8

2008

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

JUSTICE LEGISLATION AMENDMENT BILL 2008
SERIAL NO. 153

EXPLANATORY STATEMENT
GENERAL OUTLINE
This Bill amends various Acts and Regulations within the Justice portfolio and makes a number of consequential amendments to other Acts.
The Consumer Affairs and Fair Trading Act is amended to include a provision to enable the Minister to appoint a Deputy Commissioner of Consumer Affairs.
The Fines and Penalties (Recovery) Regulations is amended to enable the Fines Recovery Unit to collect and enforce debts owed to the Northern Territory by offenders pursuant to the Crimes Compensation Act, Crimes (Victims Assistance) Act and, in future, the Victims of Crime Assistance Act.
The Powers of Attorney Act and Regulations are amended to ensure that the same administrative actions and registration safeguards apply to powers of attorneys as apply to other instruments registered by the Registrar-General.  
The Professional Standards Act is amended to disapply section 57 of the Interpretation 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) 2008.
Clause 2.	Commencement
This clause provides for the commencement of the Act and that "Part 2, Division 3" of the Act (concerning amendments to the Professional Standards Act) commences retrospectively.  This is because schemes have never been required to be published in their entirety.
The clause provides for the commencement of the remaining provision of the Act which are to commence on the day on which the Administrator’s assent to the Act is declared.
PART 2 – AMENDMENT OF ACTS
Division 1 - Consumer Affairs and Fair Trading Act
Clause 3.	Act amended
The Act being amended in this Division is the Consumer Affairs and Fair Trading Act.
Clause 4.	Amendment of long title
This clause amends the long title by omitting “Commissioners” and substituting “Commissioner” to correct a typographical error as a result of the amendment providing for the appointment of a “Deputy Commissioner of Consumer Affairs”.
Clause 5.	Amendment of section 4 (Interpretation)
Section 4 of the Consumer Affairs and Fair Trading Act is amended by inserting the new definition of a “Deputy Commissioner” as created by the new section 9A.
Clause 6.	New section 9A
This clause inserts a new section allowing the Minister to appoint a public sector employee to be the Deputy Commissioner for Consumer Affairs and that the Deputy Commissioner may exercise the powers and perform the functions of the Commissioner.  
Clause 7.		Amendment of section 180 (Commissioner’s certificate as evidence).
The Act is amended to insert in section 180, reference to the 
Deputy Commissioner in addition to the Commissioner by whom a certificate is signed.  
Clause 8.	Amendment of section 224 (Commissioner’s certificate as evidence)
Clause 8 amends the Consumer Affairs and Fair Trading Act to ensure there is a reference to the Deputy Commissioner in addition to the Commissioner whose signature may appear on the certificate.
Clause 9.		Amendment of section 329 (Evidentiary provisions)
The Act is amended to insert a reference to the Deputy Commissioner in addition to the Commissioner by whom a certificate is signed.  
Clause 10.	Amendment of section 336 (Protection of Commissioner, council members, officers, &c. (former S 236))
This clause amends the Consumer Affairs and Fair Trading Act ensuring that no action or proceeding, civil or criminal, can be commenced or lie against the Deputy Commissioner in addition to those already listed (including the Commissioner, the Chairman of the Council, any other member of the Council, a member of any committee appointed or established under the Act).

Division 2 – Powers of Attorney Act
Clause 11.		Act amended
This Division amends the Powers of Attorney Act.
Clause 12.		Amendment of section 5 (Definitions)
The definitions section of the Powers of Attorney Act is amended to include the definition of “approved form” to accommodate new section 23 which allows the Registrar to approve forms. 
Clause 13.		Amendment of section 6 (Execution of instruments creating or revoking powers)
This clause amends section 6(4) by ensuring that an instrument creating a power must be executed in the presence of persons listed in schedule 2 (if the instrument is signed by the donor) or if the instrument is signed by direction of, and in the presence of, the donor – a person mentioned in Schedule 2 and one other person.
Clause 14.	Repeal and substitution of section 14 (Execution of instrument creating enduring powers)
Clause 14 repeals section 14 of the Act to ensure that a person who witnesses an instrument creating an enduring power of attorney must not be a party to the instrument or a near relative of the donee of the power.  This is to coincide with amendments to section 6(4) of the Powers of Attorney Act.
Clause 15.	New sections 23 and 24
This clause inserts a new section 23 which allows the 
Registrar-General to approve forms for use under the Act.  The amendments are necessary to ensure that the same administrative actions and registration safeguards apply to powers of attorneys as apply to other instruments registered by the Registrar-General.
New section 24 provides that the Registrar-General may issue directions relating to the requirements to be followed in lodging, registering, witnessing and serving documents under the Act.  
Clause 16.	New Schedule 2
Clause 16 amends Schedule 2 of the Powers of Attorney Act by providing a list of persons before who can witness the execution of a power of attorney document.  The amendment is necessary as a power of attorney document is a powerful instrument which enables to act on another’s behalf (including to sell property) and should be treated equally as any transfer document which requires a qualified witness.
Division 3 - Professional Standards Act
Clause 17.		Act amended
This Division amends the Professional Standards Act.
Clause 18.		Repeal and substitution of section 13
This clause repeals section 13 and replaces it with a new section 13 which requires the Minister to notify, rather than publish in its entirety, a scheme approved by the Council.   This is to remove doubt that may exist arising from the fact that the schemes have to date not been numbered as subordinate legislation and have not been published in the Gazette (rather notice of them has been published).  New section 13 also ensures that section 57 of the Interpretation Act does not apply to a scheme notified under subsection (1).
Clause 19.		Amendment of section 14 (Commencement of schemes)
Clause 19 amends the Professional Standards Act, section 14(1) to ensure the term ‘notified’ is used instead of reference to the scheme being published in the Gazette in accordance with the amendment to section 13.
Clause 20.		Amendment of section 15 (Challenges to schemes)
Clause 20 amends section 15 by omitting “published as referred to in section13” and replaces with “notified in the Gazette”.  
This is consequential to the amendments to section 13.
Clause 21.		Amendments of section 17 (Amendment and revocation of schemes)
This clause amends section 17 by omitting “published under section 13” and replacing with “notified under section 13” as a consequence of amendments to section 13.
Clause 22.	Amendment of section 17A (Notification of revocation of schemes)
Clause 22 amends section 17A by omitting “publication” and replacing with “notification” as a consequence of amendments to section 13.
Clause 23.	Amendment of section 17B (Termination of operation of interstate schemes in this jurisdiction)
This clause amends sections 17B(5) and 17(B)(5)(a) and (b) by omitting “published” and “its publication” respectively and substituting with “notification”.  This is consequential to the amendments to section 13.
Clause 24.	Amendment of section 45 (Functions of Council)
Clause 24 omits section 45(1)(a)(i) and substitutes with “the notification in the Gazette of a scheme, or of an instrument amending or revoking a scheme”.  This is consequential to the amendments to section 13.
PART 3 – AMENDMENT OF SUBORDINATE LEGISLATION
Division 1 – Amendment to the Fines and Penalties (Recovery) Regulations
Clause 25.	Regulations amended
This Division amends the Fines and Penalties (Recovery) Regulations.
Clause 26.	Amendment of regulation 4 (Amounts included in “fine” or “penalty”)
This clause inserts a new subsection to regulation 4(1) which provides that a fine includes an amount payable to the Territory under Part 5 of the Victims of Crime Assistance Act and an amount payable to the Territory under Part IV of the Crimes (Victims Assistance) Act (repealed) as contained in force by section 73 of the Victims of Crime Assistance Act.
The amendment allows the Fines Recovery Unit to collect and enforce debts owed to the Northern Territory by persons who owe a debt pursuant to the Crimes Compensation Act, Crimes (Victims Assistance) Act and, in future, the Victims of Crime Assistance Act.
Division 2 – Powers of Attorney Regulations
Clause 27.	Regulations amended
This Division amends the Powers of Attorney Regulations.
Clause 28.	Amendment of regulation 5 (Procedure for registration)
This clause amends Regulations 5(1A)(a), 5(1A)(b)(iii) to (v) and 5(3) to ensure that they refer to “approved form”.  This amendment is consequential to the amendment to section 23 which allows the Registrar to approve forms for use under the Act.
Regulation 5(1A)(b)(ii) is amended to ensure that the original and duplicate or attested copy are to bear the signature of each party (excluding the signature of the donor of the power of the instrument, if signed by direction of the donor) and each witness. 
Clause 29.	Amendment of regulation 5A (Recording and use of common form provisions)
Clause 29 amends regulation 5A(1) by omitting “Form 3 in Schedule 2” and substituting with “the approved form”.  This amendment is consequential to the amendment to section 23.
Clause 30.	Amendment of regulation 8 (Notice of death)
This clause amends regulations 8(1)(c) and 8(2)(a) by omitting reference to being “in accordance with Form 5” and replacing with “of revocation of property by death in the approved form; and”.  This is consequential to the new section 23 which allows the Registrar General to approve forms for use under the Powers of Attorney Act.
Clause 31.	Repeal of Schedule 2
This clause repeals Schedule 2 of the Regulations as a consequence of the new section 23 of the Powers of Attorney Act allowing the 
Registrar General to approve forms for use under the 
Powers of Attorney Act.