Page 221 - Week 01 - Thursday, 9 December 2004
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Bail Act 1992
The Bail Amendment Act 2004 amended existing provisions that enabled the Magistrates Court and the Supreme Court to review bail decisions. The intent of the amendments was to prevent successive requests for reconsideration without proper justification, while also providing an avenue for reconsideration of a decision rather than going to appeal. The amendments limited applications for review on the basis of a significant change in circumstances, new evidence or information significant to a bail decision.
The amending bill was edited to ensure that section 43, dealing with the power of the Supreme Court to review decisions, contemplated decisions made by any justice of the court, as opposed to the justice who first reviewed, or made, a decision. These editorial changes should have removed a reference to a singular judge. This bill corrects this error by replacing any such references in sections 42 and 43.
Civil Law (Wrongs) Act 2002
Members of the legal profession have identified two provisions in the Civil Law (Wrongs) Act 2002 where a claimant may be inadvertently disadvantaged by the operation of the sections in their current form.
Section 51 sets out the time period for a claimant to give a respondent a written notice of claim. As currently drafted, the provision provides that the notice period ends on the earlier of two specified days. One of these days is the day four months after the day the claimant first consults a lawyer. This has the effect that any advice sought, including free preliminary advice provided by legal aid or the law society duty solicitor, or an informal inquiry to a legally trained acquaintance, may set time running for giving a notice of claim. The bill amends the section to provide that the time period ends on the day one month after the claimant first instructs a lawyer to act on their behalf. This amendment is consistent with amendments in other jurisdictions.
Section 188 states that a lawyer must not sign a pleading in relation to a claim unless they have filed a certificate stating that the claim has a reasonable prospect of success. The effect of this requirement is that a lawyer must first file the certificate and then later separately sign and file the pleading. This means that the client pays twice for the filing of documents. The bill amends the provision to provide that a lawyer must not lodge or file a pleading unless they have lodged or filed a certificate or the pleading is accompanied by a certificate.
Confiscation of Criminal Assets Act 2003
The Confiscation of Criminal Assets Act 2003 enables ACT courts to restrain property, income or assets that form the benefits of crime or are used to commit crime. Section 29 of the act sets out the matters to be included in an affidavit made by a police officer that must support an application for a restraining order. The bill amends section 29 to clarify that for an affidavit obtained under the section, the police officer is required to state whether they suspect the property is tainted or subject to the alleged offender’s effective control.
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