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		Justice Legislation Amendment Bill (no 2) 2006 - ES.doc
		22-9-06

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

JUSTICE LEGISLATION AMENDMENT BILL (NO. 2) 2006
SERIAL NO. 68

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends various Acts within the Justice Portfolio.

The Associations Act is amended, so as to:

(i)	insert an explanatory note in section 37(b) 
(“special resolutions”) to make it clear that a special resolution must be passed by ¾ of those members who actually vote, not ¾ of all members entitled to vote; and

(ii)	include a provision making it clear that a 
(non-trading) association cannot disburse assets or profits to members.

The Commercial and Private Agents Licensing Act is amended so as to:

(i)	make it an offence for a person licensed under the Act to use “harassing tactics”; and

(ii)	provide that the use of harassing behaviour by a person licensed under the Act is grounds for disciplinary action to be taken by the Commissioner of Consumer Affairs (the licensing authority).

The Domestic Violence Act is amended so that:

(i)	section 7(1) does not require that the 
Police Officer who is exercising the power to enter premises for the purposes of removing a person and taking them into custody pending the making of a restraining order under section 6A, is the same Police Officer who intends to make a restraining order under 6A; 

(ii)	section 7(2) is amended to make it clear a person can be held in Police custody whilst an order is made under either section 6 or section 6A; and

(iii)	section 10 is amended to remove any doubt that an order that is varied remains in place until the varied order is served on the defendant.

The Interpretation Act is amended so as to:

(iv)	amend section 6B to clarify the meaning of “commencement of an Act”; 

(v)	insert a provision to support the use of "see" in signpost definitions; and

(vi)	make amendments of a statute law revision nature, or of a consequential nature following recent amendments made to the Act by the Justice Legislation Amendment Act 2006.

The Justices Act is amended to remove an anomaly, so that section 23 includes a power to issue a summons in relation to an “application” brought under the Act.

The Legal Aid Act is amended to validate Commission’s community legal eduction role.

The Supreme Court Act is amended so that:

(i)	an application for leave to appeal Judges’ interlocutory decisions are dealt with in the first instance by another single Judge (constituting the Court of Appeal) on the papers.  In the event of the application being refused, the applicant can  apply to the Court of Appeal constituted by not less than three Judges; and

(ii)	appeals from the Master (or a referee) are to the Court of Appeal and in particular:

(a)	an appeal from final judgments of the Master (or referee) are as of right to the Court of Appeal (constituted by three judges); 

(b)	an appeal from interlocutory decisions of the Master (or referee) are by leave and dealt with in the first instance by a single Judge (constituting the Court of Appeal) on the papers.  In the event of leave being granted, the appeal should also be heard by a single Judge.  However if leave is refused, the application can be considered by three judges and any subsequent appeal heard by three judges.

The Unit Titles Act is amended so as to:

·	make various amendments of a statute law revision nature;

·	amend section 27 to clarify that if a lot in an estate development is subdivided into units, it is the body corporate for the lot that is the member of the estate management corporation, not the unit owners; and

·	amend section 28 to provide that if a lot is subdivided into building lots under the Unit Titles Act, the member of the relevant building management corporation is the body corporate of the building development plan, not the building lot owners. 

The Youth Justice Act is amended so as to:

(i)	clarify the definition of “responsible adult” in 
section 5(1);

(ii)	amend the words “for detention or imprisonment of the youth” in section 65(3) to “remanding the youth in custody”; 

(iii)	amend section 98 to provide for the signing of an order suspending a sentence and for the provision of copies, consistent with the other procedural provisions for conditional orders in this  Act and the Sentencing Act; and

(iv)	amend section 136(2) to clarify that it applies whether the findings of guilt of a youth who had turned 15 at the time were made before or after commencement of the Act.

NOTES ON CLAUSES

PART 1 – PRELIMINARY MATTERS

Clause 1.	Short title

	This is a formal clause which provides for the citation of the Bill.  The Bill when passed may be cited as the Justice Legislation Amendment Act (No.2) 2006.

PART 2 – AMENDMENT OF ASSOCIATIONS ACT

Clause 2.	Act amended

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

Clause 3.	New section 13A

	13A.	Prohibition on disbursing profits or 				assets to members
	
	This new section makes it clear that the profits or 	assets of an association (other than a trading association) cannot be disbursed to members.

	This does not prevent the payment of a member of the association for work done for the association at the associations request, or for any payments to members in the ordinary course of the association’s activities.

Clause 4.	Amendment of section 37 (Special resolutions)

An explanatory note is inserted at the end of section 37 to assist readers in interpreting this section.

Clause 5.	Amendment of section 72 (Application of 	Corporations Act 2001 to winding up)
	
The heading and the wording of this section is changed so that they don’t mislead readers.  This is because the section applies all of the external administration provisions of the Corporations Act 2001 to incorporated associations, not just those provisions relating to winding up.

PART 3 – AMENDMENT OF COMMERCIAL AND PRIVATE AGENTS LICENSING ACT

Clause 6.	Act amended

	This part amends the Commercial and 
Private Agents Licensing Act.

Clause 7.	Amendment of section 17K (Commissioner may 	vary, suspend or cancel licence)

	Harassing tactics is a defined term in the Act.
This amendment provides the Commissioner of Consumer Affairs with the power to take disciplinary action if an agent uses harassing tactics when performing a function as an agent.
	
Clause 8.	New section 44

This section provides that it is an offence for an agent to use harassing tactics, and provides a penalty of up to 500 penalty units.

The current lack of a penalty in the Act appears to be an oversight.

PART 4 – AMENDMENT OF DOMESTIC VIOLENCE ACT

Clause 9.	Act amended

	This part amends the Domestic Violence Act.

Clause 10.	Repeal and substitution of section 7

Section 7 is repealed and re-stated.

7.	Power to remove and detain

The Domestic Violence Amendment (Police Orders) Act 2005 amended section 7 to provide for the making of restraining orders by senior Police Officers.  Power to enter premises and remove persons pending the making of such an order were also given under section 7(1).  However, the current wording of section 7(1) suggests that only the Police Officer who intends making a restraining order under section 6A can exercise the powers given under section 7(1).

As only Senior Sergeants and Officers in Charge of a police station can make a restraining order under section 6A, the power to enter premises etc under section 7(1) will in most cases need to be used by other more junior officers who attend premises to investigate complaints or take action.  This anomaly is removed by this amendment.

Section 7(2) has another amendment that is of a statute law revision nature.  

Current Section 7(2) allows Police to detain a person for up to four hours whilst an order is sought from a Magistrate under section 6.  This section should apply similarly in a situation where Police propose making an order under section 6A.  Under the current wording, it is arguable that Police must immediately release a person as soon as they arrive at the police station if an order is proposed under section 6A.  This is not the intended operation of these provisions.

Clause 11.	Amendment to section 10 (Breach of Order)

	The effect of the amendment to section 10 is to make it clear that a restraining order that is varied continues to be in effect until the varied order is served on the defendant.  The relevant new provision is proposed section 10(1D)(b).

	The amendment will remove any potential doubt that this is the correct interpretation of the Act.

PART 5 – AMENDMENT OF INTERPRETATION ACT

Clause 12.	Act amended

	This part amends the Interpretation Act

Clause 13.	Repeal and substitution of section 6B

	Section 6B is repealed and re-stated.

	6B.	References to commencement	

	The existing section 6B is based on another jurisdiction’s legislation, but is re-enacted to remove ambiguities identified by Parliamentary Counsel arising in the Territory context.  The new provision is intended to simplify and clarify the meaning of the term.

Clause 14.	Amendment of section 17 (Definitions)

	Most jurisdictions (including the Northern Territory) use “see” as a signpost definition, to indicate that a definition in one Act has the same meaning in another.  A new definition of “see” is inserted to support and reinforce this practice.
	
Clause 15.	New section 51

	51.	Reference to Act includes reference to 			statutory instruments under Act

This clause inserts a new section to provide that  references to laws in legislation include references to statutory instruments made under that legislation. 

Clause 16.	Amendment of section 57 (Numbering of 	subordinate legislation)

	Section 57(2) is amended to correct a purely 	technical issue, to ensure that instruments of 	subordinate legislation made in 2006 are numbered.  

Clause 17.	Amendment of Part VII, Division 2 heading

	The heading is amended to omit redundant words.

Clause 18.	New sections 65C and 65D

	New sections are inserted into the Act.

	65C.	Subordinate legislation may provide for exemption, waiver or refund of fees

		New Section 65C provides a standard power for subordinate legislation to provide for the exemption, waiver or refund of fees prescribed in that subordinate legislation.  This avoids having to put this provision in every piece of subordinate legislation.

	65D.	Subordinate legislation may provide for infringement notice offences

		This new section provides a standard power for all subordinate legislation to provide for the issue of infringement notices for offences.  This means this power will no longer have to be set out in each Act.

Clause 19.	Repeal of section 67

	Existing section 67 is repealed.

Clause 20.	New section 67

	67.		Tabling documents in the Legislative Assembly

		This clause re-enacts section 67, which deals with the tabling of documents in the Legislative Assembly, but uses “plain English”.

Clause 21.	Further amendments

	Further minor amendments to the Interpretation Act are set out in the Schedule to the Bill.  
These primarily relate to the use of terms for the commencement of legislation and the description of statutory instruments.

PART 6 – AMENDMENT OF JUSTICES ACT

Clause 22.	Act amended

	This Part amends the Justices Act.

Clause 23.	Amendment of section 23 (Summons to witness)

	This amendment removes an anomaly by providing for the issue of a summons for production of documents or for witness to give evidence in relation to an “application” made under the Act (for example, under section 130B).  Currently the Act only provides for the issue of a summons in relation to an “information or complaint”.  

PART 7 – AMENDMENT OF LEGAL AID ACT

Clause 24.	Act amended

	This Part amends the Legal Aid Act.

Clause 25.	Amendment of section 8 (Duties of Commission)

	This amendment validates the Legal Aid Commission’s legal education role, and makes it explicit the Commission has the power to conduct community legal education activities.  

PART 8 – AMENDMENT OF SUPREME COURT ACT
	
Clause 26.	Act amended

	This Part amends the Supreme Court Act.

Clause 27.	Repeal of section 31

	Section 31 is repealed.  The issues currently dealt with under section 31 will be dealt with under amended section 53.

Clause 28.	Amendment of section 51 (Right of appeal)

	The reference to the Master and referee are omitted.  Appeals from decisions of the Master or referee are now to be to the Court of Appeal and to be dealt with under Part III.  Current section 31 provides for appeals from the Master or referee as of right to a single judge.

Clause 29.	Amendment of section 52 (Exercise of appellate 	jurisdiction)

	The reference to the operation of section 51(1) being subject to section 53 is omitted as the reference is redundant. 

Clause 30.	Repeal and substitution of section 53

The existing section 53 is repealed and a new section substituted to cover appeals from interlocutory decisions of both judges and the Master (or referee).  

The existing section 53 provides that leave to appeal interlocutory decisions of judges is heard by three judges.  This provision has caused difficulties and a practice has developed whereby a party wishing to appeal interlocutory decisions proceeded as though leave would be granted and the appeal heard instanter.

Appeals from interlocutory decisions of the Master are as of right to a single judge. 

	The new section 53 provides for appeals from interlocutory judgments of judges or the Master 
(or referee) to only be made with the leave of the Court of Appeal, with such an application for leave to be determined on the papers by a single Judge constituting the Court of Appeal.

	If leave is refused, the Court of Appeal constituted by three judges can determine the application.

If leave is granted to appeal the interlocutory decision of a judge, the appeal is heard by the Court of Appeal constituted by three judges. 

If leave is granted to appeal the interlocutory decision of the Master (or referee), the appeal is heard by the Court of Appeal constituted by; 
- a single judge, if leave was granted by a single judge; and
- three judges, if leave was granted by three judges.

Clause 31.	Amendment of section 55 (Form of judgment on 	appeal)

	The existing section 55(2)(b) has been split into two provisions with the new section 55(2)(c) being amended to include a power that the Court of Appeal can remit a matter back to the Master or a referee for further hearing and determination.

	Existing section 55(c) is renumbered (d).

Clause 32.	Repeal and substitution of section 87 	(Regulations

	The regulation making power is re-worded to ensure it is a wide power and to reflect current drafting style.

PART 9 – AMENDMENT OF UNIT TITLES ACT

Clause 33.	Act amended

 	This Part amends the Unit Titles Act.

Clause 34.	Amendment of section 4 (Interpretation)
 
	A number of statute law revision amendments are made to section 4, including the insertion of appropriate definitions of “building management corporation” and “estate management corporation.

Clause 35.	Amendment of Part IV heading 

	A statute law revision amendment is made to the heading of Part IV.

Clause 36.	Amendment of section 26ZI (Lodging of building 	development plan) 
	
This clause omits the requirement for a building development plan to be in the form prescribed in the Regulations.  Instead such plans must comply with prescribed requirements.

Clause 37.	 Amendment of section 26ZM (Failure of 	developer to complete building development)

This clause amends section 26ZM(1) so that it is clear that the developer is one of the parties who may be involved in the variation of a disclosure statement.  Sections 26M(2) and (3) are further amended so that is clear that the Minister is dealing with applications to vary disclosure statements rather than consenting to variations.

Clause 38.	Amendment of section 26ZS (Easements created 	by this Act)

This clause makes a statute law correction to the wording as identified by Parliamentary Counsel.
	
Clause 39.	Amendment of section 26ZU(Conversion of units 	into building lots)

This clause amends section 26ZU so that on “units” being converted into “building lots” the units corporation for those units becomes a building management corporation as referred to in section 28.

Clause 40.	Amendment of section 27 (Incorporation of 	proprietors of units)

The heading of section 27 is amended so that it is plainer that section 27 does not apply to building development plans.

The clause also amends section 27 so that the position regarding voting and membership is clear upon the subdivision of a part of a parcel, such as a lot within an estate development, into units and common property.  In such cases the new body corporate (established in respect of the new common property) becomes a member of the corporation of which the subdivided land was part.  It replaces the former owners of the part of the parcel was subdivided.

Clause 41.	Amendment of section 28 (Incorporation of 	proprietors of building lots)

The heading of section 28 is amended so that it is plainer that section 28 only applies to building development plans.

The clause also amends section 28 so that it the position regarding voting and membership is clear upon the subdivision of a part of building lot into units and common property.  In such cases the new body corporate (established in respect of the new common property) becomes a member of the corporation of which the building lot was part.  It replaces (as members of the corporation) the former owners of the part of the parcel was subdivided.

Clause 42.	Amendment of section 59 (First annual general 	meeting)

This clause makes a statute law correction to the wording as identified by Parliamentary Counsel.

Clause 43.	New Part X

A new Part X is inserted in the Act.

PART X – TRANSITIONAL MATTERS FOR JUSTICE LEGISLTION AMENDMENT ACT (NO.2) 2006

111.		Body corporate incorporated under 				section 27 or 28.

	This clause makes it clear that the amendments made to sections 27 and 28 apply to bodies corporate created before or after the commencement of those amendments.

PART 10 – AMENDMENT OF YOUTH JUSTICE ACT

Clause 44.	Act amended

	This Part amends the Youth Justice Act.

Clause 45.	Amendment of section 5 (Interpretation)

	The definition of “responsible adult” is re-worded to avoid possible interpretation that would have a limiting effect on who could be a “responsible adult” in relation to an Aboriginal youth.

Clause 46.	Amendment of section 65 (Court may remand 	youth)

	For consistency with the rest of the Act, the reference to “detention or imprisonment” is replaced with the word “custody”.

Clause 47.	New section 98A

	98A.	Procedural matters

This new section provides for the signing of an order suspending a sentence and for the provision of copies of the order.  This is consistent with the other procedural provisions for conditional orders under this Act, and also for adults under the 
Sentencing Act.  This corrects a drafting oversight.

Clause 48.	Amendment of section 136 (Certain findings of 	guilt not to be mentioned)

	Section 136(2) provides that the unrecorded convictions of a youth can be taken into account by any court, if the offence resulting in the finding of guilt was committed after the youth turned 15 years of age.  This amendment clarifies that it is immaterial whether the offence was committed before or after the commencement of the Act.  This was the intended operation of this section but the amendment will remove possible doubt.
 
PART 11 – AMENDMENT OF YOUTH JUSTICE REGULATIONS

Clause 49.	Amendment of Schedule

Form 10 is amended to provide for the Youth to sign an order made under the Act (a consequential amendment to new section 98A).

PART 12 – EXPIRY OF ACT

Clause 50.	Expiry
	
	The Act expires the day after it commences.

Schedule
	
A number of statute law revision amendments are made via the Schedule to the Bill.