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TASMANIA
__________
JUSTICE AND RELATED LEGISLATION
(MISCELLANEOUS AMENDMENTS) BILL 2009
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
PART 2 - ADMINISTRATION AND PROBATE ACT 1935 AMENDED
3. Principal Act
4. Section 54 amended (Power of personal representative to
advertise for claims)
PART 3 - CRIME (CONFISCATION OF PROFITS) ACT 1993
AMENDED
5. Principal Act
6. Section 27 amended (Grounds for making restraining orders)
PART 4 - DEBTORS ACT 1870 AMENDED
7. Principal Act
8. Section 21 substituted
21. Warrant of attorney and cognovit actionem to be
signed in presence of Australian legal practitioner
PART 5 - DIRECTOR OF PUBLIC PROSECUTIONS ACT 1973
AMENDED
9. Principal Act
[Bill 19]-X
10. Section 17 inserted
17. Immunity from personal liability
PART 6 - FATAL ACCIDENTS ACT 1934 AMENDED
11. Principal Act
12. Section 7 amended (Plaintiff to deliver particulars)
PART 7 - GUARDIANSHIP AND ADMINISTRATION ACT 1995
AMENDED
13. Principal Act
14. Section 34 amended (Revocation or amendment of appointment
by Board)
15. Section 73A amended (Interim order on adjournment)
PART 8 - HOSPITALS ACT 1918 AMENDED
16. Principal Act
17. Section 70J amended (Institution of appeals)
PART 9 - JUSTICES ACT 1959 AMENDED
18. Principal Act
19. Section 3 amended (Interpretation)
20. Section 27 amended (Proceedings may be commenced by
complaint)
21. Section 38 amended (Representation of parties by counsel, &c.)
22. Section 47 amended (Place of committal when defendant on
remand)
23. Section 50B amended (Adjournment of proceedings)
24. Section 55 amended (Procedure when brought before justices)
25. Section 56 amended (Duties during adjournment)
26. Section 57 amended (Duty to provide further witness statements
and summary of facts)
27. Section 61 amended (Proceedings following preliminary
proceedings order by Supreme Court)
28. Section 106E amended (Procedure in relation to hearing and
determining applications under this Part)
29. Section 113A amended (Alternative appeals in certain cases)
2
30. Section 130 amended (Notice of action)
31. Section 131 amended (Where action may be brought)
32. Section 134 amended (Costs)
PART 10 - MENTAL HEALTH ACT 1996 AMENDED
33. Principal Act
34. Section 26 amended (Initial order for admission)
PART 11 - MOTOR ACCIDENTS (LIABILITIES AND
COMPENSATION) ACT 1973 AMENDED
35. Principal Act
36. Section 24 amended (Exclusions from scheduled benefits)
PART 12 - PAROLE ORDERS (TRANSFER) ACT 1983 AMENDED
37. Principal Act
38. Section 3 amended (Interpretation)
39. Section 4 repealed
PART 13 - PUBLIC TRUSTEE ACT 1930 AMENDED
40. Principal Act
41. Section 36A amended (Dealing with unclaimed moneys)
42. Section 65 amended (Power of Public Trustee to distribute estate
when no claims received)
PART 14 - TRADES UNIONS ACT 1889 AMENDED
43. Principal Act
44. Section 11 amended (Treasurer, &c., to account)
PART 15 - TRAVEL AGENTS ACT 1987 AMENDED
45. Principal Act
46. Section 51 amended (Who may take proceedings for offences)
PART 16 - TRUSTEE COMPANIES ACT 1953 AMENDED
47. Principal Act
48. Section 32 amended (Trustee company to pay certain unclaimed
moneys to Public Trustee)
49. Section 35 repealed
3
50. Section 37 substituted
37. Unclaimed money to be paid to Treasurer, &c.
PART 17 - LEGISLATION REPEALED
51. Legislation repealed
SCHEDULE 1 - LEGISLATION REPEALED
4
JUSTICE AND RELATED LEGISLATION
(MISCELLANEOUS AMENDMENTS) BILL 2009
(Brought in by the Minister for Justice, the Honourable
Larissa Tahireh Giddings)
A BILL FOR
An Act to amend the Administration and Probate Act 1935,
the Crime (Confiscation of Profits) Act 1993, the Debtors Act
1870, the Director of Public Prosecutions Act 1973, the Fatal
Accidents Act 1934, the Guardianship and Administration
Act 1995, the Hospitals Act 1918, the Justices Act 1959, the
Mental Health Act 1996, the Motor Accidents (Liabilities and
Compensation) Act 1973, the Parole Orders (Transfer) Act
1983, the Public Trustee Act 1930, the Trades Unions Act
1889, the Travel Agents Act 1987 and the Trustee
Companies Act 1953 and to repeal the Independent Order of
Rechabites (Agreement) Act 1981
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Justice and Related
Legislation (Miscellaneous Amendments) Act
2009.
[Bill 19] 5
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 2 Part 1 - Preliminary
2. Commencement
(1) Except as provided in this section, this Act
commences on the day on which this Act
receives the Royal Assent.
(2) Part 11 is taken to have commenced on
28 April 2008.
6
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 2 - Administration and Probate Act 1935 Amended s. 3
PART 2 - ADMINISTRATION AND PROBATE ACT
1935 AMENDED
3. Principal Act
In this Part, the Administration and Probate Act
1935* is referred to as the Principal Act.
4. Section 54 amended (Power of personal
representative to advertise for claims)
Section 54 of the Principal Act is amended by
inserting after subsection (9) the following
subsection:
(10) Subsections (4) and (8) do not apply to
an estate if the net value of the estate
does not exceed the prescribed amount
for the purpose of section 20A(1) of the
Public Trustee Act 1930.
*No. 38 of 1935
7
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 5 Part 3 - Crime (Confiscation of Profits) Act 1993 Amended
PART 3 - CRIME (CONFISCATION OF PROFITS) ACT
1993 AMENDED
5. Principal Act
In this Part, the Crime (Confiscation of Profits)
Act 1993* is referred to as the Principal Act.
6. Section 27 amended (Grounds for making
restraining orders)
Section 27(7) of the Principal Act is amended by
inserting "Director of Public Prosecutions on
behalf of the" after "if the".
*No. 20 of 1993
8
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 4 - Debtors Act 1870 Amended s. 7
PART 4 - DEBTORS ACT 1870 AMENDED
7. Principal Act
In this Part, the Debtors Act 1870* is referred to
as the Principal Act.
8. Section 21 substituted
Section 21 of the Principal Act is repealed and
the following section is substituted:
21. Warrant of attorney and cognovit actionem
to be signed in presence of Australian legal
practitioner
A warrant of attorney to confess
judgment in a personal action or a
cognovit actionem is invalid unless -
(a) the nature and effect of the
warrant of attorney or cognovit
actionem is, before the person
signs it, explained to the person
by the person's Australian legal
practitioner; and
(b) the person's Australian legal
practitioner is present when the
person signs the warrant of
attorney or cognovit actionem and
*No. 33 of 1870
9
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 8 Part 4 - Debtors Act 1870 Amended
attests, by signing as a witness,
the signature of the person.
10
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 5 - Director of Public Prosecutions Act 1973 Amended s. 9
PART 5 - DIRECTOR OF PUBLIC PROSECUTIONS
ACT 1973 AMENDED
9. Principal Act
In this Part, the Director of Public Prosecutions
Act 1973* is referred to as the Principal Act.
10. Section 17 inserted
After section 16 of the Principal Act, the
following section is inserted:
17. Immunity from personal liability
(1) No personal liability attaches to the
Director or a person assisting the
Director under this Act for an act done or
omitted to be done in good faith in the
performance or exercise, or the purported
performance or exercise, of any function,
power or duty under this Act.
(2) A liability that would, but for
subsection (1), lie against the Director or
a person assisting the Director, lies
instead against the Crown.
*No. 11 of 1973
11
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 11 Part 6 - Fatal Accidents Act 1934 Amended
PART 6 - FATAL ACCIDENTS ACT 1934 AMENDED
11. Principal Act
In this Part, the Fatal Accidents Act 1934* is
referred to as the Principal Act.
12. Section 7 amended (Plaintiff to deliver particulars)
Section 7 of the Principal Act is amended by
omitting "his attorney" and substituting "the
defendant's Australian legal practitioner".
*No. 30 of 1934
12
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 7 - Guardianship and Administration Act 1995 Amended s. 13
PART 7 - GUARDIANSHIP AND ADMINISTRATION
ACT 1995 AMENDED
13. Principal Act
In this Part, the Guardianship and
Administration Act 1995* is referred to as the
Principal Act.
14. Section 34 amended (Revocation or amendment of
appointment by Board)
Section 34 of the Principal Act is amended by
inserting after subsection (1) the following
subsection:
(1A) The Board may, on an application under
this section and after a hearing, declare
that the instrument of appointment of an
enduring guardian is invalid if the Board
is satisfied that -
(a) the donor did not have the mental
capacity to make it; or
(b) it is contrary to the provisions of
this Act; or
(c) the donor was induced to make it
by reason of dishonesty or undue
influence.
*No. 44 of 1995
13
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 15 Part 7 - Guardianship and Administration Act 1995 Amended
15. Section 73A amended (Interim order on
adjournment)
Section 73A of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
(1) If the Board adjourns the hearing of an
application under this Act and it
considers that there may be grounds for
making, in respect of a person, a
guardianship order or administration
order or a further guardianship order or
further administration order then it may -
(a) make an interim order appointing,
as the case may be, the Public
Guardian as the person's guardian
or The Public Trustee as the
administrator of the person's
estate; and
(b) make or give any related orders
or directions it considers
appropriate in the circumstances.
14
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 8 - Hospitals Act 1918 Amended s. 16
PART 8 - HOSPITALS ACT 1918 AMENDED
16. Principal Act
In this Part, the Hospitals Act 1918* is referred
to as the Principal Act.
17. Section 70J amended (Institution of appeals)
Section 70J(4)(c) of the Principal Act is
amended by omitting "counsel, attorney," and
substituting "Australian legal practitioner".
*No. 70 of 1918
15
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 18 Part 9 - Justices Act 1959 Amended
PART 9 - JUSTICES ACT 1959 AMENDED
18. Principal Act
In this Part, the Justices Act 1959* is referred to
as the Principal Act.
19. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended by
inserting after the definition of "interim restraint
order" the following definition:
"lawyer" means an Australian legal
practitioner as defined in section 6 of the
Legal Profession Act 2007;
20. Section 27 amended (Proceedings may be
commenced by complaint)
Section 27(1) of the Principal Act is amended by
omitting "his attorney" and substituting "his or
her lawyer".
*No. 77 of 1959
16
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 9 - Justices Act 1959 Amended s. 21
21. Section 38 amended (Representation of parties by
counsel, &c.)
Section 38 of the Principal Act is amended by
omitting subsections (1), (2) and (3) and
substituting the following subsections:
(1) A complainant may, in person or by the
complainant's lawyer, conduct his or her
case and examine and cross-examine
witnesses.
(2) A defendant must, in person or by the
defendant's lawyer, be admitted to make
his or her full answer and defence to the
complaint and to examine and cross-
examine witnesses.
(3) If the complainant is a public officer, the
complainant may, in person or by the
complainant's lawyer or another public
officer, conduct his or her case and
examine and cross-examine witnesses.
22. Section 47 amended (Place of committal when
defendant on remand)
Section 47(12)(b) of the Principal Act is
amended by omitting "Australian legal
practitioner" and substituting "lawyer".
17
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 23 Part 9 - Justices Act 1959 Amended
23. Section 50B amended (Adjournment of
proceedings)
Section 50B(2) of the Principal Act is amended
by omitting "attorneys" and substituting
"lawyers".
24. Section 55 amended (Procedure when brought
before justices)
Section 55(1) of the Principal Act is amended by
omitting "legal practitioner" and substituting
"lawyer".
25. Section 56 amended (Duties during adjournment)
Section 56 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)(a) "legal
practitioner" and substituting "lawyer";
(b) by omitting from subsection (2)(b) "legal
practitioner" and substituting "lawyer";
(c) by omitting from subsection (3) "legal
practitioner" twice occurring and
substituting "lawyer";
(d) by omitting from subsection (4) "legal
practitioner" twice occurring and
substituting "lawyer".
18
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 9 - Justices Act 1959 Amended s. 26
26. Section 57 amended (Duty to provide further
witness statements and summary of facts)
Section 57(2) of the Principal Act is amended by
omitting "legal practitioner" twice occurring and
substituting "lawyer".
27. Section 61 amended (Proceedings following
preliminary proceedings order by Supreme Court)
Section 61(11)(b)(iii) of the Principal Act is
amended by omitting "legal practitioner" and
substituting "lawyer".
28. Section 106E amended (Procedure in relation to
hearing and determining applications under this
Part)
Section 106E(1A)(b) of the Principal Act is
amended by omitting "an Australian legal
practitioner" and substituting "a lawyer".
29. Section 113A amended (Alternative appeals in
certain cases)
Section 113A of the Principal Act is amended by
omitting subsection (4) and substituting the
following subsection:
(4) The Chief Magistrate is to give -
19
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 30 Part 9 - Justices Act 1959 Amended
(a) the appellant or his or her lawyer;
and
(b) the person concerned in
upholding the order or his or her
lawyer -
14 days' notice of the day on which and
the place at which an appeal under this
section is to be heard.
30. Section 130 amended (Notice of action)
Section 130 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "or her"
after "by him";
(b) by inserting in subsection (1) "or her"
after "of his";
(c) by inserting in subsection (1) "or her"
after "for him";
(d) by inserting in subsection (1) "or her"
after "at his";
(e) by omitting from subsection (1) "his
Australian legal practitioner" and
substituting "his or her lawyer";
(f) by omitting from subsection (3) "his
Australian legal practitioner" and
substituting "his or her lawyer";
20
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 9 - Justices Act 1959 Amended s. 31
(g) by omitting from subsection (3)
"Australian legal practitioner" second
occurring and substituting "lawyer".
31. Section 131 amended (Where action may be
brought)
Section 131(2) of the Principal Act is amended
by omitting "his attorney" and substituting "his
or her lawyer".
32. Section 134 amended (Costs)
Section 134 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(b)
"Australian legal practitioner" and
substituting "lawyer";
(b) by omitting from subsection (2)
"Australian legal practitioner" and
substituting "lawyer".
21
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 33 Part 10 - Mental Health Act 1996 Amended
PART 10 - MENTAL HEALTH ACT 1996 AMENDED
33. Principal Act
In this Part, the Mental Health Act 1996* is
referred to as the Principal Act.
34. Section 26 amended (Initial order for admission)
Section 26 of the Principal Act is amended by
inserting after subsection (4) the following
subsection:
(4A) The approved medical practitioner who
does the examination must not be the
medical practitioner who made the initial
order.
*No. 31 of 1996
22
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 11 - Motor Accidents (Liabilities and Compensation) Act 1973 s. 35
Amended
PART 11 - MOTOR ACCIDENTS (LIABILITIES AND
COMPENSATION) ACT 1973 AMENDED
35. Principal Act
In this Part, the Motor Accidents (Liabilities and
Compensation) Act 1973* is referred to as the
Principal Act.
36. Section 24 amended (Exclusions from scheduled
benefits)
Section 24 of the Principal Act is amended by
inserting after subsection (3) the following
subsection:
(3A) Paragraph (b) of subsection (2) does not
apply in a case where, at the time of the
relevant motor accident -
(a) a driver licence of the person
referred to in that paragraph was
suspended under section 55 of the
Monetary Penalties Enforcement
Act 2005; and
(b) were it not for that suspension,
the person would not have been
driving unlawfully.
*No. 71 of 1973
23
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 37 Part 12 - Parole Orders (Transfer) Act 1983 Amended
PART 12 - PAROLE ORDERS (TRANSFER) ACT 1983
AMENDED
37. Principal Act
In this Part, the Parole Orders (Transfer) Act
1983* is referred to as the Principal Act.
38. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended by
omitting the definition of "Registrar" and
substituting the following definition:
"Registrar" means the secretary of the Parole
Board appointed under section 66 of the
Corrections Act 1997;
39. Section 4 repealed
Section 4 of the Principal Act is repealed.
*No. 67 of 1983
24
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 13 - Public Trustee Act 1930 Amended s. 40
PART 13 - PUBLIC TRUSTEE ACT 1930 AMENDED
40. Principal Act
In this Part, the Public Trustee Act 1930* is
referred to as the Principal Act.
41. Section 36A amended (Dealing with unclaimed
moneys)
Section 36A of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "in
accordance with an order of the Supreme
Court directing them so to be paid" and
substituting "with the approval of the
Public Trustee";
(b) by omitting from subsection (2)
"Consolidated Fund" and substituting
"Public Account";
(c) by omitting subsection (3) and
substituting the following subsection:
(3) If a claim is made for a sum of
money that has been paid into
the Public Account pursuant to
subsection (2), the Treasurer
may, without further
*No. 61 of 1930
25
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 42 Part 13 - Public Trustee Act 1930 Amended
appropriation than this section,
pay that sum to the claimant if
satisfied on the advice of the
Public Trustee that the claim is
valid.
(d) by omitting from subsection (4) "no
application shall" and substituting "no
claim may".
42. Section 65 amended (Power of Public Trustee to
distribute estate when no claims received)
Section 65 of the Principal Act is amended as
follows:
(a) by omitting subsection (1) and
substituting the following subsection:
(1) If the Public Trustee cannot
distribute an estate because a
person entitled to it cannot be
located, then -
(a) in the case of a small
estate, the Public Trustee
may distribute the estate
without regard to the
person entitled to the
estate who cannot be
located; or
(b) in the case of any other
estate, the Public Trustee
26
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 13 - Public Trustee Act 1930 Amended s. 42
must, by advertisement in
a newspaper, call on the
person entitled to the
estate who cannot be
located to identify himself
or herself to the Public
Trustee within the time
specified in the
advertisement.
(b) by omitting from subsection (2)
"subsection (1) does not send his claim"
and substituting "subsection (1)(b) does
not identify himself or herself";
(c) by inserting the following subsection
after subsection (3):
(3A) The Public Trustee has no
liability in respect of a
distribution of a small estate
pursuant to subsection (1)(a) if
the Public Trustee, after making
the distribution, files an affidavit
with the Court stating that no
claimant, other than those to
whom the estate was distributed,
could be located prior to the
distribution.
(d) by inserting the following subsection
after subsection (4):
(5) In this section -
27
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 42 Part 13 - Public Trustee Act 1930 Amended
"estate" includes part of an
estate;
"small estate" means an estate
where the net value does
not, in the estimation of
the Public Trustee, exceed
the prescribed amount for
the purpose of
section 20A(1).
28
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 14 - Trades Unions Act 1889 Amended s. 43
PART 14 - TRADES UNIONS ACT 1889 AMENDED
43. Principal Act
In this Part, the Trades Unions Act 1889* is
referred to as the Principal Act.
44. Section 11 amended (Treasurer, &c., to account)
Section 11(4) of the Principal Act is amended by
omitting "attorney" and substituting "Australian
legal practitioner".
*No. 27 of 1889
29
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 45 Part 15 - Travel Agents Act 1987 Amended
PART 15 - TRAVEL AGENTS ACT 1987 AMENDED
45. Principal Act
In this Part, the Travel Agents Act 1987* is
referred to as the Principal Act.
46. Section 51 amended (Who may take proceedings for
offences)
Section 51(3) of the Principal Act is amended by
omitting "counsel or attorney" and substituting
"Australian legal practitioner".
*No. 111 of 1987
30
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 16 - Trustee Companies Act 1953 Amended s. 47
PART 16 - TRUSTEE COMPANIES ACT 1953
AMENDED
47. Principal Act
In this Part, the Trustee Companies Act 1953* is
referred to as the Principal Act.
48. Section 32 amended (Trustee company to pay
certain unclaimed moneys to Public Trustee)
Section 32 of the Principal Act is amended by
omitting subsection (5) and substituting the
following subsection:
(5) The Public Trustee must not pay over to
any person money that has been paid to
the Public Trustee pursuant to this
section, nor any interest on that money,
unless satisfied that the person is entitled
to that money or interest.
49. Section 35 repealed
Section 35 of the Principal Act is repealed.
*No. 72 of 1953
31
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
s. 50 Part 16 - Trustee Companies Act 1953 Amended
50. Section 37 substituted
Section 37 of the Principal Act is repealed and
the following section is substituted:
37. Unclaimed money to be paid to Treasurer,
&c.
(1) This section applies to money that is paid
to the Public Trustee pursuant to
section 32.
(2) If the money is not claimed within 6
years, the Public Trustee must pay it to
the Treasurer to the credit of the Public
Account.
(3) If any person claims the money within
10 years after it is credited to the Public
Account, the Treasurer, without further
appropriation than this section, may pay
it to the claimant if satisfied on the
advice of the Public Trustee that the
claim is valid.
(4) In this section, a reference to money is to
be read as including a reference to
securities, to interest on money and to a
part of an amount of money.
32
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
Part 17 - Legislation repealed s. 51
PART 17 - LEGISLATION REPEALED
51. Legislation repealed
The legislation specified in Schedule 1 is
repealed.
33
Justice and Related Legislation (Miscellaneous Amendments) Act
2009
Act No. of
sch. 1
SCHEDULE 1 - LEGISLATION REPEALED
Section 51
Independent Order of Rechabites (Agreement) Act 1981 (No. 5
of 1981)
34 Government Printer, Tasmania