Justice Legislation (Miscellaneous Amendments) Act 2001
An Act to amend the Coroners Act 1995 , Justices Act 1959 , Legal Profession Act 1993 , Magistrates Court Act 1987 , Magistrates Court (Civil Division) Act 1992 and Sentencing Act 1997
[Royal Assent 5 December 2001]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Justice Legislation (Miscellaneous Amendments) Act 2001 .
This Act commences on the day on which this Act receives the Royal Assent.
PART 2 - Coroners Act 1995 Amended
In this Part, the Coroners Act 1995 is referred to as the Principal Act.
4. Section 15 amended (Coroner's associates)
Section 15 of the Principal Act is amended as follows:(a) by omitting from subsection (3) "clerk" third occurring and substituting "associate";(b) by omitting from subsection (4) "clerk" and substituting "associate".
PART 3 - Justices Act 1959 Amended
In this Part, the Justices Act 1959 is referred to as the Principal Act.
6. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended by omitting the definition of affected child and substituting the following definition:affected person means a person upon or in respect of whom the defendant is charged with having committed one or more of the following crimes:(a) a crime under section 122 , 124 , 125 , 125A , 126 , 127 , 127A , 128 , 129 , 133 , 185 or 186 of the Criminal Code;(b) a crime under section 298 , 299 or 300 of the Criminal Code in relation to a crime specified in a section referred to in paragraph (a) ;
7. Section 37A amended (Publication of accounts of certain proceedings)
The penalty under section 37A(1) of the Principal Act is amended by omitting "10 penalty units" and substituting "100 penalty units".
8. Section 50B amended (Adjournment of proceedings)
Section 50B of the Principal Act is amended by omitting subsection (2) and substituting the following subsection:(2) A clerk of petty sessions may, subject to any directions issued by the Chief Magistrate, adjourn any proceedings set down for hearing by a justice or justices in the clerk's district to another court if a written consent to the adjournment, signed by the parties to the proceedings or their attorneys or agents, is lodged with the clerk before the date of the hearing.
9. Section 56A amended (Procedure when brought before justices)
Section 56A of the Principal Act is amended as follows:(a) by omitting from subsection (6AA) "affected child" and substituting "affected person";(b) by omitting from subsection (6A) "affected child" and substituting "affected person";(c) by omitting from subsection (6C) " subsection (6) (a) or (b) " and substituting " subsection (6) ";(d) by omitting from subsection (8) " paragraph (a) " and substituting " paragraph (c) ";(e) by inserting the following subsection after subsection (10) :(11) A plea, answer or statement required of a defendant under this section may be entered, given or made by the defendant personally or, with the consent of the justices, through counsel.
10. Section 57A amended (Depositions of affected persons)
Section 57A of the Principal Act is amended as follows:(a) by omitting from subsection (1)(a) "affected child" and substituting "affected person";(b) by omitting from subsection (1)(b) "affected child" twice occurring and substituting "affected person";(c) by omitting from subsection (2) "affected child" and substituting "affected person";(d) by omitting from subsection (2) "the child" and substituting "the affected person";(e) by omitting from subsection (3) "affected child" twice occurring and substituting "affected person";(f) by omitting from subsection (3) "the child" twice occurring and substituting "the affected person";(g) by omitting from subsection (4)(a) "affected child's" and substituting "affected person's";(h) by omitting from subsection (4)(b) "the child" and substituting "the affected person".
11. Section 110 amended (Powers of Supreme Court)
Section 110 of the Principal Act is amended by inserting after subsection (2) the following subsections:(2A) If the court considers that the reasons given for making the order under review are insufficient, it may, before doing anything under subsection (2) , remit the matter to the justices who made the order with a direction to furnish the court with further and better reasons within such time as the court specifies.(2B) If subsection (2A) applies, the court must cause the further and better reasons to be made known to the parties to the notice to review as soon as practicable after they have been furnished to the court and, in any event, before the court proceeds to do anything under subsection (2) .
PART 4 - Legal Profession Act 1993 Amended
In this Part, the Legal Profession Act 1993 is referred to as the Principal Act.
13. Section 118A inserted
After section 118 of the Principal Act , the following section is inserted in Division 5:118A. Meaning of "fiduciary default"
(1) In this section –amendment day means 16 July 2001, being the day of commencement of the Extension Act;Extension Act means the Legal Profession Amendment Act (No. 2) 2001 .(2) In its application to this Division, paragraph (c) of the definition of fiduciary default in section 3 is taken to include a breach of duty of the kind referred to in the paragraph that occurred before the amendment day, but only in respect of a loss of money or property suffered after 1 July 1995.(3) Without limiting the generality of subsection (2) , a loss of money or property is taken to have been suffered after 1 July 1995 if, irrespective of when it actually occurred, the person who suffered the loss was not aware of it, and could not reasonably have been aware of it, until after that date.(4) This section has effect notwithstanding section 2 of the Extension Act.
PART 5 - Magistrates Court Act 1987 Amended
In this Part, the Magistrates Court Act 1987 is referred to as the Principal Act.
15. Section 15 amended (Arrangement of business of courts, and administrative matters)
Section 15 of the Principal Act is amended as follows:(a) by omitting from subsection (1) "In consultation with the Chief Magistrate, the Administrator" and substituting "The Chief Magistrate";(b) by omitting subsections (2) and (3) ;(c) by inserting in subsection (7) "and between other justices" after "magistrates";(d) by inserting the following subsection after subsection (7) :(8) The Chief Magistrate, in consultation with the Administrator, is responsible for the allocation of all matters for first appearance under any Act or other law in the lower courts throughout the State, regardless of whether any of the matters represents the exercise by a magistrate of an original or an appellate jurisdiction.
16. Sections 15AA and 15AB inserted
After section 15 of the Principal Act , the following sections are inserted in Part II:(1) The Chief Magistrate may –(a) issue such practice directions in relation to the practice and procedure of the lower courts as the Chief Magistrate thinks fit; and(b) vary or revoke any such practice directions; and(c) publish any such practice directions as the Chief Magistrate thinks fit.(2) The practice and procedure of the lower courts is to be in accordance with the practice directions from time to time in force unless the provisions of any Act or of any rules or other statutory instruments made under an Act provide otherwise.15AB. Professional development
(1) The Chief Magistrate is responsible for the professional development of the magistrates, the other justices and the lower court staff and may, from time to time, put in place such programs for that purpose as the Chief Magistrate thinks fit.(2) For this section,lower court staff includes the Administrator and the district registrars and deputy district registrars.
17. Section 16 amended (Administrator of Magistrates Court)
Section 16 of the Principal Act is amended as follows:(a) by omitting subsection (2) ;(b) by omitting from subsection (4) "clerks" and substituting "associates".
PART 6 - Magistrates Court (Civil Division) Act 1992 Amended
In this Part, the Magistrates Court (Civil Division) Act 1992 is referred to as the Principal Act.
19. Section 42A inserted
After section 42 of the Principal Act , the following section is inserted in Part 7:42A. Transfer of residual court of request matters
(1) In this section,winding-up day means the day of commencement of Part 6 of the Justice Legislation (Miscellaneous Amendments) Act 2001 .(2) On the winding-up day –(a) an action that was pending before a court of requests immediately before that day is taken to be an action commenced within the civil division; and(b) the provisions of the Local Courts Act 1896 cease to apply to the action.(3) Any judgment or other order made before the winding-up day by a Commissioner of a Court of Requests in an action to which subsection (2) applies may, on and after that day, be enforced under this Act as if the judgment or order had been made within the civil division.(4) The Rules of Court may contain such provisions of a transitional nature as the Magistrates Rule Committee considers necessary or expedient consequent on the enactment of this section.
20. Section 43 amended (Savings and transitional provisions)
Section 43 of the Principal Act is amended by omitting subsection (4) .
PART 7 - Sentencing Act 1997 Amended
In this Part, the Sentencing Act 1997 is referred to as the Principal Act.
22. Section 47 amended (Failure to pay fine within time granted)
Section 47 of the Principal Act is amended by inserting after subsection (7) the following subsections:(7A) A community service order made under subsection (2)(a) in respect of the non-payment of a restitution order or compensation order may be vacated by the court on its own motion or on application by the person in whose favour the order was made at any time, and the court may direct that civil proceedings be taken under the Magistrates Court (Civil Division) Act 1992 to enforce payment.(7B) If community service or another activity has been performed under a community service order vacated under subsection (7A) , the amount in respect of which civil proceedings are to be taken is the remaining amount owed by the offender as calculated in accordance with section 48 .
23. Section 94 amended (Correction of sentence)
Section 94(2)(a) of the Principal Act is amended by omitting "within the period of 28 days" and substituting "initiated within the 3 month period".
[Second reading presentation speech made in:
House of Assembly on 30 AUGUST 2001
Legislative Council on 6 NOVEMBER 2001]