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| Madam Speaker, I move the bill be now read a second time. The purpose of this bill is to amend various acts and regulations that fall within the Justice portfolio. The acts amended in this bill include the Criminal Code Act, the Land Title Act, the Public Interest Disclosure Act, the Retirement Villages Act, the Retirement Villages Regulations, the Sale of Lands (Rights and Duties of Partners) Act 2010, the Sentencing Act, and the Unit Titles Act. The Criminal Code is amended to clarify the meaning of section 177, pursuant to amendments made over the past few years. Section 177 of the Criminal Code is the offence of acts intended to cause serious harm or prevent apprehension, and it carries the maximum penalty of life imprisonment. It is clear from this maximum penalty it is a very serious offence. What makes it such a serious offence is it applies when an offender intends to cause a particular result, such as serious harm. The offence of causing serious harm, at section 181 of the Criminal Code, carries a lesser maximum penalty of 14 years imprisonment because a person is guilty of that offence, even though they did not intent to cause the serious harm. Sometimes, it is very difficult to prove an offender intended to cause serious harm. However, if the prosecution charged someone with an offence under section 177, then the offender should not be able to evade just penalty only because the jury is not satisfied beyond reasonable doubt the offender intended to cause the harm. The jury should be able to come to an alternative verdict that the offender is guilty of the offence of causing serious harm. However, the Director of Public Prosecutions has brought to the Territory government’s attention that the current wording in section 177(a) means it does not operate as it is intended. The current wording provides, if the prosecution does not prove any intent to cause serious harm, then the only alternative guilty verdict the jury can come to is that the offender caused harm, even if the injury sustained by the victim amounted to serious harm. The maximum penalty for causing harm is only five years imprisonment. Clause 4 of the bill amends section 177 of the act, where omitting and substituting section 177(a) with a new subsection (a), the purpose of which is to reinstate the previously existing alternative verdict of serious harm to a charge under section 177. Section 44 of the Land Title Act relates to the issuing of certificates as to title. Pursuant to section 44(1) the Registrar-General may only issue such a certificate to the registered owner of the lot of land. Further, pursuant to section 44(2), if the lot is subject to a registered mortgage, the Registrar-General may only issue a certificate if the mortgagee consents to the issue of the certificate. This is interpreted as meaning that, if there is more than one mortgagee, consent must be obtained from all of them before the Registrar-General may issue a certificate under section 44(1). This process can be very inconvenient for lawyers and conveyancing agents responsible for preparing conveyancing documents. It also adds to the cost of a conveyance. Clause 6 of the bill amends clause 44 of the act by omitting and substituting sections 44(1) and (2) with new subsections (1) and (2). The new subsection (1) will allow legal practitioners, as defined in the Interpretation Act, and licensed conveyancing agents acting for owners of land to sign applications for the issuing of the certificate containing the indefeasible title for a lot. Pursuant to the new subsection (2), where there are two or more mortgages over a lot, the Registrar-General will only require the consent of the first registered mortgagee in order to issue a certificate under subsection (1). Since the Public Interest Disclosure Act commenced on 31 July 2009, a number of issues have been identified which require amendment. Pursuant to section 53 of the act, there are strict requirements of confidentiality that may operate to prevent any disclosure of confidential and identifying information by persons acting in an official capacity. However, those requirements do not extend to persons who are not acting in an official capacity, for example, persons interviewed in connection with a disclosure. Thus, there is nothing to prevent such persons from disclosing information that may have come to their knowledge during the course of an interview, or from the fact that they were interviewed. This can destroy the efforts of the commissioner to maintain confidentiality and protect a disclosures identity. Clause 9 of the bill amends the act by omitting the words ‘other than identifying information from section 53(2)(a) and (b)’. This will allow for a disclosure of confidential information including identifying information to be communicated, provided it is necessary for exercising a power or performing a function under the act, including for a report or a recommendation. An example would be a chief executive creating a file. The current act does not provide for the disclosure of confidential information by the relevant chief executive in circumstances of emergency. Instead, the relevant chief executive must seek approval from either the Commissioner for Public Interest Disclosures or the discloser prior to taking any action. So, for example, if the relevant chief executive of an agency receives a disclosure that employee X is stealing drugs, it is arguably an offence to contact the police or to take immediate disciplinary action against the employee if to do so would reveal the content of the disclosure. Clause 10 of the bill amends the Public Interest Disclosure Act so that it is not an offence for a person to disclose confidential information if the disclosure is made in response to circumstances of sudden or extraordinary emergency. There are a number of criteria that must be met in order for this protection to operate. These are that the person disclosed in the information must reasonably believe that the circumstances of the emergency exist and that disclosure is the only reasonable way of dealing with this emergency. There are requirements for making a disclosure. The discloser must notify the Commissioner for Public Interest Disclosures within 48 hours of making the disclosure and, in that notification, must set out the reasons why the disclosure was appropriate. Pursuant to section 46 of the act, the Commissioner for Public Interest Disclosures may delegate any of the functions or powers conferred on him or her under the act. However, legal advice from the Solicitor for the Northern Territory suggests that no such power of delegation exists with respect to the relevant chief executive. As a result, the chief executives must, arguably, personally undertake all administrative tasks that relate to public interest disclosures that are made to them. This includes the typing of documents, the opening of files, photocopying, etcetera. This is contrary to the policy position when the legislation was introduced. Clause 11 of the bill inserts a new section 54A into the act which provides that responsible chief executives for a body or public office can delegate any of his or her powers or functions. The delegation power relates to the following powers and functions under the Public Interest Disclosure Act: · receive disclosures under section 11; · refer disclosures to commissioner under section 12; · receive and decide request for relocation under sections 18 and 19; · receive notice from the commissioner of intention to investigate under section 24; · make arrangements with commissioner regarding staff to assist the commissioner under section 29; · opportunity to comment on adverse reports under section 30; and, · receive report of findings from investigation and respond to recommendations for action under section 31 and 32. Clause 10 of the bill also inserts a new section 53B into the act, which provides that the Commissioner for Public Interest Disclosures may, in certain circumstances, direct that a person not disclose confidential or identifying information. The final amendment to the Public Interest Disclosure Act by this bill is to section 5 of the act. That section outlines what constitutes improper conduct. At present, pursuant to subsection 1A(4) a breach of public trust may constitute improper conduct. The placement of the letter ‘a’ between the words ‘of’ and ‘public’ tends to suggest the type of trust being referred to is a financial one. This was not the intent of the legislation. The type of trust that section refers to is the trust of the public. To remove any doubt as to the type of trust referred to in that section, Section 8 of the bill omits the words ‘a public trust’ and substitutes them with the words ‘public trust’. Section 36 of the Retirement Villages Act provides for land intended to be retirement village for a notation to that effect to be registered on the title. However, there is nothing in that act or in the Land Title Act that provides for the removal of the notation and circumstances where all concerned agree that the land is not, or is not going to be, or is not to remain, as a retirement village. Clause 13 amends the act by inserting new Section 36A which establishes a process for the removal of restriction notices concerning retirement villages from the land titles register. Clause 15 of the bill amends the Sale of Land Rights and Duties to Parties Act to provide that the act is not applied to contracts or proposed contracts for the sale of land if the buyer is a related person by virtual of a de facto relationship. This exemption already exists in relation to spouses. This corrects an anomaly in the Sale of Land Rights and Duties to Parties Act 2010 and removes, prior to the commencement of that act, and inadvertent distinction between married persons and persons in a de facto relationship. The Sentencing Act is amended to rectify a drafting oversight which affects the operation of Section 78B(a) mandatory imprisonment for certain violent offences. Section 78B(a) of the act provides that where an offender commits an offence to which that section applies, if found guilty, the court must record a conviction and must order the offender serve either a term of actual imprisonment or a term of imprisonment that is partly, but not wholly, suspended. The offences to which the section applies are a number of violent offences which are listed in Schedule 2 of the act. Item 2 of Schedule 2 purports to include an offence against Section 188 of the Criminal Code - common assault and aggravated assault. However, at present, Item 2 of the schedule of the Sentencing Act reads: ‘An offence Section 188 of the Criminal Code’. It should read: ‘An offence against Section 188 of the Criminal Code. The result of this is been that a magistrate formed a view that they can not invoke the power of Section 78BA of the Sentencing Act. While the Department of Justice does not necessarily accept that this view of the law is correct, it is patent that there is a practical need to both correct the grammar as well as clarify the meaning. The schedule to the bill amends Item 2 of Schedule 2 of the Sentencing Act o ensure that Section 78BA of the Sentencing Act may operate in respect of an offence under Section 188 of the Criminal Code. Madam Speaker, the Unit Titles Act is amended so that it is clear that applications under Section 10 for the subdivision of a parcel of land can no longer be made under the act for new developments. This is because the Unit Titles Schemes Act applies to all new subdivisions of land into units, except where the lands being subdivided are already a unit or lot that is subject to a title under the Unit Titles Act. Clauses 19 and 42 of Schedule 2 of the Retirement Villages Regulations are amended to include references to Unit Titles Schemes Act. This corrects an error in Section 185 of the Unit Titles Schemes Act 2009 which referred to ‘residential tenancies regulations’ when it should of referred to the Retirement Villages Act. Accordingly, Section 185 has a nullity having no substandard effect. The amendments contain in this bill do not in any way alter the policy or intention of this legislation but, rather, improves this legislation by providing certainty to previously ambiguous provisions to ensure clarity and consistency with other legislation. I commend the bill to honourable members, and I table a copy of the explanatory statements. Debate adjourned. |