An Act to provide for the government of Norfolk Island
Part I—Preliminary
1 Short title
This Act may be cited as the Norfolk Island Act 1979.
2 Commencement
(1) Sections 1, 2, 4, 31, 38, 39, 67, 68 and 69 shall come into operation on the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act shall come into operation on a date to be fixed by Proclamation.
3 Repeals
The Norfolk Island Act 1957 and the Norfolk Island Act 1963 are repealed.
4 Interpretation
(1) In this Act, unless the contrary intention appears:
Australia, when used in a geographical sense, includes Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.
Chief Justice means the Chief Justice of the Supreme Court.
Commonwealth Minister means a Minister of State of the Commonwealth.
court officer of New South Wales means a person holding, or performing the functions or duties of, any of the following offices:
(a) any of the following offices in a court of New South Wales:
(i) Judge;
(ii) Magistrate (however described);
(iii) Master;
(iv) Registrar (however described);
(v) Clerk (however described);
(vi) Sheriff (however described);
(vii) Bailiff (however described);
(b) any other office that is:
(i) in respect of a court of New South Wales; and
(ii) specified in the regulations.
court of New South Wales includes a tribunal established under a law of New South Wales.
enactment means:
(a) a section 19A Ordinance; or
(b) an Ordinance continued in force by this Act; or
(c) a Legislative Assembly law continued in force by this Act.
final transition time means the commencement of Part 1 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015.
interim transition time means the commencement of Part 1 of Schedule 1 to the Norfolk Island Legislation Amendment Act 2015.
Judge means a Judge of the Supreme Court (including the Chief Justice).
Legislative Assembly means the Legislative Assembly of Norfolk Island that was in existence before the interim transition time.
Legislative Assembly law means a law (however described or entitled) passed by the Legislative Assembly, and assented to under this Act, before the interim transition time.
Norfolk Island Regional Council means a body that is:
(a) established by or under a law in force in the Territory; and
(b) declared by a section 19A Ordinance to be the Norfolk Island Regional Council for the purposes of this definition.
responsible Commonwealth Minister means the Commonwealth Minister who administers this Act.
section 19A Ordinance means an Ordinance made under section 19A after the interim transition time.
Supreme Court means the Supreme Court of Norfolk Island referred to in section 52.
Territory means Norfolk Island, that is to say, the Territory of Norfolk Island as described in Schedule 1.
(3) A reference in this Act to a law, or to regulations, in force immediately before a particular date shall be read as including a reference to any provisions of the law, or of the regulations, that are not to come into operation until that date or a later date.
Part IV—Legislation
Division 1—Laws
15 Laws in force in the Territory
After the final transition time, the laws in force in the Territory from time to time are:
(a) Acts to the extent that they are in force from time to time in, or in relation to, the Territory; and
(b) laws made under Acts to the extent that those laws are in force from time to time in, or in relation to, the Territory; and
(c) section 19A Ordinances as in force from time to time; and
(d) laws continued in force by section 16 or 16A (including such a law as amended in accordance with section 17); and
(e) New South Wales laws as in force in the Territory in accordance with section 18A.
16 Continuance of laws in force immediately before 7 August 1979
(1) Notwithstanding the repeal of the Norfolk Island Act 1957 and the Norfolk Island Act 1963, but subject to this Act, all other laws in force immediately before the date of commencement of this section in or in relation to the Territory continue in force.
Note: This section commenced on 7 August 1979.
(2) In this section, laws means Ordinances made under, and laws continued in force by, the Norfolk Island Act 1957 and laws made under such an Ordinance or law.
16A Continuance of certain laws in force immediately before the interim transition time
(1) Subject to this Act, all Legislative Assembly laws that were in force immediately before the interim transition time continue in force.
(2) Subject to this Act, all Ordinances made under this Act that were in force immediately before the interim transition time continue in force.
(3) A reference in this section to a Legislative Assembly law includes a reference to a law made under a Legislative Assembly law.
(4) A reference in this section to an Ordinance made under this Act includes a reference to a law made under such an Ordinance.
(5) This section has effect despite the repeal of sections 19 and 27 by the Norfolk Island Legislation Amendment Act 2015.
17 Amendment and repeal of existing laws
(1) Subject to this Act, a law continued in force by section 16 may be amended or repealed by an enactment or by a law made under an enactment.
(2) A law continued in force by section 16, being an Ordinance, or being a Law made by the Governor of the State of New South Wales before the commencement of the Norfolk Island Act 1913, may not be amended or repealed by a law made under an enactment unless the contrary intention appears in that enactment.
(3) Subject to this Act, a law continued in force by section 16 or 16A may be amended or repealed by a section 19A Ordinance or by a law made under a section 19A Ordinance.
(4) A section 19A Ordinance may suspend the operation of a law continued in force by section 16 or 16A for such period as is specified in the Ordinance.
18 Application of Commonwealth Acts
(1) An Act or a provision of an Act extends to the Territory of its own force except so far as the Act or another Act expressly provides otherwise.
(2) Except as provided by this Act, an enactment has no effect so far as it purports to affect the application of an Act or a provision of an Act in or in relation to the Territory.
(3) Subsections (1) and (2) apply to Acts passed before, on or after 1 July 2016.
18A Application of New South Wales laws
(1) Subject to this section and section 18B, the provisions of the law of New South Wales (whether made before or after the final transition time), as in force in New South Wales from time to time, are in force in the Territory.
(2) To the extent that a law is in force in the Territory under subsection (1), it may be incorporated, amended or repealed by a section 19A Ordinance or a law made under a section 19A Ordinance.
(3) A section 19A Ordinance may suspend the operation in the Territory of a law in force in the Territory under subsection (1) for such period as is specified in the Ordinance.
(4) To the extent that a law is in force in the Territory under subsection (1), it has no effect to the extent that it is inconsistent with:
(a) the Constitution; or
(b) an Act; or
(c) an enactment.
(5) For the purposes of subsection (4), a law is taken to be consistent with:
(a) an Act; or
(b) an enactment;
to the extent that the law is capable of operating concurrently with it.
(6) In this section:
provision of the law of New South Wales:
(a) includes a principle or rule of common law or equity that is part of the law of New South Wales; and
(b) does not include an Act or a provision of an Act.
18B Powers and functions under the applied New South Wales laws
Vesting of powers in the Minister
(1) If a power is vested in:
(a) a Minister of New South Wales; or
(b) the Governor of New South Wales; or
(c) the Governor‑in‑Council of New South Wales;
by a New South Wales law in force in the Territory under section 18A, the power is, in relation to the Territory, vested in the responsible Commonwealth Minister instead of the person or authority mentioned in paragraph (a), (b) or (c) of this subsection.
(2) If:
(a) a power is vested in a person (other than a court officer of New South Wales) or an authority (other than a court of New South Wales) by a New South Wales law in force in the Territory under section 18A; and
(b) subsection (1) does not apply to the power;
the power is, in relation to the Territory, vested in the responsible Commonwealth Minister instead of the person or authority mentioned in paragraph (a) of this subsection.
Delegation etc.
(3) If a power is vested in the responsible Commonwealth Minister under subsection (1) or (2), the Minister may, in writing:
(a) direct that the power is also vested in a specified person or authority; or
(b) delegate the power to a specified person.
(4) A person or authority in whom a power is vested under paragraph (3)(a) may, if the person is so empowered by the responsible Commonwealth Minister in the direction, delegate the power, in writing, to a specified person.
(5) If:
(a) a power is vested in the responsible Commonwealth Minister under subsection (2); and
(b) a person, or an authority, who is:
(i) an officer or employee of New South Wales; or
(ii) an authority of New South Wales; or
(iii) an officer or employee of an authority of New South Wales;
is subject to an arrangement under section 18C; and
(c) the power corresponds to a power that the person or authority is authorised, under a law in force in New South Wales, to exercise in, or in a part of, New South Wales:
(i) whether in the person’s own right or the authority’s own right; or
(ii) whether in the capacity of a delegate; or
(iii) whether in any other way;
the responsible Commonwealth Minister is taken to have directed under paragraph (3)(a) that the first‑mentioned power is also vested in the person or authority, as the case may be.
(6) The Minister may direct that subsection (5) does not apply to a specified power.
(7) A direction under subsection (6) may be unconditional or subject to such conditions (if any) as are specified in the direction.
Other matters
(8) An instrument under this section may identify a power by reference to a class of powers.
(9) The validity of the exercise of a power under a law by a person or authority under this section is unaffected by the failure of the person or authority to hold a qualification required of a person exercising that power under the law as in force in New South Wales.
(10) This section does not affect the operation of section 18A in relation to the application in or in relation to the Territory of a law (a subordinate law) made under a New South Wales law (whether the subordinate law is made before or after the final transition time).
(11) An instrument under this section is not a legislative instrument.
(12) In this section:
authority means:
(a) a body corporate, or an unincorporated body, established for a public purpose; or
(b) an authority (within the ordinary meaning of that expression).
authority of New South Wales means an authority established by or under a New South Wales law.
power includes function or duty, and, in that context, exercise means perform.
18C Arrangements with the Government of New South Wales
(1) The Commonwealth may enter into arrangements with New South Wales for the effective application and administration of the laws in force in the Territory.
(2) Without limiting the generality of subsection (1), such an arrangement may provide for the exercise of powers or the performance of functions or duties by:
(a) an officer or employee of New South Wales; or
(b) an authority of New South Wales (within the meaning of section 18B); or
(c) an officer or employee of an authority of New South Wales (within the meaning of section 18B);
in or in relation to the Territory.
Division 2—Legislative powers of the Governor‑General
19A Governor‑General may make Ordinances
(1) Subject to this Act, the Governor‑General may make Ordinances for the peace, order and good government of the Territory.
(2) An Ordinance made under subsection (1) is a legislative instrument.
Division 3—Inconsistency of laws
29 Inconsistency of Legislative Assembly laws with old Ordinances
(1) Where an enactment made under repealed Division 2 (as in force before the interim transition time) is inconsistent with an Ordinance made by the Governor‑General under repealed section 27 (as in force before the interim transition time), the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid, but an enactment and an Ordinance shall not be taken for the purposes of this subsection to be inconsistent to the extent that they are capable of operating concurrently.
(2) A reference in this section to an enactment or to an Ordinance shall be read as including a reference to a law made under an enactment or under an Ordinance, as the case may be.
30 Inconsistency of section 19A Ordinances with the regulations
(1) If a section 19A Ordinance is inconsistent with the regulations, the regulations prevail, and the section 19A Ordinance is, to the extent of the inconsistency, invalid.
(2) For the purposes of subsection (1), a section 19A Ordinance is taken to be consistent with the regulations to the extent that they are capable of operating concurrently.
(3) A reference in this section to a section 19A Ordinance includes a reference to a law made under a section 19A Ordinance.
Part VII—The Judicial System
52 Constitution of Supreme Court
(1) The Supreme Court of Norfolk Island established by the Norfolk Island Act 1957 continues in existence, notwithstanding the repeal of that Act, as the Superior Court of Record of the Territory.
(2) The Supreme Court shall consist of a Chief Justice and such other Judge as is, or such other Judges as are, appointed in accordance with this Act.
53 Appointment of Judges
(1) The Governor‑General may, by Commission, appoint a person who, or persons each of whom, is a Judge of another court created by the Parliament to be a Judge or Judges of the Supreme Court.
(1A) The Governor‑General may, by Commission, appoint a person who is a Judge of another court created by the Parliament to be the Chief Justice of the Supreme Court.
(3) A person shall not be appointed:
(a) as a Judge under subsection (1); or
(b) as the Chief Justice under subsection (1A), whether or not he or she already holds office as a Judge;
if he or she has attained the age of 70 years.
(4) A Judge ceases to hold office as a Judge upon his or her attaining the age of 70 years.
(5) A Judge ceases to hold office as a Judge if he or she no longer holds office as a Judge of another court created by the Parliament.
(6) A Judge may resign his or her office by writing under his or her hand delivered to the Governor‑General.
53A Acting Chief Justice
Whenever:
(a) the Chief Justice is absent from Australia or is absent from duty; or
(b) there is a vacancy in the office of Chief Justice;
the next senior Judge who is in Australia and is able and willing to do so shall perform the duties, and may exercise the powers, of the Chief Justice.
54 Seniority of Judges
The Chief Justice is the senior Judge of the Supreme Court and the other Judges have seniority according to the dates on which their Commissions took effect or, where the Commissions of 2 or more of them took effect on the same date, according to the precedence assigned to them by their Commissions.
55 Holding of other judicial offices
A person may be a Judge of the Supreme Court notwithstanding that he or she is also a Judge of another court created by the Parliament, or is also the holder of a judicial office in relation to a Territory other than Norfolk Island, by virtue of an appointment made either before or after his or her appointment as a Judge of the Supreme Court.
56 Salaries and travelling allowances
(1) A Judge shall be remunerated with the salary and annual allowance that he or she receives as a Judge of the other court, or other courts of which he or she is a Judge.
(2) A Judge shall be paid such travelling allowances as the Governor‑General approves.
57 Oath or affirmation of Judge
A Judge appointed after the commencement of this section shall, before proceeding to discharge the duties of his or her office, take before the Governor‑General, a Judge of the Supreme Court or of another court created by the Parliament, or a person authorized by the Governor‑General for the purpose, an oath or affirmation in accordance with the form in Schedule 4.
58 Exercise of jurisdiction
(1) The jurisdiction of the Supreme Court is exercisable by one Judge, sitting in Court or, to the extent and in the cases provided by or under enactment, sitting in Chambers.
(2) The Chief Justice is responsible for ensuring the orderly and expeditious discharge of the business of the Supreme Court and accordingly may, subject to this Act and to such consultation with the Judges as is appropriate and practicable, make arrangements as to the Judge or Judges who is or are to constitute the Supreme Court in particular matters or classes of matters.
(3) The Supreme Court constituted by one Judge may sit and exercise the jurisdiction of the Court notwithstanding that the Court constituted by another Judge is at the same time sitting and exercising the jurisdiction of the Court.
(4) The exercise of the jurisdiction of the Supreme Court by a Judge is not invalidated and shall not be called in question on the ground that it is not in accordance with arrangements made in pursuance of this section.
59 Jurisdiction of Supreme Court
Subject to regulations referred to in paragraph 67(1)(a), the jurisdiction, practice and procedure of the Supreme Court shall be as provided by or under enactment.
60 Establishment of courts and tribunals
Courts and tribunals for the Territory may be established by or under enactment.
Part VIII—Miscellaneous
61 Appointment of officers
(1) Despite the Public Service Act 1999, a law of the Territory may make provision for and in relation to the appointment and employment of persons for the purposes of the government of the Territory.
(2) This section does not prevent the appointment or employment of persons under the Public Service Act 1999 in its application to the Territory.
62 Disposal of land
(1) The application of the Lands Acquisition Act 1989 in relation to land in the Territory does not prevent or affect the making or operation of a provision of an enactment under which:
(a) land in the Territory acquired by or vested in the Commonwealth may be disposed of or otherwise dealt with; or
(b) instruments, receipts and other documents in relation to any such land may be executed; or
(c) rights, duties and liabilities in relation to any such land are or may be acquired, conferred or imposed.
(2) An enactment referred to in subsection (1) which provides for the acquisition of land must provide that such land must not be acquired otherwise than on just terms.
64 Customs duty on certain goods
(1) Duties of customs are not chargeable on goods imported into Australia from the Territory if the goods:
(a) are the produce or manufacture of the Territory; and
(b) have been shipped in the Territory for export to Australia; and
(c) are not goods which, if manufactured or produced in Australia, would be subject to a duty of excise.
(2) In this section:
Australia does not include Norfolk Island.
66 Grant of pardon, remission etc.
(1) The Governor‑General, acting with the advice of the Attorney‑General, may, by warrant under his or her hand, grant to a person convicted by a court of the Territory exercising criminal jurisdiction a pardon, either free or conditional, or a remission or commutation of sentence, or a respite, for such period as he or she thinks fit, of the execution of sentence, and may remit any fines, penalties and forfeitures imposed or incurred under a law in force in the Territory.
(2) Without limiting the powers of the Governor‑General under subsection (1), provision may be made by enactment for the remission, for good conduct, of part of the sentence of a person serving a sentence of imprisonment in the Territory.
(3) Where an offence has been committed in the Territory, or where an offence has been committed outside the Territory for which the offender may be tried in the Territory, the Governor‑General, acting with the advice of the Attorney‑General, may, by warrant under his or her hand, grant a pardon to an accomplice who gives evidence that leads to the conviction of the principal offender, or of any of the principal offenders.
67 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular:
(a) making provision for and in relation to sittings of the Supreme Court in a State or in a Territory other than Norfolk Island for the purpose of hearing and determining a matter, otherwise than in the exercise of its criminal jurisdiction, if a Judge is satisfied that the hearing of the matter outside the Territory is not contrary to the interests of justice; and
(b) prescribing penalties, of imprisonment for a period not exceeding 3 months or a fine not exceeding 5 penalty units, for offences against the regulations.
Part IX—Transitional provisions that commenced in 1979
68 Interpretation
In this Part, unless the contrary intention appears:
commencing date means the date fixed under subsection 2(2).
previous Act means the Norfolk Island Act 1957.
69 Election of Legislative Assembly
(1) The powers of the Governor‑General under the previous Act to make Ordinances extend to the making of an Ordinance before the commencing date for the purposes of subsection 31(3) and with respect to matters relating to the Legislative Assembly.
(2) An election for the purposes of subsection 31(3) shall not be held before 1 July 1979.
(3) The writ for an election for the purposes of subsection 31(3) to be held before the commencing date shall be issued by the Administrator.
(4) In subsection (3), Administrator has the same meaning as in the previous Act.
70 Administrator etc. to continue in office
(1) Where, immediately before the commencing date, a person holds office by virtue of a provision of the previous Act as the Administrator, an Acting Administrator, the Deputy Administrator, or a Judge, he or she continues, subject to this Act, to hold office for the remainder of his or her term of office as if he or she had been appointed under the corresponding provision of this Act, and any instrument by which his or her appointment was made continues in force accordingly.
(2) Sections 10 and 57 do not apply for the purposes of the continuance in office of a person by virtue of subsection (1) of this section.
71 Proposed Ordinances and regulations
Where, before the commencing date:
(a) a proposed Ordinance was, under section 16 of the previous Act, furnished to the Norfolk Island Council for its consideration; and
(b) the proposed Ordinance, or the proposed Ordinance as amended, was not made under subsection (3) or (4) of that section;
then, whether or not representations were made by the Council in relation to the proposed Ordinance under that section, a copy of the proposed Ordinance shall, as soon as practicable after the commencing date, be laid before the Legislative Assembly at a meeting of the Assembly, and, upon its being so laid before the Assembly, this Act has effect in relation to the proposed Ordinance as if it were a law introduced into the Legislative Assembly under section 26 of this Act.
72 Laying of Ordinances before the Parliament
In relation to an Ordinance made under the previous Act, section 17 of that Act continues to apply, by force of this section, on and after the commencing date as if that section had not been repealed and as if the reference in subsection (5) to the making of an Ordinance were a reference to the making of an enactment under this Act.
73 Validity of Ordinances and enactments
An Ordinance made under the previous Act and an enactment made in pursuance of section 71 of this Act is as valid and effectual as if it had been made, or wholly made, as the case may be, under Part IV of this Act.
74 Contracts and agreements
(1) This section applies to:
(a) rights and liabilities of the Commonwealth subsisting immediately before the commencing date by virtue of a contract or agreement entered into on behalf of the Commonwealth by the Administrator of Norfolk Island or the Administration of Norfolk Island (however described);
(b) rights and liabilities of the corporation referred to in subsection 17(3) of the Public Moneys Ordinance 1964 of Norfolk Island, being rights and liabilities subsisting immediately before the commencing date arising out of the investment of any moneys in pursuance of section 17 of that Ordinance; and
(c) rights and liabilities (other than rights and liabilities referred to in paragraph (a) or (b)) of the Commonwealth, the Administrator of Norfolk Island or the Administration of Norfolk Island subsisting immediately before the commencing date by virtue of any contract or agreement entered into or purporting to be entered into by the Administrator of Norfolk Island or the Administration of Norfolk Island (however described).
(2) All rights and liabilities to which this section applies become, on the commencing date, rights and liabilities of the Administration of Norfolk Island.
75 Public Account of Norfolk Island
All moneys that were, immediately before the commencing date, standing to the credit of the Public Account of Norfolk Island kept in accordance with section 6 of the Public Moneys Ordinance 1964 of Norfolk Island become, on that date, moneys standing to the credit of the Public Account of Norfolk Island established by this Act.
76 Audit
The reference in section 63 to the accounts of the Territory shall be read as including a reference to accounts prepared before the commencing date and to accounts prepared on or after the commencing date in respect of any period before the commencing date.
77 Regulations
(1) The regulations may make provision (including provision by way of modifications and adaptations of any Act) for and in relation to any matter arising from, consequential upon or otherwise connected with the establishment of the Administration of Norfolk Island as a body politic.
(2) The power to make regulations by virtue of subsection (1) extends to the making of regulations expressed to take effect on and from a date earlier than the date of the making of the regulations, not being a date earlier than the commencing date.
(3) Regulations shall not be made by virtue of this section after 30 June 1980.
