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This is a Bill, not an Act. For current law, see the Acts databases.
STATUTE LAW AMENDMENT BILL 2002 (NO 2)
2002
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Statute Law
Amendment Bill 2002 (No 2)
Contents
Page
Part 1.1 Commissioner for the Environment Act
1993 4
Part 1.2 Intoxicated Persons (Care and Protection)
Act 1994 6
Part 1.3 Nature Conservation Act
1980 6
Part 1.4 Smoke-free Areas (Enclosed Public Places)
Act 1994 7
Part 1.5 Workers Compensation Act
1951 8
Part 2.1 Legislation Act 2001 13
Part 3.1 ACTION Authority Act
2001 34
Part 3.2 Casino Control Act
1988 35
Part 3.3 Civil Law (Wrongs) Act
2002 35
Part 3.4 Credit Regulations (Amendment) 1994 No
33 36
Part 3.5 Crimes Act 1900 37
Part 3.6 Crimes Legislation Amendment Act
2001 51
Part 3.7 Domestic Animals Act
2000 51
Part 3.8 Evidence (Miscellaneous Provisions) Act
1991 52
Part 3.9 Health Professionals (Special Events
Exemptions) Act 2000 53
Part 3.10 Health Professions Board (Procedures) Act
1981 54
Part 3.11 Lakes Act 1976 55
Part 3.12 Law Reform (Miscellaneous Provisions) Act
1955 71
Part 3.13 Mental Health (Treatment and Care) Act
1994 72
Part 3.14 Poisons Act 1933 72
Part 3.15 Poisons and Drugs Act
1978 79
Part 3.16 Poisons and Drugs Regulations
1993 94
Part 3.17 Public Health Act
1997 97
Part 3.18 Public Health Regulations
2000 115
Part 3.19 Rehabilitation of Offenders (Interim)
Regulations 2001 120
Part 3.20 Remuneration Tribunal (Consequential
Amendments) Act 1997 No 41 121
Part 3.21 Road Transport (Alcohol and Drugs) Act
1977 122
Part 3.22 Road Transport (Driver Licensing) Act
1999 122
Part 3.23 Road Transport (General) Act
1999 123
Part 3.24 Road Transport (Public Passenger Services)
Act 2001 124
Part 3.25 Road Transport (Safety and Traffic
Management) Act 1999 126
Part 3.26 Road Transport (Vehicle Registration) Act
1999 127
Part 3.27 Smoke-free Areas (Enclosed Public Places)
Act 1994 128
Part 3.28 Statute Law Amendment Act 2002 No
30 131
Part 3.29 Tobacco Regulations
1991 131
Part 3.30 Utilities Act 2000 132
Part 3.31 Workers Compensation Act
1951 135
Part 4.1 Administration of Justice
Acts 138
Part 4.2 Australian Courts Act
1828 139
Part 4.3 British Law Ascertainment Act
1859 140
Part 4.4 Colonial Courts of Admiralty Act
1890 141
Part 4.5 Colonial Laws Validity Act
1865 142
Part 4.6 Courts (Colonial) Jurisdiction Act
1874 143
Part 4.7 Demise of the Crown
Acts 143
Part 4.8 Former UK Acts (Interpretation) Act
1988 144
Part 4.9 Merchant Shipping Act
1894 144
Part 4.10 Offences at Sea Act
1536 146
Part 4.11 Piracy Acts 146
Part 4.12 Piracy Punishment Act
1902 147
2002
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Statute Law Amendment
Bill 2002 (No 2)
A Bill for
An Act to amend or repeal certain Acts and regulations for the purpose of
statute law revision
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Statute Law Amendment Act 2002
(No 2).
(1) This Act commences on the 28th day after its notification
day.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
(2) However, a date or time provided by or under a special commencement
provision for an amendment or repeal made by this Act has effect, or is taken to
have had effect, as the commencement date or time of the amendment or
repeal.
(3) In this section:
special commencement provision, for an amendment or repeal
made by this Act, is a provision, in brackets beginning with the text
‘commencement:’, at the end of the amendment.
Example
An amendment followed by ‘(commencement: 1 January 2002)’ means
that the amendment is taken to have commenced on 1 January 2002.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
The purpose of this Act is to improve the quality of the statute law of the
Territory by amending or repealing Acts and regulations for the purpose of
statute law revision.
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
5 Acts
and regulations amended—schs 1-3
Schedules 1 to 3 amend the Acts and regulations mentioned in
them.
6 Acts
repealed—schs 4 and 5
(1) Schedules 4 and 5 repeal the Acts mentioned in them.
(2) The following Acts are declared to be laws to which the Legislation
Act 2001, section 88 (Repeal does not end transitional or validating effect
etc) applies:
• Demise of the Crown Act 1547 1 Edw 6 c 7
• Demise of the Crown Act 1702 1 Anne c 2
• Demise of the Crown Act 1707 6 Anne c 41
• Demise of the Crown Act 1901 1 Edw 7 c 5.
Schedule
1 Minor
amendments
(see s 5)
Part
1.1 Commissioner for the Environment
Act 1993
insert
Part 6 Validation
30 Validation of appointment
Joseph Thomas Baker is taken to be, and always to have been, the
commissioner for the environment for the period beginning on 15 December
2001 and ending on 30 April 2002 as if the instrument of appointment purportedly
appointing Joseph Thomas Baker as commissioner for the environment made by the
Minister for Urban Services on 24 September 2001 had been
properly—
(a) notified under the Legislation Act 2001, section 61;
and
(b) presented to the Legislative Assembly under the Legislation Act
2001, section 64 (1).
Note The instrument of appointment made by the Minister for Urban
Services on 24 September 2001 is accessible at www.legislation.act.gov.au and is
numbered DI2001-315.
31 Validation of acts, rights and
obligations
(1) Anything done by Joseph Thomas Baker in accordance with the instrument
of appointment mentioned in section 30 during the period beginning on 15
December 2001 and ending on 30 April 2002 in the purported exercise of
the powers of the commissioner for the environment is taken to be, and always
have been, as valid as if the instrument of appointment had been
properly—
(a) notified under the Legislation Act 2001, section 61;
and
(b) presented to the Legislative Assembly in accordance with the
Legislation Act 2001, section 64 (1).
(2) Without limiting subsection (1), any right or obligation that was
to have been created by an act of Joseph Thomas Baker as mentioned in
subsection (1), is taken to be, and always have been, created by that
act.
(3) This section does not limit section 30.
32 Expiry of pt 6
This part expires the same day it commences.
Note If a law validates something that is or may otherwise be
invalid, the validating effect of the law does not end merely because of the
repeal of the law. See Legislation Act, s 88 (1) (b).
Explanatory note
This amendment inserts provisions to validate the appointment and actions
of the Commissioner for the Environment, Dr Baker, from the end of his previous
term on 15 December 2001 until his reappointment on 29 April 2002. This is
needed because the instrument reappointing Dr Baker from the end of his term on
15 December 2001 to the end of June 2003 was inadvertently not presented to the
Assembly within the time required under the Legislation Act. Dr Baker was
subsequently reappointed by another instrument of appointment on 29 April 2002
and that instrument of appointment has been notified and presented to the
Assembly within the required time.
Part
1.2 Intoxicated Persons (Care and
Protection) Act 1994
omit
12 hours.
substitute
15 hours.
(commencement: the day after this Act’s notification day)
Explanatory note
This amendment increases the time that the licensee of a place licensed
under the Intoxicated Persons (Care and Protection) Act 1994 can allow a
person admitted to the place to remain there. The period is being increased
from 12 to 15 hours to allow for a new shelter that is due to begin early next
year with opening hours of 8pm to 10am. If the legislation is not changed, a
person admitted to the shelter at 8pm would have to leave by 8am in the morning.
In some circumstances (eg on a cold winter morning) it may be more reasonable
for a person to be able to stay until 10am.
Part
1.3 Nature Conservation Act
1980
insert
(5) In this section:
reserved area includes an area of public land
that—
(a) is reserved under the Territory plan as a special purpose reserve; and
(b) is not leased land.
(commencement: the day after this Act’s notification day)
Explanatory note
This amendment brings special purpose reserves that are unleased land
within the definition of ‘reserved areas’ for section 53 (Access to
reserved areas). The definition of ‘reserved area’ in the Nature
Conservation Act 1980, dictionary already covers wilderness areas, national
parks and nature reserves. Section 53 allows the conservator of flora and fauna
to prohibit or restrict access to reserved areas if public safety would be
endangered or management interfered with. The different designations of land
administered by Environment ACT can cause administrative difficulty if it is
necessary to close land, eg because of bushfire. Closure of places like
Tidbinbilla presently requires the exercise of powers under both the Nature
Conservation Act 1980 and the Trespass on Territory Land Act 1932
using different instruments and procedures. This fragmented approach creates
enforcement difficulties. Including special purpose reserves as ‘reserved
areas’ for section 53 will allow the conservator to close land using
a single instrument and procedure. As there are some small parts of special
purpose reserves that are covered by rural leases, leased areas are not proposed
to be included within the definition of ‘reserved areas’ and the
power to close reserved areas would not extend to them.
Part
1.4 Smoke-free Areas (Enclosed Public
Places) Act 1994
[1.4] Section
2, new definition of Australian Standard 1668.2
insert
Australian Standard 1668.2 means Australian Standard 1668.2
as in force on 5 October 1994.
(commencement: the day after this Act’s notification day)
Explanatory note
This amendment inserts a definition of Australian Standard
1668.2 to make it clear that the references in the Act to
the standard are to the standard as it was in force when relevant provisions of
the Act commenced.
insert
10A Variation of exemptions
(1) The occupier of a restaurant or licensed premises for which a
certificate of exemption is in effect may apply to the Minister for the
exemption to be varied.
(2) The Minister must vary the exemption unless—
(a) for a restaurant—a certificate could not be granted for the
exemption as varied under section 8 (2); or
(b) for part of licensed premises—a certificate could not be granted
for the exemption as varied under section 8 (3); or
(c) the restaurant or licensed premises are being rebuilt or
relocated.
(3) If the Minister varies the exemption, the Minister must enter the
details of the variation in the register.
(commencement: the day after this Act’s notification day)
Explanatory note
This amendment inserts an additional section to allow for applications to
vary exemptions that have been granted under the Act. This will enable
restaurants and licensed premises that wish to change their operating
arrangements (other than by rebuilding or relocating their premises) to have
their existing exemption varied rather than needing to apply for a new exemption
(which is a more costly process).
Part
1.5 Workers Compensation Act
1951
[1.6] New
section 14 (3) and (4)
insert
(3) However, an individual is taken not to be a worker
employed by the principal if—
(a) the engagement of the individual by the principal is arranged by an
educational institution where the individual is enrolled; and
(b) the engagement is part of a work experience program (however
described) run by the educational institution.
Example of work experience
program
work placement program
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) In subsection (3):
educational institution means—
(a) a school, college or other educational institution established or
maintained on behalf of the Territory; or
(b) a school registered, or provisionally registered, under the
Education Act 1937, part 3 (Registered schools); or
(c) an educational institution established under a Territory law or a law
of the Commonwealth or a State.
Explanatory note
This amendment clarifies the Act to ensure that students in the workplace
on work experience programs (however described) are not considered to be
workers. This was the position under the Act before it was amended by the
Workers Compensation Amendment Act 2001 (the Amendment
Act). Amendments under the Amendment Act to ensure that individuals
being trialled by employers before being employed are covered by the Workers
Compensation Act 1951 left the position of work experience students unclear.
Work experience students in the workplace are covered by insurance arrangements
entered into by the educational institution they attend. Because the
educational institution bears the risk of injury to work experience students,
employers are more willing to give work experience to students than if the
employers had to pay extra workers compensation premiums for the students. This
amendment does not affect the requirement under the Occupational Health and
Safety Act 1989 to provide a safe work environment or any obligation of
educational institutions to safeguard the wellbeing of students.
omit
is entitled
substitute
is or may be entitled
Explanatory note
This amendment brings section 38 into line with the policy of the Act as a
whole. Employers are required to pay injured workers from the time of injury,
before liability is established. Section 38 was inserted by the Workers
Compensation Amendment Act 2001 as part of a package of reforms designed to
reduce workers compensation costs by treating injured workers promptly for
injuries and, in that way, reducing the risk of injuries lasting long-term.
Injuries treated promptly are less likely to become long-term injuries and
therefore are less costly for insurers and the community.
omit
arbitration
substitute
conciliation or arbitration
Explanatory note
This amendment allows decisions about the proportion of a worker’s
loss of use of a thing mentioned in the Act, schedule 1 (Compensation for
permanent injuries) to be conciliated, rather than having to be decided by
arbitration if the parties cannot agree on a proportionate loss of use. The
amendment brings section 59 into line with the policy of the Act that
conciliation is an option for resolving issues without having to resort to more
expensive adversarial proceedings.
[1.9] New
section 77 (3A)
insert
(3A) To remove any doubt, the payment under subsection (2) (a) need not be
divided equally between the dependants, but may be divided between them as the
Magistrates Court considers appropriate.
Explanatory note
This amendment clarifies section 77 to ensure that the Magistrates Court
may divide a compensation payment payable to dependants as the court considers
appropriate. Section 77 was revised by the Workers Compensation
Amendment Act 2001 (the amendment Act). Before the amendment
of the Workers Compensation Act 1951 by the amendment Act, the
Magistrates Court divided compensation payable to dependants as the court
considered appropriate. This amendment ensures that the Magistrates Court
continues to have that power.
[1.10] New
section 77 (5)
insert
(5) If the worker did not have dependants, the personal representative of
the worker is entitled to a maximum of $4 000 cpi indexed for the funeral
expenses of the worker.
Explanatory note
This amendment reinserts the entitlement of a dead worker’s personal
representative to costs for the worker’s funeral expenses. This
entitlement was inadvertently omitted when amendments were made to the Act by
the Workers Compensation Amendment Act 2001.
omit
inadequate
substitute
manifestly inadequate
Explanatory note
This amendment brings section 79 into line with section 80 (2) (b). It
also addresses concerns that working out whether the amount of compensation
payable under an agreement between the worker and employer in substitution for a
right under the Workers Compensation Act 1951 is inadequate would require
a mini-hearing of the worker’s claim for compensation. The ability to
enter into a registered agreement under the Act is intended to reduce the need
for the Magistrates Court to consider claims and reduce the cost of claims. By
including ‘manifestly’ before inadequate, the provision only
requires the Magistrates Court to consider the injury to which the agreement
relates at face value and reduces the chance that the court will refuse to
register the agreement of the parties.
[1.12] Schedule
1, column 3 heading
substitute
column 3
|
% of single loss amount
payable
|
Explanatory note
This amendment rewrites a column heading to the table in schedule 1
(Compensation for permanent injuries) to bring it into line with the rest of the
Act. Before this amendment, the heading to the table was ambiguous and could
lead readers to believe the amount of compensation to which the percentage under
the column related was the maximum loss amount (although that phrase was not
used). The Act, section 51 (1) clearly sets out that the amount payable for a
loss to which the table relates is the percentage of the single loss amount
stated in schedule 1, column 3.
Schedule
2 Structural
amendments
(see s 5)
Part
2.1 Legislation Act
2001
substitute
(i) bills presented to the Legislative Assembly;
(j) explanatory statements for bills, and amendments of bills, presented
to the Legislative Assembly;
(k) explanatory statements, and regulatory impact statements under chapter
5, for subordinate laws and disallowable instruments.
Explanatory note
This amendment adds explanatory statements for bills (and amendments of
bills), subordinate laws and disallowable instruments, and regulatory impact
statements to the list of material that must be included on the ACT legislation
register. Explanatory statements for bills (previously called explanatory
memoranda), and explanatory statements and regulatory impact statements for
subordinate laws and disallowable instruments have been included on the register
since the beginning of the current Assembly.
omit
Explanatory note
This amendment is consequential on the insertion of new section
19 (1) (j). It omits a paragraph that listed explanatory memoranda
for bills, and amendments of bills, as part of the material that may be included
on the ACT legislation register.
[2.3] Section
19 (4) (f) and (g)
renumber as section 19 (4) (e) and (f)
Explanatory note
This amendment renumbers paragraphs consequentially on the omission of
section 19 (4) (e).
[2.4] Section
45 (4), definition of law
substitute
law means—
(a) an Act, subordinate law or disallowable instrument; or
(b) a Commonwealth Act, or any regulations, rules, ordinance or
disallowable instrument under a Commonwealth Act; or
(c) a provision of a law mentioned in paragraph (a) or (b).
Explanatory note
This amendment remakes the definition to be consistent in style with the
definition of law of another jurisdiction in section
47 (10).
omit
instrument is made
substitute
relevant instrument is made
Explanatory note
This amendment clarifies a provision.
substitute
(d) does not include a number that would give the instrument a unique
name; or
(e) is otherwise not in accordance with current legislative drafting
practice.
Explanatory note
This amendment inserts an additional paragraph (e) for consistency with
existing section 60 (2) (b). The amendment will allow the
parliamentary counsel to ensure that registrable instruments included on the
register are correctly named. The correct, consistent naming of instruments
will facilitate access to instruments on the register.
[2.7] Section
60 (1), new example
after example for par (d), insert
Example for par (e)
A registrable instrument has the name ‘XYY Amendment Order 2002
(No 1)’. The instrument was made under the XYZ Act 2000 (the
authorising Act). The name of the instrument does not correctly
reflect the name of the authorising Act.
Explanatory note
This amendment includes an example to illustrate the operation of new
section 60 (1) (e).
omit
repealed
substitute
amended
Explanatory note
This amendment corrects a minor error.
[2.9] Section
75 (1), new example
insert
Example
The XYZ Act 2002 was notified on 1 October 2002. It contains the
following provision:
2 Commencement
This Act commences on 1 December 2002.
The provisions of the XYZ Act 2002 providing for its name and
commencement commence on 1 October 2002.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see s 126 and s 132).
Explanatory note
This amendment inserts a new example.
substitute
(2) However, if a provision of the law is taken to have commenced before
the law’s notification day, the naming and commencement provisions are
taken to have automatically commenced—
(a) on that commencement; or
(b) if 2 or more provisions of the law are taken to have commenced at
different times before the notification day—on the earlier or earliest of
the commencements.
Example
2 Commencement
(1) This Act, other than sections 9 and 10, commences on a day fixed by the
Minister by written notice.
(2) Section 9 is taken to have commenced on 1 July 2001.
(3) Section 10 is taken to have commenced on 1 August 2001.
The provisions of the XYZ Act 2001 providing for its name and
commencement are taken to have commenced on 1 July 2001.
Explanatory note
This amendment recasts the subsection to make it more self-explanatory.
The operation of the subsection is unchanged. The amendment also updates the
example to bring it more closely into line with the amended example to section
77 (1) and omits a note that is unnecessary in section 75 (2) because it is
included in section 75 (1).
[2.11] Section
77 (1), example
omit
by notice
substitute
by written notice
Explanatory note
This amendment updates an example to bring it more closely into line with
the definition of commencement notice in section
11.
[2.12] Section
79 (1), example
omit
by notice
substitute
by written notice
Explanatory note
This amendment updates an example to bring it more closely into line with
the amended example to section 77 (1).
omit
(the law concerned),
substitute
, (the law concerned)
Explanatory note
This amendment corrects punctuation.
[2.14] Section
82, definition of repeal
substitute
repeal includes lapse and expiry.
Explanatory note
This amendment adds ‘lapse’ to the definition of repeal
in section 82.
[2.15] Section
88 heading
substitute
88 Repeal does not end effect of transitional laws
etc (IA s 42)
Explanatory note
This amendment revises the section heading to more accurately reflect the
contents of the section.
after
automatically
insert
repealed
Explanatory note
This amendment inserts a missing word.
[2.17] New
section 89 (5A)
insert
(5A) If an instrument making, or evidencing, an appointment (including an
acting appointment) is a registrable instrument, the instrument is automatically
repealed on the day the appointment ends.
Explanatory note
This amendment inserts a provision for the automatic repeal of registrable
instruments making, or evidencing, appointments when the appointments end. The
amendment will ensure that the instruments can be removed from the current part
of the ACT legislation register when the appointments end. This will ensure
that the current part of the register is not cluttered up, over time, with
instruments about appointments that have ended. Instruments removed from the
current part of the register will continue to be accessible in the repealed part
of the register.
[2.18] Section
89 (9), new definition of amend
insert
amend does not include modify.
Explanatory note
This amendment makes it clear that the provisions of the section about the
automatic repeal of amending laws and provisions do not apply to modifying laws
and provisions. A modifying law or provision has the effect of modifying the
operation of the law (see Legislation Act, s 95). Accordingly, it is not
appropriate that they should be automatically repealed in the same way as
amending laws and provisions.
renumber subsections when Act next republished under Legislation Act
2001
Explanatory note
This amendment provides for the consequential renumbering of
subsections.
[2.20] Section
89, example 1 heading
substitute
Example 1 for s 89
Explanatory note
This amendment revises the example heading to make it clear that the
example is an example of the section.
[2.21] Section
89, example 1
omit
Its repealing provisions, and its other provisions apart from the amending
provisions, commence on the date of notification, 21 March 2002. Its amending
provisions commence on a date fixed by the Minister by notice, 12 April
2002.
substitute
Its repealing provisions, and its other provisions apart from the naming
provision, the commencement provision and the amending provisions, commence on
the day after its notification day, 22 March 2002. Its amending provisions
commence on a date fixed by the Minister by written notice, 12 April
2002.
Explanatory note
This amendment revises part of an example to bring it more closely into
line with other provisions of the Act, especially section 73 (General rules
about commencement). Section 73 was amended by the Legislation Amendment
Act 2002 to change the default commencement date.
[2.22] Section
89, example 2 heading
substitute
Example 2 for s 89
Explanatory note
This amendment revises the example heading to make it clear that the
example is an example of the section.
insert
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see s 126 and s 132).
Explanatory note
This amendment inserts a standard note.
[2.24] Section
94 (1) and (2)
substitute
(1) This section applies if—
(a) a law expressly or impliedly authorises or requires—
(i) the making of an appointment or statutory instrument; or
(ii) the delegation of a function; or
(iii) the issue of a licence or permit (however described); or
(iv) the doing (however described) of anything else; and
(b) the law is amended by another law; and
(c) under the amended law—
(i) the appointment or statutory instrument may be made; or
(ii) the function may be delegated; or
(iii) the licence or permit may be issued; or
(iv) the thing may be done;
whether by the same or a different entity.
Examples for par
(a) (iv)
1 the giving of an approval, consent or permission
2 the making of a recommendation
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see s 126 and s 132).
(2) An appointment, statutory instrument, delegation, licence, permit or
other thing mentioned in subsection (1) that was in force immediately before the
commencement of the amendment continues to have effect as if it had been made,
issued or done (however described) under the amended law.
Explanatory note
This amendment remakes section 94 (1) and (2) to expressly include
licences and permits as things that continue to have effect if the law under
which they are issued is amended. The amendment also includes examples and makes
it clear that ‘doing’ and ‘done’ are intended to cover
actions that are described using other verbs in the relevant law (eg
give).
[2.25] Section
101 (1), example
omit
section and subsection
substitute
section, subsection and paragraph
Explanatory note
This amendment corrects a minor error.
omit
it
substitute
the word or expression (or, if the reference includes a reference to the
definition of another word or expression, that word or expression)
Explanatory note
This amendment extends the provision about the meaning of signpost
definitions to signpost definitions that define the meaning of a word or
expression by reference to the definition of another word or expression (see
example inserted by next amendment).
[2.27] Section
131 (1), new example 3
insert
3 A signpost definition ‘OH&S Council—see the XYZ Act
2000, dictionary, definition of council.’ means that the
expression ‘OH&S Council’ has the same meaning as the word
‘council’ has in the definition of council in the
XYZ Act 2000, dictionary, as in force from time to time.
Explanatory note
This amendment inserts an example to explain the operation of the previous
amendment of section 131 (1).
[2.28] Section
134 (3), 2nd example
omit
retains possession of
substitute
keeps
Explanatory note
This amendment updates language.
[2.29] Section
135 (2) and (3), examples
omit
not exceeding
substitute
of not more than
Explanatory note
This amendment updates language.
[2.30] Section
139 (2) (e)
omit
memorandum
substitute
statement (however described)
Explanatory note
This amendment updates a reference to the explanatory material presented
with a bill.
[2.31] Section
151 (3), example 2
omit
not later
substitute
not later than
Explanatory note
This amendment corrects a minor error.
substitute
152 Continuing effect of
obligations
If, under a provision of an Act or statutory instrument, an act is required
to be done, the obligation to do the act continues until the act is done even
if—
(a) the provision required the act to be done within a particular period
or before a particular time, and the period has ended or the time has passed;
or
(b) someone has been convicted of an offence in relation to failure to do
the act.
Explanatory note
This amendment remakes the section to clarify that an obligation to do an
act continues until the act is done even if someone has been convicted of an
offence for failing to do the act (see also s 193 (Continuing
offences)).
[2.33] Section
161 (2), example
omit
2 000 penalty units
substitute
100 penalty units
Explanatory note
This amendment makes the example consistent with section
161 (3).
[2.34] New
section 227 (3)
insert
(3) In this section:
public servant includes a fire commissioner, deputy fire
commissioner or other member of the fire brigade.
Explanatory note
This amendment clarifies that a fire commissioner, deputy fire commissioner
or other member of the fire brigade is a public servant for division 19.3.3. An
appointment to which that division applies must be the subject of Assembly
consultation before it is made, and is disallowable. These requirements,
previously found in the Statutory Appointments Act 1994, were transferred
to the Legislation Act by the Legislation Amendment Bill 2002. The
requirements are expressed not to apply to appointments of public servants.
Members of the fire brigade were regarded as public servants for the Statutory
Appointments Act and there was no intention to change this when the provisions
were moved into the Legislation Act. However, the terms ‘public
servant’ and ‘public service’ have been expressly defined in
the Legislation Act and ‘public servant’ now means someone employed
in the Australian Capital Territory Public Service. As the fire brigade is
constituted under the Fire Brigade (Administration) Act 1974 and is not
part of the ACT public service constituted under the Public Sector Management
Act 1994, section 227 is being amended to ensure that appointments of people
who are already employed under the Fire Brigade (Administration) Act are not
caught by division 19.3.3.
[2.35] Section
229 heading
substitute
229 Appointment is disallowable
instrument
Explanatory note
This amendment remakes the heading to make it more informative.
omit
opinion, belief or
Explanatory note
This amendment is consequential on the insertion into section 239 of a new
definition of state of mind.
[2.37] New
section 239 (5)
insert
(5) In this section:
state of mind includes knowledge, intention, opinion, belief
or purpose.
Explanatory note
This amendment inserts a new definition of state of mind to
clarify the meaning of the term in section 239. The term is intended to have a
wide meaning and is defined in an inclusive way.
omit
A document
substitute
(1) A document
Explanatory note
This amendment is consequential on the insertion of new section
247 (2).
[2.39] New
section 247 (2)
insert
(2) This section applies to service of a document outside the ACT in the
same way as it applies to service of the document in the ACT.
Explanatory note
This amendment inserts a new subsection to make it clear that the section
applies to service of documents outside the ACT (eg sending a licence renewal by
prepaid post to the business address of an individual in NSW). The effect of
the section is subject to section 251. Section 251 preserves the operation
of other laws that require service of documents (eg court processes) otherwise
than as provided in the section.
omit
A document
substitute
(1) A document
Explanatory note
This amendment is consequential on the insertion of new section
248 (2).
[2.41] New
section 248 (2)
insert
(2) This section applies to service of a document outside the ACT in the
same way as it applies to service of the document in the ACT.
Explanatory note
This amendment inserts a new subsection to make it clear that the section
applies to service of documents outside the ACT (eg sending a licence renewal by
prepaid post to the registered office of a corporation in NSW). The effect of
the section is subject to section 251. Section 251 preserves the operation
of other laws that require service of documents (eg court processes) otherwise
than as provided under part 19.5.
substitute
(2) The authorising law authorises a form to be approved or prescribed in
relation to any matter under or in relation to the relevant law.
Explanatory note
This amendment brings language into line with language used elsewhere in
the Act (see especially new definition of in relation to inserted
by another amendment in this part).
[2.43] Schedule
1, part 1.1
substitute
Part 1.1 Former NSW and UK Acts in force
before establishment of Territory
column 1
item
|
column 2
name of Act
|
column 3
number or date of assent and original
jurisdiction
|
1
|
Magna Carta
|
(1297) 25 Edw 1 c 29 (UK)
|
2
|
Criminal and Civil Justice Act 1351
|
25 Edw 3 St 5 c 4 (UK)
|
3
|
Due Process of Law Act 1354
|
28 Edw 3 c 3 (UK)
|
4
|
Due Process of Law Act 1368
|
42 Edw 3 c 3 (UK)
|
5
|
Free Access to Courts Act 1400
|
2 Hen 4 c 1 (UK)
|
6
|
Petition of Right 1627
|
3 Chas 1 c 1 (UK)
|
7
|
Bill of Rights 1688
|
1 Will and Mary sess 2 c 2 (UK)
|
8
|
Act of Settlement 1700
|
12 and 13 Will 3 c 2 (UK)
|
9
|
Set-off of Debts Act 1728
|
2 Geo 2 c 22 (UK)
|
10
|
Set-off of Debts Act 1735
|
8 Geo 2 c 24 (UK)
|
11
|
Royal Marriages Act 1772
|
12 Geo 3 c 11 (UK)
|
12
|
Foreign Tribunals Evidence Act 1856
|
19 and 20 Vic c 113 (UK)
|
13
|
Evidence by Commission Act 1859
|
22 Vic c 20 (UK)
|
14
|
Public Instruction Act 1880
|
43 Vic No 23 (NSW)
|
15
|
Evidence by Commission Act 1885
|
48 and 49 Vic c 74 (UK)
|
16
|
Contractors Debts Act 1897
|
No 29 (NSW)
|
17
|
Conveyancing and Law of Property Act 1898
|
No 17 (NSW)
|
18
|
Landlord and Tenant Act 1899
|
No 18 (NSW)
|
19
|
Crimes Act 1900
|
No 40 (NSW)
|
20
|
Truck Act 1900
|
No 55 (NSW)
|
21
|
Judgment Creditors Remedies Act 1901
|
No 8 (NSW)
|
22
|
Games, Wagers and Betting Houses Act 1901
|
No 18 (NSW)
|
23
|
Arrest on Mesne Process Act 1902
|
No 24 (NSW)
|
24
|
Innkeepers Liability Act 1902
|
No 64 (NSW)
|
25
|
Pawnbrokers Act 1902
|
No 66 (NSW)
|
26
|
Public Roads Act 1902
|
No 95 (NSW)
|
27
|
Anglican Church of Australia Constitutions Act 1902
|
24 December 1902 (NSW)
|
28
|
Fertilisers Act 1904
|
No 33 (NSW)
|
29
|
Forfeiture and Validation of Leases Act 1905
|
No 8 (NSW)
|
30
|
Free Education Act 1906
|
No 12 (NSW)
|
31
|
Gaming and Betting Act 1906
|
No 13 (NSW)
|
32
|
Second-hand Dealers Act 1906
|
No 30 (NSW)
|
Explanatory note
This amendment updates this table, including because some Acts that were in
the table are repealed by this Act (see this Act, sch 4).
[2.44] Dictionary,
part 1, new definition of AAT
insert
AAT—see definition of administrative appeals
tribunal.
Explanatory note
This amendment inserts a signpost definition in accordance with current
drafting practice.
[2.45] Dictionary,
part 1, definition of ADI
substitute
ADI—see definition of authorised deposit-taking
institution.
Explanatory note
This amendment remakes the definition of ADI as a signpost
definition in accordance with current drafting practice.
[2.46] Dictionary,
part 1, definition of authorised deposit-taking
institution
substitute
authorised deposit-taking institution (or ADI)
means an authorised deposit-taking institution under the Banking Act 1959
(Cwlth).
Explanatory note
This amendment remakes the definition of authorised deposit-taking
institution to include reference to the acronym ADI in accordance with
current drafting practice.
[2.47] Dictionary,
part 1, new definition of DPP
insert
DPP—see definition of director of public
prosecutions.
Explanatory note
This amendment inserts a signpost definition in accordance with current
drafting practice.
[2.48] Dictionary,
part 1, definition of found guilty
substitute
found guilty, of an offence, includes—
(a) having the offence taken into account under the Crimes Act
1900, section 357 (which is about taking outstanding charges into account
when passing sentence); and
(b) having an order made in relation to the offence under the Crimes
Act 1900, section 402 (Conditional release of offenders without
proceeding to conviction) or the Children and Young People Act 1999,
section 98 (Disposition without proceeding to conviction).
Explanatory note
This amendment remakes the definition of found guilty to
include the information in brackets about the sections mentioned in the
definition and to change the cross-reference to the Children and Young People
Act 1999 to the appropriate provision.
[2.49] Dictionary,
part 1, new definition of in relation to
insert
in relation to includes the following:
(a) in respect of;
(b) with respect to;
(c) in connection with;
(d) in regard to;
(e) with reference to;
(f) relating to;
(g) for or with respect to.
Explanatory note
This amendment inserts a new definition of in relation to.
This is the standard connecting phrase used in ACT drafting.
[2.50] Dictionary,
part 1, new definition of Legislation Act
insert
Legislation Act means the Legislation Act
2001.
Explanatory note
This amendment inserts a new definition of Legislation
Act.
[2.51] Dictionary,
part 1, definition of prescribed
after
or
insert
under
Explanatory note
This amendment brings the definition more closely into line with section
104 (References to laws include references to instruments under laws) and makes
it clear that matters can be prescribed under an Act by instruments made under
regulations under the Act. See also definition of under in the
Legislation Act, dictionary, part 1.
[2.52] Dictionary,
part 1, definition of tenancy tribunal
omit
Explanatory note
This amendment omits a redundant definition. The tenancy tribunal was
abolished by the Leases (Commercial and Retail) Act 2001.
[2.53] Dictionary,
part 1, definition of Territory plan
omit
as in force from time to time
Explanatory note
This amendment omits unnecessary words. A reference to a law or instrument
includes a reference to the law or instrument as originally made, and as amended
from time to time since it was originally made (see Legislation Act, s
102 (1) (a)).
[2.54] Further
amendments, mentions of with respect to
omit
with respect to
substitute
in relation to
in
• section 44 (1)
• section 45 (1)
• section 48 (1) (a)
• section 50 (1)
• section 56 (2)
• section 307 (1)
Explanatory note
This amendment is consequential on the insertion (by another amendment in
this part) of a definition of in relation to in the Legislation
Act, dictionary, part 1. Under that definition, in relation to
includes ‘with respect to’.
Schedule
3 Technical
amendments
(see s 5)
Part
3.1 ACTION Authority Act
2001
[3.1] Section
36A (1) (b)
omit
section 22 (1)
substitute
section 36AA
Explanatory note
This amendment updates a cross reference consequent on the relocation of
section 22 as section 36AA by another Act.
omit
section 22
substitute
section 36AA
Explanatory note
This amendment updates a cross reference consequent on the relocation of
section 22 as section 36AA by another Act.
Part
3.2 Casino Control Act
1988
substitute
4 Designation of casino
The regulations may designate an area to be the casino for this
Act.
Explanatory note
This amendment brings the provision into line with other ACT laws that
provide for the making of regulations by the Executive rather than a Minister
(see Legislation Act, s 41).
Part
3.3 Civil Law (Wrongs) Act
2002
insert
146A Abolition of torts of maintenance and
champerty
(1) The torts of maintenance and champerty are abolished.
Note For the abolition of the common law offences of maintenance,
champerty and being a common barrator, see Law Reform (Miscellaneous
Provisions) Act 1955, s 68.
(2) Subsection (1) does not affect any rule of law about—
(a) the illegality or avoidance of contracts that are tainted with
maintenance or are champertous; or
(b) the misconduct of a lawyer who—
(i) engages in conduct that would have been maintenance at common law;
or
(ii) is a party to a champertous agreement.
Explanatory note
This amendment relocates provisions about the abolition of the torts of
maintenance and champerty from the Law Reform (Miscellaneous Provisions) Act
1955 to the Civil Law (Wrongs) Act 2002.
insert
154A Abolition of torts of maintenance and
champerty—saving of existing rights and liabilities
(1) The Legislation Act 2001, section 84 (Saving of operation of
repealed and amended laws) applies to the abolition of a tort under section 151A
as if the section repealed a law.
(2) This section expires on the expiry of section 150.
(3) Subsection (1) is declared to be a provision to which the
Legislation Act 2001, section 88 (Repeal does not end transitional or
validating effect etc) applies.
Explanatory note
This amendment is consequential on the relocation by another amendment in
this schedule of provisions about the abolition of the torts of maintenance and
champerty from the Law Reform (Miscellaneous Provisions) Act 1955 to the
Civil Law (Wrongs) Act 2002. Subsections (2) and (3) are added to
provide for the expiry of the section and the preservation of its ongoing
transitional effect.
Part
3.4 Credit Regulations (Amendment)
1994 No
33[3.6] Regulation
2
substitute
2 Commencement
These regulations commence on the day they are notified in the
Gazette.
(commencement: 7 October 1994)
Explanatory note
The commencement provision of these regulations provided that the
regulations ‘commence on the day on which section 7 of the Credit
(Amendment) Act 1994 commences’. That Act commenced on 5 October 1994
(that is, the day that Act was notified in the Gazette). However, the
regulations were not notified in the Gazette until 7 October
1994.
The backdating of this amendment makes it clear that the regulations
validly commenced on the day they were notified in the Gazette. This result is
consistent with the provision now made by the Legislation Act, section 73 (3)
(which is about the commencement of laws).
omit
thereby
substitute
by the assault
Explanatory note
This amendment updates language.
omit
1999
substitute
1999)
Explanatory note
This amendment corrects a minor error.
substitute
(1) In this section:
conveyance—see section 27 (1).
interferes with—see section 27 (2).
public utility service—see section 27 (1).
transport facility—see section 27 (1).
Explanatory note
This amendment changes the definitions to signpost definitions in
accordance with current drafting practice.
omit
thereby
substitute
by the abandonment or exposure
Explanatory note
This amendment updates language.
[3.11] Section
49 heading
substitute
49 Alternative verdicts for certain offences against
the person
Explanatory note
This amendment remakes the heading to make the section’s scope
clearer.
[3.12] Section
56 (1), definition of adult
omit
Explanatory note
This amendment omits an unnecessary definition (see Legislation Act, dict,
pt 1, def adult).
omit everything after
unless
substitute
the evidence is rebutted by the prosecution.
Explanatory note
This amendment updates language.
omit
in loco parentis
substitute
in place of a parent
Explanatory note
This amendment updates language.
[3.15] Section
66 (6), definition of classified
substitute
classified—see the Classification (Publications,
Films and Computer Games) (Enforcement) Act 1995, dictionary.
Explanatory note
This amendment revises a signpost definition in accordance with current
drafting practice.
[3.16] Section
70 heading
substitute
70 Alternative verdicts for certain sexual
offences
Explanatory note
This amendment remakes the heading to make the section’s scope
clearer.
[3.17] Section
76 (2) (a)
omit
midwife
substitute
registered midwife under the Nurses Act 1988
Explanatory note
This amendment allows section 76 (4), which defines a midwife, to be
omitted.
omit
Explanatory note
This amendment omits the definition of midwife that was made
redundant by amendment of section 76 (2) (a) by another amendment in this
schedule.
[3.19] Section
78 heading
substitute
78 Meaning of sexual servitude and sexual
services for pt 5
Explanatory note
This amendment brings the heading into line with current drafting practice.
omit
refuses or
Explanatory note
This amendment omits unnecessary words (see Legislation Act, dict, pt 1,
def fail).
omit
In
substitute
(1) In
Explanatory note
This amendment is consequential on the insertion of new section
155 (2) by another amendment.
[3.22] New
section 155 (2)
insert
(2) In this section:
document of title to land includes any document that is or
contains evidence of title to the land or an interest in the land.
Note Interest, in relation to land or other property,
is—
(a) a legal or equitable estate in the land or other property; or
(b) a right, power or privilege over, or in relation to, the land or other
property.
See Legislation Act, dict, pt 1, def interest.
Explanatory note
The dictionary definition of document of title to land is
omitted by another amendment in this schedule. The term is used only in section
155 and the definition is relocated and recast in accordance with current
drafting practice.
omit
refuses or
Explanatory note
This amendment omits unnecessary words (see Legislation Act, dict, pt 1,
def fail).
substitute
(3) In this section:
Commonwealth officer—see the Crimes Act 1914
(Cwlth), section 3.
constable—see the Crimes Act 1914 (Cwlth),
section 3.
Explanatory note
This amendment updates the definitions to current definition
style.
[3.25] Sections
167, 168, 170 and 173 (1)
omit
Whosoever
substitute
A person who
Explanatory note
This amendment updates language.
[3.26] Section
195 (2) (b)
substitute
(b) to—
(i) seize things of that kind; or
(ii) record fingerprints from things; or
(iii) to take forensic samples from things;
found in the course of the search; and
Explanatory note
This amendment inserts ‘or’ at the end of subparagraph (b) (i)
and (ii) in accordance with current drafting practice.
[3.27] Sections
211 (2) (d) and (3) (d) and 232 (2)
omit
refuse or
Explanatory note
This amendment omits unnecessary words (see Legislation Act, dict, pt 1,
def fail).
omit
Explanatory note
This amendment omits an unnecessary definition (see Legislation Act, dict,
pt 1, def commissioner of police).
omit
Explanatory note
This amendment omits a redundant provision. The section defines
Act and statute. Act is defined in
the Legislation Act and the definition of statute is
redundant.
omit
in connection therewith or consequent thereon.
substitute
in relation to, or consequent on, the trial.
Explanatory note
This amendment updates archaic language.
omit
therein
substitute
in the indictment
Explanatory note
This amendment updates archaic language.
omit
in respect thereof
substitute
in relation to them
Explanatory note
This amendment updates archaic language.
substitute
285 Accused may be defended by
lawyer
(1) An accused person has the right in any court to—
(a) make a full answer and defence to a charge by a lawyer; and
(b) reserve the person’s address until after the close of the
evidence for the defence.
(2) If the accused person reserves the person’s address until after
the close of the evidence for the defence, all evidence in reply for the
prosecution must be given before the person’s address.
Explanatory note
This amendment updates language and otherwise brings the section more
closely into line with current drafting practice.
[3.34] Section
288 (3) (d)
substitute
(d) if the defendant is told by or on behalf of the prosecution that the
person has not been found by the name, or at the address, given by the
defendant—
(i) the defendant immediately gives notice of any information in the
defendant’s possession that might be of material assistance in finding the
person; or
(ii) if the defendant later receives any such information—the
defendant immediately gives the prosecution notice of the information.
Explanatory note
This amendment updates the paragraph’s language and improves its
structure.
substitute
295 Witnesses in mitigation
(1) This section applies before a court passes sentence on a convicted
person.
(2) The court may, at its own initiative or at the request of the
prosecution or the convicted person, summon witnesses and examine them on oath
in relation to any matter in extenuation of the person’s
offence.
Explanatory note
This amendment updates language and otherwise brings the section more
closely into line with current drafting practice.
[3.36] Section
300, definition of court
omit
Explanatory note
This amendment omits a redundant definition.
omit
Explanatory note
This amendment omits the definition of available documents
which is included in subsection (16) by another amendment in this
schedule.
[3.38] Section
350 (16), new definition of available documents
insert
available documents means any of the following:
(a) any written statements or admissions that were made for use as
evidence at a trial and would have been admissible as evidence at the trial;
(b) the depositions taken at any committal proceeding;
(c) any written statements or admissions used as evidence in any committal
proceeding.
Explanatory note
This amendment relocates a definition to the subsection containing other
definitions for the section and updates the form of the definition.
[3.39] Section
350 (15) and (16)
renumber as section 350 (14) and (15) when Act next republished under
Legislation Act 2001
Explanatory note
This amendment is consequential on the omission of section 350 (14) by
another amendment in this schedule.
omit
thereof
substitute
of the sentence or sentences
Explanatory note
This amendment updates archaic language.
[3.41] Section
367 (1) (b)
substitute
(b) in any other case—order that the article be forfeited to the
Territory.
Explanatory note
This amendment updates language.
[3.42] Section
367 (2) (a)
substitute
(a) if it is satisfied that the article should be forfeited—order
that the article be forfeited to the Territory; or
Explanatory note
This amendment updates language.
omit
member of the police force
substitute
police officer
Explanatory note
This amendment updates a reference.
omit
Explanatory note
This amendment omits a reference to the Fines and Penalties Act 1901
(NSW) which is no longer in force in the ACT.
[3.45] Section
403 (6) and (7)
renumber as section 403 (5) and (6) when Act next republished under
Legislation Act 2001
Explanatory note
This amendment is consequential on the omission of section 403 (5) by
another amendment in this schedule.
omit
in all or any of the following ways, that is to say, by:
substitute
in 1 or more of the following ways:
Explanatory note
This amendment updates language.
substitute
(10) In this section:
authorised person means the Attorney-General or a person
appointed under the Supreme Court Act 1933, section 68 (1) to prosecute
indictable offences triable before the Supreme Court.
variation, in relation to how instalments of a penalty are to
be paid, includes a variation of the amount of any instalments of the
penalty.
Explanatory note
This amendment recasts the form of the definition of
variation in accordance with current drafting practice.
omit
refuses or
Explanatory note
This amendment omits unnecessary words (see Legislation Act, dict, pt 1,
def fail).
substitute
416 Service of documents
A document may be served under this Act on a person—
(a) by giving a copy of the document to the person; or
(b) by leaving a copy of the document, addressed to the person, at the
person’s last-known home or business address with someone who appears to
be at least 16 years old and to live or be employed at the address.
Note For other ways of serving documents, see Legislation Act, pt
19.5.
Explanatory note
This amendment updates the section and inserts a new note about the service
of documents.
omit
Explanatory note
This amendment omits a provision that gives the Supreme Court jurisdiction
to hear and decide matters about community service orders. The section is
unnecessary because the Legislation Act, section 176 provides for the
jurisdiction of courts.
[3.51] Dictionary,
new notes
insert
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 In particular, the Legislation Act, dict, pt 1, defines the
following terms:
• Act
• adult
• contravene
• chief police officer
• commissioner of police
• director of public prosecutions
• fail
• indictable offence (see also s 190)
• judge
• lawyer
• magistrate
• medical practitioner
• penalty unit (see also s 133)
• police officer
• summary offence (see also s 190)
• the Territory.
Explanatory note
This amendment inserts standard dictionary notes.
[3.52] Dictionary,
definition of document of title to land
omit
Explanatory note
This amendment is consequential on the insertion of the definition into
section 155 by another amendment in this schedule.
[3.53] Dictionary,
definition of medical practitioner
omit
Explanatory note
This amendment omits an unnecessary definition (see Legislation Act, dict,
pt 1, def medical practitioner).
Part
3.6 Crimes Legislation Amendment Act
2001
omit
Explanatory note
This amendment omits the Crimes Legislation Amendment Act 2001, part
11. That part makes amendments of the Supreme Court Act 1933 that are no
longer necessary. The amendments were consequential on another proposed
amendment of the Supreme Court Act (the insertion of new section 37R) by the
Crimes Legislation Amendment Bill 2001. However, proposed section 37R was
omitted from the bill by an amendment during the passage of the bill.
Part
3.7 Domestic Animals Act
2000
[3.55] Dictionary,
definition of animal welfare offence
substitute
animal welfare offence means an offence against a provision
of any of the following sections of the Animal Welfare Act
1992:
(a) section 7 (Cruelty);
(b) section 8 (Pain);
(c) section 9 (Confined animals);
(d) section 10 (Alleviation of pain);
(e) section 11 (Release);
(f) section 12 (Administering poison);
(g) section 12A (Laying poison);
(h) section 13 (Electrical devices);
(i) section 14 (Spurs);
(j) section 15 (Conveyance and containment);
(k) section 15A (Carriage of dogs);
(l) section 16 (Working, riding and driving unfit animals);
(m) section 17 (Matches, competitions and baiting);
(n) section 19 (Medical and surgical procedures—people other than
veterinary surgeons).
Explanatory note
This amendment updates the definition consequent to amendments of the
Animal Welfare Act 1992 by the Animal Welfare Amendment Act 2000,
as follows:
• by inserting the offences under new section 12A (Laying poison) and
new section 15A (Carriage of dogs) inserted by the amending Act;
• by consequentially amending the references to the headings to
sections 12 and 19.
The offences in new sections 12A and 15A are similar in nature to the other
offences mentioned in the definition.
Part
3.8 Evidence (Miscellaneous
Provisions) Act 1991
substitute
Part 2 Giving of evidence about sexual
offences
Explanatory note
This amendment omits from the heading a reference to children to bring the
heading’s scope into line with the contents of the part.
Part
3.9 Health Professionals (Special
Events Exemptions) Act 2000
[3.57] Section
3, new definition of drugs and poisons standard
insert
drugs and poisons standard—see the Poisons and Drugs
Act 1978, dictionary.
Explanatory note
This amendment is consequential on amendments of the Poisons and Drugs
Act 1978 made by this schedule.
[3.58] Section
3, definition of restricted substance
substitute
restricted substance means—
(a) a substance mentioned in the drugs and poisons standard, schedule
4;
(b) a restricted substance under the Poisons and Drugs Act 1978; or
(c) a drug of dependence under the Drugs of Dependence Act
1989.
Explanatory note
This amendment is consequential on amendments of the Poisons and Drugs
Act 1978 made by this schedule.
Part
3.10 Health Professions Board
(Procedures) Act 1981
omit
(1) The chairperson
substitute
The chairperson
Explanatory note
This amendment is consequential on the omission of section 5 (2) by the
next amendment.
substitute
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, div 19.3.
Note 2 In particular, an appointment may be made by naming a person
or nominating the occupant of a position (see s 207).
Note 3 Certain Ministerial appointments require consultation with an
Assembly committee and are disallowable (see Legislation Act,
div 19.3.3).
Explanatory note
This amendment omits section 5 (2) which makes the appointment of the
chairperson and each board member by the Minister a notifiable instrument. The
omission allows the Legislation Act, division 19.3.3
(Appointments—Assembly consultation) to apply to the appointments. The
amendment also adds standard notes about appointments.
substitute
1 Name of Act
This Act is the Lakes Act 1976.
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain words
and expressions used in this Act.
Note 2 A definition in the dictionary applies to the entire Act
unless the definition, or another provision of the Act, provides otherwise or
the contrary intention otherwise appears (see Legislation Act, s 155 and
s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5)
for the legal status of notes.
Explanatory note
This amendment brings the naming provision of the Act into line with
current drafting practice, adds standard dictionary and notes provisions and
omits the definition section for the Act. A new dictionary is inserted by
another amendment.
substitute
(1) The following provisions do not bind the Territory:
• section 16 (General restrictions on boats)
• section 17 (Restrictions on bathing, swimming and diving)
• section 18 (Interference with signs)
• section 19 (2) and (3) (Approved buoys, wharves and
jetties)
• section 20 (2) (Restrictions on mooring)
• section 24 (Anchoring of boats)
• section 25 (3) (Mooring of boats)
• section 29 (2) (Restriction on use of hovercraft)
• section 32 (Camping and caravanning).
Explanatory note
This amendment updates section heading references consequentially on other
amendments.
[3.63] Sections
6, 7 and 8
substitute
6 Delegate for lakes
The chief executive must appoint a public servant as the Delegate for
Lakes.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person
or nominating the occupant of a position (see s 207).
7 Inspectors
(1) The chief executive may appoint a public servant as an inspector for
this Act.
Note See the notes to s 6. Also, a person may be appointed for a
particular provision of the Act (see Legislation Act, s 7 (3)).
(2) The delegate for lakes and police officers are also
inspectors.
8 Identity cards
(1) The chief executive must issue the delegate for lakes and an inspector
(other than a police officer) with an identity card that states the person is an
inspector for this Act, or stated provisions of this Act, and
shows—
(a) a recent photograph of the person; and
(b) the name of the person; and
(c) the date of issue of the card; and
(d) a date of expiry for the card; and
(e) anything else prescribed under the regulations.
(2) A person who ceases to be an inspector must return his or her identity
card to the chief executive as soon as practicable, but no later than 7 days
after ceasing to be an inspector.
Maximum penalty (subsection (2)): 1 penalty unit.
Explanatory note
This amendment removes the requirement that the chief executive must create
and maintain offices for inspectors etc in the public service. The Legislation
Act, section 207 provides that an appointment may be made by naming the
person appointed or by nominating the occupant of a position (however
described), at a particular time or from time to time. Standard notes about
appointments are also inserted.
This amendment also updates the provision about identity cards.
substitute
10 Obstruction or hindrance of
inspectors
(1) A person must not, without reasonable excuse, obstruct or hinder an
inspector in the exercise of the inspector’s functions under this
Act.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) A person must not, without reasonable excuse, contravene a direction
given by an inspector under this Act.
Maximum penalty: 50 penalty units.
Explanatory note
This amendment updates language.
[3.65] Section
13 heading
13 Alterations in flow and water
level
Explanatory note
This amendment brings the section’s heading into line with current
drafting practice by making it more descriptive of the section’s
contents.
substitute
(2) The Minister must ensure that any action necessary to minimise any
detriment, inconvenience and damage that may result from doing something under
subsection (1) is taken.
Explanatory note
This amendment updates language.
omit
by a sign erected, placed or displayed in such manner as he or she thinks
necessary
substitute
by a sign erected or displayed
Explanatory note
This amendment updates and simplifies language.
[3.68] Section
16 heading
substitute
16 General restrictions on boats
Explanatory note
This amendment brings the section’s heading into line with current
drafting practice by making it more descriptive of the section’s
contents.
[3.69] Section
17 heading
17 Restrictions on bathing, swimming and
diving
Explanatory note
This amendment brings the section’s heading into line with current
drafting practice by making it more descriptive of the section’s
contents.
[3.70] Section
21 (3) (c)
omit
commissioner for police
substitute
chief police officer
Explanatory note
This amendment updates a reference to a position.
substitute
(8) Subsections (5) and (6) do not apply to a public employee, or someone
else, who is authorised by the Territory to exercise a function in relation to a
lake.
Explanatory note
This amendment simplifies the language of the subsection in accordance with
current drafting practice.
substitute
22 Closing of parts of lake for certain
events
(1) The Minister may, by notice published in a daily newspaper circulating
in the ACT, declare a part of a lake to be a closed area for the period stated
in the notice.
(2) The Minister may also, by the notice, authorise an entity to conduct a
stated event in the closed area during the stated period.
Note Entity includes an unincorporated body, see Legislation
Act, dict, pt 1.
(3) A person must not enter the closed area during the period stated in
the notice unless, in a case to which subsection (2) applies, the person is
authorised by the entity to enter the area.
Maximum penalty: 50 penalty units.
(4) Subsection (3) does not apply to a public employee, or someone else,
who is authorised by the Territory to exercise a function in relation to the
lake.
(5) In this section:
event means a regatta, exhibition, sporting contest or other
display.
Explanatory note
This amendment combines existing sections 22 and 23 and brings them into
line with current drafting practice.
renumber as section 23 when Act next republished under Legislation Act
2001
Explanatory note
This amendment is consequential on the remaking of section 22 by another
amendment in this schedule.
omit
Explanatory note
This amendment is consequential on the remaking of section 22 by another
amendment in this schedule.
substitute
(1) A person must not anchor a boat on a lake at night.
Maximum penalty: 50 penalty units.
Explanatory note
This amendment updates language.
substitute
(4) A notice under this section may be served on a sports
club—
(a) by giving a copy of the notice to a member of the governing body of
the club; or
(b) by sending it by prepaid post, addressed to the governing body of the
club, at the club’s last-known address.
Note For other ways of serving documents, see Legislation Act, pt
19.5.
Explanatory note
This amendment brings the subsection into line with current drafting
practice.
substitute
(3) Subsections (1) and (1A) do not apply to a public employee, or someone
else, who is authorised by the Territory to exercise a function in relation to
the lake.
Explanatory note
This amendment brings the subsection into line with current drafting
practice.
renumber subsections when Act next republished under Legislation Act
2001
Explanatory note
This amendment renumbers the section’s subsections so that they form
a single sequence.
[3.79] Section
30 (2) (b)
omit
refuses or fails to comply with
substitute
contravenes
Explanatory note
This amendment updates language.
substitute
32 Camping and caravanning
A person must not camp, or allow a caravan to stand, in a lake area at
night.
Maximum penalty: 30 penalty units.
Explanatory note
This amendment updates language.
omit
portion
substitute
part
Explanatory note
This amendment updates language.
omit
by instrument
Explanatory note
This amendment omits redundant words.
substitute
37 Compliance with lighting
rules
(1) The operator of a boat that is under way, or anchored, on a lake at
night must ensure that the boat carries a light as required by this
division.
Maximum penalty: 10 penalty units.
(2) In this section:
operator means—
(a) the person in charge of the boat; or
(b) if no-one is in charge—each person on the boat; or
(c) if no-one is on the boat—the owner.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
[3.84] Section
38 (1) (b)
omit
between the hours of sunset and sunrise
substitute
at night
Explanatory note
This amendment updates language.
[3.85] Section
38 (2) to (5)
omit
A boat to which this section applies shall
substitute
The boat must
Explanatory note
This amendment updates language.
substitute
39 Light to be carried by small power
boats
(1) This section applies to a power boat that is less than 5m
long.
(2) If the boat is under way, or anchored, on a lake at night, the boat
must show a white light that is visible at a distance of 1.5km.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
omit
between the hours of sunset and sunrise
substitute
at night
Explanatory note
This amendment updates language.
substitute
40 Emergency lights
(1) The operator of a boat that is under way, or anchored, on a lake at
night must—
(a) carry an electric torch or ignited lantern ready for immediate use;
and
(b) if a light required by this division fails—show the light of the
torch or lantern in place of the failed light.
Maximum penalty: 30 penalty units.
(2) In this section:
operator means—
(a) the person in charge of the boat; or
(b) if no-one is in charge—the owner.
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
[3.89] Sections
42, 43 and 44
omit
by a provision of
substitute
under
Explanatory note
This amendment updates language.
omit
shall be deemed
substitute
is taken
Explanatory note
This amendment updates language.
omit
person or association of persons
substitute
entity
Explanatory note
This amendment updates language.
[3.92] Section
48 heading
substitute
48 Unsafe navigation of boat
Explanatory note
This amendment brings the section’s heading into line with current
drafting practice by making it more descriptive of the section’s
contents.
omit
manner
substitute
way
Explanatory note
This amendment updates language.
omit
legally qualified medical practitioner
substitute
doctor
Explanatory note
This amendment updates language.
[3.95] Section
51 heading
substitute
51 Review of decisions by AAT
Explanatory note
This amendment brings the section’s heading into line with current
drafting practice.
substitute
51A Acts and omissions of
representatives
(1) In this section:
representative, of a person, means—
(a) if the person is an individual—an employee or agent of the
person; or
(b) if the person is a corporation—an employee, agent or executive
officer of the person.
state of mind, of a person, includes—
(a) the person’s knowledge, intention, opinion, belief or purpose;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
(2) An act done or omitted to be done on behalf of a person by a
representative of the person is also taken to have been done or omitted to be
done by the person if the representative was acting within the scope of the
representative’s actual or apparent authority.
(3) However, subsection (2) does not apply if the person establishes that
reasonable precautions were taken and appropriate diligence was exercised to
avoid the act or omission.
Note A defence of reasonable precautions and appropriate diligence
is also provided for offences against pt 3 by s 30.
(4) If it is relevant to prove a person’s state of mind about an act
or omission, it is enough to show—
(a) the act was done or omission was made by a representative of the
person within the scope of the representative’s actual or apparent
authority; and
(b) the representative had the state of mind.
(5) An individual who is convicted of an offence cannot be punished by
imprisonment for the offence if the individual would not have been convicted of
the offence without subsection (2) or (4).
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
[3.97] Section
55 (2), new note
insert
Note For other provisions about forms, see Legislation Act, s
255.
Explanatory note
This amendment adds a standard note about approved forms.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 In particular, the Legislation Act, dict, pt 1, defines the
following terms:
• contravene
• doctor
• entity
• exercise
• function
• night
• penalty unit (see also s 133)
• public employee
• Territory land
• the Territory.
associated work includes a wharf or jetty, owned by the
Territory or the Commonwealth, erected in a lake area.
boat includes launch, yacht, canoe, raft, pontoon and
anything else that can carry people or goods through or on water.
commercial activities means—
(a) selling, or offering for sale, food, drink or other things;
or
(b) letting, or offering to let, on hire bicycles, boats or other things;
or
(c) carrying, or offering to carry, passengers or things in or on a boat
for fee or reward; or
(d) carrying, or offering to carry, passengers or things in or on a
horse-drawn vehicle; or
(e) carrying on the business of boat repair; or
(f) undertaking any other activities prescribed under the regulations for
this definition.
dairy bridge means the bridge over which Dairy Road is
carried across the Molonglo River.
delegate for lakes means the Delegate for Lakes appointed
under section 6.
foreshores means—
(a) for Lake Ginninderra—the land described in schedule 1;
and
(b) for any other lake—the area of land bounded by the level of the
lake and an imaginary line drawn at a distance of 100m from the high water level
of the lake;
other than land held under lease from the Commonwealth or occupied with the
authority of the Territory or the Commonwealth or under a law in force in the
ACT.
inspector means a person who is an inspector under section
7.
lake means Lake Burley Griffin, Lake Ginninderra or any other
area declared by the Minister under section 5 to be a lake.
lake area means the area consisting of a lake, the foreshores
of the lake and the islands (if any) in the lake.
Lake Burley Griffin means the waters of the Molonglo River
between Scrivener Dam and dairy bridge.
Lake Ginninderra means the body of water inside the land
described in schedule 1.
owner, of land, includes anyone with an interest in the
land.
power boat means a boat propelled by mechanical power, and
includes a boat under both power and sail.
prohibited area means a part of a lake declared by the
Minister under section 21 to be a prohibited area.
sports club means an entity established for sporting or
athletic purposes.
under way—a boat is under way unless it
is anchored, moored, aground, or made fast to the shore or a jetty.
visible, for a light, means visible on a dark night with a
clear atmosphere.
Explanatory note
This amendment inserts a new dictionary in accordance with current drafting
practice. The dictionary incorporates the definitions in section 4 (which is
omitted by another amendment) with the exception of the definition of
closed area consequent on the omission of section 23 by another
amendment. The language of several definitions has been updated in accordance
with current drafting practice and the definition of lake has been
revised by omitting ‘body of water’ and substituting
‘area’ to bring the definition into line with section 5 (Declaration
of area as lake).
Part
3.12 Law Reform (Miscellaneous
Provisions) Act 1955
[3.99] Section
68, new note
insert
Note For the abolition of the torts of maintenance and champerty,
see Civil Law (Wrongs) Act 2002, s 151A.
Explanatory note
This amendment is consequential on the relocation by another amendment in
this schedule of provisions about the abolition of the torts of maintenance and
champerty to the Civil Law (Wrongs) Act 2002.
[3.100] Sections
69 to 72
substitute
69 Saving of existing rights and
liabilities
The Legislation Act 2001, section 84 (Saving of operation of
repealed and amended laws) applies to the abolition of an offence under section
68 as if the section repealed a law.
Explanatory note
This amendment is consequential on the relocation by another amendment of
provisions about the abolition of the torts of maintenance and champerty to
the Civil Law (Wrongs) Act 2002.
Part
3.13 Mental Health (Treatment and
Care) Act 1994
omit
Explanatory note
This amendment omits a redundant provision. The provision requires a
doctor to obtain the consent of the Mental Health Tribunal before giving a
certificate relating to a person for the Mental Health Act 1962. The
section is redundant because the provision has been superseded by the Mental
Health (Treatment and Care) Act 1994 and the Mental Health Act 1962
is being repealed by schedule 5.
Part
3.14 Poisons Act
1933
substitute
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain words
and expressions used in this Act, and includes references (signpost
definitions) to other words and expressions defined elsewhere in this
Act.
For example, the signpost definition ‘drugs and poisons
standard—see the Poisons and Drugs Act 1978,
dictionary.’ means that the expression ‘poisons and drugs
standard’ is defined in the dictionary to that Act and the definition
applies to this Act.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
Explanatory note
This amendment adds standard dictionary and notes provisions and omits the
definition sections for the Act. A new dictionary inserted by another
amendment. Existing section 3 is remade as new section 19A by another amendment
in this schedule.
substitute
4 Application of Act to
Territory
(1) This Act does not bind the Territory.
(2) This section has effect despite the Legislation Act 2001,
section 121 (Binding effect of Acts).
Explanatory note
This amendment brings the section into line with current drafting practice.
substitute
6 Appointment of analysts
The chief executive may appoint a public servant as an analyst for this
Act.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see
s 207).
Explanatory note
This amendment brings the section into line with current drafting practice.
In particular, it removes the requirement that the chief executive must create
and maintain an office or offices of analyst in the public service. The
Legislation Act, section 207 provides that an appointment may be made by naming
the person appointed or by nominating the occupant of a position (however
described), at a particular time or from time to time. This amendment also adds
standard notes about appointments.
omit
any schedule 4 substances within the meaning of the Poisons and Drugs
Act 1978
substitute
any substance mentioned in the drugs and poisons standard,
schedule 4
Explanatory note
This amendment is consequential on the amendment of the Poisons and
Drugs Act 1978 by another amendment.
[3.106] Section
10 (1), new note
insert
Note The following Acts are also relevant to poisons and
drugs:
• the Drugs of Dependence Act 1989
• the Poisons and Drugs Act 1978.
Explanatory note
This amendment inserts an explanatory note to assist users of the Act.
omit
or have in his or her possession for sale
Explanatory note
This amendment omits unnecessary words. The definition of
sell includes have in possession for sale.
substitute
15 Sale or supply from vending machines
prohibited
(1) A person must not—
(a) install a vending machine for the sale or supply of a poison or
poisonous substance; or
(b) sell or supply a poison or poisonous substance using a vending
machine.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(2) In this section:
vending machine means a machine, or device, operated by a
token, money or electronic funds transfer by a member of the public.
Explanatory note
This amendment updates this section by changing the references to
‘automatic machine’ to ‘vending machine’ and inserting a
new definition of vending machine in place of the definition of
automatic machine in existing section 2 of the Act.
omit
deemed
substitute
taken
Explanatory note
This amendment updates language.
insert
19A Extended meaning of
possession
For this Act, a person is taken to be in possession of a
substance if the substance is in or on land or premises occupied, used or
controlled by the person, unless the person establishes that the person had no
knowledge of the substance being in or on land or premises occupied by the
person.
Explanatory note
This amendment remakes existing section 3 to bring it more closely into
line with current drafting practice.
[3.111] Section
20A (2), new note
insert
Note For other provisions about forms, see Legislation Act, s
255.
Explanatory note
This amendment adds a standard note about approved forms.
substitute
21 Appointment of authorised
people
The Minister may appoint a public servant as an authorised person for this
Act.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see
s 207).
Explanatory note
This amendment brings the section into line with current drafting practice.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 In particular, the Legislation Act, dict, pt 1, defines the
following terms:
• exercise
• function
• penalty unit (see also s 133)
• public employee.
analyst means an analyst appointed under section 6.
authorised person means a person appointed under section
21.
biological preparation means a substance declared to be a
biological preparation under section 10 (Declaration of substances by
Minister).
drugs and poisons standard—see the Poisons and Drugs
Act 1978, dictionary.
licence means a licence under this Act.
poison means a substance (other than a substance that is a
poison under the Poisons and Drugs Act 1978) the introduction of which
into the body of a person by any route involves the risk of death to the person,
and includes a substance declared to be a poison under section 10.
Note The following Acts are also relevant to poisons and
drugs:
• the Drugs of Dependence Act 1989
• the Poisons and Drugs Act 1978.
poisonous substance means a substance (other than a substance
that is a poison under the Poisons and Drugs Act 1978) the introduction
of which into the body of a person by any route involves the risk of material
departure from the normal health of the person, and includes a substance that is
declared to be a poisonous substance under section 10.
possession—see section 19A (Extended meaning of
possession).
Note For a general defence to possession, see s 19A.
restricted substance means a substance declared to be a
restricted substance under section 10.
sell includes—
(a) offer for sale; and
(b) expose for sale; and
(c) barter (or offer or expose for barter); and
(d) exchange (or offer or expose for exchange); and
(e) supply for value (or offer or expose to supply for value);
and
(f) supply for free (or offer or expose to supply for free) to gain or
maintain custom, or otherwise for commercial gain; and
(g) have in possession for sale.
Explanatory note
This amendment inserts a new dictionary that incorporates all the
definitions currently in section 2 (Definitions for Act) that are still needed.
The definitions have, where necessary, been revised to bring them more closely
into line with current drafting practice.
The substantive changes to the existing definitions are as
follows:
• the definition of automatic machine is omitted
consequent on the amendment of section 15 by another amendment;
• the term British pharmacopoeia is not used elsewhere
in the Act and the definition is omitted;
• the definition of licensee is omitted because other
parts of speech and grammatical forms of a defined term (ie
licence) have corresponding meanings to the defined term (see
Legislation Act, section 157).
A signpost definition of possession is also
included.
Part
3.15 Poisons and Drugs Act
1978
substitute
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain words
and expressions used in this Act.
Note 2 A definition in the dictionary applies to the entire Act
unless the definition, or another provision of the Act, provides otherwise or
the contrary intention otherwise appears (see Legislation Act, s 155 and
s 156 (1)).
2A Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
3 Incorporation of drugs and poisons standard
definitions
For this Act, a scheduled substance defined in the drugs and poisons
standard, part 1 has the meaning given in that part.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
4 Non-application of Act to certain goods containing
scheduled substances
This Act does not apply in relation to the possession, supply or use of a
good mentioned in schedule 2 that contains a scheduled substance.
Note The following Acts also apply to poisons and drugs:
• the Drugs of Dependence Act 1989
• the Poisons Act 1933.
Explanatory note
This amendment adds standard dictionary and notes provisions and omits the
definition sections for the Act. A new dictionary inserted by another
amendment.
This amendment also inserts 2 new sections. New section 3 which
incorporates the substance of existing section 3 (2) and new section 4 which
incorporates the substance of existing section 39 and relocates it in accordance
with current drafting practice.
A definition of scheduled substance, reflecting existing
section 3 (1), is included in the new dictionary. Amendments of existing
section 40 (by another amendment in this schedule) give effect to existing
section 3 (3) (which is about references to schedules to the poisons and drugs
standard).
substitute
5 Definitions for pt 2
In this part:
restricted substance means a substance prescribed under the
regulations for this definition.
specialist means a doctor who is recognised as a consultant
physician or specialist in accordance with the Health Insurance Act 1973
(Cwlth), section 61.
Explanatory note
This amendment combines existing section 4 (Meaning of
specialist in pt 2) and section 5 (Substances to which pt 2
applies) and recasts the application provision as a definition.
[3.116] Section
6 heading
substitute
6 Unauthorised prescribing or supplying by
doctors
Explanatory note
This amendment substitutes a new heading that more accurately describes the
scope of the section.
omit
a substance to which this part applies
substitute
a restricted substance
Explanatory note
This amendment simplifies the text of these provisions by using the new
definition of restricted substance that is inserted by new section
5.
omit
in a class of persons prescribed in relation to
substitute
prescribed under the regulations for
Explanatory note
This amendment updates language
omit
a substance to which this part applies
substitute
a restricted substance
Explanatory note
This amendment simplifies the text of these provisions by using the new
definition of restricted substance that is inserted by new section
5.
[3.120] Section
14 (1) (a) and (b)
substitute
(a) if the applicant is an individual—the Minister is satisfied that
the person is not suffering from a mental or physical disability that would make
the person incapable of complying with this Act; and
(b) the premises specified in the application are appropriate for storing
the poison and for manufacturing or selling the poison (as appropriate);
and
Explanatory note
This amendment updates language.
substitute
(2) A notice under section 41 (3) (a) must state the date (not earlier
than 28 days after the day the notice is given) when the variation takes
effect.
Explanatory note
This amendment updates a cross-reference and simplifies the subsection in
accordance with current drafting practice.
[3.122] Section
18 (1) (f)
omit
a natural person
substitute
an individual
Explanatory note
This amendment updates language.
omit
(2)
Explanatory note
This amendment updates a cross-reference.
[3.124] Division
4.2 heading
substitute
Division 4.2 Authorisations to use poisons
for research
Explanatory note
This amendment remakes the heading to make the division’s scope
clearer.
[3.125] Section
26 (1) (d)
omit
render
substitute
make
Explanatory note
This amendment updates language.
substitute
(2) A notice under section 41 (4) (a) must state the date (not earlier
than 28 days after the day the notice is given) when the variation takes
effect.
Explanatory note
This amendment updates a cross-reference and simplifies the subsection in
accordance with current drafting practice.
[3.127] Section
29 (1) (d)
omit
41 (2) (k)
substitute
41 (4) (a)
Explanatory note
This amendment updates a cross-reference.
omit
(2)
Explanatory note
This amendment updates a cross-reference.
substitute
Division 4.3 Poisons—other
offences
Explanatory note
This amendment is consequential on the breaking-up of part 5
(Miscellaneous) to improve the structure of the Act.
[3.130] New
part 5 heading
before section 37, insert
Part 5 Anabolic
steroids
Explanatory note
This amendment is consequential on the breaking-up of part 5
(Miscellaneous) to improve the structure of the Act.
[3.131] Section
35 heading
substitute
35 Supply of poison
Explanatory note
This amendment remakes the heading to bring it more closely into line with
the section’s contents.
[3.132] Section
38 heading
substitute
38 Administration or sale etc of anabolic
steroids
Explanatory note
This amendment remakes the heading to bring it more closely into line with
the section’s contents.
omit
Explanatory note
This amendment is consequential on new section 4 inserted by another
amendment in this schedule.
[3.134] New
part 6 heading
before section 40, insert
Part 6 Advertising of scheduled
substances
Explanatory note
This amendment is consequential on the breaking-up of part 5
(Miscellaneous) to improve the structure of the Act.
substitute
(1) A person must not publish or display an advertisement
that—
(a) promotes or encourages the use of a substance mentioned in the drugs
and poisons standard, schedule 1, 3 or 4; or
(b) indicates that the person, or someone else, is willing or authorised
to supply such a substance.
Maximum penalty: 100 penalty units, imprisonment for 1 year or both.
Explanatory note
This amendment remakes the subsection consequentially on the omission of
section 3 (3) by another amendment in this schedule and brings the subsection
more closely into line with current drafting practice.
substitute
(4) In subsection (1), a reference to a substance mentioned in the drugs
and poisons standard, schedule 3 includes a reference to such a substance that
is listed in the drugs and poisons standard, appendix H.
Explanatory note
This amendment is consequential on the omission of section 3 (3) by another
amendment in this schedule.
[3.137] New
part 7 heading
before section 41, insert
Part 7 Miscellaneous
Explanatory note
This amendment is consequential on the breaking-up of part 5
(Miscellaneous) to improve the structure of the Act.
[3.138] Sections
41 and 42
substitute
41 Notice of decisions reviewable by
AAT
(1) The chief health officer must give notice of a decision refusing to
give an authorisation under section 8 to the applicant for the
authorisation.
(2) The Minister must give notice of the following decisions to an
applicant for a licence or authorisation:
(a) refusing to give the licence under section 14;
(b) giving the licence under section 14 subject to conditions;
(c) refusing to grant the authorisation under section 26;
(d) specifying a condition in the authorisation under section 27;
(e) granting the authorisation under section 26 for a period other than
the period applied for.
(3) The Minister must give notice of the following decisions about a
licence to the licensee (or former licensee):
(a) varying a condition specified in the licence under
section 16 (1);
(b) refusing to amend the licence under section 17;
(c) specifying in the licence the date an amendment under section 17
takes effect;
(d) cancelling the licence under section 18 (1);
(e) giving directions about the disposal of a poison under
section 36.
(4) The Minister must give notice of the following decisions about an
authorisation to an authorised person (or former authorised person):
(a) varying a condition specified in the authorisation under
section 28 (1);
(b) cancelling the authorisation under section 29 (1);
(c) refusing to renew the authorisation under section 31;
(d) renewing the authorisation under section 31 for a period other than
the period applied for;
(e) giving directions about the disposal of a poison under
section 36.
(5) A notice under subsection (1) or (2) must be in accordance with the
requirements of the code of practice in force under the Administrative
Appeals Tribunal Act 1989, section 25B (1).
42 Review by administrative appeals
tribunal
Application may be made to the administrative appeals tribunal for review
of a decision mentioned in section 41.
Explanatory note
This amendment updates cross-references and brings the sections more
closely into line with current drafting practice.
substitute
43 Appointment of analysts
The Minister may appoint a person to be an analyst for this Act.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see
s 207).
Note 3 Certain Ministerial appointments require consultation with an
Assembly committee and are disallowable (see Legislation Act, div
19.3.3).
Explanatory note
This amendment omits the reference to the appointment being by instrument
in writing. The Legislation Act, section 206 provides that an appointment must
be made, or evidenced, in writing. Standard notes about appointments are also
added.
[3.140] Section
47A (2), new note
insert
Note For other provisions about forms, see Legislation Act, s
255.
Explanatory note
This amendment adds a standard note about approved forms.
substitute
48 Delegation of chief health officer’s
functions
The chief health officer may delegate the chief health officer’s
functions under this Act to a public servant.
Note For the making of delegations and the exercise of delegated
functions, see Legislation Act, pt 19.4.
Explanatory note
This amendment updates the delegation provision, as follows:
• the words ‘in writing’ have been omitted because the
Legislation Act, section 232 provides that a delegation must be made, or
evidenced, in writing;
• the word ‘function’ is substituted for
‘power’ in accordance with current drafting practice.
This amendment also adds a standard note about delegations.
[3.142] Schedule
2, item 1, column 2
omit
Organization
substitute
Organisation
Explanatory note
This amendment updates spelling.
[3.143] Schedule
2, items 9 to 12
substitute
9
|
inorganic pigments not specified in the drugs and poisons
standard, schedule 6
|
10
|
lubricants, unless specified in another schedule to the
drugs and poisons standard
|
11
|
matches
|
12
|
motor fuels, other than those containing methyl alcohol,
unless specified in another schedule to the drugs and poisons
standard
|
Explanatory note
This amendment makes it clear that the references to schedules in items 9,
10 and 12 are to schedules to the drugs and poisons standard.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 In particular, the Legislation Act, dict, pt 1, defines the
following terms:
• chief health officer
• contravene
• entity
• exercise
• function
• penalty unit (see also s 133)
• public servant.
analyst means an analyst appointed under section
43.
approving officer means a person who is authorised by a
recognised institution to do the following things on its behalf:
(a) approve a program;
(b) request the cancellation of an authorisation;
(c) support an application for renewal.
authorisation means an authorisation under
section 26.
authorised person means the holder of an
authorisation.
drugs and poisons standard means the document last prepared
under the Therapeutic Goods Act 1989 (Cwlth), section 52D (2) (b) that
has come into effect (including any amendment of that document under that Act,
section 52D (2) (a) that has come into effect), and includes any modification of
the standard by the Minister under section 46.
licence means a manufacturer’s or vendor’s
licence under section 14.
manufacture, a poison, means—
(a) carry out any process by which it is obtained; or
(b) refine it; or
(c) change it into another poison; or
(d) mix or compound it; or
(e) pack or repack it for sale or for use in relation to a profession,
trade, business or industry.
poison means a substance mentioned in the drugs and poisons
standard, schedule 7.
Note The following Acts are also relevant to poisons and
drugs:
• the Drugs of Dependence Act 1989
• the Poisons Act 1933.
poisons register means a poisons register kept under section
22.
program means a program of research or education conducted
under the supervision of a recognised institution.
recognised institution means—
(a) the Commonwealth Scientific and Industrial Research Organisation;
or
(b) an institution prescribed under the regulations for this
definition.
relevant offence means—
(a) an offence against this Act; or
(b) an offence, whether committed in the ACT, in Australia outside the ACT
or outside Australia—
(i) relating to a scheduled substance; or
(ii) punishable on conviction by a fine of at least 100 penalty units (or
an equivalent amount at the time of conviction) or by imprisonment for a period
of at least 1 year.
restricted substance, for part 2 (Restricted
substances)—see section 5.
sell includes offer or expose for sale.
scheduled substance means a substance mentioned in a schedule
to the drugs and poisons standard.
Note A scheduled substance defined in the drugs and poisons
standard, pt 1 and used in this Act (or the regulations) has the meaning given
in that part (see s 3).
specialist, for part 2 (Restricted substances)—see
section 5.
specified poison means—
(a) in relation to an authorised person—a poison specified in the
person’s authorisation under section 26 (4) (b); or
(b) in relation to a licensee—a poison specified in the licence
under section 14 (3) (b).
specified premises, for a licence, means any premises the
address of which is specified in the licence under section
14 (3) (c).
supply includes sell.
trial protocol, for a program of research, means a written
statement describing—
(a) its aims; and
(b) how it is proposed to be conducted; and
(c) the proposed method of analysis of its results.
Explanatory note
This amendment inserts a new dictionary that incorporates all the
definitions currently in section 2 (Definitions for Act) and section 3
(Scheduled substances) that are still needed. The definitions have, where
necessary, been revised to bring them more closely into line with current
drafting practice.
The substantive changes to the existing definitions are as
follows:
• the definition of current poisons standard is
subsumed into the revised definition of drugs and poisons
standard;
• the definition of licensee is omitted because other
parts of speech and grammatical forms of a defined term (ie
licence) have corresponding meanings to the defined term (see
Legislation Act, section 157);
• the definition of manufacture is amended to refer to
poisons rather than scheduled substances because the Act regulates the
manufacture of poisons only;
• the definition of supply is amended to remove
unnecessary words.
• New definitions of restricted substance and
specialist (which apply only to part 2 of the Act) are also
inserted in accordance with current drafting practice.
Part
3.16 Poisons and Drugs Regulations
1993
[3.145] Regulations
3 to 6
substitute
3 Prescribed institutions—Act, dict, def of
recognised institution, par (b)
The following institutions are prescribed:
(a) Australian Catholic University;
(b) Canberra Institute of Technology;
(c) The Australian National University;
(d) the University College within the Australian Defence Force
Academy;
(e) University of Canberra.
4 Restricted substances—Act, s 5, def of
restricted substance
The substances mentioned in schedule 1, column 2 are
prescribed.
5 Prescribed people for restricted
substances—Act, s 8
A person mentioned in an item in schedule 1, column 3 is prescribed for the
substance mentioned in column 2 of the item.
6 Possession of certain
poisons—Act, s 33 (2) (b)
(1) The substances mentioned in schedule 2, column 2 are
prescribed.
(2) A person mentioned in an item in schedule 2, column 3 is prescribed
for the purpose mentioned in column 4, and for the substance mentioned in column
2, of the item.
(3) The people in day-to-day control of analytical laboratories are
prescribed for a substance mentioned in schedule 3 for the purpose of
analysis.
Explanatory note
This amendment brings these provisions more closely into line with current
drafting practice and makes changes consequential on other amendments.
renumber as schedule 2
Explanatory note
This amendment renumbers the schedule so that the schedules are in the same
sequence as the regulations that refer to them.
[3.147] Schedule
1 heading
substitute
Schedule 2 Poisons prescribed for
manufacturing use
(see reg 6 (1) and (2))
Explanatory note
This amendment adds a meaningful heading to the schedule.
[3.148] Schedule
1, column 3 heading
omit
class
substitute
people
Explanatory note
This amendment is consequential on another amendment.
renumber as schedule 3
Explanatory note
This amendment renumbers the schedule so that the schedules are in the same
sequence as the regulations that refer to them.
[3.150] Schedule
2 heading
substitute
Schedule 3 Analysis of prescribed
poisons
(see reg 6 (3))
Explanatory note
This amendment adds a meaningful heading to the schedule.
renumber as schedule 1
Explanatory note
This amendment renumbers the schedule so that the schedules are in the same
sequence as the regulations that refer to them.
[3.152] Schedule
3 heading
substitute
Schedule 1 Restricted
substances
(see reg 4 and reg 5)
Explanatory note
This amendment adds a meaningful heading to the schedule.
[3.153] Schedule
3, column 3 heading
omit
class
substitute
people
Explanatory note
This amendment is consequential on another amendment.
[3.154] Schedule
3, item 7, column 3
omit
medical practitioners
substitute
doctors
Explanatory note
This amendment updates language.
Part
3.17 Public Health Act
1997
[3.155] Section
4 (d) and (e)
omit
performance
substitute
exercise
Explanatory note
Exercise a function is defined in the Legislation Act,
dictionary, part 1 to include perform the function. It is the drafting term that
is used now in relation to functions.
[3.156] Section
7 (1) and (2)
substitute
(1) The Minister must appoint a person to be the chief health
officer.
Note For the making of appointments generally, see Legislation Act,
pt 19.3.
(2) The chief health officer must be a public servant and a
doctor.
Explanatory note
This amendment updates the appointment provision and inserts a standard
note about appointments. The Legislation Act, section 206 provides that an
appointment must be made, or evidenced, in writing.
substitute
8 Acting chief health officer
(1) The chief executive may appoint a person to act as the chief health
officer—
(a) during any vacancy or all vacancies in the position of chief health
officer; or
(b) during any period, or all periods, when the chief health officer
cannot for any reason exercise the functions of the position.
Note For the making of acting appointments generally, see
Legislation Act, div 18.3.2.
(2) An acting chief health officer must be a doctor.
(3) The Legislation Act 2001, section 209 (Power of appointment
includes power to make acting appointment) does not apply to the position of
chief health officer.
Explanatory note
This amendment updates the acting provision, inserts a standard note about
acting appointments and displaces the Legislation Act, section 209. The
Legislation Act, section 216 provides that an acting appointment must be made,
or evidenced, in writing. Existing section 8 (3) is unnecessary because
the Legislation Act, section 221 (1) provides that if a person acts in
a position because it is vacant, the person may not act for more than 1 year
after the position became vacant. Existing section 8 (4) is unnecessary
because the Legislation Act, section 225 provides that an acting appointment, or
anything done under an acting appointment, is not invalid only because of a
defect or irregularity in the appointment. The Legislation Act, section 209 is
displaced because acting appointments are made by the chief executive rather
than the Minister and an acting chief health officer need not be a public
servant.
omit
Explanatory note
This amendment omits a redundant provision about the first report of the
chief health officer under the Public Health Act 1997.
[3.159] Section
10 (3) and (4)
substitute
(2) A report must be given to the Minister within 3 months after it is
prepared.
(3) The Minister must present a report to the Legislative Assembly within
6 sitting days after the day the Minister receives it.
Explanatory note
This amendment updates language and brings the period for presenting a
report to the Legislative Assembly into line with the period applying to annual
reports under the Annual Reports (Government Agencies) Act 1995, section
14.
omit
pt 18.4
substitute
pt 19.4
Explanatory note
This amendment updates a cross-reference.
substitute
12 Appointment of public health
officers
The chief executive may appoint a person to be a public health
officer.
Note 1 For the making of appointments generally, see Legislation
Act, pt 19.3.
Note 2 A power to appoint a person to a position includes power to
appoint a person to act in the position (see Legislation Act,
s 209).
Explanatory note
This amendment removes the requirement that the chief executive must create
and maintain offices for public health officers in the public service. The
Legislation Act, section 207 provides that an appointment may be made by naming
the person appointed or by nominating the occupant of a position (however
described), at a particular time or from time to time. Standard notes about
appointments are also inserted.
substitute
13 Appointment of authorised medical
officers
The chief executive may appoint a doctor to be an authorised medical
officer.
Note 1 For the making of appointments generally, see Legislation
Act, pt 19.3.
Note 2 A power to appoint a person to a position includes power to
appoint a person to act in the position (see Legislation Act,
s 209).
Explanatory note
This amendment removes the requirement that the chief executive must create
and maintain offices for authorised medical officers in the public service. The
Legislation Act, section 207 provides that an appointment may be made by naming
the person appointed or by nominating the occupant of a position (however
described), at a particular time or from time to time. Standard notes about
appointments are also inserted.
[3.163] Section
15 (1) to (3)
substitute
15 Appointment of analysts
(1) The chief executive may appoint a person to be an analyst for this
Act.
Note 1 For the making of appointments generally, see Legislation
Act, pt 19.3.
Note 2 A power to appoint a person to a position includes power to
appoint a person to act in the position (see Legislation Act,
s 209).
Explanatory note
This amendment removes the requirement that the chief executive must create
and maintain offices for analysts in the public service. The Legislation Act,
section 207 provides that an appointment may be made by naming the person
appointed or by nominating the occupant of a position (however described), at a
particular time or from time to time. Standard notes about appointments are
also inserted.
renumber subsections when Act next republished under Legislation Act
2001
Explanatory note
This amendment renumbers subsections in accordance with current drafting
practice.
[3.165] Section
15B heading
substitute
15B Non-public servant analysts—appointment
subject to conditions
Explanatory note
This amendment is consequential on the amendment of section 15 made by this
schedule.
omit
as an analyst under section 15 (3) (b)
substitute
who is not a public servant as an analyst under section 15
Explanatory note
This amendment is consequential on the amendment of section 15 made by this
schedule.
[3.167] Section
15C heading
substitute
15C Non-public servant analysts—procedure for
imposition etc of conditions on chief executive’s
initiative
Explanatory note
This amendment is consequential on the amendment of section 15 made by this
schedule.
[3.168] Section
15D heading
substitute
15D Non-public servant analysts—suspension or
cancellation of appointment
Explanatory note
This amendment is consequential on the amendment of section 15 made by this
schedule.
substitute
(1) This section applies to a person who is not a public servant and who
is appointed as an analyst under section 15 (Analysts).
Explanatory note
This amendment is consequential on the amendment of section 15 made by this
schedule.
substitute
(3) A determination may apply, adopt or incorporate an instrument or
provision of an instrument as in force from time to time.
Note 1 The text of an applied, adopted or incorporated law or
instrument, whether applied as in force from time to time or as at a particular
time, is taken to be a notifiable instrument if the operation of the Legislation
Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
Explanatory note
This amendment amends the subsection consequentially on the Legislation
Act, section 47 (Statutory instrument may make provision by applying law or
instrument) and brings the subsection into line with current drafting
practice.
substitute
(3) A determination may apply, adopt or incorporate an instrument or
provision of an instrument as in force from time to time.
Note 1 The text of an applied, adopted or incorporated law or
instrument, whether applied as in force from time to time or as at a particular
time, is taken to be a notifiable instrument if the operation of the Legislation
Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
Explanatory note
This amendment amends the subsection consequentially on the Legislation
Act, section 47 (Statutory instrument may make provision by applying law
or instrument) and brings the subsection into line with current drafting
practice.
omit
Explanatory note
This amendment omits a definition that is being remade in the next
amendment in accordance with current drafting practice.
[3.173] New
section 48 (7)
insert
(7) In this section:
licence includes a licence that is under suspension under
another section of this Act.
Explanatory note
This amendment remakes a definition in accordance with current drafting
practice.
renumber subsections when Act next republished under Legislation Act
2001
Explanatory note
This amendment renumbers subsections in accordance with current drafting
practice.
[3.175] Section
56V, definition of commencement day
substitute
commencement day means 28 August 2000.
Explanatory note
This amendment replaces a reference to the date part of an amending act
commenced with a reference to the actual date it commenced.
[3.176] Section
58 (2), new note
insert
Note For how documents may be served, see Legislation Act,
pt 19.5.
Explanatory note
This amendment inserts a standard note about service of
documents.
[3.177] Section
61 (2), new note
insert
Note For how documents may be served, see Legislation Act,
pt 19.5.
Explanatory note
This amendment inserts a standard note about service of
documents.
[3.178] Section
69 (1), new note
insert
Note For how documents may be served, see Legislation Act,
pt 19.5.
Explanatory note
This amendment inserts a standard note about service of
documents.
substitute
75 Definitions for pt 5
In this part:
connected—a thing is connected with an
offence if—
(a) the offence has been committed in relation to it; or
(b) it will provide evidence of the commission of the offence;
or
(c) it was used, or is intended to be used, to commit the
offence.
occupier, of a place an authorised officer enters under this
part, includes a person the officer believes on reasonable grounds to be an
occupier of the place.
Note The dictionary defines occupier of a place to
include an owner, a person in charge or a person authorised to be at the place
as an agent of an occupier, owner or person in charge of the place.
offence includes—
(a) an offence that there are reasonable grounds for believing is being or
has been committed; and
(b) a contravention of this Act by or on behalf of the Territory that
there are reasonable grounds for believing is being or has been
committed.
Explanatory note
This amendment brings the form of the definitions more closely into line
with current drafting practice.
omit
performance of the officer’s functions for the purposes of this
Act.
substitute
exercise of the officer’s functions under this Act.
Explanatory note
This amendment updates language.
[3.181] Section
85 heading
substitute
85 Detention of things at place of
seizure
Explanatory note
This amendment updates language.
omit
is guilty of
substitute
commits
Explanatory note
This amendment updates language.
substitute
(2) A determination may apply, adopt or incorporate an instrument or
provision of an instrument as in force from time to time.
Note 1 The text of an applied, adopted or incorporated law or
instrument, whether applied as in force from time to time or as at a particular
time, is taken to be a notifiable instrument if the operation of the Legislation
Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
Explanatory note
This amendment amends the subsection consequentially on the Legislation
Act, section 47 (Statutory instrument may make provision by applying law or
instrument) and brings the subsection into line with current drafting
practice.
[3.184] Section
105 (1) and (2)
substitute
(1) A counsellor must notify the chief health officer of a person the
counsellor has counselled if the counsellor believes, on reasonable grounds,
that the person has, or may have, a notifiable condition.
Maximum penalty: 25 penalty units.
(2) A person who is responsible for the care, support or education of
someone else must notify the chief health officer of the person if the first
person believes, on reasonable grounds, that the other person has, or may have,
a notifiable condition.
Maximum penalty: 25 penalty units.
Explanatory note
This amendment recasts the subsections to improve their
readability.
[3.185] Section
116 (1) and (3)
omit
notice
substitute
direction
Explanatory note
This amendment corrects a minor error.
omit
performance
substitute
exercise
Explanatory note
Exercise a function is defined in the Legislation Act,
dictionary, part 1 to include perform the function. It is the drafting term that
is used now in relation to functions.
omit
performed
substitute
exercised
Explanatory note
Exercise a function is defined in the Legislation Act,
dictionary, part 1 to include perform the function. It is the drafting term that
is used now in relation to functions.
[3.188] Section
123 (3) and (4)
substitute
(2) A report must be given to the Minister within 3 months after it is
prepared.
(3) The Minister must present a report to the Legislative Assembly within
6 sitting days after the day the Minister receives it.
Explanatory note
This amendment updates language and brings the period for presenting a
report to the Legislative Assembly into line with the period applying to annual
reports under the Annual Reports (Government Agencies) Act 1995, section
14.
substitute
(3) The Minister must present a copy of a direction under subsection (2)
to the Legislative Assembly within 6 sitting days after the day it is
made.
Explanatory note
This amendment updates language and brings the period for presenting a
report to the Legislative Assembly into line with the period applying to annual
reports under the Annual Reports (Government Agencies) Act 1995, section
14.
substitute
(2) The Minister must present a copy of the report to the Legislative
Assembly within 6 sitting days after the day the Minister receives it.
Explanatory note
This amendment updates language and brings the period for presenting a
report to the Legislative Assembly into line with the period applying to annual
reports under the Annual Reports (Government Agencies) Act 1995, section
14.
omit
In performing any function under this division,
substitute
In exercising any function under this part,
Explanatory note
This amendment updates language and corrects a reference.
omit
section 15 (3) (b)
substitute
section 15
Explanatory note
This amendment is consequential on the amendment of section 17 made by this
schedule.
[3.193] Section
130 (1) (a)
omit
Appointed
substitute
Non-public servant
Explanatory note
This amendment is consequential on the amendment of the heading to section
15B made by this schedule.
[3.194] Section
130 (1) (c)
omit
Appointed
substitute
Non-public servant
Explanatory note
This amendment is consequential on the amendment of the heading to section
15D made by this schedule.
substitute
(2) A determination may apply, adopt or incorporate an instrument or
provision of an instrument as in force from time to time.
Note 1 The text of an applied, adopted or incorporated law or
instrument, whether applied as in force from time to time or as at a particular
time, is taken to be a notifiable instrument if the operation of the Legislation
Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
Explanatory note
This amendment amends the subsection consequentially on the Legislation
Act, section 47 (Statutory instrument may make provision by applying law or
instrument) and brings the subsection into line with current drafting
practice.
[3.196] Section
135 (1) (a)
omit
performance of his or her functions for the purposes of this Act,
substitute
exercise of the officer’s functions under this Act,
Explanatory note
This amendment updates language.
substitute
136 Acts and omissions of
representatives
(1) In this section:
representative, of a person, means—
(a) if the person is an individual—an employee or agent of the
person; or
(b) if the person is a corporation—an employee, agent or executive
officer of the person.
state of mind, of a person, includes—
(a) the person’s knowledge, intention, opinion, belief or purpose;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
(2) An act done or omitted to be done on behalf of a person by a
representative of the person is also taken to have been done or omitted to be
done by the person if the representative was acting within the scope of the
representative’s actual or apparent authority.
(3) However, subsection (2) does not apply if the person establishes that
reasonable precautions were taken and appropriate diligence was exercised to
avoid the act or omission.
(4) If it is relevant to prove a person’s state of mind about an act
or omission, it is enough to show—
(a) the act was done or omission was made by a representative of the
person within the scope of the representative’s actual or apparent
authority; and
(b) the representative had the state of mind.
(5) An individual who is convicted of an offence cannot be punished by
imprisonment for the offence if the individual would not have been convicted of
the offence without subsection (2) or (4).
Explanatory note
This amendment brings the language and structure of the section into line
with current drafting practice.
[3.198] Dictionary,
new notes
insert
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 In particular, the Legislation Act, dict, pt 1, defines the
following terms:
• chief executive
• contravene
• doctor
• document
• exercise
• function
• public servant
[3.199] Dictionary,
definition of authorisation
substitute
authorisation means—
(a) for a public health officer exercising a function under this
Act—an authorisation given to the officer under section 12A (1)
to exercise the function; and
(b) for an authorised medical officer exercising a function under this
Act—an authorisation given to the officer under section 14 (1)
to exercise the function.
Explanatory note
This amendment updates language and corrects cross-references.
[3.200] Dictionary,
definition of authorised officer
substitute
authorised officer, in relation to the exercise of a function
under this Act, means—
(a) the chief health officer; or
(b) a public health officer authorised under section 12A (1) to
exercise the function; or
(c) an authorised medical officer authorised under section 14 (1) to
exercise the function.
Explanatory note
This amendment updates language and corrects cross-references.
[3.201] Dictionary,
new definition of connected
insert
connected with an offence, for part 5 (Inspection and
analysis)—see section 75 (Definitions for pt 5).
Explanatory note
This amendment inserts a signpost definition in accordance with current
drafting practice.
[3.202] Dictionary,
new definitions
insert
occupier, for part 5 (Inspection and analysis)—see
section 75 (Definitions for pt 5).
offence, for part 5 (Inspection and analysis)—see
section 75 (Definitions for pt 5).
processing, of drinking water, for division 6B.1 (Drinking
water)—see section 118B (Definitions for div 6B.1).
processing, of sewage, for division 6B.2 (Sewage)—see
section 118H (Definitions for div 6B.2).
sewerage utility, for division 6B.2 (Sewage)—see
section 118H (Definitions for div 6B.2).
water distributor, for division 6B.1 (Drinking
water)—see section 118B (Definitions for div 6B.1).
water supplier, for division 6B.1 (Drinking water)—see
section 118B (Definitions for div 6B.1).
water utility, for division 6B.1 (Drinking water)—see
section 118B (Definitions for div 6B.1).
Explanatory note
This amendment inserts signpost definitions in accordance with current
drafting practice.
Part
3.18 Public Health Regulations
2000
omit
Explanatory note
This amendment omits a definition that is inserted in the dictionary by
another amendment made by this part.
[3.204] Regulation
9 (2) (b)
omit
registered
Explanatory note
This amendment omits an unnecessary word. Nurse is defined in
the Legislation Act, dictionary, part 1 to be a registered nurse under the
Nurses Act 1988.
omit
in writing
Explanatory note
This amendment omits unnecessary words. The Legislation Act, section 206
provides that an appointment must be made, or evidenced, in writing.
[3.206] Regulation
32, new notes
insert
Note 1 For the making of appointments generally, see Legislation
Act, pt 19.3.
Note 2 A power to appoint a person to a position includes power to
appoint a person to act in the position (see Legislation Act,
s 209).
Explanatory note
This amendment inserts standard notes about appointments.
[3.207] Regulation
33 (1), new note
insert
Note A provision of a law that gives an entity (including a person)
a function also gives the entity the powers necessary and convenient to exercise
the function (see Legislation Act, s 196 (1) and dict, pt 1, defs
entity and function).
Explanatory note
This amendment inserts a standard note.
omit
Explanatory note
The provision is no longer necessary because of the Legislation Act,
section 196 (1). That section provides that a provision of a law that gives
a function to an entity also gives the entity the powers necessary and
convenient to exercise the function.
[3.209] Regulation
35 (2)
substitute
(2) A member must be appointed for a term of not longer than 2
years.
Note A person may be reappointed to a position if the person is
eligible to be appointed to the position (see Legislation Act, s 208 and
dict , pt 1, def appoint).
Explanatory note
This amendment recasts the provision in accordance with current drafting
practice.
omit
Explanatory note
This amendment omits an unnecessary provision.
Existing subregulation 38 (1) is unnecessary because the Legislation
Act, section 209 (1) provides that a power to make an appointment
includes power to appoint a person to act in the position during a vacancy,
whether or not an appointment had previously been made and during any periods
when the person holding the position cannot exercise the functions of the
position.
Existing subregulation 38 (2) is unnecessary because the Legislation Act,
section 221 (1) provides that if a person acts in a position because
it is vacant, the person may not act for more than 1 year after the position
became vacant.
Existing subregulation 38 (3) is unnecessary because the Legislation
Act, section 225 provides that anything done under an acting appointment is not
invalid only because of a defect or irregularity in the appointment or because
the occasion to act had not arisen.
[3.211] Regulation
39 (1) (a)
omit
performance
insert
exercise
Explanatory note
Exercise a function is defined in the Legislation Act,
dictionary, part 1 to include perform the function. It is the drafting term that
is used now in relation to functions.
[3.212] Regulation
56 (2) (a)
omit
the direction; or
insert
the direction;
Explanatory note
This amendment omits an unnecessary word.
[3.213] Dictionary,
new notes
insert
Note 1 The Legislation Act contains definitions and other provisions
relevant to these regulations.
Note 2 In particular, the following terms that are defined in the
Legislation Act, dict, pt 1, are particularly relevant to these
regulations:
• doctor
• function
• nurse
Explanatory note
This amendment inserts standard notes about definitions.
[3.214] Dictionary,
definitions of authorised officer and authorised medical
officer
substitute
authorised officer—see the Act, dictionary.
authorised medical officer—see the Act,
dictionary.
Explanatory note
This amendment updates definitions.
[3.215] Dictionary,
definition of child care centre
insert
child care centre—see the Children and Young People
Act 1999, section 328.
Explanatory note
This amendment inserts in the dictionary a definition that was in section
7.
[3.216] Dictionary,
definition of doctor
omit
Explanatory note
This amendment omits an unnecessary signpost definition.
[3.217] Dictionary,
definition of health practitioner
substitute
health practitioner means a doctor or a nurse.
Explanatory note
This amendment updates the definition to use the expression
‘nurse’ rather than ‘nurse registered under the Nurses Act
1988’. Nurse is defined in the Legislation Act,
dictionary, part 1 to be a registered nurse under the Nurses Act
1988.
[3.218] Dictionary,
definition of insanitary condition
substitute
insanitary condition—see the Act, dictionary.
Explanatory note
This amendment updates a definition.
[3.219] Dictionary,
new definition of member
insert
member, for division 3.2 (The management committee)—see
section 30 (Meaning of member in div 3.2).
Explanatory note
This amendment inserts a signpost definition in accordance with current
drafting practice.
[3.220] Dictionary,
definition of occupier
substitute
occupier—see section 75.
Explanatory note
This amendment updates a definition.
[3.221] Dictionary,
definition of registered nurse
omit
Explanatory note
This amendment omits an unnecessary definition. The term
‘nurse’ is now used in the regulations (under other amendments made
by this part). Nurse is defined in the Legislation Act,
dictionary, part 1 to be a registered nurse under the Nurses Act
1988.
[3.222] Dictionary,
definition of transmissible notifiable condition
substitute
transmissible notifiable condition—see the Act,
dictionary.
Explanatory note
This amendment updates a definition.
Part
3.19 Rehabilitation of Offenders
(Interim) Regulations 2001
[3.223] Dictionary,
definition of drugs and poisons standard
substitute
drugs and poisons standard—see the Poisons and Drugs
Act 1978, dictionary.
Explanatory note
This amendment is consequential on the insertion of a new dictionary into
the Poisons and Drugs Act 1978 by another amendment in this
schedule.
Part
3.20 Remuneration Tribunal
(Consequential Amendments) Act 1997 No 41
substitute
2 Commencement
This Act commences on 24 September 1997.
(commencement: 24 September 1997)
Explanatory note
The commencement provision of this Act provided that section 1 (Short
title) and section 2 (Commencement) commenced on the day on which the Act was
notified in the Gazette and that the remaining provisions commenced as fixed by
the Minister by notice in the Gazette or, in default, at the end of 6 months
after the Act was notified in the Gazette.
The notice of commencement fixed 23 September 1997 as the date that the
remaining provisions commenced. However, the commencement notice was notified
in the Gazette of 24 September 1997. This amendment removes any doubt about
when the Act commenced. This result is consistent with the provision now made
by the Legislation Act, section 73 (3) (which is about the commencement of
laws).
Part
3.21 Road Transport (Alcohol and
Drugs) Act 1977
[3.225] Section
4A (2), definitions of foreshores, lake and licensed
premises
omit
section 4 (1)
substitute
dictionary
Explanatory note
This amendment is consequential on the insertion of a new dictionary into
the Lakes Act 1976 by another amendment in this schedule and the
insertion of a new dictionary into the Liquor Act 1975 by other
legislation.
Part
3.22 Road Transport (Driver Licensing)
Act 1999
substitute
9 Security and disclosure of information in
registers
The road transport authority must ensure that information in the driver
licence register or demerit points register is kept securely and disclosed only
in accordance with this Act or another law in force in the ACT.
Note 1 The Information Privacy Principles apply to the road
transport authority. Principle 4 states requirements about the storage and
security of personal information and principle 11 states when personal
information may be disclosed by an agency (see Privacy Act 1988
(Cwlth), s 14).
Note 2 Access to the register may be sought under the Freedom of
Information Act 1989 (which also provides that certain information is exempt
from disclosure).
Explanatory note
This amendment brings the section into line with the Road Transport
(General) Act 1999, section 83E (which is about the written-off vehicles
register), as follows:
• the section heading is revised to include a reference to the
disclosure of information;
• the reference in the existing section to information in a register
that is of a personal nature or that has commercial sensitivity for a person
about whom it is kept is omitted and the obligations under the section applied
to all information in the registers, which is arguably personal
information;
• new notes about the Privacy Act 1988 (Cwlth) and the
Freedom of Information Act 1989 are added.
[3.227] Sections
11 (2) and 28 (2)
omit
for or with respect to
substitute
in relation to
Explanatory note
This amendment updates language consequent on the insertion of a new
definition of in relation to into the Legislation Act,
dictionary by another amendment.
Part
3.23 Road Transport (General) Act
1999
[3.228] Sections
11 (3) and 96 (2)
omit
for or with respect to
substitute
in relation to
Explanatory note
This amendment updates language consequent on the insertion of a new
definition of in relation to into the Legislation Act,
dictionary by another amendment.
[3.229] Section
100, definition of taxi
omit
Explanatory note
This amendment omits a redundant definition. The term is defined in the
dictionary to the Act.
omit
for or with respect to
substitute
in relation to
Explanatory note
This amendment updates language consequent on the insertion of a new
definition of in relation to into the Legislation Act,
dictionary by another amendment.
Part
3.24 Road Transport (Public Passenger
Services) Act 2001
substitute
7 Security and disclosure of information in
registers
The road transport authority must ensure that information in a register of
accreditations or licences is kept securely and disclosed only in accordance
with this Act or another law in force in the ACT.
Note 1 The Information Privacy Principles apply to the road
transport authority. Principle 4 states requirements about the storage and
security of personal information and principle 11 states when personal
information may be disclosed by an agency (see Privacy Act 1988
(Cwlth), s 14).
Note 2 Access to the register may be sought under the Freedom of
Information Act 1989 (which also provides that certain information is exempt
from disclosure).
Explanatory note
This amendment brings the section into line with the Road Transport
(General) Act 1999, section 83E (which is about the written-off vehicles
register), as follows:
• the section heading is revised to include a reference to the
security of information;
• the reference in the existing section to information in a register
that is of a personal nature or that has commercial sensitivity for a person
about whom it is kept is omitted and the obligations under the section applied
to all information in the registers, which is arguably personal
information;
• new notes about the Privacy Act 1988 (Cwlth) and the
Freedom of Information Act 1989 are added.
[3.232] Sections
17 (3), 26 and 27
omit
for or with respect to
substitute
in relation to
Explanatory note
This amendment updates language consequent on the insertion of a new
definition of in relation to into the Legislation Act,
dictionary by another amendment.
omit
with respect to
substitute
in relation to
Explanatory note
This amendment updates language consequent on the insertion of a new
definition of in relation to into the Legislation Act,
dictionary by another amendment.
Part
3.25 Road Transport (Safety and
Traffic Management) Act 1999
[3.234] Sections
5A (5) and 5B (5), new notes
insert
Note Automatic licence disqualification applies to an offence
against this section (see Road Transport (General) Act 1999,
s 63).
Explanatory note
This amendment inserts new notes about a related provision in the Road
Transport (General) Act 1999.
[3.235] Sections
10K (4), 17 (1), 24 (1) and 36 to 43
omit
for or with respect to
substitute
in relation to
Explanatory note
This amendment updates language consequent on the insertion of a new
definition of in relation to into the Legislation Act,
dictionary by another amendment.
Part
3.26 Road Transport (Vehicle
Registration) Act 1999
substitute
11 Security and disclosure of information in
register
The road transport authority must ensure that information in the
registrable vehicles register is kept securely and disclosed only in accordance
with this Act or another law in force in the ACT.
Note 1 The Information Privacy Principles apply to the road
transport authority. Principle 4 states requirements about the storage and
security of personal information and principle 11 states when personal
information may be disclosed by an agency (see Privacy Act 1988
(Cwlth), s 14).
Note 2 Access to the register may be sought under the Freedom of
Information Act 1989 (which also provides that certain information is exempt
from disclosure).
Explanatory note
This amendment brings the section into line with the Road Transport
(General) Act 1999, section 83E (which is about the written-off vehicles
register), as follows:
• the section heading is revised to include a reference to the
security of information;
• the reference in the existing section to information in the
register that is of a personal nature or that has commercial sensitivity for a
person about whom it is kept is omitted and the obligations under the section
applied to all information in the register, which is arguably personal
information;
• new notes about the Privacy Act 1988 (Cwlth) and the
Freedom of Information Act 1989 are added.
[3.237] Sections
14 (2), 15 and 29 (3)
omit
for or with respect to
substitute
in relation to
Explanatory note
This amendment updates language consequent on the insertion of a new
definition of in relation to into the Legislation Act,
dictionary by another amendment.
Part
3.27 Smoke-free Areas (Enclosed Public
Places) Act 1994
[3.238] Section
8 (2) (a)
substitute
(a) satisfied that—
(i) smoking is to be prohibited in not less than 75% of the public area of
the restaurant; and
(ii) the restaurant is fitted with equipment capable of maintaining air
quality in accordance with Australian Standard 1668.2; and
(commencement: the day after this Act’s notification day)
Explanatory note
This amendment removes a technical deficiency in the Act arising from
inconsistencies between provisions of the Act. Section 10 (e) imposes a
statutory condition on a certificate of exemption for a restaurant that smoking
is prohibited in not less than 75% of the public area of the restaurant.
However, section 8 (2), which deals with what the Minister must be
satisfied about before granting an exemption, does not reflect this condition.
This means that the Minister could be required to grant an exemption for a
restaurant that could not comply with the condition in section 10 (e), but
could then revoke the exemption under section 12 (1) for breach of the
condition. This amendment corrects this anomoly.
[3.239] Section
8 (3) (a) (ii)
substitute
(ii) is clearly defined in the application and is (or, if the application
is approved, will be) a clearly defined area in the licensed premises;
and
(commencement: the day after this Act’s notification day)
Explanatory note
This amendment clarifies a possible ambiguity. Under existing section
8 (3) (a) (ii) the Minister must not grant an exemption
certificate for licensed premises unless the part of the premises to which the
application relates is a ‘clearly defined area’. The amendment
makes it clear that the area must be clearly defined in the application (so the
Minister has the information needed to decide the application) and that the area
must be a clearly defined area in the licensed premises (so the provisions of
the Act can operate with certainty in relation to the exemption).
substitute
(e) if the certificate is for a restaurant—smoking is prohibited in
not less than 75% of the public area of the restaurant;
(f) if the certificate is for licensed premises—smoking is
prohibited in not less than 50% of the public area of the premises;
(commencement: the day after this Act’s notification day)
Explanatory note
This amendment removes a technical deficiency in the Act arising from
inconsistencies between provisions of the Act. The technical deficiency
corrected by this amendment is the reverse of the technical deficiency corrected
by the amendment of section 8 (2) (a) made by another amendment in this
schedule.
Section 8 (3) (a) (i) requires the Minister to grant an
exemption for licensed premises if, among other things, the Minister is
satisfied that the part of the premises to which the application relates is not
greater than 50% of the public area of the premises. However, section 10, which
deals with the conditions of an exemption, does not reflect this requirement.
This means that the Minister cannot revoke the exemption for noncompliance with
the requirement after the exemption is granted, thus making the requirement
ineffective. The amendment corrects this anomoly.
[3.241] New
section 20 (aa)
insert
(aa) under section 10A (2) to refuse to vary an exemption; or
(commencement: the day after this Act’s notification day)
Explanatory note
This amendment is consequential on the insertion of new section 10A by an
amendment in schedule 1 and provides for review of a decision under section 10A
(2) to refuse to vary an exemption.
renumber paragraphs when Act next republished under Legislation Act
2001
(commencement: the day after this Act’s notification day)
Explanatory note
This amendment is consequential on the insertion of new section 20
(aa).
[3.243] Section
21 (1) (a)
after
section 8 (1)
insert
or 10A (2)
(commencement: the day after this Act’s notification day)
Explanatory note
This amendment is consequential on the insertion of new section 10A by an
amendment in schedule 1 and provides for written notice of a decision under
section 10A (2) to be given to the applicant.
Part
3.28 Statute Law Amendment Act 2002 No
30
omit
(commencement: 17 September 2002)
Explanatory note
This amendment omits amendments of the Low-alcohol Liquor Subsidies Act
2000. The Act expired before the commencement of the Statute Law
Amendment Act 2002. The amendment is backdated to the day the amendments
commenced.
Part
3.29 Tobacco Regulations
1991
[3.245] Regulation
4 (4), example 2
omit
700cm2
substitute
7 000cm2
Explanatory note
This amendment corrects an error in an example.
[3.246] Regulation
4 (4), example 3
omit
5m2
substitute
6 000cm2
Explanatory note
This amendment corrects an error in an example.
Part
3.30 Utilities Act
2000
insert
Note Under s 52, the ICRC must prepare a written notice of a grant
of a licence. The notice is a notifiable instrument.
Explanatory note
This amendment inserts a note alerting the reader to the obligation in
section 52.
insert
Note Under s 52, the ICRC must prepare a written notice of a refusal
of a licence. The notice is a notifiable instrument.
Explanatory note
This amendment inserts a note alerting the reader to the obligation in
section 52.
insert
Note Under s 52, the ICRC must prepare a written notice of a
variation of a licence. The notice is a notifiable instrument.
Explanatory note
This amendment inserts a note alerting the reader to the obligation in
section 52.
insert
Note Under s 52, the ICRC must prepare a written notice of an
exemption from a condition of a licence. The notice is a notifiable
instrument.
Explanatory note
This amendment inserts a note alerting the reader to the obligation in
section 52.
insert
Note Under s 52, the ICRC must prepare a written notice of a
transfer of a licence. The notice is a notifiable instrument.
Explanatory note
This amendment inserts a note alerting the reader to the obligation in
section 52.
insert
Note Under s 52, the ICRC must prepare a written notice of a refusal
to agree to transfer a licence. The notice is a notifiable instrument.
Explanatory note
This amendment inserts a note alerting the reader to the obligation in
section 52.
insert
Note Under s 52, the ICRC must prepare a written notice of a
surrender of a licence. The notice is a notifiable instrument.
Explanatory note
This amendment inserts a note alerting the reader to the obligation in
section 52.
insert
Note Under s 52, the ICRC must prepare a written notice of a
revocation of a licence. The notice is a notifiable instrument.
Explanatory note
This amendment inserts a note alerting the reader to the obligation in
section 52.
insert
Note Under s 52, the ICRC must prepare a written notice of a
determination of annual licence fees. The notice is a notifiable
instrument.
Explanatory note
This amendment inserts a note alerting the reader to the obligation in
section 52.
substitute
(1) ICRC must prepare a written notice of each of the following matters as
soon as possible after it happens:
(a) the grant of a utility licence under section 37 (Grant);
(b) the refusal of a utility licence under section 37 (Grant);
(c) the variation of a utility licence under section 38
(Variation);
(d) an exemption from compliance with a utility licence condition under
section 39 (Exemption from licence condition);
(e) ICRC’s agreement to the transfer of a utility licence under
section 40 (Transfer);
(f) ICRC’s refusal to agree to the transfer of a utility licence
under section 40 (Transfer);
(g) the surrender of a utility licence under section 41
(Surrender);
(h) the revocation of a utility licence under section 42
(Revocation);
(i) the determination of an annual licence fee for a utility under section
45 (Determination of fee).
Explanatory note
This amendment inserts section references for each matter and reorders the
paragraphs.
Part
3.31 Workers Compensation Act
1951
renumber subsections when Act next republished under Legislation Act
2001
Explanatory note
This amendment is consequential on the insertion of section 77 (3A) by
an amendment in schedule 1.
omit
employer or insurer
substitute
insurer or employer
Explanatory note
This amendment makes the references to employer and insurer consistent
throughout the section. This removes any doubt that certain actions by an
employer do not affect the employer’s liability and certain actions by an
insurer do not affect the insurer’s liability.
substitute
Note 1 An injured worker may give notice of an injury by making an
entry in a register of injuries (see s 92).
Note 2 Section 124 (No notice or defective or inaccurate notice)
contains an exception to this regulation.
Explanatory note
This amendment inserts an extra note in section 120 to make clear the
affect of an earlier section that might otherwise be overlooked.
omit
part
substitute
chapter
Explanatory note
This amendment corrects an error of the description of the area of the Act
where section 182 is located.
omit
authorised
substitute
appointed
Explanatory note
This amendment corrects a misdescription of how an inspector becomes an
inspector.
[3.262] Dictionary,
new definition of inspector
insert
inspector means an inspector appointed under section 188
(1).
Explanatory note
This amendment inserts a definition for a previously undefined term used in
the Act.
Schedule
4 Repeal of redundant or obsolete UK
Acts and related Acts
(see s 6)
Explanatory note for sch
4
Historical introduction
The establishment of the colony of NSW in 1788 required that a body of laws
be immediately applicable to it. It was an accepted common law principle that,
on the establishment of a new colony, the laws of the UK (both the common law
and statutes) would automatically apply to it. This principle was subject to
the qualification that the laws only applied so far as they were applicable to
the conditions of the new colony.
However, there were some doubts about the applicability of UK law in NSW
because of the unusual nature of the colony. These doubts were finally laid to
rest when the UK parliament passed the Australian Courts Act 1828 9 Geo 4
c 83.
Apart from their application because of the Australian Courts Act
1828, some UK Acts applied because they were expressed to apply to NSW (the
Australian Courts Act 1828 is itself an example of this) or because their
subject matter indicated that they were necessarily intended to apply. UK laws
applying in this way were said to apply by paramount force.
When the area that makes up the ACT was separated from NSW, the same
principles about application of laws applied. Under the Seat of Government
(Acceptance) Act 1909 (Cwlth), section 6, laws in force in the area on 31
December 1910 continued in force in the ACT. These laws consisted of the common
law, any UK statutes that applied to the colony of NSW on its establishment and
had not been repealed, any UK statutes passed by the UK parliament applying to
NSW by paramount force and any statutes passed by the NSW legislature.
In 1971 the Commonwealth Attorney-General referred to the then Law Reform
Commission of the Australian Capital Territory (the ACTLRC)
‘a review of the Imperial Acts that still apply in the Australian Capital
Territory with a view to recommending—
(a) which of those Acts in their application to the Australian Capital
Territory should be repealed;
(b) which should continue to apply in the Territory; and
(c) which should be replaced by legislation in a more modern
form.’
In 1973 the ACTLRC published their Report on the Imperial Acts in Force
in the Australian Capital Territory and Supplementary Report (the
ACTLRC report). The ACTLRC commented that it ‘relied
greatly’ on the work of Sir Leo Cussen, Judge of the Supreme Court of
Victoria (whose work culminated in the Imperial Acts Application Act 1922
(Vic)) and the Report of the Law Reform Commission of NSW on the Application
of Imperial Acts (the NSWLRC report), published in 1967. The
recommendations made in the NSWLRC report were implemented with very few
amendments in the Imperial Acts Application Act 1969 (NSW).
Following the ACTLRC report, the Commonwealth made 3 ordinances for the ACT
(later renamed as Acts by the Self-Government (Citation of Laws) Act 1989
(Cwlth)): the Imperial Acts (Substituted Provisions) Act 1986 (the
Substituted Provisions Act), the Imperial Acts
Application Act 1986 (the Application Act) and the Imperial
Acts (Repeal) Act 1988 (the Repeal Act).
The Substituted Provisions Act, section 3 (1) repealed 31 UK Acts in their
application in the ACT as laws of the ACT and enacted corresponding provisions
that were to have effect as ACT laws.
The Application Act, section 4 (4) by implication continued in force in the
ACT as laws of the ACT 16 UK Acts (in whole or part). The Application Act,
section 5 (1) amended 28 UK Acts in their application in the ACT and reproduced
their text in that Act, schedule 3.
The Repeal Act, section 3 (2) provided in effect that UK Acts then in force
in the ACT (other than the UK Acts continued in force under the Application Act)
cease to be in force in the ACT.
This schedule continues the process of reviewing former UK and NSW laws and
repealing those that are no longer needed.
Part
4.1 Administration of Justice
Acts
Explanatory note
These Acts regulate procedures for actions on bonds. A bond requires a
person to pay a certain amount on the nonobservance of a condition. The Acts
allow a plaintiff to assign an action for breach of a bond and to include all
breaches in an action brought by the plaintiff even if an action for a breach
has been assigned. The Acts also contain provisions about payment or recovery
once judgment in an action for breach has been given.
Because the Acts only deal with procedural matters, the ACTLRC report
recommended that the Acts be repealed, but that the effect of the
Administration of Justice Act 1696, section 8 and the Administration
of Justice Act 1705, sections 12 and 13 be preserved.
The ACTLRC did not favour the NSW approach contained in the Imperial
Acts Application Act 1969 (NSW). Two complicated provisions (sections 33
and 34) were substituted for sections 8, 12 and 13. Instead, the ACTLRC
recommended that the UK approach be adopted. The Supreme Court of Judicature
(Consolidation) Act 1925 (UK), section 99 (1) (g) gave power to the repeal
certain enactments by rules of court. This power was exercised in 1957 by
Rules of the Supreme Court (UK), order 53G rule 1. Rule 1 (1)
repealed sections 8, 12 and 13, and rule 1 (2) set out a new, straightforward
procedure.
Accordingly, the Imperial Acts Application Act 1986 itself (in s 4
(1)) repealed the provisions of the Administration of Justice Act 1696
other than section 8 and the provisions of the Administration of
Justice Act 1705 other than sections 12 and 13. The 1986 Act also provided
for the delayed commencement of the provisions (s 4 (2) and (3)) that repealed
sections 8, 12 and 13. However, section 4 (2) and (3) were not commenced before
the 1986 Act was repealed by the Law Reform (Miscellaneous Provisions)
Act 1999 No 66. As a result, sections 8, 12 and 13 remained in
force.
Repeal of the Administration and Justice Acts will enable the effect of
sections 8, 12 and 13 to be preserved in the Supreme Court Rules, the
appropriate place for procedural matters of the kind dealt with in the
Administration of Justice Acts.
The delayed commencement of this repeal is to allow time for the Supreme
Court Rules to be amended.
Administration of Justice Act 1696 8 and 9 Will 3 c 11
Administration of Justice Act 1705 4 and 5 Anne 5 c 16
(commencement: a day fixed by the Minister by written notice)
Note If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
Part
4.2 Australian Courts Act
1828
Explanatory note
NSW began its existence as a British penal colony in 1788. The assumption
at the time was that UK Acts and the common law would apply in the colonies, but
there were doubts about the applicability of UK law in NSW because of the
unusual nature of the colony. These doubts were finally laid to rest when the
UK parliament passed the Australian Courts Act 1828 9 Geo 4 c 83. This
Act provided, among other things, that all laws and statutes in force in England
on 25 July 1828 that were applicable to the conditions in NSW were taken to be
in force in NSW (s 24).
The area that now forms the ACT once formed part of NSW. The laws of that
State therefore applied in the area before it was surrendered to the
Commonwealth. Under the Seat of Government (Acceptance) Act 1909
(Cwlth), section 6, any law in force (including UK Acts) in the area that now
forms the ACT on 31 December 1910 continues in force in the ACT. The
Imperial Acts Application Act 1986 (Cwlth), section 5 (1) amended 28 UK
Acts in their application in the ACT and reproduced their text in that Act,
schedule 3. The Australian Courts Act 1828 was 1 of those 28
Acts.
The Australian Courts Act 1828 is, therefore, ‘no more than a
matter of history in the Australian Capital Territory’ (ACTLRC report, at
p 52), and, as recommended by the ACTLRC, can be repealed.
It will, however, be available in the repealed Acts part of the ACT
legislation register (see www.legislation.act.gov.au).
Australian Courts Act 1828 9 Geo 4 c 83
Part
4.3 British Law Ascertainment Act
1859
Explanatory note
The long title of this Act states that it is an ‘Act to afford
facilities for the more certain ascertainment of the law administered in one
part of Her Majesty’s Dominions when pleaded in the courts of another
part’.
The Act allowed a court hearing a case in one part of the British Empire
(the originating court) to ask a court in another part of the
Empire (the other court) what the law (applicable to the agreed
facts of the case) as administered in that part would be (s 1). The Act applied
if the originating court thought that acting under the Act was necessary or
expedient for the proper disposal of the case (s 1).
The rest of the Act deals with the procedure once the other court has given
its opinion about the applicable law (s 2 and 3 (1)), and provides that once the
procedure has been followed, the originating court must apply the opinion to the
facts of the case (s 3 (2)) or submit the opinion to the jury with the other
facts of the case (s 3 (3)).
Apart from being of historical interest, the British Law Ascertainment
Act 1859 has no continuing relevance in the ACT. The law dealing with proof
of foreign law that applies in the ACT is the Evidence Act 1995 (Cwlth),
section 174 (Evidence of foreign law), section 175 (Evidence of law reports
of foreign countries) and section 176 (Questions of foreign law to be decided by
judge).
British Law Ascertainment Act 1859 22 and 23 Vic c 63
Part
4.4 Colonial Courts of Admiralty Act
1890
Explanatory note
This Act gave the ACT Supreme Court admiralty jurisdiction. Admiralty
jurisdiction deals with a person’s right of action for personal injury or
damage to property caused by the maritime fault of the owner or operator of a
ship. The jurisdiction is civil only.
The Colonial Courts of Admiralty Act 1890 replaced the old system of
Imperial Vice-Admiralty courts that had existed as Imperial courts separate from
the ordinary court system. Section 2 (1) gives every court in a British
possession that is a court of admiralty (a colonial court of
admiralty) jurisdiction under the Act. A court is a colonial court of
admiralty if it is declared under the Act to be a colonial court of admiralty.
If there is no declaration, a court is taken to be a colonial court of admiralty
if the court has unlimited civil jurisdiction. The ACT Supreme Court has
unlimited civil jurisdiction (see the Supreme Court Act 1933, s 20 and
the Self-Government Act, s 48A).
The jurisdiction of a colonial court of admiralty is the same as the
admiralty jurisdiction of the High Court of England (s 2 (4)).
The Act came into force in NSW on 1 July 1911. As such, the jurisdiction
given to the ACT Supreme Court by the then Seat of Government Supreme Court
Act 1933 (Cwlth) (now the Supreme Court Act 1933), section 11 (a) did
not include the jurisdiction given by the Colonial Courts of Admiralty
Act 1890 (UK) to the NSW Supreme Court on or after 1 July 1911.
Section 11 (a) gave the ACT Supreme Court the same original jurisdiction that
the NSW Supreme Court had on 31 December 1910.
Instead, the ACT Supreme Court, as a court of unlimited civil jurisdiction,
was given admiralty jurisdiction directly under the Act as a colonial court of
admiralty.
However, it is not necessary to retain this Act because admiralty
jurisdiction is also given to the ACT Supreme Court by the Admiralty Act
1988 (Cwlth), part 2. That Act repealed the Colonial Courts of Admiralty
Act 1890 so far as it was part of the law of a Commonwealth or an external
Territory.
Colonial Courts of Admiralty Act 1890 53 and 54 Vic c 27
Part
4.5 Colonial Laws Validity Act
1865
Explanatory note
The law inherited from England that applied in NSW (see pt 4.2 (Australian
Courts Act 1828), explanatory note) was subject to change in 2 ways. First, the
UK Parliament could legislate for NSW (that is, pass legislation intended to
extend not only to the UK but also to NSW). Second, the NSW colonial
legislature could amend the inherited law. The extent of this amending power
was a matter of considerable dispute, and a number of colonial enactments were
declared invalid because they had infringed a fundamental principle of English
law.
The confusion about local legislation was largely clarified by the
Colonial Laws Validity Act 1865 (UK), sections 2 and 3. Section 2
declared ‘absolutely void and inoperative’ any colonial law that was
repugnant to the provisions of any UK legislation extending to the colony.
Section 3 provided that, in the absence of conflict, no colonial law could be
impeached because of its ‘repugnancy to the Law of England’.
However, the rules that the UK Parliament could still legislate for Australian
States and that a State could not legislate so as to repeal or amend UK
legislation extending to the State were not removed until the Australia Act
1986 (UK and Cwlth).
The Statute of Westminster 1931 (UK), section 2 (1) provides that
the Colonial Laws Validity Act 1865 does not apply to any law made by the
Commonwealth Parliament after 3 September 1939.
Apart from being of historical interest, the Colonial Laws Validity Act
1865 has no continuing relevance in the ACT. Whether an ACT law is valid
depends, broadly speaking, on the Commonwealth Constitution and the
Self-Government Act, not the Colonial Laws Validity Act 1865.
Once repealed, the Colonial Laws Validity Act 1865 will be available
in the repealed Acts part of the ACT legislation register (see
www.legislation.act.gov.au).
Colonial Laws Validity Act 1865 28 and 29 Vic c 63
Part
4.6 Courts (Colonial) Jurisdiction Act
1874
Explanatory note
The wording of this Act was described as ‘obscure’ by the
ACTLRC in its report (see p 11). Only 1 substantive provision (s 3)
remains in force. Section 3 provides that a person convicted by a colonial
court of an offence on the high seas in breach of an Imperial Act should be
punished as if the offence had been against a law of the colony.
It is not clear what technical legal problem the Act was remedying.
However, because of the changed status of former UK Acts applying in the ACT
(which are now ACT rather than Imperial laws), it is highly unlikely that the
Act has any present application in the ACT. In any case, when the repeals made
by this schedule commence, there will no longer be any offences in the ACT to
which the Act could apply. The Act will, therefore, be redundant.
Courts (Colonial) Jurisdiction Act 1874 37 and 38 Vic c 27
Part
4.7 Demise of the Crown
Acts
Explanatory note
Under the Interpretation Act 1967 (repealed), section 65 all former
UK Acts in force in the ACT immediately before 10 November 1999 (including these
Acts) became, for all purposes, laws made by the ACT Legislative Assembly. This
completed the process of making former UK Acts fully into ACT laws.
Because they are ACT laws, the Legislation Act, section 84 (Saving of
operation of repealed and amended laws) applies to them. Section 84 (1) (a)
provides that the repeal or amendment of an ACT law does not revive anything not
in force or existing when the repeal or amendment takes effect.
This means that the Demise of the Crown Acts mentioned below can be
repealed, because their repeal does not revive the common law rules relating to
the demise of the Crown that these Acts abolished.
However, to remove any doubt, section 6 (2) of this Act declares the Acts
to be laws to which the Legislation Act, section 88 ((Repeal does not end
transitional or validating effect etc) applies.
It should be noted that the Demise of the Crown Act 1760 (UK) is a
‘reserved law’ that cannot be amended or repealed by the Legislative
Assembly (see the Self-Government Act, s 34 (4) and (5) and sch 5, pt
3).
Demise of the Crown Act 1547 1 Edw 6 c 7
Demise of the Crown Act 1702 1 Anne c 2
Demise of the Crown Act 1707 6 Anne c 41
Demise of the Crown Act 1901 1 Edw 7 c 5
Part
4.8 Former UK Acts (Interpretation)
Act 1988
Explanatory note
The Former UK Acts (Interpretation) Act 1988 is a former
Commonwealth ordinance that became an Act enactment on self-government. The
purpose of the Act is to assist in the interpretation of former UK
Acts.
This schedule repeals 15 former UK Acts in addition to the Administration
of Justice Acts (that never became former UK Acts). There are only 14 former UK
Acts still in force in the ACT (see sch 2 of this Act, the amendment of the
Legislation Act, sch 1, pt 1.1). The Former UK Acts (Interpretation) Act
1988 has no relevant application to the remaining former UK Acts.
Accordingly, it is no longer needed and can be repealed.
Former UK Acts (Interpretation) Act 1988 No 94
Part
4.9 Merchant Shipping Act
1894
Explanatory note
The Merchant Shipping Act 1894 (UK) was a consolidation of the
various Merchant Shipping Acts that had already been passed in the UK.
The Merchant Shipping Act 1894 (UK), at least in part, extended to
the ACT as part of the law of the ACT of its own force immediately before 3
September 1939 (the date the Statute of Westminster 1931 (UK) came into
force for Australian law). The Act had not ceased to so extend to the ACT
before 12 January 1987 (the commencement of the Imperial Acts Application
Ordinance 1986). Accordingly, the Act (as amended by other Imperial Acts
before 3 September 1939) became an applied Imperial Act for the 1986
Ordinance.
The Act includes the following matters (pt 1 is dealt with
below):
• masters and sailors (pt 2)—including competency, and other
matters relating to sailors (engagement, wages, welfare, discipline
etc)
• passengers and emigrant ships (pt 3)—including equipment, and
number of passengers
• fishing boats (pt 4)
• safety (pt 5)—including distress signals and
unseaworthiness
• special shipping inquiries and courts (pt 6)
• delivery of goods (pt 7)
• liability of shipowners (pt 8)
• wreck and salvage (pt 9)
• pilotage (pt 10)
• lighthouses (pt 11).
Because the ACT is landlocked, there is no need for the ACT to have
legislation about these aspects of maritime law, as the legislation has no
practical application in the ACT.
In any event, the Commonwealth has legislated extensively in the area of
maritime law. The main Commonwealth Act is the Navigation Act 1912. That
Act deals with most of the matters mentioned above. Other Commonwealth Acts
include the Historic Shipwrecks Act 1976, the Crimes at Sea Act
2000, the Admiralty Act 1988 (about admiralty and maritime
jurisdiction), the Limitation of Liability for Maritime Claims Act 1989,
the Australian Maritime Safety Authority Act 1990, the Carriage of
Goods by Sea Act 1991, the Seafarers Rehabilitation and Compensation Act
1992 and the Lighthouses Act 1911.
The only part of the Merchant Shipping Act 1894 that could have
practical application in the ACT is part 1. Part 1 deals with registration,
transfer of registration and mortgage of a registered ship or share in a
ship.
However, the Shipping Registration Act 1981 (Cwlth), deals with
these matters. Accordingly, that Act repealed the Merchant Shipping Act
1894 (UK), part 1 so far as it was part of the law of the Commonwealth. The
rest of the Merchant Shipping Act 1894 (UK) (so far as it was a law of
the Commonwealth or an external Territory) was repealed by the Statute
Stocktake Act 1999 (Cwlth).
Merchant Shipping Act 1894 57 and 58 Vic c 60
Part
4.10 Offences at Sea Act
1536
Explanatory note
Under medieval law all offences committed at sea were within the
jurisdiction of the High Court of Admiralty and not the common law courts. The
High Court of Admiralty applied civil law rather than the common law.
Accordingly, before the 16th century, offences such as piracy were
dealt with according to the civil law in the High Court of Admiralty.
The Offences at Sea Act 1536 (UK) provided a new means of trial for
‘all treasons, felonies, robberies, murthers and confederacies’
committed within the jurisdiction of the Admiral. They were to be tried by
special commissioners using common law procedures, including prosecution by
indictment and trial by jury.
The Act became part of the law of NSW on the establishment of the colony,
but it is doubtful whether it survived a series of 19th century UK
Acts that effectively transferred admiralty jurisdiction to the courts of the
Australian colonies (see Australian Law Reform Commission, Report No 48 on
Criminal Admiralty Jurisdiction and Prize, 1990, pp 7-10).
The Offences at Sea Act 1536 has not been necessary since at least
1979 when the Crimes at Sea Act 1979 (Cwlth) was enacted as part of a
cooperative scheme involving the Commonwealth, the States and the Northern
Territory for offshore criminal jurisdiction. That scheme has recently been
replaced by a cooperative scheme of which the Crimes at Sea Act 2000
(Cwlth), forms part. In any event, the lack of coastal waters prevents the ACT
from having any substantial legal or jurisdictional links with anything that may
happen at sea.
Offences at Sea Act 1536 28 Hen 8 c 15
Explanatory note
The Acts repealed by this part are former UK Acts that deal with piracy and
related offences at sea. The Acts are in archaic terms. All the Acts are now
redundant, because piracy is now dealt with comprehensively by Commonwealth
law.
In 1992 the Crimes Act 1914 (Cwlth) was amended by the Crimes
Legislation Amendment Act 1992 (Cwlth) (the 1992 amendment Act),
which inserted a new part (pt 4) about piracy. The part applies to acts of
piracy on the high seas, in the coastal sea of Australia, and everywhere else
that is not within the territorial jurisdiction of Australia or a foreign
country (acts committed within the territorial jurisdiction of a country are
generally subject to the laws of the country). Other Commonwealth legislation
relevant to piracy includes the Crimes (Ships and Fixed Platforms) Act
1992 (Cwlth).
The 1992 amendment Act also repealed some (but not all) of the Piracy Acts
so far as they were ‘part of the law of the Commonwealth or a
Territory’. It is not completely clear whether that Act had the effect of
repealing the Acts, so far as they were part of the law of the ACT. However,
the better view is that the 1992 amendment Act was not effective to repeal the
Piracy Acts so far as they were part of ACT law because by then the
Self-Government Act had already converted these former UK Acts into ACT
enactments. Accordingly, it remains necessary to repeal the Piracy
Acts.
Piracy Act 1698 11 Will 3 c 7
Piracy Act 1717 4 Geo 1 c 11
Piracy Act 1721 8 Geo 1 c 24
Piracy Act 1744 18 Geo 2 c 30
Part
4.12 Piracy Punishment Act
1902
Explanatory note
This Act is a former NSW Act that became part of ACT law on the
establishment of the ACT.
The Act deals with the punishment for offences of piracy. Among other
things, the Act substitutes imprisonment for the death penalty provided under
the Offences at Sea Act 1536 and the Piracy Acts repealed by this
schedule.
The Act will be redundant on the repeal of those Acts by this
schedule.
Piracy Punishment Act 1902 No 69
Schedule
5 Repeal of other redundant or
obsolete Acts
(see s 6)
Explanatory note for sch
5
This schedule repeals 2 Acts that are no longer needed.
The Insane Persons and Inebriates (Committal and Detention) Act 1936
facilitated the commitment of ACT residents to NSW health institutions under the
Lunacy Act 1898 (NSW) and the Inebriates Act 1900 (NSW). These
NSW Acts have been repealed in their application to the ACT and accordingly the
Insane Persons (Committal and Detention) Act 1936 is no longer
needed.
The Mental Health Act 1962 also makes provision in relation to the
admission and detention of ACT residents in NSW institutions. Its provisions
have been superseded by the Mental Health (Treatment and Care) Act 1994.
Part 5A of that Act provides for the interstate application of mental health
laws and orders and allows for regulations to be made recognising corresponding
laws of other jurisdictions. These regulations are currently being
prepared.
Insane Persons and Inebriates (Committal and Detention) Act 1936 No
39
Mental Health Act 1962 No 5
Endnotes
Republication of amended laws
1 For the latest republication of amended laws, see
www.legislation.act.gov.au.
Penalty units
2 The Legislation Act, s 133 deals with the meaning of offence penalties
that are expressed in penalty units.
© Australian Capital Territory
2002
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