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TASMANIA
__________
JUSTICE AND RELATED LEGISLATION
(MISCELLANEOUS AMENDMENTS) BILL 2021
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Consequential amendments
PART 2 - REPEAL OF ACT
4. Repeal of Act
SCHEDULE 1 - CONSEQUENTIAL AMENDMENTS
[Bill 60]-IV
2
JUSTICE AND RELATED LEGISLATION
(MISCELLANEOUS AMENDMENTS) BILL 2021
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
25 November 2021
(Brought in by the Minister for Justice, the Honourable Elise
Nicole Archer)
A BILL FOR
An Act to amend the Justices Act 1959 and other justice-
related legislation
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Justice and Related
Legislation (Miscellaneous Amendments) Act
2021.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
[Bill 60] 3
Justice and Related Legislation (Miscellaneous Amendments) Act
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Act No. of 2021
s. 3 Part 1 - Preliminary
3. Consequential amendments
The legislation specified in Schedule 1 is
amended as specified in that Schedule.
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Justice and Related Legislation (Miscellaneous Amendments) Act
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Act No. of 2021
Part 2 - Repeal of Act s. 4
PART 2 - REPEAL OF ACT
4. Repeal of Act
This Act is repealed on the first anniversary of
the day on which it commenced.
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SCHEDULE 1 - CONSEQUENTIAL AMENDMENTS
Section 3
Appeal Costs Fund Act 1968
1. Section 5(2) is amended by omitting "complaint
in respect of an indictable offence, including an
indictable offence triable summarily by virtue of
that Act" and substituting "conviction or order
made in the Supreme Court".
2. Section 10 is repealed and the following section
is substituted:
10. Power of Supreme Court to grant indemnity
certificate to successful appellant in certain
cases
(1) Where -
(a) there is an appeal from the
decision of a court of summary
jurisdiction to the Supreme Court;
and
(b) the respondent does not appear
either in the proceedings before
the court of summary jurisdiction
or on the appeal; and
(c) the appeal succeeds but the
Supreme Court refuses to order
the respondent to pay the
appellant's costs of the appeal -
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the Supreme Court may, on application
made in that behalf, grant to the appellant
in the appeal or to one or more of several
appellants in the appeal an indemnity
certificate in respect of the appeal.
(2) Notwithstanding subsection (1)(b), where
an appeal succeeds in criminal
proceedings, the Supreme Court may
grant to the appellant in the appeal or to
one or more of several appellants in the
appeal an indemnity certificate in respect
of the appeal.
(3) Subsection (2) does not apply in respect
of an appellant to whom legal aid, within
the meaning of the Legal Aid
Commission Act 1990, has been
provided.
Commissioner for Children and Young People Act 2016
1. Section 14(1)(e) is amended as follows:
(a) by omitting "the Legal Aid Commission
of Tasmania" first occurring and
substituting "Tasmania Legal Aid";
(b) by omitting "the Legal Aid Commission
of Tasmania" second occurring and
substituting "Tasmania Legal Aid".
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Justice and Related Legislation (Miscellaneous Amendments) Act
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sch. 1
Constitution Act 1934
1. Section 30 is repealed and the following section
is substituted:
30. Oath to be taken by Members
(1) No Member of either House may act or
vote in the House until he or she has
either -
(a) after becoming a Member and
before the day on which the
Promissory Oaths Act 2015
commences, taken before the
Governor, or before another
person authorised by the
Governor to administer it, the
oath of allegiance prescribed by
the former Promissory Oaths Act
1869; or
(b) after becoming a Member and
after the day on which the
Promissory Oaths Act 2015
commences, taken and subscribed
under section 3(1) of that Act the
oath of allegiance.
(2) It is not necessary for a Member who has
taken the oath of allegiance to take that
oath again after any demise of the
Crown, including by or on abdication.
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sch. 1
Coroners Act 1995
1. Section 59B is amended as follows:
(a) by omitting subsection (2);
(b) by omitting from subsection (3) "may
order the Commissioner of Police" and
substituting ", on application by the
Commissioner of Police, may order the
Commissioner".
Crime (Confiscation of Profits) Act 1993
1. Section 28(3) is amended by omitting ", in an
urgent case,".
2. Section 193(2)(a) is amended by omitting "the
Tasmanian Legal Aid Commission" and
substituting "Tasmania Legal Aid".
Criminal Code Act 1924
1. Schedule 1 is amended as follows:
(a) by omitting subsection (3) from section
401 and substituting the following
subsection:
(3) For the purposes of subsection
(2)(c), sentence, in relation to -
(a) a person convicted on
indictment, includes an
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Justice and Related Legislation (Miscellaneous Amendments) Act
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sch. 1
order under the
Sentencing Act 1997; or
(b) a person convicted under
the provisions of
section 331C, includes an
order under the
Sentencing Act 1997.
(b) by inserting the following subsection
after subsection (2) in section 415:
(3) The Court may, if it thinks fit,
stay proceedings on any order
under the Sentencing Act 1997 or
suspend the operation of any such
order ab initio pending the
determination of an appeal.
(c) by inserting the following paragraph after
paragraph (c) in section 418(1):
(ca) the power to, pending the
determination of an appeal, stay
proceedings on any order under
the Sentencing Act 1997 or
suspend the operation of any such
order ab initio;
Criminal Rules 2006
1. Rule 22(1) is amended by omitting "the Legal
Aid Commission" and substituting "Tasmania
Legal Aid".
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Justice and Related Legislation (Miscellaneous Amendments) Act
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Act No. of 2021
sch. 1
Dangerous Criminals and High Risk Offenders Act 2021
1. Paragraph (c)(iii) of the definition of relevant
offender in section 24 is amended as follows:
(a) by inserting "this State," after "law of";
(b) by omitting "consecutively" twice
occurring and substituting
"cumulatively".
2. Section 33(2)(b)(iii) is amended by omitting
"consecutively" twice occurring and substituting
"cumulatively".
Evidence (Audio and Audio Visual Links) Act 1999
1. Section 6(1) is amended by omitting "direct that
evidence be taken, or submissions made, by" and
substituting "direct the use, for any purpose, of".
Evidence (Children and Special Witnesses) Act 2001
1. Section 3 is amended by omitting "or 240" from
paragraph (b)(i) of the definition of affected
child and substituting ", 240 or 240A".
Forensic Procedures Act 2000
1. The definition of serious offence in section 3(1)
is amended as follows:
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sch. 1
(a) by inserting in paragraph (b) ", 38B"
after "37B";
(b) by omitting paragraph (c) and
substituting the following paragraph:
(c) against section 20, 21, 22A, 26,
27 or 27AA of the Misuse of
Drugs Act 2001; or
Industrial Relations Act 1984
1. Section 70(1) is amended by inserting after
paragraph (b) the following paragraph:
(ba) a decision made by the Commission to
dismiss, or refrain from further hearing, a
matter, or part of a matter, under
section 21(2)(c) by the party who applied
for the hearing; and
2. Section 71 is amended by inserting after
subsection (10) the following subsections:
(10A) In respect of a matter in relation to which
an appeal has been lodged, the President
or presiding member may make or give
any procedural order or direction, not
involving the decision of the matter, that
he or she considers necessary or proper
to prevent prejudice to the rights or
claims of any party to the matter.
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(10B) An order or direction under subsection
(10A) may be discharged or varied by a
Full Bench.
3. Section 72 is amended by omitting subsections
(2) and (3) and substituting the following
subsection:
(2) A person who wishes to challenge, on the
basis of an error of law, a decision of a
Full Bench in respect of an appeal may
apply, by originating application, to the
Supreme Court for the decision to be
quashed wholly, or in part, on that basis.
Interstate Transfer (Community-based Sentences) Act 2009
1. The definition of community-based sentence in
section 3(1) is amended as follows:
(a) by inserting in paragraph (ba) "within the
meaning of the Sentencing Act 1997"
after "order";
(b) by omitting from paragraph (d)(i) "or
(b)" and substituting ", (b) or (ba)".
Justices Act 1959
1. Section 55 is amended by inserting after
subsection (5) the following subsection:
(6) Subsection (5) does not apply if -
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(a) the offence as charged is one in
respect of which the defendant is
entitled under section 72 to elect
to be tried or sentenced either by
justices or the Supreme Court and
the defendant has elected to have
the offence dealt with by justices;
or
(b) the offence as charged is one in
respect of which the justices,
under a provision of another Act,
may determine that the offence be
dealt with either by the justices or
the Supreme Court and the
justices have determined that the
offence be dealt with by them.
2. Section 60(4) is amended by omitting paragraph
(b) and substituting the following paragraph:
(b) the justices are satisfied that -
(i) preliminary proceedings have
commenced under Division 3 in
relation to the offence; or
(ii) a preliminary proceedings order
is being, or will be, sought or has
been granted in relation to the
offence.
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Justice and Related Legislation (Miscellaneous Amendments) Act
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3. Section 74B is amended by omitting subsections
(1) and (2) and substituting the following
subsection:
(1) If for any reason a complaint is not heard
and determined on the day on which the
defendant is first brought before a court
of summary jurisdiction in respect of it
and an adjournment is ordered, the court
may -
(a) remand the defendant in custody;
or
(b) admit the defendant to bail; or
(c) if the defendant appeared before
the court in accordance with his
or her bail, continue that bail
(with or without a variation to the
conditions of that bail) to the time
at, and the day and place to,
which the proceedings are
adjourned; or
(d) order the defendant to appear
before the court at the time, on
the day and at the place to which
the proceedings are adjourned.
Legal Aid Commission Act 1990
1. Section 3 is amended by omitting the definition
of Commission and substituting the following
definition:
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Justice and Related Legislation (Miscellaneous Amendments) Act
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sch. 1
Commission means Tasmania Legal Aid
constituted under section 4;
2. Section 4(1) is amended by omitting "the Legal
Aid Commission of Tasmania" and substituting
"Tasmania Legal Aid".
3. After section 53B, the following section is
inserted in Part 7:
53C. Further savings and transitional provisions
The savings and transitional provisions in
Schedule 5 have effect.
4. After Schedule 4, the following Schedule is
inserted:
SCHEDULE 5 - FURTHER SAVINGS AND
TRANSITIONAL PROVISIONS
Section 53C
1. Interpretation
In this Schedule -
commencement day means the day on
which the Justice and Related
Legislation (Miscellaneous
Amendments) Act 2021
commences;
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former Act means this Act as in force
immediately before the
commencement day.
2. References to Legal Aid Commission of
Tasmania, &c.
(1) If, in any proceedings commenced before
the commencement day, a reference is
made to Tasmania Legal Aid, that
reference is taken to be a reference to the
Legal Aid Commission of Tasmania as
constituted under the former Act.
(2) On and after the commencement day, a
reference in any legislation, contract,
agreement, document or proceedings to
the Legal Aid Commission of Tasmania,
the Legal Aid Commission or the
Tasmanian Legal Aid Commission is to
be taken to be a reference to Tasmania
Legal Aid.
Legal Profession (Barristers) Rules 2016
1. Clause 2(c) of Schedule 1 is amended by
omitting "the Legal Aid Commission" first
occurring and substituting "Tasmania Legal
Aid".
Legal Profession Act 2007
1. Section 4(1) is amended as follows:
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Justice and Related Legislation (Miscellaneous Amendments) Act
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sch. 1
(a) by omitting the definition of Legal Aid
Commission;
(b) by inserting the following definition after
the definition of supervised legal
practice:
Tasmania Legal Aid means the
commission constituted under
section 4 of the Legal Aid
Commission Act 1990;
2. Section 361(2)(a) is amended by omitting "the
Legal Aid Commission of Tasmania" and
substituting "Tasmania Legal Aid".
Magistrates Court (Children's Division) Rules 2012
1. Rule 3(1) is amended as follows:
(a) by omitting the definition of Legal Aid
Commission of Tasmania;
(b) by omitting "Act." from the definition of
separate representative and substituting
"Act;";
(c) by inserting the following definition after
the definition of separate representative:
Tasmania Legal Aid means the
commission constituted under
section 4 of the Legal Aid
Commission Act 1990.
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Justice and Related Legislation (Miscellaneous Amendments) Act
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sch. 1
2. Rule 41 is amended by omitting "the Legal Aid
Commission of Tasmania" and substituting
"Tasmania Legal Aid".
3. Rule 42 is amended as follows:
(a) by omitting "the Legal Aid Commission
of Tasmania" first occurring and
substituting "Tasmania Legal Aid";
(b) by omitting from paragraph (a) "the
Legal Aid Commission of Tasmania" and
substituting "Tasmania Legal Aid";
(c) by omitting from paragraph (b) "the
Legal Aid Commission of Tasmania" and
substituting "Tasmania Legal Aid".
Oaths Act 2001
1. Section 12(2) is amended by omitting paragraphs
(a) and (b) and substituting the following
paragraph:
(a) a prescribed person under regulation 7 of
the Statutory Declarations Regulations
2018 of the Commonwealth; or
Police Offences Act 1935
1. Section 15CA is amended by omitting
subsection (2).
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sch. 1
Promissory Oaths Act 2015
1. Section 9 is amended as follows:
(a) by omitting from subsection (1) "section
4 of the Justices Act 1959" and
substituting "section 5 of the Justices of
the Peace Act 2018";
(b) by omitting from subsection (4) "section
4 of the Justices Act 1959" and
substituting "section 5 of the Justices of
the Peace Act 2018";
(c) by omitting subsections (5), (6), (7), (8)
and (9).
Retirement Villages Act 2004
1. Schedule 3 is amended by omitting
Have I sought advice on the documents relating to the village
from an Australian legal practitioner, the Legal Aid
Commission or some other appropriate source?
and substituting:
Have I sought advice on the documents relating to the village
from an Australian legal practitioner, Tasmania Legal Aid or
some other appropriate source?
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Justice and Related Legislation (Miscellaneous Amendments) Act
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sch. 1
Sex Industry Offences Act 2005
1. Section 3(1) is amended by omitting the
definition of sexually transmissible infection and
substituting the following definition:
sexually transmissible infection means an
infection that is transmitted through
sexual contact between people, including
the following:
(a) syphilis;
(b) gonorrhoea;
(c) chlamydia;
(d) human immunodeficiency virus;
(e) hepatitis;
(f) any other prescribed infection.