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Investigation and Prosecution Measures Bill 2017

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2016 - 2017 - 2018

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

INVESTIGATION AND PROSECUTION MEASURES BILL 2017

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the

Attorney-General, the Hon Christian Porter MP)

 

 



 

INVESTIGATION AND PROSECUTION MEASURES BILL 2017

GENERAL OUTLINE

1.                   The Investigation and Prosecution Measures Bill 2017 (the Bill) will make three sets of amendments:

·          First, it will amend the Telecommunications (Interception and Access) Act 1979 (the TIA Act) and the Surveillance Devices Act 2004 (the SD Act) to support a restructure of the Independent Commission Against Corruption of New South Wales (the Commission).

·          Secondly, it extends the functions, powers and duties of the Commonwealth Director of Public Prosecutions (CDPP) to the laws of Norfolk Island.

·          Thirdly, it amends the Norfolk Island Act (the NI Act) to provide for the Supreme Court of Norfolk Island to sit in other Australian jurisdictions, and to address limitations on commencing prosecutions for sex offences. 

2.                   The Bill comprises three schedules:

·          Schedule 1 addresses the amendments relevant to the Commission

·          Schedule 2 addresses the amendments relevant to the CDPP’s functions, powers and duties on Norfolk Island, and

·          Schedule 3 addresses the amendments to the NI Act.

3.                   This Supplementary Explanatory Memorandum concerns Schedule 3 only.

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

Sittings of the Supreme Court of Norfolk Island

4.                   The Supreme Court of Norfolk Island is continued by the NI Act. The NI Act makes provision for the Supreme Court to sit in a State or Territory other than Norfolk Island when exercising its civil jurisdiction. However, it does not make provision for the Supreme Court to do so when exercising its criminal jurisdiction. This Bill amends the NI Act to make provision for the Supreme Court to sit in a State or Territory other than Norfolk Island when exercising its criminal jurisdiction. It also consolidates these new provisions with provisions relating to the exercise of civil jurisdiction that are currently in the Norfolk Island Regulations 2017 .

5.                   The provisions relating to the exercise of criminal jurisdiction authorise the venue of a trial to be relocated to a State, the Australian Capital Territory (the ACT) or the Northern Territory (NT), and enable a jury to be empanelled in that other ‘host jurisdiction’ according to the laws of that State or Territory. Supporting provisions are included that govern the removal and custody of an accused person for the purposes of the trial. Provisions are also included that deal with the imprisonment of persons convicted and sentenced by the Supreme Court when sitting outside Norfolk Island.

6.                   As a general rule, the venue of a trial is ‘local’ in the sense that it is located at the place where the alleged offence was committed, by a jury composed of residents of that place. However, it is conceivable that there may be cases where holding a trial on Norfolk Island, given its small size and remote location, is not consistent with the interests of justice. For instance, it may be difficult to find jurors who do not know the accused, the victim, or other witnesses. Concerns about empanelling a jury on Christmas Island, which has a similar population to Norfolk Island, motivated the 1987 amendments to the Christmas Island Act 1958 that authorised the (now abolished) Supreme Court of Christmas Island to conduct trials in a State. The provisions of Schedule 3 of this Bill are modelled closely on those amendments.

Time limits on prosecuting sex offences

7.                   Both the Supreme Court and Court of Petty Sessions of Norfolk Island exercise criminal jurisdiction. 

8.                   The Bill amends the NI Act to remove time limits on the prosecution of sex offences and retrospectively to remove immunity that has previously arisen as a result of the expiry of any such time limit.

9.                   Prior to the commencement of the Criminal Code 2007 (NI), the provisions of the Crimes Act 1900 (NSW) as at 16 December 1936 applied to Norfolk Island by virtue of section 3 of the Criminal Law Act 1960 (NI) (applied NSW Crimes Act). Section 78 of the applied NSW Crimes Act imposed a 12 month time limit on commencing prosecution for the following offences, where the victim was, at the time of the alleged offence, over the age of 14 years and under the age of 16 years:

·          carnally knowing a girl between 10 and 16 (section 71)

·          attempt to carnally know a girl between 10 and 16 (section 72)

·          indecent assault (section 78).

10.               These offences and the associated time limit on prosecution are no longer in force in Norfolk Island (having been repealed by the Criminal Law Amendment Act 1993 (NI)). More modern equivalents of these offences are established in Part 3.6 of the Criminal Code 2007 (NI), for which no specific time limits on prosecution are imposed. The general position under Norfolk Island law is that a prosecution for an offence carrying a maximum penalty of more than six months’ imprisonment may be commenced at any time after the commission of the offence. This position is currently reflected in section 45 of the Court of Petty Sessions Act 1960 (NI) and section 11 of the Criminal law Act 1960 (NI). The maximum penalty for each offence established in Part 3.6 of the Criminal Code 2007 (NI) is imprisonment for more than six months. This is also the case for other sex offences in Parts 3.7, 3.9 and 3.10 of the Criminal Code 2007 (NI).

11.               In its 2017 Criminal Justice Report , the Royal Commission into Institutional Responses to Child Sexual Abuse recommended that ‘State and territory governments should introduce legislation to remove any remaining limitation periods, or any remaining immunities, that apply to child sexual abuse offences, including historical child sexual abuse offences, in a manner that does not revive any sexual offences that are no longer in keeping with community standards’ (recommendation 30). Other jurisdictions, such as the ACT (by way of section 441 of the Crimes Act 1900 , inserted in 2013) and Victoria (by way of section 7A of the Criminal Procedure Act 2009 , inserted in 2014) have removed limitation periods and associated immunities.Given that time limits are not imposed on prosecutions for sex offences against current Norfolk Island law, the principal operation of the Bill is to remove immunity arising as a result of the expiry of time limits that applied to now-repealed sex offences against the applied NSW Crimes Act, concordant with the recommendation of the Royal Commission.

FINANCIAL IMPACT                                                         

12.               The Bill will have no financial impact.

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Investigation and Prosecution Measures Bill 2017

Schedule 3 - Procedure in criminal and civil matter relating to Norfolk Island

Overview of the Bill                   

13.               The Bill will amend the NI Act to authorise the Supreme Court to sit in a State, the ACT or the NT, in the exercise of its civil and criminal jurisdiction. For criminal matters, the new provisions allow for the venue of the trial to be relocated from Norfolk Island to that ‘host jurisdiction’ and for a jury to be empanelled in the State or Territory according to the laws of that jurisdiction. A change of venue will only occur where it is in the interests of justice to do so.

14.               The Bill will also amend the NI Act to remove any time limits on the prosecution of sex offences and retrospectively to remove immunity that has arisen as a result of the expiry of any such time limit.

Human Rights Implications

15.               The amendments to the NI Act potentially engage the following human rights that are recognised in the ICCPR:

·          the right to liberty and security of person

·          the right to a fair trial

·          the right to be tried without undue delay

·          the right to freedom from retroactive criminal laws

Right to liberty and security of person

16.               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.

17.               The Bill authorises the detention of an accused person for the purposes of a trial held in the alternative venue. Specifically, section 60F requires a prison officer, by warrant issued by the Registrar or Magistrate of Norfolk Island under authority of an order by the Supreme Court under section 60C(5)(a), 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 procedure that are established by law, as required by Article 9(1) of the ICCPR. Moreover, the detention is subject to the power of the Supreme Court, under the Bail Act 2005 (NI), to grant bail. The exercise of this power in proceedings held or continued in the alternative venue is expressly preserved by s 60C(6). The Bail Act provides a presumption in favour of bail for most offences.

18.               The Bill does not deal with the conditions of the accused person’s detention. Rather, s 60F(4) 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 alternative venue. 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 will be a matter for the law of the alternative venue.

Right to a fair trial

19.               Article 14 of the ICCPR recognises that every person is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law in the determination of any criminal charge against them, as well as in the determination of their rights and obligations in a suit at law. It therefore applies to proceedings before a Norfolk Island court in exercise of its civil and criminal jurisdiction.

20.               The Bill engages the right to a fair trial to the extent that it removes time limits on the prosecution of historical sex offences. By doing so, it exposes persons to criminal proceedings in respect of offences committed potentially many years prior to trial. The trial of historical sex offences poses challenges for the criminal justice system, particularly in terms of the availability and reliability of evidence, as acknowledged by Wilcox J for the Supreme Court of Norfolk Island in Nobbs v Heath [2001] NFSC 1. Nevertheless, existing law in force in Norfolk Island provides a number of safeguards that are designed to ensure that an accused person receives a fair trial. For example, under common law, a trial judge is required to warn a jury about the dangers of convicting an accused person on evidence of a complainant that could no longer be adequately tested by the accused due to the delay between the alleged conduct constituting the offence and the trial, and which itself may be subject to errors in recollection due to that delay. This was stated by the High Court in Longman v The Queen (1989) 168 CLR 79. Moreover, the Supreme Court of Norfolk Island has the inherent power to order a permanent stay of criminal proceedings where the delay in the trial amounts to an abuse of process, or where the proceedings will otherwise result in an unfair trial: Jago v District Court of New South Wales (1989) 168 CLR 23; Dietrich v The Queen (1992) 177 CLR 292. The Bill will operate within an existing legal framework that safeguards the right of the accused person to a fair trial.

21.               The Bill also engages the right to a fair trial to the extent that it authorises the venue of criminal and civil proceedings to be relocated from the place where the alleged or impugned conduct was likely engaged in. 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. It is expected that these factors will be taken into account by the Supreme Court in determining whether the relocation would be contrary to the interests of justice, based on existing case law on this issue.

22.               By authorising the trial venue to be relocated and the empanelment of a jury in the alternative venue, the Bill will promote the right to a fair trial in cases where there are concerns about empanelling an impartial local jury. Similar concerns motivated the 1987 amendments to the Christmas Island Act 1958 on which Schedule 3 of the Bill is closely modelled.

Right to be tried without undue delay

23.               Article 14(2)(c) of the ICCPR provides that every person is entitled to be tried without undue delay in the determination of any criminal charge against them. The focus of this right is on the trial of the accused person. The right is therefore concerned with the delay between the accused person being notified of the prosecution to the determination of the proceedings. It is not concerned with any delay between the alleged commission of the offence and the prosecution of the offence. As such, the amendments do not engage this right.

Freedom from retroactive criminal laws

24.               Article 15(1) of the ICCPR provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed. Removing time limits on the prosecution of sex offences, and removing any immunity that arises as a result of the expiry of those time limits, does not fall within the scope of this freedom. The Bill is only concerned with prosecuting offences, and is not concerned with creating offences. The amendments do not criminalise conduct that was not an offence at the time it was committed. As such, the amendments do not engage this right.

Conclusion

25.               The Bill is compatible with human rights.



 

NOTES ON CLAUSES

SCHEDULE 3 - PROCEDURE IN CRIMINAL AND CIVIL MATTERS RELATING TO NORFOLK ISLAND

Item 1 - Subsection 4(1)

26.               This item inserts definitions of several terms that are used in new Part VIIA of the Norfolk Island Act (the NI Act). The Bill uses the term ‘host jurisdiction’ to describe the jurisdiction in which the Supreme Court of Norfolk Island is to sit under the new provisions. The host jurisdiction may be a State, the Australian Capital Territory (the ACT) or the Northern Territory (NT). The term ‘civil matter’ picks up the language currently used in section 67(a) of the NI Act to describe matters for which the Supreme Court is currently authorised to sit outside Norfolk Island under Part 2 of the Norfolk Island Regulations 2017 . The other terms defined are used in the new provisions relating to sittings of the Supreme Court and are the terms used in the Christmas Island Act 1958 on which those provisions are closely modelled.

Item 2 - Section 59

27.               This item amends section 59 on account of the fact that procedures for sittings of the Supreme Court of Norfolk Island outside Norfolk Island are provided by and under the NI Act itself, and no longer by or under regulations referred to in existing paragraph 67(a) of the NI Act.

Item 3 - After Part VII

28.               This item inserts the bulk of the amendments to the NI Act:

·          Subdivision A of Division 1 deals with time limits on prosecuting offences against Norfolk Island laws.

·          Subdivision B of Division 1 deals with sittings of the Supreme Court outside Norfolk Island in criminal matters

·          Division 2 deals with sittings of the Supreme Court of Norfolk Island outside Norfolk Island in civil matters

Time limits on prosecuting offences

29.               New subsection 60A(1) provides that the prosecution for a sex offence listed in new Schedule 5 may be commenced at any time after the commission of the offence. Schedule 5 lists a range of offences by reference to:

·          provisions of the Criminal Code 2007 (NI) - Part 3.6 of the Code establishes sexual offences, Part 3.7 establishes child pornography offences, Part 3.9 establishes female genital mutilation offences, and Part 3.10 establishes sexual servitude offences. Part 2.4 of the Code extends criminal liability for these offences to attempt, complicity and common purpose, agency, incitement, and conspiracy.

                                                                                                                                         

·          provisions of the applied NSW Crimes Act as modified from time to time by amendments to the Criminal Law Act 1960 (NI) - Sections 62 to 81 of the applied NSW Crimes Act established rape and similar offences. These provisions were removed by the Criminal Law Amendment Act 1993 (NI) and a new Part IIIA was inserted establishing sexual offences. Sections 86 to 91D of the applied NSW Crimes Act established abduction offences, which included procurement offences and other offences with sexual elements. Part IX of the applied NSW Crimes Act extended criminal liability to abettors and accessories.

30.               New subsection 60A(2) provides that subsection (1) applies even if a shorter time limit for prosecution applies. Such shorter time limits may be provided under the continued laws of Norfolk Island (ie, laws continued in force by sections 16 or 16A of the NI Act), or laws previously in force in Norfolk Island. To the extent that a shorter time limit is provided, the general position in subsection (1) prevails, and the time limit is removed.

31.               Not all offences listed in new Schedule 5 are subject to a time limit on prosecution. The general position under Norfolk Island law is that a prosecution for an offence carrying a maximum penalty of more than six months’ imprisonment may be commenced at any time after the commission of the offence. All of the principal offences listed in Schedule 5 carry a maximum penalty within this range. However, some of these offences have historically been subject to shorter time limits on prosecution. The inclusion of other offences in subsection (3) is not intended to imply that those offences are, or have been, subject to time limits on prosecution.

32.               New subsection 60A(2) also provides that subsection (1) applies even if a relevant shorter time limit on prosecution has expired, and an immunity from prosecution has arisen as a result of the expiry of that time limit. Read with new section 60M, this clarifies that subsection (1) has the effect of retrospectively removing time limits on the prosecution of sex offences, including time limits that applied to the offence at the time of its commission, but which have subsequently been repealed. One example of such a time limit is section 78 of the applied NSW Crimes Act.

33.               Where a time limit for the prosecution of a sex offence has expired, an accused person may be said to acquire a ‘right’ not to be prosecuted for that offence (or an ‘immunity’ from prosecution). The legislative history of these time limits and the experience of the criminal justice system in prosecuting these offences reveal that the time limits are arbitrary and were imposed without an understanding of the nature of the offending and its impact on the victim. These time limits are no longer in keeping with community expectations and adversely affect victims, particularly child victims, who are barred from accessing justice due to delays in disclosing sexual abuse. These considerations call into question the legitimacy of any right or immunity that is acquired as a result of the expiry of those time limits and justify the retrospective removal of that right or immunity. 

34.               New subsection 60A(1) only applies to time limits on prosecuting sex offences listed in Schedule 5. It does not affect time limits provided under Norfolk Island law for the prosecution of other offences. The general position under Norfolk Island law is that a prosecution for an offence carrying a maximum penalty of six months’ imprisonment or less must be commenced within 12 months after the commission of the offence. However, specific time limits are provided under the continued laws of Norfolk Island that depart from this general position. One example is section 93 of the Marine Safety Act 2013 (NI), which provides a two year time limit on prosecuting offences under that Act or regulations made under that Act.

35.               Section 60A is concerned with the prosecution of offences. It does not revive sex offences listed in Schedule 8 that have been amended or repealed. Nor does it establish criminal liability for conduct that did not constitute a criminal offence at the time that conduct was engaged in.

Sittings of the Supreme Court of Norfolk Island exercising criminal jurisdiction

36.               Division 1 Subdivision B of new Part VIIA contains provisions that are modelled closely on section 11AAA, 11AA, 12A, 12B and 18A to 18F of the Christmas Island Act 1958 .

37.               New section 60B provides that the Commonwealth may make arrangements with the government or an authority of the host jurisdiction for the purposes of the effective application of the provisions of Division 1 Subdivision B. This provision is based on s 11AAA of the Christmas Island Act 1958 . The cooperation of State and Territory authorities, such as courts and remand centres, will ensure that the Supreme Court of Norfolk Island can conduct trials outside Norfolk Island with minimal impact on its usual procedures. These arrangements are expected to cover the facilities and resources needed to support the Supreme Court sitting in its criminal jurisdiction, as well as the detention of the accused person, where provided by law. In the case of a State, subdivision (2) provides that a power will only be conferred, and a duty or function will only be imposed, on an officer of the State under Division 1 Subdivision B if the conferral or imposition is in accordance with such an arrangement that is in place.

38.               New section 60C gives the Supreme Court powers necessary to sit outside Norfolk Island in criminal matters, thereby relocating the venue of the trial outside Norfolk Island. It is based on s 11AA of the Christmas Island Act 1958 :

·          Subsection (1) confers a general power on the Supreme Court to sit in the alternative venue. It is operationalised by the subsections that follow. The Supreme Court is only empowered to sit in the alternative venue if to do so would not be contrary to the interests of justice.

·          Subsection (2) provides that, at any time after prosecution commences but before the jury returns its verdict, the Supreme Court may order that the trial be held or continued at an alternative venue in a State, the ACT, or the NT. The Supreme Court may only make such an order if it is satisfied that the interests of justice require it. If the trial has already begun, the order will provide for the jury to be discharged. New section 60D makes provision for the empanelment of a new jury in the alternative venue. Subsection (3) clarifies that the Supreme Court may make an order under subsection (2) at a sitting in Norfolk Island or in the host jurisdiction. Section 67 of the NI Act is being amended to specifically authorise the making of regulations that prescribe circumstances in which the prosecution is taken to have commenced. Norfolk Island law generally provides for prosecutions to be commenced by the laying of an information.

·          Subsection (4) provides that the Supreme Court may order a change of venue outside Norfolk Island in the absence of the accused person, but must only do so if the accused person is represented, and the Supreme Court is satisfied that the accused person understands the effect of the order.

·          Subsection (5) provides that, where the Supreme Court orders a change of venue outside Norfolk Island, it may also order that the accused person be removed to the alternative venue, and that persons required to give evidence be summoned to attend at that venue. New section 60F makes further provision for the removal of the accused person.

·          Subsections (6) and (7) provide that the Supreme Court has all the powers in the alternative venue which it would have if it were sitting on the trial in Norfolk Island, and that the powers so exercised are taken to have been exercised by the Supreme Court at a sitting in Norfolk Island.

·          Subsection (8) provides that the Supreme Court may order a return to Norfolk Island to continue the trial there, and for the accused person and jury to attend. The Supreme Court may only make such an order if it is satisfied that the interests of justice require it, and if do so is for the purpose of viewing a place, taking evidence from a person, or a purpose prescribed in the regulations. New section 60H makes further provision for the return of the accused person to Norfolk Island.

·          Subsection (9) provides that fees and allowances for witnesses under Norfolk Island law are payable by the Commonwealth for trials held outside Norfolk Island.

·          Subsection (10) provides that disobedience to the orders, warrants, summonses or judgments of the Supreme Court in the alternative venue is an offence against the NI Act if that disobedience constituted an offence against the laws of Norfolk Island were it to have occurred in Norfolk Island. The penalty for committing the offence against the NI Act is the same as the penalty for the offence against the laws of Norfolk Island.

39.               New section 60D provides for the empanelment of a jury in the alternative venue. It is based on section 12A of the Christmas Island Act 1958 :

·          Subsection (1) applies the laws of the host jurisdiction concerning juries to trials in the Supreme Court of Norfolk Island when sitting at that venue. For the purposes of the effective operation of those laws, subsection (7) empowers the Supreme Court of Norfolk Island to order an officer of the Court to do any act or thing required to be done under that applied law by some other specified person. 

·          Subsections (2) to (4) prescribe the procedure for empanelling the jury in the alternative venue. Officers of the Supreme Court of Norfolk Island are charged with preparing the jury panel and summoning jurors, using the jury list used by the authorities of the host jurisdiction. To this end, the person who has custody of that jury list is required to provide a copy of the list, and to indicate on the copy the names of the persons who are liable to serve as jurors under the laws of the host jurisdiction. Subsection (5) requires the Commonwealth to pay any reasonable fee demanded for the copy of the jury list. Subsection (9) provides a broad definition of the term ‘jury list’. In some jurisdictions, the term describes the jury roll, whereas in other jurisdictions, the term describes the list of eligible jurors selected from the roll to be summoned.

·          Subsection (6) requires the Commonwealth to remunerate jurors. Pursuant to paragraph (h) of subsection (1), the rate and manner of remuneration is prescribed by the laws of the host jurisdiction.

·          Subsection (8) enables regulations to be made under the NI Act that modify the operation of the laws of the host jurisdiction concerning juries that are applied to trials in the Supreme Court of Norfolk Island under subsection (1). This provision authorises the Executive to modify the operation of the NI Act, but only to the extent that the NI Act applies the provisions of the laws of the host jurisdiction. Those provisions are already subject to modification over time by the legislature of the host jurisdiction. Besides subsection 12A(8) of the Christmas Island Act 1958 on which subsection (8) is based, there are other instances in Commonwealth legislation where the Executive is empowered to modify the operation of applied laws. One such instance is section 46 of the Sea Installations Act 1987 . Another example is section 18A of the NI Act, which authorises the Governor-General, by ordinance, to amend or repeal a law of New South Wales that is applied to Norfolk Island under the Act. It may be necessary to modify applied jury laws to ensure that applied laws are adapted to the expectations of the Commonwealth regarding jury trials. 

40.               New section 60E establishes offences in relation to jurors for a trial of the Supreme Court of Norfolk Island sitting in an alternative venue. It is based on section 12B of the Christmas Island Act 1958 :

·          Subsection (1) establishes an offence of failing to attend or absconding from attendance in accordance with a summons for jury service. Subsection (2) establishes an exception in cases where the person has a reasonable excuse.

·          Subsection (3) establishes an offence of impersonating a juror in order to sit on a jury.

·          Subsection (4) establishes an offence of corrupting a juror. The offence is constituted by conduct of a third person corrupting a juror, making a payment to or conferring a benefit on a juror, or promising to do so. The offence is also constituted by the juror accepting such a payment or benefit.

41.               New sections 60F to 60H govern the removal of an accused person from Norfolk Island to the alternative venue and custody of the removed person for the purposes of the trial. They also govern the return of the accused person to Norfolk Island for the purposes of the trial or upon acquittal. New sections 60J and 60K deal with the imprisonment of persons convicted and sentenced by the Supreme Court when sitting outside Norfolk Island. These provisions are based on sections 18A to 18F of the Christmas Island Act 1958 and are designed to supersede existing arrangements for the removal of prisoners and persons on remand from Norfolk Island in cases where the Supreme Court sits outside Norfolk Island.

42.               New section 60F makes further provision for the removal of an accused person to the alternative venue if that removal is ordered by the Supreme Court of Norfolk Island under subsection 60C(5):

·          Subsection (1) authorises the Registrar of the Court, a Magistrate, or other person directed by the Court to require, by warrant, any constable to convey the accused person from Norfolk Island to a specified prison in the host jurisdiction and to deliver the accused person into the custody of the officer in charge of that prison. It also authorises the Registrar of the Court, Magistrate, or other person directed by the Court to require, by warrant, the officer in charge of the prison to detain the accused person for as long as necessary for the execution of the removal order. Subsection (3) authorises the detention of the accused person in the prison, or in any other prison in the host jurisdiction.

·          Subsection (4) provides that the accused person is to be dealt with in the same manner, and subject to the same laws, as if the person was on remand under the laws of the host jurisdiction.

·          Subsection (5) provides that the Commonwealth is to pay the host jurisdiction the reasonable expenses of detaining the accused person. 

43.               New section 60G empowers the Supreme Court of Norfolk Island to order that the accused person, having been removed to the alternative venue, be conveyed to the Court for the trial or related proceedings. To enable this to happen, the person having custody of the accused person (eg, the officer in charge of the prison) is required to release the accused person to a constable.

44.               New section 60H makes further provision for the return of the accused person if the Supreme Court of Norfolk Island orders the trial to be continued in Norfolk Island under subsection 60C(8). In similar terms to subsection 60F(1), it authorises the Registrar of the Court to require, by warrant, any constable to convey the accused person to a specified prison in Norfolk Island and to deliver the accused person into the custody of the officer in charge of that prison.

45.               New section 60J deems a person, who has been tried at an alternative venue and been convicted and sentenced to imprisonment, to be a prisoner and to have been removed to the host jurisdiction under the Removal of Prisoners (Territories) Act 1923 . The provisions of that Act apply to the detention of the person and their eventual return to Norfolk Island.

46.               New section 60K makes similar provision in relation to:

·          a person who is found to have been insane at the time of the commission of the offence;

·          a person who is found to be unfit to be tried on the ground of insanity; or

·          a person convicted of an offence but later found to be insane.

47.               It deems such a person to be a ‘criminal lunatic’ and to have been removed to the alternative venue under the Removal of Prisoners (Territories) Act 1923 . The new section uses the terminology used in that Act, even though these terms may not be used under the laws of Norfolk Island. Sections 9 and 10A of that Act provide for the detention of that person and their eventual release.

48.               New section 60L provides for the return of a person who has been removed from Norfolk Island if the person has been acquitted or is not liable to imprisonment at the conclusion of the trial. The Commonwealth is required, on application by the person to the Secretary of the Department administering the NI Act, to provide the person with means to enable their return to Norfolk Island.

49.               Division 1 Subdivision C of new Part VIIA contains interpretative provisions that apply to Division 1 as a whole (ie, they apply both to the provisions dealing with time limits on prosecuting offences, and to the provisions dealing with sittings of the Supreme Court of Norfolk Island exercising criminal jurisdiction).

50.               New section 60M provides that a reference to an offence against a law of Norfolk Island includes a reference to an offence against a law in force at the time at which the conduct constituting the offence is alleged to have occurred, which may subsequently have been amended or repealed. Read with new subsection 60A(2), this provision clarifies that subsection 60A(1) has the effect not only of retrospectively removing time limits on the prosecution of sex offences, but also of removing immunity that has previously arisen as a result of the expiry of those time limits.

51.               New section 60N provides definitions for the terms ‘conduct’ and ‘engage in conduct’ by reference to the definition of those terms in the Criminal Code . These terms are only used in subsection 60E(4) (which establishes the offence of corrupting a juror) and section 60M.

Sittings of the Supreme Court of Norfolk Island exercising civil jurisdiction

52.               Division 2 of new Part VIIA recast the provisions relating to sittings of the Supreme Court of Norfolk Island outside Norfolk Island in civil matters that are currently set out in Part 2 of the Norfolk Island Regulations 2017 , as enabled by section 67(a) of the NI Act. These provisions have been redrafted to align, where appropriate, with the provisions in Division 1 Subdivision B (relating to sittings of the Supreme Court outside Norfolk Island in criminal matters). As a result of this change, Part 2 of the Norfolk Island Regulations 2017 will be repealed, and section 67(a) of the NI Act is being repealed (see item 4).

Item 4 - Paragraph 67(a)

53.               This item repeals paragraph 67(a) on account of the fact that it is now the NI Act itself that provides for and in relation to sittings of the Supreme Court of Norfolk Island in a State or in a Territory other than Norfolk Island for the purpose of hearing and determining a civil matter. This item inserts in its place a new paragraph that enable regulations dealing with the matters referred to in subsection 60C(2) (ie, prescribing circumstances in which the prosecution for an offence against a law of Norfolk Island is taken to have commenced).

Item 5 - At the end of the Act

54.               This item inserts new Schedule 5, which refers to sex offences that are, or were, established by the Criminal Code 2007 (NI) and the applied NSW Crimes Act. The purpose of Schedule 5 is to list the sex offences to which section 60A applies, and therefore for which any time limit for prosecution is removed. These offences are described in more detail in the notes on section 60A.

Item 6 - Application of amendments

55.               This item provides transitional arrangements for amendments dealing with sittings of the Supreme Court of Norfolk Island. Under these arrangements, the Supreme Court of Norfolk Island will be able to use the provisions in Division 1 Subdivision B of new Part VIIA to relocate a trial that has already begun at before the commencement of that Subdivision.