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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NORFOLK ISLAND AMENDMENT (SUPREME COURT) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the Assistant Minister for Regional Development and Territories,
The Hon Nola Marino MP)
NORFOLK ISLAND AMENDMENT (SUPREME COURT) BILL 2020
OUTLINE
The purpose of the Bill is to amend the Norfolk Island Act 1979 (the Act) to make technical
amendments with respect to the Supreme Court of Norfolk Island (the Supreme Court). The
amendments are intended to make technical changes to the provisions authorising off-island
sittings of the Supreme Court and clarify the basis under which travelling allowances are
determined for judges of the Supreme Court.
Provisions inserted into the Act in 2018 enable the Supreme Court to sit in a state or territory
other than Norfolk Island when exercising its criminal and civil jurisdictions. These
provisions were intended to address concerns that there may be cases where holding a
criminal trial on Norfolk Island, given its small size and remote location, is not consistent
with the interests of justice.
These provisions also allow the Commonwealth to enter into arrangements with the
government or an authority of a state or territory for the purposes of the effective application
of the provisions dealing with the hearing of criminal and civil matters in that host
jurisdiction. The cooperation of state and territory authorities, such as courts and remand
centres, for instance, will assist the Supreme Court when conducting criminal trials outside
Norfolk Island. However, for constitutional reasons, the provisions also provide that a power
will only be conferred, and a duty or function will only be imposed, on a state officer if the
conferral or imposition is in accordance with such an arrangement.
The effect of these technical amendments is to remove any doubt that the Supreme Court may
exercise its criminal or civil jurisdiction in a state, in the absence of an arrangement between
the Commonwealth and the state government or authority, where no powers, duties or
functions are conferred or imposed upon a state officer. For instance, state officers will
normally not be required to discharge any functions when a judge of the Supreme Court sits in
Commonwealth court facilities assisted only by other Supreme Court or Commonwealth
officials. As judges of the Federal Court of Australia (Federal Court) have been appointed to
the Supreme Court, there is an established practice that Supreme Court judges normally
operate out of the Federal Court in the state capitals (including via audio-visual links with
Norfolk Island), in particular for directions and case management hearings and other
interlocutory and chamber matters. State officers are not required to discharge any functions
for these proceedings.
The amendments also clarify the basis on which travelling allowances are determined for
judges of the Supreme Court. The intention of these amendments is to reflect the existing
practice by which judges of the Supreme Court receive the travelling allowances, as
determined by the Remuneration Tribunal, to which they are entitled as a judge of another
court created by the Parliament. Under section 53 of the Act, the Chief Justice and the other
judges of the Supreme Court must be judges of another court created by the Parliament (for
instance, the Federal Court or the Federal Circuit Court of Australia (Federal Circuit Court)).
Financial impact statement
These amendments do not have any additional impact on the budget.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Norfolk Island Amendment (Supreme Court) Bill 2020
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
The purpose of the Bill is to amend the Norfolk Island Act 1979 (the Act) to make technical
amendments with respect to the Supreme Court of Norfolk Island (the Supreme Court). The
amendments are intended to make technical changes to the provisions authorising off-island
sittings of the Supreme Court and clarify the basis under which travelling allowances are
determined for judges of the Supreme Court.
Provisions inserted into the Act in 2018 enable the Supreme Court to sit in a state or territory
other than Norfolk Island when exercising its criminal and civil jurisdictions. These
provisions were intended to address concerns that there may be cases where holding a
criminal trial on Norfolk Island, given its small size and remote location, is not consistent
with the interests of justice.
These provisions also allow the Commonwealth to enter into arrangements with the
government or an authority of a state or territory for the purposes of the effective application
of the provisions dealing with the hearing of criminal and civil matters in that host
jurisdiction. The cooperation of state and territory authorities, such as courts and remand
centres, for instance, will assist the Supreme Court when conducting criminal trials outside
Norfolk Island. However, for constitutional reasons, the provisions also provide that a power
will only be conferred, and a duty or function will only be imposed, on a state officer if the
conferral or imposition is in accordance with such an arrangement.
The effect of these technical amendments is to remove any doubt that the Supreme Court may
exercise its criminal or civil jurisdiction in a state, in the absence of an arrangement between
the Commonwealth and the state government or authority, where no powers, duties or
functions are conferred or imposed upon a state officer. For instance, state officers will
normally not be required to discharge any functions when a judge of the Supreme Court sits in
Commonwealth court facilities assisted only by other Supreme Court or Commonwealth
officials. As judges of the Federal Court of Australia (Federal Court) have been appointed to
the Supreme Court, there is an established practice that Supreme Court judges normally
operate out of the Federal Court in the state capitals (including via audio-visual links with
Norfolk Island), in particular for directions and case management hearings and other
interlocutory and chamber matters. State officers are not required to discharge any functions
for these proceedings.
The amendments also clarify the basis on which travelling allowances are determined for
judges of the Supreme Court. The intention of these amendments is to reflect the existing
practice by which judges of the Supreme Court receive the travelling allowances, as
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determined by the Remuneration Tribunal, to which they are entitled as a judge of another
court created by the Parliament. Under section 53 of the Act, the Chief Justice and the other
judges of the Supreme Court must be judges of another court created by the Parliament (for
instance, the Federal Court or the Federal Circuit Court of Australia).
Human rights implications
The amendments make technical changes to the provisions authorising off-island sittings of
the Supreme Court and clarify the basis on which travelling allowances are determined for
judges of the Supreme Court.
The off-island sittings amendments are intended to ensure that these provisions operate as
originally intended by removing any doubt that the Supreme Court may exercise its criminal
or civil jurisdiction in a state, in the absence of an arrangement between the Commonwealth
and the state government or authority, where no powers, duties or functions are conferred or
imposed upon a state officer.
The amendments also clarify the basis on which travelling allowances are determined for
judges of the Supreme Court. The intention of these amendments is to reflect the existing
practice whereby judges of the Supreme Court receive the travelling allowances, as
determined by the Remuneration Tribunal, to which they are entitled as a judge of another
court created by the Parliament.
The statement of compatibility with human rights prepared with respect to the introduction of
the off-island sittings measures by the 2018 Act concluded that, while these provisions
potentially engaged a number of human rights, the measures either did not engage those rights
or were compatible with human rights. These technical amendments have no further
substantive impact on human rights than the measures as originally introduced. Accordingly,
these amendments do not engage any of the applicable human rights or freedoms.
The other amendments, dealing with travelling allowances, do not affect existing practice and
also do not engage any of the applicable human rights or freedoms.
Conclusion
The Bill is compatible with human rights because it does not engage any human rights.
Assistant Minister for Regional Development and Territories,
The Hon Nola Marino MP
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NOTES ON CLAUSES
Clause 1: Short title
1. This clause specifies the short title of the Bill, if enacted, as the Norfolk Island
Amendment (Supreme Court) Act 2020.
Clause 2: Commencement
2. This clause specifies the commencement of the Bill. The table specifies that the whole
Bill will commence the day after the Bill receives the Royal Assent.
Clause 3: Schedule
3. This clause provides that legislation that is specified in a Schedule to the Act is amended
or repealed as set out in the Schedule concerned and any other item in a Schedule to the
Act has effect according to its terms.
SCHEDULE 1--AMENDMENTS
Part 1--Amendments
Norfolk Island Act 1979
Item 1--Subsection 4(1) (definition of host jurisdiction)
4. This item amends subsection 4(1) of the Act by substituting a new definition of 'host
jurisdiction' for the purposes of the Act. The new definition removes the references in the
existing definition to subsections 60B(3) and 60P(3) which provide that a 'host
jurisdiction' includes 'a State in relation to which an arrangement has been entered into
under' subsection 60B(1) or 60P(1) of the Act. Instead, paragraph (a) of the new
definition provides that 'host jurisdiction' means 'a State'. Paragraphs (b) and (c) of the
new definition are based on existing paragraphs 60B(3)(b) and (c) and 60P(3)(b) and (c)
of the Act and provide that 'host jurisdiction' also means the Australian Capital Territory
and the Northern Territory.
5. The effect of the amendment is to remove any doubt that the Supreme Court may exercise
its criminal or civil jurisdiction in a state, in the absence of an arrangement between the
Commonwealth and the state government or authority, where no powers, duties or
functions are conferred upon a state official. For instance, state officials will normally not
be required to discharge any functions when a judge of the Supreme Court sits in
Commonwealth court facilities assisted only by other Supreme Court or Commonwealth
officials.
Item 2--Section 56
6. This item substitutes a new section 56 of the Act, which deals with the salary and
allowances of judges of the Supreme Court. The effect of the amendment is to provide
that the travelling allowances of judges will no longer be as the Governor-General
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approves. Instead, a judge will receive the travelling allowances that the judge receives as
a judge of the other court, or other courts, of which he or she is a judge (for instance, the
Federal Court or the Federal Circuit Court).
7. The intention of the amendment is to reflect the existing practice by which judges of the
Supreme Court receive the travelling allowances, as determined by the Remuneration
Tribunal, to which they are entitled as a judge of another court created by the Parliament.
Under section 53 of the Act, the Chief Justice and the other judges of the Supreme Court
must be judges of another court created by the Parliament (for instance, the Federal Court
or the Federal Circuit Court).
Item 3--Subsection 60B(1)
8. This item substitutes a new subsection 60B(1) of the Act. The amendment relates to the
substitution of a new definition of 'host jurisdiction' by item 25. New subsection 60B(1)
is based on the existing subsection 60B(1) and provides that the Commonwealth may
enter into arrangements with the government or an authority of a host jurisdiction for the
purposes of the effective application of the provisions dealing with the hearing of criminal
matters in that host jurisdiction (Subdivision B of Division 1 of Part VIIA of the Act). For
instance, arrangements may facilitate the cooperation of state and territory authorities,
such as courts and remand centres, to assist the Supreme Court when conducting criminal
trials outside Norfolk Island.
Item 4--Subsection 60B(3)
9. This item repeals subsection 60B(3) of the Act, which presently defines 'host jurisdiction'
for the purposes of Subdivision B of Division 1 of Part VIIA of the Act. The repeal of this
subsection is a consequential amendment arising from the substitution of a new definition
of 'host jurisdiction' in subsection 4(1) of the Act by item 25.
Item 5--Subsection 60P(1)
10. This item substitutes a new subsection 60P(1) of the Act. The amendment relates to the
substitution of a new definition of 'host jurisdiction' by item 25. New subsection 60P(1) is
based on the existing subsection 60P(1) and provides that the Commonwealth may enter
into arrangements with the government or an authority of a host jurisdiction for the
purposes of the effective application of the provisions dealing with the hearing of civil
matters in that host jurisdiction (Division 2 of Part VIIA of the Act).
Item 6--Subsection 60P(3)
11. This item repeals subsection 60P(3) of the Act, which presently defines 'host jurisdiction'
for the purposes of Division 2 of Part VIIA of the Act. The repeal of this subsection is a
consequential amendment arising from the substitution of a new definition of 'host
jurisdiction' in subsection 4(1) of the Act by item 25.
Item 7--Subsection 60Q(6)
12. This item repeals subsection 60Q(6) of the Act, which deals with the payment of witness
fees and allowances. That provision, which is based on subsection 60C(9) of the Act,
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provides that the fees and allowances of witnesses who appear in proceedings held in a
host jurisdiction must be paid by the Commonwealth. While this provision is appropriate
with respect to criminal trials (hence subsection 60C(9)), it is not appropriate in civil
matters where the parties concerned are normally responsible for costs, including witness
expenses.
Part 2--Application of amendments
Item 8--Travelling allowances of Judges
13. This item is an application provision that provides that the amendment of section 56 of the
Act, which deals with the salary and allowances of judges, has no effect to the extent (if
any) that the amendment would otherwise operate to diminish the remuneration of a judge
during the judge's continuance in office.
Item 9--Arrangements with host jurisdictions
14. Subitems 33(1) and (2) are application provisions that provide, respectively, that despite
the substitution of subsections 60B(1) and 60P(1) of the Act, a reference to an
arrangement in Part VIIA of the Act as amended is taken to include a reference to any
arrangements that were entered into under those subsections before their substitution and
that remain in force. These subitems are intended to preserve the operation of any
arrangements entered into by the Commonwealth and the government or authority of a
state or territory before the amendment of the Act and which are still in force at the time
the Act is amended.
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