Introductory Info

Date introduced: 07/10/2020
House: House of Representatives
Portfolio: Infrastructure, Transport, Regional Development and Communications
Commencement: Various dates as set out in the body of this Bills Digest.

The Bills Digest at a glance

Purpose of the Bill

The Territories Legislation Amendment Bill 2020 primarily amends the legislation relating to Australia’s external territories of Christmas Island, Cocos (Keeling) Islands and Norfolk Island. There are consequential impacts for other Commonwealth legislation.

The Bill amends the Christmas Island Act 1958, the Cocos (Keeling) Islands Act 1955 and the Norfolk Island Act 1979 to streamline the operation of applied laws and delegation and vesting of powers. According to the Explanatory Memorandum, the Bill addresses

the risk of delegation instruments becoming outdated when applied laws in force in the territories are amended or new laws are made by the relevant state or territory government. This will address any concerns that the delegation instruments cannot encompass powers that do not exist at the time they are made.

Amendments are also proposed in the Bill to the Norfolk Island Act to allow the Commonwealth Government to enter into agreements for the provision of state-type services for Norfolk Island with applied law jurisdictions.

These arrangements are intended to operate in the same way as the existing arrangements that allow for the application of NSW laws and provide a broader and more flexible legal mechanism with respect to the future provision of state-type services in Norfolk Island. The amendments allow for the laws of a state or territory, prescribed by Regulations as an ‘applied law jurisdiction’, to be applied in Norfolk Island.

The Bill also changes the jurisdiction of Norfolk Island courts and provides for the future abolition of the Norfolk Island Supreme Court after a lengthy transitional period.

The Bill, if passed, will continue the extension of Commonwealth legislation to Norfolk Island.

Stakeholder comments

There has been little or no comment about the effect of the Bill from stakeholders or from non‑government and independent Senators and members.

Provisions of the Bill

The Bill applies certain Commonwealth laws—particularly from the Treasury portfolio and the Attorney-General’s portfolio—to Norfolk Island. Once that has occurred, any changes to the relevant statutes by the Commonwealth will also apply in Norfolk Island.

Purpose of the Bill

The purpose of the Territories Legislation Amendment Bill 2020 (the Bill) is to amend a range of Commonwealth legislation applicable to the external territories of Christmas Island, Cocos (Keeling) Islands and Norfolk Island. This includes:

• amend the Norfolk Island Act 1979 (NI Act), Christmas Island Act 1958 (CI Act) and Cocos (Keeling) Islands Act 1955 (CKI Act) to ensure the effective operation of the laws of other states and territories which have been applied in these territories. Together these three statutes are referred to as the Territory Acts
• amend the NI Act to allow the Australian Government to enter into arrangements with any state or territory government to support state-type service delivery in Norfolk Island and provide for the possible future conferral upon the courts of a state or territory jurisdiction (including appellate jurisdiction) in relation to Norfolk Island
• amend the Corporations Act 2001, Australian Securities and Investments Commission Act 2001 (ASIC Act) and associated Treasury Acts to fully extend their application to the external territories and ensure all Australian companies operate under the same legislative framework
• amend the Bankruptcy Act 1966 to allow the Australian Financial Security Authority (AFSA) to provide bankruptcy and personal property security services to Norfolk Island. The Bankruptcy (Estate Charges) Amendment (Norfolk Island) Bill 2020 (Bankruptcy Estate Charges Bill) is consequential to this measure and extends the Bankruptcy (Estate Charges) Act 1997 to Norfolk Island
• amend the Freedom of Information Act 1982 (FOI Act) to clarify its application to bodies established under a law in force in Norfolk Island
• amend the Privacy Act 1988 to clarify its application to statutory bodies in the external territories and clarify the application of the Australian Privacy Principles (APPs) to state and territory laws which have been applied in the external territories and the Jervis Bay Territory
• amend the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to extend its coverage to decisions made by Commonwealth officials under applied laws in the external territories and the Jervis Bay Territory and extend the right to judicial review to decisions made under laws made by the former Norfolk Island Legislative Assembly and continued pre-self-government ordinances
• amend the Criminal Code Act 1995 (Criminal Code) to update the definition of ‘Commonwealth public official’ to include people exercising powers or functions under a law in force in Norfolk Island
• amend the Broadcasting Services Act 1992 to allow the Australian Communications and Media Authority (ACMA) to issue licences and undertake future broadcasting planning in Norfolk Island
• amend the Copyright Act 1968 to ensure Norfolk Island is treated as a territory instead of a state for the purposes of the Act
• extend the application of the Education Services for Overseas Students Act 2000 (ESOS Act) to Norfolk Island to allow for the potential regulation of services to overseas students attending Norfolk Island Central School.[1]

Structure of the Bills

The Bill is divided into four Schedules which broadly set out the following:

• Schedule 1 contains amendments to the Territory Acts relating to applied laws and delegations operating in the external territories as well as amendments relating to Norfolk Island courts
• Schedule 2 amends various statutes within the Treasury portfolio and in particular Acts which are administered by the Australian Securities and Investments Commission (ASIC)
• Schedule 3 amends Acts within the Attorney-General’s portfolio such as the Bankruptcy Act and various statutes relating to administrative law and
• Schedule 4 amends three other Commonwealth Acts including the Broadcasting Services Act.

The Bankruptcy Estate Charges Bill contains a single Schedule.

Background

Norfolk Island is an external territory of the Commonwealth of Australia located 1,676 kilometres northeast of Sydney.[2]

Norfolk Island has a population of 1,748 (ABS 2016), with approximately 20 per cent identifying as having Pitcairn ancestry. This compares with a population of 1,796 in 2011 (Norfolk Island Government Census) and 2,601 in 2001.[3]

The Australian Government, through the Department of Infrastructure, Transport, Regional Development and Communications, administers the Indian Ocean Territories of Christmas Island and the Cocos (Keeling) Islands as well as Norfolk Island. Through the Territories Law Reform Act 1992 the Commonwealth Parliament amended the Christmas Island Act and the Cocos (Keeling) Islands Act to apply most of the Western Australian law in those territories.[4]

Since 1 July 2016, following the passage of the Norfolk Island Legislation Amendment Act 2015[5] and the Territories Legislation Amendment Act 2016,[6] the Commonwealth has taken over the administration of Norfolk Island including taking responsibility for all levels of government services and their delivery arrangements. Since that time the Government has been extending Commonwealth legislation to Norfolk Island. These Bills continue this iterative process.

A number of the measures contained in the Bill allow for transition periods so that there will be an efficient transfer of responsibilities such as the registration of business names, bankruptcy records, and television and radio services.

The abolition of self-government for Norfolk Island remains controversial on Norfolk Island and has led to the filing of two applications with the United Nations.[7] The Commonwealth Government has a consultation process on reforms to Norfolk Island laws.[8]

Applied laws and state-type services

Commonwealth legislation allows for the laws of another jurisdiction to be applied in certain territories to enable the regulation and delivery of services usually provided by state or territory governments.

Section 18A of the NI Act provides that the laws of New South Wales are in force on Norfolk Island, but that such laws may be amended, repealed or suspended by an ordinance made under section 19A of that Act. The Norfolk Island Applied Laws Ordinance 2016, made under section 19A, amends, repeals and suspends applied laws as set out in the items in the Schedules to the Ordinance. The Ordinance is to be read together with the NSW laws in order to understand the operation of the applied laws in the Territory.

ANAO report

In 2016 the Commonwealth entered an agreement with the NSW government for the delivery of some state-type services such as education, health and local government.[9]

The 2019 report by the Australian National Audit Office (ANAO) considered the design and implementation of the Norfolk Island reform process.

The department’s advice to the Australian Government on the need for comprehensive reform was informed by a body of evidence showing the existing arrangements on Norfolk Island were not sustainable. There was an appropriate community consultation process. Advice on the extension of Australian Government arrangements to Norfolk Island was informed by economic analysis and input from relevant Australian Government entities. Advice relating to the delivery of state-type services was not informed by appropriate engagement with the State Government of NSW (NSW Government) on the development, implementation and monitoring of service delivery.[10] [emphasis added]

And further:

The department did not secure the NSW Government’s commitment to deliver state-type services during the design phase. The Assistant Minister for Infrastructure and Regional Development (Minister) announced the reforms on 19 March 2015, prior to receiving a formal response from the NSW Government confirming its in-principle agreement. Consequently, the department did not obtain the NSW Government’s advice on state-type service priorities, delivery risks, timeframes and anticipated costs before the reforms were announced. The department, in its advice to the Australian Government, did not adequately outline the risks or likelihood of being able to secure NSW Government as a partner or alternative plans should NSW not agree in whole or in part.[11] [emphasis added]

In 2018–19 state-type services were delivered to Norfolk Island residents through agreements with the NSW Government, the Australian Federal Police, the Norfolk Island Regional Council and private sector service providers.[12] However, in response to a question posed in 2019, the Minister for Infrastructure stated:

The NSW Government has confirmed it will not deliver services to Norfolk Island beyond the end of its current agreement in mid-2021. The Department is currently undertaking work to develop options for the future delivery of services to the Island. [13]

The matter had not been resolved by August 2020.[14] According to the ANAO report, in July 2018 the Prime Minister wrote to the ‘ACT Chief Minister seeking interest in delivering services on Norfolk Island’.[15]

Norfolk Island courts

This Bill will lead to the future abolition of the Norfolk Island Supreme Court, the Court of Petty Sessions and the Coroners Court. This will bring Norfolk Island into line with the arrangements existing on Christmas Island and the Cocos (Keeling) Islands. The Norfolk Island Supreme Court will not cease to operate until no person holds the office of judge of the Supreme Court of Norfolk Island. The Explanatory Memorandum notes that ‘it is likely to be a number of years before these provisions are utilised’.[16]

The Supreme Court of Norfolk Island was established in 1957 under the Norfolk Island Act 1957 (NI) and details of its jurisdiction, administration and procedure are set out in the Supreme Court Act 1960 (NI).[17] It was continued in existence by the NI Act as the superior court of record of Norfolk Island and the application of the Supreme Court Act 1960 amended by the Norfolk Island Continued Laws Ordinance No. 2 of 2015.[18]

The Supreme Court is also the court of appeal from the Court of Petty Sessions (established under the Court of Petty Sessions Act 1960 (NI)), and the Federal Court of Australia is the court of appeal from the Supreme Court of Norfolk Island.[19] The Supreme Court consists of the Chief Justice, appointed by the Governor-General of Australia, and such other judges as the Governor-General sees fit to appoint.[20]

Recent amendments to the operation of the Norfolk Island 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.[21] Further amendments made by the Norfolk Island Amendment (Supreme Court) Act 2020 serve to ‘remove any doubt’ that the Norfolk Island Supreme Court may sit in state jurisdictions, among other measures.[22]

The Court of Petty Sessions hears criminal matters punishable by fine or summary conviction and may hear minor civil matters.[23] The jurisdiction of the Court is exercised by the Chief Magistrate or by any three magistrates.[24]

Norfolk Island’s courts also have jurisdiction in the Coral Sea Islands Territory.[25]

Committee consideration

Senate Standing Committee for Selection of Bills

In its report of 12 November 2020, the Senate Standing Committee for the Selection of Bills determined that the Bills not be referred to committee for inquiry and report.[26]

Senate Standing Committee for the Scrutiny of Bills

The Standing Committee for the Scrutiny of Bills commented on the Bills in its report of
11 November 2020.[27] It had no specific comment to make in relation to the Bankruptcy Estate Charges Bill.[28] However, it expressed a number of concerns in relation to the Territories Bill—in particular:

• the broad delegation of administrative powers[29]
• that significant matters—for example, the determination of which laws will be in force in Norfolk Island—are contained in delegated legislation[30]
• that instruments made under the Bill are not subject to Parliamentary disallowance[31]and
• the potential for certain provisions of the Bill to limit access to justice on Norfolk Island for accused persons.[32]

These matters are canvassed under the relevant Schedule heading in the body of this Bills Digest.

Policy position of non-government parties/independents

At the time of writing this Bills Digest, neither non-government parties nor independent members and Senators had commented on the Bills.

Position of major interest groups

In the October 2020 Mayors Update, the Mayor of the Norfolk Island Regional Council provided an outline of the Territories Legislation Amendment Bill 2020 and a link to the Department of Infrastructure, Transport, Regional Development and Communications website. He thought it may be of interest to the community.[33]

The only comment in regard to the Bill was a reference the Norfolk Island Regional Council passing a resolution opposing the extension of the Broadcasting Act 1966 (Cth) to Norfolk Island on
21 August 2019.[34] Mayor Robin Adams indicated the Council’s disappointment with the Commonwealth’s continued intention to bring Norfolk Island under that Act.[35]

Financial implications

The Explanatory Memorandum to the Bills states that the amendments in  the Territories Bill) ‘do not have any additional impact on the budget’.[36] In relation to the Bankruptcy Estate Charges Bill, the Explanatory Memorandum states that ‘it will have no significant financial implications for the Commonwealth’.[37]

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 Bills’ 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 Bills are compatible.[38]

Parliamentary Joint Committee on Human Rights

At its meeting of 15 October 2020, the Parliamentary Joint Committee on Human Rights (Human Rights Committee) deferred consideration of the Bill.[39] It had no comment on the Bankruptcy Estate Charges Bill.[40]

The Human Rights Committee subsequently expressed concern that the Bill amends the NI Act:

... to allow criminal proceedings to be relocated from Norfolk Island to a prescribed state or territory if it is not contrary to the interests of justice. This would have the effect of relocating a criminal trial to a place other than where the alleged conduct occurred and authorising the detention of an accused person from Norfolk Island in a prison in the prescribed state or territory.[41]

The Human Rights Committee formed the view that the Bill ‘engages and may limit the rights to a fair trial and liberty to the extent that relocating criminal proceedings may impose hardship on the accused person, such as reduced access to evidence and witnesses to prepare a defence’.[42]

Accordingly the Human Rights Committee has requested further advice in relation to the Bill which would allow it to form a concluded view on the human rights implications of the Bill. At the time of writing this Bills Digest, the Committee had received a response from the Assistant Minister, but it had not been published.[43]

Schedule 1—amendment of Territory Acts

Commencement

The amendments in Parts 1 and 2 of Schedule 1 to the Bill commence on the day after Royal Assent.

The amendments in Part 3 of Schedule 1 to the Bill commence on a single day to be fixed by Proclamation. That day must not be before the later of either:

• the first day on which no person holds office as a Judge of the Supreme Court of Norfolk Island and
• the day a State or Territory is prescribed by the Regulations for the purposes of subsection 60AA(1) of the NI Act to have jurisdiction to hear and determine matters arising under laws in force in Norfolk Island as if Norfolk Island were part of the prescribed State or Territory.[44]

Application of applied laws

The provisions in Schedule 1 to the Bill propose changes to the Australian laws applying in Christmas Island, Cocos (Keeling) Islands and Norfolk Island. The changes to the laws of the three Territories are in near equivalent terms.

According to the Department of Infrastructure, Transport, Regional Development and Communication:

The Bill will amend the [NI Act], the [CI Act] and the [CKI Act] to ensure the effective operation of applied state or territory laws. The amendments will automatically vest relevant powers and functions in the police and local government officials in those territories and address the risk of other delegations becoming outdated when applied laws are amended or new laws are made by the relevant state or territory government.[45]

Christmas Island and Cocos (Keeling) Island

Section 8A of both the CI Act and CKI Act provide that the provisions of the law of Western Australia, as in force from time to time, apply in the territory of Christmas Island and the Cocos (Keeling) Islands, respectively. An Ordinance made under these provisions may suspend or amend the operation of a law in force in the relevant Territory. The term provision of the law of Western Australia is defined as:

• including a principle or rule of common law or equity that is part of the law of Western Australia and
• not including an Act or a provision of an Act.[46]

Schedule 1 of the Christmas Island Applied Laws Ordinance 1992, made under section 8A of the
CI Act, and Schedule 1 of the Cocos (Keeling) Island Applied Laws Ordinance 1992, made under section 8A of the CKI Act, amend specific Western Australian laws which are applied and operating in each of those territories.

Applying the Western Australian law

Item 9 in Schedule 1 to the Bill amends section 8A of the CI Act to repeal the definition of provision of the law of Western Australia and replace it with a definition of Western Australian law. Under proposed subsection 8A(6) of the CI Act a Western Australian law:

• is a law in force in Western Australia from time to time and
• includes a principle or rule of common law or equity that is part of the law of Western Australia and
• does not include a Commonwealth Act or a provision of a Commonwealth Act or an instrument (however described) made under a Commonwealth Act, or a provision of such an instrument.[47]

Vesting power in the Minister

Subsections 8G(1) and (2) of the CI Act deal with vesting power in the Minister. Essentially they provide that where a power is vested in a Minister of Western Australia, the Governor of Western Australia, the Governor-in-Council of Western Australia, a person (other than a court officer of WA), or an authority (other than a court of WA) by a Western Australian law in force on Christmas Island, the power is (in relation to Christmas Island) vested instead in the relevant Commonwealth Minister.[48] Item 11 updates the language in subsections 8G(1) and (2) and inserts proposed subsection 8G(2A), which clarifies that the vesting provisions do not apply to a power vested because of an Ordinance made under subsection 8A(2) (which provides for the incorporation, amendment or repeal of an applied Western Australian law). For the purposes of the CI Act, power includes a function or duty, and, in that context exercise means perform.[49]

Currently subsection 8G(3) of the CI Act provides that if powers are vested in the Minister as a result of subsections 8G(1) or (2), he or she may direct that the powers are also vested in a specified person or authority, or delegate those powers in writing to a specified person.[50] Subsection 8G(4) provides that a person or authority in whom a power is vested may, if so empowered by the Minister, delegate the power in writing to a specified person. Subsection 8G(5) currently applies where a power is vested in the Minister under subsection 8G(2) and that power corresponds to a power that an officer, employee or authority of WA is authorised to exercise. If that officer, employee or authority is subject to an arrangement between the Commonwealth and Western Australia for the effective application and administration of the laws in force in Christmas Island, the Minister is deemed to have vested the relevant power in that person or authority. However, the Minister may direct that this does not apply to a specified power.[51]

Item 14 repeals subsections 8G(4)–(6) of the CI Act, and replaces them with proposed subsections 8G(4), (5), (5A), (5B) and (6). Proposed subsection 8G(4) provides that a direction or delegation by the Minister under subsection 8G(3) is subject to any conditions specified in writing by the Minister. Proposed subsections 8G(5A) and (5B) provide that the Minister is deemed to have vested powers in certain circumstances.[52] Proposed subsection 8G(5A) is largely the same as existing subsection 8G(5).

Under proposed subsection 8G(5B), where powers correspond with police or local government powers vested by a Western Australian law, the Minister is taken to have directed that these powers are also vested in the Australian Federal Police (AFP), AFP members or special members, the Christmas Island Shire or Shire officials as the case may be.

Item 18 inserts proposed section 8GA into the CI Act. Item 44 inserts proposed section 8GA into the CKI Act in equivalent terms. Proposed subsection 8GA(1) deals with the application of proposed section 8GA to the directions and delegations made under section 8G as discussed above. Proposed subsection 8GA(2) provides that a direction or delegation that is expressed to include all the powers, functions or duties of a person or authority under an applied Western Australian law extends to include any additional power, function or duty of that person or authority that arises from subsequent amendments to the applied Western Australian law. The amendments address the risk of other delegations becoming outdated when applied laws are amended or new laws are made by the relevant state or territory government.[53]

Scrutiny of Bills Committee comments

The Scrutiny of Bills Committee drew attention to proposed subsection 8G(5) on the grounds that it ‘allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes’.[54]

Of particular concern was that the Explanatory Memorandum to the Bill does not specify whether there are any limits as to who a person or authority in whom a power is vested by the Minister under subsection 8G(3) may further delegate power to under proposed subsection 8G(5).

While the Committee noted that such delegations would be subject to any conditions set by the direction or the Minister, these conditions have not been specified on the face of the Bill or clarified in the Explanatory Memorandum.[55]Accordingly, the Committee has requested clarification in relation to this matter from the Minister.[56]

The Minster’s response states that, in light of the ‘potential breadth and scope of the powers and duties conferred by the applied laws’... ‘it is necessary and appropriate for the Minister to have a broad delegation power to ensure that these powers are exercised effectively at an appropriate level’.[57]

The Scrutiny of Bills Committee noted:

... the Minister’s advice that in circumstances where there is an arrangement between the Commonwealth and a state or territory to administer the laws in force in the external territory, that the state or territory official, with the corresponding power in the relevant state or territory, will ordinarily exercise the delegated powers of the Minister, and that the circumstances for which it may be appropriate for the Minister to delegate powers under the applied laws are not certain and cannot necessarily be foreseen.[58]

The Committee has asked that an addendum to the Explanatory Memorandum containing the relevant key information be tabled in the Parliament as soon as practicable.[59]

Norfolk Island

Items 53–74 apply to the NI Act. Items 59–60, 63–67 and 73 in Schedule 1 to the Bill apply near equivalent provisions to those inserted into the CI Act and the CKI Act as discussed above—except that currently it is not the Western Australian law that is applied but the New South Wales law.

As the arrangements with the Government of New South Wales are not expected to continue, the NI Act is amended to remove specific references to the application of New South Wales laws, powers and functions. This allows the Commonwealth to enter into arrangements with New South Wales or any other state or territory to provide state-type services to Norfolk Island.

Item 57 in Schedule 1 to the Bill inserts proposed section 5 into the NI Act to set out the meaning of the term applied law jurisdiction. Within that new definition, proposed subsections 5(1) and (2) provide that either New South Wales or a state or territory prescribed by regulation can be an applied law jurisdiction or stop being an applied law jurisdiction in respect of Norfolk Island.

Items 61 repeals and replaces section 18A of the NI Act. Under proposed section 18A, the laws of an applied law jurisdiction are in force in Norfolk Island. Importantly an applied law in force under this section may be incorporated, amended or repealed by a section 19A Ordinance.[60] Further, an applied law may be suspended for a specified period of time by a section 19A Ordinance.[61] Item 68 amends the heading to section 18C to remove a reference to New South Wales and refer to ‘arrangements with the Government of a State’.

Items 63 to 67 amend section 18B of the NI Act, which deals with the vesting and delegation of powers. These replace references to New South Wales law with references to an ‘applied State law’, as well as making changes to the vesting of powers in equivalent terms to the amendments made to the CI Act and CKI Act, discussed above.

Scrutiny of Bills Committee comments

The Scrutiny of Bills Committee expressed significant concerns about the effect of item 57 (which, as set out above, allows Regulations to prescribe states or territories whose laws will be applied in Norfolk Island) of the Bill stating:

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.

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.

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.[62]

The Scrutiny of Bills Committee therefore asked the Minister’s advice about why it is considered necessary and appropriate to allow Regulations to determine:

• which state of 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.[63]

In addition, the Scrutiny of Bills Committee asked the Minister for more detailed advice about why it is appropriate to specify that instruments made under proposed sections 18B and 18D are not legislative instruments—and whether it would be possible to amend the Bill so that these instruments could be subject to Parliamentary oversight.[64]

The Minister provided a detailed response in relation to the use of regulations in the Bill stating:

New South Wales (NSW) has announced that the existing arrangements in Norfolk Island, under which it provides some state-type education and health support services, will cease by the end of 2021. In light of this, the Australian Government is considering its options with respect to the future provision of state-type services in Norfolk Island and is currently involved in confidential government-to-government negotiations with a number of jurisdictions about possible future state-type service delivery options in Norfolk Island.

Accordingly, the applied laws amendments are intended to provide a flexible legal mechanism under which the laws of a state or territory may be applied as Commonwealth law in Norfolk Island and will enable state-type service arrangements to be entered into with a state or territory. These applied laws arrangements are intended to operate in a similar way to the existing applied NSW laws arrangements. An ‘applied law jurisdiction’, being NSW or another state or territory, may be prescribed by regulations made under the Act. The laws of a jurisdiction would only be applied when there is an agreement in place between the relevant state or territory and the Government.

Amendments in relation to the jurisdiction of Norfolk Island courts complement the proposed amendments to the NI Act which allow state or territory laws to be applied in Norfolk Island...

In light of the present circumstances regarding the provision of state-type services in Norfolk Island, it is considered necessary and appropriate to allow regulations to determine which state or territory laws will be in force in Norfolk Island. [65]

The Committee has asked that an addendum to the Explanatory Memorandum containing the relevant key information be tabled in the Parliament as soon as practicable.[66]

In relation to proposed sections 18B and 18D the Minister advised the Scrutiny of Bills Committee:

Proposed subsections 18B(13) and 18D(13) respectively provide that an instrument made under section 18B or 18D is not a legislative instrument. These provisions are based on existing subsection 18B(11) of the NI Act which similarly provides that an instrument made under this section is not a legislative instrument.

I note that subsections 8(1) and (4) of the Legislation Act 2003 have the combined effect that an instrument that is made under a power delegated by Parliament and has one or more provisions that have legislative character (rather than administrative character) will be a legislative instrument: unless the relevant Act expressly exempts the instrument from being a legislative instrument.

In Visa International Services Association v Reserve Bank of Australia (2003) 131 FCR 300 at 424 (Visa International), the Federal Court identified a number of factors that are likely to have bearing on whether a decision is to be characterised as being of administrative or legislative character. The list included (at paragraph 592):

• whether the decision determined rules of general application, or whether there was an application of rules to particular cases
• whether there was Parliamentary control of the decision
• whether there was public notification of the making of the decision
• whether there was public consultation
• whether there were broad policy considerations imposed
• whether the regulations (or other instrument) could be varied
• whether there was power of executive variation or control
• whether there was provision for merits review and
• whether there was binding effect.

The case law makes it clear that not one of these factors will determine whether the decision is of an administrative or legislative character. Rather, it is necessary to consider the decision in light of all these factors ...

Applying these factors to the instruments made under sections 18B and 18D, I am satisfied that none of these instruments determine the content of the law. Notably, these instruments deal with the vesting, delegating or directing of powers otherwise vested in the minister and other persons under applied state or territory laws. In this respect, the instruments are of an administrative character, dealing with the application or carrying out of these powers, and do not determine or alter the content of these delegated, vested or otherwise directed powers.[67]

The Scrutiny of Bills Committee has asked that an addendum to the Explanatory Memorandum containing the relevant key information be tabled in the Parliament as soon as practicable.[68]

Jurisdiction of Norfolk Island Courts

Item 81 inserts proposed Division 3 into Part VII of the NI Act about the conferral of jurisdiction on prescribed State or Territory courts.

These amendments allow for courts of a prescribed state or territory to have jurisdiction in relation to Norfolk Island as though it were part of that state or territory. Proposed section 60AA of the NI Act provides for conferral of jurisdiction on a prescribed State or Territory.

Under proposed subsection 60AA(4) of the NI Act, section 68 of the Judiciary Act 1903 (which deals with the jurisdiction of state and territory courts in criminal cases, including by providing that state and territory courts have jurisdiction to hear and determine matters involving Commonwealth offences), applies to a court under this section. Further, the practice and procedure of the courts of the prescribed state or territory in relation to Norfolk Island would be the same as they exercise with respect to their home jurisdiction.

Consequential amendments

The Coral Sea Islands Act 1969 (CSI Act) is amended consequential to the changes to Norfolk Island jurisdiction. The Supreme Court and the Court of Petty Sessions of Norfolk Island have criminal jurisdiction in relation to the Coral Sea Islands.[69] These courts are permitted to sit in the Territory, in Norfolk Island or in Australia for the dispatch of business concerning the Coral Sea Islands Territory.[70] Item 83 inserts proposed subsection 8(1A) into the CSI Act which provides that the courts of a prescribed Australian State or Territory in respect of Norfolk Island also have jurisdiction in, and in relation to, the Coral Sea Islands.

Item 86 amends the Criminal Code Act 1995 to change the definition of Commonwealth judicial officer a by omitting reference to Norfolk Island Territory in the Dictionary paragraphs (h) and (i). The Explanatory Memorandum states:

The effect of this amendment will be to provide state or territory judicial officers who exercise jurisdiction or powers under laws in force in Norfolk Island with the equivalent status to state or territory judicial officers who exercise jurisdiction or powers under laws in force in the other external territories and the Jervis Bay Territory.[71]

Six Commonwealth Acts are amended to provide that the jurisdiction of the Norfolk Island Supreme Court is subject to proposed section 60AA of the NI Act (discussed above), thus ensuring that jurisdiction of the courts of a prescribed state or territory in respect of Norfolk Island is recognised under the amended Acts.[72]

Supreme Court of Norfolk Island

The amendments to the NI Act in Part 3 of Schedule 1 to the Bill provide for the Supreme Court to cease operation after its jurisdiction is conferred on a court of a prescribed state or territory. As noted above, these amendments commence only after no person holds office as a Judge of the Supreme Court, and the Supreme Court’s jurisdiction has been conferred on a prescribed State or Territory under proposed section 60AA.

Item 108 repeals Divisions 1 and 2 of Part VII of the NI Act (as amended by Part 2 of Schedule 1 to this Bill), providing for the establishment and operation of the Supreme Court of Norfolk Island and the establishment of other courts and tribunals for Norfolk Island under enactment (sections 52 to 60 of the NI Act). The repeal of these provisions will effectively abolish the Supreme Court of Norfolk Island. The Explanatory Memorandum to the Bill provides that other Norfolk Island courts and tribunals, which are established under laws continued by section 16 or 16A of the NI Act, may be abolished by a section 19A ordinance.[73]

A number of other provisions are consequential to repealing Divisions 1 and 2 of Part VII, such as changing the headings and the repeal of redundant provisions.

Sections 60B and 60C of the NI Act relating to the hearing of criminal proceedings in a host jurisdiction are repealed by items 111 and 112, respectively. Proposed section 60C deals with criminal trials in a court of a prescribed state or territory. It provides, amongst other things, that in exercising its jurisdiction under the NI Act, the court may sit in the prescribed State or Territory if doing so would not be contrary to the interests of justice.

Sections 60D and 60E, which relate to juries outside the territory, are repealed by item 113. The Explanatory Memorandum notes that ‘[n]ew subsection 60AA(4) of the NI Act, which applies section 68 of the Judiciary Act 1903, with appropriate modifications, will instead apply the criminal procedure laws, including the relevant arrest, custody and bail laws, of the prescribed state or territory to a court of the prescribed state or territory exercising criminal jurisdiction under the NI Act’.[74]

Minor technical amendments are made to substitute references to ‘the Territory’, ‘the Supreme Court’, ‘host jurisdiction’ or ‘jurisdiction’ with references to ‘Norfolk Island’, ‘the prescribed State or Territory’ or ‘State or Territory’, as appropriate (see items 123– 126).

Item 128 repeals Division 2 of Part VIIA of the NI Act which deals with the civil jurisdiction of the Supreme Court of Norfolk Island in a state or territory (other than Norfolk Island).

Scrutiny of Bills Committee comments

The Scrutiny of Bills Committee noted that proposed section 60C may have the effect of ‘reducing the number of criminal trials held on Norfolk Island’.

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.[75]

The Scrutiny of Bills Committee has requested further advice from the Minister as to whether the Bill can be amended to include additional protections for the rights of an accused person whose trial is held in a prescribed state or territory, rather than on Norfolk Island.[76]

According to the Minister:

... these provisions dealing with the criminal jurisdiction of the courts of a prescribed state or territory with respect to Norfolk Island are modelled on 2018 amendments to the NI Act, contained in the Investigation and Prosecution Measures Act 2018, which similarly authorise the Supreme Court of Norfolk Island to hear criminal trials outside Norfolk Island in its criminal jurisdiction if the court is satisfied that the interests of justice require it...

It should be noted that the proposed provisions to permit the courts of a prescribed state or territory to have jurisdiction in relation to Norfolk Island would only be utilised if the Government entered into an agreement with a state or territory government for the delivery of state-type services and it was considered appropriate for the courts of that jurisdiction to also operate in Norfolk Island. Where a state or territory government was delivering most or all state-type services in Norfolk Island under the laws of that state or territory, it may be appropriate for the courts of that state or territory to adjudicate on matters arising under those laws.

This is the same as the situation in Christmas Island and the Cocos (Keeling) Islands where the courts of Western Australia have jurisdiction as if these external territories were part of Western Australia. Similar to the proposed provisions of the NI Act, provisions in the CI Act and the CKI Act provide that the Supreme Court of Western Australia may, when exercising its criminal jurisdiction with respect to these external territories, conduct criminal trials in Western Australia if the court is satisfied that the interests of justice require it.

If these provisions were ever utilised in the future, I do not consider that they would substantially change the manner in which the courts presently exercise their criminal jurisdiction in Norfolk Island or limit access to justice in Norfolk Island for accused persons. As is presently the case, serious criminal trials would only take place outside Norfolk Island in circumstances where the interests of justice require it, for instance where there are concerns about the ability to empanel an impartial local jury. Many of the existing services of the Norfolk Island courts are already delivered remotely by judicial officers sitting on the mainland and it is expected that these arrangements would continue.  [77]

The Scrutiny of Bills Committee has asked that an addendum to the Explanatory Memorandum containing the relevant key information be tabled in the Parliament as soon as practicable.[78]

Application, savings and transition provisions

Items 96–104 are transitional provisions which relate to the transfer of proceedings before the future abolition of the Norfolk Island Supreme Court, the Court of Petty Sessions and Coroner’s Court. In particular, item 97 will enable the Supreme Court of Norfolk Island, after the judicial transition time, to transfer proceedings where it has retained jurisdiction, for instance in pending matters, to the Supreme Court of the prescribed state or territory or a prescribed court of the prescribed state or territory.[79]

Item 98 provides for the transfer to the Supreme Court of the prescribed state or territory, or any other court prescribed for the purposes of sub-item 96(4), as appropriate, of all the remaining proceedings of the Supreme Court of Norfolk Island (not already transferred under item 97) as soon as practicable once there is no longer a serving judge of the Court.

Items 99–101 are transitional provisions relating to the transfer of proceedings from the Court of Petty Sessions. These are equivalent to those which apply to the Norfolk Island Supreme Court.

Items 133 and 134 provide for savings measures for ongoing criminal and civil matters by the Norfolk Island Supreme Court sitting in a host jurisdiction a state or territory.

Schedule 2—amendments to Treasury Acts

Commencement

Division 1 of Part 1 of Schedule 2 to the Bill commences on the first Monday to occur after the end of the period of six months after Royal Assent or on 2 August 2021—whichever is the later. Division 2 of Part 1 and Part 2 of Schedule 2 commence on the day after Royal Assent.

Part 3 of Schedule 2 commences immediately after commencement of Division 1, Part 1 of Schedule 2 or commencement of Schedule 2 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020—whichever is the later. However, Part 3 will not commence at all if that Act (the Bill for which is before the Senate at the time of writing)[80] does not commence.

Current position

Under section 18 of the NI Act, Commonwealth Acts are in force in Norfolk Island unless expressly excluded. The following Commonwealth statutes do not operate in full on Norfolk Island:

• the Corporations Act which regulates the formation of companies and imposes requirements for certain conduct and activities of corporations and their directors and officers[81]
• the ASIC Act which establishes the corporations regulator, the Australian Securities and Investments Commission (ASIC)[82] and
• the National Consumer Credit Protection Act 2009 (Consumer Credit Act) which contains the consumer credit framework (set out in the National Credit Code) and includes the responsible lending obligations.[83]

Schedule 2 to the Bill operates so that those Acts will apply more fully Norfolk Island.

Importantly from 1 July 2016, ASIC and Australian Taxation Office (ATO) assumed responsibility for specific services.[84] Relevant to this Bills Digest, from that date ASIC has been responsible for providing business registration services for Norfolk Island.[85] From 5 September 2016, all registered Norfolk Island business names have been displayed on the Business Names Register.[86]

As of 4 June 2020, there are 468 businesses on Norfolk Island.[87]

ASIC Act

Items 3–8 of Part 1 in Schedule 2 to the Bill extend the ASIC Act to Norfolk Island. Item 3 repeals subsections 4(1A) and 4(1B) which specifically provide that the ASIC Act does not apply to Norfolk Island, Christmas Island and Cocos (Keeling) Islands unless those territories are prescribed in Regulations.[88] The remaining items update definitions in subsection 5(1) of the ASIC Act so that references to the terms Australia, Commonwealth and this jurisdiction include references to Norfolk Island. Further, references to Territory include Norfolk Island.

Items 1 and 2 of Part 1 in Schedule 2 to the Bill remove references to ‘the Crown in right of Norfolk Island’ in the ASIC Supervisory Cost Recovery Levy Act 2017 and the ASIC Supervisory Cost Recovery Levy (Collection) Act 2017 respectively, as such an entity has not existed following the commencement of amendments to the NI Act made by the Norfolk Island Legislation Amendment Act 2015, which commenced on 1 July 2016. These ASIC Acts already extend to each external Territory.[89]

Transitional provisions

Item 64 inserts proposed Part 35—Transitional provisions relating to the Territories Legislation Amendment Act 2020 into the ASIC Act. Within new Part 35, proposed section 334 empowers ASIC to make rules about transitional matters arising from the amendments above.

Corporations Act

As stated above, the Corporations Act does not currently apply in full to Norfolk Island. This is because subsection 5(3) of the Corporations Act 2001 provides that the Act applies ‘in this jurisdiction’. The definition of ‘this jurisdiction’ in section 9 does not currently include Norfolk Island, Christmas Island or the Cocos (Keeling) Islands, except to the extent that the Regulations prescribe that a specified provision applies in the territory. Regulation 1.0.22 of the Corporations Regulations 2001 applies elements of Part 7 of the Act (which deals with Financial services and markets) to the external territories.

Items 18 and 20 insert definitions of Australia and Commonwealth respectively into section 9 of the Corporations Act in equivalent terms to those which are inserted into the ASIC Act whilst item 31 repeals and replaces the definition of Territory in section 9 to include Norfolk Island, Christmas Island and Cocos (Keeling) Islands. Item 32 repeals and replaces part of the definition of this jurisdiction so that each Territory is included.

In practical terms, the amendments will extend all of the provisions of the Corporations Act to Norfolk Island. These include but are not limited to:

• the formation and registration of a company[90]
• the circumstances under which ASIC may disqualify a person from running a company
• the duties and powers of officers and employees[91]
• rights of and remedies for shareholders[92]
• external administration[93] and
• regulation of financial services and markets.[94]

In addition, the criminal offences and civil penalties which are set out in the Corporations Act along with remedies such as infringement notices and enforceable undertakings will apply to corporations which have been formed in Norfolk Island and to their directors and employees where a breach the provisions of the Corporations Act has occurred.[95]

Transitional provisions

Registration of Norfolk Island companies

Item 65 inserts proposed Part 10.51—Transitional provisions relating to the Territories Legislation Amendment Act 2020. The new Part 10.51 applies to an eligible corporation—that is:

• a company that is a registered company under the Norfolk Island Companies Act 1985
• the corporation is not a body corporate which is under external administration in accordance with Chapter 5 of the Corporations Act[96]
• no application to wind up the corporation has been made to the Supreme Court of Norfolk Island that has not been dealt with and
• no application to approve a compromise or arrangement between the corporation and another person has been made to the Supreme Court of Norfolk Island that has not been dealt with.

Proposed section 1678A requires ASIC to register an eligible corporation as a company on the commencement day—that is the later of the first Monday to occur after the end of the period of six months after Royal Assent or on 2 August 2021. No formal application for registration is required.[97]

Registration process

The Bill requires ASIC to give the company an Australian Company Number (ACN)[98] and issue a certificate that states all of the following:

• the company’s name
• the company’s ACN
• the company’s type (for instance, unlimited proprietary company, company limited by guarantee, no liability company)
• that the company is registered as a company under the Corporations Act
• that the company is taken to be registered in Norfolk Island and
• the date of the company’s registration.[99]

Company name

Currently, company names are regulated under the Business Names Registration Act 2011 and the Business Names Registration (Transitional and Consequential Provisions) Act 2011. The main purpose of the national registration scheme is:

...to ensure that any business that does not operate under its own entity name, registers its name and details on a national register to enable those who engage or propose to engage with that particular business to determine the identity of the entity behind the business name and its contact details.[100]

The Bill requires ASIC to register a Norfolk Island company with a name consisting of either the corporation’s name immediately before commencement or, if that name is unacceptable,[101] a name that consists of the expression ‘Australian Company Number’ followed by the company’s ACN.[102] The words Limited and/or Propriety are to be added as required by subsections 148(2) and (3) of the Corporations Act.

Proposed subsection 1678B(5) provides that if the Norfolk Island company is registered with a name that is identical or nearly identical to a name that is reserved or registered for another body or entity, the Norfolk Island company will be able to continue to use that name.[103]

Company Constitution

At the time that a Norfolk Island company is registered as an Australian company its constitution will be the memorandum and articles of association that were in force immediately before the commencement day. However the company must, within three months of registration, update its constitution to give effect to its registration under Part 5B.1 of the Corporations Act.[104]

Transitional rules

The Bill empowers ASIC to make rules, by legislative instrument, setting out transitional arrangements.[105] The rules may relate to any of the following:

• the amendments to the Corporations Act made by the Territories Legislation Amendment Act 2020 (when enacted)
• the repeal of the Norfolk Island Companies Act and
• the amendments of the Corporations Act and any other Act made by the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 (Registries Modernisation Act) which has received Royal Assent but has not yet formally commenced. Relevant to this Bills Digest, Schedule 2 to the Registries Modernisation Act contains amendments to the Corporations Act which require the directors of a company to have a director identification number.[106]

Importantly the Bill limits the period within which ASIC can make transitional rules, so that the power ends on the first Monday after one year, beginning on the commencement day, at which time the transitional provisions will self-repeal.[107]

For the purposes of ASIC performing its functions or duties, or exercising powers under new Part 10.51 and any relevant rules, proposed section 1678C empowers the Registrar of Companies under the Norfolk Island Companies Act to disclose to ASIC information (including personal information) and for ASIC to disclose information in equivalent terms to the Norfolk Island Registrar.

Consumer Credit Act

As with the ASIC Act and the Corporations Act, the amendments to the definitions of Territory in the Consumer Credit Act by items 57 and 63 in Part 1 of Schedule 2 to the Bill operate to ensure the extension of the Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

Transitional provisions

Item 66 in Part 1 of Schedule 2 to the Bill inserts proposed Schedule 18—Application and transitional provisions for the Territories Legislation Amendment Act 2020 into the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009. Within new Schedule 18, item 1 empowers ASIC to make rules, by legislative instrument, setting out transitional arrangements. The power to make transitional rules expires on the first Monday after one year, beginning on the commencement day, at which time the transitional provisions will self-repeal.

Other Treasury Acts

Competition and Consumer Act

Currently some parts of the Competition and Consumer Act 2010 (CCA) apply to Norfolk Island whilst others do not. For instance, the Australian Consumer Law (which is located in Schedule 2 to the CCA) already applies in Norfolk Island[108] but Part VIIA, about prices surveillance, does not.[109]

Item 67 in Part 2 of Schedule 2 to the Bill amends the definition of authority at subsection 4(1) of the CCA so that authority, in relation to a State or Territory and each external Territory, means:

• a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory or
• an incorporated company in which the State or the Territory, or a body corporate referred to above has a controlling interest.

Items 70 and 71 insert definitions of external Territory and Territory, respectively, into subsection 4(1) of the CCA.

The term external Territory:

• means a Territory referred to in section 122 of the Constitution, where an Act makes provision for the government of the Territory as a Territory[110]
• but does not include a Territory covered by the definition of Territory.

The term Territory means the following:

• the Australian Capital Territory
• the Jervis Bay Territory
• the Northern Territory
• Norfolk Island
• the Territory of Christmas Island and
• the Territory of Cocos (Keeling) Islands.

These amendments are relevant to sections 2A and 2B of the CCA which apply the provisions of the Act to the Commonwealth, States and Territories and their authorities.[111]

Items 75–78 amend section 95C of the CCA so that the provisions of Part VIIA relating to prices surveillance extend to Norfolk Island.

Cross-Border Insolvency Act

Currently section 4 of the Cross-Border Insolvency Act 2008 provides that the Act does not apply to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

The Cross-Border Insolvency Act gives effect to the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (UNCITRAL):

The Model Law is designed to assist States to equip their insolvency laws with a modern legal framework to more effectively address cross-border insolvency proceedings concerning debtors experiencing severe financial distress or insolvency. It focuses on authorizing and encouraging cooperation and coordination between jurisdictions, rather than attempting the unification of substantive insolvency law, and respects the differences among national procedural laws. For the purposes of the Model Law, a cross-border insolvency is one where the insolvent debtor has assets in more than one State or where some of the creditors of the debtor are not from the State where the insolvency proceeding is taking place.[112]

The Model Law outlines a system of insolvency procedures to be used in cases where the insolvent party has assets in more than one country; or when there are foreign creditors present in a domestic insolvency proceeding.

Items 80–85 in Part 2 of Schedule 2 to the Bill amend the Cross-Border Insolvency Act so that it will apply in Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

Schedule 3—amendments of Attorney-General’s Department Acts

Commencement

The amendments in Part 1 of Schedule 3 to the Bill commence on the later of the first Monday to occur after the end of the period of six months after Royal Assent and 2 August 2021.

The amendments in Parts 2 and 3 in Schedule 3 to the Bill commence on the earlier of a day to be fixed by Proclamation or six months after Royal Assent.

The amendments in Part 4 of Schedule 3 to the Bill commence on the day after Royal Assent.

Bankruptcy background

The Australian Financial Security Authority (AFSA) manages the application of bankruptcy and personal property securities laws through the delivery of high quality personal insolvency and trustee, regulation and enforcement, and personal property securities services. AFSA:

• acts as trustee for personal insolvency administrations
• provides practical information about options to deal with unmanageable debt and
• preserves the security and integrity of a large volume of personal insolvency records.[113]

For the quarter ending on 30 September 2020, there were zero debtors in Norfolk Island who became bankrupt/entered a debt agreement/entered a personal agreement.[114]

Bankruptcy is a legal process where a person is declared unable to pay their debts. It can release the person from unsecured debts such as credit and store cards; unsecured personal loans and pay day loans; gas, electricity, telephone and internet bills; overdrawn bank accounts and unpaid rent and medical, legal and accounting fees.[115]

However, it does not cover debts such as:

• court imposed penalties and fines
• child support and maintenance
• HECS and HELP debts (government student loans)
• debts incurred after the bankruptcy begins and
• unliquidated debts—that is a debt where the person and their creditor have not yet determined the amount owed.[116]

Bankruptcy normally lasts for three years and one day.[117]

Bankruptcy Act

Currently section 9A of the Bankruptcy Act 1966 provides that it does not extend to Norfolk Island. Similarly, the definitions of the terms Australia, Territory and Territory of the Commonwealth in subsection 5(1) of the Bankruptcy Act are expressed as not including Norfolk Island.

Extension to Norfolk Island

Items 1, 3 and 5 in Part 1 of Schedule 3 to the Bill repeal the definitions of Australia, Territory and Territory of the Commonwealth and section 9A respectively.

In the absence of a formal definition of Australia in the Bankruptcy Act, the definition which is at section 2B of the Acts Interpretation Act 1901 will apply so that Australia means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory. The definition of Territory in the Acts Interpretation Act will also apply. This definition encompasses a Territory referred to in section 122 of the Constitution and therefore includes the ACT, NT, Norfolk Island and other external territories.[118]    

Item 2 in Part 1 of Schedule 3 to the Bill inserts two new definitions:

• authority, in relation to a Territory, means an authority established by or under a law of the Territory, and includes the holder of an office established by or under a law of the Territory
• law, in relation to a Territory, means a law in force in the Territory.

According to the Explanatory Memorandum to the Bill:

By capturing the new definition of ‘law’ in relation to a territory, this amendment is intended to ensure that references to ‘authority’ in the Bankruptcy Act capture authorities of external territories, including those operating under applied laws.[119]

Items 7–12 make consequential amendments to the Bankruptcy Act which are consistent with the above definitional changes.

Transitional provisions

Transitional bankrupts

Item 14 provides that Part 1 of Schedule 3 to the Bill applies to a person (called a transitional bankrupt) in the following circumstances:

• a determination of bankruptcy was made against the person under the Norfolk Island Bankruptcy Act 2006 and
• immediately before the transition time, (that is, the later of the first Monday to occur six months after Royal Assent and 2 August 2021) the person had not obtained a certificate of discharge of the bankruptcy and the bankruptcy determination had not been annulled.

In that case, certain actions taken by persons in Norfolk Island (such as Judges, registrars or the official trustee) are taken to have been done by equivalent persons in the Commonwealth. These are set out in table form in subitem 15(2). In addition, the Commonwealth Bankruptcy Act will apply to a determination of bankruptcy as if it were a sequestration order made under that Act.[120]

Determination of bankruptcy

The Commonwealth Bankruptcy Act applies to a determination of bankruptcy under the Norfolk Island Bankruptcy Act in relation to a transitional bankrupt.

As a result the Official Receiver must enter the following information on the National Personal Insolvency Index:[121]

• particulars of the transitional bankrupt, to the extent that these are disclosed on the determination
• the date of the bankruptcy
• the name of the petitioning creditor
• the name of the transitional bankrupt’s trustee
• the date the transitional bankrupt provided the statement required under paragraph 51(b) of the Norfolk Island Bankruptcy Act [122]and
• any other available information required to be entered on that Index.[123]

Discharge from bankruptcy

A transitional bankrupt is discharged from bankruptcy at the transition time if the date of the determination of the bankruptcy occurred three years or more before the transition time.[124]

Bankruptcy (Estate Charges) Bill

The Bankruptcy (Estate Charges) Bill repeals section 3A of the Bankruptcy (Estate Charges) Act which currently states that the Act does not apply to Norfolk Island.

The effect of this amendment is to empower AFSA to collect certain charges which arise when it administers a bankruptcy.[125] The charges under the Bankruptcy (Estate Charges) Act include an interest charge[126] and a realisations charge.[127]

Freedom of Information Act

Individuals have the right to access documents from Australian Government ministers and most Australian Government agencies under the Freedom of Information Act 1982 (FOI Act).

The FOI Act also applies to Norfolk Island public sector agencies and official documents of Norfolk Island ministers.[128]

Part 2 of Schedule 3 to the Bill repeals and replaces the definition of Norfolk Island authority. Under the new definition the term Norfolk Island authority means any of the following bodies or persons:

• a body (whether incorporated or not) established for a public purpose by a Norfolk Island law, other than a law providing for the incorporation of associations or companies and
• a person holding or performing the duties of an office established by a Norfolk Island law or an appointment made under a Norfolk Island law.[129]

Importantly, the Norfolk Island Regional Council which was established under the Local Government Act 1993 (NSW) (NI) is captured by this definition. However, the definition does not include:

... a state or territory body or office, established or appointed under a state or territory law as in force in that state or territory, which may exercise powers in Norfolk Island under an applied state or territory law.[130]

The term Norfolk Island law means a law in force in the Territory of Norfolk Island that is not an Act or an instrument made under an Act.[131] The rationale for this change is set out in the Explanatory Memorandum to the Bill:

This new definition will include an enactment within the meaning of the Norfolk Island Act or an instrument made under such an enactment (as amended) as well as any applied laws in force in Norfolk Island under section 18A of the Norfolk Island Act. Acts and instruments made under Acts are excluded from this definition to avoid overlapping with the existing definition of ‘enactment’ in subsection 4(1) [of the FOI Act].[132]

Section 7 of the FOI Act sets out a range of persons and bodies that are exempt from its operation. The Bill provides that a body or person may be prescribed by the Regulations as exempt from the FOI Act if: the body or person would otherwise be a Norfolk Island authority and the Minister is satisfied that the body or person is subject to a law that provides equivalent, or substantially similar, requirements relating to freedom of information as those in the FOI Act.[133]

Application provisions

The amendments of the FOI Act apply in relation to:

• the publication of information under the agency information publication scheme
• requests for access to documents and
• applications for amendment or annotation of personal records

after the commencement time—that is, on the earlier of a day to be fixed by Proclamation or six months after Royal Assent.[134]

Privacy Act

The Privacy Act 1988 was introduced to promote and protect the privacy of individuals and to regulate how Australian Government agencies and organisations with an annual turnover of more than $3 million handle personal information.

The Privacy Act includes 13 Australian Privacy Principles (APPs) which apply to some private sector organisations, as well as most Australian Government agencies.[135] These are collectively referred to as APP entities.

In addition, the Privacy Act regulates the privacy component of the consumer credit reporting system,[136] tax file numbers[137] and health and medical research.[138]

The amendments to the Privacy Act in Part 3 of Schedule 3 to the Bill—in particular the amendment to the definition of agency in the Privacy Act—clarify that the Privacy Act applies to:

• a body (whether incorporated or not), or a tribunal, established for a public purpose by or under a law of a State or Territory as in force in an external Territory[139] or
• a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a State or Territory as in force in an external Territory.[140]

This will apply to the Norfolk Island Regional Council.[141]

Schedule 4—amendments of other Acts

Commencement

The amendments in Part 2 of Schedule 4 to the Bill commence the day after Royal Assent. The amendments in Part 1 of Schedule 4 to the Bill commence the day after the end of six months after Royal Assent.

What the Bill does

Part 1 in Schedule 4 to the Bill amends the Broadcasting Services Act to enable the ACMA to issue licences and undertake future broadcasting planning in Norfolk Island.

Item 1 repeals section 10AA of the Broadcasting Services Act which was inserted into that Act by Schedule 5 of the Territories Legislation Amendment Act 2016 to prevent the Broadcasting Services Act from applying wholly to Norfolk Island. As a result of the repeal, the Broadcasting Services Act will apply in its entirety to Norfolk Island—subject to the application, saving and transitional provisions.

Subitem 2(1) relates to the continued operation of community radio service Norfolk Island VL2NI which was established under the Norfolk Island Broadcasting Act 2001. A community radio broadcasting licence is allocated to the Norfolk Island Regional Council for broadcasting services immediately before the commencement time—being six months after Royal Assent. The licence is taken to be a broadcasting services bands licence allocated under the Broadcasting Services Act.

Subitem 2(3) provides that the relevant licence will remain in force for two years from the commencement and cannot be renewed on an application by the Norfolk Island Regional Council.

However, the ACMA may extend the period of the licence by a further period of no more than two years only if, before the end of the initial two year period, the licence has been transferred to another person or an application has been made for approval of such a transfer.[142]

Part 2 in Schedule 4 to the Bill:

• amends subsection 10(3) of the Copyright Act 1968 to ensure Norfolk Island is treated as a territory instead of a state for the purposes of the Act. Items 3 and 4 omit references to ‘Norfolk Island’ in paragraph 10(3)(n) of the Copyright Act. The effect of the amendment is that a reference to a State in the Copyright Act is not a reference to Norfolk Island, with Norfolk Island instead treated as a Territory under the Act[143]
• repeals and replaces a note to subsection 182B(1) of the Copyright Act to clarify the meaning of the term government. That section is contained in Division 2 of Part VII of the Copyright Act which provides for the use of copyright material for the Crown. As the term government means the Commonwealth or a State, the note (inserted by item 6) makes clear that the reference to a State in this context does not include Norfolk Island
• item 7 amends the Education Services for Overseas Students Act 2000 (ESOS Act) to extend the application of the Act to Norfolk Island. Item 9 repeals current section 4C that explicitly excluded Norfolk Island from the operation of the ESOS Act.