
This amendment, and the other amendments of section 219C (1), bring the
structure of the subsection into line with current drafting practice.
omit
the Supreme Court may
substitute
(1A) The Supreme Court may
Explanatory note
This amendment, and the other amendments of section 219C (1), bring the
structure of the subsection into line with current drafting practice.
renumber subsections and paragraphs when Act next republished under
Legislation Act
Explanatory note
This amendment is consequential on the insertion of new section 219C
(1A).
omit
or the judge
Explanatory note
This amendment omits an outdated and unnecessary reference to ‘the
judge’ of the Supreme Court. Referring to ‘the judge’ rather
than just ‘the Supreme Court’ is a hangover from when there was only
1 judge of the Supreme Court, and when there was a distinction between court and
chambers in the Supreme Court.
omit
or cause to be given
Explanatory note
This amendment omits unnecessary words.
omit
or claim (if any)
Explanatory note
This amendment omits an outdated and unnecessary reference to a
‘claim’.
substitute
223 Amendment of documents
(1) This section applies if—
(a) a document mentioned in section 222 (2) is given to the Supreme Court;
and
(b) the offence charged or intended to be charged by the document appears
to have been established; and
(c) the Magistrates Court’s judgment appears to be in substance
justified; and
(d) the defects or errors appear to be defects of form only or mistakes
not affecting the substance of the proceeding before the Magistrates
Court.
(2) The Supreme Court must allow the warrant of commitment, and may allow
the conviction, judgment or order also, to be immediately amended as necessary
in accordance with the facts.
(3) The person committed must then be remanded to the person’s
former custody.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
[3.302] Sections
224, 225 (2), 226 and 227 (2)
omit
or the judge
Explanatory note
This amendment omits outdated and unnecessary references to ‘the
judge’ of the Supreme Court. Referring to ‘the judge’ rather
than just ‘the Supreme Court’ is a hangover from when there was only
1 judge of the Supreme Court, and when there was a distinction between court and
chambers in the Supreme Court.
substitute
228 No summons or information
(1) This section applies to a conviction or order in a case
if—
(a) a relevant person is present at the hearing of the case; and
(b) there is no summons or information (or an amendment of a summons or
information) in relation to the person; and
(c) the person does not object at the hearing about the matter mentioned
in paragraph (b).
(2) The conviction or order stands.
(3) In this section:
relevant person means—
(a) a convicted person; or
(b) a person against whom an order has been made; or
(c) a person whose goods have been condemned or ordered to be sold as
forfeited.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
substitute
(2) Record of the security having been made may be provided by entry of it
in the court’s records.
Explanatory note
This amendment simplifies the subsection by removing unnecessary
detail.
[3.305] Section
311 (4) and (5)
substitute
(4) In this Act:
appearance, in relation to a proceeding and whether by a
party or anyone else, includes appearance in accordance with this section if
this section applies.
(5) In this section:
proceeding does not include a proceeding about
bail.
Explanatory note
This amendment brings the language and structure of the definitions into
line with current drafting practice.
omit
cause to be erased
substitute
erase
Explanatory note
This amendment updates language.
omit
(see s 10P)
substitute
(see s 10)
Explanatory note
This amendment is consequential on the remaking of section 10P as section
10.
[3.308] Dictionary,
definition of magistrate, paragraph (b)
substitute
(b) for division 2.2.1 (Magistrates other than special
magistrates)—see section 6.
Explanatory note
This amendment is consequential on the remaking of division 2.2.1
(including section 6A) by another amendment.
[3.309] Dictionary,
new definitions
insert
notice to defendant form, for part 3.7 (Service and pleading
by post for certain offences) (other than section 116B (2))—see
section 116A (2).
notice of intention to defend form, for part 3.7 (Service and
pleading by post for certain offences) (other than
section 116B (2))—see section 116A (2).
plea of guilty form, for part 3.7 (Service and pleading by
post for certain offences) (other than section 116B (2))—see
section 116A (2).
Explanatory note
This amendment inserts signpost definitions in line with current drafting
practice.
[3.310] Dictionary,
definitions of registered operator and trader’s
plate
omit
Explanatory note
This amendment omits signpost definitions of definitions that are being
omitted from section 117 by another amendment.
[3.311] Dictionary,
new definition of vehicle-related offence
insert
vehicle-related offence, for part 3.8 (Infringement notices
for certain offences)—see section 117.
Explanatory note
This amendment inserts a signpost definition in accordance with current
drafting practice.
Part
3.36 Magistrates Court (Land Planning
and Environment Infringement Notices) Regulation 2003
[3.312] Sections
10 and 11
substitute
10 Contents of infringement notices—identifying
authorised person
An infringement notice served on a person by an authorised person for an
infringement notice offence against the Land Act must identify the
authorised person by—
(a) the authorised person’s full name, or surname and initials;
or
(b) any unique number given, for this regulation, to the authorised person
by the administering authority.
11 Contents of reminder notices—identifying
authorised person
A reminder notice served on a person by an authorised person for an
infringement notice offence against the Land Act must identify the
authorised person by—
(a) the authorised person’s full name, or surname and initials;
or
(b) any unique number given, for this regulation, to the authorised person
by the administering authority.
Explanatory note
This amendment brings the sections into line with current drafting
practice. The existing sections require an authorised person to be identified
on an infringement or reminder notice by name and the issue and expiry dates of
the authorised person’s identity card. The intention of the infringement
notice scheme under the Magistrates Court Act 1930 is that an authorised
person must be identified by name or, if the authorised person is given a unique
identifying number by the administering authority for the infringement notice
scheme, by name or identifying number. An identifying number may be appropriate
for particular situations. The issue and expiry dates of an authorised
person’s identify card are not relevant to the issue of an infringement or
reminder notice.
Part
3.37 Magistrates Court (Sale of
Residential Property Infringement Notices) Regulation 2004
[3.313] Sections
9 and 10
omit
surname and initials; and
substitute
surname and initials; or
Explanatory note
This amendment brings the sections into line with current drafting
practice. The existing sections require an authorised person to be identified
on an infringement or reminder notice by name and any unique identifying
number given to the authorised person by the administering authority for the
infringement notice scheme. The intention of the infringement notice scheme
under the Magistrates Court Act 1930 is that an authorised person must be
identified by name or, if the authorised person is given a unique identifying
number, by the authorised person’s name or identifying number. An
identifying number may be appropriate for particular situations.
Part
3.38 Magistrates Court (Security
Industry Infringement Notices) Regulation 2003
[3.314] Sections
10 and 11
substitute
10 Contents of infringement notices—identifying
authorised person
An infringement notice served on a person by an authorised person for an
infringement notice offence against the Security Act must identify the
authorised person by—
(a) the authorised person’s full name, or surname and initials;
or
(b) any unique number given, for this regulation, to the authorised person
by the administering authority.
11 Contents of reminder notices—identifying
authorised person
A reminder notice served on a person by an authorised person for an
infringement notice offence against the Security Act must identify the
authorised person by—
(a) the authorised person’s full name, or surname and initials;
or
(b) any unique number given, for this regulation, to the authorised person
by the administering authority.
Explanatory note
This amendment brings the sections into line with current drafting
practice. The existing sections require an authorised person to be identified
on an infringement or reminder notice by name and the issue and expiry dates of
the authorised person’s identity card. The intention of the infringement
notice scheme under the Magistrates Court Act 1930 is that an authorised
person must be identified by name or, if the authorised person is given a unique
identifying number by the administering authority for the infringement notice
scheme, by name or identifying number. An identifying number may be appropriate
for particular situations. The issue and expiry dates of an authorised
person’s identify card are not relevant to the issue of an infringement or
reminder notice.
Part
3.39 Magistrates Court (Trade
Measurement Infringement Notices) Regulation 2002
[3.315] Sections
10 and 11
substitute
10 Contents of infringement
notices—identifying authorised person
An infringement notice served on a person by an authorised person for an
infringement notice offence against the trade measurement legislation
must identify the authorised person by—
(a) the authorised person’s full name, or surname and initials;
or
(b) any unique number given, for this regulation, to the authorised person
by the administering authority.
11 Contents of reminder notices—identifying
authorised person
A reminder notice served on a person by an authorised person for an
infringement notice offence against the trade measurement legislation
must identify the authorised person by—
(a) the authorised person’s full name, or surname and initials;
or
(b) any unique number given, for this regulation, to the authorised person
by the administering authority.
Explanatory note
This amendment brings the sections into line with current drafting
practice. The existing sections require an authorised person to be identified
on an infringement or reminder notice by name and the issue and expiry dates of
the authorised person’s identity card. The intention of the infringement
notice scheme under the Magistrates Court Act 1930 is that an authorised
person must be identified by name or, if the authorised person is given a unique
identifying number by the administering authority for the infringement notice
scheme, by name or identifying number. An identifying number may be appropriate
for particular situations. The issue and expiry dates of an authorised
person’s identify card are not relevant to the issue of an infringement or
reminder notice.
Part
3.40 Magistrates Court (Utilities
Infringement Notices) Regulation 2002
[3.316] Sections
11 and 12
omit
surname and initials; and
substitute
surname and initials; or
Explanatory note
This amendment brings the sections into line with current drafting
practice. The existing sections require an authorised person to be identified
on an infringement or reminder notice by name and any unique identifying
number given to the authorised person by the administering authority for the
infringement notice scheme. The intention of the infringement notice scheme
under the Magistrates Court Act 1930 is that an authorised person must be
identified by name or, if the authorised person is given a unique identifying
number, by the authorised person’s name or identifying number. An
identifying number may be appropriate for particular situations.
Part
3.41 National Environment Protection
Council Act 1994
[3.317] Section
13 (2) (a) and (b)
substitute
(a) be developed and agreed in conjunction with the National Transport
Commission; and
(b) be determined in accordance with the National Transport Commission
Act 2003 (Cwlth) and, if appropriate, the Motor Vehicle Standards Act
1989 (Cwlth).
Explanatory note
This amendment reflects Commonwealth legislative changes following the
repeal of the National Road Transport Commission Act 1991 (Cwlth) and the
establishment of the National Transport Commission under the National
Transport Commission Act 2003 (Cwlth). This amendment brings the paragraphs
into line with the equivalent provision of the corresponding Commonwealth Act
(see National Environment Protection Council Act 1994 (Cwlth)
section 14 2)).
Part
3.42 Nature Conservation Act
1980
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment omits the part that deals with infringement notices. The
Magistrates Court Act 1930, part 3.8 (Infringement notices for
certain offences) provides a system of infringement notices for offences against
various Acts. Regulations are made under the Magistrates Court Act 1930
that contain the detail for the infringement notice scheme for a particular
Act.
The commencement of this amendment is delayed to allow a new Magistrates
Court (Nature Conservation Infringement Notices) Regulation 2005 to be
prepared.
[3.319] Section
137 (2), new note
insert
Note For other provisions about forms, see the Legislation Act, s
255.
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment inserts a standard note about approved forms. The delayed
commencement removes the need for the Act to be republished only for this
amendment before the omission of part 13.
[3.320] Dictionary,
definitions of final infringement notice, infringement notice,
on-the-spot fine, relevant amount, relevant period for
payment and schedule 1 offence
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of part 13 by another
amendment. The commencement of this amendment is delayed because the omission
of part 13 is delayed.
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of part 13 by another
amendment. The commencement of this amendment is delayed because the omission
of part 13 is delayed.
Part
3.43 Occupational Health and Safety
Act 1989
[3.322] Section
117 (1) (c) (i)
omit
infringement notice
substitute
information
Explanatory note
This amendment corrects a typographical error.
[3.323] Section
143 (2) (a)
omit
measures; and
substitute
measures; or
Explanatory note
Section 143 (2) requires the notification and display of compliance
agreements. Similar provisions of the Act are section 150 (2) for
improvement notices and section 159 (2) for prohibition notices. In
section 143 (2) and section 150 (2) the conjunction used for linking
the requirements is ‘and’ and in section 159 (2)
‘or’ is used. The intention is that a person who fails to notify or
display the notice in accordance with paragraph (a) or paragraph (b) contravenes
the section. This amendment changes ‘and’ to ‘or’ to
make the separate obligations clearer, to bring the subsection into line with
current drafting practice and to make it consistent with section
159 (2).
[3.324] Section
150 (2) (a)
omit
under it; and
substitute
under it; or
Explanatory note
Section 150 (2) requires the notification and display of improvement
notices. Similar provisions of the Act are section 143 (2) for compliance
agreements and section 159 (2) for prohibition notices. In section
143 (2) and section 150 (2) the conjunction used for linking the
requirements is ‘and’ and in section 159 (2) ‘or’
is used. The intention is that a person who fails to notify or display the
notice in accordance with paragraph (a) or paragraph (b) contravenes the
section. This amendment changes ‘and’ to ‘or’ to make
the separate obligations clearer, to bring the subsection into line with current
drafting practice and to make it consistent with section 159 (2).
Part
3.44 Pharmacy Act
1931
substitute
(a) ensure the prescriber’s full name is printed on the
prescription; and
Explanatory note
This amendment clarifies the requirement for a prescriber to issue
prescriptions only if the prescriber’s name is printed on the
prescription.
Part
3.45 Planning and Land Act
2002
omit
after the disclosure of an interest
insert
after the day an interest is disclosed
Explanatory note
This amendment expressly provides that, in working out the period within
which the Minister must be told about the disclosure of an interest, the day
when the interest is disclosed is not counted. The amendment is in accordance
with current drafting practice and reflects the present position under the
Legislation Act, section 151 (2) and (3) (b).
Part
3.46 Public Health Regulation
2000
[3.327] Dictionary,
definition of drug
omit
and toilet articles not listed here
substitute
and other toilet articles
Explanatory note
This amendment brings the language of the definition into line with current
drafting practice.
Part
3.47 Public Sector Management Act
1994
[3.328] Section
3, definitions of industrial award and relevant staff
organisation, paragraph (a)
omit
Industrial Relations Act 1988
substitute
Workplace Relations Act 1996
Explanatory note
This amendment updates references to a Commonwealth Act.
[3.329] Section
39, definition of designated group, paragraph (d)
substitute
(d) people who have a disability.
Explanatory note
This amendment replaces the term ‘impairment’ with
‘disability’. This is the term now used in the Discrimination
Act 1991.
[3.330] Section
39, new definition of disability
insert
disability—see the Discrimination Act 1991,
section 5AA.
Explanatory note
This amendment inserts a new signpost definition of
disability to direct users to the specific provision of the
Discrimination Act 1991 that defines the term. This is in line with
current drafting practice.
[3.331] Section
156 (1), definition of executive office-holder, paragraph
(a)
omit
Industrial Relations Act 1988
substitute
Workplace Relations Act 1996
Explanatory note
This amendment updates a reference to a Commonwealth Act.
[3.332] Section
186 (2) (a)
omit
Industrial Relations Act 1988
substitute
Workplace Relations Act 1996
Explanatory note
This amendment updates a reference to a Commonwealth Act.
omit
(1) The
substitute
The
Explanatory note
This amendment is consequential on the omission of section 268 (2) by
another amendment.
omit
Explanatory note
This amendment omits a redundant provision. Section 268 (2) refers to the
Public Sector Management Act 1994, schedule 4 which does not
exist.
[3.335] Schedule
2, clause 2.4, definition of relevant staff organisation, paragraph
(a)
omit
Industrial Relations Act 1988
substitute
Workplace Relations Act 1996
Explanatory note
This amendment updates a reference to a Commonwealth Act.
substitute
(2) In this section:
school means a non-government school under the Education
Act 2004, and includes a playground belonging to, or used in relation
to, the school.
Explanatory note
This amendment simplifies the definition of school and
corrects a minor typographical error.
[3.337] Dictionary,
definition of units plan
substitute
units plan means a units plan under the Unit Titles Act
2001, section 7.
Explanatory note
This amendment is consequential on the amendment of the definition of
units plan in the Unit Titles Act 2001 by another
amendment.
Part
3.49 Rehabilitation of Offenders
(Interim) Act 2001
substitute
(5) The Magistrates Court Act 1930, section 7G (Magistrates not to
do other work) does not apply to the appointment of a magistrate as a judicial
member.
Explanatory note
This amendment is consequential on the remaking of the Magistrates Court
Act 1930, existing section 10E as new section 7G by another
amendment.
Part
3.50 Remand Centres Act
1976
[3.339] Section
15 (1) (b)
omit
• section 105 (Court may commit refractory witness)
substitute
• section 105 (Court may commit noncompliant witness)
Explanatory note
This amendment is consequential on the amendment of the Magistrates
Court Act 1930, section 105 by an earlier amendment.
Part
3.51 Residential Tenancies Amendment
Act 2004
[3.340] Section
39 heading
substitute
39 Appeal from decisions of
tribunal
Section 125
(2)
(commencement: 8 March 2005)
Explanatory note
This amendment is consequential on an amendment of the Residential
Tenancies Act 1997 made by the Court Procedures (Consequential
Amendments) Act 2004 (see sch 1, amdt 1.626). The amendment omitted the
Residential Tenancies Act 1997, section 125 and remade section 126
(which deals with appeals to the Supreme Court from decisions of the Residential
Tenancies Tribunal) as section 125. The Residential Tenancies Amendment Act
2004 (which was passed about the same time as the Court Procedures
(Consequential Amendments) Act 2004) included an amendment of the
Residential Tenancies Act 1997, section 126. This amendment ensures that
the amendment made to section 126 by the Residential Tenancies Amendment Act
2004 is effective and confirms an editorial amendment made under the
Legislation Act, section 144.
The amendment is backdated to 8 March 2005, which is the day the relevant
provision of the Residential Tenancies Amendment Act 2004
commenced.
Part
3.52 Roads and Public Places Act
1937
[3.341] Section
12E (2) and (3)
substitute
(2) The vehicle may be removed by, or under the direction of, a roads and
public places officer and placed in a retention area.
(3) However, if the vehicle is a vehicle for which there is a registered
operator, the vehicle may be removed and placed in a retention area only
if—
(a) a roads and public places officer has given the operator a written
notice under subsection (4); and
(b) the vehicle has not been removed within 2 days after the day the
operator was given the notice.
Explanatory note
The amendment of subsection (2) makes it clear that a vehicle may be
removed only by, or under the direction of, a roads and public places officer.
The amendment of subsection (3) brings the structure of the subsection into line
with current drafting practice and makes it clear that the notice must be given
to the registered operator.
omit
The notice must require the person—
substitute
The notice must include a statement requiring the person—
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
Part
3.53 Road Transport (Alcohol and
Drugs) Act 1977
[3.343] Part
1 heading, note
omit
Explanatory note
This amendment is consequential on new notes being inserted in section 1 by
another amendment.
[3.344] Section
1, new notes
insert
Note 1 This Act is part of the road transport legislation.
See the Road Transport (General) Act 1999 for various provisions about
the administration and enforcement of the road transport legislation generally.
Note 2 Other road transport legislation includes the
following:
• Road Transport (Dimensions and Mass) Act 1990
• Road Transport (Driver Licensing) Act 1999
• Road Transport (Public Passenger Services) Act
2001
• Road Transport (Safety and Traffic Management) Act
1999
• Road Transport (Vehicle Registration) Act 1999.
Note 3 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Explanatory note
This amendment restructures the existing note at part 1 heading in
accordance with current drafting practice.
[3.345] Section
3 heading
substitute
3 Dictionary
Explanatory note
This amendment brings the heading into line with current drafting
practice.
omit
the owner, registered operator or driver
substitute
an owner, a registered operator or the driver
Explanatory note
This amendment makes it clear that the provision operates in relation to
each owner or registered operator if there is more than 1 owner or 1 registered
operator.
Part
3.54 Road Transport (Dimensions and
Mass) Act 1990
[3.347] Part
1 heading, note
omit
Explanatory note
This amendment is consequential on new notes being inserted in section 1 by
another amendment.
[3.348] Section
1, new notes
insert
Note 1 This Act is part of the road transport legislation.
See the Road Transport (General) Act 1999 for various provisions about
the administration and enforcement of the road transport legislation generally.
Note 2 Other road transport legislation includes the
following:
• Road Transport (Alcohol and Drugs) Act 1977
• Road Transport (Driver Licensing) Act 1999
• Road Transport (Public Passenger Services) Act
2001
• Road Transport (Safety and Traffic Management) Act
1999
• Road Transport (Vehicle Registration) Act 1999.
Note 3 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Explanatory note
This amendment restructures the existing note at part 1 heading in
accordance with current drafting practice.
[3.349] Section
3 heading
substitute
3 Dictionary
Explanatory note
This amendment brings the heading into line with current drafting
practice.
Part
3.55 Road Transport (Driver Licensing)
Act 1999
[3.350] Part
1 heading, note
omit
Explanatory note
This amendment is consequential on new notes being inserted in section 1 by
another amendment.
[3.351] Section
1, new notes
insert
Note 1 This Act is part of the road transport legislation.
See the Road Transport (General) Act 1999 for various provisions about
the administration and enforcement of the road transport legislation generally.
Note 2 Other road transport legislation includes the
following:
• Road Transport (Alcohol and Drugs) Act 1977
• Road Transport (Dimensions and Mass) Act 1990
• Road Transport (Public Passenger Services) Act
2001
• Road Transport (Safety and Traffic Management) Act
1999
• Road Transport (Vehicle Registration) Act 1999.
Note 3 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Explanatory note
This amendment restructures the existing note at part 1 heading in
accordance with current drafting practice.
substitute
Note 1 This Act establishes a driver licensing system, including a
demerit points system, and provides for the classes of driver licences and for
the issue, suspension, cancellation and renewal of driver licences.
Note 2 The Commonwealth Act mentioned in s 3 (a) (i) has been
repealed and replaced by the National Transport Commission Act 2003
(Cwlth), and the agreements scheduled to the repealed Act have been
independently terminated and replaced by the Inter-Governmental Agreement for
Regulatory and Operational Reform in Road, Rail and Intermodal
Transport.
Explanatory note
This amendment adds new note 2 to give a context to the references in the
provision to the National Road Transport Commission Act 1991 (Cwlth)
consequent on the repeal of that Act and the establishment of the National
Transport Commission by the National Transport Commission Act 2003
(Cwlth).
[3.353] Section
4 heading
substitute
4 Dictionary
Explanatory note
This amendment brings the heading into line with current drafting
practice.
omit
to make representations why
substitute
to make representations about why
Explanatory note
This amendment improves the clarity of the provision.
substitute
27 Regulations may apply certain documents etc
(1) A regulation may apply a publication of the National Transport
Commission approved, or of matters approved, by the Australian Transport Council
or any other instrument as in force from time to time.
Note 1 The text of an applied, adopted or incorporated law or
instrument, whether applied as in force from time to time or as at a particular
time, is taken to be a notifiable instrument if the operation of the Legislation
Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
(2) For a regulation, a regulation may define a term defined by this Act
(or apply the definition of a term in an instrument mentioned in
subsection (1))—
(a) in the same (or in substantially the same) way as it is defined by
this Act; or
(b) by reference to a matter included in the term as defined by this Act;
or
(c) by reference to a combination of matters included in the term as
defined by this Act and in any other term defined by this Act; or
(d) for applying a publication of the National Transport Commission
approved, or of matters approved, by the Australian Transport Council—in
the same way as it is defined in the publication despite anything in this Act or
other road transport legislation.
(3) In this section:
publication of the National Transport Commission
includes—
(a) a document published by or for the National Road Transport Commission
under the National Road Transport Commission Act 1991 (Cwlth);
and
(b) a document published for the National Transport Commission.
Note The Commonwealth Act mentioned in par (a) has been repealed and
replaced by the National Transport Commission Act 2003 (Cwlth).
Explanatory note
This amendment updates the section consequent on the repeal of the
National Road Transport Commission Act 1991 (Cwlth) and the establishment
of the National Transport Commission by the National Transport Commission Act
2003 (Cwlth). The amendment brings the language of the section into line
with current drafting practice.
[3.356] Dictionary,
definition of Australian Transport Council
substitute
Australian Transport Council means the Australian Transport
Council mentioned in the National Transport Commission Act 2003 (Cwlth),
section 4 or its successor.
Explanatory note
This amendment updates the definition consequent on the repeal of the
National Road Transport Commission Act 1991 (Cwlth) and the establishment
of the National Transport Commission by the National Transport Commission Act
2003 (Cwlth).
[3.357] Dictionary,
definition of National Road Transport Commission
substitute
National Transport Commission means the National Transport
Commission established by the National Transport Commission Act 2003
(Cwlth) or its successor.
Explanatory note
This amendment is consequent on the repeal of the National Road
Transport Commission Act 1991 (Cwlth) and the establishment of the
National Transport Commission by the National Transport Commission Act
2003 (Cwlth).
Part
3.56 Road Transport (General) Act
1999
[3.358] Part
1 heading, note
omit
Explanatory note
This amendment is consequential on new notes being inserted in section 1 by
another amendment.
[3.359] Section
1, new notes
insert
Note 1 This Act is part of the road transport legislation.
It provides for the administration and enforcement of the road transport
legislation generally.
Note 2 Other road transport legislation includes the
following:
• Road Transport (Alcohol and Drugs) Act 1977
• Road Transport (Dimensions and Mass) Act 1990
• Road Transport (Driver Licensing) Act 1999
• Road Transport (Public Passenger Services) Act
2001
• Road Transport (Safety and Traffic Management) Act
1999
• Road Transport (Vehicle Registration) Act 1999.
Note 3 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Explanatory note
This amendment restructures the existing note at part 1 heading in
accordance with current drafting practice.
[3.360] Section
3, new note
insert
Note The Commonwealth Act mentioned in s 3 (a) has been repealed and
replaced by the National Transport Commission Act 2003 (Cwlth), and the
agreements scheduled to the repealed Act have been independently terminated and
replaced by the Inter-Governmental Agreement for Regulatory and Operational
Reform in Road, Rail and Intermodal Transport.
Explanatory note
This amendment adds a new note to give a context to the references in the
provision to the National Road Transport Commission Act 1991 (Cwlth)
consequent on the repeal of that Act and the establishment of the National
Transport Commission by the National Transport Commission Act 2003
(Cwlth).
omit
(1) In the road transport legislation,
substitute
In the road transport legislation,
Explanatory note
This amendment is consequential on the omission of section 10 (2) by
another amendment.
[3.362] Section
10 (1) (a) (ii)
omit
a previous
insert
the
Explanatory note
Section 10 defines who is a responsible person for a vehicle. Paragraph
(1) (a) (ii) provides that, if the vehicle has been disposed of by ‘a
previous registered operator’, anyone who acquired the vehicle from the
operator is a responsible person for the vehicle. Accordingly, anyone who has
acquired the vehicle from any previous registered operator, as distinct from
only the most recent registered operator, is a responsible person for the
vehicle. This amendment removes the anomaly so that only someone who has
acquired the vehicle from the most recent registered operator is a responsible
person for the vehicle.
substitute
Note A statutory instrument may make different provisions about
different matters and apply the provisions differently by reference to stated
exceptions or factors (see Legislation Act, s 48).
Explanatory note
This amendment omits subsection (2). The subsection provides that
regulations may prescribe different people for different provisions of the road
transport legislation for subsection (1) (d) (which is about prescribing a
person to be a responsible person for a vehicle). The subsection is unnecessary
because the Legislation Act, section 48 authorises a statutory instrument to
make different provisions about different matters. A standard note about
section 48 is inserted.
omit
(1) An authorised insurer
substitute
An authorised insurer
Explanatory note
This amendment is consequential on the omission of subsection (2) by
another amendment.
substitute
Note A statutory instrument may make different provisions about
different matters and apply the provisions differently by reference to stated
exceptions or factors (see Legislation Act, s 48).
Explanatory note
This amendment omits subsection (2). The subsection provides that
regulations may prescribe different maximum premiums for different kinds of
motor vehicles, motor vehicles used for different purposes etc. The subsection
is unnecessary because the Legislation Act, section 48 authorises a
statutory instrument to make different provisions about different matters. A
standard note about section 48 is inserted.
substitute
229 Regulations may apply certain documents etc
(1) A regulation may apply a publication of the National Transport
Commission approved, or of matters approved, by the Australian Transport Council
or any other instrument as in force from time to time.
Note 1 The text of an applied, adopted or incorporated law or
instrument, whether applied as in force from time to time or as at a particular
time, is taken to be a notifiable instrument if the operation of the Legislation
Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
(2) For a regulation, a regulation may define a term defined by this Act
(or apply the definition of a term in an instrument mentioned in
subsection (1))—
(a) in the same (or in substantially the same) way as it is defined by
this Act; or
(b) by reference to a matter included in the term as defined by this Act;
or
(c) by reference to a combination of matters included in the term as
defined by this Act and in any other term defined by this Act; or
(d) for applying a publication of the National Transport Commission
approved, or of matters approved, by the Australian Transport Council—in
the same way as it is defined in the publication despite anything in this Act or
other road transport legislation.
(3) In this section:
publication of the National Transport Commission
includes—
(a) a document published by or for the National Road Transport Commission
under the National Road Transport Commission Act 1991 (Cwlth);
and
(b) a document published for the National Transport Commission.
Note The Commonwealth Act mentioned in par (a) has been repealed and
replaced by the National Transport Commission Act 2003 (Cwlth).
Explanatory note
This amendment updates the section consequent on the repeal of the
National Road Transport Commission Act 1991 (Cwlth) and the establishment
of the National Transport Commission by the National Transport Commission Act
2003 (Cwlth). The amendment brings the language of the section into line
with current drafting practice.
[3.367] Dictionary,
definition of Australian Transport Council
substitute
Australian Transport Council means the Australian Transport
Council mentioned in the National Transport Commission Act 2003 (Cwlth),
section 4 or its successor.
Explanatory note
This amendment updates the definition consequent on the repeal of the
National Road Transport Commission Act 1991 (Cwlth) and the establishment
of the National Transport Commission by the National Transport Commission Act
2003 (Cwlth).
[3.368] Dictionary,
definition of National Road Transport Commission
substitute
National Transport Commission means the National Transport
Commission established by the National Transport Commission Act 2003
(Cwlth) or its successor.
Explanatory note
This amendment is consequent on the repeal of the National Road
Transport Commission Act 1991 (Cwlth) and the establishment of the
National Transport Commission by the National Transport Commission Act
2003 (Cwlth).
Part
3.57 Road Transport (Public Passenger
Services) Act 2001
[3.369] Part
1 heading, note
omit
Explanatory note
This amendment is consequential on new notes being inserted in section 1 by
another amendment.
[3.370] Section
1, new notes
insert
Note 1 This Act is part of the road transport legislation.
See the Road Transport (General) Act 1999 for various provisions about
the administration and enforcement of the road transport legislation generally.
Note 2 Other road transport legislation includes the
following:
• Road Transport (Alcohol and Drugs) Act 1977
• Road Transport (Dimensions and Mass) Act 1990
• Road Transport (Driver Licensing) Act 1999
• Road Transport (Safety and Traffic Management) Act
1999
• Road Transport (Vehicle Registration) Act 1999.
Note 3 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Explanatory note
This amendment restructures the existing note at part 1 heading in
accordance with current drafting practice.
in division 2.1, insert
10A Meaning of bus and public
bus
In this Act:
bus means a motor vehicle built mainly to carry people that
seats over 9 adults (including the driver).
public bus means a bus used to provide a bus
service.
Explanatory note
This amendment relocates (without change) the dictionary definitions of
these terms to a more appropriate place in the Act.
[3.372] Section
17 (3) (f) and (g)
substitute
(f) the records (including accounts) to be made and kept, how they are to
be made and kept, and their inspection; and
(g) the provision of information and reports to the road transport
authority about the regular route service and the verification of the
information and reports; and
(commencement: the later of the commencement of this Act or the Road
Transport (Public Passenger Services) (Hire Cars) Amendment Act
2004)
Explanatory note
Section 17 (3) includes examples of things that may be included in a
service contract for a regular route service. This amendment brings these
paragraphs into line with the approach in the other provisions of the Act in
relation to examples of things that may be included in a regulation. In
particular, it removes the references to the holder of a service contract. The
dictionary definition of holder provides that the holder of a
service contract means the person who (apart from the road transport authority)
is a party to the contract. The term is only used in this context in the
paragraphs being replaced by this amendment. The dictionary definition is
consequentially omitted by another amendment.
The commencement of this amendment is delayed because the dictionary
definition of holder is amended by the Road Transport (Public
Passenger Services) (Hire Cars) Amendment Act 2004.
[3.373] Dictionary,
definition of bus
substitute
bus—see section 10A.
Explanatory note
This amendment is consequential on the insertion of new section 10A by
another amendment.
[3.374] Dictionary,
definition of holder
omit
(commencement: the later of the commencement of this Act or the Road
Transport (Public Passenger Services) (Hire Cars) Amendment Act
2004)
Explanatory note
This amendment is consequential on the replacement of section 17 (3) (f)
and (g) by another amendment. The commencement of this amendment is delayed
because the dictionary definition of holder is amended by the
Road Transport (Public Passenger Services) (Hire Cars) Amendment Act
2004.
[3.375] Dictionary,
definition of public bus
substitute
public bus—see section 10A.
Explanatory note
This amendment is consequential on the insertion of new section 10A by
another amendment.
Part
3.58 Road Transport (Safety and
Traffic Management) Act 1999
[3.376] Part
1 heading, note
omit
Explanatory note
This amendment is consequential on new notes being inserted in section 1 by
another amendment.
[3.377] Section
1, new notes
insert
Note 1 This Act is part of the road transport legislation.
See the Road Transport (General) Act 1999 for various provisions about
the administration and enforcement of the road transport legislation generally.
Note 2 Other road transport legislation includes the
following:
• Road Transport (Alcohol and Drugs) Act 1977
• Road Transport (Dimensions and Mass) Act 1990
• Road Transport (Driver Licensing) Act 1999
• Road Transport (Public Passenger Services) Act
2001
• Road Transport (Vehicle Registration) Act 1999.
Note 3 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Explanatory note
This amendment restructures the existing note at part 1 heading in
accordance with current drafting practice.
[3.378] Section
3, new note
insert
Note The Commonwealth Act mentioned in s 3 (a) (i) has been repealed
and replaced by the National Transport Commission Act 2003 (Cwlth), and
the agreements scheduled to the repealed Act have been independently terminated
and replaced by the Inter-Governmental Agreement for Regulatory and
Operational Reform in Road, Rail and Intermodal Transport.
Explanatory note
This amendment adds a new note to give a context to the references in the
provision to the National Road Transport Commission Act 1991 (Cwlth)
consequent on the repeal of that Act and the establishment of the National
Transport Commission by the National Transport Commission Act 2003
(Cwlth).
[3.379] Section
4 heading
substitute
4 Dictionary
Explanatory note
This amendment brings the heading into line with current drafting
practice.
[3.380] Section
19 heading
substitute
19 Offences about prescribed traffic control
devices
Explanatory note
This amendment adds the word ‘prescribed’ to the
heading.
substitute
34 Regulations may apply certain documents etc
(1) A regulation may apply a publication of the National Transport
Commission approved, or of matters approved, by the Australian Transport Council
or any other instrument as in force from time to time.
Note 1 The text of an applied, adopted or incorporated law or
instrument, whether applied as in force from time to time or as at a particular
time, is taken to be a notifiable instrument if the operation of the Legislation
Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
(2) For a regulation, a regulation may define a term defined by this Act
(or apply the definition of a term in an instrument mentioned in
subsection (1))—
(a) in the same (or in substantially the same) way as it is defined by
this Act; or
(b) by reference to a matter included in the term as defined by this Act;
or
(c) by reference to a combination of matters included in the term as
defined by this Act and in any other term defined by this Act; or
(d) for applying a publication of the National Transport Commission
approved, or of matters approved, by the Australian Transport Council—in
the same way as it is defined in the publication despite anything in this Act or
other road transport legislation.
(3) In this section:
publication of the National Transport Commission
includes—
(a) a document published by or for the National Road Transport Commission
under the National Road Transport Commission Act 1991 (Cwlth);
and
(b) a document published for the National Transport Commission.
Note The Commonwealth Act mentioned in par (a) has been repealed and
replaced by the National Transport Commission Act 2003 (Cwlth).
Explanatory note
This amendment updates the section consequent on the repeal of the
National Road Transport Commission Act 1991 (Cwlth) and the establishment
of the National Transport Commission by the National Transport Commission Act
2003 (Cwlth). The amendment brings the language of the section into line
with current drafting practice.
[3.382] Dictionary,
definition of Australian Transport Council
substitute
Australian Transport Council means the Australian Transport
Council mentioned in the National Transport Commission Act 2003 (Cwlth),
section 4 or its successor.
Explanatory note
This amendment updates the definition consequent on the repeal of the
National Road Transport Commission Act 1991 (Cwlth) and the establishment
of the National Transport Commission by the National Transport Commission Act
2003 (Cwlth).
[3.383] Dictionary,
definition of National Road Transport Commission
substitute
National Transport Commission means the National Transport
Commission established by the National Transport Commission Act 2003
(Cwlth) or its successor.
Explanatory note
This amendment is consequent on the repeal of the National Road
Transport Commission Act 1991 (Cwlth) and the establishment of the
National Transport Commission by the National Transport Commission Act
2003 (Cwlth).
Part
3.59 Road Transport (Vehicle
Registration) Act 1999
[3.384] Part
1 heading, note
omit
Explanatory note
This amendment is consequential on new notes bring inserted in section 1 by
another amendment.
[3.385] Section
1, new notes
insert
Note 1 This Act is part of the road transport legislation.
See the Road Transport (General) Act 1999 for various provisions about
the administration and enforcement of the road transport legislation generally.
Note 2 Other road transport legislation includes the
following:
• Road Transport (Alcohol and Drugs) Act 1977
• Road Transport (Dimensions and Mass) Act 1990
• Road Transport (Driver Licensing) Act 1999
• Road Transport (Public Passenger Services) Act
2001
• Road Transport (Safety and Traffic Management) Act
1999.
Note 3 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Explanatory note
This amendment restructures the existing note at part 1 heading in
accordance with current drafting practice.
[3.386] Section
3, new note
insert
Note The Commonwealth Act mentioned in s 3 (a) (i) has been repealed
and replaced by the National Transport Commission Act 2003 (Cwlth), and
the agreements scheduled to the repealed Act have been independently terminated
and replaced by the Inter-Governmental Agreement for Regulatory and
Operational Reform in Road, Rail and Intermodal Transport.
Explanatory note
This amendment adds a new note to give a context to the references in the
provision to the National Road Transport Commission Act 1991 (Cwlth)
consequent on the repeal of that Act and the establishment of the National
Transport Commission by the National Transport Commission Act 2003
(Cwlth).
[3.387] Section
4 heading
substitute
4 Dictionary
Explanatory note
This amendment brings the heading into line with current drafting
practice.
substitute
16 Regulations may apply certain documents etc
(1) A regulation may apply a publication of the National Transport
Commission approved, or of matters approved, by the Australian Transport Council
or any other instrument as in force from time to time.
Note 1 The text of an applied, adopted or incorporated law or
instrument, whether applied as in force from time to time or as at a particular
time, is taken to be a notifiable instrument if the operation of the Legislation
Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
(2) For a regulation, a regulation may define a term defined by this Act
(or apply the definition of a term in an instrument mentioned in
subsection (1))—
(a) in the same (or in substantially the same) way as it is defined by
this Act; or
(b) by reference to a matter included in the term as defined by this Act;
or
(c) by reference to a combination of matters included in the term as
defined by this Act and in any other term defined by this Act; or
(d) for applying a publication of the National Transport Commission
approved, or of matters approved, by the Australian Transport Council—in
the same way as it is defined in the publication despite anything in this Act or
other road transport legislation.
(3) In this section:
publication of the National Transport Commission
includes—
(a) a document published by or for the National Road Transport Commission
under the National Road Transport Commission Act 1991 (Cwlth);
and
(b) a document published for the National Transport Commission.
Note The Commonwealth Act mentioned in par (a) has been repealed and
replaced by the National Transport Commission Act 2003 (Cwlth).
Explanatory note
This amendment updates the section consequent on the repeal of the
National Road Transport Commission Act 1991 (Cwlth) and the establishment
of the National Transport Commission by the National Transport Commission Act
2003 (Cwlth). The amendment brings the language of the section into line
with current drafting practice.
[3.389] Dictionary,
definition of Australian Transport Council
substitute
Australian Transport Council means the Australian Transport
Council mentioned in the National Transport Commission Act 2003 (Cwlth),
section 4 or its successor.
Explanatory note
This amendment updates the definition consequent on the repeal of the
National Road Transport Commission Act 1991 (Cwlth) and the establishment
of the National Transport Commission by the National Transport Commission Act
2003 (Cwlth).
[3.390] Dictionary,
definition of garage address, paragraph (b) (i)
substitute
(i) the vehicle has only 1 registered operator—the home address of
the registered operator; or
Explanatory note
This amendment replaces the reference of ‘1 operator’ to
‘1 registered operator’ for consistency with paragraph (b) (ii) and
(iii) of the definition.
[3.391] Dictionary,
definition of National Road Transport Commission
substitute
National Transport Commission means the National Transport
Commission established by the National Transport Commission Act 2003
(Cwlth) or its successor.
Explanatory note
This amendment is consequent on the repeal of the National Road
Transport Commission Act 1991 (Cwlth) and the establishment of the
National Transport Commission by the National Transport Commission Act
2003 (Cwlth).
[3.392] Dictionary,
definition of registered operator, new note
insert
Note A reference to the registered operator includes each registered
operator (see s 29).
Explanatory note
This amendment inserts a note about the extended meaning of the registered
operator to assist users of the Act.
Part
3.60 Road Transport (Vehicle
Registration) Regulation 2000
[3.393] Schedule
1, section 1.1 (1), new note
insert
Note The Commonwealth Act mentioned in s (1) has been repealed and
replaced by the National Transport Commission Act 2003 (Cwlth).
Explanatory note
This amendment adds a new note to give a context to the references in the
provision to the National Road Transport Commission Act 1991 (Cwlth)
consequent on the repeal of that Act and the establishment of the National
Transport Commission by the National Transport Commission Act 2003
(Cwlth).
[3.394] Schedule
1, section 1.3
omit
Explanatory note
This amendment omits an unnecessary provision about how a provision in the
schedule is to be referred to by another provision of the schedule.
[3.395] Dictionary,
definition of emergency worker
substitute
emergency worker—see the Road Transport (Safety and
Traffic Management) Regulation 2000, section 33 (1), definition of
emergency worker.
Explanatory note
The existing definition defines the term by reference to the Road
Transport (Safety and Traffic Management) Regulation 1999, dictionary. That
definition was omitted by another enactment without the above definition being
consequentially amended. This amendment corrects that oversight.
[3.396] Dictionary,
definition of road tank vehicle
substitute
road tank vehicle has the same meaning as in the 6th edition
of the Australian Code for the Transport of Dangerous Goods by Road and Rail
as approved by the Competent Authorities Panel, the Australian Committee for
the Transport of Dangerous Goods and the Transport Ministers of Australia and
published jointly by—
(a) the National Road Transport Commission under the National Road
Transport Commission Act 1991 (Cwlth); and
(b) the Federal Office of Road Safety (now known as the Australian
Transport Safety Bureau).
Note The Commonwealth Act mentioned in par (a) has been repealed and
replaced by the National Transport Commission Act 2003 (Cwlth).
Explanatory note
This amendment updates the definition consequent on the repeal of the
National Road Transport Commission Act 1991 (Cwlth) and the establishment
of the National Transport Commission by the National Transport Commission Act
2003 (Cwlth).
Part
3.61 Sale of Motor Vehicles Act
1977
[3.397] Sections
5 and 5A
substitute
5 Registrar of Motor Vehicle
Dealers
The chief executive must appoint a public servant as Registrar of Motor
Vehicle Dealers.
Note 1 For the making of appointments (including acting
appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person
or nominating the occupant of a position (see Legislation Act,
s 207).
5A Deputy Registrar of Motor Vehicle
Dealers
(1) The chief executive must appoint a public servant as Deputy Registrar
of Motor Vehicle Dealers.
Note 1 For the making of appointments (including acting
appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person
or nominating the occupant of a position (see Legislation Act,
s 207).
(2) The deputy registrar may exercise any function of the registrar,
subject to any direction of the registrar.
Explanatory note
This amendment corrects an error in the title of the registrar and deputy
registrar. The Statute Law Amendment Act 2003 (No 2), amendment 3.202
updated the appointment provisions but inadvertently used the titles
‘Registrar of Motor Vehicles’ and ‘Deputy Registrar of Motor
Vehicles’.
omit
, except as provided by the Evidence Act 1971, section 57,
Explanatory note
This amendment removes a redundant reference. Section 52 relates to a
person who appears as a witness at an inquiry before the registrar and refuses
to give sworn evidence. The Evidence Act 1971, section 57 (now repealed)
related to a person being asked a question that would tend to incriminate the
person or the person’s spouse. It was repealed by the Sexuality
Discrimination Legislation Amendment Act 2004 which removed discrimination
relating to sexuality and marital status. The Legislation Act, section 170
preserves the common law privilege against selfincrimination and the Evidence
Act 1995 (Cwlth), section 128 contains provisions that apply if a
witness raises the privilege in a proceeding.
[3.399] Section
66 and sections 70 to 70H
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment omits sections that deal with infringement notices. The
Magistrates Court Act 1930, part 3.8 (Infringement notices for
certain offences) provides a system of infringement notices for offences against
various Acts. Regulations are made under the Magistrates Court Act 1930
that contain the detail for the infringement notice scheme for a particular
Act.
The commencement of this amendment is delayed to allow a new Magistrates
Court (Sale of Motor Vehicles Infringement Notices) Regulation 2005 to be
prepared.
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of section 66 and sections
70 to 70H by another amendment. The commencement of this amendment is delayed
because the omission of those sections is delayed.
[3.401] Dictionary,
definitions of final infringement notice, infringement notice,
notified person, on-the-spot fine, relevant amount,
relevant period for payment and schedule 3
offence
omit
(commencement: on a day fixed by the Minister by written notice)
Explanatory note
This amendment is consequential on the omission of section 66 and sections
70 to 70H by another amendment. The commencement of this amendment is delayed
because the omission of those sections is delayed.
Part
3.62 Sale of Motor Vehicles Regulation
1977
substitute
(e) for an application by a corporation—whether a director of the
corporation is a bankrupt or a debtor under a personal insolvency
agreement.
Explanatory note
The Bankruptcy Legislation Amendment Act 2004 (Cwlth) amended the
Bankruptcy Act 1966 (Cwlth) to replace the concepts of deed of
assignment, deed of arrangement and composition with the new single concept of
personal insolvency agreement. This amendment brings the paragraph into line
with the new concept.
Part
3.63 Superannuation (Legislative
Assembly Members) Act 1991
substitute
(d) the chief executive of the administrative unit responsible for the
Financial Management Act 1996.
Explanatory note
This amendment updates a redundant reference to ‘under
Treasurer’.
Part
3.64 Supreme Court Act
1933
substitute
(2) In this section:
depositions, of a witness, means—
(a) if a record of the depositions was made in accordance with the
Magistrates Court Act 1930, section 316 (2) (Record of
proceedings)—a transcript of the record certified in accordance with that
Act, section 314 (2) (Registrar to give directions for preparation of
transcript); or
(b) if the depositions were taken down in writing and signed in accordance
with the Magistrates Court Act 1930, section 316 (3)—the
depositions taken down and signed.
Explanatory note
This amendment updates cross-references.
Part
3.65 Supreme Court Rules
1937
omit
section 108 (Copies of depositions may be obtained by accused)
substitute
section 108 (Accused person may obtain copies of depositions etc)
Explanatory note
This amendment is consequential on the amendment of the Magistrates
Court Act 1930, section 108 by another amendment.
Part
3.66 Territory Owned Corporations Act
1990
substitute
2 Name of Act
This Act is the Territory-owned Corporations Act 1990.
Explanatory note
This amendment brings the naming section into line with current drafting
practice.
omit
Affirmative Action (Equal Opportunity for Women) Act 1986
substitute
Equal Opportunity for Women in the Workplace Act 1999
Explanatory note
This amendment updates a reference to a Commonwealth Act.
[3.408] Part
A3, clause 6.1, paragraph (c)
omit
by notice published in the Government Gazette pursuant to section 32
of the Land Act,
substitute
by instrument under the Land Act, section 32 (1),
Explanatory note
A variation of the territory plan under Land (Planning and Environment)
Act 1991, section 32 is a notifiable instrument. This amendment removes
from the clause an unnecessary (and outdated) reference to a notice being
published in the Government Gazette.
[3.409] Part
A3, clause 8.3
substitute
8.3 The formal adoption of an entry on,
and removal from, the Register of, a planning guideline is a notifiable
instrument and must also be notified in a daily newspaper by the
Authority.
Note A notifiable instrument must be notified under the Legislation
Act.
Explanatory note
This amendment omits an outdated reference to the gazette and by providing
that an instrument adopting a planning guideline on the Register, or removing
it, is a notifiable instrument under the Legislation Act. This amendment
reflects the current position applying under transitional provisions of the
Legislation Act.
Part
3.68 Tertiary Accreditation and
Registration Act 2003
substitute
(2) The committee must include as members—
(a) people who are, in the council’s opinion, qualified in an area
relevant to the courses proposed to be offered by the relevant higher education
provider; and
(b) people who are, in the council’s opinion, qualified to assess
the financial and management capacity of the higher education
provider.
Explanatory note
This amendment makes it clear that a committee must have among its members
people who have all the relevant qualifications and that every board member is
not required to possess all the relevant qualifications.
Part
3.69 Trustee Act
1925
[3.411] Section
6 (6) (c)
substitute
(c) a separate set of up to 4 trustees may be appointed for any part of
the trust property held on trusts that are distinct from those relating to any
other part of the trust property even if a new trustee is not to be appointed
for the other part;
Explanatory note
This amendment simplifies the paragraph by omitting an unnecessary
reference to the plural ‘or parts’ of the trust property (see
Legislation Act, section 145 (Gender and number)).
omit
instrument creating a trust
substitute
trust instrument
Explanatory note
This amendment uses the defined term trust instrument to omit
unnecessary words.
omit
instrument creating the trust
substitute
trust instrument
Explanatory note
This amendment uses the defined term trust instrument to omit
unnecessary words.
substitute
(3) If—
(a) a preferential right to subscribe for shares in a company is offered
to the trustee; and
(b) the shares are subject to a special or reserve liability;
and
(c) the company is wound up;
the trustee may exercise the right and hold the shares as if they were part
of the trustee’s original holding in the company.
Explanatory note
This amendment brings the structure of the subsection with current drafting
practice to make its meaning clear.
substitute
25 Continued holding
A trustee is not liable for breach of trust only because the trustee
continues to hold an investment after the investment is no longer authorised by
the trust instrument or by law.
Explanatory note
This amendment brings the language of the section into line with current
drafting practice.
substitute
(1) A power to postpone sale is implied in every trust for sale, unless
the contrary intention appears in the trust instrument.
Explanatory note
This amendment updates language and makes clear that any contrary intention
must be found in the trust instrument.
substitute
(2) This section applies to a trust unless the contrary intention appears
in the trust instrument.
Explanatory note
This amendment corrects a typographical error.
[3.418] Section
28 (3) (b)
substitute
(b) that the balance of the purchase money is payable in instalments, the
first not later than 3 years after the date of the contract of sale and the
others at intervals of not longer than 1 year beginning on the day the
first instalment is payable, and interest is payable, at least every 6 months,
on any unpaid amount;
Explanatory note
This amendment brings the language of the paragraph into line with current
drafting practice.
substitute
(1) A trustee may give a lease of land in possession for a term of not
longer than—
(a) if the trustee has power to manage the land, or holds the land on
trust for sale with an express power to postpone the sale—5 years;
or
(b) in any other case—3 years.
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
substitute
(3) Any lease that a trustee is authorised to make under this section, or
under the trust instrument or other instrument giving the authorisation,
may—
(a) provide for rent increases at times stated in the lease; or
(b) give an option for renewal that does not extend the lease beyond the
term for which the trustee is authorised to make the lease.
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
substitute
(8) The execution of a lease by the lessor is evidence, for the lessee and
anyone deriving title from the lessee, of the execution of the lease by the
lessee.
Explanatory note
This amendment updates language and omits words made unnecessary by another
amendment.
omit
in virtue only
substitute
only because
Explanatory note
This amendment updates language.
substitute
(6) An appropriation must not, except as otherwise provided in this
section, be made in relation to a settled legacy, share or interest, unless 1 of
the following consents in writing:
(a) the trustee (if any) of the legacy, share or interest, if the trustee
is not making the appropriation;
(b) the person who is, for the time being, entitled to the
income.
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
omit
save
substitute
except that
Explanatory note
This amendment updates language.
omit
the same
substitute
it
Explanatory note
This amendment updates language.
substitute
(1) If an amount is held in trust for a child, someone with a legal
disability or someone who cannot be found, the trustee may pay the amount to the
public trustee and, if the amount is paid to the public trustee, must give the
public trustee—
(a) a copy of the trust instrument, or, if there is no trust instrument, a
statutory declaration setting out the trusts on which the amount is held; and
(b) any information about the disability or identity of the person for
whom the amount is held in trust that the public trustee requires.
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
substitute
(8) This section does not—
(a) deprive a person of any right or remedy to which the person is
entitled against a trustee or anyone else; or
(b) require the public trustee to make or continue to make any inquiry or
investigation to find out who might be entitled to amounts paid to the trustee
under subsection (1) after those amounts have been paid to the Minister under
subsection (4).
Explanatory note
This amendment brings the structure of the subsection into line with
current drafting practice to make its meaning clear.
substitute
48 Receipts
(1) This section applies if trustees give a written receipt to a person
for personal property payable, transferable or deliverable to the trustees under
a trust or power.
(2) The receipt—
(a) is a sufficient discharge for the property; and
(b) relieves the person from—
(i) seeing to the application of the property; or
(ii) being answerable for any loss or misapplication of the
property.
(3) In this section:
personal property includes an amount of money.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
[3.429] Section
49 (1) (e)
omit
whatever
Explanatory note
This amendment omits a redundant word.
[3.430] Section
49 (1) (f)
substitute
(f) for any of those purposes, enter into, give or execute any agreement,
instrument or arrangement, or do anything, considered appropriate by the
trustees, majority of trustees, or trustee.
Explanatory note
This amendment brings the language of the paragraph into line with current
drafting practice.
omit
by writing under their hands
substitute
by signed instrument
Explanatory note
This amendment updates language.
[3.432] Section
54A (1) and (2)
substitute
(1) If 2 or more people receive an amount in a fiduciary position (other
than as trustees under a will, settlement or like instrument) and deposit the
amount with a bank, the bank may, if authorised by them—
(a) pay a cheque drawn on the bank by 1 or more of them or by an agent
authorised by them; and
(b) recognise as valid an endorsement on a bill of exchange or promissory
note payable to their order if the endorsement is an endorsement by 1 or more of
them or by an agent authorised by them.
(2) If a person receives an amount in a fiduciary position (other than as
trustee under a will, settlement or like instrument) and deposits the amount
with a bank, the bank may, if authorised by the person—
(a) pay a cheque drawn on the bank by an agent authorised by the person;
and
(b) recognise as valid an endorsement on a bill of exchange or promissory
note payable to the order of the person if the endorsement is an endorsement by
an agent authorised by the person.
Explanatory note
This amendment brings the language and structure of the subsections into
line with current drafting practice.
substitute
58 Powers of attorney
(1) This section applies if—
(a) a trustee pays an amount, or does something else, honestly under a
power of attorney given by a person; and
(b) when the trustee does the thing—
(i) the person is dead or has done something to end the power of attorney;
but
(ii) the trustee is unaware of this.
(2) The trustee is not liable for doing the thing.
(3) If the trustee pays an amount to a person (the
payee)—
(a) this section does not affect the rights against the payee of anyone
entitled to the amount (an affected person); and
(b) the affected person is entitled to the same remedies against the payee
as the affected person would have had against the trustee.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
substitute
62 Notice affecting a trustee
(1) A trustee acting for more than 1 trust or estate is not affected by
notice of anything in relation to a particular trust or estate if the trustee
has notice of it only because the trustee acts for another trust or
estate.
(2) This section does not apply if the trustee is fraudulent.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
[3.435] Section
64 (1) to (3)
substitute
(1) If a trustee is absent from the ACT or is about to leave the ACT, the
trustee may, by registered deed, delegate the execution of the trust.
(2) However, the trustee delegates the execution of the trust only
if—
(a) each co-trustee, and anyone else authorised to appoint trustees,
consents to the delegation by the deed or another registered deed; and
(b) the delegation is to—
(i) the public trustee; or
(ii) a trustee company; or
(iii) a person living in the ACT who either is a co-trustee or can be
appointed a trustee of the trust.
(3) The delegation may be made in relation to all or any part of the
trust.
Explanatory note
This amendment brings the structure of the subsection into line with
current drafting practice to make its meaning clear.
substitute
67 Power of attorney
(1) A delegation under this part is taken to be a power of attorney within
the meaning of the Powers of Attorney Act 1956.
(2) That Act, other than an excepted provision, applies to the
delegation.
(3) In this section:
excepted provision means any of the following
provisions:
• section 6 (Irrevocable power of attorney for value)
• section 7 (Power of attorney irrevocable for fixed
period)
• section 8 (Protection of purchaser under irrevocable power of
attorney).
Explanatory note
This amendment brings the language and structure of the section line with
current drafting practice.
substitute
(6) Subject to subsection (4), the order may vest the property in anyone,
in any way and for any interest that the Supreme Court directs, or may release
or dispose of any contingent right to a person as the court directs.
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
[3.438] Section
71 (8) and (9)
substitute
(8) This section does not prevent the Supreme Court from—
(a) directing a reconveyance or the payment of costs incurred if the order
is improperly obtained; or
(b) making a further vesting order.
(9) If a legal interest in property ends because of the dissolution of a
corporation, the Supreme Court may, by order—
(a) create a corresponding interest; and
(b) vest the corresponding interest in the person who would have been
entitled to the interest if it had not ended.
Explanatory note
This amendment brings the language and structure of the subsections more
closely into line with current drafting practice.
[3.439] Section
75 (1) (b)
substitute
(b) in any other case—the Supreme Court may order that the land
vests in anyone, in any way and for any estate that the court directs.
Explanatory note
This amendment brings the language of the paragraph into line with current
drafting practice.
substitute
(2) The order may only be made if—
(a) the mortgagee did not enter into possession, and the amount owing
under the mortgage has been paid to a person entitled to receive the amount; or
(b) the person entitled to receive the amount consents to any order for
reconveyance of the land.
Explanatory note
This amendment brings the language and structure of the subsection into
line with current drafting practice.
[3.441] Section
75 (3) (b)
omit
the same
substitute
the land
Explanatory note
This amendment updates language.
substitute
(5) This section does not prevent the Supreme Court from—
(a) directing a reconveyance or the payment of costs incurred if the order
is improperly obtained; or
(b) making a further vesting order.
Explanatory note
This amendment brings the language and structure of the subsection into
line with current drafting practice.
substitute
(1) If the Supreme Court makes an order directing the sale or mortgage of
land, the court may make an order vesting the land, or part of it, for any
estate the court considers appropriate in the purchaser, the mortgagee, or
anyone else.
Explanatory note
This amendment brings the language of the subsection into line with current
drafting practice.
[3.444] Section
81 (1) and (2)
omit
by the trust instrument, or by law
substitute
by instrument or by law
Explanatory note
This amendment updates language.
[3.445] Section
82 (1) (d)
substitute
(d) to erect, or join in erecting, a fence of which part is on the land
and part on adjoining land;
Explanatory note
This amendment brings the language and structure of the paragraph into line
with current drafting practice.
[3.446] Dictionary
heading
substitute
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• ACT
• affidavit
• appoint
• asset
• child
• instrument (see s 14)
• interest
• land
• lawyer
• month
• person
• power
• proceeding
• property
• public trustee
• registrar-general
• sign
• statutory declaration
• will
• year.
Explanatory note
This amendment inserts standard dictionary notes in line with current
drafting practice that draw to the attention of the reader that the dictionary
is not the only source for definitions of terms.
Part
3.70 Unit Titles Act
2001
insert
12A Meaning of annexed
A unit subsidiary or an easement that is stated by this Act to be
annexed to a unit, common property or an estate in leasehold is
taken to be appurtenant to the unit, common property or estate.
Note Property in a unit subsidiary or easement that is, at law,
‘appurtenant’ to a unit, common property or a leasehold estate is
transferred with that estate when the unit, common property or lease is
transferred.
Explanatory note
This amendment remakes the dictionary definition as a separate section
because it is an important term for the Act.
omit
(special purpose funds)
substitute
(a special purpose fund)
Explanatory note
This amendment revises the tagged-term definition in the singular to be
consistent with the dictionary definition.
[3.449] Section
71 (1), note
substitute
Note Information about representatives of units owned by 2 or more
people, or by a company, must be provided to the owners corporation under the
following sections:
• s 41 (Multiple owners of units—authorisation of
representatives)
• s 43 (Company-owned units—authorisation of
representatives).
Explanatory note
This amendment replaces an obsolete reference to ‘company
representatives’ with ‘a company’.
substitute
116 Value of votes
(1) Every vote at a general meeting is of equal value, unless a poll is
taken.
(2) On a poll, the value of each vote (the voting value) is
the value that is proportional to the unit entitlement of the unit for which it
is exercised.
Explanatory note
This amendment updates the definition of voting value to
bring it into line with current drafting practice.
[3.451] Dictionary,
definition of annexed
substitute
annexed—see section 12A.
Explanatory note
This amendment is consequential on the insertion of a new section 12A by
another amendment.
[3.452] Dictionary,
definition of article
insert
article, for an owner corporation, means an article of the
corporation under section 126.
Explanatory note
This amendment inserts a definition of article for an
owner’s corporation in line with current drafting practice.
[3.453] Dictionary,
definition of company representative
omit
Explanatory note
This amendment omits a definition made obsolete by the existing definition
of representative.
[3.454] Dictionary,
definition of entitled to vote
substitute
entitled to vote, in relation to a motion at a general
meeting of an owners corporation, means a person who is entitled to vote on the
motion under section 110.
Explanatory note
This amendment brings the definition into line with current drafting
practice.
[3.455] Dictionary,
definitions of GST and mortgagee’s
representative
omit
Explanatory note
This amendment omits the definition of GST which is defined
in the Legislation Act, dictionary, part 1, and omits the definition of
mortgagee’s representative made obsolete by the existing
definition of representative.
[3.456] Dictionary,
definition of schedule of unit entitlement
substitute
schedule of unit entitlement, in relation to a units plan,
means the schedule of unit entitlement forming part of the plan under
section 8.
Explanatory note
This amendment brings the definition into line with current drafting
practice.
[3.457] Dictionary,
definition of unit owners’ representative
omit
Explanatory note
This amendment omits a definition made obsolete by the definition of
representative.
[3.458] Dictionary,
definition of units plan
substitute
units plan means the units plan under section 7.
Explanatory note
This amendment brings the definition into line with current drafting
practice.
Part
3.71 Victims of Crime (Financial
Assistance) Act 1983
substitute
(3) In this section:
infringement notice includes an offence notice under the
Drugs of Dependence Act 1989.
Note The Legislation Act dict, pt 1 defines infringement
notice as including an infringement notice under the Magistrates
Court Act 1930 or the Road Transport (General) Act 1999.
Explanatory note
This amendment omits existing paragraph (c) which refers to a litter notice
under the repealed Litter Act 1977 and updates the list of infringement
notices in existing paragraph (d) by substituting new paragraph (b) which relies
on the Legislation Act definition of that term. A note about the
definition is also inserted.
Part
3.72 Waste Minimisation Act
2001
[3.460] Dictionary,
note 2
insert
• environment protection authority
Explanatory note
This amendment adds the example ‘environment protection
authority’ to the list of defined terms found in the Legislation Act that
are used in the Act.
[3.461] Dictionary,
definition of EMA
substitute
EPA means the environmental protection authority.
Explanatory note
This amendment updates the definition. The name of the authority was
changed from ‘environmental management authority’ to environmental
protection authority’ by the Environment Protection Amendment Act
2001.
[3.462] Further
amendments, mentions of EMA
omit
EMA
substitute
EPA
in
• section 7 (b) (i)
• section 8 (2) (h)
• section 9 (2) (b)
• section 10
• section 11
• section 12
• section 13
• section 14
• section 15
• section 17
• section 18
• section 19
• section 20 (2) (d)
• section 44
• section 47
Explanatory note
This amendment is consequential on the new definition of EPA
inserted by another amendment.
Part
3.73 Workers Compensation Act
1951
[3.463] Section
197 (2) (a)
omit
section 274 (2) (Cases in which appeals may be brought)
substitute
section 274 (2) (Cases in which appeal may be brought)
Explanatory note
This amendment corrects a reference to the Magistrates Court Act
1930, section 274 heading.
Part
3.74 Workers Compensation Regulation
2002
substitute
(3) The sections of the Act are as follows:
• section 156 (Information for insurers on application for issue or
renewal of policies)
• section 157 (Information for insurers after renewal of
policies)
• section 158 (Information for insurers after end or cancellation of
policies)
• section 159 (Information for new insurers after change of
insurers)
• section 160 (Six-monthly information for insurers).
Explanatory note
This amendment is consequential on the Workers Compensation Amendment
Act 2003 (No 2). That Act substituted new sections 156 to 160 for sections
156 to 159 of the Workers Compensation Act 1951. The 2 groups of
sections impose essentially similar obligations on insurers but with increased
penalties for noncompliance with the obligations.
This amendment confirms editorial amendments made by the parliamentary
counsel under the Legislation Act, section 114 for republication number 8 of the
regulation. The editorial amendments updated the names of the headings to
sections 156 to 159 and added section 160 to the list.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2005.
2 Notification
Notified under the Legislation Act on 2005.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2005
[Index]
[Search]
[Download]
[Related Items]
[Help]