Justice and Community Safety Legislation Amendment Act 2022 (ACT)

Case

Justice and Community Safety Legislation Amendment Act 2022

A2022-21

Contents

Page

Part 1      Preliminary

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

Part 2Agents Act 2003

4            Application of pt 6New section 99 (c)  3

Part 3Civil Law (Wrongs) Act 2002

5            Notice of claimSection 51 (11)  4

6            Section 114A  4

7           New section 114BA and part 8A.2 heading  5

8            Sections 114C and 114G  5

9            New part 8A.3  6

10          Dictionary, new definitions  9

11          Dictionary, definitions of child abuse and child abuse claim                 10

Part 4COVID-19 Emergency Response Act 2020

12          Reports for Legislative AssemblyNew section 3 (1A) and (1B)  11

13          Section 3 (4)New definition of remade  11

Part 5Gaming Machine Act 2004

14          Review of gaming machine tax rebateSection 179A (1)  12

15          Section 179A (2)  12

Part 6Land Titles Act 1925

16          Signature and witnessing requirements—legal practitioners and mortgagee corporationsSection 48BD (1), note  13

Part 7Limitation Act 1985

17          Section 21C heading  14

18          Section 21C (1) (a)  14

19          Section 21C (4)  14

20          Special provision in relation to children—claims relating to health servicesSection 30B (1) (b) (ii)  14

Part 8Residential Tenancies Act 1997

21          Lessor’s obligationsSection 12 (4), definition of asbestos advice  15

22          Co-tenant may leave residential tenancy agreementSection 35A (4) (b)  15

23          Repayment of bond to leaving co-tenantSection 35B (6), note  15

24          Standard residential tenancy termsSchedule 1, clause 100  15

Justice and Community Safety Legislation Amendment Act 2022

A2022-21

An Act to amend legislation about justice and community safety

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 2022.

  2. Commencement

    This Act commences on the day after its notification day.

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

  3. Legislation amended

    This Act amends the following legislation:

    ·     Agents Act 2003

    ·     Civil Law (Wrongs) Act 2002

    ·     COVID-19 Emergency Response Act 2020

    ·     Gaming Machine Act 2004

    ·     Land Titles Act 1925

    ·     Limitation Act 1985

    ·     Residential Tenancies Act 1997.

Part 2Agents Act 2003

  1. Application of pt 6
    New section 99 (c)

    insert

    (c)a business or professional practice.

Part 3Civil Law (Wrongs) Act 2002

  1. Notice of claim
    Section 51 (11)

    omit

  2. Section 114A

    substitute

Part 8A.1Definitions and application—ch 8A

114AMeaning of child abuse claim

In this Act:

child abuse claim, by or on behalf of a person, means a claim in relation to a personal injury that arises from child abuse to which the person was subjected when the person was a child.

114AAMeaning of child abuse—ch 8A

(1)In this chapter:

child abuse means physical abuse or sexual abuse of a child.

(2)In this section:

physical abuse does not include conduct that is justified or excused under a law applying in the Territory.

sexual abuse, of a child, includes any of the following involving the child:

(a)an offence of a sexual nature;

(b)misconduct of a sexual nature.

  1. New section 114BA and part 8A.2 heading

    insert

114BATime when child abuse etc happens

This chapter applies in relation to child abuse or alleged child abuse of a person who is the subject of a child abuse claim, regardless of when the abuse or alleged abuse happened.

Part 8A.2Institutional child abuse—proceedings against unincorporated bodies

  1. Sections 114C and 114G

    omit

    chapter

    substitute

    part

  2. New part 8A.3

    insert

Part 8A.3Institutional child abuse—setting aside abuse settlement agreements

114IObject—pt 8A.3

The object of this part is to provide a way, for a person who is the subject of a child abuse claim because the person suffered child abuse, to seek to have an abuse settlement agreement set aside if—

(a)when the agreement was made there were legal barriers to the person being fully compensated through a legal cause of action; or

(b)when the agreement is sought to be set aside the agreement is, in all the circumstances, not a just and reasonable agreement.

114JDefinitions—pt 8A.3

(1)In this part:

abuse settlement agreement means an agreement—

(a)that settles a child abuse claim and prevents the exercise of an action on a cause of action to which the Limitation Act 1985, section 21C (Personal injury resulting from child abuse) applies; and

(b)that—

(i)happened before the commencement of the Limitation Act 1985, section 21C, and at a time when a limitation period applying to the cause of action had ended; or

(ii)happened before the commencement of this part, and the agreement is not just and reasonable in the circumstances.

applicant—see section 114K (1).

(2)For the definition of abuse settlement agreement, a limitation period that ended at a particular time is taken to have ended even if it were possible to seek the leave of a court to extend the period at the time the period ended.

114KCourt may set aside abuse settlement agreement

(1)This section applies if a person (the applicant) is prevented from exercising an action on a cause of action because of an abuse settlement agreement.

(2)The applicant may—

(a)begin a proceeding on the cause of action in a court with jurisdiction to hear the proceeding; and

(b)apply to the court to set aside the agreement.

(3)The court may set aside the agreement if the court is satisfied that—

(a)when the agreement was made there were legal barriers to the person being fully compensated through a legal cause of action; or

(b)when the application is made to set aside the agreement, the agreement is, in all the circumstances, not a just and reasonable agreement.

(4)The court may consider the following in deciding whether to set aside the agreement:

(a)the amount paid to the applicant under the agreement;

(b)the bargaining position of the parties to the agreement;

(c)the conduct of the following people in relation to the agreement:

(i)a party other than the applicant;

(ii)a legal representative of a party other than the applicant;

(d)any other matter the court considers relevant.

(5)The Evidence Act 2011, section 131 (1) (Exclusion of evidence of settlement negotiations) does not prevent evidence being adduced in a proceeding begun under this section, even if the evidence is of a communication made, or a document prepared, in connection with an attempt to negotiate a settlement of the dispute to which the agreement relates.

114LCourt may also set aside other things

(1)If the court decides to set aside an abuse settlement agreement under this part, it may also set aside any of the following that gives effect to the agreement:

(a)a contract, deed or other agreement;

(b)an order or judgment of the court or of a lower court.

(2)However, the court must not set aside the following:

(a)a deed of release signed by or on behalf of the applicant in acceptance of an offer under the national redress scheme and an agreement relating to a relevant prior payment that has been taken into account in the offer;

(b)an agreement to the extent to which—

(i)the agreement settled a cross-claim between 2 or more defendants; or

(ii)one defendant indemnified another;

(c)a contract of insurance.

(3)In this section:

national redress scheme means the National Redress Scheme for Institutional Child Sexual Abuse established under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cwlth), section 8.

114MEffect of setting aside abuse settlement agreement

(1)A court may set aside an abuse settlement agreement or anything else in accordance with this part only to the extent that it relates to the applicant.

(2)An agreement and anything else set aside in accordance with this part is void but only to the extent that it relates to the applicant.

(3)An amount paid, including legal costs or disbursements, or other consideration given under the agreement—

(a)is not recoverable despite the agreement being void; and

(b)may be taken into account by a court in deciding damages in a proceeding on a cause of action to which the agreement relates.

  1. Dictionary, new definitions

    insert

    abuse settlement agreement, for part 8A.3 (Institutional child abuse—setting aside abuse settlement agreements)—see section 114J.

    applicant, for part 8A.3 (Institutional child abuse—setting aside abuse settlement agreements)—see section 114K (1).

  2. Dictionary, definitions of child abuse and child abuse claim

    substitute

    child abuse, for chapter 8A (Institutional child abuse)—see section 114AA.

    child abuse claim—see section 114A.

Part 4COVID-19 Emergency Response Act 2020

  1. Reports for Legislative Assembly
    New section 3 (1A) and (1B)

    insert

    (1A)However, subsection (1) does not apply in relation to a COVID‑19 measure if—

    (a)the provision of an Act or regulation inserted or amended by the measure has been subsequently amended by another Act or regulation (a subsequent amendment); and

    (b)the effect of the subsequent amendment is to continue the operation of the measure to a time when a COVID‑19 declaration is no longer in force.

    (1B)Also, subsection (1) does not apply in relation to a COVID‑19 measure if the provision of an Act or regulation inserted or amended by the measure has been repealed and not remade, the same in substance, in the Act or regulation or another law.

  2. Section 3 (4)
    New definition of remade

    insert

    remade includes re-enacted.

Part 5Gaming Machine Act 2004

  1. Review of gaming machine tax rebate
    Section 179A (1)

    omit

    2022

    substitute

    2023

  2. Section 179A (2)

    substitute

    (2)This section expires on 8 April 2024.

Part 6Land Titles Act 1925

  1. Signature and witnessing requirements—legal practitioners and mortgagee corporations
    Section 48BD (1), note

    omit

    div 2

    substitute

    div 1

Part 7Limitation Act 1985

  1. Section 21C heading

    substitute

21CPersonal injury resulting from child abuse

  1. Section 21C (1) (a)

    omit

    sexual abuse

    substitute

    child abuse

  2. Section 21C (4)

    substitute

    (4)In this section:

    child abuse—see the Civil Law (Wrongs) Act 2002, section 114AA.

    subjected, in relation to child abuse, includes witness.

  3. Special provision in relation to children—claims relating to health services
    Section 30B (1) (b) (ii)

    omit

    (Personal injury resulting from sexual abuse of child)

    substitute

    (Personal injury resulting from child abuse)

Part 8Residential Tenancies Act 1997

  1. Lessor’s obligations
    Section 12 (4), definition of asbestos advice

    substitute

    asbestos advice means an advice notified under the Dangerous Substances Act 2004, section 47M.

  2. Co-tenant may leave residential tenancy agreement
    Section 35A (4) (b)

    omit

    (2) (a)

    substitute

    (2)

  3. Repayment of bond to leaving co-tenant
    Section 35B (6), note

    omit

    s 83 (c)

    substitute

    s 83 (1) (c)

  4. Standard residential tenancy terms
    Schedule 1, clause 100

    omit

    joint tenants

    substitute

    co-tenants

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 9 June 2022.

  2. Notification

    Notified under the Legislation Act on 9 December 2022.

  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 2022, which was passed by the Legislative Assembly on 22 November 2022.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2022

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