Northern Territory Explanatory Statements

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JUSTICE PORTFOLIO (MISCELLANEOUS AMENDMENTS) BILL 2005


2005

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

JUSTICE PORTFOLIO (MISCELLANEOUS AMENDMENTS) BILL 2005


SERIAL NO 283

EXPLANATORY STATEMENT


GENERAL OUTLINE

This Bill amends or repeals various Acts within the Justice Portfolio.

The Administration and Probate Act is amended to correct an error in the drafting of section 104.

The Agents Licensing Act is amended to review and convert into penalty units, penalties that remain expressed in dollar terms.

The Consumer Affairs and Fair Trading Act is amended so as to
· review and convert into penalty units, penalties that remain expressed in dollar terms; and
· replace the existing pyramid selling provisions with the
The Criminal Records (Spent Convictions) Act is amended to clarify the extent to which "spent convictions" revive under certain circumstances.

The Director of Public Prosecutions Act is amended to extend the Director’s power of delegation to sign indictments.

The Interpretation Act is amended in a number of ways to improve clarity or remove ambiguity, and in other respects is updated to reflect modern drafting practice. The Land Title Act is amended to streamline certain administrative actions of the Registrar-General.

The Law of Property Act is amended to clarify the operation of section 215, which relates to presumption of death.

The Legal Practitioners Act is amended to clarify that the Act only binds the Crown in respect of specified Parts.

The Registration of Interests in Motor Vehicles and Other Goods Act is amended so as to clarify the operation of that Act in respect of vehicles owned by companies that are subject to registered security interests (consequential to the enactment of the 2001 Corporations Act reforms).

The Sentencing Act is amended so that:
· a Judge can deal with breach of order for release on bond or breach of suspended sentence previously imposed by a Magistrate; and
· where a Court makes a community work order or an order suspending a sentence, a member of the Police Force may arrest an offender who has failed to sign the order.

The Prisons (Correctional Services) Amendment Act 2001 and the Validation (Chief Magistrate) Act 2001 (both uncommenced) are repealed.

NOTES ON CLAUSES

Part 1 – Preliminary

Clause 1 Short Title

The Bill once passed will be known as the Justice Portfolio (Miscellaneous Amendments) Act 2005.

Clause 2 Commencement

Different parts of the Act will commence on different days.

Section 4 of the Act has retrospective application and is to commence on 1 July 2002, which is immediately after the commencement of the Administration and Probate Amendment Act 2002. This is because certain wording in that Act achieves the opposite of what was intended. This is further explained at clauses 3 to 5.

The remainder of the legislation is to commence on a day or respective days to be fixed by the Administrator.

Part 2 – Amendment of Administration and Probate Act

Clause 3 Principal Act amended

The Act being amended in this Part is the Administration and Probate Act.

Clause 4 Amendment of section 104 (rejection of small claim)

Section 104(1) (a) is amended by omitting the words ‘in excess of’ and substituting the words ‘not exceeding’. This corrects a drafting error and restores the operation of this provision to what was intended, namely the replication of the repealed section 80 of the Public Trustee Act.

This amendment will have retrospective application.


Clause 5 New Part IX

New section 153 validates any actions taken in reliance on the current (incorrect) wording of section 104 Administration and Probate Act.

Part 3 – Amendment of Agents Licensing Act

Clause 6 Principal Act amended

The Act being amended in this Part is the Agents Licensing Act.

Clause 7 Amendment of section 44B (Powers of Board after inquiry)

The maximum penalty for breach of section 44B is changed from $500 so as to be expressed in terms of penalty units (5 penalty units).

Clause 8 Amendment of section 51 (Notification of account)

The maximum penalty for breach of section 51 is increased from $500 and expressed in terms of penalty units (20 penalty units).

Clause 9 Amendment to section 56 (Receipt for trust moneys)

The maximum penalty for breach of section 56 is increased from $500 and expressed in terms of penalty units (20 penalty units).

Clause 10 Amendment to section 59 (Audit)

The maximum penalty for breach of section 59 is increased from $500 and expressed in terms of penalty units (20 penalty units).


Clause 11 Amendment to section 69 (Powers of Board after inquiry)

The maximum fine for breach that may be imposed by the Board under section 69 ($5,000) is now to be expressed in terms of penalty units (50 penalty units).

Part 4 – Amendment of Consumer Affairs and Fair Trading Act

Part 4, containing clauses 12-23, deals with amendments to the Consumer Affairs and Fair Trading Act.

Clause 12 Principal Act amended

The Act being amended is the Consumer Affairs and Fair Trading Act.

Clause 13 Amendment of section 29 (Power of Commissioner to establish investigation committee)

The maximum penalties for breach of section 29 are increased and expressed in terms of penalty units (100 penalty units for an individual, 500 penalty units for a body corporate).

Clause 14 Amendment of section 36 (Special provisions as to notification of recall (including voluntary recall))

The maximum penalties for breach of section 36 are increased and expressed in terms of penalty units (100 penalty units for an individual, 500 penalty units for a body corporate).

Clause 15 Repeal of section 56

Clause 15 repeals the existing section relating to pyramid selling. New pyramid selling provisions are inserted by clause 16.

Clause 16 New Division 1A

Clause 16 replaces the existing section relating to pyramid selling with Division 1A – Pyramid Selling. These provisions are modeled on the “Plain English” pyramid selling provisions in the Trade Practices Amendment Act (No. 1) 2002. All States and Territories are expected to adopt these provisions in due course.

New Section 60A contains definitions of words and phrases used in the new Division.

New Section 60B sets out the general characteristics that determine what is a pyramid selling scheme.

New Section 60C sets out the rules for determining whether a scheme for the marketing of goods or services is a pyramid selling scheme.

New Section 60D makes it an offence to be involved in a pyramid selling scheme. The maximum penalties for breach of section 60D are set out in section 88.

Clause 17 Amendment of Part 6 heading

The heading for Part 6 is changed so that it includes a reference to new Division 1A.

Clause 18 Amendment of section 88 (Offences)

The maximum penalties for breach of the sections covered by section 88 are increased and expressed in terms of penalty units (500 penalty units for an individual, 2 500 penalty units for a body corporate).

Clause 19 Amendment of section 177 (Disqualifications resulting from revocation, cancellation or suspension of licence )

The maximum penalties for breach of section 177 are increased and expressed in terms of penalty units (500 penalty units for an individual, 2 500 penalty units for a body corporate).

Clause 20 Amendment of section 190 (Application for licence)

The maximum penalties for breach of section 190 are increased and expressed in terms of penalty units (50 penalty units for an individual, 250 penalty units for a body corporate).

Clause 21 Amendment of section 207 (Determination of appeal concerning disciplinary action)

The maximum fines that a court may impose as a consequence of a disciplinary appeal in respect of travel agents are increased and expressed in terms of penalty units (50 penalty units for an individual, 250 penalty units for a body corporate).

Clause 22 Amendment of section 231 (Disciplinary action)

The maximum fines that a court may impose as a consequence of a disciplinary appeal in respect of credit providers are increased and expressed in terms of penalty units (500 penalty units for an individual, 2 500 penalty units for a body corporate).

Clause 23 Further amendments

This clause provides a schedule of further amendments to the Consumer Affairs and Fair Trading Act. These amendments are consequential to the inclusion of new Division 1A in Part 5 of the Consumer Affairs and Fair Trading Act see clause 16.

Part 5 – Amendment of Criminal Records (Spent Convictions) Act

Part 5, containing clauses 24-25, deals with amendments to the Criminal Records (Spent Convictions) Act.

Clause 24 Principal Act amended

The Act being amended is the Criminal Records (Spent Convictions) Act. Clause 25 Amendment of section 10 (Revival of convictions which are spent convictions)

This clause clarifies what has been understood to be intention of section 10 – namely that a spent conviction that subsequently revives due to the operation of the Act can after the appropriate period of time once again become a spent conviction.

Part 6 – Amendment of Director of Public Prosecutions Act

Part 6, containing clauses 26-27, deals with amendments to the Director of Public Prosecutions Act.

Clause 26 Principal Act amended

The Act being amended is the Director of Public Prosecutions Act. Clause 27 Repeal and substitution of section 32 (Delegation)

This clause repeals current section 32 and provides the Director of Public Prosecutions with the power to delegate his or her powers to any suitable person rather than being limited to staff members or corresponding officers (as defined in section 18). This is particularly relevant when dealing with matters involving persons outside the Territory. This provision is based on the equivalent section in the South Australian Act.

Part 7 – Amendment of Interpretation Act

Part 7 deals with amendments to the Interpretation Act.

Clause 28 Principal Act amended

The Act being amended is the Interpretation Act.

Clause 29 Amendment of section 18 (Definitions of government expressions)

The definition of “Consolidated Revenue Account” is to be removed because it is no longer necessary.

Certain additional definitions of commonly used government expressions are inserted. The definitions are intended to remove doubt as to their meaning in various other Acts and delegated legislation and aid in the drafting and interpretation of legislation.

Clause 30 Amendment of section 19 (Definitions generally)

Certain definitions of generally used expressions that are no longer used are omitted.

Certain additional definitions of generally used expressions are inserted. The definitions are intended to remove doubt as to their meaning.

Clause 31 Repeal and substitution of section 21

The effect of the repeal and substitution of section 21 is that the term “pursuant to” is added to the definition of similar words in section 21.

Clause 32 Repeal and substitution of section 24

Clause 32 repeals section 24 and replaces it with new sections 24 and 24A.

Existing terminology in section 24 is replaced with gender neutral terminology.

New section 24A clarifies the meaning of a reference to a range of numbers, words or things. This is intended to remove any doubt, and aid drafting and interpretation of legislation.

Clause 33 Amendment of section 28 (Reckoning of time)

A pointer to The Standard Time Act 1898 (SA) is inserted. This Act establishes standard legal time in the Territory but being one of the few remaining South Australian Acts still applying in the Territory, can be difficult to locate.

This old South Australian Act is proposed by the Standard Time Bill 2005 to be repealed and replaced with effect from 1 September 2005. The Standard Time Bill 2005 provides that, on commencement of the Standard Time Act 2005, for the replacement of section 28(3) by a new provision that will contain a reference to the Standard Time Act 2005.

Subsection 28(4) has been inserted and clarifies that a reference to ‘from time to time’ means ‘any time’.

Subsection 28(5) has been inserted and clarifies that a reference to ‘for the time being’ means ‘at that time’.

Clause 34 Amendment of section 38C (Penalties at foot of sections and subsections)

This clause clarifies that a penalty is still considered to be at the foot of a section or subsection even if an example or note appears after the penalty.

Clause 35 Repeal and substitution of section 42

This section is repealed and replaced so as to overcome a technical difficulty that arises due to a High Court decision from the 1930’s. Essentially, the new wording provides that a Regulation may require a statutory declaration to be made about a certain matter, and at the same time contain a penalty. The section, as replaced, will have retrospective application to powers exercised prior to the commencement of the section.

Clause 36 Amendment of section 46 (Power to authorise another person to exercise power or perform function)

Section 46 sets out the circumstance where a Minister may authorize a person to perform statutory duties of the Minister or another person who occupies a particular statutory position.

Current section 46(3) is to be repealed and replaced so as to cover all possible instances of how the authorized person may be identified.

Clause 37 Repeal and substitution of section 55

Section 55 is amended to make it clear that certain notes and examples are part of an Act whilst certain other footnotes, endnotes, marginal notes and other notes are not part of Acts.

The use of examples, notes, footnotes, endnotes reflects modern drafting style but their status has not been dealt with in the Interpretation Act.

Clause 38 New section 57A

Often Acts amend legislative instruments (such as regulations). For example, section 20 of the Taxation (Administration) Amendment (Objections and Appeals) Act 2005 and section 8 of the Statute Law Revision (No. 2) Act 2004 . There has been some doubt as to whether such regulations can be amended by subsequent regulations. Currently, drafting style is such that there is often a clause stating that such regulations can be amended by way of regulation (e.g. section 9 of Statute Law Revision (No. 2) Act 2004.

This new section clarifies that such legislative instruments can be amended by subsequent legislative instruments of the same kind without the need for that to be stated in the amending Act.

Clause 39 New sections 62C and 62D

Over time, different drafting practices vary. This can lead to inconsistent terminology regarding particular concepts or requirements. New section 62C states that the mere fact of different words being used is not to be taken as necessarily indicating that there is any difference in the ideas covered by the provisions.

Section 62D provides that an example given in an Act is not exhaustive, nor does it limit the meaning of the provision and, in the case of an inconsistency, the main provision prevails over the example.

These new sections are aids to drafting and interpreting legislation.

Part 8 – Amendment of Land Title Act

Part 8 deals with amendments to the Land Title Act.

Clause 40 Principal Act amended

The Act being amended is the Land Title Act.

Clause 41 Amendment of section 210 (Registrar-General’s directions)

Section 210 provided for the making of directions by the Registrar-General. Currently, there is doubt as to whether the section operates so that the Registrar-General must, at some time, publish all of the directions in the Gazette rather than the more standard requirement which is that notice of the legislative instrument be given and that instrument be available to the public.

Section 210 is amended so that the Registrar-General’s directions do not have to be published in the Gazette. Instead, the Registrar-General will publish a notice that directions have been issued. The Registrar-General must make directions available during normal office hours.

Part 9 – Amendment of Law of Property Act

Part 9 deals with amendments to the Law of Property Act.

Clause 42 Principal Act amended

The Act being amended is the Law of Property Act.

Clause 43 Amendment of section 215 (Presumption of death)

Section 215 states that a person may be presumed to be dead if, amongst other things, a court makes a finding that the person has been dead for at least 7 years.

Section 215 is amended to clarify that the presumption of death under section 215 does not only apply if the Court makes a specific finding that a person has been dead for 7 years. The intention was always to recognise findings that a person is dead because of various factors one of which is that he or she has not been heard of for 7 years and may, sometime in that period, have died.

Part 10 – Amendment of Legal Practitioners Act

Part 10 deals with amendments to the Legal Practitioners Act.

Clause 44 Principal Act

The Act being amended is the Legal Practitioners Act.

Clause 45 Repeal and substitution of section 6A

Currently, section 6A states that the Crown is bound by all of the provisions of the Act. However, there are certain provisions (e.g. those relating to trust monies) that should not apply to the Crown.

Accordingly, section 6A is to be repealed and replaced so that the Crown is bound by all provisions except those stated in section 6A as being inapplicable. The provisions of the Legal Practitioners Act that are not relevant to the Crown, and from which the Crown is exempt, are set out in section 6A. The inapplicable provisions are those dealing with trust monies, fidelity fund, managers, receivers, costs, offences and foreign lawyers.

Part 11 - Amendments of Registration of Interests in Motor
Vehicles and Other Goods Act

Clause 46 Principal Act amended

The Act being amended is the Registration of Interests in Motor Vehicles and Other Goods Act.

Clause 47 New sections 14C and 14D

New section 14C set out the priority of registrable interests against unregistered interests.

New section 14D provides that the order of priorities established by section 14C operates subject to any contrary provisions in the Corporations Act 2001.

These provisions are based on sections 10A and 10B of the NSW Registration of Interests in Goods Act 1986.

Part 12 - Amendment of Sentencing Act

Clause 48 Principal Act amended

The Act being amended is the Sentencing Act.

Clause 49 Amendment of section 11 (Release on bond without conviction)

This clause omits section 11(2) and (3) (signing of orders by offenders). The signing of orders is now to be dealt with in new section 102A – see clause 56 of this Bill.

Clause 50 Amendment of section 13 (Release on bond following conviction)

This clause omits section 13(2) and (3) (signing of orders by offenders). The signing of orders is now to be dealt with in new section 102A – see clause 56 of this Bill.

Clause 51 Amendment of section 15 (Breach of order for release of bond)

This clause provides that a Judge can deal with breach of order for release on bond or breach of suspended sentence previously imposed by a Magistrate.

Clause 52 Amendment of section 34 (Community work order)

This clause omits section 34(3) (signing of orders by offenders). The signing of orders is now to be dealt with in new section 102A – see clause 56 of this Bill.

Clause 53 Amendment of section 43 (Breach of order suspending sentence)

Section 43 is amended so that the Supreme Court can deal with a breach of an order suspending a sentence imposed by the Court of Summary Jurisdiction.

Clause 54 Amendment of section 44 (Home detention order)

This clause omits section 44(4) and (5) (signing of orders by offenders). The signing of orders is now to be dealt with in new section 102A – see clause 56 of this Bill.

Clause 55 Repeal and substitution of Part 6, Division 1 heading

Clause 55 changes the heading to Division 1.

Clause 56 New section 102A

This new section replicates repealed sections 11(2) and (3), 13(2) and (3), 34(3), 44(4) and (5). The difference is that this new section also applies these rules to section 40 – meaning that a person who has been given a suspended sentence must not leave the Court without signing the order, and may be arrested if they do so.

Part 13 - Repeal of Acts

Clause 57 Repeal

Clause 57 repeals the Prisons (Correctional Services) Amendment Act (No. 21 of 2001) and the Validation (Chief Magistrate) Act
(No. 57 of 2001)

The Prisons (Correctional Services) Amendment Act 2001 (No. 21 of 2001) has never commenced. The new section 58(2) that would be inserted if the Act commenced serves no useful purpose.

The Validation (Chief Magistrate) Act (No. 57 of 2001) was a precautionary Act in the event that a Court challenge to the validity of the appointment of the Chief Magistrate was successful. The High Court has determined the issue in favour of the validity of the appointment and this Act is no longer required. The Act has not commenced.

Schedule (clause 23)

The schedule contains various consequential amendments to the Consumer Affairs and Fair Trading Act arising from the inclusion in Part 5 of new Division 1A.
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