Legislative Assembly for the ACT: 1998 Week 1 Hansard (30 April) . . Page.. 210 ..
MR HUMPHRIES (Attorney-General, Minister for Justice and Community Safety and Minister Assisting the Treasurer) (10.51): Mr Speaker, I present the Supreme Court (Amendment) Bill 1998, together with its explanatory memorandum.
Title read by Clerk.
MR HUMPHRIES: Mr Speaker, I move:
That this Bill be agreed to in principle.
Last year a review of court enforcement procedures was undertaken by a working party comprising representatives of the then Attorney-General's Department, the Registrar-General, the Law Society, the registrars of the Supreme Court and the Magistrates Court and the sheriff. In its report the working party made a number of recommendations and this Bill arises from one of those recommendations. The Bill is, apart from formal matters, the same as the Supreme Court (Amendment) Bill 1997 which was introduced into the Legislative Assembly in December last year but which lapsed after the Assembly rose without dealing with it.
This Bill will give the Supreme Court the capacity to order the sheriff to make a forced entry of premises occupied by a judgment debtor for any purpose connected with executing a judgment against the judgment debtor. The Bill will correct an inconsistency between the capacity of the Supreme Court and that of the Magistrates Court. The Magistrates Court (Civil Jurisdiction) Act 1982 already allows the Magistrates Court to make an order allowing a bailiff to make a forced entry to premises to seize property where the judgment debtor has refused entry or cannot be contacted.
The Bill will allow the court to make an order to enforce entry only in specific circumstances. The sheriff must first either have been refused entry by the judgment debtor or other occupier, after having informed or made reasonable attempts to inform the debtor or occupier of the procedure in relation to execution and the sheriff's intention to seek an order if entry is refused, or have been unable to contact the debtor or occupier to obtain consent after having made reasonable attempts to make contact.
On application by the sheriff, the court will be able to make an order if satisfied that the judgment debtor resides at the premises or there is property on the premises that the sheriff is entitled to seize, or that the sheriff is entitled to sell the premises themselves in execution of the judgment. The Bill will provide for the sheriff to enter premises using whatever force is necessary and reasonable, with the assistance of police if necessary, and will provide an immunity for acts done or omitted to be done in good faith in carrying out an order. At present, in contrast to a bailiff, the sheriff has no power to make a forced entry of a judgment debtor's residential premises, although the sheriff can make a forced entry of non-residential premises. This Bill will correct that anomaly but will also require the sheriff to seek an order of the court in order to make a forced entry of non-residential premises occupied by a judgment debtor.