Introductory Info
Date introduced: 13 May 2020
House: House of Representatives
Portfolio: Infrastructure, Transport, Regional Development and Communications
Commencement: The day after Royal Assent.
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