2017

THE LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY

JUSTICE AND COMMUNITY SAFETY LEGISLATION AMENDMENT BILL 2017

EXPLANATORY STATEMENT

Presented by
Gordon Ramsay MLA
Attorney-General

JUSTICE AND COMMUNITY SAFETY LEGISLATION AMENDMENT BILL 2017
Introduction
This Explanatory Statement is for the Justice and Community Safety Legislation Amendment Bill 2017 (the Bill) as presented in the ACT Legislative Assembly. It has been prepared in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
The Statement must be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. What is said about a provision is not to be taken as an authoritative guide to the meaning of a provision, this being a task for the courts.
Overview of the Bill
The Bill makes amendments to 17 Acts and one Regulation in the Justice and Community Safety portfolio and repeals two Directions. The amendments are intended to improve the operation of each amended law without amounting to a major change in policy.
Summary of amendments
Limitation Act 1985 
The Bill expands on amendments introduced in the Justice and Community Safety Legislation Amendment Act 2016 (No 2) by removing limitation periods from the Civil Law (Wrongs) Act 2002 and the Limitation Act 1985 that apply to claims for damages brought by survivors of child sex abuse in a non-institutional context.
The Royal Commission into Institutional Responses to Child Sexual Abuse concluded after extensive consultation that ‘limitation periods are a significant, sometimes insurmountable, barrier to survivors [of child sexual abuse] pursuing civil litigation’.
The Bill recognises the length of time that it can take for a survivor of child sex abuse to disclose the abuse and that limitation periods have the practical effect of denying survivors reasonable opportunity to seek justice and compensation through the law. The Bill also recognises that this barrier exists regardless of the context in which the child sexual abuse took place. 
The Bill will allow more survivors to seek redress and justice through civil proceedings. 
Common Boundaries Act 1997
Section 6 of the Common Boundaries Act 1997 allows occupiers of adjoining parcels of land to repair or replace a damaged or destroyed fence that needs to be replaced without delay to protect people living in premises on one of those parcels of land. 
The Bill amends the Common Boundaries Act to recognise that there may be situations where a fence must be repaired without delay to protect people who do not live at a property but who nevertheless are lawfully at the property. 
Criminal Code 2002
The default application date of 1 July 2017 in the Criminal Code 2002 signifies the date at which the Government intended to complete the full and comprehensive codification of all offences in the ACT. This codification process is still ongoing.
The Bill amends the Criminal Code to make the application date a date declared by the Minister by notifiable instrument. This amendment allows the Government to continually prioritise justice initiatives and results in better efficiency by avoiding further extensions of the timeframe. 
Director of Public Prosecutions Directions
The Bill repeals the Director of Public Prosecutions Direction 2006 (No 1) and the Director of Public Prosecutions Direction 2016 (No 1) as they are obsolete. 
Evidence Act 2011
The amendment to section 129(7) of the Evidence Act 2011 corrects a grammatical error by adding the word ‘evidence’. 
Freedom of Information Act 2016
The commencement date for the Freedom of Information Act 2016 (FOI Act) is 1 July 2017. The Bill amends the FOI Act to make the commencement date 1 January 2018. 
The Bill also amends the open access information scheme set out in part 4 of the FOI Act to confine open access information to information that comes into existence on or after  the date of commencement of the FOI Act. 
The Bill makes amendments to section 81 of the FOI Act, which provides for costs where the Ombudsman refers a matter to mediation. The amendments clarify that the decision-maker must pay for the practical costs of the mediation such as the fees for the mediator and the costs of the venue, but that participants otherwise must bear their own associated costs such as for legal representation and advice. 
Gaming Machine Act 2004
Section 163A(2)(a) of the Gaming Machine Act 2004 sets out the percentage of gross gaming machine revenue (GGMR) that is payable by licensees to the Problem Gambling Assistance Fund. 
The Bill increases the percentage payable by licensees from 0.6 to 0.75 per cent of the GGMR.

Judicial Commissions Act 1994
The Judicial Commissions Amendment Act 2015 which commenced in February 2017 made some amendments to the Judicial Commissions Act 1994. As a result of these amendments there is a slight inconsistency between section 14 and the dictionary of the Judicial Commissions Act. 
The Bill updates the definition of the word ‘complaint’ in the dictionary so that is consistent with the amendments that were made to section 14 of the Judicial Commissions Act. 
Legal Aid Act 1977
Section 37 of the Legal Aid Act 1977 limits the number of members on each panel for legal aid review committees to not more than nine. In order to address difficulties in finding enough people available to join a review committee, the Bill increases the maximum number of panel members for each panel from nine to 14. 
Section 68A of the Legal Aid Act refers to an ‘equal employment opportunity program’. The amendments change this to an ‘equal employment opportunity policy’ to reflect current practice of the Legal Aid Commission. 
The Bill also adds the term ‘legal practitioner’ to Note 2 of the dictionary as a term defined by the Legislation Act 2001. This clarifies that the term ‘legal practitioner’ in the Legal Aid Act has the meaning provided by the Legislation Act.
Legal Profession Act 2006
The Legal Profession Act 2006 specifies that the practising certificates for in-house lawyers must include a restriction that the lawyer can only provide legal services for the corporation by which they are employed. By contrast, in-house lawyers without practising certificates may also provide legal services for related bodies corporate of the corporation by which they are employed. 
In order to ensure that the Legal Profession Act is consistent and aligns with the Legal Profession National Law operating in Victoria and New South Wales and the Corporations Act 2001 (Commonwealth), the amendments clarify that all in-house lawyers may provide legal services to the corporation by which they are employed or to a related body corporate. 
Magistrates Court (Sale of Motor Vehicles Infringement Notices) Regulation 2005
The Bill updates the Magistrates Court (Sale of Motor Vehicles Infringement Notices) Regulation 2005 to reflect that the relevant functions of the Registrar of Motor Vehicles are now exercised by the Commissioner for Fair Trading. 
Road Transport Legislation
The upcoming Road Transport (Road Rules) Regulation 2017 aligns ACT road rules with the newly amended national road rules. 

The Bill makes consequential amendments, required before the Regulation can commence, to the following legislation: 
•	Dangerous Goods (Road Transport) Act 2009;
•	Heavy Vehicle National Law (ACT) Act 2013;
•	Public Unleased Land Act 2013; 
•	Rail Safety National Law (ACT) Act 2014;
•	Road Transport (General) Act 1999;
•	Road Transport (Public Passenger Services) Act 2001; and 
•	Road Transport (Safety and Traffic Management) Act 1999. 
Human Rights Implications
Right to Fair Trial
As the Bill removes limitation periods that apply to claims for damages brought by survivors of child sex abuse, there is an engagement of the individual’s right to a fair trial before a competent, independent and impartial court or tribunal under section 21 of the Human Rights Act 2004 (HRA). 
Under section 28 of the HRA, human rights may be subject to reasonable limits that can be demonstrably justified in a free and democratic society. In deciding whether a limit is reasonable, section 28 provides relevant factors to be considered including the importance of the purpose of the limitation and the nature and extent of the limitation. 
Nature of the right
The right to a fair trial is a basic human right. Article 10 of the Universal Declaration of Human Rights states: 
	‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal 	charge against him’. 
This right is also captured in the International Covenant on Civil and Political Rights which states at Article 14.1: 
	‘All persons shall be equal before the courts and tribunals. In the determination of any 	criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be 	entitled to a fair and public hearing by a competent, independent and impartial tribunal 	established by law’. 
One principle underpinning the right to a fair trial is the principle of equality under the law. This requires that parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to proceedings.
Another central principle is that of independence and impartiality. This requirement means that proceedings must be free from both bias and the objective perception of bias. 

Importance of the purpose of the limitation
The removal of limitation periods for survivors of child sexual abuse in all contexts is extremely important as it improves access to justice. Limitation periods are often an insurmountable barrier to survivors of child sexual abuse in pursuing litigation. The Royal Commission found that it takes an average of 22 years for survivors to just disclose the abuse.
It is important that the law is seen to be able to provide redress and justice, even though circumstances mean that a person is not able or willing to enforce their rights initially. The law must recognise and be able to respond to the nature of the impacts of child sexual abuse in order to maintain public confidence in equal application of rights and obligations to all members of society. It is especially important that the law does not favour perpetrators of abuse or limit the access of ordinary citizens to claim compensation to which they are rightfully entitled. 
Nature and extent of the limitation
The removal of limitation periods for child sexual abuse may engage the right to a fair trial due to the burdensome effect that a long lapse of time before the proceedings are started may have on the defendant. Furthermore, loss of records and the unavailability of relevant witnesses may result in prejudice to the defendant which may in turn affect the ability to have a fair trial. 
However, the defendant will be protected from unfair proceedings by two factors. Firstly, the claimant will still need to prove their case through admissible evidence. Secondly, the courts’ relevant existing jurisdictions and powers to stay proceedings, for example where the defendant is unable to obtain a fair trial, are unaffected by this Bill. 
Relationship between the limitation and its purpose
This Bill will improve access to justice for survivors of child sexual abuse in all contexts by removing the requirement for survivors of child sexual abuse in non-institutional contexts to seek an extension of time. Courts, such as in the matter of Hopkins v State of Queensland [2004] QDC 021, do not always take into account the particular long-lasting trauma experienced by survivors of child sex abuse and the average time of 22 years it takes to disclose that abuse. Furthermore, respondents may contest extensions of time as part of a delaying litigation strategy. 
This Bill will allow child sexual abuse claims, no matter the context and no matter the time it takes for a survivor to disclose the abuse, to be heard on their merits. 

Other less restrictive means
There are no other avenues to achieve the purpose which are less restrictive. 
These amendments represent a reasonable and justifiable limitation on the right to a fair trial, which is outweighed by the importance of improving access to civil litigation for survivors of child sexual abuse and which is still largely protected by courts’ jurisdictions and powers to stay proceedings. 
Climate Change Impacts
This Bill has no identified climate change impacts.

CLAUSE NOTES
Part 1		Preliminary
Clause 1	Name of Act
This clause names the Justice and Community Safety Legislation Amendment Act 2017.
Clause 2	Commencement
This clause provides for the commencement of this Act.
The provisions relating to the consequential amendments required by the Road Transport (Road Rules) Regulation 2017 commence on either the commencement of the Regulation or the commencement of this Act, whichever is later. 
The provision relating to the Gaming Machine Act 2004 commences on 1 July 2017. 
Clauses 20 to 23, relating to amendments to the Freedom of Information Act 2016, commence on 1 January 2018.
The remaining provisions commence on the seventh day after this Act is notified on the Legislation Register. 
Clause 3	Legislation Amended
This clause provides that this Act amends the legislation mentioned in this clause.
Clause 4	Legislation Repealed
This clause provides that this Act repeals the instruments mentioned in this clause. 
Part 2 		Civil Law (Wrongs) Act 2002
Part 2 makes consequential amendments to the Civil Law (Wrongs) Act 2002 so that it is consistent with the amendments to the Limitation Act 1985, which remove limitation periods for personal injury claims resulting from child sexual abuse in a non-institutional context. 
Clause 5 	Notice of claim Section 51 (1), note 2; and
Clause 6 	Section 51 (3) and (4)	
These amendments remove the requirement that child abuse claims occurred in an institutional context from section 51(1), note 2 and sections 51(3) and (4). 
Clause 7	Section 51 (10), new definition of child abuse claim
This clause inserts a new definition of ‘child abuse claim’, removing the requirement that the abuse occurred in an institutional context. 
Clause 8 	Section 51 (10), definitions of institutional child abuse claim and institutional context
This clause removes the definitions of ‘institutional child abuse claim’ and ‘institutional context’ as they require a claim to be in an institutional context.
Part 3		Common Boundaries Act 1981
Part 3 makes amendments to the Common Boundaries Act 1981 to allow for the repair or replacement of a fence between adjoining parcels of land without notice to the owner of the adjacent land in order to protect people lawfully at the premises. 
Clause 9	Application to ACAT – repair cost determination
Section 6 (1) (b)
This clause amends the term ‘people living in premises’ to ‘people lawfully at premises’. 
Clause 10	New section 6 (5)
This clause inserts new section 6 (5) into the Common Boundaries Act to provide a definition of the term ‘people lawfully at premises’. 
Part 4		Criminal Code 2002
Part 4 makes amendments to the Criminal Code 2002 to remove the default application date and make the application date a date declared by the Minister by notifiable instrument. These amendments allow for greater flexibility in completing the codification of all offences in the ACT. 
Clause 11 		Codification Section 5 (2) and (3); and
Clause 12 		Delayed application of ch 2 to certain offences Section 8 (5)	
These amendments remove the word ‘default’. 
Clause 13	Section 10
This clause inserts new definitions for the terms ‘applied provisions’ and ‘application date’ and provides that the application date is declared by the Minister by notifiable instrument. 
Clause 14	Dictionary, new definition of application date
This clause inserts into the dictionary of the Criminal Code a reference to the new definition of ‘application date’. 
Clause 15	Dictionary, definition of default application date
This clause removes the definition of ‘default application date’. 
Part 5		Dangerous Goods (Road Transport) Act 2009
Part 5 makes consequential amendments to the Dangerous Goods (Road Transport) Act 2009 that are required before the Road Transport (Road Rules) Regulation can commence. 
Clause 16	Dictionary, definition of Australian Road Rules
This clause removes the definition of ‘Australian Road Rules’ from the dictionary of the Dangerous Good (Road Transport) Act. 
Clause 17	Dictionary, definitions of road and road related area
This clause substitutes new definitions of ‘road’ and ‘road related area’, both which reference the dictionary of the Road Transport (General) Act 1999. 
Part 6		Evidence Act 2011
Part 6 makes a technical amendment to the Evidence Act 2011 to correct a grammatical error. 
Clause 18	Privilege in relation to self-incrimination in other proceedings 
Section 128 (7)
This clause inserts the word ‘evidence’ so that the section as a whole makes grammatical sense. 
Part 7		Freedom of Information Act 2016
Part 7 delays the commencement date of the Freedom of Information Act 2016 to 1 January 2018. 
The amendments also restrict the open access information scheme to apply only to information that came into existence on or after the commencement of the Freedom of Information Act. These amendments avoid the scheme being applied retrospectively. 
The amendments also clarify who is responsible for what costs in matters referred for mediation by the Ombudsman. 
Clause 19	Commencement
Section 2
This clause amends the commencement date of the Freedom of Information Act from 1 July 2017 to 1 January 2018. 
Clause 20	What is open access information? 
Section 23 (1), definition of open access information, of an agency
This clause amends the definition of ‘open access information’ of an agency to limit its application to information that came into existence on or after 1 January 2018. This amendment is necessary to ensure that the open access scheme does not operate retrospectively.
Clause 21	Section 23(1), definition of open access information, of a Minister, paragraph (a)
This clause amends the definition of ‘open access information’ of a Minister to limit its application to information that came into existence on or after 1 January 2018. This amendment is necessary to ensure that the open access scheme does not operate retrospectively.
Clause 22	Open access information declarations
New section 65 (2A)
This clause inserts a new section to prevent the Ombudsman from declaring government information that came into existence before 1 January 2018 to be open access information. This amendment is necessary to ensure that the open access scheme does not operate retrospectively.
Clause 23	Mediation for applications
Section 81 (4)
This clause applies to mediations referred by the Ombudsman and clarifies the costs that the decision-maker must pay and the costs that should be borne by the other participants. 
Part 8		Gaming Machine Act 2004
Section 163A of the Gaming Machine Act 2004 establishes the required percentage of gross gaming machine revenue (GGMR) that is payable by licensees to the Problem Gaming Assistance Fund (PGAF). The amendments to the Gaming Machine Act increase the required percentage of GGMR payable to the PGAF. 
Clause 24	Required payment to problem gambling assistance fund 
Section 163A (2) (a)
This clause amends the percentage of GGMR payable to the PGAF to 0.75 per cent.
Part 9		Heavy Vehicle National Law (ACT) Act 2013
Part 9 makes a consequential amendment to the Heavy Vehicle National Law (ACT) Act 2013. This amendment is required before the Road Transport (Road Rules) Regulation can commence. 
Clause 25	Section 19
This clause declares that the Road Transport (Road Rules) Regulation is the Road Rules for the Heavy Vehicle National Law (ACT). 
Part 10	Judicial Commissions Act 1994
Part 10 makes a minor amendment to the dictionary of the Judicial Commissions Act 1994 to make the definition of ‘complaint’ consistent with the amendments introduced by the Judicial Commissions Amendment Act 2015 which commenced on 1 February 2017. 
Clause 26	Dictionary, definition of complaint
This clause amends the definition of the word ‘complaint’ in the Judicial Commissions Act. 
Part 11	Legal Aid Act 1977
Part 11 makes amendments to the Legal Aid Act 1977 to increase the maximum number of panel members from which members of a review committee are selected. This part also amends references to ‘equal employment opportunity program’ to ‘equal employment opportunity policy’, and adds a reference to the term ‘legal practitioner’ to the dictionary of the Legal Aid Act. 
Clause 27	Establishment and constitution of review committees
Section 37 (3) (a), (4) (a) and (5)
This clause increases the maximum number of members on each panel from which members of a review committee are selected from 9 to 14. 
Clause 28	Personnel management
Section 68A 
This clause amends references to ‘program’ to ‘policy’ in section 68A.
Clause 29	Dictionary, note 2
This clause inserts the term ‘legal practitioner’ into note 2 of the dictionary of the Legal Aid Act. This clarifies that legal practitioner is defined in the Legislation Act 2001.
Part 12	Legal Profession Act 2006
Part 12 makes amendments to the Legal Profession Act 2006 to clarify that an in-house lawyer may provide in-house legal services to the corporation by which the lawyer is employed and a related body corporate. 
Clause 30	Purposes and application – pt 2.4
Section 33 (2) (b)
This clause makes an amendment to clarify that an in-house lawyer may provide legal services to the corporation by which they are employed and a related body corporate to that corporation.
Clause 31	Section 33 (3), definition of in-house lawyer, paragraph (b)
This clause amends a reference to ‘corporation’ to ‘corporation (or a related body corporate)’, clarifying that an in-house lawyer may provide legal services to the corporation by which they are employed and a related body corporate to that corporation.
Clause 32	Section 38 (1) (b)
This clause substitutes the term ‘in-house lawyer’, clarifying that an in-house lawyer may provide legal services to the corporation by which they are employed and a related body corporate to that corporation.
Clause 33	Section 38 (2) (b)
This clause clarifies that an in-house lawyer with a practising certificate may provide legal services to the corporation by which they are employed and a related body corporate to that corporation.
Clause 34	New section 38 (5)
This clause inserts into section 38 of the Legal Profession Act a reference to the definition of ‘in-house lawyer’ under section 33, clarifying that an in-house lawyer may provide legal services to the corporation by which they are employed and a related body corporate to that corporation.
Clause 35	Professional indemnity insurance – interstate legal practitioners 
Section 72 (2)
This clause amends a reference to ‘corporation’ to ‘corporation (or a related body corporate)’, clarifying that an in-house lawyer may provide legal services to the corporation by which they are employed and a related body corporate to that corporation.
Clause 36 	Definitions – pt 2.6 Section 99 (2), definition of related body corporate: and Clause 37 	Dictionary, definition of related body corporate	
These amendments move the definition of the term ‘related body corporate’ from section 99 (2) to the dictionary because these amendments to the Legal Profession Act mean that the term ‘related body corporate’ is now used throughout the Legal Profession Act rather than just in part 2.6.
Part 13	Limitation Act 1985
Part 13 makes amendments to the Limitation Act 1985 to remove limitation periods for personal injury claims resulting from sexual abuse of a child in non-institutional contexts. These amendments improve access to justice for survivors of child sexual abuse.
Clause 38	Section 21C heading
This clause changes the heading of section 21C to ‘Personal injury resulting from sexual abuse of child’, removing the reference to ‘institutional context’.
Clause 39	Section 21C (1) (a)
This clause removes the term ‘in an institutional context’. 
Clause 40	Section 21C (4), definitions of institution, institutional context and official
This clause removes the definitions of ‘institution’, ‘institutional context’ and ‘official’ because they relate to child sexual abuse in an institutional context. 
Clause 41	Special provisions in relation to children – claims relating to health services 
Section 30B (1) (b) (ii)
This clause removes the term ‘institutional’. 
Part 14	Magistrates Court (Sale of Motor Vehicles Infringement Notices) 			Regulation 2005
Part 14 makes amendments to the Magistrates Court (Sale of Motor Vehicles Infringement Notices) Regulation 2005 to reflect that the functions previously exercised by the registrar are now exercised by the Commissioner for Fair Trading. 
Clause 42 	Dictionary Section 4, note 1; and
Clause 43 	Section 4, note 2
These amendments remove from Section 4 note 1 and ‘(including a signpost definition’ from note 2 because they refer to signpost definitions in the dictionary which, following the commencement of these amendments, will no longer contain any signpost definitions.
Clause 44	Administering authority 
Section 6
This clause substitutes the term ‘commissioner for fair trading’ for the term ‘registrar’. 
Clause 45	Dictionary, note 2
This clause inserts the term ‘commissioner for fair trading’ into the list of terms in note 2 of the dictionary, clarifying that the term ‘commissioner for fair trading’ is defined in the Legislation Act 2001.
Clause 46	Dictionary, definition of registrar
This clause removes the definition of the term ‘registrar’ from the Dictionary. 
Part 15	Public Unleased Land Act 2013
Part 15 makes a consequential amendment to the Public Unleased Land Act 2013. The amendment is required before the Road Transport (Road Rules) Regulation can commence. 
Clause 47	Direction to remove objects from public unleased land 
Section 98 (7), definition of park
This clause amends the signpost definition of ‘park’ to refer to the Road Transport (Road Rules) Regulation. 
Part 16	Rail Safety National Law (ACT) Act 2014
Part 16 makes consequential amendments to the Rail Safety National Law (ACT) Act 2014 that are required before the Road Transport (Road Rules) Regulation can commence.
Clause 48	Meaning of generic terms for Rail Safety National Law (ACT)
Section 9 (1), definition of Australian Road Rules
This clause removes the definition of ‘Australian Road Rules’ as the definition will be obsolete following commencement of the Road Transport (Road Rules) Regulation. 
Clause 49	Section 9 (1), definition of shared path
This clause updates the definition of ‘shared path’ to refer to the Road Transport (Road Rules) Regulation.
Part 17	Road Transport (General) Act 1999
Part 17 makes consequential amendments to the Road Transport (General) Act 1999 that are required before the Road Transport (Road Rules) Regulation can commence.
Clause 50	Dictionary, definition of Australian Road Rules
This clause removes the term ‘Australian Road Rules’ from the dictionary of the Road Transport (General) Act. 
Clause 51	Dictionary, definition of bicycle, notes 2 and 3
This clause removes notes 1 and 2 from the definition of ‘bicycle’, which include references to ‘power-assisted pedal cycle’, ‘wheelchair’, ‘wheeled recreational device’ and ‘wheeled toy’. 
Clause 52	Dictionary, new definitions 
This clause inserts definitions of ‘wheelchair’, ‘wheeled recreational device’ and ‘wheeled toy’ into the dictionary of the Road Transport (General) Act. 
Part 18	Road Transport (Public Passengers Services) Act 2001
Part 18 makes consequential amendments to the Road Transport (Public Passengers Services) Act 2001 that are required before the Road Transport (Road Rules) Regulation can commence.
Clause 53	Dictionary, note 3
This clause removes the term ‘Australian Road Rules’ from note 3 of the dictionary of the Road Transport (Public Passengers Services) Act. 
Clause 54	Dictionary, definition of taxi zone
This clause updates the definition of ‘taxi zone’ to refer to the Road Transport (Road Rules) Regulation. 
Part 19	Road Transport (Safety and Traffic Management) Act 1999
Part 19 makes a consequential amendment to the Road Transport (Safety and Traffic Management) Act 1999. The amendment is required before the Road Transport (Road Rules) Regulation can commence.
Clause 55	Dictionary, definition of road user 
This clause updates the definition of ‘road user’ to refer to the Road Transport (Road Rules) Regulation.