2003

LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY

JUSTICE AND COMMUNITY SAFETY LEGISLATION AMENDMENT
BILL 2003 (No. 2)

EXPLANATORY STATEMENT

Circulated by authority of the
Attorney General
Mr Jon Stanhope MLA
JUSTICE AND COMMUNITY SAFETY LEGISLATION AMENDMENT 
BILL 2003 (No 2)

Overview of Bill

The Justice and Community Safety Legislation Amendment Bill 2003 (No 2) amends a number of laws administered by the ACT Department of Justice and Community Safety.  The laws amended include:

•	Agents Act 2003
•	Consumer Credit Act 1995
•	Consumer Credit Regulations 1996
•	Cooperatives Act 2002
•	Cooperatives Regulations 2003
•	Fair Trading Act 1992
•	Magistrates Court (Civil Jurisdiction) Act 1982
•	Protection Orders Act 2001
•	Security Industry Act 2003

Strict liability offences

The amendment to the Cooperatives Act 2002 inserts a strict liability offence.  A strict liability offence under section 23 of the Criminal Code 2002 means that there are no fault elements for any of the physical elements of the offence.  Essentially, this means that conduct alone is sufficient to make the defendant culpable.  However, under the Criminal Code 2002, all strict liability offences will have a specific defence of mistake of fact.  Clause 23(3) of the Criminal Code 2002 makes it clear that other defences may still be available for use in strict liability offences.

Strict liability offences do not have a mental element, or mens rea.  However, the actus reus, the physical actions, do have a mental element of their own, for example, voluntariness.  For this reason, the general common law defences of insanity and automatism still apply as they go towards whether a person has done something voluntarily, as well as whether they intended to do the act.

The proposed amendments are detailed below.  

Agents Act 2003

The vast majority of offences in the Agents Act 2003 are strict liability offences.  Sections 86 and 87 of the Act are exceptions, as both sections expressly include a fault element.  The addition of a subsection stating that the offences in these sections are strict liability offences was an oversight and is removed by this amendment.

The Bill amends section 202 of the Agents Act 2003 to correct an inadvertent drafting error.  References in this section to Agents Act 1959, should read Agents Act 1968.

The Bill also amends section 168 of the Agents Act 2003 to remove an inconsistency with the Consumer and Trader Tribunal Act 2003.

Consumer Credit Act 1995

This amendment removes section 10 of the Consumer Credit Act 1995 and inserts a new Part 3A into the Consumer Credit Act 1995 to amend the current wording of the regulation‑making power under the Act, which is currently limited specifically to the setting of a percentage rate.  The amendment is necessary to facilitate a future amendment to the Consumer Credit Regulations 1996.  The amendment also provides for disclosure requirements in relation to short term credit contracts.

Consumer Credit Regulations 1996

This is a consequential amendment required due to the changes to the Consumer Credit Act 1995.

Cooperatives Act 2002

This amendment corrects a number of anomalies identified in the course of drafting the regulations for the Cooperatives Act 2002.  The Cooperatives Act 2002 provides that a Registrar of Cooperatives is to be appointed by the Chief Executive, but that Deputy Registrars are to be appointed by the Minister.  This Bill amends the Act to allow the Chief Executive to also appoint Deputy Registrars.  This amendment corrects the anomaly, provides for easier administration, and ensures consistency with provisions in other legislation, like the Consumer and Trader Tribunal Act 2003.  

The Bill also adds an offence to the Cooperatives Act 2002 where a body fails to lodge with the Registrar particulars of any alterations, in circumstances set out in section 375.  A failure to lodge these particulars will be the commission of an offence punishable by a maximum of 10 penalty units.  This offence was to form part of the regulations, but on the advice of Parliamentary Counsel’s Office, it is necessary to add the offence to the Act itself.  The Cooperatives Act 2002 is uniform legislation using the Queensland Cooperatives Act as the national model.  All amendments are consistent with the national model.  

Cooperatives Regulations 2003

The Bill amends the Cooperatives Regulations 2003 to specify the Commonwealth Aboriginal Councils and Associations Act 1976 as a law under which a cooperative may, if approved, become registered or incorporated under section 307(1)(e) of the Cooperatives Act 2002.

Fair Trading Act 1992

Currently, subsection 41(5) of the Fair Trading Act 1992 refers to sections 180, 182 and 183 of the Crimes Act 1900 which, following the introduction of the Criminal Code 2002, have been relocated into the Code.  The effect of the Criminal Code 2002 is such that subsection 41(5) in the Fair Trading Act 1992 is otiose.  Accordingly, paragraphs 41(1)(b) - (e) and subsection 41(5) of the Fair Trading Act 1992 are removed.  

Magistrates Court (Civil Jurisdiction) Act 1982

This amendment corrects a technical error in section 461 of the Magistrates Court (Civil Jurisdiction) Act 1982.  The current section refers to an order declaring that a specified amount of money is or is not due or owing to the applicant which should read by the applicant, because the applicant is always the debtor, not the creditor.  The amendment will correct this error.  As a consequence of this amendment, the Bill also alters the definition of a debt declaration under section 394 of the Act.

Protection Orders Act 2001

Section 33 of the Protection Orders Act 2001 requires the respondent to be personally served with a copy of a protection order made by the Magistrates Court.  The purpose of personal service is to ensure that the person upon whom the order is served is aware of both the existence of the order, and the consequences of a failure to comply with the order. Personal service should not be necessary if the respondent was before the court when the order was made, as the Magistrate has explained the order to the parties.  The Bill amends the requirement for personal service on the respondent to provide that personal service may be dispensed with where the respondent is before the court when the order is made, varied or revoked.  Personal service will only be retained where the order is made ex‑parte.  

Security Industry Act 2003

The Bill also amends section 37 of the Security Industry Act 2003 to remove an inconsistency with the Consumer and Trader Tribunal Act 2003.

Outline of Provisions

PART 1	Preliminary

Clause 1	Name of Act
This clause names the Act as the Justice and Community Safety Legislation Amendment Act 2003 (No 2).

Clause 2	Commencement
This clause provides that the Act commences 14 days after its notification day.

PART 2	Agents Act 2003

Clause 3	Legislation amended – pt 2
This clause explains that Part 2 amends the Agents Act 2003.

Clause 4	Agents must not obtain beneficial interest in land - section 86(3)
This clause omits subsection 86(3) of the Agents Act 2003, which declares that an offence under section 86 is a strict liability offence.

Clause 5	Salespeople must not obtain beneficial interest in land - section 87(3)
This clause omits subsection 87(3) of the Agents Act 2003, which declares that an offence under section 87 is a strict liability offence.

Clause 6	Section 168
This clause amends section 168 by adding the words “of a relevant person” to subsection 168(1).  The clause also removes the current subsection 168(2) and inserts a new subsection defining who is a relevant person for the purposes of the section.

Clause 7	Keeping of agents’ records – section 202
This clause amends section 202 by replacing the words “Agents Act 1959” with the words “Agents Act 1968”.

PART 3	Consumer Credit Act 1995

Clause 8	Legislation amended – pt 3
This clause explains that Part 3 amends the Consumer Credit Act 1995.

Clause 9	Definitions for Act – section 3
This clause inserts a number of definitions used in new Part 3A into section 3 of the Consumer Credit Act 1995.

Clause 10	New Part 3A
This clause inserts a new Part 3A - Maximum annual percentage rate and disclosure into the Consumer Credit Act 1995 to enable future amendments to the Consumer Credit Regulations 1996.  The amendment also requires credit providers to make certain disclosures required under the Consumer Credit (Australian Capital Territory) Code, in relation to short-term credit contracts.

Clause 11	Section 10
This clause omits section 10 of the Consumer Credit Act 1995.

PART 4	Consumer Credit Regulations 1996

Clause 12	Legislation amended – pt 4
This clause provides that Part 5 amends the Consumer Credit Regulations 1996.

Clause 13	Maximum annual percentage rate – Regulation 5
This clause amends Regulation 5 of the Consumer Credit Regulations 1996 by replacing the words “section 10(1)” with the words “section 8B(1)”.

PART 5	Cooperatives Act 2002

Clause 14	Legislation amended – part 5
This clause provides that Part 5 amends the Cooperatives Act 2002.

Clause 15	Application for transfer of registration etc – section 307(1)(e)
This clause substitutes a redrafted paragraph 307(1)(e), which replaces the phrase “outside the ACT” with the words “under a law of the Commonwealth, or a State or Territory or foreign country”.

Clause 16	Section 375 
This clause substitutes a redrafted section 375, which meets the requirements of the Criminal Code 2002.  The redrafted section 375 makes it a strict liability offence for a foreign cooperative to fail to file certain particulars with the registrar within 28 days after a notifiable change occurs.  An offence against this provision carries a maximum penalty of 10 penalty units.

Clause 17	Deputy registrar and other staff – section 430(1)
This clause provides that the chief executive may appoint a deputy registrar and assistant registrars.

PART 6	Cooperatives Regulations 2003

Clause 18	Legislation amended – pt 6
This clause explains that Part 6 amends the Cooperatives Regulations 2003.

Clause 19	New part 8A
This clause inserts a new Part 8A into the Cooperatives Regulations 2003 and provides at Regulation 26A that the Aboriginal Councils and Associations Act 1976 (Cwlth) is a prescribed law under which a cooperative may, if approved, become registered or incorporated under section 307(1)(e) of the Cooperatives Act 2002. 

PART 7	Fair Trading Act 1992

Clause 20	Legislation amended – pt 7
This clause explains that Part 7 amends the Fair Trading Act 1992.

Clause 21	Offences against pt 2 – section 41(1)
This clause removes paragraphs 41(1)(b) – (e) of the Fair Trading Act 1992 to accord with the removal of subsection 41(5) of the Fair Trading Act 1992.

Clause 22	Section 41(5)
This clause omits section 41(5) of the Fair Trading Act 1992 to remove a reference to sections 180, 182 and 183 of the Crimes Act 1900 which, following the introduction of the Criminal Code 2002, no longer exist.  

Clause 23	Section 41
This clause provides that renumbering of subsections will occur when the Fair Trading Act 1992 is next republished under the Legislation Act 2001.

PART 8	Magistrates Court (Civil Jurisdiction) Act 1982

Clause 24	Legislation amended pt 8
This clause explains that Part 8 amends the Magistrates Court (Civil Jurisdiction) 
Act 1982.

Clause 25	Definitions for pt 22 – section 394, definition of debt declaration
This clause amends the definition of a debt declaration to provide that the Small Claims Court may declare that the applicant does or does not owe a debt to the respondent.

Clause 26	Section 461
This clause permits the Small Claims Court to make a debt declaration in a proceeding on an application for a debt declaration.

PART 9	Protection Orders Act 2001

Clause 27	Legislation amended – pt 9
This clause explains that Part 9 amends the Protection Orders Act 2001.

Clause 28	Service of non-emergency orders – section 33(2) and note
This clause amends section 33 to dispense with the requirements for personal service on the respondent in the circumstances where the respondent is before the court at the time the protection order is made.

PART 10	Security Industry Act 2003

Clause 29	Legislation amended – pt 10
This clause explains that Part 10 amends the Security Industry Act 2003.

Clause 30	Section 37
This clause amends section 37 to remove an inconsistency between the Security Industry Act 2003 and the Consumer and Trader Tribunal Act 2003 in relation to an application for a review of a decision of the commissioner for fair trading in relation to a licence.