2016
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
ATTORNEY-GENERAL AND MINISTER FOR JUSTICE
Advance Personal Planning Amendment Bill 2016
SERIAL NO. 161
EXPLANATORY STATEMENT
GENERAL OUTLINE
The Advance Personal Planning Amendment Bill 2016 makes the following amendments to the Advance Personal Planning Act:
·	transfers jurisdiction from the Local Court to the Northern Territory Civil and Administrative Tribunal;
·	provides transitional provisions to preserve rights for appeals lodged under the Advance Personal Planning Act prior to the transfer of jurisdiction to the Northern Territory Civil and Administrative Tribunal;
·	makes minor amendments to the offence and penalty provisions to provide for consistency with the Advance Personal Planning Act and the Guardianship of Adults Act 2016; and 
·	repeals the Aged and Infirm Persons’ Property Act and inserts transitional provisions to deal with protection orders made prior to the repeal of the Act.
NOTES ON CLAUSES
Part 1	Preliminary matters
Clause 1.	Short Title
This is a formal clause that provides for the citation of the Bill. The Bill when passed may be cited as the Advance Personal Planning Amendment Act 2016.
Clause 2.	Commencement
This is a formal clause which provides when the Act will commence. The Act will commence immediately after the Guardianship of Adults Act 2016 commences.
Part 2	Amendment of Advance Personal Planning Act
Clause 3.	Act amended
This clause explains that Part 2 of this Bill amends the Advance Personal Planning Act.
Clause 4.	Section 3 amended
Subclause (1) omits the definitions of ‘AIPPA manager’, ‘Court’ and ‘original decision’.
Subclause (2) inserts definitions of ‘proceeding’, ‘Tribunal’ and ‘Tribunal Act’.
Subclauses (3) and (4) amend the definition of ‘agent’ to omit the reference to ‘AIPPA manager’ and to omit paragraph (c) of the definition of ‘interested person’ in section 3 of the Advance Personal Planning Act. These are consequential amendments resulting from the repeal of the Aged and Infirm Persons’ Property Act.
 Clause 5.		Section 4 amended
Subclause (1) makes minor amendments to section 4 to remove the use of gender specific wording for consistency across the statute book and also removes a typographical error in section 4.
Subclause (2) omits the words ‘or AIPPA manager’ from section 4(b) of the Advance Personal Planning Act which is a consequential amendment resulting from the repeal of the Aged and Infirm Persons’ Property Act.
Clause 6.		Section 5 amended
This clause omits the word ‘personally’ from section 5(1) of the Advance Personal Planning Act as it adds no meaning to the provision. This amendment has been made to ensure consistency with the Guardianship of Adults Bill 2015, which has a proposed clause that is identical to section 5 of the Advance Personal Planning Act.
Clause 7.		Section 28 amended
Subclause (1) amends section 28(3) by omitting the reference to ‘Court’ and replacing it with the reference to ‘Tribunal’.  This is a consequential amendment that gives effect to the transfer of jurisdiction to the Northern Territory Civil and Administrative Tribunal.
Subclause (2) removes section 28(4) as it duplicates an offence provision that is provided in section 84B of the Northern Territory Civil and Administrative Tribunals Act. Section 28(4) provides that if the Court orders an information holder to give documents to a decision maker and they fail to comply, a penalty of up to 200 penalty units could apply. Section 84B of the Northern Territory Civil and Administrative Tribunals Act provides a general offence for non-compliance with an order of the Tribunal and a penalty of up to 100 penalty units could apply. The penalty amount is now lower as a penalty of 100 penalty units for withholding information is adequate. This is a consequential amendment that gives effect to the transfer of jurisdiction to the Northern Territory Civil and Administrative Tribunal.
Clause 8.		Part 5 and Part 5, Division 1 headings replaced and section 55E inserted
Clause 8 replaces the heading in Part 5 and Part 5 Division 1 to replace the reference to the Local Court and instead refer to the Civil and Administrative Tribunal.
New section 55E is inserted into the Act to provide for definitions of ‘proceeding’ and ‘Tribunal Act’ to give effect to the transfer of jurisdiction from the Local Court to the Northern Territory Civil and Administrative Tribunal.
Division 1A		Jurisdiction of Tribunal
Clause 9.		Section 56 replaced
This clause repeals section 56 of the Advance Personal Planning Act and replaces it with a new section 56 to give jurisdiction to the Northern Territory Civil and Administrative Tribunal and states that the jurisdiction comes within the Tribunal’s original jurisdiction.
Clause 10.		Section 57 amended
This clause amends section 57 of the Advance Personal Planning Act by replacing references to ‘Court’ with ‘Tribunal’, and replacing the reference to ‘proceedings coming before it under this Act, the Court’ with ‘exercising its jurisdiction in relation to a matter under this Act, the Tribunal’. These are consequential amendments that give effect to the transfer of jurisdiction to the Northern Territory Civil and Administrative Tribunal.
Clause 11.		Section 62 amended
This clause amends section 62 of the Advance Personal Planning Act by replacing a reference to the Registrar of the Local Court with a reference to ‘the Registrar (as appointed under section 143 of the Tribunal Act)’. This is a consequential amendment that gives effect to the transfer of jurisdiction to the Northern Territory Civil and Administrative Tribunal. A minor consequential amendment has also been included that requires the Registrar to be satisfied that the section applies as a result of an amendment to section 62(2) inserted by the Schedule to the Local Court (Related Amendments) Act 2016.
Clause 12.		Section 65 repealed
This clause repeals section 65 of the Advance Personal Planning Act as section 44 of the Northern Territory Civil and Administrative Tribunal Act provides for an equivalent provision dealing with the effect of the Tribunal’s original decision when the review jurisdiction is invoked.
Clause 13.	Section 66 amended
This clause amends section 66 of the Advance Personal Planning Act by replacing references to ‘Court’ with ‘Tribunal’ and replacing section 66(1) to state that a proceeding in the Tribunal must be commenced by application made in accordance with the ‘Tribunal Act’ ie the Northern Territory Civil and Administrative Tribunal Act. These are consequential amendments that give effect to the transfer of jurisdiction to the Northern Territory Civil and Administrative Tribunal.
Clause 14.		Section 67 and 68 replaced
This clause repeals sections 67 and 68 of the Advance Personal Planning Act. 
Section 67 of the Advance Personal Planning Act has been redrafted to provide for who are parties to appeal proceedings before the Tribunal in addition to persons in section 127 of the Tribunal Act. The additional persons are the affected adult if the applicant is not the affected adult and any other interested person for the affected adult who, on application, is permitted by the Tribunal to join the proceeding. These are consequential amendments that give effect to the transfer of jurisdiction to the Northern Territory Civil and Administrative Tribunal.
Section 68 of the Advance Personal Planning Act has been omitted without replacement as section 10 of the Northern Territory Civil and Administrative Tribunal Act already provides for the principles of acting with as little formality and technicality and expedition as possible.
Clause 15.		Section 69 amended
Subclause (1) omits ‘Court’ and inserts ‘Tribunal’ to the heading for section 69.
Section 69(1) removes the requirement for proceedings to be heard in public as provided in section 60 of the Northern Territory Civil and Administrative Tribunal Act. This ensures no inconsistencies with section 69 of the Advance Personal Planning Act that provides for court proceedings to be private.
Subclause (3) amends section 69(2) by omitting references to ‘Court’ and replacing it with references to ‘Tribunal’.  These are consequential amendments that give effect to the transfer of jurisdiction to the Northern Territory Civil and Administrative Tribunal.
Clause 16.		Section 69A inserted
This clause inserts new section 69A into the Advance Personal Planning Act. Section 69A allows for the Tribunal to give reasons for decisions orally and if parties require reasons to be given in writing they must make an application within 28 days of the oral decision. The Tribunal must provide written reasons within 28 days of the application. The provision also states that section 105(4) of the Tribunal Act applies so that the Tribunal may request an extension of time to provide reasons from the President.
Clause 17.		Section 70 amended
The clause makes stylistic amendments to section 70 of the Advance Personal Planning Act to ensure consistency between both the Advance Personal Planning Act and the Guardianship of Adults Act 2016.
Clause 16 also amends section 70(2) and (3) of the Advance Personal Planning Act to replace references to ‘Court’ with ‘Tribunal. The definition of ‘publish’ in section 70(4) of the Act is replaced with a new definition of ‘publication’ which includes broadcast and dissemination.
Clause 18.		Part 5, Division 3 repealed
This clause repeals Part 5, Division 3 as appeals to the Supreme Court are provided in the Northern Territory Civil and Administrative Tribunal Act.
Clause 19.		Section 76 replaced
The clause replaces section 76 to make stylistic amendments to ensure consistency across both the Advance Personal Planning Act and the Guardianship of Adults Act 2016.
Clause 20.		Sections 78 and 79 replaced
This clause repeals sections 78 and 79 of the Advance Personal Planning Act and replaces them with new sections. Both sections 78 and 79 have been redrafted to only make stylistic changes to ensure consistency between both the Advance Personal Planning Act and the Guardianship of Adults Act 2016.
Clause 21.		Section 80 amended
The clause makes stylistic amendments to the offence provision in section 80 of the Advance Personal Planning Act to ensure consistency with the Guardianship of Adults Act 2016.
Clause 22.		Section 81 amended
This clause inserts section 78(3) and section 78(1A) of the Advance Personal Planning Act into the table in section 81 of the Advance Personal Planning Act which relates to alternative verdicts. This is a consequential amendment resulting from the stylistic amendments to section 78 of the Advance Personal Planning Act in clause 20. 
Clause 23.		Part 6, Division 4 heading amended
This clause omits the word ‘conviction’ from the heading of Part 6, Division 4 and inserts the words ‘finding of guilt’. 
Clause 24.		Section 82 amended
This clause amends section 82(1) of the Advance Personal Planning Act to allow the Tribunal to either terminate the person’s employment (if the person is a decision maker) or to disqualify the person from being a decision maker for a specified period if that person is found guilty of an offence in this Act. This amendment is consequential on the Advance Personal Planning Act jurisdiction being transferred to the Northern Territory Civil and Administrative Tribunal.
Clause 25.		Section 83 amended
This clause amends section 83 of the Advance Personal Planning Act to replace the word ‘convicted’ with ‘found guilty’. A finding of guilty is a factual matter from which certain consequences flow such as conviction, imposition of a penalty, disciplinary action, forfeiture or licence cancellation. Therefore references should be to the finding of guilt that leads to an order for compensation.
Clause 26.		Part 8, Division 3 inserted
This clause inserts new Division 3 into Part 8 to provide transitional provisions to provide for transitional arrangements for any applicants that have commenced proceedings in either the Local Court or the Supreme Court before the date this Bill commences. 
New section 93 is provides for definitions for Part 8, Division 3.
New section 94 provides that if an appeal has been made to the Supreme Court and it has not been decided before the date that the Bill commences the provisions of the Advance Personal Planning Act as in force before the commencement of this Bill are to apply. Section 94 also extends to an appeal right exercised under section 71 of the Advance Personal Planning Act that is exercised within 28 days after the date the Bill commences.
If an appeal results in the Supreme Court referring a matter back to the Local Court, the Local Court will also need to reconsider the matter under the Advance Personal Planning Act as in force before the commencement of this Bill. Any orders made by the Local Court following reconsideration have effect as if they were made by the Tribunal.
New section 95 provides that if an application was made to the Local Court before the date that the Bill commences, the application is to be determined under the Advance Personal Planning Act as inforce before the commencement of this Bill. Any orders made by the Local Court have effect as if they were made by the Tribunal.
New section 96 provides that the amended offence provisions apply to offences committed after commencement. Offence provisions existing prior to the amendments apply to offences committed before commencement. If part of the conduct constituting the offence occurs prior to commencement, the offence is taken to have been committed prior to commencement.
The offence provisions have been redrafted to make stylistic changes to ensure consistency between both the Advance Personal Planning Act and the Guardianship of Adults Act 2016. There are no new offences created or policy changes to existing offences.
Clause 27.		Act further amended
This clause provides that the Schedule has effect.
Part 3	Repeal of Aged and Infirm Persons’ Property Act
Clause 28.		Act repealed
This clause repeals the Aged and Infirm Persons’ Property Act.
Part 4	Consequential amendments to other laws
Division 1	Guardianship of Adults Act 2016
Clause 29.		Act amended
This clause explains that Part 4, Division 1 of this Bill amends the Guardianship of Adults Act 2016.
Clause 30.		Section 23 amended
This clause makes consequential amendments the note to section 23 of the Guardianship of Adults Act 2016 as a result of the transfer of jurisdiction from the Local Court to the Northern Territory Civil and Administrative Tribunal.
Clause 31.		Part 2, Division 6A inserted
This clause inserts new Division 6A, section 35A into the Guardianship of Adults Act 2016 that deems guardianship orders relating to financial matters to be an instrument under the Land Title Act. This provision was previously in section 23 of the repealed Aged and Infirm Persons’ Property Act and has been transferred to the Guardianship of Adults Act 2016.
Clause 32.		Part 8 heading amended
This clause amends the heading in Part 8 of the Guardianship of Adults Act 2016.
Clause 33.		Part 8, Division 2 heading amended
This clause amends the heading in Part 8, Division 2 of the Guardianship of Adults Act 2016.
Clause 34.		Part 8, Division 3 inserted
This clause inserts Part 8, Division 3 into the Guardianship of Adults Act 2016 to provide for transitional provisions for the Advance Personal Planning Amendment Act 2016.
New section 103A is a provision providing definitions for Part 8, Division 3.
New section 103B provides that on commencement any existing protection orders become guardianship orders; an existing protected person becomes a represented adult and an existing manager become a guardian. Authority that was conferred on an existing manager will be conferred on the person who becomes the guardian. The reassessment date for the order is one year after the commencement. 
New section 103C provides that the Court must deal with and determine pending applications as if the Aged and Infirm Persons’ Property Act had not been repealed. If a protection order is made new section 103B will apply.
New section 103D provides that that the Court must deal with and determine applications made under sections 7, 29 or 29A of the Aged and Infirm Persons’ Property Act or any other application not finally determined as if the Aged and Infirm Persons’ Property Act had not been repealed.
Division 2	Other laws amended
Clause 36.		Other laws amended
This clause allows for further amendments mentioned in Schedule 2.
Part 5	Expiry of Act
Clause 37.		Expiry of Act
This clause provides that this Act expires on the day after it commences. 
Schedule 1		Act further amended
Schedule 1 makes minor consequential amendments to the Advance Personal Planning Act by omitting the word ‘Court’ and inserting the word ‘Tribunal’ to the listed sections. 
Schedule 2		Other laws amended
Schedule 2 makes minor amendments to the Administration and Probate Act, Companies (Trustees and Personal Representatives) Act, Juries Act, Limitation Act, Mental Health and Related Services Act, Powers of Attorney Act, Powers of Attorney Regulations, Retirement Villages Act and Supreme Court Rules.
These amendments ensure uniformity of terminology with the Advance Personal Planning Amendment Bill 2016 and make minor drafting amendments as required.