1 Name
This is the Norfolk Island Continued Laws Ordinance 2015.
3 Authority
This Ordinance is made under section 19A of the Norfolk Island Act 1979.
4 Simplified outline of this Ordinance
Under sections 16 and 16A of the Norfolk Island Act 1979, certain laws that were in force immediately before the interim transition time (18 June 2015) continue in force and form part of the law of the Territory. In this Ordinance, these laws are called “continued laws”. The continued laws include laws of the Legislative Assembly and laws made under Legislative Assembly laws
Continued laws may be amended or repealed by an Ordinance made under section 19A of the Norfolk Island Act 1979 or by a law made under such an Ordinance. An Ordinance may also suspend the operation of a continued law for a period.
This Ordinance amends and repeals continued laws as set out in the items in the Schedules to this Ordinance.
The items are to be read together with the continued laws in order to understand the operation of the continued laws in the Territory. The items continue in effect according to their terms from time to time and may be amended or repealed by subsequent Ordinances or by rules made under this Ordinance.
4A Definitions
In this Ordinance:
continued law means:
(a) a law continued in force in the Territory by section 16 of the Norfolk Island Act 1979; or
(b) a Legislative Assembly law, or a law made under a Legislative Assembly law, continued in force in the Territory by section 16A of that Act.
5 Interpretation
The Acts Interpretation Act 1901 does not apply to Schedules 1 and 2.
Note: The Interpretation Act 1979 (Norfolk Island), as amended by this Ordinance, applies instead (because this Ordinance is an enactment for the purposes of that Act).
6 Rules
(1) The Minister may, by legislative instrument, make rules amending this Ordinance:
(a) so as to amend or repeal a continued law; or
(b) to make application, saving or transitional provision in relation to any amendments or repeals of continued laws.
(2) To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax.
(3) The Minister may, in writing, delegate the Minister’s power under subsection (1) to:
(a) the Secretary of the Department; or
(b) a Deputy Secretary of the Department.
(4) However, an instrument of delegation made under subsection (3) is of no effect on or after 1 January 2023.
(5) In exercising powers under a delegation, the delegate must comply with any directions of the Minister.
7 Schedules
(1) Each continued law that is specified in a Schedule to this Ordinance is amended or repealed as set out in the applicable items in the Schedule, and any other item in a Schedule to this Ordinance has effect according to its terms.
(2) The amendments and repeals, and any other items, set out in the Schedules to this Ordinance continue in effect according to their terms from time to time.
(3) If:
(a) an item in a Schedule to this Ordinance amends, repeals, suspends or otherwise affects a continued law; and
(b) the item is amended or repealed;
then the continued law as in force immediately before 18 June 2015 continues in force in the Territory in accordance with section 16 or 16A of the Norfolk Island Act 1979 (as the case may be) and this Ordinance as amended.
Schedule 1—Amendments
Part 1—Amendments
Absentee Landowners Levy Act 1976 (Norfolk Island)
1AAAA Subsection 2(1) (definition of levy day)
After “year”, insert “other than 2017 or a later year”.
1AAAB At the end of subsection 5(1)
Add:
Note: The last levy day in respect of which the levy is imposed is 15 September 2016: see the definition of levy day in subsection 2(1).
1A At the end of subparagraphs 6A(2)(b)(i) and (ii)
Add “and”.
1B Subparagraph 6A(2)(b)(iii)
Repeal the subparagraph.
1C Paragraph 21A(1)(b)
Omit “holds office or is employed under the Public Service Act 1979,”, substitute “is employed by the Norfolk Island Regional Council;”.
Administration Act 1936 (Norfolk Island)
1D Paragraph 8(1)(d)
After “officer”, insert “appointed under paragraph (c)”.
1E After subsection 8(2)
Insert:
(2A) In addition to persons appointed as gaolers under paragraph (1)(c), a person who is a member of the police force, for the purposes of the Police Act 1931, is also a gaoler for the purposes of this Act.
Administration and Probate Act 2006 (Norfolk Island)
1F Subsection 5(3)
Repeal the subsection.
1G Subsection 5(5)
Omit “even if he or she is not qualified in accordance with subsection (3)”.
1 Subsection 83(3)
Repeal the subsection.
Administrative Review Tribunal Act 1996 (Norfolk Island)
1AAA Subsection 3(1)
Insert:
enactment means:
(a) a section 19A Ordinance (within the meaning of the Norfolk Island Act 1979 of the Commonwealth); or
(b) an Ordinance continued in force by section 16 or 16A (disregarding subsection 16A(4)) of that Act, as the Ordinance is in force from time to time; or
(c) a Legislative Assembly law continued in force by section 16A (disregarding subsection 16A(3)) of that Act, as the law is in force from time to time; or
(d) a New South Wales law as in force in Norfolk Island under section 18A of that Act.
1AAAA Paragraph 3(1)(d) of the definition of enactment
Repeal the paragraph, substitute:
(d) a New South Wales law as in force in Norfolk Island under section 18A of that Act.
(e) a Queensland law as in force in Norfolk Island under section 18A of that Act.
1AA Subsection 13(1)
Omit “employed or appointed under the Public Sector Management Act 2000”, substitute “employed by the Norfolk Island Regional Council”.
1AB At the end of subsection 15(1)
Add “(other than a decision made in the exercise of a power, function or duty vested in the Commonwealth Minister by section 18B of the Norfolk Island Act 1979 of the Commonwealth)”.
2 After subsection 15(1)
Insert:
(1A) To avoid doubt, an enactment made before the interim transition time does not contravene subsection (1) merely because of the effect of Schedule 1 to the Interpretation Act 1979 on the enactment.
Note: At and after the interim transition time, that Schedule has the effect that the Commonwealth Minister may make under an enactment a decision that, before that time, could only be made by a Minister or the Administrator. That Schedule does not prevent such a decision made by the Commonwealth Minister from being reviewable by the Tribunal.
2A Subsection 24(4)
Omit “officer or employee of the Norfolk Island Public Service”, substitute “employee of the Norfolk Island Regional Council”.
Adoption of Children Act 1932 (Norfolk Island)
2AA Subsection 9(5)
Omit “, and the provisions of sections 73, 74 and 75 of the Crimes Act 1900 of the State of New South Wales, in its application to Norfolk Island, as amended by any law of Norfolk Island for the time being in force,”.
Airport Act 1991 (Norfolk Island)
2B Section 2 (definition of authorised officer)
Omit “Minister”, substitute “Chief Executive Officer”.
2BA Section 2 (definition of charge)
Repeal the definition.
2BB Section 2 (definition of outstanding amount)
Repeal the definition, substitute:
outstanding amount, in relation to an aircraft, means all approved fees in respect of the aircraft that have become due for payment but have not been paid.
2BC Sections 3, 3A and 3B
Repeal the sections, substitute:
3 Approved fees for landing, take‑off and movement of aircraft
(1) The approved fees are payable for or in relation to the landing, take‑off and movement of aircraft on or from the airport.
(2) The Chief Executive Officer may enter into an arrangement with an aircraft operator for the deposit of an amount, in the form of a cash sum, a bank guarantee or other security, with the Norfolk Island Regional Council to be held by the Council as security for the payment of approved fees for or in relation to the landing, take‑off or movement of aircraft on or from the airport.
(3) The Chief Executive Officer may refuse to allow an aircraft to land at the airport if the aircraft operator has not entered into such an arrangement.
2BD Subsection 3C(1)
Omit “a charge”, substitute “an approved fee”.
2C Sections 3D and 3F
Omit “Minister” (wherever occurring), substitute “Chief Executive Officer”.
2D Section 3FA
Repeal the section.
2E Paragraph 3G(2)(d)
Repeal the paragraph.
2F Schedule 2
Repeal the Schedule.
Airport Regulations 1992 (Norfolk Island)
2G Part 1 (heading)
Repeal the heading, substitute:
Part 1—Preliminary
2H Regulations 3 to 4
Repeal the regulations.
2J Before regulation 4A
Insert:
Part 1A—Seizure of aircraft
2K Regulation 4A
Omit all the words before paragraph (b), substitute:
For the purposes of paragraph 3G(2)(da) of the Act, reasonable steps for the purpose of giving notice under subsection 3C(2) of the Act about the seizure of an aircraft are taken to have been made if an authorised officer:
(a) gives notice of the seizure to the holder of the AOC (within the meaning of the Civil Aviation Act 1988 of the Commonwealth) that authorises the operation of the aircraft at the last address notified to CASA in respect of that person; and
2L Paragraph 4A(b)
Omit “the Civil Aviation Regulations 1988”, substitute “regulations made for the purposes of paragraph 98(3)(a) of the Civil Aviation Act 1988”.
2M Subparagraph 4A(d)(i)
Omit “the Civil Aviation Regulations 1988”, substitute “regulations made for the purposes of paragraph 98(3)(a) of the Civil Aviation Act 1988”.
2N Schedule
Repeal the Schedule.
Animals (Importation) Act 1983 (Norfolk Island)
2S Section 5
Omit “Administrator may by instrument”, substitute “Chief Executive Officer may, by written instrument,”.
2SA Paragraph 7(2)(c)
Omit “prescribed fee”, substitute “approved fee”.
2T Section 11
Omit “and his powers under section 5”.
2U Subsection 13(1)
Omit “(1)”.
2V Subsection 13(2)
Repeal the subsection.
Annual Reports Act 2004 (Norfolk Island)
3 Subsection 5(1)
After “prepare”, insert “and give to the Commonwealth Minister”.
3A Section 5 (notes)
Repeal the notes.
3B Subsection 6(1)
After “prepare”, insert “and give to the Commonwealth Minister”.
4 Section 7
Repeal the section.
5 Subsection 8(1)
Omit “Minister”, substitute “Commonwealth Minister”.
6 Subsection 8(2)
Repeal the subsection.
7 Paragraph 8(3)(e)
Omit “responsible Minister for the report”, substitute “Commonwealth Minister”.
8 Subsections 8(4) and (5)
Repeal the subsections.
9 Parts 3 and 4
Repeal the Parts.
10 Subsections 14(1) and (2)
Omit “Minister”, substitute “Commonwealth Minister”.
11 Subsection 14(3)
Repeal the subsection.
12 Subsection 15(2)
Omit “, and presentation of the report to the Legislative Assembly, is taken to comply with the requirements of this Act about the preparation and presentation”, substitute “complies with the requirements of this Act about the preparation”.
13 Section 17
Repeal the section.
14 Section 18 (paragraph (c) of the definition of annual report)
Omit “report; or”, substitute “report.”.
15 Section 18 (paragraph (d) of the definition of annual report)
Repeal the paragraph.
16 Section 18 (definition of financial year)
Repeal the definition, substitute:
financial year means a period from 1 July in a year to the following 30 June.
Note: See also subsection 6(3).
17 Section 18 (paragraph (c) of the definition of public sector agency)
Omit “agency”, substitute “agency.”.
18 Section 18 (definition of public sector agency)
Omit “and includes the Public Service Board.”.
19 Section 18 (definition of responsible Minister)
Repeal the definition.
20 Section 18 (definition of Speaker)
Repeal the definition.
21 Section 18 (paragraph (a) of the definition of territory instrumentality)
After “are”, insert “or were”.
21A Section 18 (paragraph (b) of the definition of territory instrumentality)
Omit “an Minister”, substitute “the Commonwealth Minister”.
Apiaries Act 1935 (Norfolk Island)
21B Section 3
Omit “Minister may appoint such inspectors and other officers”, substitute “Chief Executive Officer may, by written instrument, appoint such inspectors”.
21BA Paragraph 4(1)(a)
Omit “prescribed steps”, substitute “steps approved by the Chief Executive Officer”.
21BB Paragraph 4(1)(b)
Omit “prescribed manner”, substitute “manner approved by the Chief Executive Officer”.
21BC Subsection 12(5)
Omit “made to the Minister in accordance with the prescribed form”, substitute “given to the Chief Executive Officer in accordance with a form approved by the Chief Executive Officer”.
21BD Section 17
Repeal the section.
21C Amendments of listed provisions—substituting references to Minister with references to Chief Executive Officer
| Substituting references to Minister with references to Chief Executive Officer |
| Item | Provision | Omit (wherever occurring) | Substitute |
| 1 | Section 2 (definition of disease) | Minister | Chief Executive Officer |
| 2 | Paragraph 3A(1)(c) | Minister | Chief Executive Officer |
| 3 | Subsections 4(2), (3) and (4) | Minister | Chief Executive Officer |
| 4 | Section 5 | Minister | Chief Executive Officer |
| 5 | Subsections 7(1), 8(2) and (3) and 12(6) | Minister | Chief Executive Officer |
| 6 | Section 14 | Minister | Chief Executive Officer |
Associations Incorporation Act 2005 (Norfolk Island)
21D Subsection 4(1)
Omit “Minister may, by instrument in writing, appoint a public sector employee under the Public Sector Management Act 2000,”, substitute “Chief Executive Officer may, by instrument in writing, appoint a public sector employee”.
21E Subsections 4(2) and 5(1), (3), (4) and (5)
Omit “Minister”, substitute “Chief Executive Officer”.
21F After section 52
Insert:
52A Services for which approved fees may be charged
Approved fees may be charged for the making, giving, publishing, issuing, filing or inspecting of any application, notice, declaration, certificate or other document under this Act or the regulations under this Act.
21G Paragraph 53(g)
Repeal the paragraph.
Associations Incorporation Regulations 2005 (Norfolk Island)
21H Subregulations 10(1) and (2)
Omit “fee specified in Schedule 3”, substitute “approved fee”.
21J Regulation 11
Repeal the regulation.
21K Schedule 3
Repeal the Schedule.
Auctioneers Act 1926 (Norfolk Island)
21L Sections 12 and 13
Omit “prescribed fee”, substitute “approved fee”.
21M Section 17
Repeal the section, substitute:
17 Approved fee for general licence
The approved fee is payable for the issue of a general licence.
21N Subsection 18(1)
Omit “fee mentioned in subsection 18(4)”, substitute “approved fee”.
21P Subsection 18(4)
Repeal the subsection.
Bail Act 2005 (Norfolk Island)
22AAA Subsection 3(1) (definition of Crimes Act)
Repeal the definition.
22AA Subsection 3(1) (definition of Crown Law Officer)
Repeal the definition.
22AAAAA Subsection 3(1)
Insert:
firearm has the same meaning as in the Firearms and Prohibited Weapons Act 1997.
military‑style weapon has the same meaning as in the Weapons Prohibition Act 1998 (NSW) as in force at the commencement of the Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021.
pistol has the same meaning as in the Firearms and Prohibited Weapons Act 1997.
scheduled firearm has the same meaning as in the Firearms and Prohibited Weapons Act 1997.
sexual intercourse has same meaning as in Part 3.6 of the Criminal Code 2007.
22AAAA Paragraph 6(1)(d)
Repeal the paragraph, substitute:
(d) the period between:
(i) the making of an order under section 18 of the Criminal Procedure Act 2007 relating to the accused person; and
(ii) the Tribunal (within the meaning of that section) determining whether or not the person is fit to plead to the charge;
22AAAAB Paragraphs 8(1)(a) and (b)
Repeal the paragraphs, substitute:
(a) the offence of murder;
(b) an offence that is punishable by imprisonment for life;
(c) an offence punishable by imprisonment for 5 years or more that involves:
(i) sexual intercourse with a person aged under 16 years by a person who is aged 18 years or older; or
(ii) the infliction of actual bodily harm with intent to have sexual intercourse with a person aged under 16 years by a person who is aged 18 years or older;
(d) an offence against Chapter 3 of the Criminal Code 2007 that is punishable by imprisonment for 14 years or more;
(e) an offence against a law of the Commonwealth, a State or a Territory that is similar to an offence referred to in paragraph (d);
(f) an offence involving wounding or the infliction of grievous bodily harm if the accused person has previously been convicted of:
(i) an offence referred to in paragraph (d); or
(ii) an offence against a law of the Commonwealth, a State or a Territory that is similar to an offence referred to in paragraph (d);
(g) an offence against Chapter 3 of the Criminal Code 2007 that is punishable by imprisonment for 5 years or more and that involves the use of a firearm;
(h) an indictable offence that involves the unlawful possession of a pistol or scheduled firearm in a public place;
(i) an offence against Chapter 3 of the Criminal Code 2007 that is punishable by imprisonment for 5 years or more and that involves the use of a military‑style weapon;
(j) an indictable offence that involves the unlawful possession of a military‑style weapon;
(k) an offence against the Criminal Code 2007 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a controlled drug or controlled plant (all within the meaning of Chapter 6 of that Code);
(l) an offence against the Dangerous Drugs Act 1927 punishable by imprisonment for 5 years or more;
(m) an offence against Part 9.1 of the Criminal Code of the Commonwealth that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug (all within the meaning of that Part);
(n) an offence punishable by imprisonment for 5 years or more that is committed by the accused person:
(i) while on bail (whether granted under this Act or a law of the Commonwealth, a State or a Territory); or
(ii) while on parole (whether granted under a law of Norfolk Island, the Commonwealth, a State or a Territory);
(o) an offence punishable by imprisonment for 5 years or more that is committed by the accused person while the person is the subject of a warrant that authorises the person’s arrest and that is issued under:
(i) this Act; or
(ii) the Court of Petty Sessions Act 1960; or
(iii) the Criminal Procedure Act 2007; or
(iv) the Sentencing Act 2007; or
(v) the Supreme Court Act 1960.
22AAAAC Subsection 8(2)
Omit “satisfies”, substitute “shows cause to”.
22AAAAD After subsection 8(2)
Insert:
(2A) If a person shows cause to a court as described in subsection (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.
22AAAB Paragraph 9(1)(b)
Omit “section 54 of the Crimes Act”, substitute “section 77 or 78 of the Criminal Code 2007”.
22AAAC Paragraph 9(1)(c)
Omit “part 3A of the Crimes Act”, substitute “Part 3.6 of the Criminal Code 2007”.
22AAAD Paragraph 9(1)(d)
Repeal the paragraph, substitute:
(d) against section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI);
22AAAE Subsection 9(1)
Omit “section 54, 59, 61 93D, or 93E, of the Crimes Act”, substitute “section 77, 78, 80, 81, 82, 83, 84, 109, 110, 111, 112, 113 or 114 of the Criminal Code 2007”.
22AAAF Paragraph 9(2)(a)
Omit “23”, substitute “25”.
22AAAG Section 9 (note)
Repeal the note.
22AAAH After section 16
Insert:
16A Bail for domestic violence offence
(1) This section applies to a person accused of a domestic violence offence.
(2) An authorised member must not grant bail to the person unless satisfied that the person poses no danger to a protected person while released on bail.
(3) However, even if the authorised member is satisfied as described in subsection (2), the member must refuse bail if satisfied that the refusal is justified after considering the matters mentioned in section 25 (criteria to be considered in bail applications).
(4) If an authorised member grants bail to the person, the member must include, with the entry in the book, or the information stored on a computer, under section 18, a statement about why the member is satisfied that the person poses no danger to any protected person.
(5) In this section:
domestic violence offence has the meaning given by section 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI).
protected person, in relation to a person accused of a domestic violence offence, means:
(a) a person against whom the alleged conduct constituting the offence was directed; or
(b) a person with whom the accused person has a domestic relationship as defined in section 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI).
22AAAI Paragraph 25(1)(d)
Omit “Domestic Violence Act 1995”, substitute “Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI)”.
22AB Subsection 26(3)
Omit “Crown Law Officer or a person authorised by a Crown Law Officer in writing in that behalf”, substitute “member of the police force”.
22B Subsection 28(5)
Omit “administering the Immigration Act 1980”.
22BAA Section 35
Omit “shall not review a decision in relation to bail except a decision made by himself or an authorised person”, substitute “must not review a decision in relation to bail except a decision made by the Chief Magistrate or an authorised member”.
22BAB Subsection 37(4)
After “revoked, a”, insert “Judge or”.
22BAC Subsection 37(5)
After “imposed, a”, insert “Judge or”.
22BA Paragraph 48(3)(a)
Omit “Crown Law Officer or a person authorised by him or her in writing in that behalf”, substitute “member of the Police Force”.
22BB Paragraph 48(4)(c)
Repeal the paragraph.
22BC Subsection 54(1) (definition of accused person)
Repeal the definition, substitute:
accused person means an accused person who is the subject of an order under Chapter 2 of the Criminal Procedure Act 2007.
Bankruptcy Act 2006 (Norfolk Island)
22BD Section 3
Insert:
COVID‑19 period means the period beginning on 21 July 2020 and ending on 31 December 2020.
statutory minimum means:
(a) during the COVID‑19 period—$20,000; or
(b) otherwise—$10,000.
statutory period means:
(a) with respect to a notice issued, or a petition presented, during the COVID‑19 period—6 months; or
(b) otherwise—21 days.
22BE Subparagraph 23(1)(g)(i)
Omit “$2000.00”, substitute “the statutory minimum”.
22BF At the end of section 25
Add:
(3) The notice must specify a period for compliance with the notice. That period must be the statutory period, commencing on the day the debtor is served with the notice.
22BG Subsection 26(1)
Omit “21 days of service of the notice upon him or her”, substitute “the statutory period, commencing on the day the debtor is served with the notice,”.
22BH After subsection 27(2)
Insert:
(2A) Despite subsection (2), a petition must not be presented to the Court during the COVID‑19 period unless the debt or total of debts due by a debtor amounts to no less than the statutory minimum.
22C Paragraph 121(1)(c)
Omit “(other than a person employed under an employment contract under the Employment Act 1988) in the employment of the bankrupt”, substitute “in the employment of the bankrupt (other than wages or salary the person is or was entitled to under a governing instrument, within the meaning of the Fair Entitlements Guarantee Act 2012 of the Commonwealth, for the employment)”.
22D Paragraph 121(1)(d)
Omit “employed under an employment contract under the Employment Act 1988”, substitute “under a governing instrument, within the meaning of the Fair Entitlements Guarantee Act 2012 of the Commonwealth, for employment”.
22E Form 2 in Schedule (paragraph 3)
Omit “21 days after”, substitute “the statutory period, commencing on the day of”.
22F Form 2 in Schedule (after paragraph 8)
Insert:
Note: For notices served before 1 January 2021, that is, during the COVID‑19 period, the statutory minimum is $20,000 and the statutory period is 6 months, commencing on the day the debtor is served with the notice. For notices served from 1 January 2021, the statutory minimum is $10,000 and the statutory period is 21 days, commencing on the day the debtor is served with the notice (see the Bankruptcy Act 2006, section 3).
Bookmakers and Betting Exchange Act 1998 (Norfolk Island)
23AAA Subsection 4(1) (definition of Director of Gaming and Deputy Director of Gaming)
Repeal the definition.
23AA Subsection 4(1) (at the end of the definition of licensed operations)
Add:
Note: A licence does not authorise a licensee to provide bookmaking or betting exchange services on or after 1 April 2017. However, on and after 1 April 2017 this Act continues to apply in relation to licensed operations engaged in before that day.
23 Subsection 4(2)
Omit “within the power of the Legislative Assembly”, substitute “possible”.
23A Part 2 (heading)
Repeal the heading, substitute:
Part 2—Bookmaking
23B Division 1 of Part 2 (heading)
Repeal the heading, substitute:
Division 1—Prohibition of bookmaking
23C Section 6 (heading)
Repeal the heading, substitute:
6 Prohibition of bookmaking
23D Subsection 6(1)
Omit “(1) A person must not operate as a bookmaker except in accordance with a licence”, substitute “A person must not, on or after 1 April 2017, operate as a bookmaker”.
23E Subsections 6(2) and (3)
Repeal the subsections.
23F At the end of section 8
Add “However, a licence must not be granted on or after 1 April 2017.”.
23G Subsection 9(1)
Omit “(1)”.
23H Subsection 9(2)
Repeal the subsection.
23J At the end of section 9
Add:
Note: However, a licence does not provide an exception to any offences in this Act on or after 1 April 2017.
24 Division 4 of Part 2
Repeal the Division.
24AA Section 19A (heading)
Repeal the heading, substitute:
19A Prohibition of betting exchanges
24AB Subsection 19A(1)
Omit “(1) A person must not carry on the business of a betting exchange except in accordance with a betting exchange licence”, substitute “A person must not, on or after 1 April 2017, carry on the business of a betting exchange”.
24AC At the end of subsection 19A(2)
Add “However, a licence must not be issued on or after 1 April 2017.”.
24AD Sections 19B and 19E
Repeal the sections.
24ADA Section 41
Omit “a member of the Authority, the Director of Gaming, the Deputy Director of Gaming, or” (wherever occurring).
24ADB Section 43
Repeal the section.
24AE Subsection 46(1)
Omit “issue,”.
24AF Section 48
Repeal the section.
Brands and Marks Act 1949 (Norfolk Island)
24AFAA Subsection 5(2)
Omit “a fee of .50 fee unit”, substitute “the approved fee”.
24AFAB Subsection 6(1)
Omit “fee prescribed”, substitute “approved fee”.
24AFAC Subsection 7(1)
After “prescribed form”, insert “, accompanied by the approved fee,”.
24AFAD Paragraph 8(1)(c)
After “application”, insert “, accompanied by the approved fee,”.
24AFA Subsection 10(1)
Omit “Minister may”, substitute “Chief Executive Officer may, by written instrument,”.
24AFB Paragraph 19(b)
Repeal the paragraph.
Brands and Marks Regulations (Norfolk Island)
24AFC Regulation 8
Repeal the regulation.
Bores and Wells Act 1996 (Norfolk Island)
24AG Title
Omit “until the commencement of Part 3 of the Public Health Act 1996”.
24AH Subsection 6(1)
Omit “(1)”.
24AI Subsections 6(2) and 7(3) and (4)
Repeal the subsections.
24AJ Subsection 10(1)
Omit “before the date of commencement of Part 3 of the Public Health Act 1996”.
Building Act 2002 (Norfolk Island)
24AK Subsection 5(1) (paragraph (b) of the definition of building work)
Omit “Public Health Act 1996”, substitute “Environment Act 1990”.
24A Subsection 5(1) (definition of Chief Executive Officer)
Repeal the definition.
24AAA Subsection 5(1) (definition of prescribed fee)
Repeal the definition.
24AAB Paragraph 10(2)(c)
Omit “prescribed fee”, substitute “approved fee”.
24AAC Subsection 10(5)
Repeal the subsection.
24AAD Subsection 14(2)
Omit “prescribed fee”, substitute “approved fee”.
24AAE Paragraph 24(2)(b)
Omit “prescribed fee”, substitute “approved fee”.
24AAF Subsection 25(2)
Omit “prescribed fee”, substitute “approved fee”.
24AAG Section 61
Omit “Minister may, by instrument”, substitute “Chief Executive Officer may, by written instrument”.
24B Subsection 62(3) (paragraph (e) of the definition of official)
Omit “within the meaning of the Public Sector Management Act 2000”, substitute “in the public service”.
24C Subsection 64(2)
Omit “prescribed fee”, substitute “approved fee”.
Building Regulations 2004 (Norfolk Island)
24D Regulations 17 and 18
Repeal the regulations.
Business Transactions (Administration) Act 2006 (Norfolk Island)
25 Section 2A (heading)
Repeal the heading, substitute:
2A Purpose
26 Subsection 2A(1)
Omit “(1)”.
27 Subsection 2A(2)
Repeal the subsection.
Business Transactions (Levy Imposition) Act 2006 (Norfolk Island)
28 Section 2A
Repeal the section.
28A Schedule 2 (at the end of the table)
Add:
| 12. | An instrument effecting or evidencing the conveyance of leviable property if: (a) the transfer does not involve a change in beneficial ownership; and (b) the instrument is executed during the period starting on the day this item commences and ending on 30 June 2017. |
Child Welfare Act 2009 (Norfolk Island)
29AAAA After section 9
Add:
9A Relationship with Education (General Provisions) Act 2006 (Qld) (NI)
Nothing in this Act is intended to exclude or limit the operation of the provisions of Part 10 of Chapter 12 of the Education (General Provisions) Act 2006 (Qld) (NI) in accordance with their terms.
29 Subsection 15(1) (note)
Omit “and see also Interpretation Act 1979 s. 36”.
29AAA At the end of Chapter 3
Add:
23A General nature of proceedings under this Act
(1) Proceedings under this Act are not to be conducted in an adversarial manner.
(2) Proceedings under this Act are to be conducted with as little formality and legal technicality as the circumstances of the case permit.
(3) In proceedings under this Act, the court is not bound by the rules of evidence unless the court determines that the rules of evidence, or such of those rules as are specified by the court, are to apply to the proceedings or parts of the proceedings.
(4) In proceedings under this Act, the standard of proof is proof on the balance of probabilities.
(5) Without limiting subsection (4), any requirement under this Act that the court be satisfied as to a particular matter is a requirement that the court be satisfied on the balance of probabilities.
(6) In this section:
proceedings under this Act does not include proceedings relating to an offence against this Act.
29AA Paragraph 24(1)(a)
Repeal the paragraph, substitute:
(a) The Commonwealth Minister may, by written instrument, appoint any of the following as the child welfare officer:
(i) an individual who the Minister is satisfied has suitable qualifications and experience to perform the functions of the child welfare officer;
(ii) an individual who holds a position in a body that specialises in providing, or facilitating the provision of, child welfare services if the Minister is satisfied that the position is sufficiently senior to perform the functions of the child welfare officer;
(iii) an SES employee or acting SES employee, or an individual who performs the duties of an office or position in a Department of State or other body that is a part, or authority, of the Commonwealth, if the office or position is at a level equivalent to or higher than that of an SES employee;
(iv) an individual who holds or performs the duties of an office or position in a Department of State or other body that is a part, or authority, of a State or Territory, if the office or position is at a level equivalent to or higher than that of an SES employee.
Note: For subparagraph (a)(iii) and (iv), SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901 of the Commonwealth (applying because of section 8A of the Interpretation Act 1979).
(aa) However, the Commonwealth Minister may only make an appointment under subparagraph (a)(iv) if:
(i) the Department of State or other body has functions that include providing child welfare services; and
(ii) the State or Territory agrees to the appointment.
(ab) The Commonwealth Minister may determine the terms and conditions of an appointment under paragraph (a), including remuneration and allowances.
29AB Paragraph 24(1)(b)
Repeal the paragraph, substitute:
(b) The Commonwealth Minister may, by legislative instrument, give written directions to the child welfare officer about the exercise of his or her functions and powers under this Act.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 (Commonwealth) do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(ba) A direction under paragraph (b) must be of a general nature only.
(bb) Subject to any direction given to the child welfare officer by the court, the child welfare officer must comply with a direction under paragraph (b).
29A Paragraphs 24(1)(c) and (d)
Repeal the paragraphs, substitute:
(c) The Commonwealth Minister may, by written notice, terminate the appointment of the child welfare officer at any time.
29B Subparagraph 24(1)(e)(v)
Omit “Chief Executive Officer”, substitute “Commonwealth Minister”.
30 Subsection 24(2) (note)
Repeal the note.
30AAA Subsection 26(1)
Omit “public sector agency”, substitute “defined entity (within the meaning of subsection 27(11))”.
30AAB Subsection 26(2)
Repeal the subsection, substitute:
(2) The entity must promptly comply with the request if:
(a) the entity is covered by paragraph (c), (ca), (cb), (d), (e), (f), (g), (h) or (j) of the definition of defined entity in subsection 27(11); or
(b) the entity is covered by paragraph (k) of that definition, unless the entity is contracted as mentioned in that paragraph by a Department of State or other body that is a part, or authority, of a State or Territory.
(3) Subsection (4) applies if a law of a State or Territory:
(a) limits disclosure of some or all of the information covered by the request by a Department of State or other body that is a part, or authority, of the State or Territory, or by a body or person acting on behalf of such a Department or other body; and
(b) exempts from the limitation a disclosure authorised by a law in force in Norfolk Island.
(4) For the purposes of the exemption, the Department or other body or person may disclose to the child welfare officer the information covered by the request.
30AA After subsection 27(9)
Insert:
(9A) If the child welfare officer furnishes information to a defined entity under this section, the defined entity is authorised, for the purposes of the Privacy Act 1988 of the Commonwealth, to collect the information.
30AB Subsection 27(10)
After “give”, insert “or collect”.
30ABA Subsection 27(11) (paragraph (c) of the definition of defined entity)
Repeal the paragraph, substitute:
(c) the public service;
(ca) a territory instrumentality;
(cb) a holder of an office established by an enactment;
30AC Subsection 27(11) (paragraph (j) of the definition of defined entity)
Repeal the paragraph, substitute:
(j) a Department of State or other body that is a part, or authority, of the Commonwealth;
(ja) a Department of State or other body that is a part, or authority, of a State or Territory;
(k) a person contracted by a defined entity:
(i) to provide health care, welfare, education or residential services to children or young people; or
(ii) to assist the child welfare officer in exercising a function or power under this Act; or
(iii) to assist the defined entity in connection with the administration of this Act;
(l) a body determined by the Commonwealth Minister under subsection (12).
A reference in this section to a defined entity includes a reference to any part (however described) of the defined entity.
30AD At the end of section 27
Add:
(12) The Commonwealth Minister may, by legislative instrument, determine a body (including an unincorporated body) for the purposes of paragraph (l) of the definition of defined entity in subsection (11).
30A Subsection 28(4)
Omit “Chief Executive Officer”, substitute “Commonwealth Minister”.
31 Section 32
Repeal the section, substitute:
32 Delegation by child welfare officer
(1) The child welfare officer may delegate the child welfare officer’s functions or powers under this Act or an interstate law to:
(a) an employee under the Norfolk Island Health and Residential Aged Care Service Act 1985; or
(b) a person with expertise in the provision of child welfare services who is approved, in writing, by the Commonwealth Minister; or
(c) an individual who:
(i) holds or performs the duties of an office or position in a Department of State or other body that is a part, or authority, of the Commonwealth or of a State or Territory, if the office or position is, or is equivalent to or higher than, an Executive Level 2 position in the Australian Public Service; and
(ii) has suitable qualifications and experience to perform the functions or exercise the powers under the Act or the interstate law; or
(d) if the child welfare officer was appointed under subparagraph 24(1)(a)(ii):
(i) an employee of the body mentioned in that subparagraph; or
(ii) an individual engaged by that body to provide child welfare services.
Note For the making of delegations and the exercise of delegated functions, see sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 of the Commonwealth applying because of section 8A of the Interpretation Act 1979.
(2) If a function or power is delegated under subsection (1) to a person referred to in paragraph (1)(c), the person need not accept the function or power delegated.
31AAA Subsection 33(1) (subparagraph (c)(iv) of the definition of abuse)
Omit “domestic violence offence within the meaning of the Domestic Violence Act 1995, section 3,”, substitute “domestic violence offence as defined in section 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI)”.
31AA Paragraph 33(3)(c)
Omit “Education Act 1931”, substitute “Education Act 1990 (NSW) (NI)”.
31AAB Paragraph 33(3)(c)
Omit “Education Act 1990 (NSW) (NI)”, substitute “Education (General Provisions) Act 2006 (Qld) (NI)”.
31A Subsection 43(1)
Repeal the subsection, substitute:
(1) If the child welfare officer receives a report about a child or young person under section 40, 40A or 41, the child welfare officer must:
(a) consider the report; and
(b) after considering the report, take whatever action is necessary to safeguard or promote the safety, welfare and well‑being of the child or young person.
31B After subsection 43(1)
Insert:
(1A) However, the child welfare officer may decide to take no action after considering the report if:
(a) the child welfare officer considers, on the basis of the information provided in the report, that there is insufficient reason to believe that the child or young person is in need of care and protection; or
(b) the child welfare officer considers that the circumstances that led to the report have been, or are being, adequately dealt with.
31C Subsection 43(3)
After “this Act”, insert “, other than this section and section 44,”.
31D Paragraph 44(1)(b)
Repeal the paragraph, substitute:
(b) for each such report:
(i) the child welfare officer’s decision to take action, or to take no action, in relation to the report; and
(ii) the reasons for the decision; and
(iii) any action taken in relation to the report; and
(iv) any child protection appraisal made as a result of the report.
31DA Paragraph 47(3)(d)
Omit “of or over the school‑leaving age”, substitute “15 or over”.
31DB Paragraph 48(1)(d)
Omit “of or over school‑leaving age”, substitute “15 or over”.
31DC Section 49
Omit “has reached the school‑leaving age”, substitute “is 15 or over”.
31DD Section 49 (note)
Repeal the note.
31DE Section 59 (definition of final care and protection order)
Omit “a protection order or”, substitute “an”.
31DF Section 59
Repeal the following definitions:
(a) definition of final protection order;
(b) definition of interim protection order.
31DG Sections 70 to 73
Repeal the sections.
31E Subsections 85(4) and (5)
Repeal the subsections.
31EA After subsection 90(3)
Insert:
(3A) To avoid doubt, the premises and places in which a child or young person may be provided with care and protection under this section include premises and places outside Norfolk Island.
31EB Subsections 92(4) and (5)
Repeal the subsections.
31F Paragraph 93(2)(a)
Omit “2 working days”, substitute “3 working days”.
31G Subsections 103(3) and (4)
Repeal the subsections.
31H Section 111
Omit “Chief Executive Officer”, substitute “Commonwealth Minister”.
31J Subsections 114(4) and (5)
Repeal the subsections.
31K Paragraph 116(2)(b)
Omit “Chief Executive Officer”, substitute “Commonwealth Minister”.
31KA Subsection 123(7)
Omit “, or a protection order,”.
31L Subsections 131(1) and (2)
Repeal the subsections.
32 Subsection 145(5)
Repeal the subsection.
32AA Paragraph 147(1)(a)
Omit “of or over the school‑leaving age”, substitute “who is 15 or over”.
32AAA Subsection 170(4)
Repeal the subsection, substitute:
(4) A person may not appeal to the Supreme Court in relation to a matter arising under this Act except in accordance with this Act.
32AB Subsection 185(3)
Repeal the subsection.
32AC Before subsection 186(1)
Insert:
(1A) A person who acquires information or a document under this Act may:
(a) make a record of the information or document; or
(b) divulge or communicate the information or document to any person;
if the recording, divulging or communication is for the purposes of this Act or as required by law.
32AD Section 187
After “welfare officer,”, insert “a delegate of the child welfare officer,”.
32A After section 193
Insert:
193A Notifying child welfare officer of certain convictions
(1) If a person is convicted in the court of Petty Sessions of an offence covered by subsection (3), the Clerk of the court must, as soon as practicable, notify the child welfare officer of the conviction.
(2) If a person is convicted in the Supreme Court of an offence covered by subsection (3), the Registrar of the court must, as soon as practicable, notify the child welfare officer of the conviction.
(3) An offence is covered by this subsection if it is an offence against any of the following provisions of the Criminal Code 2007 that is committed against or with a child or young person:
(a) Part 3.6 (sexual offences);
(b) Part 3.7 (child pornography);
(c) Part 3.9 (female genital mutilation);
(d) Part 3.10 (sexual servitude).
33 Subsection 195(1)
Omit “(1)”.
34 Subsections 195(2) and 196(3)
Repeal the subsections.
35 Subsection 197(1) (note)
Repeal the note.
36 Dictionary (note 2)
Omit “• disallowable instrument (see s 41A)”.
37 Dictionary (note 3)
Repeal the note.
37AA Dictionary
Repeal the following definitions:
(a) definition of final protection order;
(b) definition of interim protection order.
37AAA Dictionary, (definition of school)
Repeal the definition, substitute:
school means a State school (within the meaning of the Education (General Provisions) Act 2006 (Qld) (NI)).
37AAB Dictionary (definition of school‑leaving age)
Repeal the definition.
Community Title Act 2015 (Norfolk Island)
37A Subsection 2(2)
Omit “a day or days fixed by the Administrator”, substitute “the day after the Norfolk Island Continued Laws Amendment (Community Title) Ordinance 2018 is registered on the Federal Register of Legislation”.
37B Section 3 (heading)
Repeal the heading, substitute:
3 Binding the Crown
37C Subsection 3(1)
Omit “and the Administration”, substitute “in each of its capacities”.
37D Subsection 3(2)
Omit “or the Administration”.
37E Subsection 5(1)
Insert:
approved form means a form approved by the Registrar.
37EA Subsection 17(1)
Omit “to the Norfolk Island Planning and Environment Board under section 44”, substitute “under subsection 44(1) or 44D(1)”.
37F Paragraph 21(3)(g)
Omit “form prescribed by regulation”, substitute “approved form”.
37G Paragraph 21(3)(h)
Omit “prescribed form”, substitute “approved form”.
37H Paragraphs 35(3)(a) and 38(2)(e)
Omit “form prescribed by regulation”, substitute “approved form”.
37J Subsection 38(5)
Repeal the subsection, substitute:
(5) If the body corporate does not make any rules or revokes all of its rules, the model rules set out in Schedule 1A apply to it.
(6) If the model rules set out in Schedule 1A provide for a matter and the rules of the body corporate do not provide for that matter, the model rules relating to that matter are taken to be included in the rules of the body corporate.
37K Subsection 39(6)
Omit “form prescribed by regulation”, substitute “approved form”.
37L Paragraphs 49(2)(n) and 52(7)(a)
Omit “form prescribed by regulation”, substitute “approved form”.
37M Subparagraph 54(6)(e)(ii)
Omit “form prescribed by regulation”, substitute “approved form”.
37N Paragraphs 60(3)(d) and (e) and 62(3)(f) and (g)
Omit “form prescribed by regulation”, substitute “approved form”.
37P Subsection 141(4)
Repeal the subsection.
37Q Section 166
Repeal the section, substitute:
166 Regulations and other matters in Schedule 6
(1) This Act has effect as if regulations had been made in the terms of the provisions of Schedule 6 that are expressed to be made for the purposes of another provision of this Act.
(2) Any other provision of Schedule 6 has effect according to its terms.
37R Subparagraph 12(4)(b)(i) of Schedule 1
Omit “form prescribed by regulation”, substitute “approved form”.
37S After Schedule 1
Insert:
Schedule 1A—Model rules for body corporate
Note: See subsections 38(5) and (6).
Part 1—Health, safety and security
1 Health, safety and security of lot owners, occupiers of lots and others
A lot owner or occupier must not use the lot, or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier or user of another lot.
2 Storage of flammable liquids and other dangerous substances and materials
(1) Except with the approval in writing of the body corporate, an owner or occupier of a lot must not use or store on the lot or on the common property any flammable chemical, liquid or gas or other flammable material.
(2) This rule does not apply to:
(a) chemicals, liquids, gases or other material used or intended to be used for domestic purposes; or
(b) any chemical, liquid, gas or other material in a fuel tank of a motor vehicle or internal combustion engine.
3 Waste disposal
An owner or occupier must ensure that the disposal of garbage or waste does not adversely affect the health, hygiene or comfort of the occupiers or users of other lots.
Part 2—Management and administration
4 Metering of services and apportionment of costs of services
(1) The body corporate must not seek payment or reimbursement for a cost or charge from a lot owner or occupier that is more than the amount that the supplier would have charged the lot owner or occupier for the same goods or services.
(2) If a supplier has issued an account to the body corporate, the body corporate cannot recover from the lot owner or occupier an amount which includes any amount that is able to be claimed as a concession or rebate by or on behalf of the lot owner or occupier from the relevant supplier.
(3) Subrule (2) does not apply if the concession or rebate:
(a) must be claimed by the lot owner or occupier and the body corporate has given the lot owner or occupier an opportunity to claim it and the lot owner or occupier has not done so by the payment date set by the relevant supplier; or
(b) is paid directly to the lot owner or occupier as a refund.
Part 3—Use of common property
5 Use of common property
(1) An owner or occupier of a lot must not obstruct the lawful use and enjoyment of the common property by any other person entitled to use the common property.
(2) An owner or occupier of a lot must not, without the written approval of the body corporate, use for his or her own purposes as a garden any portion of the common property.
(3) An approval under subrule (2) may state a period for which the approval is granted.
(4) If the body corporate has resolved that an animal is a danger or is causing a nuisance to the common property, it must give reasonable notice of this resolution to the owner or occupier who is keeping the animal.
(5) An owner or occupier of a lot who is keeping an animal that is the subject of a notice under subrule (4) must remove that animal.
(6) Subrules (4) and (5) do not apply to an animal that assists a person with an impairment or disability.
6 Vehicles and parking on common property
An owner or occupier of a lot must not, unless in the case of an emergency, park or leave a motor vehicle or other vehicle or permit a motor vehicle or other vehicle:
(a) to be parked or left in parking spaces situated on common property and allocated for other lots; or
(b) on the common property so as to obstruct a driveway, pathway, entrance or exit to a lot; or
(c) in any place other than a parking area situated on common property specified for that purpose by the body corporate.
7 Damage to common property
(1) An owner or occupier of a lot must not damage or alter the common property without the written approval of the body corporate.
(2) An owner or occupier of a lot must not damage or alter a structure that forms part of the common property without the written approval of the body corporate.
(3) An approval under subrule (1) or (2) may state a period for which the approval is granted, and may specify the works and conditions to which the approval is subject.
(4) An owner or person authorised by an owner may install a locking or safety device to protect the lot against intruders, or a screen or barrier to prevent entry of animals or insects, if the device, screen or barrier is soundly built and is consistent with the colour, style and materials of the building.
(5) The owner or person referred to in subrule (4) must keep any device, screen or barrier installed in good order and repair.
Part 4—Lots
8 Change of use of lots
An owner or occupier of a lot must give written notification to the body corporate if the owner or occupier changes the existing use of the lot in a way that will affect the insurance premiums for the body corporate.
Example: If the change of use results in a hazardous activity being carried out on the lot, or results in the lot being used for commercial or industrial purposes rather than residential purposes.
Part 5—Behaviour of persons
9 Behaviour of owners, occupiers and invitees on common property
An owner or occupier of a lot must take all reasonable steps to ensure that guests of the owner or occupier do not behave in a manner likely to unreasonably interfere with the peaceful enjoyment of any other person entitled to use the common property.
10 Noise and other nuisance control
(1) An owner or occupier of a lot, or a guest of an owner or occupier, must not unreasonably create any noise likely to interfere with the peaceful enjoyment of any other person entitled to use the common property.
(2) Subrule (1) does not apply to the making of a noise if the body corporate has given written permission for the noise to be made.
Part 6—Dispute resolution
11 Grievance procedure
(1) The grievance procedure set out in this rule applies to disputes involving a lot owner, manager or occupier or the body corporate.
(2) The party making the complaint must prepare a written statement in the approved form.
(3) If there is a grievance committee of the body corporate, it must be notified of the dispute by the complainant.
(4) If there is no grievance committee, the body corporate must be notified of any dispute by the complainant, regardless of whether the body corporate is an immediate party to the dispute.
(5) The parties to the dispute must meet and discuss the matter in dispute, along with either the grievance committee or the body corporate, within 14 business days after the dispute comes to the attention of all the parties.
(6) A party to the dispute may appoint a person to act or appear on his or her behalf at the meeting.
(7) If the dispute is not resolved, the grievance committee or body corporate must notify each party of his or her right to take further action under Part 14 of the Community Title Act 2015.
(8) This process is separate from and does not limit any further action under Part 14 of the Community Title Act 2015.
37T At the end of the Act
Add:
Schedule 6—Regulations and other matters
Note: See section 166.
Part 1—Preliminary
1 Interpretation—definition of special resolution
For the purposes of subparagraph (b)(i) of the definition of special resolution in subsection 5(1), the reason for the proposed resolution is information that must be served in accordance with that subparagraph.
2 Interpretation—definition of unanimous resolution
For the purposes of paragraph (a) of the definition of unanimous resolution in subsection 5(1), the reason for the proposed resolution is information that must be served in accordance with that paragraph.
Part 2—Requirements relating to schemes and plans
3 Scheme description—section 34
(1) In order to comply with section 34 a scheme description must:
(a) be in a form approved by the Registrar; and
(b) identify the community parcel and the lots and common property into which the parcel is to be divided (this may be done by reference to the plan of community division with which the description will be filed); and
(c) describe the purpose or purposes for which the lots and common property may be used; and
(d) specify the standard of buildings and other improvements (if any) to be, or which may be, erected on or made to the lots or common property; and
(e) if the scheme is to be completed in stages:
(i) identify the part or parts of the community parcel (which may, in the case of a strata scheme, include a stratum or strata of space not defined by a building or other monument) to be developed in a subsequent stage or subsequent stages; and
(ii) provide a brief description of the nature and scope of the development to be undertaken in respect of each stage; and
(iii) state the time expected for the completion of each stage or, if it is not possible to estimate a time for completion, explain briefly why it is not possible to do so; and
(f) if the owner or owners of one or more of the community lots are to be under an obligation to develop the lot—include a brief description of the nature and scope of that development and the time for its completion or, if it is not possible to estimate a time for completion, explain briefly why it is not possible to do so; and
(g) if the developer is to make improvements to the common property or undertake any other development work on the common property—include a brief description of the nature and scope of those improvements or that work and the time expected for their completion or, if it is not possible to estimate a time for completion, explain briefly why it is not possible to do so; and
(h) if the division or other development of the land pursuant to the scheme is subject to conditions imposed by development approval under the Planning Act 2002—set out those conditions in full; and
(j) set out any other important features of the scheme; and
(k) be endorsed with a certificate in the approved form from the person who prepared the scheme description certifying that the scheme description has been correctly prepared in accordance with this Act; and
(m) include any other information required by this Schedule.
(2) The scheme description of a secondary scheme must not be inconsistent with the scheme description or the rules of the primary scheme and the scheme description of a tertiary scheme must not be inconsistent with the scheme description or the rules of the secondary or primary scheme.
(3) A scheme description should be written as clearly as possible and should not include any unnecessary detail.
(4) Before endorsing a scheme description, the Registrar may require modifications to it:
(a) to add any information that is necessary or desirable in the opinion of the Registrar; or
(b) to clarify any part of the description; or
(c) to remove any unnecessary detail.
4 Plans and maps to comply with guidelines
A plan or map lodged with the Registrar must comply with any requirements specified in guidelines issued, from time to time, by the Registrar.
5 Lot entitlements—subsection 26(3)
The aggregate of the lot entitlements of all community lots defined on a plan of community divisions may be any whole number between 2 and 100,000 but must not be a number that exceeds 100,000.
6 Minor amendment of plan—subsection 56(3)
The minor amendment of the delineation of lots or common property referred to in subsection 56(3) is a change in the position of the boundary of a lot or the common property by 200 millimetres or less.
7 Submission of outer boundary survey plan
(1) Subject to subclause (2), a person who intends making an application for the division of an allotment or allotments by a primary plan of community division must, before making the application, submit to the Registrar:
(a) an outer boundary survey plan of the land to be divided in a form approved by the Registrar; and
(b) the appropriate fee prescribed by clause 45.
(2) Subclause (1) does not apply in relation to an application for the division of land in respect of which the Registrar has determined that subclause (1) should not apply.
(3) The Registrar must examine the outer boundary survey plan and must, if satisfied that the requirements of this Schedule have been met and the information on the plan appears to be adequate and accurate, send a copy of the plan to the applicant or the applicant’s manager.
8 Examination of plans
The Registrar must not accept the filing of a plan under this Act unless he or she has examined the plan and is satisfied with it.
9 Additional information as to applications
The Registrar may require a person who has made an application to him or her under this Act to provide him or her with any information that the Registrar requires to consider the application.
10 Certification of irregular boundaries
Where a plan shows land bounded by a watercourse, the sea or some other irregular boundary, the Registrar may require the accuracy of the boundary as shown on the plan to be certified by a licensed surveyor.
11 Notification on deposit of plan
(1) After the Registrar registers a plan under this Act he or she must notify the applicant or the applicant’s manager in writing of the registration.
(2) A notification or other document required to be given under this clause may be sent by electronic means.
12 Issue of certificates of title on deposit of plan
Upon registering a plan of community division, the Registrar must issue a separate certificate of title for each lot and the common property created by the plan.
13 Application to Tribunal to amend or Supreme Court to cancel a community plan—sections 61 and 69
(1) For the purposes of subsection 61(4), in determining an application to amend a community plan, the Tribunal must have regard to the matters set out in subclause (3).
(2) For the purposes of subsection 69(3), in determining an application to cancel a community plan, the Supreme Court must have regard to the matters set out in subclause (3).
(3) The matters are:
(a) whether there is evidence that any owners object to the amendment or cancellation and, if so, how many owners object to it; and
(b) whether there are to be any adverse consequences to owners if the application is granted and the extent to which those adverse consequences could be ameliorated or alleviated by court order or other action; and
(c) whether there are to be any adverse consequences to owners if the application is refused and the extent to which those adverse consequences could be ameliorated or alleviated by court order or other action; and
(d) any other reason why it is in the interests of justice that the application should be granted or refused.
Part 3—Administration of community schemes
Division 1—General
14 Content of rules—subsection 38(3)
For the purposes of subsection 38(3), the rules may:
(a) regulate:
(i) the position, design, dimensions, methods and materials of construction and external appearance of buildings or other improvements on community lots; or
(ii) the maintenance and repair of buildings or other improvements on community lots; or
(iii) landscaping, including the establishment, care and maintenance of lawns, gardens and other areas on community lots; or
(b) impose requirements or restrictions relating to the appearance of community lots or buildings or other improvements situated on community lots; or
(c) regulate the use and enjoyment of community lots in order to prevent interference with the use and enjoyment of other lots.
15 Body corporate managers—section 82
(1) For the purposes of paragraph 82(2)(b), a body corporate manager must provide the body corporate with a copy of the schedule to the policy of professional indemnity insurance maintained by the body corporate manager that sets out:
(a) the name of the body corporate manager; and
(b) the name of the insurer; and
(c) the nature of the policy; and
(d) the amount for which indemnity is provided under the policy.
(2) For the purposes of paragraph 82(2)(c), a policy of professional indemnity insurance maintained by a body corporate manager must provide an indemnity of at least $1.5 million per claim during a period of 12 months.
(3) For the purposes of paragraph 82(3)(f), a contract between a body corporate manager and a body corporate must contain the following particulars:
(a) a statement verifying that the body corporate manager is insured under a policy of professional indemnity insurance as required by this Act and an undertaking by the body corporate manager that the body corporate manager will maintain that insurance throughout the life of the contract;
(b) an undertaking by the body corporate manager that the body corporate manager will allow any member of the community corporation to inspect, at any time during ordinary business hours, the records of the community corporation in the possession or control of the body corporate manager and specifying how an inspection can be arranged.
(4) For the purposes of subsection 82(8), the body corporate manager must ensure the availability of a copy of a pamphlet that sets out the role of the body corporate manager and the rights of the body corporate and its members, including:
(a) the right to inspect records held by the manager; and
(b) the right to revoke the delegation of a particular function of the manager; and
(c) the right to appoint the manager as a proxy and revoke that appointment; and
(d) the right to be informed of any payment that the manager receives from another trader for placing the corporation’s business; and
(e) the right to terminate the contract; and
(f) the right to apply to the Tribunal for a resolution of any dispute.
16 Return of records and trust money when delegations revoked—section 84
(1) For the purposes of subsection 84(6), records must:
(a) be returned by mail sent by registered post; or
(b) be made available for collection;
within 10 business days of the delegations being revoked.
(2) For the purposes of subsection 84(6), trust money must:
(a) be returned by electronic funds transfer; or
(b) be returned by cheque sent by registered post; or
(c) be made available for collection;
within 10 business days of the delegations being revoked.
(3) For the purposes of paragraph 84(7)(b), the maximum fee that may be charged for providing a copy of records of the body corporate is 0.05 fee units per page.
17 Matters to be addressed at first general meeting—paragraph 86(2)(e)
The following are prescribed under paragraph 86(2)(e) as matters that must be addressed at the first general meeting of a body corporate:
(a) whether the policies of insurance taken out by the developer are adequate;
(b) whether the body corporate should establish a management committee;
(c) the delegation of functions and powers by the body corporate;
(d) whether the rules of the scheme need amendment.
18 Agenda for annual general meeting—subparagraph 87(6)(d)(vi)
For the purposes of subparagraph 87(6)(d)(vi), the agenda for each annual general meeting must include:
(a) the appointment of the presiding officer, treasurer and secretary of the body corporate; and
(b) other appointments to be made or revoked by the body corporate at the meeting; and
(c) the policies of insurance required by this Act to be held by the body corporate; and
(d) the number of applications for relief made under Part 14 and the nature of the claims or disputes the subject of those applications; and
(e) if it is proposed to enter into a contract, or renew or extend a contract, with a body corporate manager under section 82:
(i) the text of the resolution to enter into, or renew or extend, the contract; and
(ii) where and when a copy of the contract or proposed contract, and the pamphlet referred to in subclause 15(4), can be viewed or obtained by members of the body corporate; and
(iii) the matter of landscaping, including the establishment, care and maintenance of lawns, gardens and other areas on community lots; and
(f) proposed controls on expenditure by delegates of the body corporate.
19 Procedure at meetings—Schedule 2
(1) For the purposes of subrule 1(4) of Schedule 2, if a member of the body corporate has given the body corporate manager or an employee of the body corporate manager a specific proxy or power of attorney to vote on the question of whether the manager or employee of the manager is to preside at a meeting of the body corporate, the manager or employee is entitled to vote on that question at the meeting as a proxy or attorney of the member in accordance with the terms of that specific proxy or power of attorney.
(2) For the purposes of subrule 1(5) of Schedule 2, the following procedures must be followed at a meeting to which that subrule applies:
(a) the body corporate manager or employee of a body corporate manager must, at the outset of the meeting, inform the persons present and entitled to vote at the meeting of the proxies or powers of attorney that are held by him or her for the meeting and that those proxies or powers of attorney are available for inspection;
(b) the manager or employee of the manager must, at the outset of the meeting, also inform the persons present and entitled to vote at the meeting:
(i) that he or she may preside at the meeting only if the majority of persons present and entitled to vote agree to him or her presiding; and
(ii) that he or she is not entitled to vote on the question of whether he or she should preside at the meeting except as a proxy or attorney of a member of the body corporate acting in accordance with the terms of a specific proxy or power of attorney given in relation to the question; and
(iii) that he or she has no right to prevent any person present and entitled to vote at the meeting from moving or voting on any question or motion;
(c) the manager or employee of the manager must make any proxies or powers of attorney held by him or her available for inspection by persons present and entitled to vote at the meeting.
(3) For the purposes of subrule 1(9) of Schedule 2, a member of a body corporate may attend and vote at a meeting by a means of remote communication:
(a) if:
(i) the rules of the body corporate make provision for attendance and voting at meetings by members by means of remote communication; and
(ii) the member complies with any applicable requirements specified in those rules; or
(b) if:
(i) the member makes a request in writing, given to the secretary of the body corporate, to attend and vote at the meeting by means of remote communication; and
(ii) the secretary of the body corporate makes the necessary arrangements to receive and record the member’s attendance and voting at the meeting by remote communication; and
(iii) the member complies with any requirements of the secretary in relation to the request referred to in subparagraph (i).
(4) For the purposes of rule 6 of Schedule 2, a notice setting out the text of a proposed special resolution must also set out the reasons for the proposed resolution.
20 Fidelity guarantee insurance—section 103
For the purposes of subsection 103(3):
(a) a policy of fidelity guarantee insurance must insure a body corporate in the amount of:
(i) the maximum total balance of the body corporate’s bank accounts at any time in the preceding 3 years; or
(ii) $50,000;
whichever is higher; and
(b) the following kinds of bodies corporate are not required to maintain fidelity guarantee insurance:
(i) bodies corporate that have buildings and other improvements on their common property insured for a sum not exceeding $100,000;
(ii) 2 lot bodies corporate with no administrative or sinking funds.
21 Proof of insurance—subsection 105(2)
For the purposes of subsection 105(2), a photocopy (including a copy made by digital means) of the current certificate of the insurance that includes reference to the matters in subsection 105(1), is required as evidence of compliance with that subsection.
22 Unanimous or special resolution for acquisition of property—paragraph 111(3)(b)
For the purposes of paragraph 111(3)(b):
(a) if the cost of the acquisition by a body corporate of property is $5,000 or more the acquisition must be authorised by a unanimous resolution of the body corporate; and
(b) if the cost of the acquisition by a body corporate of property is less than $5,000 the acquisition must be authorised by a special resolution of the body corporate.
23 Statement of expenditure etc.—section 112
(1) For the purposes of paragraph 112(1)(a), the prescribed period is:
(a) in the case of a body corporate consisting of at least 7 but not more than 20 community lots—3 years; or
(b) in the case of a body corporate consisting of more than 20 community lots—5 years.
(2) For the purposes of subsection 112(2), new information must be prepared for the purposes of paragraph 112(1)(a):
(a) if the proposed expenditure (other than recurrent expenditure) is for a period of 3 years—every 3 years; or
(b) if the proposed expenditure (other than recurrent expenditure) is for a period of 5 years—every 5 years.
(3) The following are excluded from the operation of paragraphs 112(1)(a) and (b):
(a) bodies corporate consisting of 6 or less community lots;
(b) bodies corporate that have buildings and other improvements on their common property insured for a sum not exceeding $100,000.
24 Interest on arrears of contributions by lot owners—paragraph 113(4)(b)
For the purposes of paragraph 113(4)(b), a body corporate, when fixing interest payable by the owner of a community lot in respect of a contribution, or an instalment of a contribution, that is in arrears must not:
(a) exceed a rate of 12% per annum; or
(b) demand payment of interest on unpaid interest.
25 Notice for payment of contribution or instalment—paragraph 113(6)(a)
For the purposes of paragraph 113(6)(a), a notice of a contribution, or of an instalment of a contribution, served by a body corporate on the owner of a lot must include the following information:
(a) identification of the lot in relation to which the contribution or instalment is payable;
(b) the amount of the contribution or instalment;
(c) in the case of a contribution that is payable in instalments—the amount of each instalment and the day on which each instalment is payable;
(d) the day on or before which the contribution or instalment must be paid (being a day not less than 14 days after the notice is served);
(e) the total amount that the body corporate has decided to raise by way of contributions by the owners of community lots;
(f) the purpose or purposes for which the money raised will be used;
(g) the rate of interest payable in respect of a contribution or instalment that is in arrears;
(h) the name of the person to whom the contribution or instalment should be sent or delivered.
26 Resolutions authorising expenditure—section 118
For the purposes of section 118, expenditure by a body corporate:
(a) of less than an amount that is equivalent to $2,000 multiplied by the number of community lots in the scheme must be authorised by an ordinary resolution of the body corporate; and
(b) of the amount referred to in paragraph (a) or more but less than an amount that is equivalent to $5,000 multiplied by the number of community lots in the scheme must be authorised by a special resolution; and
(c) of the larger of the 2 amounts referred to in paragraph (b) or more must be authorised by a unanimous resolution.
27 Register of owners of community lots—subsection 134(2)
For the purposes of subsection 134(2), the period prescribed is 7 years.
28 Records—sections 135 and 136
(1) For the purposes of paragraph 135(h), the following documentary material is prescribed (as material that must be kept by a body corporate):
(a) receipts for the expenditure of money;
(b) passbooks, deposit books and all other documents providing evidence of the deposit or investment of money (including bank statements).
(2) All documents and records kept by a body corporate must be kept in an orderly manner to enable them to be found easily for the purposes of inspection or copying.
(3) The following periods are prescribed for the purposes of section 135 and subsection 136(2) as the period for which a body corporate must keep its records and documents:
(a) minutes of meetings—30 years;
(b) accounting records—7 years;
(c) any statements of account—7 years;
(d) notices or orders served on the body corporate—7 years;
(e) correspondence—7 years;
(f) notices of meetings—7 years.
29 Audit—subsection 137(4)
(1) For the purposes of subparagraph 137(4)(a)(i), the prescribed amount (of the aggregate of the contributions made, or to be made, by members of the body corporate in respect of a year) is $10,000.
(2) For the purposes of subparagraph 137(4)(a)(ii), the prescribed amount (of the balance standing to the credit of the administrative fund and the sinking fund at the commencement of a year) is $10,000 for each fund.
30 Fee for provision of information—subsection 138(4)
(1) The following fees are prescribed for the purposes of subsection 138(4):
(a) in the case of an application for all or any of the information referred to in paragraph 138(1)(a):
(i) if the applicant is the owner of a community lot—no fee; and
(ii) in any other case—$15 per application;
(b) in the case of an application for copies of all or any of the documentary material referred to in paragraph 138(1)(b):
(i) if the applicant is the owner of a community lot—$5 per application; and
(ii) in any other case—$15 per application, plus an additional fee of $5 where the application is for, or includes a request for, a copy of current policies of insurance taken out by the body corporate;
(c) where an application is made to inspect all or any of the documentary material referred to in paragraph 138(1)(c):
(i) where the applicant is the owner of a community lot—no fee; and
(ii) in any other case—$5 per application;
(d) in the case of an application for the documentary material referred to in subsection 138(2)—$25 per application.
(2) A body corporate may reduce or waive any fees prescribed by subclause (1).
31 Services provided by bodies corporate—section 151
(1) A body corporate may, under section 151, provide to the owner or occupier of a lot any kind of service that relates to the ownership or occupation of the lot.
(2) The provision of a service under subclause (1) is subject to the following restrictions:
(a) a service must not be provided to a person who has not agreed with the body corporate to accept the service;
(b) the cost of the service must be paid for by the persons who have agreed to accept it and must not be subsidised by the body corporate.
32 Functions of secretary and treasurer of body corporate
(1) The secretary of a body corporate has the following functions:
(a) to prepare and distribute minutes of meetings of the body corporate and submit a motion for confirmation of the minutes of any meeting of the body corporate at the next such meeting;
(b) to give, on behalf of the members of the body corporate and the management committee, the notices required to be given under this Act;
(c) to answer communications addressed to the body corporate;
(d) to convene meetings of the management committee;
(e) to attend to matters of an administrative or secretarial nature in connection with the exercise, by the body corporate or the management committee, of its functions.
(2) The treasurer of a body corporate has the following functions:
(a) to notify owners of community lots of any contributions to be raised from them in accordance with this Act;
(b) to receive, acknowledge, bank and account for any money paid to the body corporate;
(c) to keep accounting records and prepare financial statements.
Note: The offices of secretary and treasurer can be held by the same person in certain circumstances—see section 78.
Division 2—Manager’s trust accounts
33 Authorisation of fees, costs and disbursements—paragraph 122(b)
(1) A manager may withdraw money from a trust account held on behalf of a body corporate in satisfaction of a claim that the manager has against the body corporate for fees, costs or disbursements if the body corporate has agreed in writing to pay to the manager those fees, costs or disbursements.
(2) A manager who becomes entitled to money held in the manager’s trust account in or towards satisfaction of the manager’s fees, costs or disbursements must, as soon as practicable (and in any event within 3 months), transfer the money to an account maintained by the manager for receipts other than trust money.
Maximum penalty: 5 penalty units.
34 Authorised trust accounts—section 123
For the purposes of section 123:
(a) a trust account approved by the Commonwealth Minister for the holding of trust money; and
(b) a trust account of a legal practitioner under the Legal Profession Act 1993;
are prescribed.
35 General duty with respect to electronic records
If a manager uses a computer program to keep records under this Division, the manager must ensure that:
(a) an electronic copy of all the records is made within 24 hours of any alteration of the records; and
(b) at least once in each week, an electronic copy of all the records is made and kept in a safe place at a location other than the premises where the computer program is operating; and
(c) before any information is deleted from the computer records, a hard copy of the information is made and kept by the manager as part of the manager’s records; and
(d) an up‑to‑date electronic copy of the computer program is made and kept in a safe place at a location other than the premises where the computer program is operating.
36 Cash books—paragraph 125(1)(c)
(1) For the purposes of paragraph 125(1)(c), the detailed accounts of receipts and disbursements of trust money to be compiled by a manager must comply with the following requirements:
(a) a cash receipts book must be kept in which the manager records the following information in respect of each receipt of trust money:
(i) the date and reference number of the receipt;
(ii) the name of the person from whom the money is received;
(iii) the name of the body corporate or reference to which the transaction relates;
(iv) brief particulars of the purpose of the receipt;
(v) the amount of the receipt;
(b) a cash payments book must be kept in which the manager records the following information in respect of each payment of trust money:
(i) the date and reference number of the cheque or electronic transfer of funds by which the payment was made;
(ii) the name of the payee;
(iii) the body corporate’s name or reference to which the transaction relates;
(iv) brief particulars of the purpose of the payment;
(v) the amount of the cheque or electronic transfer of funds.
(2) However, a manager need not keep a cash receipts book or a cash payments book as required by subclause (1) if the manager uses a computer program to record the information referred to in that subclause in respect of each receipt or payment of trust money and the program:
(a) requires input in each field of a data entry screen intended to receive information in respect of a receipt or payment so that all of the information referred to in subclause (1) is recorded in respect of each receipt and payment; and
(b) is capable, at any time, of producing:
(i) a report of the information in respect of receipts of trust money in the order in which they were received; and
(ii) a report of the information in respect of payments of trust money in the order in which they were made.
(3) A manager who uses a computer program as referred to in subclause (2) must ensure that:
(a) at the end of each month, hard copies of each of the following reports are produced:
(i) a report of the information in respect of receipts of trust money received during that month in the order in which they were received;
(ii) a report of the information in respect of payments of trust money made during that month in the order in which they were made; and
(b) those hard copies are kept as part of the manager’s records.
(4) The records of receipts and payments must be made by the manager in accordance with this clause in the order in which they are received or made, each such record being made within 2 business days after the receipt or payment in question.
(5) Subclause (4) does not apply in relation to receipts or payments by way of electronic transfer of funds, a record of which must be made within 2 business days after the manager receives official confirmation that the transfer has occurred.
37 Separate trust ledger accounts
(1) A manager must ensure that the manager’s trust ledger accounts are kept separately:
(a) in respect of each of the manager’s clients; and
(b) if the manager performs services for a body corporate in respect of a number of transactions between different parties—in respect of each such transaction.
(2) The manager must record in each of the separate accounts the following details:
(a) the name and address of the body corporate to whom the accounts relate;
(b) a brief description of the service provided and the transaction to which the accounts relate;
(c) in respect of each receipt or disbursement of trust money:
(i) the date and reference number of the receipt or disbursement; and
(ii) the name of the person from whom the money is received or to whom the money is disbursed; and
(iii) brief particulars of the purpose of the receipt or disbursement; and
(iv) the amount received or disbursed.
(3) The manager must ensure that any changes in the details referred to in paragraph (2)(a) or (b) are recorded in a manner that enables the changes and the order in which they occurred to be identified.
(4) If the manager transfers money between any of the separate accounts, the manager must clearly record the transfer:
(a) in both accounts; and
(b) in a transfer journal;
in sufficient detail that the transfer may be clearly understood.
(5) The records of receipts, disbursements and transfers must be made by the manager in accordance with this clause in the order in which the receipts, disbursements or transfers are received or made, each such record being made within 2 business days after the receipt, disbursement or transfer in question.
(6) Subclause (5) does not apply in relation to receipts or payments by way of electronic transfer of funds, a record of which must be made within 2 business days after the manager receives official confirmation that the transfer has occurred.
(7) If a manager uses a computer program to keep trust ledger accounts or a transfer journal, the manager must ensure that:
(a) the program is incapable of:
(i) recording a transaction that would result in a debit balance in a trust ledger account unless a separate contemporaneous record of the transaction is also made so that, at any time, a hard copy may be produced of all such transactions in chronological order; and
(ii) deleting from its records the information relating to a trust ledger account unless the balance of the account is nil and a hard copy of all of the information required under this Division relating to the account has been produced; and
(iii) changing existing information relating to a transaction otherwise than by making a further entry showing a separate transaction to effect the change; and
(b) the program automatically inserts consecutive page numbers into any hard copy report produced by use of the program; and
(c) the program requires input in each field of a data entry screen intended to receive information for the purposes of a trust ledger account or transfer journal so that the entry contains all of the information required by this clause; and
(d) hard copies of the trust ledger accounts and transfer journal are produced within 2 business days of a request from the Commonwealth Minister or the manager’s auditor.
38 Reconciliation statements
At the end of each month, reconciliation statements must be prepared:
(a) reconciling the balance of the manager’s cash books, or equivalent computer records, kept under clause 36 with the balance of the manager’s trust account; and
(b) reconciling the balances of the ledgers comprised in the manager’s trust ledger accounts with the balance of the manager’s trust account;
(but the manager is not required to set out in a statement a list of individual balances, or the names of the bodies corporate on whose behalf money is held).
39 Receipt of trust money
(1) For the purposes of paragraph 125(2)(a), the receipt that a manager must make available to a person making a payment of trust money must:
(a) be legibly written on a form comprised in a series of consecutively pre‑numbered duplicate receipt forms marked with the name of the manager and the words “Trust Account”; and
(b) contain the following information:
(i) in the case of a payment made by electronic transfer of funds into a manager’s trust account—the date on which the manager makes out the receipt;
(ii) in any other case—the date of the payment;
(iii) the name of the person making the payment;
(iv) whether the payment is by cash, cheque, bank cheque or electronic transfer of funds into the manager’s trust account and, if the payment is by cheque or bank cheque, the name of the drawer of the cheque;
(v) the name of the body corporate for whom the money is received;
(vi) brief particulars of the purpose of the payment;
(vii) the amount of the payment.
(2) A manager need not comply with paragraph (1)(a) if the manager uses a computer program to make out the receipt and the program:
(a) automatically produces in chronological sequence consecutively numbered receipts marked with the name of the manager and the words “Trust Account”; and
(b) automatically makes a separate contemporaneous record of the receipt so that, at any time, a hard copy of the receipt may be produced; and
(c) requires input in each field of a data entry screen intended to receive information for the purposes of producing the receipt so that each receipt contains all of the information required by paragraph (1)(b).
(3) A manager must make out a receipt in accordance with this clause:
(a) in the case of a payment made by electronic transfer of funds into a manager’s trust account—immediately the manager receives official confirmation that the payment has been made (whether that is by way of receipt by the manager of a statement from a financial institution or some other way, whichever occurs sooner); or
(b) in any other case—immediately on receipt of payment.
40 Payment of trust money
(1) A manager must not make a payment of trust money in cash.
Maximum penalty: 5 penalty units.
(2) When a manager makes a payment of trust money by cheque, the manager:
(a) must ensure that the cheque is marked with the name of the manager and the words “Trust Account”; and
(b) must:
(i) cause the cheque to be crossed and endorsed “Not negotiable”; or
(ii) obtain from the person receiving the cheque a receipt that complies with subclause (4) and keep the receipt as part of the manager’s records.
Maximum penalty: 5 penalty units.
(3) When a manager makes a payment of trust money by cheque, the manager must prepare and keep as part of the manager’s records a cheque stub or voucher containing the following information:
(a) the date and reference number of the cheque;
(b) the name of the payee;
(c) the client name or reference and brief particulars of the purpose of the payment;
(d) the amount of the cheque.
(4) The receipt must be legible and contain the following information:
(a) the date and reference number of the cheque;
(b) particulars identifying the trust account against which the cheque is drawn;
(c) the name of the payee;
(d) brief particulars of the purpose of the payment;
(e) the amount of the cheque.
(5) When a manager authorises the payment of trust money by electronic transfer of funds, the manager:
(a) must prepare and keep as part of the manager’s records the following information:
(i) the date and reference number of the payment;
(ii) the name of the payee;
(iii) the body corporate name or reference and brief particulars of the purpose of the payment;
(iv) the name or style of the account to which the payment is made, its number and the identifying numbers of the receiving bank or institution and its branch;
(v) the amount of the payment; and
(b) must, on receiving official written confirmation that the payment has been made, keep that confirmation as part of the manager’s records.
41 Audit of trust accounts—section 126
(1) For the purposes of paragraph 126(1)(a), the audit period in respect of which a manager must have the accounts and records audited is a financial year.
(2) In carrying out an audit, the auditor must:
(a) make checks that will enable the auditor to give an opinion as to whether the manager has, during the period covered by the audit, complied with this Act relating to the manager’s accounts and records; and
(b) ascertain what trust accounts were kept by the manager during that period; and
(c) make a general test examination of any trust account kept by the manager and of the passbooks and statements relating to any such account during that period; and
(d) make a comparison as to no fewer than 2 dates (1 to be the last day of the period of the audit and 1 other to be a date within that period selected by the auditor) between:
(i) the liabilities of the manager to the manager’s clients as shown by the manager’s trust ledger accounts and the records kept under this Schedule; and
(ii) the aggregate of the balances standing to the credit of the manager’s trust account; and
(e) ask for such information and explanations as the auditor may require for the purposes of this clause.
(3) For the purposes of paragraph 126(1)(b), the statement relating to the audit must be prepared by the auditor and must include all matters relating to the manager’s accounts and records that should, in the auditor’s opinion, be communicated to the body corporate and, in particular, deal with each of the following matters:
(a) whether the accounts and records appear to have been kept regularly and properly written up at all times;
(b) whether the accounts and records have been ready for examination at the periods appointed by the auditor;
(c) whether the manager has complied with the auditor’s requirements;
(d) whether, at any time during the period of the audit, the manager’s trust account was overdrawn and, if so, the full explanation for that given by the manager;
(e) whether the manager has, or has had, any debit balances in his or her trust account and the explanation or reason for such a debit given by the manager;
(f) whether the auditor has received and examined the notice given to the auditor under clause 42 and the result of that examination;
(g) if the manager uses a computer program to keep the manager’s accounts and records, whether the program allows for the accounts and records to be conveniently and properly audited.
(4) The auditor must attach to the auditor’s statement a copy of the manager’s notice delivered to the auditor under subclause 42(1).
(5) The auditor must verify the statement by statutory declaration and give a signed copy of the statement to the manager.
(6) If the auditor in the course of auditing the manager’s accounts and records discovers:
(a) that they are not kept in a manner that enables them to be properly audited; or
(b) a matter that appears to the auditor to involve dishonesty or a breach of the law by the manager; or
(c) a loss or deficiency of trust money or a failure to pay or account for trust money; or
(d) a failure to comply with this Act;
the auditor must, as soon as possible, give a report in respect of the discovery to the Commonwealth Minister and the manager concerned.
Maximum penalty: 5 penalty units.
(7) However, the auditor is not required to give a report to the Commonwealth Minister in respect of the discovery of a loss, deficiency or failure if the auditor is satisfied that:
(a) bringing the discovery to the attention of the manager or body corporate will adequately deal with the matter; and
(b) the loss, deficiency or failure does not involve dishonesty or a breach of the law.
(8) For the purposes of paragraph 126(2)(b), a manager must lodge an audit statement or declaration within 2 months after the end of each audit period.
42 Manager’s statement
(1) A manager who is required to have accounts and records audited must, before the completion of the audit, certify:
(a) under his or her hand; or
(b) in the case of a firm of managers—under the hands of not less than 2 partners of the firm; or
(c) in the case of a body corporate manager—under the hands of not less than 2 directors of the body corporate;
and deliver to the auditor a notice setting out in detail, as of the last day of the period to which the audit relates, particulars of:
(d) the names of all bodies corporate on whose behalf the manager is holding trust money and the amount of the credit of each such body corporate; and
(e) all negotiable or bearer securities or deposit receipts in the name of the manager which represent money drawn from the manager’s trust account and which were held by the manager on that day; and
(f) the names of the trust accounts in which the balance of the manager’s trust money is lodged and the balances on that date of those accounts; and
(g) if the trust account balances are not in agreement with the balances of the manager’s ledger accounts—a statement reconciling those balances.
Maximum penalty: 5 penalty units.
(2) The notice must be verified by statutory declaration:
(a) of the manager; or
(b) in the case of a firm of managers—of not less than 2 partners of the firm; or
(c) in the case of a body corporate manager—of not less than 2 directors of the body corporate.
(3) The manager must give the auditor making the next audit of the manager’s accounts and records:
(a) at the request of the auditor, a copy of the notice, together with a signed copy of the auditor’s statement of the last audit of the manager’s accounts and records; or
(b) if the manager’s accounts and records are being audited for the first time or, if for any other reason a copy of the notice cannot be produced for the purposes of the audit—before completion of the audit, a notice containing the same particulars as to money, negotiable or bearer securities and deposit receipts held on the first day of the period to which the audit relates.
Maximum penalty: 5 penalty units.
43 Certain persons may not audit accounts and records of manager
A person must not audit the accounts and records of a manager if the person:
(a) is, or has been within 2 years, an employee or partner of the manager; or
(b) is an employee or partner of another manager carrying on business as a manager; or
(c) is a manager carrying on business as a manager.
Maximum penalty: 5 penalty units.
44 Holding of deposit and other contract money when lot is pre‑sold—section 149
(1) For the purposes of subsection 149(1), a provision of a contract of sale that provides for any consideration payable by the purchaser prior to the deposit of the plan to be held on trust by a specified legal practitioner, registered agent or registered conveyancer until the plan is deposited must:
(a) be printed in bold in a font size of not less than 14 points; and
(b) be specifically brought to the attention of the purchaser by the vendor; and
(c) be initialled by, or on behalf of, both the vendor and the purchaser.
(2) If a contract for the sale of a lot in a proposed community scheme specifies a period for the purposes of paragraph 149(4)(a), that provision of the contract must:
(a) be printed in bold in a font size of not less than 14 points; and
(b) be specifically brought to the attention of the purchaser by the vendor; and
(c) be initialled by, or on behalf of, both the vendor and the purchaser.
Part 4—Fees
45 Fees
There is payable to the Registrar for a matter set out in the following table the fee set out in the table for that matter.
| Fees |
| Item | Matter for which fee is payable | Fee
(fee units) |
| 1 | Preliminary examination of plan to be lodged with application before application is lodged (section 152): | |
| | (a) for application for division of land by plan of community division (section 21): | |
| | (i) if there are 6 lots or less; | 16 |
| | (ii) if there are more than 6 lots; | 32 |
| | (b) for any other application | 16 |
| 2 | Application for division of land by plan of community division (section 21): | |
| | (a) for examination of application; | 13 |
| | (b) for examination of plan of community division not subject to prior approval under section 152: | |
| | (i) if there are 6 lots or less; | 16 |
| | (ii) if there are more than 6 lots; | 32 |
| | (c) for deposit of plan of community division; | 4 |
| | (d) for each lot requiring issue of certificate of title; | 2 |
| | (e) for filing of scheme description; | 5 |
| | (f) for filing of rules; | 5 |
| | (g) for filing of development contract | 5 |
| 3 | Application to amend schedule of lot entitlements (section 27) | 5 |
| 4 | Filing of copy of certified scheme description as amended (section 35) | 5 |
| 5 | Filing of certified copy of rules as varied (section 39) | 5 |
| 6 | Maximum fee for purchase from body corporate of copy of rules (section 47) | 1 |
| 7 | Fee for purchase from Registrar of copy of rules filed with plan of community division (section 47) | 2 |
| 8 | Filing of certified copy of development contract as varied or agreement to terminate development contract (section 52) | 5 |
| 9 | Maximum fee for purchase from body corporate of copy of development contract (section 53) | 1 |
| 10 | Fee for purchase from Registrar of copy of development contract filed with plan of community division (section 53) | 2 |
| 11 | Application for amendment of deposited community plan (section 54): | |
| | (a) for examination of application; | 10 |
| | (b) for examination of plan to be substituted or sheets of plan to be substituted or added if plan not subject to prior approval under section 152; | 16 |
| | (c) for each lot requiring issue of certificate of title; | 2 |
| | (d) for filing of amended scheme description | 5 |
| 12 | Application for division of development lot in pursuance of development contract and consequential amendment of community plan (section 60): | |
| | (a) for examination of application; | 10 |
| | (b) for examination of plan to be substituted or sheets of plan to be substituted or added if plan not subject to prior approval under section 152; | 16 |
| | (c) for each lot requiring issue of certificate of title | 2 |
| 13 | Application for amalgamation of deposited community plans (section 62): | |
| | (a) for examination of application; | 10 |
| | (b) for examination of plan of community division not subject to prior approval under section 152; | 16 |
| | (c) for deposit of plan of community division; | 4 |
| | (d) for each lot requiring issue of certificate of title; | 2 |
| | (e) for filing of scheme description; | 5 |
| | (f) for filing of rules | 5 |
| 14 | Application for cancellation of deposited community plan (section 71): | |
| | (a) for examination of application; | 10 |
| | (b) if application is for cancellation of primary plan: | |
| | (i) for examination of plan that delineates outer boundaries of primary parcel; | 16 |
| | (ii) for filing of plan; | 4 |
| | (c) for each certificate of title to be issued | 2 |
| 15 | Application to note Court order for cancellation of community plan (sections 66 and 69): | |
| | (a) for noting the order; | 10 |
| | (b) if application is for cancellation of primary plan: | |
| | (i) for examination of plan that delineates outer boundaries of primary parcel; | 16 |
| | (ii) for filing of plan; | 4 |
| | (c) for each certificate of title to be issued | 2 |
| 16 | Filing of notice of appointment, removal or replacement of administrator (section 99) | 5 |
| 17 | Submission of outer boundary plan (clause 7): | |
| | (a) for examination of plan; | 32 |
| | (b) for filing of plan | 4 |
| 18 | Fee for re‑examination of plan when amended after approval for deposit is given | 4 |
| 19 | Lodgement of any other document required by this Act | 5 |
Companies Act 1985 (Norfolk Island)
38 Section 3
Omit “the legislative powers of the Legislative Assembly permit,”, substitute “possible,”.
38A Section 6
Insert:
COVID‑19 period means the period beginning on 21 July 2020 and ending on 31 December 2020.
statutory minimum means:
(a) during the COVID‑19 period—$20,000; or
(b) otherwise—$2,000.
statutory period means:
(a) with respect to demands served during the COVID‑19 period—6 months; or
(b) otherwise—21 days.
38B Paragraph 468(2)(a)
Omit “$1,000”, substitute “the statutory minimum”.
38C Paragraph 468(2)(a)
Omit “21 days”, substitute “the statutory period”.
38D Paragraph 569(2)(a)
Omit “$1000”, substitute “the statutory minimum”.
38E Paragraph 569(2)(a)
Omit “3 weeks”, substitute “the statutory period”.
39 Subsection 608F(3)
Repeal the subsection.
40 Subsection 608H(7)
Omit “Such guidelines are a disallowable instrument for the purposes of section 41A of the Interpretation Act 1979.”.
41 Subsection 608I(1)
Omit “Such a notification is a disallowable instrument for the purposes of section 41A of the Interpretation Act 1979.”.
42 Subsection 608I(4)
Omit “Such an exemption is a disallowable instrument for the purposes of section 41A of the Interpretation Act 1979.”.
42AA After section 645
Insert:
645A Offence relating to incurring of debts—temporary relief in response to the coronavirus
(1) Subsection 645(1) does not apply in relation to a person and a debt incurred by a company if the debt is incurred:
(a) in the ordinary course of the company’s business; and
(b) during the COVID‑19 period; and
(c) before any appointment during that period of an administrator, or liquidator, of the company.
(2) A person who wishes to rely on subsection (1) in proceedings against a person for an offence under subsection 645(1) bears an evidential burden in relation to that matter.
(3) In this section:
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.
42AB After Part 29
Insert:
Part 30—Meetings and company documents
Division 1—Meetings
674 Provisions about meetings
(1) The operation of the provisions specified in subsection (2) is modified as follows, in relation to each class of persons in relation to whom the provisions apply, subject to the conditions set out in subsection (3):
(a) a meeting may be held using one or more technologies that give all persons entitled to attend a reasonable opportunity to participate without being physically present in the same place, and paragraphs (b) to (e) of this subsection apply if the meeting is held in that way;
(b) all persons so participating in the meeting are taken for all purposes (for example, a quorum requirement) to be present at the meeting while so participating;
(c) a vote taken at the meeting must be taken on a poll, and not on a show of hands, by using one or more technologies to give each person entitled to vote the opportunity to participate in the vote in real time and, where practicable, by recording their vote in advance of the meeting;
(d) a requirement to allow an opportunity for persons attending the meeting to speak (for example, by asking questions) may be complied with by using one or more technologies that allow that opportunity;
(e) a proxy may be appointed using one or more technologies specified in the notice of the meeting;
(f) notice of a meeting may be given, and any other information to be provided with notice of a meeting, or at or in relation to a meeting, may be provided, using one or more technologies to communicate to those entitled to receive notice of the meeting:
(i) the contents of the notice and the other information; or
(ii) details of an online location where the items covered by subparagraph (i) can be viewed or from where they can be downloaded.
Example: A company has email addresses for some of its members. Under this paragraph the company could send those members an email setting out or attaching notice of a meeting, and other material relating to the meeting, or providing a link to where the notice and other material can be viewed or downloaded. To the other members the company could send a letter or postcard setting out a URL for viewing or downloading the notice and other material.
(2) The provisions specified are each provision of this Act, the regulations and the rules, that:
(a) requires or permits a meeting to be held, or regulates giving notice of a meeting or the conduct of a meeting; or
(b) gives effect to, or provides a means of enforcing, a provision in the constitution of a company, or in any other arrangement, that requires or permits a meeting to be held, or regulates giving notice of a meeting or the conduct of a meeting.
(3) The modifications in subsection (1) are subject to the following conditions:
(a) the person required or permitted to give notice of a meeting that is held as mentioned in paragraph (1)(a) must include in the notice information about how those entitled to attend can participate in the meeting (including how they can participate in a vote taken at the meeting, and speak at the meeting, to the extent they are entitled to do so);
(b) if notice of the meeting had already been given before the commencement of this section, the person required or permitted to give notice of the meeting must, at least 7 days before the meeting is held, give a fresh notice of the meeting that includes the information referred to in paragraph (a) of this subsection;
(c) if a person (the appointer) is entitled to attend the meeting, or to vote at the meeting, by proxy, the person conducting the meeting must treat a duly appointed proxy in the same way as the appointer would be entitled or required to be treated if he or she attended the meeting in person.
Division 2—Execution of company documents
675 Methods of executing document
(1) The operation of section 111 of the Act is modified, as set out in this section, in relation to companies, directors of companies, company secretaries, and persons having dealings with companies.
(2) In this section:
document includes a document in electronic form.
(3) A company may also execute a document without using a common seal if 2 directors of the company, or a director and a company secretary of the company, as the case requires, either:
(a) sign a copy or counterpart of the document that is in a physical form; or
(b) comply with subsection (4) of this section in relation to an electronic communication (within the meaning of the Electronic Transactions Act 1999 of the Commonwealth).
The copy, counterpart or electronic communication must include the entire contents of the document, but need not include the signature of another person signing the document nor any material included in the document because of subsection (4) of this section.
(4) A person complies with this subsection if:
(a) a method is used to identify the person in the electronic communication and to indicate the person’s intention in respect of the contents of the document; and
(b) the method:
(i) is as reliable as appropriate for the purpose for which the company is executing the document, in light of all the circumstances, including any relevant agreement; or
(ii) is proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence.
676 Assumptions that can be made about execution of document
(1) The operation of section 93 of the Act is modified, as set out in this section, in relation to companies and persons having dealings with companies.
(2) A reference to a document appearing to have been duly sealed in accordance with paragraph 93(3)(e) of the Act includes a reference to a document (including a document in electronic form) appearing to have been executed in accordance with section 111 of the Act operating as modified by section 675.
Division 3—Miscellaneous
677 Effect of modified provisions
Anything done in accordance with the modified operation of provisions modified by this Part is as valid and effective for all purposes as if it had been done in accordance with those provisions in their unmodified operation.
Companies Regulations 1986 (Norfolk Island)
42A Paragraph 44(a)
Repeal the paragraph, substitute:
(a) a person who is a gaoler for the purposes of the Administration Act 1936;
Conveyancing Act 1913 (Norfolk Island)
42B Subsection 4(1)
Omit “Administrator”, substitute “Chief Executive Officer”.
Coroners Act 1993 (Norfolk Island)
43 Paragraph 11(1)(m)
Omit “, in accordance with the advice of the Executive Council,”.
43A Subparagraph 11(1A)(b)(i)
Omit “such as being a permanent resident or the holder of a permit under the Immigration Act 1980”.
43AA Subsection 37(2)
Omit “Minister determines”, substitute “Coroner directs”.
Court of Petty Sessions Act 1960 (Norfolk Island)
43AL Subsection 4(1)
Insert:
applied law means a law of New South Wales as in force in the Territory under section 18A of the Norfolk Island Act 1979 of the Commonwealth.
audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places.
43ALA Subsection 4(1) (definition of capital offence)
Repeal the definition.
43ALB Subsection 4(1)
Insert:
continued law means:
(a) a law continued in force in the Territory by section 16 of the Norfolk Island Act 1979 of the Commonwealth; or
(b) a Legislative Assembly law, or a law made under a Legislative Assembly law, continued in force in the Territory by section 16A of that Act.
video link means facilities that enable audio and visual communication between persons in different places.
43AM After section 28
Insert:
28A Exercise of powers etc. by Magistrate anywhere in Australia
(1) A Magistrate may, anywhere in Australia (whether in the Territory or not), exercise a power, or perform a function, that is conferred on him or her by or under a law in force in the Territory. It does not matter whether the power or function is conferred on the Magistrate as a judicial officer or in a personal capacity.
Note: Section 15 of the Norfolk Island Act 1979 of the Commonwealth describes laws in force in the Territory.
(2) If the power or function may be exercised or performed on application, the application may be made to the Magistrate when he or she is anywhere in Australia.
(3) If the application is made to the Magistrate when either or both of the Magistrate and the applicant are outside the Territory, the application may be made by audio link, video link or any other means of communication (whether electronic or not).
(4) If the exercise of the power, or the performance of the function, described in subsection (1) involves the Magistrate giving (however described) a document, the Magistrate may do so by post, fax or any other means of communication (whether electronic or not).
(5) This section has effect despite:
(a) a continued law; and
(b) an applied law.
43AN At the end of section 33
Add:
(4) This section does not limit section 33B (about sittings outside Norfolk Island).
43AO Subsections 33B(1) to (7)
Repeal the subsections, substitute:
(1) For the purposes of hearing or determining a matter or conducting a proceeding, the Court may sit at a place in Australia outside the Territory, and at a time, that the Chief Magistrate thinks fit, if he or she is satisfied that the sitting of the Court at that place at that time is expedient and not contrary to the interests of justice.
(2) At any time when a matter or proceeding is before the Court for hearing, determination or conduct at a sitting of the Court, the Chief Magistrate may order that the hearing, determination or conduct of the matter or proceeding be adjourned and continued at a sitting of the Court to be held at a specified place in Australia outside the Territory.
Note: The Court may sit in Australia outside the Territory only if the Chief Magistrate is satisfied as described in subsection (1).
(3) At any time when a matter or proceeding is not before the Court for hearing, determination or conduct, the Chief Magistrate may:
(a) order:
(i) in any case—that the matter or proceeding be heard, determined, conducted or continued at a sitting of the Court to be held at a place that is in Australia outside the Territory and is specified in the order; or
(ii) if the Chief Magistrate had previously ordered that the matter or proceeding be heard, determined, conducted or continued at a sitting of the Court to be held at a place in Australia outside the Territory—that the matter or proceeding be heard, determined, conducted or continued at a sitting of the Court to be held in the Territory; and
(b) revoke any order previously made by the Chief Magistrate about the place of a sitting of the Court to be held for hearing, determining, conducting or continuing the matter or proceeding.
Note: The Court may sit in Australia outside the Territory only if the Chief Magistrate is satisfied as described in subsection (1).
(4) If the Chief Magistrate makes an order under this section at the instance of a party to the matter or proceeding, the Chief Magistrate may give directions about serving a copy of the order on the other parties to the matter or proceeding.
(5) The Court may allow a person to appear before it by audio link or video link if:
(a) the Court is sitting in the Territory and the person is outside the Territory; or
(b) the Court is sitting outside the Territory (whether the person is in the Territory or not).
(6) If an order is made under this section affecting the place of a sitting of the Court, the Court’s power to discharge a person upon entry into a recognisance to appear at a time and place specified in the recognisance extends to imposing a condition that the person appear at the place the Court is to sit (whether that place is in or outside the Territory).
43AP Subsection 33B(9)
Repeal the subsection, substitute:
(9) This section has effect despite:
(a) a continued law; and
(b) an applied law.
43AT Paragraph 45(a)
Omit “the offence is a capital offence or”.
43AU Paragraph 45(a)
After “in respect of the offence”, insert “is imprisonment for life or”.
43AW Subsection 59(1)
Omit “death or”.
43AX Sections 107, 116, 117 and 140
Omit “$10,000” (wherever occurring), substitute “$60,000”.
43AY Subsection 221(1)
Omit “(1)”.
43AZ Subsection 221(2)
Repeal the subsection.
43B Paragraph 246A(4)(d)
Omit “Public Service of Norfolk Island”, substitute “public service”.
Court Procedures Act 2007 (Norfolk Island)
44 Subsection 8(2) (note)
Omit “s. 20B”.
45 At the end of subsection 8(4)
Add “for the purposes of section 41A of the Interpretation Act 1979”.
46 Subsection 8(4) (note)
Repeal the note.
47 Subsection 10(3) (note)
Omit “the Interpretation Act 1979, 23A, 23B and 24”, substitute “sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 of the Commonwealth applying because of section 8A of the Interpretation Act 1979”.
48 Subsection 13(3)
Repeal the subsection.
48AA Subparagraph 15(2)(d)(i)
Omit “under a Norfolk Island law”.
48A Section 20 (definition of Administration)
Repeal the definition, substitute:
Administration means:
(a) the Norfolk Island Regional Council; or
(b) the Commonwealth Minister exercising a power, or performing a function, relating to Norfolk Island; or
(c) a territory instrumentality.
48B Subsection 21(2)
Repeal the subsection.
48C Subsection 28(3) (definition of territory instrumentality)
Repeal the definition.
48D Sections 33 and 34
Repeal the sections.
49 Subsection 51(1) (note 1)
Repeal the note.
50 Subsection 51(1) (note 2)
Omit “2”.
51 Section 54 (note)
Repeal the note.
51A Paragraph 77(a)
Omit “of such amount per week as is equal to the amount of the minimum rate for the time being determined under the Employment Act 1988”, substitute “equal to the national minimum wage applying to an award/agreement free employee in Norfolk Island under Part 2‑6 of the Fair Work Act 2009 of the Commonwealth”.
51B Paragraph 77(b)
Omit “such amount per week as is equal to 3/4 of the amount of the minimum rate for the time being payable determined under the Employment Act 1988”, substitute “3/4 of the national minimum wage applying to an award/agreement free employee in Norfolk Island under Part 2‑6 of the Fair Work Act 2009 of the Commonwealth”.
51C Dictionary at the end of the Act (definition of Chief Executive Officer)
Repeal the definition.
51D Dictionary at the end of the Act (definition of public servant)
Repeal the definition.
Crimes (Forensic Procedures) Act 2002 (Norfolk Island)
52 Paragraph (e) of Schedule 1
Omit “Executive Council of Norfolk Island”, substitute “Commonwealth Minister”.
Criminal Code 2007 (Norfolk Island)
52A Section 2
Repeal the section.
53 Subsection 4(1) (note)
Omit “(2)(a)”.
53A Section 5
Repeal the section.
53AA Subsection 6(1)
After “The”, insert “main”.
53AB Subsection 6(1)
Omit “Norfolk Island laws”, substitute “Norfolk Island legislation”.
53AC Subsection 6(2)
Omit “It contains all the general principles of criminal responsibility that apply to any offence”, substitute “This Chapter contains all the general principles of criminal responsibility that apply to any offence against Norfolk Island legislation”.
53AD Section 7
Omit “Norfolk Island laws”, substitute “Norfolk Island legislation”.
53AE At the end of section 7
Add:
Note: Part 2.7 also applies to offences against applied NSW laws.
53B Section 8
Repeal the section, substitute:
8 Certain provisions of this Chapter do not apply to certain pre‑2008 offences
(1) Despite section 7, the provisions of this Chapter (other than the applied provisions) do not apply to a pre‑2008 offence unless:
(a) the offence has been omitted and remade (with or without changes) on or after 1 January 2008; or
(b) an enactment, or a law made under an enactment, whether made before or after the commencement of this section, expressly provides for the provisions of this Chapter to apply to the offence.
(2) In interpreting the applied provisions in relation to an offence, the other provisions of this Act may be considered.
(3) In this section:
omitted and remade: an offence has not been omitted and remade if it has been amended without being omitted and remade.
pre‑2008 offence means an offence that was in force before 1 January 2008.
53BA Section 9
Repeal the section.
53C Section 10
Repeal the section, substitute:
10 Definition of applied provisions
In this Act:
applied provisions means the following provisions of this Chapter:
(a) subsection 15(5) (Evidence of self‑induced intoxication);
(b) Division 2.3.1 (Lack of capacity—children);
(c) Division 2.3.2 (Lack of capacity—mental impairment);
(d) Division 2.3.3 (Intoxication);
(e) Part 2.4 (Extensions of criminal responsibility);
(f) Part 2.5 (Corporate criminal responsibility);
(g) Part 2.6 (Proof of criminal responsibility);
(h) Part 2.7 (Geographical application).
53CA Subsection 48(10)
Omit “the Minister or”.
53CB At the end of subsection 62(1)
Add:
Note: The definition of offence (together with the definition of law) in the dictionary at the end of this Act means that this subsection applies this Part to offences against Norfolk Island legislation (but not to offences against applied NSW laws). Subsection (1A) extends the application of this Part to offences against applied NSW laws.
53CC After subsection 62(1)
Insert:
(1A) This Part also:
(a) applies in relation to an offence against an applied NSW law in the same way as this Part applies in relation to an offence or an offence against a law; and
(b) applies in relation to an applied NSW law in the same way as this Part applies in relation to a law.
Note: An offence against an applied NSW law is not covered by the definition of offence in the dictionary at the end of this Act. An applied NSW law is not covered by the definition of law in the dictionary at the end of this Act.
53CCA Section 85
Repeal the section.
53CD Before paragraph 87(2)(a)
Insert:
(aa) chokes, suffocates or strangles another person; or
53D Subsection 105(6) (definition of applied provisions)
Repeal the definition.
53DAAA Section 108
Repeal the section, substitute:
108 Meaning of sexual intercourse in this Part
(1) In this Part, sexual intercourse means:
(a) the penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person; or
(b) the penetration, to any extent, of the genitalia or anus of a person, by an object, carried out by another person; or
(c) fellatio; or
(d) cunnilingus; or
(e) the continuation of any activity mentioned in paragraph (a), (b), (c) or (d).
(2) In this Part, sexual intercourse does not include an act of penetration that:
(a) is carried out for a proper medical or hygienic purpose; or
(b) is carried out for a proper law enforcement purpose.
(3) In this section:
genitalia includes surgically constructed or altered genitalia.
object includes an animal.
108A Meaning of act of indecency in this Part
In this Part:
act of indecency means any act, other than sexual intercourse, that:
(a) is of a sexual or indecent nature (including an indecent assault); and
(b) involves the human body, or bodily actions or functions;
whether or not the act involves physical contact between people.
53DAAB Subsection 113(1)
Omit “17 years”, substitute “20 years”.
53DAAC After section 113
Insert:
113A Sexual intercourse with person aged at least 16 but under 18—defendant in position of trust or authority
(1) A person (the defendant) commits an offence if:
(a) the defendant engages in sexual intercourse with another person; and
(b) the other person is at least 16, but less than 18, years of age; and
(c) the defendant is in a position of trust or authority in relation to the other person for the purposes of the Criminal Code of the Commonwealth (see section 272.3 of that Code).
Penalty: Imprisonment for 10 years.
(2) For the purposes of subsection (1):
(a) absolute liability applies to paragraph (1)(b); and
(b) strict liability applies to paragraph (1)(c).
Note: For absolute liability, see section 24. For strict liability, see section 23.
(3) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that:
(a) at the time of the alleged offence, there existed between the defendant and the other person a marriage that was valid, or recognised as valid, under a law in force in:
(i) the place where the marriage was solemnised; or
(ii) Norfolk Island; or
(iii) the place of the defendant’s residence or domicile; and
(b) when the marriage was solemnised:
(i) the marriage was genuine; and
(ii) the other person was at least 16 years of age.
Note: A defendant bears a legal burden in relation to the matters in this subsection, see section 59.
(4) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that, at the time of the alleged offence, the defendant believed on reasonable grounds that the other person was of or above the age of 18 years.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 59.
53DA At the end of section 114
Add:
(10) However, a person may be arrested for, charged with, or remanded in custody or granted bail for, an offence against subsection (2) before the consent has been given.
53DAA Subsection 118(1)
Omit “5 years”, substitute “7 years”.
53DAB Subsection 118(2)
Omit “7 years”, substitute “9 years”.
53DAC After section 119
Insert:
119A Act of indecency with person aged at least 16 but under 18—defendant in position of trust or authority
(1) A person (the defendant) commits an offence if:
(a) the defendant commits an act of indecency on, or in the presence of, another person; and
(b) the other person is at least 16, but less than 18, years of age; and
(c) the defendant is in a position of trust or authority in relation to the other person for the purposes of the Criminal Code of the Commonwealth (see section 272.3 of that Code).
Penalty: Imprisonment for 7 years.
(2) For the purposes of subsection (1):
(a) absolute liability applies to paragraph (1)(b); and
(b) strict liability applies to paragraph (1)(c).
Note: For absolute liability, see section 24. For strict liability, see section 23.
(3) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that:
(a) at the time of the alleged offence, there existed between the defendant and the other person a marriage that was valid, or recognised as valid, under a law in force in:
(i) the place where the marriage was solemnised; or
(ii) Norfolk Island; or
(iii) the place of the defendant’s residence or domicile; and
(b) when the marriage was solemnised:
(i) the marriage was genuine; and
(ii) the other person was at least 16 years of age.
Note: A defendant bears a legal burden in relation to the matters in this subsection, see section 59.
(4) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that, at the time of the alleged offence, the defendant believed on reasonable grounds that the other person was of or above the age of 18 years.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 59.
53DB At the end of Part 3.6
Add:
121A Procuring a young person for a child sex offence
(1) A person (the defendant) commits an offence if:
(a) the defendant procures another person (the young person) for an act that constitutes, or would if it occurred in Norfolk Island constitute, a child sex offence (whether or not involving the defendant); and
(b) the young person is someone:
(i) who is under the age of 10 years; or
(ii) who the defendant believes to be under the age of 10 years; and
(c) the defendant is of or above the age of 18 years.
Penalty: Imprisonment for 15 years.
(2) A person (the defendant) commits an offence if:
(a) the defendant procures another person (the young person) for an act that constitutes, or would if it occurred in Norfolk Island constitute, a child sex offence (whether or not involving the defendant); and
(b) the young person is someone:
(i) who is under the age of 16 years; or
(ii) who the defendant believes to be under the age of 16 years; and
(c) the defendant is of or above the age of 18 years.
Penalty: Imprisonment for 12 years.
(3) Absolute liability applies to subparagraph (1)(b)(i), paragraph (1)(c), subparagraph (2)(b)(i) and paragraph (2)(c).
Note: For absolute liability, see section 24.
(4) A person may be found guilty of an offence against subsection (1) or (2) even if it is impossible for the act that constitutes or would constitute a child sex offence to take place.
(5) For the purposes of subsections (1) and (2), it does not matter that the young person is a fictitious person represented to the defendant as a real person.
(6) It is a defence to a prosecution for an offence against subsection (2) if the defendant proves that, at the time the defendant engaged in the conduct constituting the offence against subsection (2), he or she believed on reasonable grounds that the young person was of or above the age of 16 years.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 59.
(7) It is not an offence to attempt to commit, or to incite the commission of, an offence against subsection (1) or (2).
121B Grooming a person for a child sex offence
(1) A person (the defendant) commits an offence if:
(a) the defendant engages in conduct in relation to a person (the groomed person); and
(b) the defendant does so with the intention of making it easier to procure a person (the young person), who need not be the groomed person, for an act that constitutes, or would if it occurred in Norfolk Island constitute, a child sex offence (whether or not involving the defendant); and
(c) the young person is someone:
(i) who is under the age of 10 years; or
(ii) who the defendant believes to be under the age of 10 years; and
(d) the defendant is of or above the age of 18 years.
Penalty: Imprisonment for 15 years.
(2) A person (the defendant) commits an offence if:
(a) the defendant engages in conduct in relation to a person (the groomed person); and
(b) the defendant does so with the intention of making it easier to procure a person (the young person), who need not be the groomed person, for an act that constitutes, or would if it occurred in Norfolk Island constitute, a child sex offence (whether or not involving the defendant); and
(c) the young person is someone:
(i) who is under the age of 16 years; or
(ii) who the defendant believes to be under the age of 16 years; and
(d) the defendant is of or above the age of 18 years.
Penalty: Imprisonment for 12 years.
(3) Absolute liability applies to subparagraph (1)(c)(i), paragraph (1)(d), subparagraph (2)(c)(i) and paragraph (2)(d).
Note: For absolute liability, see section 24.
(4) A person may be found guilty of an offence against subsection (1) or (2) even if it is impossible for the act that constitutes or would constitute a child sex offence to take place.
(5) For the purposes of subsections (1) and (2), it does not matter that the groomed person or the young person is a fictitious person represented to the defendant as a real person.
(6) It is a defence to a prosecution for an offence against subsection (2) if the defendant proves that, at the time the defendant engaged in the conduct constituting the offence against subsection (2), he or she believed on reasonable grounds that the young person was of or above the age of 16 years.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 59.
(7) It is not an offence to attempt to commit, or to incite the commission of, an offence against subsection (1) or (2).
121C Definitions for procuring and grooming offences
In sections 121A and 121B:
child sex offence means an offence against:
(a) this Part; or
(b) Part 3.7 (child pornography); or
(c) Part 3.10 (sexual servitude).
procure a person for an act that constitutes, or would constitute, a child sex offence includes:
(a) encourage, entice or recruit the person in relation to such an act; or
(b) induce the person (whether by threats, promises or otherwise) in relation to such an act.
53DBA Subsection 125(6) (at the end of the definition of act of a sexual nature)
Add “(both within the meaning of Part 3.6)”.
53DBB Subsection 126(1)
Omit “122, 123 (3) (b)”, substitute “112, 113(3)(b)”.
53DC Subsection 129(5)
Omit “or 120(1)”, substitute “, 120(1), 121A(1) or 121B(1)”.
53DD Subsection 129(5)
Omit “or 120(2)” (wherever occurring), substitute “, 120(2), 121A(2) or 121B(2)”.
53DE At the end of section 129
Add:
(6) However, a person may be found guilty of an offence in accordance with this section only if the person has been accorded procedural fairness in relation to that finding of guilt.
53DF Section 130
Before “In an indictment”, insert “(1)”.
53DG At the end of section 130
Add:
(2) In an indictment for an offence against section 113A, a count may be added for an offence against section 119A.
53DH Section 131
Omit “118 or 119”, substitute “118, 119 or 119A”.
53E Subsection 196(3) (paragraph (a) of the definition of Administration)
Omit “within the meaning of the Public Service Act 2014”.
53F Subsection 196(3) (paragraph (c) of the definition of Administration)
Omit “within the meaning of the Public Service Act 2014; or”, substitute “;”.
53G Subsection 211(11)
Omit “the Minister or”.
53H Section 281 (definition of controlled drug)
Repeal the definition, substitute:
controlled drug means a prohibited drug within the meaning of the NSW Drug Misuse and Trafficking Act.
53J Section 281 (definition of controlled plant)
Repeal the definition, substitute:
controlled plant means a prohibited plant within the meaning of the NSW Drug Misuse and Trafficking Act.
53K Section 281
Insert:
NSW Drug Misuse and Trafficking Act means the Drug Misuse and Trafficking Act 1985 (NSW) as in force at the commencement of the Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021.
53L Subsection 282(1)
Repeal the subsection, substitute:
(1) In this chapter:
commercial quantity of a controlled drug, or controlled plant, means the quantity specified for that drug or plant in column 4 of the table in Schedule 1 to the NSW Drug Misuse and Trafficking Act.
large commercial quantity of a controlled drug, or controlled plant, means the quantity specified for that drug or plant in column 5 of the table in Schedule 1 to the NSW Drug Misuse and Trafficking Act.
trafficable quantity of a controlled drug, or controlled plant, means the quantity specified for that drug or plant in column 1 of the table in Schedule 1 to the NSW Drug Misuse and Trafficking Act.
54 Section 323 (note at the end of the definition of sworn statement)
Omit “Interpretation Act 1979, s.12 (2)”, substitute “section 2B of the Acts Interpretation Act 1901 of the Commonwealth, applying because of section 8A of the Interpretation Act 1979”.
54A Subsection 349(1)
Omit “the Minister or”.
54AA Paragraph 353(2)(c)
Omit “$10 000”, substitute “$60,000”.
54B Subsection 375(1)
Omit “a territory law”, substitute “Norfolk Island legislation or an applied NSW law”.
54C Section 377
After “prosecution”, insert “of an offence against Norfolk Island legislation or an applied NSW law”.
54D Section 378
After “a trial”, insert “of an offence against Norfolk Island legislation or an applied NSW law”.
55 Subsection 381(3)
Repeal the subsection.
56 Section 382 (note)
Repeal the note.
56AA Dictionary
Insert:
applied NSW law means a law in force in Norfolk Island in accordance with section 18A of the Norfolk Island Act 1979 of the Commonwealth.
56A Dictionary (definition of Crown law officer)
Repeal the definition.
56B Dictionary (definition of law)
Repeal the definition, substitute:
law means Norfolk Island legislation or a provision of Norfolk Island legislation.
56BA Dictionary (definition of law of Norfolk Island)
Repeal the definition, substitute:
law of Norfolk Island means a law in force in Norfolk Island in accordance with section 15 of the Norfolk Island Act 1979 of the Commonwealth.
56C Dictionary
Insert:
Norfolk Island legislation means an enactment or legislation made under an enactment, except so far as the enactment:
(a) is a section 19A Ordinance; and
(b) has the effect (directly or indirectly) of:
(i) amending an applied NSW law so that the applied NSW law (as amended) provides for an offence; or
(ii) ending the suspension of the operation in Norfolk Island of an applied NSW law that provides for an offence.
Note: A section 19A Ordinance may indirectly have the effect of amending an applied NSW law by amending another section 19A Ordinance (e.g. the Norfolk Island Applied Laws Ordinance 2016) so it amends an applied NSW law. Likewise, a section 19A Ordinance may indirectly have the effect of ending the suspension of operation of an applied NSW law by amending another section 19A Ordinance so that it no longer suspends the operation of the applied NSW law.
56D The Schedule
Repeal the Schedule.
Criminal Procedure Act 2007 (Norfolk Island)
56E Section 3
Repeal the section.
57 Subsection 5(1)
Omit “the legislative power of the Legislative Assembly permits”, substitute “possible”.
57A Subsection 7(4)
Repeal the subsection.
57AA Subsection 7(5)
Insert:
audiovisual link means a system of 2‑way communication linking different places so that a person at any of them can be seen and heard at the other places.
57AC Subsection 7(5) (definitions of Chief Executive Officer and Crown law officer)
Repeal the definitions.
57AE Subsection 7(5)
Insert:
external place, for a proceeding, means a place other than the courtroom where the proceeding is heard.
57AG Subsection 7(5)
Repeal the following definitions:
(a) definition of public office;
(b) definition of public sector and public sector agency;
(c) definition of public service.
57AH Section 41
Before “not including”, insert “including bail proceedings but”.
57AI Paragraph 43(8)(c)
Omit “person”, substitute “accused”.
57AJ At the end of subsection 43(8)
Add:
; (d) that the accused be assessed by a medical practitioner or a psychiatrist.
57AK Paragraph 53(4)(b)
Omit “a protection order that is a domestic violence order under the Domestic Violence Act 1995 has not been made”, substitute “an apprehended violence order has not been made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI)”.
57AL Section 54 (heading)
Repeal the heading, substitute:
54 Seizure of firearms—apprehended violence orders
57AM Subsection 54(1)
Omit “In enforcing an order under the Domestic Violence Act 1995, section 15 (Protection orders‑firearms)”, substitute “If a court has made an apprehended violence order against a person that prohibits, or restricts, under paragraph 35(2)(d) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI), the possession by the person of one or more firearms”.
57AN Paragraph 54(1)(a)
Omit “respondent named in the order”, substitute “person”.
57AO Paragraph 54(1)(b)
After “licence”, insert “or permit”.
57AP Subsections 54(2), (3) and (4)
Omit “or licence” (wherever occurring), substitute “, licence or permit”.
57AQ Paragraph 54(5)(a)
Omit “or licence”, substitute “, licence or permit”.
57AR Paragraph 54(5)(a)
Omit “for the purpose of enforcing an order mentioned in that subsection”.
57AS Paragraph 54(5)(b)
Omit “has not been cancelled or suspended under the Domestic Violence Act 1995, section 15”, substitute “or permit is not suspended or cancelled”.
57AT Subsection 54(5)
Omit “the firearm, ammunition or licence shall be returned to the licensee”, substitute “the firearm, ammunition, licence or permit must be returned to the licensee or permittee”.
57AU Paragraph 54(5)(c)
Repeal the paragraph, substitute:
(c) the licensee or permittee satisfies the registrar of firearms that the licensee or permittee may lawfully possess the firearm, ammunition, licence or permit; and
57AV Paragraph 54(5)(d)
Omit “or licence”, substitute “, licence or permit”.
57AW Paragraph 54(5)(e)
Omit “Firearms Act 1997 to be in possession of the firearm, ammunition or licence”, substitute “Firearms and Prohibited Weapons Act 1997 to possess the firearm, ammunition, licence or permit”.
57AX Subsections 54(6) and (7)
Omit “Firearms Act 1997”, substitute “Firearms and Prohibited Weapons Act 1997”.
57AY Subsection 74(5) (definition of domestic violence offence)
Repeal the definition, substitute:
domestic violence offence has the meaning given by section 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI).
57B Section 110 (heading)
Repeal the heading, substitute:
110 Discharge of prisoner if case not to be proceeded with
57C Section 110
Omit “Minister”, substitute “Crown law officer”.
58 Subsection 112(1)
Omit “(1)”.
59 Subsection 112(2)
Repeal the subsection.
59D Chapter 6
Repeal the Chapter, substitute:
Chapter 6—Evidence of children
155 Definitions for this Chapter
In this Chapter:
court means:
(a) the Supreme Court; or
(b) the Court of Petty Sessions; or
(c) the Coroner’s Court.
proceeding means a proceeding to which this Chapter applies.
155A Meaning of give evidence in a proceeding by audiovisual link for this Chapter
In this Chapter:
give evidence in a proceeding by audiovisual link means to give evidence in the proceeding by audiovisual link from an external place which is linked to the courtroom by an audiovisual link.
155B Sworn or unsworn evidence
For the purposes of this Chapter, it does not matter whether evidence is to be, or is being, given on oath or otherwise.
155C Proceedings to which this Chapter applies
This Chapter applies to:
(a) a proceeding in the Supreme Court:
(i) for a trial on indictment in relation to the alleged commission of an offence against a law in force in Norfolk Island; or
(ii) for the passing of sentence in relation to the commission of an offence against a law in force in Norfolk Island; or
(iii) by way of an appeal from a conviction, order, sentence or other decision of the Court of Petty Sessions in a proceeding in relation to which this Chapter applies; or
(b) a proceeding in the Court of Petty Sessions on an information in relation to the alleged commission, or commission, of an offence against a law in force in Norfolk Island; or
(c) a proceeding under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI); or
(d) a proceeding under Chapter 5 or 6 of the Child Welfare Act 2009; or
(e) a proceeding by way of an inquest or inquiry in the Coroner’s Court.
155D Child giving evidence by audiovisual link
(1) This section applies if:
(a) a child is to give evidence in a proceeding; and
(b) the proceeding is to be heard in a courtroom; and
(c) the courtroom and an external place are linked by an audiovisual link.
(2) The child’s evidence must be given by audiovisual link unless the court otherwise orders.
(3) However, the evidence of a child who is an accused person in a proceeding is not to be given by audiovisual link.
(4) The court may make an order under subsection (2) only if satisfied that:
(a) the child prefers to give evidence in the courtroom; or
(b) if the order is not made:
(i) the proceeding may be unreasonably delayed; or
(ii) there is a substantial risk that the court will not be able to ensure that the proceeding is conducted fairly.
(5) While the child is at the external place to give evidence, the place is taken to be part of the courtroom.
155E Representation of child
(1) This section applies if:
(a) a child is to give evidence in a proceeding by audiovisual link; and
(b) the child is not separately represented by someone else; and
(c) the court considers that the child should be separately represented by someone else.
(2) The court may:
(a) order that the child be separately represented by someone else; and
(b) make any other order it considers necessary to arrange the separate representation.
155F Consequential orders
(1) This section applies if a child is to give evidence in a proceeding by audiovisual link.
(2) The court may make any order it considers appropriate:
(a) to ensure that the proceeding is conducted fairly; or
(b) to allow the child to identify a person or thing; or
(c) to allow the child to take part in a view or to watch a demonstration or experiment; or
(d) to allow part of the proceeding to be heard somewhere other than in the courtroom.
(3) The court may make any other order it considers appropriate, including, for example, an order stating:
(a) who may be with the child at the external place; or
(b) who must not be with the child at the external place; or
(c) who, in the courtroom, is to be able, or must not be able, to be heard, or seen and heard, by the child and people in the external place with the child; or
(d) who, in the courtroom, is to be able to see and hear the child and anyone else in the external place with the child; or
(e) how the audiovisual link is to operate.
(4) The court may order that a person be excluded from the external place while the child is giving evidence.
(5) The court may direct that an order under this section apply only to a particular part of the proceeding.
155G Making of orders
(1) The court may make an order under this Chapter in a proceeding on its own initiative or on the application of:
(a) a party to the proceeding; or
(b) the child or a person acting on the child’s behalf; or
(c) the child’s parent or guardian.
(2) For the purpose of making an order under this Chapter, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
155H Jury warning about inferences from child giving evidence by audiovisual link
(1) This section applies if:
(a) a child gives evidence in a proceeding by audiovisual link; and
(b) the proceeding is before a jury.
(2) The judge must warn the jury to the effect that the jury should not draw any inference against an accused person in the proceeding from the fact that the child’s evidence is given by audiovisual link.
155J Failure to comply with this Chapter
(1) If the evidence of a child is not given in accordance with this Chapter, the evidence is not inadmissible for that reason only.
(2) Failure to comply with this Chapter in relation to a proceeding does not affect the validity of the proceeding.
155K Child turns 18 during proceeding
If a child is to give evidence in a proceeding and the child turns 18 years old before the proceeding is finally disposed of, this Chapter continues to apply to the person for the proceeding.
Chapter 6A—Evidence of witnesses with disabilities or vulnerabilities
160 Meaning of proceeding for this Chapter
In this Chapter:
proceeding means a proceeding to which this Chapter applies.
160A Meaning of witness with a disability for this Chapter
For this Chapter, a witness with a disability is a person who gives evidence in a proceeding and has a mental or physical disability that affects the person’s ability to give evidence.
160B Proceedings to which this Chapter applies
This Chapter applies to:
(a) a proceeding in the Supreme Court:
(i) for a trial on indictment in relation to the alleged commission of an offence against a law in force in Norfolk Island; or
(ii) for the passing of sentence in relation to the commission of an offence against a law in force in Norfolk Island; or
(iii) by way of an appeal from a conviction, order, sentence or other decision of the Court of Petty Sessions in a proceeding in relation to which this Chapter applies; or
(b) a proceeding in the Court of Petty Sessions on an information in relation to the alleged commission, or commission, of an offence against a law in force in Norfolk Island; or
(c) a proceeding under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI); or
(d) a proceeding under Chapter 5 or 6 of the Child Welfare Act 2009; or
(e) a proceeding by way of an inquest or inquiry in the Coroner’s Court.
160C Child or witness with disability may have support person in court
(1) This section applies to any of the following people (a witness) giving evidence in a proceeding:
(a) a child;
(b) a witness with a disability.
(2) The court must, on application by a party that intends to call a witness, order that, while the witness gives evidence, the witness have a person (a support person) in the court who is:
(a) for a witness with a vision impairment—close enough to the witness for the court to be satisfied that the witness is aware of the person’s presence; or
(b) for any other witness—close to the witness and within the witness’s sight.
(3) The court may order that a witness have more than one support person if it considers it is in the interests of justice.
(4) The support person must not:
(a) speak for the witness during the proceeding; or
(b) otherwise interfere in the proceeding.
(5) Unless the court otherwise orders, the support person must not be, or be likely to be, a witness or party in the proceeding.
(6) If the proceeding is a trial by jury, the court must tell the jury that:
(a) a witness having a support person in the court while giving evidence is a usual practice; and
(b) the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the support person is present.
160D Witness with vulnerability may give evidence in closed court
(1) This section applies to a person (the witness) giving evidence in a proceeding if the court considers that the person has a vulnerability that affects the person’s ability to give evidence because of:
(a) the circumstances of the proceeding; or
(b) the person’s circumstances.
Note: The following are examples for subsection (1):
(a) the person is likely to suffer severe emotional trauma because of the nature of the alleged offence;
(b) the person is intimidated or distressed because of the person’s relationship to the accused person.
(2) The court may order that the court be closed to the public while all or part of the witness’s evidence (including evidence under cross‑examination) is given.
(3) In deciding whether to order that the court be closed to the public, the court must consider whether:
(a) the witness wants to give evidence in open court; and
(b) it is in the interests of justice that the witness give evidence in open court.
(4) However, an order under this section does not stop the following people from being in court when the witness gives evidence:
(a) a person nominated by the witness;
(b) a person who attends the proceeding to prepare a news report of the proceeding and is authorised to attend for that purpose by the person’s employer.
Note: Publishing certain information in relation to sexual offence proceedings is an offence (see section 167F).
(5) In this section, a reference to a person giving evidence includes the person giving evidence by the playing of an audiovisual recording of the evidence at a hearing under Subdivision C (sexual and violent offence proceedings: audiovisual recording of police interview admissible as evidence) of Division 2 of Chapter 7.
160E Making of orders under this Chapter—court not bound by rules of evidence
For the purpose of making an order under section 160C or 160D, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
59E Chapter 7 (heading)
Repeal the heading, substitute:
Chapter 7—Evidence in sexual, violent and domestic violence proceedings
59F Divisions 1, 2 and 3 of Chapter 7
Repeal the Divisions, substitute:
Division 1—Preliminary
165 Failure to comply with this Chapter
(1) If the evidence of the complainant or a similar act witness is not given in accordance with this Chapter, the evidence is not inadmissible for that reason only.
(2) Failure to comply with this chapter in relation to a proceeding does not affect the validity of the proceeding.
165A Meaning of relevant person for this Chapter
(1) In this Chapter:
relevant person, in relation to a person (the original person) means:
(a) a spouse, de facto partner, or intimate partner, of the original person; or
(b) a former spouse, former de facto partner, or former intimate partner, of the original person; or
(c) a relative of the original person; or
(d) a child of a spouse or de facto partner, or of a former spouse or former de facto partner, of the original person; or
(e) a parent of a child of the original person.
(2) In this section:
intimate partner of a person means someone with whom the person has an intimate relationship (whether they are members of the same household or not), but does not include:
(a) a spouse or de facto partner of the person; or
(b) another person with whom the person has a relationship only because a service is provided between them:
(i) for fee or reward; or
(ii) on behalf of another person (including a government or corporation); or
(iii) on behalf of an organisation the principal objects or purposes of which are charitable or benevolent.
(3) For the purposes of the definition of intimate partner in subsection (2), factors that indicate whether there is an intimate relationship between 2 people include, but are not limited to, the following:
(a) the extent to which each is personally dependent on the other;
(b) the extent to which each is financially dependent on the other (including any arrangements for financial support);
(c) the length of the relationship;
(d) the frequency of contact between each other;
(e) if there is, or has been, a sexual relationship;
(f) the extent to which each is involved in, or knows about, the other’s personal life;
(g) the degree of mutual commitment to a shared life;
(h) if the 2 people share care or support for children or other dependents.
165B Meaning of relative for this Chapter
(1) In this Chapter:
relative of a person (the original person):
(a) means the original person’s:
(i) parent, grandparent, step‑parent, father‑in‑law or mother‑in‑law; or
(ii) child, grandchild, stepchild, son‑in‑law or daughter‑in‑law; or
(iii) sibling, half‑sibling or step‑sibling or
(iv) uncle, aunt, uncle‑in‑law or aunt‑in‑law; or
(v) nephew, niece or cousin; and
(b) if the original person has or had a de facto partner—includes someone who would have been a relative mentioned in paragraph (a) if the original person had been married to the de facto partner; and
(c) includes:
(i) someone who has been a relative mentioned in paragraph (a) or (b) of the original person; and
(ii) if the original person is an Indigenous person—the persons mentioned in subsection (3); and
(iii) someone regarded and treated by the original person as a relative; and
(iv) anyone else who could reasonably be considered to be, or have been, a relative of the original person.
(2) In this section:
Indigenous person means a person who is:
(a) a member of the Aboriginal race of Australia; or
(b) a descendant of an Indigenous inhabitant of the Torres Strait Islands.
(3) For the purposes of subparagraph (c)(ii) of the definition of relative in subsection (1), the persons are as follows:
(a) someone the original person has responsibility for, or an interest in, in accordance with the traditional laws and customs of the community of Indigenous persons to which the original person belongs;
(b) someone who has responsibility for, or an interest in, the original person in accordance with the traditional laws and customs of the community of Indigenous persons to which the original person belongs.
165C Meaning of other family relationship expressions for this Chapter
(1) In this Chapter:
child: without limiting who is a child of a person for the purposes of this Chapter, a person is the child of another person if the person is a child of the other person within the meaning of the Family Law Act 1975 of the Commonwealth.
de facto partner has the meaning given by the Acts Interpretation Act 1901 of the Commonwealth.
parent: without limiting who is a parent of another person for the purposes of this Chapter, a person is the parent of another person who is the person’s child because of the definition of child in this subsection.
stepchild: without limiting who is a stepchild of another person for the purposes of this Chapter, a child of a de facto partner of the other person is the stepchild of the other person if the child would be the other person’s stepchild except that the other person is not legally married to the partner.
step‑parent: without limiting who is a step‑parent of a person for the purposes of this Chapter, a de facto partner of a parent of the person is the step‑parent of the person if the de facto partner would be the person’s step‑parent except that the de facto partner is not legally married to the person’s parent.
(2) For the purposes of this Chapter, if one person is the child of another person because of the definition of child in subsection (1), relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
165D Meaning of found guilty for this Chapter
In this Chapter:
found guilty of an offence includes having an offence taken into account under section 143 of the Sentencing Act 2007.
165E Meaning of intellectually impaired for this Chapter
In this Chapter:
intellectually impaired: a person is intellectually impaired if the person has:
(a) an appreciably below average general intellectual function; or
(b) a cognitive impairment (including dementia or autism) arising from an acquired brain injury, neurological disorder or a developmental disorder; or
(c) any other intellectual disability.
165F Meaning of lawyer for this Chapter
In this Chapter:
lawyer means a person who is entitled to practise as a practitioner under sections 7, 8 and 9 of the Legal Profession Act 1993.
165G References to offences include related ancillary offences
(1) A reference in a provision of this Chapter to a particular offence includes a reference to an offence against section 44 (attempt), 47 (incitement) or 48 (conspiracy) of the Criminal Code 2007 that relates to that particular offence.
(2) Subsection (1) does not apply if the provision is expressly or impliedly to the contrary effect.
Note: Sections 45 (complicity and common purpose) and 46 (agency) of the Criminal Code 2007 operate as extensions of principal offences and are therefore not referred to in this section.
Division 2—Evidence in sexual and violent offence proceedings
Subdivision A—Preliminary
166 Definitions for this Division
In this Division:
less serious violent offence means:
(a) an offence against any of the following provisions of the Criminal Code 2007:
(i) subsection 79(1) (wounding);
(ii) section 80 (assault with intent to commit certain indictable offences);
(iii) subsection 81(1) (inflicting actual bodily harm);
(iv) subsection 82(1) (assault occasioning actual bodily harm);
(v) section 83 (causing grievous bodily harm);
(vi) section 84 (common assault);
(vii) section 87 (acts endangering health etc);
(viii) subsection 88(3) or (4) (culpable driving of motor vehicle);
(ix) section 90 (threat to inflict grievous bodily harm);
(x) section 92 (possession of object with intent to kill, etc.);
(xi) section 96 (abduction of young person);
(xii) section 100 (exposing or abandoning child);
(xiii) section 259 (damaging property); or
(b) an offence against section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI) (contravening apprehended violence order).
serious violent offence means an offence against any of the following provisions of the Criminal Code 2007:
(a) section 70 (murder);
(b) section 73 (manslaughter);
(c) section 77 (intentionally inflicting grievous bodily harm);
(d) section 78 (recklessly inflicting grievous bodily harm);
(e) subsection 79(2) (wounding);
(f) subsection 81(2) (inflicting actual bodily harm);
(g) subsection 82(2) (assault occasioning actual bodily harm);
(h) section 86 (acts endangering life etc);
(i) subsection 88(1) or (2) (culpable driving of motor vehicle);
(j) section 89 (threat to kill);
(k) section 91 (demands accompanied by threats);
(l) section 93 (forcible confinement);
(m) section 94 (stalking);
(n) section 95 (torture);
(o) section 97 (kidnapping);
(p) section 99 (unlawfully taking child etc);
(q) section 101 (child destruction);
(r) section 102 (childbirth—grievous bodily harm);
(s) section 147 (destroying or damaging property);
(t) section 148 (arson);
(u) section 186 (robbery);
(v) section 187 (aggravated robbery);
(w) section 188 (burglary);
(x) section 189 (aggravated burglary).
sexual offence means an offence against any of the following provisions of the Criminal Code 2007:
(a) Part 3.6 (sexual offences);
(b) Part 3.9 (female genital mutilation);
(c) Part 3.10 (sexual servitude).
sexual or violent offence means:
(a) a sexual offence; or
(b) a violent offence.
sexual or violent offence proceeding means:
(a) a sexual offence proceeding; or
(b) a violent offence proceeding.
similar act witness means a witness in a sexual or violent offence proceeding who gives, or intends to give, evidence in the proceeding that:
(a) relates to an act committed on or in the presence of the witness by the accused; and
(b) is tendency evidence or coincidence evidence under the Evidence Act 2004.
violent offence means a serious violent offence or a less serious violent offence.
witness with a disability means a person who gives, or intends to give, evidence in a proceeding and has a mental or physical disability that affects the person’s ability to give evidence.
Subdivision B—Sexual and violent offence proceedings: general
167 Meaning of complainant and sexual offence proceeding for this Subdivision
(1) For the purposes of this Subdivision, the complainant in relation to a sexual or violent offence proceeding, is the person, or any of the people, against whom a sexual or violent offence the subject of the proceeding is alleged, or has been found, to have been committed.
(2) For the purposes of this Subdivision, a sexual offence proceeding is:
(a) a proceeding for a sexual offence; or
(b) a proceeding in relation to bail for a person charged with a sexual offence, whether or not the person is also charged with any other offence; or
(c) a sentencing proceeding for a person convicted or found guilty of a sexual offence, whether or not the person is also convicted or found guilty of any other offence; or
(d) an appeal or other review (whether by prerogative order or otherwise) arising out of a proceeding mentioned in paragraphs (a) to (c); or
(e) an interlocutory proceeding in, or a proceeding ancillary to, a proceeding mentioned in paragraphs (a) to (c).
(3) For the purposes of paragraph (2)(a), a proceeding for a sexual offence includes:
(a) a proceeding for a sexual offence and any other offence; and
(b) a proceeding for a sexual offence and any other offence as an alternative to the sexual offence; and
(c) a proceeding for a sexual offence that may result in a finding of guilt (or committal for trial or sentence) for any other offence.
(4) To remove any doubt, for the purposes of this section, a proceeding includes a committal hearing.
167A Meaning of violent offence proceeding for this Subdivision
(1) For the purposes of this Subdivision, a violent offence proceeding is:
(a) a proceeding for a violent offence; or
(b) a proceeding in relation to bail for a person charged with a violent offence, whether or not the person is also charged with any other offence; or
(c) a sentencing proceeding for a person convicted or found guilty of a violent offence, whether or not the person is also convicted or found guilty of any other offence; or
(d) an appeal or other review (whether by prerogative order or otherwise) arising out of a proceeding mentioned in paragraphs (a) to (c); or
(e) an interlocutory proceeding in, or a proceeding ancillary to, a proceeding mentioned in paragraphs (a) to (c).
(2) For the purposes of paragraph (1)(a), a proceeding for a violent offence includes:
(a) a proceeding for a violent offence and any other offence; and
(b) a proceeding for a violent offence and any other offence as an alternative to the violent offence; and
(c) a proceeding for a violent offence that may result in a finding of guilt (or committal for trial or sentence) for any other offence.
(3) To remove any doubt, for the purposes of this section, a proceeding includes a committal hearing.
167B Accused may be screened from witness in court
(1) This section applies to the complainant or a similar act witness (the witness) giving evidence in:
(a) a sexual offence proceeding; or
(b) a violent offence proceeding in relation to a serious violent offence; or
(c) a violent offence proceeding in relation to a less serious violent offence if:
(i) the witness is a relevant person in relation to the accused person; or
(ii) the court considers that the witness has a vulnerability that affects the witness’s ability to give evidence because of the circumstances of the proceeding or the witness’s circumstances.
Note: The following are examples for subparagraph (c)(ii):
(a) the witness is likely to suffer severe emotional trauma because of the nature of the alleged offence;
(b) the witness is intimidated or distressed because of the witness’s relationship to the accused person.
(2) For the purposes of subparagraph (1)(c)(ii), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
(3) The court may order that the courtroom be arranged in a way that, while the witness is giving evidence, the witness cannot see:
(a) the accused person; or
(b) anyone else the court considers should be screened from the witness.
(4) However, the witness must be visible to:
(a) the presiding judicial officer; and
(b) if the proceeding is a trial by jury—the jury; and
(c) the accused person; and
(d) the accused person’s lawyer; and
(e) if the court has ordered that someone should be screened from the complainant or similar act witness—the person; and
(f) the prosecutor.
167C Examination of witness by self‑represented accused person—procedure
(1) This section applies to the complainant or a similar act witness (the witness) giving evidence in:
(a) a sexual offence proceeding; or
(b) a violent offence proceeding in relation to a serious violent offence; or
(c) a violent offence proceeding in relation to a less serious violent offence if:
(i) the witness is a relevant person in relation to the accused person; or
(ii) the court considers that the witness has a vulnerability that affects the witness’s ability to give evidence because of the circumstances of the proceeding or the witness’s circumstances.
Note: The following are examples for subparagraph (c)(ii):
(a) the witness is likely to suffer severe emotional trauma because of the nature of the alleged offence;
(b) the witness is intimidated or distressed because of the witness’s relationship to the accused person.
(2) For the purposes of subparagraph (1)(c)(ii), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
(3) This section also applies to a child or witness with a disability (the witness) giving evidence for the prosecution in a sexual or violent offence proceeding.
(4) The witness must not be examined personally by the accused person but may be examined instead by:
(a) the accused person’s legal representative; or
(b) if the accused person does not have a legal representative—a person appointed by the court.
(5) If the accused person does not have a legal representative, the court must, as soon as practicable, tell the person:
(a) about the terms of subsection (4); and
(b) that the person may not present evidence from another witness in relation to a fact in issue to contradict the evidence of the witness in relation to the fact if the fact in the other witness’s evidence intended to contradict the witness’s evidence has not been put to the witness in cross‑examination.
(6) A person appointed by the court for the purposes of paragraph (4)(b) may ask the witness only the questions that the accused person asks the person to put to the witness, and must not independently give the accused person legal or other advice.
Note: If the court considers a question to be unduly annoying, harassing, intimidating etc, the court must disallow it or tell the witness that it need not be answered (see subsection 41(1) (improper questions) of the Evidence Act 2004).
(7) If the accused person does not have a legal representative, the court may, if it considers it is in the interests of justice, do one or more of the following:
(a) adjourn the proceeding to enable the person to obtain a legal representative to conduct the examination;
(b) make:
(i) an order that the person obtain legal representation; and
(ii) any other order the court considers necessary to secure legal representation for the person.
(8) If the proceeding is a trial by jury, the court must tell the jury that:
(a) the accused person may not examine the witness personally; and
(b) obtaining, or being provided with, legal representation to examine the witness, or having the accused person’s questions put to the witness by a person appointed by the court, is a usual practice; and
(c) the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the examination is not conducted personally by the accused person.
(9) In this section:
examine includes cross‑examine and re‑examine.
167D Sexual and violent offence proceeding—witness may have support person in court
(1) This section applies to the complainant or a similar act witness (the witness) giving evidence in:
(a) a sexual offence proceeding; or
(b) a violent offence proceeding in relation to a serious violent offence; or
(c) a violent offence proceeding in relation to a less serious violent offence if:
(i) the witness is a relevant person in relation to the accused person; or
(ii) the court considers that the witness has a vulnerability that affects the witness’s ability to give evidence because of the circumstances of the proceeding or the witness’s circumstances.
Note: The following are examples for subparagraph (c)(ii):
(a) the witness is likely to suffer severe emotional trauma because of the nature of the alleged offence;
(b) the witness is intimidated or distressed because of the witness’s relationship to the accused person.
(2) For the purposes of subparagraph (1)(c)(ii), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
(3) The court must, on application by a party who intends to call a witness, order that the witness have a person (a support person) in the court close to, and within the witness’s sight, while the witness gives evidence.
(4) The court may order that a witness have more than one support person if it considers it is in the interests of justice.
(5) The support person must not:
(a) speak for the witness during the proceeding; or
(b) otherwise interfere in the proceeding.
(6) Unless the court otherwise orders, the support person must not be, or be likely to be, a witness or party in the proceeding.
(7) If the proceeding is a trial by jury, the court must tell the jury that:
(a) a witness having a support person in the court while giving evidence is a usual practice; and
(b) the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the support person is present.
167E Sexual and violent offence proceeding—evidence to be given in closed court
(1) This section applies to the complainant or a similar act witness (the witness) giving evidence in:
(a) a sexual offence proceeding; or
(b) a violent offence proceeding in relation to a serious violent offence; or
(c) a violent offence proceeding in relation to a less serious violent offence if:
(i) the witness is a relevant person in relation to the accused person; or
(ii) the court considers that the witness has a vulnerability that affects the witness’s ability to give evidence because of the circumstances of the proceeding or the witness’s circumstances.
Note: The following are examples for subparagraph (c)(ii):
(a) the witness is likely to suffer severe emotional trauma because of the nature of the alleged offence;
(b) the witness is intimidated or distressed because of the witness’s relationship to the accused person.
(2) For subparagraph (1)(c)(ii), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
(3) The court may order that the court be closed to the public while all or part of the witness’s evidence (including evidence given under cross‑examination) is given.
(4) In deciding whether to order that the court be closed to the public, the court must consider whether:
(a) the witness wants to give evidence in open court; and
(b) it is in the interests of justice that the witness give evidence in open court.
(5) However, an order under this section does not stop the following people from being in court when the witness gives evidence:
(a) a person nominated by the witness;
(b) a person who attends the proceeding to prepare a news report of the proceeding and is authorised to attend for that purpose by the person’s employer.
Note: Publishing certain information in relation to sexual offence proceedings is an offence (see section 167F).
(6) In this section, a reference to a person giving evidence includes the person giving evidence by:
(a) the playing of an audiovisual recording of the evidence under Subdivision C (sexual and violent offence proceedings: audiovisual recording of police interview admissible as evidence); or
(b) audiovisual link under Subdivision D (sexual and violent offence proceedings: giving evidence by audiovisual link); or
(c) the playing of an audiovisual recording or an audio recording of the evidence, or the tendering of a transcript of the evidence, under Subdivision E or F (special provisions relating to retrials and subsequent trials of sexual offence proceedings).
167F Sexual offence proceedings—publication identifying complainants
(1) A person commits an offence if:
(a) the person publishes any matter; and
(b) the person does not have the leave of the court to publish the matter; and
(c) 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.
Penalty: Imprisonment for 12 months, or 60 penalty units, or both.
(2) Subsection (1) does not apply if:
(a) the publication is in an official publication in the course of, and for the purpose of, the proceeding; or
(b) the publication is in a document prepared for use in particular legal proceedings (whether or not the legal proceedings are a sexual offence proceeding); or
(c) the identified person is aged 14 years or older and the publication is made with the consent of the identified person; or
(d) the publication happens after the death of the identified person.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see section 58 of the Criminal Code 2007.
(3) The court may give leave to a person to publish the matter.
(4) In deciding whether to give leave, the court is to have regard to:
(a) any trauma to the identified person that the publication could cause; and
(b) any damage to the reputation of the identified person that the publication could cause; and
(c) any view of the identified person about the publication; and
(d) whether the publication is:
(i) for the purpose of supplying transcripts of the proceedings to persons with a genuine interest in the proceedings; or
(ii) for genuine research purposes; and
(e) whether the publication is in the public interest.
(5) Leave may be given after the proceedings have finished. For this purpose, the court need not be constituted by the same judicial officers who constituted the court in the proceedings.
(6) An application for leave under this section must be in writing.
(7) A person who makes an application for leave under this section must take reasonable steps to give written notice of the application to each of the following:
(a) the identified person;
(b) the prosecutor in the proceeding;
(c) each defendant in the proceeding;
(d) each other complainant in the proceeding.
(8) If the identified person or a party referred to in paragraph (7)(d) is a child at the time the application is made, the notice must be given to a parent, guardian or legal representative of the identified person or the party, as the case may be.
(9) A notice under subsection (7) must:
(a) be given no later than 3 business days before the day the application is to be heard; and
(b) be accompanied by a copy of the application.
(10) An application for leave under this section must not be determined unless the court:
(a) is satisfied the applicant has taken reasonable steps to give notice of the application in accordance with subsections (7), (8) and (9); and
(b) has considered such submissions and other evidence as it thinks necessary for determining the application.
Subdivision C—Sexual and violent offence proceedings: audiovisual recording of police interview admissible as evidence
168 Meaning of sexual offence and violent offence for this Subdivision
(1) For the purposes of this Subdivision, a sexual offence includes an offence under section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI) in relation to another sexual offence.
(2) For the purposes of this Subdivision, a violent offence includes an offence under section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI) in relation to another violent offence.
168A Meaning of sexual offence proceeding for this Subdivision
(1) For the purposes of this Subdivision, a sexual offence proceeding is:
(a) a proceeding for a sexual offence; or
(b) a sentencing proceeding for a person convicted or found guilty of a sexual offence, whether or not the person is also convicted or found guilty of any other offence; or
(c) an appeal arising out of a proceeding mentioned in paragraph (a) or (b).
(2) For the purposes of paragraph (1)(a), a proceeding for a sexual offence includes:
(a) a proceeding for a sexual offence and any other offence; and
(b) a proceeding for a sexual offence and any other offence as an alternative to the sexual offence; and
(c) a proceeding for a sexual offence that may result in a finding of guilt (or committal for trial or sentence) for any other offence.
168B Meaning of violent offence proceeding for this Subdivision
(1) For the purposes of this Subdivision, a violent offence proceeding is:
(a) a proceeding for a violent offence; or
(b) a sentencing proceeding for a person convicted or found guilty of a violent offence, whether or not the person is also convicted or found guilty of any other offence; or
(c) an appeal arising out of a proceeding mentioned in paragraph (a) or (b).
(2) For the purposes of paragraph (1)(a), a proceeding for a violent offence includes:
(a) a proceeding for a violent offence and any other offence; and
(b) a proceeding for a violent offence and any other offence as an alternative to the violent offence; and
(c) a proceeding for a violent offence that may result in a finding of guilt (or committal for trial or sentence) for any other offence.
168C Meaning of witness for this Subdivision
(1) For the purposes of this Subdivision, a witness is a witness in a sexual or violent offence proceeding who:
(a) is a child on the day an audiovisual recording is made; or
(b) is intellectually impaired; or
(c) is a complainant or similar act witness in the proceeding.
Note: For intellectually impaired, see section 165E.
(2) In this section:
complainant, in a sexual or a violent offence proceeding, means the person, or any of the people, against whom a sexual or violent offence the subject of the proceeding is alleged, or has been found, to have been committed.
168D Meaning of audiovisual recording for this Subdivision
(1) For the purposes of this Subdivision, an audiovisual recording is an audiovisual recording that is of a witness answering questions of a police officer in relation to the investigation of a sexual or violent offence.
(2) The audiovisual recording must include the following:
(a) the date when, and the place where, the recording was made;
(b) the times when the recording started and ended;
(c) the times when any break in questioning started and ended, and the reason for the break;
(d) the name of each person present during any part of the recording;
(e) for each person present during any part of the recording—the part when the person was present.
(3) The audiovisual recording must:
(a) be certified by a police officer as an accurate record of the witness answering the questions; and
(b) not be edited or changed, unless the court hearing the proceeding in which the recording is tendered otherwise orders.
Note: For paragraph (b), a court might, for example, order that the recording be edited to omit inadmissible material.
168E Audiovisual recording may be admitted as evidence
(1) An audiovisual recording may:
(a) be played at the hearing of a proceeding for the sexual or violent offence to which it relates; and
(b) if the recording is played at the hearing—be admitted as the witness’s evidence in chief in the proceeding as if the witness gave the evidence at the hearing in person.
(2) However, the court may refuse to admit all or any part of the audiovisual recording.
(3) The witness must not be in the courtroom, or visible to anyone in the courtroom by audiovisual link, when the audiovisual recording is played at the hearing.
(4) This section is subject to section 168J.
168F Audiovisual recording—notice
(1) This section applies if the prosecutor in a sexual or violent offence proceeding intends to tender an audiovisual recording as evidence.
(2) The prosecutor must give to the accused person or the person’s lawyer:
(a) written notice that the prosecutor intends to tender the audiovisual recording; and
(b) a copy of a transcript of the recording.
(3) The notice must state the following:
(a) each audiovisual recording the prosecutor intends to tender;
(b) that the accused person and the person’s lawyer are entitled to see and listen to each recording at a police station or somewhere else decided by the police officer in charge in Norfolk Island;
(c) the person responsible (the responsible person) for arranging access to each recording.
(4) For the purposes of paragraph (3)(c), the notice must state the responsible person by:
(a) naming the person; or
(b) stating the occupant of a position.
168G Audiovisual recording—notice for access
(1) The accused person, or the person’s lawyer, must give written notice to the responsible person to have access to an audiovisual recording.
(2) The notice must state the following:
(a) the name of the accused person, and the person’s lawyer;
(b) each audiovisual recording for which access is required.
168H Audiovisual recording—access to accused person
(1) This section applies if an accused person, or the person’s lawyer, gives notice under section 168G requesting access to an audiovisual recording.
(2) The responsible person must give the person who gave notice access to see and listen to the audiovisual recording as soon as practicable after receiving the notice under section 168G.
(3) The person who gave notice may have access to an audiovisual recording more than once.
(4) The accused person, and the person’s lawyer, must not be given, or take a copy of, an audiovisual recording.
168J Audiovisual recording—admissibility
(1) An audiovisual recording is admissible in a sexual or violent offence proceeding only if:
(a) notice is given under section 168F; and
(b) a copy of a transcript of the recording is given to the accused person, or the person’s lawyer, a reasonable time before the start of the hearing of the proceeding; and
(c) the accused person, and the person’s lawyer, are given a reasonable opportunity to see and listen to the recording.
(2) However, if the prosecutor fails to give notice under section 168F, the audiovisual recording is admissible if:
(a) a copy of a transcript of the recording is given to the accused person, or the person’s lawyer, a reasonable time before the start of the hearing of the proceeding; and
(b) the accused person, and the person’s lawyer, are given a reasonable opportunity to see and listen to the recording; and
(c) the court considers it is in the interests of justice to admit the recording.
(3) This section does not prevent the parties consenting to the admission in evidence of an audiovisual recording.
168K Audiovisual recording—jury trial
(1) This section applies if:
(a) a sexual or violent offence proceeding is a trial by jury; and
(b) an audiovisual recording is admitted in evidence in the proceeding.
(2) The court must tell the jury that:
(a) admission of the audiovisual recording is a usual practice; and
(b) the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the evidence is given in that way.
(3) If the court considers that a transcript of the audiovisual recording would be likely to help the jury’s understanding of the evidence, the court may order that the transcript be made available to the jury.
168L Transcript of audiovisual recording—access to court
If an audiovisual recording is admitted in evidence in a sexual or violent offence proceeding, the court may order that a transcript of the recording be made available to the court.
168M Audiovisual recording—offences
(1) A person commits an offence if the person, without authority:
(a) possesses an audiovisual recording; or
(b) supplies, or offers to supply, an audiovisual recording to another person; or
(c) plays, copies or erases, or allows someone else to play, copy or erase, an audiovisual recording.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(2) For the purposes of this section, a person has authority in relation to an audiovisual recording only if the person possesses the recording, or does something with the recording, in connection with:
(a) the investigation of, or a proceeding for, an offence in relation to which the recording is prepared; or
(b) a re‑hearing, re‑trial or appeal in relation to such a proceeding, including a proceeding in which the recording is or may be admitted in evidence under Subdivision E or F.
Subdivision D—Sexual and violent offence proceedings: giving evidence by audiovisual link
169 Definitions for this Subdivision
In this Subdivision:
give evidence in a proceeding by audiovisual link means to give evidence in the proceeding by audiovisual link from an external place which is linked to the courtroom by an audiovisual link.
proceeding means a proceeding to which this Subdivision applies.
169A Meaning of complainant and sexual offence proceeding for this Subdivision
(1) For the purposes of this Subdivision, the complainant, in relation to a sexual or violent offence proceeding, is the person, or any of the people, against whom a sexual or violent offence the subject of the proceeding is alleged, or has been found, to have been committed.
(2) For the purposes of this Subdivision, a sexual offence proceeding is:
(a) a proceeding for a sexual offence; or
(b) a sentencing proceeding for a person convicted or found guilty of a sexual offence, whether or not the person is also convicted or found guilty of any other offence; or
(c) a proceeding under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI) in relation to a sexual offence;
(d) a proceeding by way of an inquest or inquiry in the Coroner’s Court in relation to a sexual offence; or
(e) an appeal arising out of a proceeding mentioned in paragraphs (a) to (d).
(3) For the purposes of paragraph (2)(a), a proceeding for a sexual offence includes:
(a) a proceeding for a sexual offence and any other offence; and
(b) a proceeding for a sexual offence and any other offence as an alternative to the sexual offence; and
(c) a proceeding for a sexual offence that may result in a finding of guilt (or committal for trial or sentence) for any other offence.
(4) To remove any doubt, for the purposes of this section, a proceeding includes a committal hearing.
169B Meaning of violent offence proceeding for this Subdivision
(1) For the purposes of this Subdivision, a violent offence proceeding is:
(a) a proceeding for a violent offence; or
(b) a sentencing proceeding for a person convicted or found guilty of a violent offence, whether or not the person is also convicted or found guilty of any other offence; or
(c) a proceeding under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI) in relation to a violent offence;
(d) an appeal arising out of a proceeding mentioned in paragraphs (a) to (c).
(2) For the purposes of paragraph (1)(a), a proceeding for a violent offence includes:
(a) a proceeding for a violent offence and any other offence; and
(b) a proceeding for a violent offence and any other offence as an alternative to the violent offence; and
(c) a proceeding for a violent offence that may result in a finding of guilt (or committal for trial or sentence) for any other offence.
(3) To remove any doubt, for the purposes of this section, a proceeding includes a committal hearing.
169C Proceedings to which this Subdivision applies
(1) This Subdivision applies to the following proceedings:
(a) a sexual offence proceeding;
(b) a violent offence proceeding in relation to a serious violent offence;
(c) a violent offence proceeding in relation to a less serious violent offence if:
(i) the complainant or similar act witness (the witness) is a relevant person in relation to the accused person; or
(ii) the court considers that the witness has a vulnerability that affects the witness’s ability to give evidence because of the circumstances of the proceeding or the witness’s circumstances.
Note 1: For relevant person, see section 165A.
Note 2: The following are examples for subparagraph (c)(ii):
(a) the witness is likely to suffer severe emotional trauma because of the nature of the alleged offence;
(b) the witness is intimidated or distressed because of the witness’s relationship to the accused person.
(2) For the purposes of this Subdivision, it does not matter whether evidence is to be, or is being, given on oath or otherwise.
169D Complainant or similar act witness giving evidence by audiovisual link
(1) This section applies if:
(a) a complainant or similar act witness is to give evidence in a proceeding; and
(b) the proceeding is to be heard in a courtroom; and
(c) the courtroom and an external place are linked by an audiovisual link.
(2) The complainant’s or similar act witness’s evidence must be given by audiovisual link unless the court otherwise orders.
(3) The court may make an order under subsection (2) only if satisfied:
(a) that:
(i) for the complainant—the complainant prefers to give evidence in the courtroom; and
(ii) for a similar act witness—the witness prefers to give evidence in the courtroom; or
(b) if the order is not made:
(i) the proceeding may be unreasonably delayed; or
(ii) there is a substantial risk that the court will not be able to ensure that the proceeding is conducted fairly.
(4) While the complainant or similar act witness is at the external place to give evidence, the place is taken for all purposes (other than subsection 168E(3)) to be part of the courtroom.
(5) While the complainant or similar act witness is at the external place to give evidence:
(a) the accused person must not be at the place; and
(b) the witness must not be able to see or hear the accused person; and
(c) the accused person must be able to see and hear the witness give evidence; and
(d) the accused person must be able to communicate with the person’s lawyer.
169E Recording evidence given in sexual offence proceedings
(1) If a complainant or similar act witness gives evidence in a sexual offence proceeding by audiovisual link under section 169D, the evidence must be recorded as an audiovisual recording.
(2) If a court makes an order under subsection 169D(2) in a sexual offence proceeding that evidence given by a complainant or similar act witness not be given by audiovisual link, the evidence may be recorded as an audiovisual recording.
169F Consequential orders
(1) This section applies if a complainant or similar act witness is to give evidence in a proceeding by audiovisual link.
(2) The court may make any order it considers appropriate:
(a) to ensure that the proceeding is conducted fairly; or
(b) to allow the complainant or similar act witness to identify a person or thing; or
(c) to allow the complainant or similar act witness to take part in a view or to watch a demonstration or experiment; or
(d) to allow part of the proceeding to be heard somewhere other than in the courtroom.
(3) The court may make any other order it considers appropriate, including, for example, an order stating:
(a) who may be with the complainant or similar act witness at the external place; or
(b) who must not be with the complainant or similar act witness at the external place; or
(c) who, in the courtroom, is to be able, or must not be able, to be heard, or seen and heard, by the complainant or similar act witness and people in the external place with the complainant or similar act witness; or
(d) who, in the courtroom, is to be able to see and hear the complainant or similar act witness and anyone else in the external place with the complainant or similar act witness; or
(e) how the audiovisual link is to operate.
(4) The court may order that a person be excluded from the other place while the complainant or similar act witness is giving evidence.
(5) The court may direct that an order under this section apply only to a particular part of the proceeding.
169G Making orders under this Subdivision
(1) The court may make an order under this Subdivision in a proceeding on its own initiative or on the application of:
(a) a party to the proceeding; or
(b) the complainant; or
(c) a similar act witness.
(2) For the purpose of making an order under this Subdivision, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
169H Jury warning about inferences from complainant or similar act witness giving evidence by audiovisual link
(1) This section applies if:
(a) a complainant or similar act witness gives evidence in a proceeding by audiovisual link; and
(b) the proceeding is before a jury.
(2) The judge must warn the jury to the effect that the jury should not draw any inference against an accused person in the proceeding from the fact that the evidence of the complainant or similar act witness is given by audiovisual link.
Subdivision E—Special provisions relating to retrials of sexual offence proceedings
170 Definitions
In this Subdivision:
accused person, in relation to any proceedings, means the person who stands, or any of the persons who stand, charged in those proceedings with a sexual offence.
complainant, in relation to any proceedings, means the person, or any of the persons, against whom a sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed.
original evidence of the complainant has the meaning given by subsection 170A(2).
original proceedings has the meaning given by subsection 170A(2).
prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject‑matter or context allows or requires) a lawyer representing the prosecutor.
170A Admission of evidence of complainant in new trial proceedings
(1) If a person is convicted of a sexual offence and, on an appeal against the conviction, a new trial is ordered, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant.
(2) For the purposes of this Subdivision, the original evidence of the complainant means all evidence given by the complainant in the proceedings from which the conviction arose (referred to in this Subdivision as the original proceedings), including the evidence given by the complainant on examination in chief in the original proceedings and any further evidence given on cross‑examination or re‑examination in those proceedings.
(3) Despite anything to the contrary in the Evidence Act 2004, or any other Act or law, a record of the original evidence of the complainant is admissible in the new trial proceedings if:
(a) the prosecutor gives written notice to the accused person of the prosecutor’s intention to tender the record under this section; and
(b) the prosecutor gives written notice to the court of the prosecutor’s intention to tender the record under this section; and
(c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the new trial proceedings or within such other period as the court may allow.
(4) The hearsay rule (within the meaning of the Evidence Act 2004) does not prevent the admission of a record of the original evidence of the complainant under this Subdivision or the use of that record to prove the existence of a fact that the complainant intended to assert by a representation made in the original evidence.
(5) The court hearing the new trial proceedings does not have any discretion to decline to admit a record of the original evidence of the complainant if it is admissible under this Subdivision.
(6) However, the court may give directions requiring a record of the original evidence of the complainant to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court.
(7) In addition, a record of the original evidence of the complainant may be altered or edited in accordance with an agreement between the prosecutor and the accused person or his or her lawyer (if any).
(8) This Subdivision applies in respect of proceedings for a new trial in which a person stands charged with a sexual offence whether or not the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.
170B Complainant not compellable to give further evidence
If a record of the original evidence of the complainant (or any part of the record) is admitted in proceedings under this Subdivision, the complainant is not compellable to give any further evidence in the proceedings (despite anything to the contrary in this Act or the Evidence Act 2004), including for the purpose of any examination in chief, cross‑examination or re‑examination by or at the request of the accused person or his or her lawyer.
170C Complainant may elect to give further evidence
(1) If a record of the original evidence of the complainant (or any part of the record) is admitted in proceedings under this Subdivision, the complainant may, with leave of the court hearing the proceedings, and only if the complainant so chooses, give further oral evidence in the proceedings.
Note: The evidence may need to be given by audiovisual link: see Subdivision D.
(2) The court is to give leave to the complainant to give such further evidence in the proceedings only if the court is satisfied, on application by one of the parties to the proceedings, that it is necessary for the complainant to give further oral evidence:
(a) to clarify any matters relating to the original evidence of the complainant; or
(b) to canvas information or material that has become available since the original proceedings; or
(c) in the interests of justice.
(3) The court is to ensure that the complainant is questioned by any party to the proceedings only in relation to matters that are relevant to the reasons for the grant of leave by the court.
(4) Subject to subsection (3), if a complainant gives any further oral evidence under this section, the complainant is compellable (for the prosecution or the accused person) to give evidence. This applies despite section 170B.
170D Form in which record of original evidence of complainant is to be tendered
(1) A record of the original evidence of the complainant tendered by the prosecutor under this Subdivision must be the best available record, or be comprised of the best available records, of the original evidence of the complainant, and the record or records concerned must be properly authenticated.
(2) For the purposes of this section, the best available record of the evidence, or any part of the evidence, given by a complainant is:
(a) an audiovisual recording of the evidence; or
(b) if an audiovisual recording of the evidence is not available—an audio recording of the evidence; or
(c) if neither an audiovisual recording nor an audio recording of the evidence is available—a transcript of the evidence.
(3) If the whole or part of the evidence given by the complainant in the original proceedings was given in the form of a recording made by a police officer, as provided for by Subdivision C, the best available record of that evidence is the recording viewed or heard by the court in those original proceedings.
(4) A record of any evidence given by a complainant is properly authenticated for the purposes of this section if:
(a) the record has been authenticated by the court before which the evidence concerned was given or by the registrar or other proper officer of that court in accordance with any directions of the court; or
(b) the record has been authenticated by the person or body responsible for producing the record.
170E Access to audiovisual or audio recording
(1) If a record of the original evidence of the complainant tendered or proposed to be tendered by the prosecutor under this Subdivision is an audiovisual recording or audio recording, the accused person, and his or her lawyer (if any), are not entitled to be given possession of the record or a copy of it (despite anything to the contrary in this Act or the Evidence Act 2004).
(2) However, the accused person and his or her lawyer (if any) are to be given reasonable access to the recording to enable them to listen to it and, if the record is an audio visual recording, view it.
(3) This may require access to be given on more than one occasion.
170F Exhibits may also be tendered
(1) If a record of the original evidence of a complainant is tendered by the prosecutor under this Subdivision, any exhibits tendered in the original proceedings on the basis of the original evidence of the complainant and admitted in the original proceedings are also admissible in the new trial proceedings as if the original evidence of the complainant had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court.
(2) This section does not prevent any other exhibits tendered in the original proceedings from being tendered and admitted in the new trial proceedings in accordance with the usual rules and practice of the court hearing the new trial proceedings.
Subdivision F—Special provisions relating to subsequent trials of sexual offence proceedings
Note: Subdivision E applies in relation to a retrial of proceedings that follows an appeal against a conviction for a sexual offence. This Subdivision, on the other hand, applies when a trial for a sexual offence has been discontinued and a new trial is listed.
171 Definitions
In this Subdivision:
accused person has the same meaning as in section 170.
complainant has the same meaning as in section 170.
original evidence of the complainant has the meaning given by subsection 171A(2).
original proceedings has the meaning given by subsection 171A(2).
171A Admission of evidence of complainant in new trial proceedings
(1) If the trial of an accused person is discontinued following the jury being discharged because the jurors could not reach a verdict, or discontinued for any other reason, and, as a result, a new trial is listed, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant.
(2) For the purposes of this Subdivision, the original evidence of the complainant means all evidence given by the complainant in the discontinued trial (referred to in this Subdivision as the original proceedings), including the evidence given by the complainant on examination in chief in the original proceedings and any further evidence given on cross‑examination or re‑examination in those proceedings.
(3) Despite anything to the contrary in the Evidence Act 2004, or any other Act or law, a record of the original evidence of the complainant is admissible in the new trial proceedings if:
(a) the prosecutor gives written notice to the accused person of the prosecutor’s intention to tender the record under this section; and
(b) the prosecutor gives written notice to the court of the prosecutor’s intention to tender the record under this section; and
(c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the new trial proceedings or within such other period as the court may allow.
(4) The hearsay rule (within the meaning of the Evidence Act 2004) does not prevent the admission of a record of the original evidence of the complainant under this Subdivision or the use of that record to prove the existence of a fact that the complainant intended to assert by a representation made in the original evidence.
(5) Despite subsection (3), the court hearing the new trial proceedings may decline to admit a record of the original evidence of the complainant if, in the court’s opinion, the accused would be unfairly disadvantaged by the admission of the record, having regard to the following:
(a) the completeness of the original evidence, including whether the complainant has been cross‑examined on the evidence;
(b) the effect of editing any inadmissible evidence from the original evidence;
(c) the availability or willingness of the complainant to attend to give further evidence and to clarify any matters relating to the original evidence;
(d) the interests of justice;
(e) any other matter the court thinks relevant.
(6) If the court allows a record of the original evidence of the complainant to be admitted, the court may give directions requiring the record to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court.
(7) In addition, a record of the original evidence of the complainant may be altered or edited in accordance with an agreement between the prosecutor and the accused person or his or her counsel (if any).
(8) This Subdivision applies in respect of proceedings for a new trial in which a person stands charged with a sexual offence whether or not the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.
171B Whether complainant compellable to give further evidence
(1) If a record of the original evidence of the complainant (or any part of the record) is admitted in proceedings under this Subdivision, the complainant is not compellable to give further evidence in the proceedings unless the court is satisfied that it is necessary for the complainant to give further evidence:
(a) to clarify any matters relating to the original evidence of the complainant; or
(b) to canvas information or material that has become available since the original proceedings; or
(c) in the interests of justice.
Note: The evidence may need to be given by audiovisual link: see Subdivision D.
(2) Subsection (1) applies despite anything to the contrary in this Act or the Evidence Act 2004.
(3) The court is to ensure that the complainant is questioned by any party to the proceedings only in relation to matters that are relevant to the matters mentioned in subsection (1).
(4) Subject to subsection (3), if a complainant gives any further oral evidence under this section, the complainant is compellable (for the prosecution or the accused person) to give evidence.
171C Complainant may elect to give further evidence
(1) If a record of the original evidence of the complainant (or any part of the record) is admitted in proceedings under this Subdivision, the complainant may, with leave of the court hearing the proceedings, and only if the complainant so chooses, give further oral evidence in the proceedings.
Note: The evidence may need to be given by audiovisual link: see Subdivision D.
(2) The court is to give leave to the complainant to give such further evidence in the proceedings only if the court is satisfied, on application by one of the parties to the proceedings, that it is necessary for the complainant to give further oral evidence:
(a) to clarify any matters relating to the original evidence of the complainant; or
(b) to canvas information or material that has become available since the original proceedings; or
(c) in the interests of justice.
(3) The court is to ensure that the complainant is questioned by any party to the proceedings only in relation to matters that are relevant to the reasons for the grant of leave by the court.
(4) Subject to subsection (3), if a complainant gives any further oral evidence under this section, the complainant is compellable (for the prosecution or the accused person) to give evidence.
171D Application of provisions dealing with form of record of original evidence, access to recordings and exhibits
Sections 170D to 170F apply for the purposes of this Subdivision with such modifications as are necessary.
Division 3—Evidence in domestic violence proceedings
Subdivision A—Definitions for this Division
172 Meaning of domestic violence offence for this Division
In this Division:
domestic violence offence has the meaning given by section 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI).
Note: Complainant, for a domestic violence offence proceeding, is an adult who is a relevant person in relation to the accused (see section 172B). For relevant person, see section 165A.
172A Meaning of domestic violence offence proceeding for this Division
(1) In this Division:
domestic violence offence proceeding means:
(a) a proceeding for a domestic violence offence; or
(b) a proceeding in relation to bail for a person charged with a domestic violence offence, whether or not the person is also charged with any other offence; or
(c) a sentencing proceeding for a person convicted or found guilty of a domestic violence offence, whether or not the person is also convicted or found guilty of any other offence; or
(d) an appeal arising out of a proceeding mentioned in paragraphs (a) to (c); or
(e) an interlocutory proceeding in, or a proceeding ancillary to, a proceeding mentioned in paragraphs (a) to (c).
(2) In this section:
proceeding for a domestic violence offence includes:
(a) a proceeding for a domestic violence offence and any other offence; and
(b) a proceeding for a domestic violence offence and any other offence as an alternative to the domestic violence offence; and
(c) a proceeding for a domestic violence offence that may result in a finding of guilt (or committal for trial or sentence) for any other offence.
172B Meaning of complainant for this Division
In this Division:
complainant, for a domestic violence offence proceeding:
(a) means a person:
(i) against whom a domestic violence offence the subject of the proceeding is alleged, or has been found, to have been committed; and
(ii) who is a relevant person in relation to the accused person; but
(b) does not include a person who:
(i) is a child on the day a recorded statement is made; or
(ii) is intellectually impaired.
Note 1: For relevant person, see section 165A. For intellectually impaired, see section 165E.
Note 2: Audiovisual recording and the evidence of children and people with intellectual impairment is dealt with in Subdivision C of Division 2.
172C Meaning of recorded statement for this Division
(1) In this Division:
recorded statement means:
(a) an audiovisual recording:
(i) of a complainant answering questions of a police officer in relation to the investigation of a domestic violence offence; and
(ii) made by a police officer; or
(b) an audio recording that complies with paragraph (a):
(i) if the complainant does not consent to an audiovisual recording; or
(ii) in exceptional circumstances.
Note: An example of exceptional circumstances is technical difficulties with the visual aspect of the recording identified following the making of the recording.
(2) A police officer must, before making a recorded statement, tell the complainant that:
(a) the recorded statement may be used in evidence at a hearing; and
(b) if the recorded statement is used in evidence at a hearing, the complainant may be called to give evidence under cross‑examination in person at the hearing; and
(c) the complainant does not have to consent to the recording.
(3) In this section:
police officer includes a person who is a member of the police force of a State or another Territory if:
(a) provisions of the law of that State or Territory correspond (or substantially correspond) to this Division; and
(b) the person is trained in the taking of evidence under those provisions.
Subdivision B—Evidence may be given in closed court
173 Evidence may be given in closed court
(1) This section applies to the complainant giving evidence in a domestic violence offence proceeding if the court considers that the complainant has a vulnerability that affects the complainant’s ability to give evidence because of the circumstances of the proceeding or the complainant’s circumstances.
Note: The following are examples for this subsection:
(a) the complainant is likely to suffer severe emotional trauma because of the nature of the alleged offence;
(b) the complainant is intimidated or distressed because of the complainant’s relationship to the accused person.
(2) The court is not bound by the rules of evidence and may inform itself as it considers appropriate.
(3) The court may order that the court be closed to the public while all or part of the complainant’s evidence (including evidence given under cross‑examination) is given.
(4) In deciding whether to order that the court be closed to the public, the court must consider whether:
(a) the complainant wants to give evidence in open court; and
(b) it is in the interests of justice that the complainant give evidence in open court.
(5) However, an order under this section does not stop the following people from being in court when the complainant gives evidence:
(a) a person nominated by the complainant;
(b) a person who attends the proceeding to prepare a news report of the proceeding and is authorised to attend for that purpose by the person’s employer.
Note: Publishing certain information in relation to sexual offence proceedings is an offence (see section 167F).
(6) In this section, a reference to a person giving evidence includes the person giving evidence by the playing of a recorded statement of the evidence under Subdivision C.
Subdivision C—Recorded statement of police interview admissible as evidence: domestic violence offence proceedings
174 Recorded statement—requirements
(1) A recorded statement must be made:
(a) as soon as practicable after the events mentioned in the statement happened; and
(b) in the form of questions and answers.
Note: If the recorded statement is to be admitted as evidence in a proceeding, the rules of evidence apply to the content of the statement.
(2) A recorded statement of a complainant must include the following:
(a) the name of each person present during any part of the recording;
(b) a statement by the complainant:
(i) of the complainant’s name, age and whether the complainant lives in Norfolk Island; and
(ii) about the truth of the representations made by the complainant in the recorded statement.
(3) As far as is practicable, a recorded statement must not contain an image of:
(a) a child; or
(b) a person who is intellectually impaired.
Note 1: For intellectually impaired, see section 165E.
Note 2: Audiovisual recording and the evidence of children and people with intellectual impairment is dealt with in Subdivision C of Division 2.
(4) If any part of a recorded statement is in a language other than English:
(a) the recorded statement must contain an English translation of the part; or
(b) a separate written English translation of the part must accompany the recorded statement.
(5) A recorded statement must not be edited or changed unless:
(a) both parties consent to the edits or changes; or
(b) the court hearing the proceeding in which the recorded statement is tendered otherwise orders.
Note: For paragraph (b), a court might, for example, order that the recording be edited to omit inadmissible material.
174A Recorded statement—may be admitted as evidence
(1) A recorded statement may:
(a) be played at the hearing of a proceeding for the domestic violence offence to which it relates; and
(b) if the recorded statement is played at the hearing—be admitted as all or part of the complainant’s evidence in chief in the proceeding as if the complainant gave the evidence at the hearing in person.
(2) However, the court may refuse to admit all or any part of the recorded statement if the court considers it is in the interests of justice to do so.
(3) The complainant may choose not to be present in the courtroom while the court is viewing or listening to the recorded statement.
(4) If the complainant is giving evidence by audiovisual link from an external place under Subdivision D (sexual and violent offence proceedings: giving evidence by audiovisual link) of Division 2, the complainant must not be visible or audible to anyone in the courtroom by closed‑circuit television or by means of similar technology while the court is viewing or listening to the recorded statement.
(5) To remove any doubt, if a recorded statement is admitted as part of a complainant’s evidence in chief in a proceeding, the complainant may give further evidence in chief.
(6) This section is subject to section 174F (recorded statement—admissibility).
174B Recorded statement—hearsay rule and opinion rule
(1) The hearsay rule and the opinion rule do not prevent the admission or use of evidence of a representation in the form of a recorded statement only because it is in that form.
Note: The hearsay rule and opinion rule will apply to the content of the recorded statement to be admitted as evidence.
(2) In this section:
hearsay rule has the same meaning as in the Evidence Act 2004.
opinion rule has the same meaning as in the Evidence Act 2004.
174C Validity of proceeding not affected
(1) The failure of a police officer to record a representation in the form of a recorded statement in accordance with the requirements of this Subdivision does not affect the validity of a proceeding in which evidence of the representation is given.
(2) The failure of a complainant to give evidence in accordance with this Division does not affect the validity of a proceeding or any decision made in connection with the proceeding.
174D Recorded statement—represented accused person to be given copy
(1) This section applies if:
(a) a recorded statement has been made in relation to a domestic violence offence that is the subject of a proceeding; and
(b) the accused person is represented by a lawyer in the proceeding.
(2) The lawyer representing the accused person must be given a copy of the recorded statement as soon as practicable after the proceeding is commenced.
(3) The lawyer representing the accused person must return the copy of the recorded statement by giving it to the prosecutor not later than 16 weeks after the proceeding is finalised.
(4) The accused person must not be given, or take a copy of, the recorded statement.
174E Recorded statement—unrepresented accused person to be given access
(1) This section applies if:
(a) a recorded statement has been made in relation to a domestic violence offence that is the subject of a proceeding; and
(b) the accused person is not represented by a lawyer in the proceeding.
(2) The accused person must be given an audio copy of the recorded statement as soon as practicable after the proceeding is commenced.
(3) Also, if it is reasonably practicable, the accused person must be given an opportunity to view a recorded statement that is in the form of a video recording at a police station on at least one of the following occasions:
(a) when the accused person is being questioned in relation to the alleged domestic violence offence;
(b) at the request of the accused person, on a day arranged with the accused person;
(c) on another day stated in a written notice given to the accused person before committal proceedings or the trial commences.
(4) If compliance with subsection (3) is not reasonably practicable, the accused person must be given the opportunity to view the recorded statement on a day on which proceedings relating to the offence are being held.
174F Recorded statement—admissibility
Evidence of a representation of a complainant given in the form of a recorded statement is not to be admitted if section 174D or 174E have not been complied with, unless the court is satisfied that:
(a) the parties consent to the recorded statement being admitted; or
(b) the accused person or the accused person’s lawyer (if any) have been given a reasonable opportunity to listen to or view the recorded statement and it would be in the interests of justice to admit the recorded statement.
174G Recorded statement—accused person to be given audio copy
(1) This section applies if:
(a) the prosecutor in a domestic violence offence proceeding intends to tender a recorded statement as evidence; and
(b) the court accepts a plea of not guilty from the accused person; and
(c) the accused person has not already been given an audio copy of the recorded statement under section 174E (recorded statement—unrepresented accused person to be given access).
(2) The accused person must be given an audio copy of the recorded statement.
174H Recorded statement—jury trial
(1) This section applies if:
(a) a domestic violence offence proceeding is a trial by jury; and
(b) a recorded statement is admitted in evidence in the proceeding.
(2) The court must tell the jury that:
(a) admission of a recorded statement is a usual practice; and
(b) the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the evidence is given in that way.
(3) If the court considers that a transcript of the recorded statement would be likely to help the jury’s understanding of the evidence, the court may order that the transcript be made available to the jury.
174J Recorded statement—offence to publish
(1) A person commits an offence if the person:
(a) publishes a recorded statement; and
(b) does not have authority to publish the recorded statement.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(2) For the purposes of this section, a person has authority to publish a recorded statement only if the person publishes the recorded statement in connection with:
(a) the investigation of, or a proceeding for, an offence in relation to which the recorded statement is prepared; or
(b) a re‑hearing, re‑trial or appeal in relation to the proceeding; or
(c) a proceeding for the making, variation or revocation of an interim apprehended domestic violence order or an apprehended domestic violence order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI) if:
(i) the protected person under that Act in relation to the order is the complainant in relation to the recorded statement; and
(ii) the defendant under that Act in relation to the order is the person against whom the domestic violence offence, the subject of the recorded statement, is alleged.
(3) In this section:
person includes the complainant in relation to the recorded statement.
publish means communicate or disseminate information in a way or to an extent that makes it available to, or likely to come to the notice of, the public or a section of the public or anyone else not lawfully entitled to the information.
Subdivision D—Recorded statement of police interview admissible as evidence: application for apprehended domestic violence order
175 Recorded statement—may be admitted as evidence in application for apprehended domestic violence order
(1) This section applies if a recorded statement is made in relation to an alleged domestic violence offence.
(2) The recorded statement may be admitted by the Court of Petty Sessions in proceedings for an application for an interim apprehended domestic violence order or an apprehended domestic violence order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI) if:
(a) the protected person under that Act in relation to the order is the complainant in relation to the recorded statement; and
(b) the defendant under that Act in relation to the order is the person against whom the domestic violence offence is alleged.
59H Paragraph 177(2)(c)
After “convicted” (wherever occurring), insert “or found guilty”.
59K Section 183 (paragraph (b) of the definition of criminal proceeding)
After “convicted”, insert “or found guilty”.
59M Section 183 (note to the definition of harm)
Repeal the note.
59P Subsections 184(4), 186(2) and 187(3) (note)
Repeal the note.
59S Division 7 of Chapter 7
Repeal the Division.
59X Subsection 215(3)
Repeal the subsection.
60 Subsection 216(1) (note)
Repeal the note.
60A The Schedule
Repeal the Schedule.
Crown Lands Act 1996 (Norfolk Island)
61 Subsection 6(6)
Repeal the subsection.
Dangerous Drugs Act 1927 (Norfolk Island)
61A Subsection 3(1) (definition of authorised officer)
Repeal the definition, substitute:
authorised officer means:
(a) an officer authorised by the Commonwealth Minister to seize goods liable to forfeiture; or
(b) a person who is a member of the police force for the purposes of the Police Act 1931.
61B Subsection 3(1) (definition of cannabis plant)
Repeal the definition, substitute:
cannabis plant means any plant of the genus Cannabis.
62A Subsection 3(1) (definition of legally qualified dentist)
Repeal the definition, substitute:
legally qualified dentist means a registered health practitioner (within the meaning of the Health Practitioners Act 1983) who is registered in the dental health profession.
62B Part 1 of Schedule 5 (after table item dealing with Methadone intermediate (4‑Cyano‑2‑dimethylamino‑4, 4‑diphenylbutane))
Insert:
62C Schedule 6
Omit “an officer authorised by the Administrator”, substitute “[an officer authorised by the Commonwealth Minister / a member of the police force permitted]”.
Disaster and Emergency Management Act 2001 (Norfolk Island)
63 Section 3 (definition of appointed officer)
Omit “who does not have the powers under section 10 of this Act”.
63AA After section 5
Insert:
5A Relationship with Public Health Act 2005 (Qld) (NI)
Nothing in this Act is intended to exclude or limit the operation of the provisions of the Public Health Act 2005 (Qld) (NI) in accordance with their terms.
63A Subsections 6(3), (4), (5), (6), (7) and (8)
Omit “Minister”, substitute “Chief Executive Officer”.
63B Paragraphs 8(1)(b) and (c)
After “Minister”, insert “and the Chief Executive Officer”.
63C Subsection 8(5)
Omit “Minister”, substitute “Chief Executive Officer”.
64 Subsection 8(7)
Omit “in accordance with”, substitute “for the purposes of”.
64A After subsection 9(1)
Insert:
(1A) For the purposes of subsection (1), an emergency includes an emergency to which a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) relates.
65 Subsection 9(3)
Omit “and may not be extended or renewed without a resolution of the Legislative Assembly”, substitute “unless extended”.
66 Paragraph 9(4)(a)
Repeal the paragraph.
67 Section 10
Repeal the section.
68 Subsection 13(4)
Repeal the subsection.
69 Paragraph 17(9)(b)
Repeal the paragraph.
70 Section 18
Repeal the section.
Dogs Registration Act 1936 (Norfolk Island)
70A Section 3 (definition of approved)
Omit “Minister”, substitute “Chief Executive Officer”.
70B Section 4
Omit “Minister may”, substitute “Chief Executive Officer may, by written instrument,”.
70BA Subsections 5(2) and 5C(2)
Omit “prescribed fee”, substitute “approved fee”.
70BB Subsection 11(2)
Omit “a fee of .50 fee units”, substitute “the approved fee,”.
70C Subsections 12A(1), (2) and (3) and 17A(2) and (6)
Omit “Minister”, substitute “Chief Executive Officer”.
Dogs Registration Regulations 1994 (Norfolk Island)
70D Regulation 2
Repeal the regulation.
71 Subregulation 3(1)
Omit “(1)”.
71A Subregulation 3(1)
Omit “Minister”, substitute “Chief Executive Officer”.
72 Subregulation 3(2)
Repeal the subregulation.
Electricity (Licensing and Registration) Act 1985 (Norfolk Island)
72AA Subsections 9(2) and 10(3)
Omit “prescribed fee”, substitute “approved fee”.
72AB Subsection 22(2)
Omit all the words from and including “prescribe” to and including “penalties”, substitute “prescribe penalties”.
72A Amendments of listed provisions—substituting references to Minister with references to Chief Executive Officer
| Substituting references to Minister with references to Chief Executive Officer |
| Item | Provision | Omit (wherever occurring) | Substitute |
| 1 | Subsections 9(1), (2) and (4), 10(1) and (3) and 11(1) | Minister | Chief Executive Officer |
| 2 | Section 13 | Minister | Chief Executive Officer |
| 3 | Subsections 14(1), (2) and (3), 16(1), 20(1), (2) and (3) and 21(1) | Minister | Chief Executive Officer |
Electricity (Licensing and Registration) Regulations 1986 (Norfolk Island)
72AAA Regulation 4
Repeal the regulation.
72AAB Subregulation 5(2)
Omit “prescribed fee”, substitute “approved fee”.
72AAC Schedule 2
Repeal the Schedule.
Electricity Supply Act 1985 (Norfolk Island)
72AAD Paragraph 11(3)(b)
Omit “prescribed fee”, substitute “approved fee”.
72AAE Subsection 11(3A)
Omit “for electricity charges”, substitute “in respect of an approved fee for the supply of electricity”.
72AAF Subsection 14(1)
Omit “prescribed rental fee”, substitute “approved fee”.
72AAG Section 21
Repeal the section, substitute:
21 Approved fee for supply of electricity
(1) The approved fees are payable in relation to the supply of electricity.
(2) As soon as practicable after the day (the new fee day) a person becomes liable to pay a new approved fee in an amount different from the previous approved fee, a special reading of the person’s meter must be carried out to work out how much electricity was supplied to the person during the period between the day the meter was last read and the new fee day (unless the meter was required to be read for another provision of this Act).
72AAH Section 23 (heading)
Repeal the heading, substitute:
23 Liability for approved fee
72AAI Subsection 23(5)
Omit “charges”, substitute “approved fees”.
72AAJ Subsection 28(2)
After “may prescribe”, insert “the following”.
72AAK Paragraph 28(2)(d)
Omit “charges”, substitute “approved fee”.
72AAL Paragraph 28(2)(e)
Omit “a minimum charge”, substitute “an approved fee”.
72AAM Paragraph 28(2)(k)
Omit “charges”, substitute “approved fees”.
72AAN Paragraph 28(2)(m)
Repeal the paragraph.
72B Amendments of listed provisions—substituting references to Minister with references to Chief Executive Officer
| Substituting references to Minister with references to Chief Executive Officer |
| Item | Provision | Omit (wherever occurring) | Substitute |
| 1 | Subsections 6(1), (2) and (3), 8(1), (3) and (4), 10(1) and 11(1) | Minister | Chief Executive Officer |
| 2 | Paragraph 11(3)(c) | Minister | Chief Executive Officer |
| 3 | Subsections 11(3A) and (4), 11A(2) and (3) and 15(1) and (2) | Minister | Chief Executive Officer |
| 4 | Paragraph 15(3)(d) | Minister | Chief Executive Officer |
| 5 | Subsections 15(4), 16(1) and (2), 21(1), (2), (3) and (6), 23(1), (3) and (4), 24(3) and 27(1) | Minister | Chief Executive Officer |
Electricity Supply Regulations 1986 (Norfolk Island)
72BA Paragraph 33(1)(a)
Omit “minimum charge”, substitute “approved fee for the charging period”.
72BB Paragraph 33(1)(b)
Repeal the paragraph, substitute:
(b) the approved fee per unit of electricity measured by the meter referred to in section 14 of the Act;
72BC Subregulation 34(1)
Omit “prescribed fee”, substitute “approved fee”.
72BD Subparagraph 34A(1)(b)(ii)
Omit “prescribed fees”, substitute “approved fees”.
72BE Subregulation 34A(3)
Omit “charges”, substitute “approved fees”.
72BF Subregulation 34A(5)
Repeal the subregulation, substitute:
(5) The approved fee for reading the meter recording the supply of power into the supply mains is payable by the consumer, and may not be offset against any amount payable to the consumer by the Administration.
72BG Regulation 35
Repeal the regulation.
72BH Schedule 1
Repeal the Schedule.
72C Amendments of listed provisions—substituting references to Minister with references to Chief Executive Officer
| Substituting references to Minister with references to Chief Executive Officer |
| Item | Provision | Omit (wherever occurring) | Substitute |
| 1 | Paragraphs 13(5)(a) and (b) and 34A(1)(b) | Minister | Chief Executive Officer |
| 2 | Subregulation 34A(2) | Minister | Chief Executive Officer |
| 3 | Schedule 1 (item 12 of the table) | Minister | Chief Executive Officer |
| 4 | Schedule 2 (Form 3) | Minister | Chief Executive Officer |
Employment Act 1988 (Norfolk Island)
73 Section 3
Repeal the section.
73A Section 4
Insert:
approved means approved in writing by the Employment Liaison Officer, under subsection 47E(3), for the purposes of the provision in which the term occurs.
73B Section 4
Repeal the following definitions:
(a) definition of Board;
(b) definition of Chairman.
73C Section 4
Insert:
Electronic Transactions Act means the Electronic Transactions Act 1999 of the Commonwealth.
eligible party has the meaning given by subsection 82AA(4).
Employment Liaison Officer means the person appointed as the Employment Liaison Officer under section 47F.
incapacity has the meaning given by subsection 28(1).
independent medical examination has the meaning given by subsection 47A(2).
inspector means a person appointed to be an inspector under subsection 57(1).
internal reviewer has the meaning given by subsection 66(3).
73D Section 4 (definition of legal practitioner)
Omit “in a State or Territory or in New Zealand”, substitute “in Norfolk Island”.
73E Section 4 (definition of member of the Board)
Repeal the definition.
73F Section 4
Insert:
membership fees for a public scheme means the fees for the scheme prescribed by rules made for the purposes of subsection 39B(5).
73G Section 4 (definitions of minimum rate and pay period)
Repeal the definition.
73H Section 4
Insert:
permanent incapacity has the meaning given by subsection 28(2).
permanent incapacity assessment has the meaning given by subsection 32(3).
73J Section 4 (definition of permit holder)
Repeal the definition.
73K Section 4
Insert:
registered health practitioner has the same meaning as in the Health Practitioners Act 1983.
registered medical practitioner has the same meaning as in the Health Practitioners Act 1983.
rehabilitation program, in relation to an injury or condition, means a program involving the provision of rehabilitation services for the injury or condition.
rehabilitation services, in relation to an injury or condition, means services provided to a person in connection with the person’s rehabilitation from the injury or condition, including (without limitation) the following:
(a) medical, dental, psychiatric or hospital services (whether on an in‑patient or out‑patient basis);
(b) services provided in connection with physical training or exercise;
(c) physiotherapy;
(d) occupational therapy;
(e) vocational training;
(f) assistance in finding suitable work;
(g) an approved service.
responsible party has the meaning given by subsection 32(2).
73KA Section 4 (definition of RPI)
Repeal the definition.
73KB Section 4
Insert:
rules means rules made under section 108.
73L Section 4 (definition of temporary entry permit)
Repeal the definition.
73M Section 4 (definition of this Act)
Omit “Regulations” (wherever occurring), substitute “rules”.
73N Section 4 (definition of Tribunal)
Repeal the definition, substitute:
Tribunal means the Court of Petty Sessions, when the Court is exercising jurisdiction conferred by subsection 78(1).
Note: The jurisdiction conferred by subsection 78(1) relates to matters arising under Part 3 (compensation for work‑related accidents, etc.)
73P Section 4 (definition of working week)
Repeal the definition.
73Q Section 4
Insert:
work‑related accident means a situation or event occurring at a workplace or arising out of, or in the course of, an employee’s work that results in death or injury.
73R After subsection 6(1)
Insert:
(1A) If, in relation to a matter, this Act refers to an entity which is not a person, the reference is taken to include a reference to a person nominated by the entity to act on behalf of the entity.
Example: This subsection applies to a reference in Part 5 (review of matters related to compensation) to an entity that is an employer mentioned in subsection (1) of this section, but is not a natural person, a body corporate or a body politic.
73S Paragraph 7(1)(b)
After “Commonwealth”, insert “or New South Wales”.
73T Section 8 (heading)
Omit “Regulations”, substitute “Rules”.
73U Subsections 8(1) and (2)
Omit “Regulations” (wherever occurring), substitute “rules”.
73V Section 9
Repeal the section, substitute:
9 Public holidays
Each of the following days in a year is to be observed as a public holiday:
(a) New Year’s Day—1 January and, if that day is a Saturday or Sunday, the next Monday;
(b) Australia Day—26 January, or, if that day is a Saturday or Sunday, the next Monday;
(c) Foundation Day—6 March and, if that day is a Sunday, the next Monday;
(d) Good Friday;
(e) Easter Monday;
(f) Anzac Day—25 April;
(g) Bounty Day—8 June and, if that day is a Saturday or Sunday, the next Monday;
(h) Sovereign’s Birthday—the first Monday after the second Saturday in June or, if that Monday is observed as Bounty Day under paragraph (g), the next Monday;
(i) Show Day—the second Monday in October;
(j) Thanksgiving—the last Wednesday in November;
(k) Christmas Day—25 December and, if that day is a Saturday or Sunday, 27 December;
(l) Boxing Day—26 December and, if that day is a Saturday or Sunday, 28 December.
73VA After section 9
Add:
9A National Day of Mourning
A National Day of Mourning for Her Majesty Queen Elizabeth II is to be observed as an additional, one‑off, public holiday on 22 September 2022.
73W Divisions 1, 2 and 3 of Part 2
Repeal the Divisions.
73X Subsection 24(2)
Omit “Subject to subsection 24(1) an employer”, substitute “In addition, an employer”.
73Y Paragraphs 24(2)(a) and (b)
Repeal the paragraphs, substitute:
(a) for more than 20 hours during a week in which the person is required by law to attend school; or
(b) for more than 40 hours during any other week.
73Z Subsection 24(3)
Omit “prescribed training position”, substitute “training position prescribed by the rules for the purposes of this subsection”.
73ZA Subsection 24(4)
Omit “of a class defined in the Regulations”, substitute “who belongs to a class prescribed by the rules, for the purposes of this subsection,”.
73ZB Section 25
Repeal the section.
73ZC Before section 26
Insert:
Division 1—Interpretation
73ZD Subsection 26(1) (definition of approved)
Repeal the definition.
73ZE Subsection 26(1) (definition of de facto spouse)
Repeal the definition.
73ZF Subsection 26(1) (definition of disease)
Repeal the definition, substitute:
disease has the meaning given by section 28A.
73ZG Subsection 26(1) (definitions of hospital and Medical Superintendent)
Repeal the definitions.
73ZH Subsection 26(1) definition of medical treatment)
Repeal the definition, substitute:
medical treatment means any or all of the following:
(a) attendance, examination or treatment of any kind by a registered health practitioner who is registered under a National Law (within the meaning of the My Health Records Act 2012 of the Commonwealth) to practise one of the following professions (including a recognised speciality in one of the following professions):
(i) medical;
(ii) dental;
(iii) optometry;
(iv) physiotherapy;
(v) chiropractic;
(vi) osteopathy;
(vii) podiatry;
(b) an examination, test or analysis carried out at the request or direction of a person referred to in paragraph (a), including the provision of a report in respect of such an examination, test or analysis;
(c) the provision and, as necessary from time to time, the repair, adjustment or replacement of crutches, artificial members, artificial eyes or teeth, spectacles, hearing aids or other aids;
(d) the provision of skiagrams;
(e) maintenance, attendance at and treatment in a hospital;
(f) the provision by a hospital of any or all of the following:
(i) medical attendance and treatment;
(ii) nursing attendance;
(iii) medicines, medical, surgical and other curative materials, appliances or apparatus;
(iv) any other usual or necessary hospital services with respect to the treatment of the injury or disease of an employee;
(g) rehabilitation services;
(h) any other approved treatment (which may include treatment by a person practising a profession that is not listed in subparagraphs (i) to (vii) of paragraph (a)).
73ZI Subsection 26(1) (definition of public scheme)
Omit “referred to in subsection 39(4)”, substitute “established under subsection 39A(1)”.
73ZJ Subsection 26(1) (definition of spouse)
Omit “de facto spouse”, substitute “de facto partner”.
73ZK Subsection 26(1) (definition of work related accident)
Repeal the definition.
73ZL Subsections 26(3), (4) and (5)
Repeal the subsections, substitute:
(3) For the purposes of subsection (2), without limiting who is a parent, and who is a child:
(a) each of the following is a person’s child:
(i) an adoptive child of the person;
(ii) a child of the person’s spouse who is ordinarily resident with the person in the person’s household;
(iii) the person’s child within the meaning of the Family Law Act 1975 of the Commonwealth; and
(b) a person is a parent of another person if the other person is the person’s child because of paragraph (a).
73ZM Section 28
Repeal the section, substitute:
28 Meanings of incapacity and permanent incapacity
Meaning of incapacity
(1) For the purposes of this Act, incapacity means:
(a) injury by reason of a work‑related accident;
(b) the physical or mental consequences of:
(i) an injury by reason of a work‑related accident; or
(ii) a work‑related accident;
(c) industrial deafness within the meaning of section 33;
(d) hernia within the meaning of section 34;
(e) occupational disease within the meaning of section 35;
(f) a cardiovascular or cerebrovascular episode within the meaning of section 36.
Note: Under section 30, an employee is entitled to periodical compensation if the employee’s incapacity results in a total or partial loss or diminution of the employee’s capacity to earn.
Meaning of permanent incapacity
(2) For the purposes of this Act, an employee suffers permanent incapacity in relation to a loss or impairment of a bodily or mental function of the employee if the loss or impairment:
(a) is caused by incapacity (within the meaning of subsection (1)); and
(b) is permanent; and
(c) results in a loss of amenities or of enjoyment of life (or both) for the employee.
Note: Under section 31, an employee is entitled to lump sum compensation if the employee suffers permanent incapacity, whether or not the incapacity results in a loss or diminution of the employee’s capacity to earn.
28A Meaning of disease
(1) For the purposes of this Part, disease means an ailment suffered by an employee, or an aggravation of such an ailment, to which the employee’s employment made a significant contribution.
(2) In determining whether an employee’s employment made a significant contribution to an ailment suffered by the employee, or to an aggravation of such an ailment, the matters that may be taken into account include (but are not limited to) the following:
(a) the duration of the employment;
(b) the nature of the employment, and the particular tasks involved in the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
Division 2—Compensation: work‑related accidents etc.
73ZN Paragraph 29(1)(a)
Omit “personal”.
73ZO Paragraph 29(1)(d)
Omit “cardio‑vascular or cerebro‑vascular”, substitute “cardiovascular or cerebrovascular”.
73ZP Paragraph 29(2)(a)
After “prescribed”, insert “by the rules”.
73ZPA Paragraph 29(2)(a)
Omit “paragraph 31(2)(c)”, substitute “paragraph 32B(2)(b)”.
73ZQ Section 30 (heading)
Repeal the heading, substitute:
30 Periodical compensation—loss or diminution of capacity to earn
73ZR Subsection 30(1)
After “incapacity”, insert “resulting in a loss or diminution of the employee’s capacity to earn”.
73ZS Paragraph 30(4)(a)
Omit “under section 17 by reason of ill health”, substitute “on paid personal/carer’s leave taken under Subdivision A of Division 7 of Part 2‑2 of the Fair Work Act 2009 of the Commonwealth”.
73ZT Subparagraph 30(4)(a)(ii)
After “section 10”, insert “before 1 July 2016 and having effect for the purposes of the Fair Work Act 2009 of the Commonwealth (as that Act applies in relation to Norfolk Island with modifications made by rules under section 32A of that Act), or a modern award or enterprise agreement applying to the employee under that Act,”.
73ZU Subparagraph 30(4)(b)(i)
Omit “the prescribed amount”, substitute “the amount prescribed by the rules for the purposes of this subparagraph”.
73ZV Subparagraph 30(4)(b)(ii)
Omit “where that amount is less than the prescribed amount”, substitute “, where that amount is less than the amount prescribed for the purposes of subparagraph (i)”.
73ZW Section 31 (heading)
Repeal the heading, substitute:
31 Compensation for permanent incapacity—general
73ZX Subsections 31(1) and (2)
Repeal the subsections, substitute:
(1) If an employee suffers permanent incapacity in relation to a loss or impairment of a bodily or mental function, the employer must pay lump sum compensation to the employee in accordance with this section.
(2) Lump sum compensation is payable:
(a) in addition to any other compensation payable in accordance with this Part; and
(b) in an amount calculated under subsection 32B(2); and
(c) whether or not the loss or impairment of bodily or mental function results in a loss or diminution of the employee’s capacity to earn.
73ZY Section 32
Repeal the section, substitute:
32 Compensation for permanent incapacity—assessment
Scope of this section
(1) This section applies in relation to an employee if:
(a) the employee suffers a loss or impairment of a bodily or mental function; and
(b) the employee makes a claim for lump sum compensation under section 37A for permanent incapacity in relation to the loss or impairment.
(2) The responsible party for the claim for compensation in relation to the loss or impairment is as follows:
(a) if the claim is made against an employer, or former employer, of the employee who was, at the time of the events giving rise to, or contributing to, the loss or impairment, a member of a public scheme—the Employment Liaison Officer;
(b) if the claim is made against the Commonwealth—the Employment Liaison Officer;
(c) in any other case—the person or entity against whom the claim is made.
Note: A claim for compensation will usually be made against an employer, or former employer, of an employee. However, the claim may be made against the Commonwealth under section 40 (if the employer is not insured or indemnified) or section 41 (if the employer ceases to exist).
(3) A permanent incapacity assessment of the employee is an assessment undertaken in accordance with this section by a registered medical practitioner, for the purpose of determining:
(a) whether the employee has suffered permanent loss or impairment of a bodily or mental function entitling the employee to be paid lump sum compensation for permanent incapacity under section 31; and
(b) if the employee has suffered such permanent loss or impairment—the degree of the permanent loss or impairment, expressed as a percentage.
Requirement to attend for assessment
(4) The responsible party in relation to the claim for compensation may:
(a) make reasonable arrangements for a registered medical practitioner to undertake a permanent incapacity assessment of the employee; and
(b) give reasonable written notice to the employee requiring the employee to attend for a permanent incapacity assessment in accordance with the arrangements.
Conduct of assessment
(5) A person who undertakes a permanent incapacity assessment of an employee must not assess the degree of any permanent loss or impairment of a bodily or mental function suffered by the employee until the person is satisfied that the degree of that loss or impairment has stabilised.
(6) A person who undertakes a permanent incapacity assessment of an employee:
(a) must apply the following (so far as they are applicable):
(i) the Schedule to this Act;
(ii) any approved guide; and
(b) may have regard to reports or advice obtained from a registered health practitioner of a kind referred to in paragraph (a) of the definition of medical treatment in subsection 26(1).
Costs of assessment
(7) The responsible party in relation to a claim for compensation must pay the costs of a permanent incapacity assessment in relation to the claim.
(8) The costs of a permanent incapacity assessment of an employee include any reasonable costs associated with travel by the employee (and if necessary, an escort or escorts for the employee) to and from the place where the assessment is to take place.
32A Compensation for permanent incapacity—failure to attend for assessment
(1) An employee’s right to lump sum compensation under section 31 in relation to a loss or impairment of a bodily or mental function is suspended if the employee fails, without reasonable excuse, to comply with a notice to attend for a permanent incapacity assessment given to the employee under subsection 32(4) in relation to that loss or impairment.
(2) If an employee’s right to lump sum compensation in relation to a loss or impairment is suspended under subsection (1), the suspension continues until:
(a) the responsible party in relation to the claim gives the employee a new notice under subsection 32(4) setting out new arrangements for a permanent incapacity assessment in relation to the loss or impairment; and
(b) the employee complies with the new notice to attend for such an assessment.
32B Compensation for permanent incapacity—report of assessment and amount of compensation
Report of assessment
(1) A person who undertakes a permanent incapacity assessment of an employee must, as soon as practicable after concluding the assessment:
(a) prepare a written report of the assessment, including findings as to the matters mentioned in paragraphs (a) and (b) of the definition of permanent incapacity assessment in subsection 32(3); and
(b) give a copy of that written report to:
(i) the employee; and
(ii) the responsible party who arranged the assessment.
Note: Paragraphs (a) and (b) of the definition of permanent incapacity assessment in subsection 32(3) relate to whether, and to what degree, the employee has suffered permanent incapacity.
Amount of lump sum compensation
(2) For the purposes of paragraph 31(2)(b), if the report of a permanent incapacity assessment indicates that the employee has suffered permanent incapacity with a specified percentage of permanent loss or impairment of bodily or mental function, the amount of lump sum compensation payable to the employee in relation to the loss or impairment is:
(a) if the specified percentage is 2% or less—nil; and
(b) if the specified percentage is 90% or more—an amount prescribed by the rules for the purposes of this paragraph; and
(c) otherwise—an amount that is the specified percentage of the amount prescribed for the purposes of paragraph (b).
32C Compensation for permanent incapacity—powers of Tribunal
For the purposes of an inquiry under Division 2 of Part 5 in relation to an employee’s claim for lump sum compensation under section 37A for permanent incapacity in relation to a loss or impairment of a bodily or mental function, the orders the Tribunal may make under section 85 include the following:
(a) an order requiring a responsible party under subsection 32(2) in relation to the claim to arrange for a permanent incapacity assessment in relation to the employee’s loss or impairment;
(b) an order:
(i) varying a permanent incapacity assessment in relation to the loss or impairment; or
(ii) setting aside such an assessment; or
(iii) remitting such an assessment for reconsideration.
73ZZ Subsection 33(1)
Omit “paragraph 28(1)(b)”, substitute “paragraph (c) of the definition of incapacity in subsection 28(1)”.
74 Subsection 33(2)
Omit “An assessment under section 32 of the percentage of permanent loss or impairment of function, in relation to industrial deafness,”, substitute “A permanent incapacity assessment in relation to industrial deafness”.
74A Subsection 34(1)
Omit “(1)” (first occurring).
74B Subsection 34(1)
Omit “paragraph 28(1)(c)”, substitute “paragraph (d) of the definition of incapacity in subsection 28(1)”.
74C Paragraph 34(1)(b)
Omit “employment; and”, substitute “employment.”.
74D Paragraph 34(1)(c)
Repeal the paragraph.
74E Subsection 34(2)
Repeal the subsection.
74F Subsection 35(1)
Omit “paragraph 28(1)(d)”, substitute “paragraph (e) of the definition of incapacity in subsection 28(1)”.
74G Subsection 35(3)
Repeal the subsection, substitute:
(3) Compensation under this Part is not payable in respect of occupational disease contracted by an employee due to the nature of the employee’s employment if, at the time of entering that employment:
(a) the employee falsely represented to the employer that the employee had not previously suffered a disease of the kind that was contracted; and
(b) the employee did so knowing that the representation was false.
74H Subsection 36(1)
Omit “A cardio‑vascular or cerebro‑vascular episode constitutes an episode for the purposes of paragraph 28(1)(e)”, substitute “A cardiovascular or cerebrovascular episode constitutes an episode for the purposes of paragraph (f) of the definition of incapacity in subsection 28(1)”.
74J Subsection 36(2)
Omit “cardio‑vascular” (wherever occurring), substitute “cardiovascular”.
74K Subsection 36(2)
Omit “cerebro‑vascular” (wherever occurring), substitute “cerebrovascular”.
74L Section 37
Repeal the section, substitute:
37 Compensation for reasonable costs of medical treatment
Scope of this section
(1) This section applies to an employer if:
(a) the employer is liable under this Part to pay compensation to, or in respect of, an employee in relation to an injury or condition; or
(b) the employer would have been liable under this Part to pay compensation to, or in respect of, an employee in relation to an injury or condition, but for:
(i) the fact that the employee did not suffer a loss or diminution of the employee’s capacity to earn; or
(ii) the operation of paragraph 32B(2)(a).
Note: Under paragraph 32B(2)(a), an employer is not liable to pay lump sum compensation under section 31 in relation to an employee’s permanent incapacity if the assessed degree of loss or impairment is 2% or less.
Compensation payable by public scheme employers
(2) If the employer was a member of a public scheme at the time of the events giving rise to, or contributing to, the injury or condition, the employer is liable to pay compensation to, or in respect of, the employee for costs incurred by, or on behalf of, the employee relating to medical treatment for the injury or condition, in accordance with subsection (3).
(3) Any costs payable as compensation under subsection (2):
(a) must be reasonable; and
(b) must be approved by the Employment Liaison Officer as reasonably appropriate in the circumstances; and
(c) are to consist of the following costs of medical treatment, to the extent that the treatment is reasonable and appropriate in the circumstances:
(i) any costs of medical treatment for the injury or condition, whether carried out in Norfolk Island or in another place;
(ii) the costs of transporting the employee (and if necessary, an escort or escorts for the employee) to and from a place where medical treatment is available;
(iii) the costs of enabling the employee (and if necessary, an escort or escorts for the employee) to remain in a place where medical treatment is available for the purpose of obtaining that medical treatment;
(iv) any costs incurred on the employee’s behalf by a person or body other than the employee relating to medical treatment for the employee’s injury or condition (including costs mentioned in subparagraphs (ii) and (iii)); and
(d) must not exceed the maximum amount, if any, in relation to the medical treatment for the injury or condition, prescribed by rules made for the purposes of this paragraph.
Note: For paragraph (d), the rules may make different provision with respect to different matters or classes of matter, including for example different kinds of treatment and different injuries or conditions: see subsection 33(3A) of the Acts Interpretation Act 1901 of the Commonwealth (as applied by section 8A of the Interpretation Act 1979).
Compensation payable by other employers
(4) If the employer was not a member of a public scheme at the time of the events giving rise to, or contributing to, the injury or condition, the employer is liable to pay compensation to, or in respect of, the employee for costs relating to medical treatment for the injury or condition, in accordance with subsection (5).
(5) The costs payable as compensation under subsection (4):
(a) must be reasonable; and
(b) are to consist of any or all of the costs of medical treatment mentioned in subparagraphs (3)(c)(i) to (iv), to the extent that the treatment is reasonable and appropriate in the circumstances.
Division 3—Compensation: payment of claims
37AA Interpretation—references to liability to pay compensation under this Part
A reference in sections 39 to 40 to an employer’s liability to pay compensation under this Part, or to the full amount of an employer’s liability to pay compensation under this Part, does not include a reference to the employer’s liability to pay:
(a) compensation because of:
(i) subparagraph 30(4)(a)(i); or
(ii) subparagraph 30(4)(a)(ii), except to the extent that a period referred to in that subparagraph exceeds 2 weeks; or
(b) in relation to each claim for compensation under this Part made against the employer (other than compensation to which paragraph (a) of this section applies)—an amount equal to the amount (if any) prescribed by the rules for the purposes of this paragraph.
Note: Paragraph 30(4)(a) applies where an employee is suffering from total incapacity, and requires payment of compensation to the employee in relation to an initial period when the employee is absent from duty.
74M Paragraph 37A(2)(a)
Omit “in accordance with the form prescribed for the purposes of this paragraph”, substitute “in the approved form”.
74N Paragraph 37A(2)(b)
Omit “by a medical practitioner in accordance with the form prescribed for the purposes of this paragraph”, substitute “given by a registered medical practitioner in the approved form”.
74P Sections 38, 39 and 39A
Repeal the sections, substitute:
38 Rehabilitation
Scope of this section
(1) This section applies if:
(a) an employee makes a claim for compensation under section 37A in relation to an injury or condition of the employee; and
(b) the claim is made against:
(i) an employer, or former employer, of the employee who was a member of a public scheme at the time of the events giving rise to, or contributing to, the injury or condition; or
(ii) the Commonwealth.
Note: A claim for compensation will usually be made against an employer, or former employer, of an employee. However, the claim may be made against the Commonwealth under section 40 (if the employer is not insured or indemnified) or section 41 (if the employer ceases to exist).
Requirement to undertake rehabilitation program
(2) The Employment Liaison Officer may, by notice in writing given to the employee, require the employee to undertake a rehabilitation program for the injury or condition, consisting of rehabilitation services for which compensation is, or would be, payable by the employer under subsection 37(2).
Note: Compensation is payable under subsection 37(2) for the costs of medical treatment (which includes rehabilitation services) incurred by or on behalf of an employee, subject to the conditions set out in subsection 37(3).
(3) If the employee is required under subsection (2) to undertake a rehabilitation program for the injury or condition, and the employee fails without reasonable excuse to begin, or continue with, the program, the employee’s right to compensation under this Act in relation to the injury or condition is suspended until the employee begins, or continues with, the program.
Support for rehabilitation
(4) Subsection (5) applies if:
(a) the claim for compensation is made against the employee’s current employer; and
(b) the current employer is not taking reasonable steps to:
(i) accommodate the injury or condition of the claimant to which the claim relates; and
(ii) support the claimant’s rehabilitation from that injury or condition.
(5) Any obligation of the Commonwealth under subsection 39A(2) to indemnify the current employer in relation to the claim for compensation is suspended until the current employer takes reasonable steps of the kind referred to in paragraph (4)(b) of this section.
39 Compulsory insurance
Requirement to have insurance
(1) An employer must have a policy of insurance or indemnity with an insurer for the full amount of the employer’s liability under this Part to pay compensation if:
(a) the employer is not a member of a public scheme; and
(b) the employer is not prescribed by the rules for the purposes of this paragraph.
Offence
(2) An employer commits an offence if:
(a) the employer is required under subsection (1) to have a policy of insurance or indemnity for the full amount of the employer’s liability under this Part to pay compensation; and
(b) the employer does not have such a policy.
Penalty:
(a) in the case of a natural person—imprisonment for 2 years or 50 penalty units, or both;
(b) in the case of a body corporate—250 penalty units.
(3) For the purposes of subsection (2):
(a) strict liability applies to paragraph (2)(a); and
(b) recklessness is the fault element for paragraph (2)(b).
Evidentiary certificates
(4) In proceedings against a person (the defendant) for an offence against subsection (2), the following certificates are prima facie evidence of the matters stated in the certificates:
(a) a certificate that is signed, or purports to be signed, by an employee or agent of an insurer stating that there was not in force, on a specified date, a policy of insurance or indemnity issued by the insurer for the full amount of the defendant’s liability under this Part to pay compensation;
(b) a certificate that is signed, or purports to be signed, by the Employment Liaison Officer stating either or both of the following:
(i) that the defendant was not, on a specified date, a member of a public scheme;
(ii) that the defendant was not, on a specified date, prescribed by the rules for the purposes of paragraph (1)(b).
Joint insurance
(5) To avoid doubt, if subsection 39(1) requires an employer to have a policy of insurance or indemnity with an insurer for the full amount of the employer’s liability under this Part to pay compensation, nothing in this Part prevents the employer from satisfying that requirement (in whole or in part) by jointly entering, with one or more other employers, into a contract of insurance or indemnity with an insurer.
39A Public schemes—general
Establishment
(1) The Commonwealth Minister may establish a scheme to indemnify employers for their liability under this Part to pay compensation.
Employer indemnity
(2) The Commonwealth must indemnify an employer for the full amount of the employer’s liability under this Part to pay compensation, if the employer was a member of a public scheme at the time of the events giving rise to the employer’s liability.
Limitation on scope of indemnity
(3) The Commonwealth’s obligation under subsection (2) to indemnify an employer only covers the employer’s liability to pay compensation under this Part as assessed in accordance with information:
(a) given by the employer as required under subsection 39B(2) (information to be included with application to join a public scheme); or
(b) given by the employer as required under subsection 39B(10) (information relevant to the management or control of a public scheme).
39B Public schemes—membership
Becoming a member of a public scheme
(1) An employer may apply to the Employment Liaison Officer, in writing, to become a member of a public scheme.
(2) An application under subsection (1) must:
(a) include any information that the Employment Liaison Officer requires, in writing, to be included with an application; and
(b) if there is an approved form for making an application—be made in the approved form.
(3) On receiving an application under subsection (1), the Employment Liaison officer must decide:
(a) to grant the application; or
(b) to refuse to grant the application.
(4) In deciding whether to grant an application, the Employment Liaison Officer:
(a) must have regard to any considerations prescribed by the rules for the purposes of this paragraph; and
(b) may have regard to any other matters that the Employment Liaison Officer considers relevant.
Membership fees
(5) The rules may prescribe membership fees for a public scheme.
(6) Without limiting subsection (5), rules made for the purposes of that subsection may do any of the following:
(a) prescribe different membership fees for different employers or classes of employer;
(b) prescribe different membership fees for different periods;
(c) prescribe a membership fee by:
(i) specifying an amount as the fee; or
(ii) specifying a method for working out the fee.
(7) In working out the membership fees for an employer in accordance with rules made for the purposes of subsection (5), the Employment Liaison Officer may have regard to:
(a) any information provided by the employer to the Employment Liaison Officer (whether under subsection (10) or otherwise); and
(b) any other information available to the Employment Liaison Officer.
(8) The membership fees for a public scheme are payable on the days determined under subsection (9).
(9) The Employment Liaison Officer may, by notifiable instrument, determine days for the purposes of subsection (8).
Employment Liaison Officer may require information
(10) The Employment Liaison Officer may, by written notice, require an employer who is a member of a public scheme to do any of the following:
(a) provide specified information that is relevant to the management and control of the public scheme, including information relevant to determining membership fees for the scheme;
(b) provide that specified information:
(i) in an approved form; and
(ii) by a specified time.
Revocation of membership
(11) The Employment Liaison Officer may revoke an employer’s membership of a public scheme if:
(a) the employer does not pay the employer’s membership fees for the scheme within a reasonable period after the day when those fees are payable (as determined under subsection (9)); or
(b) the employer fails to comply with a requirement under subsection (10) to provide specified information by a specified time.
74Q Paragraph 40(1)(c)
Omit “prescribed for the purposes of subsection 39(2)”, substitute “prescribed by the rules for the purposes of paragraph 39(1)(b)”.
74R Subsection 40(1)
Omit “and the liability is not a liability referred to in subsection 39(11), the Administration is liable to pay the compensation as if the Administration”, substitute “the Commonwealth is liable to pay the compensation as if the Commonwealth”.
74S Subsections 40(2) and (2A)
Omit “Administration” (wherever occurring), substitute “Commonwealth”.
74T Paragraph 41(1)(b)
Omit “Administration”, substitute “Commonwealth”.
74U Paragraph 41(1)(c)
Omit “prescribed for the purposes of subsection 39(2)”, substitute “prescribed by the rules for the purposes of paragraph 39(1)(b)”.
74V Subsection 41(1)
Omit “Administration or person”, substitute “the Commonwealth or the person”.
74W Subsection 41(2)
Omit “levies”, substitute “membership fees”.
74X Section 42
Repeal the section, substitute:
42 Indexation of compensation amounts
(1) On 1 July 2021 and each later 1 July (an indexation day), if the indexation factor for the indexation day is greater than 1, this Act has effect as if each compensation amount were substituted by the amount worked out using the formula:
(2) The indexation factor for an indexation day is the number worked out using the formula:
where:
base quarter means the March quarter ending 1 year before the reference quarter ends.
index number, for a quarter, means the All Groups Consumer Price Index number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter.
March quarter means a period of 3 months ending on 31 March.
reference quarter means the March quarter immediately before the indexation day.
(3) Amounts worked out under subsection (1) are to be rounded to the nearest whole dollar (rounding 50 cents upwards).
(4) The indexation factor is to be worked out:
(a) to 3 decimal places (rounding up if the fourth decimal place is 5 or more); and
(b) using only the index numbers published in terms of the most recently published index reference period for the Consumer Price Index; and
(c) disregarding index numbers published in substitution for previously published index numbers (except where the substituted numbers are published to take account of changes in the index reference period).
When substituted amount is payable
(5) If an amount is substituted under subsection (1) on an indexation day, the substituted amount is payable:
(a) in respect of periodical compensation—on and after the first payment date for the compensation occurring after the indexation day; or
(b) in respect of lump sum compensation—in respect of any payment of lump sum compensation made after the indexation day.
Publication of substituted amounts
(6) As soon as practicable after the day on which the Australian Statistician publishes the index number for a March quarter, the Employment Liaison Officer must:
(a) ascertain whether any amounts will be substituted under subsection (1) on the indexation day immediately after the end of the quarter; and
(b) if any amounts will be substituted—publish notice, by notifiable instrument, of the substituted amounts.
Compensation amount
(7) A compensation amount is:
(a) an amount prescribed by the rules for the purposes of subparagraph 30(4)(b)(i) or paragraph 32B(2)(b); or
(b) the amount (if any) last substituted under this section for an amount mentioned in paragraph (a).
74ZA Paragraphs 43(1)(a) and (b)
Repeal the paragraphs, substitute:
(a) suffers incapacity; or
74ZB Paragraphs 43(1)(d) and (e)
Repeal the paragraphs, substitute:
(d) an injury or condition out of which the incapacity arose; or
74ZC Subsection 43(4)
Omit “It is the intention of the Legislative Assembly that compensation”, substitute “Compensation”.
74ZD Section 46 (heading)
Repeal the heading, substitute:
46 Overpaid amounts
74ZE Section 46
After “by way of compensation”, add “or indemnity”.
74ZF Section 47
Repeal the section, substitute:
47 Information relevant to claims
Scope of this section
(1) The section applies if:
(a) a claim for compensation is made under section 37A by a person (the claimant) in relation to an injury or condition of, or the death of, an employee (the relevant employee); and
(b) the relevant employee was employed by a person or entity (the relevant employer) at the time of the events (the relevant events) giving rise to, or contributing to, the relevant employee’s injury, condition or death; and
(c) the claim is made against:
(i) the relevant employer, if the employer was, at the time of the relevant events, a member of a public scheme; or
(ii) the Commonwealth.
Note: A claim for compensation will usually be made against an employer, or former employer, of an employee. However, the claim may be made against the Commonwealth under section 40 (if the employer is not insured or indemnified) or section 41 (if the employer ceases to exist).
Employment Liaison Officer may require information
(2) If the Employment Liaison Officer reasonably believes that the claimant or the relevant employer has information relevant to the claim for compensation, the Employment Liaison Officer may, by written notice given to the claimant or the relevant employer (as the case may be), require that information to be provided to the Employment Liaison Officer:
(a) within 14 days after the day on which the notice is received; or
(b) within such longer period (if any) as the Employment Liaison Officer allows.
Failure to comply—claimant
(3) If the claimant fails, without reasonable excuse, to comply with a notice under subsection (2), any right of the claimant to compensation under this Act in relation to the injury, condition or death is suspended until the claimant complies with the notice.
Failure to comply—relevant employer
(4) If:
(a) the relevant employer was, at the time of the relevant events, a member of a public scheme; and
(b) the relevant employer fails, without reasonable excuse, to comply with a notice under subsection (2);
then any obligation of the Commonwealth under subsection 39A(2) to indemnify the relevant employer in relation to the claim is suspended until the relevant employer complies with the notice.
47A Independent medical examinations—requirement by Employment Liaison Officer
Scope of this section
(1) This section applies if:
(a) an employee makes a claim for compensation under section 37A in relation to an injury or condition of the employee, other than a claim for compensation payable under section 31 (which deals with compensation for permanent incapacity); and
(b) the claim is made against:
(i) an employer, or former employer, of the employee who was a member of a public scheme at the time of the events giving rise to, or contributing to, the injury or condition; or
(ii) the Commonwealth.
Note 1: For medical assessments (known as permanent incapacity assessments) in relation to claims for compensation under section 31, see sections 32 to 32C.
Note 2: A claim for compensation will usually be made against an employer, or former employer, of an employee. However, the claim may be made against the Commonwealth under section 40 (if the employer is not insured or indemnified) or section 41 (if the employer ceases to exist).
Requirement to attend for examination
(2) The Employment Liaison Officer may:
(a) make reasonable arrangements for a registered medical practitioner to undertake a medical examination (an independent medical examination) of the employee in relation to the injury or condition to which this section applies; and
(b) give reasonable written notice to the employee requiring the employee to attend for the independent medical examination in accordance with the arrangements.
(3) The notice under paragraph (2)(b) must include a statement about how the employee may obtain a copy of the report of the assessment under section 47C.
Costs of examination
(4) The Employment Liaison Officer must pay the costs of an independent medical examination on behalf of the Commonwealth.
(5) The costs of an independent medical examination of an employee include any reasonable costs associated with travel by the employee (and if necessary, an escort or escorts for the employee) to and from the place where the assessment is to take place.
Frequency of examinations
(6) An employee must not be required to undergo an examination under this section at more frequent intervals than are prescribed by rules made for the purposes of this subsection.
47B Independent medical examinations—failure to attend examination
(1) An employee’s right to compensation in relation to an injury or condition to which section 47A applies is suspended if the employee fails, without reasonable excuse, to comply with a notice to attend for an independent medical examination given to the employee under subsection 47A(2) in relation to that injury or condition.
(2) If an employee’s right to compensation in relation to an injury or condition is suspended under subsection (1), the suspension continues until:
(a) the Employment Liaison Officer gives the employee a new notice under subsection 47A(2) setting out new arrangements for an independent medical examination in relation to the injury or condition; and
(b) the employee complies with the new notice to attend for such an examination.
47C Independent medical examinations—report of examination
(1) A person who undertakes an independent medical examination of an employee in relation to a claim for compensation under section 37A must, as soon as practicable after concluding the assessment, give a written report of the examination to the Employment Liaison Officer.
(2) An employee who undergoes an independent medical examination may request a copy of the report mentioned in subsection (1) from the Employment Liaison Officer.
(3) The Employment Liaison Officer must comply with a request under subsection (2) within 7 days after the later of the following days:
(a) the day the claim is assessed by the Employment Liaison Officer;
(b) the day the request for the report is received.
Division 4—Employment Liaison Officer
47D Employment Liaison Officer
There is to be an Employment Liaison Officer.
47E Functions and powers of Employment Liaison Officer
Management and control of public scheme
(1) The Employment Liaison officer is responsible for the management and control of any public scheme established under subsection 39A(1).
(2) The responsibilities of the Employment Liaison Officer referred to in subsection (1) include (without limitation) the following:
(a) receiving, on behalf of the Commonwealth, any membership fees for a public scheme paid by employers;
(b) assessing claims for compensation made against employers who are members of a public scheme, for the purposes of determining the Commonwealth’s liabilities under the scheme;
(c) making payments, on behalf of the Commonwealth, to discharge the Commonwealth’s liabilities under a public scheme.
Approvals
(3) The Employment Liaison Officer may, in writing, approve a person, policy or form, or any other thing, for the purposes of a provision of this Act.
Other functions and powers
(4) The Employment Liaison Officer has such other functions and powers as are conferred on the Employment Liaison Officer by or under this Act, including any functions and powers delegated to the Employment Liaison Officer by the Commonwealth Minister under this Act.
Directions by Commonwealth Minister
(5) The Commonwealth Minister may, by notifiable instrument, give directions to the Employment Liaison Officer in relation to the performance and exercise of the Employment Liaison Officer’s functions and powers under this Act.
(6) However, the Commonwealth Minister must not give a direction under subsection (5) that relates to a particular case.
(7) The Employment Liaison Officer must comply with any directions given under subsection (5).
47F Employment Liaison Officer—appointment
The Commonwealth Minister may, by written instrument, appoint an SES employee, or acting SES employee, in the Department as the Employment Liaison Officer.
47G Employment Liaison Officer—acting appointments
The Commonwealth Minister may, by written instrument, appoint an SES employee, or acting SES employee, in the Department to act as the Employment Liaison Officer:
(a) during a vacancy in the office of the Employment Liaison Officer; or
(b) during any period, or during all periods, when the Employment Liaison Officer:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
47H Delegations by Employment Liaison Officer
(1) Subject to subsections (2) and (3), the Employment Liaison Officer may, in writing, delegate any or all of the Employment Liaison Officer’s functions or powers under this Act to any of the following:
(a) an SES employee or acting SES employee;
(b) an APS employee who holds, or performs the duties of, an Executive Level 1 position, or an equivalent or higher position;
(c) an individual who holds, or performs the duties of, an office or position in a body that is a part of the Commonwealth, or an authority of the Commonwealth, if the office or position is at a level equivalent to or higher than that of an APS employee classified at Executive Level 1;
(d) an inspector;
(e) an employee of the Norfolk Island Regional Council;
(f) any other person.
(2) The Employment Liaison Officer must not delegate a function or power to a person unless the Employment Liaison Officer is satisfied that the person has appropriate qualifications or expertise to perform the function or exercise the power.
(3) The Employment Liaison Officer must not delegate:
(a) the Employment Liaison Officer’s power of delegation under subsection (1); or
(b) a function or power delegated to the Employment Liaison Officer by the Commonwealth Minister under this Act.
(4) In performing a function or exercising a power delegated under subsection (1), a delegate must comply with any written directions of the Employment Liaison Officer.
74ZG Subsection 48(1) (definitions of incapacity and inspector)
Repeal the definitions.
74ZH Subsection 53(2)
Repeal the subsection, substitute:
(2) An employer must keep such records as are prescribed by the rules for the purposes of this subsection, for such period as is so prescribed, relating to the safety and health of employees of the employer.
74ZI Subsection 53(3)
Omit “incapacity” (first and second occurring), substitute “permanent incapacity”.
74ZJ Subsection 53(3)
Omit “prescribed form”, substitute “form prescribed by the rules for the purposes of this subsection”.
74ZK Paragraphs 53(3)(a) and (b)
Omit “incapacity”, substitute “permanent incapacity”.
74ZL Subsection 54(2)
Omit “Regulations”, substitute “rules”.
74ZM Subsections 55(1), (2) and (3)
Omit “Employment Liaison Officer” (wherever occurring), substitute “Chief Executive Officer”.
74ZN Subsection 55(4)
Repeal the subsection, substitute:
(4) Despite subsection (3), if a complaint is made or referred to the Chief Executive Officer under this section:
(a) the Chief Executive Officer may require an inspector to investigate the complaint; and
(b) if so required, the inspector must, as soon as practicable, investigate the complaint.
74ZO Subsection 57(1)
Omit “Minister”, substitute “Chief Executive Officer”.
74ZP After section 57
Insert:
57A Inspectors—management and control
(1) The Chief Executive Officer is responsible for the management and control of inspectors.
(2) The Chief Executive Officer may give directions to an inspector in relation to the performance and exercise of the inspector’s functions and powers under this Part.
(3) An inspector must comply with any directions given to the inspector under subsection (2).
74ZQ Paragraph 57(2)(a)
Omit “Regulations”, substitute “rules”.
74ZR Subsection 60(2)
Before “evidence”, insert “prima facie”.
74ZS Section 62
Repeal the section.
74ZT Section 64
Omit “Regulations”, substitute “rules”.
74ZU Part 5 (heading)
Repeal the heading, substitute:
Part 5—Review of matters relating to compensation
74ZV Division 1 of Part 5
Repeal the Division, substitute:
Division 1—Internal review by Employment Liaison Officer
65 Internal review—applications
(1) A person or entity covered by subsection (2) may apply to the Employment Liaison Officer for an internal review of a matter arising under Part 3 that affects the interests of the person or entity.
(2) This subsection covers the following:
(a) a person who has made a claim for compensation under section 37A in relation to an injury, condition or death, but only if the person who suffered the injury or condition, or who died, was employed by an employer who was a member of a public scheme at the time of events giving rise to, or contributing to, the injury, condition or death;
(b) a member or former member of a public scheme.
(3) An application for an internal review under subsection (1) must:
(a) be in writing; and
(b) set out the reasons for the application.
(4) An application for an internal review of a matter under subsection (1) must be made:
(a) within 30 days after the day on which the matter arises (for example, by the making of a decision by the Employment Liaison Officer in relation to the matter); or
(b) within such longer period (if any) as the Employment Liaison Officer allows.
66 Who undertakes internal review?
(1) On receiving an application under section 65 for an internal review of a matter, the Employment Liaison Officer must:
(a) review the matter personally; or
(b) ensure that the matter is reviewed by a delegate of the Employment Liaison Officer.
(2) However, if the matter relates to a claim (the primary claim) for compensation under section 37A, the matter must not be reviewed by a person who has been involved in dealing with:
(a) the primary claim; or
(b) a claim, by a member or former member of a public scheme, to be indemnified by the Commonwealth under subsection 39A(2) in relation to the primary claim.
Note: This subsection applies to the Employment Liaison Officer personally as well as to a delegate of the Employment Liaison Officer.
(3) The internal reviewer of a matter is the person who reviews the matter under this section.
67 Internal review—determination and notice
(1) If an application has been made under section 65 for an internal review of a matter, the internal reviewer must make a written determination in relation to the matter within the period prescribed by rules made for the purposes of this subsection.
(2) As soon as practicable after making the determination, the internal reviewer must give written notice of the determination to:
(a) the applicant for the internal review; and
(b) if the matter relates to a claim for compensation under section 37A:
(i) the person who made the claim; and
(ii) the person or entity against whom the claim was made.
(3) A notice of a determination must:
(a) be accompanied by a copy of the determination; and
(b) set out the reasons for the determination, if those reasons are not set out in the copy of the determination; and
(c) explain the effect of section 82 (which deals with when, and how, an application may be made to the Tribunal for an inquiry into a matter).
74ZW Division 2 of Part 5 (heading)
Repeal the heading, substitute:
Division 2—Inquiry by Tribunal
74ZX Section 78 (heading)
Repeal the heading, substitute:
78 Tribunal
74ZY Subsection 78(1)
Repeal the subsection, substitute:
(1) The Court of Petty Sessions has jurisdiction to exercise and perform the powers, duties, functions and authorities conferred or imposed on the Court by:
(a) this Division; or
(b) a provision of this Act that relates to an inquiry undertaken by the Tribunal under this Division.
Note: The Court of Petty Sessions has a separate jurisdiction under section 56 (stop work and improvement notices) to review requirements in notices given under that section.
74ZZ Paragraphs 78(2)(a) and (b)
Omit “Employment Tribunal”, substitute “Tribunal”.
75 Section 82
Repeal the section, substitute:
82 Inquiry—applications
Application for inquiry
(1) Subject to this section, a person or entity may apply to the Tribunal for an inquiry into:
(a) a matter arising under Part 3 that affects the interests of the person or entity; or
(b) if the person or entity is the Employment Liaison Officer—a matter arising under Part 3 that affects the interests of the Commonwealth.
(2) An application to the Tribunal for an inquiry must:
(a) be in writing; and
(b) be made to the Secretary; and
(c) set out the reasons for the application.
Requirement for internal review in certain cases
(3) Subsections (4) and (5) apply if a person or entity (the interested party) may apply to the Employment Liaison Officer under section 65 for an internal review of a matter (the relevant matter) relating to a claim for compensation under section 37A.
(4) The interested party is not entitled to apply to the Tribunal under subsection (1) for an inquiry into the relevant matter unless:
(a) the interested party has made an application (the internal review application) under section 65 for an internal review of the relevant matter; and
(b) either:
(i) the interested party has received notice in accordance with 67 of a determination by the internal reviewer in relation to the relevant matter, but the interested party remains aggrieved in relation to the matter; or
(ii) if the interested party has not received such a notice—the period prescribed in relation to the internal review application, by rules made for the purposes of subsection 67(1), has expired.
(5) If the interested party is entitled to apply to the Tribunal under subsection (1) for an inquiry into the relevant matter because subparagraph (4)(b)(i) applies, such an application by the interested party under subsection (1) must:
(a) be made within:
(i) the period of 7 days beginning on the day after the day on which the interested party received the notice of the determination by the internal reviewer referred to in subparagraph (4)(b)(i); or
(ii) such longer period (if any) as the Tribunal allows; and
(b) be accompanied by a copy of that determination.
82AA Inquiry—how convened
Inquiry must be convened
(1) The Secretary must, as soon as practicable after receipt of an application under section 82 for an inquiry into a matter, inform a member of the Tribunal of the application.
(2) If a member of the Tribunal is informed of the application, the Tribunal must convene an inquiry into the matter.
(3) The Tribunal may determine the time and place at which the inquiry is to be held.
Notice of inquiry
(4) Each of following persons or entities is an eligible party in relation to an inquiry:
(a) the person or entity who applied for the inquiry under section 82;
(b) if the inquiry is into a matter that relates to a claim for compensation under section 37A:
(i) the person who made the claim; and
(ii) the person or entity against whom the claim was made;
(c) if the inquiry is into a matter that affects the interests of the Commonwealth—the Employment Liaison Officer.
(5) The Tribunal must give each eligible party in relation to the inquiry written notice of:
(a) the time and place at which the inquiry is to be held; and
(b) the matter to which the inquiry relates.
82AB Inquiry—participation and representation
Participation in inquiry
(1) An eligible party in relation to an inquiry is entitled to:
(a) make representations to the Tribunal in relation to the inquiry; and
(b) appear at the inquiry.
(2) If the Tribunal considers that it is appropriate to do so, the Tribunal may allow a person or entity who is not an eligible party in relation to the inquiry to do either or both of the following:
(a) make representations to the Tribunal in relation to the inquiry;
(b) appear at the inquiry.
(3) If an eligible party who has been given notice of the inquiry in accordance with subsection 82AA(5) fails to attend at the time and place specified for the inquiry, the Tribunal may proceed in the absence of that party.
Representation at inquiry
(4) An eligible party in relation to an inquiry:
(a) is entitled to appear at the inquiry:
(i) personally; or
(ii) if the person is a body corporate—by a director, secretary or agent of the body corporate; and
(b) subject to subsection (5), is entitled to be represented at the inquiry by:
(i) a legal practitioner; or
(ii) another person, with leave of the Tribunal.
(5) If, in the opinion of the Tribunal, the total value of all of the entitlements under this Act that are at issue in the inquiry is likely to be less than $1,000, the Tribunal may refuse to allow any eligible party in relation to the inquiry to be represented at the inquiry by a legal practitioner.
(6) Subsection (5) does not give the Tribunal the power to prevent:
(a) an eligible party who is a legal practitioner from appearing personally; or
(b) an eligible party that is a body corporate from appearing by a director, secretary or agent of the body corporate who is a legal practitioner.
75A Subsections 85(1) and (2)
Repeal the subsections, substitute:
(1) After determining a matter in an inquiry, the Tribunal:
(a) must, as soon as practicable after making its determination, give notice of the determination, together with a copy of the determination, to each eligible party in relation to the inquiry; and
(b) may make, or refuse to make, an order in accordance with this section.
(2) The Tribunal may make any of the following orders:
(a) an order requiring a person to do any (or all) of the following:
(i) to do an act required or permitted to be done by this Act;
(ii) to refrain from doing an act prohibited by this Act;
(iii) to pay money required or permitted to be paid by this Act; or
(b) an order of the kind mentioned in section 32C (compensation for permanent incapacity—powers of Tribunal).
(2A) The Tribunal must not make any order as to costs.
75B Paragraph 85(3)(a)
Omit “subject to section 62,”.
75C Subsection 85(4)
Omit “82(6)”, substitute “82AB(3)”.
75D Subsection 85(5)
Repeal the subsection, substitute:
(5) If the Tribunal makes an order in an inquiry, the Tribunal must, as soon as practicable after making the order, give notice of the order, together with a copy of the order, to:
(a) each person to whom the order is directed; and
(b) each eligible party in relation to the inquiry.
(5A) A person or entity who has been given notice of a determination or order by the Tribunal may request the Tribunal to give written reasons for the determination or order. The Tribunal must provide those reasons within the period of 7 days beginning on the day on which the Tribunal receives the request.
75E Subsection 85(6)
Omit “Subject to subsection 85(8), the”, substitute “The”.
75F Subsections 85(8), (9), (10) and (11)
Repeal the subsections, substitute:
(11) If the Tribunal is required to give a person or entity notice of a determination or order of the Tribunal, the Tribunal must also give the person or entity a written or oral explanation of the effect of sections 91 and 92 (which deal with when, and how, an appeal may be made to the Supreme Court from a determination or order of the Tribunal).
75G Subsection 86(2)
Omit “paragraph 85(2)(d) or subsection 85(9)”, substitute “paragraph 85(2)(c)”.
75H Section 88
Repeal the section.
75J Subsection 89(1)
Omit “(1)”.
75K Subsection 89(2)
Repeal the subsection.
75L Section 90
Repeal the section.
75M Division 3 of Part 5 (heading)
After “Review”, add “by Supreme Court”.
75N Subsection 91(1)
Repeal the subsection, substitute:
(1) A person to whom notice of a determination or order of the Tribunal is given under section 85 may, within 14 days after the notice is given, institute an appeal to the Supreme Court from the determination or order.
75P Sections 95 and 96
Repeal the sections, substitute:
95 Restriction on delegation by Commonwealth Minister
The Commonwealth Minister must not delegate the power to make rules under subsection 108(1).
Note: This section restricts the Commonwealth Minister’s power of delegation under clause 10 of Schedule 1 to the Interpretation Act 1979.
75Q After section 97
Insert:
97A Electronic transactions
The Electronic Transactions Act applies in relation to this Act as if a reference in the Electronic Transactions Act to a law of the Commonwealth included a reference to this Act.
75R Subsection 98(1)
Omit “at the time the document was handed to the person or drawn to the person’s attention.”, substitute:
“at the following time:
(a) if the document is in the form of an electronic communication within the meaning of the Electronic Transactions Act—the time of receipt of that communication as provided by section 14A of that Act;
(b) in any other case—the time the document was handed to the person or drawn to the person’s attention.
Note: For a requirement or permission under a law of the Commonwealth to produce a document in electronic form, see section 11 of the Electronic Transactions Act and section 97A of this Act.”.
75S Subsections 98(2) and (3)
Omit “Regulations” (wherever occurring), substitute “rules”.
75T Section 99
Repeal the section.
75U Section 100 (heading)
Repeal the heading, substitute:
100 Employment Liaison Officer, Tribunal members etc. to respect privacy
75V Subsection 100(2)
Repeal the subsection, substitute:
(2) This section applies to the following:
(a) the Commonwealth Minister;
(b) the Secretary to the Tribunal;
(c) a member of the Tribunal;
(d) the Employment Liaison Officer, or a person appointed under section 47G to act as the Employment Liaison Officer;
(e) a person to whom the Employment Liaison Officer delegates a power or function under subsection 47H(1).
75W Section 101
Repeal the section.
75X Subparagraph 102(1)(a)(ii)
Omit “the Board or Tribunal”, substitute “the Employment Liaison Officer or the Tribunal”.
75Y Paragraph 106(1)(d)
Repeal the paragraph.
75Z Subsections 106(2) and (3)
Repeal the subsections.
76 Section 108
Repeal the section, substitute:
107 Protection from liability
(1) A person covered by subsection (2) is not liable in civil proceedings for or in relation to anything done, or omitted to be done, in good faith in the performance or exercise, or purported performance or exercise, of a function or power under this Act.
(2) This subsection covers the following:
(a) the Commonwealth;
(b) the Commonwealth Minister;
(c) the Tribunal;
(d) a member of the Tribunal;
(e) the Secretary to the Tribunal;
(f) the Employment Liaison Officer, or a person appointed under section 47G to act as the Employment Liaison Officer;
(g) a person to whom the Employment Liaison Officer delegates a power or function under subsection 47H(1);
(h) the Chief Executive Officer;
(i) an inspector.
108 Rules
(1) The Commonwealth Minister may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Act to be prescribed by the rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) directly amend the text of this Act.
Enactments Reprinting Act 1980 (Norfolk Island)
76T Subsection 7A(1) (example)
Repeal the example.
Environment Act 1990 (Norfolk Island)
76U At the end of section 2
Add:
(4) Despite subsection (1), the following provisions of this Act commence at the same time as Schedule 1 to the Norfolk Island Legislation Amendment (Public Health) Ordinance 2018 commences:
(a) Division 3 of Part 6;
(b) items 11 to 16 in Schedule 3.
77 Paragraph 4(1)(b)
Omit “the legislative powers of the Legislative Assembly permit”, substitute “possible”.
78 Section 8 (definitions of Board and Chairman)
Repeal the definitions.
79 Section 8
Insert:
executive member means the Chief Executive Officer (despite section 43 of, and subclause 5(1) of Schedule 1 to, the Interpretation Act 1979).
80 Section 8 (definitions of member and Secretary)
Repeal the definitions.
81 Part 2
Repeal the Part.
82 Subsection 23(5)
Omit “In spite of section 36 of the Interpretation Act 1979, an”, substitute “An”.
82AA Subsection 24(3)
Omit “fee, if any, prescribed”, substitute “approved fee (if any)”.
82A Paragraph 25(4)(b)
Omit “Board”, substitute “executive member”.
82B Paragraphs 25(4)(c) and (d)
Repeal the paragraphs, substitute:
(c) must then be considered by the executive member, who must approve, or refuse to approve, the application.
82C Paragraphs 25(5)(a) and (b)
Omit “Board” (wherever occurring), substitute “executive member”.
82D Subparagraphs 25(5)(b)(i) and (ii)
Omit “meeting”, substitute “hearing”.
82E Paragraphs 25(5)(c) and (d)
Repeal the paragraphs, substitute:
(c) is, at or after that hearing, to be considered by the executive member, who must approve, or refuse to approve, the application.
82F Subsection 25(6) (definition of simple application)
Omit “consideration by the Board”, substitute “an invitation for public comment or a public hearing”.
83 Subsection 26(1)
Omit “Board or” (wherever occurring).
84 Subsection 26(1)
Omit “Legislative Assembly”, substitute “Commonwealth Minister”.
85 Subsection 26(2)
Repeal the subsection, substitute:
(2) If the Commonwealth Minister is satisfied (because of a proposal by the executive member under subsection (1) or on his or her own initiative) that it is appropriate that an environmental impact statement be prepared in relation to an application, he or she may determine:
(a) that such a statement be prepared; and
(b) by whom, and at whose expense, the statement is to be prepared; and
(c) the matters to be dealt with in the statement; and
(d) the period within which the statement is to be prepared, and the procedure (including the procedure for public consultation) to be followed in the preparation of the statement.
86 Subsection 26(3)
Omit “Legislative Assembly approves a proposal”, substitute “Commonwealth Minister determines”.
86A Subsection 27(7)
Omit “, the Board”.
86B Subsection 28(1)
Omit “(1) As”, substitute “As”.
86C Subsection 28(2)
Repeal the subsection.
87 Subsection 29(4)
Omit “Where the Legislative Assembly has resolved under section 26 to approve a proposal that an environmental impact statement be prepared in relation to an application, the Assembly may, by resolution,”, substitute “If the Commonwealth Minister has determined under section 26 that an environmental impact statement be prepared in relation to an application, he or she may”.
88 Subsection 29(5)
Repeal the subsection.
88A Subsection 33(3)
Omit “fee, if any, prescribed for development applications of that kind”, substitute “approved fee (if any) for applications of that kind”.
88B Subsection 98(3)
Omit “prescribed fee”, substitute “approved fee”.
88C Subsection 104(3)
Repeal the subsection.
88D Subsection 110(3)
Repeal the subsection.
88E Paragraph 128(1)(c)
Omit “under 6”, substitute “under Part 6”.
88K Subsection 134(1)
Omit “(1)”.
88L Subsection 134(2)
Repeal the subsection.
89 Section 150
Repeal the section, substitute:
150 Making and amendment of Code by regulations
Subject to section 151, the regulations may:
(a) prescribe the Norfolk Island Planning Code; and
(b) repeal or alter provisions of, or add new provisions to, the Code.
90 Subsection 151(1)
Omit “Before advising the making of Regulations under section 150, the executive member”, substitute “Before making regulations for the purposes of section 150, the Commonwealth Minister”.
91 Paragraph 151(1)(b)
Omit “executive member’s”, substitute “Commonwealth Minister’s”.
92 Subsections 151(2), (3) and (4)
Repeal the subsections, substitute:
(2) A failure to comply with subsection (1) does not affect the validity of regulations made for the purposes of section 150.
93 Subsection 152(1)
Omit “the intention of the Legislative Assembly”, substitute “intended”.
94 Subsections 152(2), (3), (4) and (5)
Repeal the subsections, substitute:
(2) The Commonwealth Minister must conduct a review of the Code in order to give effect to the intention expressed in subsection (1) at intervals of no more than 5 years from the completion of the most recent review under this section (whether that completion occurred before or after the interim transition time).
(3) A review under subsection (2) is to be started by a notice in the Gazette:
(a) announcing the start of the review; and
(b) inviting submissions or representations to be made to the Commonwealth Minister on the effectiveness of the Code in achieving the aim specified in subsection (1).
(4) The Commonwealth Minister must conduct the review in the manner he or she determines.
95 Subsection 153(1)
Omit “Administrator”, substitute “Commonwealth Minister”.
Evidence Act 2004 (Norfolk Island)
96 Subsection 3(3)
After “subject to,”, insert “section 15AB of the Acts Interpretation Act 1901 of the Commonwealth (applying because of section 8A of the Interpretation Act 1979) and”.
97 Paragraph 7(a)
Omit “the legislative power of the Legislative Assembly permits”, substitute “possible”.
97AAA Paragraph 19(a)
Omit “Part III or IIIA of the Criminal Law Act 1960”, substitute “Part 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.9 or 3.10 of the Criminal Code 2007”.
97AAB Paragraph 19(b)
Omit “section 12 of the Child Welfare Act 1937”, substitute “section 174 or 175 of the Child Welfare Act 2009”.
97AAC Paragraph 19(c)
Repeal the paragraph, substitute:
(c) a domestic violence offence (as defined in section 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI)).
97AAH Subsection 181AR(2) (note)
Omit “Part 7 of the Crimes Act 1900 (NSW) as applied by the Criminal Law Act 1960”, substitute “Chapter 7 of the Criminal Code 2007”.
97AAL Section 181R (definition of Crimes Act)
Repeal the definition.
97AAM Section 181R (definition of prescribed sexual offence)
Repeal the definition, substitute:
prescribed sexual offence means:
(a) an offence against Part 3.6 of the Criminal Code 2007; or
(b) if a person charged with an offence (the offence charged) is alleged, as an element of that offence, to have intended to commit an offence against Part 3.6 of the Criminal Code 2007—the offence charged.
Fair Trading Act 1995 (Norfolk Island)
97AAN Subsections 30(1) and 31(1) and (2)
Omit “Minister”, substitute “Chief Executive Officer”.
Fencing Act 1913 (Norfolk Island)
97AANA Section 5
Omit “A fee of 2 units”, substitute “The approved fee”.
97AANB Section 7
Omit “a fee of 0.50 fee unit”, substitute “the approved fee”.
97AANC Amendments of listed provisions—substituting references to Minister with references to Chief Executive Officer
| Substituting references to Minister with references to Chief Executive Officer |
| Item | Provision | Omit (wherever occurring) | Substitute |
| 1 | Paragraph 2(2)(b) | Minister | Chief Executive Officer |
| 2 | Section 4 | Minister | Chief Executive Officer |
| 3 | Subsections 12(1), (2) and (3) | Minister | Chief Executive Officer |
Firearms and Prohibited Weapons Act 1997 (Norfolk Island)
97AAO Subsection 16(3) (table items 7 and 8)
Repeal the items, substitute:
| 7 | Interim apprehended violence order | Either: (a) an interim apprehended violence order is in force against the person under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI); or (b) the person is the subject of an order under the law of a State or another Territory of the Commonwealth that has substantially the same effect as an order referred to in paragraph (a). |
| 8 | Final apprehended violence order | In the last 5 years, either: (a) a final apprehended violence order was in force against the person under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI); or (b) the person was the subject of an order under the law of a State or another Territory of the Commonwealth that had substantially the same effect as an order referred to in paragraph (a); unless an appeal against the making of the order was upheld. |
97AAP Subsection 21(1A)
Omit “if the person becomes subject to an interim protection order under the Domestic Violence Act 1995”, substitute “while an interim apprehended violence order against the person is in force under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI)”.
97AAQ Paragraph 22(1)(a)
Repeal the paragraph, substitute:
(a) if a final apprehended violence order comes into force against the person under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI); or
97AAR Subsection 26A(3) (table items 3 and 4)
Repeal the items, substitute:
| 3 | Firearms permit—interim apprehended violence order | In the case of a firearms permit (except a visiting sporting shooter permit), either: (a) an interim apprehended violence order is in force against the person under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI); or (b) the person is the subject of an order under the law of a State or another Territory of the Commonwealth that has substantially the same effect as an order referred to in paragraph (a). |
| 4 | Firearms permit—final apprehended violence order | In the case of a firearms permit (except a visiting sporting shooter permit), in the last 5 years either: (a) a final apprehended violence order was in force against the person under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI); or (b) the person was the subject of an order under the law of a State or another Territory of the Commonwealth that had substantially the same effect as an order referred to in paragraph (a); unless an appeal against the making of the order was upheld. |
97AAS Subsection 26D(2)
Omit “if the holder becomes subject to an interim protection order under the Domestic Violence Act 1995”, substitute “while an interim apprehended violence order against the holder is in force under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI)”.
97AAT Paragraph 26E(1)(a)
Repeal the paragraph, substitute:
(a) if a final apprehended violence order comes into force against the holder under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI); or
97AAX After subsection 45D(1)
Insert:
(1A) The Administrator must refuse to issue a permit to a person who is disqualified by subsection 98ZJ(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI) from holding such a permit.
97AAY After subsection 45D(5)
Insert:
(5A) The Administrator must, by written notice given to a person who:
(a) has been issued a permit; and
(b) is disqualified by subsection 98ZJ(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (NI) from holding such a permit;
cancel the permit.
97AA At the end of the table in Schedule 2
Add:
| 32 | A silencer, sound moderator or sound suppressor, or any other device designed to reduce, or capable of reducing, the noise of discharge of a firearm. |
Firearms and Prohibited Weapons Regulations 1998 (Norfolk Island)
97A Subregulation 3M(1)
Omit “and the Public Sector Management Act 2000 or any Regulations made thereunder”.
97B Subregulation 3M(2)
Omit “under the provisions of the Public Sector Management Act 2000 or any Regulations thereunder”.
Fire Control Act 2000 (Norfolk Island)
97C Section 5 (definition of approved)
Repeal the definition.
97D Section 5 (definition of authorised person)
Omit “Minister”, substitute “Chief Executive Officer”.
97E Section 5
Repeal the following definitions:
(a) definition of Board;
(b) definition of Chairperson.
97EA Section 5
Insert:
Commonwealth reserve has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
97EB Section 5 (definition of fire danger period)
Repeal the definition, substitute:
fire danger period means a fire danger period declared under section 22.
97EC Section 5
Repeal the following definitions:
(a) definition of member;
(b) definition of period of acute fire danger.
97ED Section 5
Insert:
permit means a permit issued under Part 3A.
public reserve means a reserve within the meaning of the Public Reserves Act 1997.
97F Part 2 (heading)
Repeal the heading, substitute:
Part 2—Chief Fire Control Officer, Fire Control Officers and authorised persons
97G Sections 6 to 13
Repeal the sections.
97H Subsection 14(1)
Omit “Minister may”, substitute “Chief Executive Officer may, by written instrument,”.
97HA Subsection 14(2)
Omit “3”, substitute “5”.
97HB Paragraph 15(2)(k)
Omit “and property”, substitute “, property or the environment”.
97HC Subsection 16(1)
Omit “Minister may”, substitute “Chief Executive Officer may, by written instrument,”.
97J Subsection 16(1)
Omit “Minister thinks”, substitute “Chief Executive Officer thinks”.
97K Subsections 16(3) and (4)
Omit “Minister”, substitute “Chief Executive Officer”.
97L Section 17
Omit “Minister may”, substitute “Chief Executive Officer may, by written instrument,”.
97M Subsection 18(1)
Omit “Minister”, substitute “Chief Executive Officer”.
97MA Part 3 (heading)
Repeal the heading.
97MB Section 19
Repeal the section, substitute:
19 Powers to enter land and light fires on land
(1) If:
(a) a fire is occurring on any land; or
(b) the Chief Fire Control Officer, a Fire Officer, a Volunteer Fire Officer or an authorised person reasonably suspects that a fire is occurring on any land;
the Chief Fire Control Officer, a Fire Officer, a Volunteer Fire Officer or an authorised person may enter land for the purpose of inspecting, extinguishing, or stopping the progress of, the fire or suspected fire.
(2) The Chief Fire Control Officer, a Fire Officer or a Volunteer Fire Officer may, for the purpose of stopping the progress of a fire occurring on any land, light other fires on land.
97MC Sections 21 to 26
Repeal the sections, substitute:
Part 3—Prevention and control of fires
Division 1—Total fire ban
21 Declaration of a total fire ban
(1) The Chief Fire Control Officer may declare a total fire ban for a period in an area if the Chief Fire Control Officer is satisfied that it is appropriate to do so to protect life, property or the environment from fire, having regard to:
(a) the existence or likelihood of severe weather conditions conducive to the outbreak or spread of fire in the area; or
(b) the likelihood that a fire in the area could get out of control; or
(c) the number, nature or location of existing fires in the area; or
(d) insufficient resources being available to extinguish or prevent the outbreak or spread of fire in the area.
Note 1: A total fire ban under this section may be declared in an area that is in a Commonwealth reserve or a public reserve. A total fire ban may also be declared in a Commonwealth reserve under regulation 12.30 of the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth).
Note 2: A declaration under this section may be varied or revoked: see subsection 33(3) of the Acts Interpretation Act 1901 (Cth) (applying because of section 8A of the Interpretation Act 1979).
(2) The Chief Fire Control Officer must arrange to have the particulars of the total fire ban broadcast, published, or otherwise communicated to the public, in such manner as the Chief Fire Control Officer thinks fit.
21A Fires during a total fire ban
(1) During a total fire ban in an area, a person must not light, use or maintain a fire in the open air in the area except in accordance with:
(a) the requirements of subsection (2) or (3); or
(b) a direction under subsection 25(1); or
(c) subsection 19(2) (power to light fire on land).
Penalty: 60 penalty units or imprisonment for 2 years, or both.
Requirements for using barbeque or stove during total fire ban
(2) The requirements of this subsection are:
(a) the fire must be in a gas or electric barbecue or in a gas or electric stove; and
(b) the barbecue or stove must:
(i) be within 20 metres of the person’s residence; and
(ii) not be in a Commonwealth reserve or a public reserve; and
(c) the space immediately around and above the barbecue or stove must be cleared of all flammable, explosive or dangerous material to a distance of at least 2 metres; and
(d) the person must be 18 or older; and
(e) a supply of running water, or fire fighting equipment, adequate to extinguish a fire must be at hand.
Requirements for using a public barbecue during total fire ban
(3) The requirements of this subsection are:
(a) the fire must be in a gas or electric barbecue made available by the Norfolk Island Regional Council for public use; and
(b) the person must be 18 or older; and
(c) if the barbecue is in a Commonwealth reserve—the barbecue must be used in accordance with the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth).
21B Fire must not be left unattended during total fire ban
A person who lights, uses or maintains a fire in an area must not leave the fire unattended during a total fire ban in the area.
Penalty: 15 penalty units or imprisonment for 6 months, or both.
21C Hot works during total fire ban
(1) During a total fire ban in an area, a person must not undertake any of the following in the area:
(a) welding;
(b) soldering;
(c) grinding;
(d) gas cutting;
(e) any other like activity that creates heat or sparks;
except in accordance with:
(f) the requirements of subsection (2); or
(g) a direction under subsection 25(1).
Penalty: 60 penalty units or imprisonment for 2 years, or both.
Requirements for undertaking hot works during total fire ban
(2) The requirements of this subsection are:
(a) the activity must be undertaken by the person as part of urgent repairs to an essential service; and
(b) the Chief Fire Control Officer must have been notified that the activity is to be undertaken; and
(c) fire fighting equipment adequate to extinguish a fire must be at hand.
Division 2—Fire danger period
22 Declaration of fire danger period
(1) The Chief Fire Control Officer may declare a fire danger period for a period in an area if the Chief Fire Control Officer is satisfied that weather conditions conducive to the outbreak or spread of fire exist, or are likely to exist, in the area.
Note 1: A fire danger period under this section may be declared in an area that is in a Commonwealth reserve or a public reserve.
Note 2: A declaration under this section may be varied or revoked: see subsection 33(3) of the Acts Interpretation Act 1901 (Cth) (applying because of section 8A of the Interpretation Act 1979).
(2) Before making a declaration under subsection (1), the Chief Fire Control Officer must consult:
(a) the Norfolk Island Regional Council; and
(b) if the area is in a Commonwealth reserve—the Director of the Commonwealth reserve.
(3) The Chief Fire Control Officer must arrange to have the particulars of the fire danger period broadcast, published, or otherwise communicated to the public, in such manner as the Chief Fire Control Officer thinks fit.
(4) A failure to comply with subsection (2) does not affect the validity of a declaration under this section.
22A Fires during a fire danger period
(1) During a fire danger period in an area, a person must not light, use or maintain a fire in the open air in the area except in accordance with:
(a) the requirements of subsection (2), (3), (4), (5) or (6); or
(b) a direction under subsection 25(1); or
(c) subsection 19(2) (power to light fire on land).
Penalty: 30 penalty units or imprisonment for 1 year, or both.
Requirements for using a barbeque or stove during fire danger period
(2) The requirements of this subsection are:
(a) the fire must be in a gas or electric barbecue, or in a gas or electric stove, that is not in a Commonwealth reserve or a public reserve; and
(b) the space immediately around and above the barbecue or stove must be cleared of all flammable, explosive or dangerous material to a distance of at least 2 metres.
Requirements for using a public barbecue during fire danger period
(3) The requirements of this subsection are:
(a) the fire must be in a gas or electric barbecue made available by the Norfolk Island Regional Council for public use; and
(b) if the barbecue is in a Commonwealth reserve—the barbecue must be used in accordance with the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth).
Requirements for using a fireplace during fire danger period
(4) The requirements of this subsection are:
(a) the fire must be in a properly constructed fireplace:
(i) that is constructed of a non‑flammable material; and
(ii) that is capable of containing the perimeter of a fire; and
(iii) that is not in a Commonwealth reserve or a public reserve; and
(b) the space immediately around and above the fireplace must be cleared of all flammable, explosive or dangerous material to a distance of at least 2 metres; and
(c) the fire must be for the purpose of cooking food or heating liquids.
Requirements for using an incinerator during fire danger period
(5) The requirements of this subsection are:
(a) the fire must be in a properly constructed incinerator that is designed to prevent the escape of sparks and incandescent material; and
(b) the incinerator must not be in a Commonwealth reserve or a public reserve.
Requirements for using a permit during fire danger period
(6) The requirements of this subsection are:
(a) the person must hold a permit to light, use and maintain a fire in the open air in the area during a fire danger period; and
(b) the person must have taken reasonable steps to give the Chief Fire Control Officer, and each owner of land adjoining the land on which the fire is lit, 24 hours notice that the fire is to be lit; and
(c) the fire must not be lit, used or maintained in a Commonwealth reserve or a public reserve; and
(d) a person who is 18 or older must attend the fire at all times while it is alight.
Note 1: If the permit is issued subject to conditions, the person must also comply with the conditions when lighting, using or maintaining the fire. Failure to comply is an offence: see section 26A.
Note 2: Owner includes occupier: see section 5.
(7) Notice for the purposes of paragraph (6)(b) does not have to be in writing.
22B Fire must not be left unattended during a fire danger period
A person who lights, uses or maintains a fire in an area must not leave the fire unattended during a fire danger period in the area.
Penalty: 15 penalty units or imprisonment for 6 months, or both.
Division 3—Fires other than during a total fire ban or fire danger period
23 Fires to clear land
(1) A person must not clear land in an area by burning except in accordance with:
(a) the requirements of subsection (3); or
(b) a direction under subsection 25(1); or
(c) subsection 19(2) (power to light fire on land); or
(d) the Public Reserves Act 1997 or the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth).
Penalty: 30 penalty units or imprisonment for 1 year, or both.
(2) For the purposes of subsection (1), clearing land includes clearing land to create or maintain a firebreak.
Requirements for using permit to clear land
(3) The requirements of this subsection are:
(a) the person must hold a permit to light, use and maintain a fire in the open air in the area for the purposes of clearing land; and
(b) the person must have taken reasonable steps to give the Chief Fire Control Officer, and each owner of land adjoining the land on which the fire is lit, 24 hours notice that the fire is to be lit; and
(c) the fire must not be lit, used or maintained in a Commonwealth reserve or a public reserve; and
(d) a person who is 18 or older must attend the fire at all times while it is alight; and
(e) the burning must not be undertaken during a total fire ban or fire danger period in the area.
Note 1: If the permit is issued subject to conditions, the person must also comply with the conditions when lighting, using or maintaining the fire. Failure to comply is an offence: see section 26A.
Note 2: Owner includes occupier: see section 5.
(4) Notice for the purposes of paragraph (3)(b) does not have to be in writing.
23A Burning waste
A person must not burn solid waste (other than green waste) in the open air except in accordance with:
(a) a direction under subsection 25(1); or
(b) subsection 19(2) (power to light fires on land); or
(c) the Public Reserves Act 1997 or the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth).
Penalty: 30 penalty units or imprisonment for 1 year, or both.