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Justice and Other Legislation Amendment Bill 2014
Justice and Other Legislation Amendment Bill 2014
Explanatory Notes
Short title
The short title of the Bill is the Justice and Other Legislation Amendment Bill 2014.
Policy objectives and the reasons for them
The objective of the Bill is to make miscellaneous amendments to over 30 Acts
administered by the Attorney-General and Minister for Justice, including to:
strengthen penalties and sentences for certain offenders and streamline certain
processes in criminal hearings;
advance the Government's red tape reduction, public sector renewal and reducing
the regulatory burden agendas;
strengthen and improve provisions concerning the administration of coronial and
civil proceedings in the courts;
support the effective administration of justice by ensuring public confidence in the
authority of court orders;
support the effective operation of births, deaths and marriages registration in
Queensland and the transition to a modern digitised registration service;
strengthen the legal profession regulatory regime;
simplify and clarify the requirements for delegation of the administration of a trust;
amend Queensland laws so that they continue to complement uniform or model
Commonwealth laws;
provide greater certainty in property transactions;
strengthen protections for victims of crime; and
make other technical, clarifying, and minor amendments.
The Bill also amends the Tourism and Events Queensland Act 2012, an Act
administered by the Minister for Tourism, Major Events, Small Business and the
Commonwealth Games. The amendment reflects the decision that the Tourism and
Events Queensland Employing Office is no longer a national system employer.
Achievement of policy objectives
The Bill achieves the objectives by providing for amendments to the:
Aboriginal and Torres Strait Islander Communities (Justice, Land and Other
Matters) Act 1984 to simplify the process for appointing and revoking the
appointment of community justice group members for particular places;
Acts Interpretation Act 1954 to provide that approved forms can be notified by
publication on a local government website in the case of local government, and a
Queensland Government website for all other entities, instead of in the government
gazette;
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Justice and Other Legislation Amendment Bill 2014
Appeal Costs Fund Act 1973 to omit redundant provisions relating to the
administration of the fund, and clarify the circumstances in which a person is
entitled to payment from the fund because a new trial is ordered;
Births, Deaths and Marriages Registration Act 2003 to: strengthen provisions for
electronic lodgement by requiring birth notifications by hospitals and death
registration applications by funeral directors to be lodged electronically with limited
exceptions; clarify the ability of individuals and entities to apply for information
electronically and for the information to be provided electronically; and ensure
digitised source documents have the same legal status as original paper versions;
Civil Liability Act 2003 to broaden the exclusion from civil liability where a person
suffers harm while committing an indictable offence;
Civil Proceedings Act 2011 to introduce a comprehensive statutory regime to
facilitate the effective conduct and management of representative proceedings
(commonly called "class actions") in Queensland;
Coroners Act 2003 to limit the operation of section 29 to indictable offences so as
to make it explicitly clear when a coroner must not commence or must adjourn a
coronial inquest;
Corrective Services Act 2006 to introduce a new offence that prohibits prisoners
from sending inappropriate and unwanted correspondence to victims;
Criminal Code to increase the maximum penalty for the offence of misconduct with
regard to corpses (section 236) from two years imprisonment to five years
imprisonment;
Criminal Proceeds Confiscation Act 2002 to:
o ensure that dealings with property that breach Supreme Court orders made
under the Criminal Proceeds Confiscation Act 2002 are voided and penalised
appropriately; and
o make minor amendments to existing provisions in the Criminal Proceeds
Confiscation Act 2002 that support the Act's main objective of removing the
financial gain and increasing the financial loss associated with illegal
activity;
Drugs Misuse Act 1986 to update the evidentiary provision providing for drug
analysts' certificates, to reflect current scientific and operational practices of
analysis and remove any uncertainty about the admissibility of certificates issued
under the section;
Drugs Misuse Act 1986 and the Penalties and Sentences Act 1992 to provide that
when sentencing an offender for the offence of supplying a dangerous drug where
the drug use results in death, the court must treat that death as an aggravating factor
when determining the penalty;
Electoral Act 1992 to make the process for applying for electoral visitor voting
simpler, and more consistent with the process for applying for a postal vote;
Evidence Act 1977 to provide that a DNA analyst is required to attend a hearing
when a section 95A DNA analyst certificate is being relied on at the hearing, if
another party requires the analyst's attendance; and to clarify the application of
section 95A to committal proceedings;
Justices Act 1886 and the Criminal Code to allow a legally represented defendant
to enter a plea, in the Magistrates Court, for a number of charges at the same time
without each charge being read separately to them;
Legal Profession Act 2007 to: provide that liquidation or another form of external
administration is a show cause event and suitability matter for incorporated legal
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Justice and Other Legislation Amendment Bill 2014
practitioner directors; make minor amendments to reflect changes as a result of the
implementation of recommendations resulting from the Review of the allocation of
funds from the Legal Practitioner Interest on Trust Accounts Fund; and clarify that
employees or appointees in public service offices are government legal officers for
the purposes of the Act;
Magistrates Court Act 1921 so that the chief executive has the power to appoint a
bailiff and to provide that the functions of a bailiff may only be performed by a
person appointed as a bailiff;
Penalties and Sentences Act 1992 to also allow the Police Commissioner to issue
presentence custody certificates under section 159A; and also to provide under
section 15B that a person who is convicted of a minor drug offence in a Magistrates
Court can attend a group drug assessment and education session rather than a one-
on-one session;
Professional Standards Act 2004 to replace references in the Act to `gazettal' with
references to `notification' as a consequence of subordinate legislation no longer
being notified in the gazette;
Property Law Act 1974 to prohibit statutory instruments (other than prescribed
subordinate legislation) from rendering void, unenforceable or subject to
termination, contracts or dealings concerning property that are made, entered into
or effected contrary to the statutory instrument;
Public Guardian Act 2014 to clarify the definition of `relevant child';
Queensland Civil and Administrative Tribunal Act 2009 to reduce red tape by
streamlining the process for enforcing a final decision of the tribunal in a court;
Recording of Evidence Act 1962 to permit the destruction of recordings of
Magistrates Court proceedings that are authorised by the archivist under the Public
Records Act 2002;
Referendums Act 1997 to align requirements and processes to facilitate
electronically assisted voting, postal voting, and proof of identity to vote in a State
election with processes under the Electoral Act;
Supreme Court Library Act 1968 to provide protection from civil liability for
members of the Supreme Court Library Committee for acts done, or omissions
made in good faith under the Act;
Telecommunication Interception Act 2009 to ensure consistency with provisions in
relevant Commonwealth legislation;
Tourism and Events Queensland Act 2012 to remove obsolete provisions of the Act
relating to the Tourism and Events Queensland Employing Office;
Trusts Act 1973 to achieve consistency with the Powers of Attorney Act 1998 by
removing the requirement that the delegation of the administration of a trust is to
be made by power of attorney executed as a deed; and
Vexatious Proceedings Act 2005 to allow applications by vexatious litigants for
leave to institute a proceeding to be dismissed by the Supreme Court without an
oral hearing.
The Bill also makes other minor and technical amendments, including repeal of
redundant laws.
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Justice and Other Legislation Amendment Bill 2014
Alternative ways of achieving policy objectives
No other options were considered as legislative amendment is the only way to achieve
the outcome.
Estimated cost for government implementation
The proposed amendments have no direct financial implications. Should any additional
costs be incurred, they will be met from existing agency resources.
Consistency with fundamental legislative principles
The Bill is generally consistent with fundamental legislative principles. Potential
breaches of fundamental legislative principles are addressed below.
Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters)
Act 1984
The new arrangements for appointment and revocation of appointment of members of
community justice groups to be inserted as sections 20(1A) and 20(4A) of the
Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters)
Act 1984 potentially are inconsistent with the fundamental legislative principle that
requires that legislation give due regard to the rights of individuals due to the
mechanism by which appointments and the revocation of appointments are to be
publicly notified. Consistent with these new provisions, the Minister must publish
notice of an appointment or revocation on the Queensland Courts website which is
defined in section 20(5) as `' or `another website authorised
by the chief executive for this section'.
While it is important that the information to be published on the website is publicly
available and accessible, the proposed arrangements are justified on the basis of
ensuring that any potential future changes to the listed URL address can be
accommodated under the Act by enabling the chief executive to authorise publication
on another website authorised for this purpose. If publication is to be on a website other
than the current Queensland Courts website as authorised by the chief executive, an
automatic redirection to the new URL will be arranged to ensure continued public
access to this information. Community justice groups and other community
stakeholders will also be made aware of these changes.
Acts Interpretation Act 1954
The amendments to section 48 of the Acts Interpretation Act 1954 to provide that
approved forms can be notified by publication on a local government website in the
case of local government, and a Queensland Government website for all other entities,
instead of in the government gazette, are arguably inconsistent with the fundamental
legislative principle that requires that legislation give due regard to the rights of
individuals, on account of the amended mechanism by which new or amended forms
are notified.
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Justice and Other Legislation Amendment Bill 2014
The new method of notification may arguably affect accessibility to historical
information about relevant notifications. However, any potential inconsistency with
this fundamental legislative principle needs to be balanced against the benefits of the
amendments, which ensure that individuals are able to easily access notice of new and
amended approved forms and the date on which new and amended approved forms take
effect. Appropriate standards for keeping historical information about versions of
approved forms and notifications can be addressed administratively.
The new section 48(9) of the Act provides for a delegation of legislative power, in that,
it provides for a website for the purpose of the definition of `whole-of-government
website' to be prescribed by regulation. It is appropriate that any relevant website be
able to be prescribed by regulation, as the relevant website address may need to change
from time to time. Any concerns regarding this delegation of legislative power are
mitigated by the fact that any regulation that purports to prescribe a website for this
purpose will be tabled in Parliament, subject to disallowance, and will appear on the
public record.
Appeal Costs Fund Act 1973
The transitional provisions to be inserted as section 31 of the Appeal Costs Fund Act
1973 arguably raise a fundamental legislative principle regarding retrospectivity, as
they provide that the amendments to section 22 of the Act will apply to applications
that were submitted prior to the commencement of those provisions, but have not been
determined as at the date of commencement.
The retrospective operation of section 22, as amended, is justifiable on the basis that
the amendment is in fact expanding the grounds on which a party can claim from the
fund to include where an appeal was allowed on the ground of a miscarriage of justice.
There will be no adverse impacts to claimants as a result of this amendment, or its
retrospective operation.
Civil Liability Act 2003
The amendments to section 45 raise an issue regarding the fundamental legislative
principle of respect for the rights and liberties of individuals. The amendments will
broaden the circumstances in which a person who suffers harm while committing an
indictable offence must not be awarded damages.
Section 45 provides an exclusion from civil liability for breach of duty, if the person
who suffered harm was engaged in conduct that was an indictable offence and the
conduct contributed materially to the risk of harm. The Bill amends section 45 to
remove the requirement that the criminal conduct must materially contribute to the risk
of harm, insert a broad definition of criminal conduct and remove the discretion of the
court to award damages if the court considers the exclusion operates harshly and
unjustly in the circumstances. These amendments will ensure greater certainty in the
operation of the exclusion and close loopholes that would narrow the circumstances in
which the exclusion would apply. The amendments will ensure that the intent of the
exclusion in section 45 (i.e. that a criminal should not benefit from his or her criminal
conduct) is not subverted by the difficulty of proving a nexus between the criminal
conduct and the risk of harm, or arguments that the criminal conduct had ceased or not
commenced at the time the harm was suffered (for example, an offender fleeing after
committing an offence). The amendments are justifiable in that they are designed to
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Justice and Other Legislation Amendment Bill 2014
ensure that a criminal cannot benefit from his or her criminal conduct and will only
apply to conduct that constitutes an indictable offence.
Coroners Act 2003
Section 29 has been interpreted and applied as prohibiting a coroner from commencing
or resuming an inquest into a death where a person has been charged with any offence
in which the question of whether the accused caused the death may be in issue, until
after the end of the proceedings for the offence.
The purpose of section 29 is to limit the prejudicial effect on a potential prosecution of
an accused in which the question of whether the accused caused the death may be in
issue. The amendment to section 29 which limits the application of section 29 to
indictable offences, may be considered to reduce the protections available to an accused
charged with a summary offence. For this reason, the amendment potentially impacts
on the rights and liberties of individuals charged with a summary offence.
However, the amendment is considered justified on the basis that the amendment is in
the public interest.
The coroner's primary function is to investigate particular deaths and make comment
aimed at helping to prevent deaths of a similar nature happening in the future. Due to
the protracted nature of some proceedings, particularly where numerous appeals occur,
significant delays to the commencement or resumption of a coronial inquest have
resulted. The significant delays arguably reduce a coroner's capacity to make
meaningful comment aimed at preventing deaths of a similar nature occurring in the
future. This directly contradicts the overarching policy objective of the Coroners Act.
These delays also cause further distress to already grieving families.
Importantly, a coroner will have a discretion not to commence or resume an inquest
where a person has been charged with a summary offence if the coroner considers it is
not in the public interest to do so.
In addition, there are a number of other provisions available to a coroner which limit
any prejudicial effect on a potential prosecution of an accused. For instance, section 31
of the Act allows a coroner to order the court be closed; section 39 limits the
admissibility of compulsorily acquired oral evidence and provides derivative use
immunity; section 41 allows the coroner to prohibit publications; and section 43 allows
the coroner to exclude a person from an inquest if it is in the interests of justice, the
public or the particular person to do so.
Therefore, it is considered that the amendment and Act contain appropriate safeguards.
It is anticipated that the amendments will affect only a small number of coronial
matters.
The new section 116 provides a coroner with the discretion to commence or resume an
inquest into a death where a coroner has been informed that a person has been charged
with a summary offence before the commencement; and on the commencement, the
inquest has not been started, resumed or closed, as if the section 29 in force prior to the
commencement does not and has never applied in relation to the inquest. Accordingly,
the amendment applies retrospectively to deaths that have occurred prior to the
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Justice and Other Legislation Amendment Bill 2014
section's commencement. This retrospective effect may be considered to adversely
impact the rights and liberties of individuals charged with a summary offence.
However, the retrospective application of the amendment is considered justified on the
grounds that it is required to enable the amended section 29 to achieve the desired policy
objectives in a timely way. More specifically, retrospective application of the
amendment to section 29 will enable a coroner to exercise their discretion to commence
or continue an inquest in relation to a particular cohort of cases where proceedings are
still on foot after a protracted period of time, and where the coronial findings are
necessary to prevent deaths from similar causes happening in the future. Retrospective
application will therefore allow grieving families the closure they require. It is
anticipated that the retrospective effect of section 29 will only apply in a small number
of cases.
Corrective Services Act 2006
The introduction of the new offence in the Corrective Services Act 2006 prohibiting
prisoners from sending correspondence which is reasonably likely to cause a victim
distress or trauma potentially affects the rights and liberties of the prisoner. The possible
breach of fundamental legislative principles must be balanced against the need for
community safety, including the safety and protection of victims. The offence is
intended to act as a deterrent to ensure prisoners do not make inappropriate and
unwanted contact with a victim. This offence strengthens the protections offered to
victims and assists in ensuring that they are treated with courtesy, compassion, respect
and dignity. The maximum penalty for the new offence marks the seriousness of the
offence and is consistent with analogous offences under the Corrective Services Act
2006 and in Victoria.
Criminal Code, Drugs Misuse Act 1986 and Penalties and Sentences Act 1992
The Bill amends the Criminal Code to increase the maximum penalty for the offence
of misconduct with regard to corpses and amends the Drugs Misuse Act 1986 and the
Penalties and Sentences Act 1992 to strengthen the sentencing principles relevant to an
offender who supplies a dangerous drug which results in death. Such amendments
potentially impact on the rights and liberties of individuals as offenders will be liable
to higher punishments.
Misconduct with regard to corpses (section 236 of the Criminal Code)
The Bill amends section 236 of the Criminal Code to increase the maximum penalty for
the offence from two years to five years imprisonment. A consequential amendment is
also made to reclassify the offence from a misdemeanour to a crime. The amendment
is justified as the manner in which a deceased's body is treated following their death
can cause substantial distress to the deceased's family and may destroy, weaken or
contaminate any evidence the body may reveal in terms of cause of death or the identity
of the killer.
Classification of an offence as a crime generally means that the offender may be
arrested without warrant. This approach is consistent with the majority of other offences
in the Criminal Code which carry a maximum penalty of five years imprisonment.
Pursuant to section 20C of the Acts Interpretation Act 1954 and section 11 of the
Criminal Code, the amendment will apply to offences committed after the amendment
commences.
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Justice and Other Legislation Amendment Bill 2014
Supply dangerous drugs (Drugs Misuse Act 1986 and Penalties and Sentences Act
1992)
The Bill amends the Drugs Misuse Act 1986 and the Penalties and Sentences Act 1992
to provide that when sentencing an offender for the offence of supplying a dangerous
drug in the circumstances where the drug supplied results in the death of a person, the
court must treat the resulting death as an aggravating factor to the offence of supply.
While the amendment does not increase the applicable maximum penalty, it renders the
offender liable to a higher sentence.
The drug supply market is usually fuelled by economic motivation for those in the drug
trade to create a market for their wares. Such supply of dangerous drugs is in itself an
exploitative act which often preys on the young, ill informed, persons with intellectual
incapacity and/or those with a drug addiction. The adverse effect on the rights or
liberties of this cohort of offenders is justified with reference to the need for:
community protection from illicit drugs; and the community expectation that these
offenders take moral responsibility for contributing to the death of another person as a
consequence of their illicit conduct. A non-commercial supply (e.g. providing drugs to
friends) is also an inherently dangerous act and such drug suppliers will also be caught
by this amendment.
This amendment will have a partial retrospective effect in that it will apply to offenders
convicted and sentenced after commencement irrespective of when the offence
occurred or when the offender was charged. It is anticipated that this circumstance of
aggravation will be utilised rarely and therefore a limited cohort of offenders will be
affected by the partial retrospective application of the amendment.
Drug analyst's certificate (Drugs Misuse Act 1986)
The Bill amends section 128 (Analyst's certificate) to allow a drug analyst to, in effect,
certify another analyst's examination. The amendment to allow the analyst to certify
what may be `hearsay' evidence is necessary to accommodate current scientific and
operational practices of analysis whereby some elements of examinations may be
conducted by an assistant rather than an analyst or may be an automated process. The
amendment does not prevent a party to the hearing from challenging the information
contained in the certificate.
The transitional provision to be inserted as section 146 of the Drugs Misuse Act 1986
deems that a drug analyst's certificate signed prior to the commencement of the
amendments to section 128 is as valid and effective as if it had been signed after. This
curative provision removes any doubt as to the validity of certificates upon which past
prosecutions have been based. The provision does not affect the decision making in
those cases and is technical in nature.
Criminal Proceeds Confiscation Act 2002
Amendments to provisions for breach of restraining orders and prohibited dealings
with property that is subject of a forfeiture order
The amendments apply to restraining orders and forfeiture orders issued under the
Criminal Proceeds Confiscation Act 2002 whether those orders were issued before or
after the commencement of the provisions. Therefore, the amendments have a
retrospective effect. However, the amendments will only apply to breaches or
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Justice and Other Legislation Amendment Bill 2014
prohibited dealings that occur after the commencement of the amendments. The
decision of the Queensland Court of Appeal in the State of Queensland v Bank of
Queensland & Brett Raymond Stevens [2013] QCA 225 (the Stevens decision)
highlighted the need to reinforce the authority of orders of the Supreme Court of
Queensland issued under the Criminal Proceeds Confiscation Act 2002.
Public confidence in the authority of court orders is necessary to ensure the effective
administration of justice. Further, effective compliance with orders issued under the
Criminal Proceeds Confiscation Act 2002 is required to ensure that assets that are liable
to confiscation or forfeiture to the State are not dissipated. If assets are dissipated in
breach of court orders it impedes the Criminal Proceeds Confiscation Act 2002 from
achieving its main objective of removing the financial gain and increasing the financial
loss associated with illegal activity.
The amendments also significantly increase the maximum penalty for offences under
these provisions. The current penalty for all of the provisions is 350 penalty units or
seven years imprisonment. The amendments increase the maximum penalty for
financial institutions to 2500 penalty units or the value of the property that is the subject
of the breach or prohibited dealing (whichever is the greater amount). For all other
persons, the increase in the maximum penalty is to 1000 penalty units or the value of
the property that is the subject of the breach or prohibited dealing (whichever is the
greater amount) or seven years imprisonment or both.
These increases are justified on the basis that they are more consistent with penalties in
other Australian jurisdictions and existing penalties for financial institutions not
complying with notices in the Criminal Proceeds Confiscation Act 2002. They are
further justified because the facts of the Stevens decision emphasises that the penalties
in place for these types of offences must be significant enough to encourage compliance
with orders issued under the Criminal Proceeds Confiscation Act 2002.
Amendments to section 249(3) to accommodate the serious drug offender
confiscation order scheme in chapter 2A
The amendment to section 249(3) to allow financial institutions to voluntarily provide
information to the Crime and Corruption Commission (CCC) that relates to a matter for
which an order may be made under chapter 2A may affect an individual's right to
privacy with respect to their financial records.
However, it should be noted that financial institutions can already provide information
related to `serious crime related activity' and any of the `qualifying offences' in the
serious drug offender confiscation order scheme (SDOCOS) could amount to `serious
criminal activity'. Therefore, this is not a significant widening of this provision.
As the amendment will encourage financial institutions to lawfully provide information
to the CCC with respect to the SDOCOS, it will aid in furthering the main object of the
Criminal Proceeds Confiscation Act 2002 which is to remove the financial gain and
increase the financial loss associated with illegal activity. Finally, it will also aid in
achieving the important object set out at section 4(2)(e) of the Criminal Proceeds
Confiscation Act 2002 that is, `to forfeit to the State property of, or associated with
persons who commit qualifying offences, and against whom serious drug offender
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Justice and Other Legislation Amendment Bill 2014
confiscation orders are made, in recognition of the impact of qualifying offences on the
community and the justice system'.
Evidence Act 1977
DNA certificates
The amendment to section 95A of the Evidence Act 1977 removes the current obligation
on a party intending to rely on a DNA evidentiary certificate to call the analyst to give
evidence. However, the other party to the proceeding maintains the right to require that
the analyst attend the hearing.
While section 95A obviates the need to call persons involved in the continuity testing
process that produces a DNA profile it still requires that a DNA analyst give evidence
of the comparison of DNA profiles. It is this evidence that may link an offender to a
crime.
The amendment in the Bill seeks to address those cases which rely on DNA evidence
but where evidence is not required from the DNA analyst. In these circumstances, the
current mandatory requirement in section 95A(3)(b) raises resourcing issues for
Department of Health.
There are also a number of other safeguards included, such as the provision in section
95A allowing the court to give leave for any person to require the party seeking to rely
on the certificate to call any person involved in the receipt, storage or testing of the
thing.
The amendments are unlikely to have a significant effect on unrepresented defendants
given they maintain the right to require the DNA analyst to attend a hearing. Further,
defendants are rarely unrepresented in District and Supreme Court matters. The use of
DNA evidence is not likely to arise often in summary trials (which also only account
for a small percentage of matters finalised in the Magistrates Courts).
Amendments are also made to clarify the application of section 95A to committal
proceedings. The provisions governing the giving of evidence at a committal are
contained in the Justices Act 1886. The default position is that evidence is given in the
form of written statements however there are provisions allowing the calling and cross-
examination of witnesses in person at a hearing if certain requirements can be satisfied.
Specific provisions are also included in the Justices Act 1886 where a defendant is not
legally represented in a committal.
Legal Profession Act 2007
The amendments to the Legal Profession Act 2007 provide that an incorporated legal
practice going into liquidation or another form of external administration is a show
cause event and suitability matter for a person who is or has been a legal practitioner
director. This arguably could adversely impact on the rights of such individuals, in that,
a person who is or has been a legal practitioner director could be penalised for
circumstances outside of their control relating to the liquidation or external
administration. However, this potential is ameliorated in practice as the person will be
afforded a right to present their case.
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Justice and Other Legislation Amendment Bill 2014
Referendums Act 1997
Proposed new sections 32A, 32B and 32E contain a delegation of legislative power,
and are consistent with existing equivalent provisions contained in sections 121A, 121B
and 121E of the Electoral Act.
The Government has noted its support, in principle, for making electronically assisted
voting available to all Queensland voters, subject to being satisfied of the associated
security arrangements, such as ensuring voting information cannot be intercepted.
Electronically assisted voting will have considerable resource implications and
significant feasibility, systems development and implementation lead times (including
for necessary trialling). For these reasons, initially the priority is electronically assisted
voting for blind and vision impaired voters, and voters who need help voting because
of a disability, motor impairment or insufficient literacy. Other suitable categories may
be subsequently prescribed by regulation.
Consistent with these objectives, the new section 32A provides that a regulation may
prescribe a class of electors who may make an electronically assisted vote, and new
section 32B provides for the Electoral Commission of Queensland to make procedures
for electronically assisted voting. Any concerns regarding the delegation of legislative
power have been mitigated by clearly setting out in the section the information to be
included in the procedures, and providing that the procedures do not take effect until
approved by regulation, and must be tabled with the regulation and published on the
Electoral Commission of Queensland's website.
New section 32D provides for the protection of the information technology used for
electronically assisted voting. Subsection (1) provides that it is an offence for a person
to disclose any source code or other computer software related to electronically assisted
voting, unless authorised to do so. The maximum penalty of 40 penalty units or 6
months imprisonment is consistent with the existing equivalent offence provision
contained in section 121D(1) of the Electoral Act 1992.
Subsection (2) provides that it is an offence to destroy or interfere with any computer
program, data file or electronic device used for or in connection with electronically
assisted voting. The maximum penalty of 100 penalty units or 2 years imprisonment
reflects the gravity of a person deliberately destroying information technology used to
conduct democratic elections in Queensland. This provision is consistent with the
existing equivalent offence provision contained in section 121D(2) of the Electoral Act
1992.
New section 32E allows for the commissioner to decide that electronically assisted
voting is not to be used for a particular election, or for a class of electors at a particular
election, consistent with the policy objectives outlined above
Supreme Court Library Act 1968
The amendments to the Supreme Court Library Act 1968 provide protection from civil
liability for members of the Supreme Court Library Committee in relation to acts done,
or omissions made in good faith under, or for the purposes of the Act. The committee
is a statutory corporation established for public charitable purposes to manage and
control the Supreme Court library. The membership is comprised of members of the
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Justice and Other Legislation Amendment Bill 2014
judiciary and legal profession. The Minister or Minister's nominee is an ex officio
member of the committee.
Given the nature of the committee's role and functions, it is appropriate that the
committee members are not exposed to personal civil liability for carrying out their
statutory functions in good faith. The statutory protection does not deprive a person
who has suffered harm of the right to seek redress for any civil wrong, but expressly
provides that liability that may have attached to a committee member instead attaches
to the committee.
Tourism and Events Queensland Act 2012
The amendments will abolish the Tourism and Events Queensland (TEQ) Employing
Office, including the role of the executive officer, without compensation potentially
raising an issue regarding the fundamental legislative principle of the rights and
liberties of individuals. In this instance within TEQ the Chief Executive Officer (CEO)
of the corporation fulfils the duties of the CEO of the TEQ Employing Office, as well
as those of the broader TEQ corporation. The CEO of the TEQ Employing Office role
is concomitant to the role of the CEO of TEQ, and attracts no additional remuneration
or entitlements. The CEO of TEQ position is not being abolished and the officer will
retain all rights, privileges and entitlements, but without the ancillary duties that arose
from their position as CEO of the TEQ Employing Office.
Trusts Act 1973
The amendments to the Trusts Act 1973 remove the requirement under section 56 for a
delegation of a power of attorney to be executed as a deed. The amendments also
remove doubt by retrospectively validating delegations that have been made using the
approved form for a general power of attorney under the Powers of Attorney Act 1998
before the commencement of the amendments.
The retrospective nature of the amendments is justified because the amendments
operate as validating legislation which does not adversely affect the rights or
obligations of persons. The retrospective validation has a beneficial effect in that it will
provide certainty in the administration of trusts by persons who have relied on
delegations made using the approved form under the Powers of Attorney Act 1998.
Vexatious Proceedings Act 2005
The amendment to the Vexatious Proceedings Act 2005 will allow certain applications
to be dealt with by the Supreme Court on the papers without an oral hearing. This
amendment is consistent with federal legislation dealing with vexatious litigants.
This amendment raises an issue regarding the fundamental legislative principle of the
right of an applicant to have an adequate opportunity to present their case to the
decision-maker. The amendment is, however, justifiable on the basis that the Supreme
Court will only be empowered to dismiss an application without an oral hearing in
situations where there is already a court-ordered vexatious proceedings order in place,
and the applicant is seeking leave to bring a proceeding that would otherwise be in
contravention of that order. Allowing the court to decide the matter on the papers
increases the efficiency of the courts and better distributes the courts' resources. The
applicant in these circumstances will not be disadvantaged by the matter being heard
on the papers, as all material facts relating to the application will be required to be filed
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Justice and Other Legislation Amendment Bill 2014
with the court at the time that such an application is made. Further, the court will be
required to give the applicant a copy of the order dismissing their application, along
with the reasons for the decision.
Consultation
The following community stakeholders and organisations independent of government
were consulted on drafts of specific amendments and/or summaries of proposed
amendments that are part of the Bill: Aboriginal and Torres Strait Islander Legal
Service; Appeal Costs Board; Australian Bankers Association; Australian Funeral
Directors Association; Australian Lawyers Alliance (Qld Branch); Bar Association of
Queensland; private hospitals; Chief Judge; Chief Justice; Chief Magistrate;
community justice groups; Crime and Corruption Commission; Electoral Commission
of Queensland; Hospital and Health Services; Legal Aid Queensland; Legal Services
Commission; Local Government Association of Queensland; Office of the Director of
Public Prosecutions; Parliamentary Crime and Corruption Commissioner; President of
the Children's Court; Professional Standards Council; Public Guardian; Public Trustee
of Queensland; Queensland Association of Independent Legal Services; Queensland
Civil and Administrative Tribunal; Queensland Law Society; Queensland State
Archives; and Supreme Court Library Committee.
The above consultation did not include amendments to the Coroners Act 2003;
Corrective Services Act 2006; Industrial Relations Act 1999; Penalties and Sentences
Act 1992 (section159A(10)); and Tourism and Events Queensland Act 2012.
Consultation on the policy to amend section 29 of the Coroners Act 2003 occurred with
the Bar Association of Queensland, the Queensland Law Society, the Chief Magistrate,
the Chief Judge and the Chief Justice.
Consistency with legislation of other jurisdictions
The Bill is specific to the State of Queensland, and is not uniform with or
complementary to legislation of the Commonwealth or another state, except in relation
to the amendments to the repealing of redundant companies legislation and the
amendments to the Telecommunication Interception Act 2009.
Repeal of redundant companies legislation
The Bill repeals five companies Acts which are redundant:
Companies (Acquisition of Shares) (Application of Laws) Act 1981; Companies and
Securities (Interpretation and Miscellaneous Provisions) (Application of Laws) Act
1981; Companies (Application of Laws) Act 1981; Futures Industry (Application of
Laws) Act 1986; and Securities Industry (Application of Laws) Act 1981. The
arrangements which these Acts supported have been superseded - initially with a
uniform legislation scheme in 1991, and subsequently by the Commonwealth
Corporations Act 2001 following a referral of powers to the Commonwealth by the
States. Three other states have already repealed their equivalent of these five Acts.
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Justice and Other Legislation Amendment Bill 2014
Telecommunication Interception Act 2009
The Commonwealth Government has responsibility for managing telecommunications
powers. In order to obtain a telephone intercept an investigating body like the
Queensland Police Service or the CCC needs to become a declared agency under the
Commonwealth's Telecommunications (Interception and Access) Act 1979 (the
Commonwealth Act). The requirements for a declared agency are contained at section
35 of the Commonwealth Act and include an investigating body (referred to in the
Telecommunication Interception Act 2009 as an `eligible authority') having a
recording, reporting and inspection regime in place. The Telecommunication
Interception Act 2009 establishes the required regime in Queensland.
Section 14 of the Telecommunication Interception Act 2009 sets out documents
connected with the issue of warrants that must be kept in each eligible authority's
records. Section 14(h) of the Act requires each eligible authority to keep in its records
`each authorisation by the chief officer under section 66(2) of the Commonwealth Act'.
The Telecommunications Interception and Intelligence Services Legislation
Amendment Act 2011 (Cwth) amended section 66 of the Commonwealth Act. This
amendment by the Commonwealth allows the chief officer to appoint an `authorising
officer' to issue authorisations.
The Bill amends section 14 of the Telecommunication Interception Act 2009 so that it
will provide for authorisations issued by an `authorising officer' consistent with
amendments made by the Commonwealth.
Reasons for non-inclusion of information
Not applicable.
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Justice and Other Legislation Amendment Bill 2014
Notes on provisions
Part 1 Preliminary
Clause 1 states that, when enacted the Bill will be cited as the Justice and Other
Legislation Amendment Act 2014.
Clause 2 states that the Part 31, is intended to commence on 1 July 2015. The following
provisions will commence on a day to be fixed by proclamation: Parts 2 and 3; sections
29, 30, 31; sections 34, 35 and 36; section 86(1), 86(3), 86(4) and 86(5); and section 87
(to the extent it inserts section 63).
Part 2 Amendment of Aboriginal and Torres Strait Islander
Communities (Justice, Land and Other Matters) Act 1984
Clause 3 states that this part amends the Aboriginal and Torres Strait Islander
Communities (Justice, Land and Other Matters) Act 1984.
Clause 4 amends section 20 to replace the current requirement for the Minister to
appoint and revoke the appointment of members of community justice groups by
gazette notice.
Subclause (1) replaces section 20(1A) and provides that the Minister must appoint the
members of each community justice group by a written notice given to the member and
by publishing notice of the appointment on the Queensland Courts website.
Subclause (2) replaces section 20(4A) and provides that if the Minister decides that a
member of a community justice group is no longer suitable for appointment then the
Minister must revoke the member's appointment by written notice given to the member
and by publishing notice of the revocation on the Queensland Courts website.
Subclause (3) inserts a new definition in section 20(5) for the term `Queensland Courts
website'.
Part 3 - Amendment of Acts Interpretation Act 1954
Clause 5 states that this part amends the Acts Interpretation Act 1954.
Clause 6 amends section 48 (Forms-notification and availability) to provide for
approved forms to be notified by publication on a local government website in the case
of local government, and a Queensland Government website for all other entities,
instead of in the government gazette.
Clause 7 inserts a new section 52A (Regulation-making power) to provide for the
making of regulations under this Act. This amendment facilitates the prescription of
another website as a `relevant government website' for the publication of forms
approved or made available by entities, other than local government, as provided for by
the definition of `whole-of-government website' in the new section 48(9).
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Justice and Other Legislation Amendment Bill 2014
Clause 8 inserts a new part 14, division 3 in the Act to provide for the transitional
arrangements for forms that were approved or made available by an entity under an
authorising law, but not notified in accordance with the previous section 48(5), at the
date of commencement. Section 58 (Form approved or made available, but not notified
in gazette, before commencement) provides that the entity that approved or made the
form available may give notification of the approval or availability of the form post-
commencement by complying with the requirements in either the previous section 48,
or revised section 48.
Part 4 Amendment of Anti-Discrimination Act 1991
Clause 9 provides that this part amends the Anti-Discrimination Act 1991.
Clause 10 amends section 119 to correct an editorial matter by replacing references to
subsections with references to paragraphs.
Part 5 - Amendment of the Appeal Costs Fund Act 1973
Clause 11 states that this part amends the Appeal Costs Fund Act 1973.
Clause 12 amends section 5 to remove the provisions in section 5(4)-(7) which have
become redundant due to administration and process changes.
Clause 13 amends section 22 to expand the grounds on which an applicant can seek
reimbursement from the fund to include where an appeal succeeds on the ground that
there was a miscarriage of justice.
This clause further amends section 22 to clarify that the costs for which an applicant
can seek reimbursement, and is entitled to be paid from the fund, are the costs the board
considers have been thrown away, or partly thrown away, and were reasonably incurred
by the person or on the person's behalf in the initial proceedings.
Clause 14 replaces section 30 of the Act. New section 30 provides that the amendments
apply to applications submitted prior to the commencement of the provision, but not
determined at the date of commencement.
Part 6 Amendment of Births, Deaths and Marriages
Registration Act 2003
Clause 15 provides that this part amends the Births, Deaths and Marriages Registration
Act 2003.
Clause 16 amends section 5 by inserting a new subsection (5) that requires a person in
charge of a hospital to give the birth notice electronically, subject to identified
exceptions.
Clause 17 amends section 29 by replacing subsection (5) to require that a funeral
director located in Queensland give a death registration application electronically,
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Justice and Other Legislation Amendment Bill 2014
subject to identified exceptions. This replaces a general requirement for a person giving
an application to give it electronically, if it is reasonably practical to do so.
Clause 18 replaces current references in section 32(6) to the giving of notice about
disposal of a deceased person's body `by way of electronic communication' to the
giving of notice electronically. The means by which a notice or application can be given
electronically is set out in clause 22 of the Bill which insert a new section 54A.
Clause 19 amends section 44 which governs how a person or entity can apply for
information, what information can be requested, the basis upon which the registrar can
refuse to provide the requested information and related matters.
Subclause (1) replaces section 44(1)(b) to remove the current definition of a `source
document' (clause 24 inserts a new definition in schedule 2).
Subclause (2) amends section 44 to insert new section 44(1A) which provides for an
application made by a person or entity for requested information under section 44 to be
made electronically but without limiting this to historical information (as was
previously the case under section 44(10)).
Subclause (3) replaces existing subsections (9) and (10). The new section 44(9) replaces
an existing provision regarding the admissibility of a copy of a source document in
proceedings, and clarifies that the Registrar-General can give the requested information
to an applicant electronically. The new subsection (10) provides that the ability to give
information electronically does not limit a requirement of the Act about giving the
requested information or the Electronic Transactions (Queensland) Act 2001. The
means by which an application can be given electronically is set out in clause 22 of the
Bill which inserts a new section 54A.
Clauses 20 and 21 omit the current definition of `source document' from sections
48B(6) and 48C(6), with a new definition of `source document' inserted in schedule 2
by clause 24.
Clause 22 inserts a new section 54A that provides for how a notice or application is
given electronically.
Clause 23 amends section 55 by inserting a new subsection (1A) which clarifies that an
approved form may be an electronic form.
Clause 24 inserts new definitions of an `approved form' and `funeral director' into
schedule 2, and a revised definition of `source document'. The definition of `source
document' was previously contained in sections 44(1)(b), 48B(6) and 48C(6).
Paragraph (b) provides for a digitised copy of an original source document to have the
same status at law as the original paper version by providing that a source document
includes a digitised copy of a source document kept by the registrar as an official record
of the document.
Part 7 - Amendment of Civil Liability Act 2003
Clause 25 states that this part amends the Civil Liability Act 2003.
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Justice and Other Legislation Amendment Bill 2014
Clause 26 replaces section 45 to extend the circumstances in which a person who
suffers harm while engaged in criminal conduct (as defined) will not be awarded
damages in civil proceedings. The amended section 45 provides that a person does not
incur civil liability for breach of duty, where the harm suffered by another person (the
offender) for which (apart from the section) civil liability would arise was suffered in
the course of criminal conduct by the offender. The exclusion does not apply if the harm
arose from an unlawful act that was intended to result in the offender suffering harm.
Clause 27 inserts new Chapter 5, Part 8 - Transitional provision for Justice and Other
Legislation Amendment Act 2014 - which contains new section 86. New section 86
clarifies that the amended section 45 applies only in relation to harm suffered by an
offender on or after the commencement of the replacement section.
Part 8- Amendment of Civil Proceedings Act 2011
Clause 28 states that this part amends the Civil Proceedings Act 2011.
Clause 29 amends section 16 which relates to amendment of a claim, pleadings, an
application or another document in a proceeding. The amendments provide that the
section does not limit the operation of section 103H in new part 13A (Representative
Proceedings in the Supreme Court). Section 103H provides for the amendment of an
originating process in a representative proceeding to change the description of the group
members.
Clause 30 amends section 17 which provides for when an interested person may
become a party to a proceeding and when a person is bound by the outcome of the
proceeding. The amended section provides that the section does not apply to a
representative proceeding under new part 13A of the Act because the new Part makes
specific provision for these issues.
Clause 31 amends section 18 which relates to orders made in proceedings started and
continued by or against a representative party. The amended section provides that
section 18 does not apply to representative proceedings under part 13A. Part 13A
establishes a specific, comprehensive scheme for certain types of representative
proceedings. A "representative party" in section 18 does not correlate to the concept of
a "representative party" under part 13A.
Clause 32 removes a redundant reference.
Clause 33 removes a redundant reference.
Clause 34 inserts new part 13A - Representative proceedings in Supreme Court, which
establishes a comprehensive regime for the conduct of representative proceedings in
the Supreme Court.
Division 1 Preliminary
New section 103A defines terms used in new part 13A. "Group member" is defined as
a member of a group of persons on whose behalf a representative proceeding has been
commenced. "Representative party" is defined as a person who commences a
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Justice and Other Legislation Amendment Bill 2014
representative proceeding. "Representative proceeding" is defined as a proceeding
commenced under section 103B.
Division 2 Conduct of representative proceedings
New section 103B provides that a proceeding may be commenced under part 13A when
certain criteria are met. These criteria are that there are seven or more persons who have
claims against the same person, the claims are in respect of, or arise out of, the same,
similar or related circumstance and the claims of all persons give rise to a substantial
common issue of law or fact. The section provides that the proceeding may be started
by one or more of the persons on behalf of some or all of the other persons.
New section 103C sets out the requirements for standing. The section provides that a
person has a sufficient interest to commence a representative proceeding against
another person (the proposed defendant) on behalf of others if the person had standing
to commence proceedings against the proposed defendant on the person's own behalf.
The person may commence a representative proceeding against more than one
defendant whether or not each of the other persons have a claim against each of the
defendants in the proceeding.
New section 103D makes it clear that generally there is no requirement for a person to
consent to being a group member in representative proceedings. However, consent is
required if the person is the Commonwealth or State (which, under the Acts
Interpretation Act 1954, includes a Territory); a Minister of the Commonwealth or a
State; a body corporate established for a public purpose by a law of the Commonwealth
or a State, other than an incorporated company or association; or an officer of the
Commonwealth or a State in his or her capacity as an officer.
New section 103E provides that a person under a legal incapacity may be a group
member even though the person does not have a litigation guardian. However, a person
who is under a legal incapacity can only take a step in the representative proceeding or
conduct part of the proceeding by a litigation guardian.
New section 103F provides for the additional information that must be contained in the
originating process in a representative proceeding.
New section 103G provides that a group member may opt out of the representative
proceeding by giving written notice before a date fixed by the court.
New section 103H enables the court, on the application of the representative party, to
give leave to change the description of the group members.
New section 103I allows the court to order that the representative proceedings be
continued or no longer continue under part 13A if at any stage it appears likely to the
court there are less than seven group members.
New section 103J provides for the situation where the relief sought in a representative
proceeding is, or includes payment of money to group members, other than for costs,
and on the application of the defendant, the court considers it likely that if judgment
were given in favour of the representative party, the cost to the defendant of identifying
the group members and distributing the amounts ordered would be excessive, having
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Justice and Other Legislation Amendment Bill 2014
regard to the likely total of those amounts. The section allows the court to direct that
the representative proceedings no longer continue, or to stay the proceedings so far as
it relates to the relief.
New section 103K provides that the court may order that a proceeding no longer
continue under part 13A if it considers it is in the interests of justice to do so because
of certain circumstances. The circumstances are that the costs that would be incurred if
the proceedings were to continue as a representative proceeding are likely to exceed the
costs that would be incurred if each group member conducted a separate proceeding;
all the relief sought could be obtained by means of a proceeding other than a
representative proceeding under part 13A; the representative proceeding would not
provide an efficient and effective means of dealing with the claims of the group
members; a representative party is not able to adequately represent the interests of the
group members or it is otherwise inappropriate that the claims be pursued by means of
a representative proceeding.
New section 103L provides that, if the court makes an order under sections 103I, 103J
or 103K that a proceeding no longer continue under part 13A, the proceeding may be
continued as a proceeding by the representative party on the party's own behalf against
the defendant. On the application of a person who was a group member, the court may
order that the person be joined as an applicant or plaintiff in the continued proceeding.
New section 103M provides that, if it appears to the court that the determination of the
issue or issues common to all group members will not finally determine the claims of
all group members, the court may give directions about the determination of the
remaining issues. In the case of an issue common to the claims of only some of the
group members, the court's directions may include directions establishing a sub-group
of those group members and appointing a person to be the sub-group representative
party.
New section 103N provides that the court, in giving directions under section 103M,
may allow an individual group member to appear in the proceeding for the purpose of
deciding an issue that relates only to the claims of that member.
New section 103O provides that if an issue cannot be dealt with properly or
conveniently by the court under section 103M or 103N, the court may give directions
for the starting and conduct of other proceedings, whether or not the other proceedings
are representative proceedings.
New section 103P allows the court to substitute another group member as the
representative party (or another sub-group member as the sub-group representative
party) if it appears to the court that the representative party is not able to adequately
represent the interests of the group members (or the sub-group representative party is
not able to adequately represent the interests of the sub-group members).
New section 103Q provides that if a defendant commences a proceeding in the court
against a group member, the court may order a stay of execution for any relief awarded
to the group member until the other proceeding is decided.
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Justice and Other Legislation Amendment Bill 2014
New section 103R requires any settlement or discontinuance of representative
proceedings to be approved by the court. If the court gives approval, it may make any
orders it considers just for the distribution of money paid under a settlement or paid
into the court.
New section 103S provides that a representative party may, with the leave of the court,
settle the party's individual claim in whole, or in part, at any stage of the proceeding.
A representative party seeking leave to settle, or who has settled, the party's individual
claim may, with the leave of the court, withdraw as a representative party. If a
representative party seeks leave to withdraw, the court may, on the application of a
group member, make an order for the substitution of a group member as the
representative party and make any other orders in relation to the substitution that it
considers appropriate.
Division 3 Notices
New section 103T requires notice to be given to group members of a range of matters
in relation to the representative proceeding. These matters are the starting of the
proceeding and the right of group members to opt out before the date fixed by the court
under section 103G; an application by the defendant for the dismissal of the proceeding
on the ground of want of prosecution; and an application by a representative party
seeking leave to withdraw under section 103S.
New section 103U provides that the form and content of a notice under section 103T
must be approved by the court, and sets out the requirements for the notices.
Division 4 Powers of the court
New section 103V sets out the powers of the court in deciding a matter in a
representative proceeding, including determining individual entitlements to relief. The
section provides that in making an award of damages, the court must provide for the
payment or distribution of the money to the group members entitled.
New section 103W enables the court, in providing for the distribution of money to
group members, to provide for the constitution and administration of a fund consisting
of the money to be distributed.
New section 103X provides that a judgment given in a representative proceeding must
describe or otherwise identify the affected group members and binds the group
members as described, other than a person who opted out of the proceedings under
section 103G.
Division 5 Appeals
New section 103Y provides for appeals from judgments of the court under part 13A to
be brought under the Supreme Court of Queensland Act 1991 as a representative
proceeding.
New section 103Z provides for the suspension of certain limitation periods on the
commencement of representative proceedings.
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Justice and Other Legislation Amendment Bill 2014
New section 103ZA provides that in any proceeding, including an appeal conducted
under this part, the court may make any order the court considers appropriate or
necessary to ensure justice is done in the proceeding.
New section 103ZB provides that the court may order the plaintiff or defendant to pay
costs, but may not order a group member or sub-group member to pay costs, other than
under section 103M or section 103N.
New section 103ZC enables the court, on the application of a person who is, or was, a
representative party or sub-group representative party, to order that the party's costs in
representative proceedings in which damages have been awarded, be recoverable from
the damages awarded. The section provides that, if the court is satisfied the costs
reasonably incurred in relation to the representative proceeding by the person making
the application are likely to exceed the costs recoverable from the defendant, the court
may order an amount equal to the whole or part, of the excess to be paid to the person
out of the damages awarded.
Clause 35 inserts new part 16 - Transitional provision for Justice and Other Legislation
Amendment Act 2014 which contains new section 111. New section 111 provides that
part 13A applies only to a proceeding started after the commencement of the
amendments. The proceeding may be started even if the cause of action the subject of
the proceeding arose before or after the commencement of part 13A.
Clause 36 amends Schedule 1(Dictionary) to define terms used in new part 13A.
Part 9 - Amendment of Coroners Act 2003
Clause 37 states this part amends the Coroners Act 2003.
Clause 38 amends section 29 (When inquest must not be held or continued) to insert
the word `indictable' before the word offence, this makes it explicitly clear that section
29 only applies where a coroner, who is investigating a death, is informed that someone
has been charged with an indictable offence in which the question of whether the
accused caused the death may be in issue.
Clause 39 inserts a new part 6, division 5 and new section 116, which deals with the
transitional application of the amendments to section 29 (that an inquest must not be
held or continue to be held when the coroner has been advised that a person has been
charged with an indictable offence in which the question of whether the accused cause
the death may be in issue). The amendment to section 29 operates with retrospective
effect in that, where the coroner has not held or continued to hold an inquest because
the coroner had been informed that a person has been charged with a simple offence,
the coroner may, following commencement of the amendment to section 29, start or
resume an inquest without regard to the pre-amended section 29.
Part 10 Amendment of Corporations (Administrative Actions)
Act
Clause 40 states this part amends the Corporations (Administrative Actions) Act 2001.
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Justice and Other Legislation Amendment Bill 2014
Clause 41 amends the definition of "relevant State Acts" to state that five of the Acts
referred to in the definition have been repealed.
Part 11 Amendment of Corrective Services Act 2006
Clause 42 states this part amends the Corrective Services Act 2006.
Clause 43 inserts a section 48A (Prisoner must not send distressing or traumatic
correspondence to victim) which provides a new simple offence, punishable by a
maximum penalty of six months imprisonment, to apply to a prisoner who is detained
for an offence committed or alleged to have been committed against a victim (as defined
in the provision).
New section 48A provides that a prisoner must not to send, or attempt to send,
correspondence to a victim (or a related person of the victim) if the prisoner knows, or
ought reasonably to know, the correspondence contains material that is distressing or
traumatic for the victim.
Material is to be considered distressing or traumatic if it is reasonably likely, in all the
circumstances, to cause the victim to suffer distress or trauma. The terms distress or
trauma are not defined and are intended to have their ordinary meaning. It is immaterial
as to whether the prisoner intended to cause the victim to suffer distress or trauma.
New subsection (4) defines the terms, `correspondence', `related person' and `send' for
the purposes of the new section 48A.
Part 12 Amendment of Court Funds Act 1973
Clause 44 provides that this part amends the Court Funds Act 1973.
Clause 45 amends the long title of the Courts Fund Act 1973 to clarify that one of the
purposes of the Act is to provide for the custody and investment of money paid into
Magistrates Courts.
Clause 46 amends section 4 by replacing the current reference in the definition of
`court' to `a District Court or Magistrates Court' to `the District Court and a Magistrates
Court' to reflect the current structure of the District Court of Queensland being a single
entity that functions as a court for the whole State.
Part 13 Amendment of Criminal Code
Clause 47 states that this part amends the Criminal Code.
Clause 48 amends the offence in section 236 (Misconduct with regard to corpses) to
increase the maximum penalty to five years imprisonment. The amendment also
reclassifies the offence as a crime.
Clause 49 amends section 552I (Procedure under section 552B).
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Justice and Other Legislation Amendment Bill 2014
Subclause (1) inserts new subsections (3A) and (3B) which provide for a legally
represented defendant to enter a plea, in the Magistrates Court, to a number of charges
at the same time without each charge or the substance of each charge being read
separately to them if the court is satisfied that the defendant is aware of the substance
of each of the charges before the court, has obtained legal advice in relation to each of
the charges before the court and consents to the process. It is intended that the court
could be satisfied after hearing submissions from a legal representative.
Subclause (2) provides for the renumbering of section 552I.
Part 14 Amendment of Criminal Proceeds Confiscation Act
2002
Clause 50 provides that this part amends the Criminal Proceeds Confiscation Act 2002.
Clause 51 amends section 52 (Contravention of restraining order) by omitting the
section and inserting a new section.
New subsection (1) provides that a person who does an act or makes an omission in
relation to restrained property in contravention of a restraining order commits a crime.
The new offence differs to the current offence in section 52 which requires proof of an
intention to defeat the operation of the restraining order. The new offence does not
require proof of `intent' and will apply to all acts or omissions. The subsection also
provides for the maximum penalties that apply to this offence.
New subsection (2) provides that it is a defence to a charge of an offence against
subsection (1) if a person can prove that they had no notice that the property was
restrained under a restraining order and had no reason to suspect that the property was
restrained.
New subsection (3) provides that that the defence in subsection (2) will not be available
to the extent that charges were registered on the property under the Personal Property
Securities Act 2009 (Cwth) or a caveat was registered pursuant to section 51(5) of the
Criminal Proceeds Confiscation Act 2002.
New subsection (4) clarifies that the existence of the offence in subsection (1) does not
prevent a person who does an act or makes an omission mentioned in subsection (1)
from being prosecuted and punished for contempt of court, or another offence under
the Criminal Proceeds Confiscation Act 2002 or any other Act.
New subsection (5) provides that all dealings with property in contravention of a
restraining order are void unless all the conditions in subsection (5)(a) through to (d)
are satisfied.
New subsection (6) makes it clear that subsection (5) applies whether or not any person
is convicted of an offence in relation to their acts or omissions relating to the restraining
order.
Clause 52 amends section 60 (Dealing with forfeited property prohibited) by omitting
the section and inserting a new section.
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Justice and Other Legislation Amendment Bill 2014
New subsection (1) provides that a person commits a crime if they do an act or make
an omission in relation to property that is the subject of a forfeiture order and that act
or omission directly or indirectly defeats the operation of the forfeiture order. The new
offence differs to the current offence in section 60 which requires proof of an intention
to defeat the operation of the forfeiture order. The new offence does not require proof
of `intent' and will apply to all acts or omissions. The subsection also provides for the
maximum penalties that apply to this offence.
New subsection (2) provides that it is a defence to a charge of an offence against
subsection (1) if a person can prove that they had no notice that the property was the
subject of forfeiture order and had no reason to suspect that it was the subject of a
forfeiture order.
New subsection (3) provides that that the defence in subsection (2) will not be available
to the extent that charges were registered on the property under the Personal Property
Securities Act 2009 (Cwth) or a relevant caveat was registered under the Land Title Act
1994.
New subsection (4) clarifies that the existence of the offence in subsection (1) does not
prevent a person who does an act or omission mentioned in subsection (1) from being
prosecuted and punished for contempt of court, or another offence under the Criminal
Proceeds Confiscation Act 2002 or any other Act.
New subsection (5) provides that all dealings with property in contravention of a
forfeiture order are void unless all the conditions in subsection (5)(a) through to (d) are
satisfied.
New subsection (6) makes it clear that subsection (5) applies whether or not any person
is convicted of an offence in relation to the forfeiture order.
Clause 53 amends section 93ZT (Contravention of restraining order) by omitting the
section and inserting a new section.
New subsection (1) provides that a person who does an act or makes an omission in
relation to restrained property in contravention of a restraining order commits a crime.
The new offence differs to the current offence in section 93ZT which requires proof of
an intention to defeat the operation of the restraining order. The new offence does not
require proof of `intent' and will apply to all acts or omissions. The subsection also
provides for the maximum penalties that apply to this offence.
New subsection (2) provides that it is a defence to a charge of an offence against
subsection (1) if a person can prove that they had no notice that the property was
restrained under a restraining order and had no reason to suspect that the property was
restrained.
New subsection (3) provides that that the defence in subsection (2) will not be available
to the extent that charges were registered on the property under the Personal Property
Securities Act 2009 (Cwth) or a caveat was registered pursuant to section 93ZS(5) of
the Criminal Proceeds Confiscation Act 2002.
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Justice and Other Legislation Amendment Bill 2014
New subsection (4) clarifies that the existence of the offence in subsection (1) does not
prevent a person who does an act or makes an omission mentioned in subsection (1)
from being prosecuted and punished for contempt of court, or another offence under
the Criminal Proceeds Confiscation Act 2002 or any other Act.
New subsection (5) provides that all dealings with property in contravention of a
restraining order are void unless all of the conditions in subsection (5)(a) through to (d)
are satisfied.
New subsection (6) makes it clear that subsection (5) applies whether or not any person
is convicted of an offence in relation to the restraining order.
Clause 54 amends section 93ZZB (Making of serious drug offender confiscation order).
Subclause (1) amends subsection (3) to insert an example to help clarify the original
intended interpretation of that subsection.
Subclause (2) provides for the renumbering of section 93ZZB.
Subclause (3) clarifies that subsection (3) does not limit the amount of property that
may be forfeited to the State under a serious drug offender confiscation order.
Subclause (4) provides for the renumbering of section 93ZZB.
Clause 55 amends section 93ZZH (Dealing with forfeited property prohibited) by
omitting the section and inserting a new section with a new offence name.
New subsection (1) provides that a person commits a crime if they do an act or make
an omission in relation to property forfeited under a serious drug offender confiscation
order if that act or omission directly or indirectly defeats the operation of a serious drug
offender confiscation order. The new offence differs to the current offence in section
93ZZH which requires proof of an intention to defeat the operation of the drug offender
confiscation order. The new offence does not require proof of `intent' and will apply to
all acts or omissions. The subsection also provides for the maximum penalties that
apply to this offence.
New subsection (2) provides that it is a defence to a charge of an offence against
subsection (1) if a person can prove that they had no notice that the property was
forfeited under a serious drug offender confiscation order and had no reason to suspect
that it was forfeited under a serious drug offender confiscation order.
New subsection (3) provides that that the defence in subsection (2) will not be available
to the extent that charges were registered on the property under the Personal Property
Securities Act 2009 (Cwth) or a relevant caveat was registered under the Land Title Act
1994.
New subsection (4) clarifies that the existence of the offence in subsection (1) does not
prevent a person who does an act or makes an omission mentioned in subsection (1)
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Justice and Other Legislation Amendment Bill 2014
from being prosecuted and punished for contempt of court, or another offence under
the Criminal Proceeds Confiscation Act 2002 or any other Act.
New subsection (5) provides that all dealings with property in contravention of a serious
drug offender confiscation order are void unless all of the conditions in subsection
(5)(a) through to (d) are satisfied.
New subsection (6) makes it clear that subsection (5) applies whether or not any person
is convicted of an offence in relation to the serious drug offender confiscation order.
Clause 56 amends section 143 (Contravention of restraining order) by omitting the
section and inserting a new section.
New subsection (1) provides that a person who does an act or makes an omission in
relation to restrained property in contravention of a restraining order commits a crime.
The new offence differs to the current offence in section 143 which requires proof of
an intention to defeat the operation of the restraining order. The new offence does not
require proof of `intent' and will apply to all acts or omissions. The subsection also
provides for the maximum penalties that apply to this offence.
New subsection (2) provides that it is a defence to a charge of an offence against
subsection (1) if a person can prove that they had no notice that the property was
restrained under a restraining order and had no reason to suspect that the property was
restrained.
New subsection (3) provides that that the defence in subsection (2) will not be available
to the extent that charges were registered on the property under the Personal Property
Securities Act 2009 (Cwth) or a caveat was registered pursuant to section 142(5) of the
Criminal Proceeds Confiscation Act 2002.
New subsection (4) clarifies that the existence of the offence in subsection (1) does not
prevent a person who does an act or makes an omission mentioned in subsection (1)
from being prosecuted and punished for contempt of court, or another offence under
the Criminal Proceeds Confiscation Act 2002 or any other Act.
New subsection (5) provides that all dealings with property in contravention of a
restraining order are void unless all of the conditions in subsection (5)(a) through to (d)
are satisfied.
New subsection (6) makes it clear that subsection (5) applies whether or not any person
is convicted of an offence in relation to the restraining order.
Clause 57 amends section 171 (Dealing with forfeited property prohibited) by omitting
the section and inserting a new section.
New subsection (1) provides that a person commits a crime if they do an act or make
an omission in relation to property that is the subject of a forfeiture order and that act
or omission directly or indirectly defeats the operation of the forfeiture order. The new
offence differs to the current offence in section 171 which requires proof of an intention
to defeat the operation of the forfeiture order. The new offence does not require proof
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Justice and Other Legislation Amendment Bill 2014
of `intent' and will apply to all acts or omissions. The subsection also provides for the
maximum penalties that apply to this offence.
New subsection (2) provides that it is a defence to a charge of an offence against
subsection (1) if a person can prove that they had no notice that the property was the
subject of forfeiture order and had no reason to suspect that it was the subject of a
forfeiture order.
New subsection (3) provides that that the defence in subsection (2) will not be available
to the extent that charges were registered on the property under the Personal Property
Securities Act 2009 (Cwth) or a relevant caveat was registered under the Land Title Act
1994.
New subsection (4) clarifies that the existence of the offence in subsection (1) does not
prevent a person who does an act or makes an omission mentioned in subsection (1)
from being prosecuted and punished for contempt of court, or another offence under
the Criminal Proceeds Confiscation Act 2002 or any other Act.
New subsection (5) provides that all dealings with property in contravention of a
forfeiture order are void unless all of the conditions in subsection (5)(a) through to (d)
are satisfied.
New subsection (6) makes it clear that subsection (5) applies whether or not any person
is convicted of an offence in relation to the forfeiture order.
Clause 58 amends section 249 (Communication of information by financial institutions
to particular officers). The section is amended to provide that a financial institution may
communicate information to a commission officer if the information relates to matters
for which an order may be made under chapters 2 or 2A of the Criminal Proceeds
Confiscation Act.
Clause 59 inserts a new part 5 into chapter 12 to provide for the transitional provisions
for the amendments contained in this Act to sections 52, 60, 93ZT, 93ZZH, 143 and
171. These transitional provisions provide that the amendments apply to property
restrained or forfeited pursuant to restraining orders, forfeiture orders and serious drug
offender confiscation orders whether or not those orders were made before or after the
commencement of this Act.
Clause 60 amends the definition of `applicant' in the Dictionary contained in schedule
6 to remove an incorrect reference to `chapter 4' in that definition and replaces it with
the correct reference to `chapter 3'.
Part 15 Amendment of Drugs Misuse Act 1986
Clause 61 states that this part amends the Drugs Misuse Act 1986.
Clause 62 amends section 6 (Supplying dangerous drug) to insert a note. This
amendment is consequential to the amendment of section 9 of the Penalties and
Sentences Act 1992 in the Bill.
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Justice and Other Legislation Amendment Bill 2014
Clause 63 amends section 128 (Analyst's certificate) to remove reference to an analysis
or examination being made by the analyst and to provide that an analyst's certificate
can be evidence of the laboratory at which a thing was analysed or examined and that
the analyst reviewed the laboratory's records about the analysis or examination of the
thing including that done by someone other than the analyst.
Clause 64 inserts a transitional provision, section 146 which provides that any
certificate signed by an analyst pursuant to section 128 prior to commencement is and
always has been as valid and effective as if it had been signed after commencement.
Part 16 - Amendment of the Electoral Act 1992
Clause 65 states that this part amends the Electoral Act 1992.
Clause 66 amends section 120 (Electoral visitor voting) to replace the requirement for
an application to vote as an electoral visitor voter to be made in writing with a
requirement for the application to be made in the approved form and given to the
commission, or a returning officer.
Clause 67 replaces section 192 (Failure to post, fax or deliver documents for someone
else) with a new section 192 (Failure to give the commission or returning officer a
request). The new section 192 provides that it is an offence for a person who is given a
request in the approved form for either a ballot paper and declaration envelope under
section 119 (Making a declaration vote using posted voting papers), or a request to vote
as an electoral visitor voter under section 120 (Electoral visitor voting), to promptly
give (as against post, fax or deliver) the request to the commission or returning officer.
This clause inserts a maximum penalty of 20 penalty units or 6 months imprisonment
in to the new offence provision in section 192.
Part 17 Amendment of Evidence Act 1977
Clause 68 states that this part amends the Evidence Act 1977.
Clause 69 amends section 95A (DNA evidentiary certificate) to insert a new subsection
to clarify that certain provisions do not apply to committal hearings. The calling of
witnesses at committal hearings is governed by the provisions in the Justices Act 1886.
Subclause (2) amends section 95A to provide that a DNA analyst need only attend a
hearing if required by written notice five business days before the hearing day. To
complement this provision, existing subsection (5) is also amended to increase the
timeframe for notice of the matter to be challenged from three to five business days.
Clause 70 inserts a transitional provision to clarify that section 95A as amended by the
Bill applies to a proceeding that is on foot at the time of commencement.
Part 18 Amendment of Industrial Relations Act 1999
Clause 71 states that this part amends the Industrial Relations Act 1999.
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Justice and Other Legislation Amendment Bill 2014
Clause 72 amends section 299 (functions and powers of registrar) to change the
reference from vice-president to president to reflect the change in the functions and
powers of the president.
Clause 73 amends section 692A (Definitions for this part) by replacing the reference of
FWA (Fair Work Australia) to FWC (Fair Work Commission) to reflect the renaming
of the federal body.
Clause 74 amends Schedule 5 (dictionary) by replacing the definition of FWA (Fair
Work Australia) with the FWC (Fair Work Commission) to reflect the renaming of the
federal body.
Part 19 Amendment of Justices Act 1886
Clause 75 provides that this part amends the Justices Act 1886.
Clause 76 amends section 145 (Defendant to be asked to plead).
Subclause (1) provides for a legally represented defendant to enter a plea, in the
Magistrates Court, for a number of charges at the same time without each charge or the
substance of each charge being read separately to them if the court is satisfied that the
defendant is aware of the substance of each of the complaints before the court, has
obtained legal advice in relation to each of the complaints before the court and consents
to the process. It is intended that the court could be satisfied after hearing submissions
from a legal representative.
Subclause (2) provides for the renumbering of section 145.
Part 20 - Amendment of the Legal Profession Act 2007
Clause 77 states that this part amends the Legal Profession Act 2007.
Clause 78 amends section 9 (Suitability matters) to provide that whether the person is,
or has been, a legal practitioner director of an incorporated legal practice while the
practice is or was an externally-administered body corporate under the Corporations
Act 2001 (Cwth) is a suitability matter for the person.
Clause 79 amends section 12 (Meaning of government legal officer and engaged in
government work and related matters) to insert a note which clarifies the interaction of
the provision with section 22 of the Public Service Act 2008.
Clause 80 amends section 289 to facilitate the implementation of recommendations
resulting from the Review of the allocation of funds from the Legal Practitioner Interest
on Trust Accounts Fund. Subclause (1) amends section 289(1)(h) to reflect that most
payments are now made legal assistance service providers.
Subclause (2) amends section 289 to reflect that making a payment to, or for, the Legal
Practitioners' Fidelity Guarantee Fund would only be considered if all other funding
sources, or other means of raising funds available to the law society for the fidelity
fund, are exhausted.
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Justice and Other Legislation Amendment Bill 2014
Clause 81 amends section 291 to make a terminology change from payments being
made to `beneficiaries' to payments being made to `recipients'.
Clause 82 omits section 780 (Amendment of regulation by Justice and Other
Legislation Amendment Act 2013) as redundant.
Clause 83 inserts a new chapter 10, part 5. New section 781 applies to certain stated
applications which are current at the date of commencement if a suitability matter in
section 9(1)(c), applies to the person for the application.
New section 782 provides for the obligations, on commencement, of a local legal
practitioner or a registered foreign lawyer who is, or has been, a legal practitioner
director of an incorporated legal practice while the practice is or was an externally
administered body corporate under the Corporations Act 2001 (Cwth).
Clause 84 amends Schedule 2 (Dictionary) to expand the definition of `show cause
event' to include a person being a legal practitioner director of an incorporated legal
practice that becomes an externally administered body corporate under the
Corporations Act 2001 (Cwth).
Part 21 Amendment of Magistrates Court Act 1921
Clause 85 states that this part amends the Magistrates Courts Act 1921.
Clause 86 amends section 3C to provide that the chief executive may appoint a bailiff
or bailiffs for a Magistrates Court for the service and execution of the process,
judgements and orders authorised by the Magistrates Courts Act. The power of the
Magistrates Court to appoint a bailiff or bailiffs for a Magistrates Court is omitted.
Subclause (3) omits sub-section 3C(3), removing the power of a bailiff to appoint an
assistant bailiff. The amendment means that only a person appointed as a bailiff may
carry out the service and execution of the process, judgements, and orders authorised
by the Magistrates Court Act. Consequential to the omission of sub-section 3, sub-
section 4 is omitted (that the bailiff is responsible for the civil acts and defaults of the
assistant bailiff in the discharge of duties).
Subclause (1) and (4) omits the reference to bailiff's assistant in section 3C.
Subclause (5) provides for the renumbering of section 3C.
Clause 87 is a transitional provision for the amendments to section 3C(1) and 3C(3).
A new section 62 is inserted to provide that a person who was appointed as a bailiff by
the Magistrates Court before the commencement of the amendment to section 3C(1)
will continue to hold the appointment as a bailiff as if the appointment occurred under
that section after the commencement.
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Justice and Other Legislation Amendment Bill 2014
A new section 63 is inserted to provide that on commencement of the omission of
section 3C(3) a person's appointment as an assistant bailiff ends and that no
compensation is payable because the appointment ends.
Part 22 Amendment of Penalties and Sentences Act 1992
Clause 88 states that this part amends the Penalties and Sentences Act 1992.
Clause 89 amends section 9 (Sentencing guidelines) to insert a new sentencing
principle.
Subclause (1) inserts new subsections (11A), (11B), (11C) and (11D). These new
subsections provide that when sentencing an offender for the offence of supplying a
dangerous drug under the Drugs Misuse Act 1986 in circumstances where the drug
supplied is used and causes (wholly or partly) the death of a person but where the
offender has not been convicted for causing the death, then the court must have primary
regard to the factors in subsection (3), which apply to violent offenders, and treat the
death as an aggravating factor when determining the penalty for the offender.
Subclause (2) inserts new definitions into subsection 9(13) for terms used in the new
subsections (11A)-(11D).
Clause 90 amends section 15B by omitting from the definition of `drug assessment and
education session' the words `one-on-one' to provide for these sessions to be completed
either as a one-on-one session or in a group setting.
Clause 91 amends section 43N (Commissioner may give a copy of banning order to
particular persons) and the heading to this section to clarify that it refers to the
commissioner of the police service and is consistent with the terminology used in other
sections of the Act.
Clause 92 amends section 159A (Time held in presentence custody) to insert the
commissioner of the police service as a person who can issue a presentence custody
certificate.
Clause 93 inserts a new Division 12 containing a transitional provision for the
amendments to section 9 of the Act in the Bill.
Part 23 Amendment of Professional Standards Act 2004
Clause 94 provides that this part amends the Professional Standards Act 2004.
This Part amends the relevant sections to replace references to gazette with references
to notification. These amendments are consequential, resulting from amendments made
to the Statutory Instruments Act 1992 which provide that notification of subordinate
legislation is by publication of the legislation and its publication date on the Queensland
legislation website, rather than gazettal.
Clause 95 amends section 15 (Commencement of schemes) to replace the references to
`gazetted' with `notified'.
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Justice and Other Legislation Amendment Bill 2014
Clause 96 amends section 16 (Challenges to schemes) to replace the reference to
`gazetted' with `notified'.
Clause 97 amends section 18 (Amendment and revocation of schemes) to omit the note,
and replace it with a note that replaces references to gazettal, with references to
notification. The amended note provides that an instrument that amends a scheme
operating in another jurisdiction may be submitted to the Minister administering the
corresponding law of that jurisdiction under section 13 with a view to notice being
given of the instrument. Notice of an instrument made under the corresponding law of
another jurisdiction that amends an interstate scheme may be notified under section 14.
Clause 98 amends section 18A (Notice of revocation of scheme) to replace references
to `gazettal' and `gazetted', with `notification' and `notified', respectively.
Clause 99 amends section 18B (Termination of operation of interstate schemes in this
jurisdiction) to replace the references to `gazetted' with `notified'.
Clause 100 amends section 43 (Functions of council) to replace the reference to
`publication in the gazette' with `notification'.
Part 24 Amendment of Property Law Act 1974
Clause 101 provides that this part amends the Property Law Act 1974.
Clause 102 amends section 57A which provides for the effect of certain Acts and
statutory instruments on contracts or dealings concerning property. The clause replaces
section 57A(1) with a new subsection which provides that a statutory instrument, other
than prescribed subordinate legislation, cannot render void or unenforceable a contract
or dealing concerning property that is made, entered into or effected contrary to the
statutory instrument, In addition, in relation to a contract for the sale of land, a statutory
instrument cannot give a party the right to terminate the contract because of another
party's failure to comply with the statutory instrument.
Clause 103 inserts new part 24 - Transitional provisions for Justice and Other
Legislation Amendment Act 2014 - which contains new section 357. New section 357
provides that for statutory instruments, other than subordinate legislation, amended
section 57A applies on and from the commencement, regardless of when the statutory
instrument was made, and has effect only in relation to a contract or dealing concerning
property made, entered into or effected on, or after, the commencement. For
subordinate legislation, section 57A, as in force immediately before the
commencement, will continue to apply until one year after the commencement.
Amended section 57A will apply to subordinate legislation on and from a day that is
one year after the commencement, regardless of when the subordinate legislation was
made and will have effect only in relation to a contract or dealing concerning property
made, entered into or effected on or after that day.
Part 25 Amendment of Public Guardian Act 2014
Clause 104 provides that this part amends the Public Guardian Act 2014.
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Justice and Other Legislation Amendment Bill 2014
Clause 105 amends section 52 which defines a relevant child under the Public Guardian
Act.
Subclause (1) provides that a relevant child includes a child who is subject to an
application for an order mentioned in subsection 1(a), (b), (c) or (f) of the section. An
application includes an application to make the order as well as an application to extend,
vary or revoke an order to the extent that each of these types of applications can be
made of a particular order.
Subclause (2) provides that if a child is no longer subject to an application and there is
no order, intervention or agreement in place, they stop being a relevant child.
Subclause (3) provides that if the child was being helped by the public guardian
immediately before they stopped being subject to an application, the public guardian
may still help the child if the public guardian believes it is appropriate to finish helping
the child. The public guardian may also still help the child if the public guardian
believes that the child may be the subject of a further application and needs help until
the further application is made.
Clause 106 provides that the chief executive (child safety) must notify the public
guardian as soon as reasonably practicable after becoming aware that a child is subject
to an interim order under section 67(1)(a) of the Child Protection Act 1999. This
requirement limits the notification requirement to interim orders where the child is
placed in the temporary custody of the chief executive or a suitable person who is a
member of the child's family.
Clause 107 amends sections 113(6) and 113(7) to replace references to the `chief
executive' with the `public guardian'. This is because it is the public guardian, not the
chief executive, who is responsible for the appointment and termination of community
visitors under the Act.
Part 26 Amendment of Queensland Civil and Administrative
Tribunal Act 2009
Clause 108 states that this part amends the Queensland Civil and Administrative
Tribunal Act 2009.
Clause 109 replaces sections 131 and 132 with new sections 131 and 132.
New section 131 omits the requirement that a person wishing to enforce a final decision
which is a monetary decision must file a copy of the decision and an affidavit about the
amount not paid in a court of competent jurisdiction. As a result of new section 131, a
final decision of QCAT which is a monetary decision will automatically be taken to be
an order of the court and may be enforced under chapter 19 of the Uniform Civil
Procedure Rules 1999.
New section 132 omits the requirement that a person wishing to enforce a final decision
which is a non-monetary decision must file a copy of the decision and an affidavit about
the non-compliance with the decision in a relevant court. As a result of new section
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Justice and Other Legislation Amendment Bill 2014
132, a final decision of QCAT which is a non-monetary decision will automatically be
taken to be an order of the court and may be enforced under chapter 20 of the Uniform
Civil Procedure Rules 1999.
Clause 110 removes redundant reference.
Part 27 Amendment of Recording of Evidence Act 1962
Clause 111 provides that this part amends the Recording of Evidence Act 1962.
Clause 112 amends section 11A (Retention and destruction of records). Subsection
(6)(a) is amended by adding the disjunctive `or' after the word `made' thus more clearly
indicating that (subject to the other subsections in section 11A set out in in section
11A(6)) a record may be destroyed any time after a transcription has been made or in
the circumstances set out in section 11A(6)(b).
Subclause (2) amends section 11A(6)(b)(ii) to provide that (subject to the other
subsections in section 11A set out in in section 11A(6)) a record of a legal proceeding
in the Magistrates Court can be disposed of before a transcription has been made if the
record can be disposed of under section 13(a) of the Public Records Act 2002. Section
13(a) of the Public Records Act 2002 provides a public record must not be disposed of
unless done under an authority by the archivist. Section 26 of the Public Records Act
2002 provides the circumstances in which an archivist may authorise the disposal of
public records. Section 26(3) of the Public Records Act 2002 provides that the registrar
or other officer of a court with responsibility for official records of the court may apply
for or consent to the disposal of the courts record.
Part 28 - Amendment of Referendums Act 1997
Clause 113 provides that this part amends the Referendums Act 1997 (Referendums
Act).
Clause 114 amends section 16 (Kinds of polling boots) to include pre-poll voting
offices for electoral districts.
Clause 115 amends section 18 (Supply of ballot papers and electoral rolls) to make
provision for electronically assisted voting.
Clause 116 amends section 19 to provide when scrutineers are entitled to be present for
the purposes of electronically assisted voting.
Clause 117 extends section 21 (Who may vote) to include persons who are not enrolled
on the electoral roll for any district, but are entitled to do so, and who give a notice to
the commission or electoral registrar for the district under section 65 within the requisite
time period. This amendment brings section 21 in to line with section 106 of the
Electoral Act 1992.
Clause 118 amends section 22 (Procedure for voting) to implement a proof of identity
requirement in the Referendums Act 1997 in line with the requirement in the Electoral
Act 1992.
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Justice and Other Legislation Amendment Bill 2014
Subclause (1) exempts an elector who makes a pre-poll ordinary vote under section 24C
from being required to follow the procedures in section 22.
Subclause (2) replaces section 22(3) to provide that the elector must give the issuing
officer the elector's proof of identity document, and request a ballot paper from the
issuing officer, in the polling booth.
Subclause (3) replaces section 22(5) to provide that the issuing officer must issue a
ballot paper to a person if they have given them their proof of identity document, and
the issuing officer is satisfied of their entitlement to vote.
Subclause (4) replaces section 22(7) to provide that the issuing officer must comply
with section 32 if the elector does not give the issuing officer the elector's proof of
identity document, or has asked questions under section 22(6) and suspects that a person
claiming to be a particular elector is not the elector.
Clause 119 inserts a new part 4, division 3, subdivision 1A to provide for pre-poll
ordinary voting in referendums. This new subdivision mirrors the provisions in part 7,
division 5, subdivision 2 of the Electoral Act 1992.
Clause 120 amends section 25 (Who may make a declaration vote) to: insert a new
section 25(1)(a) to provide that an `ordinary postal voter', being an elector who wishes
to make a declaration vote before the polling day for a referendum, may make a
declaration vote; and clarify the interaction of the provision with the Electoral Act.
Clause 121 amends section 30 (Making a declaration vote using posted referendum
papers) to provide that an elector who is an ordinary postal voter can request a ballot
paper and declaration envelope by completing an approved form and giving it to the
commission or returning officer for the electoral district for which the elector is
enrolled, by no later than 7p.m. on the Wednesday before the polling day for the
referendum.
Clause 122 amends section 31 (Electoral visitor voting) to provide that an elector who
is an electoral visitor voter can request a ballot paper and declaration envelope by
completing an approved form and giving it to the commission or returning officer for
the electoral district for which the elector is enrolled, by no later than 7p.m. on the
Wednesday before the polling day for the referendum.
Clause 123 replaces section 32(1) and (2) (Making a declaration vote in cases of
uncertain identity) with a provision that requires the issuing officer to give a person a
declaration envelope if section 22(7) or 24C(7) apply and updates cross references.
Clause 124 inserts a new part 4, division 3, subdivision 2A to provide for electronically
assisted voting in referendums. This new Part reflects part 7, division 5, subdivision 3A
in the Electoral Act.
Clause 125 amends section 33 to provide that if an elector votes using electronically
assisted voting, they must vote in accordance with the procedures approved under
section 32B(3).
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Justice and Other Legislation Amendment Bill 2014
Clause 126 amends section 36(2)(c) (Preliminary processing of declaration envelopes
and ballot papers) to omit the requirement for a person examining the declaration
envelope to be satisfied that the signature on the envelope corresponds with the
signature in the request.
Clause 127 amends section 38 (Preliminary counting of ordinary votes) to provide that
the commission's staff in charge of a polling booth must identify and keep in a separate
parcel all declaration envelopes and all ballot papers printed for electronically assisted
votes, and to extend its application to pre-poll ordinary votes, and votes received under
section 36.
Clause 128 amends section 39 (Official counting of votes) to include ballot papers
printed for electronically assisted votes in the first stage of the procedure for the official
counting of votes.
Clause 129 amends section 83 to reflect that requests provided to someone under
section 30 or 31 are required to be in the approved form under sections 30 or 31, and
given to the commission (instead of being posted, faxed or delivered).
This clause inserts a maximum penalty of 20 penalty units or 6 months imprisonment
in to the offence provision in section 83.
Clause 130 amends schedule 3 (Dictionary) to define the following terms: `pre-poll
ordinary vote', `pre-poll voting office' and `proof of identity document'.
This clause also updates the numbering of the provisions of the Act that define the terms
`electoral visitor voter' and `ordinary postal voter', and extends the definition of
`polling booth' to include a mobile polling booth or a pre-poll voting office.
Part 29 Amendment of Supreme Court Library Act 1968
Clause 131 provides that this part amends the Supreme Court Library Act 1968.
Clause 132 inserts new section 13B which provides that a member of the committee is
not civilly liable for an act done, or omission made, in good faith, under the Supreme
Court Library Act 1968. The new section also provides that if new section 13B(1)
prevents civil liability attaching to a member, the liability will attach to the committee
instead.
Part 30 Amendment of Telecommunications Interception Act
2009
Clause 133 provides that this part amends the Telecommunication Interception Act
2009.
Clause 134 amends section 14 (Eligible authority to keep documents connected with
issue of warrants).
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Justice and Other Legislation Amendment Bill 2014
Subclause (1) insets a new subsection (ga) that provides that an eligible authority must
keep in their records each appointment of an authorising officer made under section
66(4) of the Telecommunications (Interception and Access) Act 1979 (Cwth).
Subclause (2) amends subsection (h) to provide that an eligible authority must keep in
their records each authorisation by an authorising officer under section 66(2) of the
Telecommunications (Interception and Access) Act 1979 (Cwth).
Subclause (3) provides for renumbering of section 14.
Part 31 Amendment of Tourism and Events Queensland Act
2012
Clause 135 states that this part amends the Tourism and Events Queensland Act 2012.
Clause 136 states Tourism and Events Queensland may employ staff. This clause also
omits provisions that provided for the continuation of the Employing Office. This will
simplify the Tourism and Events Queensland Act 2012, and remove redundant
provisions.
Clause 137 provides for the transitional provisions for the Tourism and Events
Queensland Employing Office to ensure:
Employees of the former Tourism and Events Queensland Employing Office retain
the same terms and conditions of employment applying to the person immediately
before the commencement of the new provisions; and
Remain entitled to all rights of employment existing or accruing immediately before
commencement of the provisions, including recognition of the person's length of
service with the former employing office and outstanding leave entitlements
accrued up to the commencement.
The Bill provides that the Tourism and Events Queensland Act 2012 amendments will
commence on 1 July 2015.
Part 32 - Amendment of Trusts Act 1973
Clause 138 provides that this part amends the Trusts Act 1973.
Clause 139 amends section 56(1) which confers a power on trustees to delegate the
administration of a trust in limited circumstances. The amendment removes the
requirement that the power of attorney be executed as a deed.
Clause 140 inserts new part 13 - Validation provision for Justice and Other Legislation
Amendment Act 2014 - which contains new section 123. Section 123 provides for the
situation where before the commencement of the amendments to section 56, a trustee
purported to make a delegation under section 56 by a power of attorney using the
approved form under the Powers of Attorney Act 1998, section 11. The section states
that any such power of attorney is taken to be, and to have always been, validly given
under previous section 56.
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Justice and Other Legislation Amendment Bill 2014
Part 33 Amendment of Vexatious Proceedings Act 2005
Clause 141 provides that this part amends the Vexatious Proceedings Act 2005
Clause 142 replaces subsection 12(2) so the Supreme Court may dismiss without an
oral hearing an application of a person, who is subject to a vexatious proceedings order,
for leave to institute a proceeding. In line with the previous subsection 12(2), if the
court considers an oral hearing is necessary, the application may be dismissed even if
the applicant does not appear at the hearing.
New subsection 12(3) requires that, if the Court dismisses the application, the Court
must give the applicant a copy of the order dismissing the application and the Court's
reasons.
Clause 143 inserts a transitional provision for the Justice and Other Legislation
Amendment Act 2014 - which contains new section 16A. New section 16A provides
that the pre-amended Act continues to apply in relation to applications which have been
made under section 11 of the Act, but have not yet been decided at the time of
commencement of the amendment to section 12 of the Act.
Part 34 Repeals
Clause 144 repeals the following companies Acts which are now redundant: Companies
(Acquisition of Shares) (Application of Laws) Act 1981; Companies and Securities
(Interpretation and Miscellaneous Provisions) (Application of Laws) Act 1981;
Companies (Application of Laws) Act 1981; Futures Industry (Application of Laws) Act
1986; and Securities Industry (Application of Laws) Act 1981.
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