JUSTICE AND OTHER LEGISLATION AMENDMENT BILL (NO. 2) 2011 Second Reading Speech

Northern Territory Second Reading Speeches

JUSTICE AND OTHER LEGISLATION AMENDMENT BILL (NO. 2) 2011

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Madam Acting Speaker, I move that the bill be now read a second time.

This bill is an omnibus bill that makes a range of miscellaneous amendments to the Justice portfolio and related legislation. There are usually one or two such omnibus bills every year. This is the second of these bills for 2011. In total, the bill amends seven statutes: the Bail Act; the Justices Act; the Police Administration Act; the Liquor Act; the Local Court Act; Oaths, Affidavits and Declarations Act; and the Companies (Trustees and Personal Representatives) Act.

The bill is part of the government’s regular legislative review and monitoring program. It results from the Department of Justice and other stakeholders identifying various problems and improvements to the affected acts. The purpose of the bill is to rectify procedural and technical problems with the operation of the amended acts, and correct errors or uncertainty caused by the legislation.

The bill also includes enabling provisions to enable voluntary transfer determinations to be made by the Australian Securities and Investment Commission, ASIC, to enable the transfer of trustee company estate assets and liabilities to other trustee companies.

These particular amendments are consequential upon recent amendments to the Commonwealth Corporations Act 2001 and are part of a national scheme. The bill also includes various small updates of the statute law revision nature to those provisions amended by this bill. For example, the word ‘shall’ shall be replaced by the word ‘must’.

I now turn to the amendments in detail:

The Bail Act – the intent of the current section 6(f) of the Bail Act is to allow bail to be granted to a person who has allegedly breached a suspended sentence or good behaviour bond for a period between their committal and their appearance before the court to be dealt with in accordance with that committal. The current section 6(f) of the Bail Act provides that bail may be granted to an accused person for a period between the committal of a person under section 40 of the Sentencing Act and various sections of the now repealed Criminal Law (Conditional Release of Offenders) Act, and his or her appearance in accordance with that committal.

The references to the Repeal Act are outdated. The reference to section 40 of the Sentencing Act is incorrect as this section provides for the ordering of suspended sentences. This has led to some doubts among the judiciary about its continued application to suspended sentences and good behaviour bonds. The amendments ensure there is no uncertainty for the judiciary in granting bail to such matters.

The bill repeals section 6(f) to remove the incorrect and outdated references. The clause inserts in section 6 redrafted subsections (f), (g) and (h). These new subsections (g) and (f) now refer to the correct revisions of the Sentencing Act. The insertion of these new subsections does not amend the intent of the provision; they allow bail to be granted to a person who has allegedly breached a suspended sentence or good behaviour bond for a period up to their absence in the Supreme Court, new subsection (g), or Court of Summary Jurisdiction, new subsection (f). The new subsection (h) reinstates the old subsection (g) which allows regulations to prescribe any additional bail period deemed necessary.

With respect to the Justices Act, at the moment, where someone fails to appear on a summons or a bail undertaking, sections 62 and 62A of the Justices Act allow the magistrate to decide the complaint in the person’s absence; adjourning it or issuing an arrest warrant. There is no similar power in the act for the police notices to appear. Police notices to appear are like a complaint and summons, but are issued on the spot by a police officer and do not have to be signed by a Justice of the Peace.

This means, for police notices to appear, the magistrate can only adjourn the matter or issue an arrest warrant under section 191. They cannot decide the matter in the defendant’s absence. This is not consistent with the original intent of parliament as police notices to appear are intended to have the same effect as a summons.

The amendments to section 191 will allow matters commenced by notices to appear to be dealt with in the person’s absence in the same way as they currently are for summonses and bail undertakings in sections 62 and 62A respectively. These provisions are also consistent in New South Wales, Victoria and South Australia.

The other key amendments are consequential amendments to section 63A arising from the changes in section 191. These amendments allow police notices to appear which are dealt with exparte, under the new provisions in section 191, to be appealed in the same way as complaints dealt with exparte where the defendant fails to appear on a summons or bail undertaking. The section 63A amendments include small changes to modernise and improve the existing drafting of the section.

The Police Administration Act: in order to augment the procedural fairness offered to defendants by the changes to the Justices Act, the bill amends the content of police notices to appear to include a short warning about the consequences of failing to appear, including that the matter may now be determined in the person’s absence. This is based on a similar provision in New South Wales.

The Liquor Act: there is a minor drafting error in section 106B(3) of the Liquor Act which requires correction of this section to make sense. The defence in section 106B(3) does not correctly link to the offence in section 106B(1). Section 106B(1) makes it an offence for a licensee, or licensee’s employee, to permit a child to enter or remain on a licensee’s licensed premises etcetera. However, section 106B(3) makes it an offence to that offence for the licensee to show that the child to whom the liquor was supplied was over 16 years etcetera. The ‘to whom the liquor was supplied’ reference in section 106B(3) should have referred to a child ‘who is permitted to enter or remain’ on the premises.

The new section 106B(3) in the bill correctly links the defence to the offence in section 106(B)(1).

The Local Court Act: section 19(3) of the Local Court Act currently allows parties to appeal, with leave, interlocutory orders made in the Local Court, i.e. orders that are not final orders, to the Supreme Court. They must do so within 14 days. This section does not allow for the Supreme Court to allow an extension of time for these appeals. This limitation can result in unfairness and unnecessary cost to parties.

By contrast, the Supreme Court can grant an extension of time for appeals from final orders in section 19(1).

In 2009, the former Chief Justice proposed that section 19 be amended to allow the Supreme Court to grant an extension of time to appeal from interlocutory orders of the Local Court. The bill amends section 19 of the Local Court Act to allow that to occur.

The Oaths, Affidavits and Declarations Act: the bill makes a number of minor changes to the Oaths, Affidavits and Declarations Act to ensure oaths, affidavits and declarations contain the name of the person making them, including in the administration of an oath, and allows the discretionary inclusion of the person’s address or other identifying information, as appropriate. Although in practice, written declarations and affidavits would usually contain such information, these provisions ensure names are included in the form of a declaration itself, and there is clear statutory support for inclusion of an address in such a declaration. Importantly, the amendments will support the current pro forma statutory declaration as set out on the Department of Justice website, which includes both the person’s name and address. More information about these changes are available in the explanatory statement to this bill.

The bill also repeals section 13 of the Oaths, Affidavits and Declarations Act and replaces it with a new section 24A. Section 13 currently ensures that minor non-compliance with a formal request requirement does not affect the validity of an oath. The new section 24A extends this to affidavits and declarations. The amendment is consistent with a similar provision in Western Australia.

There are also two minor technical amendments to Schedule 1 of the Oaths, Affidavits and Declarations Act to ensure that oaths of interpreters include the name of the person for whom they are interpreting, and that oaths can be recited in the third person by someone administering an oath.

Companies (Trustees and Personal Representatives) Act: the bill makes amendments to the Companies (Trustees and Personal Representatives) Act that are consequential upon recent amendments to the Corporations Act 2001 of the Commonwealth government. These amendments are necessary as part of the states’ and territories’ obligations to deliver on the new national uniform regulatory framework for regulating trustee companies, which began in 2010.

Private trustee companies provide a wide range of wealth management services (including estate planning), administering deceased estates, managing the financial affairs of persons unable to look after their own interests, and administering charitable trusts and foundations.

Section 601WBA of the Corporations Act 2001 enables the Australian Securities Investment Commission (ASIC) to make a determination that there is to be a transfer of estate assets and liabilities from a trustee company (the transferring company) to another licensed trustee company (the receiving company). To make this determination, ASIC must be satisfied, among other things, legislation to facilitate the transfer which satisfies the requirements of section 601WBC of the Corporations Act 2001 has been enacted in the state or territory in which the transferring company and the receiving company are situated.

Prior to the recent amendments of the Corporations Act 2001, ASIC could make a transfer determination only if the commission had cancelled the transferring company’s registration. These types of determinations are called ‘compulsory transfer determinations’. They are currently supported by existing section 53 of the Companies (Trustees and Personal Representatives) Act.

Following the recent Corporations Act 2001 amendments, ASIC may now also make a transfer determination on the application of the transferring trustee company. These new types of determinations are called ‘voluntary transfer determinations’. Before the national regulatory framework for trustee companies commenced in May 2010, many corporate groups operating across state and territory borders operated multiple subsidiaries whose purpose was to hold a trustee company authorisation in a particular jurisdiction. Many corporate groups wish to transfer the business of their subsidiaries to one licensed trustee company. Voluntary transfer determinations are an expeditious and a cost-effective process for trustee companies to rationalise their operations and reduce compliance costs.

The proposed amendments to the Companies (Trustees And Personal Representatives) Act ensures that the legislation extends to voluntary transfer determinations made by ASIC, as well as to compulsory transfer determinations. This will enable ASIC to make voluntary transfer determinations in appropriate circumstances. These amendments will ensure Northern Territory legislation continues to meet the requirements of section 601WBC of the Corporations Act 2001 and that it continues to fulfil its obligation as part of the national scheme. Other jurisdictions are also in the process of making similar amendments.

The bill also inserts new sections 55 and 56 in the Companies (Trustees and Personal Representatives) Act. These sections are necessary to support the transfer determinations made by ASIC, whether voluntary or compulsory, and have been proposed by the Commonwealth in the development of the recent amendments to the Corporations Act 2001 to facilitate voluntary transfers. Proposed section 55 recognises certificates of an authorised ASIC officer as evidence of a transfer so they can be used to effect a transfer. Proposed section 56 requires a registering authority to register or record a transfer of trustee company assets and liabilities, provided it is accompanied by the ASIC transfer certificate mentioned in section 55.

Many stakeholders, including the judiciary, the legal profession, and Northern Territory police were consulted in the development of this bill. I thank these stakeholders for their contribution and insights.

Madam Acting Speaker, in conclusion, the amendments in this bill improve the functioning of the Territory’s law and justice system. It represents another example of the government’s commitment to ensure the Territory’s laws and democratic institutions are robust, up to date, and effective. I commend the bill to honourable members and table a copy of explanatory statement.

Debate adjourned.

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