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Legislative Assembly for the ACT: 2009 Week 06 Hansard (Thursday, 7 May 2009) . . Page.. 2038 ..

jurisprudence from the courts and that unnecessary complexity in territory law is avoided. The primary difference from the model approach is that when police officers or authorised officers wish to conduct a search of premises, which is more intrusive than inspecting and examining, a search warrant will be required to be obtained prior to undertaken such action.

(e) The model bill contains a provision which would allow a prosecution for an offence against the act to be commenced within two years after the alleged commission of the offence or, if two years has already elapsed, a further one year after the date on which the enforcement agency first became aware of the alleged offence. However, the general limitation period for commencing prosecutions under section 192 of the Legislation Act has been followed. Section 192 applies to all ACT offences and provides that a prosecution for an offence that is not punishable by imprisonment for a period longer than six months imprisonment must be commenced within one year of the date on which the offence was committed.

(f) In regard to confidentiality of information, the model provisions have been revised to bring them in line with the standard secrecy provisions of the Human Rights Commission Act 2005, which places limitations on the disclosure of protective information and creates offences where a person makes a record of or divulges such information in breach of the act or another law.

(g) The model provisions relating to embargo notices and return of forfeiture of seized things have been revised to comply with the requirements of the Human Rights Act 2004, the key aspect being that, in regard to the seized property provisions where a person pays an infringement notice, a burden is on the government to apply to the court for seized items to be forfeited, not for the person to apply to get it back.

During the process of drafting the ACT legislation, any New South Wales departures from the model legislation were assessed and, where it would serve to improve interjurisdictional regulatory and administrative consistency and transport efficiency, a similar approach was considered. The only New South Wales departure from the model scheme that the ACT will adopt related to the non-registration of industry codes of practice by a road transport authority. New South Wales advised that it decided not to register industry codes due to liability concerns and difficulties that may arise in prosecutions.

Although the intention of the model provisions is that the registration of industry codes should not be considered to be an endorsement of the code, liability could arise if someone is injured whilst complying with the code. A court may take the view that in registering a code the road transport authority is endorsing the content of the code. Similar concerns have been expressed by the Department of Justice and Community Safety and the outcome of a the decision not to register codes means that defendants may still call into evidence compliance with an industry code but the code will not have explicit legal status under the act.

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