Justice and Related Legislation (Miscellaneous Amendments) Act 2018
An Act to amend the Acts Interpretation Act 1931 , the Bail Act 1994 , the Classification (Publications, Films and Computer Games) Enforcement Act 1995 , the Coroners Act 1995 , the Court Security Act 2017 , the Criminal Code Act 1924 , the Criminal Law (Detention and Interrogation) Act 1995 , the Criminal Procedure (Attendance of Witnesses) Act 1996 , the Evidence Act 2001 , the Forensic Procedures Act 2000 , the Guardianship and Administration Act 1995 , the Long Service Leave Act 1976 , the Oaths Act 2001 , the Registration to Work with Vulnerable People Act 2013 , the Sentencing Act 1997 , the Sentencing Amendment (Phasing Out of Suspended Sentences) Act 2017 , the Trustee Companies Act 1953 and the Water Management Act 1999 and to repeal the Long Service Leave (Casual Wharf Employees) Act 1982
[Royal Assent 10 December 2018]
Be it enacted by Her 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 2018 .
This Act commences on the day on which this Act receives the Royal Assent.
PART 2 - Sentencing Amendment (Phasing Out of Suspended Sentences) Act 2017 amended
In this Part, the Sentencing Amendment (Phasing Out of Suspended Sentences) Act 2017 is referred to as the Principal Act.
4. Section 14 amended (Part 5A inserted)
Section 14 of the Principal Act is amended as follows:(a) by inserting after subsection (2) of new section 42AH the following subsection:(2A) Despite subsection (2) and if –the court to which the application is made may hear and determine the application at any time before the expiration of the 7-day period following service as required by that subsection or without such service having been effected.(a) the applicant and all appropriate persons referred to in paragraph (a), (b) or (c) of that subsection consent to it; or(b) the court considers it appropriate to do so in the circumstances –(b) by inserting after subsection (2) of new section 42AI the following subsection:(2A) Despite subsection (2) and if –the court to which the application is made may hear and determine the application at any time before the expiration of the 7-day period following service as required by that subsection or without such service having been effected.(a) the applicant and offender have consented to it, in writing; or(b) the court considers it appropriate to do so in the circumstances –
PART 3 - Sentencing Act 1997 Amended
In this Part, the Sentencing Act 1997 is referred to as the Principal Act.
6. Section 27M amended (Contravention of order)
Section 27M of the Principal Act is amended by inserting after subsection (7) the following subsection:(8) Section 36A applies, with such adaptation and modification as necessary, to an offender performing community work as required by an order made under subsection (1)(c) as if that order were a community service order.
7. Section 82 amended (Court may order pre-sentence report)
Section 82 of the Principal Act is amended by inserting after subsection (1) the following subsections:(1A) If an offender pleads guilty to an indictable offence before a court of summary jurisdiction, the court, on committing the offender to the Supreme Court for sentencing, may order a pre-sentence report to be prepared for consideration by the Supreme Court.(1B) On ordering a pre-sentence report, the court may require the report to be prepared by such person, body or organisation, or a person, body or organisation of a class, that the court considers appropriate.
PART 4 - Acts Interpretation Act 1931 Amended
In this Part, the Acts Interpretation Act 1931 is referred to as the Principal Act.
9. Section 8B amended (Use of extrinsic material in interpretation)
Paragraph (e) of the definition of extrinsic material in section 8B(3) of the Principal Act is amended as follows:(a) by omitting "note" and substituting "note, clause note";(b) by inserting "or otherwise made available" after "given".
10. Section 30 amended (Effecting service by post)
Section 30 of the Principal Act is amended as follows:(a) by omitting from subsection (1) "addressing, prepaying," and substituting "addressing";(b) by omitting from subsection (1) "letter," and substituting "letter and paying for that postage (whether before or after the letter is posted)";(c) by omitting from subsection (2) "addressing, prepaying," and substituting "addressing";(d) by omitting from subsection (2) "letter –" and substituting "letter and paying for that postage (whether before or after the letter is posted) –".
PART 5 - Bail Act 1994 Amended
In this Part, the Bail Act 1994 is referred to as the Principal Act.
12. Section 5 amended (Police bail)
Section 5 of the Principal Act is amended as follows:(a) by omitting from subsection (1) " section 4 (3) of the Criminal Law (Detention and Interrogation) Act 1995 ," and substituting " section 4(3), (5) or (6) of the Criminal Law (Detention and Interrogation) Act 1995 ,";(b) by omitting from subsection (2) " section 4 (3) of the Criminal Law (Detention and Interrogation) Act 1995 –" and substituting " section 4(3), (5) or (6) of the Criminal Law (Detention and Interrogation) Act 1995 –".
13. Section 23 amended (Application for bail or variation of conditions)
Section 23(3) of the Principal Act is amended by omitting " section 4 (3) of the Criminal Law (Detention and Interrogation) Act 1995 " and substituting " section 4(3), (5) or (6) of the Criminal Law (Detention and Interrogation) Act 1995 ".
PART 6 - Classification (Publications, Films and Computer Games) Enforcement Act 1995 Amended
In this Part, the Classification (Publications, Films and Computer Games) Enforcement Act 1995 is referred to as the Principal Act.
15. Section 77 amended (Forfeiture of child exploitation material, &c.)
Section 77 of the Principal Act is amended as follows:(a) by inserting in subsection (2) "or any electronic medium on which the material, or data from which the material may be composed, is stored, or both the material and any such electronic medium," after "the material";(b) by omitting from subsection (7) "material or" twice occurring and substituting "material, electronic medium or other".
PART 7 - Coroners Act 1995 Amended
In this Part, the Coroners Act 1995 is referred to as the Principal Act.
17. Section 69 amended (Annual report)
Section 69 of the Principal Act is amended as follows:(a) by omitting from subsection (1) "Attorney-General" and substituting "Minister";(b) by omitting from subsection (3) "Attorney-General" and substituting "Minister".
PART 8 - Court Security Act 2017 Amended
In this Part, the Court Security Act 2017 is referred to as the Principal Act.
19. Section 18A inserted
After section 18 of the Principal Act , the following section is inserted in Part 4:If a court –a security officer, subject to an order or direction of the court to the contrary, may take the person into custody.(a) makes an order that remands a person in custody; or(b) makes an order that requires a person to be held or detained in custody or otherwise authorises such holding or detention of a person; or(c) sentences a person to a term of imprisonment or detention; or(d) declares a person to be a dangerous criminal under section 19 of the Sentencing Act 1997 –
PART 9 - Criminal Code Act 1924 Amended
In this Part, the Criminal Code Act 1924 is referred to as the Principal Act.
21. Schedule 1 amended (Criminal Code)
Schedule 1 to the Principal Act is amended as follows:(a) by inserting in section 130F(2) "or any electronic medium on which the material, or data from which the material may be composed, is stored, or both the material and any such electronic medium," after "the material";(b) by omitting from section 130F(7) "material or" twice occurring and substituting "material, electronic medium or other";(c) by omitting from section 301(5)(a) "that person" and substituting "the arrested person";(d) by omitting from section 301(5)(a) "an officer in charge of a police station;" and substituting "a custody officer;";(e) by omitting paragraph (b) from section 301(5) and substituting the following paragraph:(b) produce or cause to be produced, or provide or cause to be provided, to the arrested person the warrant or a certified copy of it.(f) by omitting subsection (6) from section 301 and substituting the following subsection:(6) If an arrested person is delivered into the custody of a custody officer under subsection (5) , it is lawful for the custody officer to detain the arrested person until the warrant or a certified copy of the warrant is produced or otherwise provided to the arrested person.(g) by omitting from section 301(7) "facsimile" and substituting "copy";(h) by omitting from section 301(7) "produced" and substituting "produced or otherwise provided";(i) by omitting from section 301(7) "person taken into custody." and substituting "arrested person.";(j) by omitting subsection (8) from section 301 ;(k) by omitting from section 301(9) "facsimile" first occurring and substituting "copy";(l) by omitting from section 301(9) "facsimile is sent by the facsimile machine." and substituting "copy is produced or otherwise provided.";(m) by inserting the following subsections after subsection (9) in section 301 :(10) If a certified copy of a warrant is sent or otherwise provided to an arrested person by facsimile machine, email or any other means of electronic communication, within the meaning of the Electronic Transactions Act 2000 , the copy of the certified copy received by the arrested person (the received copy), and any paper copy of the received copy which is printed directly or indirectly from the machine that received the received copy, is taken to be a certified copy of the warrant.(11) In this section –arrested person means a person arrested under subsection (4) ;certified copy, in relation to a warrant, is a true copy of the warrant that contains a statement –(a) to the effect that the person sending or otherwise providing the copy has seen the original warrant and that the copy is a true copy of that warrant; and(b) that is signed by that person;custody officer means a police officer appointed as a custody officer under section 14(1) of the Criminal Law (Detention and Interrogation) Act 1995 .(n) by omitting section 408 ;(o) by inserting the following paragraph after paragraph (e) in section 418(1) :(ea) The power to make an order under section 409(1)(a) or (b) ;(p) by inserting the following paragraph after paragraph (d) in section 418A(1) :(da) the power to make an order under section 409(1)(a) or (b) ;
PART 10 - Criminal Law (Detention and Interrogation) Act 1995 Amended
In this Part, the Criminal Law (Detention and Interrogation) Act 1995 is referred to as the Principal Act.
23. Section 4 amended (Detention of person in custody)
Section 4 of the Principal Act is amended as follows:(a) by inserting in subsection (1) "or subsection (5) " after " subsection (3) ";(b) by inserting the following paragraph after paragraph (a) in subsection (2) :(ab) if the police officer believes on reasonable grounds that the person –until the person may be released under subsection (5) ; and(i) is under the influence of alcohol, another drug or a combination of drugs (in this section referred to as being intoxicated); and(ii) is behaving in a manner likely to cause injury to himself, herself or another person or cause damage to any property, or is incapable of protecting himself or herself from physical harm –(c) by inserting the following subsections after subsection (4) :(5) A person referred to in subsection (2)(ab) may be admitted to bail by a person mentioned in section 34 of the Justices Act 1959 if he or she believes on reasonable grounds that the person –(a) is no longer intoxicated; or(b) although still intoxicated, can safely be released into the care of a person who is capable of taking adequate care of him or her; or(c) although still intoxicated, can safely be released into the care of a hospital or a charitable institution, or other facility, capable of caring for an intoxicated person; or(d) although still intoxicated –(i) is not likely to cause injury to himself, herself or another person; and(ii) is not likely to damage property; and(iii) is capable of protecting himself or herself from physical harm.(6) A person referred to in subsection (2)(ab) who is being detained only because a police officer believes on reasonable grounds that the person may not be released under subsection (5) must be admitted to bail by a person mentioned in section 34 of the Justices Act 1959 on being in custody for a period of 8 hours or such extended period as may be determined under subsection (7) .(7) If –the person may be detained for such further period, not exceeding 4 hours, as the commissioned police officer determines necessary to enable the person to meet the conditions for release specified in subsection (5) .(a) the 8-hour period referred to in subsection (6) is close to expiration; and(b) a commissioned police officer believes on reasonable grounds that, at the expiration of that period, the conditions for release of the person set out under subsection (5) will not be met –
24. Section 6 amended (Right to communicate with friend, relative and legal practitioner)
Section 6(4) of the Principal Act is amended by omitting " subsection (3) ," and substituting " subsection (3) or such further period as a magistrate has granted under subsection (6) ,".
PART 11 - Criminal Procedure (Attendance of Witnesses) Act 1996 Amended
In this Part, the Criminal Procedure (Attendance of Witnesses) Act 1996 is referred to as the Principal Act.
26. Section 3 amended (Interpretation)
The definition of criminal proceeding in section 3 of the Principal Act is amended as follows:(a) by omitting from paragraph (b) " section 357 , 380 or 409 " and substituting " section 357 or 409 ";(b) by inserting the following paragraph after paragraph (c) :(ca) an application to a single judge or an associate judge made under a provision of the Criminal Code Act 1924 ; and(c) by omitting from paragraph (d) "Court;" and substituting "Court –";(d) by inserting the following definition text after paragraph (d) :but does not include an appeal or application to the Court of Criminal Appeal;
27. Section 5 amended (Preliminary notice to witness)
Section 5 of the Principal Act is amended as follows:(a) by omitting from subsection (1) "prosecutor or the accused person," and substituting "prosecutor, an accused person, an applicant, a respondent to an application or any other person who is a party to a criminal proceeding,";(b) by omitting from subsection (2) "prosecutor or the accused person." and substituting "person who applied for the preliminary notice.";(c) by omitting from subsection (3) "prosecutor or the accused person" and substituting "person who applied for the notice".
28. Section 10 amended (Issue of final notice)
Section 10 of the Principal Act is amended as follows:(a) by omitting from subsection (1) "prosecutor or the accused person" and substituting "prosecutor, an accused person, an applicant, a respondent to an application or any other person who is a party to a criminal proceeding,";(b) by omitting from subsection (2) "by the prosecutor or the accused person" and substituting "by, or at the behest of, the person who applied for it".
29. Section 12 amended (Recognisance to secure attendance of witness)
Section 12(1) of the Principal Act is amended by omitting "prosecutor or the accused person," and substituting "prosecutor, an accused person, an applicant, a respondent to an application or any other person who is a party to a criminal proceeding,".
30. Section 13 amended (Issue of warrant for arrest of intended witness)
Section 13 of the Principal Act is amended as follows:(a) by omitting subsection (1) and substituting the following subsection:(1) If, on application by the prosecutor, an accused person, an applicant, a respondent to an application or any other person who is a party to a criminal proceeding, it appears to a judge that there are reasonable grounds for believing that an intended witness has failed, or is likely to fail, to attend in the criminal proceeding to give evidence as required by a preliminary notice or a final notice, the judge may issue a warrant for the arrest of that intended witness, whether or not that intended witness has previously entered into a recognisance under section 12 .(b) by inserting the following subsections after subsection (2) :(3) When issuing a warrant to arrest an intended witness under subsection (1) , the judge may also –(a) require that the intended witness be held in custody until such time as he or she appears to give evidence, or produce documents, articles or things in his or her possession or custody, in the relevant criminal proceeding; or(b) set such terms for a recognisance as the judge thinks fit in order to secure the attendance of the intended witness, or the production of documents, articles or things in his or her possession or custody, in the relevant criminal proceeding and order that the intended witness be released on entering into such a recognisance.(4) If on being arrested under a warrant issued under subsection (1)(a) the intended witness enters into a recognisance in such terms as the judge has set under subsection (3) , the intended witness may be released but, if the witness refuses to enter into such a recognisance, the witness may be held in custody until such time as he or she appears to give evidence, or produce documents, articles or things in his or her possession or custody, in the relevant criminal proceeding.
PART 12 - Evidence Act 2001 Amended
In this Part, the Evidence Act 2001 is referred to as the Principal Act.
32. Section 160 amended (Postal articles)
Section 160(1) of the Principal Act is amended by omitting "in accordance with the requirements of the Australian Postal Corporation (Performance Standards) Regulations 1998 of the Commonwealth." and substituting "on the seventh working day after having been posted.".
PART 13 - Forensic Procedures Act 2000 Amended
In this Part, the Forensic Procedures Act 2000 is referred to as the Principal Act.
34. Section 3 amended (Interpretation)
The definition of serious offence in section 3(1) of the Principal Act is amended as follows:(a) by inserting in paragraph (c) "or" after " 27 of the Misuse of Drugs Act 2001 ;";(b) by inserting the following paragraph after paragraph (c) :(d) against section 11A(1) or (2A) of the Police Powers (Vehicle Interception) Act 2000 ;
PART 14 - Guardianship and Administration Act 1995 Amended
In this Part, the Guardianship and Administration Act 1995 is referred to as the Principal Act.
36. Section 90 amended (Regulations)
Section 90(2) of the Principal Act is amended by inserting after paragraph (a) the following paragraph:(ab) the waiving, and refunding, of any such fee or part of any such fee; and
PART 15 - Long Service Leave Act 1976 Amended
In this Part, the Long Service Leave Act 1976 is referred to as the Principal Act.
38. Section 13 amended (Settlement of disputes)
Section 13 of the Principal Act is amended as follows:(a) by omitting subsection (1) and substituting the following subsections:(1) If a dispute –occurs, the employer, employee or personal representative, at his or her discretion, may refer the matter to the Secretary for investigation or apply, under section 29 of the Industrial Relations Act 1984 , to the President of the Commission for a hearing by the Commission.(a) as to whether or when –(i) an employee is or has become entitled to long service leave or payment in lieu of such leave; or(ii) a deceased employee's personal representative is or has become entitled to payment in lieu of the employee’s long service leave; or(b) with respect to the rate of ordinary pay of an employee for the purposes of this Act –(1A) On receipt of a referral under subsection (1) , the Secretary is to investigate the circumstances of the dispute and submit a report of his or her findings to the President of the Commission.(b) by omitting from subsection (2) "in" and substituting "the Secretary under".
PART 16 - Oaths Act 2001 Amended
In this Part, the Oaths Act 2001 is referred to as the Principal Act.
40. Schedule 1 amended (Forms)
Schedule 1 to the Principal Act is amended by omitting Form 1 and substituting the following form:Form 1 - Statutory Declaration
PART 17 - Registration to Work with Vulnerable People Act 2013 Amended
In this Part, the Registration to Work with Vulnerable People Act 2013 is referred to as the Principal Act.
42. Section 15 amended (Person required to be registered to engage in regulated activity)
Section 15(3)(c)(ii) of the Principal Act is amended by omitting "registered" third occurring and substituting "regulated".
43. Section 16A amended (Offence for registered person in volunteer class to engage in regulated activity for financial or other material benefit or reward)
Section 16A(2)(a) of the Principal Act is amended by omitting "registered" second occurring and substituting "regulated".
44. Section 17A amended (Offence for employer to engage person registered in class of volunteer in regulated activity for person's financial or other material benefit or reward)
Section 17A(2)(a) of the Principal Act is amended by omitting "registered" second occurring and substituting "regulated".
45. Section 33 amended (Registration)
Section 33 of the Principal Act is amended as follows:(a) by omitting from subsection (2)(a)(ii) "employment/volunteer" and substituting "employee/volunteer";(b) by omitting from subsection (2A) "employment/volunteer" and substituting "employee/volunteer".
46. Section 41A amended (Amendment of class of registration)
Section 41A of the Principal Act is amended as follows:(a) by omitting from subsection (1) "employment/volunteer." and substituting "employee/volunteer.";(b) by omitting from subsection (5)(a) "employment/volunteer;" and substituting "employee/volunteer;";(c) by omitting from subsection (6)(b) "employment/volunteer." and substituting "employee/volunteer.".
PART 18 - Trustee Companies Act 1953 Amended
In this Part, the Trustee Companies Act 1953 is referred to as the Principal Act.
48. Section 10A amended (Election to administer small estates without grant of probate, &c.)
Section 10A of the Principal Act is amended as follows:(a) by omitting from subsection (1)(c) "amount or, if another amount is prescribed by the regulations, that other";(b) by omitting from subsection (6)(a) "amount or, if another amount is prescribed by the regulations, that other".
PART 19 - Water Management Act 1999 Amended
In this Part, the Water Management Act 1999 is referred to as the Principal Act.
50. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended by inserting after paragraph (d) in the definition of water entity the following paragraph:(da) a body or corporation registered as a co-operative under the Co-operatives National Law (Tasmania); or
51. Section 100 amended (Withdrawal of application)
Section 100(2) of the Principal Act is amended by omitting "section 97(1)(b)," and substituting " section 12A ,".
PART 20 - Legislation repealed
The legislation specified in Schedule 1 is repealed.
PART 21 - Miscellaneous
This Act is repealed on the three hundred and sixty fifth day from the day on which it commences.
SCHEDULE 1 - Legislation repealed
Long Service Leave (Casual Wharf Employees) Act 1982 (No. 37 of 1982) |
[Second reading presentation speech made in:
House of Assembly on 26 SEPTEMBER 2018
Legislative Council on 21 NOVEMBER 2018]