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Territories Legislation Amendment Bill 2020

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2019-2020

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

TERRITORIES LEGISLATION AMENDMENT BILL 2020

 

BANKRUPTCY (ESTATE CHARGES) AMENDMENT (NORFOLK ISLAND) BILL 2020

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

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

 



 

Contents

TERRITORIES LEGISLATION AMENDMENT BILL 2020 . 4

Statement of Compatibility with Human Rights . 10

NOTES ON CLAUSES . 22

SCHEDULE 1 - AMENDMENTS OF TERRITORY ACTS . 24

SCHEDULE 2 - AMENDMENTS OF TREASURY ACTS . 70

SCHEDULE 3 - AMENDMENTS OF ATTORNEY-GENERAL’S DEPARTMENT ACTS   91

SCHEDULE 4 - AMENDMENTS OF OTHER ACTS . 113

BANKRUPTCY (ESTATE CHARGES) AMENDMENT (NORFOLK ISLAND) BILL 2020   117

 

 



 

The following abbreviations and acronyms are used throughout this explanatory memorandum.

Abbreviation

Definition

ACCC

Australian Competition and Consumer Commission

ACMA

Australian Communications and Media Authority

Acts Interpretation Act

Acts Interpretation Act 1901

ADJR Act

Administrative Decisions (Judicial Review) Act 1977

AFP

Australian Federal Police

AFSA

Australian Financial Security Authority

APPs

Australian Privacy Principles

ASIC

Australian Securities and Investments Commission

ASIC Act

Australian Securities and Investments Commission Act 2001

ASIC Supervisory Cost Recovery Levy (Collection) Act

ASIC Supervisory Cost Recovery Levy (Collection) Act 2017

ASIC Supervisory Cost Recovery Levy Act

ASIC Supervisory Cost Recovery Levy Act 2017

Bankruptcy Act

Bankruptcy Act 1966

Broadcasting Services Act

Broadcasting Services Act 1992

CI Act

Christmas Island Act 19 58

CKI Act

Cocos (Keeling) Islands Act 1955

Competition and Consumer Act

Competition and Consumer Act 2010

Copyright Act

Copyright Act 1968

Corporations Act

Corporations Act 2001

CRICOS

Commonwealth Register of Institutions and Courses for Overseas Students

Criminal Code

Criminal Code Act 1995

Cross-Border Insolvency Act

Cross-Border Insolvency Act 2008

ESOS Act

Education Services for Overseas Students Act 2000

FOI Act

Freedom of Information Act 1982

ICCPR

International Covenant on Civil and Political Rights

ICESCR

International Covenant on Economic, Social and Cultural Rights

Legislation Act

Legislation Act 2003

National Consumer Credit Protection (Transitional and Consequential Provisions) Act

National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009

National Consumer Credit Protection Act

National Consumer Credit Protection Act 2009

NI Act

Norfolk Island Act 1979

NIRC

Norfolk Island Regional Council

Norfolk Island Bankruptcy Act

Bankruptcy Act 2006 (NI)

Norfolk Island Broadcasting Act

Norfolk Island Broadcasting Act 2001 (NI)

Norfolk Island Companies Act

Companies Act 1985 (NI)

NSW

New South Wales

Privacy Act

Privacy Act 1988

Territories Legislation Amendment Act

Territories Legislation Amendment Act 2016

 



 

TERRITORIES LEGISLATION AMENDMENT BILL 2020

 

OUTLINE

 

The purpose of the Territories Legislation Amendment Bill 2020 (the Bill) is to: 

·          Amend the Norfolk Island Act 1979 (NI Act), Christmas Island Act 19 58 (CI Act) and Cocos (Keeling) Islands Act 1955 (CKI Act) to ensure the effective operation of the laws of other states and territories which have been applied in these territories.

·          Amend the NI Act to allow the Australian Government to enter into arrangements with any state or territory government to support state-type service delivery in Norfolk Island and provide for the possible future conferral upon the courts of a state or territory jurisdiction (including appellate jurisdiction) in relation to Norfolk Island.

·          Amend the Corporations Act 2001 (Corporations Act), Australian Securities and Investments Commission Act 2001(ASIC Act) and associated Treasury Acts to fully extend their application to the external territories and ensure all Australian companies operate under the same legislative framework.

·          Amend the Bankruptcy Act 1966 (Bankruptcy Act) to allow the Australian Financial Security Authority (AFSA) to provide bankruptcy and personal property security services to Norfolk Island. The Bankruptcy (Estate Charges) Amendment (Norfolk Island) Bill 2020 is consequential to this measure and extends the Bankruptcy (Estate Charges) Act 1997 to Norfolk Island.

·          Amend the Freedom of Information Act 1982 (FOI Act) to clarify its application to bodies established under a law in force in Norfolk Island.

·          Amend the Privacy Act 1988 (Privacy Act) to clarify its application to statutory bodies in the external territories and clarify the application of the Australian Privacy Principles (APPs) to state and territory laws which have been applied in the external territories and the Jervis Bay Territory.

·          Amend the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to extend its coverage to decisions made by Commonwealth officials under applied laws in the external territories and the Jervis Bay Territory and extend the right to judicial review to decisions made under laws made by the former Norfolk Island Legislative Assembly and continued pre-self-government ordinances.

·          Amend the Criminal Code Act 1995 (Criminal Code) to update the definition of ‘Commonwealth public official’ to include people exercising powers or functions under a law in force in Norfolk Island.

·          Amend the Broadcasting Services Act 1992 (Broadcasting Services Act) to allow the Australian Communications and Media Authority (ACMA) to issue licences and undertake future broadcasting planning in Norfolk Island.

·          Amend the Copyright Act 1968 (Copyright Act) to ensure Norfolk Island is treated as a territory instead of a state for the purposes of the Act.

·          Extend the application of the Education Services for Overseas Students Act 2000 (ESOS Act) to Norfolk Island to allow for the potential regulation of services to overseas students attending Norfolk Island Central School.

 

The Australian territories of Christmas Island, the Cocos (Keeling) Islands, Norfolk Island, and the Jervis Bay Territory, are governed under Commonwealth legislation which allows for the laws of another jurisdiction to be applied in those territories to enable the regulation and delivery of services usually provided by state or territory governments. The Bill amends a range of Commonwealth legislation to more closely align the legislative frameworks in these territories with the rest of Australia.

 

In March 2015, the Australian Government announced comprehensive changes in Norfolk Island to address issues of sustainability which arose from the model of governance requiring the former Administration of Norfolk Island to deliver local, state and Commonwealth government services.

 

In 2016, the Parliament passed the Territories Legislation Amendment Act 2016 (Territories Legislation Amendment Act) which extended all Commonwealth legislation to Norfolk Island unless expressly provided otherwise. The extension of some legislation was deferred to allow extra time for the community to prepare for the transition to the new arrangements. The Bill extends further Commonwealth legislation relating to corporations, bankruptcy, broadcasting and education services for overseas students to Norfolk Island to bring regulation in these areas into line with the rest of Australia.

 

Schedule 1 - Amendments of Territory Acts

 

Applied laws

 

Amendments to the NI Act provide a mechanism under which the laws of Australian states or territories may be applied as Commonwealth law in Norfolk Island. These arrangements are intended to operate in the same way as the existing arrangements that allow for the application of NSW laws and provide a broader and more flexible legal mechanism with respect to the future provision of state-type services in Norfolk Island. The amendments allow for the laws of a state, prescribed by regulations as an ‘applied law jurisdiction’, to be applied in Norfolk Island.

 

The Commonwealth minister responsible for Norfolk Island will also be able to enter into arrangements with the relevant state government for assistance in the administration of these applied laws and other laws in force in Norfolk Island, including the performance of functions and provision of services by state officials or authorities (other than courts) on behalf of the Commonwealth.

 

In the absence of any such arrangements, the application of the laws of a state in Norfolk Island does not in any way place an obligation on the relevant government’s officials to deliver services or administer legislation in respect of Norfolk Island. Non-judicial powers and duties will be vested in the Commonwealth minister, who will have capacity to delegate the powers, or direct that they be delegated to some other person or authority.

 

Alternatively, if a territory (other than Norfolk Island) is prescribed by regulations as an ‘applied law jurisdiction’, the laws of that territory will be applied in Norfolk Island. These arrangements would be similar to those operating in the Jervis Bay Territory with respect to the application of Australian Capital Territory laws under the Jervis Bay Territory Acceptance Act 1915 .

 

Reflecting the different constitutional status of the territories compared with the states, officials and authorities of a territory prescribed as an applied law jurisdiction would, in the absence of any arrangement between the Commonwealth minister and the territory government, be able to exercise any powers and functions under applied territory laws in relation to Norfolk Island as if it formed part of their own territory. However, these provisions do not prevent the Commonwealth from entering into arrangements with the territory government dealing with the administration of applied territory laws.

 

The Commonwealth minister will also have capacity to direct that powers or functions under applied territory laws be vested in a person or authority (including the Commonwealth minister) in addition to or instead of the relevant territory official or authority.

 

Delegation

 

Amendments to the NI Act, CI Act and the CKI Act address the risk of delegation instruments becoming outdated when applied laws in force in the territories are amended or new laws are made by the relevant state or territory government. This will address any concerns that the delegation instruments cannot encompass powers that do not exist at the time they are made. Other technical changes are intended to improve the operation of the delegation arrangements more generally with respect to applied laws, including enhancing consistency of language between the applied laws regimes, as well as permitting ordinances to incorporate applied laws as in force from time to time.

 

The amendments also address the need for the Commonwealth minister to sign delegation instruments vesting the powers and functions of the police and local government bodies under applied laws to the police and the local government bodies for each territory. If applied laws are amended by state or territory governments to confer new powers and functions on the police and local government bodies, the amendments ensure the deemed vesting of these new powers and functions by the minister. Provision is also made for other powers and functions under applied laws to be prescribed by an ordinance for the purposes of these deemed vesting provisions. These arrangements will enhance the effectiveness of these delegation arrangements with respect to the functions of the police, local government and others who exercise powers under applied laws in the external territories.

 

Jurisdiction of Norfolk Island courts

 

Amendments in relation to the jurisdiction of Norfolk Island courts complement the amendments to the NI Act which allow state or territory laws to be applied in Norfolk Island.

 

These amendments permit the courts of a prescribed state or territory to have jurisdiction (including appellate jurisdiction) in relation to Norfolk Island as if it were part of that state or territory. This will allow for the courts of the relevant state or territory providing services to Norfolk Island to hear matters relevant to the services being provided by state or territory government officials under the applied laws of that same jurisdiction. This would be similar to the arrangements which apply in Christmas Island and the Cocos (Keeling) Islands where the courts of Western Australia have jurisdiction with respect to these external territories as if these territories were part of Western Australia.

 

If jurisdiction in relation to Norfolk Island is conferred on the courts of a prescribed state or territory, the amendments provide for that court to sit in either in Norfolk Island or in the prescribed state or territory. However, similar to the arrangements which apply in Christmas Island and the Cocos (Keeling) Islands, a court of a prescribed state or territory may only sit in the prescribed state or territory when exercising its criminal jurisdiction if to do so would not be contrary to the interests of justice.

 

Consequential amendments provide for the Supreme Court of Norfolk Island to cease operation after its jurisdiction is conferred on a court of a prescribed state or territory. The future operation of other Norfolk Island courts and tribunals will be dealt with by ordinances made under the NI Act.

 

It is likely to be a number of years before these provisions are utilised.

 

Schedule 2 - Amendments of Treasury Acts

 

The Bill extends the application of the Corporations Act, the ASIC Act, the National Consumer Credit Protection Act 2009 (National Consumer Credit Protection Act) , the Competition and Consumer Act 2010 (Competition and Consumer Act) and the Cross-Border Insolvency Act 2008 (Cross Border Insolvency Act) to Norfolk Island, Christmas Island, and the Cocos (Keeling) Islands.

 

The Bill amends application provisions and definitions in these Acts to ensure all Australian companies operate under the same legislative framework.

 

Transitional provisions allow for the registration of companies registered under the Companies Act 1985 (NI) (Norfolk Island Companies Act) to be transferred to registration under the Corporations Act. This process will be undertaken by ASIC and will not require Norfolk Island companies to make an application in order to transition. The Bill also provides a rule-making power for ASIC to make rules of a transitional nature relating to the amendments made by the Bill. ASIC will be able to make such rules until 12 months after the commencement of the substantive amendments to the Acts administered by ASIC.

 

After this time, the transitional rule-making power, and any rules made under those powers, will be automatically repealed. However, any rules relating to the transition of a particular Norfolk Island company’s registration may continue to operate for a further period of approximately 12 months, to enable an orderly assessment to be conducted of whether more permanent arrangements may be required in respect of the issues that have arisen in the course of the transition of that company’s registration.

 

The Bill also amends the ASIC Supervisory Cost Recovery Levy Act 2017 ( ASIC Supervisory Cost Recovery Levy Act) and the ASIC Supervisory Cost Recovery Levy (Collection) Act 2017 ( ASIC Supervisory Cost Recovery Levy (Collection) Act ) to remove out-of-date references to the ‘Crown in right of Norfolk Island’, as this body politic no longer exists.

 

The substantive amendments to the Corporations Act, ASIC Act and other Acts administered by ASIC commence on the later of:

 

·          the first Monday to occur after the end of the period of 6 months after the day the Bill receives assent; and

·          2 August 2021.

 

The deferred commencement is necessary to enable sufficient time for ASIC to transfer the registration of companies from being under the Norfolk Island Companies Act to being under the Corporations Act. The remaining amendments commence on the day after the Bill receives assent.

 

Schedule 3 - Amendments of Attorney-General’s Department Acts

 

Bankruptcy Act 1966

The Bill amends the Bankruptcy Act to extend the Commonwealth bankruptcy system to Norfolk Island. Norfolk Island currently operates its own bankruptcy system and bankruptcies are administered under the Bankruptcy Act 2006 (NI) (Norfolk Island Bankruptcy Act). Extending the Bankruptcy Act to Norfolk Island ensures bankruptcies in Norfolk Island are administered in a way that is consistent with all other bankruptcies in Australia. The personal insolvency trustee and regulation services of the AFSA also extends to bankruptcies on Norfolk Island.

Division 1 of Part 1 of Schedule 3 to the Bill makes general amendments to the Bankruptcy Act to ensure that the operation of the Bankruptcy Act is extended to Norfolk Island and that relevant definitions capture Norfolk Island.

Division 2 of this Part includes transitional provisions to ensure the smooth transition of any person who was previously made bankrupt under the Norfolk Island Bankruptcy Act and who remains bankrupt at the time of commencement to the Commonwealth bankruptcy system.

Division 2 also ensures that the AFSA has access to information and records necessary to effectively administer any Norfolk Island bankruptcy matters transitioned to the Commonwealth bankruptcy system and ensure compliance with requirements to enter information on the National Personal Insolvency Index under the Bankruptcy Act.

 

Freedom of Information Act 1982

 

Part 2 of Schedule 3 to the Bill amends the FOI Act to clarify its application to bodies established by or under a law in force in Norfolk Island, in particular, the laws of a state or territory applied in the territory under the NI Act.

 

These amendments clarify the application of the FOI Act to bodies such as the Norfolk Island Regional Council (NIRC) which is established under an applied New South Wales (NSW) law, specifically, the Local Government Act 1993 (NSW)(NI). Redundant provisions relating to the former governance arrangements in Norfolk Island have also been removed.

 

Privacy Act 1988

 

Part 3 of Schedule 3 amends the definition of ‘Australian law’ in the Privacy Act to avoid any doubt that this definition includes the laws of a state or territory applied in an external territory or the Jervis Bay Territory under a Commonwealth Act. This clarifies the application of the APPs to laws in force in the external territories and the Jervis Bay Territory. Redundant provisions relating to the former governance arrangements in Norfolk Island are removed and other amendments clarify the application of the Privacy Act to public offices and bodies established under laws in force in the external territories.

Administrative Decisions (Judicial Review) Act 1977

 

The Bill amends the ADJR Act to extend its coverage to any administrative decision made by a Commonwealth authority or an officer of the Commonwealth under an applied state or territory law operating in the external territories and the Jervis Bay Territory. It also extends the right to judicial review of decisions made under laws of the former Norfolk Island Legislative Assembly and continued pre-self-government ordinances. This allows people living in these territories to seek judicial review under the ADJR Act of decisions made in relation to state-type services, such as health, education and planning.

 

Criminal Code Act 1995

 

The Bill amends the Criminal Code to update the definition of ‘Commonwealth public official’ to include people who exercise powers, or perform functions conferred on them under a law in force in Norfolk Island. This ensures the effective operation of offences relating to the proper administration of government in Chapter 7 of the Criminal Code.

 

Schedule 4 - Amendments of other Acts

 

Broadcasting Services Act 1992

 

Amendments to the Broadcasting Services Act in Part 1 of Schedule 4 facilitate the transition of existing Norfolk Island television and radio services from the Norfolk Island Broadcasting Act 2001 (Norfolk Island Broadcasting Act) and allow future broadcasting planning and licensing in respect of Norfolk Island to be undertaken in accordance with the Broadcasting Services Act. 

 

Copyright Act 1968

 

The Bill makes minor amendments to the Copyright Act so that Norfolk Island is treated as a territory instead of a state for the purposes of the Act.

 

Education Services for Overseas Students Act 2000

 

The Bill extends the application of the ESOS Act to Norfolk Island. The amendments ensure protections in the ESOS Act relating to education quality, financial investment and welfare are available to overseas students on Norfolk Island who hold an Australian student visa.

 

The amendments also mean that providers delivering education to overseas students on Norfolk Island are required to be registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).

 

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

 

Territories Legislation Amendment 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 .



Bankruptcy (Estate Charges) Amendment (Norfolk Island) 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 Bills

The Territories Legislation Amendment Bill 2020 (the Bill) and the Bankruptcy (Estate Charges) Amendment (Norfolk Island) Bill 2020 (Estate Charges Bill) (the Bills) will

·          Amend the Norfolk Island Act 1979 (NI Act), Christmas Island Act 19 58 (CI Act) and Cocos (Keeling) Islands Act 1955 (CKI Act) to ensure the effective operation of the laws of other states and territories which have been applied in these territories.

·          Amend the NI Act to allow the Australian Government to enter into arrangements with any state or territory government to support state-type service delivery in Norfolk Island and provide for the possible future conferral upon the courts of a state or territory jurisdiction (including appellate jurisdiction) in relation to Norfolk Island.

·          Amend the Corporations Act 2001 (Corporations Act), Australian Securities and Investments Commission Act 2001(ASIC Act) and associated Treasury Acts to fully extend their application to the external territories and ensure all Australian companies operate under the same legislative framework.

·          Amend the Bankruptcy Act 1966 (Bankruptcy Act) to allow the Australian Financial Security Authority (AFSA) to provide bankruptcy and personal property security services to Norfolk Island. The Estate Charges Bill is consequential to this measure and extends the Bankruptcy (Estate Charges) Act 1997 to Norfolk Island.

·          Amend the Freedom of Information Act 1982 (FOI Act) to clarify its application to bodies established under a law in force in Norfolk Island.

·          Amend the Privacy Act 1988 (Privacy Act) to clarify its application to statutory bodies in the external territories and clarify the application of the Australian Privacy Principles (APPs) to state and territory laws which have been applied in the external territories and the Jervis Bay Territory.

·          Amend the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to extend its coverage to decisions made by Commonwealth officials under applied laws in the external territories and the Jervis Bay Territory and extend the right to judicial review to decisions made under laws made by the former Norfolk Island Legislative Assembly and continued pre-self-government ordinances.

·          Amend the Criminal Code Act 1995 (Criminal Code) to update the definition of ‘Commonwealth public official’ to include people exercising powers or functions under a law in force in Norfolk Island.

·          Amend the Broadcasting Services Act 1992 (Broadcasting Services Act) to allow the Australian Communications and Media Authority (ACMA) to issue licences and undertake future broadcasting planning in Norfolk Island.

·          Amend the Copyright Act 1968 (Copyright Act) to ensure Norfolk Island is treated as a territory instead of a state for the purposes of the Act.

·          Extend the application of the Education Services for Overseas Students Act 2000 (ESOS Act) to Norfolk Island to allow for the potential regulation of services to overseas students attending Norfolk Island Central School.

 

The Australian territories of Christmas Island, the Cocos (Keeling) Islands, Norfolk Island, and the Jervis Bay Territory, are governed under Commonwealth legislation which allows for the laws of another jurisdiction to be applied in those territories to enable the regulation and delivery of services usually provided by state or territory governments. The Bill amends a range of Commonwealth legislation to more closely align the legislative frameworks in these territories with the rest of Australia.

 

In March 2015, the Australian Government announced comprehensive changes in Norfolk Island to address issues of sustainability which arose from the model of governance requiring the former Administration of Norfolk Island to deliver local, state and Commonwealth government services.

 

In 2016, the Parliament passed the Territories Legislation Amendment Act 2016 (Territories Legislation Amendment Act) which extended all Commonwealth legislation to Norfolk Island unless expressly provided otherwise. The extension of some legislation was deferred to allow extra time for the community to prepare for the transition to the new arrangements. The Bill extends further Commonwealth legislation relating to corporations, bankruptcy, broadcasting and education services for overseas students to Norfolk Island to bring regulation in these areas into line with the rest of Australia.

 

Schedule 1 - Amendments of Territory Acts

 

Applied laws

 

Amendments to the NI Act provide a mechanism under which the laws of Australian states or territories may be applied as Commonwealth law in Norfolk Island. These arrangements are intended to operate in the same way as the existing arrangements that allow for the application of NSW laws and provide a broader and more flexible legal mechanism with respect to the future provision of state-type services in Norfolk Island. The amendments allow for the laws of a state, prescribed by regulations as an ‘applied law jurisdiction’, to be applied in Norfolk Island.

 

The Commonwealth minister responsible for Norfolk Island will also be able to enter into arrangements with the relevant state government for assistance in the administration of these applied laws and other laws in force in Norfolk Island, including the performance of functions and provision of services by state officials or authorities (other than courts) on behalf of the Commonwealth.

 

In the absence of any such arrangements, the application of the laws of a state in Norfolk Island does not in any way place an obligation on the relevant government’s officials to deliver services or administer legislation in respect of Norfolk Island. Non-judicial powers and duties will be vested in the Commonwealth minister, who will have capacity to delegate the powers, or direct that they be delegated to some other person or authority.

 

Alternatively, if a territory (other than Norfolk Island) is prescribed by regulations as an ‘applied law jurisdiction’, the laws of that territory will be applied in Norfolk Island. These arrangements would be similar to those operating in the Jervis Bay Territory with respect to the application of Australian Capital Territory laws under the Jervis Bay Territory Acceptance Act 1915 .

 

Reflecting the different constitutional status of the territories compared with the states, officials and authorities of a territory prescribed as an applied law jurisdiction would, in the absence of any arrangement between the Commonwealth minister and the territory government, be able to exercise any powers and functions under applied territory laws in relation to Norfolk Island as if it formed part of their own territory. However, these provisions do not prevent the Commonwealth from entering into arrangements with the territory government dealing with the administration of applied territory laws.

 

The Commonwealth minister will also have capacity to direct that powers or functions under applied territory laws be vested in a person or authority (including the Commonwealth minister) in addition to or instead of the relevant territory official or authority.

 

Delegation

 

Amendments to the NI Act, CI Act and the CKI Act address the risk of delegation instruments becoming outdated when applied laws in force in the territories are amended or new laws are made by the relevant state or territory government. This will address any concerns that the delegation instruments cannot encompass powers that do not exist at the time they are made. Other technical changes are intended to improve the operation of the delegation arrangements more generally with respect to applied laws, including enhancing consistency of language between the applied laws regimes, as well as permitting ordinances to incorporate applied laws as in force from time to time.

 

The amendments also address the need for the Commonwealth minister to sign delegation instruments vesting the powers and functions of the police and local government bodies under applied laws to the police and the local government bodies for each territory. If applied laws are amended by state or territory governments to confer new powers and functions on the police and local government bodies, the amendments ensure the deemed vesting of these new powers and functions by the minister. Provision is also made for other powers and functions under applied laws to be prescribed by an ordinance for the purposes of these deemed vesting provisions. These arrangements will enhance the effectiveness of these delegation arrangements with respect to the functions of the police, local government and others who exercise powers under applied laws in the external territories.

 

Jurisdiction of Norfolk Island courts

 

Amendments in relation to the jurisdiction of Norfolk Island courts complement the amendments to the NI Act which allow state or territory laws to be applied in Norfolk Island.

 

These amendments permit the courts of a prescribed state or territory to have jurisdiction (including appellate jurisdiction) in relation to Norfolk Island as if it were part of that state or territory. This will allow for the courts of the relevant state or territory providing services to Norfolk Island to hear matters relevant to the services being provided by state or territory government officials under the applied laws of that same jurisdiction. This would be similar to the arrangements which apply in Christmas Island and the Cocos (Keeling) Islands where the courts of Western Australia have jurisdiction with respect to these external territories as if these territories were part of Western Australia.

 

If jurisdiction in relation to Norfolk Island is conferred on the courts of a prescribed state or territory, the amendments provide for that court to sit in either in Norfolk Island or in the prescribed state or territory. However, similar to the arrangements which apply in Christmas Island and the Cocos (Keeling) Islands, a court of a prescribed state or territory may only sit in the prescribed state or territory when exercising its criminal jurisdiction if to do so would not be contrary to the interests of justice.

 

Consequential amendments provide for the Supreme Court of Norfolk Island to cease operation after its jurisdiction is conferred on a court of a prescribed state or territory. The future operation of other Norfolk Island courts and tribunals will be dealt with by ordinances made under the NI Act.

 

It is likely to be a number of years before these provisions are utilised.

 

Schedule 2 - Amendments of Treasury Acts

 

The Bill extends the application of the Corporations Act, the ASIC Act, the National Consumer Credit Protection Act 2009 (National Consumer Credit Protection Act) , the Competition and Consumer Act 2010 (Competition and Consumer Act) and the Cross-Border Insolvency Act 2008 (Cross Border Insolvency Act) to Norfolk Island, Christmas Island, and the Cocos (Keeling) Islands.

 

The Bill amends application provisions and definitions in these Acts to ensure all Australian companies operate under the same legislative framework.

 

Transitional provisions allow for the registration of companies registered under the Companies Act 1985 (NI) (Norfolk Island Companies Act) to be transferred to registration under the Corporations Act. This process will be undertaken by ASIC and will not require Norfolk Island companies to make an application in order to transition. The Bill also provides a rule-making power for ASIC to make rules of a transitional nature relating to the amendments made by the Bill. ASIC will be able to make such rules until 12 months after the commencement of the substantive amendments to the Acts administered by ASIC.

 

After this time, the transitional rule-making power, and any rules made under those powers, will be automatically repealed. However, any rules relating to the transition of a particular Norfolk Island company’s registration may continue to operate for a further period of approximately 12 months, to enable an orderly assessment to be conducted of whether more permanent arrangements may be required in respect of the issues that have arisen in the course of the transition of that company’s registration.

 

The Bill also amends the ASIC Supervisory Cost Recovery Levy Act 2017 ( ASIC Supervisory Cost Recovery Levy Act) and the ASIC Supervisory Cost Recovery Levy (Collection) Act 2017 ( ASIC Supervisory Cost Recovery Levy (Collection) Act ) to remove out-of-date references to the ‘Crown in right of Norfolk Island’, as this body politic no longer exists.

 

The substantive amendments to the Corporations Act, ASIC Act and other Acts administered by ASIC commence on the later of:

 

·          the first Monday to occur after the end of the period of 6 months after the day the Bill receives assent; and

·          2 August 2021.

 

The deferred commencement is necessary to enable sufficient time for ASIC to transfer the registration of companies from being under the Norfolk Island Companies Act to being under the Corporations Act. The remaining amendments commence on the day after the Bill receives assent.

 

Schedule 3 - Amendments of Attorney-General’s Department Acts

 

Bankruptcy Act 1966

The Bill amends the Bankruptcy Act to extend the Commonwealth bankruptcy system to Norfolk Island. Norfolk Island currently operates its own bankruptcy system and bankruptcies are administered under the Bankruptcy Act 2006 (NI) (Norfolk Island Bankruptcy Act). Extending the Bankruptcy Act to Norfolk Island ensures bankruptcies in Norfolk Island are administered in a way that is consistent with all other bankruptcies in Australia. The personal insolvency trustee and regulation services of the AFSA also extends to bankruptcies on Norfolk Island.

Division 1 of Part 1 of Schedule 3 to the Bill makes general amendments to the Bankruptcy Act to ensure that the operation of the Bankruptcy Act is extended to Norfolk Island and that relevant definitions capture Norfolk Island.

Division 2 of this Part includes transitional provisions to ensure the smooth transition of any person who was previously made bankrupt under the Norfolk Island Bankruptcy Act and who remains bankrupt at the time of commencement to the Commonwealth bankruptcy system.

Division 2 also ensures that the AFSA has access to information and records necessary to effectively administer any Norfolk Island bankruptcy matters transitioned to the Commonwealth bankruptcy system and ensure compliance with requirements to enter information on the National Personal Insolvency Index under the Bankruptcy Act.

 

Freedom of Information Act 1982

 

Part 2 of Schedule 3 to the Bill amends the FOI Act to clarify its application to bodies established by or under a law in force in Norfolk Island, in particular, the laws of a state or territory applied in the territory under the NI Act.

 

These amendments clarify the application of the FOI Act to bodies such as the Norfolk Island Regional Council (NIRC) which is established under an applied New South Wales (NSW) law, specifically, the Local Government Act 1993 (NSW)(NI). Redundant provisions relating to the former governance arrangements in Norfolk Island have also been removed.

 

Privacy Act 1988

 

Part 3 of Schedule 3 amends the definition of ‘Australian law’ in the Privacy Act to avoid any doubt that this definition includes the laws of a state or territory applied in an external territory or the Jervis Bay Territory under a Commonwealth Act. This clarifies the application of the APPs to laws in force in the external territories and the Jervis Bay Territory. Redundant provisions relating to the former governance arrangements in Norfolk Island are removed and other amendments clarify the application of the Privacy Act to public offices and bodies established under laws in force in the external territories.

 

Administrative Decisions (Judicial Review) Act 1977

 

The Bill amends the ADJR Act to extend its coverage to any administrative decision made by a Commonwealth authority or an officer of the Commonwealth under an applied state or territory law operating in the external territories and the Jervis Bay Territory. It also extends the right to judicial review of decisions made under laws of the former Norfolk Island Legislative Assembly and continued pre-self-government ordinances. This allows people living in these territories to seek judicial review under the ADJR Act of decisions made in relation to state-type services, such as health, education and planning.

 

Criminal Code Act 1995

 

The Bill amends the Criminal Code to update the definition of ‘Commonwealth public official’ to include people who exercise powers, or perform functions conferred on them under a law in force in Norfolk Island. This ensures the effective operation of offences relating to the proper administration of government in Chapter 7 of the Criminal Code.

 

Schedule 4 - Amendments of other Acts

 

Broadcasting Services Act 1992

 

Amendments to the Broadcasting Services Act in Part 1 of Schedule 4 facilitate the transition of existing Norfolk Island television and radio services from the Norfolk Island Broadcasting Act 2001 (Norfolk Island Broadcasting Act) and allow future broadcasting planning and licensing in respect of Norfolk Island to be undertaken in accordance with the Broadcasting Services Act. 

 

Copyright Act 1968

 

The Bill makes minor amendments to the Copyright Act so that Norfolk Island is treated as a territory instead of a state for the purposes of the Act.

 

Education Services for Overseas Students Act 2000

 

The Bill extends the application of the ESOS Act to Norfolk Island. The amendments ensure protections in the ESOS Act relating to education quality, financial investment and welfare are available to overseas students on Norfolk Island who hold an Australian student visa.

 

The amendments also mean that providers delivering education to overseas students on Norfolk Island are required to be registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).

 

Bankruptcy (Estate Charges) Amendment (Norfolk Island) Bill 2020

 

The purpose of the Estate Charges Bill is to extend the application of the Bankruptcy (Estate Charges) Act 1997 (Estate Charges Act) to Norfolk Island.

 

The Estate Charges Act imposes charges that are payable by trustees and debt agreement administrators to the Commonwealth in respect of personal insolvency administrations under the Bankruptcy Act 1966 (Commonwealth Bankruptcy Act). In particular, the Estate Charges Act imposes a realisations charge (a levy on all realisations made in respect of administrations under the Commonwealth Bankruptcy Act) and an interest charge (a levy on interest earned on money held in personal insolvency accounts). The realisations charge and interest charge recover the cost to the Commonwealth of regulating the personal insolvency system. Subject to the Commonwealth Bankruptcy Act being extended to Norfolk Island, the Bill will ensure that any insolvencies on Norfolk Island are treated consistently and attract the same estate charges as all other insolvencies administered under the Commonwealth Bankruptcy Act.

 

Human rights implications

 

The following human rights are engaged by the Bills:

 

·          the right to a fair trial and fair hearing rights

·          the right to liberty and security of person

·          the right to privacy

·          the right to freedom of expression and to take part in cultural life

·          the right to education.

 

The right to a fair trial and fair hearing rights

 

Under Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), a person is ‘entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’. The amendments in the Bill advance this right in a number of respects.

 

Amendments to the NI Act allow the Commonwealth to enter into arrangements with state or territory governments to provide state-type services in Norfolk Island and provide for the possible future conferral of territory jurisdiction upon state or territory courts and tribunals. Where the laws of a state or territory have been applied in Norfolk Island to support state-type service delivery, these amendments ensure that matters arising under these laws can be heard by the relevant court with the appropriate legislative knowledge and experience in that jurisdiction.

 

Amendments to the NI Act engage the right to a fair trial to the extent that if the jurisdiction of Norfolk Island courts is conferred on a prescribed state or territory court, the amendments provide for the court to sit in either in Norfolk Island or in the prescribed state or territory when exercising its civil jurisdiction and, when exercising its criminal jurisdiction, only if it would not be contrary to the interests of justice. This is modelled on amendments to the NI Act in 2018 authorising the Supreme Court of Norfolk Island to sit outside the Norfolk Island in its criminal jurisdiction when not contrary to the interests of justice.

 

This allows for the venue of criminal and civil proceedings to be relocated from the place in which the alleged or impugned conduct was engaged. The relocation of proceedings may impose hardship on the accused person/defendant by reason of reduced access to witnesses and other evidence on which they may seek to rely in their defence of the proceedings. In this regard, Article 14(3)(e) of the ICCPR recognises that the accused person is entitled to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. Existing case law indicates that these factors will be taken into account by the relevant state or territory court in determining whether the relocation of the proceedings from Norfolk Island would be contrary to the interests of justice.

 

By authorising proceedings to be relocated and the empanelment of a jury in the alternative venue, the Bill also promotes the right to a fair trial in cases where there are concerns about empanelling an impartial local jury.

 

Amendments to the ADJR Act also engage this right. Consistent with Article 14(1) amendments to the ADJR Act ensure that decisions made under laws continued in force under sections 16 or 16A of the NI Act can be subsect to judicial review under this Act. The amendments make the same provisions for decisions made under the state or territory laws applied in the external territories and the Jervis Bay Territory. The effect is that decisions of an administrative character made under these laws may, consistent with the operation of the ADJR Act, be subject to judicial review.

 

The right to liberty and security of person

 

Article 9(1) of the ICCPR recognises that everyone has the right to liberty and security of person, and provides that no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. At the same time, Article 9(3) acknowledges that a person awaiting trial may be detained, although it states that such detention should not be the general rule.

 

Amendments to the NI Act by the Bill authorise the detention of an accused person for the purposes of a trial held in a venue outside Norfolk Island. Specifically, section 60F, as amended by the Bill, requires a prison officer, by warrant issued by a court officer or a magistrate of a state or territory court, to detain the accused person, and authorises the detention of the accused for as long as is necessary for the execution of the order. Such detention is only authorised on the grounds and in accordance with the procedures that are established by law, as required by Article 9(1) of the ICCPR. Moreover, the detention is subject to the power of the relevant state or territory court to grant bail. New subsection 60AA(4) of the NI Act expressly provides that the criminal procedure laws of the relevant state or territory, including the relevant arrest, custody and bail laws, apply to a state or territory court exercising jurisdiction under these provisions. Section 60F of the NI Act, as amended, is closely modelled on the existing section 60F, which was part of the amendments to the NI Act in 2018 authorising the Supreme Court of Norfolk Island to sit outside the Norfolk Island in its criminal jurisdiction when not contrary to the interests of justice.

 

The amended section 60F, consistent with the existing provision, does not deal with the conditions of the accused person’s detention. Rather, subsection 60F(4), as amended, provides that, while in custody, the accused person is to be dealt with in the same manner, and subject to the same laws, as if the detention had been authorised under the law of the relevant state or territory. Article 10(2)(a) of the ICCPR requires that, save in exceptional circumstances, accused persons be segregated from convicted persons and be subject to separate treatment appropriate to their status as unconvicted persons. Giving effect to this requirement is a matter dealt with under the law of the relevant state or territory.

 

The right to privacy

 

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, or to unlawful attacks on their honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks. However, the right to privacy under the ICCPR is not an absolute right. The right can be limited if the limitation is not incompatible with the right itself and the limitation is authorised by law, is for a legitimate objective and is reasonable, necessary and proportionate to that objective.

 

Treasury Acts amendments

 

Provisions authorising the collection, use and disclosure of information inserted into the Corporations Act by Schedule 2 to the Bill engage the right to privacy in Article 17 of ICCPR.

 

These provisions are necessary in order to enable Norfolk Island companies to be registered under the Corporations Act. For example, the names and addresses of the directors of a company are required for a company to be registered.

 

Information about Norfolk Island companies provided to ASIC may be included on the companies register, which is publicly available. Information included on this register is information that is expected to be available about all companies to enable persons to do business with companies. This is similar to information that may be currently publicly available about companies under the Norfolk Island companies register.

 

The use and disclosure of information obtained by ASIC under the new provisions inserted by Schedule 2 to the Bill will be covered by the confidentiality regime in section 127 of the ASIC Act. Section 127 of the ASIC Act requires ASIC to take all reasonable measures to protect from unauthorised use or disclosure information given to ASIC in or in connection with the performance of its functions or the exercise of its powers under the corporations legislation. Section 127 of the ASIC Act sets out circumstances in which such information may be used or disclosed.

 

Section 127 of the ASIC Act provides strong protections for the way in which information obtained under the provisions inserted by Schedule 2 to the Bill may be disclosed by ASIC.

 

The provisions authorising the collection, use and disclosure of information inserted into the Corporations Act by Schedule 2 to the Bill are compatible with, and make provision proportionate to, the right to privacy. This is for the reasons noted above, particularly the necessity of ASIC being able to obtain and use information to enable Norfolk Island companies to be registered under the Corporations Act (including the necessity of making certain of that information publicly available on the companies register) and the protection of that information afforded by section 127 of the ASIC Act.

 

Bankruptcy Act amendments

 

The right to privacy may be engaged by the measures in Part 1 of Schedule 3 as they grant powers to collect, compel and transfer information relating to a transitional bankrupt. This includes personal information such as the bankrupt’s name, address and date of birth.

 

In particular, the right to privacy may be engaged by:

 

·          the recording of information on the National Personal Insolvency Index

·          empowering the Official Receiver to compel the Registrar of the Norfolk Island Supreme Court and the Norfolk Island official trustee to provide information, and

·          the transfer of information held by the Norfolk Island official trustee to the Commonwealth Official Trustee.

 

The right to privacy in Article 17 of the ICCPR may be subject to permissible limitations, where these limitations are authorised by law and are not arbitrary. To the extent that the measures in Schedule 3 limit the right in Article 17, they are lawful and not arbitrary.

The amendments made by the Bill that mandate personal information to be recorded on the National Personal Insolvency Index and empower the Official Receiver to compel the Norfolk Island Registrar or Official Trustee to provide information are for a legitimate purpose in the public interest and limited to disclosures necessary to achieve this purpose. In particular, they ensure an accurate public record of bankruptcies and transparency for creditors and other members of the public, such as employers and finance lenders, about a person’s bankrupt status.

 

The Bill enables the collection and disclosure of information in relation to Norfolk Island bankruptcies in a manner that is consistent with the current treatment of Commonwealth bankruptcies. In addition, the Bankruptcy Regulations will apply to protect the public disclosure of information where the Official Receiver decides, on application by the debtor, that information not be included on the National Personal Insolvency Index where disclosure may jeopardise the debtor’s safety, or is inaccurate or misleading.

 

Likewise, the amendments made by the Bill that allow information about a transitional bankrupt to be transferred to the Commonwealth Official Trustee are for the legitimate purpose of ensuring the Commonwealth Trustee has sufficient information about the bankrupt to allow the Official Trustee to effectively and efficiently administer the bankruptcy.

 

Privacy Act amendments

 

The right to privacy is engaged by the measures in Part 3 of Schedule 3 of the Bill which amend the Privacy Act. In particular, the amendments to the definition of ‘agency’ will have the effect of including in this definition:

 

·          A body (whether incorporated or not), or a tribunal, established for a public purpose by or under a law of a state or territory as in force in an external territory, other than a body exempted by the minister in the definition.

·          A person holding or performing the duties of an office established by or under, or an appointment made under, a law of a state or territory as in force in an external territory, other than an office or appointment exempted by the minister in the definition.

 

These amendments will clarify the application of the Privacy Act with respect to these public bodies and offices established in the external territories, for instance a local government body established under an applied state law. The amendments by clarifying that the Privacy Act will ordinarily apply to these bodies and offices enhances the right to privacy. In this context, it is anticipated that the minister would only exempt, by legislative instrument, such a body, or office if satisfied that the relevant body or office would be subject to a law that provides equivalent, or substantially similar, requirements relating to the use of personal information as are provided by the Privacy Act. This may be the case, for instance, where the relevant body, or office is subject to an applied state or territory law which deals with the use of personal information by public bodies, such as the Privacy and Personal Information Protection Act 1998 (NSW) which regulates the use of personal information with respect to local government councils in NSW. In such a case, it may be more appropriate for the relevant external territory body or office to be subject to the privacy law requirements of the applied state or territory law rather than the Privacy Act.

 

The Bill also engages the right to privacy by amending the definition of ‘Australian law’ in the Privacy Act to avoid any doubt that this definition includes the laws of a state or territory applied in an external territory or the Jervis Bay Territory under a Commonwealth Act. This clarifies the application of the APPs to laws in force in the external territories and the Jervis Bay Territory. The present definition of ‘Australian law’, inserted into the Privacy Act by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 does not expressly refer to applied state and territory laws, although these laws would have been included in the ordinary meaning of ‘law’ for the purposes of the former Information Privacy Principles, which were replaced by the APPs in 2014. By clarifying that these laws in force in the external territories are ‘Australian laws’ for the purposes of the APPs, which regulates the collection, use and disclosure of personal information, the right to privacy is further enhanced.

 

The right to freedom of expression and to take part in cultural life

 

Article 19(2) of the ICCPR protects freedom of expression, including the right to seek, receive and impart information and ideas of all kinds, and the means of their dissemination.

Article 15(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) protects the right of everyone to take part in cultural life.

 

Amendments to the Broadcasting Services Act facilitate the transition of existing Norfolk Island television and radio services from the Norfolk Island Broadcasting Act to the Broadcasting Services Act to enable any further broadcasting planning and licensing in respect of Norfolk Island to be done under this Act. This promotes the right of Australians to freedom of expression, consistent with Article 19(2) of the ICCPR.

 

The United Nations Committee on Economic, Social and Cultural Rights has noted that the right to take part in cultural life includes the right of everyone to share cultural knowledge and expressions with others and to know and understand his or her own culture. The measures in Schedule 4 to the Bill are consistent with the right of Australians to take part in cultural life, consistent with Article 15(1)(a) of the ICESCR.

 

The right to education

 

Article 13(1) of the ICESCR recognises each person’s right to education, and that education is important to ‘the full development of the human personality’, and enables ‘all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups’.

 

Similarly, Article 28(1) of the United Nations Convention on the Rights of the Child recognises the ‘right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity’.

 

The ESOS Act provides the regulatory framework under which education providers can be registered as providers of CRICOS courses to overseas students. This framework protects the integrity of Australia’s international education sector by ensuring that CRICOS registered providers have an appropriate level of Australian Government regulation and oversight.

 

The amendment supports the right of overseas students on Norfolk Island to receive an education from a CRICOS registered provider. CRICOS registration supports a strong international education sector, which includes appropriate protections for overseas students and appropriate conditions for education providers, allows Australia to promote the right to education, especially to overseas students, including children studying in primary and secondary school.

 

Conclusion

 

The Bills are compatible with human rights because they promote the protection of human rights and to the extent that the Bills may limit human rights, those limitations are reasonable, necessary and proportionate.

 

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 Territories Legislation Amendment Act 2020 (the Act).

 

Clause 2: Commencement

 

2.       This clause sets out the commencement provisions for the Bill, if enacted, in accordance with the table in subclause 2(1) (the commencement table).

 

3.       Table item 1 provides that sections 1 to 3 of the Act and anything else in the Act not covered elsewhere by the commencement table commence on the day the Bill receives assent.

 

4.       Table item 2 provides that Parts 1 and 2 of Schedule 1 to the Bill commence on the day after the Bill receives assent.

 

5.       Table item 3 provides that Part 3 of Schedule 1 to the Bill commences on a date to be fixed by proclamation. Any such proclamation must not specify a day that occurs before the later of the first day on which no person holds office as a judge of the Supreme Court of Norfolk Island; and the day a state or territory is prescribed by the regulation s for the purposes of subsection 60AA(1) of the NI Act. This part deals with the potential future abolition of the Supreme Court of Norfolk Island and it is appropriate that these provisions should only commence when there are no longer any serving judges of that court. This also means that this part will only commence after the conferral of territory jurisdiction on the courts of the prescribed state or territory, and the transfer to these courts of any pending proceedings in the Supreme Court of Norfolk Island, under the provisions of Part 2 of Schedule 1 to the Bill (‘Jurisdiction of Norfolk Island courts’). Part 2 of Schedule 1 to the Bill commences on the day after the Bill receives assent (see table item 2).

 

6.       Table item 4 provides that Division 1 of Part 1 of Schedule 2 to the Bill will commence the later of the first Monday to occur 6 months after the Bill receives assent; and 2 August 2021. This division amends a number of Acts administered by ASIC, including the Corporations Act, and the deferred commencement is necessary to enable sufficient time for ASIC to transfer the registration of companies from being under the Norfolk Island Companies Act to being under the Corporations Act.

 

7.       Table item 5 provides that Division 2 of Part 1 of Schedule 2 to the Bill will commence on the day after the Bill receives assent.

 

8.       Table item 6 provides that Part 2 of Schedule 2 to the Bill will commence on the day after the Bill receives assent.

 

9.       Table item 7 provides that Part 3 of Schedule 2 to the Bill will commence the later of immediately after the commencement of the provisions covered by table item 4; and immediately after the commencement of Schedule 2 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020 . These provisions will not commence at all if Schedule 2 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020 does not commence.

 

10.   Table item 8 provides that Part 1 of Schedule 3 to the Bill will commence the later of the first Monday to occur 6 months after the Bill receives assent; and 2 August 2021. This Part amends the Bankruptcy Act, and the deferred commencement is necessary to enable sufficient time for the AFSA to access the necessary information and records to effectively administer any Norfolk Island bankruptcy transitioned to the Commonwealth bankruptcy system and ensure compliance with requirements to enter information on the National Personal Insolvency Index under the Bankruptcy Act.

 

11.   Table item 9 provides that the provisions of Part 2 and 3 of Schedule 3 to the Bill will commence on a day or days to be fixed by proclamation. However, if any of the provisions of these parts do not commence within 6 months after the Bill receives assent, they commence on the day after the end of that period. These parts amend the FOI Act and the Privacy Act and these commencement arrangements will allow for an orderly transition so that any affected entities can make the necessary arrangements with respect to any new obligations under these Acts.

 

12.   Table item 10 provides that Part 4 of Schedule 3 to the Bill will commence on the day after the Bill receives assent.

 

13.   Table item 11 provides that Part 1 of Schedule 4 to the Bill commences 6 months after the Bill receives assent. This Part amends the Broadcasting Services Act and the deferred commencement is necessary to enable sufficient time to facilitate the transition of the existing Norfolk Island television and radio services from the Norfolk Island Broadcasting Act 2001 (NI) (Norfolk Island Broadcasting Act) to this Act.

 

14.   Table item 12 provides that Part 2 of Schedule 4 to the Bill will commence on the day after the Bill receives assent.

 

15.   Subclause 2(2) provides that any information in column 3 of the table is not part of the Act (once enacted). It also clarifies that information may be inserted in column 3 of the table, or information in it may be edited, in any published version of the Act.

 

Clause 3: Schedules

 

16.   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 OF TERRITORY ACTS

 

Part 1 - Applied laws, delegations and other matters

 

Division 1 - Amendments

 

Christmas Island Act 1958

 

Item 1 - Subsection 4(1)

 

17.   This item amends subsection 4(1) of the CI Act by inserting a new definition of ‘amended’ for when a Western Australian applied law is amended, a new definition of ‘applied Western Australian law’ and a new definition of ‘authority’, for the purposes of the CI Act. The new definition of ‘amended’ refers to new subsection 8GA(4) (see item 18) and the new definition of ‘applied Western Australian law’ means a Western Australian law as in force in Christmas Island under section 8A. The new inclusive definition of ‘authority’ is based on the existing definition of ‘authority’ in subsection 8G(12) which will be repealed (see item 17). Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

 

Item 2 - Subsection 4(1) (definition of jurisdiction )

 

18.   This item amends subsection 4(1) of the CI Act by omitting the words ‘or functions’ from the existing definition of ‘jurisdiction’, which presently provides that this ‘includes power or functions.’ This amendment is consequential to the amendment made by item 3 which inserts into subsection 4(1) the new definition of ‘power’ which includes a function or duty. An equivalent amendment will be made to the corresponding provision in the CKI Act.

 

Item 3 - Subsection 4(1)

 

19.   This item amends subsection 4(1) of the CI Act by inserting new definitions of ‘power’ and ‘Western Australian law’. The new definition of ‘power’ is based on the existing definition of ‘power’ in subsection 8G(12) which will be repealed (see item 17), and the new definition of ‘Western Australian law’ refers to new subsection 8A(6) (see item 9). Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

 

Item 4 - Section 7

 

20.   This item amends section 7 of the CI Act and is consequential to the amendment made by item 6 which inserts a new subsection 7(2) into the CI Act. Existing section 7 of the CI Act, which deals with the laws in force in Christmas Island, will now be in subsection 7(1) of the CI Act.

 

Item 5 - Paragraph 7(d)

 

21.   This item repeals and substitutes paragraph 7(d) of the CI Act by replacing the existing reference to ‘Western Australian laws as in force in the Territory in accordance with section 8A’ with the new defined term of ‘applied Western Australian laws.’ This amendment is consequential to the amendment made by item 1 which inserts the new definition of ‘applied Western Australian law’ into subsection 4(1). Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

 

Item 6 - At the end of section 7

 

22.   This item inserts new subsection 7(2) into the CI Act. It avoids any doubt that subsection 7(1), which deals with the laws in force in Christmas Island, does not prevent any other law, including a law of a state or a territory, from applying in Christmas Island of its own force. (Under subsection 4(1) of the CI Act, ‘State’ includes ‘a Territory other than the Territory’ and ‘the Territory’ means the ‘Territory of Christmas Island.’)

 

23.   This new subsection makes it clear that subsection 7(1) is not intended to be exhaustive as to the laws which may potentially apply in Christmas Island and is not intended to prevent the application of other laws, such as the laws of another state or territory, capable of applying extraterritorially to Christmas Island. Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

 

Item 7 - Subsection 8A(1)

 

24.   This item amends subsection 8A(1) of the CI Act, which deals with the application of Western Australian laws in Christmas Island, by substituting the existing reference to ‘the provisions of the law of Western Australia’ with ‘Western Australian laws’ and making other consequential changes. This amendment is consequential to the insertion of the new definition of ‘Western Australian law’ into the CI Act (see items 3 and 9). Equivalent amendments will be made to the corresponding provisions in the CKI Act.

 

Item 8 - At the end of subsection 8A(1)

 

25.   This item amends subsection 8A(1) of the CI Act, by inserting a note at the end of the subsection. The note clarifies that a Western Australian law as in force in Christmas Island under section 8A is an ‘applied Western Australian law’ and refers to the definition in subsection 4(1). An equivalent amendment will be made to the corresponding provision in the CKI Act.

 

Item 9 - Subsection 8A(6)

 

26.   This item repeals and substitutes a new subsection 8A(6) of the CI Act, which provides for a new definition of ‘Western Australian law’ (see also item 3). The new definition provides that this is a law in force in Western Australia from time to time and, consistent with the existing definition, includes principles of common law or equity that are part of the law of Western Australia, but does not include Commonwealth Acts and instruments in force in Western Australia (including provisions of such Acts and instruments). These amendments will not have a substantive effect on the operation of section 8A but will simplify its language by removing superfluous references. Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

 

Item 10 - Section 8G (heading)

 

27.   This item amends the heading of section 8G of the CI Act, which refers to ‘Powers and functions under the applied Western Australian laws’, by omitting the reference to ‘functions’. This amendment is consequential to the amendment made by item 3 which inserts the new definition of ‘power’ into subsection 4(1) and which relevantly provides that ‘power’ includes a function or duty. Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

 

Item 11 - Subsections 8G(1) and (2)

 

28.   This item repeals and substitutes subsections 8G(1) and (2) of the CI Act, and inserts a new subsection 8G(2A) into this Act.

 

29.   New subsections 8G(1) and (2) of the CI Act substitute the present references to ‘a Western Australian law in force in the Territory under section 8A’, with appropriate references to ‘an applied Western Australian law’. This amendment is consequential to the amendment made by item 1 which inserts the new definition of ‘applied Western Australian law’ into subsection 4(1). Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

 

30.   New subsection 8G(2A) of the CI Act is an avoidance of doubt provision, which provides that a power vested in a person or authority under an applied Western Australian law does not include a reference to a power so vested, whether directly or indirectly, because of an ordinance made for the purposes of subsection 8A(2) of the CI Act. Under subsection 8A(2) of the CI Act, an ordinance may provide for the incorporation, amendment or repeal of a law in force in Christmas Island under section 8A. For instance, if an applied Western Australian law is amended by an ordinance under subsection 8A(2) and the amending ordinance expressly vests a new power in a Commonwealth person or authority, that power is vested directly in the Commonwealth person or authority under the amending ordinance rather than vested in the minister under subsection 8G(2) of the CI Act. This avoids the need for the minister to subsequently delegate the power to the relevant Commonwealth person or authority under subsection 8G(3) of the CI Act. Equivalent amendments will be made to the CKI Act and the NI Act.

 

Item 12 - Paragraph 8G(3)(a)

 

31.   This item amends paragraph 8G(3)(a) of the CI Act by omitting the existing reference to ‘specified’. Paragraph 8G(3)(a) of the CI Act currently provides that the minister may direct that powers vested in the minister under applied Western Australian laws may be vested in a ‘specified person or authority’. The omission of the existing reference to ‘specified’ is intended to remove any doubt that the minister may direct that these powers may also be vested in a person by reference to a specified office or position, including to a person from time to time holding, occupying, or performing the duties of, a specified office or position, or to an authority by reference to a class or type of authority. Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

 

Item 13 - Paragraph 8G(3)(b)

 

32.   This item amends paragraph 8G(3)(b) of the CI Act by omitting the existing reference to ‘specified’ and adding a reference to ‘authority’. Paragraph 8G(3)(b) of the CI Act currently provides that the minister may delegate powers vested in the minister under applied Western Australian laws to a ‘specified person’. The omission of the existing reference to ‘specified’ is intended to remove any doubt that the minister may delegate these powers to a person by reference to a specified office or position, including to a person from time to time holding, occupying, or performing the duties of, a specified office or position. The insertion of a reference to ‘authority’ makes the minister’s power under this paragraph consistent with the minister’s power under paragraph 8G(3)(a) of the CI Act to direct that a power under an applied law may be vested in an authority. Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

 

Item 14 - Subsections 8G(4) to (6)

 

33.   This item repeals subsection 8G(4) to (6) and inserts new subsections 8G(4), (5), (5A), (5B) and (6) in the CI Act.

 

34.   New subsection 8G(4) of the CI Act provides that a direction or delegation made by the minister under subsection 8G(3) of the CI Act is subject to such conditions as may be specified by the minister in the direction or delegation, or in the case of a deemed direction under new subsection (5A) or (5B), in writing by the minister. The new subsection is intended to avoid any doubt that any direction or delegation of powers vested in the minister under applied Western Australian laws can be made subject to any conditions that the minister may see fit. An equivalent provision will be inserted into the CKI Act and the NI Act.

 

35.   New subsection 8G(5) of the CI Act enables a person or authority in whom the minister has vested a power by a direction under paragraph 8G(3)(a) to delegate that power to another person or authority if the minister’s direction has authorised that, or in the case of a deemed direction under new subsection (5A) or (5B), if the minister has authorised that in writing. The new subsection is based on existing subsection 8G(4) of the CI Act but omits the references to ‘specified person’, removes any doubt that this power also extends to an authority if authorised by the minister and expressly includes the deemed directions and delegations arrangements under new subsection 8G(5A) and (5B) of the CI Act. An equivalent provision will be inserted into the CKI Act and the NI Act.

 

36.   New subsection 8G(5A) of the CI Act provides that where the Western Australian Government and the Australian Government have agreed to enter into an arrangement for the application and administration of one or more applied Western Australian laws (under section 8A), the minister is taken to have directed that certain powers are vested in certain Western Australian officers, employees or authorities. This provision avoids the need for the minister to specifically vest a potentially diverse range of powers in Western Australian officers or authorities. The new subsection is based on existing subsection 8G(5) of the CI Act but clarifies that it also extends to powers vested in the minister under paragraph 8G(1)(a) of the CI Act, that is, powers vested in a minister of Western Australia in force in Christmas Island under section 8A. This extension will ensure that subsection 8G(5A) will also apply to Western Australian officers, employees or authorities who are exercising powers delegated to them by a minister of Western Australia, with respect to the law as it applies in Western Australia, and when subject to an arrangement between the Western Australian Government and the Australian Government for the application and administration of the applied Western Australian law in Christmas Island. An equivalent provision will be inserted into the CKI Act and the NI Act.

 

37.   New subsection 8G(5B) of the CI Act provides for deemed vesting of certain powers vested in the minister under paragraph 8G(1)(a) or subsection 8G(2) of the CI Act. Where those powers correspond with police or local government powers vested by a Western Australian law, the minister is taken to have directed that these certain powers are also vested in the Australian Federal Police (AFP), AFP members or special members, the Christmas Island Shire or Shire officials as the case may be. For instance, item 2 of the table in subsection 8G(5B) provides that a power that corresponds to a power vested by a Western Australian law in a police officer (however described) holding, occupying or performing the duties of a particular kind of office or position is vested in a AFP member or special member holding, occupying or performing the duties of a corresponding office or position in Christmas Island. This would mean, for example, that a power exercised by the Western Australian Commissioner of Police in Western Australia under a Western Australian law may, with respect to that law as applied in Christmas Island, be exercised by the AFP member who is the officer in charge of community policing in Christmas Island.

 

38.   This provision removes the need for the minister to specifically vest a diverse range of common police and local government powers under Western Australian applied laws in the AFP or the Christmas Island Shire and its officials. Provision is also made for other powers to be prescribed by an ordinance for the purposes of this subsection (see item 5 of the table in this subsection). The minister may also direct, under subsection 8G(6), as amended by the Bill, that the deemed vesting of a specified power under this subsection does not apply in relation to that power. An equivalent provision to new subsection 8G(5B) will also be inserted into the CKI Act and the NI Act.

 

39.   New subsection 8G(6) of the CI Act provides that the minister may direct that the deemed vesting of a power under subsection 8G(5A) or (5B) does not apply in relation to a specified power. This new subsection, based on existing subsection 8G(6), is consequential to the insertion of the new deemed vesting provisions, and also requires that the minister make any such direction in writing. An equivalent provision will be inserted into the CKI Act and the NI Act.

 

Item 15 - Subsection 8G(9)

 

40.   This item repeals and substitutes subsection 8G(9) of the CI Act by inserting a reference to ‘applied Western Australian law’ and substituting the present reference to ‘the law as in force in Western Australia’, with a reference to ‘a Western Australian law’. This amendment is consequential to the amendments made by items 1 and 3 which respectively insert the new definitions of ‘applied Western Australian law’ and ‘Western Australian law’ into subsection 4(1). An equivalent provision will be inserted into the CKI Act and the NI Act.

 

41.   The effect of the provision, consistent with the existing provision, is to preserve the validity of the exercise of a power under section 8G by a person or authority who may not hold qualifications necessary for the exercise of that power under a Western Australian law as in force in that state. For example, a power under an applied Western Australian law may be validly exercised by the Commonwealth minister or his or her delegate, even if the minister or delegate would not be ordinarily qualified to exercise that power under the Western Australian law as in force in that state. The validity of powers exercised under section 8G may still be challenged on other administrative law grounds, for instance, unreasonableness or a failure to take into account relevant considerations.

 

Item 16 - After subsection 8G(10)

 

42.   This item inserts new subsection 8G(10A) into the CI Act to clarify that any reference in an applied Western Australian law to a person or authority is taken to include a reference to any other person or authority in whom powers are vested under section 8G of the CI Act, including any direction or delegation made under this section. An equivalent provision to new subsection 8G(10A) will also be inserted into the CKI Act and the NI Act.

 

Item 17 - Subsection 8G(12)

 

43.   This item repeals subsection 8G(12) which presently defines the terms ‘authority’, ‘authority of Western Australia’ and ‘power’ for the purposes of section 8G of the CI Act. The repeal of this subsection is consequential to the insertion of new definitions into subsection 4(1) of the CI Act.

 

Item 18 - After section 8G

 

44.   This item inserts new section 8GA into the CI Act to deal with the effect of amendments to applied Western Australian laws on existing directions or delegations made under section 8G of the CI Act. This new section is based on subsections 34AB(2) and (3) of the Acts Interpretation Act 1901 (Acts Interpretation Act) which deal generally with delegations made under Commonwealth Acts. An equivalent provision to new section 8GA will also be inserted into the CKI Act and the NI Act.

 

45.   New subsection 8GA(1) deals with the application of the section to directions and delegations made under section 8G of the CI Act.

 

46.   New subsection 8GA(2) of the CI Act makes it clear that a direction or delegation that is expressed to include all the powers, functions or duties of a person or authority under an applied Western Australian law extends to include any additional power, function or duty of that person or authority that arises from subsequent amendments to the applied Western Australian law. This provides greater certainty for the exercise of functions, duties and powers under these applied laws and means that the direction or delegation does not need to be updated when the Western Australian law is changed. This amendment is consequential to the amendment made by item 3 which inserts the new definition of ‘power’ into subsection 4(1) so as to provide that ‘power’ includes a function or duty.

 

47.   New subsection 8GA(3) similarly provides that where an amendment to an applied Western Australian law alters the scope of a function, duty or power of a person or authority subject to a direction or delegation, the direction or delegation is taken to include the altered function, duty or power.

 

48.   New subsection 8GA(4) provides that an applied Western Australian law is ‘amended’ if the law is amended by an ordinance or the corresponding Western Australian law is amended (see also the new definition of ‘amended’ inserted into subsection 4(1) by item 1).

 

49.   This provision does not prevent the review of a direction or delegation when new powers, functions or duties are inserted into an applied Western Australian law or amendment of the direction or delegation if it is considered appropriate that the new or altered function, duty or power should not be subject to the direction or delegation.

 

Item 19 - Subsection 8H(2)

 

50.   This item amends subsection 8H(2) of the CI Act, which provides that arrangements between the Commonwealth and Western Australia may provide ‘for the exercise of powers or the performance of functions or duties’, by omitting the references to ‘functions’ or ‘duties’. This amendment is consequential to the amendment made by item 3 which inserts the new definition of ‘power’ into subsection 4(1) so as to provide that ‘power’ includes a function or duty. Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

 

Item 20 - Paragraphs 8H(2)(b) and (c)

 

51.   This item amends paragraphs 8H(2)(b) and (c) of the CI Act by substituting references to an authority ‘within the meaning of section 8G’ with references to an authority ‘established under a Western Australian law’. This amendment is consequential to the amendments made by items 1 and 17 which respectively insert the new definition of ‘authority’ into subsection 4(1) and repeal subsection 8G(12). Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

 

Item 21 - Paragraph 10D(1A)(b)

 

52.   This item amends paragraph 10D(1A)(b) of the CI Act by substituting the present reference to ‘a Western Australian law in force in the Territory under section 8A’, with a reference to ‘an applied Western Australian law’. This amendment is consequential to the amendment made by item 1 which inserts the new definition of ‘applied Western Australian law’ into subsection 4(1). Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

 

Item 22 - Paragraph 11A(b)

 

53.   This item amends paragraph 11A(b) of the CI Act by omitting the words ‘or duty’ from this paragraph, which presently deals with powers or duties conferred or imposed on registry officers. This amendment is consequential to the amendment made by item 3 which inserts the new definition of ‘power’ into subsection 4(1) and which provides that ‘power’ includes a function or duty.

 

Item 23 - Paragraph 11A(b)

 

54.   This item amends paragraph 11A(b) of the CI Act by omitting the words ‘or the performance of that duty’ from this paragraph, which presently deals with powers or duties conferred or imposed on registry officers. This amendment is consequential to the amendment made by item 3 which inserts the new definition of ‘power’ into subsection 4(1) and which provides that ‘power’ includes a function or duty.

 

Item 24 - Paragraph 14E(c)

 

55.   This item amends paragraph 14E(c) of the CI Act by omitting the words ‘or power’ from this paragraph, which deals with certain references to magistrates who have jurisdiction in or in relation to Christmas Island. This amendment is consequential to the amendments made by items 2 and 3 which respectively, in subsection 4(1), amend the definition of ‘jurisdiction’ and insert the new definition of ‘power’.

 

Item 25 - Subparagraphs 14E(d)(i) and (ii) and (e)(i) and (ii)

 

56.   This item amends subparagraphs 14E(d)(i) and (ii) and (e)(i) and (ii) of the CI Act by omitting the words ‘and functions’ from these subparagraphs, which presently deals with certain references to a range of court officers. These amendments are consequential to the amendment made by item 3 which inserts the new definition of ‘power’ into subsection 4(1) and which relevantly provides that ‘power’ includes a function or duty.

 

Item 26 - After section 22

 

57.   This item inserts new section 22A into the CI Act to deal with the incorporation of matters by reference in an ordinance, or a law made under an ordinance. Under section 9 of the CI Act, the Governor-General may make ordinances for the peace, order and good government of the Territory of Christmas Island.

 

58.   New subsection 22A(1) of the CI Act makes it clear that, despite subsection 14(2) of the Legislation Act 2003 (Legislation Act), an ordinance, or a law made under an ordinance, may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a provision of a Western Australian law (whether or not the law is an applied Western Australian law), as in force at a particular time or as in force from time to time. Subsection 14(2) of the Legislation Act provides that, unless the contrary intention appears, a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

 

59.   Under subsection 8A(1) of the CI Act, as amended by this Bill, Western Australian laws, as in force in Western Australia from time to time, are in force in Christmas Island. Under subsection 8A(2) of the CI Act these applied Western Australian laws may be incorporated, amended or repealed by an ordinance or a law made under an ordinance. Accordingly, new section 22A of the CI Act will avoid any doubt that an ordinance, or a law made under an ordinance, may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a provision of a Western Australian law as in force from time to time. In the absence of new section 22A, amendments to applied Western Australian laws would need to be more frequent (in order to keep pace with amendments made by the Western Australian Parliament to Western Australian laws) or potentially more complex, for instance, without the ability to incorporate Western Australian laws as in force from time to time.

 

60.   New subsection 22A(2) of the CI Act provides that subsection 22A(1) only applies to a Western Australian law that is not an Act if it is subject to disallowance in Western Australia. This is consistent with the operation of s 14(3) of the Legislation Act which restricts the incorporation of matters by reference to Commonwealth legislative instruments which are disallowable . Disallowable instruments are subject to parliamentary scrutiny and are publicly and freely available.

 

61.   An equivalent provision to new section 22A will also be inserted into the CKI Act and the NI Act.

 

Cocos (Keeling) Islands Act 1955

 

Item 27 - Subsection 4(1)

 

62.   This item amends subsection 4(1) of the CKI Act by inserting a new definition of ‘amended’ for when a Western Australian applied law is amended, a new definition of ‘applied Western Australian law’ and a new definition of ‘authority’, for the purposes of the CKI Act. The new definition of ‘amended’ refers to new subsection 8GA(4) (see item 44) and the new definition of ‘applied Western Australian law’ means a Western Australian law as in force in the Cocos (Keeling) Islands under section 8A. The new inclusive definition of ‘authority’ is based on the existing definition of ‘authority’ in subsection 8G(12) which will be repealed (see item 43). Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

 

Item 28 - Subsection 4(1) (definition of jurisdiction )

 

63.   This item amends subsection 4(1) of the CKI Act by omitting the words ‘or functions’ from the existing definition of ‘jurisdiction’, which presently provides that this ‘includes power or functions.’ This amendment is consequential to the amendment made by item 29 which inserts the new definition of ‘power’ into subsection 4(1) and which relevantly provides that ‘power’ includes a function or duty. Equivalent amendments will be made to the corresponding provision in the CI Act.

 

Item 29 - Subsection 4(1)

 

64.   This item amends subsection 4(1) of the CKI Act by inserting new definitions of ‘power’ and ‘Western Australian law’. The new definition of ‘power’ is based on the existing definition of ‘power’ in subsection 8G(12), which will be repealed. The new definition of ‘Western Australian law’ refers to new subsection 8A(6). Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

 

Item 30 - Section 7A

 

65.   This item amends section 7A of the CKI Act and is consequential to the amendment made by item 32 which inserts a new subsection 7(2) into the CKI Act. Existing section 7A of the CKI Act, which deals with the laws in force in Christmas Island, will now be contained in subsection 7A(1) of the CKI Act.

 

Item 31 - Paragraph 7A(d)

 

66.   This item repeals and substitutes paragraph 7(d) of the CKI Act by replacing the existing reference to ‘Western Australian laws as in force in the Territory in accordance with section 8A’ with the new defined term of ‘applied Western Australian laws.’ This amendment is consequential to the amendment made by item 27 which inserts the new definition of ‘applied Western Australian law’ into subsection 4(1). Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

 

Item 32 - At the end of section 7A

 

67.   This item inserts new subsection 7A(2) into the CKI Act. It avoids any doubt that subsection 7A(1), which deals with the laws in force in the Cocos (Keeling) Islands, does not prevent any other law, including a law of a state or a territory, from applying in the Cocos (Keeling) Islands of its own force. (Under subsection 4(1) of the CKI Act, ‘State’ includes ‘a Territory other than the Territory’ and ‘the Territory’ means the ‘Territory of Cocos (Keeling) Islands.’)

 

68.   This new subsection makes it clear that subsection 7A(1) is not intended either to be exhaustive as to the laws which may potentially apply in the Cocos (Keeling) Islands or to prevent the application of other laws, such as the laws of another state or territory, that are capable of applying extraterritorially to the Cocos (Keeling) Islands. Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

 

Item 33 - Subsection 8A(1)

 

69.   This item amends subsection 8A(1) of the CKI Act, which deals with the application of Western Australian laws in the Cocos (Keeling) Islands, by substituting the existing reference to ‘the provisions of the law of Western Australia’ with ‘Western Australian laws’. This amendment is consequential to the substitution of the new subsection 8A(6) of the CKI Act by item 35, which inserts a new definition of ‘Western Australia law’ for the purposes of section 8A of the CKI Act.

 

Item 34 - At the end of subsection 8A(1)

 

70.   This item amends subsection 8A(1) of the CKI Act, by inserting a note at the end of this subsection. The note clarifies that a Western Australian law as in force in the Cocos (Keeling) Islands under section 8A is an ‘applied Western Australian law’, and refers to the definition in subsection 4(1). An equivalent amendment will be made to the corresponding provision in the CI Act.

 

Item 35 - Subsection 8A(6)

 

71.   This item repeals and substitutes a new subsection 8A(6) of the CKI Act, which provides for a new definition of a ‘Western Australian law’ (see also item 29). The new definition provides that this is a law in force in Western Australia from time to time and, consistent with the existing definition, includes principles of common law or equity that are part of the law of Western Australia, but does not include Commonwealth Acts and instruments in force in Western Australia (including provisions of such Acts and instruments). These amendments will not have a substantive effect on the operation of section 8A but will simplify its language by removing superfluous references. Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

 

Item 36 - Section 8G (heading)

 

72.   This item amends the heading of section 8G of the CKI Act, which refers to ‘Powers and functions under the applied Western Australian laws’, by omitting the reference to ‘functions’. This amendment is consequential to the amendment made by item 29 which inserts the new definition of ‘power’ into subsection 4(1) and which provides that ‘power’ includes a function or duty. Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

 

Item 37 - Subsections 8G(1) and (2)

 

73.   This item repeals and substitutes subsections 8G(1) and (2) of the CKI Act, and inserts a new subsection 8G(2A).

 

74.   New subsections 8G(1) and (2) of the CKI Act substitute the present references to ‘a Western Australian law in force in the Territory under section 8A’, with appropriate references to ‘an applied Western Australian law’. This amendment is consequential to the amendment made by item 27 which inserts the new definition of ‘applied Western Australian law’ into subsection 4(1). Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

 

75.   New subsection 8G(2A) of the CKI Act is an avoidance of doubt provision. It provides that a power vested in a person or authority by an applied Western Australian law does not include a reference to a power so vested, whether directly or indirectly, because of an ordinance made for the purposes of subsection 8A(2) of the CKI Act. Under subsection 8A(2) of the CKI Act, an ordinance may provide for the incorporation, amendment or repeal of a law in force in the Cocos (Keeling) Islands under section 8A. For instance, if an applied Western Australian law is amended by an ordinance under subsection 8A(2) and the amending ordinance expressly vests a new power in a Commonwealth person or authority, that power is vested directly in the Commonwealth person or authority under the amending ordinance rather than vested in the minister under subsection 8G(2) of the CKI Act. This avoids the need for the minister to subsequently delegate the power to the relevant Commonwealth person or authority under subsection 8G(3) of the CKI Act. Equivalent amendments will be made to the CI Act and the NI Act.

 

Item 38 - Paragraph 8G(3)(a)

 

76.   This item amends paragraph 8G(3)(a) of the CKI Act by omitting the existing reference to ‘specified’. Paragraph 8G(3)(a) of the CKI Act provides that the minister may direct that powers vested in the minister under applied Western Australian laws may be vested in a ‘specified person or authority’. The omission of the existing reference to ‘specified’ is intended to remove any doubt that the minister may direct that these powers may also be vested in a person by reference to a specified office or position, including to a person from time to time holding, occupying, or performing the duties of, a specified office or position, or to an authority by reference to a class or type of authority. Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

 

Item 39 - Paragraph 8G(3)(b)

 

77.   This item amends paragraph 8G(3)(b) of the CKI Act by omitting the existing reference to ‘specified’ and adding a reference to ‘authority’. Paragraph 8G(3)(b) of the CKI Act provides that the minister may delegate powers vested in the minister under applied Western Australian laws in a ‘specified person’. The omission of the existing reference to ‘specified’ is intended to remove any doubt that the minister may delegate these powers in a person by reference to a specified office or position, including to a person from time to time holding, occupying, or performing the duties of, a specified office or position. The insertion of a reference to ‘authority’ makes the minister’s power under this paragraph consistent with the minister’s power under paragraph 8G(3)(a) of the CKI Act to direct that a power under an applied law may be vested in an authority. Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

 

Item 40 - Subsections 8G(4) to (6)

 

78.   This item repeals subsections 8G(4) to (6) and inserts new subsections 8G(4), (5), (5A), (5B) and (6) into the CKI Act.

 

79.   New subsection 8G(4) of the CKI Act provides that a direction or delegation made by the minister under subsection 8G(3) of the CKI is subject to such conditions as may be specified by the minister in the direction or delegation, or in the case of a deemed direction under new subsection (5A) or (5B), in writing by the minister. The new subsection is intended to avoid any doubt that any direction or delegation of powers vested in the minister under applied Western Australian laws can be made subject to any conditions that the minister may see fit. An equivalent provision will be inserted into the CI Act and the NI Act.

 

80.   New subsection 8G(5) of the CKI Act enables a person or authority in whom the minister has vested a power by a direction under paragraph 8G(3)(a) to delegate that power to another person or authority if the minister’s direction has authorised that, or in the case of a deemed direction under new subsection (5A) or (5B), if the minister has authorised that in writing. The new subsection is based on existing subsection 8G(4) of the CKI Act but omits the references to ‘specified person’, removes any doubt that this power also extends to an authority if authorised by the minister and expressly includes the deemed directions and delegations arrangements under new subsection 8G(5A) and (5B) of the CKI Act. An equivalent provision will be inserted into the CI Act and the NI Act.

 

81.   New subsection 8G(5A) of the CKI Act provides that where the Western Australian Government and the Australian Government have agreed to enter into an arrangement for the application and administration of one or more applied Western Australian laws (under section 8A), the minister is taken to have directed that certain powers are vested in certain Western Australian officers, employees or authorities. This provision avoids the need for the minister to specifically vest a potentially diverse range of powers in Western Australian officers or authorities. The new subsection is based on existing subsection 8G(5) of the CKI Act but clarifies that it also extends to powers vested in the minister under paragraph 8G(1)(a) of the CKI Act, that is, powers vested in a minister of Western Australia in force in the Cocos (Keeling) Islands under section 8A. This extension will ensure that subsection 8G(5A) will also apply to Western Australian officers, employees or authorities who are exercising powers delegated to them by a minister of Western Australia, with respect to the law as it applies in Western Australia, and when subject to an arrangement between the Western Australian Government and the Australian Government for the application and administration of the applied Western Australian law in the Cocos (Keeling) Islands. An equivalent provision will be inserted into the CI Act and the NI Act.

 

82.   New subsection 8G(5B) of the CKI Act provides for deemed vesting of certain powers vested in the minister under paragraph 8G(1)(a) or subsection 8G(2) of the CKI Act. Where that power  corresponds with police or local government powers vested by a Western Australian law, the minister is taken to have directed that these powers are also vested in the AFP, AFP members or special members, the Cocos (Keeling) Islands Shire and Shire officials as the case may be. For instance, item 2 of the table in subsection 8G(5B) provides that a power that corresponds to a power vested by a Western Australian law in a police officer (however described) holding, occupying or performing the duties of a particular kind of office or position, is vested in an AFP member or special member holding, occupying or performing the duties of a corresponding office or position in the Cocos (Keeling) Islands. This would mean, for example, that a power exercised by the Western Australian Commissioner of Police in Western Australia under a Western Australian law may, with respect to that law as applied in the Cocos (Keeling) Islands, be exercised by the AFP member who is the officer in charge of community policing in the Cocos (Keeling) Islands.

 

83.   This provision removes the need for the minister to specifically vest a diverse range of common police and local government powers under Western Australian applied laws in the AFP or the Christmas Island Shire and its officials. Provision is also made for other powers to be prescribed by an ordinance for the purposes of this subsection (see item 5 of the table in this subsection). The minister may also direct, under subsection 8G(6), as amended by the Bill, that the deemed vesting of a specified power, or a power that belongs to a specified class of powers, under this subsection does not apply in relation to that power. An equivalent provision to new subsection 8G(5B) will also be inserted into the CI Act and the NI Act.

 

84.   New subsection 8G(6) of the CKI Act provides that the minister may direct that the deemed vesting of a power under subsection 8G(5A) or (5B) does not apply in relation to a specified power. This new subsection, based on the existing subsection 8G(6), is consequential to the insertion of the new deemed vesting provisions, and also requires that the minister make any such direction in writing. An equivalent provision will be inserted into the CI Act and the NI Act.

 

Item 41 - Subsection 8G(9)

 

85.   This item repeals and substitutes subsection 8G(9) of the CKI Act. The new subsection is based on the existing subsection and amends it by inserting a reference to ‘applied Western Australian law’ and substituting the present reference to ‘the law as in force in Western Australia’ with a reference to ‘a Western Australian law’. This amendment is consequential to the amendments made by items 27 and 29 which respectively insert the new definitions of ‘applied Western Australian law’ and ‘Western Australian law’ into subsection 4(1). An equivalent provision will be inserted into the CI Act and the NI Act.

 

86.   The effect of the provision, consistent with the existing provision, is to preserve the validity of the exercise of a power under section 8G by a person or authority who may not hold qualifications necessary for the exercise of that power under a Western Australian law as in force in that state. For example, a power under an applied Western Australian law may be validly exercised by the Commonwealth minister or his or her delegate, even if the minister or delegate would not be ordinarily qualified to exercise that power under the Western Australian law as in force in that state. The validity of powers exercised under section 8G may still be challenged on other administrative law grounds, for instance, unreasonableness or a failure to take into account relevant considerations.

 

Item 42 - After subsection 8G(10)

 

87.   This item inserts new subsection 8G(10A) into the CKI Act to clarify that any reference in an applied Western Australian law to a person or authority is taken to include a reference to any other person or authority in whom powers are vested under section 8G of the CKI Act, including any direction or delegation made under this section. An equivalent provision to new subsection 8G(10A) will also be inserted into the CI Act and the NI Act.

 

Item 43 - Subsection 8G(12)

 

88.   This item repeals subsection 8G(12) which presently defines the terms ‘authority’, ‘authority of Western Australian’ and ‘power’ for the purposes section 8G of the CKI Act. The repeal of this subsection is consequential to the insertion of these definitions into subsection 4(1) of the CKI Act.

 

Item 44 - After section 8G

 

89.   This item inserts new section 8GA into the CKI Act to deal with the effect of amendments to applied Western Australian laws on existing directions and delegations made under section 8G of the CKI Act. This new section is based on subsections 34AB(2) and (3) of the Acts Interpretation Act which deals generally with delegations made under Commonwealth Acts. An equivalent provision to new section 8GA will also be inserted into the CI Act and the NI Act.

 

90.   New subsection 8GA(1) deals with the application of the section to directions and delegations made under section 8G of the CKI Act.

 

91.   New subsection 8GA(2) of the CKI Act makes it clear that a direction or delegation that is expressed to include all the powers, functions or duties of a person or authority under an applied Western Australian law extends to include any additional power, function or duty of that person or authority that arises from subsequent amendments to the applied Western Australian law. This provides greater certainty for the exercise of functions, duties and powers under these applied laws and means that the direction or delegation does not need to be updated when the Western Australian law is changed.

 

92.   New subsection 8GA(3) similarly provides that where an amendment to an applied Western Australian law alters the scope of a function, duty or power of a person or authority subject to a direction or delegation, the direction or delegation is taken to include the altered function, duty or power.

 

93.   New subsection 8GA(4) provides that an applied Western Australian law is ‘amended’ if the law is amended by an ordinance or the corresponding Western Australian law is amended (see also the new definition of ‘amended’ inserted into subsection 4(1) by item 27).

 

94.   This provision does not prevent the review of a direction or delegation when new powers, functions or duties are inserted into an applied Western Australian law or amendment of the direction or delegation if it is considered appropriate that the new or altered function, duty or power should not be subject to the direction or delegation.

 

Item 45 - Subsection 8H(2)

 

95.   This item amends subsection 8H(2) of the CKI Act, which provides that arrangements between the Commonwealth and Western Australia may provide ‘for the exercise of powers or the performance of functions or duties’, by omitting the existing references to ‘functions’ or ‘duties’. This amendment is consequential to the amendment made by item 29 which inserts the new definition of ‘power’ into subsection 4(1) to provide that ‘power’ includes a function or duty. Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

 

Item 46 - Paragraphs 8H(2)(b) and (c)

 

96.   This item amends paragraphs 8H(2)(b) and (c) of the CKI Act by substituting references to an authority ‘within the meaning of section 8G’ with references to an authority ‘established under a Western Australian law’. This amendment is consequential to the amendments made by items 27 and 43 which respectively insert the new definition of ‘authority’ into subsection 4(1) and repeal subsection 8G(12). Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

 

Item 47 - Paragraph 13D(1A)(b)

 

97.   This item amends paragraph 13D(1A)(b) of the CKI Act by substituting the present reference to ‘a Western Australian law in force in the Territory under section 8A’, with a reference to ‘an applied Western Australian law’. This amendment is consequential to the amendment made by item 27 which inserts the new definition of ‘applied Western Australian law’ into subsection 4(1). An equivalent amendment will be made to the corresponding provision in the CI Act.

 

Item 48 - Subparagraphs 15AAE(c)(i) and (ii) and (d)(i) and (ii)

 

98.   This item amends subparagraphs 15AAE(c)(i) and (ii) and (d)(i) and (ii) of the CKI Act by omitting the words ‘and functions’ from these subparagraphs, which deal with certain references to a range of court officers. These amendments are consequential to the amendment made by item 29 which inserts the new definition of ‘power’ into subsection 4(1) and provides that ‘power’ includes a function or duty.

 

Item 49 - Paragraph 15AAE(f)

 

99.   This item amends paragraph 15AAE(f) of the CKI Act by omitting the words ‘or duties’ from this paragraph, which deals with certain references to court officers. This amendment is consequential to the amendments made by item 29 which inserts the new definition of ‘power’ into subsection 4(1) and provides that ‘power’ includes a function or duty.

 

Item 50 - Paragraph 16(1)(c)

 

100.                This item amends paragraph 16(1)(c) of the CKI Act by omitting the words ‘or duty’ from this paragraph, which deals with powers or duties conferred or imposed on court officers. This amendment is consequential to the amendment made by item 29 which inserts the new definition of ‘power’ into subsection 4(1) and provides that ‘power’ includes a function or duty.

 

Item 51 - Paragraph 16(1)(c)

 

101.                This item amends paragraph 16(1)(c) of the CKI Act by omitting the words ‘or the performance of that duty’ from this paragraph, which presently deals with powers or duties conferred or imposed on court officers. This amendment is consequential to the amendment made by item 29 which inserts the new definition of ‘power’ into subsection 4(1) and provides that ‘power’ includes a function or duty.

 

Item 52 - After section 19

 

102.                This item inserts new section 19A into the CKI Act which deals with the incorporation of matters by reference in an ordinance, or a law made under an ordinance. Under section 12 of the CKI Act, the Governor-General may make ordinances for the peace, order and good government of the Territory of the Cocos (Keeling) Islands.

 

103.                New subsection 19A(1) of the CKI Act makes it clear that, despite subsection 14(2) of the Legislation Act, an ordinance, or a law made under an ordinance, may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a provision of a Western Australian law (whether or not the law is an applied Western Australian law), as in force at a particular time or as in force from time to time. Subsection 14(2) of the Legislation Act provides that, unless subject to a contrary intention, a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

 

104.                Under subsection 8A(1) of the CKI Act, as amended by this Bill, Western Australian laws, as in force in Western Australia from time to time, are in force in the Cocos (Keeling) Islands. Under subsection 8A(2) of the CKI Act these applied Western Australian laws may be incorporated, amended or repealed by an ordinance or a law made under an ordinance. Accordingly, new section 19A of the CKI Act will avoid any doubt that an ordinance, or a law made under an ordinance, may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a provision of a Western Australian law as in force from time to time. In the absence of new section 19A, amendments to applied Western Australian laws would need to be more frequent (in order to keep pace with amendments made by the Western Australian Parliament to Western Australian laws) or potentially more complex, for instance without the ability to incorporate Western Australian laws as in force from time to time.

 

105.                New subsection 19A(2) of the CKI Act provides that subsection 19A(1) only applies to a Western Australian law that is not an Act, if it is subject to disallowance in Western Australia. This is consistent with the operation of s 14(3) of the Legislation Act which restricts the incorporation of matters by reference to Commonwealth legislative instruments which are disallowable . Disallowable instruments are subject to parliamentary scrutiny and are publicly and freely available.

 

106.                An equivalent provision to new section 19A will also be inserted into the CI Act and the NI Act.

 

Norfolk Island Act 1979

 

Item 53 - Subsection 4(1)

 

107.                This item amends subsection 4(1) of the NI Act by inserting a number of new definitions which are consequential to the amendments made to section 18B (which deals with powers under ‘applied state laws’), and the insertion of new section 18D (which deals with powers under ‘applied territory laws’).

 

108.                In particular, this item inserts the following new definitions for the purposes of the NI Act:

 

·          ‘amended’ (for when an ‘applied law’ is amended)

·          ‘applied law’

·          ‘applied law jurisdiction’

·          ‘applied State law’

·          ‘applied Territory law’

·          ‘authority’.

 

109.                The new definition of ‘amended’ refers to new subsection 18E(4) (see item 72) and the new definition of ‘applied law’ means an ‘applied State law’ or an ‘applied Territory law’. The new definition of ‘applied law jurisdiction’ refers to new section 5 (see item 57). The new definition of ‘applied State law’ means a law of an applied law jurisdiction that is a state, as in force in Norfolk Island under section 18A of the NI Act. The new definition of ‘applied Territory law’ similarly means a law of an applied law jurisdiction that is a territory, as in force in Norfolk Island under section 18A of the NI Act. The new inclusive definition of ‘authority’ is based on the existing definition of ‘authority’ in subsection 18B(12) which will be repealed (see item 67).

 

Item 54 - Subsection 4(1)

 

110.                This item amends subsection 4(1) of the NI Act by repealing the definitions of ‘court officer of New South Wales’ and ‘court of New South Wales’. The repeal of these definitions is consequential to the amendments made to section 18B and the insertion of the new definition of ‘court officer’ (see item 55).

 

Item 55 - Subsection 4(1)

 

111.                This item amends subsection 4(1) of the NI Act by inserting new definitions of ‘court officer’, ‘law of an applied law jurisdiction’, ‘Norfolk Island’ and ‘power’. The insertion of these new definitions is consequential to the repeal and substitution of new section 18A which deals with the application of the laws of applied law jurisdictions and other amendments made to the NI Act (see item 61). The new definition of ‘court officer’ is based on the present definition of ‘court officer of New South Wales’, which is being repealed. The new definition of ‘law of an applied law jurisdiction’ refers to new subsection 18A(6), the new definition of ‘Norfolk Island’ refers to the definition of ‘Territory’, and the new definition of ‘power’ is based on the existing definition of ‘power’ in subsection 18B(12) which will be repealed.

 

Item 56 - Subsection 4(1) (definition of Territory )

 

112.                This item amends subsection 4(1) of the NI Act by substituting a new definition of ‘Territory’, which complements the new definition of ‘Norfolk Island’. The definition of ‘Territory’ or ‘Norfolk Island’ means the Territory of Norfolk Island and, when used in a geographical sense, means the area described in Schedule 1 to the NI Act.

 

Item 57 - At the end of Part I

 

113.                This item amends the NI Act by inserting new section 5 which deals with the meaning of ‘applied law jurisdiction’ for the purposes of this Act. New subsection 5(1) of the NI Act provides that, subject to any regulations made for the purposes of paragraph 5(2)(b), NSW and any other state or territory (if any) prescribed for the purposes of paragraph 5(2)(a) is an ‘applied law jurisdiction’.

 

114.                New subsection 5(2) of the NI Act, in turn, provides that the regulations may provide that a state or territory (other than Norfolk Island) is an applied law jurisdiction (paragraph 5(2)(a)); or that a state (including NSW) or a territory stops being an applied law jurisdiction (paragraph 5(2)(b)).

 

115.                New subsection 5(3) of the NI Act provides that, without limiting subsection 5(2), the regulations may prescribe matters of a transitional nature (including any saving or application provisions) relating to regulations made for the purposes of paragraph 5(2)(b) (which may provide that a state or a territory is no longer an applied law jurisdiction).

 

116.                The effect of this section is that NSW, at the time the NI Act is amended by the Bill, will be an ‘applied law jurisdiction’ for the purposes of the NI Act, subject to any future regulations made for the purposes of this section. Such regulations may prescribe another state or territory as an ‘applied law jurisdiction’, in which case, under section 18A as amended, the laws of that state or territory, as in force in that jurisdiction from time to time, will be in force in Norfolk Island. Regulations may also provide for a state (including NSW) or a territory to stop being an applied law jurisdiction. Presently while a small number of NSW laws are in force in Norfolk Island under section 18A of the NI Act, the majority of NSW laws have been suspended under a section 19A ordinance.

 

Item 58 - Section 15

 

117.                This item amends section 15 of the NI Act and is consequential to the amendment made by item 60 which inserts a new subsection 15(2) into the NI Act. Existing section 15, which deals with the laws in force in Norfolk Island from time to time, will now be in subsection 15(1). The amendment also removes a redundant reference to ‘the final transition time’, which reflects the substitution of a new paragraph 15(e) into this section.

 

Item 59 - Paragraph 15(e)

 

118.                This item repeals and substitutes paragraph 15(e) of the NI Act by replacing the existing reference to ‘New South Wales laws as in force in the Territory in accordance with section 18A’ with the new defined term of ‘applied laws.’ This amendment is consequential to the amendment made by item 53 which inserts the new definition of ‘applied law’ into subsection 4(1). Equivalent amendments will be made to the corresponding provisions in the CI Act and the CKI Act.

 

Item 60 - At the end of section 15

 

119.                This item inserts new subsection 15(2) into the NI Act. It avoids any doubt that subsection 15(1), which deals with the laws in force in Norfolk Island, does not prevent any other law, including a law of a state or another territory, from applying in Norfolk Island of its own force. This new subsection makes it clear that subsection 15(1) is not intended to be exhaustive as to the laws which may potentially apply in Norfolk Island and is not intended to prevent the application of other laws, such as the laws of another state or territory, which are capable of applying extraterritorially to Norfolk Island. Equivalent amendments will be made to the corresponding provisions in the CI Act and the CKI Act.

 

Item 61 - Section 18A

 

120.                This item repeals and substitutes a new section 18A into the NI Act to deal with the application of the laws of applied law jurisdictions. This provision is based on the existing section 18A of the NI Act, which presently deals with the application of NSW laws in Norfolk Island.

 

121.                New subsection 18A(1) provides that, subject to this section and sections 18B and 18D, the laws of an applied law jurisdiction are in force in Norfolk Island. Sections 18B and 18D of the Act respectively deal with powers exercised under applied state and territory laws.

 

122.                New subsection 18A(2) provides that a law in force under subsection 18A(1) can be incorporated, amended or repealed by a section 19A ordinance or a law made under a section 19A ordinance. This subsection enables the modification or repeal of applied laws by ordinance where that is appropriate or desirable in the context of Norfolk Island.

 

123.                New subsection 18A(3) provides that a section 19A ordinance may suspend the operation of an applied law in Norfolk Island for a specified period of time.

 

124.                New subsection 18A(4) provides that a law in force under subsection 18A(1) is of no effect to the extent that it is inconsistent with the Constitution, an Act, an enactment (as defined), or a law of another applied law jurisdiction in force in Norfolk Island under section 18A that has a higher order of priority under regulations made for the purposes of paragraph 18A(4)(d). For the purposes of subsection 18A(4), such laws are taken to be consistent to the extent they are capable of operating concurrently, that is, are not directly inconsistent (see subsection 18A(5)).

 

125.                It is anticipated that a number of applied NSW laws, presently in force in Norfolk Island, may remain in force for a period if the laws of another applied law jurisdiction are applied in Norfolk Island. In such circumstances, new paragraph 18A(4)(d) allows for the making of regulations providing for an order of priority if the laws of more than one applied law jurisdiction are applied in Norfolk Island. Although it is expected that the laws of only one applied law jurisdiction (other than NSW) will be applied at any one time, this provision may be utilised for transitional purposes, such as where there is a future change in state service providers and there is a need to move to the laws of a different applied law jurisdiction.

 

126.                New subsection 18A(6) clarifies that laws of an applied law jurisdiction include not just statutory law, but also principles or rules of common law or equity that are part of the laws of the applied law jurisdiction. Subsection 18A(6) provides though that ‘law of an applied law jurisdiction’ does not include a Commonwealth Act or a provision of a Commonwealth Act, or an instrument (however described), or a provision of an instrument, made under a Commonwealth Act. A Commonwealth Act, or a provision of a Commonwealth Act, extends to Norfolk Island of its own force except so far as the Commonwealth Act or another Act expressly provides otherwise (see subsection 18(1)).

 

Item 62 - Section 18B (heading)

 

127.                This item substitutes a new heading to section 18B of the NI Act: ‘Powers under applied State laws’. The substitution of this new heading is consequential to the amendments made to section 18B of the NI Act.

 

Item 63 - Subsections 18B(1) and (2)

 

128.                This item repeals and substitutes subsections 18B(1) and (2) of the NI Act, and inserts a new subsection 18B(2A) into this Act.

 

129.                New subsections 18B(1) and (2) of the NI Act substitute the present references to ‘a New South Wales law in force in the Territory under section 18A’ and ‘NSW’, with appropriate references to ‘an applied State law’ and ‘the State’. These amendments are consequential to the insertion of the new definition of ‘applied State law’ into subsection 4(1) and the amendments made to section 18A.

 

130.                New subsection 18B(2A) of the NI Act is an avoidance of doubt provision. It provides that a power vested in a person or authority under an applied state law does not include a reference to a power so vested, whether directly or indirectly, because of an ordinance made for the purposes of subsection 18A(2) of the NI Act. Under subsection 18A(2) of the NI Act, an ordinance may provide for the incorporation, amendment or repeal of a law in force in Norfolk Island under section 18A. For instance, if an applied state law is amended by an ordinance under subsection 8A(2) and the amending ordinance expressly vests a new power in a Commonwealth person or authority, that power is vested directly in the Commonwealth person or authority under the amending ordinance rather than vested in the minister under subsection 18B(2) of the NI Act. This avoids the need for the minister to subsequently delegate the power to the relevant Commonwealth person or authority under subsection 18B(3) of the NI Act. Equivalent amendments will be made to the CI Act and the CKI Act, as well as section 18D of the NI Act with respect to applied territory laws (see item 72).

 

Item 64 - Paragraph 18B(3)(a)

 

131.                This item amends paragraph 18B(3)(a) of the NI Act by omitting the existing reference to ‘specified’. Paragraph 18B(3)(a) of the NI Act provides that the responsible Commonwealth minister may direct that powers vested in the minister under applied state laws may be vested in a ‘specified person or authority’. The omission of the existing reference to ‘specified’ is intended to remove any doubt that the minister may direct that these powers may also be vested in a person by reference to a specified office or position, including to a person from time to time holding, occupying, or performing the duties of, a specified office or position, or to an authority by reference to a class or type of authority. Equivalent amendments will be made to the corresponding provisions in the CI Act and CKI Act.

 

Item 65 - Paragraph 18B(3)(b)

 

132.                This item amends paragraph 18B(3)(b) of the NI Act by omitting the existing reference to ‘specified’ and adding a reference to ‘authority’. Paragraph 18B(3)(b) of the NI Act provides that the responsible Commonwealth minister may delegate powers vested in the minister under applied state laws in a ‘specified person’. The omission of the existing reference to ‘specified’ is intended to remove any doubt that the minister may delegate these powers in a person by reference to a specified office or position, including to a person from time to time holding, occupying, or performing the duties of, a specified office or position. The insertion of a reference to ‘authority’ makes the minister’s power under this paragraph consistent with the responsible Commonwealth minister’s power under paragraph 18B(3)(a) of the NI Act to direct that a power under an applied law may be vested in an authority. Equivalent amendments will be made to the corresponding provisions in the CI Act and the CKI Act.

 

Item 66 - Subsections 18B(4) to (6)

 

133.                This item repeals subsections 18B(4) to (6) and inserts new subsections 18B(4), (5), (5A), (5B) and (6) into the NI Act.

 

134.                New subsection 18B(4) of the NI Act provides that a direction or delegation made by the responsible Commonwealth minister under subsection 18B(3) of the NI Act is subject to such conditions as may be specified by the minister in the direction or delegation, or in the case of a deemed direction under new subsection (5A) or (5B), in writing by the minister. The new subsection is intended to avoid any doubt that any direction or delegation of powers vested in the responsible Commonwealth minister under applied state laws can be made subject to any conditions that the minister may see fit. An equivalent provision will be inserted into the CI Act and the CKI Act.

 

135.                New subsection 18B(5) of the NI Act enables a person or authority in whom the minister has vested a power by a direction under paragraph 18B(3)(a) to delegate that power to another person or authority if the minister’s direction has authorised that, or in the case of a deemed direction under new subsection (5A) or (5B), if the minister has authorised that in writing. The new subsection is based on existing subsection 18B(4) of the NI Act but omits the references to ‘specified person’, removes any doubt that this power also extends to an authority if authorised by the minister and expressly includes the deemed directions and delegations arrangements under new subsections 18B(5A) and (5B) of the NI Act. An equivalent provision will be inserted into the CI Act and the CKI Act.

 

136.                New subsection 18B(5A) of the NI Act provides that where a state government and the Australian Government have agreed to enter into an arrangement for the application and administration of one or more applied state laws (under section 18A), the responsible Commonwealth minister is taken to have directed that certain powers are vested in certain state officers, employees or authorities. This provision avoids the need for the responsible Commonwealth minister to specifically vest a potentially diverse range of powers in state officers or authorities. The new subsection is based on existing subsection 18B(5) of the NI Act but clarifies that it also extends to powers vested in the responsible Commonwealth minister under paragraph 18B(1)(a) of the NI Act, that is, powers vested in a minister of a state in force in Norfolk Island under section 18A. This extension will ensure that subsection 18B(5A) will also apply to state officers, employees or authorities who are exercising powers delegated to them by a minister of a state, with respect to the law as it applies in that state, and when subject to an arrangement between the state government and the Australian Government for the application and administration of the applied state law in Norfolk Island. An equivalent provision will be inserted into the CI Act and the CKI Act.

 

137.                New subsection 18B(5B) of the NI Act provides for deemed vesting of certain powers vested in the responsible Commonwealth minister under paragraph 18B(1)(a) or subsection 18B(2) of the NI Act. Where these powers correspond with police or local government council powers under a state law, the minister is taken to have directed that these powers are also vested in the AFP, Norfolk Island Police Force members and AFP members or special members, the NIRC and NIRC officials as the case may be. For instance, item 2 of the table in subsection 18B(5B) provides that a power that corresponds to a power vested by a state law in a police officer (however described) holding, occupying or performing the duties of a particular kind of office or position, is vested in a member of the Norfolk Island Police Force, or AFP member or special member holding, occupying or performing the duties of a corresponding office or position in Norfolk Island. This would mean, for example, that a power exercised by a state commissioner of police in that state under a state law may, with respect to that law as applied in Norfolk Island, be exercised by the Norfolk Island Police Force member or AFP member who is the officer in charge of community policing in Norfolk Island.

 

138.                This provision removes the need for the responsible Commonwealth minister to specifically vest a diverse range of common police and local government powers under applied state laws in local police officers or NIRC and its officials. Provision is also made for other powers to be prescribed by an ordinance for the purposes of this subsection (see item 5 of the table in this subsection). An equivalent provision to new subsection 18B(5B) will also be inserted into the CI Act and the CKI Act.

 

139.                New subsection 18B(6) of the NI Act provides that the responsible Commonwealth minister may direct that the deemed vesting of a specified power under subsection 18B(5A) or (5B) does not apply in relation to that power. This amendment is consequential to the insertion of these new deemed vesting provisions, and also requires the minister to make any such direction in writing. Equivalent amendments will be made to the corresponding provisions in the CI Act and the CKI Act.

 

Item 67 - Subsections 18B(9) to (12)

 

140.                This item repeals subsections 18B(9) to (12) and inserts new subsections 18B(9) to (13) into the NI Act.

 

141.                New subsection 18B(9) of the NI Act is based on the existing subsection, and substitutes the existing reference to ‘New South Wales’ with appropriate references to ‘applied State law’ or ‘State’. The effect of the provision, consistent with the existing provision, is to preserve the validity of the exercise of a power under section 18B by a person or authority who may not hold qualifications necessary for the exercise of that power under the state law as in force in the state. For example, a power under an applied state law may be validly exercised by the Commonwealth minister or his or her delegate, even if the minister or delegate would not be ordinarily qualified to exercise that power under the state law as in force in the state. The validity of powers exercised under section 18B may still be challenged on other administrative law grounds, for instance, unreasonableness or a failure to take into account relevant considerations. An equivalent amendment will be made to the corresponding provisions in the CI Act and the CKI Act as well as section 18D of the NI Act with respect to applied territory laws.

 

142.                New subsection 18B(10) of the NI Act is based on the existing subsection, and substitutes the existing references to ‘Territory’ and ‘New South Wales law’ with  references to ‘Norfolk Island’ and ‘applied law jurisdiction’. New subsection 18B(10) provides that nothing in section 18B affects the operation of section 18A in relation to a subordinate law made under a state law.

 

143.                New subsection 18B(11) of the NI Act clarifies that, subject to any direction or delegation made under this section, any references to a power vested by an applied state law in a person or authority is taken to include any other person or authority in whom powers are vested under section 18B of the NI Act. An equivalent provision will also be inserted into the CI Act and the CKI Act.

 

144.                New subsection 18B(12) of the NI Act clarifies that a reference in this section to a law of a state that is an applied law jurisdiction is taken to be a reference to a law of the applied law jurisdiction (within the extended meaning of subsection 18A(6)). For instance, a reference to a law of state that is an applied law jurisdiction is a reference to that law as in force in that state.

 

145.                New subsection 18B(13) of the NI Act is based on the existing subsection 18B(11) and provides that an instrument under section 18B is not a legislative instrument. This is because it is not legislative in character and therefore not covered by subsection 8(4) of the Legislation Act. This subsection confirms this and is included to assist readers.

 

Item 68 - Section 18C (heading)

 

146.                This item substitutes a new heading to section 18C of the NI Act: ‘Arrangements with the Government of a State’. The substitution of this new heading is consequential to the amendments made to section 18C of the NI Act. Although this provision, which complements new subsection 18B(5A) of the NI Act, is restricted to arrangements between the Commonwealth and a state, it is not intended to prevent the Commonwealth from entering into arrangements with a territory government with respect to the administration of any applied territory laws if it is considered convenient to do so.

 

Item 69 - Subsection 18C(1)

 

147.                This item amends subsection 18C(1) of the NI Act by substituting the existing reference to ‘New South Wales’ with a reference to ‘a State’. This amendment allows section 18C, as amended, to apply to Commonwealth arrangements with the government of any state, including a state other than NSW.

 

Item 70 - Subsection 18C(1)

 

148.                This item amends subsection 18C(1) of the NI Act by substituting the existing reference to ‘the Territory’ with a reference to ‘Norfolk Island’. This amendment, consistent with the other amendments made by the Bill substituting some of these references in the NI Act, is intended to clarify the distinction between references to laws in force in Norfolk Island and references to laws in force in another territory.

 

Item 71 - Subsection 18C(2)

 

149.                This item repeals and substitutes a new subsection 18C(2) of the NI Act, based on the existing subsection. It substitutes the existing references to ‘New South Wales’ with appropriate references to ‘the State’. The effect of the provision as amended is that, without limiting the generality of subsection 18C(1), an arrangement between the Commonwealth and a state government may provide for the exercise or performance of powers, functions or duties in Norfolk Island by state officers, employees or authorities (including officers or employees of a state authority).

 

Item 72 - At the end of Division 1 of Part IV

 

150.                This item inserts new sections 18D and 18E into the NI Act.

 

151.                New section 18D, which deals with powers under applied territory laws, is based on section 18B of the NI Act, as amended, which deals with powers under applied state laws, but reflects the different constitutional status of the territories when compared with the states.

 

152.                New subsection 18D(1) provides that if, by an applied territory law, a power is vested in a person or an authority (other than a court officer or court), that power is also vested in, and may be exercised by, that person or authority in relation to Norfolk Island. This effectively means that, subject to subsection 18D(4), a territory official or authority has equivalent statutory powers in Norfolk Island under an applied territory law as they have in their own territory.

 

153.                New subsection 18D(2) clarifies that a reference in subsection 18D(1) to a power that is vested in a person or authority by an applied territory law includes a reference to a power that is otherwise exercisable under that law. This includes powers that the person or authority exercises under a delegation made under that law or an authorisation.

 

154.                New subsection 18D(3) of the NI Act is an avoidance of doubt provision.  It provides that a power vested in a person or authority under an applied territory law does not include a reference to a power so vested, whether directly or indirectly, because of an ordinance made for the purposes of subsection 18A(2) of the NI Act. Under subsection 18A(2) of the NI Act, an ordinance may provide for the incorporation, amendment or repeal of a law in force in Norfolk Island under section 18A. For instance, if an applied territory law is amended by an ordinance under subsection 18A(2) and the amending ordinance expressly vests a new power in a Commonwealth person or authority, that power is vested directly in the Commonwealth person or authority under the amending ordinance rather than vested in the person or authority under subsection 18D(1) of the NI Act. This avoids the need for the minister to subsequently direct the power to be vested in the relevant Commonwealth person or authority under subsection 18B(4) of NI Act. Equivalent amendments will be made to the CI Act and the CKI Act as well as section 18B of the NI Act with respect to applied state laws.

 

155.                New subsection 18D(4) allows the responsible Commonwealth minister to direct that any power vested in a person or authority under subsection 18D(1) is vested in a person or authority (which may be the minister) in addition to, or instead of, the first-mentioned person or authority. This provision gives the minister the ability to vest powers under applied territory laws in persons other than territory officials or authorities when considered appropriate in the context of Norfolk Island.

 

156.                New subsection 18D(5) allows the Commonwealth minister to make directions issued under new subsection 18D(4) subject to any conditions the minister may see fit.

 

157.                New subsection 18D(6) enables a person or authority in whom a power has been vested by the responsible Commonwealth minister under subsection 18D(4) to delegate that power to another person or authority if the minister has authorised that.

 

158.                New subsection 18D(7) provides that if the responsible Commonwealth minister gives a direction under paragraph 18D(4)(b) in relation to a power (which has the effect of solely vesting the power in another person or authority), the power stops being vested in relation to Norfolk Island under subsection 18D(2) (that is, in the territory official or authority) at the start of the day after the direction is given.

 

159.                New subsection 18D(8) provides that an instrument made under new section 18D may identify a power by reference to a class of powers.

 

160.                New subsection 18D(9), which is based on existing subsection 18B(9), preserves the validity of the exercise of a power under section 18D by a person or authority who may not hold qualifications necessary for the exercise of that power under the law of an applied law territory as in force in that territory. For example, a power under an applied territory law may be validly exercised by the responsible Commonwealth minister or his or her delegate under that law as in force in Norfolk Island, even if the minister or delegate would not be ordinarily qualified to exercise that power under that law as in force in the applied law territory. This provision will not prevent, however, the validity of powers exercised under section 18D being subject to judicial review on other grounds. An equivalent amendment will be made to the corresponding provisions in the CI Act and the CKI Act as well as section 18B of the NI Act with respect to applied state laws.

 

161.                New subsection 18D(10) clarifies that nothing in section 18D affects the operation of section 18A in relation to a subordinate law made under a law of the applied law jurisdiction.

 

162.                New subsection 18D(11) clarifies that, subject to any direction or delegation made under this section, any references to a power vested in a person or authority under the law of an applied law territory is taken to include any other person or authority in whom powers are vested under section 18D of the NI Act. Equivalent provisions will also be inserted into the CI Act and the CKI Act as well as section 18B of the NI Act with respect to applied state laws.

 

163.                New subsection 18D(12) of the NI Act clarifies that a reference in this section to a law of a territory that is an applied law jurisdiction is taken to be a reference to a law of the applied law jurisdiction (within the extended meaning of subsection 18A(6)). For instance, a reference to a law of territory that is an applied law jurisdiction is a reference to that law as in force in that territory.

 

164.                New subsection 18D(13) provides that an instrument under section 18D is not a legislative instrument. This is because it is not legislative in character and therefore not covered by subsection 8(4) of the Legislation Act. Subsection 18D(13) confirms this and is included to assist readers.

 

165.                New section 18E of the NI Act deals with the effect of amendments to applied laws on existing directions or delegations made under sections 18B or 18D. This new section is based on subsections 34AB(2) and (3) of the Acts Interpretation Act which deals generally with delegations made under Commonwealth Acts. An equivalent provision to new section 18E will also be inserted into the CI Act and the CKI Act.

 

166.                New subsection 18E(1) deals with the application of the section to directions and delegations made under sections 18B or 18D of the NI Act.

 

167.                New subsection 18E(2) makes it clear that a direction or delegation that is expressed to include all the powers, functions or duties of a person or authority under an applied law extends to include any additional power, function or duty of that person or authority that comes into existence after the direction or delegation is made. This provides greater certainty for the exercise of functions, duties and powers under these applied laws and means that the direction or delegation does not need to be updated when the applied law is changed.

 

168.                New subsection 18E(3) similarly provides that if an amendment to an applied law alters the scope of a function, duty or power of a person or authority, the direction or delegation is taken to include the altered function, duty or power.

 

169.                New subsection 18E(4) provides that an applied law is ‘amended’ if the law is amended by an ordinance or the corresponding law of the applied law jurisdiction is amended (see also the new definition of ‘amended’ inserted into subsection 4(1) by item 53).

 

170.                This provision does not prevent the review of a direction or delegation when new powers, functions or duties are inserted into an applied law and amendment of the direction or delegation if it is considered appropriate that a new or altered function, duty or power should not be subject to the direction or delegation.

 

Item 73 - After section 66

 

171.                This item inserts new section 66A into the NI Act to deal with the incorporation of matters by reference in an ordinance, or a law made under an ordinance. Under section 19A of the NI Act, the Governor-General may make ordinances for the peace, order and good government of the Territory of Norfolk Island.

 

172.                New subsection 66A(1) of the NI Act makes it clear that, despite subsection 14(2) of the Legislation Act, an ordinance, or a law made under an ordinance, may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a provision of a law of an applied law jurisdiction, whether or not the law is an applied law, as in force at a particular time or as in force from time to time. Subsection 14(2) of the Legislation Act provides that, unless subject to a contrary intention, a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

 

173.                Under subsection 18A(1) of the NI Act, any laws of an applied law jurisdiction, as in force in that state or territory from time to time, are in force in Norfolk Island. Under subsection 18A(2) of the NI Act, any applied state or territory laws may be incorporated, amended or repealed by an ordinance or a law made under an ordinance. Accordingly, new section 66A of the NI Act will avoid any doubt that an ordinance, or a law made under an ordinance, may make provision in relation to a matter by applying, adopting or incorporating a provision, with or without modification, of a state or territory law as in force from time to time. In the absence of new section 66A, amendments to any applied laws would need to be more frequent (in order to keep pace with amendments made to these laws in the relevant state or territory) or potentially more complex, for instance without the ability to incorporate state or territory laws as in force from time to time.

 

174.                New subsection 66A(2) of the NI Act provides that subsection 66A(1) only applies to a law of an applied law jurisdiction that is not an Act, if it is subject to disallowance in that jurisdiction. This is consistent with the operation of s 14(3) of the Legislation Act which restricts the incorporation of matters by reference to Commonwealth legislative instruments which are disallowable . Disallowable instruments are subject to parliamentary scrutiny and are publicly and freely available.

 

175.                An equivalent provision to new section 66A will also be inserted into the CI Act and the CKI Act.

 

Item 74 - Part IX

 

176.                This item repeals Part IX of the NI Act, which contains a number of transitional provisions that commenced in 1979. These provisions are now spent in their operation.

 

Division 2 - Application, saving and transitional provisions

 

Item 75 - Amendments relating to Christmas Island

 

Application of amendments

 

177.                Subitem 75(1) is an application provision that provides that sections 8G and 8GA of the CI Act, as amended by the Bill (‘the new law’), apply in relation to:

 

·          Western Australian laws, whether in force before or after the commencement time (the time Part 1 of Schedule 1 to the Bill commences)

·          applied Western Australian laws, whether in force before or after the commencement time

·          powers vested in a person or authority, whether vested before or after the commencement time

·          directions and delegations, whether made before or after the commencement time.

 

Saving of certain delegations

 

178.                Subitem 75(2) is a saving provision that provides that, subject to subitem 75(3), a delegation made under subsection 8G(4) of the CI Act, as in force before its amendment by the Bill (‘the old law’), that was in force immediately before the commencement time, continues in force, on and after that time, as if it had been made under subsection 8G(5) of the new law. This subitem is intended to preserve the operation of any delegation made under subsection 8G(4) of the CI Act that is still in force at the time this subsection is repealed.

 

Certain directions and delegations cease to have effect

 

179.                Subitem 75(3) is an application provision that provides that a direction or delegation made under subsection 8G(3) or (4) of the old law that was in force immediately before the commencement time ceases to have effect if, at the commencement time, the minister is taken, under subsection 8G(5B) of the new law, to have directed that a power is also vested in a person or authority; and the direction or delegation is in respect of that power. With respect to vested powers not directly covered by these deemed vesting provisions, a direction or delegation that was in force immediately before the commencement time otherwise continues in force.

 

Arrangements with Western Australia

 

180.                Subitem 75(4) is an application provision which provides that a reference in section 8G or 8H of the new law to an arrangement with Western Australia is taken, after the commencement time, to include a reference to an arrangement with Western Australia entered into under section 8H of the old law that was in force immediately before that time. This subitem is intended to preserve the operation of any arrangements entered into by the Commonwealth and Western Australia under section 8H of the CI Act where those arrangements are still in force at the time the CI Act is amended.

 

Definitions

 

181.                Subitem 75(5) provides that for the purposes of item 75, ‘commencement time’ means the time that Part 1 of Schedule 1 to the Bill commences, ‘new law’ means the CI Act, as amended by Division 1 of Part 1 of Schedule 1 to the Bill, and ‘old law’ means the CI Act , as in force immediately before the commencement time.

 

Item 76 - Amendments relating to Cocos (Keeling) Islands

 

Application of amendments

 

182.                Subitem 76(1) is an application provision that provides that sections 8G and 8GA of the CKI Act, as amended by the Bill (‘the new law’), apply in relation to:

·          Western Australian laws, whether in force before or after the commencement time (the time Part 1 of Schedule 1 to the Bill commences)

·          applied Western Australian laws, whether in force before or after the commencement time

·          powers vested in a person or authority, whether vested before or after the commencement time

·          directions and delegations, whether made before or after the commencement time.

 

Saving of certain delegations

 

183.                Subitem 76(2) is a saving provision that provides that, subject to subitem 76(3), a delegation made under subsection 8G(4) of the CKI Act, as in force before its amendment by the Bill (‘the old law’), that was in force immediately before the commencement time continues in force, on and after that time, as if it had been made under subsection 8G(5) of the new law. This subitem is intended to preserve the operation of any delegation made under subsection 8G(4) of the CKI Act that is still in force at the time this subsection is repealed.

 

Certain directions and delegations cease to have effect

 

184.                Subitem 76(3) is an application provision that provides that a direction or delegation made under subsection 8G(3) or (4) of the old law that was in force immediately before the commencement time ceases to have effect if, at the at the commencement time, the minister is taken, under subsection 8G(5B) of the new law, to have directed that a power is also vested in a person or authority; and the direction or delegation is in respect of that power. With respect to vested powers not directly covered by these deemed vesting provisions, a direction or delegation that was in force immediately before the commencement time otherwise continues in force.

 

Arrangements with Western Australia

 

185.                Subitem 76(4) is an application provision which provides that a reference in section 8G or 8H of the new law to an arrangement with Western Australia is taken, after the commencement time, to include a reference to an arrangement with Western Australia entered into under section 8H of the old law that was in force immediately before that time. This subitem is intended to preserve the operation of any arrangements entered into by the Commonwealth and Western Australia under section 8H of the CKI Act where those arrangements are still in force at the time the CKI Act is amended.

 

Definitions

 

186.                Subitem 76(5) provides that for the purposes of item 76, ‘commencement time’ means the time that Part 1 of Schedule 1 to the Bill commences, ‘new law’ means the CKI Act, as amended by Division 1 of Part 1 of Schedule 1 to the Bill, and ‘old law’ means the CKI Act , as in force immediately before the commencement time.

 

Item 77 - Amendments relating to Norfolk Island

 

Application of amendments

 

187.                Subitem 77(1) is an application provision that provides sections 18A to 18E of the NI Act, as amended by the Bill (‘the new law’), apply in relation to:

 

·          laws of an applied law jurisdiction, whether in force before or after the commencement time (the time Part 1 of Schedule 1 to the Bill commences)

·          applied laws, whether in force before or after the commencement time

·          powers vested in a person or authority, whether vested before or after the commencement time

·          directions and delegations, whether made before or after the commencement time.

 

Saving of Ordinances that incorporate, amend, repeal or suspend applied New South Wales laws

 

188.                Subitem 77(2) is a saving provision that provides that a section 19A ordinance made for the purposes of subsection 18A(2) or (3) of the NI Act, as in force before its amendment by the Bill (‘the old law’), that was in force immediately before the commencement time continues in force, on and after that time, as if it had been made for the purposes of subsection 18A(2) or (3) (as applicable) of the new law. This subitem is intended to preserve the operation of any section 19A ordinance which incorporates, amends, repeals or suspends any applied NSW laws and is still in force at the time the NI Act is amended.

 

Saving of certain delegations

 

189.                Subitem 77(3) is a saving provision that provides that, subject to subitem 77(4), a delegation made under subsection 18B(4) of the old law that was in force immediately before the commencement time continues in force, on and after that time, as if it had been made under subsection 18B(5) of the new law. This subitem is intended to preserve the operation of any delegation made under subsection 18B(4) of the NI Act that is still in force at the time this subsection is repealed.

 

Certain directions and delegations cease to have effect

 

190.                Subitem 77(4) is an application provision that provides that a direction or delegation made under subsection 18B(3) or (4) of the old law that was in force immediately before the commencement time ceases to have effect if, at the commencement time, the minister is taken, under subsection 18B(5B) of the new law, to have directed that a power is also vested in a person or authority; and the direction or delegation is in respect of that power. With respect to vested powers not directly covered by these deemed vesting provisions, a direction or delegation that was in force immediately before the commencement time otherwise continues in force.

Arrangements with New South Wales

 

191.                Subitem 77(5) is an application provision which provides that a reference in section 18B or 18C of the new law to an arrangement with a state is taken, at and after the commencement time, to include a reference to an arrangement with NSW entered into under section 18C of the old law that was in force immediately before that time. This subitem is intended to preserve the operation of any arrangements entered into by the Commonwealth and NSW under section 18C of the NI Act where those arrangements are still in force at the time the NI Act is amended.

 

Definitions

 

192.                Subitem 77(6) provides that for the purposes of item 77, ‘commencement time’ means the time that Part 1 of Schedule 1 to the Bill commences, ‘new law’ means the NI Act, as amended by Division 1 of Part 1 of Schedule 1 to the Bill, and ‘old law’ means the NI Act , as in force immediately before the commencement time.

 

Part 2 - Jurisdiction of Norfolk Island courts

 

193.                This part deals with amendments to the NI Act which will allow the courts of a prescribed state or territory to have jurisdiction (including appellate jurisdiction) in relation to Norfolk Island as if it were part of that state or territory. This will allow for the courts of the relevant state or territory providing services to Norfolk Island to hear matters relevant to the services being provided by the state or territory government officials under the applied laws of that same jurisdiction. This would be similar to the arrangements which apply in Christmas Island and the Cocos (Keeling) Islands where the courts of Western Australia have jurisdiction with respect to these external territories as if these territories were part of Western Australia. It is likely to be a number of years before these provisions are utilised. Part 3 then subsequently deals with the potential abolition of the Norfolk Island courts and the transfer of the jurisdiction of these courts to the courts of the prescribed state or territory.

 

Division 1 - Main amendments

 

Norfolk Island Act 1979

 

Item 78 - Subsection 4(1)

 

194.                This item amends subsection 4(1) of the NI Act by inserting a new definition of ‘prescribed State or Territory’, which means a state or territory prescribed for the purposes of new subsection 60AA(1).

 

Item 79 - Before section 52

 

195.                This item inserts a new Division heading into Part VII of the NI Act, before section 52: ‘Division 1—The Supreme Court of Norfolk Island’. This amendment is consequential to the insertion of new Division 3 into Part VII of the NI Act by item 81.

 

Item 80 - Before section 60

 

196.                This item inserts a new Division heading into Part VII of the NI Act, before section 60: ‘ Division 2 Establishment of courts and tribunals ’. This amendment is consequential to the insertion of new Division 3 into Part VII of the NI Act by item 81.

 

Item 81 - At the end of Part VII

 

197.                This item inserts a new Division at the end of Part VII of the NI Act: ‘ Division 3—Conferral of jurisdiction on prescribed State or Territory courts ’, which consists of new section 60AA of the NI Act.

 

198.                New subsection 60AA(1) of the NI Act provides that a state or territory (other than Norfolk Island) may be prescribed by the regulations (the ‘prescribed State or Territory’) for the purposes of this subsection.

 

199.                New subsection 60AA(2) of the NI Act provides that the courts of the prescribed state or territory have jurisdiction (including appellate jurisdiction) to hear and determine matters arising under laws in force in Norfolk Island as if Norfolk Island were part of the prescribed state or territory. The note to this subsection identifies that the transfer of jurisdiction from the Norfolk Island courts to the courts of the prescribed state or territory will be dealt with in Division 3 of Part 2 of Schedule 1 to this Bill, once enacted.

 

200.                New subsection 60AA(3) of the NI Act provides that a court of the prescribed state or territory may, in exercising jurisdiction under this section, sit in Norfolk Island or the prescribed state or territory.

 

201.                New subsection 60AA(4) of the NI Act provides that section 68 of the Judiciary Act 1903 applies, with appropriate modifications, to a court exercising jurisdiction in a criminal proceeding under this section. The effect of this subsection is to apply the criminal procedure laws, including the relevant arrest, custody and bail laws, of the prescribed state or territory to a court of the prescribed state or territory exercising jurisdiction under this section. With respect to their jurisdiction in relation to Norfolk Island, the criminal practice and procedure of the courts of the prescribed state or territory will largely be the same as they exercise with respect to their home jurisdiction.

 

202.                New subsection 60AA(5) of the NI Act provides that the laws of the prescribed state or territory, including the laws relating to procedure, evidence and the competency of witnesses, are binding on all courts exercising jurisdiction under this section in that state or territory, or in Norfolk Island, in all cases to which they are applicable. This provision is based on subsection 79(1) of the Judiciary Act 1903 and its effect is that, with respect to their jurisdiction in relation to Norfolk Island, the practice and procedure of the courts of the prescribed state or territory would be the same as they exercise with respect to their home jurisdiction.

 

203.                New subsection 60AA(6) provides that this section is subject to the Constitution and any law in force in Norfolk Island. The note to this subsection identifies that the effect of this paragraph 60AA(6)(b) is that new subsections 60 (3), (4) and (5) are subject to the provisions of Part VIIA of this Act (as amended by this Bill).

 

204.                New subsection 60AA(7) of the NI Act avoids any doubt, that a suspension of a law under subsection 18A(4) of the NI Act does not, by virtue of that suspension alone, affect the application of that law under subsections (4) and (5) of this section. For instance, the suspension in Norfolk Island of an applied state law dealing with criminal procedure in the prescribed state or territory would not prevent the application of this law to the court of a prescribed state or territory exercising criminal jurisdiction under this section.

 

Division 2 - Consequential amendments

 

Coral Sea Islands Act 1969

 

Item 82 - Subsection 2(1)

 

205.                This item inserts a new definition of ‘prescribed State or Territory’ into subsection 2(1) of the Coral Sea Islands Act 1969 and is a consequential amendment to the amendments of section 8 of the Coral Sea Islands Act 1969 by items 83, 84 and 85. The new definition of ‘prescribed State or Territory’ has the same meaning given by the NI Act.

 

Item 83 - Before subsection 8(1)

 

206.                This item inserts new subsections 8(1A) and (1B) into the Coral Sea Islands Act 1969 . The courts of Norfolk Island presently have jurisdiction in and in relation to the Coral Sea Islands and these new subsections will have the effect that any courts of a prescribed state or territory will also have jurisdiction with respect to the Coral Sea Islands and, in exercising this jurisdiction, may sit in the Coral Sea Islands, in Norfolk Island or in the prescribed state or territory.

 

Item 84 - Subsection 8(1)

 

207.                This item amends subsection 8(1) of the Coral Sea Islands Act 1969 by inserting a reference to Part VII of the NI Act. The effect of this amendment is to clarify that the jurisdiction of the courts of Norfolk Island with respect to the Coral Sea Islands is subject to the general operation of Part VII of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

 

Item 85 - Subsection 8(3)

 

208.                This item makes a consequential amendment to subsection 8(3) of the Coral Sea Islands Act 1969 . The effect of this amendment is to confirm the existing arrangements under which section 8 of that Act does not confer any jurisdiction on any courts with respect to matters arising under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 .

 

Criminal Code Act 1995

 

Item 86 - Dictionary in the Criminal Code (paragraphs (h) and (i) of the definition of Commonwealth judicial officer )

 

209.                This item makes a consequential amendment to the dictionary in the Criminal Code by amending the definition of ‘Commonwealth judicial officer’ to remove references to ‘the Territory of Norfolk Island’ in paragraphs (h) and (i) of this definition. The effect of this amendment will be to provide state or territory judicial officers who exercise jurisdiction or powers under laws in force in Norfolk Island with the equivalent status to state or territory judicial officers who exercise jurisdiction or powers under laws in force in the other external territories and the Jervis Bay Territory.

 

Designs Act 2003

 

Item 87 - At the end of section 84

 

210.                This item adds a new subsection 84(3) into the Designs Act 2003 . Section 84 deals with the jurisdiction under that Act of other prescribed courts, which include the Supreme Court of Norfolk Island, and this consequential amendment will clarify that the jurisdiction of the Supreme Court of Norfolk Island under this section is subject to section 60AA of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

 

Environment Protection (Sea Dumping) Act 1981

 

Item 88 - After subsection 33(4)

 

211.                This item adds a new subsection 33(4A) into the Environment Protection (Sea Dumping) Act 1981 . Section 33 deals with the jurisdiction under that Act of a prescribed state or territory court to grant an injunction, and this consequential amendment will clarify that any jurisdiction of the Supreme Court of Norfolk Island under this section is subject to section 60AA of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

 

Fisheries Management Act 1991

 

Item 89 - After subsection 54(5)

 

212.                This item inserts a new subsection 54(5A) into the Fisheries Management Act 1991 . Section 54 deals with the jurisdiction under that Act of a prescribed court to order a rectification of the register, and this consequential amendment will clarify that any jurisdiction of the Supreme Court of Norfolk Island under this section is subject to section 60AA of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

 

Olympic Insignia Protection Act 1987

 

Item 90 - At the end of section 68

 

213.                This item adds a new subsection 68(3) into the Olympic Insignia Protection Act 1987 . Section 68 deals with the jurisdiction under that Act of a prescribed court, and this consequential amendment will clarify that any jurisdiction of the Supreme Court of Norfolk Island under this section is subject to section 60AA of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

 

Patents Act 1990

 

Item 91 - At the end of section 155

 

214.                This item adds a new subsection 155(3) into the Patents Act 1990 . Section 155 deals with the jurisdiction under that Act of a prescribed court, and this consequential amendment will clarify that any jurisdiction of the Supreme Court of Norfolk Island under this section is subject to section 60AA of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

 

Trade Marks Act 1995

 

Item 92 - At the end of section 192

 

215.                This item adds a new subsection 192(4) into the Trade Marks Act 1995 . Section 192 deals with the jurisdiction under that Act of a prescribed court, and this consequential amendment will clarify that any jurisdiction of the Supreme Court of Norfolk Island under this section is subject to section 60AA of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

 

Division 3 - Application, saving and transitional provisions

 

Item 93 - Definitions

 

216.                This item contains a number of definitions for the purposes of this division, which contains the application, saving and transitional provisions dealing with the transfer of proceedings between the Norfolk Island courts and the courts of a prescribed state or territory.

 

217.                This item provides that, for the purposes of this division:

 

·          ‘Coroner’ has the same meaning as in the Coroners Act 1993 (NI)

·          ‘Court of Petty Sessions’ means the court established by section 5 of the Court of Petty Sessions Act 1960 (NI)

·          ‘judicial transition time’ is defined in item 96

·          ‘new law’ means the NI Act, as amended by Division 1 of Part 2 of this Bill

·          ‘new procedural provisions’ means section 60C and sections 60F to 60L of the NI Act, as amended by Division 1 of Part 3 of Schedule 1 to this Bill

·          ‘transition period’ is defined in item 95.

 

Item 94 - Application of procedural etc. laws of prescribed State or Territory

 

218.                This item is an application provision which provides that subsections 60AA(3) to (7) of the new law, which deal with court procedure and related matters, will also apply to a court exercising jurisdiction under this division with respect to the transfer of a new or pending proceeding from a Norfolk Island court to the court of a prescribed state or territory.

 

Item 95 - Application of certain procedural laws in transition period

 

219.                Subitem 95(1) is an application provision which provides that the new procedural provisions apply during the transition period, as if they were in force during that period, in relation to a court exercising jurisdiction under section 60AA of the new law or this division.

 

220.                Subitem 95(2) provides that the ‘transition period’ means the period starting on the day a state or territory is prescribed by the regulations for the purposes of subsection 60AA(1) of the new law; and ending immediately before the commencement of Part 3 of Schedule 1 to this Bill.

 

221.                The effect of this item is that section 60C and sections 60F to 60L of the NI Act, as amended by Division 1 of Part 3 of Schedule 1, which deals with a range of criminal procedural matters, will apply to the courts of a prescribed state or territory exercising jurisdiction under the new section 60AA of the NI Act or the provisions dealing with the transfer of proceedings under this division, before the actual commencement of Part 3 of Schedule 1.

 

Item 96 - Transfer of Supreme Court jurisdiction - new proceedings

 

222.                This item is a transitional provision which, subject to the Constitution, will transfer, at the ‘judicial transition time’, most of the jurisdiction of the Supreme Court of Norfolk Island to the Supreme Court of the prescribed state or territory or any other court of a prescribed state or territory prescribed for the purposes of subitem 96(4) (see subitem 3). The effect of this item is that, at the judicial transition time, being the time prescribed by the regulations for the purposes of this item (subitem 96(2)), the Supreme Court of Norfolk Island will not have any jurisdiction with respect to new matters and will only retain jurisdiction in relation to matters pending or completed before the judicial transition time (subitem 96(1)).

 

Item 97 - Transfer of Supreme Court jurisdiction - pending proceedings

 

223.                This item is a transitional provision which will enable the Supreme Court of Norfolk Island, after the judicial transition time, to transfer proceedings where it has retained jurisdiction, for instance in pending matters, to the Supreme Court of the prescribed state or territory or any other court of a prescribed state or territory prescribed for the purposes of subitem 96(4), as appropriate. Such matters must be transferred where requested by the parties to the proceedings (subitem 97(1)) and where the Supreme Court of Norfolk Island decides the transfer of the proceedings is not contrary to the interests of justice (subitems 97(2) and (4)).

 

Item 98 - Action to be taken before abolition of Supreme Court

 

224.                This item is a transitional provision which will provide for the transfer to the Supreme Court of the prescribed state or territory, or any other court of a prescribed state or territory prescribed for the purposes of subitem 96(4), as appropriate, of all the remaining proceedings of the Supreme Court of Norfolk Island (not already transferred under item 97) as soon as practicable once there is no longer a serving judge of the court. The machinery provisions of this item are similar to those of item 97, dealing with the transfer of court documents and any money lodged with the court.

 

Item 99 - Transfer of Court of Petty Sessions jurisdiction - new proceedings

 

225.                This item is a transitional provision which, subject to the Constitution, will transfer, at the ‘judicial transition time’, most of the jurisdiction of the Court of Petty Sessions of Norfolk Island to the Supreme Court of the prescribed state or territory or any other court of a prescribed state or territory prescribed for the purposes of subitem 99(3). The effect of this item is that, at the judicial transition time, being the time prescribed by the regulations for the purposes of this item (subitem 96(2)), the Court of Petty Sessions will not have any jurisdiction with respect to new matters and will only retain jurisdiction in relation to matters pending or completed before the judicial transition time (subitem 99(1)).

 

Item 100 - Transfer of Court of Petty Sessions jurisdiction - pending proceedings

 

226.                This item is a transitional provision which will enable the Court of Petty Sessions of Norfolk Island, after the judicial transition time, to transfer proceedings where it has retained jurisdiction, for instance pending matters, to the Supreme Court of the prescribed state or territory or any other court of a prescribed state or territory prescribed for the purposes of subitem 99(3), as appropriate. Such matters must be transferred where requested by the parties to the proceedings (subitem 100(1)) and where the Court of Petty Sessions decides the transfer of the proceedings is not contrary to the interests of justice (subitems 100(2) and (4)).

 

Item 101 - Action to be taken before abolition of Court of Petty Sessions

 

227.                This item is a transitional provision which will provide for the transfer to the Supreme Court of the prescribed state or territory, or any other court of a prescribed state or territory prescribed for the purposes of subitem 99(3), as appropriate, of all the remaining proceedings in the Court of Petty Sessions of Norfolk Island (not already transferred under item 100) as soon as practicable once there is no longer a serving magistrate of the court. The machinery provisions of this item are similar to those of item 100, dealing with the transfer of court documents and any money lodged with the court.

 

Item 102 - Court of Petty Sessions of Norfolk Island

 

228.                This item is a transitional provision which provides that an ordinance made under section 19A of the NI Act must not repeal the Court of Petty Sessions Act 1960 (NI) while any person holds office as a magistrate of the Court of Petty Sessions of Norfolk Island.

 

Item 103 - Norfolk Island Coroner’s Court

 

229.                This item is a transitional provision which provides that the Coroner of Norfolk Island must not begin an inquest or inquiry under the Coroners Act 1993 (NI) after the judicial transition time (subitems 103(1) and (2)). An ordinance made under section 19A of the NI Act must also not repeal the Coroners Act 1993 (NI) while any person holds office as Coroner or Deputy Coroner of Norfolk Island (subitem 103(3)).

 

Item 104 - Power to make Ordinances

 

230.                This item is an avoidance of doubt provision which provides that, subject to items 102 and 103, this division, does not, by implication, limit the matters that can otherwise be dealt with by an ordinance made under section 19A of the NI Act.

 

Part 3 - Supreme Court of Norfolk Island

 

231.                This part deals with the potential abolition of the Norfolk Island courts and the transfer of the jurisdiction of these courts to the courts of a prescribed state or territory. This part will commence on a date to be fixed by proclamation, but only when there are no longer any serving judges of the Supreme Court of Norfolk Island and the courts of a prescribed state or territory have jurisdiction with respect to Norfolk Island (that is, a state or territory has been prescribed by regulations made for the purposes of new subsection 60AA(1) of the NI Act; see item 81). It is likely to be a number of years before these provisions are utilised.

 

Division 1 - Amendments

 

Norfolk Island Act 1979

 

Item 105 - Subsection 4(1)

 

232.                This item repeals the definitions of ‘Chief Justice’, ‘civil matter’ and ‘host jurisdiction’ in subsection 4(1) of the NI Act. These definitions relate to the Supreme Court of Norfolk Island and their repeal is consequential to the repeal of the provisions in the NI Act providing for the establishment and operation of this court.

 

Item 106 - Subsection 4(1)

 

233.                This item inserts a new definition of ‘issuing officer’ into subsection 4(1) of the NI Act. A person is an ‘issuing officer’ for the purposes of issuing a warrant or a summons on the order, under the NI Act, of a court of a prescribed state or territory if the person is an officer of the court duly authorised by the court to issue the warrant or summons, or a magistrate of the prescribed state or territory. This amendment is consequential to the amendments made to the NI Act by this division.

 

Item 107 - Subsection 4(1)

 

234.                This item repeals the definitions of ‘judge’ and ‘Supreme Court’ in subsection 4(1) of the NI Act. These definitions relate to the Supreme Court of Norfolk Island and their repeal is consequential to the repeal of the provisions in the NI Act providing for the establishment and operation of this court.

 

Item 108 - Divisions 1 and 2 of Part VII

 

235.                This item repeals Divisions 1 and 2 of Part VII of the NI Act (as amended by Part 2 of Schedule 1 to this Bill), the provisions in this Act providing for the establishment and operation of the Supreme Court of Norfolk Island and the establishment of other courts and tribunals for Norfolk Island under enactment (sections 52 to 60 of the NI Act). The repeal of these provisions will effectively abolish the Supreme Court of Norfolk Island. Other Norfolk Island courts and tribunals, which are established under laws continued by section 16 or 16A of the NI Act, may be abolished by a section 19A ordinance (see also items 102, 103, 104 and 132).

 

Item 109 - Division 3 of Part VII (heading)

 

236.                This item repeals the heading to Division 3 of Part VII of the NI Act and is a consequential amendment to the repeal of Divisions 1 and 2 of Part VII by item 108 above.

 

Item 110 - Subdivision B of Division 1 of Part VIIA (heading)

 

237.                This item repeals the heading and substitutes a new heading to Subdivision B of Division 1 of Part VIIA of the NI Act, ‘ Subdivision B Hearing criminal matters in prescribed State or Territory , and is a consequential amendment to the amendments made to this subdivision by items 111 to 127 of Schedule 1 to this Bill.

 

Item 111 - Section 60B

 

238.                This item repeals section 60B of the NI Act. This provision deals with arrangements for the purposes of the Supreme Court of Norfolk Island sitting in its criminal jurisdiction in a state or territory (other than Norfolk Island) and its repeal is consequential to the abolition of the Supreme Court by the repeal of the provisions in this Act providing for its establishment and operation (see item 108).

 

Item 112 - Section 60C

 

239.                This item repeals existing section 60C of the NI Act and substitutes a new section 60C and deals with criminal trials in a court of a prescribed state or territory. This new section is based on the existing section 60C of the NI Act, which deals with the Supreme Court of Norfolk Island sitting outside Norfolk Island in its criminal jurisdiction.

 

240.                New subsection 60C(1) provides that, subject to this section, a court of a prescribed state or territory may, in exercising its criminal jurisdiction under the NI Act, sit in the prescribed state or territory if to do so would not be contrary to the interests of justice.

 

241.                New subsection 60C(2) provides that the court of a prescribed state or territory may, in accordance with new subsection 60C(3), order that any criminal trial be held or continued in the prescribed state or territory. If the trial has already begun in Norfolk Island, the order may provide for the jury (if any) to be discharged.

 

242.                New subsection 60C(3) clarifies that the court of a prescribed state or territory may make an order under subsection 60C(2) at any time after the prosecution of the accused for the offence commences and before the verdict is delivered; at a sitting in Norfolk Island or in the prescribed state or territory; and, if the court is sitting in the prescribed state or territory, whether or not the accused is present. Section 67 of the NI Act, as amended, will specifically authorise the making of regulations that prescribe circumstances in which the prosecution is taken to have commenced.

 

243.                New subsection 60C(4) provides that the court of the prescribed state or territory may only make an order under subsection 60C(2) if the court is satisfied that the interests of justice require it and, if the order is made in the prescribed state or territory in the absence of the accused person, only if the accused person is represented, and the court is satisfied that the accused person understands the effect of the order.

 

244.                New subsection 60C(5) provides that, where the court of a prescribed state or territory makes an order under subsection 60C(2), it may also order that the accused person be removed to the place specified in the order, and that all persons required to give evidence be summonsed to attend at that venue. Section 60F of the NI Act, as amended, makes further provision for the removal of the accused person.

 

Item 113 - Sections 60D and 60E

 

245.                This item repeals sections 60D and 60E of the NI Act. These sections regulate the use of juries in criminal trials heard before the Supreme Court of Norfolk Island when sitting outside Norfolk Island in its criminal jurisdiction and their repeal is consequential to the repeal of the provisions in the NI Act providing for the establishment and operation of this court. New subsection 60AA(4) of the NI Act, which applies section 68 of the Judiciary Act 1903 , with appropriate modifications, will instead apply the criminal procedure laws, including the relevant arrest, custody and bail laws, of the prescribed state or territory to a court of the prescribed state or territory exercising criminal jurisdiction under the NI Act.

Item 114 - Section 60F (heading)

 

246.                This item repeals the section heading and substitutes a new heading to section 60F of the NI Act, ‘Removal of accused to stand trial in prescribed State or Territory’, and is a consequential amendment to the amendments made to this section by items 115 and 116.

 

Item 115 - Subsections 60F(1) to (3)

 

247.                This item repeals and substitutes new subsections 60F(1) to (3) of the NI Act. These new subsections are based on the existing section 60F of the NI Act and will deal with the removal of an accused to stand trial in a prescribed state or territory when the court of a prescribed state or territory is exercising criminal jurisdiction under the NI Act.

 

Items 116 - Subsections 60F(4) and (5)

 

248.                This item amends subsections 60F(4) and (5) of the NI Act by substituting references to ‘host jurisdiction’ with references to ‘prescribed State or Territory’. These amendments are consequential to the amendments made to section 60F of the NI Act by item 115. Section 60F of the NI Act, as amended, will deal with the removal of an accused to stand trial in a prescribed state or territory when the court of a prescribed state or territory is exercising criminal jurisdiction under the NI Act.

 

Item 117 - Subsection 60G(1)

 

249.                This item repeals and substitutes new subsection 60G(1) of the NI Act. This new subsection is based on the existing subsection 60G(1) of the NI Act and will deal with the conveyance of an accused to court for the purposes of trial in a prescribed state or territory when the court of a prescribed state or territory is exercising criminal jurisdiction under the NI Act.

 

Item 118 - Subsection 60G(2)

 

250.                This item amends subsection 60G(2) by substituting a reference to ‘a judge of the Supreme Court’ with a reference to ‘a court’. This amendment is consequential to the amendment made to section 60G of the NI Act by item 117.

 

Item 119 - Subsection 60G(2)

 

251.                This item amends subsection 60G(2) by substituting a reference to ‘the Court’ with a reference to ‘the court’. This amendment is consequential to the amendment made to section 60G of the NI Act by item 117.

 

Item 120 - Section 60H

 

252.                This item repeals and substitutes new section 60H of the NI Act, ‘Return of accused to Norfolk Island for particular purposes’. This new section is based on existing subsection 60C(8) and section 60H of the NI Act and will deal with the return of an accused and, if before a jury, any empanelled jury, to Norfolk Island for particular purposes, when an accused is otherwise standing trial in a prescribed state or territory. The purposes for a return to Norfolk Island include the viewing of a place, taking evidence from a person, or a purpose prescribed in the regulations. The court of a prescribed state or territory may only make such an order if it is satisfied that the interests of justice require it.

 

Items 121 and 122 - Paragraphs 60J(1)(a) and 60J(2)(b)

 

253.                These items respectively amend paragraphs 60J(1)(a) and 60J(2)(b) of the NI Act by substituting references to ‘the Territory’, ‘the Supreme Court’, ‘host jurisdiction’ or ‘jurisdiction’ with references to ‘Norfolk Island’, ‘the prescribed State or Territory’ or ‘State or Territory’, as appropriate. Section 60J of the NI Act, as amended, will provide that a person convicted of an indictable offence under a law of Norfolk Island by the court of a prescribed state or territory sitting in the prescribed state or territory is taken to be a prisoner within the meaning of the Removal of Prisoners (Territories) Act 1923 and to have been removed to that state or territory under that Act.

 

Items 123 and 124 - Subsection 60K(1) and paragraph 60K(2)(b)

 

254.                These items respectively amend subsection 60K(1) and paragraph 60K(2)(b) of the NI Act by substituting references to ‘host jurisdiction’ or ‘jurisdiction’ with references to ‘the prescribed State or Territory’ or ‘State or Territory’, as appropriate. Section 60K of the NI Act, as amended, will provide that in certain circumstances during the course of criminal proceedings in a prescribed state or territory where a person is found or certified to have been, or be, ‘insane’ that they are taken to be a ‘criminal lunatic’ within the meaning of the Removal of Prisoners (Territories) Act 1923 and to have been removed to that state or territory under that Act. Consistent with the existing section 60K, the amended section uses the terminology used in that Act, even though these terms may not be used under the laws of Norfolk Island, including applied state or territory laws. Sections 9 and 10A of that Act provide for the detention of such a person and their eventual release.

 

Item 125 - Section 60L (heading)

 

255.                This item repeals and substitutes a new heading to section 60L of the NI Act, ‘Repatriation of person tried in prescribed State or Territory’, and is a consequential amendment to the amendments made to this Subdivision by items 126 and 127.

 

Items 126 - Paragraphs 60L(a) and (b)

 

256.                This item repeals and substitutes new paragraphs 60L(a) and (b) of the NI Act by substituting references to ‘host jurisdiction’ and ‘Supreme Court’ with references to ‘prescribed State or Territory’ and ‘a court of the prescribed State or Territory’, as appropriate. Section 60L of the NI Act, as amended, will provide for the return of a person who has been removed from Norfolk Island to a prescribed state or territory, if the person has been acquitted or is not liable to imprisonment at the conclusion of the trial. The Commonwealth is required, on application b y the person to the Secretary of the Department, to provide the person with means to enable their return to Norfolk I sland .

 

Item 127 - Section 60L

 

257.                This item amends section 60L of the NI Act by substituting a reference to ‘the Territory’ with ‘Norfolk Island’. This amendment is consequential to the amendments made to section 60L and paragraphs 60L(a) and (b) of the NI Act by items 125 and 126.

 

Item 128 - Division 2 of Part VIIA

 

258.                This item repeals Division 2 of Part VIIA of the NI Act. These provisions deal with the Supreme Court of Norfolk Island sitting in its civil jurisdiction in a state or territory (other than Norfolk Island) and its repeal is consequential to the abolition of the Supreme Court by the repeal of the provisions in this Act providing for its establishment and operation (see item 108).

 

Item 129 - Subsection 66(1)

 

259.                This item amends subsection 66(1) of the NI Act by substituting a reference to ‘a court of the Territory exercising criminal jurisdiction’ with a reference to ‘a court of a prescribed State or Territory exercising criminal jurisdiction in relation to Norfolk Island’. The effect of the amendment is that section 66, which deals with the granting of pardons, remissions or commutations of sentences by the Governor-General, will apply to criminal convictions in a court of a prescribed state or territory exercising criminal jurisdiction in relation to Norfolk Island.

 

Item 130 - Paragraph 67(a)

 

260.                This item amends paragraph 67(a) by substituting a reference to ‘subsection 60C(2)’ with a reference to ‘paragraph 60C(3)(a)’. This amendment is consequential to the repeal and substitution of section 60C of the NI Act by item 112. The effect of the amendment is that section 67, which deals with the making of regulations, will specifically authorise the making of regulations that prescribe circumstances in which the prosecution is taken to have commenced for the purposes of paragraph 60C(3)(a) of the NI Act.

 

Division 2 - Application, saving and transitional provisions

 

Item 131 - Definitions

 

261.                This item contains a number of definitions of terms used in this division, which contains the application, saving and transitional provisions dealing with the amendments to the NI Act made by Part 3 of Schedule 1 to this Bill.

 

262.                This item provides that, in this division, ‘commencement time’ means the time that Part 3 of Schedule 1 to the Bill commences; that ‘new law’ means the NI Act, as amended by Division 1 of Part 3 of Schedule 1 to the Bill; and that ‘old law’ means the NI Act , as in force immediately before the commencement time.

 

Item 132 - Saving - power to abolish tribunals

 

263.                This item is an application provision which avoids any doubt that the repeal of Division 2 of Part VII of the NI Act, which deals with the establishment of Norfolk Island tribunals, by Schedule 1 to this Bill does not prevent the abolition of a tribunal by an enactment made under the new law. This item applies to Norfolk Island tribunals established by or under an enactment before the commencement time.

 

Item 133 - Saving - hearing of criminal matters in host jurisdictions

 

264.                This item is a savings provision which provides that Subdivision B of Division 1 of Part VIIA of the old law, which deals with the Supreme Court of Norfolk Island sitting in its criminal jurisdiction in a state or territory (other than Norfolk Island), will continue to apply, unamended, in relation to any ongoing trials that are being, or have been, held in a host jurisdiction by the Supreme Court at the time the amendments to these provisions commence. This provision is intended to ensure there is consistency in the procedural laws which apply to any ongoing criminal trials which have not been finalised at the commencement time.

 

Item 134 - Saving - hearing of civil matters in host jurisdictions

 

265.                This item is a savings provision which provides that Division 2 of Part VIIA of the old law, which deals with the Supreme Court of Norfolk Island sitting in its civil jurisdiction in a state or territory (other than Norfolk Island), will continue to apply, unamended, in relation to any ongoing proceedings that are being, or have been, held in a host jurisdiction by the Supreme Court at the time the amendments to these provisions otherwise commence. This provision is intended to ensure there is consistency in the procedural laws which apply to any ongoing civil proceedings which have not been finalised at the commencement time.

 

Item 135 - Prosecutions for historical offences - continuity of regulations

 

266.                This item is a savings provision which provides that the amendment of section 67 of the NI Act made by this Part does not affect the continuity of regulations that were made for the purposes of that section and were in force immediately before the commencement of this item.

 

Item 136 - References to the Supreme Court of Norfolk Island

 

267.                This item is an application provision which provides that a reference in any Act, or in an instrument under any Act, to the Supreme Court of Norfolk Island is taken, after the commencement of this item, to be a reference to the Supreme Court of the prescribed state or territory.

 



 

SCHEDULE 2 - AMENDMENTS OF TREASURY ACTS

 

Part 1—Acts administered by ASIC

 

Division 1—Acts administered by ASIC: main amendments

 

ASIC Supervisory Cost Recovery Levy Act 2017

 

Item 1 - Section 3

 

268.                Item 1 removes an out-of-date reference to the Crown in right of Norfolk Island from section 3 of the ASIC Supervisory Cost Recovery Levy Act. This reference is removed because, following the commencement of amendments made to the NI Act by the Norfolk Island Legislation Amendment Act 2015 on 1 July 2016, this body politic no longer exists.

 

ASIC Supervisory Cost Recovery Levy (Collection) Act 2017

 

Item 2 - Subsection 4(1)

 

269.                Item 2 removes a reference to the Crown in right of Norfolk Island from subsection 4(1) of the ASIC Supervisory Cost Recovery Levy (Collection) Act for the reason noted above.

 

Australian Securities and Investments Commission Act 2001

 

270.                The Bill amends the ASIC Act to more fully extend its application to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

 

Item 3 - Subsections 4(1A) and (1B)

 

271.                Item 3 repeals subsections 4(1A) and (1B) of the ASIC Act. Subsections 4(1A) and (1B) provide that the ASIC Act does not apply in Norfolk Island, Christmas Island and the Cocos (Keeling) Islands, except where prescribed in the Regulations. Repealing these subsections, in conjunction with the other amendments made by the Bill, will allow the ASIC Act to more fully extend to apply on these islands.

 

Item 4 - Subsection 4(3)

 

272.                Item 4 makes consequential amendments to subsection 4(3) of the ASIC Act to ensure that certain terms that provide the basis of the application of the ASIC Act apply as intended where external territories are prescribed under paragraph 4(1)(c) of the ASIC Act. These amendments are made in the context of the extension of the application of the ASIC Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. In particular, it should be noted that those islands will not be treated as external territories for the purposes of the ASIC Act (see the definition of that expression inserted by item 6). Subsection 4(3) has also been modernised to enhance clarity and readability.

 

Items 5, 6, 7 and 8 - Subsection 5(1)

 

273.                Item 5 amends the existing definition of ‘Australia’ in subsection 5(1) of the ASIC Act so that it will include Norfolk Island. References to ‘Australia’ in the ASIC Act currently do not include Norfolk Island, because the expression ‘Australia’ currently takes its meaning from paragraph 17(a) of the Acts Interpretation Act, as in force on 1 January 2005. The 2005 version of that Act applies in relation to the ASIC Act due to section 5A of the ASIC Act.

 

274.                Item 6 inserts new definitions of the ‘Commonwealth’ and ‘external Territory’ into subsection 5(1) of the ASIC Act.

 

275.                References to the ‘Commonwealth’ in the ASIC Act currently do not include Norfolk Island, for the same reason noted above. Item 6 inserts a new definition of ‘Commonwealth’ into subsection 5(1) of the ASIC Act that specifically includes Norfolk Island.

 

276.                Item 6 also inserts a new definition of ‘external Territory’ into subsection 5(1) the ASIC Act. This definition is different to the concept of an ‘external Territory’ in most other Commonwealth laws. In particular, the new definition excludes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands, which are generally considered to be external territories by other laws of the Commonwealth.

 

277.                By contrast, after the amendments made by items 6 and 7, generally speaking, a territory referred to in section 122 of the Constitution will be considered by the ASIC Act to be either a ‘Territory’ or an ‘external Territory’. The majority of the provisions of the ASIC Act will apply to a ‘Territory’, but not to an ‘external Territory’.

 

278.                Item 7 makes corresponding amendments to the definition of ‘Territory’ in subsection 5(1) of the ASIC Act. Currently, the definition of ‘Territory’ captures the ‘Capital Territory’ and the Northern Territory, and, if used in a provision that applies to an ‘external Territory’, captures that external territory. The amendments made by item 7 provide for a ‘Territory’ to include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. As noted above, generally speaking, an external territory covered by the definition inserted by item 6 will not be captured as a territory.

 

279.                As a result of these amendments, Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will be treated as a ‘Territory’, and not as an ‘external Territory’, for the purposes of the ASIC Act. This is being done in order to simplify the extension of the ASIC Act to these islands. It also ensures these expressions have the same meaning across Treasury laws.

 

280.                It should be noted that, notwithstanding these amendments, regulations made for the purposes of section 4 of the ASIC Act will continue to be able to modify, in certain circumstances, the definition of ‘Territory’, and accordingly, the definition of ‘external Territory’ in those circumstances.

 

281.                Item 8 amends the definition of ‘this jurisdiction’ in subsection 5(1) of the ASIC Act. Subsection 4(1) of the ASIC Act provides that the Act applies in ‘this jurisdiction’. The current definition of ‘this jurisdiction’ in subsection 5(1) is limited to referring States, the ‘Capital Territory’ and the Northern Territory, and does not include Norfolk Island, Christmas Island and the Cocos (Keeling) Island. Item 8, in conjunction with the other amendments made by the Bill, more fully extends the application of the ASIC Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands, by amending the definition of ‘this jurisdiction’ to include each territory (as amended by item 7).

 

Item 9 - Subsection 12GNA(1)

 

282.                Item 9 amends subsection 12GNA(1) of the ASIC Act to refer to the revised concept of a territory, instead of specifically to the Australian Capital Territory and the Northern Territory. This ensures that professional standards laws in force in Norfolk Island, Christmas Island and the Cocos (Keeling) Islands limit occupational liability in relation to misleading and deceptive conduct. Generally, the professional standards laws applying in those islands will be laws of other states that are in force in those islands.

 

Item 10 - Paragraph 95(1)(a)

 

283.                Item 10 amends paragraph 95(1)(a) of the ASIC Act to clarify that ASIC is not required to establish a regional office on each of Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. However, the amendments do not operate to limit ASIC’s ability to establish a regional office on any of these islands if it chooses to do so under paragraph 95(1)(c) of the ASIC Act.

 

Item 11 - Subsection 127(2)

 

284.                Item 11 makes a consequential amendment to subsection 127(2) of the ASIC Act to refer to ‘Territory’, instead of to an ‘internal Territory’, to ensure ASIC is authorised to disclose information as required or permitted by a prescribed law of any territory to which the ASIC Act applies. This updates the terminology of this provision to be consistent with the changes to the application of the ASIC Act, and the changes to definitions explained above. Often, the laws of Norfolk Island, Christmas Island and the Cocos (Keeling) Islands covered by subsection 127(2) of the ASIC Act will be laws of other states that are in force in those islands.

 

Corporations Act 2001

 

285.                The Bill amends the Corporations Act to more fully extend its application to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

 

Items 12, 13 and 14 - Section 3

 

286.                Items 12, 13 and 14 amend section 3 of the Corporations Act to clarify the constitutional basis for the operation of that Act in Norfolk Island, Christmas Island and the Cocos (Keeling) Islands, given the extension of the application of that Act to those islands.

Item 15 - Paragraphs 5(1)(b) and (c)

 

287.                Item 15, in conjunction with other amendments made by the Bill, more fully extends the application of the Corporations Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. Subsection 5(3) of the Corporations Act currently provides that that Act applies in this jurisdiction. The definition of ‘this jurisdiction’ in section 9 does not currently include Norfolk Island, Christmas Island or the Cocos (Keeling) Islands. Amendments made by items 15, 31 and 32 in particular result in the definitions of ‘Territory’ and ‘this jurisdiction’ capturing those islands, and make a consequential amendment to subsection 5(1) to ensure the general territorial application of the Corporations Act to those islands.

 

Items 16 and 17

 

288.                Items 16 and 17 remove out-of-date references to the Crown in right of Norfolk Island from section 5A of the Corporations Act. These references are removed because, following the commencement of amendments made to the NI Act by the Norfolk Island Legislation Amendment Act 2015 on 1 July 2016, this body politic no longer exists.

 

Item 18 - Section 9 (definition of Australia )

 

289.                Item 18 amends the existing definition of ‘Australia’ in section 9 of the Corporations Act so that it will include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. The existing definition of ‘Australia’ in the Corporations Act provides that, when used in a geographical sense, Australia does not include an external territory, excluding these islands. Item 18 addresses this by making amendments to the definition of ‘Australia’ to include each territory (as amended by item 31), which will include these islands.

 

Item 19 - Section 9 (definition of Capital Territory )

 

290.                Item 19 repeals the definition of ‘Capital Territory’ from section 9 of the Corporations Act. This is because, following the amendments made by the Bill, the expression ‘Capital Territory’ is no longer used, and the full name of the Australian Capital Territory is referred to wherever necessary.

 

291.                The ‘Capital Territory’ was previously defined to include a reference to the Jervis Bay Territory. This effect is maintained notwithstanding the repeal of this definition because of section 80 of the Corporations Act.

 

Item 20 - Section 9

 

292.                Item 20 inserts a new definition of ‘Commonwealth’ into section 9 of the Corporations Act, to be consistent with the definition of ‘Australia’ as amended by item 18.

 

Items 21 and 22 - Section 9

 

293.                Items 21 and 22 amend the definition of ‘Corporations legislation’ in section 9 of the Corporations Act, to the extent that definition deals with rules of court. Item 21 replaces the reference to rules of court made by the Supreme Court of the ‘Capital Territory’ (given the repeal of the definition of that expression by item 19) with a reference to those rules made by the Supreme Court of the Australian Capital Territory. Item 22 includes a reference to rules of court applied by the Supreme Court of Norfolk Island (given the extension of the Corporations Act to that island).

 

Item 23 - Section 9

 

294.                Item 23 inserts a new definition of ‘external Territory’ into section 9 of the Corporations Act. This definition is different to the concept of an ‘external Territory’ in most other Commonwealth laws. In particular, the new definition excludes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands, which are generally considered to be external territories by other laws of the Commonwealth.

 

295.                By contrast, after the amendments made by items 23 and 31, generally speaking, a territory referred to in section 122 of the Constitution will be considered by the Corporations Act to be either a ‘Territory’ or an ‘external Territory’. The majority of the provisions of the Corporations Act will apply to a ‘Territory’, but not to an ‘external Territory’.

 

296.                As a result of these amendments, Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will be treated as a ‘Territory’, and not as an ‘external Territory’, for the purposes of the Corporations Act. This is being done in order to simplify the extension of the Corporations Act to these islands. It also ensures these expressions have the same meaning across Treasury laws.

 

Items 24, 25 and 26

 

297.                Items 24, 25 and 26 amend the definition of ‘insolvent under administration’ in section 9 of the Corporations Act to remove references to bankruptcy laws of an external territory. The definition of ‘insolvent under administration’ makes reference to persons who are bankrupt under the law of an external territory. The concept of an external territory will no longer include Norfolk Island, Christmas Island or the Cocos (Keeling) Islands, and the Bankruptcy applies, or will apply, in those islands. The references to bankruptcy laws of an external territory will now be redundant, as the remaining external territories do not have their own bankruptcy laws. As such, the Bill removes the references to ‘the law of an external Territory’ in the definition of ‘insolvent under administration’.

 

Item 27 - Section 9 (definition of national newspaper )

 

298.                Item 27 amends the definition of ‘national newspaper’ in section 9 of the Corporations Act to have the meaning given in new subsection 254Q(4A) of that Act (see item 35).

 

Items 28, 29 and 30

 

299.                The Bill makes a series of amendments to capture the Supreme Court of Norfolk Island in a number of court and court jurisdiction related provisions in the Corporations Act, given the extension of the application of that Act to Norfolk Island.

 

300.                Item 28 amends the definition of ‘rules’ in section 9 of the Corporations Act to include the rules of the Supreme Court of Norfolk Island.

 

301.                Items 29 and 30 amend the definitions of ‘State or Territory Court’ and ‘State or Territory Supreme Court’ in section 9 of the Corporations Act to include the Supreme Court of Norfolk Island.

 

302.                The Court of Petty Sessions of Norfolk Island will not be captured by the definition of ‘State or Territory Court’, as that court will not be conferred jurisdiction by the Corporations Act. The exclusion of the Court of Petty Sessions is not intended to apply in paragraph 12GJ(2)(d) of the ASIC Act, as it is intended that this definition does not apply in that context.

 

Item 31 - Section 9 (definition of Territory )

 

303.                Item 31 amends the definition of ‘Territory’ in section 9 of the Corporations Act. The definition of ‘Territory’ currently only captures the ‘Capital Territory’, the Northern Territory and an external territory. The amendments made by item 31 provide for a ‘Territory’ to include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. As noted above, generally speaking, an external territory covered by the definition inserted by item 23 will not be captured as a territory.

 

304.                After the amendments made by items 23 and 31, generally speaking, a territory referred to in section 122 of the Constitution will be considered by the Corporations Act to be either a ‘Territory’ or an ‘external Territory’. The majority of the provisions of the Corporations Act will apply to a ‘Territory’, but not to an ‘external Territory’.

 

305.                As a result of these amendments, Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will be treated as a ‘Territory’, and not as an ‘external Territory’, for the purposes of the Corporations Act. This is being done in order to simplify the extension of the Corporations Act to these islands. It also ensures these expressions have the same meaning across Treasury laws.

 

Item 32 - Section 9 (paragraphs (b) and (c) of the definition of this jurisdiction )

 

306.                Item 32 amends the definition of ‘this jurisdiction’ in section 9 of the Corporations Act to include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. The current definition of ‘this jurisdiction’ in section 9 does not include these islands. Subsection 5(3) of the Corporations Act provides that each provision of that Act applies in this jurisdiction. Accordingly, item 32, in conjunction with the other amendments made by the Bill, more fully extends the application of the Corporations Act to these islands by amending the definition of ‘this jurisdiction’ to include each territory (as amended by item 31).

 

307.                The definition of ‘this jurisdiction’ is restated in subsection 5(1) of the Corporations Act, and corresponding amendments are made to that provision by item 15.

 

Items 33, 34 and 35

 

308.                Items 33 and 34 amend subsections 254Q(3) and (4) of the Corporations Act. Those provisions require the advertisement of matters in a ‘daily newspaper circulating generally throughout Australia’ relating to certain forfeitures and sales of shares in no liability companies. The definition of ‘Australia’ is being amended to include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands, and there may not always be the same physically circulating newspaper on those islands and the remainder of Australia. Accordingly, the Bill makes amendments to allow advertising in a daily newspaper which is available online throughout Australia (including on those islands). This is done using the new concept of national newspaper inserted by item 35.

 

309.                Item 35 inserts a revised definition of ‘national newspaper’ into the Corporations Act to provide that a newspaper is considered national if it circulates generally in Australia, whether in printed form or online. Australia (as defined in section 9, and as amended by item 18) includes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. The definition of ‘national newspaper’ is also moved from section 9 to section 254Q of the Corporations Act (with a signpost inserted into section 9), as this is the only section where the definition is currently used in that Act.

 

Item 36 - section 527

 

310.                Item 36 makes a consequential amendment to section 527 of the Corporations Act to replace the reference to the ‘Capital Territory’ (given the repeal of the definition of that expression by item 19) with a reference to the Australian Capital Territory.

 

Items 37, 38 and 40

 

311.                Items 37, 38 and 40 make amendments to remove references to a court of an external territory from sections 581 and 916G of the Corporations Act. As Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will no longer be considered external territories for the purposes of the Corporations Act, these references are redundant because none of the remaining external territories have their own courts.

 

Item 39 - Paragraphs 900A(1)(b) and (c)

 

312.                Item 39 amends section 900A of the Corporations Act to clarify that Part 7.5A of that Act applies in relation to things connected with a territory, with an external territory, or with another place outside of Australia. These amendments clarify section 900A given the changes to the terminology made by the Bill.

 

Item 41 - Subsection 1044B(1)

 

313.                Item 41 amends subsection 1044B(1) of the Corporations Act to refer to the revised concept of a territory, instead of specifically to the Australian Capital Territory and the Northern Territory. This ensures that professional standards laws in force in Norfolk Island, Christmas Island and the Cocos (Keeling) Islands limit occupational liability in relation to misleading and deceptive conduct. Generally, the professional standards laws applying in those islands will be laws of other states that are in force in those islands.

 

Items 42, 43, 44, 45, 46 and 47

 

314.                Items 42 and 43, in conjunction with amendments to court definitions made by items 29 and 30, amend sections 1337B and 1337D to confer jurisdiction on the Supreme Court of Norfolk Island with respect to:

 

·          civil matters arising under the corporations legislation;

·          matters arising under the ADJR Act relating to decisions made under the corporations legislation; and

·          judicial review of decisions to prosecute, and of criminal justice process decisions, made by officers of the Commonwealth in the prosecution of (and associated appeals from) offences against the corporations legislation.

 

315.                Item 44 makes a consequential amendment to section 1337E of the Corporations Act to reflect changes to court definitions. Section 1337E will not confer jurisdiction on the Court of Petty Sessions of Norfolk Island, as that court will not be captured by the concept of a state or territory court.

 

316.                Item 45 amends section 1337F of the Corporations Act to ensure that an appeal may not be instituted from a decision of the Supreme Court of Norfolk Island to a court of a state or another territory.

 

317.                Item 46 amends section 1337P of the Corporations Act to remove references in that section to a court of an external territory. As Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will no longer be considered external territories for the purposes of the Corporations Act, these references are redundant as none of the remaining external territories have their own courts.

 

318.                Item 47 ensures that the rules of evidence of the Supreme Court of Norfolk Island can apply in the conduct of relevant proceedings under the corporations legislation.

 

319.                Item 48 amends section 1337T of the Corporations Act to replace references to the ‘Capital Territory’ (given the repeal of the definition of that expression by item 19) with references to the Australian Capital Territory.

 

Items 49, 50, 51, 52, 53, 54 and 55

 

320.                These items amend sections 1338B and 1338C of the Corporations Act to confer jurisdiction to the Supreme Court of Norfolk Island with respect to offenders or persons charged with offences against the corporations legislation. These items also make consequential amendments, including amendments to enhance clarity and readability.

 

321.                These provisions will not confer jurisdiction on the Court of Petty Sessions of Norfolk Island, as that court will not be captured by the concept of a state or territory Court.

 

National Consumer Credit Protection Act 2009

 

322.                The Bill amends the National Consumer Credit Protection Act to more fully extend its application to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

 

Item 56 - Subsection 5(1) (definition of Australia )

 

323.                Item 56 repeals the definition of ‘Australia’ from subsection 5(1) of the National Consumer Credit Protection Act. This definition currently excludes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. Repealing the definition will allow the definition in section 2B of the Acts Interpretation Act to apply, which includes these islands. This is necessary as part of extending the Act to apply on those islands.

 

Item 57 - Subsection 5(1) (definition of Territory )

 

324.                Item 57 amends the definition of ‘Territory’ in subsection 5(1) of the National Consumer Credit Protection Act. Subsection 21(1) of the National Consumer Credit Protection Act provides that that Act applies in this jurisdiction. Subsection 21(2) defines this jurisdiction as each referring state and each territory. ‘Territory’ currently means the Australian Capital Territory, the Northern Territory and the Jervis Bay Territory. The Bill amends the definition to include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. The amendment made by item 57 extends the application of the National Consumer Credit Protection Act to these islands.

 

Item 58 - Paragraph 73(10)(a)

 

325.                Item 58 amends paragraph 73(10)(a) of the National Consumer Credit Protection Act to remove a reference to a court of an external territory. Paragraph 73(10)(a) extends the application of subsection 73(8) to courts outside of this jurisdiction. As Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will no longer be considered as outside this jurisdiction for the purposes of the National Consumer Credit Protection Act, the reference to courts of an external territory in subsection 73(10) will now be redundant, given Australia’s remaining external territories do not have their own courts.

 

Items 59 and 60

 

326.                Item 59 amends section 187 of the National Consumer Credit Protection Act to confer jurisdiction on the Supreme Court of Norfolk Island in relation to civil matters arising under that Act. Item 60 amends section 189 of that Act to prevent appeals for matters arising under that Act from decisions of the Supreme Court of Norfolk Island to a court of a state or another territory, or to the Federal Circuit Court.

 

327.                These provisions will not confer jurisdiction on the Court of Petty Sessions of Norfolk Island.

 

Item 61 - After subsection 204(2)

 

328.                Item 61 amends section 204 of the National Consumer Credit Protection Act to ensure that only the Supreme Court of Norfolk Island is conferred with criminal jurisdiction in relation to persons charged with offences under that Act, and not a lower court of Norfolk Island (the Court of Petty Sessions).

 

Item 62 - Subsection 204(1) of the National Credit Code

 

329.                Item 62 repeals the definitions of ‘Australia’ and ‘Commonwealth’ from subsection 204(1) of the National Credit Code (in Schedule 1 to the National Consumer Credit Protection Act). These definitions currently exclude Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. Repealing these definitions will allow the definitions in section 2B of the Acts Interpretation Act to apply, which include these islands. This is necessary as part of extending the Act to apply on those islands.

 

Item 63 - Subsection 204(1) of the National Credit Code

 

330.                Item 63 inserts a definition of ‘Territory’ into the National Credit Code (in Schedule 1 to the National Consumer Credit Protection Act). The definition inserted by item 63 is identical to the definition that will apply to the primary provisions of that Act (as amended by item 57). This is done as part of applying the Code to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

 

Division 2—Acts administered by ASIC: transitional provisions

 

Australian Securities and Investments Commission Act 2001

 

Item 64 - In the appropriate position

 

331.                Item 64 inserts new Part 35 of the ASIC Act. New section 334 includes a transitional rule-making power for ASIC to aid in the application of the ASIC Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. Rules made under this power will take the form of legislative instruments, and will be subject to Parliamentary disallowance.

 

332.                The rules may deal with specified individuals and companies, or classes of individuals and companies. This will give ASIC the flexibility to deal with existing companies on a case-by-case or class basis, so as to manage the practical aspects of the changeover and help businesses to move successfully into the new regulatory environment. It will also enable ASIC to deal with unforeseen practical issues and unintended consequences as they become apparent without the need for further legislative action (which would delay the transition process).

 

333.                The power is limited. The rule-making power cannot be used to create an offence or a civil penalty, provide powers of arrest, detention, entry, search or seizure, impose a tax, appropriate the Consolidated Revenue Fund, or directly amend the text of the ASIC Act.

 

334.                Similar powers were conferred on the minister under Division 2 of Part 1 of Schedule 5 to the Territories Legislation Amendment Act.

 

335.                Due to the breadth of the rule-making power, new Part 35 of the ASIC Act will be automatically repealed by new section 335 of that Act after approximately one year. The rule-making power will self-repeal on the first Monday that occurs 12 months after the commencement of the substantive amendments to the ASIC Act. Any rules in force at the time this Part is repealed will be automatically repealed. This will ensure that the rule-making power is only used to address transitional issues, and is not an ongoing power that is available to alter the operation of the law.

 

Corporations Act 2001

 

Item 65 - In the appropriate position in Chapter 10

 

336.                Item 65 inserts new Part 10.51 into the Corporations Act, which makes transitional provision in relation to the amendments made by Schedule 2 of the Bill to extend the application of the Corporations Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

 

337.                Primarily, these provisions require ASIC to transfer the registration of corporations currently registered as companies under the Norfolk Island Companies Act to instead be registered under the Corporations Act.

 

338.                New section 1678 of the Corporations Act provides that a corporation will be eligible to be transferred if:

 

·          the corporation is a registered company under the Norfolk Island Companies Act, other than a foreign company registered under Part 25 of that Act (foreign companies will remain registered in their host jurisdiction);

·          the corporation is not a Chapter 5 body corporate (as defined in section 9 of the Corporations Act);

·          no application to wind up the corporation has been made to the Supreme Court of Norfolk Island that has not been dealt with;

·          no application to approve a compromise or arrangement between the corporation and another person has been made to the Supreme Court of Norfolk Island that has not been dealt with.

 

339.                New section 1678A of the Corporations Act will require ASIC to register each eligible corporation under Part 5B.1 of that Act. ASIC will be required to do this on the day the Corporations Act commences applying to Norfolk Island. Unlike the standard process in Part 5B.1, an application is not required for ASIC to register the eligible corporation (as an application will be deemed to have been made in accordance with section 601BC by the transitional provisions). ASIC will not have discretion whether or not to register any eligible corporation.

 

340.                However, the corporation must not be registered if, immediately before the Corporations Act commences applying to Norfolk Island, the corporation is no longer eligible (for example, because an application has been made in the Supreme Court of Norfolk Island for the corporation to be wound up).

 

341.                Part 5B.1 of the Corporations Act is well suited to the registration, under that Act, of existing corporations originally established under other laws. Importantly, it includes provisions that deal with maintaining the existing legal status of the corporation after it is registered as a company under the Corporations Act. For example, section 601BM of the Corporations Act provides that the registration of a company under Part 5B.1 does not create a new legal entity, affect the body’s existing property, rights or obligations, or render defective any legal proceedings by or against the body.

 

342.                ASIC must register the eligible corporation as the same type of corporation the eligible corporation was under the Norfolk Island Companies Act immediately before its registration under that Act. ASIC must register the corporation with the same characteristics and attributes as the corporation had immediately before its registration under the Corporations Act. The list of possible corporation types is provided in the Bill. Some of the types in this list do not correspond to the types generally available for registration under the Corporations Act (but relate to types that were available under the Norfolk Island Companies Act). This ensures that a Norfolk Island company’s type will not change when it is registered under the Corporations Act.

 

343.                After a company is registered under these provisions, a reference to a company registered under a territory law, or under a law of Norfolk Island, in this Act, in any other Act, or in any other instrument under an Act, will not include a reference to the company. This means that, after the transition, the law will treat the company as being a company registered under the Corporations Act, rather than as being a company registered under the Norfolk Island Companies Act.

 

344.                New section 1678B of the Corporations Act includes processes and other provisions related to the registration of an eligible corporation under Part 5B.1 of that Act, as required by new section 1678A of that Act.

 

345.                Firstly, upon registering the company, ASIC must:

 

·         give the company an ACN;

·         issue a certificate that states;

-       the company’s name;

-       the company’s ACN;

-       the company’s type;

-       that the company is registered as a company under the Corporations Act;

-       that the company is taken to be registered in Norfolk Island; and

-       the date of the company’s registration.

 

346.                The certificate is of the same effect as certificates issued for other companies registered under the Corporations Act.

 

347.                ASIC must register the company with a name consisting of either:

 

·         the corporation’s name immediately before commencement; or

·         if that name is unacceptable for registration because of regulations made under paragraph 147(1)(c) of the Corporations Act—the expression ‘Australian Company Number’ followed by the company’s ACN; and

·         the words required by subsections 148(2) or (3), that is, the word ‘Limited’ for a limited public company, the words ‘Proprietary Limited’ for a limited proprietary company, or the word ‘Proprietary’ for unlimited proprietary company.

 

348.                A corporation will be registered with its existing name (as long as that is not unacceptable for registration) even if it is identical or nearly identical to the name of another body or entity already registered or reserved under the Corporations Act or the Business Names Registration Act 2011 (or its transitional Act).

 

349.                The registration of a Norfolk Island company with such a name also will not affect the availability of that name to those other bodies or entities. This means, for example, that any company that already has a name identical to the name of a Norfolk Island company will also be able to continue to retain its existing name.

 

350.                The company’s constitution upon registration is the memorandum and articles of association of the corporation as immediately before registration.

 

351.                Existing section 601BH of the Corporations Act will require the company to modify its constitution within 3 months after registration to give effect to its registration under Part 5B.1. This will ensure that the company’s constitution complies with the requirements of the Corporations Act, where they differ from the Norfolk Island Companies Act.

 

352.                If a person who is a director of an eligible corporation does not meet the requirements of section 201B of the Corporations Act (that is, be an individual who is at least 18 years old, and who has not been disqualified from managing corporations), that person does not become a director of the company when its registration takes effect under that Act.

 

353.                A person disqualified from managing corporations may remain a director when the company is registered under the Corporations Act if, at the time of registration, the person has been granted permission by ASIC under section 206GAB or been granted leave by the Court under section 206G.

 

354.                A body corporate will not be able to remain as a director of a Norfolk Island company upon transition of the company’s registration to the Corporations Act.

 

355.                New section 1678C of the Corporations Act makes provision to ensure that ASIC has sufficient information to register an eligible corporation under Part 5B.1 of that Act, as required by new section 1678A of that Act.

 

356.                Firstly, for the purposes of ASIC performing its functions or duties or exercising its powers to transfer the registration of companies from the Norfolk Island Companies Act to the Corporations Act:

 

·         the Registrar of Companies under the Norfolk Island Companies Act may disclose to ASIC information (including personal information) obtained for the purposes of that Act; and

·         ASIC may record or use information disclosed; and

·         ASIC may similarly disclose to the Registrar of Companies information; and

·         the Norfolk Island Registrar may record or use the information disclosed.

 

357.                Secondly, ASIC may, by giving written notice to an eligible corporation, request the corporation to provide any specified information in relation to the registration of the corporation under the Corporations Act. The eligible corporation is authorised to disclose the requested information (including personal information) to ASIC and ASIC may record or use the information the eligible corporation discloses.

 

358.                These provisions authorise the use and disclosure of personal information for the purposes of the Privacy Act and other laws (including the common law).

 

359.                New section 1678D includes a transitional rule-making power for ASIC to aid in the application of the Corporations Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. This includes the ability to make rules about:

 

·         the relationship between the application of the Corporations Act to those islands and the amendments of this and any other Act made by the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 (including providing for the new Commonwealth Registrar to exercise powers, or perform functions, of ASIC under new Part 10.51 of the Corporations Act); and

·         the registration of a particular corporation or corporations under Part 5B.1 of the Corporations Act, as required by new Part 10.51 of that Act; and

·         if the Norfolk Island Companies Act is repealed—the repeal of that Act.

 

360.                Rules relating to the registration of particular corporations will give ASIC the flexibility to deal with particular issues arising in relation to existing companies on a case-by-case or class basis. This will enable ASIC to manage the practical aspects of the transition and help businesses to move successfully into the new regulatory environment. It will also enable ASIC to deal with unforeseen practical issues and unintended consequences as they become apparent without the need for further primary legislative amendments (which would delay the transition process).

 

361.                The rule-making power cannot be used to create an offence or a civil penalty, provide powers of arrest, detention, entry, search or seizure, impose a tax, appropriate the Consolidated Revenue Fund or directly amend the text of the Corporations Act.

 

362.                Similar powers were conferred on the minister under Division 2 of Part 1 of Schedule 5 to the Territories Legislation Amendment Act.

 

363.                Due to the breadth of the rule-making power, it will be automatically repealed after approximately one year. The rule-making power will self-repeal on the first Monday that occurs 12 months after the commencement of the substantive amendments to the Corporations Act. Any rules in force at the time this Part is repealed will automatically be repealed. This will ensure that the rule-making power is only used to address transitional issues, and is not an ongoing power that is available to alter the operation of the law.

 

364.                However, new section 1678E of the Corporations Act can save rules that relate to the registration of a particular corporation or corporations for a period beyond the repeal of section 1678D. Such rules may remain in force for up to two years after the commencement of the substantive amendments to the Corporations Act, which is approximately 12 months after the repeal of section 1678D of that Act. Section 1678D requires each rule relating to a particular corporation to specify the period during which it is to remain in force. Such a rule will remain in force for the specified period, unless it is repealed beforehand.

 

365.                The extended period for rules relating to the registration of particular corporations is necessary to enable an orderly assessment to be conducted of whether more permanent arrangements may be required in respect of the issues that have arisen in the course of transition of those companies’ registration.

 

366.                New section 1678F of the Corporations Act inserts a transitional application period for existing directors and other eligible officers of Norfolk Island companies to obtain a director identification number after the company’s registration is transferred to the Corporations Act.

 

367.                Due to new section 1272C of the Corporations Act, to be inserted by Schedule 2 to the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 , directors and other eligible officers of companies will be required to have a director identification number. Schedule 2 to that Act also inserts new section 1653 into the Corporations Act, which includes a transitional application period for persons who are eligible officers before an ‘application day’, to give sufficient time for those officers to apply for a director identification number.

 

368.                As it is possible that the substantive amendments to the Corporations Act made by the Bill will commence on or after the application day referred to in section 1653, new section 1678F provides an alternative transitional application period in relation to existing directors and other eligible officers of Norfolk Island companies transitioning to the Corporations Act. This transitional period applies to a person who:

 

·         is not an eligible officer immediately before commencement of the application of the Corporations Act to Norfolk Island; and

·         becomes an eligible officer because of the registration of a Norfolk Island company due to new Part 10.51 of that Act.

 

369.                This transitional provision is intended to mirror subsection 1653(2) of the Corporations Act. Section 1678F applies if the Corporations Act starts applying to Norfolk Island after the application day referred to in section 1653. In such a case, subsection 1653(2) will not cover a person first becoming an eligible officer due to the transition of a company from the Norfolk Island Companies Act to the Corporations Act (because the person would not be an eligible officer immediately before the application day). If the application day instead occurs after this transition, section 1678F will not apply in relation to these Norfolk Island company directors and officers, and subsection 1653(2) will instead apply.

 

370.                The minister is empowered to make a legislative instrument which specifies the transitional application period for new section 1678F. During the transitional application period, individuals who become eligible officers because of the registration of a Norfolk Island company can apply for a director identification number without contravening section 1272C. Until such a period is determined, section 1272C of the Corporations Act will not apply in relation to the eligible officer.

 

371.                As noted above, a small number of Norfolk Island companies may be ineligible to transition from being registered under the Norfolk Island Companies Act to the Corporations Act. This may occur, for example, if there is an application to wind up the company immediately before the Corporations Act starts to apply to Norfolk Island. If such a company remains registered under the Norfolk Island Companies Act after that time, the company may become a registrable Australian body for the purposes of the Corporations Act (as defined in section 9 of the Corporations Act). The Corporations Act applies certain requirements to registrable Australian bodies, noting particularly that the company may need to be registered under Part 5B.2 in order to carry on business within this jurisdiction but outside of Norfolk Island (see section 601CA). Rules under section 1678D are also able to make provision in relation to the registration of companies that later become eligible.

 

National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009

 

Item 66 - In the appropriate position

 

372.                Item 66 inserts new Schedule 18 into the National Consumer Credit Protection (Transitional and Consequential Provisions) Act. New item 1 of that Schedule includes a transitional rule-making power for ASIC to aid in the application of the National Consumer Credit Protection Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. Rules made under this power will take the form of legislative instruments, and will be subject to Parliamentary disallowance.

 

373.                The rules may deal with specified individuals and companies, or classes of individuals and companies. This will give ASIC the flexibility to deal with existing companies on a case-by-case or class basis, so as to manage the practical aspects of the changeover and help businesses to move successfully into the new regulatory environment. It will also enable ASIC to deal with unforeseen practical issues and unintended consequences as they become apparent without the need for further legislative action (which would delay the transition process). The power is limited. The rule-making power cannot be used to create an offence or a civil penalty, provide powers of arrest, detention, entry, search or seizure, impose a tax, appropriate the Consolidated Revenue Fund or directly amend the text of the National Consumer Credit Protection Act.

 

374.                Similar powers were conferred on the minister under Division 2 of Part 1 of Schedule 5 to the Territories Legislation Amendment Act.

 

375.                Due to the breadth of the rule-making power, new Schedule 18 will be automatically repealed by item 2 of that Schedule after approximately one year. The rule-making power will self-repeal on the first Monday that occurs 12 months after the commencement of the substantive amendments to the National Consumer Credit Protection Act. Any rules in force at the time this power is repealed will be automatically repealed. This will ensure that the rule-making power is only used to address transitional issues, and is not an ongoing power that is available to alter the operation of the law.

 

Part 2—Other Treasury Acts

 

Competition and Consumer Act 2010

 

376.                The Bill amends the Competition and Consumer Act to more fully extend its application to Norfolk Island. The Act already has some application to Norfolk Island, and already applies to Christmas Island and the Cocos (Keeling) Islands. However, several provisions in the Act do not apply to Norfolk Island such as those that apply in relation to a territory.

 

Items 67 to 69 - Subsection 4(1) (definition of authority )

 

377.                Items 67 to 69 amend the definitions of ‘authority’ and ‘authority of the Commonwealth’ in subsection 4(1) of the Competition and Consumer Act. The amendment in item 67 is consequential to the changes to the meaning of external territory and of territory made by items 70 and 71. The amendments in items 68 and 69 include a note to refer readers to alternative definitions of ‘State or Territory authority’ and ‘authority of the Commonwealth’ for the purposes of Part VIIA of the Competition and Consumer Act in section 95A of that Act.

 

Items 70 and 71 - Subsection 4(1)

 

378.                Item 70 inserts a new definition of ‘external Territory ’ into subsection 4(1) of the Competition and Consumer Act. Currently, the Competition and Consumer Act does not currently define ‘external Territory’. As a result, section 2B of the Acts Interpretation Act applies and provides that Norfolk Island, Christmas Island and the Cocos (Keeling) Islands are external territories under the Competition and Consumer Act.

 

379.                The new definition of ‘external Territory’ is different to the concept of an ‘external Territory’ in most other Commonwealth laws. In particular, the new definition will exclude Norfolk Island, Christmas Island and the Cocos (Keeling Islands), which are generally considered to be external territories by other laws of the Commonwealth.

 

380.                By contrast, after the amendments made by items 70 and 71, generally speaking, a territory referred to in section 122 of the Constitution will be considered by the Competition and Consumer Act to be either a ‘Territory’ or an ‘external Territory’. Provisions that determine the application of the Competition and Consumer Act often apply with respect to a ‘Territory’ (see, for example, section 6 of that Act), in addition to the application of provisions of the Act in other respects (for example, in relation to constitutional corporations).

 

381.                Item 71 makes corresponding amendments to the definition of ‘Territory’ in subsection 4(1) of the Competition and Consumer Act, so that expression includes Norfolk Island. The definition of ‘Territory’ currently includes Christmas Island and the Cocos (Keeling) Islands, but not Norfolk Island. As noted above, this definition is key to the application provisions of a number of parts of the Competition and Consumer Act, and this amendment ensures Norfolk Island is captured within these application provisions.

 

382.                As a result of these amendments, Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will be treated as a ‘Territory’, and not as an ‘external Territory’, for the purposes of the Competition and Consumer Act. This is being done in order to simplify the extension of the Competition and Consumer Act to these islands. It also ensures these expressions have the same meaning across Treasury laws.

 

Item 72 - Paragraph 4N(1)(b)

 

383.                Item 72 amends section 4N of the Competition and Consumer Act to preserve the existing application of Part IIIA of the Competition and Consumer Act (about access to services) following the changes to the definition of ‘external Territory’. Section 4N already extends Part IIIA to all of Australia’s external territories. As Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will no longer fall within the definition of ‘external Territory’ in the Competition and Consumer Act, without amendment to paragraph 4N(1)(b), section 4N would cease to apply to the offshore areas of those islands. To address this, the Bill amends paragraph 4N(1)(b) so that the offshore area of a territory is captured. This amendment ensures that section 4N will continue to apply Part IIIA to the offshore areas of Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

 

Items 73 and 74 - Subsection 95A(1)

 

384.                Item 73 amends the definition of ‘Commonwealth authority’ in subsection 95A(1) of the Competition and Consumer Act to include authorities under laws in force on Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

 

385.                Item 74 repeals the definition of a ‘law of the Commonwealth’ in subsection 95A(1) of the Competition and Consumer Act. The definition is redundant as a result of the amendments to the definition of ‘Commonwealth authority’ made by item 73.

 

Item 75, 76, 77 and 78 - Section 95C

 

386.                These items amend section 95C of the Competition and Consumer Act to ensure that Part VIIA of that Act applies on Norfolk Island. Part VIIA of that Act provides mechanisms for the Australian Competition and Consumer Commission (ACCC) to monitor, and conduct inquiries into, the prices of goods and services, and intervene to restrict price increases.

 

387.                Section 95C of the Competition and Consumer Act sets the scope of application of Part VIIA of that Act. Relevantly, section 95C provides that Part VIIA applies in relation to the supply of goods and services on Christmas Island and the Cocos (Keeling) Islands, and in relation to trade and commence between those islands and other states and territories. However, Norfolk Island is not captured by section 95C in these respects, and certain supplies of goods and services in relation to Norfolk Island are excluded by subsection 95C(2). Items 75 to 78 repeal subsection 95C(2), and amend subsection 95C(1) to include Norfolk Island in the same respects as Christmas Island and the Cocos (Keeling) Islands. The amendments also simplify the drafting of paragraphs 95C(1)(f) and (g) as a result of the amendment to the definition of ‘Territory’ made by item 71.

 

Item 79 - Subsection 137(1)

 

388.                Item 79 amends subsection 137(1) of the Competition and Consumer Act to refer to the revised concept of a territory, instead of specifically to the Australian Capital Territory and the Northern Territory. This ensures that professional standards laws in force in Norfolk Island, Christmas Island and the Cocos (Keeling) Islands limit occupational liability in relation to misleading and deceptive conduct. Generally, the professional standards laws applying in those islands will be laws of other states that are in force in those islands.

 

Cross-Border Insolvency Act 2008

 

389.                The Bill amends the Cross-Border Insolvency Act to extend its application to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

 

Item 80 - Section 4

 

390.                Item 80 repeals section 4 of the Cross-Border Insolvency Act, which currently operates to exclude that Act from extending to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

Item 81 - Subsection 5(1) (definition of Australia )

 

391.                Item 81 repeals the definition of ‘Australia’ from subsection 5(1) of the Cross-Border Insolvency Act. Section 6 of that Act provides that the Model Law on Cross-Border Insolvency has force of law in Australia. However, subsection 5(1) of that Act provides that ‘Australia’ does not include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

 

392.                After the repeal of the definition of ‘Australia’, the standard definition in section 2B of the Acts Interpretation Act will apply instead, which includes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. This amendment ensures the Model Law will apply in those islands.

 

Item 82 - Subsection 5(1)

 

393.                Item 82 inserts a new signpost definition into section 5 of the Cross-Border Insolvency Act to direct readers to the new definition of ‘external Territory’ inserted into section 19 of that Act by item 85.

 

Items 83 and 84 - Section 7

 

394.                Items 83 and 84 amend section 7 of the Cross-Border Insolvency Act. Subsection 7(1) provides that a reference in the Model Law to ‘this State’ is a reference to Australia. However, currently, subsection 7(2) excludes an external territory from the reference to Australia in subsection 7(1).

 

395.                Item 84 repeals subsection 7(2) and the associated note so that the definition of ‘Australia’ is drawn from section 2B of the Acts Interpretation Act, which includes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. This ensures a reference to Australia in the Model Law will encompass those islands. Item 83 makes a consequential amendment to renumber subsection 7(1) of that Act as section 7 (without any subsections).

 

Item 85 - At the end of section 19

 

396.                Item 85 inserts a new definition of ‘external Territory’ into section 19 of the Cross-Border Insolvency Act. Currently, as there is no definition of ‘external Territory’ in the Cross-Border Insolvency Act, the term is drawn from section 2B of the Acts Interpretation Act, which includes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. Item 85 ensures that the Cross-Border Insolvency Act includes, in references in the Model Law to ‘laws of this State’, references to the laws of those islands. It does this by excluding those islands from the definition of ‘external Territory’ inserted into section 19 of that Act.

 

Part 3—Contingent amendments

 

National Consumer Credit Protection Act 2009

 

Item 86 - Section 189 (table item 6)

 

397.                Item 86 amends table item 6 of section 189 of the National Consumer Credit Protection Act. Table item 6 of section 189 is inserted by item 60 of Schedule 2 to the Bill. Item 607 of Schedule 2 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020 (Federal Circuit and Family Court Act), if enacted, will provide that any reference to the ‘Federal Circuit Court’ in section 189 of the National Consumer Credit Protection Act is substituted with a reference to the ‘Federal Circuit and Family Court of Australia (Division 2)’. This contingent amendment ensures that, if the Federal Circuit and Family Court Act commences, the table item will be amended to refer to the correct court.

 



 

SCHEDULE 3 - AMENDMENTS OF ATTORNEY-GENERAL’S DEPARTMENT ACTS

 

Part 1 - Bankruptcy

 

Division 1 - Amendments

 

Bankruptcy Act 1966

 

Item 1 - Subsection 5(1) (definition of Australia)

 

398.                This item will repeal the definition of ‘Australia’ in subsection 5(1) of the Bankruptcy Act. The existing definition provides that the term ‘Australia’, when used in the geographical sense, does not include Norfolk Island. The effect of repealing the definition is that the definition of ‘Australia’ in the Acts Interpretation Act will apply to the Bankruptcy Act. As a result, all references to ‘Australia’ in the Bankruptcy Act will include Norfolk Island.

 

Item 2 - Subsection 5(1)

 

399.                This item will insert new definitions of ‘authority’ and ‘law’ in subsection 5(1) of the Bankruptcy Act.

 

400.                The term ‘authority’, in relation to a territory, is defined as an authority established by or under a law of the territory. This includes the holder of an office that is established by or under a law of the territory. By capturing the new definition of ‘law’ in relation to a territory, this amendment is intended to ensure that references to ‘authority’ in the Bankruptcy Act capture authorities of external territories, including those operating under applied laws.

 

401.                The term ‘law’, in relation to a territory, is defined to mean a law in force in the territory. The example provides that a ‘law’ in relation to a territory includes applied laws of a state or other territory. This new definition is intended to ensure that references to the ‘law’ of a territory in the Bankruptcy Act include the laws of external territories, including applied state or territory laws.

 

Item 3 - Subsection 5(1) (definitions of Territory and Territory of the Commonwealth )

 

402.                This item will repeal the definitions of ‘Territory’ and ‘Territory of the Commonwealth’ in subsection 5(1) of the Bankruptcy Act. The existing definition of ‘Territory’ provides that, except in the expression ‘Territory of the Commonwealth’, the term ‘Territory’ means the Australian Capital Territory and Northern Territory. The existing definition of ‘Territory of the Commonwealth’ is a territory referred to in section 122 of the Constitution, other than Norfolk Island.

 

403.                The result of repealing these definitions is that the definitions of ‘Territory’ and ‘Territory of the Commonwealth’ in the Acts Interpretation Act will apply to the Bankruptcy Act. As a result, all references to ‘Territory’ and ‘Territory of the Commonwealth’ in the Bankruptcy Act will mean a territory referred to in section 122 of the Constitution. As a result, any reference to a territory in the Bankruptcy Act will consistently have the same application for Norfolk Island and other external territories as it does for the Australian Capital Territory and the Northern Territory. For consistency, further consequential amendments are made to change all existing references in the Bankruptcy Act to a ‘Territory of the Commonwealth’ to be references to a ‘Territory’ (see items 4, 5, 7, 9, 11 and 12).

 

Item 4 - Paragraph 7(2)(b)

 

404.                This item will omit the words ‘, or of a Territory of the Commonwealth’ in subsection 7(2)(b) of the Bankruptcy Act and substitute ‘or of a Territory’. This amendment is consequential to the repeal of the definitions of ‘Territory’ and ‘Territory of the Commonwealth’ by item 3. It is intended to ensure that the references to partnership and association laws in subsection 7(2)(b) apply to Norfolk Island in the same way as they apply to other territories.

 

Item 5 - Section 9A

 

405.                This item will repeal section 9A of the Bankruptcy Act. Section 9A provides that the Bankruptcy Act does not extend to Norfolk Island. Repealing section 9A will ensure that the Bankruptcy Act extends to Norfolk Island.

 

Item 6 - Subsection 20D(8) (paragraph (e) of the definition of public securities )

 

406.                This item will omit the words ‘of the Commonwealth’ in paragraph (e) of the definition of ‘public securities’ in subsection 20D(8) of the Bankruptcy Act. This amendment is consequential to the repeal of the definitions of ‘Territory’ and ‘Territory of the Commonwealth’ by item 3. This amendment is intended to ensure that the definition of public securities applies to Norfolk Island in the same way as it applies to other territories.

 

Item 7 - Subsection 54H(1)

 

407.                This item will omit ‘, or of a Territory of the Commonwealth’ and substitute ‘or of a Territory’ in subsection 54H(1) of the Bankruptcy Act. This amendment is consequential to the repeal of the definitions of ‘Territory’ and ‘Territory of the Commonwealth’ by item 3. This amendment is intended to ensure that the reference to laws entitling a person to retain or deduct money payable or owing applies to Norfolk Island in the same way as it applies to other territories.

 

Item 8 - Subsection 128(2)

 

408.                This item will insert the words ‘or authority’ after ‘officer’ in subsection 128(2) of the Bankruptcy Act. This item is intended to capture Norfolk Island office holders, who will be included under the new definition of ‘authority’ in item 2. This item therefore ensures that a trustee can file a memorandum claiming property under subsection 128(2) of the Bankruptcy Act with relevant authorities and office holders on Norfolk Island, including those operating under applied laws.

 

Item 9 - Paragraph 139G(1)(b)

 

409.                This item will omit ‘, or of a Territory of the Commonwealth’ and substitute ‘or of a Territory’ in paragraph 139G(1)(b) of the Bankruptcy Act. This amendment is consequential to the repeal of the definitions of ‘Territory’ and ‘Territory of the Commonwealth’ by item 3. This item is intended to ensure that the reference to laws requiring the registration of the creation, transfer or transmission of estates in property applies to Norfolk Island in the same way as it applies to other territories.

 

Item 10 - Subsections 139ZN(4) and (5) and 139ZR(4) and (5)

 

410.                This item will insert the words ‘or authority’ after ‘officer’ in subsections 139ZN(4) and (5) and 139ZR(4) and (5) of the Bankruptcy Act. This item is intended to capture Norfolk Island office holders, who will be included in the new definition of ‘authority’ in item 2. This item therefore ensures that the Official Receiver can lodge and have registered a certificate relating to a charge over property under sections 139ZN and 139ZR with relevant authorities and office holders on Norfolk Island, including those operating under applied laws.

 

Item 11 - Subsection 262(2)

 

411.                This item will omit the words ‘Territories of the Commonwealth’ and substitute ‘Territories’ in subsection 262(2) of the Bankruptcy Act. This amendment is consequential to the repeal of the definitions of ‘Territory’ and ‘Territory of the Commonwealth’ by item 3. This item is intended to ensure that provisions relating to the swearing of affidavits in section 262 apply to Norfolk Island in the same way as they apply to other territories.

 

Item 12 - Amendments of listed provisions - Territory of the Commonwealth

 

412.                This item will omit the words ‘Territory of the Commonwealth’ and substitute ‘Territory’ in the below provisions of the Bankruptcy Act:

·          paragraph (b) of the definition of ‘company’ in subsection 5(1)

·          paragraph (c) of the definition of ‘magistrate’ in subsection 5(1)

·          paragraph (a) of the definition of ‘maintenance order’ in subsection 5(1)

·          subsections 20D(6) and (7)

·          subparagraph (b)(iv) of the definition of ‘public securities’ in subsection 20D(8)

·          paragraph (c) of the definition of ‘public securities’ in subsection 20D(8)

·          subsections 58(2), 59(5), 74(7) and 91(5)

·          the definition of ‘charge’ in subsection 118(12)

·          subsections 122(4A) and 128(1)

·          paragraph 129(4A)(a)

·          subsections 132(3) and 133(1) and (3)

·          paragraph 133(11)(a)

·          subsections 136(2) and 139(2)

·          sub-subparagraph (b)(iv)(A) of the definition of ‘income’ in subsection 139L(1)

·          subparagraph 153(2)(a)(ii)

·          paragraph 185F(1)(c)

·          subsections 220(6), 249(2), 250(5) and 262(1), and

·          paragraph 262(2)(a).

 

413.                These amendments are consequential to the repeal of the definitions of ‘Territory’ and ‘Territory of the Commonwealth’ by item 3. This item is intended to ensure that the references in the provisions to various laws, officers, bodies and other authorities of a territory apply to Norfolk Island in the same way as they apply to other territories.

 

Division 2 - Application and transitional provisions

 

Item 13 - Definitions

 

414.                This item will provide the following definitions that are used in Division 1 of this Part, which contains the application, saving and transitional provisions dealing with the amendments to the Bankruptcy Act:

 

·          ‘Commonwealth Bankruptcy Act’ is defined as the Bankruptcy Act, as amended by Division 1 of Part 1 of Schedule 3

·          ‘Commonwealth Official Trustee’ is defined as the Official Trustee within the meaning of the Commonwealth Bankruptcy Act

·          ‘Norfolk Island Bankruptcy Act’ is defined as the Bankruptcy Act 2006 (NI)

·          ‘Norfolk Island official trustee’ is defined as the official trustee, within the meaning of the Norfolk Island Bankruptcy Act as in force immediately before the transition time

·          ‘transitional bankrupt’ is defined as having the meaning given by item 14, and

·          ‘transition time’ is defined as the commencement of item 13.

 

Item 14 - Scope

 

415.                This item will provide that Part 1 of Schedule 3 to the Bill applies in relation to a person, known as a ‘transitional bankrupt’, if:

 

·          a determination of bankruptcy was made against the person under the Norfolk Island Bankruptcy Act, and

·          immediately before the transition time (defined in item 13), the person had not obtained a certificate of discharge of that bankruptcy and the determination of bankruptcy had not been annulled.

 

416.                This item is intended to ensure that the transitional arrangements in Part 1 of Schedule 3 to the Bill will apply to any person who was previously made bankrupt under the Norfolk Island Bankruptcy Act and who remains bankrupt at the time of transitioning from the Norfolk Island Bankruptcy Act to the Commonwealth Bankruptcy Act.

 

Item 15 - Transitional provisions - general

 

Application of amendments

 

417.                Subitem 15(1) will provide that the amendments made by Division 1 of Part 1 of Schedule 3 to the Bill apply in relation to a transitional bankrupt (defined in item 13). Subitem 15(1) is intended to ensure that the extension of the Commonwealth Bankruptcy Act to Norfolk Island by Division 1 of Part 1 of Schedule 3 applies to persons who were made bankrupt under the Norfolk Island Bankruptcy Act and who remain bankrupt at the time of transitioning from the Norfolk Island Bankruptcy Act to the Commonwealth Bankruptcy Act.

 

How the Commonwealth Bankruptcy Act applies

 

418.                Subitem 15(2) will set out how the Commonwealth Bankruptcy Act applies to things done for the purposes of the Norfolk Island Bankruptcy Act in relation to a transitional bankrupt. This item provides that anything done before the transition time by a person mentioned in column 1 of the table under, or for the purposes of, the Norfolk Island Bankruptcy Act (in relation to a transitional bankrupt) is taken to have been done by the person mentioned in column 2 under, or for the purposes of, the corresponding provision of the Commonwealth Bankruptcy Act. This item is intended to ensure that anything done during the administration of a bankruptcy under the Norfolk Island Bankruptcy Act is considered valid and has effect under the Commonwealth Bankruptcy Act.

 

419.                Table item 1 provides that anything done by a judge (or judges) of the Supreme Court of Norfolk Island under the Norfolk Island Bankruptcy Act is taken to have been done by a judge (or judges) of the Federal Court of Australia under the Commonwealth Bankruptcy Act.

 

420.                Table item 2 provides that anything done by the registrar (within the meaning of the Norfolk Island Bankruptcy Act as in force immediately before the transition time) under the Norfolk Island Bankruptcy Act is taken to have been done under the Commonwealth Bankruptcy Act by whichever of the following persons that has the function of doing things of that kind:

 

·          the Chief Executive Officer and Principal Registrar of the Federal Court of Australia

·          the Official Receiver, or

·          any other person. 

 

421.                Table item 3 provides that anything done by the Norfolk Island official trustee under the Norfolk Island Bankruptcy Act is taken to have been done by the Commonwealth Official Trustee under the Commonwealth Bankruptcy Act.

 

422.                Table item 4 provides that anything done by any other person under the Norfolk Island Bankruptcy Act is taken to have been done by a person who has the function of doing things of that kind under the Commonwealth Bankruptcy Act.

 

Determinations of bankruptcy

 

423.                Subitem 15(3) will provide that, without limiting subitem 15(2), the Commonwealth Bankruptcy Act applies to a determination of bankruptcy under the Norfolk Island Bankruptcy Act in relation to a transitional bankrupt as if:

 

·          the determination of bankruptcy were a sequestration order made under the Commonwealth Bankruptcy Act, and

·          the date of bankruptcy were the date of the order of the determination of bankruptcy.

 

424.                This item is intended to provide certainty about: (i) the effect of a determination of bankruptcy under the Norfolk Island Bankruptcy Act, to ensure that a transitional bankrupt is considered to have been made bankrupt for the purposes of the Commonwealth Bankruptcy Act, and (ii) the date of bankruptcy, to ensure that the length of a transitional bankrupt’s bankruptcy can be calculated (particularly for the purposes of determining the date of discharge from bankruptcy).

 

425.                Subitem 15(4) provides that, where the Commonwealth Bankruptcy Act applies to a determination of bankruptcy pursuant to subitem 15(3), the Official Receiver must enter the following information on the National Personal Insolvency Index:

 

·          particulars of the transitional bankrupt, to the extent that these are disclosed on the determination of bankruptcy

·          the date of the bankruptcy

·          the name of the petitioning creditor

·          the name of the transitional bankrupt’s trustee

·          the date the transitional bankrupt provided the statement required for the purposes of paragraph 51(b) of the Norfolk Island Bankruptcy Act, and

·          any other available information required to be entered on the National Personal Insolvency Index, in relation to a sequestration order, by the Commonwealth Bankruptcy Act and regulations.

 

426.                Consistent with the requirement that all bankruptcies under the Commonwealth Bankruptcy Act must be recorded on the National Personal Insolvency Index, this item is intended to ensure that there is an equivalent record of the bankruptcies of transitional bankrupts.

 

427.                Subitem 15(5) will provide that, on written notice from the Commonwealth Official Receiver, the Registrar of Norfolk Island Supreme Court and/or the Norfolk Island official trustee must provide the information required under subitem 15(4) to be entered on the National Personal Insolvency Index. This item is intended to ensure that the Commonwealth Official Trustee has the information needed to comply with subitem 15(4). 

 

Discharge from bankruptcy

 

428.                Subitem 15(6) will provide that a transitional bankrupt is discharged from bankruptcy at the transition time if the date of the determination of their bankruptcy occurred 3 years or more before the transition time. The effect of this item is that a transitional bankrupt who has been bankrupt for over 3 years will be automatically discharged. This is consistent with section 149 of the Commonwealth Bankruptcy Act, which provides for automatic discharge after a 3 year period.

 

Item 16 - Transitional provisions - transfer of records

 

429.                This item will provide that the Norfolk Island official trustee must, as soon as practicable after the transition time, give the Commonwealth Official Trustee the following records:

 

·          any accounts in relation to a transitional bankrupt transmitted by an elected trustee to the Norfolk Island official trustee before the transition time (under section 12 of the Norfolk Island Bankruptcy Act)

·          any books in relation to a transitional bankrupt that are kept by the Norfolk Island official trustee immediately before the transition time (under section 16 of the Norfolk Island Bankruptcy Act), and

·          a copy of the statement (if any) delivered before the transition time by a transitional bankrupt in compliance with an order of determination of bankruptcy (under paragraph 51(b) of the Norfolk Island Bankruptcy Act). 

 

430.                This item is intended to ensure that the Commonwealth Official Trustee has sufficient information about the status and particulars of a transitional bankrupt to administer the bankruptcy of a transitional bankrupt under the Commonwealth Bankruptcy Act.

 

Item 17 - Transitional rules

 

431.                This item will provide the minister a rule-making power to deal with matters of a transitional nature that may arise in the process of extending the Commonwealth bankruptcy system to Norfolk Island. Subitem 17(1) will provide that the minister may, by legislative instrument, make rules prescribing matters of a transitional nature, including savings and application provisions, relating to:

 

·          the amendments of the Commonwealth Bankruptcy Act made by Division 1 of Part 1 of Schedule 3 to the Bill, and

·          the repeal of the Norfolk Island Bankruptcy Act, in the event that Act is repealed.

 

432.                This item will provide adequate flexibility to ensure a smooth transition to the Commonwealth bankruptcy system. Rules made under item 17 will be limited to transitional matters and will make modifications that are necessary and appropriate to ensure effective and expedient administration of any bankruptcies transitioned between systems.

 

433.                Subitem 17(2) will provide that the minister’s rule-making power is subject to limits and safeguards. The minister will not have the power to make a rule which would:

 

·          create an offence or civil penalty

·          provide powers of arrest or detention or entry, search or seizure

·          impose a tax

·          set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act, or

·          directly amend the text of this Act.

 

434.                Subitem 17(3) will provide that Part 1 of Schedule 3 to the Bill has effect subject to any rules made under item 17. This ensures that if modifications are made by rules, the transitional arrangements in Part 1 of Schedule 3 to the Bill will apply as modified.

 

Part 2 - Freedom of information

 

Division 1 - Amendments

 

Freedom of Information Act 1982

 

Item 18 - Subsection 4(1) (definition of Australia )

 

435.                This item repeals the existing definition of ‘Australia’ from subsection 4(1) of the FOI Act. This definition includes Norfolk Island in the definition of ‘Australia’ when used in a geographical sense. This definition was made redundant by virtue of an amendment to the Acts Interpretation Act in 2016 which now provides that the definition of ‘Australia’ means the Commonwealth of Australia, and, when used in a geographical sense, includes Norfolk Island.

 

Item 19 - Subsection 4(1) (definition of Norfolk Island authority )

 

436.                This item substitutes a revised definition of ‘Norfolk Island authority’ in subsection 4(1) of the FOI Act. The new definition includes a body established for a public purpose by or under a Norfolk Island law, other than a law providing for the incorporation of associations or companies, for instance the Associations Incorporation Act 2005 (NI) or the Norfolk Island Companies Act. It also means a person holding or performing the duties of an office established by or under a Norfolk Island law or an appointment made under a Norfolk Island law. A body or person that would otherwise fall within this definition may be exempted by a regulation made for the purposes of new subsection 7(2AB) of the FOI Act. This amendment will clarify that this new definition includes bodies such as the Norfolk Island Regional Council, which is established for a public purpose in Norfolk Island under an applied NSW law, the Local Government Act 1993 (NSW)(NI). It does not include, however, a state or territory body or office, established or appointed under a state or territory law as in force in that state or territory, which may exercise powers in Norfolk Island under an applied state or territory law.

 

437.                The amendment also removes reference to a public sector agency (within the meaning of the Public Sector Management Act 2000 (NI)). The Public Sector Management Act has been repealed.

 

Item 20 - Subsection 4(1) (definition of Norfolk Island enactment )

 

438.                This item repeals the definition of ‘Norfolk Island enactment’ from subsection 4(1) of the FOI Act. The existing definition, which means an enactment within the meaning of the Norfolk Island Act or an instrument made under such an enactment (as amended), is no longer necessary following the insertion of the new definition of ‘Norfolk Island law’.

 

Item 21 - Subsection 4(1)

 

439.                This item inserts a new definition of ‘Norfolk Island law’ into subsection 4(1) of the FOI Act to mean a law in force in Norfolk Island other than an Act or an instrument under an Act. This new definition will include an enactment within the meaning of the Norfolk Island Act or an instrument made under such an enactment (as amended) as well as any applied laws in force in Norfolk Island under section 18A of the Norfolk Island Act. Acts and instruments made under Acts are excluded from this definition to avoid overlapping with the existing definition of ‘enactment’ in subsection 4(1). Existing references in the FOI Act to ‘Norfolk Island enactment’ will be replaced by appropriate references to ‘Norfolk Island law’.

 

Item 22 - Subsection 4(1) (paragraph (c) of the definition of principal officer )

 

440.                This item repeals and substitutes paragraph (c) of the definition of ‘principal officer’ in subsection 4(1) of the FOI Act. New paragraph (c) of this definition provides that ‘principal officer’ means in relation to a Norfolk Island authority the person responsible for the day-to-day management of the authority. The meaning of ‘Norfolk Island authority’ is amended by item 10, and includes a body established for a public purpose by or under a Norfolk Island law (other than a law providing for the incorporation of associations or companies), or a person holding or performing the duties of an office established by or under a Norfolk Island law or an appointment made under a Norfolk Island law. The amendment also removes a redundant reference to the Public Service Act 2014 (NI) which has been repealed.

 

Item 23 - Subsection 4(3A)

 

441.                This item amends subsection 4(3A) of the FOI Act to substitute a reference to ‘Norfolk Island enactment’ with a reference to ‘Norfolk Island law’. This amendment is consequential to the amendments made by items 20 and 21.

 

Item 24 - Paragraph 4(3B)(d)

 

442.                This item amends paragraph 4(3B)(d) of the FOI Act to substitute a reference to ‘Norfolk Island enactment’ with a reference to ‘Norfolk Island law’. This amendment is consequential to the amendments made by items 20 and 21.

 

Item 25 - Section 4B

 

443.                This item repeals section 4B of the FOI Act, which provides that this Act extends to Norfolk Island.. This provision is now redundant in light of the operation of subsection 18(1) of the NI Act which, since amendments to this Act commencing in 2016, has provided that an Act or a provision of an Act extends to Norfolk Island of its own force except so far as the Act or another Act expressly provides otherwise.

Item 26 - Subparagraph 5(2)(c)(ii)

 

444.                This item repeals and substitutes new subparagraph 5(2)(c)(ii) of the FOI Act, which replaces a reference to ‘Norfolk Island enactment’ with a reference to ‘Norfolk Island law’. This amendment is consequential to the amendments made by items 20 and 21.

 

Item 27 - After subsection 7(2AA)

 

445.                This item inserts new subsection 7(2AB) into the FOI Act which provides that a body or person may be prescribed by the regulations for the purposes of this subsection if the body or person would, if not so prescribed, be a Norfolk Island authority; and the minister is satisfied that the body or person is subject to a law that provides equivalent, or substantially similar, requirements relating to freedom of information as are provided by the FOI Act.

 

446.                The effect of this new subsection is that a body or person that would otherwise fall within the definition of ‘Norfolk Island authority’ may be exempted by a regulation from the operation of the FOI Act if the minister is satisfied that the relevant body or person will be subject to a law that provides equivalent, or substantially similar, requirements relating to freedom of information as are provided by the FOI Act.

 

447.                This power to exempt a Norfolk Island authority from the operation of the FOI Act is only likely to be used in very limited circumstances and only when the minister is satisfied that the relevant body or person will be subject to a freedom of information law that provides equivalent, or substantially similar, requirements as provided by the FOI Act. This may be the case, for instance, where the relevant Norfolk Island authority is subject to an applied state or territory law which deals with freedom of information for public bodies, such as the Government Information (Public Access) Act 2009 (NSW) which regulates access to information with respect to local government councils in NSW. In such a case, it may be more appropriate for the relevant Norfolk Island authority to be subject to the freedom of information requirements of the applied state or territory law rather than the FOI Act.

 

Item 28 - Subparagraph 8(2)(d)(ii)

 

448.                Paragraph 8(2)(d) of the FOI Act provides for the publication by agencies of the details of its statutory appointments. This item repeals and substitutes a new subparagraph 8(2)(d)(ii) which replaces a reference to the repealed Public Service Act 2014 (NI) with a reference to the appointments of officers made under Norfolk Island laws, other than appointments of officers providing services at a level equivalent to those provided by APS employees. This means, equivalent with the arrangements with respect to statutory appointments under Commonwealth Acts, that Norfolk Island authorities will only be required to publish the details of statutory appointments who are not ordinary officers and staff of the agency (including any senior executive staff).

 

449.                The operation of this subparagraph is subject to new subsection 7(2AB) which provides that a body or person, which would otherwise be a Norfolk Island authority, may be exempted by the regulations for the purposes of this subsection (see item 27 above).

 

Item 29 - Subsection 8(5)

 

450.                This item inserts a reference to ‘Norfolk Island law’ into subsection 8(5) of the FOI Act which clarifies that this section, which deals with the publication of information by an agency, applies to a function or power of an agency whether or not the agency has the function or power under an enactment or a Norfolk Island law. This amendment is consequential to the amendments made by items 20, 21 and 30.

 

Item 30 - Subsection 8(6)

 

451.                This item repeals subsection 8(6) of the FOI Act, including the heading, but not the notes to this section. This subsection provides that, in section 8, ‘enactment include a Norfolk Island enactment.’ This repeal is consequential to the amendments made by item 20, 21 and 29.

 

Item 31 - Subsection 8C(2)

 

452.                Section 8C of the FOI Act deals with restrictions on information to be published. This item repeals and substitutes subsection 8C(2) and includes a new reference to ‘a Norfolk Island law’. An agency is not required to publish particular information under Part II of the FOI Act if a Norfolk law restricts or prohibits it publication. This amendment is consequential to the amendments made by item 20 and 21.

 

Item 32 - Subsection 8C(4)

 

453.                This item repeals subsection 8C(4) of the FOI Act. This subsection provides that, in section 8C, ‘enactment include a Norfolk Island enactment.’ This repeal is consequential to the amendments made by item 20, 21 and 31.

 

Item 33 - Paragraph 12(1)(b)

 

454.                This item repeals and substitutes paragraph 12(1)(b) of the FOI Act and includes a new reference to ‘a Norfolk Island law’. The effect of this amendment is that a person is not entitled to obtain access under Part 3 of the FOI Act to a document that is open to public access, as part of a public register or otherwise, in accordance with an enactment or a Norfolk Island law where that access is subject to a fee or other charge. This amendment is consequential to the amendments made by item 20 and 21 and 34.

 

Item 34 - Subsection 12(3)

 

455.                This item repeals subsection 12(3) of the FOI Act. This subsection provides that, in section 12, ‘enactment include a Norfolk Island enactment.’ This repeal is consequential to the amendments made by item 20, 21 and 33.

 

Items 35, 36, 37 and 38 - Section 38

 

456.                Items 35 and 36 insert appropriate references to ‘Norfolk Island law’ into subsection 38(1) of the FOI Act. This has the effect of making a document an exempt document if disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment or a Norfolk Island law. These amendments are consequential to the amendments made by item 20, 21 and 38.

 

457.                Item 37 amends subsection 38(1A) to insert a reference to ‘a Norfolk Island law’ in relation to a person’s right of access to a document.

 

458.                Item 38 repeals subsection 38(4). This subsection provides that, in section 38, ‘enactment include a Norfolk Island enactment.’ This repeal is consequential to the amendments made by items 20, 21, 35, 36 and 37.

 

Item 39 - Paragraphs 47B(d) and (f)

 

459.                This item amends paragraphs 47B(d) and (f) of the FOI Act  to substitute references to ‘an authority of Norfolk Island’ with ‘a Norfolk Island authority’. This amendment is consequential to the amendment made by item 19.

 

Item 40 and 41 - Section 55M

 

460.                Item 40 amends paragraph 55M(2)(a) of the FOI Act to insert a reference to ‘or a Norfolk Island law’. Section 55M deals with limitations on the Information Commissioner’s power to amend records of opinions in a review decision and this amendment is consequential to the amendments made by item 20, 21 and 41.

 

461.                Item 41 repeals subsection 55M(3). This subsection provides that, in section 55M, ‘enactment include a Norfolk Island enactment.’ This repeal is consequential to the amendments made by items 20, 21 and 40.

 

Items 42 and 43 - Section 58AA

 

462.                Item 42 amends paragraph 58AA(2)(a) of the FOI Act to insert a reference to ‘or a Norfolk Island law’. Section 58AA deals with limitations on the Administrative Appeals Tribunals’ power to amend records of opinions in a review decision and this amendment is consequential to the amendments made by item 20, 21 and 43.

 

463.                Item 43 repeals subsection 58AA(3). This subsection provides that, in section 58AA, ‘enactment include a Norfolk Island enactment.’ This repeal is consequential to the amendments made by items 20, 21 and 42.

 

Items 44 and 45 - Section 74

 

464.                Section 74 of the FOI Act provides for the transfer of Information Commissioner investigations to the Ombudsman. Item 44 substitutes a reference to ‘Norfolk Island enactment’ with a reference to ‘Norfolk Island law’ in paragraph 74(1)(b) and item 45 makes the equivalent substitution in subsection 74(6). These amendments are consequential to the amendments made by items 20 and 21.

 

Items 46 and 47 - Section 89D

 

465.                Item 46 amends paragraph 89D(3)(a) of the FOI Act to insert a reference to ‘or a Norfolk Island law’. Section 89D deals with limitations on the Information Commissioner’s power to recommend amendments of decision records and this amendment is consequential to the amendments made by item 20, 21 and 47.

 

466.                Item 47 repeals subsection 89D(4). This subsection provides that, in section 89D, ‘enactment include a Norfolk Island enactment.’ This repeal is consequential to the amendments made by items 20, 21 and 46.

 

Items 48 and 49 - Section 89J

 

467.                Item 48 amends paragraph 89J(2)(a) of the FOI Act to insert a reference to ‘or a Norfolk Island law’. Section 89J deals with limitations on amending records in reports made under the Ombudsman Act 1976 and this amendment is consequential to the amendments made by item 20, 21 and 49.

 

468.                Item 40 repeals subsection 89J(3). This subsection provides that, in section 89D, ‘enactment include a Norfolk Island enactment.’ This repeal is consequential to the amendments made by items 20, 21 and 48.

 

Division 2 - Application, saving and transitional provisions

 

Item 50 - Application—Amendments of the Freedom of Information Act 1982

 

Information publication scheme

 

469.                Subitem 50(1) provides that the amendments of Division 2 of Part II of the FOI Act made by Division 1 of Part 2 of Schedule 3 to the Bill apply, in relation to the publication of information under that division, after the commencement time.

 

Requests and applications

 

470.                Subitem 50(2) provides that the amendments of the FOI Act made by Division 1 of Part 2 of Schedule 3 to the Bill apply, in relation to requests for access to documents made under section 15 of the FOI Act and applications made under section 48 of the FOI Act, after the commencement time.

 

471.                Subitem 50(3) provides that in this item ‘commencement time’ means the time that Part 2 of Schedule 3 to the Bill commences.

 

472.                Item 50 is intended to avoid any doubt that the amendments to the FOI Act will not apply retrospectively to any entities affected by these changes.

 

Part 3 - Privacy

 

Division 1 - Amendments

 

Privacy Act 1988

 

Item 51 - Subsection 6(1) (after paragraph (c) of the definition of agency )

 

473.                This item inserts new paragraph 6(1)(ca) into the definition of ‘agency’ in the Privacy Act. This has the effect of including in this definition a body (whether incorporated or not), or a tribunal, established for a public purpose by or under a law of a state or territory as in force in an external territory. Incorporated companies, societies and associations are exempted from this definition as are any bodies exempted by the minister under a legislative instrument made for the purposes of new subsection 6(5A). This amendment will clarify the application of the Privacy Act to public bodies established under these laws as in force in the external territories, for instance a local government body established under an applied state law. It does not include, however, a state or territory body or tribunal, established under a state or territory law as in force in that state or territory, which may exercise powers in an external territory under an applied state or territory law. A state or territory body or tribunal exercising such powers would fall within the existing definition of ‘State or Territory authority’ in section 6C of the Privacy Act.

 

Item 52 - Subsection 6(1) (after paragraph (e) of the definition of agency )

 

474.                This item inserts new paragraph 6(1)(ea) in the definition of ‘agency’ in the Privacy Act. This has the effect of including in this definition a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a state or territory as in force in an external territory, other than an office or appointment exempted by the minister under a legislative instrument made for the purposes of new subsection 6(5A). This amendment will clarify the application of the Privacy Act to public offices established or appointed under laws as in force in the external territories, for instance officials appointed by the Commonwealth territories minister under an applied state law. It does not include, however, a state or territory official, appointed under a state or territory law as in force in that state or territory, who may exercise powers in an external territory under an applied state or territory law. A state or territory official exercising such powers would fall within the existing definition of ‘State or Territory authority’ in section 6C of the Privacy Act.

 

Item 53 - Subsection 6(1) (paragraph (ha) of the definition of agency )

 

475.                This item repeals and substitutes paragraph (ha) of the definition of ‘agency’ to replace a reference to ‘a Norfolk Island agency’ with a reference to ‘a court of Norfolk Island’. Norfolk Island courts, such as the Supreme Court of Norfolk Island, are currently included in the definition of ‘Norfolk Island agency’ and this amendment is consequential to the repeal of the definition of ‘Norfolk Island agency’ in item 57.

 

Item 54 - Subsection 6(1) (paragraph (c) of the definition of Australian law )

 

476.                This item repeals existing paragraph (c) of the definition of ‘Australian law’, which refers to ‘a Norfolk Island enactment’ and substitutes a new paragraph to include any other law in force in the Jervis Bay Territory or an external territory in this definition. This amendment will clarify the operation of the Privacy Act and the APPs with respect to these applied state and territory laws. The present definition of ‘Australian law’, inserted into the Privacy Act by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 does not expressly refer to applied state and territory laws, although these laws would have been included in the ordinary meaning of ‘law’ for the purposes of the former Information Privacy Principles, which were replaced by the APPs in 2014.

 

Item 55 - Subsection 6(1) (definition of Commonwealth enactment )

 

477.                This item repeals the definition of ‘Commonwealth enactment’ in subsection 6(1) of the Privacy Act. The definition is no longer needed as a result of the amendment in item 56 which inserts a new definition of ‘Commonwealth law’.

 

Item 56 - Subsection 6(1)

 

478.                This item inserts a new definition of ‘Commonwealth law’ in section 6. The definition means an Act other than the Northern Territory (Self-Government) Act 1978 or an Act providing for the administration or government of an external Territory or the Australian Capital Territory (Self-Government) Act 1988 . The definition includes legislative instruments such as an ordinance of the Australian Capital Territory or of an external territory. It also includes laws made by the former Norfolk Island Legislative Assembly and continued in force by section 16 of 16A of the NI Act. The new definition of ‘Commonwealth law’ combines the laws presently covered by the definitions of ‘Commonwealth enactment’ and ‘Norfolk Island enactment’ which will be repealed. Existing references in the Privacy Act to ‘a law of the Commonwealth’, ‘Commonwealth enactment’ and ‘Norfolk Island enactment’ will be replaced by references to ‘Commonwealth law’.

 

Item 57 - Subsection 6(1)

 

479.                This item repeals the definitions of ‘enactment’, ‘Norfolk Island agency’ and ‘Norfolk Island enactment’ in subsection 6(1) of the Privacy Act. These repeals are consequential to the amendments of the definitions of ‘agency’, ‘Australian law’ and the new definition of ‘Commonwealth law’.

 

Item 58 - Paragraphs 6(5)(c) and (ca)

 

480.                This item repeals paragraphs 6(5)(c) and (ca) of the Privacy Act and substitutes a new paragraph 6(5)(c) with the effecting of providing, for the purposes of this Act, a person shall not be taken to be an agency merely because the person is the holder of, or performs the duties of an office established by or under a Commonwealth law, or an applied state or territory law in an external territory, for the purposes of an agency. These amendments are consequential to the amendments made by items 56 and 57.

 

Item 59 - Paragraphs 6(5)(e) and (f)

 

481.                This item repeals paragraphs 6(5)(e) and (f) of the Privacy Act and substitutes new paragraph 6(5)(e) with the effecting of providing, for the purposes of this Act, a person shall not be taken to be an agency merely because the person is the holder of, or performs the duties of an office or member of a tribunal that is established by or under a Commonwealth law, or an applied state or territory law in an external territory and that is prescribed by the regulations for the purposes of this paragraph. These amendments are consequential to the amendments made by items 56 and 57.

 

Item 60 - After subsection 6(5)

 

482.                This item inserts new subsection 6(5A) into section 6 of the Privacy Act which provides that the minister may, by legislative instrument, exempt a body, office or appointment for the purposes of new paragraphs 6(1)(ca) or 6(1)(ea) of the definition of ‘agency’ in subsection (1).

 

483.                It is anticipated that the minister would only exempt, by legislative instrument, such a body, office or appointment if satisfied that the relevant body, office or appointment would be subject to a law that provides equivalent, or substantially similar, requirements relating to the use of personal information as are provided by the Privacy Act. This may be the case, for instance, where the relevant body, office or appointment is subject to an applied state or territory law which deals with the use of personal information by public bodies, such as the Privacy and Personal Information Protection Act 1998 (NSW) which regulates the use of personal information with respect to local government councils in NSW. In such a case, it may be more appropriate for the relevant external territory body, office or appointment to be subject to the privacy law requirements of the applied state or territory law rather than the Privacy Act.

 

Item 61 - Paragraphs 7(1)(d) and (e)

 

484.                This item removes references to ‘a Norfolk Island agency or’ from paragraphs 7(1)(d) and (e) of the Privacy Act to reflect the amendments to the definition of ‘agency’ and the insertion of the new definition of ‘Commonwealth law’. These amendments are consequential to the amendments made by items 56 and 57.

 

Item 62 - Paragraph 8(1)(b)

 

485.                This item amends paragraph 8(1)(b) of the Privacy Act to substitute a reference to ‘Commonwealth enactment or a Norfolk Island enactment’ with a reference to ‘Commonwealth law, or a law of a State or Territory that applies in an external Territory’. This reflects the insertion of the new definition of ‘Commonwealth law’ and provides that for the purposes of this Act, actions done by, or information disclosed to, a person on behalf of an unincorporated body established by or under a law of a state or territory applied in an external territory is to be treated as having been done by, or disclosed to, the agency.

 

Item 63 - Subsection 11(3)

 

486.                This item amends subsection 11(3) of the Privacy Act to substitute a reference to ‘Commonwealth enactment or a Norfolk Island enactment’ with a reference to ‘Commonwealth law, or a law of a State or Territory that applies in an external Territory’. This amendment is consequential to the repeal of the definitions of ‘Commonwealth enactment’ and ‘Norfolk Island enactment’ in items 55, 56 and 57.

 

Item 64 - Section 37 (table items 5A and 5B)

 

487.                This item repeals items 5A and 5B from the table in section 37 of the Privacy Act to remove references to the repealed Public Sector Management Act 2000 (NI) and to ‘Norfolk Island agency’, the definition of which has also been repealed from this Act. New item 5A is inserted into the table to designate the person responsible for the day-to-day management of a body or tribunal (other than an incorporated company, society or association), established for a public purpose by or under a law of a state or territory as in force in an external territory, as the principal executive of that agency.

 

Item 65 - Subparagraph 50(2)(a)(iia)

 

488.                Section 50 of the Privacy Act deals with the reference by the Information Commissioner of complaint investigations to other authorities. This item amends subparagraph 50(2)(a)(iia) to substitute a reference to a ‘particular Norfolk Island enactment’ with a reference to a ‘law in force in an external Territory other than the Ombudsman Act 1976 ’. This amendment is consequential to the repeal of the definition of ‘Norfolk Island enactment’ in item 57.

 

Item 66 - Subparagraph 50(3)(a)(iia)

 

489.                This item amends subparagraph 50(3)(a)(iia) of the Privacy Act to substitute a reference to ‘Norfolk Island enactment concerned’ with a reference to ‘the law mentioned in subparagraph 50(2)(a)(iia)’. This amendment is consequential to the amendment made by item 65 and the repeal of the definition of ‘Norfolk Island enactment’ in item 57.

 

Item 67 - Subsection 60(2B)

 

490.                This item repeals subsection 60(2B) of the Privacy Act which contains redundant references to ‘Norfolk Island agency’ and ‘Norfolk Island’. This amendment is consequential to the repeal of the definition of ‘Norfolk Island agency’ in item 57 and the changes to governance arrangements in Norfolk Island. This amendment clarifies that any compensation and expenses payable under a determination made under section 52 of the Privacy Act are recoverable as a debt due by the Commonwealth to the complainant or individual if a determination applies in relation to an agency that does not have the capacity to sue and be sued.

 

Item 68 - Subsection 80G(1) (definition of secrecy provision )

 

491.                This item amends the definition of ‘secrecy provision’ in Part VIA of the Privacy Act which provides for dealing with personal information in emergencies and disasters. The definition in subsection 80G(1) is amended to substitute a reference to ‘a law of the Commonwealth (including a provision of this Act), or of a Norfolk Island enactment’ with a reference to ‘a Commonwealth law (including a provision of this Act)’. This amendment is consequential to the insertion of the new definition of ‘Commonwealth law’ by item 56 and the repeal of the definition of ‘Norfolk Island enactment’ in item 57.

 

Item 69 - Subsection 80P(7) (paragraphs (d) and (e) of the definition of designated secrecy provision )

 

492.                This item amends paragraphs (d) and (e) of the definition of ‘designated secrecy provision’ in subsection 80P(7) of the Privacy Act. The reference to ‘a law of the Commonwealth’ is substituted with a reference to ‘a Commonwealth law’. This amendment is consequential to the insertion of the new definition of ‘Commonwealth law’ by item 56.

 

Item 70 - Subsection 80R(1)

 

493.                This item amends subsection 80R(1) of the Privacy Act to substitute a reference to ‘law of the Commonwealth’ with a reference to ‘a Commonwealth law’. This amendment is consequential to the insertion of the new definition of ‘Commonwealth law’ by item 56.

 

Item 71 - Subsection 80R(1A)

 

494.                This item repeals subsection 80R(1A) of the Privacy Act, which contains a reference to ‘a Norfolk Island enactment’. This amendment is consequential to the amendment made by item 70, the insertion of the new definition of ‘Commonwealth law’ by item 56 and the repeal of the definition of ‘Norfolk Island enactment’ in item 57. Amended subsection 80R(1) of the Privacy Act will provide that the operation of Part VIA of this Act is not be limited by a secrecy provision of a Commonwealth law except to the extent that the secrecy provision expressly excludes the operation of section 80R.

 

Item 72 - Paragraph 89(c)

 

495.                Section 89 deals with references in Part VIII of the Privacy Act to obligations of confidence. This item amends paragraph 89(c) to substitute a reference to ‘a Norfolk Island enactment that is in force’ with a reference to ‘a law in force in an external Territory’. This extends the application of this Part to an obligation of confidence that arises under or by virtue of a law in force in an external territory and is consequential to the amendments to the definition of ‘agency’ by items 51 and 52 and the repeal of the definition of ‘Norfolk Island enactment’ in item 57.

 

Item 73 - Paragraph 7.8(c) of Schedule 1

 

496.                Schedule 1 to the Privacy Act sets out the APPs. Australian Privacy Principle 7 relates to direct marketing. This item amends paragraph 7.8(c) of to substitute the existing reference to ‘a Norfolk Island enactment’ with a reference to ‘a law in force in an external Territory’. This amendment is consequential to the repeal of the definition of ‘Norfolk Island enactment’ in item 57. As amended, paragraph 7.8(c) provides that principle 7 does not apply to the extent that any other Act of the Commonwealth, or a law in force in an external territory, is prescribed by the regulations.

 

Item 74 - Clause 12 of Schedule 1 (subparagraph 12.2(b)(ii))

 

497.                Clause 12 sets out Australian Privacy Principle 12 relating to access to personal information by individuals. This item amends subparagraph 12.2(b)(ii) to replace the existing reference to ‘a Norfolk Island enactment’ with a reference to ‘a law in force in an external Territory’. This amendment is consequential to the amendments to the definition of ‘agency’ by items 51 and 52 and the repeal of the definition of ‘Norfolk Island enactment’ in item 57. This has the effect of allowing an APP entity, which is an agency, to refuse to give an individual access to their personal information if the entity is required or authorised to refuse to give the individual access to the personal information under the FOI Act, any other Act, or a law in force in an external territory, to the extent that the entity is required or authorised to refuse to give access.

 

Item 75 - Amendments of listed provisions

 

498.                This item makes a number of consequential amendments to the Privacy Act to substitute various references to ‘enactment’ with appropriate references to ‘law’ or ‘Commonwealth law’. These amendments are consequential to the insertion of the new definition of ‘Commonwealth law’ by item 56 and the repeal of the definitions of ‘enactment’ and ‘Norfolk Island enactment’ in item 57.

 

Division 2 - Application, saving and transitional provisions

 

Item 76 - Application of amendments

 

499.                Subitem 76(1) provides that the amendments of the Privacy Act made by Division 1 of Part 3 of Schedule 3 to the Bill will only apply after the commencement time in relation to:

 

·          the collection, holding, use, correction or disclosure of personal information

·          any complaints made under section 36 of the Privacy Act

·          government contracts entered into.

 

500.                Subitem 76(2) provides that in this item ‘commencement time’ means the time that Part 3 of Schedule 3 to the Bill commences.

 

501.                Item 76 is intended to avoid any doubt that the amendments to the Privacy Act will not have apply retrospectively to any entities affected by these changes.

 

Part 4 - Other Attorney General’s Department Acts

 

Division 1 - Amendments

 

Administrative Decisions (Judicial Review) Act 1977

 

Item 77 - Subsection 3(1) (paragraph (a) of the definition of decision to which this Act applies )

 

502.                This item amends paragraph (a) of the definition of ‘decision to which this Act applies’ in subsection 3(1) of the ADJR Act to include a reference to new paragraph (e) of the definition of ‘enactment’. This amendment is consequential to the amendment made by item 79 to the definition of ‘enactment’ in subsection 3(1) of the ADJR Act.

 

Item 78 - Subsection 3(1) (paragraph (b) of the definition of decision to which this Act applies )

 

503.                This item amends paragraph (b) of the definition of ‘decision to which this Act applies’ in subsection 3(1) of the ADJR Act to include a reference to new paragraph (f) of the definition of ‘enactment’ in the definition of ‘decision to which this Act applies’. This amendment is consequential to the amendment made by item 79 to the definition of ‘enactment’ in subsection 3(1) of the ADJR Act.

 

Item 79 - Subsection 3(1) (after paragraph (d) of the definition of enactment )

 

504.                This item inserts new paragraphs (e) and (f) into the definition of ‘enactment’ with the effect of, including in this definition, laws ‘continued’ in force in Norfolk Island by section 16 or 16A of the NI Act (including such continued laws as amended under section 17 of the NI Act) and laws of a state or territory applied in the Jervis Bay Territory or an external territory. The effect of this amendment is that decisions of an administrative character made under these laws may, consistent with the operation of the ADJR Act, be subject to judicial review under this Act. The reference to ‘laws’ in these paragraphs would also include any instruments of a legislative character made pursuant to, or under, these laws, for instance, rules made under a Norfolk Island continued law, including as amended under section 17 of the NI Act.

 

Item 80 - Subsection 3(1) (definition of enactment )

 

505.                This item amends the definition of ‘enactment’ in subsection 3(1) of the ADJR Act to include a reference to new paragraphs 3(1)(e) and (f) with the effect of clarifying that, with respect to the laws covered by these new paragraphs, that the definition of ‘enactment’ includes a part of an enactment. This amendment is consequential to the amendment made by item 79 to the definition of ‘enactment’ in subsection 3(1) of the ADJR Act.

 

Item 81 - Section 3B

 

506.                This item repeals section 3B of the ADJR Act, which provides that this Act extends to Norfolk Island. This provision is now redundant in light of the operation of subsection 18(1) of the NI Act which, since amendments to this Act commencing in 2016, has provided that an Act or a provision of an Act extends to Norfolk Island of its own force except so far as the Act or another Act expressly provides otherwise.

 

Item 82 - Subparagraph 17(d)(i)

 

507.                This item inserts references to new paragraphs 3(1)(e) and (f) of the definition of ‘enactment’ into subparagraph 17(d)(i) of the ADJR Act. This amendment is consequential to the amendment made by item 3 to the definition of ‘enactment’ in subsection 3(1) of the ADJR Act. Section 17 of the ADJR Act deals with the circumstances where judicial review is sought of a decision made by an officer, when the original decision maker no longer holds that office, there is no one acting in that office, or that office has since been abolished. In these circumstances, the minister administering the relevant territories Act (for instance the NI Act or the CI Act), or a person he or she authorises for this purpose, would be deemed to have made the relevant decision under either the applied state or territory law or the Norfolk Island continued law.

 

Criminal Code Act 1995

 

Item 83 - Dictionary in the Criminal Code (subparagraphs (n)(iv) and (r)(iv) of the definition of Commonwealth public official )

 

508.                This item repeals subparagraphs (n)(iv) and (r)(iv) of the definition of ‘Commonwealth public official’ in the Criminal Code. This removes references in both these subparagraphs to the NI Act which had the effect of excluding individuals holding or performing the duties of an office, or exercising powers or performing functions, under the NI Act from the definition of ‘Commonwealth public official’. The effect of this amendment is to amend the definition of ‘Commonwealth public official’ to include people exercising powers or functions by or under the NI Act. This change is consistent with the existing arrangements that apply to Christmas Island and the Cocos (Keeling) Islands and the other external territories.

 

Item 84 - Dictionary in the Criminal Code (paragraph (s) of the definition of Commonwealth public official )

 

509.                This item substitutes a new paragraph (s) in the definition of ‘Commonwealth public official’ in the Criminal Code to include a reference to the Territory of Norfolk Island. The effect of this amendment is to amend the definition of ‘Commonwealth public official’ to include an individual who exercises powers, or performs functions, conferred on the person under a law in force in Norfolk Island. This change is consistent with the existing arrangements that apply to Christmas Island and the Cocos (Keeling) Islands.

 

Division 2 - Application, saving and transitional provisions

 

Item 85 - Application of amendments of the Administrative Decisions (Judicial Review) Act 1977

 

510.                Subitem 85(1) provides for the amendments of the ADJR Act made by Division 1 of Part 4 of Schedule 3 to the Bill to apply in relation to a decision made after the commencement time and conduct engaged in, or proposed to be engaged in, after the commencement time for the purpose of making a decision.

 

511.                Subitem 85(2) provides that in this item ‘commencement time’ means the time that Part 4 of Schedule 3 to the Bill commences.

 

512.                Item 85 is intended to avoid any doubt that the amendments to the ADJR Act will not have apply retrospectively to any entities affected by these changes.

 



 

SCHEDULE 4 - AMENDMENTS OF OTHER ACTS

 

Part 1-Broadcasting Services

 

Division 1 - Amendments

 

Broadcasting Services Act 1992

 

Item 1 - Section 10AA

 

513.                This item repeals section 10AA of the Broadcasting Services Act. It was inserted into the Broadcasting Services Act by the Territories Legislation Amendment Act to prevent the Broadcasting Services Act from applying wholly to Norfolk Island. Section 10AA is no longer needed as the transition from the Norfolk Island Broadcasting Act to the Broadcasting Services Act as being effected by the Bill.

 

Division 2 - Application, saving and transitional provisions

 

Item 2 - Norfolk Island Radio VL2NI

 

514.                This item establishes the transitional arrangements for the existing Norfolk Island radio station (known as ‘Norfolk Island Radio’, with call sign ‘VL2NI’) to move from the Norfolk Island Broadcasting Act to the Broadcasting Services Act.

 

515.                Norfolk Island Radio is currently owned and operated by the NIRC. The radio broadcasting services provided by NIRC are best suited to be licensed as a community radio service under Part 6 of the Broadcasting Services Act. However, one of the requirements for licensing a community radio service is that the proposed licensee is an incorporated entity. As the NIRC is not an incorporated entity and does not hold a current Broadcasting Services Act licence, therefore special transitional arrangements are required to facilitate the continuation of the broadcast of Norfolk Island Radio services and for those services to be regulated under the Broadcasting Services Act.

 

516.                The effect of the transitional arrangement under subitem 2(1) of Schedule 4 of the Bill is to prescribe 4 key matters relating to the VL2NI radio services currently being provided in Norfolk Island.

 

517.                The first key matter is to allocate a licence to the NIRC to provide broadcasting services immediately before the commencement of item 2 by the radio broadcast service established by Part 2 of the Norfolk Island Broadcasting Act (refer paragraph 2(1)(a)). Item 2 would commence the day after the end of the period of 6 months beginning on the day the Act receives the Royal Assent. The effect of paragraph 2(1)(a) is to remove the obligation for the NIRC to have an incorporated association in place from day one of the transition. There is, however, the expectation that an incorporated association will be established by the NIRC within the legislated timeframes. The NIRC will inform ACMA and seek a transfer of the radio licence from the NIRC to the incorporated association.

 

518.                The second key matter is a deeming rule that provides for the radio services provided under the new licence allocated under paragraph 2(1)(a) (effectively, radio service VL2NI) will be taken to be a ‘community radio broadcasting licence’ issued in the broadcasting services bands under Part 6 of the Broadcasting Services Act (paragraph 2(1)(b)). Part 6 of the Broadcasting Services Act refers to the licensing and allocation of community radio services under licence area planning.

 

519.                The third key matter is a deeming rule which provides that the licence area for the new community radio licence will be the area defined by the Australian Bureau of Statistics 2016 Census as ‘the Territory of Norfolk Island’ (paragraph 2(1)(c)). It is expected that ACMA will consider licence area planning for radio broadcasting services on Norfolk Island under Part 3 of the Broadcasting Services Act after the commencement of Part 1 of Schedule 4 to this Bill (noting that item 1 will have the effect of extending the application of the Broadcasting Services Act fully to Norfolk Island).    

 

520.                Community radio licences allocated under the Broadcasting Services Act must identify what community interest they are serving. In this instance, the fourth key matter is a deeming rule which provides that the NIRC is taken to represent the ‘general geographic area of the community of the Norfolk Island Territory Island’ (paragraph 2(1)(d)). This terminology is consistent with community licences issues under Part 6 of the Broadcasting Services Act.

 

521.                There are 2 notes accompanying subitem 2(1). Note 1 clarifies that for the purposes of paragraph 2(1)(b) the allocation of a community licence under Part 6 of the Broadcasting Services Act provides an entitlement to a transmitter licence issued under the Radiocommunications Act 1992 . Note 2 relates to the reference at paragraph 2(1)(d) to paragraph 9(2)(b) within Part 5 of Schedule 2 to the Broadcasting Services Act (which sets out standard conditions for community broadcasting services). The condition referred to in paragraph 9(2)(b) of the Schedule 2 to the Broadcasting Services Act is the obligation to continue to serve the community of interest identified when the licence was allocated.

 

522.                Subitem 2(2) identifies key sections of the Broadcasting Services Act that relate to the licence area planning (sections 26 and 29) and the selection and allocation of community broadcasting licences (sections 80, 81, 83 and 84) and indicates that these provisions do not apply to the community radio licence that is allocated to the NIRC for radio service VL2NI under subitem 2(1); and the designation of the licence area for that licence as mentioned in paragraph 2(1)(c)).

 

523.                The effect of subitem 2(3) is to set out 3 specific requirements on the licence allocated to NIRC under subitem 2(1).  The requirement under paragraph 2(3)(a) is that the community radio licence allocated by the transitional rule at subitem 2(1) to the NIRC for radio service VL2NI will come into force and be regulated and enforced as a community radio licence by the ACMA, on the commencement of Schedule 4 to the Bill (that time being described as the ‘commencement time’ and defined in subitem 2(7)).

 

524.                The second requirement indicates that the licence allocated to the NIRC remains in force for a maximum period of 2 years. This overrides the operation of section 89 of the Broadcasting Act that provides for 5 year community radio broadcasting licences.

 

525.                The third requirement in paragraph 2(3)(c) states that the licence allocated to the NIRC cannot be renewed on application by the NIRC. Paragraph 2(3)(c) applies despite sections 90 and 91 of the Broadcasting Services Act; those sections ordinarily allow for a community radio broadcasting licence to apply to the ACMA for renewal and for the ACMA to renew such a community broadcasting licence on the application and subject to certain conditions.

 

526.                The note accompanying subitem 2(3) clarifies that NIRC may apply for the licence to be transferred to another person under section 91A of the Broadcasting Services Act. Specifically, section 91A of the Broadcasting Services Act allows the ACMA to consider the transfer of community radio licence to another party.  It is expected that NIRC, during the next 12-18 months, will establish an incorporated body and then apply to the ACMA for its community broadcasting radio licence allocated under subitem 2(1) to be transferred to that new body. That transferred licence can be the subject of an application for renewal to the ACMA and renewal in accordance with usual arrangements under sections 90 and 91 of the Broadcasting Services Act. 

 

527.                In recognition that the 2 year licence term may present practical challenges for the transition, the ACMA has been conferred with the power to extend the period by written notice to the licensee by a specified period of no more than 2 years (refer subitem 2(4)). However, the ACMA may only extend the period if and only, before the end of the original 2 year period, the licence has been transferred to another person, or the NIRC has made an application under section 91A of the Broadcasting Services Act for approval of the transfer of the licence to another person (refer subitem 2(5)). The power conferred under subitem 2(4) on the ACMA to extend the duration of the licence can only be exercised once (refer subitem 2(6)).

 

528.                Subitem 2(7) defines the term ‘commencement time’ (used in subitems 2(1) and 2(3)) to be the time when Part 1 of Schedule 4 to the Act commences. That time is located in clause 2 of the Bill and would be the day after the end of the period of 6 months beginning on the day the Act receives the Royal Assent.            

 

Part 2-Other Acts

 

Copyright Act 1968

 

Items 3 and 4 - Paragraph 10(3)(n)

 

529.                Items 3 and 4 remove references to ‘Norfolk Island’ in paragraph 10(3)(n) of the Copyright Act. Currently, under paragraph 10(3)(n) Norfolk Island is treated as a state for certain purposes under the Copyright Act, along with the self-governing territories of the Australian Capital Territory and the Northern Territory. This change will also affect Part VII of the Copyright Act, which relates to Crown copyright and the use of copyright material for the services of the Crown that applies by reference to ‘the Commonwealth or a State’. Most other provisions in the Act refer more fully to the Commonwealth, or a state or territory.

 

530.                As Norfolk Island is no longer a self-governing territory akin to a ‘State’, the amendments to paragraph 10(3)(n) will result in Norfolk Island being treated as a ‘Territory’ for all purposes of the Copyright Act. As the Act currently provides that ‘the Commonwealth’ includes ‘the Administration of a Territory’ and that ‘the Crown’ also includes ‘the Administration of a Territory’ (section 10), the provisions relating to Crown copyright and the use of copyright material for the services of the Crown would extend to the administration of Norfolk Island.

 

Item 5 - At the end of subsection 144(2)

 

531.                Item 3 replaces the reference to the ‘Supreme Court of a State’ with a reference to the ‘Supreme Court of a State or Territory’ in subsection 144(2) of the Act. This amendment will clarify that a member of the Copyright Tribunal of Australia can, before proceeding to discharge their duties of office, take an oath or make an affirmation before a justice or judge of the Supreme Court of a territory, including the Supreme Court of Norfolk Island. This amendment is consequential to the proposed amendments to paragraph 10(3)(n) of the Act by items 3 and 4 (see above) and will result in consistent references to the ‘Supreme Court of a State or Territory’ throughout the Act.

 

Item 6 - Subsection 182B(1) (note to the definition of government )

 

532.                Item 4 removes the reference to ‘Norfolk Island’ in the note to the definition of ‘government’ in subsection 182B(1) within Part VII of the Act, which refers to the meaning of ‘State’ in paragraph 10(3)(n). This amendment is consequential to the proposed amendments to paragraph 10(3)(n) of the Act by items 3 and 4 (see above).

 

Education Services for Overseas Students Act 2000

 

Items 7, 8, 9 and 10 - Sections 4B and 4C

 

533.                Items 7 and 8 make amendments to section 4B of the ESOS Act to extend the application of the ESOS Act to Norfolk Island. The effect of these amendments is that education providers on Norfolk Island must be registered if they are providing a course to an overseas student.

 

534.                Item 9 ensures that references in the ESOS Act to a ‘State’ are to be taken to include a reference to Norfolk Island.

 

535.                Item 10 repeals section 4C of the ESOS Act so that the Act applies to Norfolk Island.



 

BANKRUPTCY (ESTATE CHARGES) AMENDMENT (NORFOLK ISLAND) BILL 2020

 

 

OUTLINE

 

The purpose of the Bankruptcy (Estate Charges) Amendment (Norfolk Island) Bill 2020 is to extend the application of the Bankruptcy (Estate Charges) Act 1997 (Estate Charges Act) to Norfolk Island.

 

The Estate Charges Act imposes charges that are payable by trustees and debt agreement administrators to the Commonwealth in respect of personal insolvency administrations under the Bankruptcy Act 1966 (Commonwealth Bankruptcy Act). In particular, the Estate Charges Act imposes a realisations charge (a levy on all realisations made in respect of administrations under the Commonwealth Bankruptcy Act) and an interest charge (a levy on interest earned on money held in personal insolvency accounts). The realisations charge and interest charge recover the cost to the Commonwealth of regulating the personal insolvency system. Subject to the Commonwealth Bankruptcy Act being extended to Norfolk Island, the Bill will ensure that any insolvencies on Norfolk Island are treated consistently and attract the same estate charges as all other insolvencies administered under the Commonwealth Bankruptcy Act.

 

Financial impact statement

 

The amendments made by this Bill will ensure insolvencies administered on Norfolk Island contribute to the recovery of the cost of regulating the personal insolvency system in line with the Government’s cost recovery policy. Therefore, the Bill will have no significant financial implications for the Commonwealth.

 



 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

536.                Clause 1 will provide that the Bill, if enacted, will be known as the Bankruptcy (Estate Charges) Amendment (Norfolk Island) Act 2020 .

 

Clause 2 - Commencement

 

537.                Clause 2 will provide for the commencement of the provisions of the Bill, as set out in the table.

 

538.                Table item 1 provides that the whole of the Act will commence at the same time as the provisions covered by Schedule 3 to the Territories Legislation Amendment Act 2020. The item provides that the Act will not commence at all if Schedule 3 to the Territories Legislation Amendment Act 2020 does not commence.

 

Clause 3 - Schedules

 

539.                Clause 3 will provide that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule. Any other item in a Schedule will have effect according to its terms.

 

Schedule 1 - Amendments

 

Bankruptcy (Estate Charges) Act 1997

 

Item 3 - Section 3A

 

540.                This item will repeal section 3A of the Bankruptcy (Estate Charges) Act 1997 . Section 3A currently provides that the Act does not extend to Norfolk Island. By repealing the section, this item is intended to ensure that the Act applies to Norfolk Island and that realisation and interest charges are able to be imposed and collected in relation to bankruptcies, personal insolvency agreements and debt agreements on Norfolk Island.