JUSTICE LEGISLATION AMENDMENT BILL 2006

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

SERIAL NO.  49

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends or repeals various Acts within the Justice Portfolio.

The Agents Licensing Act is amended to permit the payment of moneys from the Agents Fidelity Fund to industry bodies. such as the Real Estate Institute of the Northern Territory or the Australian Institute of Conveyancers for their role in improving regulatory compliance or improving the quality of services provided by Real Estate Agents and Conveyancers.

The Associations Act and the Co-operatives Act are amended to clarify the application of the provisions of the Corporations Act 2001 should a body incorporated under one of these Acts apply to become incorporated under that Commonwealth Act. 

The Construction Contracts (Security of Payments) Act is amended to:
·	clarify that when the Workmen’s Liens Act is repealed, it will still apply to contracts made before the repeal;
·	remove the requirement that leave of the Court is required in order to enforce a determination made under the Act. 

The Interpretation Act is amended in a number of ways, including:
·	consolidating definition provisions into one section;
·	adding some new definitions of often-used words;
·	re-wording some provisions into “plain English”;
·	introducing the term “statutory instrument” in place of “instrument of a legislative or administrative character”;
·	replacing the term “regulations”  with “subordinate legislation” where the term is used to cover regulations, by laws or rules;
 
Other amendments improve the mechanics of the drafting or interpretation of legislation.  

The Land Title Act is amended to improve certain conveyancing transactions.  This includes:

·	allowing a solicitor or other authorised person to execute a mortgage on behalf of a mortgagee;
·	protecting the mortgagee of a lot burdened by an easement, covenant or profit a prendre.

The Lands and Mining Tribunal Act is amended so as to:
·	include the word “planning” in the name of the Act and the Tribunal;
·	clarify that a decision is not invalid merely because it is given more than two months after hearing;
·	provide for the making of consent orders, and for the enforcement of costs orders;
·	ensure that the Chairperson and members of the Tribunal must be Magistrates - all Magistrates will automatically be members.

The Professional Standards Act is amended to remove possible duplication in financial reporting, auditing and procurement requirements for the Professional Standards Council established under this Act.  

The Sentencing Act is amended to repeal some provisions that will now appear in the Interpretation Act and to convert a fine currently expressed in dollar terms into penalty units.

NOTES ON CLAUSES

PART 1 – PRELIMINARY MATTERS
Clause 1.	Short Title.

	The Act once commenced will be known as the Justice Legislation Amendment Act 2006.

Clause 2.	Commencement

	Some Parts of the Act will commence on assent, other Parts will commence on July 1 2006, other parts will commence upon publication of a notice in the Gazette, and sections 13 and 14 will commence when the Workmen’s Liens Act is repealed. 

PART 2 – AMENDMENT OF AGENTS LICENSING ACT
 
Clause 3.	Act amended
	
	The Act being amended by this Part is the Agents Licensing Act.

Clause 4.	Amendment of Part XII, Division 1 heading

	The heading to Division 1 of Part XII is changed.

Clause 5.	New section 93

	The Minister can determine that moneys from the Agents Licensing Fidelity Fund can be paid to an industry body for the purposes of improving regulatory compliance, or improving the quality of services provided by real estate agents or conveyancing agents.

	The Minister must first consult with the Fund itself, the industry body, the Agents Licensing Board, and the Consumer Affairs Council.

	The Minister can impose terms and conditions for the payment of the money.
An industry body can apply for funds under this section.  Certain details must be provided in the application.

	An industry body is defined to mean an industry representative body that has a role in improving the service the industry provides.  
	
	The Real Estate Institute of the Northern Territory and the Australian Institute of Conveyancers are given as examples of industry representative bodies.

Clause 6.	Amendment of section 95B (Moneys of Fund)

	This is a consequential amendment that provides that the Fund is to pay out any money the Minister determines is to be paid to an industry representative body under new section 93. 

PART 3 – AMENDMENT OF ASSOCIATIONS ACT

Clause 7.	Act amended

	The Act being amended by this Part is the Associations Act.

Clause 8.	Amendment of section 3 (Excluded matter for Corporations Act 2001) 

Section 3 is amended to clarify that the provisions of the Corporations Act 2001 apply to an incorporated association that applies to be incorporated under that Act.  

This rectifies a potential anomaly.

Clause 9.	

Amendment of section 4 (Definitions)

	The definition of “committee” is amended so that it includes any other term that might be used (such as management board etc).  

Clause 10.	Amendment of section 46 (Audits of tier 1 incorporated association)

Section 46 is amended to clarify that “partner” in this context includes not just a business partner, but a spouse or de facto partner.  

This was the intention of this section.

PART 4 – AMENDMENT OF CONSTRUCTION CONTRACTS (SECURITY OF PAYMENTS) ACT

Clause 11.	Act amended
	
	The Act being amended in this Part is the Construction Contracts (Security of Payments) Act.

Clause 12.	Amendment of section 45 (Determiniation may be 	enforced as judgment)

	Section 45 is amended so as to omit the need for a court to grant leave in order to have a determination enforced.

	The amended section 45 will apply regardless of whether the determination was made before or after this amendment commences.

Clause 13.	Amendment of Part 7 heading
	
	The heading to Part 7 is changed.

Clause 14.	New section 67

	New section 67 is a transitional provision that removes any potential doubt that when the Workmen’s Liens Act is repealed, it will continue to apply to contracts already in existence at that time.

PART 5 – AMENDMENT OF CO-OPERATIVES ACT

Clause 15.	Act amended
	
	The Act being amended by this part is the 
	Co-operatives Act.

Clause 16.	Amendment of section 9 (Exclusion of operation of Corporations Act 2001)

Section 9 is amended to clarify that the provisions of the Corporations Act 2001 apply to a co-operative that applies to be incorporated under that Act.  

This rectifies a potential anomaly.

PART 6 – AMENDMENT OF INTERPRETATION ACT

Clause 17.	Act amended

	The Act being amended by this Part is the Interpretation Act.

Clause 18.	Repeal and substitution of section 5
	
	Existing section 5 is omitted and replaced by a “plain English” provision.

5.	

When Acts commence

	When an Act commences, it commences at the beginning of that day.

Clause 19.	Amendment of section 6 (Commencement of Acts)

	Section 6(4) is omitted.  

New sections 6A and 6B will deal with commencement of Acts.
 
Clause 20.	New sections 6A and 6B

	6A.	Commencement notices
	
An Act can be commenced on one day, or different parts can be commenced on different days.

This will avoid having to put this provision in every Act where it may be intended to commence different parts on different days.

6B.	General references to commencement

New section 6B sets out what “commencement” means.

New section 6B(a) means that provisions of an Act are deemed “commenced” when its main provisions (ie other than short title and the commencement section) commence.  If this situation doesn’t apply, then “commence” has its ordinary meaning.

This will avoid having to put this provision in every Act where it is intended to commence the main provisions of an Act at a later date.

Clause 21.	Amendment of section 8 (Exercise of powers before commencement)

New provisions are inserted into section 8.  

The new provisions clarify the powers of a person, or entity, appointed under an Act that has not yet commenced.

This is for clarification of the existing provisions of section 8.

Clause 22.	Repeal of section 10
	
	Section 10 is repealed.  

(Equivalent provisions will be in new section 71).

Clause 23.	Repeal and substitution of section 17 to 19

	Sections 17, 18 and 19 are repealed.  

17.	Definitions

Definitions of words and phrases are re-enacted.  This is a consolidation of definitions that are currently spread throughout the Act.  They now appear in one section and in alphabetical order, making them easier to find.

	Some new definitions are added.

	18.	Definitions to be read in context

A definition in an Act is to apply unless the context indicates or requires otherwise.

This will avoid the need to put this provision in every Act or wherever a definition is used.

18A. References relating to an Agency
 
	This is a consolidation of definitions and provisions currently spread throughout the Act, including the current definitions section and current section 36.

	19. Ministerial references
	
	New section 19 essentially re-enacts section 36 (which is to be repealed), but in “plain English” and dealing only with Ministerial references (reference to “Agency” now being contained in new section 18A).

Clause 24.	Repeal and substitution of section 20

	Current section 20 is repealed.

20.	Construction of statutory instruments

Section 20 is re-enacted in essentially the same terms but using the expression “statutory instrument” instead of “instrument of a legislative or administrative character”.  

Clause 25.	New section 24AA

	24AA.	References to persons generally

	A reference in an Act to “person” includes a reference to a body corporate and body politic as well as an individual. 

	This is to ensure that such references are not read down to mean only individuals.

Clause 26.	Repeal and substitution of section 25 (Service of documents)
	
	Section 25 is repealed and replaced with a new section 25.

25.	Service of documents

	New section 25 deals with service of documents not only by post but by hand delivery and by fax.

A document can be served by:
·	giving it to the recipient;
·	sending it by prepaid post;
·	sending it by fax; or
·	leaving it at the recipient’s address with someone who appears to be at least 16 years old and who appears to live or work there.
	
A document served by post is taken to be served when the post would usually be delivered.	

A document sent by fax is (subject to contrary evidence) taken to be served when it was sent.

A document left at the recipient’s address is taken to be served when it was left.

This section applies even if the word “serve” is not used in an Act.

A number of terms used in this section are defined.

Clause 27.	Repeal of section 31
	
	Section 31 is repealed as “supreme court” and “judge” are now defined in the new definitions section (section 17).

Clause 28.	Repeal of section 34B

	Section 34B is repealed, as “medical practitioner” is now defined in the new definitions section (section 17).
	
Clause 29.	Amendment of section 35 (Administrative Arrangements Orders)

	Section 35(2) is omitted and replaced with new section 35(2).

The new section 35(2) provides that the Administrative Arrangements Orders do not have to be published in full in the Gazette.  Instead, a notice can be published in the Gazette advising that such an order has been made and stating where copies can be purchased.

(The Administrative Arrangements order will contineue to appear on the Northern Territory Government website.)

Clause 30.	Repeal of section 36

	Section 36 is repealed.  New section 19 contains equivalent, but “plain English”, provisions.

Clause 31.	Amendment of section 38C (Penalties at foot of sections and subsections)

	New subsection 38(C)(1AA) is inserted.

	This new subsection is necessary for drafting purposes because in future penalty sections will read “maximum penalty” instead of “penalty”.

Clause 32.	New sections

	New Sections are inserted.

	38DA.	Fine in addition to or instead of 	imprisonment
	
	New section 38DA is essentially a re-enactment of section 118 of the Sentencing Act (which is to be repealed by this Act)
	
	38DB.	Corporation fines under penalty provision

	Unless a penalty provision sets out a penalty for a body corporate, the penalty is to be five times the penalty for an individual. 

This is the general standard.  This section will avoid the need to include this provision in every Act, and also assist in removing doubt for existing Acts that may not be clear. 
	
	38DC.	Body corporate fines under provision authorising subordinate legislation

	A provision in an Act permitting a maximum fine to be imposed under subordinate legislation is taken to also permit a maximum fine of five times that penalty to be imposed on a body corporate (unless otherwise stated).

This is the general standard.  This section will avoid the need to include this provision in every Act, and also assist in removing doubt for existing Acts that may not be clear. 

Clause 33.	Repeal and substitution of section 38F 

	Existing section 38F is repealed.

	38F.		Penalties for breach of subordinate legislation
	
	Existing section 38F is re-enacted but taking into account changes in terminology and drafting practice made elsewhere.

	Unless otherwise provided for in an Act, subordinate legislation may prescribe a fine for an offence not exceeding 100 penalty units for an individual or 500 penalty units for a body corporate.  

Clause 34.	Amendment of section 44 (Power to appoint includes power to remove and appoint temporarily)

	Section 44 is amended to omit the word “place”, as it is unnecessary.

Section 44(2) is omitted, and replaced with essentially the same provisions but in plain English.

New section 44(2) is drafted so that a person who is away from the Territory is not automatically considered unable to perform the duties of an office or position.

Clause 35.	Repeal of section 47 (service of documents)

	Section 47 is repealed.

	These provisions are now contained in section 25.

Clause 36.	Repeal and substitution of section 55 (Headings, schedules, examples and notes)

	Section 55 is repealed.

55.	Headings, schedules, examples and notes

New section 55 re-enacts previous section 55, but now provides that a heading is part of an Act.

There are transitional arrangements to ensure this provision only applies to Acts enacted, or amended, after 1 July 2006.

Clause 37.	Repeal and substitution of section 57

	Current section 57 is repealed.

57.	Numbering of subordinate legislation

	New section 57 re-enacts existing section 57 but refers to the new term subordinate legislation rather than regulations.

Clause 38.	Amendment of section 61 (Construction of subordinate legislation)

	Section 61 is amended to reflect the use of the new term statutory instrument.

New section 61(2) inserts an assumption that all conditions etc for making a statutory instrument have been carried out.

Clause 39.	New Part VII, Division 2 heading
	
	Inserts a new heading for Part VII, Division 2.

Clause 40.	Amendment of section 63 (Procedure for making subordinate legislation)

	Sections 63(6) to (11) are omitted.

	New sections 63(6) to (10) re-enact these provisions but use the new term statutory instrument.
	
Clause 41.	Repeal and substitution of section 64

	Section 64 is repealed.

	New sections 64, 65, 65A, and 65B are inserted.

64. Subordinate legislation not to be made in 	terms of disallowed subordinate legislation

New section 64 essentially re-enacts existing section 64 but uses the new term subordinate legislation.
	
65.		Power to make subordinate legislation

Section 65 is a general regulation-making power, so that provision in an Act stating the Administrator may make regulations under an Act is sufficient without the need for the reference to matters required or permitted to be prescribed or is necessary or convenient.  This is consistent with other jurisdictions.

65A.	Subordinate legislation may prohibit

This is a general power that provides that the power to make subordinate legislation (previously regulations) includes the power to prohibit.  

This is currently in section 19 in the definition of “regulate”.

65B.	Subordinate legislation may provide for review or appeal

This is a general power to make subordinate legislation (previously regulations) to provide for a review of, or appeal against, decisions.  This will avoid the need for specific provision in each Act.

Clause 42.	New section 71 

71.			Amendment in same session

	This is previous section 10, and clarifies that an Act may be amended or repealed in the session of the Legislative Assembly in which it was passed.
	
Clause 43.	New Part VIII

	Inserts a new Part VIII and heading, and new 	sections 73 and 74.

NEW HEADING:  PART VIII – TRANSITIONAL MATTERS FOR JUSTICE LEGISLATION AMENDMENT ACT 2006
	
73.	 	Subordinate legislation

	New section 73 is a transitional provision necessary because of use of the new term subordinate legislation and the omission of the definition of “regulations”.

	74.	Numbering of subordinate legislation

	New section 74 is a transitional provision dealing with the numbering of regulations etc made before the	change in terminology made by this Act.  

	Numbering of statutory instruments will not re-start 	but will continue as if existing regulations etc were statutory instruments.

Clause 44.	Further amendments

	Provides for a schedule of further amendments, that are consequential to the changes in terminology made by this Act.

PART 7 – AMENDMENT OF LAND TITLE ACT
 
Clause 45.	Act amended

	The Act being amended in this Part is the Land Title Act.

Clause 46.	Amendment of section 10 (Execution of certain instruments)

	This section is changed so that a solicitor or other authorised person on behalf of a mortgagee may execute a mortgage.  This will be of particular assistance where the mortgagee (such as a bank or its lending centre) is located interstate).

Clause 47.	Amendment of section 99 (Amending easement or easement in gross)

	The amendment provides that an amendment to an easement or easement in gross must have the consent of the registered mortgagee of the lot burdened by the easement or easement in gross.  This will protect that mortgagee’s interest.

Clause 48.	Amendment of section 113 (Amending covenant or covenant in gross)

	The amendment provides that an amendment to an covenant or covenant in gross must have the consent of the registered mortgagee of the lot burdened by the covenant or covenant in gross.  This will protect that mortgagee’s interest.
		
Clause 49.	Amendment of section 123 (Amending instrument 	of profit a prendre)

	The amendment provides that an amendment to a profit a prendre must have the consent of the registered mortgagee of the lot burdened by the profit a prendre.  This will protect that mortgagee’s interest.

Clause 50.	Amendment of section 142 (Automatic lapsing of caveat)

	The amendment permits an agent of a caveator to provide notification to the Registrar-General that a caveat should not be removed. This will essentially be of convenience where a legal practitioner is acting on behalf of a caveator.

Clause 51.	Amendment of section 201 (Protection from 	liability)

	The amendment provides the Registrar-General with the same protection from liability whether acting under this Act or any other Act that gives the Registrar-General a power or obligation.

PART 8 – AMENDMENT OF LANDS AND MINING TRIBUNAL ACT

Clause 52.	Principal Act amended

	The Act being amended by this Part is the Land and Mining Tribunal Act.

Clause 53.	Repeal and substitution of long title

	The long title of the Act is amended to include the word “planning”.

Clause 54.	Amendment of section 1 (Short title)
	
	The word “Planning” is included in the name of the Act.

Clause 55.	Repeal and substitution of section 17

	Section 17 is repealed.

	17. Decisions and reasons for decisions
	
New section 17 essentially re-enacts existing section 17, but makes it clear that a decision given more than 2 months after the hearing is not invalid.  

This removes a potential ambiguity in section 17.

Clause 56.	Amendment of section 24 (Determination of 	compensation)

	Section 56 is amended to allow consent orders to be made.  

This removes a procedural anomoly.

Clause 57.	Amendment of section 27 (Enforcement of determinations and orders)

	This section is amended to set out how an order for costs can be recovered.  This is a standard provision in this type of Act.

Clause 58.	Repeal and substitution of section 28

	Sections 28 to 30 are repealed.

28.	Membership

	The Tribunal consists of a Chairperson and other members.

	All Magistrates are members.  The Administrator appoints one Magistrate to be Chairperson.

29. Chairperson
	
	The Chairperson may be appointed for up to five years, but is eligible for re-appointment.

	The Chairperson may resign.

	The appointment as Chairperson terminates if the Chairperson ceases to be a Magistrate.

Clause 59.	Amendment of section 31 (Acting members)

	Section 31 is amended to omit any reference to acting members.  This reference is no longer necessary as all Magistrates will now automatically be members.

Clause 60.	Repeal of section 32

	Section 32 is repealed.  As all members of the Tribunal will be Magistrates it is not necessary for the Act to contain this provision.

Clause 61.	New Part 6

	A new Part 6 is inserted.

PART 6 – TRANSITIONAL MATTERS FOR JUSTICE LEGISLATION AMENDMENT ACT 2006

40.	Terms and Conditions of Chairperson

The current Chairperson will continue as Chairperson for the term of his current appointment and on the same terms and conditions.

Clause 62.	Further amendments

	This clause provides for a further schedule of amendments, which are set out in schedule 2.

	These amendments are consequential to the change of the name of the Act and the Tribunal.

A further statute law revision amendment is made to section 33(2).

 PART 9 – AMENDMENT OF PROFESSIONAL STANDARDS ACT

Clause 63.	Act amended
	
The Act being amended by this Part is the Professional Standards Act.

Clause 64.	

Amendment of section 52 (Professional Standards Council Fund)

This section is amended to remove reference to the public account.  This is to ensure that the Professional Standards Council Fund, which is operated by the Professional Services Council on the Territory’s behalf, is not subject to Financial Management Act.  This removes an inconsistency.

Clause 65.	New section 53A

	The Chief Executive Officer of the Department of Justice may enter into an agreement with another jurisdiction regarding the provision of support services to the Professional Standards Council and for compliance by that Council with various reporting obligations under this Act.

	This provides administrative convenience.  A similar arrangement exists under the Registration of Interests in Motor Vehicles and Other Goods Act.

PART 10 – AMENDMENT OF SENTENCING ACT
 
Clause 66.	Act amended

	The Act being amended by this Part is the Sentencing Act.

Clause 67.	Amendment of section 16 (Power to fine)

	The current penalty of $2,000 for an individual or $10,000 for a body corporate is converted to penalty units.  

	A penalty for an individual only is stated because new section 38DB provides that the penalty for a body corporate is automatically five times the penalty for an individual.

Clause 68.	Repeal of sections 118 and 119

	Sections 118 and 119 are repealed.  

	(Equivalent provisions are inserted into the Interpretation Act.)