Purpose of the Bill

The purpose of the Norfolk Island Amendment (Supreme Court) Bill 2020 (the Bill) is to amend the Norfolk Island Act 1979 (the Act) to make three changes to the operation of the Norfolk Island Supreme Court:

1.  To make technical amendments to the provisions authorising off-island sittings of the Supreme Court of Norfolk Island (inserted by the Investigation and Prosecution Measures Act 2018, (IAPMA)) to remove any doubt that the Supreme Court of Norfolk Island may exercise its jurisdiction in a State, even in the absence of an arrangement between the State Government and the Commonwealth.

2.  To remove the obligation for the Commonwealth to pay witness allowances and fees for civil matters heard in a host jurisdiction currently provided for by subsection 60Q(6) of the Act. (Also inserted by the IAPMA).

3.  To abolish the separate scheme of Supreme Court travelling allowances provided by subsection 56(2) of the Act, instead providing that judges of the Supreme Court will receive travelling allowances on the same terms as they would receive as a member of their primary court. (All members of the Norfolk Island Supreme Court are judges of another federal court created by Parliament, such as the Federal Court of Australia or the Federal Circuit Court.)

Structure of the Bill

The Bill consists of a single schedule divided into two parts.

• Part 1 details the amendments to the Act and
• Part 2 provides for the application of these amendments.

Background

The unique governance history of Norfolk Island

A previous Bills Digest by the Library noted that ‘the constitutional status and history of the Island is complex and unusual’.[1] This complex and unusual status is integral to the potential sensitivities around this Bill and previous Bills related to Norfolk Island’s governance. Those governance arrangements have been the subject of several royal commissions and a multitude of other inquiries.[2] 

Norfolk Island is an external territory of the Commonwealth of Australia. It is currently governed in a similar manner to the other two inhabited external territories,[3] with the application of most federal laws, NSW state laws and a locally elected Norfolk Island Regional Council which is constituted under NSW local government legislation as applied by Commonwealth ordinance.[4]

This state of affairs however is recent, and highly controversial. Between 1979 and 2015, Norfolk Island was a self-governing external territory, with the Norfolk Island Legislative Assembly having local, state and federal government responsibilities. Norfolk Islanders did not pay federal taxes, did not vote in Commonwealth elections or referenda, and were not subject to the Australian industrial relations system. They could not access Commonwealth health and welfare benefits and the Norfolk Island Legislative Assembly controlled immigration to Norfolk Island.[5]

The abolition of Norfolk Island self-government by the Norfolk Island Legislation Amendment Act 2015[6] remains highly controversial on the island.[7] However it is notable that since the Wilkinson Inquiry in 1885[8] there appears to have never been a substantial period of consensus agreement on the appropriate governance arrangements of Norfolk Island, which is partially why the Island’s governance arrangements have always been fundamentally unstable. The history of Norfolk Island is a complicated one of innumerable reports, commissions, inquiries, studies, submissions, petitions, referendums, and reforms.[9]

The fundamental tensions that drive this instability are much the same as they were in the Wilkinson Inquiry, namely:

• the balance of power between the resident population of Norfolk Island and the government entity that administers or oversees it
• the economic and financial self-sufficiency of the Island, which has nearly always been a net financial liability to the government that administers or oversees it, along with related questions concerning taxation and services[10]
• concerns with the administration of justice and corruption on the Island, particularly concerning domestic violence and sexual offences[11]
• the status of the descendants of the Pitcairn settlers and related issues concerning land ownership, electoral qualifications, immigration, and sovereignty. [12]

Petitions to the United Nations

Since the revocation of self-government two Norfolk Island community groups, Norfolk Island People for Democracy and the Norfolk Council of Elders[13] have made two applications to the United Nations (UN), represented by Geoffrey Robertson QC:

• In April 2016, petition was made to the UN General Assembly’s Fourth Committee (the Special Political and Decolonisation Committee) requesting Norfolk Island be inscribed on the UN’s list of non-self-governing territories. The UN list of non-self-governing territories identifies territories that the UN General Assembly deems to be ‘non-self-governing’ and subject to a decolonisation process.[14]
• In March 2018, a complaint was made to the UN High Commissioner for Human Rights alleging that the revocation of self-government had breached Australia’s human rights obligations at international law.[15]  

The Decolonisation petition has not been listed or actioned further, to the Library’s knowledge.[16] This is not the first time people from Norfolk Island have petitioned the UN for recognition as a non-self-governing territory, with previous unsuccessful attempts made in 1977 and 1994.[17]

The Office of the High Commissioner of Human Rights petition was listed on 10 December 2018[18] and is ongoing, with the Commonwealth reportedly making a submission in 2019.[19]

Criminal justice reform measures

Following the removal of autonomy in 2015, the Commonwealth government began the process of assessing necessary legislative reforms to Norfolk Island. One area that quickly came to attention was concern about Norfolk Island’s criminal justice system, particularly in relation to family violence, sexual assault and the protection of relevant witnesses.[20]

The 2018 amendments to allow the Norfolk Island Supreme Court to empanel juries on the mainland (which the Bill seeks to confirm), is one element of an effort to reform the Norfolk Island justice system. It sits aside measures that did not require Commonwealth primary legislation, such as the Norfolk Island Legislation Amendment (Protecting Vulnerable People) Ordinance 2018, which made various changes to the criminal justice system in terms of witness protection and sentencing.[21]

Committee consideration

The Senate Standing Committee for the Selection of Bills recommended that the Bill not be referred for Inquiry.[22]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comment on this Bill.[23]

Policy position of non-government parties/independents

No comment on the Bill by non-government parties or independent members has been identified.

Position of major interest groups

No comment on the Bill by interest groups or stakeholders has been identified.

Financial implications

The Explanatory Memorandum states that the ‘amendments do not have any additional impact on the budget’.[24] The removal of the requirement for the Commonwealth to pay witness allowances and fees for Supreme Court civil matters heard in a host jurisdiction may result in a minor positive impact on the budget.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible, as it does not engage any human rights.[25]

Parliamentary Joint Committee on Human Rights

The Committee made no comment on the Bill.[26]

Key issues and provisions

Host jurisdictions amendments

The amendments made to the operation of the Norfolk Supreme Court by the Investigation and Prosecution Measures Act 2018 (IAPMA) included provisions allowing the Norfolk Supreme Court to exercise its civil and criminal jurisdiction in ‘host-jurisdictions’ and empanel juries in those jurisdictions.[27] Possible host jurisdictions were the states, the Northern Territory and the Australian Capital Territory.[28]

The Explanatory Memorandum to the current Bill explains the rationale for these changes:

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.[29]

More explicitly, Norfolk Island has a resident population of 1,748 in the 2016 Census, of which 370 were aged 19 years or younger.[30] Persons under 18 are disqualified from jury duty under the Juries Act 1960 (NI),[31] and in addition there are substantial exemptions from jury service (including a collection of non-standard exemptions, such as ‘telephonists employed in the Telephone Exchange;’ school teachers, or editors of newspapers or magazines).[32]

A criminal jury of 12 empanelled on Norfolk Island then would represent close to one per cent of the eligible population. The difficulty of sourcing an impartial jury in such an environment was the motivation behind the 2018 IAPMA changes.[33]

The current provisions in the Act only allow the Norfolk Island Supreme Court to sit in states that the Commonwealth government has entered into an arrangement with (no arrangement is necessary for the Norfolk Island Supreme Court to sit in the Australian Capital Territory or the Northern Territory).[34] This was a measure designed to avoid impeding the states in the performance of their essential government functions by imposing a duty or a power on state officials without an agreement.[35]

The Explanatory Memorandum notes however:

… 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.[36]

Currently, the Norfolk Island Supreme Court would not be able to sit in a state that the Commonwealth did not have an agreement with, even if the sitting involved only federal court facilities and officers. The amendments serve to ‘remove any doubt’ that the Norfolk Supreme Court may sit in state jurisdictions.[37]

Amendments

The amendments achieve this by:

1.  Redefining ‘host jurisdiction’ in section 4 with the effect of including all states, the Northern Territory, and the Australian Capital Territory, regardless of whether the Commonwealth has an arrangement with a state— item 1.

2.  Repealing the old definition of ‘host jurisdiction’ in subsection 60B(3) (criminal matters) and subsection 60P(3) (civil matters), items 4 and 6.

3.  Confirming that the Commonwealth may enter into arrangement with state governments to enable the Norfolk Island Supreme Court to utilise elements of the state judicial or correctional system in either criminal (item 3) or civil (item 5) matters.

4.  Confirming that any arrangements with host jurisdictions reached under the current statutory scheme remain in force in both criminal (subitem 9(1)) and civil (subitem 9(2)) matters.

Witness expenses amendments

In addition to the amendments that confirm the ability of the Norfolk Island Supreme Court to sit in any state of the Commonwealth, the Bill will also remove the obligation of the Commonwealth to pay witness fees and allowance for civil matters heard in a host jurisdiction.

Currently, subsection 60Q(6) of the Act reads:

A person who appears as a witness in the Supreme Court in the hearing of a civil matter, or in related proceedings, held wholly or partly in a host jurisdiction, must be paid by the Commonwealth such fees and allowances as would be payable to the person if the person had appeared as a witness in the hearing of the matter held in the Territory.[38]

Item 7 repeals this subsection. The Explanatory Memorandum explains the rationale for this amendment as follows:

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.[39]

This section itself was inserted by the IAPMA in 2018.[40] No specific reason was provided for why subsection 60Q(6) was included, with the Explanatory Memorandum to that Bill noting only that:

These provisions [relating to civil matters] 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).[41]

Travelling allowances of judges

Subsections 53(1) and (2) of the Act require judges of the Norfolk Island Supreme Court to be judges of another federal court. Currently, Norfolk Island Supreme Court judges receive travelling allowances as the Governor-General approves (subsection 56(2) of the Act). This introduced the necessity for a separate scheme of travelling allowances for the four or so Federal judges who hold a commission as a Norfolk Island Supreme Court Justice. The amendments instead provide that these judges will receive the travelling allowances that they would receive as a judge of the other court on which they sit (such as the Federal Court or Federal Circuit Court), as they already do with remuneration and allowances generally (except for travelling allowances).[42]

The Explanatory Memorandum explains this amendment:

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.[43]

Amendments

The amendments achieve this by: 

1.  Repealing and replacing section 56 in order to provide that Supreme Court judges will be renumerated with such travelling allowances as they would receive as a judge of the other court or courts on which they sit (item 2).

2.  Providing that the amendment of section 56 has no effect to the extent that it would reduce the remuneration of a sitting judge (item 8).[44]   

Concluding comments

The amendments to the operation of the judicial system of Norfolk Island made by this Bill are minor and mostly technical in nature. The context in which this Bill operates however is complicated and involves a unique set of sensitivities and community expectations arising out of the history of Norfolk Island, including ongoing matters before the UN.

With the revocation of Norfolk Island self-government in 2015, the Commonwealth Parliament and Government became directly responsible for Norfolk Island. Commonwealth departments, became responsible for various matters usually in the domain of state and local governments. Similarly, legislation that would otherwise fall within the competence of state or local governments falls to the Commonwealth.

This special relationship between the Commonwealth Parliament and Norfolk Island is a challenging one, and effectively requires the national legislature to additionally act as the state (and in some cases local) legislature of an island of 1,700 people located 3,000 kilometres off the coast of the mainland.

Appendix: list of selected inquiries relating to Norfolk Island[45]

Royal Commission

Australia, Report of the Royal Commission into matters relating to Norfolk Island, AGPS, Canberra, October 1976

Parliamentary reports

Joint Standing Committee on National Capital and External Territories, House of Representatives

Same Country: Different World: The Future of Norfolk Island, Canberra, October 2014

Report of the visit to Norfolk Island 29-30 April 2013, Canberra, June 2013

An advisory report on the Territories Law Reform Bill 2010, Canberra, May 2010

Norfolk Island Financial Sustainability: The Challenge – Sink or Swim, Canberra, November 2005

Report on the visit to Norfolk Island: 2–5 August 2006, Canberra, September 2006

Norfolk Island: Review of the Annual Reports of the Department of Transport and Regional Services and the Department of the Environment and Heritage, Canberra, July 2004

Quis custodiet ipsos custodes? Inquiry into Governance on Norfolk Island, Canberra, December 2003

Norfolk Island Electoral Matters, Canberra, June 2002

In the Pink or in the Red? Inquiry into the Provision of Health Services on Norfolk Island, Canberra, July 2001

House of Representatives Legal and Constitutional Affairs Standing Committee, Islands in the Sun: The Legal Regimes of Australia's External Territories and the Jervis Bay Territory, Canberra, March 1991

Government reports

Department of Infrastructure and Regional Development, Australian National Audit Office Independent Report of Norfolk Island’s Financial Statements 2013/14, ANAO, December 2014

Centre for International Economics, Economic Impact of Norfolk Island Reform Scenarios, report prepared for the Department of Infrastructure and Regional Development, CIE, November 2014

Deloitte Access Economics, Review of Norfolk Island Government Business Analysis, Deloitte Access Economics, November 2014

Department of Infrastructure and Regional Development, Australian National Audit Office, Independent report of Norfolk Island's financial statements 2012/13Independent Report of Norfolk Island's Financial Statements 2012/13, ANAO, December 2013

Department of Regional Australia, Regional Development and Local Government, Australian National Audit Office, Independent Report of Norfolk Island's Financial Statements 2011/12, ANAO, March 2013

G Calvert AO and M Connolly, Review of Existing Child and Family Support Services on Norfolk Island, prepared for the Department of Regional Australia, Regional Development and Local Government, September 2012

ACIL Tasman, Norfolk Island Economic Development Report, report for the Department of Regional Australia, Regional Development and Local Government ACIL Tasman, March 2012

Australian Continuous Improvement Group, Norfolk Island Public Service Review, prepared for the Department of Regional Australia, Regional Development and Local Government, ACIG, November 2011

Commonwealth Grants Commission, Update of the Financial Capacity of Norfolk Island 2011, The Commission, 2 December 2011

Commonwealth Grants Commission, Review of the Financial Capacity of Norfolk Island 2006, The Commission, 2006

Acumen Alliance, Norfolk Island Government, Financial Advisory Report, report for the Department of Transport and Regional Services Acumen Alliance, November 2005

Human Rights and Equal Opportunities Commission, Territorial limits: Norfolk Island's Immigration Act and Human Rights, The Commission, March 1999

Commonwealth Grants Commission, Report on Norfolk Island, AGPS, Canberra, 1997

Australian Bureau of Statistics, Norfolk Island Household Expenditure Survey 1995, The Bureau, Canberra, 1996