Justice and Community Safety Legislation Amendment Act 2005 (ACT)

Justice and Community Safety Legislation Amendment Act 2005

A2005-5

Contents

Page

Part 1Preliminary

1. Name of Act  2

2. Commencement  2

Part 2Agents Act 2003

1. Legislation amended—pt 2  3

2. Interest on trust accounts

   
   

   Section 109 (1)  3

Part 3Bail Act 1992

1. Legislation amended—pt 3  4

2. Section 42  4

3. Power of Supreme Court to review

   
   

   Section 43 (2)  5

4. Section 43 (2) (b)  5

Part 4Civil Law (Wrongs) Act 2002

1. Legislation amended—pt 4  6

2. Notice of claim

   
   

   Section 51 (3) (b)  6

3. Certificate that claim or defence has reasonable prospects of success

   
   

   Section 188 (2)  6

Part 5Confiscation of Criminal Assets Act 2003

1. Legislation amended—pt 5  7

2. Key concepts

   
   

   Part 3 heading, new note 3  7

3. Meaning of convicted and quashed

   
   

   Section 15 (1), notes 1 and 2  7

4. Restraining orders—time for making certain applications

   
   

   Section 27 (2), notes 1 and 2  8

5. Restraining orders over other property—affidavit supporting application

   
   

   Section 29 (5) (b) (i) and (ii)  8

6. Dictionary, note 2  8

7. Dictionary, definition of present  8

8. Further amendments, new note  9

Part 6Drugs of Dependence Act 1989

1. Legislation amended—pt 6  10

2. Interpretation for Act

   
   

   Section 3 (1), definition of drug of dependence  10

3. Section 3 (1), definition of prohibited substance  10

4. Definitions for pt 2

   
   

   Section 4, definition of drug of dependence  10

Part 7Legislation Act 2001

1. Legislation amended—pt 7  11

2. Exercise of powers between notification and commencement

   
   

   Section 81 (2)  11

3. Section 81  12

4. When must prosecutions begin?

   
   

   Section 192 (1) (b), (c) and (d)  12

5. Dictionary, part 1, new definition of present  12

Part 8Magistrates Court Act 1930

1. Legislation amended—pt 8  13

2. Jurisdiction of Supreme Court

   
   

   Section 207 (1) (a) and (b)  13

3. Institution of appeal

   
   

   Section 209 (1)  13

4. New division 3.10.2A  14

5. Grant of order nisi to review

   
   

   Section 219C (1)  15

6. Dictionary, new definition of reference appeal  15

Part 9Periodic Detention Act 1995

1. Legislation amended—pt 9  16

2. Meaning of drug

   
   

   Section 12, definition of drug, paragraph (b)  16

Part 10Road Transport (Alcohol and Drugs) Act 1977

1. Legislation amended—pt 10  17

2. Dictionary, definition of drug, paragraph (b)  17

Part 11Security Industry Act 2003

1. Legislation amended—pt 11  18

2. Sections 41 and 42  18

Part 12Security Industry Regulation 2003

1. Legislation amended—pt 12  20

2. Definitions for pt 4

   
   

   Section 10, definition of identification number  20

3. Section 12  20

Part 13Smoke-free Areas (Enclosed Public Places) Act 1994

1. Legislation amended—pt 13  21

2. Definitions for Act

   
   

   Section 2, definition of drug  21

Part 14Smoking (Prohibition in Enclosed Public Places) Act 2003

1. Legislation amended—pt 14  22

2. Sections 31 and 35  22

Part 15Tobacco Act 1927

1. Legislation amended—pt 15  23

2. Dictionary, definition of drug  23

Justice and Community Safety Legislation Amendment Act 2005

A2005-5

An Act to amend the law relating to justice and community safety, 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 Justice and Community Safety Legislation Amendment Act 2005.

2. Commencement

   (1)The following provisions commence on the commencement of the Criminal Code (Serious Drug Offences) Amendment Act 2004:

   ·     part 6 (Drugs of Dependence Act 1989)

   ·     part 9 (Periodic Detention Act 1995)

   ·     part 10 (Road Transport (Alcohol and Drugs) Act 1977)

   ·     part 13 (Smoke-free Areas (Enclosed Public Places) Act 1994)

   ·     part 15 (Tobacco Act 1927).

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

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

   (3)To remove any doubt, the Legislation Act, section 79A (Commencement of amendment of uncommenced law) does not apply to the amendment made by part 14.

Part 2Agents Act 2003

1. Legislation amended—pt 2

   This part amends the Agents Act 2003.

2. Interest on trust accounts
   Section 109 (1)

   omit

   1st

   substitute

   10th

Part 3Bail Act 1992

1. Legislation amended—pt 3

   This part amends the Bail Act 1992.

2. Section 42

   substitute

3. Power of Magistrates Court to review

   (1)The Magistrates Court may, on application under this division, review any decision of an authorised officer or the Magistrates Court (however constituted) in relation to bail.

   (2)However, the Magistrates Court may review the decision only if the application for review is based on—

   (a)a significant change in circumstances relevant to the granting of bail; or

   (b)the availability of fresh evidence or information of material significance to the granting of bail to the person that was unavailable on the most recent application in relation to bail.

   (3)The power of the Magistrates Court to review a decision under this section may be exercised whether or not any power to review the decision under section 38 has been exercised or been sought to be exercised.

4. Power of Supreme Court to review
   Section 43 (2)

   omit

   court

   substitute

   Supreme Court

5. Section 43 (2) (b)

   omit

   application to the judge

   substitute

   application in relation to bail

Part 4Civil Law (Wrongs) Act 2002

1. Legislation amended—pt 4

   This part amends the Civil Law (Wrongs) Act 2002.

2. Notice of claim
   Section 51 (3) (b)

   substitute

   (b)the day that is 1 month after the later of the following days:

   (i)the day the claimant first instructs a lawyer to provide advice about seeking damages for the personal injury;

   (ii)the day the respondent is identified.

3. Certificate that claim or defence has reasonable prospects of success
   Section 188 (2)

   substitute

   (2)The lawyer must not lodge a pleading in a court for filing, or file a pleading in a court, in relation to the claim unless the lawyer has lodged for filing or filed in the court, or the pleading is accompanied by, a certificate stating that the lawyer believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.

Part 5Confiscation of Criminal Assets Act 2003

1. Legislation amended—pt 5

   This part amends the Confiscation of Criminal Assets Act 2003.

2. Key concepts
   Part 3 heading, new note 3

   insert

   Note 3Other important concepts are defined in the Legislation Act, dict, pt 1, including the following:

   ·     indictment

   ·     present.

3. Meaning of convicted and quashed
   Section 15 (1), notes 1 and 2

   substitute

   Note 1Indictment is defined in the Legislation Act, dict, pt 1 as including an information. (See also that Act, dict, pt 1, def present.)

   Note 2Found guilty, of an offence, is defined in the Legislation Act, dict, pt 1 as including—

   (a)having the offence taken into account under the Crimes Act 1900, s 357 (which is about taking outstanding charges into account when passing sentence); and

   (b)having an order made in relation to the offence under the Crimes Act 1900, s 402 (Conditional release of offenders without proceeding to conviction) or the Children and Young People Act 1999, s 96 (Disposition of young offenders).

   Note 3For the meaning of abscond, see s 16.

4. Restraining orders—time for making certain applications
   Section 27 (2), notes 1 and 2

   substitute

   Note 1For the meaning of in relation to, see dict.

   Note 2Indictment is defined in the Legislation Act, dict, pt 1 as including an information. (See also that Act, dict, pt 1, def present.)

   Note 3The court may allow leave for an application to be made after a time fixed by this section in certain circumstances (see s 49 and s 246).

5. Restraining orders over other property—affidavit supporting application
   Section 29 (5) (b) (i) and (ii)

   substitute

   (i)that the officer suspects that the property is tainted property; or

   (ii)that the officer suspects that the property is subject to the offender’s effective control.

6. Dictionary, note 2

   insert

   ·     present

7. Dictionary, definition of present

   omit

8. Further amendments, new note

   insert

   NoteIndictment is defined in the Legislation Act, dict, pt 1 as including an information. (See also that Act, dict, pt 1, def present.)

   in

   ·     section 16 (1)

   ·     section 17

   ·     section 29 (1)

   ·     section 31 (2)

   ·     section 47 (6)

   ·     section 48 (5)

   ·     section 67 (5)

   ·     section 85 (3)

Part 6Drugs of Dependence Act 1989

1. Legislation amended—pt 6

   This part amends the Drugs of Dependence Act 1989.

2. Interpretation for Act
   Section 3 (1), definition of drug of dependence

   substitute

   drug of dependence means a substance prescribed by regulation as a drug of dependence for this definition.

3. Section 3 (1), definition of prohibited substance

   substitute

   prohibited substance means a substance prescribed by regulation as a prohibited substance for this definition.

4. Definitions for pt 2
   Section 4, definition of drug of dependence

   substitute

   drug of dependence means a substance prescribed by regulation as a drug of dependence for this definition.

Part 7Legislation Act 2001

1. Legislation amended—pt 7

   This part amends the Legislation Act 2001.

2. Exercise of powers between notification and commencement
   Section 81 (2)

   substitute

   (2)To remove any doubt and without limiting subsection (1), this section applies to any of the following powers if the power is to be exercised in relation to an entity to be established by the authorising law or the authorising law as amended by the amending law:

   (a)a power to make an appointment to the entity;

   (b)a power to make a statutory instrument for the purposes of the entity;

   (c)a power to do anything else in relation to the entity.

   Example

   This section applies to powers under an authorising law to be exercised in relation to the conduct of an election for members of a board to be established as a corporation by the authorising law.

   NoteAn 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).

   (2A)The power may be exercised at any time even though the authorising law, or the authorising law and amending law (or either of them), is not in force at the time.

   (2B)For the exercise of the power, the authorising law, or the authorising law and amending law, are taken to be in force at the time of the exercise of the power.

3. Section 81

   renumber subsections when Act next republished under Legislation Act

4. When must prosecutions begin?
   Section 192 (1) (b), (c) and (d)

   substitute

   (b)an offence by a corporation punishable by a fine of 100 penalty units or more;

   NoteSee s 161 for the fines that may be imposed on a corporation for offences punishable only by imprisonment.

   (c)an aiding and abetting offence by an individual in relation to an offence by a corporation punishable by a fine of 100 penalty units or more.

5. Dictionary, part 1, new definition of present

   insert

   present an indictment includes lay an information.

Part 8Magistrates Court Act 1930

Explanatory note

The amendments in this part take account of amendments of the Magistrates Court Act 1930 to be made by the Court Procedures (Consequential Amendments) Act 2004.

1. Legislation amended—pt 8

   This part amends the Magistrates Court Act 1930.

2. Jurisdiction of Supreme Court
   Section 207 (1) (a) and (b)

   substitute

   (a)appeals to which division 3.10.2 (Appeals in criminal matters) applies;

   (b)reference appeals under division 3.10.2A (Reference appeals in criminal matters);

   (c)appeals from decisions of the Magistrates Court by way of orders to review under division 3.10.3 (Orders to review in criminal matters).

3. Institution of appeal
   Section 209 (1)

   omit

   21 days

   substitute

   28 days

4. New division 3.10.2A

   insert

Division 3.10.2A     Reference appeals in criminal matters

219AWhat is a reference appeal?

In this division:

reference appeal—see section 219AB (2).

219ABReference appeal following acquittal on indictment

(1)This section applies if a person has been tried on indictment in the Magistrates Court and acquitted in relation to all or part of the indictment.

(2)The Supreme Court may, on application by the Attorney-General or director of public prosecutions (the applicant), hear and decide (by a reference appeal) any question of law arising at or in relation to the trial.

(3)An application must be made within 6 weeks after the end of the trial, or within any longer period allowed by the Supreme Court.

219ACWho may be heard at reference appeal

(1)Each of the following people (each interested party) may be heard in a reference appeal:

(a)a person charged at the trial;

(b)a person who seeks to be heard, if the court is satisfied that the person has a sufficient interest in the appeal to be heard.

(2)If an interested party is not represented in the appeal, the applicant must instruct counsel to argue the reference appeal on the party’s behalf.

(3)The reasonable costs of legal representation of an interested party are payable by the Territory.

219ADReference appeal decision does not affect trial verdict

The decision on a reference appeal does not invalidate or affect any verdict or decision given at the trial.

1. Grant of order nisi to review
   Section 219C (1)

   omit

   21 days

   substitute

   28 days

2. Dictionary, new definition of reference appeal

   insert

   reference appeal, for division 3.10.2A (Reference appeals in criminal matters)—see section 219AB (2).

Part 9Periodic Detention Act 1995

1. Legislation amended—pt 9

   This part amends the Periodic Detention Act 1995.

2. Meaning of drug
   Section 12, definition of drug, paragraph (b)

   substitute

   (b)a controlled drug within the meaning of the Criminal Code, chapter 6 (Serious drug offences).

Part 10Road Transport (Alcohol and Drugs) Act 1977

1. Legislation amended—pt 10

   This part amends the Road Transport (Alcohol and Drugs) Act 1977.

2. Dictionary, definition of drug, paragraph (b)

   substitute

   (b)a controlled drug within the meaning of the Criminal Code, chapter 6 (Serious drug offences); or

Part 11Security Industry Act 2003

1. Legislation amended—pt 11

   This part amends the Security Industry Act 2003.

2. Sections 41 and 42

   Substitute

3. Licence to be produced on request

   (1)A licensee commits an offence if—

   (a)the licensee is asked to produce the licensee’s licence for inspection by—

   (i)a police officer; or

   (ii)an investigator; or

   (iii)anyone with whom the licensee has dealings when carrying on a security activity; and

   (b)the licensee does not produce the licence for inspection.

   Maximum penalty:  10 penalty units.

   (2)An offence against this section is a strict liability offence.

   (3)Subsection (1) (a) (iii) does not apply to a licensee if—

   (a)a regulation requires the licensee to wear another form of identification while carrying on the security activity; and

   (b)the licensee wears the other form of identification while carrying on the security activity.

   (4)In this section:

   investigator—see the Fair Trading (Consumer Affairs) Act 1973, section 2.

4. Licence to be worn by licensee

   (1)A person who holds an employee licence commits an offence if the person—

   (a)carries on a security activity; and

   (b)does not wear the licence so the licence number is clearly visible.

   Maximum penalty:  10 penalty units.

   (2)An offence against this section is a strict liability offence.

   (3)Subsection (1) does not apply to—

   (a)a person if—

   (i)a regulation requires the person to wear another form of identification while carrying on the security activity; and

   (ii)the person wears the other form of identification while carrying on the security activity; or

   (b)a licensee if the commissioner for fair trading has exempted the licensee under subsection (4).

   (4)On application, the commissioner for fair trading may, in writing, exempt a licensee from subsection (1) if satisfied that it is appropriate to exempt the licensee because of the special nature of the licensee’s functions.

Part 12Security Industry Regulation 2003

1. Legislation amended—pt 12

   This part amends the Security Industry Regulation 2003.

2. Definitions for pt 4
   Section 10, definition of identification number

   substitute

   identification number—see section 12 (1).

3. Section 12

   substitute

4. Identification numbers—Act, s 41 and s 42

   (1)The commissioner for fair trading must allocate a unique number (the identification number) to the crowd controller.

   (2)The master licensee must ensure that the crowd controller wears the identification number so that it is clearly visible while the controller is at the place.

   (3)The crowd controller must wear the identification number so that it is clearly visible while the controller is at the place.

Part 13Smoke-free Areas (Enclosed Public Places) Act 1994

1. Legislation amended—pt 13

   This part amends the Smoke-free Areas (Enclosed Public Places) Act 1994.

2. Definitions for Act
   Section 2, definition of drug

   substitute

   drug means a controlled drug within the meaning of the Criminal Code, chapter 6 (Serious drug offences).

Part 14Smoking (Prohibition in Enclosed Public Places) Act 2003

Explanatory note

The Smoking (Prohibition in Enclosed Public Places) Act 2003, s 31 and s 35 amend the Liquor Act 1975.

1. Legislation amended—pt 14

   This part amends the Smoking (Prohibition in Enclosed Public Places) Act 2003.

2. Sections 31 and 35

   omit

Part 15Tobacco Act 1927

1. Legislation amended—pt 15

   This part amends the Tobacco Act 1927.

2. Dictionary, definition of drug

   substitute

   drug means a controlled drug within the meaning of the Criminal Code, chapter 6 (Serious drug offences).

Endnotes

1. Presentation speech

   Presentation speech made in the Legislative Assembly on 9 December 2004.

2. Notification

   Notified under the Legislation Act on 23 February 2005.

3. Republications of amended laws

   For the latest republication of amended laws, see certify that the above is a true copy of the Justice and Community Safety Legislation Amendment Bill 2005, which originated in the Legislative Assembly as the Justice and Community Safety Legislation Amendment Bill 2004 (No 2) and was passed by the Assembly on 17 February 2005.

   Clerk of the Legislative Assembly

   © Australian Capital Territory 2005