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1998
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
* Amended in committee-see table at end of volume.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be proclaimed.
Clause 3 is a formal provision giving effect to the amendments in the
Schedules to the proposed Act.
Schedule 1
Amendment of Arbitration (Civil Actions) Act
1983
This Schedule introduces the option for rehearings by courts of civil actions
referred to arbitration to be limited in nature, rather than full rehearings. At
present, a rehearing can only be a full rehearing. A limited rehearing can be
limited to particular issues or other matters specified in the order for
rehearing. When an order for a limited rehearing is made, the award is
suspended and can be amended by the court after the rehearing. The
opportunity has been taken to recast the provisions relating to rehearings, and
to divide the Act into Parts for ease of reference.
Schedule 1 [l] divides the Act into Parts.
Schedule 1 [2] inserts a new section 16A, which provides that awards made
by an arbitrator are final, subject only to section 17 (where judicial review
can occur on the ground of lack of jurisdiction or denial of natural justice)
and to Part 3 (which deals with full or limited rehearings by the court that
originally ordered the reference of the action to arbitration). The section is
substantially the same as the present section 18 (1).
Schedule 1 [3] inserts a new Part 3, which sets out provisions for the
rehearing by courts of civil actions that had been referred to arbitration. The
Part is the same in substance as the present section 18 (2)(4), though
re-expressed and with additional provisions to deal with limited rehearings.
Schedule 1 [4] and [5] insert savings and transitional provisions relating to
the proposed amendments.
Schedule 2
Consequential amendment of Arbitration
(Civil Action) Regulation 1994
This Schedule makes amendments to the Regulation that are consequential on
the renumbering of provisions of the Arbitration (Civil Actions) Act 1983
effected by Schedule 1.
Explanatory note page 2
Schedule 3 Amendment of Compensation Court Act 1984
This Schedule makes provision for an acting Judge of the Compensation
Court to complete or continue to deal with part-heard matters after
completion of the term of the appointment as an acting Judge.
Schedule 4 Amendment of Coroners Act 1980
This Schedule makes several amendments to the Act.
Schedule 4 [2] omits section 34 (8), which prevents a coroner from
supplying a copy of a file to interested persons where the file relates to an
inquest or inquiry terminated under section 19 (where indictable offences are
involved). Schedule 4 [l] amends section 34 (6), so that the coroner may
give a direction in individual cases that such a file not be supplied.
Schedule 4 [3] amends section 44, so as to authorise a coroner to make an
order excluding persons from an inquest or inquiry, or to order that evidence
given at an inquest or inquiry not be published, if of the opinion that it is in
the public interest to do so. For this purpose, the coroner can have regard to
the administration of justice. national security or personal security, but not so
as to limit the matters to which the coroner can have regard.
Schedule 4 [4] makes it an offence to fail to comply with such an order.
Schedule 5 Amendment of Costs in Criminal Cases Act
1967
This Schedule makes the decision of the Director-General of the Attorney
General's Department final as to whether costs should be paid to a person
under the Act and, if so, the amount that is payable. At present, the Treasurer
has a discretion as to these matters.
Schedule 5 [ l ] inserts a definition of Director-General, to replace an
out-of-date definition.
Schedule 5 [2] replaces section 4 for the purpose mentioned above.
Schedule 5 [3] and [4] make minor amendments by way of statute law
revision.
Schedule 5 [5] gives the Director-General a power of delegation in
connection with functions under the Act, and inserts provisions of a savings
or transitional nature. Existing certificates under the Act are preserved.
Explanatory note page 3
Schedule 6 Amendment of Criminal Appeal Act 1912
This Schedule makes various amendments to the Act.
Schedule 1 [l] and [2] empower the Environment Protection Authority to
appeal to the Court of Criminal Appeal against sentences imposed by the
Supreme Court or the Land and Environment Court in proceedings for
environmental offences prosecuted by the Authority.
Schedule 1 [3] inserts express provisions into the Act in connection with the
manner in which the Court of Criminal Appeal exercises its powers, based on
provisions that apply to the Court of Appeal, setting out the procedures for
majority decisions. Proposed section 21A (3) enables a decision of the Court
to be given despite the death of one or more judges involved in the case, so
long as a majority of the remaining judges are in agreement. Proposed section
21A (4) enables the Court when dismissing an appeal to give reasons for a
decision in short form. if the Court is of the unanimous decision that the
appeal does not raise any questions of general principle.
Schedule 7 Amendment of Criminal Procedure Act 1986
This Schedule provides for proceedings for contempt of court to be instituted
in the name of the "State of New South Wales", by the Attorney General or
(under delegation) by the Solicitor General or Crown Advocate.
The amendment will be capable of extending to civil contempt, although the
Act generally only deals with criminal matters. Civil contempt has been
regarded as quasi-criminal in nature. For example, the High Court suggested
that "all contempts should be punished as if they are quasi-criminal in
character" Australasian Meat Industry Employees' Union v Mudginberri
Station Pty Ltd ( 1986) 161 CLR 98, 109.
Schedule 8 Amendment of Crown Advocate Act 1979
This Schedule authorises the Attorney General to delegate functions to the
Crown Advocate, in a manner similar to that available for delegations to the
Solicitor General.
Schedule 9 Amendment of Crown Proceedings Act 1988
This Schedule removes an unlikely argument that proceedings can be brought
under the Act against the Crown for matters that do not affect the Crown.
contrary to the clear intention of the Act.
Explanatory note page 4
Schedule 10 Amendment of District Court Act 1973
This Schedule provides that an appeal to the Supreme Court (ie the Court of
Appeal) from a judgment or order of the District Court on an application for
summary judgment under the rules of the District Court can only be made
with the leave of the Supreme Court. This will bring these appeals from the
District Court into line with similar appeals from Divisions of the Supreme
Court (section 101 (2) (l) of the Supreme Court Act 1970).
Schedule 11 Amendment of Dust Diseases Tribunal Act
1989
This Schedule brings the provisions relating to appeals to the Supreme Court
(ie the Court of Appeal) from decisions of the Dust Diseases Tribunal into
line with those relating to appeals from the Compensation Court. Thus
appeals will lie from decisions of the Tribunal only on points of law and on
questions as to the admission or rejection of evidence, and appeals from final
decisions will only be made with the leave of the Supreme Court, unless the
appeals involve amounts of $20,000 or more.
Schedule 12
Consequential amendment of Fines
Regulation 1997
This Schedule omits a provision that has been superseded by amendments
made to the Justices Act 1902 by the proposed Act.
Schedule 13 Amendment of Industrial Relations Act 1996
This Schedule makes provision for an acting Deputy President, acting
Commissioner or acting judicial member to complete or continue to deal with
part-heard matters after completion of the term of the acting appointment.
Schedule 14 Amendment of Judgment Creditors'
Remedies Act 1901
This Schedule confers on the District Court and a Local Court the same
powers with respect to enabling a prospective purchaser of land under a writ
of execution to inspect the land as are presently exercised by the Supreme
court.
Schedule 15 Amendment of Jury Act 1977
This Schedule creates an offence of threatening an employee with dismissal
from, injury in, or prejudice to, employment because of a jury summons. At
present there is an offence limited to actual dismissal, injury or employment.
Explanatory note page 5
Schedule 16
Amendment of Justices Act 1902
This Schedule makes several amendments to the Act.
Schedule 16 [ l ] inserts in section 3 a definition of authorised justice that had
earlier been omitted by the repeal of section 86A. Schedule 16 [5] omits
from section 80AA a definition of the expression that refers to section 86A.
Schedule 16 [4] and [6] deal with the right of an accused person who is
served with a summons or attendance notice to notify a plea in writing, as
contemplated by the Justices Amendment (Procedure) Act 1997. The
proposed amendments will enable information about this right to accompany
the summons or notice, rather than be set out in it.
Schedule 16 [7] empowers the Local Court Rule Committee to make rules
relating to the practice and procedure of Local Courts. The Rule Committee
is proposed to be established under the Local Courts Act 1982, as amended
by the proposed Act. Schedule 16 [2] inserts a definition of the Rule
Committee. Schedule 16 [3] omits the current section that authorises the
making of general rules (existing rules are taken to have been made by the
Rule Committee).
Schedule 17
Consequential amendment of Justices
(General) Regulation 1993
This Schedule is consequential on amendments proposed to be made to the
Justices Act 1902 by the proposed Act. The amendments in this Schedule
continue the prescription of prescribed offices for the purposes of the
definition of authorised justice, made necessary by the new location of that
definition in the Justices Act 1902.
Schedule 18
Amendment of Land and Environment Court
Act 1979
This Schedule makes two amendments to the Act.
Schedule 18 [l] makes provision for an acting Judge of the Land and
Environment Court to complete or continue to deal with part-heard matters
after completion of the term of the appointment as an acting Judge.
Schedule 18 [2] enables provisions of the Legal Profession Act 1987 relating
to the assessment of costs to be applied where the Land and Environment
Court orders the payment of costs in criminal matters.
Explanatory note page 6
Schedule 19 Consequential amendment of Legal
Profession Act 1987
This Schedule makes an amendment that is consequential on an amendment
to the Land and Environment Court Act 1979 to be made by the proposed
Act. The amendment will make it clear that regulations can be made under
the Land and Environment Court Act 1979 to apply provisions of the Legal
Profession Act 1987 in the assessment of costs in criminal cases even though
the latter Act itself contains a provision excluding the application of relevant
provisions to criminal cases.
Schedule 20
Amendment of Liquor Act 1982
This Schedule enables regulations to be made applying provisions of the
Justices Act 1902 to the Licensing Court, with or without modifications. This
will clarify the relationship between the two Acts.
Schedule 21
Amendment of Local Courts Act 1982
This Schedule establishes the Local Court Rule Committee and the Local
Court (Civil Claims) Rule Committee. The latter committee is currently
established under the Local Courts (Civil Claims) Act 1970, and the former
committee is a new committee, whose responsibility will be to make rules
under the Justices Act 1902.
Schedule 22
Amendment of Local Courts (Civil Claims)
Act 1970
This Schedule makes amendments that are consequential on the proposed
relocation of the provisions for the establishment of the Local Court (Civil
Claims) Rule Committee in the Local Courts Act 1982.
Schedule 23
Amendment of Supreme Court Act 1970
This Schedule makes amendments that will enable appeals from the Dust
Diseases Tribunal as to the amount of compensation awarded, and
applications for leave to appeal from any court or tribunal in an interlocutory
matter. to the Court of Appeal to be heard by two Judges of Appeal. In the
case of such an interlocutory matter, it will be possible for the application for
leave and the appeal itself to be heard by the same two Judges of Appeal.
Explanatory note page 7