Courts and Other Justice Legislation Amendment Act 2021 (ACT)

Courts and Other Justice Legislation Amendment Act 2021

A2021-13

Contents

Page

Part 1      Preliminary

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

Part 2ACT Civil and Administrative Tribunal Act 2008

4            Section 7  4

5            Section 23  5

6            Mediation for applicationsSection 35 (1)  5

7           Section 35 (2) (a)  5

8            Procedure in absence of partySection 44  5

9            New section 47A  6

10          Interim ordersSection 53 (1)  7

11          Section 53 (3)  7

12          Decisions without hearingNew section 54 (1A)  8

13          Section 54 (1)  8

14          Section 54 (1) (a)  8

15          Powers of tribunal if parties reach agreementSection 55 (1) (b)  8

16          Other actions by tribunalSection 56 (c) (i), note  9

17          Section 56 (d), new example  9

18          Section 82  9

Part 3Common Boundaries Act 1981

19          Section 4 (3) (b) and section 5 (3) (b)  11

20          Application to ACAT—repair cost determinationSection 6 (4) (b)  11

21          Parties to applicationsNew section 8 (e)  11

22          Section 9  12

23          ACAT powers—repair determinationNew section 11 (3) (ba)  12

24          Dealing with variationsSection 15  12

Part 4Coroners Act 1997

25          Removal of body to place of post-mortem examinationSection 26  13

Part 5Guardianship and Management of Property Act 1991

26          New subdivision 2.2.1 heading  14

27          New subdivision 2.2.2  14

28          Sections 32JB (2) and 37 (2)  16

29          Dictionary, note 2  16

30          Dictionary, definition of interested person  16

Part 6Judicial Commissions Act 1994

31          Offence—disclosure of information by members etcSection 28 (2)  17

Part 7Magistrates Court Act 1930

32          Acting Chief MagistrateNew section 7E (3)  18

Part 8Powers of Attorney Act 2006

33          Section 50 heading  19

34          Section 50 (1)  19

35          New section 50A  19

36          Section 52 heading  20

37          New section 52 (4)  20

38          New part 7.2  21

39          Dictionary, note 2  21

Part 9Public Trustee and Guardian Act 1985

40          Capacities in which public trustee and guardian may actNew section 13 (1) (i)  22

41          New section 13A  22

Part 10Supreme Court Act 1933

42          Section 37V  24

43          Section 41B  24

44          Section 60A  24

Courts and Other Justice Legislation Amendment Act 2021

A2021-13

An Act to amend legislation about courts, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1Preliminary

1. Name of Act

   This Act is the Courts and Other Justice Legislation Amendment Act 2021.

2. Commencement

   (1)Parts 5 and 8 commence 3 months after this Act’s notification day.

   NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

   (2)Part 9 commences on a day fixed by the Minister by written notice.

   Note 1A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

   Note 2If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

   (3)The remaining provisions commence on the 7th day after this Act’s notification day.

3. Legislation amended

   This Act amends the following legislation:

   ·     ACT Civil and Administrative Tribunal Act 2008

   ·     Common Boundaries Act 1981

   ·     Coroners Act 1997

   ·     Guardianship and Management of Property Act 1991

   ·     Judicial Commissions Act 1994

   ·     Magistrates Court Act 1930

   ·     Powers of Attorney Act 2006

   ·     Public Trustee and Guardian Act 1985

   ·     Supreme Court Act 1933.

Part 2ACT Civil and Administrative Tribunal Act 2008

1. Section 7

   substitute

2. Tribunal principles

   In exercising its functions under this Act, the tribunal must—

   (a)seek to ensure the procedures of the tribunal—

   (i)are as simple, quick, inexpensive and informal as is consistent with achieving justice; and

   (ii)are implemented in a way that facilitates the resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the proceeding; and

   (b)observe natural justice and procedural fairness.

7ADuties of parties, authorised representatives and others

Each party to a proceeding, their authorised representative and anyone else accompanying the party or allowed to participate in the proceeding has a duty—

(a)to cooperate with the tribunal to give effect to the tribunal principles mentioned in section 7; and

(b)to comply with the Act and any directions.

NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation or rules (see Legislation Act, s 104).

1. Section 23

   substitute

2. Tribunal decides own procedure

   (1)The tribunal may decide its own procedure at any stage in dealing with an application if no procedure is prescribed for the application under this Act or an authorising law.

   Note 1The procedures of the tribunal must be as simple, quick, inexpensive and informal as is consistent with achieving justice (see s 7 (a)).

   Note 2A reference to an Act includes a reference to any statutory instrument made or in force under the Act (see Legislation Act, s 104).

   (2)The tribunal may, by order, dispense with the application of a provision of the rules to a particular proceeding on any conditions it considers appropriate.

   (3)The tribunal may make an order under subsection (2) on application by a party, another person or on its own initiative.

3. Mediation for applications
   Section 35 (1)

   omit everything before paragraph (a), substitute

   (1)This section applies if the tribunal considers that a matter to which an application relates—

4. Section 35 (2) (a)

   omit

   subject

5. Procedure in absence of party
   Section 44

   omit

6. New section 47A

   insert

47AProcedure in absence of party

(1)This section applies if—

(a)the tribunal requires a party to appear either personally or by a representative before the tribunal in relation to an application; and

(b)the party fails to appear.

(2)The tribunal may—

(a)if the party is the applicant—dismiss the application; or

(b)if the party is the respondent—decide the application; or

(c)if the party is not the applicant or respondent—remove the party from the application; or

(d)do any of the following:

(i)continue with the hearing in the absence of the party either generally or in relation to any relief claimed in the application;

(ii)order that the application be set down for hearing at another time;

(iii)order that stated steps be taken before the hearing takes place as the tribunal directs;

(iv)make any other orders that the tribunal considers appropriate.

Note 1The procedures of the tribunal must be as simple, quick, inexpensive and informal as is consistent with achieving justice and the tribunal must observe natural justice and procedural fairness (see s 7).

Note 2If the tribunal makes an order after hearing an application in the absence of a party, the tribunal may, on application by a party, amend or set aside the order (see s 56 (c) (i)).

1. Interim orders
   Section 53 (1)

   substitute

   (1)This section applies if, at any stage before an application is finalised in the tribunal—

   (a)a party to an application applies to the tribunal for an order under this section; and

   (b)the tribunal is satisfied that, if an order under this section were not made, the party applying for the order would be disadvantaged or suffer harm.

2. Section 53 (3)

   substitute

   (3)An interim order remains in force until—

   (a)the tribunal orders otherwise; or

   (b)the application is finalised in the tribunal.

3. Decisions without hearing
   New section 54 (1A)

   before subsection (1), insert

   (1A)The tribunal may, on application by a party or on its own initiative, decide an application on the basis of documents, without the parties, their representatives or witnesses appearing at a hearing.

   NoteThe procedures of the tribunal must be as simple, quick, inexpensive and informal as is consistent with achieving justice and the tribunal must observe natural justice and procedural fairness (see s 7).

4. Section 54 (1)

   omit

   written

5. Section 54 (1) (a)

   substitute

   (a)the tribunal proposes to decide the application on the basis of documents, without the parties, their representatives or witnesses appearing at a hearing; and

6. Powers of tribunal if parties reach agreement
   Section 55 (1) (b)

   substitute

   (b)the terms (the agreed terms) of the agreement are recorded by, or lodged with, the tribunal; and

7. Other actions by tribunal
   Section 56 (c) (i), note

   omit

   s 44

   substitute

   s 47A

8. Section 56 (d), new example

   insert

   3     an order staying an order, pending an appeal

9. Section 82

   substitute

10. Appeal tribunal—general powers

    (1)An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal—

    (a)as a new application; or

    (b)as a review of all or part of the original decision on the application by the tribunal.

    (2)An appeal tribunal—

    (a)has all the powers and duties of the tribunal that made the order appealed from; and

    (b)may draw inferences of fact; and

    (c)may, if leave is granted, receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way; and

    (d)may make an order confirming, amending, setting aside or replacing the order of the tribunal appealed from; and

    (e)may make any other order it considers appropriate.

Part 3Common Boundaries Act 1981

1. Section 4 (3) (b) and section 5 (3) (b)

   omit

   1 month has

   substitute

   30 days have

2. Application to ACAT—repair cost determination
   Section 6 (4) (b)

   omit

   14 days has

   substitute

   14 days have

3. Parties to applications
   New section 8 (e)

   insert

   (e)for an application to which section 9 applies—

   (i)the applicant; and

   (ii)either—

   (A)the person to whom a document mentioned in section 9 (2) (a), (b) or (c) is given; or

   (B)the person declared under an order under section 9 (2) (d) to be the respondent to the application.

4. Section 9

   substitute

5. Non‑compliant notices

   (1)An applicant who fails to comply with a notice requirement under section 4 (3), section 5 (3) or section 6 (4) (the relevant provision) may apply to the ACAT for an order under this section.

   (2)The ACAT may, by order—

   (a)accept a document given to the respondent as notice under the relevant provision; or

   (b)    correct a defect in a notice given to the respondent; or

   (c)deal with the application as if the notice given to the respondent complied with the relevant provision; or

   (d)if no notice has been given under the relevant provision—declare who the respondent to the application is.

   (3)If the parties consent, the ACAT may, by order, waive a requirement to—

   (a)give written notice; or

   (b)wait a certain period before making an application.

6. ACAT powers—repair determination
   New section 11 (3) (ba)

   insert

   (ba)the line where the fence should be erected; and

7. Dealing with variations
   Section 15

   omit

Part 4Coroners Act 1997

1. Removal of body to place of post-mortem examination
   Section 26

   omit

Part 5Guardianship and Management of Property Act 1991

1. New subdivision 2.2.1 heading

   before section 16, insert

Subdivision 2.2.1       General

1. New subdivision 2.2.2

   after section 19, insert

Subdivision 2.2.2       If guardians or managers do not comply with Act

19AACAT may order compensation etc

(1)The ACAT may order the guardian or manager for a person (the protected person) to pay an amount to the protected person or, if the protected person has died, the protected person’s estate—

(a)to compensate for a loss caused by the failure of the guardian or manager to comply with this Act in the exercise, or purported exercise, of a power; or

(b)to account for any profits the guardian or manager has accrued as a result of their failure to comply with this Act in the exercise, or purported exercise, of a power.

(2)However, the ACAT must not order the guardian or manager to make a payment under both subsection (1) (a) and (b) in relation to the same exercise, or purported exercise, of power.

(3)Subsection (1) applies whether or not the guardian or manager is convicted of an offence in relation to the failure.

(4)The ACAT may make an order under subsection (1)—

(a)on its own initiative; or

(b)on application by an interested person in relation to the protected person.

(5)If the protected person or the guardian or manager has died, any application under subsection (4) (b) must be made—

(a)within 6 months after the day of the death; and

(b)if both the protected person and the guardian or manager have died—within 6 months after the day of the first death.

19BCompensation under s 19A and later civil proceeding

(1)This section applies if—

(a)compensation for the failure of a guardian or manager to comply with this Act is paid in accordance with an order under section 19A; and

(b)a later civil proceeding is brought in relation to the same failure.

(2)The payment of compensation must be taken into account in assessing damages in the civil proceeding.

19CRelief from personal liability by court

(1)This section applies if a court considers that—

(a)a guardian or manager is, or may be, personally liable for a contravention of this Act; and

(b)the guardian or manager has acted honestly and reasonably and ought fairly to be excused for the contravention.

(2)The court may relieve the guardian or manager from all or part of the guardian’s or manager’s personal liability for the contravention.

(3)In deciding whether the guardian or manager should be relieved of liability, the court must consider the extent to which the guardian or manager has acted consistently with the decision-making principles.

19DACAT may refer matter to Supreme Court

The ACAT may refer an application under section 19A (4) (b) to the Supreme Court.

NoteSee the ACT Civil and Administrative Tribunal Act 2008, s 83 and s 84 for when an application to the ACAT may be referred to the Supreme Court.

1. Sections 32JB (2) and 37 (2)

   omit

2. Dictionary, note 2

   insert

   ·     Supreme Court

3. Dictionary, definition of interested person

   substitute

   interested person—see the Powers of Attorney Act 2006, section 74.

Part 6Judicial Commissions Act 1994

1. Offence—disclosure of information by members etc
   Section 28 (2)

   after

   for this Act

   insert

   or the Integrity Commission Act 2018, section 59 (Other entities may refer corruption complaints)

Part 7Magistrates Court Act 1930

1. Acting Chief Magistrate
   New section 7E (3)

   insert

   (3)Despite the Legislation Act, section 209 (2), the determination mentioned in section 7AA does not apply to the appointment of an acting Chief Magistrate.

Part 8Powers of Attorney Act 2006

1. Section 50 heading

   substitute

2. Compensation for failure to comply with Act—Supreme Court order

3. Section 50 (1)

   omit

   exercise of a power

   substitute

   exercise, or purported exercise, of a power

4. New section 50A

   insert

50AACAT may order compensation etc

(1)The ACAT may order an attorney for a principal to pay an amount to the principal or, if the principal has died, the principal’s estate—

(a)to compensate for a loss caused by the attorney’s failure to comply with this Act in the exercise, or purported exercise, of a power; or

(b)to account for any profits the attorney has accrued as a result of the attorney’s failure to comply with this Act in the exercise, or purported exercise, of a power.

(2)However, the ACAT must not order the attorney to make a payment under both subsection (1) (a) and (b) in relation to the same exercise, or purported exercise, of power.

(3)Subsection (1) applies whether or not the attorney is convicted of an offence in relation to the attorney’s failure.

(4)The ACAT may make an order under subsection (1)—

(a)on its own initiative; or

(b)on application by an interested person in relation to the power of attorney.

(5)If the principal or the attorney has died, any application under subsection (4) (b) must be made—

(a)within 6 months after the day of the death; and

(b)if both principal and attorney have died—within 6 months after the day of the first death.

(6)In this section:

interested person—see section 74.

1. Section 52 heading

   substitute

2. Relief from personal liability

3. New section 52 (4)

   insert

   (4)In this section:

   court includes the ACAT.

4. New part 7.2

   insert

Part 7.2ACAT referral

1. ACAT may refer matter to Supreme Court

   The ACAT may refer an application under section 50A (4) (b) to the Supreme Court.

   NoteSee the ACT Civil and Administrative Tribunal Act 2008, s 83 and s 84 for when an application to the ACAT may be referred to the Supreme Court.

2. Dictionary, note 2

   insert

   ·     Supreme Court

Part 9Public Trustee and Guardian Act 1985

1. Capacities in which public trustee and guardian may act
   New section 13 (1) (i)

   insert

   (i)the person responsible for the disposal of the body of an unclaimed deceased person.

2. New section 13A

   insert

13AAppointment as person responsible for disposal of unclaimed deceased person

(1)This section applies if the public trustee and guardian accepts an appointment as the person responsible for the disposal of the body of an unclaimed deceased person.

(2)The public trustee and guardian—

(a)may do any of the following:

(i)make arrangements for the disposal of the body of the unclaimed deceased person;

(ii)investigate whether the unclaimed deceased person has a solvent estate;

(iii)administer the unclaimed deceased person’s estate; but

(b)is not responsible for arranging the removal of the unclaimed deceased person’s body from the place where the person died.

NoteIf a person dies, the person’s estate vests in the public trustee and guardian from the time the person dies until someone is appointed as administrator of the estate or a grant of representation is made (see the Administration Act, s 38A).

(3)The public trustee and guardian must comply with any guideline made by the Minister for this section.

(4)A guideline is a disallowable instrument.

(5)In this section:

unclaimed deceased person means a person—

(a)whose death is registered under the Births, Deaths and Marriages Registration Act 1997; and

(b)the executor of whose estate, or whose next of kin—

(i)has not been be found, despite reasonable inquiries by the police; or

(ii)is unwilling or unable to make funeral arrangements for the person; and

(c)whose body—

(i)is held at a place in the ACT; and

(ii)has not been claimed by anyone who has a right to claim the body under the law of another State.

Part 10Supreme Court Act 1933

1. Section 37V

   substitute

37VActing judge—conditions of appointment

An acting judge is appointed on the conditions decided by the Executive, subject to this Act and any determination under the Remuneration Tribunal Act 1995.

1. Section 41B

   substitute

41BMaster—conditions of appointment

The master is appointed on the conditions decided by the Executive, subject to this Act and any determination under the Remuneration Tribunal Act 1995.

1. Section 60A

   substitute

60APower to complete part-heard proceedings

(1)This section applies if a proceeding (including a proceeding in the Full Court or the Court of Appeal) is not finally determined when a judge or associate judge (the former judge or associate judge) hearing the proceeding ceases to hold office.

(2)The former judge or associate judge—

(a)is taken to continue to hold office for the purpose of determining the proceeding; and

(b)may continue to exercise the court’s jurisdiction for the purpose of hearing and determining the proceeding, including giving judgment, making an order or completing or otherwise continuing to deal with any matter relating to the proceeding.

(3)However, the former judge or associate judge is not entitled to any remuneration, allowances or entitlements under this Act for holding office under this section.

(4)This section does not apply if a judge or associate judge is removed from office.

(5)Nothing in this section prevents a person being appointed as an acting judge.

Endnotes

1. Presentation speech

   Presentation speech made in the Legislative Assembly on 20 April 2021.

2. Notification

   Notified under the Legislation Act on 9 June 2021.

3. Republications of amended laws

   For the latest republication of amended laws, see certify that the above is a true copy of the Courts and Other Justice Legislation Amendment Bill 2021, which was passed by the Legislative Assembly on 3 June 2021.

   Clerk of the Legislative Assembly

   © Australian Capital Territory 2021