Territories Legislation Amendment Bill 2020 [2020] AUSStaCSBSD 188 (11 November 2020)

• Territories Legislation Amendment Bill 2020
• Broad delegation of administrative powers94
• Significant matters in delegated legislation96
• Instruments not subject to parliamentary disallowance99
• Procedural fairness
• Fair trial rights101
• Significant matters in delegated legislation Privacy105

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Territories Legislation Amendment Bill 2020

Purpose	This bill seeks to amend various Acts to improve the legal frameworks applying to the territories of Norfolk Island, Christmas Island, the Cocos (Keeling Islands) and the Jervis Bay Territory
Portfolio	Infrastructure, Transport, Regional Development and Communications
Introduced	House of Representatives on 7 October 2020

Broad delegation of administrative powers^[94]

1.128 Proposed subsection 8G(5) provides that a person or authority in whom a power is vested by a direction under paragraph 8G(3)(a) of the Christmas Island Act 1958 may delegate in writing that power to another person or authority. The delegation must be authorised by the direction (proposed subsection 8G(5)(a)) or by the minister if the direction is a deemed direction under proposed subsection 8G(5A) or (5B).

1.129 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service (or equivalent). Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.

1.130 In this instance the explanatory memorandum does not specify whether there are any limits as to who the person or authority may delegate power to under proposed subsection 8G(5). While the committee notes that such delegations would be subject to any conditions set by the direction or the minister,^[95] these conditions have not been specified on the face of the bill or clarified in the explanatory memorandum.

1.131 Further, the committee notes that the explanatory memorandum does not specify whether the person or authority to whom vested power is delegated must have appropriate expertise or qualifications relevant to the exercise of such powers.

1.132 The committee notes that the same issues arise in relation to item 40, proposed subsection 8G(5) of the Cocos (Keeling) Islands Act 1955 and item 66, proposed subsection 18B(5) of the Norfolk Island Act 1979.

1.133 The committee therefore requests the minister's advice as to:

• why it is considered necessary and appropriate to allow for such a broad delegation of a person or authority's powers under these provisions;

• whether the bill can be amended to provide some legislative guidance as to the scope of powers that might be delegated, or the categories of people to whom those powers might be delegated; and

• whether the bill can be amended to require that the minister or the relevant person or authority be satisfied that persons exercising delegated powers have the appropriate expertise and qualifications to exercise those delegated powers.

Significant matters in delegated legislation^[96]

1.134 Item 57 of Schedule 1 to the bill seeks to add proposed section 5 at the end of Part I of the Norfolk Island Act 1979 (the NI Act). Proposed subsection 5(2) provides that regulations may provide for a state or territory other than Norfolk Island to be an 'applied law jurisdiction', and for a state or territory to cease being an 'applied law jurisdiction'. This provision has the effect that the law in force in Norfolk Island may be prescribed by regulations.

1.135 In relation to this the explanatory memorandum states:

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.^[97]

1.136 In addition, item 81 of Schedule 1 to the bill seeks to insert proposed section 60AA into the NI Act. This would provide that a state or territory, other than Norfolk Island, may be prescribed by regulations as having both original and appellate jurisdiction to hear and determine matters arising under laws in force in Norfolk Island.^[98]

1.137 The committee's view is that significant matters, such as the determination of which laws will be in force on Norfolk Island and which state or territory courts will have jurisdiction for Norfolk Island, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum does not address why it is necessary or appropriate to set out either of these matters in delegated legislation.

1.138 The committee notes that this approach means that changes to the 'applied law jurisdiction' or the state or territory courts with jurisdiction for Norfolk Island will not be subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.139 The committee considers that if it is envisaged that the law of a specific state or territory may become the applied law for Norfolk Island or the courts of a specific state or territory will be conferred with jurisdiction for Norfolk Island then this specific state or territory should be set out on the face of the bill. Alternatively, if the specific state or territory is not yet known, the committee considers that a new bill to set out the 'applied law jurisdiction' and the state or territory whose courts will be conferred with jurisdiction in relation to Norfolk Island should be introduced into the Parliament in the future.

1.140 In light of the above, the committee requests the minister's detailed advice as to why it is considered necessary and appropriate to allow regulations to determine:

• which state or territory laws will be in force on Norfolk Island; and

• which state and territory courts will have jurisdiction to hear and determine matters in relation to Norfolk Island.

Instruments not subject to parliamentary disallowance^[99]

1.141 Items 67 and 72 of Schedule 1 to the bill seek to insert proposed subsections 18B(13) and 18D(13) into the Norfolk Island Act 1979. Proposed subsections 18B(13) and 18D(13) provide that an instrument made under proposed section 18B and 18D is not a legislative instrument. Proposed sections 18B and 18D deal with a range of matters relating to the vesting of powers under applied state and territory laws.

1.142 The committee notes that as instruments made under proposed section 18B and 18D are specified not to be legislative instruments they will not be subject to the tabling, disallowance or sunsetting requirements that apply to legislative instruments. As such there is no parliamentary scrutiny of non-legislative instruments. Given the impact on parliamentary scrutiny, the committee expects the explanatory materials to include a justification for why instruments that are to be made under proposed sections 18B and 18D are not legislative in character. In this instance, the explanatory memorandum notes in relation to proposed subsection 18D(13) (a similar explanation is provided for proposed subsection 18B(13):

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.^[100]

1.143 While acknowledging this explanation it is unclear to the committee, on the basis of the explanatory materials provided, why instruments made under proposed sections 18B and 18D are not legislative in character.

1.144 The committee therefore requests the minister's more detailed advice regarding:

• why it is appropriate to specify that instruments made under proposed sections 18B and 18D are not legislative instruments; and

• whether the bill could be amended to provide that these instruments are legislative instruments to ensure that they are subject to appropriate parliamentary oversight.

Procedural fairness
Fair trial rights^[101]

1.145 Item 112 of Schedule 1 to the bill seeks to repeal and substitute section 60C of the Norfolk Island Act 1979 (the NI Act). Proposed subsection 60C(2) provides that the court of a prescribed state or territory may order that any criminal trial be held or continued in the prescribed state or territory, rather than on Norfolk Island. However, the court may only make such an order, if it is satisfied that the interests of justice require it.^[102] If the court is sitting in the prescribed state or territory and the accused is not present, the accused must be represented and the court must be satisfied that the accused understands the effect of the order.^[103] Proposed paragraph 60C(5)(a) provides that the court may order that the accused be removed to a specified place and held there for the purposes of the trial and any related proceedings, and proposed paragraph 60C(5)(b) provides that the court may order that all persons required to attend to give evidence in the trial or proceedings attend at a specified time and place.

1.146 The committee considers that these measures may, over time, have the effect of reducing the number of criminal trials held on Norfolk Island. From a scrutiny perspective, the committee is therefore concerned that proposed section 60C has the potential to limit access to justice on Norfolk Island for accused persons. In relation to the right to a fair trial and fair hearing rights, the statement of compatibility states:

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.^[104]

1.147 The committee notes that the statement of compatibility accepts that the relocation of criminal proceedings from Norfolk Island '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'. However, the statement of compatibility notes in this regard that existing case law indicates that the right of the accused to obtain evidence and examine witnesses will be taken into account by the state or territory court when determining whether it would be in the interests of justice to make an order that a trial be held in the prescribed state or territory.

1.148 While the committee welcomes the requirement that a court may only make an order that a trial be held in the prescribed state or territory if it is satisfied that the interests of justice require it, the committee considers that further safeguards may be required to ensure fair trial rights and procedural fairness, given the difficulty that accused persons may face if their trial is held in a prescribed state or territory, rather than on Norfolk Island. The proposed section may affect access to justice by creating barriers to accessing legal representation, evidence and trial support. For example, an accused person's existing legal representatives may be best placed to represent them due to experience and familiarity with the accused and the case and evidence. However, it is not clear whether an accused's legal representatives would be eligible to represent the accused in another jurisdiction, nor whether the court would take into account whether the accused's existing legal representatives would be in a position to travel and reside in the other jurisdiction during the trial.

1.149 The committee therefore requests the minister's advice as to whether the bill can be amended to include additional protections to protect the rights of an accused person whose trial is held in a prescribed state or territory, rather than on Norfolk Island.

Significant matters in delegated legislation
Privacy^[105]

1.150 Item 60 of Schedule 3 to the bill proposes to insert subsection 6(5A) into section 6 of the Privacy Act 1988. Proposed subsection 6(5A) provides that the minister may, by legislative instrument, exempt a body, office or appointment for the purposes of proposed paragraphs 6(1)(ca) or 6(1)(ea) of the definition of agency. The effect of such an instrument would be exempt the relevant entity from the requirements of the Privacy Act 1988 (the Privacy Act).

1.151 The committee's view is that significant matters, such as exemptions from the requirements of the Privacy Act, should be in the primary legislation unless a sound justification for the use of delegated legislation is provided. In this regard the explanatory memorandum states:

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.^[106]

1.152 While noting the explanation provided in the explanatory memorandum, it is unclear to the committee why at least high-level guidance in relation to when the exemption power may be used cannot be included on the face of the bill. The committee notes that it is anticipated that the minister will use the power to exempt specific bodies, offices or appointments where state level privacy protections apply, such as in the example provided in the explanatory memorandum in relation to New South Wales. From a scrutiny perspective, the committee considers that it would be appropriate for such a requirement to be set out on the face of the bill to ensure that exemptions to Privacy Act requirements are not made in circumstances where there is no equivalent state or territory laws to protect the privacy of relevant individuals.

1.153 In addition, the explanatory materials do not clarify how the minister will assess whether equivalent or substantially similar safeguards exist in the relevant State or Territory jurisdictions, as compared to the Privacy Act protections.

1.154 The committee therefore requests the minister’s advice as to:

• why it is necessary and appropriate to leave significant matters, such as exemptions from the requirements of the Privacy Act, to delegated legislation, noting the potential impact on the privacy of individuals;

• whether the bill can be amended to include at least high-level guidance in relation to when the exemption power may be used; and

• how the minister will assess whether the relevant state or territory jurisdiction has equivalent or substantially similar privacy protections as provided for under the Privacy Act.

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[94] Schedule 1,item 14, proposed subsection 8G(5) of the Christmas Island Act 1958; Schedule 1, item 40, proposed subsection 8G(5) of the Cocos (Keeling) Islands Act 1955; Schedule 1, item 66, proposed subsection 18B(5) of the Norfolk Island Act 1979. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[95] Schedule 1, item 14, proposed subsection 8G(4).

[96] Schedule 1, item 57, proposed subsection 5(2) and Schedule 1, item 81, proposed subsections 60AA(1) and (2). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[97] Explanatory memorandum, p. 42.

[98] Proposed subsections 60AA (1) and (2).

[99] Schedule 1, items 67 and 72, proposed subsections 18B(1) and 18D(13). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(v).

[100] Explanatory memorandum, p. 50.

[101] Schedule 1, item 112, proposed section 60C. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[102] Proposed paragraph 60C(4)(a).

[103] Proposed paragraph 60C(4)(b).

[104] Explanatory memorandum, pp. 17-18.

[105] Schedule 3 part 3 item 60 proposed subsection 6(5A). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (iv).

[106] Explanatory memorandum, p. 107, para 483.