Justice Legislation Amendment Bill 2013: donations again available for undertakings

Parliament introduced the Justice Legislation Amendment Bill 2013 last week.

Part 6 of the Bill introduces perhaps the most significant amendment. It will overcome the effect of the decision in Brittain v Mansour [2013] VSC 50. That was the case which held charitable donations and the like were not valid as special conditions of adjourned undertakings imposed under ss 72 and 75 of the Sentencing Act 1991. )I discussed the case in my post here.)

The Bill proposes two sets of changes to overcome Mansour.

First, amending ss 70, 72 and 75, expressly permitting for donations to be set as special conditions to adjourned undertakings, whether with or without conviction.

Second, inserting a new section 149A that simply says, “Schedule 4 has effect.” This seems to be a new-ish trend from Parliamentary Counsel to add in validating provisions in legislation.

Schedule 4 is intended to validate any previous adjourned undertakings (and CCOs too, for good measure) which had a donation special condition. Knowing now what we do about the validity of judgments which might have been subject to error — discussed in DPP v Edwards here — it’s perhaps not needed, but for the sake of avoding doubt, they’ve added it. It seems the most likely purpose is to prevent appeals by other bodies that might want the money to go to them, rather than charities, as happened in Mansour.

The Bill has progressed to second-reading stage in the Legislative Assembly, with resumption of debate scheduled for the next sitting on 7 May. After it’s passed there, it moves on to the Legislative Council. Both Houses are sitting 7 – 9 and 28 – 30 May, so my guess is the Bill won’t receive Assent until June some time.

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