Second Reading Speech

The Hon. MARK BUTTIGIEG (21:26): On behalf of the Hon. Daniel Mookhey: I move:

That this bill be now read a second time.

The New South Wales Government is pleased to introduce the Justice Legislation Amendment (Miscellaneous) Bill 2024. The bill will amend the Coptic Orthodox Church (NSW) Property Trust Act 1990 to reflect changes made to the Constitution of the Coptic Orthodox Church, Diocese of Sydney and Affiliated Regions. These amendments are being progressed at the request of the Coptic Orthodox Church to align the legislation with recent changes to the church's constitution.

In New South Wales, any changes to church property trust legislation must meet the requirement of the New South Wales churches policy. The policy requires the New South Wales Government to consider several criteria when determining requests from a religious entity or group to amend or enact new church property trust legislation, including that the church governing bodies and a substantial majority of church members understand and support the change. The Coptic Orthodox Church has consulted its community on the constitutional changes and demonstrated compliance with the New South Wales churches policy.

The bill will also introduce several miscellaneous amendments to improve court and legal processes and ensure operational efficiency; improve and clarify government processes and functions; and clarify the regulation‑making power of existing legislation. Regularly reviewing and updating legislation is an important mechanism to ensure that laws remain fit for purpose and keep pace with developments in the community and the legal system. Miscellaneous bills are a sensible and practical way to introduce amendments to multiple Acts in order to achieve this.

I seek leave to incorporate the remainder of my second reading speech into Hansard.

Leave granted.

I turn now to the detail of the bill.

Schedule 1 to the bill amends the Children (Detention Centres) Act 1987 to insert into section 32A specific regulation-making powers relating to:

searches of a detainee's room and any property in that room

searches of visitors and their vehicles at detention centres

searches of visitors and juvenile justice officers and anything under their control at detention centres

decisions that the secretary or centre manager may make about matters referred to in the regulations, either generally or in relation to specific areas

the development and management of case plans

Section 32A of the Children Detention Centres Act provides regulation-making powers in relation to a wide range of matters, such as the procedures to be followed by visitors to detention centres.

In particular, subsection (a) provides a broad regulation-making power which states that the regulations may make provision for the management, control, administration, supervision and inspection of detention centres.

Currently, while section 32A allows the regulations to make provision for the circumstances in which a body search can be conducted on a detainee and the process to be followed, it is unclear whether this extends to searches conducted on a detainee's room and the property in that room, as currently provided for by clause 11A (1) (b) of the regulations.

Similarly, while the current regulations empower the Secretary of the Department of Communities and Justice or a centre manager to make certain decisions that are relevant to the operation of detention centres, such as providing approval for a qualified dentist to perform functions as a dental officer under the regulations, it is unclear whether the regulation-making power in section 32A extends to such matters.

While these matters appear to fall under the management and operation of detention centres, as provided for by the broad regulation‑making power under section 32A (a) of the Act, this bill amends section 32A to provide specific regulation-making power relating to these matters.

Schedule 2 to the bill amends the Coptic Orthodox Church (NSW) Property Trust Act 1990 to reflect changes made on 11 September 2022 to the Constitution of the Coptic Orthodox Church, Diocese of Sydney and Affiliated Regions.

The diocese holds its property in a property trust constituted as the Coptic Property Trust under the Coptic church Act. The diocese has proposed changes to the Coptic church Act to align the legislation with recent changes to its constitution made in 2022.

The amendments primarily replace the current sole trustee structure with a board of trustees. The board is referred to as the Diocesan Trustees and is constituted in accordance with the constitution.

Schedule 2 [1] to [13] reflect the diocese's proposed changes by amending the Coptic church Act to replace references to the bishop as the sole trustee with references to the board as constituted under the constitution.

Schedule 2 [14] inserts clause 1A into schedule 1 to the Coptic church Act to allow for a regulation to be made containing provisions of a savings and transitional nature consequent on the commencement of the amendments in this bill to the Act.

Schedule 2 [15] amends schedule 1, part 2 of the Coptic church Act to validate actions taken by the board between 11 September 2022, when the constitution was changed, and when the relevant amendments in this bill commence, provided those actions are consistent with the constitution and amended Act. This ensures that any actions taken by the board prior to the commencement of this bill are not deemed to be invalid due to any inconsistency with the Coptic church Act at the time.

Schedule 2 [15] also inserts clause 4 to provide that the board is taken to be a continuation of the bishop in the bishop's capacity as sole trustee of the Coptic Property Trust. This clarifies that any arrangements entered into with the bishop in his capacity as sole trustee in such a way as to give rise to obligations or duties on the part of the trustee would remain in place, except that the trustee is now comprised as the board.

Schedule 3 amends the Defamation Act to extend the defence of absolute privilege by adding to schedule 1 to the Act, matters published to the Judicial Commission for the purpose of making a complaint under section 15 of the Judicial Officers Act 1986.

This is to implement a reform agreed nationally in 2023 following the Review of the Model Defamation Provisions. Attorneys‑General agreed in September 2023 that jurisdictions would review the complaints-handling bodies in their jurisdictions to determine whether complaints to them should be protected by absolute privilege; jurisdictions agreed they would then amend their defamation Acts accordingly.

The rationale for the reform is that the potential threat of defamation proceedings may deter victim-survivors from coming forward to complaints-handling bodies about conduct such as sexual harassment, sexual assault, bullying, discrimination and harassment. Absolute privilege would address any chilling effect because it provides a complete defence that cannot be defeated in any circumstance.

Section 15 of the Judicial Officers Act provides that any person may complain to the commission about a matter that concerns or may concern the ability or behaviour of a judicial officer.

The Judicial Commission is an appropriate body to list schedule 1 to the Defamation Act because:

The Judicial Commission deals firsthand with complaints about the behaviour of judicial officers, including complaints about harassment, bullying and discrimination.

There is a need for protection due to a perceived chilling effect and lack of other protections for complainants.

There are sufficient safeguards to protect against damage to reputation if a false or misleading report is made. For example, section 37 of the Judicial Officers Act provides that a member or officer of the commission shall not disclose any information obtained in the course of his or her office in relation to a complaint except in certain circumstances.

Schedule 3 [2] and [3] to the bill amend schedules 2 and 3 to the Defamation Act to extend defences of publication of public documents in section 28 of the Defamation Act and fair report of proceedings of public concern in section 29 of the Defamation Act to apply to documents produced to and proceedings of the Modern Slavery Committee.

The Modern Slavery Act 2018 establishes the Modern Slavery Committee, a joint committee of members of Parliament.

Schedule 1 to the Modern Slavery Act contains provisions relating to the Modern Slavery Committee. Clause 7 of schedule 1 sets out provisions relating to confidentiality and provides a mechanism for the public disclosure of confidential documents and evidence.

The note to this section indicates that the defences in sections 28 and 29 of the Defamation Act were intended to apply to proceedings of the Modern Slavery Committee conducted in private if the evidence or documents were disclosed or published in accordance with clause 7.

However, the relevant schedules of the Defamation Act have not been updated to refer to the Modern Slavery Committee.

This amendment corrects this oversight and provides the committee with the benefit of these defences consistent with other Parliamentary Committees, and with the intent of Parliament.

Schedule 3 [4] to the bill provides that the amendment is to have retrospective effect to ensure that the amendment applies to proceedings commenced and actions taken prior to the commencement of this amendment.

Schedule 4 to the bill amends section 19 of the Dormant Funds Act 1942 to insert section 19 (3) to clarify that a fee for the formulation of a proposal for a dormant fund may be calculated as a percentage of the value of a dormant fund.

The Dormant Funds Act regulates "dormant funds". Dormant funds are funds donated, collected or acquired for charitable and other public purposes which have become "dormant" such as by not being used for their stated purpose for at least six years, or by it becoming impractical or unlikely that the funds will be so used. The Act establishes the Commissioner of Dormant Funds, being the Chief Executive Officer of the NSW Trustee and Guardian. The functions of the commissioner under the Act include determining a fund to be dormant, requiring the provision of accounts or statements and developing proposals for the use or application of a dormant fund.

The Dormant Funds Regulation prescribes details of the operation of the Dormant Funds Act, including for a fee, payable to the commissioner, for the formulation of a proposal for the use of a dormant fund.

Currently, clause 5 of the regulation provides that a fee of 5 per cent of the value of the dormant fund is payable to the Commissioner of Dormant Funds for the development of a proposal for fund.

Section 19 of the Dormant Funds Act provides that the regulation may provide for the fees and charges that may be imposed for the Act. The proposed amendment clarifies the regulation making power in section 19 of the Act to put it beyond doubt that the regulation can set fees by way of a percentage.

The amendment to the regulation-making power in the Act is being made upon the advice of Parliamentary Counsel to clarify the position in relation to the existing regulation. It is not intended to alter the existing position or provide new powers to charge fees to the commissioner.

Schedule 5 to the bill amends section 12 of the Firearms Act 1996 to remove references to the "Department of Industry" and replace it with the "Department of Primary Industries and Regional Development".

By operation of various administrative orders, from 1 July 2024, the Department of Regional NSW has been renamed the Department of Primary Industries and Regional Development. The functions referred to in the two instances where "Department of Industry" is mentioned in section 12 of the Firearms Act are relied upon and managed by the Department of Primary Industries and Regional Development.

The proposed amendments therefore replace redundant references to the Department of Industry with a reference to the Department of Primary Industries and Regional Development, in line with machinery of government changes.

Schedule 6 to the bill will insert a new section 13 (2) into the Prisoners (Interstate Transfer) Act 1982 to state that a "prescribed officer" for the purposes of the section means the Secretary of the Department of Communities and Justice or an officer authorised by the secretary.

Where a prisoner is to be transferred for trial in another State or Territory, or under a law of the Commonwealth, consents or requests must be given or made by the Attorney General or their counterpart in the receiving jurisdiction.

Prescribed officers under section 13 may certify that requisite consents or requests have been given or made, and the regulations currently prescribe the secretary or the General Counsel of the Department of Communities and Justice as prescribed officers. This amendment will improve clarity by defining the term "prescribed officer" within section 13 itself, and provide flexibility for the secretary to authorise other officers to fulfil this function where the General Counsel is unavailable or otherwise unable to do so, or for any other reason.

Schedule 7 to the bill amends the Solicitor General Act 1969 to allow the Solicitor General to exercise the functions of the Attorney General when the Attorney General is on leave but still within the State.

The Solicitor General Act confers various functions on the Solicitor General of New South Wales, the second highest law officer of the State.

One of these functions is to exercise the powers of the Attorney General in certain circumstances.

Under section 3 (1) (b) of the Act, the Solicitor General can exercise the functions of the Attorney General when the office of the Attorney General is vacant, or when the Attorney General is absent from the State or ill.

However, this provision does not provide for the Solicitor General to exercise these functions when the Attorney General is on leave but still within the State.

The amendment in this bill will address this gap in the legislation. This will ensure continuity in the exercise of the Attorney General's statutory functions when the Attorney General is on leave, regardless of whether they are within or outside the State.

Schedule 8 to the bill will amend the Terrorism (High Risk Offenders) Act 2017 to ensure consistency with recent amendments made by the High Risk Offenders Legislation Amendment Act 2024.

In February 2024, the High Risk Offenders Legislation Amendment Act 2024 amended the Terrorism (High Risk Offenders) Act 2017. The amendment enables applications to be made for post-sentence detention and supervision of high risk terrorist off enders at the end of their overall prison term where that term contains a sentence for a New South Wales indictable offence, irrespective of where the sentence for the New South Wales indictable offence falls in the continuum of the overall term.

The requirement for an offender to be serving a sentence for a New South Wales indictable offence is a key parameter for eligibility for orders under the Terrorism High Risk Offenders Act. The High Risk Offenders Legislation Amendment Act kept this requirement, but sought to prevent offenders avoiding orders because the sentence for the New South Wales indictable offence had expired by the time an application is made at the end of the overall term.

The High Risk Offenders Legislation Amendment Act aimed to align the Terrorism High Risk Offenders Act with the Crimes (High Risk Offenders) Act 2006, which enables orders to be made against high risk offenders at the end of a cumulative prison term that includes a sentence for a relevant sex or violent offence, regardless of whether that sentence has expired by the end of the overall term of imprisonment.

Some provisions in the Terrorism High Risk Offenders Act which require an offender to be serving a sentence of imprisonment for a New South Wales indictable offence at the end of the overall prison term were not amended by the High Risk Offenders Legislation Amendment Act.

This bill rectifies that omission and any other inadvertent omission by inserting a definition of "sentence of imprisonment for a New South Wales indictable offence" into the Terrorism High Risk Offenders Act to incorporate aggregate and cumulative sentences that include at least one sentence for a New South Wales indictable offence, regardless of whether that sentence has expired.

This bill implements the policy supported by Parliament when it passed the High Risk Offenders Legislation Amendment Act. These amendments do not detract from the policy intent of the amendments made by the High Risk Offenders Legislation Amendment Act and are not intended to capture a broader cohort of offenders.

Schedule 9 to the bill amends the Trees (Disputes Between Neighbours) Act 2006.

Schedule 9 [1] and [2] amend sections 8 and 14C of the trees Act to clarify that after lodging an application with the Land and Environment Court, the applicant must provide the respondent with 21 days notice ahead of the hearing that the application has been lodged and the terms of any orders sought.

The trees Act allows landowners to apply to the Land and Environment Court to resolve disputes between neighbours concerning trees.

Under the trees Act, applicants are required to give owners of the land on which the relevant tree is located notice of applications made and orders sought under the Act. Recently, some court users and legal practitioners have interpreted sections 8 and 14C as requiring the applicant to give notice prior to making the application that an application will be made, rather than notice that an application has been made.

This amendment clarifies the correct procedure and is consistent with the intent of the legislation and court practice.

This bill is an important part of the Government's ongoing work in regularly reviewing and updating legislation to ensure that it continues to meet its objectives.

I commend the bill to the House.

Second Reading Debate

The Hon. AILEEN MacDONALD (21:28): On behalf of the Opposition, I speak in debate on the Justice Legislation Amendment (Miscellaneous) Bill 2024. I advise that the Opposition supports the bill, recognising its role in refining and enhancing the legislative framework governing our justice system. The Government's miscellaneous bill introduces a series of minor yet significant legislative amendments aimed at improving clarity, efficiency and fairness within our legal system. The bill amends the Children (Detention Centres) Act 1987 to clarify regulation-making powers concerning the search of detainees' rooms and property. This amendment removes existing ambiguities, ensuring that searches are conducted lawfully and transparently, thereby safeguarding the rights of detainees while maintaining the security and order of detention centres.

Changes to the Coptic Orthodox Church (NSW) Property Trust Act 1990 align the Act with the church's current constitution, which designates a board of diocesan trustees to manage the property trust. This update reflects the church's internal governance structures, ensuring legal consistency and respect for the autonomy of religious institutions. Regarding amendments to the Defamation Act 2005, significantly the bill extends the defence of absolute privilege to individuals lodging complaints with the Judicial Commission under section 15 of the Judicial Officers Act 1986. That legal safeguard empowers complainants to report misconduct, including sexual harassment, assault, bullying and discrimination, without fear of defamation claims. By protecting these voices, we encourage transparency and accountability within the judiciary. Furthermore, the bill extends defences to the publication of public documents and fair reports of proceedings relating to materials produced by, and in the proceedings of, the Modern Slavery Committee. This amendment brings the committee in line with protections afforded to other parliamentary committees, facilitating its critical work in combating modern slavery.

The proposed changes to the Dormant Funds Act 1942 clarify that regulations may impose a fee of 5 per cent of the fund's value for developing proposals for the use of dormant funds. This ensures that the administrative costs associated with reactivating and repurposing these funds are appropriately managed, promoting their effective utilisation for public benefit. The bill amends the Prisoners (Interstate Transfer) Act 1982 to allow the Secretary of the Department of Communities and Justice to delegate the authority to grant consent for prisoner transfers between jurisdictions. The delegation streamlines administrative processes, facilitating more efficient management of prisoner movements and inter-jurisdictional cooperation. Modifications to the Solicitor General Act 1969 permit the Solicitor General to exercise the functions of the Attorney General when the latter is on leave within the State. This provision ensures continuity in the execution of legal duties and upholds the seamless operation of the Attorney General's office.

Finally, the bill amends the Terrorism (High Risk Offenders) Act to prevent offenders from evading post‑sentence orders due to the timing of their sentences. That change aligns the Act with legislation governing other high-risk offenders, such as those convicted of sexual assault, ensuring that public safety measures are applied consistently. While these administrative updates, procedural adjustments and technical clarifications may not capture media headlines, they are essential to the effective functioning of our Parliament and the justice system. The amendments contribute to the efficiency and responsiveness of the legal framework, ensuring it operates as a well-oiled machine. The prudent updating and amending of legislation is a quiet but vital force in securing the best possible outcomes for the people of New South Wales. For these reasons, the Opposition supports the bill.

Ms SUE HIGGINSON (21:33): On behalf of The Greens I indicate that we do not oppose the Justice Legislation Amendment (Miscellaneous) Bill 2024. The bill seeks to make sensible miscellaneous amendments to justice legislation in New South Wales to improve court and legal processes, ensure operational efficiency, improve and clarify government processes and functions, and clarify the regulation-making powers in existing legislation. This is one of two miscellaneous bills the Government introduced in 2024. The bill implements amendments to nine separate Acts, most of which sit within the Attorney General's portfolio. However, some of the amendments go to laws that the Minister for Police and Counter-terrorism and the Minister for Corrections are responsible for.

This miscellaneous bill amends the Coptic Orthodox Church (NSW) Property Trust Act 1990 to include amendments proposed by the church to try to bring the system into the modern world. In 2022 the church changed its constitution to replace the bishop as the sole trustee of the Coptic property trust with a board of trustees. However, the current Act continues to provide that the bishop is the sole trustee of that trust. It is all a bit archaic, really. The amendments were proposed by the church, which consulted with its community on changes to its constitution, so the amendments have been subject to significant engagement with the relevant parties.

The bill clarifies the regulation-making powers in the Children (Detention Centres) Act 1987, including the circumstances in which a body search may be conducted on a detainee, the procedures to be followed in conducting a body search and the persons by whom, or in whose presence, a body search must be conducted. Proposed new section 32A(r) talks about the circumstances under, and ways in which, those searches can be conducted. Those are really important provisions. I recall that when the bill was first introduced, I had some real concerns around the searching of visitors, and vehicles under the control of visitors, at a detention centre. Initially there were some real challenges about how far the powers go, but I accept that these powers already exist and that the measures in the bill are important to ensure the safety of the relevant people: the visitors, prisoners and staff at juvenile justice centres. Proposed new sections 32A (x) to 32A (z) are about the functions of juvenile justice officers and other staff employed at a detention centre. They also relate to decisions the secretary or the centre manager may make about matters referred to in the regulations, including the management and development of case plans.

The bill will amend the Defamation Act 2005 to afford absolute privilege to matters published by the Judicial Commission to ensure that the defences of publication of public documents and fair reporting of proceedings of public concern extend to publications and disclosure of confidential evidence made by the Modern Slavery Committee. The bill also amends the Dormant Funds Act 1942 by clarifying its regulation‑making powers and updates the Firearms Act 1996 to reference the Department of Primary Industries and Regional Development. The Greens are quite content to see those sorts of amendments in miscellaneous bills.

The bill amends the Prisoners (Interstate Transfer) Act 1982 to clarify that "prescribed officer" means the Secretary of the Department of Communities and Justice or an officer authorised by the secretary who can also certify interstate transfers of prisoners. The bill amends the Solicitor General Act 1969 to allow the Solicitor General to exercise the Attorney General's powers when the Attorney General is on leave but still in the State. The bill also amends the Terrorism (High Risk Offenders) Act 2017 to ensure consistency with recent amendments made by the High Risk Offenders Legislation Amendment Act 2024. Finally, the bill amends the Trees (Disputes Between Neighbours) Act 2006—a familiar Act to me—to clarify the notice period for applications made to the Land and Environment Court. The Greens understand that the bill is a result of the legislation review process of the Parliamentary Counsel's Office. For all those reasons, The Greens will not be opposing the bill.

The Hon. BOB NANVA (21:38): I am also very pleased to speak in support of the Justice Legislation Amendment (Miscellaneous) Bill 2024, which is one of a number of miscellaneous bills I have had the privilege of speaking to during this term of Parliament. While I might sound facetious, they are very important bills because the Government receives proposals from time to time from numerous stakeholders about what mopping up must be done in numerous pieces of legislation. It is important that that work is done because it can have critical impacts on policy and outcomes. I am particularly interested in the reforms to the Defamation Act, which are a result of the part B review. I am also very interested in the amendments to the Firearms Act 1996. I do not propose to take up the time of the Chamber in going through my interest in those amendments other than to say that I think the reforms are worthy. I support the bill for those reasons.

The Hon. MARK BUTTIGIEG (21:40): In reply: I thank the Hon. Aileen MacDonald, Ms Sue Higginson and the Hon. Bob Nanva for their contributions to debate. The bill reflects the Government's ongoing commitment to good governance through the regular review and update of legislation in response to identified needs. The bill makes necessary amendments across the Justice portfolio to make sure that legislation is kept up to date and is responsive to developments in the community and legal system. Miscellaneous amendment bills such as the current bill are an important vehicle for the continuous improvement of the statute book. They address developments in case law and support procedural and operational improvements, and they can be used to fix problems in legislation, address emerging issues and close gaps in the law that have become apparent.

The process ensures that issues identified as requiring reform are appropriately addressed in order to maintain an effective justice system. The amendments in the bill achieve that by amending a number of pieces of legislation to improve court and legal processes to ensure continued operational efficiency, improve and clarify government processes and functions, and clarify the regulation-making power of existing legislation. Regularly reviewing and updating legislation is an important mechanism to ensure that laws remain fit for purpose and keep pace with developments in the community and legal system. Miscellaneous bills are a sensible and practical way to introduce amendments to multiple Acts in order to achieve that.

It is critically important that legislation be used to support and meet the community's expectation of good and effective governance. Miscellaneous amendment bills such as this are an efficient and appropriate mechanism through which discrete and sometimes minor but necessary reforms can be put in place. The bill ensures that legislation across the Justice portfolio is fit for purpose and suitable to support systems of governance that are in place across New South Wales. I thank members for their support. I commend the bill to the House.

The ASSISTANT PRESIDENT (The Hon. Peter Primrose): The question is that this bill be now read a second time.

Motion agreed to.

Third Reading

The Hon. MARK BUTTIGIEG: On behalf of the Hon. Daniel Mookhey: I move:

That this bill be now read a third time.

Motion agreed to.