Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download PDFDownload PDF 

Previous Fragment    Next Fragment

10    Investigation and Prosecution Measures Bill 2017

Order of the day read for the adjourned debate on the motion of the Minister for Indigenous Affairs (Senator Scullion)—That this bill be now read a second time.

Debate resumed.

Question put and passed.

Bill read a second time.

The Senate resolved itself into committee for the consideration of the bill.

 

 

 

In the committee

Bill taken as a whole by leave.

The Assistant Minister for Agriculture and Water Resources (Senator Ruston) moved the following amendments together by leave:

Clause 2 , page 2 (table item 3 , column 1), omit “ Schedule 2 ”, substitute “ Schedules 2 and 3 ”.

Page 14 (after line 12) , at the end of the bill, add:

Schedule 3 Procedure in criminal and civil matters relating to Norfolk Island

Norfolk Island Act 1979

1  Subsection 4(1)

Insert:

civil matter means any matter that may be determined by the Supreme Court other than in the exercise of its criminal jurisdiction.

constable means:

                              (a)  a member or special member of the Australian Federal Police; or

                              (b)  a member of the Police Force of Norfolk Island.

host jurisdiction :

                              (a)  in Subdivision B of Division 1 of Part VIIA—has the meaning given by subsection 60B(3); and

                              (b)  in Division 2 of Part VIIA—has the meaning given by subsection 60P(3).

Magistrate of the Territory means a person appointed as a magistrate under a law in force in the Territory.

prison includes a lock-up or other place of lawful detention.

Registrar means the Registrar, or the Deputy Registrar, of the Supreme Court.

Sheriff means the Sheriff, or the Deputy Sheriff, of the Territory.

2  Section 59

Omit “Subject to regulations referred to in paragraph 67(1)(a),”, substitute “Except as provided under this Act,”.

3  After Part VII

Insert:

Part VIIA Procedure in criminal and civil matters

Division 1 Criminal matters

Subdivision A No limitation period on prosecution of sex offences

60A    No limitation period on prosecution of sex offences

     (1)   A prosecution for an offence against a law of the Territory may be commenced at any time after the commission of the offence if that law is listed in Schedule 5.

Note:         See section 60M for the meaning of an offence against a law of the Territory .

     (2)   Subsection (1) applies even if:

                              (a)  but for that subsection, the offence would be subject to a shorter limitation period, including a shorter limitation period that has expired (either before the commencement of this section or before the commencement of the prosecution); or

                              (b)  an immunity from prosecution in relation to the offence has arisen because a shorter limitation period has expired (either before the commencement of this section or before the commencement of the prosecution).

     (3)   Schedule 5 has effect.

Subdivision B Hearing criminal matters in another jurisdiction

60B   Commonwealth may enter into arrangements with host jurisdictions

     (1)   The Commonwealth may enter into arrangements with the government or an authority of any of the following for the purposes of the effective application of the provisions of this Subdivision relating to sittings of the Supreme Court in that jurisdiction in the exercise of the Supreme Court’s criminal jurisdiction:

                              (a)  a State;

                              (b)  the Australian Capital Territory;

                               (c)  the Northern Territory.

     (2)   No power is conferred, or duty or function imposed, on an officer of a State under this Subdivision unless:

                              (a)  an arrangement has been entered into with the government or an authority of that State under subsection (1); and

                              (b)  the conferral of the power or imposition of the duty or function is in accordance with that arrangement.

     (3)   Each of the following is referred to as a host jurisdiction in this Subdivision:

                              (a)  a State in relation to which an arrangement has been entered into under subsection (1);

                              (b)  the Australian Capital Territory;

                               (c)  the Northern Territory.

60C   Supreme Court may sit in a host jurisdiction

     (1)   Subject to this section, the Supreme Court, in the exercise of its criminal jurisdiction, may sit in a host jurisdiction if to do so would not be contrary to the interests of justice.

     (2)   The Supreme Court may, at any time after prosecution for an offence against a law of the Territory commences and before the jury has returned its verdict, if it is satisfied that the interests of justice require it, order:

                              (a)  if the trial of the offence has not begun—that the trial be held in a host jurisdiction, and at a time and place, specified in the order; and

                              (b)  if the trial of the offence has begun—that the trial be discontinued, the jury be discharged and a new trial be held in a host jurisdiction, and at a time and place, specified in the order.

     (3)   The Supreme Court may make an order under subsection (2) at a sittings of the Court in the Territory or in a host jurisdiction.

     (4)   The Supreme Court may make an order under subsection (2) at a sittings of the Court in a host jurisdiction whether or not the accused is present but, if the accused is not present, the Court must only make the order if:

                              (a)  the accused is represented; and

                              (b)  the Court is satisfied that the accused understands the effect of the order.

     (5)   Where the Supreme Court makes an order under subsection (2), the Court may order that:

                              (a)  on the warrant of the Registrar, a Magistrate of the Territory or such other person as the Supreme Court directs (being a person who holds an office in relation to the Court), the accused be removed to the place specified in the order, and held there, for the purposes of the trial of that person and for any related proceedings; and

                              (b)  on the summons of the Registrar, all persons required to attend to give evidence in the trial or proceedings attend at the place specified in the order.

     (6)   When exercising its criminal jurisdiction in a host jurisdiction, the Supreme Court has, and may exercise, all the powers that it would have if it were exercising its criminal jurisdiction in the Territory.

     (7)   A power exercised by the Supreme Court under subsection (6) is taken to have been exercised by the Court at a sittings of the Court in the Territory.

     (8)   Where the Supreme Court is sitting in a host jurisdiction for the purpose of a trial in that jurisdiction, the Court may, if it is satisfied that the interests of justice require it, order that, for the purpose of viewing a place, or taking evidence from a person, in the Territory, or for a prescribed purpose:

                              (a)  the trial be adjourned for such time as the Court considers reasonable and necessary, and be continued in the Territory for so long as is necessary for that purpose; and

                              (b)  on the warrant of the Registrar, the accused be returned to the Territory for the purposes of the continuation of the trial and any related proceedings; and

                               (c)  the jurors empanelled for the trial go to the Territory and remain there for such time as the Court directs for the purpose of continuing to attend as jurors in the trial.

     (9)   A person who appears as a witness in the Supreme Court in a trial, or in related proceedings, held wholly or partly in a host jurisdiction, must be paid by the Commonwealth such fees and allowances as would be payable to the person if the person had appeared as a witness in a trial held in the Territory.

  (10)   Where:

                              (a)  the Supreme Court, when exercising its criminal jurisdiction in a host jurisdiction, makes an order, issues a warrant or summons or gives a judgment; and

                              (b)  a person fails to comply with that order, warrant, summons or judgment; and

                               (c)  that failure would have constituted an offence against a law of the Territory if it had occurred there;

the person commits an offence against this Act punishable by a penalty that is the same as the penalty for the offence referred to in paragraph (c).

60D   Juries outside the Territory

     (1)   Subject to this section and the regulations, the laws in force in a host jurisdiction relating to each of the following:

                              (a)  the qualification of jurors;

                              (b)  the preparation of jury lists and jury panels;

                               (c)  the summoning, attendance and empanelling of juries;

                              (d)  the number of jurors;

                               (e)  the right of challenge;

                               (f)  the discharge of juries;

                               (g)  the disagreement of jurors;

                              (h)  the remuneration of jurors;

                                (i)  other matters concerning jurors (other than matters dealt with under section 60E) after they have been summoned, appointed or sworn;

that apply for the purposes of the trial of a criminal matter in the Supreme Court of that jurisdiction sitting at a place in that jurisdiction, extend and are to be applied, with such changes as are necessary, for the purposes of the trial of a criminal matter in the Supreme Court of the Territory when sitting at that place.

     (2)   For the purposes of a trial in the Supreme Court held wholly or partly at a place in a host jurisdiction, the jury list that would be used for the purposes of a criminal trial in the Supreme Court of that jurisdiction sitting in the same place is to be used as well for the purposes of the trial in the Supreme Court of the Territory.

     (3)   The precept for a jury is to be issued by the Registrar, or such other person holding an office in relation to the Supreme Court as the Court directs, and the Sheriff or such other person as the Court directs must prepare the jury panels and summon jurors.

     (4)   The person who has custody of the jury list referred to in subsection (2) in the host jurisdiction where the Supreme Court is holding a trial must:

                              (a)  give a copy of that list to the person directed by the Court to prepare a jury panel; and

                              (b)  indicate on that copy the names of the persons who, to that person’s knowledge, would not, if summoned at the time the copy is given, be liable to serve as jurors under the law in force in that jurisdiction.

     (5)   The Commonwealth must pay any reasonable fee demanded for a copy of a list referred to in paragraph (4)(a).

     (6)   Any remuneration required to be paid to a person who serves, or is summoned to serve, on a jury in a trial in the Supreme Court held wholly or partly in a host jurisdiction must be paid by the Commonwealth.

     (7)   Where a law applied by this Act for the purposes of a trial in the Supreme Court requires an act or thing to be done by a person specified in that law, the Court may, if it is necessary to do so for the purpose of the effective application of the law, order that a person who holds a specified office in relation to the Court do that act or thing, and the law is taken to apply to that person accordingly.

     (8)   The regulations may provide that the provisions of a law referred to in subsection (1) that are specified in the regulations have effect with any modifications specified in the regulations.

     (9)   In this section, jury list means the roll, list, or book on or in which the names of persons liable to serve as jurors appear.

60E    Offences in relation to jurors

     (1)   A person who is served with a summons to attend as a juror in a trial in the Supreme Court held wholly or partly in a host jurisdiction must not:

                              (a)  fail to attend in accordance with the summons; or

                              (b)  having so attended, withdraw from the presence of the Court, without the permission of the Sheriff, before being discharged or excused by a judge of the Court or the Sheriff.

Penalty:    Imprisonment for 1 month.

     (2)   Subsection (1) does not apply if the person has a reasonable excuse.

Note:         A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code (Commonwealth)).

     (3)   A person must not impersonate a person who is a juror with the intention of sitting on a jury.

Penalty:    Imprisonment for 6 months.

     (4)   A person must not:

                              (a)  engage in conduct that results in the corruption of a juror; or

                              (b)  make or promise a payment to a juror, or confer or promise to confer any other benefit on a juror in relation to the person’s service as a juror, other than a payment of the ordinary remuneration of the juror’s employment; or

                               (c)  being a juror, accept such a payment or benefit.

Penalty:    Imprisonment for 5 years.

     (5)   In this section:

juror includes a person whose name is on a jury panel.

60F   Removal of accused to host jurisdiction to stand trial

     (1)   Where the Supreme Court makes an order under paragraph 60C(5)(a) in relation to an accused, the Registrar, a Magistrate of the Territory or a person directed by the Court under that paragraph, may:

                              (a)  by warrant directed to all constables, require them to convey the accused in custody from the Territory to the prison specified in the warrant and to deliver the accused into the custody of the officer for the time being in charge of that prison; and

                              (b)  by warrant directed to that officer, require that officer to detain the accused in that prison under this section.

     (2)   A warrant directed to all constables may be executed by any constable.

     (3)   An accused delivered into custody at a prison in a host jurisdiction under a warrant under subsection (1) may, subject to any order of the Supreme Court, be detained in that prison or any other prison in that jurisdiction for so long as the accused’s detention is necessary for the execution of the order.

     (4)   An accused may, while in custody, be dealt with in the same manner, and is subject to the same laws, as if the warrant issued under subsection (1) had been issued under a law in force in the host jurisdiction relating to holding persons in custody pending the trial of those persons.

     (5)   The Commonwealth is to pay to the host jurisdiction the reasonable expenses of maintaining an accused detained in a prison under a warrant under subsection (1).

60G   Accused to be conveyed to Court

     (1)   Where an accused has been removed to a host jurisdiction under this Act, a judge of the Supreme Court may order that the accused be conveyed to the Court for the purposes of trial in that jurisdiction, and any related proceedings.

     (2)   Where a judge of the Supreme Court makes an order under subsection (1), the person who has the custody of the accused must release the accused to a constable to enable the accused to be conveyed to the Court in accordance with that order.

60H   Return of accused to Territory

     (1)   Where the Supreme Court makes an order under paragraph 60C(8)(b), the Registrar may, by warrant directed to all constables, require them to convey the accused in custody from the host jurisdiction in which the Court made the order to the prison in the Territory specified in the warrant and to deliver the accused into the custody of the officer for the time being in charge of that prison.

     (2)   A warrant referred to in subsection (1) may be executed by any constable.

60J   Person taken to be prisoner under Removal of Prisoners (Territories) Act 1923

     (1)   This section applies if:

                              (a)  a person has been tried in relation to an indictable offence against a law of the Territory by the Supreme Court sitting in a host jurisdiction; and

                              (b)  the person is convicted of that offence and sentenced to imprisonment.

     (2)   The person is taken:

                              (a)  to be a prisoner within the meaning of the Removal of Prisoners (Territories) Act 1923 ; and

                              (b)  to have been removed to that jurisdiction under that Act.

     (3)   The provisions of that Act apply (so far as they are capable of applying) in relation to the person accordingly.

60K   Person taken to be criminal lunatic under Removal of Prisoners (Territories) Act 1923

     (1)   This section applies if a person who has been removed to a host jurisdiction under this Act:

                              (a)  is found to have been insane at the time of the commission of the offence; or

                              (b)  is found or certified, or otherwise lawfully proved, to be unfit, on the ground of insanity, to be tried for the offence; or

                               (c)  is convicted of an offence and afterwards certified, or otherwise lawfully proved, to be insane.

     (2)   The person is taken:

                              (a)  to be a criminal lunatic within the meaning of the Removal of Prisoners (Territories) Act 1923 ; and

                              (b)  to have been removed to that jurisdiction under that Act.

     (3)   Sections 9 and 10A of that Act apply (so far as they are capable of applying) in relation to the person accordingly.

60L   Repatriation of person tried in a host jurisdiction

             Where:

                              (a)  a person has been removed to a host jurisdiction under this Act; and

                              (b)  the trial of the person in the Supreme Court sitting in that jurisdiction has concluded; and

                               (c)  the person is acquitted (other than on the ground of insanity) or is not, after the date on which the trial concludes, required to serve a sentence of imprisonment;

the Commonwealth must, on application by the person to the Secretary, provide the person with means to enable the person to return to the Territory.

Subdivision C Historical offences, conduct and engaging in conduct

60M   Historical offences

             In this Division, a reference to an offence against a law of the Territory:

                              (a)  includes a reference to an offence against a law in force in the Territory at the time the conduct constituting the offence is alleged to have occurred; and

                              (b)  includes a reference to an offence against a law mentioned in paragraph (a), even if that law has subsequently been amended or repealed.

60N   Meanings of conduct and engage in conduct

             In this Division:

conduct has the same meaning as in the Commonwealth’s Criminal Code .

engage in conduct has the same meaning as in the Commonwealth’s Criminal Code .

Division 2 Civil matters

60P   Commonwealth may enter into arrangements with host jurisdictions

     (1)   The Commonwealth may enter into arrangements with the government or an authority of any of the following for the purposes of the effective application of the provisions of this Division relating to sittings of the Supreme Court in that jurisdiction in the exercise of the Supreme Court’s jurisdiction in civil matters:

                              (a)  a State;

                              (b)  the Australian Capital Territory;

                               (c)  the Northern Territory.

     (2)   No power is conferred, or duty or function imposed, on an officer of a State under this Division unless:

                              (a)  an arrangement has been entered into with the government or an authority of that State under subsection (1); and

                              (b)  the conferral of the power or imposition of the duty or function is in accordance with that arrangement.

     (3)   Each of the following is referred to as a host jurisdiction in this Division:

                              (a)  a State in relation to which an arrangement has been entered into under subsection (1);

                              (b)  the Australian Capital Territory;

                               (c)  the Northern Territory.

60Q   Supreme Court may sit in a host jurisdiction

     (1)   The Supreme Court, in the exercise of its jurisdiction in civil matters, may sit in a host jurisdiction under this section if to do so would not be contrary to the interests of justice.

     (2)   If a civil matter is before the Supreme Court for hearing at a sitting of the court, the court may order that the hearing of the matter be adjourned and continued at a sitting of the court in a host jurisdiction, and at a time and place, specified in the order.

     (3)   If a civil matter is not before the Supreme Court for hearing, a Judge may order that the matter be heard or continued at a sitting of the court in a host jurisdiction, and at a time and place, specified in the order.

     (4)   When exercising its jurisdiction in a civil matter in a host jurisdiction, the Supreme Court has, and may exercise, all the powers that it would have if it were exercising its jurisdiction in that matter in the Territory.

     (5)   A power exercised by the Supreme Court under subsection (4) is taken to have been exercised by the Court at a sittings of the Court in the Territory.

     (6)   A person who appears as a witness in the Supreme Court in the hearing of a civil matter, or in related proceedings, held wholly or partly in a host jurisdiction, must be paid by the Commonwealth such fees and allowances as would be payable to the person if the person had appeared as a witness in the hearing of the matter held in the Territory.

     (7)   Where:

                              (a)  the Supreme Court, when exercising its jurisdiction in a civil matter in a host jurisdiction, makes an order, issues a warrant or summons or gives a judgment; and

                              (b)  a person fails to comply with that order, warrant, summons or judgment; and

                               (c)  that failure would have constituted an offence against a law of the Territory if it had occurred there;

the person commits an offence against this Act punishable by a penalty that is the same as the penalty for the offence referred to in paragraph (c).

     (8)   An order made under subsection (2) or (3) to hear or continue a matter in a host jurisdiction, may:

                              (a)  if the matter is before the Supreme Court for hearing at a sitting of the court—be revoked by the court and replaced with an order that the hearing of the matter be adjourned and continued at a sitting of the court in the Territory, and at a time and place, specified in the order; and

                              (b)  if the matter is not before the Supreme Court for hearing—be revoked by a judge of the Court and replaced with an order that the matter be heard or continued at a sitting of the court in the Territory, and at a time and place, specified in the order.

     (9)   An order (made under subsection (8) or otherwise) to hear or continue a civil matter at a sitting of the Supreme Court in the Territory may be revoked and be replaced with an order under subsection (2) or (3).

4  Paragraph 67(a)

Repeal the paragraph, substitute:

                              (a)  prescribing circumstances in which the prosecution for an offence against a law of the Territory (as defined for the purposes of Division 1 of Part VIIA) is taken to have commenced for the purposes of subsection 60C(2); and

5  At the end of the Act

Add:

Schedule 5 No limitation period on prosecution of sexual offences

Note:           See section 60A.

1   Offences against certain provisions of the Crimes Act 1900 of Norfolk Island

     (1)   Each of the following provisions of the Crimes Act 1900 of Norfolk Island is listed for the purposes of section 60A:

                              (a)  sections 62 to 81;

                              (b)  sections 86 to 91D;

                               (c)  a provision of Part IIIA;

                              (d)  a provision of Part IX, as it relates to an offence against one of the provisions mentioned in paragraphs (a) to (c).

     (2)   In this clause:

Crimes Act 1900 of Norfolk Island means the Crimes Act 1900 of the State of New South Wales, as amended before 16 December 1936 and applied in Norfolk Island, subject to any modifications made from time to time under laws that were in force in the Territory before 1 January2008.

2   Offences against the Criminal Code of Norfolk Island

     (1)   Each provision of the following Parts of the Criminal Code of Norfolk Island is listed for the purposes of section 60A:

                              (a)  Part 3.6;

                              (b)  Part 3.7;

                               (c)  Part 3.9;

                              (d)  Part 3.10;

                               (e)  Part 2.4, as it relates to an offence against any provision of one of the Parts mentioned in paragraphs (a) to (d).

     (2)   In this clause:

Criminal Code of Norfolk Island means the Criminal Code 2007 of Norfolk Island, as in force from time to time on and after 1 January 2008.

6  Application of amendments

Trial of criminal matters

(1)    To avoid doubt, Subdivision B of Division 1 of Part VIIA of the Norfolk Island Act 1979 , inserted by item 3 of this Schedule, applies in relation to the trial of an offence even if the trial has begun before the Subdivision commences.

Hearing civil matters

(2)    An order that was made under a provision of the Norfolk Island Regulations 2017 (the Regulations ) described in column 1 of an item of the following table and was in force immediately before the commencement of Division 2 of Part VIIA of the Norfolk Island Act 1979 (the Act ), inserted by item 3 of this Schedule, has effect on and after that commencement as if it were an order described in column 2 of the item.

Continuation of orders made under the Regulations

Item

Column 1

Column 2

1

An order under section 8 of the Regulations

An order under subsection 60Q(2) of the Act

2

An order under subparagraph 9(a)(i) of the Regulations

An order under subsection 60Q(3) of the Act

3

An order under subparagraph 9(a)(ii) of the Regulations

An order under paragraph 60Q(8)(b) of the Act

Explanatory memorandum : Senator Ruston tabled a supplementary explanatory memorandum relating to the government amendments to be moved to the bill.

Debate ensued.

Question—That the amendments be agreed to—put and passed.

Bill, as amended, agreed to and reported with amendments.

 

 

 

On the motion of Senator Ruston the report from the committee was adopted and the bill read a third time.