Justice and Community Safety Legislation Amendment Act 2006 (ACT)

Justice and Community Safety Legislation Amendment Act 2006

A2006-40

Contents

Page

1. Name of Act  2

2. Commencement  2

3. Legislation amended—schs 1 and 2  2

Schedule 1General amendments  3

Part 1.1Civil Law (Wrongs) Act 2002  3

Part 1.2Classification (Publications, Films and Computer Games) (Enforcement) Act 1995       6

Part 1.3Consumer Credit Regulation 1996  6

Part 1.4Court Procedures Act 2004  10

Part 1.5Domestic Violence and Protection Orders Act 2001           11

Part 1.6Fair Trading (Consumer Affairs) Act 1973  12

Part 1.7Human Rights Commission Act 2005  14

Part 1.8Land Titles Act 1925  16

Part 1.9Liquor Act 1975  16

Part 1.10Magistrates Court (Security Industry Infringement Notices) Regulation 2003     19

Part 1.11Mental Health (Treatment and Care) Act 1994                   20

Part 1.12Residential Tenancies Act 1997  20

Part 1.13Sale of Motor Vehicles Act 1977  23

Part 1.14Security Industry Act 2003  23

Part 1.15Security Industry Regulation 2003  26

Schedule 2Amendments arising out of harmonisation of court rules      28

Part 2.1Administration and Probate Act 1929  28

Part 2.2Administrative Appeals Tribunal Act 1989  39

Part 2.3Administrative Decisions (Judicial Review) Act 1989         40

Part 2.4Adoption Act 1993  40

Part 2.5Animal Diseases Act 2005  43

Part 2.6Bail Act 1992  44

Part 2.7Children and Young People Act 1999  44

Part 2.8Civil Law (Wrongs) Act 2002  44

Part 2.9Commercial Arbitration Act 1986  46

Part 2.10Consumer and Trader Tribunal Act 2003  49

Part 2.11Consumer Credit (Administration) Act 1996  50

Part 2.12Contractors Debts Act 1897  50

Part 2.13Court Procedures Act 2004  51

Part 2.14Discrimination Act 1991  61

Part 2.15Electoral Act 1992  61

Part 2.16Evidence (Miscellaneous Provisions) Act 1991                62

Part 2.17Guardianship and Management of Property Act 1991        66

Part 2.18Health Professionals Act 2004  67

Part 2.19Judicial Commissions Act 1994  68

Part 2.20Land Titles Act 1925  68

Part 2.21Leases (Commercial and Retail) Act 2001  69

Part 2.22Legal Profession Act 2006  70

Part 2.23Magistrates Court Act 1930  72

Part 2.24Mental Health (Treatment and Care) Act 1994                   80

Part 2.25Occupational Health and Safety Act 1989  81

Part 2.26Partnership Act 1963  81

Part 2.27Plant Diseases Act 2002  82

Part 2.28Residential Tenancies Act 1997  82

Part 2.29Royal Commissions Act 1991  82

Part 2.30Supreme Court Act 1933  83

Part 2.31Victims of Crime (Financial Assistance) Act 1983             91

Part 2.32Wills Act 1968  91

Part 2.33Workers Compensation Act 1951  92

Part 2.34Workers Compensation Rules 2002  92

Justice and Community Safety Legislation Amendment Act 2006

A2006-40

An Act to amend laws relating to justice and community safety, and for other purposes

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

1. Name of Act

   This Act is the Justice and Community Safety Legislation Amendment Act 2006.

2. Commencement

   (1)The following provisions commence on the day after this Act’s notification day:

   ·     section 3

   ·     schedule 1, part 1.2 (Classification (Publications, Films and Computer Games) (Enforcement) Act 1995)

   ·     schedule 1, part 1.6 (Fair Trading (Consumer Affairs) Act 1973)

   ·     schedule 1, part 1.9 (Liquor Act 1975)

   ·     schedule 1, part 1.13 (Sale of Motor Vehicles Act 1977)

   ·     schedule 2, other than part 2.23 (Magistrates Court Act 1930) and part 2.33 (Workers Compensation Act 1951).

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

   (2)Schedule 1, part 1.7 (Human Rights Commission Act 2005) commences on the commencement of the Human Rights Commission Act 2005, section 3.

   (3)The remaining provisions of schedule 1 commence 21 days after this Act’s notification day.

   (4)Schedule 2, part 2.23 and part 2.33 commence on 1 January 2007.

3. Legislation amended—schs 1 and 2

   This Act amends the legislation mentioned in schedule 1 and schedule 2.

Schedule 1General amendments

(see s 3)

Part 1.1Civil Law (Wrongs) Act 2002

[1.1]Section 4, note 1, new dot point

after 2nd dot point, insert

·     s 203B (Further reports by insurers).

[1.2]Section 116, definition of Australian jurisdiction

substitute

Australian jurisdiction means—

(a)a State; or

(b)a Territory; or

(c)the Commonwealth.

[1.3]Section 123 (5), definition of Australian jurisdictional area

substitute

Australian jurisdictional area means—

(a)the geographical area of Australia that lies within the territorial limits of a particular State (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c); or

(b)the geographical area of Australia that lies within the territorial limits of a particular Territory (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c); or

(c)any territory, place or other geographical area of Australia over which the Commonwealth has legislative competence but over which no State or Territory has legislative competence.

[1.4]Section 203 (3)

substitute

(3)The report must—

(a)be given in the way required by regulation; and

(b)comply with any directions under section 203A.

[1.5]New sections 203A and 203B

insert

203ADirections to insurers about reporting requirements

(1)The Minister may give directions for insurers in relation to the compiling of information to be included in a report under section 203.

(2)A direction is a disallowable instrument.

NoteA disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

203BFurther reports by insurers

(1)The Minister may, by written notice given to an insurer, require the insurer to give the Minister further stated information in relation to a report provided by the insurer under this part.

(2)The notice must—

(a)allow the insurer a stated reasonable time to comply with the notice; and

(b)require the insurer to give the information to the Minister in a reasonable stated way.

(3)If an insurer is given a notice under subsection (1), the insurer must comply with the notice.

Maximum penalty:  100 penalty units.

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

Part 1.2Classification (Publications, Films and Computer Games) (Enforcement) Act 1995

[1.6]New section 54BA

insert

54BADelegation by registrar

The registrar may delegate the registrar’s functions under this Act or another territory law to a public servant.

NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

Part 1.3Consumer Credit Regulation 1996

[1.7]New section 5 (2A)

insert

(2A)The maximum annual percentage rate must be worked out in accordance with section 6.

[1.8]New section 5 (4)

insert

(4)In this section:

temporary credit facility includes an overdraft facility and a short-term extension of the total amount of credit available under an existing credit contract.

NoteThis section is made under the Act, s 8B. The effect of a contravention of this section is set out in s 8B. The maximum interest rate is not part of the uniform provisions of the code in Australia.

[1.9]New section 6

insert

1. Working out maximum annual percentage rate

   (1)For the purposes of working out the maximum annual percentage rate under a credit contract, the rate must be worked out as a nominal rate per year, together with the compounding frequency, in accordance with this section.

   (2)The maximum annual percentage rate is worked out in accordance with the following formula:

(3)In subsection (2):

n is the number of repayments per year to be made under the credit contract annualised, except that—

(a)if repayments are to be made weekly or fortnightly—n is to be 52.18 or 26.09, respectively; and

(b)if the contract does not provide for a constant interval between repayments—n is to be derived from the interval selected for the purposes of the definition of j (see subsection (4)).

r is the solution of the following:

(4)In subsection (3):

j is the time, measured as a multiple (not necessarily integral) of the interval between contractual repayments that will have elapsed since the first amount of credit is provided under the credit contract, except that if the contract does not provide for a constant interval between repayments an interval of any kind is to be selected by the credit provider as the unit of time.

t is the time, measured as a multiple of the interval between contractual repayments (or other interval so selected), that will elapse between the time when the first amount of credit is provided and the time when the last repayment is to be made under the contract.

Aj is the amount of credit to be provided under the contract at time j (the value of j for the provision of the first amount of credit is taken to be zero).

Rj is the repayment to be made at time j.

Cj is the fee or charge (if any) payable by the debtor at time j (j is taken to be zero for any such fee or charge payable before the time of the first amount of credit provided) in addition to the repayments Rj, being a credit fee or charge that is ascertainable when the annual percentage rate is worked out.

(5)The maximum annual percentage rate must be correct to at least the nearest 0.001% per year.

(6)In applying the formulas in this section, reasonable approximations may be made if it would be impractical or unreasonably onerous to make a precise calculation.

(7)The tolerances and assumptions under the code, sections 158 to 160 apply in working out the maximum annual percentage rate.

(8)If the credit contract is a continuing credit contract (within the meaning of the code), the following assumptions also apply in working out the maximum annual percentage rate:

(a)that the debtor has drawn down the maximum amount of credit that the credit provider has agreed to provide under the contract;

(b)that the debtor will pay the minimum repayments specified in the contract;

(c)if credit is provided for payment by the credit provider to a third person in relation to goods, services or cash supplied by the third person to the debtor from time to time—that the debtor will not be supplied with any more goods, services or cash;

(d)if credit is provided for cash supplied by the credit provider to the debtor—that the debtor will not be supplied with any more cash.

(9)For the purposes of the maximum annual percentage rate—

(a)the amount of credit is the amount (or the maximum amount) required by the debtor; and

(b)the term for which credit is provided is the term (or the maximum term) required by the debtor.

Part 1.4Court Procedures Act 2004

[1.10]New part 8

insert

Part 8Supreme Court—criminal proceedings

Division 8.1               Supreme Court criminal proceedings—preliminary

1. Application—pt 8

   This part applies to a criminal proceeding in the Supreme Court.

Division 8.2               Trial on indictment

1. Trial proceedings after presentation of indictment and before empanelment of jury

   (1)The Supreme Court has jurisdiction in relation to the conduct of a proceeding on indictment as soon as the indictment is presented and the accused person is arraigned.

   (2)Any orders that may be made by the Supreme Court for the purposes of the trial in the absence of the jury may be made before—

   (a)a jury is empanelled; or

   (b)if the accused person elects to be tried by a judge alone—the trial starts.

   (3)If a proceeding is held for the purpose of making an order to which subsection (2) applies after the indictment is presented and before a jury is empanelled or a trial by judge alone starts—

   (a)the proceeding is part of the trial of the accused person; and

   (b)if the accused person is to be tried by a jury—the accused person must be arraigned again on the indictment when the jury is empanelled for the continuation of the trial.

   (4)This section does not require a jury to be empanelled for the trial of the accused person for an offence if the accused person pleads guilty to the offence before the jury is empanelled.

   (5)This section applies only in relation to an indictment presented after the commencement of this section.

   (6)Subsection (5) and this subsection are declared to be laws to which the Legislation Act, section 88 (Repeal does not end effect of transitional law etc) applies.

   (7)Subsections (5) and (6) and this subsection expire 2 years after the day this section commences.

Part 1.5Domestic Violence and Protection Orders Act 2001

[1.11]Section 9 (2), definition of domestic violence offence, paragraph (c) (ii)

substitute

(ii)section 316 (Going equipped with offensive weapon for theft etc);

(iii)section 403, section 404, section 405, section 406, section 407 or section 408 (which deal with property offences); or

[1.12]Schedule 1, new item 10A

insert

10A 26A common assault—summary offence

[1.13]Schedule 1, item 38

omit

[1.14]Schedule 1, items 40 and 41

substitute

40	380	possession of offensive weapons and disabling substances
41	381	possession of offensive weapons and disabling substances with intent

Part 1.6Fair Trading (Consumer Affairs) Act 1973

[1.15]Section 2, new definition of fair trading legislation

insert

fair trading legislation means—

(a)the Agents Act 2003; or

(b)the Fair Trading Act 1992; or

(c)the Fair Trading (Consumer Affairs) Act 1973; or

(d)the Security Industry Act 2003.

[1.16]Section 7 (1), new note

insert

NoteA provision of a law that gives an entity (including a person) 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).

[1.17]Section 7 (4)

omit

[1.18]Section 8

substitute

1. Delegation by commissioner

   (1)The commissioner may delegate the commissioner’s functions under the consumer and trader legislation or another territory law to a public servant.

   NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

   (2)In this section:

   consumer and trader legislation means the following:

   (a)the consumer credit legislation;

   (b)the fair trading legislation;

   (c)the Pawnbrokers Act 1902;

   (d)the Second-hand Dealers Act 1906;

   (e)the trade measurement legislation.

   consumer credit legislation—see the Consumer Credit (Administration) Act 1996, section 3.

   trade measurement legislation—see the Trade Measurement (Administration) Act 1991, section 3.

[1.19]Section 8A, definition of fair trading legislation

omit

Part 1.7Human Rights Commission Act 2005

[1.20]New section 19BA

insert

19BADelegation of children and young people commissioner’s functions

The children and young people commissioner may delegate the commissioner’s functions under this Act or another territory law to a member of the staff of the commission.

NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

[1.21]New section 21A

in division 3.4, insert

21ADelegation of disability and community services commissioner’s functions

The disability and community services commissioner may delegate the commissioner’s functions under this Act or another territory law to a member of the staff of the commission.

NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

[1.22]New section 23A

in division 3.5, insert

23ADelegation of discrimination commissioner’s functions

The discrimination commissioner may delegate the commissioner’s functions under this Act or another territory law to a member of the staff of the commission.

NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

[1.23]New section 25A

in division 3.6, insert

25ADelegation of health services commissioner’s functions

The health services commissioner may delegate the commissioner’s functions under this Act or another territory law to a member of the staff of the commission.

NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

[1.24]New section 27A

in division 3.7, insert

27ADelegation of human rights commissioner’s functions

The human rights commissioner may delegate the commissioner’s functions under this Act or another territory law to a member of the staff of the commission.

NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

Part 1.8Land Titles Act 1925

[1.25]New section 72A (3)

insert

(3)The variation takes effect when the registrar-general endorses on the folium of the register constituted by the relevant certificate of title the memorial mentioned in subsection (2).

Part 1.9Liquor Act 1975

[1.26]Sections 21 to 23

substitute

1. Appointment of registrar and deputy registrar

   (1)The chief executive may appoint a public servant as the Registrar of Liquor Licences.

   (2)The chief executive may appoint a public servant as the Deputy Registrar of Liquor Licences.

   Note 1For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

   Note 2In particular, an appointment may be made by naming a person or nominating the occupant of a position (see s 207).

   (3)The deputy registrar may exercise any of the registrar’s functions under this Act or another territory law, subject to any direction of the registrar.

   (4)If—

   (a)immediately before the commencement of this section, the duties of an office in the public service included exercising the functions of the Registrar of Liquor Licences; and

   (b)the chief executive has not made an appointment under subsection (1); and

   (c)the duties of the office have not ceased to include exercising the functions of the Registrar of Liquor Licences;

   the public servant for the time being occupying the office is the Registrar of Liquor Licences.

   NoteOccupy a position is defined in the Legislation Act, dict, pt 1 (see also def office).

   (5)If—

   (a)immediately before the commencement of this section, the duties of an office in the public service included exercising the functions of the Deputy Registrar of Liquor Licences; and

   (b)the chief executive has not made an appointment under subsection (2); and

   (c)the duties of the office have not ceased to include exercising the functions of the Deputy Registrar of Liquor Licences;

   the public servant for the time being occupying the office is the Deputy Registrar of Liquor Licences.

   NoteOccupy a position is defined in the Legislation Act, dict, pt 1 (see also def office).

   (6)Subsections (4) and (5) are laws to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

   (7)Subsections (4) to (6) and this subsection expire 1 year after the day this section commences.

2. Delegation by registrar

   The registrar may delegate the registrar’s functions under this Act or another territory law to a public servant.

   NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

3. Inspectors of licensed premises

   (1)The chief executive may appoint a public servant as an inspector of licensed premises.

   Note 1For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

   Note 2In particular, an appointment may be made by naming a person or nominating the occupant of a position (see s 207).

   (2)An inspector exercises the functions required by this Act, or as the registrar directs for this Act.

   (3)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 ceased to include exercising the functions of an inspector;

   the public servant for the time being occupying the office is an inspector.

   NoteOccupy a position is defined in the Legislation Act, dict, pt 1 (see also def office).

   (4)Subsection (3) is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

   (5)Subsections (3) and (4) and this subsection expire 1 year after the day this section commences.

[1.27]Section 108 (3)

omit

Despite section 21 (3), the registrar

substitute

The registrar

[1.28]Dictionary, definition of deputy registrar

omit

under section 22

[1.29]Dictionary, definition of registrar

omit

under section 21

Part 1.10Magistrates Court (Security Industry Infringement Notices) Regulation 2003

[1.30]Schedule 1, new items 6A and 6B

insert

6A	42 (2)	10	100
6B	42A (3)	10	100

Part 1.11Mental Health (Treatment and Care) Act 1994

[1.31]New section 55N (3)

insert

(3)To remove any doubt, section 94 (Notice of proceedings) does not apply to the making of an emergency electroconvulsive therapy order in relation to a person.

Part 1.12Residential Tenancies Act 1997

[1.32]Section 71C (1) (d) and (e)

substitute

(d)the agreement is not a residential tenancy agreement.

[1.33]Section 114 (4)

substitute

(4)The registrar may delegate the registrar’s functions under this Act to a public servant.

NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

[1.34]Section 115

substitute

1. Jurisdiction of tribunal generally

   (1)The tribunal has exclusive jurisdiction to hear and decide any matter that may be the subject of an application to the tribunal under—

   (a)this Act; or

   (b)the standard residential tenancy terms; or

   (c)the standard occupancy terms.

   NoteA 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, the tribunal does not have jurisdiction to make an order for—

   (a)the payment of an amount greater than $25 000; or

   (b)work of a value greater than $25 000.

   (3)This section is subject to—

   (a)section 115B; and

   (b)the Self-Government Act, section 48A (Jurisdiction and powers of the Supreme Court).

   NoteThe Self-Government Act, s 48A provides as follows:

   (1)The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory.

   (2)In addition, the Supreme Court may have such further jurisdiction as is conferred on it by any Act, enactment or Ordinance, or any law made under any Act, enactment or Ordinance.

   (3)The Supreme Court is not bound to exercise any powers where it has concurrent jurisdiction with another court or tribunal.

115ASaving of court jurisdiction

(1)A claim for payment of an amount, or for work of a value, exceeding $10 000 may be made in a court competent to hear and decide claims based on contract for the amount claimed.

(2)If a claim mentioned in subsection (1) may be made—

(a)the claimant may also make any other claim related to the relevant tenancy dispute or occupancy dispute; and

(b)the court in which the proceeding is brought may exercise the powers of the tribunal under this Act.

(3)This section has effect despite section 115.

115BExtended jurisdiction of tribunal with agreement of parties

(1)This section applies if—

(a)an application (the original application) is made to the tribunal under—

(i)this Act; or

(ii)the standard residential tenancy terms; or

(iii)the standard occupancy terms; and

NoteA 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).

(b)the parties to the proceeding agree to the tribunal exercising extended jurisdiction under this section.

(2)The tribunal has jurisdiction (extended jurisdiction) to hear and decide any matter that—

(a)arises out of, or is ancillary to, the dispute that gave rise to the original application; and

(b)the Magistrates Court has jurisdiction to hear and decide under the Magistrates Court Act 1930, part 4.2 (Civil jurisdiction).

(3)If the tribunal is exercising extended jurisdiction, the tribunal may exercise the jurisdiction and powers of the Magistrates Court under the Magistrates Court Act 1930, part 4.2 (Civil jurisdiction).

NoteThe Magistrates Court has jurisdiction to hear and decide any personal action at law if the amount claimed is not more than $50 000 (see the Magistrates Court Act 1930, s 257).

[1.35]Section 115A

renumber as section 115C

Part 1.13Sale of Motor Vehicles Act 1977

[1.36]New section 94

insert

1. Delegation by registrar

   The registrar may delegate the registrar’s functions under this Act or another territory law to a public servant.

   NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

[1.37]Section 94

renumber as section 95

Part 1.14Security Industry Act 2003

[1.38]New section 36 (f) and (g)

insert

(f)a decision under section 42A to refuse to exempt a licensee from a provision of section 42;

(g)a decision under section 42A to exempt a licensee from a provision of section 42 subject to conditions.

[1.39]Section 37

after

variation to a licence

insert

, or a licensee,

[1.40]Section 42

substitute

1. Wearing of licences etc

   (1)A person commits an offence if the person—

   (a)holds an employee licence; and

   (b)carries out any of the following security activities:

   (i)patrol, guard, watch or protect property (including cash in transit);

   (ii)act as a bodyguard;

   (iii)act as a crowd controller; and

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

   Maximum penalty:  10 penalty units.

   (2)A person commits an offence if the person—

   (a)holds an employee licence; and

   (b)carries out any of the following security activities:

   (i)act as a security consultant;

   (ii)sell security equipment;

   (iii)carry out surveys and inspections of security equipment;

   (iv)give advice about security equipment;

   (v)install, maintain, monitor, repair or service security equipment; and

   (c)either—

   (i)does not carry the licence; or

   (ii)fails to produce it for inspection on demand by a person in relation to whom the person is carrying out the activities.

   Maximum penalty:  10 penalty units.

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

   (4)This section does not apply to—

   (a)a person carrying on a security activity 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 section 42A.

   (5)In this section:

   security consultant—see section 13 (2).

42AExemption for wearing of licences etc

(1)On application by a licensee, the commissioner for fair trading may, in writing, exempt a licensee from a provision of section 42 if satisfied that it is appropriate to exempt the licensee because of the special nature of the licensee’s functions.

(2)An exemption under subsection (1) may be subject to conditions.

(3)A licensee commits an offence if the licensee contravenes a condition of the exemption.

Maximum penalty:  10 penalty units.

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

Part 1.15Security Industry Regulation 2003

[1.41]Section 10, definition of identification number

substitute

identification number, for the crowd controller, means the number allocated to the crowd controller under section 18.

[1.42]Section 12

substitute

1. Identification number—Act, s 41 and s 42

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

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

[1.43]New section 18

insert

1. Allocation of identification numbers to crowd controllers

   (1)This section applies if the commissioner for fair trading issues a licence to a person that authorises the person to act as a crowd controller.

   (2)The commissioner for fair trading must allocate a unique number to the person.

Schedule 2Amendments arising out of harmonisation of court rules

(see s 3)

Part 2.1Administration and Probate Act 1929

[2.1]Section 5 (1), definition of deputy registrar

omit

[2.2]Section 5 (1), definition of registrar

substitute

registrar means the registrar of the Supreme Court.

[2.3]Part 2

omit

[2.4]Section 8C

omit everything after paragraph (c), substitute

the Supreme Court must not grant the relief sought unless it has made a finding about the domicile of the deceased person at the time of death.

[2.5]Section 9B (1) (e)

omit

lodged with the registrar

substitute

filed in the Supreme Court under the rules

[2.6]Section 9B (3)

omit everything before paragraph (a), substitute

(3)If a caveat against the distribution of an estate has been filed in the Supreme Court in accordance with a notice under subsection (1) (e) and the caveat is in force under the rules—

[2.7]Section 9B (3) (b)

omit

lodged

substitute

filed

[2.8]Section 9B (4)

substitute

(4)Despite the filing of a caveat in the Supreme Court in accordance with subsection (1) (e), the court may, on application under subsection (3) (b), make an order authorising the executor or administrator of an estate to distribute the estate among the people entitled to it.

[2.9]Sections 10 and 10A

omit

[2.10]Section 12 (3)

substitute

(3)The Supreme Court must not grant administration of an intestate estate to a person mentioned in subsection (1) (e) if there is anyone else to whom administration may be granted under this section who—

(a)in the court’s opinion, can be trusted with administration of the estate; and

(b)applies to be granted administration of the estate.

[2.11]Sections 20 and 20A

substitute

1. Renunciation or non-appearance by executor

   (1)This section applies if—

   (a)the person appointed executor by a will renounces probate of the will; or

   (b)the person appointed executor by a will survives the testator but dies without having taken out probate of the will; or

   (c)an application is made in the Supreme Court under section 25 (Failure of executor to prove will) in relation to the person appointed executor by a will and the person does not file in the court a notice of intention to respond or defence within the time required by the rules.

   (2)The person’s rights as executor of the will cease, and the representation of the testator and the administration of the testator’s estate are taken, without further renunciation, to devolve as if the person had not been appointed executor.

20ARenunciation etc by person appointed both executor and trustee of will

(1)If section 20 (1) (a) or (c) applies to a person who is appointed by a will both executor and trustee, the person is taken to have disclaimed the trust contained in the will.

(2)If—

(a)section 20 (1) (a), (b) or (c) applies to a person who is appointed by a will both executor and trustee, and administration with the will annexed is granted to a trustee company; or

(b)a person appointed by a will both executor and trustee authorises a trustee company to apply for administration with the will annexed, and administration with the will annexed is granted to the trustee company;

the trustee company is taken, because of the grant of administration and without any further appointment, to be appointed trustee of the will in the person’s place.

(3)In this section:

trustee company—see the Trustee Companies Act 1947, dictionary.

[2.12]Section 25

substitute

1. Failure of executor to prove will

   (1)This section applies if the person named as executor in a will—

   (a)fails to prove the will or renounce probate within 3 months after the later of the following:

   (i)the date of the testator’s death;

   (ii)the date the executor turns 18 years old; or

   (b)is unknown or cannot be found.

   (2)The Supreme Court may, on application under the rules, make an order for administration of the estate, and any other orders, the court considers appropriate.

[2.13]Section 26

omit

rescission

substitute

revocation

[2.14]Section 28, heading

omit

rescinded

substitute

revoked

[2.15]Section 28

omit

rescind

substitute

revoke

[2.16]Section 29

omit

rescission

substitute

revocation

[2.17]Section 30

omit

rescission

substitute

revocation

[2.18]Section 30

omit

unrescinded

substitute

unrevoked

[2.19]Section 31

omit

or rescinded

[2.20]Division 3.2

omit

[2.21]Section 56 (1)

omit

, in the prescribed form,

[2.22]Sections 58 to 60

substitute

1. Examination and passing of accounts etc

   (1)The rules may require—

   (a)the executor or administrator of the estate of a deceased person to file an inventory of the estate; and

   (b)accounts of the executor or administrator of the estate of a deceased person to be examined and passed.

   (2)The Supreme Court may, by order, require—

   (a)the executor or administrator of the estate of a deceased person to file an inventory of the estate; and

   (b)accounts of the executor or administrator of the estate of a deceased person to be examined and passed.

   (3)An order of the Supreme Court passing an account of the executor or administrator of the estate of a deceased person—

   (a)is evidence of its correctness; and

   (b)operates, after the end of 3 years after the date of the order, to release the executor or administrator.

   (4)However, subsection (3) (b) does not apply to an account as far as someone interested in the estate shows that an error or omission or fraudulent entry has been made in the account.

[2.23]Section 62

omit

or rescinded

[2.24]Section 69 (2) and (3)

omit

[2.25]Section 70

substitute

1. Executors etc may be allowed commission

   The Supreme Court may allow out of the assets of a deceased person to the person’s executor, administrator or trustee the commission or percentage for his or her services that is just.

[2.26]Section 71 (4) and (5)

substitute

(4)If the net value of the estate is more than $4 000, a solicitor may give a bill of costs for the solicitor’s work to the executor or administrator and have it assessed under the rules.

(5)If the net value of the estate is not more than $4 000, the Supreme Court may, if a solicitor’s work has been of exceptional length or difficulty, give leave for the solicitor to have a bill of costs for the work assessed under the rules.

[2.27]Section 71 (7)

substitute

(7)If subsection (4) or (5) applies, the costs as assessed under the rules, and no more, are payable out of the estate.

(8)If a bill of costs is assessed under subsection (4) or (5) and the amount of the bill (excluding the costs of having it assessed and the amounts mentioned in subsection (3)) does not, after assessment, exceed the amount that would otherwise have been payable under subsection (1), the costs of having the bill assessed are payable by the solicitor.

[2.28]Sections 73 and 74

omit

[2.29]Section 77 (1) (c)

substitute

(c)a caveat is not in force under the rules in relation to the estate; and

[2.30]Section 80 heading, note

omit

[2.31]Section 80 (2) and (3)

substitute

(2)On application by a relevant person, the Supreme Court may order that the probate, administration or order be sealed with the seal of the court.

[2.32]Sections 80A, 81 and 82

omit

[2.33]Section 87B (4)

omit

shall deposit the will with the registrar

substitute

must file the will in the Supreme Court

[2.34]Section 87C (1)

omit

in the office of the registrar

substitute

in the Supreme Court

[2.35]Section 87C (6) and (8)

omit

shall, forthwith, file in the office of the registrar

substitute

must file in the Supreme Court

[2.36]Section 88 (2) to (6)

substitute

(2)The Supreme Court may, in any case—

(a)require the public trustee to give the notices, produce the evidence, or do anything else, the court considers appropriate before granting the order applied for; or

(b)make a temporary order for collection or protection only or a temporary order limited to a part of the estate or otherwise.

(3)In this section:

partner, in relation to a deceased person, has the same meaning as it has in part 3A (Intestacy) in relation to an intestate.

[2.37]Section 90 (2)

substitute

(2)An application for a grant under subsection (1) must be served on the public trustee in accordance with the rules.

[2.38]Section 95 (2)

omit

on affidavit

[2.39]Section 95 (2) (a)

omit

, within 2 days after the date of service of the order,

[2.40]Section 96

substitute

1. Orders on complaints under s 95

   (1)On the hearing of a complaint under section 95, the Supreme Court may make any order that it considers just.

   (2)To remove any doubt, an order under subsection (1) has effect, and may be enforced, as if it had been made by the Supreme Court in a proceeding between the parties to the complaint.

[2.41]Section 97A (2) and (3)

omit

[2.42]Part 8

omit

[2.43]Sections 125 to 126

omit

[2.44]New part 10

insert

Part 10Transitional

1. Things done by registrar of probates etc

   (1)Anything done before the commencement of this section under this Act or another territory law by or in relation to the Registrar of Probates or a Deputy Registrar of Probates is taken, after the commencement of this section, also to have been done by the registrar of the Supreme Court.

   (2)Anything done before the commencement of this section under this Act or the Wills Act 1968 by or in relation to the registrar or deputy registrar of the Supreme Court is taken also to have been done by the Registrar of Probates.

   (3)This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

   (4)This section expires 6 months after the day it commences.

Part 2.2Administrative Appeals Tribunal Act 1989

[2.45]Section 46

substitute

1. Appeals from tribunal to Supreme Court

   (1)A party to a proceeding before the tribunal may appeal to the Supreme Court on a question of law from a decision of the tribunal in the proceeding.

   (2)The appeal may be brought only with the Supreme Court’s leave.

   NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers), r 5072 (Appeals to Supreme Court—time for filing application for leave to appeal) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

[2.46]Section 47

omit

Part 2.3Administrative Decisions (Judicial Review) Act 1989

[2.47]Section 8 (3)

substitute

(3)In this section:

review includes—

(a)a review by way of reconsideration, rehearing or appeal; and

(b)the grant of an injunction; and

(c)the making of a prerogative order, declaration or other order.

Part 2.4Adoption Act 1993

[2.48]Section 4 (1), definition of file

omit

[2.49]Section 9 (a)

substitute

(a)was under 18 years old on the day the application was filed in the court; or

[2.50]Section 22

substitute

1. Notice of application for adoption order

   (1)An adoption order must not be made unless the applicants have, not later than 28 days before the return date for the application, served written notice of the application and its return date on—

   (a)anyone whose consent to the adoption is required but whose consent has not been given; and

   (b)anyone whose consent is not required but with whom the child lives or who has guardianship or custody of the child.

   (2)On application, the Supreme Court may dispense with the requirement to serve notice under subsection (1).

   (3)If it appears to the Supreme Court to be necessary in the interests of justice, the court may, on application or its own initiative, direct that notice of an application for an adoption order and its return date be served on anyone.

[2.51]Section 26 (5) and (6)

substitute

(5)A discharging order must not be made unless the applicant has, not later than 28 days before the return date for the application, served written notice of the application and its return date on each person whose consent to the adoption was required.

(6)On application, the Supreme Court may dispense with the requirement to serve notice under subsection (5).

[2.52]Section 31

substitute

1. Revocation of consent

   (1)A person who consents to the adoption of a child may revoke the consent only by filing a notice of revocation in the Supreme Court before the end of—

   (a)30 days after the day the instrument of consent is signed; or

   (b)if before the end of the 30-day period the person files in the Supreme Court a notice stating the person needs further time—14 days after the end of the 30-day period.

   (2)A period applying under subsection (1) may not be extended.

   (3)Subsection (2) has effect despite the Legislation Act, section 151C (Power to extend time).

   (4)The registrar of the Supreme Court must tell the chief executive in writing about a notice filed under subsection (1).

   (5)When the period within which a person’s consent to the adoption of a child may be revoked ends, the chief executive must tell the person in writing.

[2.53]Section 41 heading

substitute

1. Amendment of adoption condition

[2.54]Section 41 (1)

omit

varied or revoked

substitute

amended

[2.55]Section 41 (1)

omit

vary or revoke

substitute

amend

[2.56]Section 41 (3)

omit

A variation

substitute

An amendment

[2.57]Section 42 (a)

substitute

(a)if the condition is omitted; or

Part 2.5Animal Diseases Act 2005

[2.58]Section 26 (b)

substitute

(b)is not subject to a prerogative order or injunction in any court.

Part 2.6Bail Act 1992

[2.59]Section 8 (1) (e)

omit

writ of habeas corpus

substitute

habeas corpus order

Part 2.7Children and Young People Act 1999

[2.60]Section 53A (6) (b)

substitute

(b)is not subject to a prerogative order or injunction in any court.

Part 2.8Civil Law (Wrongs) Act 2002

[2.61]Division 3.1.3

omit

[2.62]Part 7.4

omit

[2.63]Section 107J

substitute

107JIncluding non-party concurrent wrongdoer

(1)In a proceeding in a court involving an apportionable claim, any number of people may be included as defendants.

(2)However, a person may be included as a defendant only with the court’s leave.

(3)The court must not give leave for a person to be included as a defendant if the person was a party to a previously concluded proceeding in relation to the claim.

[2.64]Section 191 (1)

omit

court or tribunal

substitute

tribunal

[2.65]Section 191 (3)

omit

[2.66]Sections 193 and 194

omit

court or tribunal

substitute

tribunal

[2.67]Section 195 heading

substitute

1. Referral by tribunal for mediation or neutral evaluation

[2.68]Section 195 (1) and (2)

omit

court or tribunal

substitute

tribunal

[2.69]Section 195 (3)

omit

[2.70]Sections 197, 198 (1) and 199 (1)

omit

court or tribunal

substitute

tribunal

Part 2.9Commercial Arbitration Act 1986

[2.71]Section 17 (2)

omit

an action

substitute

a proceeding in the court

[2.72]Section 34 (1) (b)

omit

tax

substitute

assess

[2.73]Section 34 (1) (c) and (2)

omit

taxed

substitute

assessed

[2.74]Section 34 (2)

omit

taxable in

substitute

assessed by

[2.75]Section 35 heading

substitute

1. Assessment of arbitrator’s or umpire’s fees or expenses

[2.76]Section 35 (1) (b) and (2)

omit

taxed in

substitute

assessed by

[2.77]Section 35 (3)

omit

taxation

substitute

assessment

[2.78]Section 35 (4)

omit

taxed

substitute

assessed

[2.79]Section 35 (4)

omit

on taxation

substitute

by the assessment

[2.80]Section 38 (3) (a)

omit

vary

substitute

amend

[2.81]Section 38 (7)

omit

varied

substitute

amended

[2.82]Section 53 (2)

substitute

(2)An application under subsection (1) must not, except with the leave of the court in which the proceeding is started, be made after the applicant has filed pleadings or taken any other step in the proceeding other than the filing of a notice of intention to respond or defence.

[2.83]Section 56

omit

Part 2.10Consumer and Trader Tribunal Act 2003

[2.84]Section 51

substitute

1. Appeals from tribunal to Supreme Court

   (1)A party to a proceeding before the tribunal may appeal to the Supreme Court on a question of law from a decision of the tribunal in the proceeding.

   (2)The appeal may be brought only with the Supreme Court’s leave.

   NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers), r 5072 (Appeals to Supreme Court—time for filing application for leave to appeal) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

Part 2.11Consumer Credit (Administration) Act 1996

[2.85]Section 94

substitute

1. Appeals from tribunal to Supreme Court

   (1)A party to a proceeding before the tribunal may appeal to the Supreme Court on a question of law from a decision of the tribunal in the proceeding.

   (2)The appeal may be brought only with the Supreme Court’s leave.

   NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers), r 5072 (Appeals to Supreme Court—time for filing application for leave to appeal) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

Part 2.12Contractors Debts Act 1897

[2.86]Section 9 (1)

omit

or originating summons

[2.87]Section 10 (2)

omit

, in the application, prove on oath or affidavit

substitute

prove

Part 2.13Court Procedures Act 2004

[2.88]Section 13 (1) (a) (i)

omit

and enrolment

[2.89]Section 13 (1) (a) (iii)

substitute

(iii)the assessment of costs;

[2.90]Part 6

relocate to Evidence (Miscellaneous Provisions) Act 1991 as part 6 and renumber sections 53, 54 and 55 as sections 90, 91 and 92

[2.91]Parts 7 and 8

substitute

Part 6Procedural provisions—all proceedings

1. Application—pt 6

   This part applies to all proceedings in the Supreme Court or Magistrates Court.

2. No distinction between court and chambers

   The business of a court, wherever it is conducted, is taken to be conducted in court.

Part 7Procedural provisions—civil proceedings

1. Application—pt 7

   This part (other than section 63) applies to a civil proceeding in the Supreme Court or Magistrates Court.

   NoteSection 63 (Receivers) applies only to a civil proceeding in the Supreme Court.

2. Counterclaims and third parties

   (1)In a proceeding in the court, the defendant is entitled to relief (whether at law or in equity)—

   (a)against the plaintiff, if the relief claimed would have been granted to the defendant if the defendant had started a separate proceeding against the plaintiff; or

   (b)against someone other than the plaintiff, if—

   (i)the relief claimed relates to the subject matter of the proceeding; and

   (ii)the person is served with written notice of the claim; and

   (iii)the claim would have been granted to the defendant if the defendant had started a separate proceeding against the person.

   (2)If a person is served with a notice mentioned in subsection (1) (b) (ii), the person is taken to be a party to the relevant proceeding with the same rights as if the defendant had started a separate proceeding against the person.

3. Injunctions

   (1)At any stage of a proceeding, the court may grant an injunction (interlocutory or otherwise) on the conditions the court considers appropriate if the court considers it appropriate to do so.

   (2)Without limiting subsection (1), the court may grant an injunction to restrain any threatened or apprehended waste, trespass, breach of contract or other injury.

   (3)Subsection (2) applies in relation to a threatened waste or trespass to land whether or not—

   (a)the person against whom the injunction is sought claims any title to the land; or

   (b)that person is in possession of the land; or

   (c)the estates claimed by both or either of the parties are legal or equitable.

4. Receivers

   (1)This section applies only to a civil proceeding in the Supreme Court.

   (2)At any stage of the proceeding, the court may appoint a receiver if the court considers it appropriate to do so.

   (3)The appointment may be made on the conditions the court considers appropriate.

5. Rules of practice and procedure—judicial discretion

   In a proceeding, if no provision about a matter of practice or procedure of a court is made under this Act or another territory law, the court may give the directions about practice and procedure that it considers appropriate.

6. Appearance by lawyer

   A party to a proceeding in a court may appear before the court either personally or by a lawyer.

[2.92]New part 12

insert

Part 12Transitional—rules of court

1. Transitional regulations

   (1)A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the making of rules under this Act or the amendments made by the Justice and Community Safety Legislation Amendment Act 2006, schedule 2.

   (2)A regulation may modify this part (including its operation in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this part.

   (3)A regulation under subsection (2) has effect despite anything elsewhere in this Act or another territory law.

2. Construction of outdated references

   (1)In an Act, statutory instrument or document, a reference to the Supreme Court Rules 1937, the Supreme Court (Admission of Legal Practitioners) Rules 1998, the Supreme Court (Corporations) Rules 2003, the Magistrates Court Rules 1932 or the Magistrates Court (Civil Jurisdiction) Rules 2004 is, in relation to anything to which the Court Procedures Rules 2006 apply, a reference to those rules.

   (2)In an Act, statutory instrument or document, a reference to a provision of the Supreme Court Rules 1937, the Supreme Court (Admission of Legal Practitioners) Rules 1998, the Supreme Court (Corporations) Rules 2003, the Magistrates Court Rules 1932 or the Magistrates Court (Civil Jurisdiction) Rules 2004 is, in relation to anything to which the Court Procedures Rules 2006 apply, a reference to the corresponding provision of those rules.

   (3)In an Act, statutory instrument or document, a reference to anything that is no longer applicable because of the making of rules under this Act or the amendments made by the Justice and Community Safety Legislation Amendment Act 2006, schedule 2, and for which there is a corresponding thing under the rules or in legislation amended by that schedule, is taken to be a reference to the thing under the rules or in the legislation, if the context allows and if otherwise appropriate.

   Examples

   1     A ‘notice of motion’ is taken to be an ‘application’.

   2     A reference to entering an appearance in relation to an originating process in a civil proceeding is taken to be a reference to filing a notice of intention to respond in the court or filing a defence (if the defendant chooses not to file a notice of intention to respond but files a defence).

   3     A reference to taxation of costs is taken to be a reference to assessment of costs.

   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).

   (4)This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

3. Abolition of old enforcement processes

   (1)All writs in aid of enforcement are abolished.

   (2)For a law in force immediately before the commencement of this section that expressly or impliedly refers to a writ in aid of enforcement, the reference is taken to be a reference to the equivalent enforcement order under rules made under this Act, if the context allows.

   (3)This section does not affect the validity of a writ in aid of enforcement issued before the commencement of this section.

   (4)In this section:

   writ in aid of enforcement includes a writ of capias ad respondendum, writ of capias ad satisfaciendum, writ of elegit, writ or warrant of execution, writ of fieri-facias, writ of ne exeat colonia or a writ subsequent to those writs as a procedure of enforcement.

   (5)This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

4. Right to claim set-off

   (1)The provisions of the Court Procedures Rules 2006 about a defendant being able to rely on set-off as a defence to all or part of a claim made by the plaintiff extend to—

   (a)any debt arising under an agreement entered into before the commencement of those rules; and

   (b)any other debt arising before the commencement of those rules.

   (2)However, the court may order that the provisions mentioned in subsection (1) do not apply to a debt mentioned in subsection (1) (a) if it is satisfied that it would be in the interests of justice to make the order.

   (3)This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

5. Abolition of distinction between court and chambers

   (1)This section applies to the Supreme Court and the Magistrates Court.

   (2)The distinction between court and chambers is abolished.

   (3)This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

6. Application of sch 1 amendments

   (1)The amendments of schedule 1 made by the Justice and Community Safety Legislation Amendment Act 2006 have effect in relation to the Court Procedures Rules 2006 SL2006-29 as if those amendments had been made, and were in force, immediately before those rules were made.

   (2)This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

   (3)This section expires 2 months after the day it commences.

7. Expiry—pt 12

   This part expires on 1 July 2008.

[2.93]Schedule 1, item 6 (h) and (i)

substitute

(h)confidentiality for mediators, neutral evaluators and expert witnesses;

(i)protection from liability for mediators, neutral evaluators and expert witnesses;

(j)transitional arrangements

[2.94]Schedule 1, item 9 (e)

substitute

(e)set-off and contribution, including, for example, rights to set‑off and contribution;

(f)third-party procedure

[2.95]Schedule 1, item 10

substitute

1. Steps in proceedings

   steps in proceedings, including, for example, the first step for a defendant in a proceeding

[2.96]Schedule 1, item 12 (d)

substitute

(d)disclosure of experts reports;

[2.97]Schedule 1, item 13

substitute

1. Preservation of rights and property

   preservation of rights and property, including, for example, the following:

   (a)inspection, detention and preservation of property;

   (b)injunctions;

   (c)for the Supreme Court—receivers and sales of land by court order

[2.98]Schedule 1, item 17 (g) and (h)

substitute

(g)making findings of liability independently of awarding damages;

(h)assessment and awarding of damages, including, for example—

(i)structured settlements, that is, payment of awards of damages otherwise than in lump sum form; and

(ii)awarding damages independently of making findings of liability;

(i)simplifies procedures for certain claims

[2.99]Schedule 1, item 19 (e)

substitute

(e)for the Supreme Court—prerogative orders, including prerogative injunctions and declarations, and the form in which prerogative relief or remedy may be granted;

(f)for the Supreme Court—habeas corpus orders, including the form in which relief by way of habeas corpus may be granted

[2.100]Schedule 1, item 24

omit

for the Supreme

substitute

(1)for the Supreme

[2.101]Schedule 1, item 24 (b)

substitute

(b)proceedings for failure to comply with orders, other than orders to pay an amount;

(c)contempt of the Magistrates Court

[2.102]Schedule 1, new item 24 (2)

insert

(2)for the Magistrates Court, the power to refer contempt of court to the Supreme Court

[2.103]Schedule 1, item 26 (e)

omit

Part 2.14Discrimination Act 1991

[2.104]Section 108DB

substitute

108DBAppeals from tribunal to Supreme Court

(1)A party to a proceeding before the tribunal may appeal to the Supreme Court on a question of law from a decision of the tribunal in the proceeding.

(2)The appeal may be brought only with the Supreme Court’s leave.

NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers), r 5072 (Appeals to Supreme Court—time for filing application for leave to appeal) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

Part 2.15Electoral Act 1992

[2.105]Section 55

omit everything after subsection (1) (b), substitute

(c)is not subject to any proceeding for a prerogative order, injunction, declaration or other order in any court on any ground.

(2)In this section:

decision includes a failure to make a decision.

Part 2.16Evidence (Miscellaneous Provisions) Act 1991

[2.106]Section 31

substitute

1. Application—div 3.4

   This division applies to any proceeding before a territory court other than the Supreme Court or Magistrates Court.

[2.107]Section 38 (2) (d)

omit

writ

substitute

order

[2.108]Section 54, definition of criminal proceeding, paragraph (c) and definition ofpreliminary criminal proceeding, paragraph (c)

omit

writ

substitute

order

[2.109]New part 5

insert

Part 5Certain evidence under court rules not admissible

1. Evidence not admissible in court—neutral evaluation

   (1)This section applies if, under rules under the Court Procedures Act 2004 (the rules), the Supreme Court or Magistrates Court has referred a civil proceeding, or part of a civil proceeding, for neutral evaluation.

   (2)Evidence of anything said, or of any admission made, in a neutral evaluation session under the rules is not admissible in any proceeding before a court or tribunal.

   (3)A document prepared for, in the course of, or because of, a neutral evaluation session under the rules is not admissible in any proceeding before a court or tribunal.

   (4)Subsections (1) and (2) do not apply to any evidence or document—

   (a)for evidence—if the people attending, or identified during, the neutral evaluation session consent to the admission of the evidence; or

   (b)for a document—if the people attending, or identified during, the neutral evaluation session and all the people identified in the document, consent to the admission of the document; or

   (c)in a proceeding (including a criminal proceeding) brought in relation to an act or omission in relation to which a disclosure has been made under the rules because an evaluator has reasonable grounds to believe the disclosure is necessary or desirable to prevent or reduce the danger of death or injury to anyone or damage to any property.

   (5)In this section:

   neutral evaluation session includes any steps taken in the course of making arrangements for the session or in the course of the follow‑up of the session.

2. Evidence not admissible in court—expert report

   (1)This section applies if—

   (a)a party to a civil proceeding in the Supreme Court or Magistrates Court (the court) engages an expert witness; and

   (b)the expert witness prepares a report (an expert report); and

   (c)the expert report does not contain an acknowledgment by the expert witness who prepared the report that the expert witness has read the code of conduct for expert witnesses prescribed by the rules under the Court Procedures Act 2004 applying to the expert witness and agrees to be bound by it.

   (2)The expert report is not admissible in evidence in the proceeding, unless the court otherwise orders.

1. Evidence not admissible in court—meeting of experts

   (1)This section applies if, in a civil proceeding in the Supreme Court or Magistrates Court (the court), the court directs the expert witnesses in the proceeding to meet—

   (a)to identify the matters on which they agree; and

   (b)to identify the matters on which they disagree and the reasons why; and

   (c)to try to resolve any disagreement.

   (2)Unless the court otherwise orders, evidence of anything done or said, or an admission made, at the meeting is admissible at a trial of the proceeding only if all the parties to the proceeding that are active parties under the rules under the Court Procedures Act 2004 applying to the proceeding (the rules) agree.

   (3)However, subsection (2) does not apply to a document produced in accordance with a direction made by the court under the rules that the expert witnesses produce a document for the court’s use, identifying—

   (a)the matters on which they agree; and

   (b)the matters on which they disagree; and

   (c)the reasons for any failure to reach agreement on any matter.

2. Evidence not admissible in court—evidence taken in examination

   (1)This section applies if—

   (a)in a civil or criminal proceeding, the Supreme Court or the Magistrates Court (the court) makes an order under the rules under the Court Procedures Act 2004—

   (i)for the examination of a person on oath at a place in or outside the ACT (including outside Australia) before a person appointed by the court; or

   (ii)for the issue of a commission for the examination of a person on oath at a place in or outside the ACT (including outside Australia); or

   (iii)for the issue of a letter of request to a judicial authority of a place outside the ACT (including outside Australia) to take the evidence of a person (or cause it to be taken); and

   (b)the person’s evidence is taken in an examination held in accordance with the order; and

   (c)a party to the proceeding tenders the person’s evidence as evidence in the proceeding.

   (2)Unless the court otherwise orders, the person’s evidence is not admissible if, at the hearing of the proceeding, the court is satisfied that the person is in the ACT and is able to attend the hearing.

[2.110]Part 5

renumber as part 7

[2.111]Sections 82 and 83

renumber as sections 100 and 101

Part 2.17Guardianship and Management of Property Act 1991

[2.112]Section 56

substitute

1. Appeals from tribunal to Supreme Court

   (1)An appeal to the Supreme Court from an order, direction or decision of the tribunal in an inquiry may be brought by someone—

   (a)who appeared, or was entitled to appear under section 36 (1) (Appearance and representation), before the tribunal in the inquiry; or

   (b)who, with the tribunal’s leave, would have been entitled to appear before the tribunal in the inquiry; or

   (c)in relation to whom the order, direction or decision was made.

   (2)The appeal may be brought—

   (a)on a question of law—as of right; or

   (b)on any other question—only with the Supreme Court’s leave.

   NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers), r 5072 (Appeals to Supreme Court—time for filing application for leave to appeal) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

Part 2.18Health Professionals Act 2004

[2.113]Section 67

substitute

1. Appeals from health professions tribunal to Supreme Court

   A party to a proceeding before the health professions tribunal may appeal to the Supreme Court from a decision of the tribunal in the proceeding.

   NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

Part 2.19Judicial Commissions Act 1994

[2.114]Section 60

omit everything before paragraph (a), substitute

1. No proceeding to be brought

   A proceeding for an injunction, declaration or prerogative order must not be brought in relation to—

Part 2.20Land Titles Act 1925

[2.115]Section 156

substitute

1. Notice of action

   (1)This section applies if—

   (a)there is a proceeding against the Territory to recover damages under section 143 (Damages in certain cases) or section 155 (When actions may lie against registrar-general as nominal defendant); and

   (b)either—

   (i)judgment is given for the defendant; or

   (ii)the plaintiff ends the proceeding.

   (2)The plaintiff is liable to pay the defendant’s full costs of defending the proceeding.

[2.116]New section 170 (8)

insert

(8)In this section:

writ of execution means a writ or warrant of execution after judgment in any court, and includes an enforcement order under the rules under the Court Procedures Act 2004.

[2.117]New section 170A (4)

insert

(4)In this section:

writ of execution means a writ or warrant of execution after judgment in any court, and includes an enforcement order under the rules under the Court Procedures Act 2004.

Part 2.21Leases (Commercial and Retail) Act 2001

[2.118]Sections 155 and 156

substitute

1. Appeals to Supreme Court

   A party to a proceeding under this Act may appeal to the Supreme Court on a question of law or fact from a decision of the Magistrates Court in the proceeding.

   NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

Part 2.22Legal Profession Act 2006

[2.119]Sections 25 and 81 (2), new note

insert

NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

[2.120]Section 81 (3)

omit

[2.121]Section 207 (3) and (4)

substitute

(3)In an appeal under this section, the parties to the appeal bear their own costs unless the Supreme Court otherwise orders.

NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

[2.122]Section 239 (5)

insert

NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

[2.123]Section 239 (6)

omit

[2.124]Section 249 (5), new note

insert

NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

[2.125]Section 249 (6)

omit

[2.126]Section 437, new note

insert

NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

[2.127]Section 514 (3) and (4)

substitute

(3)The appointment of a supervisor or manager for a law practice is not stayed by the filing of an appeal, and the supervisor or manager may continue to exercise his or her functions as a supervisor or manager during the appeal proceeding except to the extent that the Supreme Court otherwise directs.

NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers).

[2.128]Section 589 (4), new note

insert

NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

Part 2.23Magistrates Court Act 1930

[2.129]Section 9B

substitute

9BFunctions of registrar and deputy registrars

(1)The registrar has power to administer oaths and may exercise the other functions given to the registrar under this Act, another territory law or an order of the court.

(2)Subject to this Act and to any directions of the registrar, a deputy registrar may exercise the functions of the registrar under this Act or another territory law.

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

(3)The exercise of a function by a deputy registrar does not affect the power of the registrar to exercise the function.

(4)In this section:

territory law does not include rules under the Court Procedures Act 2004.

[2.130]Section 13 heading

substitute

1. Making of enforcement order after case decided

[2.131]Section 13

omit

issue a writ of execution

substitute

make an enforcement order

[2.132]Section 15

omit

summons, warrant or writ issued

substitute

summons or warrant issued, or order made,

[2.133]Section 16 heading

substitute

1. Order instead of mandamus order

[2.134]Section 16 (1)

omit

, on affidavit of the facts,

[2.135]Section 16 (1)

omit

, after due service of the order,

[2.136]Section 17C heading

substitute

17CCommittal or enforcement order by magistrate on order of court

[2.137]Sections 17C and 17E

omit

writ of execution is issued

substitute

enforcement order is made

[2.138]Section 17E

omit

granting of the committal order or writ,

substitute

making of the committal order or enforcement order,

[2.139]Section 17E

omit

granted the committal order or writ

substitute

made the committal order or enforcement order

[2.140]Section 43 (2) (a)

omit

writ of habeas corpus

substitute

habeas corpus order or another order

[2.141]Section 107 (1)

omit

certiorari

substitute

certiorari order

[2.142]Section 107 (1)

omit

, or on a rule or order directed to him or her instead of that writ,

[2.143]Section 141 (4) (b)

substitute

(b)an enforcement order.

[2.144]Section 142 (2)

omit

return to a writ of habeas corpus or other writ

substitute

habeas corpus order or another order

[2.145]Section 166C (2) (b)

omit

issue a writ of execution

substitute

make an enforcement order

[2.146]Section 166C (2) (c)

substitute

(c)subject to this section, this Act and the rules applying to civil proceedings in the Magistrates Court apply in relation to an enforcement order made under paragraph (b) as if the order had been made in a civil proceeding in the court.

[2.147]Section 166C (4) to (6)

substitute

(4)If—

(a)an enforcement order is made under subsection (2) in relation to a fine; and

(b)before enforcement, the registrar receives a notification mentioned in subsection (3) in relation to the fine;

the registrar must stay the order.

(5)On the stay of the order, the registrar must—

(a)if the amount of the fine has been paid in full—set aside the order; or

(b)if part of the amount of the fine remains unpaid—amend the order to show the amount still unpaid.

(6)If an enforcement order is amended under subsection (5) (b), the order must be enforced in relation to the amount of the fine shown in the order as unpaid.

[2.148]Section 194 heading

substitute

1. Enforcement order not void for form only

[2.149]Section 194

omit

A writ of execution

substitute

An enforcement order

[2.150]Section 209 (2) (b) (ii)

omit

informant

substitute

director of public prosecutions

[2.151]Section 219AB (3)

omit

[2.152]Sections 219D and 219E

omit

[2.153]Section 219F (2) (d) (ii)

substitute

(ii)make any other order the Supreme Court considers necessary to decide the matter finally, including a prohibition order or habeas corpus order.

[2.154]Section 222

omit

on habeas corpus

substitute

under a habeas corpus order or another order

[2.155]Section 224 heading

substitute

1. In cases of certiorari order

[2.156]Section 224

omit

writ of certiorari

substitute

certiorari order

[2.157]Section 225 (1)

substitute

(1)The notice required by section 222 may be given either before or after the habeas corpus order, certiorari order or other order is made.

[2.158]Section 225 (2)

omit

writ

substitute

order

[2.159]Section 226 (1)

omit

writ of habeas corpus

substitute

a habeas corpus order

[2.160]Section 230

omit

[2.161]Section 254 (5) (b)

substitute

(b)an enforcement order has been made; and

[2.162]Section 254 (5) (c)

omit

writ

substitute

enforcement order

[2.163]Section 269 (6)

omit

taxed

substitute

assessed

[2.164]Sections 277, 294 to 297 and 299

omit

Part 2.24Mental Health (Treatment and Care) Act 1994

[2.165]Section 141

substitute

1. Appeals from tribunal to Supreme Court

   (1)An appeal to the Supreme Court from a decision of the tribunal in a proceeding may be brought by—

   (a)someone in relation to whom the decision was made; or

   (b)someone who appeared, or was entitled to appear under section 89 (1) (Appearance, representation and use of interpreters), before the tribunal in the proceeding; or

   (c)the discrimination commissioner; or

   (d)anyone else, only with the court’s leave.

   NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers), r 5054 (Appeals to Supreme Court—stay and reinstatement), r 5072 (Appeals to Supreme Court—time for filing application for leave to appeal) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

   (2)The Magistrates Court Act 1930, section 214 (3) and (4) (Appeals in cases other than civil cases) applies in relation to an appeal under this section as if it were an appeal mentioned in that Act, section 214 (1).

Part 2.25Occupational Health and Safety Act 1989

[2.166]Section 194

substitute

1. Appeals from review authority to Supreme Court

   A party to a proceeding before the review authority may appeal to the Supreme Court on a question of law from a decision of the review authority in the proceeding.

   NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

[2.167]Section 199

omit

Part 2.26Partnership Act 1963

[2.168]Section 28

omit

Part 2.27Plant Diseases Act 2002

[2.169]Section 17 (3) (b)

substitute

(b)is not subject to a prerogative order or injunction in any court.

Part 2.28Residential Tenancies Act 1997

[2.170]Section 125

substitute

1. Appeals from tribunal to Supreme Court

   (1)A party to a proceeding before the tribunal may appeal to the Supreme Court on a question of law from a decision of the tribunal in the proceeding.

   (2)The appeal may be brought only with the Supreme Court’s leave.

   NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers), r 5072 (Appeals to Supreme Court—time for filing application for leave to appeal) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

Part 2.29Royal Commissions Act 1991

[2.171]Section 48

substitute

1. No proceeding against commission

   A proceeding for an injunction, declaration or prerogative order must not be brought against a commission.

Part 2.30Supreme Court Act 1933

[2.172]Section 8 (3)

substitute

(3)In this section:

registrar includes a deputy registrar.

[2.173]Section 9 (2)

omit

a judgment

substitute

an order

[2.174]Section 9 (2) (a) and (b)

omit

judgment

substitute

order

[2.175]Section 9 (3) and (4)

substitute

(3)On an appeal under subsection (2) (a), the court—

(a)must have regard to the evidence given in the proceeding out of which the appeal arose; and

(b)may draw inferences of fact from the evidence; and

(c)may receive further evidence in any of the following ways:

(i)by oral examination before the court or a judge;

(ii)on affidavit;

(iii)by audiovisual link or audio link;

(iv)any other way the court may receive evidence.

(4)On an appeal under subsection (2) (a), the court may confirm, amend or set aside the order of the master and may make any order that in all the circumstances it considers just.

(5)In this section:

audio link—see the Evidence (Miscellaneous Provisions) Act 1991, section 16 (Definitions—pt 3).

audiovisual link—see the Evidence (Miscellaneous Provisions) Act 1991, dictionary.

[2.176]Section 10

omit

, subject to this section,

[2.177]New section 10 (2)

insert

(2)In this section:

registrar includes a deputy registrar.

[2.178]Section 14 (a)

omit

a judgment

substitute

an order

[2.179]Section 14 (a)

omit

the judgment

substitute

the order

[2.180]Sections 15, 21 and 28

omit

[2.181]Section 30

substitute

1. Defence or stay of proceeding instead of prohibition order or injunction

   (1)A proceeding in the court must not be restrained by a prohibition order or injunction.

   (2)A defence is available in a proceeding in the court if an injunction would previously have been available in a pre-Judicature Act proceeding of the same kind.

   (3)However, this section does not prevent the court from ordering a stay in a proceeding in the court.

   (4)The court may grant a stay in a proceeding in the court on application by an entitled person.

   (5)In this section:

   entitled person, in relation to a proceeding in the court, means a person (whether or not the person is a party to the proceeding) who would have been entitled, in relation to a pre-Judicature Act proceeding of the same kind—

   (a)to apply to a court to restrain the prosecution of the proceeding; or

   (b)to enforce any order or rule in contravention of which all or part of the proceeding had been taken.

[2.182]Sections 34 and 34A

omit

[2.183]Section 34B

substitute

34BHabeas corpus and prerogative orders

(1)The Supreme Court has power to grant any relief by way of a habeas corpus order or prerogative order.

(2)In this section:

habeas corpus order means an order the relief under which is in the nature of, and to the same effect as, relief by way of a writ of habeas corpus.

prerogative order means an order the relief under which is in the nature of, and to the same effect as, relief by way of—

(a)a writ of mandamus, prohibition or certiorari; or

(b)an information in the nature of quo warranto.

relief includes remedy.

[2.184]Section 35

omit

[2.185]Section 37E (2) (a)

substitute

(a)appeals in relation to the following orders:

(i)orders of the master, except interlocutory orders (see section 9 (Exercise of jurisdiction by master));

(ii)other orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself);

[2.186]Section 37E (3)

omit

a judgment

substitute

an order

[2.187]Section 37E (4)

omit

judgment

substitute

order

[2.188]New section 37E (5)

insert

(5)In this section:

registrar includes a deputy registrar.

[2.189]Section 37H (1), last dot point

substitute

·     section 37O (2) (which provides for the enforcement of an order).

[2.190]Sections 37H (3) and 37J (1) (d) and (e)

omit

a judgment

substitute

an order

[2.191]Section 37J (1) (f)

substitute

(f)including, removing or substituting a party;

[2.192]Section 37O heading

substitute

37OOrders on appeal

[2.193]Section 37O (1)

omit

judgment

substitute

order

[2.194]Section 37O (1) (a)

substitute

(a)to confirm, reverse or amend the order;

[2.195]Section 37O (1) (b) and (c)

omit

judgment

substitute

order

[2.196]Section 37O (1) (f)

substitute

(f)to award enforcement of any order, or remit the proceeding to the court constituted by a single judge for enforcement of the order.

[2.197]Section 37O (2)

substitute

(2)If an order of the Court of Appeal is remitted for enforcement under subsection (1) (f), the court constituted by a single judge must enforce the order of the Court of Appeal as if it were that judge’s own order.

[2.198]Section 37O (3)

omit

decision

substitute

order

[2.199]Section 37O (3) (a)

substitute

(a)despite any application in the notice of appeal that part only of the order be reversed or amended; and

[2.200]Section 37O (3) (b)

omit

decision

substitute

order

[2.201]Section 37O (4)

substitute

(4)An interlocutory order from which there has been no appeal does not prevent the Court of Appeal from making any order on the appeal it considers just.

[2.202]Sections 49, 53A, 54, 55, 56 and 57

omit

[2.203]Section 58

relocate to the Court Procedures Act 2004 as section 66

[2.204]Sections 59 and 60

relocate to the Court Procedures Act 2004 as sections 67 and 68

[2.205]Section 60A (4)

substitute

(4)An order (including an order for costs) made in transitional proceedings is a valid exercise of the court’s jurisdiction, and may be enforced accordingly.

[2.206]Sections 73 and 74

omit

[2.207]Dictionary, definition of judgment

substitute

judgment includes an order or sentence.

[2.208]Dictionary, new definition of order

insert

order includes a judgment, decree, direction or decision.

Part 2.31Victims of Crime (Financial Assistance) Act 1983

[2.209]Section 61

substitute

1. Appeals to Supreme Court

   The defendant against whom an order for restitution is made, or the Territory, may appeal to the Supreme Court against the order.

   NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

Part 2.32Wills Act 1968

[2.210]Section 4, definition of registrar

substitute

registrar means the registrar of the Supreme Court.

[2.211]Section 20A (4)

substitute

(4)For this section, a marriage is taken to be terminated if—

(a)the marriage ends by divorce under the Family Law Act; or

(b)a decree of nullity is made under the Family Law Act in relation to the marriage; or

(c)the marriage is annulled in accordance with the law of a place outside Australia if the annulment is recognised in Australia under the Family Law Act.

Part 2.33Workers Compensation Act 1951

[2.212]Section 207

omit

Part 2.34Workers Compensation Rules 2002

[2.213]New part 14

insert

Part 14Expiry of rules

1. Expiry of rules

   These rules expire on 1 January 2007.

Endnotes

1. Presentation speech

   Presentation speech made in the Legislative Assembly on 17 August 2006.

2. Notification

   Notified under the Legislation Act on 28 September 2006.

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 2006, which was passed by the Legislative Assembly on 21 September 2006.

   Clerk of the Legislative Assembly

   © Australian Capital Territory 2006