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This is a Bill, not an Act. For current law, see the Acts databases.
Courts and Crimes Legislation Amendment Bill 2009 No , 2009 A Bill for An Act to amend various Acts with respect to courts, crimes and other matters.
Clause 1 Courts and Crimes Legislation Amendment Bill 2009 The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Courts and Crimes Legislation Amendment Act 2009. 3 2 Commencement 4 (1) This Act commences on the date of assent to this Act, except as 5 provided by subsections (2) and (3). 6 (2) Schedule 2.6 [3] commences on a day to be appointed by proclamation. 7 (3) Schedule 2.9 commences, or is taken to have commenced, on the 8 commencement of the Industrial Relations Amendment (Jurisdiction of 9 Industrial Relations Commission) Act 2009. 10 Page 2
Courts and Crimes Legislation Amendment Bill 2009 Amendment of Acts relating to eligible Judges and Magistrates Schedule 1 Schedule 1 Amendment of Acts relating to eligible 1 Judges and Magistrates 2 1.1 Crimes (Criminal Organisations Control) Act 2009 No 6 3 Section 5 Eligible Judges 4 Omit section 5 (6). Insert instead: 5 (6) A declaration of an eligible Judge under subsection (3) cannot be 6 revoked by the Attorney General. However, the declaration of a 7 Judge as an eligible Judge is revoked if: 8 (a) the eligible Judge revokes his or her consent in accordance 9 with subsection (5) or ceases to be a Judge, or 10 (b) the Chief Justice notifies the Attorney General that the 11 Judge should not continue to be an eligible Judge. 12 (7) To avoid doubt, the selection of the eligible Judge to exercise any 13 particular function conferred on eligible Judges is not to be made 14 by the Attorney General or other Minister of the Crown, and the 15 exercise of that particular function is not subject to the control 16 and direction of the Attorney General or other Minister of the 17 Crown. 18 1.2 Law Enforcement and National Security (Assumed 19 Identities) Act 1998 No 154 20 Section 8 Eligible Judges 21 Omit section 8 (6). Insert instead: 22 (6) A nomination of an eligible Judge under subsection (3) cannot be 23 revoked by the Attorney General. However, the nomination of a 24 Judge as an eligible Judge is revoked if: 25 (a) the eligible Judge revokes his or her consent in accordance 26 with subsection (5) or ceases to be a Judge, or 27 (b) the Chief Justice notifies the Attorney General that the 28 Judge should not continue to be an eligible Judge. 29 (7) To avoid doubt, the selection of the eligible Judge to exercise any 30 particular function conferred on eligible Judges is not to be made 31 by the Attorney General or other Minister of the Crown, and the 32 exercise of that particular function is not subject to the control 33 and direction of the Attorney General or other Minister of the 34 Crown. 35 Page 3
Courts and Crimes Legislation Amendment Bill 2009 Schedule 1 Amendment of Acts relating to eligible Judges and Magistrates 1.3 Law Enforcement (Powers and Responsibilities) Act 2002 1 No 103 2 Section 46B Eligible Judges 3 Omit section 46B (6). Insert instead: 4 (6) A declaration of an eligible Judge under subsection (3) cannot be 5 revoked by the Attorney General. However, the declaration of a 6 Judge as an eligible Judge is revoked if: 7 (a) the eligible Judge revokes his or her consent in accordance 8 with subsection (5) or ceases to be a Judge, or 9 (b) the Chief Justice notifies the Attorney General that the 10 Judge should not continue to be an eligible Judge. 11 (7) To avoid doubt, the selection of the eligible Judge to exercise any 12 particular function conferred on eligible Judges is not to be made 13 by the Attorney General or other Minister of the Crown, and the 14 exercise of that particular function is not subject to the control 15 and direction of the Attorney General or other Minister of the 16 Crown. 17 1.4 Surveillance Devices Act 2007 No 64 18 Section 5 Eligible Judges and Magistrates 19 Omit section 5 (7). Insert instead: 20 (7) A declaration of an eligible Judge under subsection (3) cannot be 21 revoked by the Attorney General. However, the declaration of a 22 Judge as an eligible Judge is revoked if: 23 (a) the eligible Judge revokes his or her consent in accordance 24 with subsection (6) or ceases to be a Judge, or 25 (b) the Chief Justice notifies the Attorney General that the 26 Judge should not continue to be an eligible Judge. 27 (8) A declaration of an eligible Magistrate under subsection (3) 28 cannot be revoked by the Attorney General. However, the 29 declaration of a Magistrate as an eligible Magistrate is revoked if: 30 (a) the eligible Magistrate revokes his or her consent in 31 accordance with subsection (6) or ceases to be a 32 Magistrate, or 33 (b) the Chief Magistrate notifies the Attorney General that the 34 Magistrate should not continue to be an eligible 35 Magistrate. 36 Page 4
Courts and Crimes Legislation Amendment Bill 2009 Amendment of Acts relating to eligible Judges and Magistrates Schedule 1 (9) To avoid doubt, the selection of the eligible Judge or eligible 1 Magistrate to exercise any particular function conferred on 2 eligible Judges or eligible Magistrates is not to be made by the 3 Attorney General or other Minister of the Crown, and the 4 exercise of that particular function is not subject to the control 5 and direction of the Attorney General or other Minister of the 6 Crown. 7 1.5 Terrorism (Police Powers) Act 2002 No 115 8 Section 27B Eligible Judges 9 Omit section 27B (6). Insert instead: 10 (6) A declaration of an eligible Judge under subsection (3) cannot be 11 revoked by the Attorney General. However, the declaration of a 12 Judge as an eligible Judge is revoked if: 13 (a) the eligible Judge revokes his or her consent in accordance 14 with subsection (5) or ceases to be a Judge, or 15 (b) the Chief Justice notifies the Attorney General that the 16 Judge should not continue to be an eligible Judge. 17 (7) To avoid doubt, the selection of the eligible Judge to exercise any 18 particular function conferred on eligible Judges is not to be made 19 by the Attorney General or other Minister of the Crown, and the 20 exercise of that particular function is not subject to the control 21 and direction of the Attorney General or other Minister of the 22 Crown. 23 Page 5
Courts and Crimes Legislation Amendment Bill 2009 Schedule 2 Other amendments of Acts Schedule 2 Other amendments of Acts 1 2.1 Bail Act 1978 No 161 2 [1] Section 22A Power to refuse to hear bail application 3 Omit section 22A (1). Insert instead: 4 (1) A court is to refuse to entertain an application for bail by a person 5 accused of an offence if an application by the person in relation 6 to that bail has already been made and dealt with by the court, 7 unless there are grounds for a further application for bail. 8 (1A) For the purposes of this section, the grounds for a further 9 application for bail are: 10 (a) the person was not legally represented when the previous 11 application was dealt with and the person now has legal 12 representation, or 13 (b) information relevant to the grant of bail is to be presented 14 in the application that was not presented to the court in the 15 previous application, or 16 (c) circumstances relevant to the grant of bail have changed 17 since the previous application was made. 18 [2] Section 22A (5) 19 Omit the subsection. Insert instead: 20 (5) If a court has previously dealt with an application for bail for a 21 person accused of an offence, a lawyer may refuse to make a 22 further application to the court on behalf of that person if there are 23 no grounds for a further application for bail. 24 2.2 Children and Young Persons (Care and Protection) Act 1998 25 No 157 26 Section 107 Examination and cross-examination of witnesses 27 Omit "an authorised Magistrate within the meaning" from section 107 (4). 28 Insert instead "a Magistrate within the meaning of section 13 (2)". 29 2.3 Children (Detention Centres) Act 1987 No 57 30 Section 39 Expediting trials and appeals 31 Omit "or any authorised Magistrate" from section 39 (3) (c). 32 Insert instead "or Magistrate". 33 Page 6
Courts and Crimes Legislation Amendment Bill 2009 Other amendments of Acts Schedule 2 2.4 Children Legislation Amendment (Wood Inquiry 1 Recommendations) Act 2009 No 13 2 Schedule 2 Amendments relating to recommendations 3 11.2,13.1,13.3,13.4,13.9 and 13.12 4 Omit Schedule 2.1 [3]. 5 2.5 Children's Court Act 1987 No 53 6 [1] Section 13 Single member to exercise jurisdiction of the Court 7 Insert at the end of section 13 (b): 8 or 9 (c) a Magistrate, 10 [2] Section 13 (2) 11 Insert at the end of section 13: 12 (2) In this section, Magistrate means a Magistrate authorised by the 13 President and Chief Magistrate to exercise any function 14 conferred or imposed on a Children's Magistrate by or under this 15 or any other Act. 16 [3] Schedule 2 Savings and transitional provisions 17 Insert after Part 3: 18 Part 4 Provision consequent on enactment of 19 Courts and Crimes Legislation 20 Amendment Act 2009 21 9 Authorised Magistrates 22 (1) Anything done before the commencement of this clause by an 23 authorised Magistrate in the purported exercise of jurisdiction 24 conferred by the proclamation referred to in clause 4 in 25 accordance with the directions of the President or Chief 26 Magistrate and which would have been validly done had section 27 13 (c) and (2) (as inserted by the amending Act) been in force 28 when it was done is validated. 29 (2) In this clause: 30 amending Act means the Courts and Crimes Legislation 31 Amendment Act 2009. 32 Page 7
Courts and Crimes Legislation Amendment Bill 2009 Schedule 2 Other amendments of Acts 2.6 Civil Procedure Act 2005 No 28 1 [1] Section 8 Uniform Rules Committee 2 Omit "11 members" from section 8 (1). Insert instead "12 members". 3 [2] Section 8 (1) (c2) 4 Insert after section 8 (1) (c1): 5 (c2) one is to be the President of the Industrial Relations 6 Commission or a judicial member of the Commission 7 (within the meaning of the Industrial Relations Act 1996) 8 nominated for the time being by the President, and 9 [3] Schedule 1 Application of Act 10 Insert in Columns 1 and 2, after the matter relating to the Land and 11 Environment Court: 12 Industrial Relations Commission All civil proceedings (including the Commission in Court Session (the Industrial Court)) [4] Schedule 2 Constitution and procedure of Uniform Rules Committee 13 Insert "the President of the Industrial Relations Commission," after "the Chief 14 Judge of the Land and Environment Court," in the definition of ex officio 15 member in clause 1. 16 [5] Schedule 2, clause 5 17 Omit "6". Insert instead "7". 18 [6] Schedule 6 Savings, transitional and other provisions 19 Insert at the end of clause 1 (1): 20 Courts and Crimes Legislation Amendment Act 2009 (but only to 21 the extent to which it amends this Act) 22 2.7 Confiscation of Proceeds of Crime Act 1989 No 90 23 [1] Section 35 Definitions 24 Omit the definition of authorised officer from section 35 (1). 25 [2] Section 36 Search warrants 26 Insert "(within the meaning of the Law Enforcement (Powers and 27 Responsibilities) Act 2002)" after "authorised officer" in section 36 (1). 28 Page 8
Courts and Crimes Legislation Amendment Bill 2009 Other amendments of Acts Schedule 2 2.8 Crimes (Criminal Organisations Control) Act 2009 No 6 1 [1] Section 16 Notice of making of interim control order 2 Insert after section 16 (5): 3 (6) A police officer who has reasonable cause to suspect that a person 4 is a person on whom notice of the making of an interim control 5 order is required to be served under this section may: 6 (a) request the person to disclose his or her identity, and 7 (b) request the person to remain at a particular place for such 8 period (not exceeding 2 hours) as is reasonably necessary 9 to serve the notice. 10 Note. It is an offence for a person to fail or refuse without reasonable 11 excuse to comply with a request to disclose his or her identity or to give 12 false or misleading information about his or her identity--see section 13 35A. 14 (7) If the person refuses or fails to comply with a request under 15 subsection (6) (b), the police officer may detain the person at that 16 place for such period (not exceeding 2 hours) as is reasonably 17 necessary to serve the notice. 18 [2] Section 16A Service of notice of interim control order 19 Insert after section 16A (2): 20 (2A) An order may be made under subsection (1) whether or not the 21 28-day period referred to in section 16 (1) has expired. 22 [3] Section 19 Court may make control order 23 Omit section 19 (1) (a). Insert instead: 24 (a) the person: 25 (i) is a member of a particular declared organisation, or 26 (ii) is or purports to be a former member of a particular 27 declared organisation but has an on-going 28 involvement with the organisation and its activities, 29 and 30 [4] Section 19 (8) 31 Insert after section 19 (7): 32 (8) For the purposes of determining whether subsection (1) (a) (ii) 33 applies to a person, the Court may take into account whether the 34 person regularly associates with members of the declared 35 organisation without reasonable cause and the extent to which the 36 Page 9
Courts and Crimes Legislation Amendment Bill 2009 Schedule 2 Other amendments of Acts conduct of the person demonstrates that the person has genuinely 1 dissociated himself or herself from the organisation. 2 [5] Section 26 Association between members of declared organisations 3 subject to interim control order or control order 4 Insert after section 26 (1): 5 (1A) A controlled member of a declared organisation who, at any time 6 within a period of 3 months, associates with another controlled 7 member of the declared organisation on 3 or more occasions is 8 guilty of an offence. 9 Maximum penalty: Imprisonment for 3 years. 10 [6] Section 26 (2)(4) 11 Insert "or (1A)" after "subsection (1)" wherever occurring. 12 [7] Section 26 (7A) 13 Insert after section 26 (7): 14 (7A) A police officer who has reasonable cause to suspect that a person 15 is a controlled member of a declared organisation who is 16 associating with another controlled member of the declared 17 organisation may request the person to disclose his or her 18 identity. 19 Note. It is an offence for a person to fail or refuse without reasonable 20 excuse to comply with a request to disclose his or her identity or to give 21 false or misleading information about his or her identity--see section 22 35A. 23 [8] Section 35A 24 Insert after section 35: 25 35A Failure of person to disclose identity on request 26 (1) A person who is requested by a police officer in accordance with 27 section 16 (6) or 26 (7A) to disclose his or her identity must not, 28 without reasonable excuse, fail or refuse to comply with the 29 request. 30 Maximum penalty: 20 penalty units. 31 Page 10
Courts and Crimes Legislation Amendment Bill 2009 Other amendments of Acts Schedule 2 (2) A person must not, without reasonable excuse, in response to a 1 request made by a police officer in accordance with a provision 2 referred to in subsection (1): 3 (a) give a name that is false in a material particular, or 4 (b) give an address other than the person's full and correct 5 address. 6 Maximum penalty: 20 penalty units. 7 Note. Section 201 of the Law Enforcement (Powers and 8 Responsibilities) Act 2002 sets out safeguards in relation to such a 9 request. 10 [9] Section 36 Proceedings for offences 11 Insert "or an offence under section 26 (1A)" after "order)" in section 36 (2). 12 2.9 Criminal Procedure Act 1986 No 209 13 Section 245 Summary jurisdiction of Supreme Court 14 Insert after the note at the end of section 245 (2): 15 (3) Despite subsection (2), the Industrial Registrar within the 16 meaning of the Industrial Relations Act 1996 may, subject to the 17 rules, make an order under section 246 with respect to an offence 18 that may be dealt with by the President or a judicial member of 19 the Industrial Relations Commission under this Part. 20 2.10 Evidence (Audio and Audio Visual Links) Act 1998 No 105 21 [1] Section 5BAA Taking evidence of government agency witnesses from 22 outside courtroom or place where court is sitting--proceedings 23 generally 24 Omit "police officer" wherever occurring from paragraph (b) of the definition 25 of government agency witness in section 5BAA (5). 26 Insert instead "member of the NSW Police Force". 27 [2] Schedule 1 Savings, transitional and other provisions 28 Insert after clause 1: 29 2 Evidence of government agency witnesses 30 Section 5BAA, as amended by the Courts and Crimes 31 Legislation Amendment Act 2009, does not apply to proceedings 32 commenced before the commencement of that amendment. 33 Page 11
Courts and Crimes Legislation Amendment Bill 2009 Schedule 2 Other amendments of Acts 2.11 Industrial Relations Act 1996 No 17 1 Sections 185A185C 2 Insert after section 185: 3 185A Practice notes 4 (1) Subject to rules of the Commission, the President may issue 5 practice notes with respect to any matter for which rules may be 6 made. 7 (2) A practice note must be published in the Gazette. 8 (3) Sections 40 and 41 of the Interpretation Act 1987 apply to a 9 practice note in the same way as they apply to a statutory rule. 10 185B Commission may dispense with rules in particular cases 11 In relation to particular civil proceedings, the Commission may, 12 by order, dispense with any requirement of rules of the 13 Commission if satisfied that it is appropriate to do so in the 14 circumstances of the case. 15 185C Commission may give directions in circumstances not covered by 16 rules 17 (1) In relation to particular proceedings, the Commission may give 18 directions with respect to any aspect of practice or procedure not 19 provided for by or under this Act, the Criminal Procedure Act 20 1986, the Civil Procedure Act 2005 or any other Act. 21 (2) Anything done in accordance with such a direction (including the 22 commencing of proceedings and the taking of any step in 23 proceedings) is taken to have been validly done. 24 2.12 Law Enforcement (Powers and Responsibilities) Act 2002 25 No 103 26 [1] Section 46 Interpretation 27 Omit the definition of authorised officer from section 46 (1). 28 [2] Section 47 Power to apply for search warrants 29 Omit "who proposes to enter and search premises covertly may apply to an 30 eligible issuing officer for the issue of a covert search warrant" from section 31 47 (3). 32 Insert instead "may apply to an eligible issuing officer for a covert search 33 warrant to authorise the covert entry and search of premises". 34 Page 12
Courts and Crimes Legislation Amendment Bill 2009 Other amendments of Acts Schedule 2 2.13 Legal Profession Act 2004 No 112 1 Schedule 9 Savings, transitional and other provisions 2 Insert at the end of clause 34: 3 (2) The reference to an appeal in subclause (1) extends to an appeal 4 made to the Supreme Court under section 208L (Appeal against 5 decision of costs assessor as to matter of law) of the Legal 6 Profession Act 1987. 7 2.14 Local Court Act 2007 No 93 8 [1] Section 25 Local Court Rule Committee 9 Omit "a registrar" from section 25 (2) (e). Insert instead "an officer". 10 [2] Section 25 (2) (g) 11 Omit the paragraph. Insert instead: 12 (g) if the Minister thinks that it is appropriate to appoint a 13 person as a member--a person appointed by the Minister, 14 [3] Schedule 4 Savings, transitional and other provisions 15 Insert after clause 12: 16 Part 4 Provision consequent on enactment of 17 Courts and Crimes Legislation 18 Amendment Act 2009 19 13 Member of Rule Committee appointed by Attorney General 20 A person appointed and holding office under section 25 (2) (g), 21 as in force immediately before its substitution by the Courts and 22 Crimes Legislation Amendment Act 2009, is taken to have been 23 appointed under section 25 (2) (g) as substituted by that Act. 24 Page 13
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