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JUSTICE LEGISLATION AMENDMENT BILL 2013

                 PARLIAMENT OF VICTORIA

         Justice Legislation Amendment Bill 2013



                      TABLE OF PROVISIONS
Clause                                                                  Page

PART 1--PRELIMINARY                                                        1
  1      Purposes                                                          1
  2      Commencement                                                      3

PART 2--AMENDMENT OF THE ADMINISTRATION AND
PROBATE ACT 1958                                                           4
  3      Intention to apply for seal of Court to be advertised             4

PART 3--AMENDMENT OF THE CROWN LAND (RESERVES)
ACT 1978                                                                   5
  4      Trustees of reserves to be deemed occupiers                       5

PART 4--AMENDMENT OF THE ELECTORAL ACT 2002                                6
  5      Enrolment by the Commission                                       6

PART 5--AMENDMENT OF THE MAGISTRATES' COURT
ACT 1989                                                                   7
  6      Appointment of Acting Chief Magistrate                            7

PART 6--AMENDMENT OF THE SENTENCING ACT 1991                               9
  7      Definition                                                        9
  8      Orders under Division 1 of Part 3BA                               9
  9      New section 149A inserted                                        10
         149A Validation--Justice Legislation Amendment
                  Act 2013                                                10
  10     New Schedule 4 inserted                                          10
         SCHEDULE 4--Justice Legislation Amendment Act 2013--
         Validation                                                       10
         1        Definitions                                             10
         2        Validation of adjournment orders                        11
         3        Validation of community-based orders                    12




571414B.I-17/4/2013                     i      BILL LA INTRODUCTION 17/4/2013

 


 

Clause Page 4 Additional provisions relating to rights of appeal 14 5 Rights in specific proceedings not affected 14 PART 7--AMENDMENT OF THE CORONERS ACT 2008 AND THE VICTORIAN INSTITUTE OF FORENSIC MEDICINE ACT 1985 15 Division 1--Amendment of Coroners Act 2008 15 11 Obligation of registered medical practitioner to report death 15 12 Obligation to report death of a person placed in custody or care 15 13 General obligation to report death 15 14 Obligation to report reviewable death 16 15 Fire authority request for fire investigation 16 16 Application for investigation into a fire 17 17 New section 108A inserted 17 108A State Coroner may enter into service agreements 17 Division 2--Amendment of Victorian Institute of Forensic Medicine Act 1985 17 18 Definitions 17 19 Objects of the Institute 18 20 Functions of the Institute 18 PART 8--REPEAL OF AMENDING ACT 21 21 Repeal of amending Act 21 ENDNOTES 22 571414B.I-17/4/2013 ii BILL LA INTRODUCTION 17/4/2013

 


 

PARLIAMENT OF VICTORIA Introduced in the Assembly Justice Legislation Amendment Bill 2013 A Bill for an Act to amend the Administration and Probate Act 1958, the Crown Land (Reserves) Act 1978, the Electoral Act 2002, the Magistrates' Court Act 1989, the Sentencing Act 1991, the Coroners Act 2008 and the Victorian Institute of Forensic Medicine Act 1985 and for other purposes. The Parliament of Victoria enacts: PART 1--PRELIMINARY 1 Purposes The main purposes of this Act are to-- (a) amend the Administration and Probate 5 Act 1958 to provide that an intention to apply for the re-sealing of probate, letters of administration, a grant or an order from a specified jurisdiction must be published in 571414B.I-17/4/2013 1 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 1--Preliminary s. 1 accordance with the Rules of the Supreme Court; (b) amend the Crown Land (Reserves) Act 1978 to ensure that trustees or persons 5 having the care, control or management of reserved Crown land are only deemed occupiers under the Fences Act 1968 for the purposes of agreeing on a line of fencing where a waterway forms the boundary 10 between adjoining lands; (c) amend the Electoral Act 2002 to streamline the enrolment process for electors; (d) amend the Magistrates' Court Act 1989 to enable the Chief Magistrate to nominate a 15 Deputy Chief Magistrate to be Acting Chief Magistrate in the Chief Magistrate's absence; (e) amend the Sentencing Act 1991 to-- (i) provide courts with the flexibility to attach a condition to certain sentencing 20 orders that require an offender to make a payment to an organisation that provides a charitable or community service or to the court for payment to such an organisation; 25 (ii) validate sentencing orders made by the courts attaching a condition requiring an offender to make a payment to an organisation that provides a charitable or community service or to the court for 30 payment to such an organisation; (f) amend the Coroners Act 2008 and the Victorian Institute of Forensic Medicine Act 1985 to provide the Victorian Institute of Forensic Medicine with further powers to 35 assist the Coroners Court in the performance of its functions. 571414B.I-17/4/2013 2 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 1--Preliminary s. 2 2 Commencement (1) This Part and Part 6 come into operation on the day on which this Act receives the Royal Assent. (2) Parts 4, 5 and 8 come into operation on the day 5 after the day on which this Act receives the Royal Assent. (3) Part 3 is taken to have come into operation on 17 April 2013. (4) Subject to subsection (5), the remaining 10 provisions of this Act come into operation on a day or days to be proclaimed. (5) If a provision referred to in subsection (4) does not come into operation before 30 April 2014, it comes into operation on that day. __________________ 571414B.I-17/4/2013 3 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 2--Amendment of the Administration and Probate Act 1958 s. 3 PART 2--AMENDMENT OF THE ADMINISTRATION AND PROBATE ACT 1958 3 Intention to apply for seal of Court to be advertised See: In section 83 of the Administration and Probate Act No. 5 6191. Act 1958, for "one of the Melbourne daily Reprint No. 11 newspapers" substitute "accordance with the as at 6 May 2010 Rules". and amending Act No. 17/2010. LawToday: www. legislation. vic.gov.au __________________ 571414B.I-17/4/2013 4 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 3--Amendment of the Crown Land (Reserves) Act 1978 s. 4 PART 3--AMENDMENT OF THE CROWN LAND (RESERVES) ACT 1978 4 Trustees of reserves to be deemed occupiers (1) In section 21 of the Crown Land (Reserves) Act See: Act No. 5 1978, for "section 3" substitute "section 5". 9212. Reprint No. 10 (2) At the end of section 21 of the Crown Land as at 1 July 2011 (Reserves) Act 1978 insert-- and amending "(2) Subsection (1) as in force immediately Act Nos before the commencement of section 4 of the 64/2004, 65/2010, 10 Justice Legislation Amendment Act 2013 7/2012, continues to apply in relation to a right or 17/2012 and 46/2012. liability arising in relation to a fence or LawToday: proposed fence for which a notice to fence www. legislation. was served under section 6 of the Fences vic.gov.au 15 Act 1968 before that commencement.". __________________ 571414B.I-17/4/2013 5 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 4--Amendment of the Electoral Act 2002 s. 5 PART 4--AMENDMENT OF THE ELECTORAL ACT 2002 5 Enrolment by the Commission See: In section 23A(2)(a) of the Electoral Act 2002, Act No. 23/2002. for "by" substitute "under an arrangement under 5 Reprint No. 3 as at section 20 or provided to". 20 August 2010 and amending Act Nos 26/2011, 82/2012 and 13/2013. LawToday: www. legislation. vic.gov.au __________________ 571414B.I-17/4/2013 6 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 5--Amendment of the Magistrates' Court Act 1989 s. 6 PART 5--AMENDMENT OF THE MAGISTRATES' COURT ACT 1989 6 Appointment of Acting Chief Magistrate (1) Before section 8(1) of the Magistrates' Court See: Act No. 5 Act 1989 insert-- 51/1989. Reprint No. 16 "(1AAA) The Governor in Council may appoint a as at 1 January Deputy Chief Magistrate, nominated by the 2012 Chief Magistrate, to be Acting Chief and amending Magistrate during any period when the Chief Act Nos 10 Magistrate is absent on leave or for any 51/2006, 12/2010, reason is temporarily unable to perform the 65/2011, duties of the office of Chief Magistrate.". 23/2012, 26/2012, (2) In section 8(1) of the Magistrates' Court Act 48/2012, 82/2012 and 1989, for "Acting Chief Magistrate during any 5/2013. 15 period when the Chief Magistrate is absent on LawToday: www. leave or for any reason is temporarily unable to legislation. perform the duties of the office of Chief vic.gov.au Magistrate." substitute-- "Acting Chief Magistrate-- 20 (a) during any period when the Chief Magistrate is absent on leave or for any reason is temporarily unable to perform the duties of the office of Chief Magistrate if an appointment has not been made under 25 subsection (1AAA); or (b) if there is a vacancy in the office of Chief Magistrate.". (3) For section 8(1A) of the Magistrates' Court Act 1989 substitute-- 30 "(1A) The senior of the Deputy Chief Magistrates willing to act as Chief Magistrate shall act as Chief Magistrate if there is-- (a) a period when the Chief Magistrate is for any reason temporarily unable to 35 perform the duties of the office of Chief 571414B.I-17/4/2013 7 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 5--Amendment of the Magistrates' Court Act 1989 s. 6 Magistrate and an appointment has not been made under subsection (1AAA) or (1)(a); or (b) a vacancy in the office of Chief 5 Magistrate and an appointment has not been made under subsection (1)(b).". (4) In section 8(1B) of the Magistrates' Court Act 1989-- (a) omit "as Deputy Chief Magistrate"; 10 (b) after "of appointment" insert "as Deputy Chief Magistrate". __________________ 571414B.I-17/4/2013 8 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 6--Amendment of the Sentencing Act 1991 s. 7 PART 6--AMENDMENT OF THE SENTENCING ACT 1991 7 Definition In section 3(1) of the Sentencing Act 1991, in the See: Act No. definition of fine, after "court" (where secondly 49/1991. 5 occurring) insert "or money payable by an Reprint No. 14 as at offender under an order of a court to an 14 November organisation that provides a charitable or 2012 and community service or to the court for payment to amending such an organisation". Act Nos 65/2011, 49/2012, 83/2012 and 6/2013. LawToday: www. legislation. vic.gov.au 10 8 Orders under Division 1 of Part 3BA (1) After section 70(1)(b) of the Sentencing Act 1991 insert-- "(ba) to allow for the offender to demonstrate his or her remorse in a manner agreed to by the 15 court;". (2) In section 72(2)(c) of the Sentencing Act 1991, after "court" insert "and may include a condition requiring the offender to make a payment to an organisation that provides a charitable or 20 community service or to the court for payment to such an organisation". (3) In section 75(2)(c) of the Sentencing Act 1991, after "court" insert "and may include a condition requiring the offender to make a payment to an 25 organisation that provides a charitable or community service or to the court for payment to such an organisation". 571414B.I-17/4/2013 9 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 6--Amendment of the Sentencing Act 1991 s. 9 9 New section 149A inserted At the end of Part 12 of the Sentencing Act 1991 insert-- "149A Validation--Justice Legislation 5 Amendment Act 2013 Schedule 4 has effect.". 10 New Schedule 4 inserted After Schedule 3 of the Sentencing Act 1991 insert-- 10 '__________________ SCHEDULE 4 JUSTICE LEGISLATION AMENDMENT ACT 2013--VALIDATION 1 Definitions 15 In this Schedule-- adjournment order means an adjournment order made under section 72 or 75; commencement day means the day on which the Justice Legislation Amendment 20 Act 2013 receives the Royal Assent; community-based order means a community-based order within the meaning of this Act as in force before the repeal day; 25 donation condition means a condition requiring an offender to pay an amount to an organisation that provides a charitable or community service or to the court for payment to such an 30 organisation; 571414B.I-17/4/2013 10 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 6--Amendment of the Sentencing Act 1991 s. 10 relevant order means-- (a) an adjournment order; or (b) a community-based order; repeal day means the date of commencement 5 of section 21 of the Sentencing Amendment (Community Correction Reform) Act 2011. 2 Validation of adjournment orders (1) An adjournment order under section 72 or 75 10 made or purported to be made before the commencement day that required an offender to give an undertaking with a donation condition attached has, and is taken always to have had, the same force and effect as it 15 would have had if sections 7 and 8 of the Justice Legislation Amendment Act 2013 had been in operation when the order was made or purported to be made. (2) Any act or thing done or omitted to be done, 20 whether under a power conferred by an enactment or otherwise, before or after the commencement day in reliance on or in relation to-- (a) an adjournment order that is validated 25 by subclause (1); or (b) a contravention or alleged contravention of an adjournment order that is validated by subclause (1)-- including any penalty imposed, has the same 30 effect, and gives rise to the same consequences, and is to be regarded as always having had the same effect and having given rise to the same consequences as if sections 7 and 8 of the Justice 35 Legislation Amendment Act 2013 had been 571414B.I-17/4/2013 11 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 6--Amendment of the Sentencing Act 1991 s. 10 in operation when the adjournment order was made or purported to be made. (3) A right or liability conferred or imposed in relation to, or affected by-- 5 (a) an adjournment order that is validated by subclause (1); or (b) a contravention or alleged contravention of an adjournment order that is validated by subclause (1)-- 10 including any penalty imposed, is exercisable or enforceable, and is to be regarded as always having been exercisable or enforceable as if sections 7 and 8 of the Justice Legislation Amendment Act 2013 15 had been in operation when the adjournment order was made or purported to be made. 3 Validation of community-based orders (1) A community-based order made or purported to be made before the repeal day that had a 20 donation condition attached has, and is taken always to have had, the same force and effect as it would have had if-- (a) section 7 of the Justice Legislation Amendment Act 2013 had been in 25 operation when the order was made or purported to be made; and (b) section 38 (as in force before the repeal day) had included the following provision at the time the order was 30 made or purported to be made-- "(2A) A condition attached under subsection (1)(g) may include a condition requiring the offender to make a payment to an 35 organisation that provides 571414B.I-17/4/2013 12 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 6--Amendment of the Sentencing Act 1991 s. 10 charitable or community service or to the court for payment to such an organisation.". (2) Any act or thing done or omitted to be done, 5 whether under a power conferred by an enactment or otherwise, before or after the repeal day in reliance on or in relation to-- (a) a community-based order that is validated by subclause (1); or 10 (b) a contravention or alleged contravention of a community-based order that is validated by subclause (1)-- including any penalty imposed, has the same 15 effect, and gives rise to the same consequences, and is to be regarded as always having had the same effect and having given rise to the same consequences as if section 7 of the Justice Legislation 20 Amendment Act 2013 and the purported section 38(2A) referred to in subclause (1)(b) had been in operation when the community- based order was made or purported to be made. 25 (3) A right or liability conferred or imposed in relation to, or affected by-- (a) a community-based order that is validated by subclause (1); or (b) a contravention or alleged 30 contravention of a community-based order that is validated by subclause (1)-- including any penalty imposed, is exercisable or enforceable, and is to be 35 regarded as always having been exercisable or enforceable as if section 7 of the Justice 571414B.I-17/4/2013 13 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 6--Amendment of the Sentencing Act 1991 s. 10 Legislation Amendment Act 2013 and the purported section 38(2A) referred to in subclause (1)(b) had been in operation when the community-based order was made or 5 purported to be made. 4 Additional provisions relating to rights of appeal (1) Without limiting clause 2(3) or 3(3), the rights and liabilities conferred or imposed in 10 relation to a relevant order include rights of appeal. (2) This Schedule does not affect the right of any person to appeal against a sentence that includes a relevant order on any other 15 ground. 5 Rights in specific proceedings not affected This Schedule does not affect the rights of the parties in the proceedings known as Brittain v Mansour [2013] VSC 50 in the 20 Supreme Court of Victoria.'. __________________ 571414B.I-17/4/2013 14 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 7--Amendment of the Coroners Act 2008 and the Victorian Institute of s. 11 Forensic Medicine Act 1985 PART 7--AMENDMENT OF THE CORONERS ACT 2008 AND THE VICTORIAN INSTITUTE OF FORENSIC MEDICINE ACT 1985 Division 1--Amendment of Coroners Act 2008 5 11 Obligation of registered medical practitioner to See: report death Act No. 77/2008. (1) In section 10(1) and (2) of the Coroners Act Reprint No. 1 as at 2008, after "a coroner" insert "or the Institute". 21 July 2011 and (2) After section 10(2) of the Coroners Act 2008 amending 10 insert-- Act Nos 52/2012, 83/2012 and "(3) The Institute must refer to a coroner a report 5/2013. of a reportable death received from a LawToday: www. registered medical practitioner under legislation. subsection (1) or (2) as soon as practicable vic.gov.au 15 after receipt of that report.". 12 Obligation to report death of a person placed in custody or care (1) In section 11(1) of the Coroners Act 2008, after "a coroner" insert "or the Institute". 20 (2) After section 11(1) of the Coroners Act 2008 insert-- "(1A) The Institute must refer to a coroner a report of the death of a person placed in custody or care received from a responsible person 25 under subsection (1) as soon as practicable after receipt of that report.". 13 General obligation to report death (1) In section 12(1) of the Coroners Act 2008, after "a coroner" insert ", the Institute". 30 (2) In section 12(2) of the Coroners Act 2008, after "the coroner" insert "or the Institute". 571414B.I-17/4/2013 15 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 7--Amendment of the Coroners Act 2008 and the Victorian Institute of s. 14 Forensic Medicine Act 1985 (3) After section 12(2) of the Coroners Act 2008 insert-- "(3) The Institute must refer to a coroner a report of a death received under subsection (1) 5 or (2) as soon as practicable after receipt of that report.". 14 Obligation to report reviewable death (1) In section 13 of the Coroners Act 2008, after "State Coroner" (wherever occurring) insert 10 "or the Institute". (2) After section 13(3) of the Coroners Act 2008 insert-- "(4) The Institute must refer to the State Coroner a report of a reviewable death received from 15 a registered medical practitioner or other person under this section as soon as practicable after receipt of that report.". 15 Fire authority request for fire investigation After section 30(1) of the Coroners Act 2008 20 insert-- "(1A) The Institute may, on behalf of a coroner, receive a request made by the Country Fire Authority or Metropolitan Fire and Emergency Services Board under 25 subsection (1). (1B) If the Institute receives a request under subsection (1A), the Institute must refer that request to a coroner as soon as practicable after receiving that request.". 571414B.I-17/4/2013 16 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 7--Amendment of the Coroners Act 2008 and the Victorian Institute of s. 16 Forensic Medicine Act 1985 16 Application for investigation into a fire After section 31(1) of the Coroners Act 2008 insert-- "(1A) The Institute may, on behalf of a coroner, 5 receive a request made by a person under subsection (1). (1B) If the Institute receives a request under subsection (1A), the Institute must refer that request to a coroner as soon as practicable 10 after receiving that request.". 17 New section 108A inserted After section 108 of the Coroners Act 2008 insert-- "108A State Coroner may enter into service 15 agreements The State Coroner, on behalf of the Coroners Court, may enter into an agreement with a person or body for the provision by the person or body of services to the Court to 20 support the operations of the Court.". Division 2--Amendment of Victorian Institute of Forensic Medicine Act 1985 18 Definitions See: Act No. Insert the following definitions in section 3(1) of 10257. 25 the Victorian Institute of Forensic Medicine Reprint No. 7 as at Act 1985-- 1 November 2009 "coroner has the same meaning as in section 3(1) and amending of the Coroners Act 2008; Act No. 13/2010. medical examination has the same meaning as in LawToday: 30 section 3(1) of the Coroners Act 2008; www. legislation. reportable death has the same meaning as in vic.gov.au section 4 of the Coroners Act 2008; 571414B.I-17/4/2013 17 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 7--Amendment of the Coroners Act 2008 and the Victorian Institute of s. 19 Forensic Medicine Act 1985 senior next of kin has the same meaning as in section 3(1) of the Coroners Act 2008; State Coroner has the same meaning as in section 3(1) of the Coroners Act 2008;". 5 19 Objects of the Institute In section 64(2) of the Victorian Institute of Forensic Medicine Act 1985-- (a) in paragraph (i), for "66(4)." substitute "66(4);"; 10 (b) after paragraph (i) insert-- "(j) to promote and assist in the performance by the Coroners Court of its functions.". 20 Functions of the Institute 15 In section 66(1) of the Victorian Institute of Forensic Medicine Act 1985-- (a) after paragraph (a) insert-- "(ab) to receive a report of a reportable death or a reviewable death for referral to a 20 coroner or the State Coroner (as appropriate) under Part 3 of the Coroners Act 2008; (ac) to receive a request for an investigation by the coroner into a fire under 25 Division 2 of Part 4 of the Coroners Act 2008 and refer that request to the coroner; (ad) on behalf of a coroner, to request and receive information about a death or 30 fire that a coroner is investigating; 571414B.I-17/4/2013 18 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 7--Amendment of the Coroners Act 2008 and the Victorian Institute of s. 20 Forensic Medicine Act 1985 (ae) to provide assistance and guidance in respect of whether a death is a reportable death or reviewable death to a person who has an obligation to 5 report deaths of that kind under Part 3 of the Coroners Act 2008;"; (b) in paragraph (f), for "examinations." substitute "examinations;"; (c) after paragraph (f) insert-- 10 "(g) to gather information to assist a coroner to identify the senior next of kin of a deceased person; (h) to provide information to, and obtain information from, family members of a 15 deceased person for the purposes of a medical examination and the coronial process generally; (i) to receive a request on behalf of a coroner for an autopsy to be performed 20 on a body in the control of the coroner; (j) to take possession of a body on behalf of a coroner and to provide for the release of a body following an order made by a coroner under section 47 of 25 the Coroners Act 2008; (k) to request and receive ante-mortem specimens from hospitals in respect of reportable deaths for the purposes of medical examinations; 30 (l) to provide information to, and discuss with, the senior next of kin of a deceased person, the coronial process and in particular explain any medical examination to be performed on the 35 deceased as part of the investigation process; 571414B.I-17/4/2013 19 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 7--Amendment of the Coroners Act 2008 and the Victorian Institute of s. 20 Forensic Medicine Act 1985 (m) to assist the principal registrar of the Coroners Court to provide information prescribed for the purposes of section 21 the Coroners Act 2008 5 regarding the coronial process to the senior next of kin of a deceased person and any other person the principal registrar considers to have a sufficient interest in the investigation under 10 section 21(b) of that Act.". __________________ 571414B.I-17/4/2013 20 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Part 8--Repeal of Amending Act s. 21 PART 8--REPEAL OF AMENDING ACT 21 Repeal of amending Act This Act is repealed on 30 April 2015. Note 5 The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 571414B.I-17/4/2013 21 BILL LA INTRODUCTION 17/4/2013

 


 

Justice Legislation Amendment Bill 2013 Endnotes ENDNOTES By Authority. Government Printer for the State of Victoria. 571414B.I-17/4/2013 22 BILL LA INTRODUCTION 17/4/2013

 


 

 


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