Justice and Related Legislation (Miscellaneous Amendments) Act 2012

Justice and Related Legislation (Miscellaneous Amendments) Act 2012

An Act to amend various Acts and revoke certain proclamations and orders

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 2012 .

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 21 commences on a day to be proclaimed.

PART 2 - Appeal Costs Fund Act 1968 Amended

3.   Principal Act

In this Part, the Appeal Costs Fund Act 1968 is referred to as the Principal Act.

4.    Section 2 amended (Interpretation)

Section 2 of the Principal Act is amended as follows:

(a) by omitting "a court of requests" from the definition of judicial officer and substituting "the Magistrates Court (Civil Division)";

(b) by omitting "a court of requests" from paragraph (b) of the definition of proper officer and substituting "the Magistrates Court (Civil Division)".

5.    Section 5 amended (Additional fee to be paid in certain cases)

Section 5(1) of the Principal Act is amended by omitting "a court of requests" and substituting "the Magistrates Court (Civil Division)".

6.    Section 5A amended (Annual statement by Registrar of Workers Rehabilitation and Compensation Tribunal)

Section 5A(3) of the Principal Act is amended by omitting "a court of requests" and substituting "the Magistrates Court (Civil Division)".

PART 3 - Bail Act 1994 Amended

7.   Principal Act

In this Part, the Bail Act 1994 is referred to as the Principal Act.

8.    Section 7 amended (Conditions to which bail is subject)

Section 7(3A) of the Principal Act is amended by omitting "that later date" and substituting "the last date so advised".

PART 4 - Building and Construction Industry Security of Payment Act 2009 Amended

9.   Principal Act

In this Part, the Building and Construction Industry Security of Payment Act 2009 is referred to as the Principal Act.

10.    Section 4A inserted

After section 4 of the Principal Act , the following section is inserted in Part 1:

4A.   Interpretation of business day

(1)  In this Act, unless the contrary intention appears –

business day means any day other than –

(a) a Saturday or Sunday; or

(b) a day specified in section 4 of the Statutory Holidays Act 2000 ; or

(c) a day specified in Part 1 of Schedule 1 to the Statutory Holidays Act 2000 ; or

(d) a day specified in Part 1 or 2 of Schedule 2 to the Statutory Holidays Act 2000 ; or

(e) the 27th, 28th, 29th, 30th or 31st of December.

(2)  For the purposes of the definition of business day in subsection (1) , a day referred to in that definition is a holiday for all of the day and in the whole of the State.

11.    Section 19 amended (Consequences of failing to provide payment schedule within relevant period)

Section 19(2) of the Principal Act is amended by inserting "or, in a case to which subsection (3)(a) applies, later" after "earlier".

12.    Section 20 amended (Consequences of not paying claimant in accordance with payment schedule)

Section 20(1)(b) of the Principal Act is amended by inserting "or, in a case to which section 19(3)(a) applies, later" after "earlier".

PART 5 - Business Names Act 1962 Amended

13.   Principal Act

In this Part, the Business Names Act 1962 is referred to as the Principal Act.

14.    Section 14 amended (Disability of persons in default)

Section 14(2)(b) of the Principal Act is amended as follows:

(a) by omitting "a court of requests" and substituting "the Magistrates Court (Civil Division)";

(b) by omitting "commissioner of courts of requests" and substituting "magistrate".

PART 6 - Civil Liability Act 2002 Amended

15.   Principal Act

In this Part, the Civil Liability Act 2002 is referred to as the Principal Act.

16.    Section 4 amended (Application of Act)

Section 4 of the Principal Act is amended by inserting after subsection (5) the following subsection:

(6)  Part 10B applies to a cause of action accrued after the commencement of that Part .

17.    Section 26 amended (Damages for loss of earning capacity)

Section 26(1) of the Principal Act is amended by inserting "or where a claim for damages is made pursuant to the Fatal Accidents Act 1934 " after "capacity".

18.    Part 10B inserted

After section 49A of the Principal Act , the following Part is inserted:

PART 10B - Rights between employer and employee

49B.   Employee not liable where employer also liable

(1)  If an employee commits a tort for which his or her employer is also liable –

(a) the employee is not liable to indemnify, or to pay any contribution to, the employer in respect of the liability incurred by the employer; and

(b) the employer is liable to indemnify the employee in respect of liability incurred by the employee for the tort (unless the employee is otherwise entitled to an indemnity in respect of that liability).

(2)  Contribution under this section includes contribution as joint tortfeasor or otherwise.

(3)  This section does not apply to a tort committed by an employee if the conduct constituting the tort –

(a) was serious and wilful misconduct; or

(b) did not occur in the course of, and did not arise out of, the employment of the employee.

PART 7 - Consumer Affairs Act 1988 Amended

19.   Principal Act

In this Part, the Consumer Affairs Act 1988 is referred to as the Principal Act.

20.    Section 22 amended (Preservation of secrecy)

Section 22(2) of the Principal Act is amended by omitting "Small Claims Division of the Court of Requests" and substituting "Magistrates Court (Civil Division)".

PART 8 - Corrections Act 1997 Amended

21.   Principal Act

In this Part, the Corrections Act 1997 is referred to as the Principal Act.

22.    Section 87A amended (Eligible persons register)

Section 87A of the Principal Act is amended as follows:

(a) by omitting subsection (1) and substituting the following subsection:

(1)  The Secretary must keep a register of persons who are eligible to receive information, under section 87B , about a prisoner who has been sentenced to a period of imprisonment for a violent offence or a sexual offence or about an adult forensic patient, within the meaning of the Mental Health Act 1996 , who is subject to –

(a) a restriction order; or

(b) a supervision order if the forensic patient has been apprehended under section 31 of the Criminal Justice (Mental Impairment) Act 1999  –

in respect of a violent offence or a sexual offence.

(b) by inserting in subsection (2)(c)(i) "or forensic patient" after "prisoner";

(c) by inserting in subsection (2)(c)(ii) "or the making of the restriction order or supervision order" after "imprisonment".

23.    Section 87B amended (Releasing information)

Section 87B(1) of the Principal Act is amended as follows:

(a) by inserting "or forensic patient" after "a prisoner";

(b) by inserting "or forensic patient" after "of the prisoner";

(c) by inserting in paragraph (a) "or forensic patient's" after "prisoner's";

(d) by inserting in paragraph (b) "or forensic patient's" after "prisoner's";

(e) by inserting in paragraph (c) "or forensic patient's" after "prisoner's";

(f) by inserting in paragraph (d) "or forensic patient's" after "prisoner's";

(g) by inserting in paragraph (e) "or forensic patient's" after "prisoner's";

(h) by inserting in paragraph (f) "or forensic patient's" after "prisoner's";

(i) by inserting in paragraph (g) "or forensic patient" after "prisoner".

PART 9 - Criminal Justice (Mental Impairment) Act 1999 Amended

24.   Principal Act

In this Part, the Criminal Justice (Mental Impairment) Act 1999 is referred to as the Principal Act.

25.    Section 10 amended (Reservation of question of fitness to stand trial)

Section 10(2) of the Principal Act is amended as follows:

(a) by omitting "a hearing for committal to stand trial" and substituting "preliminary proceedings";

(b) by omitting "committal hearing is" and substituting "proceedings are".

PART 10 - Evidence (Audio and Audio Visual Links) Act 1999 Amended

26.   Principal Act

In this Part, the Evidence (Audio and Audio Visual Links) Act 1999 is referred to as the Principal Act.

27.    Section 4 amended (Application of Act)

Section 4 of the Principal Act is amended by inserting after subsection (3) the following subsection:

(4)  This Act, as amended by the Justice and Related Legislation (Miscellaneous Amendments) Act 2012 , extends to any proceeding pending in a Tasmanian court on the commencement of this subsection.

28.    Section 6 amended (Tasmanian courts may take evidence and submissions by audio link or audio visual link)

Section 6 of the Principal Act is amended as follows:

(a) by inserting in subsection (1) ", from any place outside Australia other than New Zealand," after "State";

(b) by omitting from subsection (3) "The" and substituting "Where evidence is given from a participating State, the".

29.    Sections 10C and 10D inserted

After section 10B of the Principal Act , the following sections are inserted in Part 2:

10C.   Premises to be considered part of court

(1)  Any place within Tasmania or outside Australia at which audio link or audio visual link facilities are being used for the purpose of a person giving evidence or making a submission in any proceeding is taken to be part of the Tasmanian court that is sitting at a courtroom or other place for the purpose of conducting the proceeding.

(2)  Subsection (1) has effect, for example, for the purposes of the laws relating to evidence, procedure, contempt of court or perjury.

(3)  Subsection (1) also has the effect that any offence committed at the place where the person giving the evidence or making the submission is located is to be taken to have been committed at the courtroom or other place where the court is sitting for the purposes of the laws in force in Tasmania.

10D.   Administration of oaths and affirmations

(1)  Subject to subsection (2) , an oath to be sworn or affirmation to be made by a person giving evidence by audio link or audio visual link within Tasmania or outside Australia may be administered either –

(a) by means of the audio link or audio visual link, as nearly as practicable in the same way as if the person were to give evidence in the courtroom or other place where the Tasmanian court is sitting; or

(b) at the direction of, or on behalf of, the court at the place where the person is giving the evidence by a person authorised by the court.

(2)  A person giving evidence by audio link or audio visual link from a place outside Australia is not required to give the evidence on oath or affirmation if –

(a) the law in force in that country –

(i) does not permit the person to give evidence on oath or affirmation for the purposes of the proceeding; or

(ii) would make it inconvenient for the person to give evidence on oath or affirmation for the purposes of the proceeding; and

(b) the Tasmanian court is satisfied that it is appropriate for the evidence to be given otherwise than on oath or affirmation.

(3)  If evidence is given otherwise than on oath or affirmation, the Tasmanian court is to give the evidence such weight as it thinks fit in the circumstances.

(4)  Subsections (2) and (3) apply despite anything to the contrary in the Evidence Act 2001 or any other law of this State.

PART 11 - Integrity Commission Act 2009 Amended

30.   Principal Act

In this Part, the Integrity Commission Act 2009 is referred to as the Principal Act.

31.    Section 5 amended (Public authorities)

Section 5(1) of the Principal Act is amended by inserting after paragraph (i) the following paragraph:

(ia) the University of Tasmania;

32.    Section 11 amended (Annual and other reports)

Section 11(1) of the Principal Act is amended as follows:

(a) by omitting "as soon as practicable after 31 October in each year" and substituting "on or before 31 October or such other date as may be prescribed";

(b) by omitting "that date" and substituting "the last preceding 30 June".

33.    Section 62 amended (Constitution of Integrity Tribunal)

Section 62(1)(b) of the Principal Act is amended by omitting "members of the Board referred to in section 14(1)(e) , (f) or (g) and such other persons (if any)" and substituting "other persons".

PART 12 - Juries Act 2003 Amended

34.   Principal Act

In this Part, the Juries Act 2003 is referred to as the Principal Act.

35.    Section 39 amended (Information for jury)

Section 39 of the Principal Act is amended by omitting subsection (3) and substituting the following subsection:

(3)  The court may excuse a juror from jury service for the trial if –

(a) the court suspects on reasonable grounds that the juror may not be able to consider the case impartially; or

(b) the court is satisfied that the person is unable to perform jury service for any other reason.

36.    Section 40 amended (Discharge of juror by court)

Section 40 of the Principal Act is amended by omitting paragraph (a) and substituting the following paragraph:

(a) the court suspects on reasonable grounds that the juror may not be able to consider the case impartially; or

37.    Section 41 amended (Discharge of jury without verdict)

Section 41(1) of the Principal Act is amended by omitting "in an emergency,".

PART 13 - Landlord and Tenant Act 1935 Amended

38.   Principal Act

In this Part, the Landlord and Tenant Act 1935 is referred to as the Principal Act.

39.    Section 51 amended (Power of registrars of Magistrates Court (Civil Division) to make replevin and deliverance)

Section 51(1) of the Principal Act is amended by omitting "any court of requests" and substituting "the Magistrates Court (Civil Division)".

40.    Section 53 amended (Sale of distress by public auction)

Section 53(4) of the Principal Act is amended by omitting "a court of requests" and substituting "the Magistrates Court (Civil Division)".

PART 14 - Legal Profession Act 2007 Amended

41.   Principal Act

In this Part, the Legal Profession Act 2007 is referred to as the Principal Act.

42.    Section 607 amended (Secretary of Board of Legal Education)

Section 607 of the Principal Act is amended by omitting "Subject to and in accordance with the State Service Act 2000 , a" and substituting "A".

PART 15 - Married Women's Property Act 1935 Amended

43.   Principal Act

In this Part, the Married Women's Property Act 1935 is referred to as the Principal Act.

44.    Section 7A amended (Actions in tort between husband and wife)

Section 7A(3) of the Principal Act is amended by omitting "a court of requests" and substituting "the Magistrates Court (Civil Division)".

45.    Section 10 amended (Money spent within two years by husband in improving wife's land, &c.)

Section 10(3) of the Principal Act is amended by omitting "a court of requests" and substituting "the Magistrates Court (Civil Division)".

46.    Section 10A amended (Removal of matters from Magistrates Court (Civil Division) to Supreme Court)

Section 10A(1) of the Principal Act is amended as follows:

(a) by omitting from paragraph (a) "a court of requests" and substituting "the Magistrates Court (Civil Division)";

(b) by omitting "appropriate court of requests" and substituting "Magistrates Court (Civil Division)".

PART 16 - Monetary Penalties Enforcement Act 2005 Amended

47.   Principal Act

In this Part, the Monetary Penalties Enforcement Act 2005 is referred to as the Principal Act.

48.    Section 3 amended (Interpretation)

Section 3 of the Principal Act is amended by omitting the definition of fine and substituting the following definition:

fine means the sum of money payable by an offender under an order –

(a) of a court made on the offender being convicted of an offence and includes –

(i) a sum of money payable as costs; and

(ii) a sum of money payable under a compensation order made by the Magistrates Court; and

(iii) a sum of money payable under a compensation levy under the Victims of Crime Compensation Act 1994 ; and

(iv) a sum of money payable under a pecuniary penalty order made under the Crime (Confiscation of Profits) Act 1993  –

but does not include a restitution order; or

(b) made by a Criminal Injuries Compensation Commissioner under section 7A of the Victims of Crime Assistance Act 1976 ;

PART 17 - Police Powers (Controlled Operations) Act 2006 Amended

49.   Principal Act

In this Part, the Police Powers (Controlled Operations) Act 2006 is referred to as the Principal Act.

50.    Section 32 amended (Inspection of records by inspection entity)

Section 32(4) of the Principal Act is amended by omitting "31 July in each year" and substituting "3 months after the end of each financial year".

PART 18 - Police Powers (Surveillance Devices) Act 2006 Amended

51.   Principal Act

In this Part, the Police Powers (Surveillance Devices) Act 2006 is referred to as the Principal Act.

52.    Section 42 amended (Report on inspection)

Section 42(1) of the Principal Act is amended by omitting "31 July in each year" and substituting "3 months after the end of each financial year".

PART 19 - Public Interest Disclosures Act 2002 Amended

53.   Principal Act

In this Part, the Public Interest Disclosures Act 2002 is referred to as the Principal Act.

54.    Section 4 amended (Public bodies and officers)

Section 4(1) of the Principal Act is amended by inserting after paragraph (g) the following paragraph:

(ga) the University of Tasmania;

PART 20 - Right to Information Act 2009 Amended

55.   Principal Act

In this Part, the Right to Information Act 2009 is referred to as the Principal Act.

56.    Section 5 amended (Interpretation)

Section 5(1) of the Principal Act is amended by inserting after paragraph (a) in the definition of public authority the following paragraph:

(ab) the University of Tasmania; or

PART 21 - Supreme Court Civil Procedure Act 1932 Amended

57.   Principal Act

In this Part, the Supreme Court Civil Procedure Act 1932 is referred to as the Principal Act.

58.    Section 186 amended (Establishment of district registries)

Section 186(1) of the Principal Act is amended by omitting "any Court of Requests" and substituting "the Magistrates Court (Civil Division)".

59.    Section 191A repealed

Section 191A of the Principal Act is repealed.

60.    Section 191B amended (Effect of, and appeal from, orders of the Associate Judge)

Section 191B of the Principal Act is amended by omitting subsection (2) and substituting the following subsection:

(2)  A party affected by an order or decision of the Associate Judge may, within such time as is prescribed by the Rules of Court and subject to any conditions so prescribed, appeal –

(a) from an interlocutory order or decision, to a judge sitting in chambers or in court; or

(b) from any other judgment, order or decision, to the Full Court.

61.    Section 197 amended (Power of judges to make Rules of Court)

Section 197(1) of the Principal Act is amended as follows:

(a) by omitting from paragraph (f) "determination and hearing" and substituting "hearing and determination";

(b) by inserting the following paragraph after paragraph (g) :

(ga) Specifying, for the purposes of section 191B , which orders and decisions of the Associate Judge are to be regarded as interlocutory and which are not to be so regarded;

PART 22 - Victims of Crime Assistance Act 1976 Amended

62.   Principal Act

In this Part, the Victims of Crime Assistance Act 1976 is referred to as the Principal Act.

63.    Section 7A amended (Recovery from offender)

Section 7A of the Principal Act is amended as follows:

(a) by omitting from subsection (2) "shall make an" and substituting "is to make a provisional";

(b) by omitting subsections (3) and (4) and substituting the following subsections:

(3)  The Commissioner must serve notice of a provisional order on the offender.

(4)  An offender may, within 28 days after being served with notice of a provisional order, object to the order by sending a notice of objection to the address provided.

(4A)  If the offender does not send a notice of objection, the provisional order is to be confirmed by the Commissioner.

(4B)  Notice of a provisional order is to –

(a) set out the terms of the order; and

(b) specify the date on which the award of compensation was made and the facts on which the award was based; and

(c) specify the crime to which the order relates; and

(d) state that the offender has 28 days in which to object to the order; and

(e) state that, if the offender does not object within the time stated, the order will be confirmed by the Commissioner and will become a fine payable under the Monetary Penalties Enforcement Act 2005 ; and

(f) state that, if the offender sends a notice of objection to the address provided within 28 days, the Commissioner will hear the offender as to why the order should not be confirmed; and

(g) contain any other particulars that may be prescribed by regulation.

(4C)  A notice of objection must be in writing and must include a statement of the grounds of objection on which the defendant intends to rely.

(4D)  The Commissioner may confirm a provisional order without hearing the offender if satisfied that the offender has not sent a notice of objection within 28 days after notice of the provisional order was duly served on the defendant.

(4E)  If the offender files a notice of objection, the Commissioner must hear the offender before deciding whether the provisional order should be confirmed, varied or revoked.

(4F)  The Commissioner may confirm or vary a provisional order if satisfied that the offender has been convicted of an offence in respect of the criminal conduct which led to an application for the award of compensation being made.

(4G)  If the Commissioner confirms or varies a provisional order under this section, the order becomes a fine payable under the Monetary Penalties Enforcement Act 2005 .

(4H)  The Commissioner may, when varying a provisional order, reduce the amount to be paid under the order having regard to –

(a) the financial means of the offender; and

(b) any other matters that the Commissioner considers to be relevant.

(4I)  The Commissioner must revoke a provisional order if he or she is not satisfied that the offender has been convicted of an offence in respect of the criminal conduct which led to an application for the award of compensation being made.

(4J)  The Commissioner is to provide a sealed copy of a confirmed or varied order by electronic means to the Director, Monetary Penalties Enforcement Service.

(4K)  A sealed copy of a confirmed or varied order provided under subsection (4J) is to include the following:

(a) the offender's full name and date of birth;

(b) the offender's residential or postal address;

(c) the amount of the order;

(d) the date the order takes effect.

(c) by omitting from subsection (5) "pursuant to a judgment entered in accordance with subsection (3) shall" and substituting "under this section is to".

PART 23 - Legislation Revoked

64.   Legislation revoked

The legislation specified in Schedule 1 is revoked.

PART 24 - Repeal of Act

65.   Repeal of Act

This Act is repealed on the ninetieth day from the day on which all of the provisions of this Act commence.

SCHEDULE 1 - Legislation revoked

Section 3

[Second reading presentation speech made in:

House of Assembly on 17 APRIL 2012

Legislative Council on 16 MAY 2012]