Justice and Related Legislation (Miscellaneous Amendments) Act 2009
An Act to amend the Administration and Probate Act 1935 , the Crime (Confiscation of Profits) Act 1993 , the Debtors Act 1870 , the Director of Public Prosecutions Act 1973 , the Fatal Accidents Act 1934 , the Guardianship and Administration Act 1995 , the Hospitals Act 1918 , the Justices Act 1959 , the Mental Health Act 1996 , the Motor Accidents (Liabilities and Compensation) Act 1973 , the Parole Orders (Transfer) Act 1983 , the Public Trustee Act 1930 , the Trades Unions Act 1889 , the Travel Agents Act 1987 and the Trustee Companies Act 1953 and to repeal the Independent Order of Rechabites (Agreement) Act 1981
[Royal Assent 16 June 2009]
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 and Related Legislation (Miscellaneous Amendments) Act 2009 .
(1) Except as provided in this section, this Act commences on the day on which this Act receives the Royal Assent.(2) Part 11 is taken to have commenced on 28 April 2008.
PART 2 - Administration and Probate Act 1935 Amended
In this Part, the Administration and Probate Act 1935 is referred to as the Principal Act.
4. Section 54 amended (Power of personal representative to advertise for claims)
Section 54 of the Principal Act is amended by inserting after subsection (9) the following subsection:(10) Subsections (4) and (8) do not apply to an estate if the net value of the estate does not exceed the prescribed amount for the purpose of section 20A(1) of the Public Trustee Act 1930 .
PART 3 - Crime (Confiscation of Profits) Act 1993 Amended
In this Part, the Crime (Confiscation of Profits) Act 1993 is referred to as the Principal Act.
6. Section 27 amended (Grounds for making restraining orders)
Section 27(7) of the Principal Act is amended by inserting "Director of Public Prosecutions on behalf of the" after "if the".
PART 4 - Debtors Act 1870 Amended
In this Part, the Debtors Act 1870 is referred to as the Principal Act.
8. Section 21 substituted
Section 21 of the Principal Act is repealed and the following section is substituted:21. Warrant of attorney and cognovit actionem to be signed in presence of Australian legal practitioner
A warrant of attorney to confess judgment in a personal action or a cognovit actionem is invalid unless –(a) the nature and effect of the warrant of attorney or cognovit actionem is, before the person signs it, explained to the person by the person's Australian legal practitioner; and(b) the person's Australian legal practitioner is present when the person signs the warrant of attorney or cognovit actionem and attests, by signing as a witness, the signature of the person.
PART 5 - Director of Public Prosecutions Act 1973 Amended
In this Part, the Director of Public Prosecutions Act 1973 is referred to as the Principal Act.
10. Section 17 inserted
After section 16 of the Principal Act , the following section is inserted:17. Immunity from personal liability
(1) No personal liability attaches to the Director or a person assisting the Director under this Act for an act done or omitted to be done in good faith in the performance or exercise, or the purported performance or exercise, of any function, power or duty under this Act.(2) A liability that would, but for subsection (1) , lie against the Director or a person assisting the Director, lies instead against the Crown.
PART 6 - Fatal Accidents Act 1934 Amended
In this Part, the Fatal Accidents Act 1934 is referred to as the Principal Act.
12. Section 7 amended (Plaintiff to deliver particulars)
Section 7 of the Principal Act is amended by omitting "his attorney" and substituting "the defendant's Australian legal practitioner".
PART 7 - Guardianship and Administration Act 1995 Amended
In this Part, the Guardianship and Administration Act 1995 is referred to as the Principal Act.
14. Section 34 amended (Revocation or amendment of appointment by Board)
Section 34 of the Principal Act is amended by inserting after subsection (1) the following subsection:(1A) The Board may, on an application under this section and after a hearing, declare that the instrument of appointment of an enduring guardian is invalid if the Board is satisfied that –(a) the donor did not have the mental capacity to make it; or(b) it is contrary to the provisions of this Act; or(c) the donor was induced to make it by reason of dishonesty or undue influence.
15. Section 73A amended (Interim order on adjournment)
Section 73A of the Principal Act is amended by omitting subsection (1) and substituting the following subsection:(1) If the Board adjourns the hearing of an application under this Act and it considers that there may be grounds for making, in respect of a person, a guardianship order or administration order or a further guardianship order or further administration order then it may –(a) make an interim order appointing, as the case may be, the Public Guardian as the person's guardian or The Public Trustee as the administrator of the person's estate; and(b) make or give any related orders or directions it considers appropriate in the circumstances.
PART 8 - Hospitals Act 1918 Amended
In this Part, the Hospitals Act 1918 is referred to as the Principal Act.
17. Section 70J amended (Institution of appeals)
Section 70J(4)(c) of the Principal Act is amended by omitting "counsel, attorney," and substituting "Australian legal practitioner".
PART 9 - Justices Act 1959 Amended
In this Part, the Justices Act 1959 is referred to as the Principal Act.
19. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended by inserting after the definition of interim restraint order the following definition:lawyer means an Australian legal practitioner as defined in section 6 of the Legal Profession Act 2007 ;
20. Section 27 amended (Proceedings may be commenced by complaint)
Section 27(1) of the Principal Act is amended by omitting "his attorney" and substituting "his or her lawyer".
21. Section 38 amended (Representation of parties by counsel, &c.)
Section 38 of the Principal Act is amended by omitting subsections (1) , (2) and (3) and substituting the following subsections:(1) A complainant may, in person or by the complainant's lawyer, conduct his or her case and examine and cross-examine witnesses.(2) A defendant must, in person or by the defendant's lawyer, be admitted to make his or her full answer and defence to the complaint and to examine and cross-examine witnesses.(3) If the complainant is a public officer, the complainant may, in person or by the complainant's lawyer or another public officer, conduct his or her case and examine and cross-examine witnesses.
22. Section 47 amended (Place of committal when defendant on remand)
Section 47(12)(b) of the Principal Act is amended by omitting "Australian legal practitioner" and substituting "lawyer".
23. Section 50B amended (Adjournment of proceedings)
Section 50B(2) of the Principal Act is amended by omitting "attorneys" and substituting "lawyers".
24. Section 55 amended (Procedure when brought before justices)
Section 55(1) of the Principal Act is amended by omitting "legal practitioner" and substituting "lawyer".
25. Section 56 amended (Duties during adjournment)
Section 56 of the Principal Act is amended as follows:(a) by omitting from subsection (2)(a) "legal practitioner" and substituting "lawyer";(b) by omitting from subsection (2)(b) "legal practitioner" and substituting "lawyer";(c) by omitting from subsection (3) "legal practitioner" twice occurring and substituting "lawyer";(d) by omitting from subsection (4) "legal practitioner" twice occurring and substituting "lawyer".
26. Section 57 amended (Duty to provide further witness statements and summary of facts)
Section 57(2) of the Principal Act is amended by omitting "legal practitioner" twice occurring and substituting "lawyer".
27. Section 61 amended (Proceedings following preliminary proceedings order by Supreme Court)
Section 61(11)(b)(iii) of the Principal Act is amended by omitting "legal practitioner" and substituting "lawyer".
28. Section 106E amended (Procedure in relation to hearing and determining applications under this Part)
Section 106E(1A)(b) of the Principal Act is amended by omitting "an Australian legal practitioner" and substituting "a lawyer".
29. Section 113A amended (Alternative appeals in certain cases)
Section 113A of the Principal Act is amended by omitting subsection (4) and substituting the following subsection:(4) The Chief Magistrate is to give –14 days' notice of the day on which and the place at which an appeal under this section is to be heard.(a) the appellant or his or her lawyer; and(b) the person concerned in upholding the order or his or her lawyer –
30. Section 130 amended (Notice of action)
Section 130 of the Principal Act is amended as follows:(a) by inserting in subsection (1) "or her" after "by him";(b) by inserting in subsection (1) "or her" after "of his";(c) by inserting in subsection (1) "or her" after "for him";(d) by inserting in subsection (1) "or her" after "at his";(e) by omitting from subsection (1) "his Australian legal practitioner" and substituting "his or her lawyer";(f) by omitting from subsection (3) "his Australian legal practitioner" and substituting "his or her lawyer";(g) by omitting from subsection (3) "Australian legal practitioner" second occurring and substituting "lawyer".
31. Section 131 amended (Where action may be brought)
Section 131(2) of the Principal Act is amended by omitting "his attorney" and substituting "his or her lawyer".
32. Section 134 amended (Costs)
Section 134 of the Principal Act is amended as follows:(a) by omitting from subsection (1)(b) "Australian legal practitioner" and substituting "lawyer";(b) by omitting from subsection (2) "Australian legal practitioner" and substituting "lawyer".
PART 10 - Mental Health Act 1996 Amended
In this Part, the Mental Health Act 1996 is referred to as the Principal Act.
34. Section 26 amended (Initial order for admission)
Section 26 of the Principal Act is amended by inserting after subsection (4) the following subsection:(4A) The approved medical practitioner who does the examination must not be the medical practitioner who made the initial order.
PART 11 - Motor Accidents (Liabilities and Compensation) Act 1973 Amended
In this Part, the Motor Accidents (Liabilities and Compensation) Act 1973 is referred to as the Principal Act.
36. Section 24 amended (Exclusions from scheduled benefits)
Section 24 of the Principal Act is amended by inserting after subsection (3) the following subsection:(3A) Paragraph (b) of subsection (2) does not apply in a case where, at the time of the relevant motor accident –(a) a driver licence of the person referred to in that paragraph was suspended under section 55 of the Monetary Penalties Enforcement Act 2005 ; and(b) were it not for that suspension, the person would not have been driving unlawfully.
PART 12 - Parole Orders (Transfer) Act 1983 Amended
In this Part, the Parole Orders (Transfer) Act 1983 is referred to as the Principal Act.
38. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended by omitting the definition of Registrar and substituting the following definition:Registrar means the secretary of the Parole Board appointed under section 66 of the Corrections Act 1997 ;
39. Section 4 repealed
Section 4 of the Principal Act is repealed.
PART 13 - Public Trustee Act 1930 Amended
In this Part, the Public Trustee Act 1930 is referred to as the Principal Act.
41. Section 36A amended (Dealing with unclaimed moneys)
Section 36A of the Principal Act is amended as follows:(a) by omitting from subsection (1) "in accordance with an order of the Supreme Court directing them so to be paid" and substituting "with the approval of the Public Trustee";(b) by omitting from subsection (2) "Consolidated Fund" and substituting "Public Account";(c) by omitting subsection (3) and substituting the following subsection:(3) If a claim is made for a sum of money that has been paid into the Public Account pursuant to subsection (2) , the Treasurer may, without further appropriation than this section, pay that sum to the claimant if satisfied on the advice of the Public Trustee that the claim is valid.(d) by omitting from subsection (4) "no application shall" and substituting "no claim may".
42. Section 65 amended (Power of Public Trustee to distribute estate when no claims received)
Section 65 of the Principal Act is amended as follows:(a) by omitting subsection (1) and substituting the following subsection:(1) If the Public Trustee cannot distribute an estate because a person entitled to it cannot be located, then –(a) in the case of a small estate, the Public Trustee may distribute the estate without regard to the person entitled to the estate who cannot be located; or(b) in the case of any other estate, the Public Trustee must, by advertisement in a newspaper, call on the person entitled to the estate who cannot be located to identify himself or herself to the Public Trustee within the time specified in the advertisement.(b) by omitting from subsection (2) " subsection (1) does not send his claim" and substituting " subsection (1)(b) does not identify himself or herself";(c) by inserting the following subsection after subsection (3) :(3A) The Public Trustee has no liability in respect of a distribution of a small estate pursuant to subsection (1)(a) if the Public Trustee, after making the distribution, files an affidavit with the Court stating that no claimant, other than those to whom the estate was distributed, could be located prior to the distribution.(d) by inserting the following subsection after subsection (4) :(5) In this section –estate includes part of an estate;small estate means an estate where the net value does not, in the estimation of the Public Trustee, exceed the prescribed amount for the purpose of section 20A(1) .
PART 14 - Trades Unions Act 1889 Amended
In this Part, the Trades Unions Act 1889 is referred to as the Principal Act.
44. Section 11 amended (Treasurer, &c., to account)
Section 11(4) of the Principal Act is amended by omitting "attorney" and substituting "Australian legal practitioner".
PART 15 - Travel Agents Act 1987 Amended
In this Part, the Travel Agents Act 1987 is referred to as the Principal Act.
46. Section 51 amended (Who may take proceedings for offences)
Section 51(3) of the Principal Act is amended by omitting "counsel or attorney" and substituting "Australian legal practitioner".
PART 16 - Trustee Companies Act 1953 Amended
In this Part, the Trustee Companies Act 1953 is referred to as the Principal Act.
48. Section 32 amended (Trustee company to pay certain unclaimed moneys to Public Trustee)
Section 32 of the Principal Act is amended by omitting subsection (5) and substituting the following subsection:(5) The Public Trustee must not pay over to any person money that has been paid to the Public Trustee pursuant to this section, nor any interest on that money, unless satisfied that the person is entitled to that money or interest.
49. Section 35 repealed
Section 35 of the Principal Act is repealed.
50. Section 37 substituted
Section 37 of the Principal Act is repealed and the following section is substituted:37. Unclaimed money to be paid to Treasurer, &c.
(1) This section applies to money that is paid to the Public Trustee pursuant to section 32 .(2) If the money is not claimed within 6 years, the Public Trustee must pay it to the Treasurer to the credit of the Public Account.(3) If any person claims the money within 10 years after it is credited to the Public Account, the Treasurer, without further appropriation than this section, may pay it to the claimant if satisfied on the advice of the Public Trustee that the claim is valid.(4) In this section, a reference to money is to be read as including a reference to securities, to interest on money and to a part of an amount of money.
PART 17 - Legislation repealed
The legislation specified in Schedule 1 is repealed.
SCHEDULE 1 - Legislation repealed
Independent Order of Rechabites (Agreement) Act 1981 (No. 5 of 1981) |
[Second reading presentation speech made in:
House of Assembly on 19 MAY 2009
Legislative Council on 28 MAY 2009]