Federal Register of Legislation - Australian Government

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Ordinances/Norfolk Island as made
This Ordinance amends the Norfolk Island Continued Laws Ordinance 2015 and the Norfolk Island Applied Laws Ordinance 2016 to amend certain laws made by the former Norfolk Island Legislative Assembly and repeal the redundant Criminal Law Act 1960 (NI) and to make a minor technical amendment in relation to the domestic and personal violence provisions that were unsuspended in Norfolk Island in 2018.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s11 item 05
Registered 09 Jul 2021
Tabling HistoryDate
Tabled HR03-Aug-2021
Tabled Senate03-Aug-2021
Date of repeal 19 Oct 2021
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003

EXPLANATORY STATEMENT

 

Issued by the authority of the Assistant Minister for Regional Development and Territories and Parliamentary Secretary to the Deputy Prime Minister and Minister for Infrastructure, Transport, Cities and Regional Development

 

Norfolk Island Act 1979

 

Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021

 

Authority

The Norfolk Island Act 1979 (the Act) provides for the governance of the Territory of Norfolk Island.

Section 19A of the Act provides that the Governor-General may make ordinances for the peace, order and good government of the Territory of Norfolk Island.

Under section 17 of the Act, Norfolk Island laws continued in force under either section 16 or 16A of the Act may be amended or repealed by an ordinance made under section 19A.

The Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021 (the Ordinance) is made under section 19A of the Act.

The Ordinance amends the Norfolk Island Continued Laws Ordinance 2015 (the Continued Laws Ordinance) with the effect of amending a number of continued Norfolk Island laws, specifically the:

·         Bail Act 2005 (NI) (the Bail Act)

·         Court of Petty Sessions Act 1960 (NI) (the Court of Petty Sessions Act)

·         Criminal Code 2007 (NI) (the Criminal Code)

·         Criminal Procedure Act 2007 (NI) (the Criminal Procedure Act)

·         Dangerous Drugs Act 1927 (NI) (the Dangerous Drugs Act)

·         Interpretation Act 1979 (NI) (the Interpretation Act)

·         Sentencing Act 2007 (NI) (the Sentencing Act)

·         Supreme Court Act 1960 (NI) (the Supreme Court Act)

·         Traffic Act 2010 (NI) (the Traffic Act).

The Ordinance also amends the Continued Laws Ordinance with the effect of repealing the redundant Criminal Law Act 1960 (NI) (the Criminal Law Act).

The Ordinance also makes a minor technical amendment to the Norfolk Island Applied Laws Ordinance 2016 (the Applied Laws Ordinance) in relation to the domestic and personal violence provisions that were unsuspended in Norfolk Island in 2018.

Purpose and operation

The amendments contained in the Ordinance continue the work of the Australian Government on improving the Norfolk Island justice system to ensure protections for people under Norfolk Island laws are equivalent to those in other Australian jurisdictions, and that Norfolk Island police and courts can take action against people who commit crime.

The amendments are also aimed at furthering improve court outcomes and access to justice for the Norfolk Island community.

Specifically, the amendments made by the Ordinance:

·         Enhance the ‘show cause’ provisions of the Bail Act by expanding the range of offences for which there is a presumption against bail.

·         Clarify the powers of the Supreme Court of Norfolk Island with respect to the review of bail decisions.

·         Increase the limit of the civil jurisdiction of the Court of Petty Sessions to claims with a value of $60,000.

·         Repeal the redundant summary offence of common assault in the Criminal Code.

·         Amend the Criminal Code to restrict the defence of marriage for certain sexual offences, where the defendant is in a position of trust or authority, to valid and genuine marriages where the other person was at least 16 years of age when the marriage was entered into.

·         Amend the Criminal Code to insert a definition of ‘controlled plant’ and prescribe the different quantities of ‘commercial quantity’, ‘large commercial quantity’ and ‘trafficable quantity’ for a ‘controlled drug’ or a ‘controlled plant’.

·         Increase the limit of the criminal jurisdiction of the Court of Petty Sessions to the summary disposal of offences involving money or property (other than motor vehicles) with a value of $60,000.

·         Amend the Criminal Code to provide that the definition of ‘law of Norfolk Island’ means a law in force in Norfolk Island in accordance with section 15 of the Act, that is, will also include applied laws as in force in the Territory in accordance with section 18A of the Act.

·         Amend the Criminal Procedure Act to provide that the Court of Petty Sessions may order that an accused be assessed by a medical practitioner or psychiatrist, at any time during a proceeding (including a bail hearing), when determining if an accused is mentally dysfunctional or mentally impaired.

·         Amend the Criminal Procedure Act to strengthen existing prohibitions against the publication of the identity of a complainant in a sexual offence proceeding, including requiring the leave of the court in certain circumstances.

·         Amend the Dangerous Drugs Act to provide that a member of the Norfolk Island Police Force is an ‘authorised officer’ for the purposes of this Act.

·         Amend the Dangerous Drugs Act to clarify the definition of ‘cannabis plant’ and specify methylamphetamine, also known as ‘meth’ or ‘ice’, as a ‘narcotic substance’ for the purposes of this Act with a ‘trafficable quantity’ of 3 grams.

·         Amend the Interpretation Act to address a technical issue with respect to the operation of penalties in Norfolk Island enactments.

·         Amend the Sentencing Act to clarify existing provisions dealing with the powers of a court to impose fines, including when an offence would otherwise only be punishable by imprisonment; inserts a corporate multiplier for a body corporate convicted of an offence; removes any doubt as to the power of the courts to set non-parole periods; and clarifies the operation of the Act with respect to offences under all laws in force in Norfolk Island, including applied laws.

·         Amend the Supreme Court Act to allow, with the leave of Full Federal Court, the Attorney-General or the Commonwealth Director of Public Prosecutions to appeal to that Court against sentences passed in relation to a person’s conviction on indictment before the Supreme Court.

·         Amend the Traffic Act to make a consequential amendment arising from the recent traffic law enforcement measures introduced by the Norfolk Island Continued Laws Amendment (Traffic and Other Measures) Ordinance 2020.

·         Repeal the redundant Criminal Law Act.

In addition, the Ordinance makes a minor technical amendment to the Applied Laws Ordinance in relation to the domestic and personal violence provisions that were unsuspended in Norfolk Island in 2018.

The Commonwealth develops offences having regard to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) which sets out limitations on the inclusion of certain penalties in delegated legislation. However, the special legislative framework applying in the case of Norfolk Island permits departure from the limitations regarding penalties in delegated legislation.

Special legislative framework

The Ordinance is made pursuant to a plenary legislative power conferred on the Governor‑General under section 19A of the Act, which provides that the Governor-General may, subject to the Act, make Ordinances ‘for the peace, order and good government of the Territory’. This is quite different from the general regulation-making powers usually found in Commonwealth legislation, which generally only authorise the Governor-General to make regulations prescribing matters that are ‘required or permitted’ to be prescribed by an Act, or that are ‘necessary or convenient’ for carrying out or giving effect to an Act.

The Parliament has conferred plenary legislative power on the Governor-General for the external territories and the Jervis Bay Territory. That power is expressed in broad terms, and reflects the wording used in state constitutions to confer plenary legislative power on state parliaments. The conferral of the power is to enable the Governor-General to legislate for state-type matters, and authorises the broadest range of Ordinances as necessary for the good government of Norfolk Island, including to prescribe offences that are punishable by imprisonment.  

The Criminal Code was made by the former Legislative Assembly of Norfolk Island and has been continued in force by section 16A of the Act. The Criminal Code covers matters that would normally be dealt with under state or territory legislation. Subsection 17(3) of the Act expressly provides that laws continued in force by section 16A of that Act may be amended or repealed by a section 19A Ordinance. Accordingly, the amendment of this continued law by a section 19A Ordinance is expressly authorised by the Act.

Section 19A authorises the broadest range of ordinances to be made for the good government of Norfolk Island, which includes the power to prescribe offences that impose penalties exceeding a fine of 50 penalty units and/or punishable by imprisonment. The Criminal Code as amended includes the offence of identifying a complainant in a sexual offence proceeding with a maximum penalty of 12 months imprisonment, or 60 penalty units, or both. These penalties are consistent with existing penalties in Norfolk Island laws, and penalties in other jurisdictions in Australia, for similar offences.

Consultation

The Department of Infrastructure, Transport, Regional Development and Communications consulted broadly about measures included in the Ordinance.

·         Community consultation was conducted during 2017 and 2018 regarding the proposed amendments, which involved a range of members of the Norfolk Island community, including the legal profession and health care practitioners.


·          

·         Consultation with the Department of Prime Minister and Cabinet, the Norfolk Island Supreme Court, the Chief Magistrate, Registrar and Deputy Registrar of the Norfolk Island Court of Petty Sessions, and various Commonwealth and state and territory agencies, including the Australian Federal Police and Norfolk Island Police Force, the Attorney‑General’s Department, the Commonwealth Office of the Director of Public Prosecutions, the Department of Home Affairs, the Australian Capital Territory Justice and Community Safety Directorate, and the NSW Department of Premier and Cabinet.

The community and other parties consulted generally supported the proposed amendments.

Details of the Ordinance are set out in the Attachment.

The Ordinance is a legislative instrument for the purposes of the Legislation Act 2003.

The Ordinance commences the day after registration on the Federal Register of Legislation.


 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Ordinance

The Norfolk Island Act 1979 (the Act) provides for the governance of the Territory of Norfolk Island.

Section 19A of the Act provides that the Governor-General may make ordinances for the peace, order and good government of the Territory of Norfolk Island.

Under section 17 of the Act, Norfolk Island laws continued in force under either section 16 or 16A of the Act may be amended or repealed by an ordinance made under section 19A.

The Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021 (the Ordinance) is made under section 19A of the Act.

The Ordinance amends the Norfolk Island Continued Laws Ordinance 2015 (the Continued Laws Ordinance) with the effect of amending a number of continued Norfolk Island laws, specifically the:

·         Bail Act 2005 (NI) (the Bail Act)

·         Court of Petty Sessions Act 1960 (NI) (the Court of Petty Sessions Act)

·         Criminal Code 2007 (NI) (the Criminal Code)

·         Criminal Procedure Act 2007 (NI) (the Criminal Procedure Act)

·         Dangerous Drugs Act 1927 (NI) (the Dangerous Drugs Act)

·         Interpretation Act 1979 (NI) (the Interpretation Act)

·         Sentencing Act 2007 (NI) (the Sentencing Act)

·         Supreme Court Act 1960 (NI) (the Supreme Court Act)

·         the Traffic Act 2010 (NI) (the Traffic Act).

The Ordinance also amends the Continued Laws Ordinance with the effect of repealing the redundant Criminal Law Act 1960 (NI) (the Criminal Law Act).

The Ordinance also makes a minor technical amendment to the Norfolk Island Applied Laws Ordinance 2016 (the Applied Laws Ordinance) in relation to the domestic and personal violence provisions that were unsuspended in Norfolk Island in 2018.

Purpose and operation

The amendments contained in the Ordinance continue the work of the Australian Government on improving the Norfolk Island justice system to ensure protections for people under Norfolk Island laws are equivalent to those in other Australian jurisdictions, and that Norfolk Island police and courts can take action against people who commit crime.

The amendments are also aimed at furthering improve court outcomes and access to justice for the Norfolk Island community.

Specifically, the amendments made by the Ordinance:

·         Enhance the ‘show cause’ provisions of the Bail Act by expanding the range of offences for which there is a presumption against bail.

·         Clarify the powers of the Supreme Court of Norfolk Island with respect to the review of bail decisions.

·         Increase the limit of the civil jurisdiction of the Court of Petty Sessions to claims with a value of $60,000.

·         Repeal the redundant summary offence of common assault in the Criminal Code.

·         Amend the Criminal Code to restrict the defence of marriage for certain sexual offences, where the defendant is in a position of trust or authority, to valid and genuine marriages where the other person was at least 16 years of age when the marriage was entered into.

·         Amend the Criminal Code to insert a definition of ‘controlled plant’ and prescribe the different quantities of ‘commercial quantity’, ‘large commercial quantity’ and ‘trafficable quantity’ for a ‘controlled drug’ or a ‘controlled plant’.

·         Increase the limit of the criminal jurisdiction of the Court of Petty Sessions to the summary disposal of offences involving money or property (other than motor vehicles) with a value of $60,000.

·         Amend the Criminal Code to provide that the definition of ‘law of Norfolk Island’ means a law in force in Norfolk Island in accordance with section 15 of the Act, that is, will also include applied laws as in force in the Territory in accordance with section 18A of the Act.

·         Amend the Criminal Procedure Act to provide that the Court of Petty Sessions may order that an accused be assessed by a medical practitioner or psychiatrist, at any time during a proceeding (including a bail hearing), when determining if an accused is mentally dysfunctional or mentally impaired.

·         Amend the Criminal Procedure Act to strengthen existing prohibitions against the publication of the identity of a complainant in a sexual offence proceeding, including requiring the leave of the court in certain circumstances.

·         Amend the Dangerous Drugs Act to provide that a member of the Norfolk Island Police Force is an ‘authorised officer’ for the purposes of this Act.

·         Amend the Dangerous Drugs Act to clarify the definition of ‘cannabis plant’ and specify methylamphetamine, also known as ‘meth’ or ‘ice’, as a ‘narcotic substance’ for the purposes of this Act with a ‘trafficable quantity’ of 3 grams.

·         Amend the Interpretation Act to address a technical issue with respect to the operation of penalties in Norfolk Island enactments.

·         Amend the Sentencing Act to clarify existing provisions dealing with the powers of a court to impose fines, including when an offence would otherwise only be punishable by imprisonment; inserts a corporate multiplier for a body corporate convicted of an offence; removes any doubt as to the power of the courts to set non-parole periods; and clarifies the operation of the Act with respect to offences under all laws in force in Norfolk Island, including applied laws.

·         Amend the Supreme Court Act to allow, with the leave of Full Federal Court, the Attorney-General or the Commonwealth Director of Public Prosecutions to appeal to that Court against sentences passed in relation to a person’s conviction on indictment before the Supreme Court.

·         Amend the Traffic Act to make a consequential amendment arising from the recent traffic law enforcement measures introduced by the Norfolk Island Continued Laws Amendment (Traffic and Other Measures) Ordinance 2020.

·         Repeal the redundant Criminal Law Act.

In addition, the Ordinance makes a minor technical amendment to the Applied Laws Ordinance in relation to the domestic and personal violence provisions that were unsuspended in Norfolk Island in 2018.

The Commonwealth develops offences having regard to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) which sets out limitations on the inclusion of certain penalties in delegated legislation. However, the special legislative framework applying in the case of Norfolk Island permits departure from the limitations regarding penalties in delegated legislation.

Special legislative framework

The Ordinance is made pursuant to a plenary legislative power conferred on the Governor‑General under section 19A of the Act, which provides that the Governor-General may, subject to the Act, make Ordinances ‘for the peace, order and good government of the Territory’. This is quite different from the general regulation-making powers usually found in Commonwealth legislation, which generally only authorise the Governor-General to make regulations prescribing matters that are ‘required or permitted’ to be prescribed by an Act, or that are ‘necessary or convenient’ for carrying out or giving effect to an Act.

The Parliament has conferred plenary legislative power on the Governor-General for the external territories and the Jervis Bay Territory. That power is expressed in broad terms, and reflects the wording used in state constitutions to confer plenary legislative power on state parliaments. The conferral of the power is to enable the Governor-General to legislate for state-type matters, and authorises the broadest range of Ordinances as necessary for the good government of Norfolk Island, including to prescribe offences that are punishable by imprisonment.  

The Criminal Code was made by the former Legislative Assembly of Norfolk Island and has been continued in force by section 16A of the Act. The Criminal Code covers matters that would normally be dealt with under state or territory legislation. Subsection 17(3) of the Act expressly provides that laws continued in force by section 16A of that Act may be amended or repealed by a section 19A Ordinance. Accordingly, the amendment of this continued law by a section 19A Ordinance is expressly authorised by the Act.

Section 19A authorises the broadest range of ordinances to be made for the good government of Norfolk Island, which includes the power to prescribe offences that impose penalties exceeding a fine of 50 penalty units and/or punishable by imprisonment. The Criminal Code as amended includes the offence of identifying a complainant in a sexual offence proceeding with a maximum penalty of 12 months imprisonment, or 60 penalty units, or both. These penalties are consistent with existing penalties in Norfolk Island laws, and penalties in other jurisdictions in Australia, for similar offences.

Human Rights implications

This Ordinance engages the following rights:

·         The right to freedom of movement in Article 12 of the International Covenant on Civil and Political Rights (ICCPR).

·         The right to security of the person and freedom from arbitrary detention in Article 9 of the ICCPR.

·         The right to privacy in Article 17 of the ICCPR.

·         The right to freedom of opinion and expression in Article 19 of the ICCPR.

Article 12 - The right to freedom of movement

Article 12 of the ICCPR provides for the right to freedom of movement. Any limitation of this right must have a clear legal basis, be necessary in pursuit of a legitimate objective, have a rational connection to the objective, and be reasonable and proportionate to the objective (the limitation criteria).

Section 8 of the Bail Act, as amended by the Ordinance, provides there is a presumption against bail for a range of serious offences, including murder and other offences punishable by imprisonment for life, as well as when a person commits a serious offence while on bail.

Depriving a person of bail is a limitation on their freedom of movement. However, this limitation is permissible because it meets the limitation criteria, for the following reasons.

The limitation has a clear legal basis: subsection 8(1) clearly articulates that it applies in certain limited circumstances.

The limitation is necessary in pursuit of a legitimate objective: in this case, the protection of the community. Article 12(3) of the ICCPR provides that the right to freedom of movement may be restricted by domestic law where necessary to protect the rights and freedoms of others. The rights of the community that are safeguarded by this restriction on the accused’s freedom of movement include the right to security, in particular protection from the risk of further serious crimes, including crimes of violence, being committed by the accused.

The limitation has a rational connection to the objective, in that the intention is that the community be protected from potential further serious crimes being committed by a person accused of a serious criminal offence if the person is remanded in custody.

The limitation is reasonable and proportionate to the objective in that the restriction on granting bail is not absolute. A court may grant bail if the accused person satisfies it that bail should not be refused. These limitations on the restriction ensure that it is reasonable and proportionate to its purpose of safeguarding the community and is the least intrusive means of achieving the desired result.

Section 8 of the Bail Act in so far as it restricts freedom of movement, is a necessary measure done for a permissible purpose, namely to protect the rights of the community, and does so in a reasonable and proportionate manner.

Article 9 - The right to security of the person and freedom from arbitrary detention

Article 9 of the ICCPR provides for the right to security of the person and freedom from arbitrary detention. An arrest or detention may be arbitrary if it is not reasonable and necessary in all circumstances. The right in Article 9 to be free from arbitrary detention, and the provision that persons should not generally be detained in custody pending trial in criminal matters, are relevant to laws providing for bail, and in particular to those that impose a presumption against bail for particular categories of offences or offenders. This right is also relevant to the provisions of the Sentencing Act providing for the fixing of non-parole periods for sentences of imprisonment imposed on offenders convicted of criminal offences.

Article 9(1) of the ICCPR provides that everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of their liberty except on such grounds and in accordance with such procedure as are established by law. Article 9(3) provides that anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Article 9(4) provides that anyone who is deprived of their liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of their detention and order their release if the detention is not lawful.

Article 9 - Bail Act

Section 8 of the Bail Act, as amended by the Ordinance, provides there is a presumption against bail in certain circumstances, which limits the right to security of the person and freedom from arbitrary detention. However, the limitation meets the limitation criteria for the following reasons.

As outlined above, the limitation has a clear legal basis, is necessary in pursuit of the legitimate objective of protecting the community, and has a rational connection to that objective.

The limitation is reasonable and proportionate to the objective because appropriate safeguards are in place to ensure the provision is not exercised in an arbitrary manner. Under section 8 of the Bail Act, an accused person can only be refused bail by a court in specific circumstances and in accordance with the procedure as established under the Act. Furthermore, Division 2 of Part 6 of the Bail Act provides for the review rights of a person who has been refused bail by a court.

The limitation on the right to security of the person and freedom from arbitrary detention is appropriate because of the safeguards detailed above.

Article 9 - Sentencing Act

The provisions, as amended by the Ordinance, of the Sentencing Act providing for the fixing of non-parole periods also engage the right to freedom from arbitrary detention under Article 9(1) by requiring a court to fix a non-parole period for certain sentences of imprisonment. None of these amendments represent an infringement of the prohibition on arbitrary arrest and detention.

The Sentencing Act when enacted contained various provisions related to the setting of a non-parole period where a sentence of imprisonment was imposed on an offender. All but one of these provisions (section 91 relating to the offence of murder) were repealed by the Justice Legislation (Miscellaneous Amendments) Act 2009 (NI). According to the second reading speech for the 2009 bill, the aim of the amendments was to ‘[repeal] mandatory sentencing provisions that take from the courts the ability to determine what are appropriate penalties for various offences’. However, the effect of the amendments was also to remove the courts’ ability, for any crime other than murder, to impose a non-parole period. Under subsection 151(1) of the Sentencing Act, a non-parole period must be fixed before the Parole Board (in practice, the State Parole Authority of New South Wales (NSW) acting as the Parole Board in relation to Norfolk Island offenders held in NSW prisons) may consider the release of a Norfolk Island prisoner on parole.

Limitations on the right to liberty are permissible if they are in accordance with procedure established by law and are reasonable, necessary and proportionate in achieving a legitimate objective. These provisions, as amended by the Ordinance, are clearly prescribed by law and are reasonable and necessary to achieve the legitimate objective of ensuring that the courts are able to set non-parole periods that reflect the gravity of these offences and ensure that the community is protected from serious criminal offenders. These amended provisions will also facilitate the operation of the criminal justice system and the rehabilitation of offenders by removing any doubt as to the power of the courts to set non-parole periods and the Parole Board, in due course, to consider the release of a Norfolk Island prisoner on parole in appropriate circumstances.

The amended provisions do not alter the existing mandatory fixing of a non-parole period where a person is imprisoned for life for the crime of murder under section 91 of the Sentencing Act. With respect to the setting of non-parole periods for offences other than murder where the sentence is for life, or for a term of at least 12 months, the court must fix a non-parole period during which the offender is not eligible to be released on parole, unless the court considers that any of the following make such action inappropriate: the nature of the offence; the history of the offender; the circumstances of the case; or any other reason.

These provisions, as amended, are reasonable given that a non-parole period will only be applied by a court if a person is convicted of a serious criminal offence as a result of a fair trial in accordance with the procedures established by law. The amendments are proportionate as they give the courts significant discretion as to the setting of any non-parole period, including when the setting of a non-parole period is inappropriate. As is the case now, the provisions dealing with an appeal by an offender against the sentence passed on their conviction, including the fixing of a non-parole period, will also apply in these circumstances.

These provisions, as amended by the Ordinance, of the Sentencing Act providing for the fixing of non-parole periods are therefore permissible, as they are prescribed by law and are not arbitrary.

Article 17 - The right to privacy

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy or family, and that everyone has the right to the protection of the law against such interference or attacks.

The offence of publishing the identity of a complainant (or information that may identify a complainant) in a sexual offence proceeding, without the leave of the court, is subject to a penalty of imprisonment for 12 months or 60 penalty units, or both. This penalty is consistent with similar provisions in legislation such as subsections 110X(1) and (3) of the Child Support (Registration and Collection) Act 1988 and subsection 121(1) of the Family Law Act 1975 and the previous prohibition on the publication of a complainant’s identity in the Criminal Procedure Act which this provision replaces. The offence protects the identity of complainants and their right to privacy, and protect complainants from the potential harm and distress that identification and dissemination of details of alleged offences may cause; the offences also further an accused person’s right to a fair trial through preventing the publication of potentially prejudicial material and promoting the public interest in the administration of justice.

The section does not apply to official publications or documents prepared for use in legal proceedings, where the identified person is aged 14 years or older and the publication is made with the consent of the person; or where the publication happens after the death of the identified person. The court may also only give leave to a person to publish the identity of a complainant or witness after considering a range of factors set out in new subsection 167F(4) and after reasonable steps have been taken to give written notice of the application to affected parties in the sexual offence proceeding (subsections 167F(7) to (10)). Factors which the court must consider before giving leave to publish include having regard to any trauma or damage to the reputation to the identified person that the publication could cause, any views of the identified person, whether the publication is for the purpose of supplying transcripts to persons with a genuine interest in the proceedings, or for genuine research purposes, and whether the publication is in the public interest.

 

The offence protects the identity of complainants, and protects them from the potential harm and distress that identification may cause, as well as protecting an accused person’s right to a fair trial through preventing the publication of potentially prejudicial material and promoting the public interest in the administration of justice.

Article 19 - The right to freedom of opinion and expression

Article 19 of the ICCPR provides that everyone shall have the right to freedom of expression. This right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The exercise of the right to freedom of expression carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary for respect of the rights or reputations of others, or for the protection of national security or of public order, or of public health or morals.

As outlined above, the offence of publishing the identity of a complainant (or information that may identify a complainant) in a sexual offence proceeding, without the leave of the court, is subject to a penalty of imprisonment for 12 months or 60 penalty units, or both. This offence engages and limits the right to freedom of expression. However, the limitations are reasonable, necessary and proportionate to achieving the legitimate objective of protecting the privacy of complainants and witnesses in sexual offence proceedings. As also outlined above, the offence protects complainants from the potential harm and distress that identification may cause, as well as protecting an accused person’s right to a fair trial through preventing the publication of potentially prejudicial material and promoting the public interest in the administration of justice.

New subsection 167(4) of the Criminal Procedure Act, as outlined above, also ensures that the court’s discretion to give leave to a person to publish the identity of a complainant or a witness is proportionate, and only exercised in limited circumstances with express regard to whether the publication is in the public interest.

Accordingly, any limitations that section 167F of the Criminal Procedure Act impose on the right to freedom of expression are necessary, reasonable and proportionate to the legitimate aim of protecting the privacy of complainants and witnesses in sexual offence proceedings.

Conclusion

This Disallowable Legislative Instrument is compatible with human rights because it promotes the protection of human rights and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate.

 

Assistant Minister for Regional Development and Territories,

Parliamentary Secretary to the Deputy Prime Minister and Minister for Infrastructure, Transport, Cities and Regional Development

 

The Hon Nola Marino MP

 


ATTACHMENT


Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021

Section 1 – Name

This section provides that the title of the Ordinance is the Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021.

Section 2 – Commencement

This section provides that the Ordinance commences on the day after it is registered on the Federal Register of Legislation.

Section 3 – Authority

This section provides that the Ordinance is made under section 19A of the Norfolk Island Act 1979 (the Act).

Section 4 – Schedules

This section provides that each instrument that is specified in a Schedule to the Ordinance is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to that Ordinance has effect according to its terms.


 

Schedule 1 – Main amendments

Part 1—Amendment of the Bail Act 2005 (Norfolk Island)

Norfolk Island Continued Laws Ordinance 2015

Item [1] – After item 22AA of Schedule 1

Item 1 inserts new item 22AAAAA into Schedule 1 to the Continued Laws Ordinance.

Item 22AAAAA of Schedule 1 – Subsection 3(1)

New item 22AAAAA of Schedule 1 inserts a number of new definitions into subsection 3(1) of the Bail Act 2005 (NI) (Bail Act), namely definitions of ‘firearm’, ‘military-style weapon’, ‘pistol’, ‘scheduled firearm’ and ‘sexual intercourse’. The insertion of these new definitions into the Bail Act is consequential to the insertion of new ‘show cause’ paragraphs into subsection 8(1) of the Bail Act by new item 22AAAAB.

Item [2] – After item 22AAAA of Schedule 1

Item 2 inserts new items 22AAAAB, 22AAAAC and 22AAAAD into Schedule 1 to the Continued Laws Ordinance.

Item 22AAAAB of Schedule 1 – Paragraphs 8(1)(a) and (b)

New item 22AAAAB of Schedule 1 repeals paragraphs 8(1)(a) and (b) of the Bail Act and inserts news paragraphs (a) to (o) into subsection 8(1) of the Bail Act. The effect of this amendment is increase the range of serious offences for which bail is not to be granted by a court unless the accused can show cause to a court that bail should not be refused. The serious offences included are based on the similar ‘show cause’ provision in section 16B of the Bail Act 2013 (NSW) and this amendment will bring Norfolk Island into line with other Australian jurisdictions which have similar ‘show cause’ bail provisions.

Item 22AAAAC of Schedule 1 – Subsection 8(2)

New item 22AAAAC of Schedule 1 amends subsection 8(2) of the Bail Act by substituting the existing reference to ‘satisfies’ with a reference to ‘shows cause to’. The effect of this amendment is that, under subsection 8(2) of the Bail Act, a person accused of an offence to which this section applies is not to be granted by a court unless the accused can ‘show cause’ to a court that bail should not be refused. The insertion of the reference to ‘show cause’ is consistent with the language used in similar provisions in other Australian jurisdictions and may assist the Norfolk Island courts when considering relevant judicial precedents from ‘show cause’ bail decisions made in these other jurisdictions.

Item 22AAAAD of Schedule 1 – After subsection 8(2)

New item 22AAAAD of Schedule 1 inserts new subsection 8(2A) into the Bail Act which provides that if an accused successfully shows cause to a court, as described in subsection 8(2) and the court makes an order granting bail to the person, the court must include in the order a statement of reasons for granting bail. The requirement of a court to provide a statement of reasons when granting bail to a person accused of a ‘show cause’ offence is consistent with similar requirements in other Australian jurisdictions.

Item [3] – After item 22B of Schedule 1

Item 3 inserts new items 22BAA, 22BAB and 22BAC into Schedule 1 to the Continued Laws Ordinance.

Item 22BAA of Schedule 1 – Section 35

New item 22BAA of Schedule 1 amends section 35 of the Bail Act. The effect of this amendment is to substitute an incorrect reference to an ‘authorised person’ with a reference to an ‘authorised member’. Under subsection 3(1) of the Bail Act, an ‘authorised member’ is defined as meaning, in relation to a person in custody, a member of the Norfolk Island Police Force who may, under Part 3 of this Act, grant bail to the person. The effect of this amendment is to clarify that the Chief Magistrate must not review a decision in relation to bail except a decision made by the Chief Magistrate or a decision of a member of the Police Force made with respect to police bail.

Items 22BAB and 22BAC of Schedule 1 – Section 37

New items 22BAB and 22BAC of Schedule 1 amend section 37 of the Bail Act which deals with the review of bail decisions. The effect of these amendments is to insert references to ‘Judge’ respectively into subsections 37(4) and 37(5) of the Bail Act. These amendments clarify that the powers to issue warrants under these provisions may also be exercised by judges of the Supreme Court of Norfolk Island.


 

Part 2—Amendment of the Court of Petty Sessions Act 1960 (Norfolk Island)

Norfolk Island Continued Laws Ordinance 2015

Item [4] – After item 43AW of Schedule 1

Item 4 inserts new items 43AX, 43AY and 43AZ into Schedule 1 to the Continued Laws Ordinance.

Item 43AX of Schedule 1 – Sections 107, 116, 117 and 140

New item 43AX of Schedule 1 amends sections 107, 116, 117 and 140 of the Court of Petty Sessions Act by substituting the existing references to ‘$10,000’ with ‘$60,000’. These provisions deal with the civil jurisdiction of the Court of Petty Sessions and the effect of these amendments is to increase the limit of its civil jurisdiction to claims with a value of $60,000 and make consequential amendments.

Item 43AY of Schedule 1 – Subsection 221(1)

New item 43AY is a consequential amendment to subsection 221(1) of the Court of Petty Sessions Act arising from the repeal of subsection 221(2) of this Act by new item 43AZ.

Item 43AZ of Schedule 1 – Subsection 221(2)

New item 43AZ repeals subsection 221(2) of the Court of Petty Sessions Act. Subsection 221(2) deals with the imposition of fines as an alternative to a sentence of imprisonment for an offence punishable on summary conviction and its repeal is consequential to the insertion of new subsection 16(1) into the Sentencing Act by new item 297AG.


 

Part 3— Amendment of the Criminal Code 2007 (Norfolk Island)

Norfolk Island Continued Laws Ordinance 2015

Item [5] – After item 53CC of Schedule 1

Item 5 inserts new item 53CCA into Schedule 1 to the Continued Laws Ordinance.

Item 53CCA of Schedule 1 – Section 85

New item 53CCA of Schedule 1 repeals section 85 of the Criminal Code which provides for the summary offence of common assault. Section 84 of the Criminal Code also provides that common assault is an indictable offence punishable on conviction by imprisonment for 2 years. As section 353 of the Criminal Code allows a range of indictable offences (including section 84) to be dealt with summarily in certain circumstances, this amendment removes this redundant provision.

Item [6] – Item 53DAAC of Schedule 1 (paragraph 113A(3)(b))

Item 6 amends item 53AAC of Schedule 1 to the Continued Laws Ordinance with the effect of substituting a new paragraph 113A(3)(b) of the Criminal Code. This amendment restricts the defence of marriage for the offence of sexual intercourse with a person aged between 16 and 18, where the defendant is in a position of trust or authority, to valid and genuine marriages where the other person was at least 16 years of age when the marriage was entered into.

This amendment mirrors the provisions in Schedule 6 to the Combatting Child Sexual Exploitation Legislation Amendment Act 2019, which inserted a new section 272.17 into the Commonwealth Criminal Code which similarly restricted the defence to overseas child sex offences based on a valid and genuine marriage where the other person was at least 16 years of age when the marriage was entered into.

The policy objective of narrowing the defence is to bring Norfolk Island law into line with the Australian Government’s position that child marriage is not considered acceptable in accordance with Australian laws and values, and to reflect the Government’s broader efforts to combat child exploitation and forced marriage.

Item [7] – Item 53DAC of Schedule 1 (paragraph 119A(3)(b))

Item 7 amends item 53DAC of Schedule 1 to the Continued Laws Ordinance with the effect of substituting a new paragraph 119A(3)(b) of the Criminal Code. This amendment restricts the defence of marriage for the offence of an act of indecency with a person aged between 16 and 18, where the defendant is in a position of trust or authority, to valid and genuine marriages where the other person was at least 16 years of age when the marriage was entered into.

This amendment mirrors the provisions in Schedule 6 to the Combatting Child Sexual Exploitation Legislation Amendment Act 2019, which inserted a new section 272.17 into the Commonwealth Criminal Code which similarly restricted the defence to overseas child sex offences based on a valid and genuine marriage where the other person was at least 16 years of age when the marriage was entered into.

The policy objective of narrowing the defence is to bring Norfolk Island law into line with the Australian Government’s position that child marriage is not considered acceptable in accordance with Australian laws and values, and to reflect the Government’s broader efforts to combat child exploitation and forced marriage.


 

Item [8] – After item 53G of Schedule 1

Item 8 inserts new items 53H, 53J, 53K and 53L into Schedule 1 to the Continued Laws Ordinance.

Item 53H of Schedule 1 – Section 281 (definition of controlled drug)

New item 53H of Schedule 1 inserts a new definition of ‘controlled drug’ into section 281 of the Criminal Code. This new definition provides that ‘controlled drug’ means, for the purposes of Chapter 6 of the Criminal Code, a ‘prohibited drug’ within the meaning of the Drug Misuse and Trafficking Act 1985 (NSW), as in force at the commencement of the Ordinance (See new item 53K of Schedule 1).

Item 53J of Schedule 1 – Section 281 (definition of controlled plant)

New item 53H of Schedule 1 inserts a new definition of ‘controlled plant’ into section 281 of the Criminal Code. This new definition provides that ‘controlled plant’ means, for the purposes of Chapter 6 of the Criminal Code, a ‘prohibited plant’ within the meaning of the Drug Misuse and Trafficking Act 1985 (NSW), as in force at the commencement of the Ordinance (See new item 53K of Schedule 1).

Item 53K of Schedule 1 – Section 281

New item 53K of Schedule 1 inserts a new definition of ‘NSW Drug Misuse and Trafficking Act’ into section 281 of the Criminal Code. This new definition provides that ‘NSW Drug Misuse and Trafficking Act’ means, for the purposes of Chapter 6 of the Criminal Code, the Drug Misuse and Trafficking Act 1985 (NSW), as in force at the commencement of the Ordinance.

Item 53L of Schedule 1 – Subsection 282(1)

New item 53L of Schedule 1 repeals and substitutes a new subsection 282(1) of the Criminal Code which, in turn, inserts new definitions of ‘commercial quantity’, ‘large commercial quantity’ and ‘trafficable quantity’ of a ‘controlled drug’ or ‘controlled plant’ for the purposes of Chapter 6 of the Criminal Code. These new definitions provide that these amounts are the quantities specified for that drug or plant in the relevant column in Schedule 1 to the NSW Drug Misuse and Trafficking Act, as in force at the commencement of the Ordinance. Previously these amounts were to be prescribed in regulations made under the Criminal Code but as no such regulations were ever made there was a significant gap in the application of the serious drug offences of the Criminal Code. This gap in the application of these Criminal Code offence will be remedied by these amendments.

Item [9] – After item 54A of Schedule 1

Item 9 inserts new item 54AA into Schedule 1 to the Continued Laws Ordinance.

Item 54AA of Schedule 1 – Paragraph 353(2)(c)

New item 54AA of Schedule 1 amends paragraph 353(2)(c) of the Criminal Code by substituting the existing references to ‘$10,000’ with ‘$60,000’. Section 353 of the Criminal Code deals with the summary disposal of certain cases by the Court of Petty Sessions and the effect of this amendment is to allow the court to deal with charges relating to money or to property, other than a motor vehicle, where the amount does not, in the opinion of the court, exceed $60,000. This amendment is consistent with the corresponding increase to the limit of the Court of Petty Session’s civil jurisdiction to claims with a value of $60,000 (see new item 43AX of Schedule 1).

Item [10] – After item 56B of Schedule 1

Item 10 inserts new item 56BA into Schedule 1 to the Continued Laws Ordinance.

Item 56BA of Schedule 1 – Dictionary (definition of law of Norfolk Island)

New item 56BA of Schedule 1 amends the definition of ‘law of Norfolk Island’ in the dictionary to the Criminal Code to mean ‘a law in force in Norfolk Island in accordance with section 15 of the Norfolk Island Act 1979 of the Commonwealth.’ The effect of this amendment is to clarify that this definition also includes laws in force in Norfolk Island as applied under section 18A of the Act as well as Commonwealth Acts in force in Norfolk Island, laws made under these Act, section 19A Ordinances and continued laws.


 

Part 4—Amendment of the Criminal Procedure Act 2007 (Norfolk Island)

Norfolk Island Continued Laws Ordinance 2015

Item [11] – After item 57AG of Schedule 1

Item 4 inserts new items 57AH, 57AI and 57AJ into Schedule 1 to the Continued Laws Ordinance.

Item 57AH of Schedule 1 – Section 41

New item 57AH of Schedule 1 amends section 41 of the Criminal Procedure Act by inserting a reference to bail proceedings. The effect of this amendment is to clarify that Division 6 of Chapter 2 of this Act, which deals with summary proceedings against mentally dysfunction or mentally impaired persons, applies to the conduct of bail proceedings.

Item 57AI of Schedule 1 – Paragraph 43(8)(c)

New item 57AI amends paragraph 43(8)(c) of the Criminal Procedure Act by substituting the existing reference to ‘person’ with a reference to ‘accused’. This amendment is consistent with the other references in this section which refer to the ‘accused’. Section 43 deals with the powers of the Court of Petty Sessions with respect to summary proceedings against mentally dysfunction or mentally impaired persons.

Item 57AJ of Schedule 1 – At the end of subsection 43(8)

New item 57AJ inserts new paragraph 43(8)(d) into the Criminal Procedure Act. This amendment clarifies that the Court of Petty Sessions may order that an accused be assessed by a medical practitioner or psychiatrist, at any time during a criminal proceeding, when determining if an accused is mentally dysfunctional or mentally impaired for the purposes of this section.

Item [12] – Item 59F of Schedule 1 (section 167F)

Item 12 amends item 59F of Schedule 1 to the Continued Laws Ordinance with the effect of repealing and substituting a new section 167F of the Criminal Procedure Act.

New section 167F makes it an offence for a person to publish any matter, and the person does not have the leave of the court to publish the matter; and the matter identifies, or is likely to lead to the identification of, another person (the ‘identified person’) as a complainant in a sexual offence proceeding (subsection 167F(1)).

This offence does not apply to official publications prepared in the course of, and for the purpose of, the proceeding, or a document prepared for use in particular legal proceedings (whether or not the legal proceedings are a sexual offence proceeding) (paragraphs 167F(2)(a) and (b)).

The offence also does not apply where the identified person is aged 14 years or older and the publication is made with the consent of the identified person or the publication happens after the death of the identified person ((paragraphs 167F(2)(c) and (d))). These exemptions are based on similar provisions contained in section 578A of the Crimes Act 1900 (NSW), which similarly protects the identity of complainants in certain sexual offence proceedings.

The penalty is imprisonment for 12 months or 60 penalty units, or both. This penalty is consistent with the repealed section 167F of the Criminal Procedure Act and similar provisions in legislation such as subsections 110X(1) and (3) of the Child Support (Registration and Collection) Act 1988 and subsection 121(1) of the Family Law Act 1975, and takes into account the sensitivity of the information considered. Other Australian jurisdictions have similar prohibitions on identifying complainants in sexual offence proceedings.

The offence protects the identity of complainants, and protects them from the potential harm and distress that identification may cause, as well as protects an accused person’s right to a fair trial through preventing the publication of potentially prejudicial material and promoting the public interest in the administration of justice.

As mentioned, subsection 167F(2) provides that the offence does not apply to official publications prepared in the course of, and for the purpose of, the proceeding, or a document prepared for use in particular legal proceedings (whether or not the legal proceedings are a sexual offence proceeding). It also does not apply where the identified person is aged 14 years or older and the publication is made with the consent of the identified person or the publication happens after the death of the identified person. A defendant who wishes to rely on this provision in a proceeding in which this offence is alleged bears an evidential burden in relation to that matter. An evidential burden is defined to mean the burden of adducing or pointing to evidence that suggests a reasonable possibility that some matter exists or does not exist (see section 58 of the Criminal Code 2007 (NI)).

In particular, a defendant wishing to rely on subsection 167F(3) must point to or adduce some evidence that suggests a reasonable possibility that:

·         the publication is in an official publication in the course of, and for the purpose of, the proceeding; or

·         a document prepared for use in particular legal proceedings (whether or not the legal proceedings are a sexual offence proceeding); or

·         the identified person is aged 14 years or older and the publication is made with the consent of the identified person; or

·         the publication happens after the death of the identified person.

Consistent with the Commonwealth Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide to Framing Offences) it is appropriate for the evidential burden to fall on the defendant to rely upon this subsection because these are matters more likely to be within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove these facts.

Specifically, the question of whether a document was prepared for use in particular legal proceedings are matters peculiarly within the knowledge of the defendant. It would be very difficult for the complainant or the prosecution to disprove these matters which would require a detailed knowledge of the internal legal affairs of the person concerned. The prosecution would require access to the potentially legally privileged documents of the defendant to disprove these matters and this would be significantly more difficult and costly for the prosecution than for the defendant to establish the contrary, as well as more intrusive upon the defendant.

Similarly, whether the publication has been made with the consent of the identified person (who must be aged 14 years or older) is likely to be a matter peculiarly within the knowledge of the defendant and the identified person and again it would be significantly more difficult and costly for the prosecution to disprove this fact. The timing of the relevant publication, including whether this has occurred after the death of the identified person, is also likely to be a matter within the knowledge of the defendant and again it would be significantly more difficult and costly for the prosecution to disprove this fact.

Subsection 167F(2) must also be seen as beneficial for the defendant in placing a limit on the criminal liability otherwise associated with the publication of matter which identifies a complainant in a sexual offence proceeding. As discussed in the Guide to Framing Offences, an evidential burden (rather than a legal burden of proof) is easier for a defendant to discharge, and does not completely displace the prosecutor’s burden (only defers that burden). For the defendant, the evidential burden in relation to a matter means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

Subsection 167(3) provides that the court may give leave to publish the matter and subsections 167F(4) to (10) set out the procedural requirements for a person seeking leave from the court to publish any matter which identifies, or is likely to lead to the identification of an ‘identified person’, who is not a defendant, in a sexual offence proceeding.

Under subsection 167F(4) in deciding to give leave, the court is to have regard to:

·         any trauma to the identified person that the publication could cause; and

·         any damage to the reputation of the identified person that the publication could cause; and

·         any view of the identified person about the publication; and

·         whether the publication is:

o   for the purpose of supplying transcripts of the proceedings to persons with a genuine interest in the proceedings; or

o   for genuine research purposes; and

·         whether the publication is in the public interest.

Subsection 167F(5) provides that leave may be given after the sexual offence proceedings have finished and that, for this purpose, the court may be constituted by different judicial officers to those who constituted the court in the original sexual offence proceeding. An application for leave under this section must be in writing (subsection 167F(6)).

Under subsection 167F(7), an applicant seeking leave from the court will be required to take reasonable steps to give written notice of the application, including a copy of the application, to the parties to the original proceeding (including the identified person, the prosecutor, each defendant and each other complainant) at least 3 business days prior to hearing by the court. If the identified person or any other complainant is a child at the time the application is made, the applicant will be required under subsection 167F(8) to notify the parent, guardian or legal representative of that child.

To promote compliance with the procedural requirements in subsections 167F(7), (8) and (9), new subsection 167F(10) sets out additional considerations for the court in determining an application for leave. Under subsection 1167F(10), the court must not determine an application for leave unless it is satisfied that the applicant has taken reasonable steps to give notice of the application and complied with other requirements set out in subsections 167F(7), (8) and (9). This allows the court to accommodate situations where an applicant cannot contact a party for various reasons, including because their identity or location is unknown.

The requirements set out in section 167F will ensure procedural fairness in relation to these applications and provide the opportunity for parties to a sexual offence proceeding to make submissions to the court on the impact of publication of any matter that may identify them. These provisions will help to ensure that courts can make decisions with full regard to the personal distress and privacy implications that may result from publishing such matter, particularly for complainants in sexual offence proceedings.


 

Part 5—Amendment of the Dangerous Drugs Act 1927 (Norfolk Island)

Norfolk Island Continued Laws Ordinance 2015

Item [13] – Before item 62A of Schedule 1

Item 13 inserts new items 61A and 61B into Schedule 1 to the Continued Laws Ordinance.

Item 61A of Schedule 1 – Subsection 3(1) (definition of authorised officer)

New item 61A of Schedule 1 amends subsection 3(1) of the Dangerous Drugs Act by substituting a new definition of ‘authorised officer’ which means either ‘an officer authorised by the Commonwealth Minister to seize goods liable to forfeiture’ or ‘a person who is a member of the police force for the purposes of the Police Act 1931.’ The effect of this amendment is to provide that a member of the Police Force of Norfolk Island, is by virtue of holding that office, automatically an ‘authorised officer’ for the purposes of the Dangerous Drugs Act. Norfolk Island Police Force members are routinely appointed as ‘authorised officers’ for the purposes of the Dangerous Drugs Act and this amendment will remove this additional administrative burden. The Minister may still appoint a person, other than a Norfolk Island Police Force member, as an ‘authorised officer’ for the purposes of this Act pursuant to paragraph (a) of this definition.

Item 61B of Schedule 1 – Subsection 3(1) (definition of cannabis plant)

New item 61B of Schedule 1 amends subsection 3(1) of the Dangerous Drugs Act by substituting a new definition of ‘cannabis plant’ which means ‘means any plant of the genus Cannabis.’ The effect of this amendment is align this definition with the equivalent definition in the Drug Misuse and Trafficking Act 1985 (NSW) and remove any doubt that this definition does not include all plant species of the genus cannabis.

Item [14] – After item 62A of Schedule 1

Item 14 inserts new items 62B and 62C into Schedule 1 to the Continued Laws Ordinance.

Item 62B of Schedule 1 – Part 1 of Schedule 5 (after table item dealing with Methadone intermediate (4-Cyano-2-dimethylamino-4, 4-diphenylbutane))

New item 62B of Schedule 1 amends Part 1 of Schedule 5 to the Dangerous Drugs Act by inserting a reference to ‘methylamphetamine’ and ‘3.00’ grams into this schedule. The effect of this amendment is to provide that ‘methylamphetamine’, also known as ‘meth’ or ‘ice’, is a ‘narcotic substance’ for the purposes of this Act with a ‘trafficable quantity’ of 3 grams.

Item 62C of Schedule 1 – Schedule 6

New item 62C of Schedule 1 amends the form contained in Schedule 6 to the Dangerous Drugs Act by inserting a reference to ‘a member of the police force’. This form deals with the seizure of forfeited goods under this Act and this amendment is consequential to the amendment of the definition of ‘authorised officer’ made by new item 61A.


 

Part 6—Amendment of the Interpretation Act 1979 (Norfolk Island)

Norfolk Island Continued Laws Ordinance 2015

Item [15] – After item 186 of Schedule 1

Item 15 inserts new item 186A into Schedule 1 to the Continued Laws Ordinance.

Item 186A of Schedule 1 – Section 40

New item 186A of Schedule 1 repeals and substitutes a new section 40 of the Interpretation Act. The effect of this amendment is to address a technical issue with respect to the operation of this provision in relation to penalties in Norfolk Island enactments. In particular, the amendment clarifies that the penalties section also applies to provisions in Norfolk Island enactments which expressly create offences as well as the provisions in Norfolk Island enactments the contravention of which create an offence. New section 40 of the Interpretation Act is based on subsection 4D of the Crimes Act 1914 which deals with penalties contained in Commonwealth Acts and instruments. This provision also does not affect the operation of section 16 or 16A of the Sentencing Act, inserted by new item 297AE, which deal with fines (subsection 40(3)).


 

Part 7—Amendment of the Sentencing Act 2007 (Norfolk Island)

Norfolk Island Continued Laws Ordinance 2015

Item [16] – After item 297AB of Schedule 1

Item 16 inserts new item 297ABA into Schedule 1 to the Continued Laws Ordinance.

Item 297ABA of Schedule 1 – Paragraph 5(2)(p)

New item 297ABA of Schedule 1 amends paragraph 5(2)(p) of the Sentencing Act by inserting a reference to ‘any other law in force in Norfolk Island’. Paragraph 5(2)(p) of the Sentencing Act provides that in sentencing an offender, a court shall have regard to sentences that the offender is liable to serve because of the revocation of orders made under this or any other Act for contraventions of conditions by the offender. The effect of this amendment is to clarify that a court when exercising this function may also have regard to the revocation of any orders made under any other law in force in Norfolk Island, for instance, an applied law or a section 19A Ordinance, as well as a continued law of the former Legislative Assembly.

Item [17] – After item 297AC of Schedule 1

Item 17 inserts new items 297AD, 297AE, 297AF, 297AG, 297AGA and 297AGB into Schedule 1 to the Continued Laws Ordinance.

Item 297AD of Schedule 1 – Paragraph 7(l), subsection 8(2) and paragraph 8(3)(a)

New item 297AD of Schedule 1 amends paragraphs 7(l), subsection 8(2) and paragraph 8(3)(a) of the Sentencing Act by inserting a reference to ‘any other law in force in Norfolk Island’. These provisions respectively deal with sentencing orders and a finding of guilt without the recording of a conviction and the amendments clarify that these provisions operate with reference to any other law in force in Norfolk Island, for instance, an applied law or a section 19A Ordinance, as well as a continued law of the former Legislative Assembly.

Item 297AE of Schedule 1 – Section 16

New item 297AG of Schedule 1 repeals section 16 and substitutes new sections 16 and 16A in the Sentencing Act.

New section 16 of the Sentencing Act, which provides an additional power for courts to impose fines, is consequential to the insertion of new section 16A which inserts a new corporate multiplier for fines.

New subsection 16(1) of the Sentencing Act provides that where an offence is punishable by imprisonment, the offence is not otherwise punishable by a fine, and the offender is a natural person, a court may, in addition to or instead of sentencing the offender to a term of imprisonment, impose a fine not exceeding 50 penalty units multiplied by the number of years that the offence is punishable by imprisonment or otherwise that term expressed as a fraction of a year. This subsection is based on section 167 of the Sentencing Act which is being repealed by new item 297GG.

New subsection 16(2) of the Sentencing Act provides that where an offence is not punishable by imprisonment, the offence is not otherwise punishable by a fine, and the offender is a natural person, a court may, impose a fine not exceeding 100 penalty units if the court is the Supreme Court or 50 penalty units if the court is the Court of Petty Sessions. This subsection is based on existing subparagraphs 16(2)(b)(i) and (ii) of the Sentencing Act.

New subsection 16A of the Sentencing Act provides that if a body corporate is convicted of an offence, a court may, if the contrary intention does not appear and the court thinks fit, impose a fine not exceeding an amount equal to 5 times the amount of the maximum fine that could be imposed by the court on a natural person convicted of the same offence. This provision is based on subsection 4B(3) of the Crimes Act 1914.

Item 297AF of Schedule 1 – Section 20

New item 297AF of Schedule 1 amends section 20 of the Sentencing Act by inserting a reference to ‘a law in force in Norfolk Island’. Section 20 of the Sentencing Act deals with the application of fines and the effect of this amendment is to clarify that this provision also applies to fines imposed under a law in force in Norfolk Island, for instance, an applied law or a section 19A Ordinance, as well as a continued law of the former Legislative Assembly.

Item 297AG of Schedule 1 – Subsection 21(1)

New item 297AG of Schedule 1 amends subsection 21(1) of the Sentencing Act by omitting a reference to subsection 16(1). Section 21 of the Sentencing Act deals with the powers of a court where an offender fails to pay a fine within the time prescribed and this amendment is consequential to the repeal of section 16 and the substitution of new sections 16 and16A of the Sentencing Act by new item 297AE of Schedule 1.

Items 297AGA and 297AGB of Schedule 1 – Section 39

New items 297AGA and 297AGB of Schedule 1 respectively amend subsections 39(5) and 39(7) of the Sentencing Act by omitting and substituting references to ‘enactments’ with appropriate references to ‘laws in force in Norfolk Island’. Section 39 of the Sentencing Act deals with the legal consequences of a wholly suspended sentence of imprisonment and the effect of these amendments is to clarify that this provision applies with respect to all laws in force in Norfolk Island, for instance, applied laws, as well as continued laws.

Item [18] – After item 297A of Schedule 1

Item 18 inserts new items 297B, 297C, 297D, 297E, 297F, 297G, 297GA, 297GB, 297GC, 297GD, 297GE, 297GF, 297GG, 297GH, 297GI, 297GJ, 297GK, 297GL, 297GM, 297GN and 297GO into Schedule 1 to the Continued Laws Ordinance.

Item 297B of Schedule 1 – Subsection 90(1)

New item 297B of Schedule 1 amends subsection 90(1) of the Sentencing Act by omitting the words ‘subsection (2)’ and substituting ‘this Act’. Section 90(1) currently provides that a person sentenced to imprisonment for life is, subject to subsection (2), to serve that sentence for the term of the person’s natural life, and subsection 90(2) provides that a court may nevertheless impose a sentence of imprisonment for a stated term. The amendment aims to clarify that the provisions relating to the setting of a non-parole period may also be applied to an offender who is sentenced to imprisonment for life.

Item 297C of Schedule 1 – Subsection 91(1)

New item 297C of Schedule 1 repeals subsection 91(1) of the Sentencing Act, concerning the mandatory fixing of a parole period where a person is imprisoned for life for the crime of murder, and substitutes a new subsection 91(1). The new subsection does not alter the non‑parole periods that the court must set (20 years, unless any of the circumstances in subsection 91(3) apply, in which case a period of 25 years applies). It removes an incorrect reference to subsection 90(1) and links the provision to the definition of ‘non-parole period’ in section 3 of the Sentencing Act.

New subsection 91(1A) of the Sentencing Act provides that section 91 does not apply if the offender is already serving a non-parole period in relation to another sentence. In such a case, new section 93 applies (see new item 297E below).

Item 297D of Schedule 1 – After subsection 91(9)

New item 297D of Schedule 1 inserts a new subsection 91(9A) into the Sentencing Act concerning the sentencing of a person for the offence of murder. Where the offender is being sentenced to be imprisoned for more than one offence, the sentencing court must fix one non-parole period in relation to all of the sentences. This is similar to new subsection 92(4) (see new item 297E below) in relation to sentencing for other offences.

Item 297E of Schedule 1 – After section 91

New item 297E of Schedule 1 inserts new sections 92 to 94 into the Sentencing Act.

New section 92 of the Sentencing Act is the general provision dealing with the setting of non-parole periods for offences other than murder. It applies where an offender is being sentenced to be imprisoned for life or for a term of at least 12 months, unless:

·         the sentence is suspended in whole or in part; or

·         the court is sentencing the offender to be imprisoned for life for the crime of murder (in which case section 91 applies); or

·         the offender is already serving a non-parole period in relation to another sentence (in which case section 93 applies).

The sentencing court must fix a period during which the offender is not eligible to be released on parole (a ‘non-parole period’, as defined in section 3), unless the court considers that any of the following make such action inappropriate: the nature of the offence; the history of the offender; the circumstances of the case; or any other reason. Under new subsection 92(3) of the Sentencing Act, if the sentencing court refuses to fix a non-parole period, it must state its reasons and cause those reasons to be entered in the records of the court.

New subsection 92(4) of the Sentencing Act provides that if the offender is being sentenced to imprisonment for more than one offence, the sentencing court must fix one non-parole period in relation to all of the sentences. New subsection 92(5) provides that the court’s failure to comply with the section does not invalidate the sentence imposed on the offender.

New section 93 of the Sentencing Act applies to offenders who are already in prison serving a non-parole period for a previous offence. It allows for confirmation, recalculation or cancellation of an existing non-parole period when a new sentence of imprisonment with a non-parole period is imposed. The provision is based on section 19AD of the Crimes Act 1914 which deals with federal offenders.

New subsection 93(2) of the Sentencing Act provides that the sentencing court must, after considering relevant circumstances including the existing non-parole period, the nature and circumstances of the offences and the offender’s history, do one of the following: make an order confirming the existing non-parole period; fix a new non-parole period in relation to all the sentences; or, if the court decides that a non-parole period is not appropriate, cancel the existing non-parole period and refuse to fix a new non-parole period.

New subsection 93(5) of the Sentencing Act provides that a confirmed or new non-parole period must not have the effect that the offender would be released on parole earlier than they would otherwise have been entitled to be under the existing sentence or, if the offender is being sentenced to imprisonment for the crime of murder, earlier than they would be under section 91. The new non-parole period is to be treated as having superseded the existing non-parole period. Under new subsection 93(6) of the Sentencing Act, if the sentencing court cancels the existing non-parole period and refuses to fix a new non-parole period, the court must state its reasons and cause those reasons to be entered in the court records. New subsection 93(7) provides that a failure to comply with the section does not invalidate the sentence imposed on the offender.

New section 94 of the Sentencing Act is a transitional provision that addresses the situation where, prior to the commencement of the new provision, an offender was sentenced to imprisonment (for life or for at least 12 months) without a non-parole period being imposed. New subsection 94(2) provides that on application by the offender or a prosecutor, the court must fix a non-parole period unless the court considers it inappropriate for the reasons listed. New subsection 94(3) provides that if the court refuses to fix a non-parole period, the court must state its reasons and cause the reasons to be entered in the records of the court.

Item 297F of Schedule 1 – Subsections 101(1), 118(2) and 119(2)

New item 297F of Schedule 1 respectively amends subsections 101(1), 118(2) and 119(2) of the Sentencing Act by inserting references to ‘Act or a law in force in Norfolk Island’. These provisions respectively deal with sentences of imprisonment and the amendments clarify that these provisions operate with reference to any other law in force in Norfolk Island, for instance, an applied law or a section 19A Ordinance, as well as a continued law of the former Legislative Assembly.

Item 297G of Schedule 1 – Subsection 147(1) (definition of Parole Board)

New item 297G of Schedule 1 amends the definition of ‘Parole Board’ in subsection 147(1) of the Sentencing Act by omitting and substituting a reference to ‘another Act’ with a reference to ‘another law in force in Norfolk Island’. This amendment clarifies that sentences of imprisonment served outside Norfolk Island may be served in accordance with a law in force in Norfolk Island, for instance, an applied law or a section 19A Ordinance, as well as a continued law of the former Legislative Assembly.

Item 297GA of Schedule 1 – Subsection 147(1) (definition of prison sentence)

New item 297GA of Schedule 1 amends the definition of ‘prison sentence’ in subsection 147(1) of the Sentencing Act by omitting and substituting a reference to ‘or any other Act’ with a reference to an ‘Act or any other law in force in Norfolk Island’. This amendment clarifies that the operation of sentences and non-parole periods may be determined in accordance with a law in force in Norfolk Island, for instance, an applied law or a section 19A Ordinance, as well as a continued law of the former Legislative Assembly.

Item 297GB of Schedule 1 – Subsection 147(1) (paragraph (a) of the definition of prison sentence)

New item 297GB of Schedule 1 amends paragraph (a) of the definition of ‘prison sentence’ in subsection 147(1) of the Sentencing Act to ensure it is recognized that a non-parole period that has been fixed is no longer fixed if it has been cancelled.

Item 297GC of Schedule 1 – Subsection 147(1) (paragraphs (b) and (c) of the definition of prison sentence)

New item 297GC of Schedule 1 amends paragraphs (b) and (c) of the definition of ‘prison sentence’ in subsection 147(1) of the Sentencing Act to clarify that a non-parole period that has been fixed is no longer fixed for the purposes of the parole provisions if it has been cancelled.

Item 297GD of Schedule 1 – Paragraph 147(2)(a)

New item 297GD of Schedule 1 amends paragraph 147(2)(a) of the Sentencing Act by omitting and substituting a reference to ‘enactment of’ with a reference to a ‘law in force in’ Norfolk Island. This amendment clarifies that the powers and duties of the Parole Board operate with respect to sentences of imprisonments imposed under a law in force in Norfolk Island, for instance, an applied law or a section 19A Ordinance, as well as a continued law of the former Legislative Assembly.

Item 297GE of Schedule 1 – Subsection 151(1)

New item 297GE of Schedule 1 amends subsection 151(1) of the Sentencing Act to clarify that a non-parole period that was fixed is no longer fixed if it has been cancelled.

Item 297GF of Schedule 1 – Paragraph 166(2)(a)

New item 297GF of Schedule 1 amends paragraph 166(2)(a) of the Sentencing Act by omitting and substituting a reference to ‘under section 16’ with a reference to ‘but not a sentence of imprisonment’. Section 166 of the Sentencing Act provides that the presence of an offender in court is not necessary for the sentence of a fine and this amendment is consequential to the repeal of section 16 and the substitution of new sections 16 and 16A of the Sentencing Act by new item 297AE of Schedule 1.

Item 297GG of Schedule 1 – Section 167

New item 297GG of Schedule 1 repeals section 167 of the Sentencing Act. Section 167 of the Sentencing Act deals with the imposition of a fine in addition to or instead of sentence of imprisonment and its repeal is consequential to the repeal of section 16 and the substitution of new sections 16 and16A of the Sentencing Act by new item 297AE of Schedule 1.

Item 297GH of Schedule 1 – Section 168

New item 297GH of Schedule 1 amends section 168 of the Sentencing Act by omitting and substituting a reference to ‘or any other Act’ with a reference to a ‘Act or any other law in force in Norfolk Island’. This amendment clarifies that the general power of a court to impose a shorter term of imprisonment or a lesser amount as a fine is subject to anything to the contrary in this Act or any other law in force in Norfolk Island, which may be an applied law or a section 19A Ordinance, as well as a continued law of the former Legislative Assembly.

Item 297GI of Schedule 1 – Subsections 169(1) and (2)

New item 297GI of Schedule 1 amends subsections 169(1) and (2) of the Sentencing Act by omitting and substituting a reference to ‘an Act, including this Act, or an instrument of a legislative or administrative character’ with a reference to ‘a law in force in Norfolk Island’. This amendment clarifies that where an Act or any other law in force in Norfolk Island increases or reduces the penalty or the maximum or minimum penalty for an offence, that the increase only applies to an offence committed after the relevant legislative change takes effect while the reduction extends to an offence committed before the relevant legislative change takes effect.

Item 297GJ of Schedule 1 – Subsection 170(1)

New item 297GJ of Schedule 1 amends subsection 170(1) of the Sentencing Act by omitting and substituting a reference to ‘an Act,’ with a reference to ‘a law in force in Norfolk Island’. This amendment clarifies that this provision, which deals with the jurisdiction of the Court of Petty Sessions with respect to summary offences, applies to any offence under any law in force in Norfolk Island, which may be an applied law or a section 19A Ordinance, as well as a continued law of the former Legislative Assembly.


 

Item 297GK of Schedule 1 – Subsection 170(1)

New item 297GK of Schedule 1 amends subsection 170(1) of the Sentencing Act by inserting a new provision providing that the Court of Petty Sessions in its summary jurisdiction may impose a fine on a body corporate no greater than 5,000 penalty units. The maximum fine that the Court of Petty Sessions may impose in its summary jurisdiction for a natural person remains 1,000 penalty units. This amendment complements the insertion of new 16A into the Sentencing Act by new item 297AE which imposes a general corporate multiplier for a body corporate convicted of an offence under a law in force in Norfolk Island.

Item 297GL of Schedule 1 – Subsection 170(2)

New item 297GL of Schedule 1 amends subsection 170(2) of the Sentencing Act by omitting and substituting a reference to ‘enactment,’ with a reference to ‘law in force in Norfolk Island’. This amendment clarifies that this provision, which deals with the jurisdiction of the Court of Petty Sessions with respect to summary offences, applies despite any other law in force in Norfolk Island, which may be an applied law or a section 19A Ordinance, as well as a continued law of the former Legislative Assembly.

Item 297GM of Schedule 1 – Paragraph 171(2)(a)

New item 297GM of Schedule 1 amends paragraph 171(2)(a) of the Sentencing Act by omitting and substituting a reference to ‘an Act or an instrument of a legislative or administrative character,’ with a reference to ‘a law in force in Norfolk Island’. This amendment clarifies that this provision, which deals with the relevance of old repealed offences for the purpose of determining whether a person has been found guilty or convicted of a new offence with the same subject matter, applies with respect to an old offence re-enacted by a law in force in Norfolk Island, which may be an applied law or a section 19A Ordinance, as well as a continued law of the former Legislative Assembly.

Item 297GN of Schedule 1 – Paragraph 171(2)(b)

New item 297GN of Schedule 1 amends paragraph 171(2)(b) of the Sentencing Act by omitting and substituting a reference to ‘an Act or a provision of an Act that has been repealed or an instrument of a legislative or administrative character or a provision of such an instrument,’ with a reference to ‘a law that was in force Norfolk Island, or a provision of such a law,’. This amendment clarifies that this provision, which deals with the relevance of old repealed offences for the purpose of determining whether a person has been found guilty or convicted of a new offence with the same subject matter, applies with respect to an old offence contained in a law in force in Norfolk Island, or a provision of such a law, which may be an applied law or a section 19A Ordinance, as well as a continued law of the former Legislative Assembly.

Item 297GO of Schedule 1 – Subsection 171(3)

New item 297GO of Schedule 1 amends subsection 171(3) of the Sentencing Act by omitting and substituting a reference to ‘Act or the instrument of a legislative or administrative character’ with a reference to ‘law in force Norfolk Island’. This amendment clarifies that this provision, which deals with the relevance of old repealed offences for the purpose of determining whether a person has been found guilty or convicted of a new offence with the same subject matter, applies subject to any contrary intention in the law in force in Norfolk Island which creates the new offence, which may be an applied law or a section 19A Ordinance, as well as a continued law of the former Legislative Assembly.


 

Part 8—Amendment of the Supreme Court Act 1960 (Norfolk Island)

Norfolk Island Continued Laws Ordinance 2015

Item [19] – Item 336D of Schedule 1 (subsection 23(7) (note))

Item 19 amends item 336D of Schedule 1 to repeal the note to subsection 23(7) of the Supreme Court Act which contains a redundant reference to the Director of Public Prosecutions Regulations 1984, which have been repealed. The prosecution of offences against the laws of Norfolk Island by the Commonwealth Director of Public Prosecutions is now authorised directly under the Director of Public Prosecutions Act 1983 (see the definition of ‘law of the Commonwealth’ in subsection 3(1)).

Item [20] – After item 336D of Schedule 1

Item 20 inserts new items 336DA and 336DB into Schedule 1 to the Continued Laws Ordinance.

Item 336DA of Schedule 1 – After section 33

New item 336DA of Schedule 1 inserts new section 33A into the Supreme Court Act which provides that the Commonwealth Attorney-General or the Commonwealth Director of Public Prosecutions may, with the leave of the Full Court of the Federal Court of Australia, appeal to that Court against the sentence passed in relation to a person’s conviction on indictment before the Supreme Court. This provision allowing for a prosecution appeal against a criminal sentence will bring Norfolk Island in line with other Australian jurisdictions.

Item 336DB of Schedule 1 – Section 34

New item 336DB of Schedule 1 amends section 34 of the Supreme Court Act, which provides that an appeal from the Supreme Court may be by case stated, to insert a reference to new section 33A. This amendment is consequential to the insertion of new section 33A into the Supreme Court Act by new item 336DA.


 

Part 9—Amendment of the Traffic Act 2010 (Norfolk Island)

Norfolk Island Continued Laws Ordinance 2015

Item [21] – After item 341DAAD of Schedule 1

Item 21 inserts new items 341DAADA and 341DAADB into Schedule 1 to the Continued Laws Ordinance.

Item 341DAADA of Schedule 1 – Paragraph 40A(1)(a)

New item 341DAADA of Schedule 1 amends paragraph 40A(1)(a) of the Traffic Act. The amendment substitutes the existing reference to ‘5 years’ with a reference to ‘8 years’.

Paragraph 40A(1)(a) of the Traffic Act relevantly provided that it was an offence for the driver of a truck or utility vehicle to have a passenger in the open tray of a truck or utility vehicle under the age of 5 years. The effect of this amendment is to change this minimum age from 5 years to 8 years of age. This is a consequential amendment arising from the recent traffic law enforcement measures introduced by the Norfolk Island Continued Laws Amendment (Traffic and Other Measures) Ordinance 2020 which implemented new drivers licence requirements that drivers must comply with if they have one person or more in the open tray of a truck or utility vehicle.

Item 341DAADB of Schedule 1 – Paragraph 40A(1)(b)

New item 341DAADB of Schedule 1 substitutes a new paragraph 40A(1)(b) of the Traffic Act. Paragraph 40A(1)(b) of the Traffic Act relevantly provided that it was an offence for the driver of a truck or utility vehicle to have a passenger in the open tray of a truck or utility vehicle unless the passenger was at least 5 years of age, the sides of the tray were closed and extended at least 150 millimetres above the floor of the tray, and the person was seated.

The insertion of a new paragraph 40A(1)(b) of the Traffic Act is a consequential amendment arising from the recent traffic law enforcement measures introduced by the Norfolk Island Continued Laws Amendment (Traffic and Other Measures) Ordinance 2020 which implemented new drivers licence requirements that drivers must comply with if they have one person or more in the open tray of a truck or utility vehicle. The effect of this amendment is to change this minimum age from 5 years to 8 years of age and provide for the extra conditions that the open tray riding can only take place between 6 am and 8 pm and that the driver must hold a drivers licence that is endorsed by the Registrar of Motor Vehicles under subsection 23B(1) of the Traffic Act, which must be produced if required to do so by a member of the police force. Section 23B allows the Registrar to endorse on a drivers licence a permit for the licence holder to drive a truck or a utility with one or more persons seated on the open tray of the truck or utility if the licence holder passes a written test approved by the Registrar.


Part 10—Application, saving and transitional provisions

Norfolk Island Continued Laws Ordinance 2015

Item [22] – In the appropriate position in Part 2 of Schedule 1

Division 22 of Part 2 of Schedule 1 – Application, saving and transitional provisions relating to the Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021

This item inserts new Division 22, ‘Application, saving and transitional provisions relating to the Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021’, into Part 2 of Schedule 1 to the Continued Laws Ordinance. This new division contains application, saving and transitional provisions relating to the amendments made to a number of continued laws as set out in Schedule 1 to the Ordinance.

Item 415 of Schedule 1 – Application provisions affecting the Bail Act 2005 (Norfolk Island)

New subitem 415(1) is an application provision which provides that the amendments to section 8 of the Bail Act apply to offences alleged to have been committed on or after the commencement of this item.

New subitem 415(2) is an application provision which provides that the amendments to section 37 of the Bail Act apply in relation to the review, under Division 2 of Part 6 of that Act, of a bail decision made before, on or after the commencement of this item.

Item 416 of Schedule 1 – Application provision affecting the Court of Petty Sessions Act 1960 (Norfolk Island)

New item 416 is an application provision which provides that the amendments to sections 107, 116, 117 and 140 of the Court of Petty Sessions Act apply in relation to civil claims made before, on or after the commencement of this item.

Item 417 of Schedule 1 – Saving provision affecting the Criminal Code 2007 (Norfolk Island)

New item 417 is a saving provision which provides that despite the repeal and substitution of paragraphs 113A(3)(b) and 119A(3)(b) of the Criminal Code, subsections 113A(3) and 119A(3), as in force immediately before the commencement of this item, continue to apply in relation to offences alleged to have been committed before the commencement of this item.

Item 418 of Schedule 1 – Application provisions affecting the Criminal Code 2007 (Norfolk Island)

New subitem 418(1) is an application provision which provides that the amendments to section 281 and 282, and the definition of ‘law of Norfolk Island’ in the Dictionary, of the Criminal Code apply to offences alleged to have been committed on or after the commencement of this item.

New subitem 418(2) is an application provision which provides that the amendment to paragraph 353(2)(c) of the Criminal Code applies in relation to acts or omissions on or after the commencement of this item.

Item 419 of Schedule 1 – Application provisions affecting the Dangerous Drugs 1927 (Norfolk Island)

New subitem 419(1) is a saving provision which provides that an authorisation for the purposes of the definition of ‘authorised officer’ in subsection 3(1) of the Dangerous Drugs Act that was in force immediately before the commencement of this item has effect, after the commencement of this item, as if it had been made under paragraph (a) of that definition as amended by this Schedule of the Ordinance.

New subitem 419(2) is an application provision which provides that the amendment to the definition of ‘cannabis plant’ in subsection 3(1) of the Dangerous Drugs Act applies in relation to acts or omissions on or after the commencement of this item.

New subitem 419(3) is an application provision which provides that the amendment of Part 1 of Schedule 5 to the Dangerous Drugs Act made by this Schedule applies in relation to acts or omissions on or after the commencement of this item.

Item 420 of Schedule 1 – Application provision affecting the Interpretation Act 1979 (Norfolk Island)

New subitem 420 is an application provision which provides that the repeal and substitution of section 40 of the Interpretation Act applies in relation to a penalty imposed on or after the commencement of this item in relation to an offence that is committed before, on or after the commencement of this item.

Item 421 of Schedule 1 – Application provisions affecting the Sentencing Act 2007 (Norfolk Island)

New subitem 421(1) is an application provision which provides that the amendment of paragraph 5(2)(p) of the Sentencing Act applies in relation to the revocation of an order before, on or after the commencement of this item.

New subitem 421(2) is an application provision which provides that the amendments of subsection 8(2) and paragraph 8(3)(a) of the Sentencing Act apply in relation to a finding of guilt before, on or after the commencement of this item.

New subitem 421(3) is an application provision which provides that the amendments of paragraph 7(l), of subsections 21(1), 101(1), 118(2) and 119(2) and of sections 91 and 168, the repeal and substitution of section 16, and the insertion of sections 16A and 92 of the Sentencing Act apply in relation to a sentence imposed on or after the commencement of this item in relation to an offence that is committed before, on or after the commencement of this item.

New subitem 421(4) is an application provision which provides that the amendments of subsections 39(5) and (7) of the Sentencing Act apply in relation to a sentence suspended before, on or after the commencement of this item.

New subitem 421(5) is an application provision which provides that the amendments of subsections 90(1), 147(1) and 151(1) of the Sentencing Act apply in relation to a sentence imposed before, on or after the commencement of this item.

New subsection 421(6) is an application provision which provides that the insertion of section 93 into the Sentencing Act applies in relation to a sentence imposed on or after the commencement of this item, whether the offender is serving a term of imprisonment imposed, or existing non‑parole period fixed, before, on or after the commencement of this item.

New subitem 421(7) is an application provision which provides that the amendment of paragraph 147(2)(a) of the Sentencing Act applies in relation to a parole order made on or after the commencement of this item in relation to a sentence imposed before, on or after the commencement of this item.

New subitem 421(8) is an application provision which provides that the amendment of paragraph 166(2)(a) of the Sentencing Act made by this Schedule applies in relation to an order made on or after the commencement of this item.

New subitem 421(9) is an application provision which provides that the amendments of subsections 169(1) and (2) of the Sentencing Act apply in relation to an increase or decrease that occurs on or after the commencement of this item.

New subitem 421(10) is an application provision which provides that the amendments of section 20 and subsection 170(1) of the Sentencing Act apply in relation to a fine imposed on or after the commencement of this item in relation to an offence that is committed before, on or after the commencement of this item.

New subitem 421(11) is an application provision which provides that the amendments of section 171 of the Sentencing Act apply in relation to a finding of guilt or conviction before, on or after the commencement of this item.

Item 422 of Schedule 1 – Application provision affecting the Supreme Court Act 1960 (Norfolk Island)

New item 422 is an application provision which provides that section 33A of the Supreme Court Act, as inserted by this Ordinance, applies in relation to a sentence passed on or after the commencement of this item.

Item 423 of Schedule 1 – Application provision affecting the Traffic Act 2010 (Norfolk Island)

New item 423 is an application provision which provides that the amendments of section 40A of the Traffic Act, as made by this Ordinance, apply in relation to acts or omissions on or after the commencement of this item.


 

Schedule 2 – Repeal of the Criminal Law Act 1960 (Norfolk Island) and other amendments

Norfolk Island Applied Laws Ordinance 2016

Item [1] – Schedule 1AAA (heading)

Item 1 amends the heading of Schedule 1AAA to the Applied Laws Ordinance by updating the existing reference to the Crimes (Domestic and Personal Violence) Regulation 2014 (NSW) with a reference to the Crimes (Domestic and Personal Violence) Regulation 2019 (NSW). Consistent with the sunsetting arrangements of NSW subordinate legislation, the 2019 regulation repealed the 2014 regulation but is effectively the same law in substance. This applied NSW law has been unsuspended in its application to Norfolk Island subject to the amendments contained in Schedule 1AAA of the Applied Laws Ordinance. This amendment is intended to assist readers, noting the operation of section 10A of the Acts Interpretation Act 1901 which deals with references in Commonwealth legislation to repealed and re-made state or territory laws.

Item [2] – Schedule 1AAA (heading specifying Crimes (Domestic and Personal Violence) Regulation 2014 (NSW))

Item 2 amends the heading specifying the Crimes (Domestic and Personal Violence) Regulation 2014 (NSW) in Schedule 1AAA to the Applied Laws Ordinance by updating the reference to the Crimes (Domestic and Personal Violence) Regulation 2019 (NSW). Consistent with the sunsetting arrangements of NSW subordinate legislation, the 2019 regulation repealed the 2014 regulation but is effectively the same law in substance. This applied NSW law has been unsuspended in its application to Norfolk Island subject to the amendments contained in Schedule 1AAA of the Applied Laws Ordinance. This amendment is intended to assist readers, noting the operation of section 10A of the Acts Interpretation Act 1901 which deals with references in Commonwealth legislation to repealed and re-made state or territory laws.

Norfolk Island Continued Laws Ordinance 2015

Item [3] – Before item 53 of Schedule 1 (after the heading)

Item 3 inserts new item 52A into Schedule 1 to the Continued Laws Ordinance.

Item 52A of Schedule 1 – Section 2

New item 52A repeals section 2 of the Criminal Code, which provides that the Acts specified in Parts 1 and 2 of the Schedule are to the extent there stated, repealed. This amendment is consequential to the repeal of the Schedule to the Criminal Code by new item 56D of Schedule 1.

Item [4] – After item 56C of Schedule 1

Item 4 inserts new item 56D into Schedule 1 to the Continued Laws Ordinance.

Item 56D of Schedule 1 – The Schedule

New item 56D repeals the Schedule to the Criminal Code, which includes a list of laws which have been repealed in their application to Norfolk Island. Consistent with the operation of subsection 7(1) of the Acts Interpretation Act 1901 (see also section 8A of the Interpretation Act 1979 (NI), the repeal of section 2 and the Schedule to the Criminal Code does not revive these repealed laws in their application to Norfolk Island. These amendments to the Criminal Code are consequential to the repeal of the Criminal Law Act by this Ordinance.

Item [5] – Before item 57 of Schedule 1 (after the heading)

Item 5 inserts new item 56E into Schedule 1 to the Continued Laws Ordinance.

Item 56E of Schedule 1 – Section 3

New item 56E repeals section 3 of the Criminal Procedure Act, which provides that the Acts specified in the Schedule are repealed to the extent there stated. This amendment is consequential to the repeal of the Schedule to the Criminal Procedure Act by new item 60A of Schedule 1.

Item [6] – After item 60 of Schedule 1

Item 6 inserts new item 60A into Schedule 1 to the Continued Laws Ordinance.

Item 60A of Schedule 1 – The Schedule

New item 60A repeals the Schedule to the Criminal Procedure Act, which provides that the Acts specified in the Schedule are repealed to the extent there stated. Consistent with the operation of subsection 7(1) of the Acts Interpretation Act 1901 (see also section 8A of the Interpretation Act 1979 (NI), the repeal of section 3 and the Schedule to the Criminal Procedure Act does not revive these repealed laws in their application to Norfolk Island. These amendments to the Criminal Procedure Act are consequential to the repeal of the Criminal Law Act by this Ordinance.

Item [7] – Item 1 of Schedule 2

Item 7 inserts ‘Criminal Law Act 1960’ into Schedule 2 to the Continued Laws Ordinance. The effect of this amendment is to repeal the Criminal Law Act. The Criminal Law Act previously applied the Crimes Act 1900 (NSW), as amended before 16 December 1936, as a law of Norfolk Island but these provisions were repealed with the enactment of the Criminal Code. The remaining operative provisions of the Criminal Law Act, that is, sections 5A, 11 and 13, are also redundant and will be repealed with the remainder of the Act.

Section 5A of the Criminal Law Act deals with the institution of proceedings in respect of offences. These matters are now dealt with under the relevant provisions of the Supreme Court Act and the Director of Public Prosecutions Act 1983. The repeal of paragraph (b) of section 5A, dealing with proceedings for summary conviction, is not intended to displace the common law rule that, subject to any relevant legislation, any individual may initiate criminal proceedings by way of a charge, information or complaint.

Section 11 of the Criminal Law Act deals with time limits for commencing prosecutions which are also provided for in section 45 of the Court of Petty Sessions Act. The removal of a time limit on the prosecution of indictable offences is consistent with arrangements in other Australian jurisdictions.

Section 13 of the Criminal Law Act deals with proof of exceptions where a person is charged with an offence before the Court of Petty Sessions. Section 157 of the Court of Petty Sessions Act also deals with proof of exceptions in this Court so this is provision is also redundant.