Policy and Law Reform Updates: May 2024

Tuesday, 7 May 2024

Policy and Law Reform Update - MAY 2024

These policy and law reform updates are collated to ensure members are equipped for any changes that may impact the profession. If you have any suggestions or feedback please contact us here. 

 

Key legislative changes

Note that the following summary does not constitute legal advice and is intended only to provide general information to practitioners, drawn primarily from the amending legislation and explanatory materials accompanying its consideration by the ACT Legislative Assembly.  

 

Swimming pool safety reforms - changes to contracts of sale  

Changes made by the Building (Swimming Pool Safety) Legislation Amendment Act 2023 (Swimming Pool Safety Act) which impact contracts of sale for homes with a swimming pool or spa (or units that have a swimming pool or spa as part of common property) commenced on 1 May 2024. 

The policy intent of the Swimming Pool Safety Act is to ensure that home swimming pools and spas in the ACT are fenced in accordance with modern safety standards. There will be a four-year transition period for homeowners to ensure their swimming pool or spa is compliant with the relevant safety standards. 

Relevant to property lawyers, the Swimming Pool Safety Act amends the Civil Law (Sale of Residential Property) Act 2023 and Civil Law (Sale of Residential Property) Regulation 2004 imposing requirements for information/documents about the safety standard of a regulated swimming pool to be disclosed on the sale of a property. 

The disclosure requirements vary depending on when the swimming pool or spa was constructed (essentially pre or post 1 May 2023). Disclosure requirements change again from 1 May 2028 (when it becomes mandatory to have a compliant swimming pool or spa). 

During the transition period, all homeowners who are selling a property with a regulated swimming pool that was built, altered, or installed prior to 1 May 2023 must provide the Pool Owners Guidance Material which outlines the obligations on owners of premises on which a regulated swimming pool is located. The Pool Owners Guidance Material document is available from here. 

As a consequence of the reforms, the following subordinate legislation also commenced on 1 May 2024:  

Changes are also expected to be made to the Unit Titles (Management) Certificate Determination 2023 to require the body corporate to include information relevant to swimming pool or spa safety compliance in a section 119 certificate. 

More information about the reforms is available on the ACT Government website, click here. 

 

Family Law Act reforms 

The majority of changes made by the Family Law Amendment Act 2023 and the Family Law (Information Sharing) Act 2023 commenced on 6 May 2024.  

The policy intent underlying the Family Law Amendment Act 2023 is to ensure the best interests of children are at the centre of all parenting decisions made inside or outside the courtroom, and to make the system easier to navigate. 

Significantly, the amendments repeal the presumption of ‘equal shared parental responsibility’ provisions in the Family Law Act. In 2017. Under the new laws, parenting decisions will have to be based solely on what is in the best interests of the child. 

The reforms also: 

  • require Independent Children’s Lawyers to meet directly with children; 

  • provide greater powers to protect parties and children from harmful effects of protracted and adversarial litigation; 

  • define ‘member of the family’ in the Family Law Act in a way that is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship; 

  • simplify compliance and enforcement provisions for child-related orders; 

  • provide powers to enable government to regulate family report writers; and 

  • ensure that children’s voices are heard more easily in matters under the Hague Convention on the Civil Aspects of International Child Abduction. 

The Society’s Family Law Committee contributed input to the Law Council of Australia’s submission as part of the consultation process on the reforms. 

The Family Law Amendment (Information Sharing) Act 2023 also amends the Family Law Act to ensure have access to the full picture of family safety risk in order to prioritise the safety of children and families, particularly in circumstances where there is risk of child abuse, neglect or family violence. The reforms (which also commenced on 6 May 2024): 

  • establish two new information sharing orders to allow courts to directly and quickly seek information from police, child protection and firearms agencies about family violence, child abuse and neglect that could place children at risk; 

  • allow a court to make these orders at any point during proceedings so information is accurate and up-to-date; and will ensure sensitive information is only disclosed in a safe and appropriate manner. 

 

Right to appeal wrongful convictions  

The Supreme Court Amendment Act 2023 amended the Supreme Court Act 1933 to introduce a new right to appeal a conviction or a finding of guilt on the basis of fresh and compelling evidence. Commencement of the reforms was delayed for six months to allow sufficient time for the development of appropriate court processes and resources to support the new appeal right. The reforms commence on 15 May 2024.  

 
Under the new provisions, the Supreme Court will be able to grant leave to a person to bring an appeal against any conviction or finding of guilt if satisfied that: 

  • there is fresh and compelling evidence in relation to the offence that should be considered on an appeal; and 

  • it is in the interests of justice for the order to be made. 
     

The test for allowing an appeal is the same test for granting leave to appeal, except for the requirement that there has been a “substantial miscarriage of justice”. This higher threshold will help to prevent vexatious and untenable appeals. 

The court will also be able to make the following orders when an appeal is allowed: 

  • set aside the conviction or finding of guilt; and 

  • either order: 

  • a verdict of not guilty to be entered; or 

  • a new trial or hearing. 

The new right to appeal will apply retrospectively, and there is no limit on the number of appeals allowed under the new right to appeal.

 

Jury reforms 

The Crimes Legislation Amendment Act 2024 made amendments to the Juries Act 1967, introducing a new offence for juror misconduct and a new model for majority verdicts (11:1). While the new offence commenced 16 April 2024, majority verdicts are subject to delayed commencement (19 October 2024). 

 

The Crimes Legislation Amendment Act also made minor reforms to a range of other criminal justice legislation: 

  • Bail Act 1992 to address an anomaly in timeframes in relation to the period for which a bail decision is stayed when an application is made for a review of bail; 

  • Confiscation of Criminal Assets Act 2003 to require a statutory review of the unexplained wealth scheme three years after the 2022 Review; 

  • Crimes (Sentencing) Act 2005 to allow a non-parole period to be set for offences committed in custody. 

  • Crimes (Sentencing) Act 2005 to clarify that the court may impose a fine in addition to, or instead of, any other sentence; 

  • Crimes Act 1900 to remove the element requiring the prosecution to prove that damage to property does not exceed $5000 in the minor property damage offence; 

  • Magistrates Court Act 1930 to improve enforceability of infringement notice offences; and 

  • Victims of Crime Act 1994 and Crimes (Sentencing) Regulation 2006 to update relevant references to the new title of Domestic, Family and Sexual Violence Coordinator-General. 

 

Reviews and inquiries 

ACT Law Reform and Sentencing Advisory Council referral in relation to driving (sentencing and recidivism) 

A reminder that submissions in response to the Consultation Paper (available from here) on dangerous driving (sentencing and recidivism) closes today.  

The Society will be making a submission in response to the Consultation Paper, informed by the Criminal Law Committee. Individual practitioners are also welcome to respond directly to the Consultation Paper either through the Council’s website (smart form) or via LRSACSecretariat@act.gov.au.  

 

ACT Government Review of laws relating to buying property off-the-contract (rescission clauses) 

In November 2021, the Civil Law (Sale of Residential Property) Act 2003 was amended to prevent property developers or sellers from cancelling, or rescinding, off-the-plan contracts unfairly. The Government committed to reviewing the changes after two years operation. A Consultation Paper (available from here) has been released, with submissions in response due 20 May 2024  

The Society will be making a submission to the Review informed by the Property Law Committee. 

 

ACT Government Consultation on a proposed Domestic, Family and Sexual Violence Strategy 

The ACT Government has conducted consultation on the proposed principles, focus areas and priorities for a Domestic, Family and Sexual Violence Strategy. Although the consultation process has closed, the Society has received a short extension to finalise its submission. To learn more about the proposed Strategy, click here.  

 

ACT Legislative Assembly Standing Committee on Justice and Community Safety inquiry into the administration of bail 

The ACT Legislative Assembly Standing Committee on Justice and Community Safety has commenced an inquiry into the administration of bail. A particular focus for the Committee is the support services that are available for persons on bail. Submissions are due 17 May 2024. The Society will be making a submission in response to the Consultation Paper, informed by the Criminal Law Committee. 

 

Current bills

The current list of all bills before the ACT Legislative Assembly is available from here. The following bills have been highlighted for the interest of Members.

  • Children and Young People Amendment Bill 2024 (No 2) - second tranche of reforms to the Children and Young People Act 2008 and includes:  

    • an enhanced support scheme for young people transitioning out of care into independent living; and 
    • the establishment of an external merits review process of administrative decisions made by the Director-General within the ACT Civil and Administrative Tribunal  
       

  • Civil Law (Wrongs) Amendment Bill 2024 – implements the reforms arising from Stage 2 Review of the Model Defamation Provisions, dealing with: 

    • Part A: Internet intermediary liability for defamation for publication of third party content; and 
    • Part B: extending the defence of absolute privilege for reports made to police and complaints handling bodies (including the Society). 
       

  • Crimes (Disclosure) Legislation Amendment Bill 2024 – seeks to legislate the scope and content of the prosecution’s obligation of disclosure of evidence in criminal proceedings. 

  • Crimes (Sentencing) Amendment Bill 2024 - this Private Members’ Bill is intended to allow the court to consider a submission made by any party in a proceeding in regard to sentencing. 

  • Housing and Consumer Affairs Legislation Amendment Bill 2024 – makes a range of amendments including to the: 

    • Residential Tenancies Act 1997 to support victims of domestic / family violence to end their tenancy agreement early without penalty; and 
    • Unit Titles (Management) Act 2011 to support landlords to meet their disclosure requirements by being able to request information from the owners corporation. 
       

  • Human Rights (Healthy Environment) Amendment Bill 2023 – which will establish a new statutory right to a clean, healthy and sustainable environment.  

  • Parentage (Surrogacy) Amendment Bill 2023 – is intended to remove unnecessary barriers to altruistic surrogacy in the ACT while strengthening the regulatory framework for surrogacy arrangements and making of parentage orders.  

  • Property Developers Bill 2023 – which will establish a new licensing and rectification order scheme for property developers.  

  • Sexual, Family and Personal Violence Legislation Amendment Bill 2023 – which seeks to improve how ACT laws respond to sexual violence with an aim of improving victim-survivors’ access to justice and enhancing their safety (including streamlining family and personal violence order proceedings). 

  • Voluntary Assisted Dying Bill 2023 – which seeks to establish a legislative scheme for persons to access voluntary assisted dying in the ACT.