New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Courts and Crimes Legislation Further
Amendment Bill 2010
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Administrative Decisions Tribunal Act
1997 No 76 3
Schedule 2 Amendment of Adoption Act 2000 No 75 5
Schedule 3 Amendment of Children and Young Persons (Care and
Protection) Act 1998 No 157 6
Schedule 4 Amendment of Children (Criminal Proceedings) legislation 7
Schedule 5 Amendment of Children's Court Act 1987 No 53 13
Schedule 6 Amendment of Civil Procedure Act 2005 No 28 14
Schedule 7 Amendment of Community Services (Complaints,
Reviews and Monitoring) Act 1993 No 2 40
Schedule 8 Amendment of Consumer, Trader and Tenancy
Tribunal Act 2001 No 82 41
Schedule 9 Amendment of Crimes Act 1900 No 40 42
Schedule 10 Amendment of Crimes (Criminal Organisations Control)
b2010-155-32.d29
Courts and Crimes Legislation Further Amendment Bill 2010
Contents
Page
Act 2009 No 6 43
Schedule 11 Amendment of Criminal Appeal Act 1912 No 16 44
Schedule 12 Amendment of Criminal Procedure Act 1986 No 209 45
Schedule 13 Amendment of Graffiti Control legislation 54
Schedule 14 Amendment of Industrial Relations Act 1996 No 17 55
Schedule 15 Amendment of Local Court Act 2007 No 93 56
Schedule 16 Amendment of Mining Act 1992 No 29 60
Schedule 17 Amendment of Supreme Court Act 1970 No 52 62
Schedule 18 Amendment of Victims Support and Rehabilitation
Act 1996 No 115 63
Schedule 19 Amendment of Victims Rights Act 1996 No 114 76
Contents page 2
New South Wales
Courts and Crimes Legislation Further
Amendment Bill 2010
No , 2010
A Bill for
An Act to amend various Acts with respect to courts, crimes, evidence, criminal and
civil procedure, victims compensation and other matters.
Clause 1 Courts and Crimes Legislation Further Amendment Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Courts and Crimes Legislation Further Amendment 3
Act 2010. 4
2 Commencement 5
(1) This Act commences on the date of assent to this Act, except as 6
provided by subsection (2). 7
(2) The following provisions commence on the dates indicated: 8
(a) Schedule 4--25 February 2011 or such earlier day as may be 9
appointed by proclamation, 10
(b) Schedules 6.1, 6.2, 6.4, 14 [1] and 18--a day or days to be 11
appointed by proclamation, 12
(c) Schedule 12.2 [2]--14 January 2011, 13
(d) Schedule 14 [2]--the date of assent to this Act, or the date of 14
commencement of Schedule 1 [2] to the Industrial Relations 15
Further Amendment (Jurisdiction of Industrial Relations 16
Commission) Act 2009, whichever is the later. 17
Page 2
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Administrative Decisions Tribunal Act 1997 No 76 Schedule 1
Schedule 1 Amendment of Administrative Decisions 1
Tribunal Act 1997 No 76 2
[1] Section 55 When can an application for a review be made? 3
Insert "by the end of" before "the default application period" in 4
section 55 (1) (d). 5
[2] Section 55 (3) 6
Omit "Despite subsections (1) (b) and (d) and (2), the". Insert instead "The". 7
[3] Section 55 (5) 8
Insert after section 55 (4): 9
(5) The Tribunal may deal with an application even though the 10
applicant has duly applied for an internal review of the decision 11
to which the application relates, and the review is not finalised, if 12
the Tribunal is satisfied that it is necessary for the Tribunal to 13
deal with the application in order to protect the applicant's 14
interests. 15
[4] Section 71 Representation of parties 16
Insert after section 71 (4A): 17
(5) Anything done or omitted to be done by a member of the 18
Guardian Ad Litem Panel who is appointed by the Tribunal under 19
subsection (4) to represent a party to the proceedings who is an 20
incapacitated person does not subject the member personally to 21
any action, liability, claim or demand if the thing was done, or 22
omitted to be done, in good faith for the purpose of representing 23
the incapacitated person. 24
(5A) However, any such liability attaches instead to the Crown. 25
[5] Section 71 (7) 26
Insert in alphabetical order: 27
Guardian Ad Litem Panel means the panel constituted as the 28
Guardian Ad Litem Panel by the Director-General of the 29
Department of Justice and Attorney General. 30
[6] Schedule 5 Savings and transitional provisions 31
Insert at the end of clause 1 (1): 32
Courts and Crimes Legislation Further Amendment Act 2010 33
Page 3
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 1 Amendment of Administrative Decisions Tribunal Act 1997 No 76
[7] Schedule 5, Part 14 1
Insert after clause 48: 2
Part 14 Provision consequent on enactment of 3
Courts and Crimes Legislation Further 4
Amendment Act 2010 5
49 Applications to the Tribunal for review 6
An amendment made to section 55 by the Courts and Crimes 7
Legislation Further Amendment Act 2010 applies only to 8
applications made to the Tribunal for review of a reviewable 9
decision after the commencement of the amendment. 10
Page 4
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Adoption Act 2000 No 75 Schedule 2
Schedule 2 Amendment of Adoption Act 2000 No 75 1
Section 124A 2
Insert after section 124: 3
124A Guardian ad litem--Exclusion of personal liability 4
(1) Anything done or omitted to be done by a member of the 5
Guardian Ad Litem Panel who is appointed by the Court as a 6
guardian ad litem does not subject the member personally to any 7
action, liability, claim or demand if the thing was done, or 8
omitted to be done, in good faith for the purposes of exercising 9
his or her functions as a guardian ad litem under this Act. 10
(2) However, any such liability attaches instead to the Crown. 11
(3) In this section: 12
Guardian Ad Litem Panel means the panel constituted as the 13
Guardian Ad Litem Panel by the Director-General of the 14
Department of Justice and Attorney General. 15
Page 5
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 3 Amendment of Children and Young Persons (Care and Protection) Act 1998
No 157
Schedule 3 Amendment of Children and Young 1
Persons (Care and Protection) Act 1998 2
No 157 3
Section 101A 4
Insert after section 101: 5
101A Guardian ad litem--Exclusion of personal liability 6
(1) Anything done or omitted to be done by a member of the 7
Guardian Ad Litem Panel who is appointed by the Children's 8
Court as a guardian ad litem does not subject the member 9
personally to any action, liability, claim or demand if the thing 10
was done, or omitted to be done, in good faith for the purposes of 11
exercising his or her functions as a guardian ad litem under this 12
Act. 13
(2) However, any such liability attaches instead to the Crown. 14
(3) In this section: 15
Guardian Ad Litem Panel means the panel constituted as the 16
Guardian Ad Litem Panel by the Director-General of the 17
Department of Justice and Attorney General. 18
Page 6
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Children (Criminal Proceedings) legislation Schedule 4
Schedule 4 Amendment of Children (Criminal 1
Proceedings) legislation 2
4.1 Children (Criminal Proceedings) Act 1987 No 55 3
[1] Section 48A Objects of Part 4
Omit section 48A (a). Insert instead: 5
(a) to establish a youth conduct order scheme for dealing with 6
children who have been charged with (or pleaded guilty to 7
or been found guilty of) certain offences, 8
[2] Section 48B Definitions 9
Omit the definition of ASB pilot project. Insert in alphabetical order: 10
SCSF Program means the multi-agency intervention strategy 11
known as the Supporting Children, Supporting Families 12
Program, which was originally established by the Government in 13
September 2006 as the Anti-Social Behaviour Pilot Project. 14
[3] Section 48D 15
Omit the section. Insert instead: 16
48D Meaning of "relevant offence" 17
In this Part, a relevant offence means any offence the 18
proceedings for which the Children's Court has jurisdiction to 19
hear and determine other than any of the following offences: 20
(a) a prescribed sexual offence (within the meaning of the 21
Criminal Procedure Act 1986), 22
(b) any other serious children's indictable offence, 23
(c) a traffic offence. 24
[4] Section 48F Summary of operation of scheme 25
Omit the second sentence of section 48F (1) (a). 26
[5] Section 48F (1) (b) 27
Omit ", including that it would not be appropriate for the child to be dealt with 28
instead under the Young Offenders Act 1997". 29
[6] Section 48F (1) (c) 30
Insert "A final youth conduct order may be made even if an interim youth 31
conduct order has not been made." after "Such an order may have effect for a 32
period not exceeding 12 months." 33
Page 7
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 4 Amendment of Children (Criminal Proceedings) legislation
[7] Section 48G Children's Court may make suitability assessment orders 1
Insert after section 48G (1) (a): 2
(a1) the Court is satisfied that it is appropriate for the child to 3
be dealt with under the scheme having regard to the 4
following matters: 5
(i) the seriousness of the relevant offence, 6
(ii) the degree of violence (if any) involved in the 7
offence, 8
(iii) any harm caused to any victim, 9
(iv) the number and nature of any previous offences 10
committed by the child, and 11
[8] Section 48G (2A) 12
Insert after section 48G (2): 13
(2A) Despite subsection (1), the Children's Court is not to make a 14
suitability assessment order in relation to a child for a relevant 15
offence if, having regard to the matters referred to in 16
subsection (1) (a1), the Court considers that the appropriate 17
penalty for the relevant offence would be an order under 18
section 33 (1) (g). 19
[9] Section 48G (4) 20
Omit the subsection. Insert instead: 21
(4) If the child is a person to whom the Young Offenders Act 1997 22
applies, the Children's Court is not to make a suitability 23
assessment order unless it is satisfied that it would not be 24
appropriate for the child to be dealt with instead under that Act. 25
[10] Section 48L Youth conduct orders 26
Insert after section 48L (9): 27
(10) Final youth conduct order can be made without interim youth 28
conduct order 29
For the avoidance of doubt, the Children's Court may make a 30
final youth conduct order with respect to a child without first 31
making an interim youth conduct order. 32
[11] Section 48Q Consequences of revocation of youth conduct orders 33
Insert after section 48Q (4): 34
(5) Nothing in this section authorises the imposition of a penalty on 35
a child for a relevant offence to which a revoked youth conduct 36
Page 8
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Children (Criminal Proceedings) legislation Schedule 4
order related that is more severe than the penalty that would have 1
been imposed on the child if he or she had not been the subject of 2
the youth conduct order. 3
[12] Section 48R Consequences of compliance with final youth conduct 4
orders 5
Omit section 48R (2). Insert instead: 6
(2) The Children's Court may make an order directing that the 7
charge for a relevant offence committed (or alleged to have been 8
committed) by a child be dismissed if: 9
(a) the child did not plead guilty to (or had not yet been found 10
guilty of) the relevant offence before the Children's Court 11
made a final youth conduct order in relation to the offence, 12
or 13
(b) the child pleaded guilty to the relevant offence before the 14
Children's Court made a final youth conduct order in 15
relation to the offence. 16
(2A) If the Children's Court refuses to dismiss a charge for a relevant 17
offence under subsection (2), the Court is to state the reasons for 18
its refusal. 19
[13] Section 48R (3) 20
Omit "pleaded guilty to (or was found guilty of)". 21
Insert instead "was found guilty of". 22
[14] Section 48S Evidence of certain matters not admissible 23
Omit "ASB pilot project" from section 48S (1) (a). 24
Insert instead "SCSF Program". 25
[15] Section 48S (1) (b) and (2) (a) 26
Omit "the project" wherever occurring. Insert instead "the SCSF Program". 27
[16] Section 48T Disclosure of certain information prohibited 28
Omit "ASB pilot project" wherever occurring. 29
Insert instead "SCSF Program". 30
[17] Section 48U Exchange of information 31
Omit "scheme administrator" wherever occurring in section 48U (1) 32
(including the note), (3) and (4). 33
Insert instead "relevant administrator". 34
Page 9
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 4 Amendment of Children (Criminal Proceedings) legislation
[18] Section 48U (1) and (2) (a) 1
Insert "or SCSF Program" after "the scheme" wherever occurring. 2
[19] Section 48U (2) (b) and (3) 3
Insert "or functions in relation to the SCSF Program" after "(or under 4
regulations made for the purposes of this Part)" wherever occurring. 5
[20] Section 48U (5) 6
Omit the definition of scheme administrator. Insert in alphabetical order: 7
relevant administrator means any person (or person belonging to 8
a class of persons) involved in the administration of the scheme 9
or the SCSF Program prescribed by, or approved in accordance 10
with, the regulations. 11
[21] Section 48Y Part to cease to have effect 12
Omit "the day that is 26 months after the day on which section 48L 13
commences" from section 48Y (1). 14
Insert instead "1 September 2013". 15
[22] Schedule 2 Savings and transitional provisions 16
Insert at the end of clause 1 (1): 17
Courts and Crimes Legislation Further Amendment Act 2010 18
[23] Schedule 2, Part 17 19
Insert after Part 16: 20
Part 17 Courts and Crimes Legislation Further 21
Amendment Act 2010 22
27 Definitions 23
In this Part: 24
amending Act means the Courts and Crimes Legislation Further 25
Amendment Act 2010. 26
commencement day means the day on which Schedule 4.1 to the 27
amending Act commences. 28
28 Application of amended Part 4A to pre-commencement offences 29
Part 4A of the Act and Part 2 of the Children (Criminal 30
Proceedings) Regulation 2005, as amended by the amending Act, 31
extend to a relevant offence (within the meaning of the amended 32
Page 10
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Children (Criminal Proceedings) legislation Schedule 4
Part 4A of the Act) committed, or alleged to have been 1
committed, by a child before the commencement day, but only if: 2
(a) the child has not yet been charged with the offence 3
immediately before the commencement day, or 4
(b) where the child was charged with the offence before the 5
commencement day--the child has not yet: 6
(i) pleaded guilty to (or been found guilty of) the 7
offence, or 8
(ii) had a penalty imposed by the Children's Court for 9
the offence. 10
29 Application of amended sections 48Q and 48R 11
(1) Section 48Q (as amended by the amending Act) extends to youth 12
conduct orders made before the commencement day that are 13
revoked on or after that day. 14
(2) Section 48R (as amended by the amending Act) extends to: 15
(a) any application made under that section that is pending 16
immediately before the commencement day, and 17
(b) any application made under that section that is made on or 18
after the commencement day in relation to a final youth 19
conduct order made before that day. 20
30 Application of amended section 48U 21
Section 48U (as amended by the amending Act) extends to any 22
information obtained before, on or after the commencement day 23
in connection with the administration of the Anti-Social 24
Behaviour Pilot Project (which was the previous name of the 25
SCSF Program). 26
4.2 Children (Criminal Proceedings) Regulation 2005 27
[1] Clause 4 Definitions 28
Insert after paragraph (c) of the definition of participating Local Area 29
Command in clause 4 (1): 30
(d) the Blacktown Local Area Command, 31
(e) the St Marys Local Area Command, 32
(f) the Liverpool Local Area Command, 33
(g) the Macquarie Fields Local Area Command. 34
Page 11
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 4 Amendment of Children (Criminal Proceedings) legislation
[2] Clause 5 Prescribed eligibility criteria 1
Omit clause 5 (1) (c). Insert instead: 2
(c) there is an appropriate connection with a participating 3
Local Area Command of a kind referred to in 4
subclause (1A), 5
[3] Clause 5 (1A) 6
Insert after clause 5 (1): 7
(1A) There is an appropriate connection with a participating Local 8
Area Command for the purposes of subclause (1) (c) if either or 9
both of the following conditions are met: 10
(a) the person concerned permanently or temporarily resides 11
in, or is an habitual visitor to, the area of the Command, 12
(b) the relevant offence (or, in the case where more than one 13
relevant offence is sought to be dealt with, at least one of 14
the offences) was committed, or alleged to have been 15
committed, in the area of the Command. 16
[4] Clause 5 (3) 17
Omit "1 July 2011" wherever occurring. Insert instead "25 February 2012". 18
[5] Clause 5 (4) 19
Omit the subclause. 20
[6] Clause 28 Disclosure and exchange of information 21
Omit clause 28 (2) and (3). Insert instead: 22
(2) The Director-General and each Chairperson of a Coordination 23
Group are prescribed for the purposes of the definition of 24
relevant administrator in section 48U (5) of the Act. 25
(3) The Director-General may, by order in writing, approve a person 26
(or a class of persons) involved in the administration of the SCSF 27
Program for the purposes of the definition of relevant 28
administrator in section 48U (5) of the Act. 29
(4) The Director-General or Chairperson may from time to time 30
amend, revoke or replace any approval given under this clause by 31
the Director-General or Chairperson by further order in writing. 32
Page 12
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Children's Court Act 1987 No 53 Schedule 5
Schedule 5 Amendment of Children's Court Act 1987 1
No 53 2
Schedule 1 Provisions relating to Children's Magistrates 3
Omit "3 years" in clause 2. Insert instead "5 years". 4
Page 13
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 6 Amendment of Civil Procedure Act 2005 No 28
Schedule 6 Amendment of Civil Procedure Act 2005 1
No 28 2
6.1 Amendment of Civil Procedure Act 2005 No 28 relating to 3
representative actions 4
[1] Section 4 Application of Parts 310 5
Insert after section 4 (1): 6
(1A) Part 10 applies in relation to civil proceedings in the Supreme 7
Court. 8
[2] Part 10 9
Insert after section 154: 10
Part 10 Representative proceedings in Supreme 11
Court 12
Division 1 Preliminary 13
155 Definitions (cf s33A FCA) 14
In this Part: 15
Court means the Supreme Court. 16
defendant means a person against whom relief is sought in 17
representative proceedings. 18
group member means a member of a group of persons on whose 19
behalf representative proceedings have been commenced. 20
proceedings means proceedings in the Court other than criminal 21
proceedings. 22
representative party means a person who commences 23
representative proceedings. 24
representative proceedings--see section 157. 25
sub-group member means a person included in a sub-group 26
established under section 168. 27
sub-group representative party means a person appointed to be a 28
sub-group representative party under section 168. 29
Note. For the purposes of comparison, a number of provisions of this 30
Part contain bracketed notes in headings drawing attention ("cf") to 31
equivalent or comparable (though not necessarily identical) provisions of 32
Part IVA of the Federal Court of Australia Act 1976 ("FCA") of the 33
Commonwealth as in force immediately before the commencement of 34
this Part. 35
Page 14
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Civil Procedure Act 2005 No 28 Schedule 6
156 Application 1
This Part applies to proceedings commenced after the 2
commencement of this section, whether the cause of action arose 3
before or arises after that commencement. 4
Division 2 Commencement of representative 5
proceedings 6
157 Commencement of representative proceedings (cf s33C FCA) 7
(1) Subject to this Part, where: 8
(a) 7 or more persons have claims against the same person, 9
and 10
(b) the claims of all those persons are in respect of, or arise out 11
of, the same, similar or related circumstances, and 12
(c) the claims of all those persons give rise to a substantial 13
common question of law or fact, 14
proceedings may be commenced by one or more of those persons 15
as representing some or all of them. 16
(2) Representative proceedings may be commenced: 17
(a) whether or not the relief sought: 18
(i) is, or includes, equitable relief, or 19
(ii) consists of, or includes, damages, or 20
(iii) includes claims for damages that would require 21
individual assessment, or 22
(iv) is the same for each person represented, and 23
(b) whether or not the proceedings: 24
(i) are concerned with separate contracts or 25
transactions between the defendant in the 26
proceedings and individual group members, or 27
(ii) involve separate acts or omissions of the defendant 28
done or omitted to be done in relation to individual 29
group members. 30
158 Standing (cf s33D FCA) 31
(1) For the purposes of section 157 (1) (a), a person has a sufficient 32
interest to commence representative proceedings against another 33
person on behalf of other persons if the person has standing to 34
commence proceedings on the person's own behalf against that 35
other person. 36
Page 15
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 6 Amendment of Civil Procedure Act 2005 No 28
(2) The person may commence representative proceedings on behalf 1
of other persons against more than one defendant irrespective of 2
whether or not the person and each of those persons have a claim 3
against every defendant in the proceedings. 4
(3) If a person has commenced representative proceedings, that 5
person retains standing: 6
(a) to continue the proceedings, and 7
(b) to bring an appeal from a judgment in the proceedings, 8
even though the person ceases to have a claim against any 9
defendant. 10
159 Is consent required to be a group member? (cf s33E FCA) 11
(1) Subject to subsection (2), the consent of a person to be a group 12
member is not required. 13
(2) None of the following is a group member in representative 14
proceedings unless the person gives consent in writing to being 15
so: 16
(a) the Commonwealth, a State or a Territory, 17
(b) a Minister of the Commonwealth, a State or a Territory, 18
(c) a body corporate established for a public purpose by a law 19
of the Commonwealth, a State or a Territory, other than an 20
incorporated company or association, 21
(d) an officer of the Commonwealth, a State or a Territory, in 22
his or her capacity as an officer. 23
160 Persons under legal incapacity (cf s33F FCA) 24
(1) It is not necessary for a person under legal incapacity to have a 25
tutor merely in order to be a group member. 26
(2) A group member who is a person under legal incapacity may only 27
take a step in representative proceedings, or conduct part of the 28
proceedings, by the member's tutor. 29
161 Originating process (cf s33H FCA) 30
(1) The originating process in representative proceedings, or a 31
document filed in support of the originating process, must, in 32
addition to any other matters required to be included: 33
(a) describe or otherwise identify the group members to whom 34
the proceedings relate, and 35
(b) specify the nature of the claims made on behalf of the 36
group members and the relief claimed, and 37
Page 16
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Civil Procedure Act 2005 No 28 Schedule 6
(c) specify the question of law or facts common to the claims 1
of the group members. 2
(2) In describing or otherwise identifying group members for the 3
purposes of subsection (1), it is not necessary to name, or specify 4
the number of, the group members. 5
162 Right of group member to opt out (cf s33J FCA) 6
(1) The Court must fix a date before which a group member may opt 7
out of representative proceedings in the Court. 8
(2) A group member may opt out of the representative proceedings 9
by written notice given under the local rules before the date so 10
fixed. 11
(3) The Court may, on application by a group member, the 12
representative party or the defendant in the proceedings, fix 13
another date so as to extend the period during which a group 14
member may opt out of the representative proceedings. 15
(4) Except with the leave of the Court, the hearing of representative 16
proceedings must not commence earlier than the date before 17
which a group member may opt out of the proceedings. 18
163 Causes of action accruing after commencement of representative 19
proceedings (cf s33K FCA) 20
(1) The Court may at any stage of representative proceedings, on 21
application by the representative party, give leave to amend the 22
originating process commencing the representative proceedings 23
so as to alter the description of the group. 24
(2) The description of the group may be altered so as to include a 25
person: 26
(a) whose cause of action accrued after the commencement of 27
the representative proceedings but before such date as the 28
Court fixes when giving leave, and 29
(b) who would have been included in the group, or, with the 30
consent of the person would have been included in the 31
group, if the cause of action had accrued before the 32
commencement of the proceedings. 33
(3) The date fixed under subsection (2) (a) may be the date on which 34
leave is given or another date before or after that date. 35
(4) If the Court gives leave under subsection (1), it may also make 36
any other orders it thinks just, including an order relating to the 37
giving of notice to persons who, as a result of the amendment, 38
Page 17
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 6 Amendment of Civil Procedure Act 2005 No 28
will be included in the group and the date before which such 1
persons may opt out of the proceedings. 2
164 Situation where fewer than 7 group members (cf s33L FCA) 3
If, at any stage of representative proceedings, it appears likely to 4
the Court that there are fewer than 7 group members, the Court 5
may, on such conditions (if any) as it thinks fit: 6
(a) order that the proceedings continue under this Part, or 7
(b) order that the proceedings no longer continue under this 8
Part. 9
165 Distribution costs excessive (cf s33M FCA) 10
If: 11
(a) the relief claimed in representative proceedings is or 12
includes payment of money to group members (otherwise 13
than in respect of costs), and 14
(b) on application by the defendant, the Court concludes that 15
it is likely that, if judgment were to be given in favour of 16
the representative party, the cost to the defendant of 17
identifying the group members and distributing to them the 18
amounts ordered to be paid to them would be excessive 19
having regard to the likely total of those amounts, 20
the Court may, by order: 21
(c) direct that the proceedings no longer continue under this 22
Part, or 23
(d) stay the proceedings so far as it relates to relief of the kind 24
mentioned in paragraph (a). 25
166 Court may order discontinuance of proceedings in certain 26
circumstances (cf s33N FCA) 27
(1) The Court may, on application by the defendant or of its own 28
motion, order that proceedings no longer continue under this Part 29
if it is satisfied that it is in the interests of justice to do so because: 30
(a) the costs that would be incurred if the proceedings were to 31
continue as representative proceedings are likely to exceed 32
the costs that would be incurred if each group member 33
conducted a separate proceeding, or 34
(b) all the relief sought can be obtained by means of 35
proceedings other than representative proceedings under 36
this Part, or 37
Page 18
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Civil Procedure Act 2005 No 28 Schedule 6
(c) the representative proceedings will not provide an efficient 1
and effective means of dealing with the claims of group 2
members, or 3
(d) a representative party is not able to adequately represent 4
the interests of the group members, or 5
(e) it is otherwise inappropriate that the claims be pursued by 6
means of representative proceedings. 7
(2) It is not, for the purposes of subsection (1) (e), inappropriate for 8
claims to be pursued by means of representative proceedings 9
merely because the persons identified as group members in 10
relation to the proceedings: 11
(a) do not include all persons on whose behalf those 12
proceedings might have been brought, or 13
(b) are aggregated together for a particular purpose such as a 14
litigation funding arrangement. 15
(3) If the Court dismisses an application under this section, the Court 16
may order that no further application under this section be made 17
by the defendant except with the leave of the Court. 18
(4) Leave for the purposes of subsection (3) may be granted subject 19
to such conditions as to costs as the Court considers just. 20
167 Effect of discontinuance order under this Part (cf s33P FCA) 21
(1) If the Court makes an order under section 164, 165 or 166 that 22
proceedings no longer continue under this Part: 23
(a) the proceedings may be continued as proceedings by the 24
representative party on the party's own behalf against the 25
defendant, and 26
(b) on the application of a person who was a group member for 27
the purposes of the proceedings, the Court may order that 28
the person be joined as an applicant in the proceedings. 29
(2) In this section: 30
applicant, in relation to proceedings, includes a claimant or 31
plaintiff (as the case may be) in the proceedings. 32
168 Determination of questions where not all common (cf s33Q FCA) 33
(1) If it appears to the Court that determination of the question or 34
questions common to all group members will not finally 35
determine the claims of all group members, the Court may give 36
directions in relation to the determination of the remaining 37
questions. 38
Page 19
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 6 Amendment of Civil Procedure Act 2005 No 28
(2) In the case of questions common to the claims of some only of the 1
group members, the directions given by the Court may include 2
directions establishing a sub-group consisting of those group 3
members and appointing a person to be the sub-group 4
representative party on behalf of the sub-group members. 5
169 Individual questions (cf s33R FCA) 6
(1) In giving directions under section 168, the Court may permit an 7
individual group member to appear in the proceedings for the 8
purpose of determining a question that relates only to the claims 9
of that member. 10
(2) In such a case, the individual group member, and not the 11
representative party, is liable for costs associated with the 12
determination of the question. 13
170 Directions relating to commencement of further proceedings (cf 14
s33S FCA) 15
If a question cannot properly or conveniently be dealt with by the 16
Court under section 168 or 169, the Court may give directions for 17
the commencement and conduct of other proceedings, whether or 18
not group proceedings. 19
171 Adequacy of representation (cf s33T FCA) 20
(1) If, on application by a group member, it appears to the Court that 21
a representative party is not able adequately to represent the 22
interests of the group members, the Court may substitute another 23
group member as representative party and make such other orders 24
as it thinks fit. 25
(2) If, on application by a sub-group member, it appears to the Court 26
that a sub-group representative party is not able adequately to 27
represent the interests of the sub-group members, the Court may 28
substitute another person as sub-group representative party and 29
may make such other orders as it thinks fit. 30
172 Stay of execution in certain circumstances (cf s33U FCA) 31
If a defendant in representative proceedings commences 32
proceedings in the Court against a group member, the Court may 33
order a stay of execution in respect of any relief awarded to the 34
group member in the representative proceedings until the other 35
proceedings are determined. 36
Page 20
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Civil Procedure Act 2005 No 28 Schedule 6
173 Approval of Court required for settlement and discontinuance (cf 1
s33V FCA) 2
(1) Representative proceedings may not be settled or discontinued 3
without the approval of the Court. 4
(2) If the Court gives such approval, it may make such orders as are 5
just with respect to the distribution of any money, including 6
interest, paid under a settlement or paid into the Court. 7
174 Settlement of individual claim of representative party (cf 8
s33W FCA) 9
(1) A representative party may, with the leave of the Court, settle the 10
party's individual claim in whole or in part at any stage of the 11
representative proceedings. 12
(2) A representative party who is seeking leave to settle, or who has 13
settled, the party's individual claim may, with the leave of the 14
Court, withdraw as representative party. 15
(3) If a person has sought leave to withdraw as representative party 16
under subsection (2), the Court may, on application by a group 17
member, make an order for the substitution of another group 18
member as representative party and may make such other orders 19
as it thinks fit. 20
(4) Before granting a person leave to withdraw as a representative 21
party: 22
(a) the Court must be satisfied that notice of the application 23
has been given to group members in accordance with 24
section 175 (1) and in sufficient time for them to apply to 25
have another person substituted as the representative party, 26
and 27
(b) any application for the substitution of another group 28
member as a representative party must have been 29
determined. 30
Division 3 Notices 31
175 Notice to be given of certain matters (cf s33X FCA) 32
(1) Notice must be given to group members of the following matters 33
in relation to representative proceedings: 34
(a) the commencement of the proceedings and the right of the 35
group members to opt out of the proceedings before a 36
specified date, being the date fixed under section 162 (1), 37
Page 21
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 6 Amendment of Civil Procedure Act 2005 No 28
(b) an application by the defendant in the proceedings for the 1
dismissal of the proceedings on the ground of want of 2
prosecution, 3
(c) an application by a representative party seeking leave to 4
withdraw under section 174 as representative party. 5
(2) The Court may dispense with compliance with any or all of the 6
requirements of subsection (1) if the relief sought in the 7
proceedings does not include any claim for damages. 8
(3) If the Court so orders, notice must be given to group members of 9
the bringing into Court of money in answer to a cause of action 10
on which a claim in the representative proceedings is founded. 11
(4) Unless the Court is satisfied that it is just to do so, an application 12
for approval of a settlement under section 173 must not be 13
determined unless notice has been given to group members. 14
(5) The Court may, at any stage, order that notice of any matter be 15
given to a group member or group members. 16
(6) Notice under this section must be given as soon as practicable 17
after the happening of the event to which it relates. 18
176 Notices under section 175 (cf s33Y FCA) 19
(1) The form and content of a notice under section 175 must be 20
approved by the Court. 21
(2) The Court must, by order, specify: 22
(a) who is to give the notice, and 23
(b) the way in which the notice is to be given. 24
(3) An order under subsection (2) may also include provision: 25
(a) directing a party to provide information relevant to the 26
giving of the notice, and 27
(b) relating to the costs of giving notice. 28
(4) An order under subsection (2) may require that notice be given by 29
means of press advertisement, radio or television broadcast, or by 30
any other means. 31
(5) The Court may not order that notice be given personally to each 32
group member unless it is satisfied that it is reasonably 33
practicable, and not unduly expensive, to do so. 34
Page 22
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Civil Procedure Act 2005 No 28 Schedule 6
(6) A notice that concerns a matter for which the Court's leave or 1
approval is required must specify the period within which a group 2
member or other person may apply to the Court, or take some 3
other step, in relation to the matter. 4
(7) A notice that includes or concerns conditions must specify the 5
conditions and the period, if any, for compliance. 6
(8) The failure of a group member to receive or respond to a notice 7
does not affect a step taken, an order made, or a judgment given, 8
in any proceedings. 9
Division 4 Powers of the Court 10
177 Judgment--powers of the Court (cf s33Z FCA) 11
(1) The Court may, in determining a matter in representative 12
proceedings, do any one or more of the following: 13
(a) determine a question of law, 14
(b) determine a question of fact, 15
(c) make a declaration of liability, 16
(d) grant any equitable relief, 17
(e) make an award of damages for group members, sub-group 18
members or individual group members, being damages 19
consisting of specified amounts or amounts worked out in 20
such manner as the Court specifies, 21
(f) award damages in an aggregate amount without specifying 22
amounts awarded in respect of individual group members. 23
(2) In making an order for an award of damages, the Court must 24
make provision for the payment or distribution of the money to 25
the group members entitled. 26
(3) Subject to section 173, the Court is not to make an award of 27
damages under subsection (1) (f) unless a reasonably accurate 28
assessment can be made of the total amount to which group 29
members will be entitled under the judgment. 30
(4) If the Court has made an award of damages, the Court may give 31
such directions (if any) as it thinks just in relation to: 32
(a) the manner in which a group member is to establish the 33
member's entitlement to share in the damages, and 34
(b) the manner in which any dispute regarding the entitlement 35
of a group member to share in the damages is to be 36
determined. 37
Page 23
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 6 Amendment of Civil Procedure Act 2005 No 28
178 Constitution etc of fund (cf s33ZA FCA) 1
(1) Without limiting the operation of section 177 (2), in making 2
provision for the distribution of money to group members, the 3
Court may provide for: 4
(a) the constitution and administration of a fund consisting of 5
the money to be distributed, and 6
(b) either: 7
(i) the payment by the defendant of a fixed sum of 8
money into the fund, or 9
(ii) the payment by the defendant into the fund of such 10
instalments, on such terms, as the Court directs to 11
meet the claims of group members, and 12
(c) entitlements to interest earned on the money in the fund. 13
(2) The costs of administering a fund are to be borne by the fund, or 14
by the defendant in the representative proceedings, or by both, as 15
the Court directs. 16
(3) If the Court orders the constitution of a fund under subsection (1), 17
the order must: 18
(a) require notice to be given to group members in such 19
manner as is specified in the order, and 20
(b) specify the manner in which a group member is to make a 21
claim for payment out of the fund and establish the group 22
member's entitlement to payment, and 23
(c) specify a day (which is 6 months or more after the day on 24
which the order is made) on or before which the group 25
members are to make a claim for payment out of the fund, 26
and 27
(d) make provision in relation to the day before which the fund 28
is to be distributed to group members who have established 29
an entitlement to be paid out of the fund. 30
(4) The Court may allow a group member to make a claim after the 31
day fixed under subsection (3) (c) if: 32
(a) the fund has not already been fully distributed or applied in 33
accordance with an order under subsection (5), and 34
(b) it is just to do so. 35
(5) On application by the defendant after the day fixed under 36
subsection (3) (d), the Court may make such orders as it thinks fit 37
for the payment from the fund to the defendant of the money 38
remaining in the fund. 39
Page 24
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Civil Procedure Act 2005 No 28 Schedule 6
179 Effect of judgment (cf s 33ZB FCA) 1
A judgment given in representative proceedings: 2
(a) must describe or otherwise identify the group members 3
who will be affected by it, and 4
(b) binds all such persons other than any person who has opted 5
out of the proceedings under section 162. 6
Division 5 Appeals 7
180 Appeals (cf s 33ZC FCA) 8
(1) The following appeals from a judgment of the Supreme Court in 9
representative proceedings may (subject to the rules of court) 10
themselves be brought in the Court of Appeal under section 101 11
of the Supreme Court Act 1970 as representative proceedings: 12
(a) an appeal by the representative party on behalf of group 13
members and in respect of the judgment to the extent that 14
it relates to questions common to the claims of group 15
members, 16
(b) an appeal by a sub-group representative party on behalf of 17
sub-group members in respect of judgment to the extent 18
that it relates to questions common to the claims of 19
sub-group members. 20
(2) The parties to an appeal in respect of the determination of a 21
question that relates only to the claim of an individual group 22
member are that group member and the defendant. 23
(3) If the representative party or the sub-group representative party 24
does not bring an appeal within the time provided for instituting 25
appeals, another member of the group or sub-group may, within 26
a further 21 days, bring an appeal as representing the group 27
members or sub-group members, as the case may be. 28
(4) If an appeal is brought from the judgment of the Court in 29
representative proceedings, the Court of Appeal may direct that 30
notice of the appeal be given to such person or persons, and in 31
such manner, as it considers appropriate. 32
(5) This Part (other than section 162) applies to any such appeal 33
proceedings despite the provisions of any other Act or law. 34
(6) The notice instituting an appeal in relation to questions that are 35
common to the claims of group members or sub-group members 36
must describe or otherwise identify the group members or 37
sub-group members, as the case may be, but need not specify the 38
names or number of those members. 39
Page 25
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 6 Amendment of Civil Procedure Act 2005 No 28
Division 6 Miscellaneous 1
181 Costs (cf s43 (1A) FCA) 2
Despite section 98, in any representative proceedings, the Court 3
may not award costs against a person on whose behalf the 4
proceedings have been commenced (other than a representative 5
party) except as authorised by sections 168 and 169. 6
182 Suspension of limitation periods (cf s33ZE FCA) 7
(1) On the commencement of any representative proceedings, the 8
running of the limitation period that applies to the claim of a 9
group member to which the proceedings relate is suspended. 10
(2) The limitation period does not begin to run again unless either the 11
member opts out of the proceedings under section 162 or the 12
proceedings, and any appeals arising from the proceedings, are 13
determined without finally disposing of the group member's 14
claim. 15
(3) However, nothing in this section affects the running of a 16
limitation period in respect of a group member who, immediately 17
before the commencement of the representative proceedings, was 18
barred by the expiration of that period from commencing 19
proceedings in the member's own right in respect of a claim in the 20
representative proceedings. 21
(4) This section applies despite anything in the Limitation Act 1969 22
or any other law. 23
183 General power of Court to make orders (cf s33ZF FCA) 24
In any proceedings (including an appeal) conducted under this 25
Part, the Court may, of its own motion or on application by a 26
party or a group member, make any order that the Court thinks 27
appropriate or necessary to ensure that justice is done in the 28
proceedings. 29
184 Reimbursement of representative party's costs (cf s33ZJ FCA) 30
(1) If the Court has made an award of damages in representative 31
proceedings, the representative party or a sub-group 32
representative party, or a person who has been such a party, may 33
apply to the Court for an order under this section. 34
(2) If, on an application under this section, the Court is satisfied that 35
the costs reasonably incurred in relation to the representative 36
proceedings by the person making the application are likely to 37
exceed the costs recoverable by the person from the defendant, 38
Page 26
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Civil Procedure Act 2005 No 28 Schedule 6
the Court may order that an amount equal to the whole or a part 1
of the excess be paid to that person out of the damages awarded. 2
(3) On an application under this section, the Court may also make 3
any other order that it thinks just. 4
[3] Schedule 6 Savings, transitional and other provisions 5
Insert at the end of the Schedule (with appropriate Part and clause numbering): 6
Part Provisions consequent on enactment of 7
Schedule 6.1 to Courts and Crimes 8
Legislation Further Amendment Act 2010 9
Effect of enactment of Part 10 on existing proceedings 10
(1) Except as provided by this clause or the regulations, nothing in 11
the new Part affects the commencement or continuance of any 12
action or proceedings of a representative character commenced 13
otherwise than under the new Part before the commencement of 14
that Part. 15
(2) Subject to subclause (3), the new Part extends to proceedings 16
commenced (but not finally determined) in the relevant court 17
under Division 2 of Part 7 of the uniform rules before the 18
commencement of that Part. 19
(3) The relevant court may make such orders dispensing with or 20
modifying the requirements of the new Part in relation to 21
proceedings referred to in subclause (2) as the relevant court 22
thinks appropriate or necessary to ensure that justice is done in 23
the proceedings. 24
(4) In this clause: 25
relevant court, in relation to actions or proceedings referred to in 26
subclause (1), means the court or tribunal in which the action or 27
proceedings commenced. 28
the new Part means Part 10 (as inserted by the Courts and 29
Crimes Legislation Further Amendment Act 2010). 30
6.2 Amendment of Civil Procedure Act 2005 No 28 relating to 31
dispute resolution 32
[1] Section 3 Definitions 33
Insert in section 3 (1) in alphabetical order: 34
civil dispute has the same meaning as it has in Part 2A. 35
Page 27
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 6 Amendment of Civil Procedure Act 2005 No 28
[2] Part 2A 1
Insert after Part 2: 2
Part 2A Steps to be taken before the 3
commencement of proceedings 4
Division 1 Preliminary 5
18A Interpretation 6
(1) In this Part: 7
alternative dispute resolution means processes (other than a 8
judicial determination) in which an impartial person assists 9
persons in dispute to resolve or narrow the issues in dispute, 10
including (but not limited to) the following: 11
(a) mediation (whether or not by a referral under this Act), 12
(b) expert determination, 13
(c) early neutral evaluation, 14
(d) conciliation, 15
(e) arbitration (whether or not by a referral under this Act). 16
civil dispute means a dispute that may result in the 17
commencement of civil proceedings. 18
costs, in relation to compliance with the pre-litigation 19
requirements, means costs payable in or in relation to complying 20
with the requirements, and includes fees, disbursements, 21
expenses and remuneration. 22
dispute resolution statement means a statement filed under 23
Division 3. 24
mediation means a structured negotiation process in which the 25
mediator, as a neutral and independent party, assists the parties to 26
a dispute to achieve their own resolution of the dispute. 27
pre-litigation protocol--see section 18C. 28
pre-litigation requirements means the requirements set out in 29
section 18E. 30
(2) In the event of an inconsistency between a provision of 31
regulations made under this Part and a provision of any rules of 32
court made under this Part, the provision in the regulations 33
prevails to the extent of the inconsistency. 34
(3) Any provision of this Part that enables or provides for rules of 35
court to be made in relation to a matter operates, in relation to a 36
Page 28
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Civil Procedure Act 2005 No 28 Schedule 6
particular court, to confer power on the rule committee for the 1
court to make local rules in relation to the matter under the Act 2
that constitutes the court. 3
(4) Nothing in subsection (3) limits the operation of section 11 4
(Relationship between uniform rules and local rules). 5
(5) If costs of compliance with the pre-litigation requirements are 6
awarded or taken into account in civil proceedings in accordance 7
with a provision of this Part, those costs are to be treated as if they 8
formed part of the costs of the proceedings and the amount of 9
costs payable may be assessed accordingly. 10
18B Application of Part 11
(1) This Part applies in relation to civil disputes and civil 12
proceedings other than excluded disputes or excluded 13
proceedings. 14
(2) Each of the following is an excluded dispute: 15
(a) any civil dispute where a person is in dispute with another 16
person who is the subject of a vexatious proceedings order 17
under the Vexatious Proceedings Act 2008, 18
(b) any civil dispute (other than a civil dispute referred to in 19
paragraph (a) or (c)) that involves claims that may result in 20
the commencement of excluded proceedings if the issues 21
in dispute are not resolved or narrowed, 22
(c) such other civil disputes (or civil disputes belonging to a 23
class of civil disputes) that are declared under 24
subsection (4) (a) or (5) to be excluded disputes. 25
(3) Each of the following are excluded proceedings: 26
(a) any civil proceedings that result from a civil dispute 27
referred to in subsection (2) (a) or (c), 28
(b) any civil proceedings in the Dust Diseases Tribunal, 29
(c) any civil proceedings in the Industrial Relations 30
Commission, including the Commission in Court Session 31
(the Industrial Court), 32
(d) any civil proceedings in relation to the payment of workers 33
compensation, 34
(e) any civil proceedings in relation to the enforcement of a 35
farm mortgage to which the Farm Debt Mediation Act 36
1994 applies, 37
Page 29
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 6 Amendment of Civil Procedure Act 2005 No 28
(f) any civil proceedings in relation to a claim to which the 1
Motor Accidents Act 1988 or the Motor Accidents 2
Compensation Act 1999 applies, 3
(g) any civil proceedings in relation to a claim made under the 4
Motor Accidents (Lifetime Care and Support) Act 2006, 5
(h) any civil proceedings in which a civil penalty under a civil 6
penalty provision (however described) of or under an Act 7
(including a Commonwealth Act) is sought, 8
(i) any ex parte civil proceedings, 9
(j) any appeal in civil proceedings, 10
(k) such other civil proceedings (or civil proceedings 11
belonging to a class of civil proceedings) that are declared 12
under subsection (4) (a) or (5) to be excluded proceedings. 13
(4) The Governor may make regulations declaring that: 14
(a) specified civil disputes or civil proceedings (or classes of 15
civil disputes or civil proceedings) are excluded disputes 16
or excluded proceedings for the purposes of this Part, or 17
(b) specified civil disputes or civil proceedings (or classes of 18
civil disputes or civil proceedings) that have been excluded 19
by rules of court under subsection (5) are not to be treated 20
as excluded disputes or excluded proceedings for the 21
purposes of this Part. 22
Note. See section 18A (2) in relation to the resolution of inconsistencies 23
between regulations made by the Governor and rules of court. 24
(5) Rules of court (including the uniform rules) may declare that 25
specified civil disputes or civil proceedings (or classes of civil 26
disputes or civil proceedings) are excluded disputes or excluded 27
proceedings for the purposes of this Part. 28
18C Pre-litigation protocols 29
(1) A pre-litigation protocol is a set of provisions setting out steps 30
that will constitute reasonable steps for the purposes of the 31
pre-litigation requirements in their application to a specified class 32
of civil disputes to which this Part applies. 33
(2) Without limiting subsection (1), a pre-litigation protocol for a 34
class of civil disputes may provide for any of the following 35
matters: 36
(a) appropriate notification and communication steps, 37
(b) appropriate responses to notifications and communication 38
steps, 39
Page 30
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Civil Procedure Act 2005 No 28 Schedule 6
(c) appropriate correspondence, information and documents 1
for exchange between the persons involved in the dispute, 2
(d) appropriate negotiation and alternative dispute resolution 3
options, 4
(e) appropriate procedures to be followed in relation to the 5
gathering of evidence (including expert evidence). 6
(3) The Governor may make regulations setting out a pre-litigation 7
protocol for a specified class of civil disputes to which this Part 8
applies. 9
(4) Rules of court (including the uniform rules) may also set out a 10
pre-litigation protocol for a specified class of civil disputes to 11
which this Part applies. 12
Division 2 Pre-litigation requirements 13
18D Compliance with pre-litigation requirements prior to 14
commencement of civil proceedings 15
Each person involved in a civil dispute to which this Part applies 16
is to comply with the pre-litigation requirements before the 17
commencement of any civil proceedings in a court in relation to 18
that dispute. 19
18E Pre-litigation requirements 20
(1) Each person involved in a civil dispute to which this Part applies 21
is to take reasonable steps having regard to the person's situation, 22
the nature of the dispute (including the value of any claim and 23
complexity of the issues) and any applicable pre-litigation 24
protocol: 25
(a) to resolve the dispute by agreement, or 26
(b) to clarify and narrow the issues in dispute in the event that 27
civil proceedings are commenced. 28
(2) For the purposes of this section, reasonable steps include (but are 29
not limited to) the following: 30
(a) notifying the other person of the issues that are, or may be, 31
in dispute, and offering to discuss them, with a view to 32
resolving the dispute, 33
(b) responding appropriately to any such notification by 34
communicating about what issues are, or may be, in 35
dispute, and offering to discuss them, with a view to 36
resolving the dispute, 37
Page 31
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 6 Amendment of Civil Procedure Act 2005 No 28
(c) exchanging appropriate pre-litigation correspondence, 1
information and documents critical to the resolution of the 2
dispute, 3
(d) considering, and where appropriate proposing, options for 4
resolving the dispute without the need for civil 5
proceedings in a court, including (but not limited to) 6
resolution through genuine and reasonable negotiations 7
and alternative dispute resolution processes, 8
(e) taking part in alternative dispute resolution processes. 9
(3) Each person involved in a civil dispute to which this Part applies 10
is not to unreasonably refuse to participate in genuine and 11
reasonable negotiations or alternative dispute resolution 12
processes. 13
(4) Nothing in this section requires a person to provide any 14
correspondence, information or document that might tend to 15
incriminate the person. 16
18F Protection and use of information and documents disclosed under 17
pre-litigation requirements 18
(1) A person involved in a civil dispute to which this Part applies 19
who receives any information or documents provided by another 20
person involved in a civil dispute in accordance with the 21
pre-litigation requirements (and not otherwise available to the 22
recipient) is subject to an obligation not to use the information or 23
documents, or permit the information or documents to be used, 24
for a purpose other than in connection with: 25
(a) the resolution of the civil dispute between the persons 26
involved in the civil dispute, or 27
(b) any civil proceedings arising out of the civil dispute. 28
(2) Despite subsection (1), a person involved in a civil dispute or a 29
party to civil proceedings to which this Part applies may: 30
(a) agree in writing to the use of information or documents 31
otherwise protected under subsection (1), or 32
(b) be released from the obligation imposed under 33
subsection (1) by leave of the court. 34
(3) A court may treat a failure to comply with the obligation under 35
subsection (1) as a contempt of court if the court is satisfied that 36
there was no lawful or reasonable excuse for the failure. 37
(4) If documents exchanged in accordance with the pre-litigation 38
requirements are permitted by this section to be used in civil 39
proceedings arising from the dispute to which the requirements 40
Page 32
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Civil Procedure Act 2005 No 28 Schedule 6
applied, those documents are to be obtained and admitted into 1
evidence in accordance with the usual rules and procedures 2
applicable in the court in relation to the obtaining and admission 3
of documentary evidence. 4
(5) Nothing in this section: 5
(a) limits any other undertaking to a court (implied or specific) 6
whether at common law or otherwise, in relation to 7
information or documents disclosed or discovered in civil 8
proceedings, or 9
(b) limits the operation of section 18O in relation to a 10
mediation to which that section applies. 11
Division 3 Filing of dispute resolution statements by 12
parties to civil proceedings 13
18G Dispute resolution statement to be filed by plaintiff 14
(1) A plaintiff who commences civil proceedings to which this Part 15
applies is to file a dispute resolution statement at the time the 16
originating process for the proceedings is filed. 17
(2) A dispute resolution statement filed under subsection (1) is to 18
specify: 19
(a) the steps that have been taken to try to resolve or narrow 20
the issues in dispute between the plaintiff and the 21
defendant in the proceedings, or 22
(b) the reasons why no such steps were taken, which may 23
relate to (but are not limited to) the following: 24
(i) the urgency of the proceedings (including that the 25
limitation period for the commencement of the 26
proceedings is about to expire), 27
(ii) whether, and the extent to which, the safety or 28
security of any person or property would have been 29
compromised by taking such steps. 30
18H Dispute resolution statement to be filed by defendant 31
(1) A defendant in civil proceedings to which this Part applies who 32
has been served with a copy of a dispute resolution statement 33
filed by the plaintiff is to file a dispute resolution statement at the 34
time the defendant files a defence in the proceedings. 35
(2) A dispute resolution statement filed under subsection (1) is to: 36
(a) state that the defendant agrees with the dispute resolution 37
statement filed by the plaintiff, or 38
Page 33
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 6 Amendment of Civil Procedure Act 2005 No 28
(b) if the defendant disagrees in whole or part with the dispute 1
resolution statement filed by the plaintiff--specify the 2
respect in which, and reasons why, the defendant disagrees 3
and specify other reasonable steps that the defendant 4
believes could usefully be undertaken to resolve the 5
dispute. 6
18I Dispute resolution statement to comply with uniform rules 7
A dispute resolution statement filed under this Division is to 8
comply with such additional requirements as may be specified in 9
rules of court (including the uniform rules). 10
Note. See also section 17, which enables the Uniform Rules Committee 11
to approve forms for documents to be used in connection with civil 12
proceedings. 13
Division 4 Duties of legal practitioners 14
18J Duty of legal practitioners to provide certain information 15
(1) A legal practitioner who is engaged to represent a person 16
involved in a civil dispute to which this Part applies is to: 17
(a) inform the person about the applicability of the 18
pre-litigation requirements to the dispute (including of the 19
need to file a dispute resolution statement in relation to 20
those requirements if civil proceedings are commenced), 21
and 22
(b) advise the person about the alternatives to the 23
commencement of civil proceedings (including alternative 24
dispute resolution processes) that are reasonably available 25
to the person in the circumstances in order to resolve or 26
narrow the issues in dispute. 27
(2) In determining whether a costs order should be made against a 28
legal practitioner under section 99, a court may take into account 29
a failure by the legal practitioner to comply with subsection (1). 30
Division 5 Consequences of non-compliance with this 31
Part 32
18K Failure to comply does not prevent commencement or affect 33
validity of proceedings 34
(1) Non-compliance with the pre-litigation requirements: 35
(a) does not (unless the court otherwise orders or the uniform 36
rules otherwise provide) prevent or preclude a person from 37
commencing civil proceedings in a court, or 38
Page 34
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Civil Procedure Act 2005 No 28 Schedule 6
(b) does not invalidate civil proceedings that have otherwise 1
been duly commenced. 2
(2) A failure to file a dispute resolution statement in civil 3
proceedings to which this Part applies does not invalidate the 4
originating process commencing the proceedings, a response to 5
such a process or the proceedings if they have otherwise been 6
duly filed or commenced. 7
18L Persons generally to bear own costs of compliance with 8
pre-litigation requirements 9
Subject to this Division, each person involved in a civil dispute 10
(or each party to civil proceedings) to which this Part applies is 11
to bear that person's or party's own costs of compliance with the 12
pre-litigation requirements, unless rules of court (including the 13
uniform rules) otherwise provide. 14
18M Court may make orders as to costs of compliance with 15
pre-litigation requirements 16
(1) Despite section 18L, a court may: 17
(a) order that a party to civil proceedings to which this Part 18
applies pay all or a specific part of another party's costs of 19
compliance with the pre-litigation requirements if satisfied 20
that it is reasonable to do so, having regard to the 21
overriding purpose of this Act, and 22
(b) make a costs order under section 99 against a legal 23
practitioner and, in determining whether such an order 24
should be made, the court may take into account any 25
conduct by the legal practitioner that causes a party to civil 26
proceedings to which this Part applies not to comply with 27
the pre-litigation requirements. 28
(2) A court may make an order under subsection (1) (a) of its own 29
motion or on the application of a party to the civil proceedings. 30
18N Court may take failure to comply with pre-litigation requirements 31
into account 32
(1) If a court is satisfied that a party to civil proceedings to which this 33
Part applies has failed to comply with the pre-litigation 34
requirements, the court may take into account that failure: 35
(a) in determining costs in the proceeding generally, and 36
(b) in making any order about the procedural obligations of 37
parties to proceedings, and 38
(c) in making any other order it considers appropriate. 39
Page 35
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 6 Amendment of Civil Procedure Act 2005 No 28
(2) In determining whether to take into account a failure to comply 1
with the pre-litigation requirements, the court may have regard to 2
any of the following matters: 3
(a) whether or not the persons in dispute were legally 4
represented, 5
(b) whether or not compliance might have resulted in 6
self-incrimination by a person in dispute, 7
(c) any reasons that have been provided for the failure by the 8
persons in dispute, 9
(d) any other matter that the court considers relevant. 10
(3) A court may make an order under subsection (1) of its own 11
motion or on the application of a party to the civil proceedings. 12
Division 6 Miscellaneous 13
18O Disclosure and publication of information concerning mediation 14
undertaken for the purposes of this Part 15
(1) In this section: 16
mediation means a meeting arranged for the mediation of a civil 17
dispute to which this Part applies, and includes any steps taken in 18
the course of making arrangements for the meeting or in the 19
course of the follow-up of a meeting. 20
(2) The following provisions apply in relation to a mediation: 21
(a) evidence of anything said or of any admission made in the 22
mediation is not admissible in any proceedings before any 23
court or other body, 24
(b) a document prepared for the purposes of, or in the course 25
of, or as a result of, the mediation, or any copy of such a 26
document, is not admissible in evidence in any 27
proceedings before any court or other body. 28
(3) Subsection (2) does not apply with respect to any evidence or 29
document if: 30
(a) the persons in attendance at, or identified during, the 31
mediation and, in the case of a document, all persons 32
specified in the document, consent to the admission of the 33
evidence or document, or 34
(b) the evidence is called to prove that an agreement or other 35
arrangement has been reached as a result of a mediation 36
and the substance of the agreement or arrangement. 37
Page 36
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Civil Procedure Act 2005 No 28 Schedule 6
(4) The same privilege with respect to defamation as exists with 1
respect to judicial proceedings and a document produced in 2
judicial proceedings exists with respect to: 3
(a) a mediation, or 4
(b) a document or other material sent to or produced to a 5
mediator for the purpose of enabling a mediation to be 6
arranged. 7
(5) The privilege conferred by subsection (4) extends only to a 8
publication made: 9
(a) at a mediation, or 10
(b) in a document or other material sent to or produced to a 11
mediator for the purpose of enabling a mediation to be 12
arranged. 13
[3] Section 56 Overriding purpose 14
Omit "civil proceedings" and "the proceedings" from section 56 (1). 15
Insert instead "a civil dispute or civil proceedings" and "the dispute or 16
proceedings", respectively. 17
[4] Section 56 (3A) 18
Insert after section 56 (3): 19
(3A) A party to a civil dispute or civil proceedings is under a duty to 20
take reasonable steps to resolve or narrow the issues in dispute in 21
accordance with the provisions of Part 2A (if any) that are 22
applicable to the dispute or proceedings in a way that is consistent 23
with the overriding purpose. 24
[5] Section 56 (4) 25
Omit the subsection. Insert instead: 26
(4) Each of the following persons must not, by their conduct, cause a 27
party to a civil dispute or civil proceedings to be put in breach of 28
a duty identified in subsection (3) or (3A): 29
(a) any solicitor or barrister representing the party in the 30
dispute or proceedings, 31
(b) any person with a relevant interest in the proceedings 32
commenced by the party. 33
[6] Section 56 (5) 34
Insert ", (3A)" after "(3)". 35
Page 37
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 6 Amendment of Civil Procedure Act 2005 No 28
[7] Section 56 (6) and (7) 1
Insert after section 56 (5): 2
(6) For the purposes of this section, a person has a relevant interest 3
in civil proceedings if the person: 4
(a) provides financial assistance or other assistance to any 5
party to the proceedings, and 6
(b) exercises any direct or indirect control, or any influence, 7
over the conduct of the proceedings or the conduct of a 8
party in respect of the proceedings. 9
Note. Examples of persons who may have a relevant interest are 10
insurers and persons who fund litigation. 11
(7) In this section: 12
party to a civil dispute means a person who is involved in the 13
dispute. 14
[8] Schedule 3 Rule-making powers 15
Insert after clause 34: 16
35 The pre-litigation requirements under Part 2A (including 17
the practice and procedure relating to the pre-litigation 18
requirements). 19
36 Pre-litigation requirements other than those under Part 2A 20
(including specific protocols for civil proceedings or 21
classes of civil proceedings). 22
[9] Schedule 6 23
Insert at the end of the Schedule (with appropriate Part and clause numbering): 24
Part Provisions consequent on enactment of 25
Schedule 6.2 to Courts and Crimes 26
Legislation Further Amendment Act 2010 27
Application of Part 2A 28
(1) Part 2A (as inserted by the Courts and Crimes Legislation 29
Further Amendment Act 2010) extends to civil proceedings 30
commenced on or after the commencement of that Part in relation 31
to civil disputes arising before that commencement, but only if 32
the proceedings are commenced after the expiry of the 33
transitional period. 34
Page 38
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Civil Procedure Act 2005 No 28 Schedule 6
(2) In this clause: 1
transitional period means the period: 2
(a) commencing on the day on which Part 2A commences, and 3
(b) ending at the end of the day that is 6 months after the day 4
on which Part 2A commences. 5
6.3 Miscellaneous amendments to Civil Procedure Act 2005 6
[1] Schedule 3 Rule-making powers 7
Insert after clause 25: 8
25A The means for answering questions as to the principles of 9
the law of a country other than Australia, and their 10
application. 11
[2] Schedule 6 Savings, transitional and other provisions 12
Insert at the end of clause 1 (1): 13
Courts and Crimes Legislation Further Amendment Act 2010 14
6.4 Amendment of Uniform Civil Procedure Rules 2005 15
Rules 7.4 and 7.5 of the Uniform Civil Procedure Rules 2005 are repealed. 16
Page 39
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 7 Amendment of Community Services (Complaints, Reviews and Monitoring)
Act 1993 No 2
Schedule 7 Amendment of Community Services 1
(Complaints, Reviews and Monitoring) 2
Act 1993 No 2 3
[1] Section 33 Right of appearance 4
Insert after section 33 (3): 5
(3A) Anything done or omitted to be done by a member of the 6
Guardian Ad Litem Panel who is appointed by the Tribunal as a 7
guardian ad litem does not subject the member personally to any 8
action, liability, claim or demand if the thing was done, or 9
omitted to be done, in good faith for the purposes of exercising 10
his or her functions as a guardian ad litem under this Act. 11
(3B) However, any such liability attaches instead to the Crown. 12
[2] Section 33 (7) 13
Insert in alphabetical order: 14
Guardian Ad Litem Panel means the panel constituted as the 15
Guardian Ad Litem Panel by the Director-General of the 16
Department of Justice and Attorney General. 17
Page 40
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Consumer, Trader and Tenancy Tribunal Act 2001 No 82 Schedule 8
Schedule 8 Amendment of Consumer, Trader and 1
Tenancy Tribunal Act 2001 No 82 2
[1] Section 36 Representation of parties 3
Insert after section 36 (7): 4
(7A) Anything done or omitted to be done by a member of the 5
Guardian Ad Litem Panel who is appointed under subsection (6) 6
does not subject the member personally to any action, liability, 7
claim or demand if the thing was done, or omitted to be done, in 8
good faith for the purposes of exercising his or her functions 9
under this Act. 10
(7B) However, any such liability attaches instead to the Crown. 11
[2] Section 36 (10) 12
Insert after section 36 (9): 13
(10) In this section: 14
Guardian Ad Litem Panel means the panel constituted as the 15
Guardian Ad Litem Panel by the Director-General of the 16
Department of Justice and Attorney General. 17
Page 41
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 9 Amendment of Crimes Act 1900 No 40
Schedule 9 Amendment of Crimes Act 1900 No 40 1
Section 44 2
Omit the section. Insert instead: 3
44 Failure of persons to provide necessities of life 4
(1) A person: 5
(a) who is under a legal duty to provide another person with 6
the necessities of life, and 7
(b) who, without reasonable excuse, intentionally or 8
recklessly fails to provide that person with the necessities 9
of life, 10
is guilty of an offence if the failure causes a danger of death or 11
causes serious injury, or the likelihood of serious injury, to that 12
person. 13
Maximum penalty: Imprisonment for 5 years. 14
(2) A person cannot be found guilty of both an offence against 15
section 43A and an offence against this section in respect of the 16
same act or omission. 17
Page 42
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Crimes (Criminal Organisations Control) Act 2009 No 6 Schedule 10
Schedule 10 Amendment of Crimes (Criminal 1
Organisations Control) Act 2009 No 6 2
[1] Section 39 Report to Ombudsman on exercise of powers and monitoring 3
by Ombudsman 4
Omit "2 years" from section 39 (1). Insert instead "4 years". 5
[2] Section 39 (5) 6
Omit "2-year period". Insert instead "4-year period". 7
Page 43
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 11 Amendment of Criminal Appeal Act 1912 No 16
Schedule 11 Amendment of Criminal Appeal Act 1912 1
No 16 2
[1] Section 5F Appeal against interlocutory judgment or order 3
Insert after section 5F (3): 4
(3AA) A person who is not a party to proceedings to which this section 5
applies may appeal to the Court of Criminal Appeal against a 6
decision in those proceedings to grant leave under Division 2 of 7
Part 5 of Chapter 6 of the Criminal Procedure Act 1986 or a 8
determination in those proceedings that a document or evidence 9
does not contain a protected confidence within the meaning of 10
that Division, if the person is: 11
(a) a person who, because of the leave, is required to produce 12
a document or adduce evidence that contains a protected 13
confidence, or 14
(b) a protected confider in relation to a protected confidence 15
that may be produced or adduced because of the leave, or 16
(c) a person who claims the document or evidence does, 17
despite the determination, contain a protected confidence 18
in relation to which the person is a protected confider. 19
(3AB) An appeal under subsection (3AA) may be made whether or not 20
an appeal has been made by a party to the proceedings, but only 21
if: 22
(a) the Court of Criminal Appeal gives leave to appeal, or 23
(b) the judge or magistrate of the court of trial certifies that the 24
decision is a proper one for determination on appeal. 25
[2] Schedule 1 Savings and transitional provisions 26
Insert after clause 14: 27
15 Courts and Crimes Legislation Further Amendment Act 2010 28
Section 5F (3AA) and (3AB), as inserted by the Courts and 29
Crimes Legislation Further Amendment Act 2010, extends to 30
proceedings commenced but not completed before the 31
commencement of those subsections. 32
Page 44
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Criminal Procedure Act 1986 No 209 Schedule 12
Schedule 12 Amendment of Criminal Procedure Act 1
1986 No 209 2
12.1 Amendments relating to evidence in sexual offence matters 3
[1] Section 294D Protections of Division extend to tendency witnesses 4
Omit section 294D (2). Insert instead: 5
(2) A sexual offence witness is any witness in the proceedings (other 6
than the complainant) against whom any of the following is 7
alleged to have been committed by the accused person: 8
(a) a prescribed sexual offence, or 9
(b) acts that would constitute a prescribed sexual offence were 10
those acts to occur in this State at the time of the 11
commencement of the proceedings. 12
(2A) A provision of this Division that applies to the giving of evidence 13
about a prescribed sexual offence extends to the giving of 14
evidence by a sexual offence witness about an offence or act 15
referred to in subsection (2) (a) or (b). 16
[2] Section 294D (6) 17
Omit "a prescribed sexual offence". 18
Insert instead "an offence or act referred to in subsection (2) (a) or (b)". 19
[3] Section 295 Interpretation 20
Omit paragraph (a) from the definition of criminal proceedings in 21
section 295 (1). 22
Insert instead: 23
(a) proceedings relating to the trial or sentencing of a person 24
for an offence (whether or not a sexual assault offence) 25
including pre-trial and interlocutory proceedings but not 26
preliminary criminal proceedings, or 27
[4] Section 295 (1), definition of "sexual assault offence" 28
Insert after paragraph (a): 29
(a1) acts that would constitute a prescribed sexual offence if 30
those acts: 31
(i) had occurred in this State, or 32
(ii) had occurred at some later date, or 33
Page 45
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 12 Amendment of Criminal Procedure Act 1986 No 209
(iii) had both occurred in this State and occurred at some 1
later date, or 2
[5] Sections 297299D 3
Omit sections 297299. Insert instead: 4
297 Protected confidences--preliminary criminal proceedings 5
(1) A person cannot seek to compel (whether by subpoena or any 6
other procedure) any other person to produce a document 7
recording a protected confidence in, or in connection with, any 8
preliminary criminal proceedings. 9
(2) A document recording a protected confidence cannot be 10
produced in, or in connection with, any preliminary criminal 11
proceedings. 12
(3) Evidence cannot be adduced in any preliminary criminal 13
proceedings if it would disclose a protected confidence or the 14
contents of a document recording a protected confidence. 15
298 Protected confidences--criminal proceedings 16
(1) Except with the leave of the court, a person cannot seek to compel 17
(whether by subpoena or any other procedure) any other person 18
to produce a document recording a protected confidence in, or in 19
connection with, any criminal proceedings. 20
(2) Except with the leave of the court, a document recording a 21
protected confidence cannot be produced in, or in connection 22
with, any criminal proceedings. 23
(3) Except with the leave of the court, evidence cannot be adduced in 24
any criminal proceedings if it would disclose a protected 25
confidence or the contents of a document recording a protected 26
confidence. 27
299 Court to inform of rights under Division 28
If it appears to a court that a witness, party or protected confider 29
may have grounds for making an application under this Division 30
or objecting to the production of a document or the adducing of 31
evidence, the court must satisfy itself (or if there is a jury, in the 32
absence of the jury) that the person is aware of the relevant 33
provisions of this Division and has been given a reasonable 34
opportunity to seek legal advice. 35
Page 46
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Criminal Procedure Act 1986 No 209 Schedule 12
299A Protected confider has standing 1
A protected confider who is not a party may appear in criminal 2
proceedings or preliminary criminal proceedings if a document is 3
sought to be produced or evidence is sought to be adduced that 4
may disclose a protected confidence made by, to or about the 5
protected confider. 6
299B Determining if there is a protected confidence 7
(1) If a question arises under this Division relating to a document or 8
evidence, a court may consider the document or evidence. 9
(2) If there is a jury, the document or evidence is to be considered in 10
the absence of the jury. 11
(3) A court must not make available or disclose to a party (other than 12
a protected confider) any document or evidence to which this 13
section applies (or the contents of any such document) unless: 14
(a) the court determines that the document does not record a 15
protected confidence or that the evidence would not 16
disclose a protected confidence, or 17
(b) a party has been given leave under this Division in relation 18
to the document or evidence and making available or 19
disclosing the document or evidence is consistent with that 20
leave. 21
(4) A court may make any orders it thinks fit to facilitate its 22
consideration of a document or evidence under this section. 23
299C Notice of application for leave 24
(1) An applicant for leave under this Division must, as soon as is 25
reasonably practicable, give notice in writing of the application to 26
each other party and each relevant protected confider (or the 27
protected confider's nominee) that: 28
(a) specifies the document that is sought to be produced or the 29
evidence that is sought to be adduced, and 30
(b) in the case of a notice to a protected confider who is not a 31
party to the proceedings--advises the protected confider 32
that the protected confider may appear in the proceedings 33
concerned, and 34
(c) in the case of an application for leave to compel (whether 35
by subpoena or any other procedure) a person to produce a 36
document--specifies the day on which the document is to 37
be produced, and 38
Page 47
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 12 Amendment of Criminal Procedure Act 1986 No 209
(d) in the case of an application for leave to adduce 1
evidence--specifies the day (if known) when the 2
proceedings are to be heard, and 3
(e) includes any other matter that may be prescribed by the 4
regulations. 5
(2) A requirement to give notice to a protected confider who is not a 6
party to proceedings is satisfied for the purposes of this section if 7
the notice is given to: 8
(a) the prosecutor in the criminal proceedings, or 9
(b) if the regulations prescribe a different person or body, that 10
person or body. 11
(3) A prosecutor (or person or body) who is given a copy of a notice 12
under subsection (2) must ensure that a copy of the notice is given 13
to the protected confider within a reasonable time after its receipt. 14
(4) A court cannot grant an application for leave under this Division 15
until at least 14 days (or such shorter period as may be fixed by 16
the court) after the relevant notices have been given under 17
subsection (1) or (2). 18
(5) A court may waive the requirement to give notice if: 19
(a) notice has already been given in respect of an application 20
under this Division, being an application that relates to the 21
same protected confidence and the same criminal 22
proceedings, or 23
(b) the principal protected confider has consented in writing to 24
the notice being waived, or 25
(c) the court is satisfied that there are exceptional 26
circumstances that require the notice to be waived. 27
(6) The regulations may make provision for or with respect to the 28
giving of notices under this section. 29
299D Determining whether to grant leave 30
(1) The court cannot grant an application for leave under this 31
Division unless the court is satisfied that: 32
(a) the document or evidence will, either by itself or having 33
regard to other documents or evidence produced or 34
adduced or to be produced or adduced by the party seeking 35
to produce or adduce the document or evidence, have 36
substantial probative value, and 37
Page 48
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Criminal Procedure Act 1986 No 209 Schedule 12
(b) other documents or evidence concerning the matters to 1
which the protected confidence relates are not available, 2
and 3
(c) the public interest in preserving the confidentiality of 4
protected confidences and protecting the principal 5
protected confider from harm is substantially outweighed 6
by the public interest in admitting into evidence 7
information or the contents of a document of substantial 8
probative value. 9
(2) Without limiting the matters that the court may take into account 10
for the purposes of determining the public interest in preserving 11
the confidentiality of protected confidences and protecting the 12
principal protected confider from harm, the court must take into 13
account the following: 14
(a) the need to encourage victims of sexual offences to seek 15
counselling, 16
(b) that the effectiveness of counselling is likely to be 17
dependent on the maintenance of the confidentiality of the 18
counselling relationship, 19
(c) the public interest in ensuring that victims of sexual 20
offences receive effective counselling, 21
(d) that the disclosure of the protected confidence is likely to 22
damage or undermine the relationship between the 23
counsellor and the counselled person, 24
(e) whether disclosure of the protected confidence is sought 25
on the basis of a discriminatory belief or bias, 26
(f) that the adducing of the evidence is likely to infringe a 27
reasonable expectation of privacy. 28
(3) For the purposes of determining an application for leave under 29
this Division, the court may permit a confidential statement to be 30
made to it by or on behalf of the principal protected confider by 31
affidavit specifying the harm the confider is likely to suffer if the 32
application for leave is granted. 33
(4) A court must not disclose or make available to a party (other than 34
the principal protected confider) any confidential statement made 35
to the court under this section by or on behalf of the principal 36
protected confider. 37
(5) The court must state its reasons for granting or refusing to grant 38
an application for leave under this Division. 39
Page 49
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 12 Amendment of Criminal Procedure Act 1986 No 209
(6) If there is a jury, the court is to hear and determine any 1
application for leave under this Division in the absence of the 2
jury. 3
[6] Sections 303 and 304 4
Omit the sections. 5
[7] Section 305 Inadmissibility of evidence 6
Omit "must not". Insert instead "cannot". 7
[8] Section 305A 8
Insert after section 305: 9
305A Subpoenas in sexual assault matters 10
The regulations may make provision for or with respect to the 11
issue and service of subpoenas in, or in connection with, any 12
criminal proceedings or preliminary criminal proceedings 13
involving a prescribed sexual offence, including the following: 14
(a) the manner and time in which a subpoena must be served, 15
(b) the form of a subpoena, 16
(c) any documents or information that must be included with 17
a subpoena. 18
[9] Schedule 2 19
Insert at the end of the Schedule (with appropriate Part and clause numbering): 20
Part Provisions consequent on enactment of 21
Schedule 12.1 to Courts and Crimes 22
Legislation Further Amendment Act 2010 23
Evidence in sexual offence proceedings 24
(1) The amendments made to this Act by Schedule 12.1 [1][3] to the 25
amending Act extend to proceedings commenced but not 26
completed before the commencement of those amendments. 27
(2) However, subclause (1) does not affect the admissibility of any 28
evidence given in proceedings before the commencement of 29
those amendments or otherwise affect the validity of anything 30
done, or omitted to be done, before that commencement. 31
(3) The amendments made to this Act by Schedule 12.1 [4][7] to the 32
amending Act do not extend to proceedings in a court if the 33
Page 50
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Criminal Procedure Act 1986 No 209 Schedule 12
proceedings have commenced in that court before the 1
commencement of those amendments. 2
(4) In this clause: 3
amending Act means the Courts and Crimes Legislation Further 4
Amendment Act 2010. 5
12.2 Miscellaneous amendments 6
[1] Section 56 Committal proceedings to be heard in open court 7
Insert after section 56 (2): 8
(3) For the purpose only of facilitating the use of an electronic case 9
management system established under the Electronic 10
Transactions Act 2000 in committal proceedings, the hearing of 11
a matter may be conducted in the absence of the public, with the 12
consent of the parties to the proceedings concerned, if the matter: 13
(a) arises after the first appearance of the accused person in 14
committal proceedings, and 15
(b) is of a procedural nature, and 16
(c) does not require the resolution of a disputed issue, and 17
(d) does not involve a person giving oral evidence. 18
[2] Sections 132 and 132A 19
Omit section 132. Insert instead: 20
132 Orders for trial by Judge alone 21
(1) An accused person or the prosecutor in criminal proceedings in 22
the Supreme Court or District Court may apply to the court for an 23
order that the accused person be tried by a Judge alone (a trial by 24
judge order). 25
(2) The court must make a trial by judge order if both the accused 26
person and the prosecutor agree to the accused person being tried 27
by a Judge alone. 28
(3) If the accused person does not agree to being tried by a Judge 29
alone, the court must not make a trial by judge order. 30
(4) If the prosecutor does not agree to the accused person being tried 31
by a Judge alone, the court may make a trial by judge order if it 32
considers it is in the interests of justice to do so. 33
(5) Without limiting subsection (4), the court may refuse to make an 34
order if it considers that the trial will involve a factual issue that 35
requires the application of objective community standards, 36
Page 51
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 12 Amendment of Criminal Procedure Act 1986 No 209
including (but not limited to) an issue of reasonableness, 1
negligence, indecency, obscenity or dangerousness. 2
(6) The court must not make a trial by judge order unless it is 3
satisfied that the accused person has sought and received advice 4
in relation to the effect of such an order from an Australian legal 5
practitioner. 6
(7) The court may make a trial by judge order despite any other 7
provision of this section or section 132A if the court is of the 8
opinion that: 9
(a) there is a substantial risk that acts that may constitute an 10
offence under Division 3 of Part 7 of the Crimes Act 1900 11
are likely to be committed in respect of any jury or juror, 12
and 13
(b) the risk of those acts occurring may not reasonably be 14
mitigated by other means. 15
132A Applications for trial by judge alone in criminal proceedings 16
(1) An application for an order under section 132 that an accused 17
person be tried by a Judge alone must be made not less than 18
28 days before the date fixed for the trial in the Supreme Court or 19
District Court, except with the leave of the court. 20
(2) An application must not be made in a joint trial unless: 21
(a) all other accused person apply to be tried by a Judge alone, 22
and 23
(b) each application is made in respect of all offences with 24
which the accused persons in the trial are charged that are 25
being proceeded with in the trial. 26
(3) An accused person or a prosecutor who applies for an order under 27
section 132 may, at any time before the date fixed for the accused 28
person's trial, subsequently apply for a trial by a jury. 29
(4) Rules of court may be made with respect to applications under 30
section 132 or this section. 31
[3] Schedule 1 Indictable offences triable summarily 32
Omit "$15,000" from clause 6 (b) of Table 1 to the Schedule. 33
Insert instead "$60,000". 34
[4] Schedule 2 Savings, transitional and other provisions 35
Insert at the end of clause 1 (1): 36
Courts and Crimes Legislation Further Amendment Act 2010 37
Page 52
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Criminal Procedure Act 1986 No 209 Schedule 12
[5] Schedule 2 1
Insert at the end of the Schedule (with appropriate Part and clause numbering): 2
Part Provisions consequent on enactment of 3
Schedule 12.2 to Courts and Crimes 4
Legislation Further Amendment Act 2010 5
Conduct of committal proceedings in the absence of the public 6
The amendment made to section 56 by the Courts and Crimes 7
Legislation Further Amendment Act 2010 applies only to 8
committal proceedings instituted on or after the commencement 9
of the amendment. 10
Changes to trial by judge alone provisions 11
Section 132, as in force before its substitution by the Courts and 12
Crimes Legislation Further Amendment Act 2010, continues to 13
apply to criminal proceedings that were commenced in the 14
Supreme Court or District Court before that substitution. 15
New penalties to apply prospectively 16
An amendment made to Schedule 1 by the Courts and Crimes 17
Legislation Further Amendment Act 2010 applies only in respect 18
of an offence that is committed, or alleged to have been 19
committed, on or after the commencement of the amendment. 20
Page 53
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 13 Amendment of Graffiti Control legislation
Schedule 13 Amendment of Graffiti Control 1
legislation 2
13.1 Graffiti Control Act 2008 No 100 3
Section 9A Definitions 4
Insert in alphabetical order: 5
fine has the same meaning as in the Fines Act 1996. 6
13.2 Graffiti Control Regulation 2009 7
Clause 12 Community clean up orders 8
Omit the clause. 9
Page 54
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Industrial Relations Act 1996 No 17 Schedule 14
Schedule 14 Amendment of Industrial Relations Act 1
1996 No 17 2
[1] Section 162C 3
Insert after section 162B: 4
162C Exercise of certain functions under federal Act by Commissioner 5
(1) A Commissioner who is an Australian lawyer may exercise any 6
function of the Commission in Court Session in respect of small 7
claims proceedings. 8
(2) If the Commissioner gives a direction, makes an order or does 9
any other thing in relation to small claims proceedings, the 10
Commission in Court Session may, on application by a party to 11
the proceedings: 12
(a) review the direction, order or action, and 13
(b) by order confirm, vary or discharge the direction or order 14
or take such other action as it thinks fit. 15
(3) In this section: 16
small claims proceedings means proceedings dealt with as small 17
claims proceedings under section 548 of the Fair Work Act 2009 18
of the Commonwealth. 19
[2] Section 364 Definitions (as amended by Industrial Relations Further 20
Amendment (Jurisdiction of Industrial Relations Commission) Act 2009) 21
Insert "the Commission constituted by" before "a Commissioner who is an 22
Australian lawyer" in paragraph (a1) in the definition of industrial court in 23
section 364 (1). 24
Page 55
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 15 Amendment of Local Court Act 2007 No 93
Schedule 15 Amendment of Local Court Act 2007 1
No 93 2
[1] Section 3 Definitions 3
Insert in alphabetical order in section 3 (1): 4
public sector service has the same meaning as it has in the Public 5
Sector Employment and Management Act 2002. 6
[2] Sections 29 and 29A 7
Omit section 29. Insert instead: 8
29 Jurisdictional limit of Court 9
(1) For the purposes of this Part, the jurisdictional limit of the Court 10
is: 11
(a) $100,000, when sitting in its General Division, and 12
(b) $10,000, when sitting in its Small Claims Division. 13
(2) However, the jurisdictional limit of the Court, when sitting in its 14
General Division, in relation to a claim for damages arising from 15
personal injury or death is $60,000. 16
29A Money claim--meaning 17
In this Part, money claim means a claim for recovery of any debt, 18
demand or damages (whether liquidated or unliquidated). 19
[3] Schedule 1 Provisions relating to Magistrates 20
Omit "(within the meaning of section 3 of the Public Sector Employment and 21
Management Act 2002)" from clause 8 (1). 22
[4] Schedule 1, clause 9 23
Insert after clause 9 (2): 24
(3) A determination by the Minister under this clause is referred to in 25
this Schedule as a conditions of service determination. 26
[5] Schedule 1, clause 9A 27
Insert after clause 9: 28
9A Cashing out of pre-2002 extended leave entitlements 29
(1) A conditions of service determination may make provision for an 30
alternative extended leave scheme for Magistrates with pre-2002 31
extended leave entitlements. 32
Page 56
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Local Court Act 2007 No 93 Schedule 15
(2) An alternative extended leave scheme is a scheme under which 1
a Magistrate accrues extended leave on a different basis to his or 2
her pre-2002 extended leave entitlement. 3
(3) A conditions of service determination may permit a Magistrate to 4
elect: 5
(a) to be paid, as a gratuity, the monetary value of the 6
Magistrate's pre-2002 extended leave entitlement, and 7
(b) to accrue extended leave, on and from the date of election, 8
in accordance with the alternative extended leave scheme. 9
(4) An alternative extended leave scheme may provide that the 10
Magistrate accrues extended leave as if the Magistrate had first 11
been appointed as a Magistrate on or after the election takes 12
effect (that is, disregarding service as a Magistrate or in the 13
public sector service before the election takes effect). 14
(5) In this section, a pre-2002 extended leave entitlement is any right 15
to extended leave or to accrue extended leave that a Magistrate 16
appointed before 20 September 2002 has by virtue of 17
section 25 (1) of the Local Courts Act 1982, as in force 18
immediately before its repeal. 19
Note. Section 30 (1) (c) of the Interpretation Act 1987 provides that the 20
repeal of an Act does not affect any right, privilege, obligation or liability 21
acquired, accrued or incurred under the Act. 22
[6] Schedule 4 Savings, transitional and other provisions 23
Insert at the end of clause 1 (1): 24
Courts and Crimes Legislation Further Amendment Act 2010 25
[7] Schedule 4, Part 6 26
Insert after Part 5: 27
Part 6 Provisions consequent on enactment of 28
Courts and Crimes Legislation Further 29
Amendment Act 2010 30
15 Changes to the jurisdictional limit of the Court 31
The amendment made to section 29 by the Courts and Crimes 32
Legislation Further Amendment Act 2010 does not apply to 33
proceedings instituted in the Court before the commencement of 34
the amendment. 35
Page 57
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 15 Amendment of Local Court Act 2007 No 93
16 Validation of 2005 Extended Leave Determination 1
(1) A provision of the 2005 Extended Leave Determination that 2
could have been made as a condition of service determination if 3
this Act, as amended by the Courts and Crimes Legislation 4
Further Amendment Act 2010, had been in force at the time that 5
it was made, is taken to have been, and to have always been, 6
validly made under section 22 of the Local Courts Act 1982. 7
(2) The 2005 Extended Leave Determination is taken to include, and 8
to have always included, a provision to the effect that, on and 9
from the date an election by a Magistrate to be paid an extended 10
leave gratuity takes effect, any service by the Magistrate as a 11
Magistrate or in the public sector service before that date is to be 12
disregarded in determining the Magistrate's entitlement to 13
extended leave for service after that date. 14
(3) Anything done in connection with the 2005 Extended Leave 15
Determination that would have been validly done if the 16
amendments made to this Act by the Courts and Crimes 17
Legislation Further Amendment Act 2010 had been in force when 18
it was done is taken to have been, and to have always been, 19
validly done. 20
(4) A Magistrate or former Magistrate who was paid an extended 21
leave gratuity before the commencement of this clause may elect 22
to have his or her pre-2002 extended leave entitlement reinstated 23
in accordance with arrangements approved by the Minister. 24
(5) As a precondition to reinstatement, the Magistrate or former 25
Magistrate must repay the gratuity amount to the Minister. 26
(6) The amount to be repaid is to be determined by the Minister on 27
the basis of a reasonable estimate of the present day value of the 28
extended leave gratuity paid to the Magistrate or former 29
Magistrate. 30
(7) On reinstatement, the Magistrate or former Magistrate is taken to 31
have accrued, and to always have accrued, extended leave as if 32
the Magistrate had never elected to be paid the extended leave 33
gratuity. 34
(8) Expressions used in this clause have the same meaning as they 35
have in clause 9A of Schedule 1. 36
(9) In this clause: 37
extended leave gratuity means a gratuity paid to a Magistrate on 38
election under clause 2A of the Magistrates' Leave and Related 39
Conditions Determination as inserted by the 2005 Extended 40
Leave Determination. 41
Page 58
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Local Court Act 2007 No 93 Schedule 15
2005 Extended Leave Determination means the Magistrates' 1
Leave and Related Conditions Amendment (Extended Leave) 2
Determination 2005 published in Gazette No 65 of 3.6.2005 at 3
page 1923. 4
Page 59
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 16 Amendment of Mining Act 1992 No 29
Schedule 16 Amendment of Mining Act 1992 No 29 1
[1] Section 62 Dwelling-houses, gardens and significant improvements 2
Omit "(a) or (b)" from section 62 (6A). 3
[2] Section 62 (6A), note 4
Omit the note. 5
[3] Schedule 1 Public consultation with respect to the granting of 6
assessment leases and mining leases 7
Omit clause 23A (3)(6). Insert instead: 8
(3) In the case of a claim relating to an application for a mining lease, 9
the Director-General must cause notice of the claim to be given 10
to the applicant for the lease. 11
(4) An applicant for a mining lease may give notice to the 12
Director-General of an application to the Land and Environment 13
Court for a determination in relation to the claim. 14
(5) Anything identified in a claim as being a significant improvement 15
is taken to be a significant improvement for the purposes of 16
section 62 unless the Land and Environment Court finds that it is 17
not a significant improvement in an application made under 18
section 62 (6A). 19
[4] Schedule 1, clause 23B 20
Omit the clause. 21
[5] Schedule 6 Savings, transitional and other provisions 22
Insert at the end of clause 1 (1): 23
Courts and Crimes Legislation Further Amendment Act 2010 24
[6] Schedule 6 25
Insert at the end of the Schedule with appropriate Part and clause number: 26
Part Provisions consequent on enactment of 27
Courts and Crimes Legislation Further 28
Amendment Act 2010 29
Application of amendments 30
Section 62 and clauses 23A and 23B of Schedule 1 (as in force 31
immediately before the commencement of Schedule 16 to the 32
Page 60
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Mining Act 1992 No 29 Schedule 16
Courts and Crimes Legislation Further Amendment Act 2010) 1
continue to apply in relation to a claim made under clause 23A of 2
Schedule 1 before that commencement. 3
Page 61
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 17 Amendment of Supreme Court Act 1970 No 52
Schedule 17 Amendment of Supreme Court Act 1970 1
No 52 2
Section 125 3
Insert after section 124: 4
125 Arrangements for exchange of information between Court and 5
foreign courts 6
(1) Rules may be made under this Act, or under the Civil Procedure 7
Act 2005, for or with respect to: 8
(a) the referral by the Court of a question as to the principles 9
of foreign law, or their application, to a foreign court for 10
information, advice or assistance (with or without the 11
consent of parties to proceedings), and 12
(b) the provision by the Court, to a foreign court, of 13
information, advice or assistance on a question as to the 14
principles of Australian law, or their application. 15
(2) In this section: 16
foreign court means a court of a country other than Australia. 17
foreign law means the law of a country other than Australia. 18
Page 62
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Victims Support and Rehabilitation Act 1996 No 115 Schedule 18
Schedule 18 Amendment of Victims Support and 1
Rehabilitation Act 1996 No 115 2
[1] Section 3 Objects of Act 3
Omit "punishable by imprisonment" from section 3 (c). 4
[2] Section 5 Act of violence 5
Omit section 5 (3). Insert instead: 6
(3) Except as provided by subsections (3A) and (3B), a series of 7
related acts is two or more acts that are related because: 8
(a) they were committed against the same person, and 9
(b) in the opinion of the Tribunal or compensation assessor: 10
(i) they were committed at approximately the same 11
time, or 12
(ii) they were committed over a period of time by the 13
same person or group of persons, or 14
(iii) they were, for any other reason, related to each 15
other. 16
(3A) An act is not related to another act if, in the opinion of the 17
Tribunal or compensation assessor, having regard to the 18
particular circumstances of those acts, they ought not to be 19
treated as related acts. 20
(3B) An act is not related to any earlier act in respect of which an 21
award of statutory compensation has been made if it occurs after 22
the award was made. 23
[3] Section 14 Compensation payable to primary victims other than for 24
expenses reimbursed under section 14A 25
Omit section 14 (3). Insert instead: 26
(3) Statutory compensation under this section is not payable for 27
financial loss to the extent that Victims Assistance has been 28
awarded for that loss. 29
[4] Section 14A Victims Assistance Scheme 30
Omit "statutory compensation for prescribed expenses" from section 14A (1). 31
Insert instead "Victims Assistance". 32
Page 63
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 18 Amendment of Victims Support and Rehabilitation Act 1996 No 115
[5] Section 14A (2) 1
Omit the subsection. Insert instead: 2
(2) Victims Assistance is a form of statutory compensation for actual 3
expenses incurred by a primary victim of an act of violence as a 4
direct result of the act of violence. 5
Note. Victims Assistance is payable to a primary victim who, due to the 6
threshold applying under section 20, is precluded from being awarded 7
statutory compensation referred to in section 14. Victims Assistance is 8
also payable to a primary victim who is not precluded from being 9
awarded statutory compensation referred to in that section. However, 10
see section 14 (3). 11
[6] Section 14A (3) 12
Omit "No statutory compensation is". 13
Insert instead "Victims Assistance is not". 14
[7] Section 14A (3) 15
Omit "statutory compensation for prescribed expenses". 16
Insert instead "compensation for the actual expenses concerned". 17
[8] Section 14A (4) 18
Omit the subsection. Insert instead: 19
(4) The regulations may make provision for or with respect to any of 20
the following: 21
(a) the maximum amount that a person may be awarded under 22
this section in respect of a particular kind of actual 23
expense, 24
(b) the particular kinds of actual expenses for which a person 25
may or may not be compensated under this section. 26
[9] Section 14A (5) 27
Omit "may be awarded to a primary victim as statutory compensation for 28
prescribed expenses". 29
Insert instead "a primary victim may be awarded under this section". 30
[10] Section 14A (6) and (7) 31
Omit "Statutory compensation for prescribed expenses" wherever occurring. 32
Insert instead "Victims Assistance". 33
Page 64
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Victims Support and Rehabilitation Act 1996 No 115 Schedule 18
[11] Section 14A (8) 1
Omit "statutory compensation for prescribed expenses". 2
Insert instead "Victims Assistance". 3
[12] Section 14A (8) 4
Omit "application for compensation". 5
Insert instead "application for Victims Assistance". 6
[13] Section 15 Compensation payable to secondary victims 7
Insert at the end of the section: 8
(2) Any secondary victim who dies ceases to be eligible for statutory 9
compensation. Any pending application made by or on behalf of 10
a secondary victim does not survive the death of the secondary 11
victim. 12
[14] Section 16 Compensation payable to family victims 13
Insert after section 16 (3): 14
(4) Any family victim who dies ceases to be eligible for statutory 15
compensation. Any pending application made by or on behalf of 16
a family victim does not survive the death of the family victim. 17
[15] Sections 18 (6), 19A (3), 20 (3), 29 (1AA), 35 (8), 35A (1) and 42 (1A) 18
Omit "statutory compensation for prescribed expenses" wherever occurring. 19
Insert instead "Victims Assistance". 20
[16] Section 21 Special payments for approved counselling services 21
Omit section 21 (3) and (3A). Insert instead: 22
(3) The Director may authorise payments for approved counselling 23
services for a victim (other than a family victim or relevant 24
family member): 25
(a) for a period of up to 10 hours of counselling (including 26
counselling for the purposes of an application for 27
continued counselling), and 28
(b) for such further periods of counselling as the Director may 29
consider appropriate. 30
(3A) Subject to the rules, the Director may consider a person to be a 31
victim (other than a family victim or relevant family member) 32
referred to in subsection (3), for the purposes of authorising 33
payments for an initial period of 2 hours of counselling for the 34
Page 65
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 18 Amendment of Victims Support and Rehabilitation Act 1996 No 115
person, if satisfied that counselling may assist in establishing 1
whether or not the person is a victim. 2
(3B) The Director must not authorise payments for more than a total 3
of 22 hours of counselling services for a person under 4
subsection (3) unless satisfied that there are exceptional reasons 5
for doing so. 6
[17] Section 21 (4) 7
Omit "Payments for approved counselling services for a victim who is a 8
family victim or relevant family member may be made:". 9
Insert instead "The Director may authorise payments for approved counselling 10
services for a victim who is a family victim or relevant family member:". 11
[18] Section 21 (6) 12
Omit the subsection. 13
[19] Section 21 (7) 14
Omit "an initial period". 15
Insert instead "up to 2 hours of the period". 16
[20] Section 21 (7) 17
Omit "the approval". Insert instead "the Director's authorisation". 18
[21] Section 21 (8) 19
Omit the subsection. Insert instead: 20
(8) A decision of the Director under this section that is made by a 21
delegate of the Director may be reviewed by the Director or 22
another delegate of the Director. Any other decision of the 23
Director under this section may be reviewed by a member of the 24
Tribunal. 25
[22] Sections 22 (3) and 53 (1) (b) 26
Omit "disposed of" wherever occurring. Insert instead "determined". 27
[23] Section 23 Eligibility to receive compensation in respect of same act of 28
violence 29
Omit "(except as provided by subsection (1A))" from section 23 (1). 30
Page 66
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Victims Support and Rehabilitation Act 1996 No 115 Schedule 18
[24] Section 23 (1A) and (1B) 1
Omit section 23 (1A) (including the note). Insert instead: 2
(1A) If a person's application for statutory compensation in respect of 3
an act of violence has been finally determined by the dismissal of 4
the application, the person is not eligible to receive an award of 5
statutory compensation by means of a further application that is 6
made: 7
(a) in respect of the same act of violence, and 8
(b) in the same capacity of primary victim, secondary victim 9
or family victim. 10
(1B) This section does not prevent a person from receiving: 11
(a) an award of statutory compensation to which section 14 12
applies in addition to an award of Victims Assistance in 13
respect of the same act of violence, or 14
(b) in a case where the person's application for Victims 15
Assistance has been dismissed--an award of statutory 16
compensation to which section 14 applies in respect of the 17
same act of violence, or 18
(c) in a case where the person's application for statutory 19
compensation to which section 14 applies has been 20
dismissed--an award of Victims Assistance in respect of 21
the same act of violence. 22
Note. However, section 14 (3) prevents a person from being granted 23
compensation for financial loss to the extent that Victims Assistance has 24
been awarded for that loss. Further, under section 14A (6), Victims 25
Assistance is not payable to a person who has already been awarded 26
statutory compensation to which section 14 applies in respect of the 27
same act of violence. 28
[25] Section 23A 29
Insert after section 23: 30
23A Claim may not be made for acts of violence occurring before 31
successful claim lodged 32
(1) A person is not entitled to claim statutory compensation in 33
respect of an act of violence (the uncompensated act of violence) 34
if: 35
(a) the Tribunal or a compensation assessor has at any time 36
awarded statutory compensation to the person in respect of 37
another act of violence, and 38
Page 67
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 18 Amendment of Victims Support and Rehabilitation Act 1996 No 115
(b) the uncompensated act of violence occurred before the 1
person lodged the application for statutory compensation 2
in respect of the other act of violence. 3
(2) However, subsection (1) does not prevent the person from 4
claiming statutory compensation in respect of the uncompensated 5
act of violence if the Tribunal or compensation assessor is 6
satisfied that: 7
(a) but for section 22 (2), the person would have claimed 8
statutory compensation before lodging the application in 9
respect of the other act of violence, or 10
(b) the case involves exceptional circumstances that justify an 11
exception being made to subsection (1). 12
(3) Subsection (1) does not prevent a person claiming statutory 13
compensation in the person's capacity as a family victim or under 14
section 33A in respect of funeral expenses. 15
(4) A reference in this section to a person who has lodged an 16
application for statutory compensation includes a reference to a 17
person on whose behalf such an application has been lodged. 18
[26] Section 26 Time for lodging applications 19
Omit section 26 (2A). Insert instead: 20
(2A) The Director must not give leave for the acceptance of an 21
application that is lodged out of time if: 22
(a) the application is for Victims Assistance, or 23
(b) except as provided by subsection (2B), the applicant is a 24
family victim of the relevant act of violence. 25
(2B) The Director may give leave for the acceptance of an application 26
that is lodged out of time by or on behalf of a family victim if the 27
Director is satisfied that, on the date on which the application was 28
lodged: 29
(a) the family victim was under 20 years of age, or 30
(b) no more than 2 years had elapsed since it was established 31
(whether or not by a court) that the primary victim through 32
whom the family victim's claim has been made died as a 33
direct result of the relevant act of violence. 34
(2C) However, the Director must not give leave under subsection (2B) 35
if a total amount of $50,000 by way of statutory compensation 36
has been awarded in respect of the relevant act of violence to one 37
or more of the following: 38
(a) the primary victim, 39
Page 68
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Victims Support and Rehabilitation Act 1996 No 115 Schedule 18
(b) any person whose claim was made through that primary 1
victim as a family or secondary victim, 2
(c) any person whose claim was made under section 33A in 3
respect of the funeral expenses of that primary victim. 4
Note. $50,000 is the maximum amount that the primary victim of an act 5
of violence and any other victims claiming through that victim are 6
together eligible to receive. (See section 19 (3). See also sections 16 (1) 7
and 33A (5).) 8
[27] Sections 26A and 26B 9
Insert after section 26: 10
26A Withdrawal of application 11
(1) An applicant for statutory compensation may, by written notice 12
to the Director, withdraw his or her application at any time before 13
the application is determined. 14
(2) The withdrawal of an application for statutory compensation 15
under this section does not prevent the applicant from making 16
another application for statutory compensation. 17
26B Lapsing of application if no contact 18
(1) If an applicant for statutory compensation has not made any 19
contact with the Director for 6 months, the Director may give 20
notice to the applicant stating that if the applicant does not 21
contact the Director by the date and in the manner specified in the 22
notice (being a date that is not less than 6 months after the 23
Director gives the notice), the application will lapse. 24
(2) If the applicant does not contact the Director by the date and in 25
the manner specified in the notice, the application lapses. 26
(3) The lapsing of an application under this section does not prevent 27
the applicant from making another application for statutory 28
compensation. 29
[28] Section 29 Determination of applications 30
Omit section 29 (1B). 31
[29] Section 29 (5) (a) 32
Omit "compensation for prescribed expenses". 33
Insert instead "Victims Assistance". 34
Page 69
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 18 Amendment of Victims Support and Rehabilitation Act 1996 No 115
[30] Section 35 Costs of applications for compensation and proceedings 1
before Tribunal 2
Omit section 35 (1). Insert instead: 3
(1) The Tribunal or a compensation assessor may award an applicant 4
for statutory compensation his or her costs in respect of the 5
application (whether or not proceedings are taken before the 6
Tribunal on appeal or otherwise) in accordance with such scale of 7
costs as may be prescribed by the rules. 8
[31] Section 35 (3) and (3A) 9
Omit section 35 (3). Insert instead: 10
(3) The Tribunal or a compensation assessor may award an applicant 11
costs in excess of the maximum amount provided for in the scale 12
of costs referred to in subsection (1) if of the opinion that the 13
special circumstances of the case justify such an award being 14
made. 15
(3A) The Tribunal or compensation assessor may decline to make an 16
award of costs or may award costs of a lesser amount than the 17
maximum amount provided for in the scale of costs referred to in 18
subsection (1). 19
[32] Section 35 (4) 20
Omit "amount payable in accordance with the scale of costs referred to in 21
subsection (1)". 22
Insert instead "amount awarded under this section". 23
[33] Section 35 (8), note 24
Insert after section 35 (8): 25
Note. As a consequence of this subsection, the Tribunal or a 26
compensation assessor does not have any discretion to award costs 27
relating to an application for Victims Assistance except where the 28
application has been determined in accordance with section 29 (1AA). 29
[34] Section 36 Appeal to Tribunal by applicant 30
Omit section 36 (1A) (including the note). Insert instead: 31
(1A) The applicant may not appeal to the Tribunal: 32
(a) for the correction of a miscalculation in the amount 33
awarded as Victims Assistance, or 34
Page 70
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Victims Support and Rehabilitation Act 1996 No 115 Schedule 18
(b) against a determination of a compensation assessor under 1
section 35 in relation to costs. 2
Note. An applicant may apply to the Director under section 35A for the 3
correction of a miscalculation in the amount awarded as Victims 4
Assistance. 5
[35] Section 37 Reference of application to Tribunal by assessor or by 6
Chairperson of Tribunal 7
Omit section 37 (1). Insert instead: 8
(1) If the compensation assessor dealing with an application for 9
statutory compensation considers that the application should be 10
determined by the Tribunal, the Director may refer the 11
application to the Tribunal for determination. 12
[36] Section 38 Determination by Tribunal of appeals and references 13
Omit section 38 (1) and (2). Insert instead: 14
(1) Except as provided by subsection (2), the Tribunal is to proceed 15
to determine a matter the subject of an appeal or reference to it 16
under this Division without a hearing. 17
(2) The Tribunal is to conduct a hearing into the matter if the 18
Tribunal is satisfied that it cannot properly determine the matter 19
without a hearing. Any such hearing is to be conducted in 20
accordance with Schedule 2. 21
[37] Section 38 (5) (b) 22
Omit "determined again". Insert instead "determined or re-redetermined". 23
[38] Section 42 Compensation Fund Corporation to pay compensation 24
Omit section 42 (1). Insert instead: 25
(1) An application for payment of the whole or any part of the 26
following is to be made to the Director: 27
(a) an award of statutory compensation (other than Victims 28
Assistance), 29
(b) an award of costs under section 35 (including any such 30
award made in respect of an application for Victims 31
Assistance that has been determined as an application for 32
Victims Assistance because of the operation of 33
section 29 (1AA)). 34
(1AA) The Director is to forward any such application to the 35
Compensation Fund Corporation. 36
Page 71
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 18 Amendment of Victims Support and Rehabilitation Act 1996 No 115
[39] Section 69 Payments from Compensation Fund 1
Omit "the Victims of Crime Bureau". Insert instead "Victims Services". 2
[40] Section 78 Application of Part 3
Omit section 78 (1). Insert instead: 4
(1) This Part applies to all offences (other than any offences of a class 5
prescribed by the regulations) that are dealt with by: 6
(a) the Supreme Court, or 7
(b) the District Court, or 8
(c) the Drug Court, or 9
(d) the Local Court, or 10
(e) the Land and Environment Court, or 11
(f) the Industrial Relations Commission in Court Session, or 12
(g) the Children's Court, or 13
(h) any other court prescribed by the regulations. 14
[41] Schedule 3 Savings, transitional and other provisions 15
Insert at the end of clause 1 (1): 16
Courts and Crimes Legislation Further Amendment Act 2010 17
[42] Schedule 3, Part 8 18
Insert after Part 7 of Schedule 3: 19
Part 8 Provisions consequent on enactment of 20
Courts and Crimes Legislation Further 21
Amendment Act 2010 22
31 Definition 23
In this Part: 24
amending Act means the Courts and Crimes Legislation Further 25
Amendment Act 2010. 26
32 Acts of violence 27
The amendments made to section 5 by the amending Act extend 28
to an act of violence that occurred before the commencement of 29
those amendments in respect of which an application for statutory 30
compensation: 31
(a) is lodged on or after that commencement, or 32
Page 72
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Victims Support and Rehabilitation Act 1996 No 115 Schedule 18
(b) was lodged, but not determined by the Tribunal or a 1
compensation assessor at any time, before that 2
commencement. 3
33 Victims Assistance Scheme 4
(1) In this clause, statutory compensation for prescribed expenses 5
has the same meaning as it had before the commencement of the 6
amendments to section 14A by the amending Act. 7
(2) Any application for statutory compensation for prescribed 8
expenses that was lodged, but not finally determined, before the 9
commencement of the amendments to section 14A by the 10
amending Act is to be dealt with under this Act as if it were an 11
application for Victims Assistance. 12
(3) Any application determined under subclause (2) is taken to have 13
been determined as an application for Victims Assistance. 14
(4) Any application for statutory compensation for prescribed 15
expenses that was finally determined before the commencement 16
of the amendments made to section 14A by the amending Act is 17
taken to have been finally determined as an application for 18
Victims Assistance. 19
34 Deceased secondary or family victims 20
Sections 15 and 16, as amended by the amending Act, extend to: 21
(a) any secondary victim or family victim who died before the 22
commencement of those amendments, and 23
(b) any application that was pending immediately before the 24
commencement of those amendments and was lodged by 25
or on behalf of a secondary victim or family victim who 26
died before, or who dies on or after, the commencement of 27
those amendments. 28
35 Approved counselling services 29
Section 21, as amended by the amending Act, extends to any 30
application for payment for approved counselling services that 31
was made to the Director before the commencement of those 32
amendments, but does not affect any decision made under that 33
section before that commencement. 34
36 Application of amendments to section 23 35
Section 23, as amended by the amending Act: 36
(a) extends to any person whose application for statutory 37
compensation was finally determined by the dismissal of 38
Page 73
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 18 Amendment of Victims Support and Rehabilitation Act 1996 No 115
the application before the commencement of those 1
amendments, and 2
(b) affects any further application made by or on behalf of the 3
person after that dismissal, whether the further application 4
was made before or after the commencement of those 5
amendments. 6
37 Application of section 23A 7
Section 23A, as inserted by the amending Act: 8
(a) extends to any person who, before the commencement of 9
that section, was awarded statutory compensation, and 10
(b) affects any claim for statutory compensation that was 11
made before that commencement, but was not determined 12
by the Tribunal or a compensation assessor at any time 13
before that commencement. 14
38 Family victims--time for lodging applications 15
Section 26, as amended by the amending Act, extends to any 16
application for statutory compensation that was lodged out of 17
time by or on behalf of a family victim, but was not the subject of 18
any determination by the Director under that section, before the 19
commencement of those amendments. 20
39 Withdrawal of applications 21
Section 26A, as inserted by the amending Act, extends to any 22
application for statutory compensation that was lodged, but not 23
finally determined, before the commencement of that section. 24
40 Lapsing of application if no contact 25
Section 26B, as inserted by the amending Act, extends to any 26
application for statutory compensation that was lodged, but not 27
finally determined, before the commencement of that section. 28
41 Costs for applications for compensation and proceedings before 29
the Tribunal 30
Section 35, as amended by the amending Act, extends to any 31
application for statutory compensation that was lodged before the 32
commencement of those amendments, but does not extend to any 33
application that was determined by the Tribunal or a 34
compensation assessor at any time before that commencement. 35
Page 74
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Victims Support and Rehabilitation Act 1996 No 115 Schedule 18
42 Appeals relating to costs 1
Section 36 (1A) (b), as inserted by the amending Act, extends to 2
an applicant whose application for statutory compensation was 3
lodged before the commencement of that paragraph, but does not 4
extend to any applicant whose application was determined by the 5
Tribunal or a compensation assessor at any time before that 6
commencement. 7
43 Determination by Tribunal of appeals and references 8
Section 38, as amended by the amending Act, extends to any 9
matter the subject of an appeal or reference to the Tribunal under 10
Division 6 of Part 2, before the commencement of those 11
amendments, but does not extend to any matter that the Tribunal 12
has proceeded to determine, but has not disposed of, before that 13
commencement. 14
44 Compensation levies 15
Section 78 (1), as inserted by the amending Act, extends to any 16
offence committed by a person before the commencement of the 17
subsection, whether or not the proceedings concerned were 18
commenced before that commencement, but does not extend to 19
an offence for which the person was convicted before that 20
commencement. 21
[43] Dictionary 22
Omit the definition of statutory compensation for prescribed expenses. 23
[44] Dictionary 24
Insert in alphabetical order: 25
Victims Assistance--see section 14A. 26
Page 75
Courts and Crimes Legislation Further Amendment Bill 2010
Schedule 19 Amendment of Victims Rights Act 1996 No 114
Schedule 19 Amendment of Victims Rights Act 1996 1
No 114 2
[1] Section 4 Definitions 3
Omit the definition of Victims Bureau. Insert instead: 4
Victims Services--see section 9. 5
[2] Section 6 Charter of rights for victims of crime 6
Omit "should" wherever occurring in items 6.16.16. Insert instead "will". 7
[3] Section 6, item 6.17 8
Omit "should be". Insert instead "is". 9
[4] Section 6, item 6.18 10
Insert after item 6.17: 11
6.18 Information about complaint procedure where Charter is breached 12
A victim may make a complaint about a breach of the Charter and 13
will, on request, be provided with information on the procedure 14
for making such a complaint. 15
[5] Section 7 Implementation of Charter 16
Omit section 7 (3). Insert instead: 17
(3) In this section, the administration of the affairs of the State 18
includes the following: 19
(a) the administration of justice, 20
(b) the provision of police services, 21
(c) the administration of any department of the Government, 22
(d) the provision of services to victims of crime by any person 23
or non-government agency funded by the State to provide 24
those services. 25
[6] Section 8 Legal rights not affected 26
Omit "the Victims Bureau" from section 8 (2). 27
Insert instead "Victims Services". 28
[7] Part 3, heading 29
Omit "Victims of Crime Bureau". Insert instead "Victims Services". 30
Page 76
Courts and Crimes Legislation Further Amendment Bill 2010
Amendment of Victims Rights Act 1996 No 114 Schedule 19
[8] Section 9 1
Omit the section. Insert instead: 2
9 Victims Services 3
Victims Services is that part of the Department of Justice and 4
Attorney General comprising the group of staff who are 5
principally involved in the administration of this Act and the 6
Victims Support and Rehabilitation Act 1996. 7
[9] Section 10 Functions of Victims Services 8
Omit "The Victims Bureau" from section 10 (1). 9
Insert instead "Victims Services". 10
[10] Section 10 (1) (c) 11
Insert ", including by publishing codes, guidelines and other practical 12
guidance on the implementation of the Charter" after "Rights". 13
[11] Section 11 Report to Parliament 14
Omit section 11 (1). Insert instead: 15
(1) Victims Services may, at any time, make a special report to the 16
Minister for presentation to Parliament on any matter arising in 17
connection with the exercise of its functions, including in 18
connection with the implementation of the Charter of Victims 19
Rights. 20
[12] Section 11 (2) 21
Omit "the Victims Bureau". Insert instead "Victims Services". 22
[13] Section 13 Membership and procedure of Victims Advisory Board 23
Omit "10 members" from section 13 (1). Insert instead "12 members". 24
[14] Section 13 (1) (a) 25
Omit "4 members". Insert instead "6 members". 26
Page 77
[Index] [Search] [Download] [Related Items] [Help]