Australian Capital Territory
Justice and Community Safety Legislation Amendment Act 2008 (No 2)
A2008-22
    
Contents
	Page
	1	Name of Act	2
	2	Commencement	2
	3	Legislation amended—sch 1	2
Schedule 1	Legislation amended	3
Part 1.1	Administration and Probate Act 1929	3
Part 1.2	Court Procedures Act 2004	6
Part 1.3	Crimes (Restorative Justice) Act 2004	7
Part 1.4	Crimes (Sentencing) Act 2005	8
Part 1.5	Human Rights Commission Act 2005	9
Part 1.6	Magistrates Court Act 1930	15
Part 1.7	Ombudsman Act 1989	15
Part 1.8	Partnership Act 1963	16
Part 1.9	Residential Tenancies Act 1997	18
Part 1.10	Utilities Act 2000	21
Part 1.11	Victims of Crime (Financial Assistance) Act 1983	22

Australian Capital Territory
Justice and Community Safety Legislation Amendment Act 2008 (No 2)
A2008-22

An Act to amend the law relating to justice and community safety

    

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1	Name of Act
This Act is the Justice and Community Safety Legislation Amendment Act 2008 (No 2).
2	Commencement
This Act commences on the 21st day after its notification day.
Note	The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
3	Legislation amended—sch 1
This Act amends the legislation mentioned in schedule 1.

Schedule 1	Legislation amended
(see s 3)
Part 1.1	Administration and Probate Act 1929
[1.1]	Section 41A (1)
substitute
	(1)	The following are assets for the payment of the funeral, testamentary and administrative expenses and the debts and other liabilities of a deceased person:
	(a)	the real and personal property of the person, to the extent of the person’s beneficial interest in it; 
	(b)	any real and personal property disposed of by the person’s will in exercise of a general power. 
[1.2]	Section 41B (1)
omit
person dying on or after 1 January 1966
substitute
deceased person
[1.3]	Section 41B (2) and (3)
omit
[1.4]	Sections 41C (1) and (2) and 41D (1)
omit
person who dies on or after 1 January 1966
substitute
deceased person
[1.5]	Section 50 (3)
omit
[1.6]	Section 87C (4)
omit
powers and duties
substitute
functions
[1.7]	Section 87C (4), new note
insert
Note	Function includes authority, duty and power (see Legislation Act, dict, pt 1).
[1.8]	Section 87C (7) and (9)
omit
powers and duties
substitute
functions
[1.9]	Section 89 (1)
omit
powers, rights, and obligations 
substitute
functions
[1.10]	Section 89 (1), new note
insert
Note	Function includes authority, duty and power (see Legislation Act, dict, pt 1).
[1.11]	Section 89 (2) (b)
omit
rights and duties
substitute
functions
[1.12]	Section 91 (1)
substitute	
	(1)	The following cease on the grant of probate or administration under section 90:
	(a)	all the interest and functions of the public trustee (except rights given by this section) in relation to the estate of the deceased person whose estate is affected by the grant; 
	(b)	all liabilities of the public trustee under any contract or agreement entered into in relation to the estate, or any part of the estate. 
[1.13]	Section 91 (1), new note
insert
Note	Function includes authority, duty and power (see Legislation Act, dict, pt 1).
[1.14]	Section 91 (2)
omit
rights and obligations
substitute
functions
Part 1.2	Court Procedures Act 2004
[1.15]	Section 12, definition of essential services consumer council
substitute
energy and water consumer council means the Energy and Water Consumer Council established under the Utilities Act 2000, section 169.
[1.16]	Section 12, definition of tribunal, paragraph (e)
omit
essential services consumer council
substitute
energy and water consumer council
Part 1.3	Crimes (Restorative Justice) Act 2004
[1.17]	Section 22, table 22, item 1, column 2
after
chief executive
(children and young people)
insert
police officer
[1.18]	Section 37, new definition of referring entity
insert
referring entity—see section 38. 
[1.19]	New section 39 (3)
insert
	(3)	The chief executive must ensure, before the conference begins, that the convenor has received sufficient legal training to—
	(a)	advise the participants of their rights and duties at law and under this Act; and
	(b)	otherwise exercise the functions of a convenor under this Act. 
[1.20]	Section 40 (1), note 3
omit
[1.21]	Section 40 (2) (b)
after
is satisfied that the convenor has received
insert
, or has the capacity to receive,
Part 1.4	Crimes (Sentencing) Act 2005
[1.22]	New section 140A
insert
140A	References to charge—s 140
	(1)	A reference in section 140 to an offender charged with an offence includes a reference to an offender in relation to whom—
	(a)	an information or indictment (including an amended or substituted information or indictment) is, or has been, filed in a court for the offence; and
	(b)	if the offender is committed under the Magistrates Court Act 1930, section 90A (Plea of guilty in committal proceeding)—the Supreme Court decides, or has decided, to deal with the offender under section 90A (11) of that Act.
	(2)	For subsection (1), it does not matter whether a charge is filed in relation to an offence for which an earlier charge has been laid.
	(3)	If section 140 (1) applies to an offender because of subsection (2), and the charge was filed before 2 June 2006, the charge must be disregarded for section 140 (2).
Part 1.5	Human Rights Commission Act 2005
[1.23]	Section 6
substitute
6	Main objects of Act
	(1)	The main object of the Act is to promote the human rights and welfare of people living in the ACT.
	(2)	The main object is to be achieved by establishing a commission that will—
	(a)	promote the provision of community education, information and advice in relation to human rights; and
	(b)	identify and examine issues that affect the human rights and welfare of vulnerable groups in the community; and
	(c)	make recommendations to government and non-government agencies on legislation, policies, practices and services that affect vulnerable groups in the community; and
	(d)	promote understanding and acceptance of, and compliance with, the Discrimination Act 1991 and the Human Rights Act 2004; and
	(e)	promote improvements in the provision of disability services, health services, services for children and young people and services for older people; and
	(f)	promote the rights of users of disability services, health services, services for children and young people and services for older people; and
	(g)	promote an awareness of the rights and responsibilities of users and providers of services to which this Act relates; and
	(h)	provide an independent, fair and accessible process for the resolution of discrimination complaints and complaints between users and providers of disability services, health services, services for children and young people and services for older people; and
	(i)	provide a process to encourage and assist users and providers of disability services, health services, services for children and young people, and services for older people, to make improvements in the provision of services, particularly by encouraging and assisting service users and providers to contribute to the review and improvement of service quality; and
	(j)	foster community discussion, and the provision of community education and information, about—
	(i)	this Act and related Acts; and
	(ii)	the operation of the commission; and
	(iii)	the procedures for making complaints.
[1.24]	Sections 19BA, 21A, 23A, 25A and 27A
after
another territory law to 
insert
another commissioner or 
[1.25]	Section 43 (1)
after
an act
insert
or service
[1.26]	Section 43 (1) (a)
after
the act
insert
or service
[1.27]	Section 45 (2) (c)
substitute
	(c)	unless section 45 (4) applies—before considering the complaint, tell the complainant and the person complained about, in writing, that the complaint is to be considered; and
[1.28]	New section 45 (3) and (4)
insert 
	(3)	However, the commission need not consider a complaint if satisfied that— 
	(a)	the complaint—
	(i)	is frivolous, vexatious or not made honestly; or
	(ii)		lacks substance; or
	(iii)	is to be referred to another statutory officer-holder; or
	(iv)	cannot be made by the complainant under the Act; or
	(v)	cannot otherwise be made under the Act; or
	(b)	the complainant has been given a reasonable explanation and the complaint needs no further action by the commission; or 
	(c)	the matters raised by the complaint have been, or are being, dealt with by a court or tribunal or have been dealt with by the commission.
	(4)	Also, the commission need not give notice under subsection (2) to the person complained of if, because of subsection (3), it decides—
	(a)	not to consider the complaint; or
	(b)	not to consider the complaint further.
[1.29]	New section 47 (4)
insert
	(4)	Also, a complaint may be referred to another entity under section 53A (Referral to appropriate statutory office-holder).
[1.30]	Section 48 (1) (a)
substitute
	(a)	an act or service that appears to the commission to be an act or service about which a person could make, but has not made, a complaint under this Act; or
[1.31]	Section 48 (3) (b), example 1 
substitute
1	The complaint appears to reveal a systemic problem about an activity or a service.
[1.32]	New section 53A
in division 4.2, insert
53A	Referral to appropriate statutory office-holder
	(1)	This section applies if—
	(a)	the commission considers that the act or service to which a complaint relates is a matter that could—
	(i)	have been complained about to a statutory office-holder; and
	(ii)	be dealt with more conveniently or effectively by the statutory office-holder; and
	(b)	the commission considers it would be appropriate for the complaint to be referred to the statutory office‑holder; and
	(c)	the commission has consulted the statutory office-holder about the referral.
	(2)	The commission may—
	(a)	decide not to deal with, or further deal with, the complaint; and
	(b)	if paragraph (a) applies—must refer the complaint, together with any relevant documents or information in its possession or control, to the statutory office-holder.
	(3)	In this section:
statutory office-holder means an office established under a territory law (other than this Act) or a law of the Commonwealth, a State or another Territory.
	(4)	To remove any doubt, this section is in addition to, and does not limit, section 51A (Referral of advocacy matters).
[1.33]	Section 78 (2) (e)
substitute
(e)	the complaint has been dealt with to the commission’s satisfaction; or
(f)	the complaint has been referred under section 53A (Referral to appropriate statutory office‑holder); or
(g)	the complaint has otherwise been resolved. 
[1.34]	Section 82 (1) and (2)
substitute
	(1)	The final report in relation to a discrimination complaint must include a discrimination referral statement.
Note	Discrimination referral statement—see s 88.
	(2)	However, subsection (1) does not apply if—
	(a)	the parties to the complaint have made a conciliation agreement in relation to the complaint; or
	(b)	the complainant has withdrawn the complaint.
[1.35]	Section 88
substitute
88	Discrimination referral statements	
A discrimination referral statement is a statement in a notice in relation to a complaint to the effect that—
	(a)	the commission has closed the complaint; and
	(b)	the complainant may ask the commission to refer the complaint to the discrimination tribunal within 60 days after the day the notice is given to the complainant; and
	(c)	after the 60-day period, the complainant may apply to the discrimination tribunal under the Discrimination Act 1991, section 78 (Late application in exceptional circumstances) for the complaint to be heard.
Note	The commission must refer the complaint to the tribunal if the complainant asks it to refer the complaint within the 60-day period (see s 53).
Part 1.6	Magistrates Court Act 1930
[1.36]	Section 266 (b)
omit
essential services consumer council
substitute
energy and water consumer council
Part 1.7	Ombudsman Act 1989
[1.37]	Section 5 (2) (o) 
substitute
	(o)	action taken by the energy and water consumer council under the Utilities Act 2000.
[1.38]	Section 6B (1) (c)
substitute
	(c)	the energy and water consumer council under the Utilities Act 2000;
Part 1.8	Partnership Act 1963
[1.39]	Section 57 (2) (a)
	substitute
	(a)	that the partnership is registered under the Venture Capital Act 2002 (Cwlth), part 2 (Registration of limited partnerships) as a VCLP, ESVCLP or AFOF; or
Note	VCLP is a venture capital limited partnership, an ESVCLP is an early stage venture capital limited partnership, and an AFOF is an Australian venture capital fund of funds.
[1.40]	Section 57 (2) (b)
after
VCLP
insert
, ESVCLP
[1.41]	Section 58 (3) (g)
substitute
	(g)	for an application by a partnership that is registered under the Venture Capital Act 2002 (Cwlth), part 2 (Registration of limited partnerships) as a VCLP, ESVCLP or AFOF—be accompanied by a copy of a document proving its status as a VCLP, ESVCLP or AFOF; and
[1.42]	Section 58 (3) (h)
after
VCLP
insert
, ESVCLP
[1.43]	Section 68 (4) (k)
substitute
	(k)	takes any action, or participates in any action taken by any other limited partner, for the purpose of registering or maintaining the registration of the partnership or a general partner in the partnership as a VCLP, ESVCLP or AFOF under the Venture Capital Act 2002 (Cwlth), part 2 (Registration of limited partnerships).
[1.44]	Section 78 (1) (b) (i)
substitute
	(i)	registered as a VCLP, ESVCLP or AFOF under the Venture Capital Act 2002 (Cwlth), part 2 (Registration of limited partnerships);
[1.45]	Section 91 (1)
substitute
	(1)	An incorporated limited partnership that was incorporated on the basis that it intended to apply for registration of the partnership as a VCLP, ESVCLP or AFOF under the Venture Capital Act 2002 (Cwlth), part 2 (Registration of limited partnerships) must, within 1 month after being registered, give the commissioner for fair trading a copy of a document proving its status as a VCLP, ESVCLP or AFOF.
[1.46]	Section 91 (3) (a)
after
VCLP
insert
, ESVCLP
Part 1.9	Residential Tenancies Act 1997
[1.47]	Section 42 (1)
substitute
	(1)	This section applies to a conditional termination and possession order.
Note	A conditional termination and possession order is made under s 49 (3) (see also dict).
	(1A)	The order expires on the date stated by the tribunal in the order.
[1.48]	Section 42A (1) (a)
substitute
	(a)	the tribunal has issued a conditional termination and possession order; and
[1.49]	Section 42A (1) (c)
omit
enforcement
[1.50]	Section 42A (2) (b)
before
termination and possession order
insert
conditional
[1.51]	Section 42B (4) (a) to (c)
substitute
	(a)	confirm the conditional termination and possession order; or
	(b)	make another conditional termination and possession order; or
	(c)	set aside the conditional termination and possession order.
[1.52]	Section 48 (1)
substitute
	(1)	On application by a lessor, the tribunal may make a termination and possession order if—
	(a)	satisfied that—
	(i)	the tenant has breached the standard residential tenancy terms (other than by failing to pay rent due and payable); and
	(ii)	the lessor has served a termination notice on the tenant based on the breach; and
	(iii)	the tenant did not vacate the premises in accordance with the notice; and
	(iv)	the breach of the standard residential tenancy terms was not in accordance with a term of the residential tenancy agreement endorsed by the tribunal; and
(v)	the breach justifies the termination of the tenancy; or
	(b)	the tribunal—
	(i)	has made an order under section 104 (b); and 
	(ii)	is satisfied that the tenant has breached that order; and
	(iii)	is satisfied that the breach justifies the termination of the tenancy.
[1.53]	Section 49 (3)
after
the tribunal may order 
insert
(conditional termination and possession order)
[1.54]	Section 102 (3)
substitute
	(3)	The tribunal may, on application by a party, while a conditional termination and possession order is in force, do either of the following:
	(a)	amend the order, whether by extending it to a stated date or otherwise; 
	(b)	set the order aside.
	(4)	Subsection (3) applies whether or not a notice has been served under section 42A (2) (b) (Failure to comply with conditional order).
[1.55]	Section 112 (4), note
substitute
Example
The president may appoint a tribunal member to hear a matter about which the parties consent, such as the endorsement of inconsistent terms under s 10.
Note 1	The president may appoint a member to the tribunal for the hearing of a particular class of matters (see Legislation Act s 48 (1)).
Note 2	An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
[1.56]	Dictionary, new definition of conditional termination and possession order
insert
conditional termination and possession order means a termination and possession order under section 49 (3).
[1.57]	Dictionary, definition of enforcement condition
omit
Part 1.10	Utilities Act 2000
[1.58]	Part 11 heading
substitute
Part 11	Energy and Water Consumer Council
[1.59]	Section 169
omit
Essential Services Consumer Council
substitute
Energy and Water Consumer Council
[1.60]	Section 254 (2)
omit
(Essential Services Consumer Council)
substitute
(Energy and Water Consumer Council)
[1.61]	Dictionary, definition of council
substitute
council means the Energy and Water Consumer Council established under part 11.
Part 1.11	Victims of Crime (Financial Assistance) Act 1983
[1.62]	Section 3, table 3, new item 8A
insert
8A	29	culpable driving	
[1.63]	Section 3, table 3, new item 28
insert
28	79	sexual servitude offences	

Endnotes
1	Presentation speech
	Presentation speech made in the Legislative Assembly on 6 March 2008.
2	Notification
	Notified under the Legislation Act on 8 July 2008.
3	Republications of amended laws
	For the latest republication of amended laws, see www.legislation.act.gov.au.

I certify that the above is a true copy of the Justice and Community Safety Legislation Amendment Bill 2008 (No 2), which originated in the Legislative Assembly as the Justice and Community Safety Legislation Amendment Bill 2008 and was passed by the Assembly on 3 July 2008. 

Acting Clerk of the Legislative Assembly

© Australian Capital Territory 2008