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1
Justice and Other Legislation (Miscellaneous Provisions)
JUSTICE AND OTHER LEGISLATION
(MISCELLANEOUS PROVISIONS) BILL
1997
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The proposed Bill contains minor or technical amendments to
approximately 18 statutes administered by the Department of Justice as well
as several other statutes coming under the portfolio responsibilities of the
Honourable the Premier, the Honourable the Minister for Transport and
Main Roads, the Honourable the Minister for Training and Industrial
Relations and the Honourable the Minister for Natural Resources.
Reasons for the objectives and how they will be achieved
The Department of Justice is responsible for the administration of over
170 statutes and, as a result, there is a necessity for a large number of minor
or technical amendments to be regularly made to various legislative
provisions to ensure that the statutes continue to operate in the manner
intended.
To ensure this occurs, from time to time, a departmental miscellaneous
provisions Bill is prepared so that the minor or technical amendments
needed can be effected by means of one statute. This ensures that much
needed statutory reform is not delayed and the time of the Parliament is not
unnecessarily expended on dealing with a number of disparate pieces of
legislation each of which would be of a relatively minor nature.
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Justice and Other Legislation (Miscellaneous Provisions)
These amendments have several elements in common:
1. They relate mostly to statutes administered by the
Attorney-General and Minister for Justice;
2. They have the purpose of increasing operational efficiency in
various State Government departments;
3. They do not modify the major underlying philosophy or direction
of statutes being amended.
Administrative cost to Government of implementation
The amendments will result in increased efficiencies and greater
flexibility in various State Government departments and agencies. In
particular, it will increase efficiencies in the operation of the Public Trust
Office and the Queensland Police Service.
Fundamental legislative principles
Overall this Bill does not contain any significant breaches of fundamental
legislative principles.
Consultation
The following bodies/persons have been consulted in relation to that part
of this Bill which relates to their concerns/issues:
· The Public Trustee
· Queensland Police Service
· Director of Public Prosecutions
· Crown Solicitor
· Insurance and Superannuation Commission, and
· Australian Taxation Office.
All parties consulted agreed to the content of this Bill so far as it relates to
their concerns/issues.
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Justice and Other Legislation (Miscellaneous Provisions)
NOTES ON PROVISIONS
The format to this statute follows the same format for previous
departmental "Miscellaneous Provisions Acts"; that is:
· There is a long and short title; and
· The Act is divided into Parts, each Part containing within it all the
matters (amendments) relevant to a statute for which the
Department of Justice has administrative responsibility or which
are related to the administrative functions within the department,
and depending on the statute other departments such as the
Department of Premier and Cabinet, Department of Transport,
the Department of Natural Resources and the Department of
Training and Industrial Relations.
Part 1--Preliminary
Clause 1 sets out the short title of the Act.
Clause 2 is the commencement provision which provides various
commencement dates for certain parts of the Bill and the remaining parts
commence on a date to be fixed by proclamation.
Clause 3 inserts Schedule 1 containing minor amendments to the
Criminal Law Amendment Act 1997.
Clause 4 inserts Schedule 2 which contain various declaratory
provisions.
Part 2--Amendment of Associations Incorporations Act
1981
Clause 5 provides for the amendment of the Associations
Incorporations Act 1981.
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Justice and Other Legislation (Miscellaneous Provisions)
Clauses 6 and 7 insert new provisions preventing persons, who had been
convicted of an indictable offence or an offence punishable on summary
conviction for which the person is sentenced to imprisonment, from
eligibility and service as a member of the incorporated association's
management committee.
Part 3--Amendment of Bail Act 1980
Clause 8 provides for the amendment of the Bail Act 1980.
Clause 9 makes a technical amendment to section 29(2) of the statute to
confirm the role of the higher court by inserting the term "court" rather than
just the Magistrates Court.
Part 4--Amendment of Bills of Sale and Other Instruments
Act 1955
Clause 10 provides for the amendment of the Bills of Sale and Other
Instruments Act 1995.
Clauses 11 to 16 inclusive are inserted to clarify the application of the
statute to mortgages which are also regulated by the Consumer Credit Code
(which commenced throughout mainland Australia on 1 November 1996)
and thereby avoiding serious conflict and dual regulation.
Part 5--Amendment of Childrens Court Act 1992
Clause 17 provides for the amendment of the Childrens Court Act 1992.
Clause 18 amends section 20(2) of the statute which enables the court to
allow certain persons to be present at a proceeding in relation to a child
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Justice and Other Legislation (Miscellaneous Provisions)
including a representative of the mass media. This amendment qualifies
this admission into the court by preventing a member of the mass media
from being present under Part 6 or 7 of the Children's Services Act 1965.
Part 6--Amendment of Crimes (Confiscation) Act 1989
Clause 19 provides for the amendment of the Crimes (Confiscation) Act
1989.
Clause 20 clarifies the operation of section 40(15) of the statute by
omitting "specified property" in paragraphs (c), (d) and (e) and inserting
"property mentioned in the order". This will have the effect of ensuring
that these paragraphs correlate with sections 40(3)(a) to (e) of the statute.
Part 7--Amendment of Criminal Code
Clause 21 provides for the amendment of the Criminal Code.
Clause 22 omits sections 238 to 241 inclusive of the Criminal Code and
inserts four replacement provisions which deal with the contamination of
goods, hoax contamination of goods and dealing in contaminated goods and
one section to define "contaminate" and "goods".
Clause 23 omits section 259 of the Criminal Code which is concerned
with the examination of accused persons in custody. This amendment will
provide the Queensland Police Service with the appropriate authority to call
on others to assist in searching prisoners, particularly for those police
officers working in the rural and remote parts of the State.
Clause 24 amends section 359 to include an alternative element of intent
to cause public alarm or anxiety.
Clause 25 amends section 651 by omitting "28 days" and inserting "1
calendar month".
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Justice and Other Legislation (Miscellaneous Provisions)
Part 8--Amendment of Criminal Investigation
(Extra-Territorial Offences) Act 1985
Clause 26 provides for the amendment of the Criminal Investigation
(Extra-Territorial Offences) Act 1985.
Clause 27 updates the legal definition of "appropriate authority" in
section 2 of the statute.
Clause 28 provides for the amendment of section 7 in the statute by
clearly stating that section 39 of the Justices Act 1886 need only be used if
the owner of the object is unknown or cannot be reasonably located and to
provide the Commissioner of Police with the power of delegation under an
arrangement made under the statute.
Part 9--Amendment of Criminal Law Amendment Act 1997
Clause 29 provides for the amendment of the Criminal Law Amendment
Act 1997.
Clause 30 inserts new provisions to cater for the summary determination
for indictable offences.
Clause 31 inserts a new provision in section 118 which provides that the
Supreme and District Courts will still have jurisdiction to deal with simple
offences despite the time which has elapsed from the time when the matter
of complaint of the charge arose.
Part 10--Amendment of Evidence Act 1977
Clause 32 provides for the amendment of the Evidence Act 1977.
Clause 33 omits section 55(1) amends the other subsections by inserting
new provisions which sets out a new procedure concerning the submission
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Justice and Other Legislation (Miscellaneous Provisions)
of evidence on whether a company is not incorporated or registered, or no
longer incorporated or registered. This new provision will cover the three
situations of summary trials, criminal proceedings and trials on indictment.
Part 11--Amendment of Jury Act 1995
Clause 34 provides for the amendment of the Jury Act 1995.
Clause 35 amends section 70(1) of the statute to ensure that information
which identifies or is likely to identify a person as, or as having been, a
juror, in a particular proceeding is confidential information about jury
deliberation and therefore covered under the statute. In carrying out this
amendment, this statute will totally conform with the draft Bill approved by
the Standing Committee of Attorneys-General.
Part 12--Amendment of Justice Legislation (Miscellaneous
Provisions) Act 1996
Clause 36 provides for the amendment of the Justice Legislation
(Miscellaneous Provisions) Act 1996.
Clause 37 clarifies the amendment of section 16 of that statute which is
concerned with the insertion of the new section 5 of the Cremation Act 1913
which provides for the conditions to cremate.
Part 13--Amendment of Justices Act 1886
Clause 38 provides for the amendment of the Justices Act 1886.
Clause 39 amends section 47 of the statute which requires that unless
otherwise provided, when assessing penalty in respect of a simple offence,
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Justice and Other Legislation (Miscellaneous Provisions)
a circumstance of aggravation should be stated in the complaint except
where the circumstance is a previous summary conviction. The purpose of
this amendment is to require that, if the circumstance is that the defendant
has been previously convicted of an offence, the alleged previous conviction
must be stated in a notice served with the complaint.
Clause 40 provides for the amendment of section 54 of the statute to
require lodgement within three days of the summons being issued so as to
allow the court more time to refer appropriate matters to alternative dispute
resolution such as mediation. It strengthens the operation of section 53 of
the statute which allows justices (including clerks of the court) to refer
appropriate matters to mediation instead of issuing a summons.
Clause 41 amends section 110A of the statute which provides that a
written statement shall not be tendered in committal proceedings in lieu of
testimony unless "it has been signed by the person making it and it contains
a declaration by that person under the Oaths Act 1867". This amendment
will give effect to a dual system which will enable the tendering of a
statement which contains an acknowledgement by the person making the
statement.
Part 14--Amendment of Juvenile Justice Act 1992
Clause 42 provides for the amendment of the Juvenile Justice Act 1992.
Clause 43 inserts a new provision in section 18F of the statute to provide
that the Worker's Compensation Act 1990 applies to a child performing
work in a program arranged under section 18F.
Clause 44 makes a technical amendment to section 200 of the statute
which will place beyond doubt that a court can order a person in charge of a
youth detention centre to produce a detained child before the court.
Part 15--Amendment of Native Title (Queensland) Act 1993
Clause 45 provides for the amendment of the Native Title (Queensland)
Act 1993.
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Justice and Other Legislation (Miscellaneous Provisions)
Clause 46 ensures that native title rights and interests may continue to be
acquired for public purposes under the State Compulsory Acquisition Acts
until suitable amendments are made to the Acquisition of Land Act 1967.
Part 16--Amendment of Peace and Good Behaviour Act
1982
Clause 47 provides for the amendment of the Peace and Good
Behaviour Act 1982.
Clause 48 amends section 4 of the statute to allow the referral of certain
complaints to mediation.
Part 17--Amendment of Penalties and Sentences Act 1992
Clause 49 provides for the amendment of the Penalties and Sentences
Act 1992.
Clause 50 provides for a technical amendment to section 162 so as to
place all of the conditional offences into one subsection; that is, into a new
subsection 162(b) under the definition of "violent offence".
Part 18--Amendment of Public Trustee Act 1978
Clause 51 provides for the amendment of the Public Trustee Act 1978.
Clause 52 inserts a new definition of "common fund" into section 6 of
the statute.
Clause 53 amends section 16 of the statute to allow the Official Solicitor
to act for clients other than the Public Trustee.
Clause 54 makes an amendment to section 19 which is consequential as
a result of the new definition of "common fund" in section 6 of the statute.
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Justice and Other Legislation (Miscellaneous Provisions)
Clause 55 makes a technical amendment to section 60 of the statute to
enable the Public Trustee to investigate a trust if, in the Public Trustee's
opinion, the person's interests are, or may be, adversely affected by the
trust's operation.
Clause 56 and 57 amend sections 67 and 68 of the statute to enable a
District Court to have a power to make protection orders under the statute.
Clause 58 removes the monetary limitations placed on the Public Trustee
in relation to the powers under section 80 of the statute which are concerned
with the recovery of property held in trust for an incapacitated person and
dealings in such trust properties. Such an amendment will place the Public
Trustee on similar footing to the statutory private trustee companies which
are licensed under the Trustee Companies Act 1968.
Clause 59 inserts an object clause for Part 8 of the statute which deals
with "unclaimed property".
Clauses 60 to 67 inclusive insert new provisions to provide for a
legislative base to receive unclaimed superannuation benefits as a result of
the interface with those provisions in the Superannuation Industry
(Supervision) Act 1993 (Cwlth). Such provisions are necessary to provide a
scheme to enable trustees of superannuation companies to pay unclaimed
superannuation benefits to the Public Trustee instead of the Commissioner
of Taxation.
Clause 68 inserts a new Division 4--Enforcement--in Part 8 of the
statute. This Division sets out the various powers and duties of inspectors
who are appointed by the Public Trustee to supervise and ensure that the
provisions in Part 8 of the statute are being complied with and that
unclaimed property is accounted for and either paid or given to the Public
Trustee in accordance with the legislative scheme.
Clause 69 and 70 make technical amendments to section 122 and 139 of
the statute.
Part 19--Amendment of Security Providers Act 1993
Clause 71 provides for the amendment of the Security Providers Act
1993.
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Justice and Other Legislation (Miscellaneous Provisions)
Clause 72 amends the "Schedule of Disqualifing Offences" in the statute
to ensure that it complies with the recent amendments to the Criminal Code.
Part 20--Amendment of Statutory Instruments Act 1992
Clause 73 provides for the amendment of the Statutory Instruments Act
1992.
Clause 74 amends section 61 of the statute by deleting the time period 1
July 1997 and inserting where appropriate the new time period of 1 July
2000. Such an amendment will extend the period by three years which will
enable a comprehensive and considered review of subordinate legislation.
Part 21--Amendment of Succession Act 1981
Clause 75 provides for the amendment of the Succession Act 1981.
Clause 76 inserts a new definition of "stepchild" in section 5 of the
statute.
Clause 77 amends section 29 of the statute to clarify that a disposition
under section 29 means a disposition of all property or a residuary
disposition. Such an amendment will overcome the unintended
consequences of the decision of the Queensland Supreme Court in Re:
Harvey [1992] Qd R 508.
Clauses 78 and 79 provides for a new definition of "stepchild". Under
the current definition of stepchild, the child of a former spouse of a
deceased, whether the former spouse is deceased or divorced from the
deceased, is not a stepchild for the purposes of Part 4--Family
Provision--under the statute although he or she may be able to apply, if
under 18, as a dependant. This strick definition has shown to cause
hardship and this is clearly noted in the cases of Re: Marstella [1989] 1 Qd.
R. 638; Re: Oakley [1986] 2 Qd. R. 269 and Re: Burt [1988] 1 Qd. R. 23.
Clause 80 amends sections 44(3) and (4) and to clarify the operation of
this provision.
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Justice and Other Legislation (Miscellaneous Provisions)
Part 22--Amendment of Traffic Act 1949
Clause 81 provides for the amendment of the Traffic Act 1949.
Clause 82 amends the definition of the transport Act in section 44P of
the Traffic Act 1949 to refer to the Motor Accident Insurance Act 1944.
This will enable offences under the Motor Accident Insurance Act 1944
detected by photographic detection devices to be effectively dealt with.
These offences are intrinsically linked to other offences which are detected
by these means and may be dealt with accordingly.
Part 23--Amendment of Transport Infrastructure Act 1994
Clause 83 provides for the amendment of the Transport Infrastructure
Act 1994.
Clause 84 to 89 inclusive extends the expiry date by 12 or 24 months (as
the case may be) of certain savings and transitional provisions in the
Transport Infrastructure Act 1994 relating to ports.
Part 24--Amendment of Transport Operations (Passenger
Transport) Act 1994
Clause 90 provides for the amendment of the Transport Operations
(Passenger Transport) Act 1994.
Clause 91 makes technical amendments to Schedule 1 of the statute.
Part 25--Amendment of Transport Operations (Road Use
Management) Act 1995
Clause 92 provides for the amendment of the Transport Operations
(Road Use Management) Act 1995.
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Justice and Other Legislation (Miscellaneous Provisions)
Clause 93 extends the expiry date by 12 months of those Acts mentioned
in Schedule 2 of that Act.
Part 26--Amendment of Vexatious Litigants Act 1981
Clause 94 provides for the amendment of the Vexatious Litigants Act
1981.
Clause 95--100 inclusive insert provisions requiring that any application
for leave to issue proceedings be done on the papers; would require the
Registrar of the Supreme Court to notify relevant parties allowing them the
opportunity to respond in writing and upon receipt of all documentation the
matter would be referred to a Supreme Court judge for a decision based
upon the submitted material. This decision would not be subject to appeal.
Overall these provisions will strengthen the underlying policy of the statute.
Part 27--Amendment of Workcover Queensland Act 1996
Clause 101 provides for the amendment of Workcover Queensland Act
1996.
Clause 102 clarifies the application of the statute to children who preform
unpaid work under programmes arranged under the Juvenile Justice Act
1992.
Schedule 1
Clause 3 of this Bill provides for minor amendments to the Criminal
Law Amendment Act 1997 which are set out in the attached Schedule.
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Justice and Other Legislation (Miscellaneous Provisions)
Schedule 2
Clause 4 of the Bill refers to these declaratory provisions.
© The State of Queensland 1997