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Norfolk Island Amendment (Supreme Court) Bill 2020

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2019-2020

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

NORFOLK ISLAND AMENDMENT (SUPREME COURT) BILL 2020

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Assistant Minister for Regional Development and Territories, The Hon Nola Marino MP)

 

 



 

 

NORFOLK ISLAND AMENDMENT (SUPREME COURT) BILL 2020

 

OUTLINE

 

The purpose of the Bill is to amend the Norfolk Island Act 1979 (the Act) to make technical amendments with respect to the Supreme Court of Norfolk Island (the Supreme Court). The amendments are intended to make technical changes to the provisions authorising off-island sittings of the Supreme Court and clarify the basis under which travelling allowances are determined for judges of the Supreme Court.

 

Provisions inserted into the Act in 2018 enable the Supreme Court to sit in a state or territory other than Norfolk Island when exercising its criminal and civil jurisdictions. These provisions were intended to address concerns that there may be cases where holding a criminal trial on Norfolk Island, given its small size and remote location, is not consistent with the interests of justice.

 

These provisions also allow the Commonwealth to enter into arrangements with the government or an authority of a state or territory for the purposes of the effective application of the provisions dealing with the hearing of criminal and civil matters in that host jurisdiction. The cooperation of state and territory authorities, such as courts and remand centres, for instance, will assist the Supreme Court when conducting criminal trials outside Norfolk Island. However, for constitutional reasons, the provisions also provide that a power will only be conferred, and a duty or function will only be imposed, on a state officer if the conferral or imposition is in accordance with such an arrangement.

 

The effect of these technical amendments is to remove any doubt that the Supreme Court may exercise its criminal or civil jurisdiction in a state, in the absence of an arrangement between the Commonwealth and the state government or authority, where no powers, duties or functions are conferred or imposed upon a state officer. For instance, state officers will normally not be required to discharge any functions when a judge of the Supreme Court sits in Commonwealth court facilities assisted only by other Supreme Court or Commonwealth officials. As judges of the Federal Court of Australia (Federal Court) have been appointed to the Supreme Court, there is an established practice that Supreme Court judges normally operate out of the Federal Court in the state capitals (including via audio-visual links with Norfolk Island), in particular for directions and case management hearings and other interlocutory and chamber matters. State officers are not required to discharge any functions for these proceedings.

 

The amendments also clarify the basis on which travelling allowances are determined for judges of the Supreme Court. The intention of these amendments is to reflect the existing practice by which judges of the Supreme Court receive the travelling allowances, as determined by the Remuneration Tribunal, to which they are entitled as a judge of another court created by the Parliament. Under section 53 of the Act, the Chief Justice and the other judges of the Supreme Court must be judges of another court created by the Parliament (for instance, the Federal Court or the Federal Circuit Court of Australia (Federal Circuit Court)).

 

Financial impact statement

These amendments do not have any additional impact on the budget.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Norfolk Island Amendment (Supreme Court) Bill 2020

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The purpose of the Bill is to amend the Norfolk Island Act 1979 (the Act) to make technical amendments with respect to the Supreme Court of Norfolk Island (the Supreme Court). The amendments are intended to make technical changes to the provisions authorising off-island sittings of the Supreme Court and clarify the basis under which travelling allowances are determined for judges of the Supreme Court.

 

Provisions inserted into the Act in 2018 enable the Supreme Court to sit in a state or territory other than Norfolk Island when exercising its criminal and civil jurisdictions. These provisions were intended to address concerns that there may be cases where holding a criminal trial on Norfolk Island, given its small size and remote location, is not consistent with the interests of justice.

 

These provisions also allow the Commonwealth to enter into arrangements with the government or an authority of a state or territory for the purposes of the effective application of the provisions dealing with the hearing of criminal and civil matters in that host jurisdiction. The cooperation of state and territory authorities, such as courts and remand centres, for instance, will assist the Supreme Court when conducting criminal trials outside Norfolk Island. However, for constitutional reasons, the provisions also provide that a power will only be conferred, and a duty or function will only be imposed, on a state officer if the conferral or imposition is in accordance with such an arrangement.

 

The effect of these technical amendments is to remove any doubt that the Supreme Court may exercise its criminal or civil jurisdiction in a state, in the absence of an arrangement between the Commonwealth and the state government or authority, where no powers, duties or functions are conferred or imposed upon a state officer. For instance, state officers will normally not be required to discharge any functions when a judge of the Supreme Court sits in Commonwealth court facilities assisted only by other Supreme Court or Commonwealth officials. As judges of the Federal Court of Australia (Federal Court) have been appointed to the Supreme Court, there is an established practice that Supreme Court judges normally operate out of the Federal Court in the state capitals (including via audio-visual links with Norfolk Island), in particular for directions and case management hearings and other interlocutory and chamber matters. State officers are not required to discharge any functions for these proceedings.

 

The amendments also clarify the basis on which travelling allowances are determined for judges of the Supreme Court. The intention of these amendments is to reflect the existing practice by which judges of the Supreme Court receive the travelling allowances, as determined by the Remuneration Tribunal, to which they are entitled as a judge of another court created by the Parliament. Under section 53 of the Act, the Chief Justice and the other judges of the Supreme Court must be judges of another court created by the Parliament (for instance, the Federal Court or the Federal Circuit Court of Australia).

Human rights implications

The amendments make technical changes to the provisions authorising off-island sittings of the Supreme Court and clarify the basis on which travelling allowances are determined for judges of the Supreme Court.

The off-island sittings amendments are intended to ensure that these provisions operate as originally intended by removing any doubt that the Supreme Court may exercise its criminal or civil jurisdiction in a state, in the absence of an arrangement between the Commonwealth and the state government or authority, where no powers, duties or functions are conferred or imposed upon a state officer.

The amendments also clarify the basis on which travelling allowances are determined for judges of the Supreme Court. The intention of these amendments is to reflect the existing practice whereby judges of the Supreme Court receive the travelling allowances, as determined by the Remuneration Tribunal, to which they are entitled as a judge of another court created by the Parliament.

The statement of compatibility with human rights prepared with respect to the introduction of the off-island sittings measures by the 2018 Act concluded that, while these provisions potentially engaged a number of human rights, the measures either did not engage those rights or were compatible with human rights. These technical amendments have no further substantive impact on human rights than the measures as originally introduced. Accordingly, these amendments do not engage any of the applicable human rights or freedoms.

 

The other amendments, dealing with travelling allowances, do not affect existing practice and also do not engage any of the applicable human rights or freedoms .

 

Conclusion

The Bill is compatible with human rights because it does not engage any human rights.

 

 

Assistant Minister for Regional Development and Territories,

The Hon Nola Marino MP



 

 

NOTES ON CLAUSES

 

Clause 1: Short title

 

1.       This clause specifies the short title of the Bill, if enacted, as the Norfolk Island Amendment (Supreme Court) Act 2020 .

 

Clause 2: Commencement

 

2.       This clause specifies the commencement of the Bill. The table specifies that the whole Bill will commence the day after the Bill receives the Royal Assent.

 

Clause 3: Schedule

 

3.       This clause provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the Schedule concerned and any other item in a Schedule to the Act has effect according to its terms.

 

SCHEDULE 1—AMENDMENTS

 

Part 1—Amendments

 

Norfolk Island Act 1979

 

Item 1—Subsection 4(1) (definition of host jurisdiction )

 

4.       This item amends subsection 4(1) of the Act by substituting a new definition of ‘host jurisdiction’ for the purposes of the Act. The new definition removes the references in the existing definition to subsections 60B(3) and 60P(3) which provide that a ‘host jurisdiction’ includes ‘a State in relation to which an arrangement has been entered into under’ subsection 60B(1) or 60P(1) of the Act. Instead, paragraph (a) of the new definition provides that ‘host jurisdiction’ means ‘a State’. Paragraphs (b) and (c) of the new definition are based on existing paragraphs 60B(3)(b) and (c) and 60P(3)(b) and (c) of the Act and provide that ‘host jurisdiction’ also means the Australian Capital Territory and the Northern Territory.

 

5.       The effect of the amendment is to remove any doubt that the Supreme Court may exercise its criminal or civil jurisdiction in a state, in the absence of an arrangement between the Commonwealth and the state government or authority, where no powers, duties or functions are conferred upon a state official. For instance, state officials will normally not be required to discharge any functions when a judge of the Supreme Court sits in Commonwealth court facilities assisted only by other Supreme Court or Commonwealth officials.

 

Item 2—Section 56

 

6.       This item substitutes a new section 56 of the Act, which deals with the salary and allowances of judges of the Supreme Court. The effect of the amendment is to provide that the travelling allowances of judges will no longer be as the Governor-General approves. Instead, a judge will receive the travelling allowances that the judge receives as a judge of the other court, or other courts, of which he or she is a judge (for instance, the Federal Court or the Federal Circuit Court).

 

7.       The intention of the amendment is to reflect the existing practice by which judges of the Supreme Court receive the travelling allowances, as determined by the Remuneration Tribunal, to which they are entitled as a judge of another court created by the Parliament. Under section 53 of the Act, the Chief Justice and the other judges of the Supreme Court must be judges of another court created by the Parliament (for instance, the Federal Court or the Federal Circuit Court).

 

Item 3—Subsection 60B(1)

 

8.       This item substitutes a new subsection 60B(1) of the Act. The amendment relates to the substitution of a new definition of ‘host jurisdiction’ by item 25. New subsection 60B(1) is based on the existing subsection 60B(1) and provides that the Commonwealth may enter into arrangements with the government or an authority of a host jurisdiction for the purposes of the effective application of the provisions dealing with the hearing of criminal matters in that host jurisdiction (Subdivision B of Division 1 of Part VIIA of the Act). For instance, arrangements may facilitate the cooperation of state and territory authorities, such as courts and remand centres, to assist the Supreme Court when conducting criminal trials outside Norfolk Island.

 

Item 4—Subsection 60B(3)

 

9.       This item repeals subsection 60B(3) of the Act, which presently defines ‘host jurisdiction’ for the purposes of Subdivision B of Division 1 of Part VIIA of the Act. The repeal of this subsection is a consequential amendment arising from the substitution of a new definition of ‘host jurisdiction’ in subsection 4(1) of the Act by item 25.

 

Item 5—Subsection 60P(1)

 

10.   This item substitutes a new subsection 60P(1) of the Act. The amendment relates to the substitution of a new definition of ‘host jurisdiction’ by item 25. New subsection 60P(1) is based on the existing subsection 60P(1) and provides that the Commonwealth may enter into arrangements with the government or an authority of a host jurisdiction for the purposes of the effective application of the provisions dealing with the hearing of civil matters in that host jurisdiction (Division 2 of Part VIIA of the Act).

 

Item 6—Subsection 60P(3)

 

11.   This item repeals subsection 60P(3) of the Act, which presently defines ‘host jurisdiction’ for the purposes of Division 2 of Part VIIA of the Act. The repeal of this subsection is a consequential amendment arising from the substitution of a new definition of ‘host jurisdiction’ in subsection 4(1) of the Act by item 25.

 

Item 7—Subsection 60Q(6)

 

12.   This item repeals subsection 60Q(6) of the Act, which deals with the payment of witness fees and allowances. That provision, which is based on subsection 60C(9) of the Act, provides that the fees and allowances of witnesses who appear in proceedings held in a host jurisdiction must be paid by the Commonwealth. While this provision is appropriate with respect to criminal trials (hence subsection 60C(9)), it is not appropriate in civil matters where the parties concerned are normally responsible for costs, including witness expenses.

 

Part 2—Application of amendments

 

Item 8—Travelling allowances of Judges

 

13.   This item is an application provision that provides that the amendment of section 56 of the Act, which deals with the salary and allowances of judges, has no effect to the extent (if any) that the amendment would otherwise operate to diminish the remuneration of a judge during the judge’s continuance in office.

 

Item 9—Arrangements with host jurisdictions

 

14.   Subitems 33(1) and (2) are application provisions that provide, respectively, that despite the substitution of subsections 60B(1) and 60P(1) of the Act, a reference to an arrangement in Part VIIA of the Act as amended is taken to include a reference to any arrangements that were entered into under those subsections before their substitution and that remain in force. These subitems are intended to preserve the operation of any arrangements entered into by the Commonwealth and the government or authority of a state or territory before the amendment of the Act and which are still in force at the time the Act is amended.