Northern Territory Explanatory Statements

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JUSTICE LEGISLATION AMENDMENT BILL 2007


GENERAL OUTLINE

This Bill amends various Acts within the Justice portfolio and makes a number of consequential amendments to other Acts.

The Agents Licensing Act is amended so as to permit the Agents Licensing Board, when assessing applications for a licence under the Act from persons who do not hold the prescribed educational qualifications, to require the applicant (at the applicant’s expense) to have their skills and experience assessed by a registered training organisation on the basis of “recognition of prior learning”;

The Anti-Discrimination Act is amended to make it clear that the exemption from certain provisions of the Act for certain associations (ie not-for-profit community based organisations) applies not just to staff or employees etc of the association, but also to the association itself;

The Business Tenancies (Fair Dealings) Act is amended so that the Act (other than Part 13) does not apply to leases to a tenant that is a foreign listed public company or a subsidiary of such a company;

The Criminal Code is amended so as to -
(i) allow another Judge to continue a part-heard criminal trial in circumstances where the original trial Judge has become incapable of proceeding with the trial;
(ii) allow a jury to separate, at the court's discretion, at any adjournment of the court, including after they have retired to consider their verdict;
(iii) to change the order of counsel’s addresses at the end of criminal trials, allowing the accused person (or their counsel) to address the jury last at the end of a criminal trial, subject to any need for corrections on the facts.

The Domestic Violence Act is amended to re-insert the penalty for a first breach of a restraining order.

The Juries Act is amended to provide that the prohibition on a juror disclosing information gained in the course of jury deliberations does not apply in circumstances where a juror is consulting a medical practitioner or registered psychologist for treatment.

The Vexatious Proceedings Act is amended so that the name of a “vexatious litigant” can be removed from the register created under the Act if the Registrar is satisfied that the person named in the order has died.

Various technical amendments are made to the
Victims of Crime Assistance Act 2006, along with a number of amendments to other Acts consequential upon the enactment of that Act.

NOTES ON CLAUSES
PART 1 – PRELIMINARY MATTERS

Clause 1. Short Title.

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Justice Legislation Amendment Act 2007.
PART 2 – AMENDMENT OF AGENTS LICENSING ACT

Clause 2. Act amended.

The Act being amended in this Part is the Agents Licensing Act.

Clause 3. Amendment of section 29 (Grant or refusal of licences).

This clause amends section 29 so that the Agents Licensing Board may require an applicant for a licence under the Act, who does not automatically meet the prescribed educational requirements, to undergo, at their own expense, an assessment to assist in establishing their eligibility to hold a licence. This assessment of the person’s competency will be based on their previous qualifications and experience. A registered training organisation, as defined in the Northern Territory Employment and Training Act, would conduct the assessment.
PART 3 – AMENDMENT OF ANTI-DISCRIMINATION ACT

Clause 4. Act amended.

The Act being amended in this Part is the Anti-Discrimination Act.

Clause 5. Amendment of section 41 (Discrimination in goods, services and facilities area).

The Act is amended to make it clear that an exemption from compliance with certain requirements of the Act under section 41 extends, not only to persons who provide goods, services or facilities for, or on behalf of, an association that is established for purposes including social, literary, cultural, political purposes (and so on see subsection 41(2)(a)) on a not-for-profit basis, but also to the association itself.
PART 4 – AMENDMENT OF BUSINESS TENANCIES (FAIR DEALINGS) ACT 2003

Clause 6. Act amended.

The Act being amended in this Part is the Business Tenancies
(Fair Dealings) Act.

Clause 7. Amendment of section 6 (Certain retail shops excluded from operation of Act).

This clause extends the exclusion from the operation of the Act (except under Part 13 of that Act) from companies listed on the
Australian Stock Exchange, and their subsidiaries, to include foreign listed companies and their subsidiaries. Consequential amendments are also made to the Interpretation Act.
PART 5 – AMENDMENT OF CRIMINAL CODE

Clause 8. Act amended.

This Part amends the Criminal Code.

Clause 9. Repeal and substitution of section 363.

This clause repeals and replaces the existing section 363. The new section sets out the rules that govern the order in which the parties in a criminal trial address the jury, both at the beginning of the trial and at the conclusion of evidence.

It provides, that the accused, or their representative, shall address the jury last at the conclusion of evidence. This is subject to the court’s power to grant leave to the prosecution to make a supplementary address if the accused raises relevant facts in their final address that are not supported by the evidence before the jury.

The clause provides for the process to be followed where there is more than one accused person on trial at the one time. It also allows the presiding Judge to depart from any of the rules set out in the section if they are of the opinion that a departure is warranted in the circumstances.

Clause 10. Amendment of section 365 (Jury not to separate).

This amendment gives the court the discretion to permit the jury to separate at any adjournment of the court. This extends to when the jury has adjourned to consider its verdict.

The clause also allows the court to make any direction in relation to the conduct of the jury whilst they are separated, or in relation to the separation.

Clause 11. Amendment of section 366 (Confinement of jury).

The amendment to section 366 makes it clear that the discretion under section 365 extends to the confinement of the jury under section 366.

Clause 12. Repeal and substitution of section 372.

Clause 13 allows another judge to continue a part-heard criminal trial in circumstances in which a fellow judge has become incapable of proceeding with the trial. The exercise of this power is discretionary, to be determined by the Chief Justice, or acting Chief Justice after hearing submissions from the parties. Where it is exercised, previous rulings made in the course of the trial by the initial judge will stand, except where further evidence or other matters come to light which would have led to the initial ruling being revisited in the usual course of events.

Before making a decision as to whether or not the trial will continue the Chief Justice or acting Chief Justice can make any appropriate orders on matters such as adjournment of the trial, pertaining to the jury or bail for the accused. It is envisaged that such orders may well be made in chambers.

The clause also provides that when an incapacitated judge is not replaced in a reasonable time the jury must be discharged. Where an accused is in custody, they will be remanded, pending further hearing. The rights of the accused in relation to bail remain unchanged and are the same as they were at the original committal for trial. This provision has not been substantively altered through this amendment.

Clause 13. Repeal of Schedule 4.

Clause 14 repeals Schedule 4 of the Criminal Code. This is consequential to the amendments to section 363.
PART 6 – AMENDMENT OF DOMESTIC VIOLENCE ACT

Clause 14. Act Amended.

The Act being amended in this Part is the Domestic Violence Act.

Clause 15. Amendment of section 10 (Breach of order).

This amendment re-inserts the maximum penalty for a first offence.


PART 7 – AMENDMENT OF INTERPRETATION ACT

Clause 16. Act amended.

The Act being amended in this Part is the Interpretation Act.

Clause 17. Amendment of section 17 (Definitions).

Amendments under clause 16 are consequential to amendments to the Business Tenancies (Fair Dealings) Act in clause 8 of this Bill.
PART 8 – AMENDMENT OF JURIES ACT

Clause 18. Act amended.

The Act being amended in this Part is the Juries Act.

Clause 19. Amendment of section 49A (Confidentiality of jury deliberations).

This amendment makes it clear that former jurors are not prohibited from disclosing information gained in the course of jury deliberations where the person is consulting a registered medical practitioner or psychologist for treatment, and the treatment relates to issues arising out of service as a juror.

The amendment recognises that jury service can be traumatic and jurors may require medical or psychological assistance after they have completed their jury service.

To preserve the information from further disclosure, except where disclosure is necessary for the health or welfare of the former juror, it will be an offence for the medical practitioner or psychologist to disclose the information to anyone else. The exception in this offence ensures that referrals can occur as can discussion of the case where necessary.

Clause 20. Amendment of section 49B (Anonymity of jurors).

The rationale for this amendment is the same as that for section 49A, and also includes an offence provision.
PART 9 – AMENDMENT OF VEXATIOUS PROCEEDINGS ACT 2006

Clause 21. Act amended.

The Act being amended in this Part is the Vexatious Proceedings Act.

Clause 22. Amendment of section 9 (Notification and register of orders).

This amendment requires the Registrar of the Supreme Court to remove a vexatious proceedings order in the name of a deceased person from the publicly available register of vexatious litigants
PART 10 – AMENDMENT OF VICTIMS OF CRIME ASSISTANCE
ACT 2006

Clause 23. Act amended.

The Act being amended in this Part is the Victims of Crime Assistance Act 2006 (“the VOCA Act”).

Clause 24. Amendment of long title.

This clause simplifies the long title. Given that the VOCA Act has an objects clause, it is more appropriate for the detail to be included in that clause rather than the long title.

Clause 25. Amendment of section 4 (Definitions).

This clause makes various amendments to the definitions.

It amends the definitions of “compensable injury”, “financial assistance” and “standard amount” to reflect changes in numbering and wording in other sections of the Act.

It also inserts a new definition of “compensable violent act” relevant to the amendments in clauses 25 and 26.

The clause also amends the definition of “medical expenses” to include expenses for medical reports relating to an injury.

Clause 26. Amendment of section 5 (Violent act).

This clause omits and substitutes current section 5(1) of the VOCA Act which defines in detail the term “violent act”. Applicants must establish that they are a victim of a “violent act”, as defined, in order to be eligible for counselling or financial assistance under the Act.

The amendment is to allow the term to be used in relation to either violent acts that are “compensable violent acts” or violent acts that result in a “compensable injury”. That is, for offences defined as compensable violent acts there will be no need to prove the injury.

Clause 27. Repeal and substitution of section 7 (Compensable injury and standard amount).

This clause repeals and substitutes section 7 of the VOCA Act which currently sets out the meaning of “compensable injury” and
“standard amount”. The meanings will remain substantially the same; however, the clause also inserts an additional subsection setting out the meaning of the new concept of “compensable violent act”.

“Compensable violent acts” are to be defined as criminal acts that are prescribed by regulation. In respect of this category there is no requirement that a victim is actually physically or mentally injured. Certain sexual offences will therefore be prescribed under the regulations as compensable violent acts.

Clause 28. Amendment of section 9 (Primary victim).

This clause omits and substitutes section 9(1) which sets out the meaning of “primary victim” under the VOCA Act. Currently, a primary victim is a person who suffers an injury or dies as a direct result of a violent act. As the concept of “compensable violent act” is now being introduced to clarify that a victim of a prescribed sexual assault need not show that they have been injured by the assault, it is necessary to include a second arm of the definition of “primary victim” that does not necessarily require that the primary victim suffers an injury or dies.

The new section 9(1) is therefore being split into two parts relating to, first, primary victims of a violent act that is a “compensable violent act” and, secondly, primary victims of any other “violent act”, in which case they must have suffered an injury or died.

Clause 29. Amendment of section 10 (Primary victim’s eligibility to apply for assistance).

This clause omits and substitutes section 10(4) which relates to the eligibility of a primary victim for financial assistance for one or more compensable injuries. The new subsection extends eligibility to victims of “compensable violent acts” and clarifies that they will be eligible for financial assistance for either the mere commission of the violent act or for the compensable injuries they have suffered.

This amendment ensures that victims of “compensable violent acts”
(i.e. prescribed by regulation or as defined in the Act) will be able to elect to apply for assistance for the compensable violent act itself or for their actual injuries. The compensable violent acts will be prescribed in the Schedule to the Regulations and the amount of assistance will be set out in categories depending on what type of sexual offence was committed. If the victim chooses to apply for assistance for their injuries, they will have to prove their injuries and the Assessor will instead determine the level of assistance according to the amount for each injury as set out in the Schedule to the Regulations.

Clause 30. Amendment of section 26 (Application to Director for immediate payment).

This clause amends section 26(2)(a) which sets the time limit for making applications for immediate assistance. This amendment clarifies that for applications made in relation to a
“compensable violent act” the time limit is to be two years after the act occurred. However, in relation to all other applications, the time limit will be two years after the relevant injury or death. This difference is due to the fact that it is not necessary to establish an injury or death for “compensable violent acts”.

Clause 31. Amendment of section 31 (Time limit for lodging application).

This clause amends section 31(1) in relation to general applications for financial assistance. It is similar to the amendment to section 26(2)(a) above. General applications relating to compensable violent acts are to be made within two years after the violent act occurred and general applications relating to any other violent acts are to be made within
two years after the relevant injury or death.

Clause 32. Amendment of section 32 (Form of application).

This clause amends section 32 which sets out the information that an applicant must include in their application. Section 32((1)(e) is being omitted and substituted to clarify that a description of the injury only needs to be included in the application if the victim is not applying in relation to a compensable violent act. This is because victims of compensable violent acts i.e. prescribed sexual offences, do not have to prove their injury.

This clause also makes a minor change to section 32(1)(j) to reflect that fact that legal proceedings may be brought in relation to an applicants “violent act” as well as their injury, death or financial loss.

This clause also inserts a new section 32(2) which clarifies that even if a victim is applying in relation to a compensable violent act they may still include a description of their injuries resulting from the violent act. This is because the financial assistance available for each compensable violent act will be set out in the Schedule to the Regulations as a specified range. If the application does not include a description of the victim’s injuries, the assessor will be entitled to award the lower end of the range. Even if the victim does not describe their injury, this does not stop the assessor from awarding an amount higher in the range if the circumstances of the offence warrant it. However, it will be up to the applicant whether they want to include evidence of their injury or not.

Clause 33. Amendment of section 35 (Examination of and report about applicant).

This clause inserts a new section 35(4) to clarify that the section only applies to applications made in relation to compensable injuries. If a victim is applying under a “compensable violent act” category and not for the injury or injuries suffered, the assessor will not need to order any additional medical examination as the victim is entitled to financial assistance for the “compensable violent act” regardless of whether the victim suffered an injury.

Clause 34. Repeal and substitution of section 37 (Matters to be established initially).

This clause repeals and substitutes section 37 which accommodates the introduction of the concept of “compensable violent act”.
Section 37, as currently drafted, requires that an applicant must, among other things, satisfy the assessor that he or she has suffered an injury. However, with the introduction of “compensable violent act” in relation to some sexual assault offences, the applicant need not establish an actual injury. The new section 37 will therefore omit this requirement.

The new section will not change the position in relation to subsection (2) which makes it clear that a victim can be awarded financial assistance under the VOCA Act even if no person has been charged with or found guilty of the violent act or if a person has been charged with or found guilty but of a different violent act.

Clause 35. Further amendments.

This clause provides that the amendments set out in the Schedule 1 to the Bill are to have effect. These amendments are mostly minor technical amendments consequential to the introduction of “compensable violent act”. There are also a small number of technical amendments to address some typographical errors such as a reference to the wrong Division of the VOCA Act.
PART 11 – MINOR AND CONSEQUENTIAL AMENDMENT OF LAWS

Clause 36. Amendment of laws.

This clause brings into effect the technical, statute law review amendments to various laws included in Schedule 2.
SCHEDULE 1
SCHEDULE 2

 

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