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This is a Bill, not an Act. For current law, see the Acts databases.
2015
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Contents
Page
2015
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Courts Legislation Amendment Bill 2015
A Bill for
An Act to amend legislation about courts, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Courts Legislation Amendment Act 2015
.
(1) Section 4 and part 2 (ACT Civil and Administrative Tribunal Act 2008) commence 12 months after this Act’s notification day.
Note The naming and commencement provisions automatically commence on
the notification day (see
, s 75 (1)).
(2) The remaining provisions commence on the 14th day after this Act’s notification day.
This Act amends the following legislation:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
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•
.
(1) The
(A1997-61) is repealed.
(2) All legislative instruments under the Mediation Act 1997
are repealed.
Part 2 ACT Civil and Administrative Tribunal Act 2008
in division 5.3, insert
30A Definitions—div 5.3
In this division:
mediation means a meeting between parties to an application and an accredited mediator, ordered under this Act, for resolving a matter to which the application relates, and includes a thing done—
(a) to arrange the meeting (whether or not successfully); or
(b) to follow up anything raised in the meeting.
mediation material means—
(a) a communication made at mediation; or
(b) a document, whether delivered or not, prepared—
(i) for or during mediation; or
(ii) following a decision made or undertaking given in mediation.
6 Mediation for applications
Section 35 (2) (a)
omit
a registered
substitute
an accredited
omit
in division 5.3, insert
35A Admissibility of information given at mediation
Evidence of mediation material is not admissible in a proceeding under this Act except in accordance with the Evidence Act 2011
, section 131 (Exclusion of evidence of settlement negotiations).
35B Secrecy
(1) A person who is or has been an accredited mediator must not disclose mediation material.
(2) However, this section does not apply if—
(a) the disclosure is required under a territory law or Commonwealth law; or
(b) the disclosure is made with the consent of the parties to mediation; or
(c) the disclosure is made with the consent of the person who gave the material to the accredited mediator; or
(d) the person mentioned in subsection (1) believes on reasonable grounds that—
(i) a person’s life, health or property is under serious and imminent threat and the disclosure is necessary to avert, or mitigate the consequences of, its realisation; or
(ii) the disclosure is necessary to report to the appropriate authority the commission of an offence or prevent the likely commission of an offence.
(3) In this section:
offence means an offence involving—
(a) violence, or the threat of violence, to a person; or
(b) intentional damage, or the threat of intentional damage, to property.
35C Protection from defamation
The same privilege in relation to defamation that applies to judicial proceedings applies to—
(a) mediation; or
(b) mediation material—
(i) produced at mediation; or
(ii) given to an accredited mediator for arranging, conducting or following up mediation.
9 Protection of members etc from
liability
Section 116 (3), definition of protected person,
paragraph (b), example
omit
a registered
substitute
an accredited
insert
• Corporations Act
11 Dictionary, new definitions
insert
accredited mediator means a person who is entered as a mediator in the register of nationally accredited mediators maintained by the Mediator Standards Board.
mediation, for division 5.3 (Case management)—see section 30A.
mediation material, for division 5.3 (Case management)—see section 30A.
Mediator Standards Board means the incorporated body registered
under the
as the Mediator Standards Board Limited (ACN 145 829 812).
Part 3 Civil Law (Wrongs) Act 2002
substitute
193 Who can be a mediator
(1) A person can be a mediator if the person is—
(a) an accredited mediator; and
(b) appointed by a tribunal as a mediator.
(2) In this section:
accredited mediator means a person who is entered as a mediator in the register of nationally accredited mediators maintained by the Mediator Standards Board.
Mediator Standards Board means the incorporated body registered
under the
as the Mediator Standards Board Limited (ACN 145 829 812).
13 Agreements and arrangements arising
from mediation sessions
Section 198, note
omit
insert
• Corporations Act
Part 4 Commissioner for Sustainability and the Environment Act 1993
15 Functions
Section 12 (2)
(a)
omit
master
substitute
associate judge
Part 5 Cooperatives Regulation 2003
16 Holders of prescribed
offices
Schedule 5, clause 5.2, item 2
substitute
2 associate judge of the Supreme Court
17 Coroner’s jurisdiction in
relation to deaths
Section 13 (1) (a)
substitute
(a) dies violently, or unnaturally, in unknown circumstances; or
omit
19 Coroner’s jurisdiction in
relation to fires
Section 18 (1)
substitute
(1) A coroner must hold an inquiry into the cause and origin of a fire that has destroyed or damaged property if asked to do so by the Attorney-General.
(1A) A coroner may (at the request of the owner or occupier of destroyed or damaged property or on the coroner’s own initiative) hold an inquiry into the cause and origin of a fire if the coroner considers that an inquiry should be held.
insert
Part 5A Coronial investigation scenes
68B Definitions—pt 5A
In this part:
coronial investigation scene means a coronial investigation scene established under section 68D.
coronial investigation scene declaration means a declaration made under section 68F (2).
coronial investigation scene order means an order issued under section 68C (1), and includes an order extended under section 68C (4).
coronial investigation scene power means a power mentioned in section 68E.
68C Coronial investigation scene order
(1) If a coroner is satisfied that an investigation for an inquest or inquiry should be carried out at a particular place, the coroner may issue an order to a police officer or other person to—
(a) establish a coronial investigation scene at a stated place; and
(b) exercise coronial investigation scene powers at the place stated in the order; and
(c) enter and stay at the place for those purposes.
(2) A coronial investigation scene order—
(a) may be issued at any time before the end of an inquest or inquiry; and
(b) must state—
(i) the date and time the order is issued; and
(ii) the date, within 30 days after the order was made, the order ends; and
(iii) any conditions applying under the order.
(3) A coroner may, before a coronial investigation order ends (a current order), order an extension of the current order for an additional period (an extension period) if—
(a) the date the extension period ends is within 30 days after the day the current order ends; and
(b) the coroner is satisfied that an extension of the current order is in the interests of justice.
(4) A coroner may make an order under subsection (3)—
(a) more than once; and
(b) whether or not the coroner issued the current order.
(5) A coronial investigation scene order may be issued to a police officer in writing or orally or to anyone else in writing.
(6) However, an order that is issued to a police officer orally must, as soon as practicable, be given to the police officer in writing.
(7) A police officer acting under a coronial investigation scene order may obtain the assistance of anyone else for the purpose of exercising powers under section 68E (Coronial investigation scene powers).
(8) In this section:
place means a place of any kind, whether or not a public place.
68D Establishment of coronial investigation scene
(1) A police officer may establish a coronial investigation scene under a coronial investigation scene order in any way that is reasonably appropriate in the circumstances.
(2) A police officer who establishes a coronial investigation scene at a place must, if reasonably appropriate in the circumstances, tell the public that the place is a coronial investigation scene.
68E Coronial investigation scene powers
A police officer may, in accordance with a coronial investigation scene order, exercise any of the following powers at, or in relation to, a coronial investigation scene if the police officer suspects on reasonable grounds that it is necessary to do so to preserve evidence related to the coronial investigation:
(a) direct a person to leave the scene or remove a vehicle, vessel or aircraft from the scene;
(b) remove from the scene—
(i) a person who fails to comply with a direction to leave the scene; or
(ii) a vehicle, vessel or aircraft if a person fails to comply with a direction to remove it from the scene;
(c) direct a person not to enter the scene;
(d) prevent a person from entering the scene;
(e) prevent a person from removing evidence from, or otherwise interfering with, the scene or anything in it and, for that purpose, detain and search the person;
(f) remove an obstruction from the scene;
(g) perform any necessary investigation;
Examples
1 search the scene
2 inspect anything in the scene to obtain evidence in relation to an inquest or inquiry
Note An 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).
(h) conduct any necessary examination or process;
(i) open anything at the scene that is locked;
(j) take electricity, gas or any other utility, for use at the scene;
(k) photograph or otherwise record the scene and anything in it;
(l) seize and detain all or part of a thing that might provide evidence in relation to an inquest or inquiry or provide evidence of the commission of an offence;
(m) dig up anything at the scene;
(n) remove wall or ceiling linings or floors of a building, or panels of a vehicle;
(o) take possession of the remains of a deceased person on behalf of the coroner, including body tissue, clothing and items apparently in the possession of the deceased person;
(p) remove or cause the removal of the remains of a deceased person to any location nominated by the coroner;
(q) anything else reasonably necessary or incidental to the investigation.
68F Senior police officer may establish scene for expected coronial investigation
(1) This section applies if—
(a) a coroner is not available to decide whether to issue a coronial investigation scene order for a particular place; and
(b) a senior police officer believes on reasonable grounds that—
(i) a coroner is likely to issue a coronial investigation scene order for the place; and
(ii) it is necessary to preserve the integrity of anything found at the place that appears relevant to the death of a person.
(2) The senior police officer may make a coronial investigation scene declaration for the place.
(3) A coronial investigation scene declaration—
(a) comes into force when it is made by the senior police officer; and
(b) ends when whichever of the following happens first:
(i) a coronial investigation order is issued for the place;
(ii) the period of 24 hours after the declaration was made ends; and
(c) may include any conditions on the exercise of a power mentioned in subsection (4) that the senior police officer considers appropriate.
(4) While a declaration is in force, a police officer at the place may, subject to any condition in the declaration, exercise any power mentioned in section 68E (Coronial investigation scene powers) as if the declaration were a coronial investigation scene order.
(5) A coronial investigation scene declaration may be made in writing or orally.
(6) However, a declaration made orally must, as soon as practicable, be made in writing.
(7) In this section:
senior police officer means the chief police officer or another police officer of or above the rank of superintendent.
68G Exercise of investigation scene powers under pt 5A
(1) Investigation scene powers given to a police officer under this part may be exercised by the police officer in any way that—
(a) the officer considers reasonable in the circumstances; and
(b) is consistent with—
(i) if a coronial investigation scene order applies—the order; and
(ii) if a coronial investigation scene declaration applies—the declaration.
(2) If a police officer secures a place, the officer must, if it is reasonable in the circumstances, give notice to members of the public that the place is an investigation scene.
(3) In this section:
investigation scene power, under this part, means a power exercisable by a police officer, under section 68E or section 68F (4).
68H Part does not limit other powers
Nothing in this part limits any power that a police officer has under another law in force in the Territory to enter a place or do anything else when at the place.
21 Dictionary, new definitions
insert
coronial investigation scene, for part 5A (Coronial investigation scenes)—see section 68B.
coronial investigation scene declaration, for part 5A (Coronial investigation scenes)—see section 68B.
coronial investigation scene order, for part 5A (Coronial investigation scenes)—see section 68B.
coronial investigation scene power, for part 5A (Coronial investigation scenes)—see section 68B.
22 Dictionary, definition of hearing
substitute
hearing means a hearing for an inquest or inquiry under
division 5.1.
Part 7 Court Procedures Act 2004
23 Rule-making
committee
Section 9 (5) and (6)
substitute
(5) However, if the Chief Justice is not personally present at a meeting of the rule-making committee, the member present chosen by the committee is to chair the meeting.
substitute
76 Supreme Court jurisdiction to make orders for conduct of indictable trials
(1) The Supreme Court has jurisdiction in relation to the conduct of a criminal proceeding against an accused person for an indictable offence—
(a) if the accused person is committed to the sittings of the Supreme Court for the offence—when the Magistrates Court has completed making—
(i) an order to commit the accused person to the sittings of the Supreme Court (the committal order); and
(ii) any other orders incidental to the committal order; or
(b) in any other case—when an indictment for the offence is presented against the accused person in the Supreme Court.
(2) Any orders, rulings or directions that may be made by the Supreme Court for the purposes of a trial for an indictable offence may be made before—
(a) if the tribunal of fact for the trial is a jury—the jury is empanelled; or
(b) if the tribunal of fact for the trial is a judge alone—the judge starts hearing evidence to determine the guilt or innocence of the accused person; and
(3) An order, ruling or direction of the Supreme Court under subsection (2) is binding on the trial judge at the hearing of the trial unless in the opinion of the trial judge it is not in the interests of justice for the order, ruling or direction to remain binding.
(4) Subject to this Act, the point in a criminal proceeding on indictment against an accused person when an order, ruling or direction under subsection (2) is made is taken to be part of the trial of the accused person.
(5) If an accused person elects to be tried by a jury, the person may be arraigned again in the presence of the panel of jurors.
insert
Division 8.3 Pre-trial disclosure of expert evidence
77 Application—div 8.3
(1) This division applies to a criminal proceeding that is a trial on indictment of an accused person in which—
(a) the Supreme Court has jurisdiction; and
(b) neither of the following events in the trial has happened:
(i) if the tribunal of fact for the trial is a jury—the jury is empanelled;
(ii) if the tribunal of fact for the trial is a judge alone—the trial judge starts hearing evidence to determine the guilt or innocence of the accused.
(2) In this section:
criminal proceeding—a reference to a criminal proceeding includes a criminal proceeding begun before the day on which this section commences.
trial—a reference to a trial includes a retrial.
78 Mandatory pre-trial disclosure—expert evidence
(1) After an indictment is filed in a proceeding, the following pre-trial disclosure is required:
(a) the prosecutor must give each accused person written notice in accordance with section 79 about whether or not the prosecution will adduce expert evidence in the proceeding;
(b) an accused person must give the prosecution and each co-accused person (if any)—
(i) written notice about whether or not the accused person will adduce expert evidence in the proceeding; and
(ii) if the accused person receives written notice under this division from the prosecution or a co-accused person about an intention to adduce expert evidence in the proceeding—written notice in reply in accordance with section 79A;
(c) if the prosecutor receives written notice under this division from an accused person about an intention to adduce expert evidence in the proceeding—the prosecutor must give each accused person written notice in reply in accordance with section 79B.
(2) Pre-trial disclosure in accordance with this section must happen before the date set for the trial in the proceeding and in accordance with a timetable determined by the court.
(3) The court may vary the timetable determined under subsection (2) if it considers that it would be in the interests of justice to do so.
79 Prosecution notice—expert evidence
For section 78 (1) (a), written notice by a prosecutor in a proceeding must—
(a) if the prosecution intends to adduce expert evidence in the proceeding—include the following:
(i) a statement that the prosecution intends adducing expert evidence in the proceeding;
(ii) a copy of any statement or report relevant to the proceeding that sets out the opinion of a person who the prosecution intends to call as an expert witness in the proceeding;
(iii) a copy of any other real evidence that is relevant to expert evidence that the prosecution proposes to adduce at the trial or, if it is not practicable to copy the real evidence, a detailed description of the real evidence;
(iv) any chart or explanatory material relating to expert evidence that the prosecution proposes to adduce at the trial; or
(b) if the prosecution does not intend adducing expert evidence in the proceeding—a statement that the prosecution does not intend adducing expert evidence in the proceeding.
79A Accused person’s notice and reply—expert evidence
(1) For section 78 (1) (b) (i), written notice by an accused person about expert evidence in the accused person’s case must—
(a) if the accused person intends to adduce expert evidence in the proceeding—include the following:
(i) a statement that the accused person intends adducing expert evidence in the proceeding;
(ii) a copy of any statement or report relevant to the proceeding that sets out the opinion of a person who the accused person intends to call as an expert witness in the proceeding;
(iii) a copy of any other real evidence that is relevant to expert evidence that the accused person proposes to adduce at the trial or, if it is not practicable to copy the real evidence, a detailed description of the real evidence;
(iv) any chart or explanatory material relating to expert evidence that the accused person proposes to adduce at the trial; or
(b) if the accused person does not intend adducing expert evidence in the proceeding—a statement that the accused person does not intend adducing expert evidence in the proceeding.
(2) For section 78 (1) (b) (ii), written notice by an accused person in reply to a notice under this division from the prosecution or a co-accused person (a party’s notice) in a proceeding must—
(a) if the party’s notice states an intention to adduce expert evidence in the proceeding—state any objections or relevant matters of fact or law that the accused person intends to raise in relation to the expert evidence; and
(b) if the party’s notice states the party does not intend adducing expert evidence in the proceeding—confirm receipt of the party’s notice.
79B Prosecution reply—expert evidence
For section 78 (1) (c), written notice by the prosecution in reply to a notice under this division from an accused person in a proceeding must—
(a) if the accused person’s notice states an intention to adduce expert evidence in the proceeding—state any objections or relevant matters of fact or law that the prosecution intends to raise in relation to the expert evidence; and
(b) if the accused person’s notice states no intention to adduce expert evidence in the proceeding—confirm receipt of the accused person’s notice.
79C Sanctions for non-compliance with pre-trial disclosure requirements
(1) The court may refuse to admit expert evidence sought to be adduced by a party in a proceeding if the party failed to disclose the evidence to the other parties in accordance with this division.
(2) The court may refuse to admit evidence from an expert witness sought to be adduced by a party in a proceeding if the party failed to give the other parties a copy of a report by the expert witness in accordance with requirements for pre-trial disclosure imposed under this division.
(3) The court may grant an adjournment to a party (the first party) if another party (the second party) seeks to adduce evidence in the proceedings that the second party failed to disclose in accordance with requirements for pre-trial disclosure imposed under this division and that would prejudice the case of the first party.
79D Disclosure requirement is ongoing
(1) The obligation to comply with the requirements for pre-trial disclosure in relation to expert evidence under this division applies until—
(a) the accused person is convicted or acquitted of the charges in the indictment; or
(b) the prosecution is brought to an end.
(2) If a party becomes aware of a notifiable development in relation to expert evidence disclosed under this division after the evidence was disclosed the party must notify each other party to the proceeding about the development as soon as practicable.
(3) A party may, with the leave of the court, amend notice given by the party under this division if notification about a notifiable development is received from another party that would affect the contents of the party’s notice.
(4) A party that amends the party’s notice in accordance with subsection (3) must give the amended notice to each other party to the proceeding.
(5) In this section:
notifiable development, in relation to expert evidence required to be disclosed under this division in a proceeding, means any information, document, thing or occurrence relevant to—
(a) an understanding of the expert evidence; or
(b) the reliability of the expert evidence or a person who is proposed to give the evidence in the proceeding; or
(c) the use or effect of the expert evidence in a proceeding.
79E Court may waive requirements
(1) A court may, by order, waive any of the pre-trial disclosure requirements under this division if the court considers that it would be in the interests of justice to do so.
(2) The court may make an order under this section on its own initiative or on the application of the prosecutor or an accused person.
(3) An order may be made subject to any condition the court considers appropriate.
(4) The court must take into account whether the accused person is represented by a lawyer when considering whether to make an order under this section.
(5) The court must give reasons for the making of an order under this section.
insert
• associate judge
27 Dictionary, definition of master
omit
28 Further amendments, mentions of master
omit
master
substitute
associate judge
in
• section 9 (2) (c)
• section 11
• section 18A (5) (a) (i)
• section 40, definition of judge
• schedule 1, part 1.1, item 1 (3)
29 Definitions—ch
3
Section 300, definition of territory public official,
paragraph (d)
omit
master
substitute
associate judge
Part 9 Judicial Commissions Act 1994
30 Dictionary, definitions of head of jurisdiction and judicial officer
omit
master
substitute
associate judge
31 Jury service
Schedule 2,
part 2.1, item 13
omit
master
substitute
associate judge
32 Dictionary, part 1, new definition of associate judge
insert
associate judge means the associate judge under the Supreme Court Act 1933
.
33 Dictionary, part 1, definition of master
omit
Part 12 Magistrates Court Act 1930
34 Transfer of action from Supreme
Court
Section 268 (1)
substitute
(1) This section applies if a proceeding in the Supreme Court relates to a cause of action that is a prescribed action.
omit
Part 13 Oaths and Affirmations Act 1984
36 Oath or affirmation by spoken words
or other means
Section 17 (1)
substitute
(1) A person taking an oath must, if the person is physically capable of
doing so, in the presence of the person before whom the oath is taken, say the
words of the oath.
37 Functions—investigating
complaints under Act
Section 5 (2) (b) (i)
omit
master
substitute
associate judge
Part 15 Public Sector Management Act 1994
omit
master
substitute
associate judge
Part 16 Remuneration Tribunal Act 1995
39 Positions to which Act
applies
Schedule 1, part 1.1
omit
• master of the Supreme Court
substitute
• associate judge of the Supreme Court
Part 17 Supreme Court Act 1933
40 Seniority of
judges
Section 5 (2)
omit
omit
or the President
42 Arrangement of business of
court
Section 7
omit
Subject to section 37G (Arrangement of business of Court of Appeal), the
substitute
The
43 Exercise of
jurisdiction
Section 8
omit
master
substitute
associate judge
substitute
9 Exercise of jurisdiction by associate judge
(1) For the exercise of jurisdiction given to the associate judge under the rules, this Act has effect as if the court consisted of the judges and the associate judge.
(2) A person who is dissatisfied with an order of the associate judge made in the exercise of jurisdiction given under the rules may appeal as prescribed under the rules to the Court of Appeal.
45 Full Court decisions—equal
division of opinion
Section 14 (a)
omit
master
substitute
associate judge
46 Appellate
jurisdiction
Section 37E (2) (a)
substitute
(a) appeals in relation to orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself);
substitute
(4) Also, an appeal may be brought against an interlocutory order of the court constituted by a single judge, or the associate judge, only with leave of the Court of Appeal.
omit
49 Appeal bench
Section 37H
(2)
omit
President
substitute
Chief Justice
50 Salary of former
President
Section 37UB
omit
in part 3, insert
45 Master to be known as associate judge
The Master is to be known as the Associate Judge.
52 Completion of part-heard
matters—end of term of office
Section 60A
omit
master
substitute
associate judge
insert
Part 11 Transitional—Courts Legislation Amendment Act 2015
110 Meaning of commencement day—pt 11
In this part:
commencement day means the day the Courts Legislation Amendment Act 2015, section 3 commences.
111 Transitional regulations
(1) A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of the Courts Legislation Amendment Act 2015.
(2) A regulation may modify this part (including 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 else in this Act or another territory law.
112 Expiry—pt 11
This part expires 2 years after the commencement day.
Note Transitional provisions are kept in the Act for a limited time. A
transitional provision is repealed on its expiry but continues to have effect
after its repeal (see
, s 88).
54 Dictionary, new definition of associate judge
insert
associate judge means the person known as the Associate Judge under section 45.
55 Dictionary, definition of President
omit
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 19 February 2015.
2 Notification
Notified under the
on 2015.
3 Republications of amended laws
For the latest republication of amended laws, see www.legislation.act.gov.au
.
© Australian Capital Territory 2015
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