House of Representatives

Explanatory Memorandum

(Circulated by authority of the Assistant Minister for Regional Development and Territories, The Hon Nola Marino MP)

SCHEDULE 1 - AMENDMENTS OF TERRITORY ACTS

Part 1 - Applied laws, delegations and other matters

Division 1 - Amendments

Christmas Island Act 1958

Item 1 - Subsection 4(1)

17. This item amends subsection 4(1) of the CI Act by inserting a new definition of 'amended' for when a Western Australian applied law is amended, a new definition of 'applied Western Australian law' and a new definition of 'authority', for the purposes of the CI Act. The new definition of 'amended' refers to new subsection 8GA(4) (see item 18) and the new definition of 'applied Western Australian law' means a Western Australian law as in force in Christmas Island under section 8A. The new inclusive definition of 'authority' is based on the existing definition of 'authority' in subsection 8G(12) which will be repealed (see item 17). Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

Item 2 - Subsection 4(1) (definition of jurisdiction )

18. This item amends subsection 4(1) of the CI Act by omitting the words 'or functions' from the existing definition of 'jurisdiction', which presently provides that this 'includes power or functions.' This amendment is consequential to the amendment made by item 3 which inserts into subsection 4(1) the new definition of 'power' which includes a function or duty. An equivalent amendment will be made to the corresponding provision in the CKI Act.

Item 3 - Subsection 4(1)

19. This item amends subsection 4(1) of the CI Act by inserting new definitions of 'power' and 'Western Australian law'. The new definition of 'power' is based on the existing definition of 'power' in subsection 8G(12) which will be repealed (see item 17), and the new definition of 'Western Australian law' refers to new subsection 8A(6) (see item 9). Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

Item 4 - Section 7

20. This item amends section 7 of the CI Act and is consequential to the amendment made by item 6 which inserts a new subsection 7(2) into the CI Act. Existing section 7 of the CI Act, which deals with the laws in force in Christmas Island, will now be in subsection 7(1) of the CI Act.

Item 5 - Paragraph 7(d)

21. This item repeals and substitutes paragraph 7(d) of the CI Act by replacing the existing reference to 'Western Australian laws as in force in the Territory in accordance with section 8A' with the new defined term of 'applied Western Australian laws.' This amendment is consequential to the amendment made by item 1 which inserts the new definition of 'applied Western Australian law' into subsection 4(1). Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

Item 6 - At the end of section 7

22. This item inserts new subsection 7(2) into the CI Act. It avoids any doubt that subsection 7(1), which deals with the laws in force in Christmas Island, does not prevent any other law, including a law of a state or a territory, from applying in Christmas Island of its own force. (Under subsection 4(1) of the CI Act, 'State' includes 'a Territory other than the Territory' and 'the Territory' means the 'Territory of Christmas Island.')

23. This new subsection makes it clear that subsection 7(1) is not intended to be exhaustive as to the laws which may potentially apply in Christmas Island and is not intended to prevent the application of other laws, such as the laws of another state or territory, capable of applying extraterritorially to Christmas Island. Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

Item 7 - Subsection 8A(1)

24. This item amends subsection 8A(1) of the CI Act, which deals with the application of Western Australian laws in Christmas Island, by substituting the existing reference to 'the provisions of the law of Western Australia' with 'Western Australian laws' and making other consequential changes. This amendment is consequential to the insertion of the new definition of 'Western Australian law' into the CI Act (see items 3 and 9). Equivalent amendments will be made to the corresponding provisions in the CKI Act.

Item 8 - At the end of subsection 8A(1)

25. This item amends subsection 8A(1) of the CI Act, by inserting a note at the end of the subsection. The note clarifies that a Western Australian law as in force in Christmas Island under section 8A is an 'applied Western Australian law' and refers to the definition in subsection 4(1). An equivalent amendment will be made to the corresponding provision in the CKI Act.

Item 9 - Subsection 8A(6)

26. This item repeals and substitutes a new subsection 8A(6) of the CI Act, which provides for a new definition of 'Western Australian law' (see also item 3). The new definition provides that this is a law in force in Western Australia from time to time and, consistent with the existing definition, includes principles of common law or equity that are part of the law of Western Australia, but does not include Commonwealth Acts and instruments in force in Western Australia (including provisions of such Acts and instruments). These amendments will not have a substantive effect on the operation of section 8A but will simplify its language by removing superfluous references. Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

Item 10 - Section 8G (heading)

27. This item amends the heading of section 8G of the CI Act, which refers to 'Powers and functions under the applied Western Australian laws', by omitting the reference to 'functions'. This amendment is consequential to the amendment made by item 3 which inserts the new definition of 'power' into subsection 4(1) and which relevantly provides that 'power' includes a function or duty. Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

Item 11 - Subsections 8G(1) and (2)

28. This item repeals and substitutes subsections 8G(1) and (2) of the CI Act, and inserts a new subsection 8G(2A) into this Act.

29. New subsections 8G(1) and (2) of the CI Act substitute the present references to 'a Western Australian law in force in the Territory under section 8A', with appropriate references to 'an applied Western Australian law'. This amendment is consequential to the amendment made by item 1 which inserts the new definition of 'applied Western Australian law' into subsection 4(1). Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

30. New subsection 8G(2A) of the CI Act is an avoidance of doubt provision, which provides that a power vested in a person or authority under an applied Western Australian law does not include a reference to a power so vested, whether directly or indirectly, because of an ordinance made for the purposes of subsection 8A(2) of the CI Act. Under subsection 8A(2) of the CI Act, an ordinance may provide for the incorporation, amendment or repeal of a law in force in Christmas Island under section 8A. For instance, if an applied Western Australian law is amended by an ordinance under subsection 8A(2) and the amending ordinance expressly vests a new power in a Commonwealth person or authority, that power is vested directly in the Commonwealth person or authority under the amending ordinance rather than vested in the minister under subsection 8G(2) of the CI Act. This avoids the need for the minister to subsequently delegate the power to the relevant Commonwealth person or authority under subsection 8G(3) of the CI Act. Equivalent amendments will be made to the CKI Act and the NI Act.

Item 12 - Paragraph 8G(3)(a)

31. This item amends paragraph 8G(3)(a) of the CI Act by omitting the existing reference to 'specified'. Paragraph 8G(3)(a) of the CI Act currently provides that the minister may direct that powers vested in the minister under applied Western Australian laws may be vested in a 'specified person or authority'. The omission of the existing reference to 'specified' is intended to remove any doubt that the minister may direct that these powers may also be vested in a person by reference to a specified office or position, including to a person from time to time holding, occupying, or performing the duties of, a specified office or position, or to an authority by reference to a class or type of authority. Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

Item 13 - Paragraph 8G(3)(b)

32. This item amends paragraph 8G(3)(b) of the CI Act by omitting the existing reference to 'specified' and adding a reference to 'authority'. Paragraph 8G(3)(b) of the CI Act currently provides that the minister may delegate powers vested in the minister under applied Western Australian laws to a 'specified person'. The omission of the existing reference to 'specified' is intended to remove any doubt that the minister may delegate these powers to a person by reference to a specified office or position, including to a person from time to time holding, occupying, or performing the duties of, a specified office or position. The insertion of a reference to 'authority' makes the minister's power under this paragraph consistent with the minister's power under paragraph 8G(3)(a) of the CI Act to direct that a power under an applied law may be vested in an authority. Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

Item 14 - Subsections 8G(4) to (6)

33. This item repeals subsection 8G(4) to (6) and inserts new subsections 8G(4), (5), (5A), (5B) and (6) in the CI Act.

34. New subsection 8G(4) of the CI Act provides that a direction or delegation made by the minister under subsection 8G(3) of the CI Act is subject to such conditions as may be specified by the minister in the direction or delegation, or in the case of a deemed direction under new subsection (5A) or (5B), in writing by the minister. The new subsection is intended to avoid any doubt that any direction or delegation of powers vested in the minister under applied Western Australian laws can be made subject to any conditions that the minister may see fit. An equivalent provision will be inserted into the CKI Act and the NI Act.

35. New subsection 8G(5) of the CI Act enables a person or authority in whom the minister has vested a power by a direction under paragraph 8G(3)(a) to delegate that power to another person or authority if the minister's direction has authorised that, or in the case of a deemed direction under new subsection (5A) or (5B), if the minister has authorised that in writing. The new subsection is based on existing subsection 8G(4) of the CI Act but omits the references to 'specified person', removes any doubt that this power also extends to an authority if authorised by the minister and expressly includes the deemed directions and delegations arrangements under new subsection 8G(5A) and (5B) of the CI Act. An equivalent provision will be inserted into the CKI Act and the NI Act.

36. New subsection 8G(5A) of the CI Act provides that where the Western Australian Government and the Australian Government have agreed to enter into an arrangement for the application and administration of one or more applied Western Australian laws (under section 8A), the minister is taken to have directed that certain powers are vested in certain Western Australian officers, employees or authorities. This provision avoids the need for the minister to specifically vest a potentially diverse range of powers in Western Australian officers or authorities. The new subsection is based on existing subsection 8G(5) of the CI Act but clarifies that it also extends to powers vested in the minister under paragraph 8G(1)(a) of the CI Act, that is, powers vested in a minister of Western Australia in force in Christmas Island under section 8A. This extension will ensure that subsection 8G(5A) will also apply to Western Australian officers, employees or authorities who are exercising powers delegated to them by a minister of Western Australia, with respect to the law as it applies in Western Australia, and when subject to an arrangement between the Western Australian Government and the Australian Government for the application and administration of the applied Western Australian law in Christmas Island. An equivalent provision will be inserted into the CKI Act and the NI Act.

37. New subsection 8G(5B) of the CI Act provides for deemed vesting of certain powers vested in the minister under paragraph 8G(1)(a) or subsection 8G(2) of the CI Act. Where those powers correspond with police or local government powers vested by a Western Australian law, the minister is taken to have directed that these certain powers are also vested in the Australian Federal Police (AFP), AFP members or special members, the Christmas Island Shire or Shire officials as the case may be. For instance, item 2 of the table in subsection 8G(5B) provides that a power that corresponds to a power vested by a Western Australian law in a police officer (however described) holding, occupying or performing the duties of a particular kind of office or position is vested in a AFP member or special member holding, occupying or performing the duties of a corresponding office or position in Christmas Island. This would mean, for example, that a power exercised by the Western Australian Commissioner of Police in Western Australia under a Western Australian law may, with respect to that law as applied in Christmas Island, be exercised by the AFP member who is the officer in charge of community policing in Christmas Island.

38. This provision removes the need for the minister to specifically vest a diverse range of common police and local government powers under Western Australian applied laws in the AFP or the Christmas Island Shire and its officials. Provision is also made for other powers to be prescribed by an ordinance for the purposes of this subsection (see item 5 of the table in this subsection). The minister may also direct, under subsection 8G(6), as amended by the Bill, that the deemed vesting of a specified power under this subsection does not apply in relation to that power. An equivalent provision to new subsection 8G(5B) will also be inserted into the CKI Act and the NI Act.

39. New subsection 8G(6) of the CI Act provides that the minister may direct that the deemed vesting of a power under subsection 8G(5A) or (5B) does not apply in relation to a specified power. This new subsection, based on existing subsection 8G(6), is consequential to the insertion of the new deemed vesting provisions, and also requires that the minister make any such direction in writing. An equivalent provision will be inserted into the CKI Act and the NI Act.

Item 15 - Subsection 8G(9)

40. This item repeals and substitutes subsection 8G(9) of the CI Act by inserting a reference to 'applied Western Australian law' and substituting the present reference to 'the law as in force in Western Australia', with a reference to 'a Western Australian law'. This amendment is consequential to the amendments made by items 1 and 3 which respectively insert the new definitions of 'applied Western Australian law' and 'Western Australian law' into subsection 4(1). An equivalent provision will be inserted into the CKI Act and the NI Act.

41. The effect of the provision, consistent with the existing provision, is to preserve the validity of the exercise of a power under section 8G by a person or authority who may not hold qualifications necessary for the exercise of that power under a Western Australian law as in force in that state. For example, a power under an applied Western Australian law may be validly exercised by the Commonwealth minister or his or her delegate, even if the minister or delegate would not be ordinarily qualified to exercise that power under the Western Australian law as in force in that state. The validity of powers exercised under section 8G may still be challenged on other administrative law grounds, for instance, unreasonableness or a failure to take into account relevant considerations.

Item 16 - After subsection 8G(10)

42. This item inserts new subsection 8G(10A) into the CI Act to clarify that any reference in an applied Western Australian law to a person or authority is taken to include a reference to any other person or authority in whom powers are vested under section 8G of the CI Act, including any direction or delegation made under this section. An equivalent provision to new subsection 8G(10A) will also be inserted into the CKI Act and the NI Act.

Item 17 - Subsection 8G(12)

43. This item repeals subsection 8G(12) which presently defines the terms 'authority', 'authority of Western Australia' and 'power' for the purposes of section 8G of the CI Act. The repeal of this subsection is consequential to the insertion of new definitions into subsection 4(1) of the CI Act.

Item 18 - After section 8G

44. This item inserts new section 8GA into the CI Act to deal with the effect of amendments to applied Western Australian laws on existing directions or delegations made under section 8G of the CI Act. This new section is based on subsections 34AB(2) and (3) of the Acts Interpretation Act 1901 (Acts Interpretation Act) which deal generally with delegations made under Commonwealth Acts. An equivalent provision to new section 8GA will also be inserted into the CKI Act and the NI Act.

45. New subsection 8GA(1) deals with the application of the section to directions and delegations made under section 8G of the CI Act.

46. New subsection 8GA(2) of the CI Act makes it clear that a direction or delegation that is expressed to include all the powers, functions or duties of a person or authority under an applied Western Australian law extends to include any additional power, function or duty of that person or authority that arises from subsequent amendments to the applied Western Australian law. This provides greater certainty for the exercise of functions, duties and powers under these applied laws and means that the direction or delegation does not need to be updated when the Western Australian law is changed. This amendment is consequential to the amendment made by item 3 which inserts the new definition of 'power' into subsection 4(1) so as to provide that 'power' includes a function or duty.

47. New subsection 8GA(3) similarly provides that where an amendment to an applied Western Australian law alters the scope of a function, duty or power of a person or authority subject to a direction or delegation, the direction or delegation is taken to include the altered function, duty or power.

48. New subsection 8GA(4) provides that an applied Western Australian law is 'amended' if the law is amended by an ordinance or the corresponding Western Australian law is amended (see also the new definition of 'amended' inserted into subsection 4(1) by item 1).

49. This provision does not prevent the review of a direction or delegation when new powers, functions or duties are inserted into an applied Western Australian law or amendment of the direction or delegation if it is considered appropriate that the new or altered function, duty or power should not be subject to the direction or delegation.

Item 19 - Subsection 8H(2)

50. This item amends subsection 8H(2) of the CI Act, which provides that arrangements between the Commonwealth and Western Australia may provide 'for the exercise of powers or the performance of functions or duties', by omitting the references to 'functions' or 'duties'. This amendment is consequential to the amendment made by item 3 which inserts the new definition of 'power' into subsection 4(1) so as to provide that 'power' includes a function or duty. Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

Item 20 - Paragraphs 8H(2)(b) and (c)

51. This item amends paragraphs 8H(2)(b) and (c) of the CI Act by substituting references to an authority 'within the meaning of section 8G' with references to an authority 'established under a Western Australian law'. This amendment is consequential to the amendments made by items 1 and 17 which respectively insert the new definition of 'authority' into subsection 4(1) and repeal subsection 8G(12). Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

Item 21 - Paragraph 10D(1A)(b)

52. This item amends paragraph 10D(1A)(b) of the CI Act by substituting the present reference to 'a Western Australian law in force in the Territory under section 8A', with a reference to 'an applied Western Australian law'. This amendment is consequential to the amendment made by item 1 which inserts the new definition of 'applied Western Australian law' into subsection 4(1). Equivalent amendments will be made to the corresponding provisions in the CKI Act and the NI Act.

Item 22 - Paragraph 11A(b)

53. This item amends paragraph 11A(b) of the CI Act by omitting the words 'or duty' from this paragraph, which presently deals with powers or duties conferred or imposed on registry officers. This amendment is consequential to the amendment made by item 3 which inserts the new definition of 'power' into subsection 4(1) and which provides that 'power' includes a function or duty.

Item 23 - Paragraph 11A(b)

54. This item amends paragraph 11A(b) of the CI Act by omitting the words 'or the performance of that duty' from this paragraph, which presently deals with powers or duties conferred or imposed on registry officers. This amendment is consequential to the amendment made by item 3 which inserts the new definition of 'power' into subsection 4(1) and which provides that 'power' includes a function or duty.

Item 24 - Paragraph 14E(c)

55. This item amends paragraph 14E(c) of the CI Act by omitting the words 'or power' from this paragraph, which deals with certain references to magistrates who have jurisdiction in or in relation to Christmas Island. This amendment is consequential to the amendments made by items 2 and 3 which respectively, in subsection 4(1), amend the definition of 'jurisdiction' and insert the new definition of 'power'.

Item 25 - Subparagraphs 14E(d)(i) and (ii) and (e)(i) and (ii)

56. This item amends subparagraphs 14E(d)(i) and (ii) and (e)(i) and (ii) of the CI Act by omitting the words 'and functions' from these subparagraphs, which presently deals with certain references to a range of court officers. These amendments are consequential to the amendment made by item 3 which inserts the new definition of 'power' into subsection 4(1) and which relevantly provides that 'power' includes a function or duty.

Item 26 - After section 22

57. This item inserts new section 22A into the CI Act to deal with the incorporation of matters by reference in an ordinance, or a law made under an ordinance. Under section 9 of the CI Act, the Governor-General may make ordinances for the peace, order and good government of the Territory of Christmas Island.

58. New subsection 22A(1) of the CI Act makes it clear that, despite subsection 14(2) of the Legislation Act 2003 (Legislation Act), an ordinance, or a law made under an ordinance, may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a provision of a Western Australian law (whether or not the law is an applied Western Australian law), as in force at a particular time or as in force from time to time. Subsection 14(2) of the Legislation Act provides that, unless the contrary intention appears, a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

59. Under subsection 8A(1) of the CI Act, as amended by this Bill, Western Australian laws, as in force in Western Australia from time to time, are in force in Christmas Island. Under subsection 8A(2) of the CI Act these applied Western Australian laws may be incorporated, amended or repealed by an ordinance or a law made under an ordinance. Accordingly, new section 22A of the CI Act will avoid any doubt that an ordinance, or a law made under an ordinance, may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a provision of a Western Australian law as in force from time to time. In the absence of new section 22A, amendments to applied Western Australian laws would need to be more frequent (in order to keep pace with amendments made by the Western Australian Parliament to Western Australian laws) or potentially more complex, for instance, without the ability to incorporate Western Australian laws as in force from time to time.

60. New subsection 22A(2) of the CI Act provides that subsection 22A(1) only applies to a Western Australian law that is not an Act if it is subject to disallowance in Western Australia. This is consistent with the operation of s 14(3) of the Legislation Act which restricts the incorporation of matters by reference to Commonwealth legislative instruments which are disallowable. Disallowable instruments are subject to parliamentary scrutiny and are publicly and freely available.

61. An equivalent provision to new section 22A will also be inserted into the CKI Act and the NI Act.

Cocos (Keeling) Islands Act 1955

Item 27 - Subsection 4(1)

62. This item amends subsection 4(1) of the CKI Act by inserting a new definition of 'amended' for when a Western Australian applied law is amended, a new definition of 'applied Western Australian law' and a new definition of 'authority', for the purposes of the CKI Act. The new definition of 'amended' refers to new subsection 8GA(4) (see item 44) and the new definition of 'applied Western Australian law' means a Western Australian law as in force in the Cocos (Keeling) Islands under section 8A. The new inclusive definition of 'authority' is based on the existing definition of 'authority' in subsection 8G(12) which will be repealed (see item 43). Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

Item 28 - Subsection 4(1) (definition of jurisdiction )

63. This item amends subsection 4(1) of the CKI Act by omitting the words 'or functions' from the existing definition of 'jurisdiction', which presently provides that this 'includes power or functions.' This amendment is consequential to the amendment made by item 29 which inserts the new definition of 'power' into subsection 4(1) and which relevantly provides that 'power' includes a function or duty. Equivalent amendments will be made to the corresponding provision in the CI Act.

Item 29 - Subsection 4(1)

64. This item amends subsection 4(1) of the CKI Act by inserting new definitions of 'power' and 'Western Australian law'. The new definition of 'power' is based on the existing definition of 'power' in subsection 8G(12), which will be repealed. The new definition of 'Western Australian law' refers to new subsection 8A(6). Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

Item 30 - Section 7A

65. This item amends section 7A of the CKI Act and is consequential to the amendment made by item 32 which inserts a new subsection 7(2) into the CKI Act. Existing section 7A of the CKI Act, which deals with the laws in force in Christmas Island, will now be contained in subsection 7A(1) of the CKI Act.

Item 31 - Paragraph 7A(d)

66. This item repeals and substitutes paragraph 7(d) of the CKI Act by replacing the existing reference to 'Western Australian laws as in force in the Territory in accordance with section 8A' with the new defined term of 'applied Western Australian laws.' This amendment is consequential to the amendment made by item 27 which inserts the new definition of 'applied Western Australian law' into subsection 4(1). Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

Item 32 - At the end of section 7A

67. This item inserts new subsection 7A(2) into the CKI Act. It avoids any doubt that subsection 7A(1), which deals with the laws in force in the Cocos (Keeling) Islands, does not prevent any other law, including a law of a state or a territory, from applying in the Cocos (Keeling) Islands of its own force. (Under subsection 4(1) of the CKI Act, 'State' includes 'a Territory other than the Territory' and 'the Territory' means the 'Territory of Cocos (Keeling) Islands.')

68. This new subsection makes it clear that subsection 7A(1) is not intended either to be exhaustive as to the laws which may potentially apply in the Cocos (Keeling) Islands or to prevent the application of other laws, such as the laws of another state or territory, that are capable of applying extraterritorially to the Cocos (Keeling) Islands. Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

Item 33 - Subsection 8A(1)

69. This item amends subsection 8A(1) of the CKI Act, which deals with the application of Western Australian laws in the Cocos (Keeling) Islands, by substituting the existing reference to 'the provisions of the law of Western Australia' with 'Western Australian laws'. This amendment is consequential to the substitution of the new subsection 8A(6) of the CKI Act by item 35, which inserts a new definition of 'Western Australia law' for the purposes of section 8A of the CKI Act.

Item 34 - At the end of subsection 8A(1)

70. This item amends subsection 8A(1) of the CKI Act, by inserting a note at the end of this subsection. The note clarifies that a Western Australian law as in force in the Cocos (Keeling) Islands under section 8A is an 'applied Western Australian law', and refers to the definition in subsection 4(1). An equivalent amendment will be made to the corresponding provision in the CI Act.

Item 35 - Subsection 8A(6)

71. This item repeals and substitutes a new subsection 8A(6) of the CKI Act, which provides for a new definition of a 'Western Australian law' (see also item 29). The new definition provides that this is a law in force in Western Australia from time to time and, consistent with the existing definition, includes principles of common law or equity that are part of the law of Western Australia, but does not include Commonwealth Acts and instruments in force in Western Australia (including provisions of such Acts and instruments). These amendments will not have a substantive effect on the operation of section 8A but will simplify its language by removing superfluous references. Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

Item 36 - Section 8G (heading)

72. This item amends the heading of section 8G of the CKI Act, which refers to 'Powers and functions under the applied Western Australian laws', by omitting the reference to 'functions'. This amendment is consequential to the amendment made by item 29 which inserts the new definition of 'power' into subsection 4(1) and which provides that 'power' includes a function or duty. Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

Item 37 - Subsections 8G(1) and (2)

73. This item repeals and substitutes subsections 8G(1) and (2) of the CKI Act, and inserts a new subsection 8G(2A).

74. New subsections 8G(1) and (2) of the CKI Act substitute the present references to 'a Western Australian law in force in the Territory under section 8A', with appropriate references to 'an applied Western Australian law'. This amendment is consequential to the amendment made by item 27 which inserts the new definition of 'applied Western Australian law' into subsection 4(1). Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

75. New subsection 8G(2A) of the CKI Act is an avoidance of doubt provision. It provides that a power vested in a person or authority by an applied Western Australian law does not include a reference to a power so vested, whether directly or indirectly, because of an ordinance made for the purposes of subsection 8A(2) of the CKI Act. Under subsection 8A(2) of the CKI Act, an ordinance may provide for the incorporation, amendment or repeal of a law in force in the Cocos (Keeling) Islands under section 8A. For instance, if an applied Western Australian law is amended by an ordinance under subsection 8A(2) and the amending ordinance expressly vests a new power in a Commonwealth person or authority, that power is vested directly in the Commonwealth person or authority under the amending ordinance rather than vested in the minister under subsection 8G(2) of the CKI Act. This avoids the need for the minister to subsequently delegate the power to the relevant Commonwealth person or authority under subsection 8G(3) of the CKI Act. Equivalent amendments will be made to the CI Act and the NI Act.

Item 38 - Paragraph 8G(3)(a)

76. This item amends paragraph 8G(3)(a) of the CKI Act by omitting the existing reference to 'specified'. Paragraph 8G(3)(a) of the CKI Act provides that the minister may direct that powers vested in the minister under applied Western Australian laws may be vested in a 'specified person or authority'. The omission of the existing reference to 'specified' is intended to remove any doubt that the minister may direct that these powers may also be vested in a person by reference to a specified office or position, including to a person from time to time holding, occupying, or performing the duties of, a specified office or position, or to an authority by reference to a class or type of authority. Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

Item 39 - Paragraph 8G(3)(b)

77. This item amends paragraph 8G(3)(b) of the CKI Act by omitting the existing reference to 'specified' and adding a reference to 'authority'. Paragraph 8G(3)(b) of the CKI Act provides that the minister may delegate powers vested in the minister under applied Western Australian laws in a 'specified person'. The omission of the existing reference to 'specified' is intended to remove any doubt that the minister may delegate these powers in a person by reference to a specified office or position, including to a person from time to time holding, occupying, or performing the duties of, a specified office or position. The insertion of a reference to 'authority' makes the minister's power under this paragraph consistent with the minister's power under paragraph 8G(3)(a) of the CKI Act to direct that a power under an applied law may be vested in an authority. Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

Item 40 - Subsections 8G(4) to (6)

78. This item repeals subsections 8G(4) to (6) and inserts new subsections 8G(4), (5), (5A), (5B) and (6) into the CKI Act.

79. New subsection 8G(4) of the CKI Act provides that a direction or delegation made by the minister under subsection 8G(3) of the CKI is subject to such conditions as may be specified by the minister in the direction or delegation, or in the case of a deemed direction under new subsection (5A) or (5B), in writing by the minister. The new subsection is intended to avoid any doubt that any direction or delegation of powers vested in the minister under applied Western Australian laws can be made subject to any conditions that the minister may see fit. An equivalent provision will be inserted into the CI Act and the NI Act.

80. New subsection 8G(5) of the CKI Act enables a person or authority in whom the minister has vested a power by a direction under paragraph 8G(3)(a) to delegate that power to another person or authority if the minister's direction has authorised that, or in the case of a deemed direction under new subsection (5A) or (5B), if the minister has authorised that in writing. The new subsection is based on existing subsection 8G(4) of the CKI Act but omits the references to 'specified person', removes any doubt that this power also extends to an authority if authorised by the minister and expressly includes the deemed directions and delegations arrangements under new subsection 8G(5A) and (5B) of the CKI Act. An equivalent provision will be inserted into the CI Act and the NI Act.

81. New subsection 8G(5A) of the CKI Act provides that where the Western Australian Government and the Australian Government have agreed to enter into an arrangement for the application and administration of one or more applied Western Australian laws (under section 8A), the minister is taken to have directed that certain powers are vested in certain Western Australian officers, employees or authorities. This provision avoids the need for the minister to specifically vest a potentially diverse range of powers in Western Australian officers or authorities. The new subsection is based on existing subsection 8G(5) of the CKI Act but clarifies that it also extends to powers vested in the minister under paragraph 8G(1)(a) of the CKI Act, that is, powers vested in a minister of Western Australia in force in the Cocos (Keeling) Islands under section 8A. This extension will ensure that subsection 8G(5A) will also apply to Western Australian officers, employees or authorities who are exercising powers delegated to them by a minister of Western Australia, with respect to the law as it applies in Western Australia, and when subject to an arrangement between the Western Australian Government and the Australian Government for the application and administration of the applied Western Australian law in the Cocos (Keeling) Islands. An equivalent provision will be inserted into the CI Act and the NI Act.

82. New subsection 8G(5B) of the CKI Act provides for deemed vesting of certain powers vested in the minister under paragraph 8G(1)(a) or subsection 8G(2) of the CKI Act. Where that power corresponds with police or local government powers vested by a Western Australian law, the minister is taken to have directed that these powers are also vested in the AFP, AFP members or special members, the Cocos (Keeling) Islands Shire and Shire officials as the case may be. For instance, item 2 of the table in subsection 8G(5B) provides that a power that corresponds to a power vested by a Western Australian law in a police officer (however described) holding, occupying or performing the duties of a particular kind of office or position, is vested in an AFP member or special member holding, occupying or performing the duties of a corresponding office or position in the Cocos (Keeling) Islands. This would mean, for example, that a power exercised by the Western Australian Commissioner of Police in Western Australia under a Western Australian law may, with respect to that law as applied in the Cocos (Keeling) Islands, be exercised by the AFP member who is the officer in charge of community policing in the Cocos (Keeling) Islands.

83. This provision removes the need for the minister to specifically vest a diverse range of common police and local government powers under Western Australian applied laws in the AFP or the Christmas Island Shire and its officials. Provision is also made for other powers to be prescribed by an ordinance for the purposes of this subsection (see item 5 of the table in this subsection). The minister may also direct, under subsection 8G(6), as amended by the Bill, that the deemed vesting of a specified power, or a power that belongs to a specified class of powers, under this subsection does not apply in relation to that power. An equivalent provision to new subsection 8G(5B) will also be inserted into the CI Act and the NI Act.

84. New subsection 8G(6) of the CKI Act provides that the minister may direct that the deemed vesting of a power under subsection 8G(5A) or (5B) does not apply in relation to a specified power. This new subsection, based on the existing subsection 8G(6), is consequential to the insertion of the new deemed vesting provisions, and also requires that the minister make any such direction in writing. An equivalent provision will be inserted into the CI Act and the NI Act.

Item 41 - Subsection 8G(9)

85. This item repeals and substitutes subsection 8G(9) of the CKI Act. The new subsection is based on the existing subsection and amends it by inserting a reference to 'applied Western Australian law' and substituting the present reference to 'the law as in force in Western Australia' with a reference to 'a Western Australian law'. This amendment is consequential to the amendments made by items 27 and 29 which respectively insert the new definitions of 'applied Western Australian law' and 'Western Australian law' into subsection 4(1). An equivalent provision will be inserted into the CI Act and the NI Act.

86. The effect of the provision, consistent with the existing provision, is to preserve the validity of the exercise of a power under section 8G by a person or authority who may not hold qualifications necessary for the exercise of that power under a Western Australian law as in force in that state. For example, a power under an applied Western Australian law may be validly exercised by the Commonwealth minister or his or her delegate, even if the minister or delegate would not be ordinarily qualified to exercise that power under the Western Australian law as in force in that state. The validity of powers exercised under section 8G may still be challenged on other administrative law grounds, for instance, unreasonableness or a failure to take into account relevant considerations.

Item 42 - After subsection 8G(10)

87. This item inserts new subsection 8G(10A) into the CKI Act to clarify that any reference in an applied Western Australian law to a person or authority is taken to include a reference to any other person or authority in whom powers are vested under section 8G of the CKI Act, including any direction or delegation made under this section. An equivalent provision to new subsection 8G(10A) will also be inserted into the CI Act and the NI Act.

Item 43 - Subsection 8G(12)

88. This item repeals subsection 8G(12) which presently defines the terms 'authority', 'authority of Western Australian' and 'power' for the purposes section 8G of the CKI Act. The repeal of this subsection is consequential to the insertion of these definitions into subsection 4(1) of the CKI Act.

Item 44 - After section 8G

89. This item inserts new section 8GA into the CKI Act to deal with the effect of amendments to applied Western Australian laws on existing directions and delegations made under section 8G of the CKI Act. This new section is based on subsections 34AB(2) and (3) of the Acts Interpretation Act which deals generally with delegations made under Commonwealth Acts. An equivalent provision to new section 8GA will also be inserted into the CI Act and the NI Act.

90. New subsection 8GA(1) deals with the application of the section to directions and delegations made under section 8G of the CKI Act.

91. New subsection 8GA(2) of the CKI Act makes it clear that a direction or delegation that is expressed to include all the powers, functions or duties of a person or authority under an applied Western Australian law extends to include any additional power, function or duty of that person or authority that arises from subsequent amendments to the applied Western Australian law. This provides greater certainty for the exercise of functions, duties and powers under these applied laws and means that the direction or delegation does not need to be updated when the Western Australian law is changed.

92. New subsection 8GA(3) similarly provides that where an amendment to an applied Western Australian law alters the scope of a function, duty or power of a person or authority subject to a direction or delegation, the direction or delegation is taken to include the altered function, duty or power.

93. New subsection 8GA(4) provides that an applied Western Australian law is 'amended' if the law is amended by an ordinance or the corresponding Western Australian law is amended (see also the new definition of 'amended' inserted into subsection 4(1) by item 27).

94. This provision does not prevent the review of a direction or delegation when new powers, functions or duties are inserted into an applied Western Australian law or amendment of the direction or delegation if it is considered appropriate that the new or altered function, duty or power should not be subject to the direction or delegation.

Item 45 - Subsection 8H(2)

95. This item amends subsection 8H(2) of the CKI Act, which provides that arrangements between the Commonwealth and Western Australia may provide 'for the exercise of powers or the performance of functions or duties', by omitting the existing references to 'functions' or 'duties'. This amendment is consequential to the amendment made by item 29 which inserts the new definition of 'power' into subsection 4(1) to provide that 'power' includes a function or duty. Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

Item 46 - Paragraphs 8H(2)(b) and (c)

96. This item amends paragraphs 8H(2)(b) and (c) of the CKI Act by substituting references to an authority 'within the meaning of section 8G' with references to an authority 'established under a Western Australian law'. This amendment is consequential to the amendments made by items 27 and 43 which respectively insert the new definition of 'authority' into subsection 4(1) and repeal subsection 8G(12). Equivalent amendments will be made to the corresponding provisions in the CI Act and the NI Act.

Item 47 - Paragraph 13D(1A)(b)

97. This item amends paragraph 13D(1A)(b) of the CKI Act by substituting the present reference to 'a Western Australian law in force in the Territory under section 8A', with a reference to 'an applied Western Australian law'. This amendment is consequential to the amendment made by item 27 which inserts the new definition of 'applied Western Australian law' into subsection 4(1). An equivalent amendment will be made to the corresponding provision in the CI Act.

Item 48 - Subparagraphs 15AAE(c)(i) and (ii) and (d)(i) and (ii)

98. This item amends subparagraphs 15AAE(c)(i) and (ii) and (d)(i) and (ii) of the CKI Act by omitting the words 'and functions' from these subparagraphs, which deal with certain references to a range of court officers. These amendments are consequential to the amendment made by item 29 which inserts the new definition of 'power' into subsection 4(1) and provides that 'power' includes a function or duty.

Item 49 - Paragraph 15AAE(f)

99. This item amends paragraph 15AAE(f) of the CKI Act by omitting the words 'or duties' from this paragraph, which deals with certain references to court officers. This amendment is consequential to the amendments made by item 29 which inserts the new definition of 'power' into subsection 4(1) and provides that 'power' includes a function or duty.

Item 50 - Paragraph 16(1)(c)

100. This item amends paragraph 16(1)(c) of the CKI Act by omitting the words 'or duty' from this paragraph, which deals with powers or duties conferred or imposed on court officers. This amendment is consequential to the amendment made by item 29 which inserts the new definition of 'power' into subsection 4(1) and provides that 'power' includes a function or duty.

Item 51 - Paragraph 16(1)(c)

101. This item amends paragraph 16(1)(c) of the CKI Act by omitting the words 'or the performance of that duty' from this paragraph, which presently deals with powers or duties conferred or imposed on court officers. This amendment is consequential to the amendment made by item 29 which inserts the new definition of 'power' into subsection 4(1) and provides that 'power' includes a function or duty.

Item 52 - After section 19

102. This item inserts new section 19A into the CKI Act which deals with the incorporation of matters by reference in an ordinance, or a law made under an ordinance. Under section 12 of the CKI Act, the Governor-General may make ordinances for the peace, order and good government of the Territory of the Cocos (Keeling) Islands.

103. New subsection 19A(1) of the CKI Act makes it clear that, despite subsection 14(2) of the Legislation Act, an ordinance, or a law made under an ordinance, may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a provision of a Western Australian law (whether or not the law is an applied Western Australian law), as in force at a particular time or as in force from time to time. Subsection 14(2) of the Legislation Act provides that, unless subject to a contrary intention, a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

104. Under subsection 8A(1) of the CKI Act, as amended by this Bill, Western Australian laws, as in force in Western Australia from time to time, are in force in the Cocos (Keeling) Islands. Under subsection 8A(2) of the CKI Act these applied Western Australian laws may be incorporated, amended or repealed by an ordinance or a law made under an ordinance. Accordingly, new section 19A of the CKI Act will avoid any doubt that an ordinance, or a law made under an ordinance, may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a provision of a Western Australian law as in force from time to time. In the absence of new section 19A, amendments to applied Western Australian laws would need to be more frequent (in order to keep pace with amendments made by the Western Australian Parliament to Western Australian laws) or potentially more complex, for instance without the ability to incorporate Western Australian laws as in force from time to time.

105. New subsection 19A(2) of the CKI Act provides that subsection 19A(1) only applies to a Western Australian law that is not an Act, if it is subject to disallowance in Western Australia. This is consistent with the operation of s 14(3) of the Legislation Act which restricts the incorporation of matters by reference to Commonwealth legislative instruments which are disallowable. Disallowable instruments are subject to parliamentary scrutiny and are publicly and freely available.

106. An equivalent provision to new section 19A will also be inserted into the CI Act and the NI Act.

Norfolk Island Act 1979

Item 53 - Subsection 4(1)

107. This item amends subsection 4(1) of the NI Act by inserting a number of new definitions which are consequential to the amendments made to section 18B (which deals with powers under 'applied state laws'), and the insertion of new section 18D (which deals with powers under 'applied territory laws').

108. In particular, this item inserts the following new definitions for the purposes of the NI Act:

•

'amended' (for when an 'applied law' is amended)

•

'applied law'

•

'applied law jurisdiction'

•

'applied State law'

•

'applied Territory law'

•

'authority'.

109. The new definition of 'amended' refers to new subsection 18E(4) (see item 72) and the new definition of 'applied law' means an 'applied State law' or an 'applied Territory law'. The new definition of 'applied law jurisdiction' refers to new section 5 (see item 57). The new definition of 'applied State law' means a law of an applied law jurisdiction that is a state, as in force in Norfolk Island under section 18A of the NI Act. The new definition of 'applied Territory law' similarly means a law of an applied law jurisdiction that is a territory, as in force in Norfolk Island under section 18A of the NI Act. The new inclusive definition of 'authority' is based on the existing definition of 'authority' in subsection 18B(12) which will be repealed (see item 67).

Item 54 - Subsection 4(1)

110. This item amends subsection 4(1) of the NI Act by repealing the definitions of 'court officer of New South Wales' and 'court of New South Wales'. The repeal of these definitions is consequential to the amendments made to section 18B and the insertion of the new definition of 'court officer' (see item 55).

Item 55 - Subsection 4(1)

111. This item amends subsection 4(1) of the NI Act by inserting new definitions of 'court officer', 'law of an applied law jurisdiction', 'Norfolk Island' and 'power'. The insertion of these new definitions is consequential to the repeal and substitution of new section 18A which deals with the application of the laws of applied law jurisdictions and other amendments made to the NI Act (see item 61). The new definition of 'court officer' is based on the present definition of 'court officer of New South Wales', which is being repealed. The new definition of 'law of an applied law jurisdiction' refers to new subsection 18A(6), the new definition of 'Norfolk Island' refers to the definition of 'Territory', and the new definition of 'power' is based on the existing definition of 'power' in subsection 18B(12) which will be repealed.

Item 56 - Subsection 4(1) (definition of Territory )

112. This item amends subsection 4(1) of the NI Act by substituting a new definition of 'Territory', which complements the new definition of 'Norfolk Island'. The definition of 'Territory' or 'Norfolk Island' means the Territory of Norfolk Island and, when used in a geographical sense, means the area described in Schedule 1 to the NI Act.

Item 57 - At the end of Part I

113. This item amends the NI Act by inserting new section 5 which deals with the meaning of 'applied law jurisdiction' for the purposes of this Act. New subsection 5(1) of the NI Act provides that, subject to any regulations made for the purposes of paragraph 5(2)(b), NSW and any other state or territory (if any) prescribed for the purposes of paragraph 5(2)(a) is an 'applied law jurisdiction'.

114. New subsection 5(2) of the NI Act, in turn, provides that the regulations may provide that a state or territory (other than Norfolk Island) is an applied law jurisdiction (paragraph 5(2)(a)); or that a state (including NSW) or a territory stops being an applied law jurisdiction (paragraph 5(2)(b)).

115. New subsection 5(3) of the NI Act provides that, without limiting subsection 5(2), the regulations may prescribe matters of a transitional nature (including any saving or application provisions) relating to regulations made for the purposes of paragraph 5(2)(b) (which may provide that a state or a territory is no longer an applied law jurisdiction).

116. The effect of this section is that NSW, at the time the NI Act is amended by the Bill, will be an 'applied law jurisdiction' for the purposes of the NI Act, subject to any future regulations made for the purposes of this section. Such regulations may prescribe another state or territory as an 'applied law jurisdiction', in which case, under section 18A as amended, the laws of that state or territory, as in force in that jurisdiction from time to time, will be in force in Norfolk Island. Regulations may also provide for a state (including NSW) or a territory to stop being an applied law jurisdiction. Presently while a small number of NSW laws are in force in Norfolk Island under section 18A of the NI Act, the majority of NSW laws have been suspended under a section 19A ordinance.

Item 58 - Section 15

117. This item amends section 15 of the NI Act and is consequential to the amendment made by item 60 which inserts a new subsection 15(2) into the NI Act. Existing section 15, which deals with the laws in force in Norfolk Island from time to time, will now be in subsection 15(1). The amendment also removes a redundant reference to 'the final transition time', which reflects the substitution of a new paragraph 15(e) into this section.

Item 59 - Paragraph 15(e)

118. This item repeals and substitutes paragraph 15(e) of the NI Act by replacing the existing reference to 'New South Wales laws as in force in the Territory in accordance with section 18A' with the new defined term of 'applied laws.' This amendment is consequential to the amendment made by item 53 which inserts the new definition of 'applied law' into subsection 4(1). Equivalent amendments will be made to the corresponding provisions in the CI Act and the CKI Act.

Item 60 - At the end of section 15

119. This item inserts new subsection 15(2) into the NI Act. It avoids any doubt that subsection 15(1), which deals with the laws in force in Norfolk Island, does not prevent any other law, including a law of a state or another territory, from applying in Norfolk Island of its own force. This new subsection makes it clear that subsection 15(1) is not intended to be exhaustive as to the laws which may potentially apply in Norfolk Island and is not intended to prevent the application of other laws, such as the laws of another state or territory, which are capable of applying extraterritorially to Norfolk Island. Equivalent amendments will be made to the corresponding provisions in the CI Act and the CKI Act.

Item 61 - Section 18A

120. This item repeals and substitutes a new section 18A into the NI Act to deal with the application of the laws of applied law jurisdictions. This provision is based on the existing section 18A of the NI Act, which presently deals with the application of NSW laws in Norfolk Island.

121. New subsection 18A(1) provides that, subject to this section and sections 18B and 18D, the laws of an applied law jurisdiction are in force in Norfolk Island. Sections 18B and 18D of the Act respectively deal with powers exercised under applied state and territory laws.

122. New subsection 18A(2) provides that a law in force under subsection 18A(1) can be incorporated, amended or repealed by a section 19A ordinance or a law made under a section 19A ordinance. This subsection enables the modification or repeal of applied laws by ordinance where that is appropriate or desirable in the context of Norfolk Island.

123. New subsection 18A(3) provides that a section 19A ordinance may suspend the operation of an applied law in Norfolk Island for a specified period of time.

124. New subsection 18A(4) provides that a law in force under subsection 18A(1) is of no effect to the extent that it is inconsistent with the Constitution, an Act, an enactment (as defined), or a law of another applied law jurisdiction in force in Norfolk Island under section 18A that has a higher order of priority under regulations made for the purposes of paragraph 18A(4)(d). For the purposes of subsection 18A(4), such laws are taken to be consistent to the extent they are capable of operating concurrently, that is, are not directly inconsistent (see subsection 18A(5)).

125. It is anticipated that a number of applied NSW laws, presently in force in Norfolk Island, may remain in force for a period if the laws of another applied law jurisdiction are applied in Norfolk Island. In such circumstances, new paragraph 18A(4)(d) allows for the making of regulations providing for an order of priority if the laws of more than one applied law jurisdiction are applied in Norfolk Island. Although it is expected that the laws of only one applied law jurisdiction (other than NSW) will be applied at any one time, this provision may be utilised for transitional purposes, such as where there is a future change in state service providers and there is a need to move to the laws of a different applied law jurisdiction.

126. New subsection 18A(6) clarifies that laws of an applied law jurisdiction include not just statutory law, but also principles or rules of common law or equity that are part of the laws of the applied law jurisdiction. Subsection 18A(6) provides though that 'law of an applied law jurisdiction' does not include a Commonwealth Act or a provision of a Commonwealth Act, or an instrument (however described), or a provision of an instrument, made under a Commonwealth Act. A Commonwealth Act, or a provision of a Commonwealth Act, extends to Norfolk Island of its own force except so far as the Commonwealth Act or another Act expressly provides otherwise (see subsection 18(1)).

Item 62 - Section 18B (heading)

127. This item substitutes a new heading to section 18B of the NI Act: 'Powers under applied State laws'. The substitution of this new heading is consequential to the amendments made to section 18B of the NI Act.

Item 63 - Subsections 18B(1) and (2)

128. This item repeals and substitutes subsections 18B(1) and (2) of the NI Act, and inserts a new subsection 18B(2A) into this Act.

129. New subsections 18B(1) and (2) of the NI Act substitute the present references to 'a New South Wales law in force in the Territory under section 18A' and 'NSW', with appropriate references to 'an applied State law' and 'the State'. These amendments are consequential to the insertion of the new definition of 'applied State law' into subsection 4(1) and the amendments made to section 18A.

130. New subsection 18B(2A) of the NI Act is an avoidance of doubt provision. It provides that a power vested in a person or authority under an applied state law does not include a reference to a power so vested, whether directly or indirectly, because of an ordinance made for the purposes of subsection 18A(2) of the NI Act. Under subsection 18A(2) of the NI Act, an ordinance may provide for the incorporation, amendment or repeal of a law in force in Norfolk Island under section 18A. For instance, if an applied state law is amended by an ordinance under subsection 8A(2) and the amending ordinance expressly vests a new power in a Commonwealth person or authority, that power is vested directly in the Commonwealth person or authority under the amending ordinance rather than vested in the minister under subsection 18B(2) of the NI Act. This avoids the need for the minister to subsequently delegate the power to the relevant Commonwealth person or authority under subsection 18B(3) of the NI Act. Equivalent amendments will be made to the CI Act and the CKI Act, as well as section 18D of the NI Act with respect to applied territory laws (see item 72).

Item 64 - Paragraph 18B(3)(a)

131. This item amends paragraph 18B(3)(a) of the NI Act by omitting the existing reference to 'specified'. Paragraph 18B(3)(a) of the NI Act provides that the responsible Commonwealth minister may direct that powers vested in the minister under applied state laws may be vested in a 'specified person or authority'. The omission of the existing reference to 'specified' is intended to remove any doubt that the minister may direct that these powers may also be vested in a person by reference to a specified office or position, including to a person from time to time holding, occupying, or performing the duties of, a specified office or position, or to an authority by reference to a class or type of authority. Equivalent amendments will be made to the corresponding provisions in the CI Act and CKI Act.

Item 65 - Paragraph 18B(3)(b)

132. This item amends paragraph 18B(3)(b) of the NI Act by omitting the existing reference to 'specified' and adding a reference to 'authority'. Paragraph 18B(3)(b) of the NI Act provides that the responsible Commonwealth minister may delegate powers vested in the minister under applied state laws in a 'specified person'. The omission of the existing reference to 'specified' is intended to remove any doubt that the minister may delegate these powers in a person by reference to a specified office or position, including to a person from time to time holding, occupying, or performing the duties of, a specified office or position. The insertion of a reference to 'authority' makes the minister's power under this paragraph consistent with the responsible Commonwealth minister's power under paragraph 18B(3)(a) of the NI Act to direct that a power under an applied law may be vested in an authority. Equivalent amendments will be made to the corresponding provisions in the CI Act and the CKI Act.

Item 66 - Subsections 18B(4) to (6)

133. This item repeals subsections 18B(4) to (6) and inserts new subsections 18B(4), (5), (5A), (5B) and (6) into the NI Act.

134. New subsection 18B(4) of the NI Act provides that a direction or delegation made by the responsible Commonwealth minister under subsection 18B(3) of the NI Act is subject to such conditions as may be specified by the minister in the direction or delegation, or in the case of a deemed direction under new subsection (5A) or (5B), in writing by the minister. The new subsection is intended to avoid any doubt that any direction or delegation of powers vested in the responsible Commonwealth minister under applied state laws can be made subject to any conditions that the minister may see fit. An equivalent provision will be inserted into the CI Act and the CKI Act.

135. New subsection 18B(5) of the NI Act enables a person or authority in whom the minister has vested a power by a direction under paragraph 18B(3)(a) to delegate that power to another person or authority if the minister's direction has authorised that, or in the case of a deemed direction under new subsection (5A) or (5B), if the minister has authorised that in writing. The new subsection is based on existing subsection 18B(4) of the NI Act but omits the references to 'specified person', removes any doubt that this power also extends to an authority if authorised by the minister and expressly includes the deemed directions and delegations arrangements under new subsections 18B(5A) and (5B) of the NI Act. An equivalent provision will be inserted into the CI Act and the CKI Act.

136. New subsection 18B(5A) of the NI Act provides that where a state government and the Australian Government have agreed to enter into an arrangement for the application and administration of one or more applied state laws (under section 18A), the responsible Commonwealth minister is taken to have directed that certain powers are vested in certain state officers, employees or authorities. This provision avoids the need for the responsible Commonwealth minister to specifically vest a potentially diverse range of powers in state officers or authorities. The new subsection is based on existing subsection 18B(5) of the NI Act but clarifies that it also extends to powers vested in the responsible Commonwealth minister under paragraph 18B(1)(a) of the NI Act, that is, powers vested in a minister of a state in force in Norfolk Island under section 18A. This extension will ensure that subsection 18B(5A) will also apply to state officers, employees or authorities who are exercising powers delegated to them by a minister of a state, with respect to the law as it applies in that state, and when subject to an arrangement between the state government and the Australian Government for the application and administration of the applied state law in Norfolk Island. An equivalent provision will be inserted into the CI Act and the CKI Act.

137. New subsection 18B(5B) of the NI Act provides for deemed vesting of certain powers vested in the responsible Commonwealth minister under paragraph 18B(1)(a) or subsection 18B(2) of the NI Act. Where these powers correspond with police or local government council powers under a state law, the minister is taken to have directed that these powers are also vested in the AFP, Norfolk Island Police Force members and AFP members or special members, the NIRC and NIRC officials as the case may be. For instance, item 2 of the table in subsection 18B(5B) provides that a power that corresponds to a power vested by a state law in a police officer (however described) holding, occupying or performing the duties of a particular kind of office or position, is vested in a member of the Norfolk Island Police Force, or AFP member or special member holding, occupying or performing the duties of a corresponding office or position in Norfolk Island. This would mean, for example, that a power exercised by a state commissioner of police in that state under a state law may, with respect to that law as applied in Norfolk Island, be exercised by the Norfolk Island Police Force member or AFP member who is the officer in charge of community policing in Norfolk Island.

138. This provision removes the need for the responsible Commonwealth minister to specifically vest a diverse range of common police and local government powers under applied state laws in local police officers or NIRC and its officials. Provision is also made for other powers to be prescribed by an ordinance for the purposes of this subsection (see item 5 of the table in this subsection). An equivalent provision to new subsection 18B(5B) will also be inserted into the CI Act and the CKI Act.

139. New subsection 18B(6) of the NI Act provides that the responsible Commonwealth minister may direct that the deemed vesting of a specified power under subsection 18B(5A) or (5B) does not apply in relation to that power. This amendment is consequential to the insertion of these new deemed vesting provisions, and also requires the minister to make any such direction in writing. Equivalent amendments will be made to the corresponding provisions in the CI Act and the CKI Act.

Item 67 - Subsections 18B(9) to (12)

140. This item repeals subsections 18B(9) to (12) and inserts new subsections 18B(9) to (13) into the NI Act.

141. New subsection 18B(9) of the NI Act is based on the existing subsection, and substitutes the existing reference to 'New South Wales' with appropriate references to 'applied State law' or 'State'. The effect of the provision, consistent with the existing provision, is to preserve the validity of the exercise of a power under section 18B by a person or authority who may not hold qualifications necessary for the exercise of that power under the state law as in force in the state. For example, a power under an applied state law may be validly exercised by the Commonwealth minister or his or her delegate, even if the minister or delegate would not be ordinarily qualified to exercise that power under the state law as in force in the state. The validity of powers exercised under section 18B may still be challenged on other administrative law grounds, for instance, unreasonableness or a failure to take into account relevant considerations. An equivalent amendment will be made to the corresponding provisions in the CI Act and the CKI Act as well as section 18D of the NI Act with respect to applied territory laws.

142. New subsection 18B(10) of the NI Act is based on the existing subsection, and substitutes the existing references to 'Territory' and 'New South Wales law' with references to 'Norfolk Island' and 'applied law jurisdiction'. New subsection 18B(10) provides that nothing in section 18B affects the operation of section 18A in relation to a subordinate law made under a state law.

143. New subsection 18B(11) of the NI Act clarifies that, subject to any direction or delegation made under this section, any references to a power vested by an applied state law in a person or authority is taken to include any other person or authority in whom powers are vested under section 18B of the NI Act. An equivalent provision will also be inserted into the CI Act and the CKI Act.

144. New subsection 18B(12) of the NI Act clarifies that a reference in this section to a law of a state that is an applied law jurisdiction is taken to be a reference to a law of the applied law jurisdiction (within the extended meaning of subsection 18A(6)). For instance, a reference to a law of state that is an applied law jurisdiction is a reference to that law as in force in that state.

145. New subsection 18B(13) of the NI Act is based on the existing subsection 18B(11) and provides that an instrument under section 18B is not a legislative instrument. This is because it is not legislative in character and therefore not covered by subsection 8(4) of the Legislation Act. This subsection confirms this and is included to assist readers.

Item 68 - Section 18C (heading)

146. This item substitutes a new heading to section 18C of the NI Act: 'Arrangements with the Government of a State'. The substitution of this new heading is consequential to the amendments made to section 18C of the NI Act. Although this provision, which complements new subsection 18B(5A) of the NI Act, is restricted to arrangements between the Commonwealth and a state, it is not intended to prevent the Commonwealth from entering into arrangements with a territory government with respect to the administration of any applied territory laws if it is considered convenient to do so.

Item 69 - Subsection 18C(1)

147. This item amends subsection 18C(1) of the NI Act by substituting the existing reference to 'New South Wales' with a reference to 'a State'. This amendment allows section 18C, as amended, to apply to Commonwealth arrangements with the government of any state, including a state other than NSW.

Item 70 - Subsection 18C(1)

148. This item amends subsection 18C(1) of the NI Act by substituting the existing reference to 'the Territory' with a reference to 'Norfolk Island'. This amendment, consistent with the other amendments made by the Bill substituting some of these references in the NI Act, is intended to clarify the distinction between references to laws in force in Norfolk Island and references to laws in force in another territory.

Item 71 - Subsection 18C(2)

149. This item repeals and substitutes a new subsection 18C(2) of the NI Act, based on the existing subsection. It substitutes the existing references to 'New South Wales' with appropriate references to 'the State'. The effect of the provision as amended is that, without limiting the generality of subsection 18C(1), an arrangement between the Commonwealth and a state government may provide for the exercise or performance of powers, functions or duties in Norfolk Island by state officers, employees or authorities (including officers or employees of a state authority).

Item 72 - At the end of Division 1 of Part IV

150. This item inserts new sections 18D and 18E into the NI Act.

151. New section 18D, which deals with powers under applied territory laws, is based on section 18B of the NI Act, as amended, which deals with powers under applied state laws, but reflects the different constitutional status of the territories when compared with the states.

152. New subsection 18D(1) provides that if, by an applied territory law, a power is vested in a person or an authority (other than a court officer or court), that power is also vested in, and may be exercised by, that person or authority in relation to Norfolk Island. This effectively means that, subject to subsection 18D(4), a territory official or authority has equivalent statutory powers in Norfolk Island under an applied territory law as they have in their own territory.

153. New subsection 18D(2) clarifies that a reference in subsection 18D(1) to a power that is vested in a person or authority by an applied territory law includes a reference to a power that is otherwise exercisable under that law. This includes powers that the person or authority exercises under a delegation made under that law or an authorisation.

154. New subsection 18D(3) of the NI Act is an avoidance of doubt provision. It provides that a power vested in a person or authority under an applied territory law does not include a reference to a power so vested, whether directly or indirectly, because of an ordinance made for the purposes of subsection 18A(2) of the NI Act. Under subsection 18A(2) of the NI Act, an ordinance may provide for the incorporation, amendment or repeal of a law in force in Norfolk Island under section 18A. For instance, if an applied territory law is amended by an ordinance under subsection 18A(2) and the amending ordinance expressly vests a new power in a Commonwealth person or authority, that power is vested directly in the Commonwealth person or authority under the amending ordinance rather than vested in the person or authority under subsection 18D(1) of the NI Act. This avoids the need for the minister to subsequently direct the power to be vested in the relevant Commonwealth person or authority under subsection 18B(4) of NI Act. Equivalent amendments will be made to the CI Act and the CKI Act as well as section 18B of the NI Act with respect to applied state laws.

155. New subsection 18D(4) allows the responsible Commonwealth minister to direct that any power vested in a person or authority under subsection 18D(1) is vested in a person or authority (which may be the minister) in addition to, or instead of, the first-mentioned person or authority. This provision gives the minister the ability to vest powers under applied territory laws in persons other than territory officials or authorities when considered appropriate in the context of Norfolk Island.

156. New subsection 18D(5) allows the Commonwealth minister to make directions issued under new subsection 18D(4) subject to any conditions the minister may see fit.

157. New subsection 18D(6) enables a person or authority in whom a power has been vested by the responsible Commonwealth minister under subsection 18D(4) to delegate that power to another person or authority if the minister has authorised that.

158. New subsection 18D(7) provides that if the responsible Commonwealth minister gives a direction under paragraph 18D(4)(b) in relation to a power (which has the effect of solely vesting the power in another person or authority), the power stops being vested in relation to Norfolk Island under subsection 18D(2) (that is, in the territory official or authority) at the start of the day after the direction is given.

159. New subsection 18D(8) provides that an instrument made under new section 18D may identify a power by reference to a class of powers.

160. New subsection 18D(9), which is based on existing subsection 18B(9), preserves the validity of the exercise of a power under section 18D by a person or authority who may not hold qualifications necessary for the exercise of that power under the law of an applied law territory as in force in that territory. For example, a power under an applied territory law may be validly exercised by the responsible Commonwealth minister or his or her delegate under that law as in force in Norfolk Island, even if the minister or delegate would not be ordinarily qualified to exercise that power under that law as in force in the applied law territory. This provision will not prevent, however, the validity of powers exercised under section 18D being subject to judicial review on other grounds. An equivalent amendment will be made to the corresponding provisions in the CI Act and the CKI Act as well as section 18B of the NI Act with respect to applied state laws.

161. New subsection 18D(10) clarifies that nothing in section 18D affects the operation of section 18A in relation to a subordinate law made under a law of the applied law jurisdiction.

162. New subsection 18D(11) clarifies that, subject to any direction or delegation made under this section, any references to a power vested in a person or authority under the law of an applied law territory is taken to include any other person or authority in whom powers are vested under section 18D of the NI Act. Equivalent provisions will also be inserted into the CI Act and the CKI Act as well as section 18B of the NI Act with respect to applied state laws.

163. New subsection 18D(12) of the NI Act clarifies that a reference in this section to a law of a territory that is an applied law jurisdiction is taken to be a reference to a law of the applied law jurisdiction (within the extended meaning of subsection 18A(6)). For instance, a reference to a law of territory that is an applied law jurisdiction is a reference to that law as in force in that territory.

164. New subsection 18D(13) provides that an instrument under section 18D is not a legislative instrument. This is because it is not legislative in character and therefore not covered by subsection 8(4) of the Legislation Act. Subsection 18D(13) confirms this and is included to assist readers.

165. New section 18E of the NI Act deals with the effect of amendments to applied laws on existing directions or delegations made under sections 18B or 18D. This new section is based on subsections 34AB(2) and (3) of the Acts Interpretation Act which deals generally with delegations made under Commonwealth Acts. An equivalent provision to new section 18E will also be inserted into the CI Act and the CKI Act.

166. New subsection 18E(1) deals with the application of the section to directions and delegations made under sections 18B or 18D of the NI Act.

167. New subsection 18E(2) makes it clear that a direction or delegation that is expressed to include all the powers, functions or duties of a person or authority under an applied law extends to include any additional power, function or duty of that person or authority that comes into existence after the direction or delegation is made. This provides greater certainty for the exercise of functions, duties and powers under these applied laws and means that the direction or delegation does not need to be updated when the applied law is changed.

168. New subsection 18E(3) similarly provides that if an amendment to an applied law alters the scope of a function, duty or power of a person or authority, the direction or delegation is taken to include the altered function, duty or power.

169. New subsection 18E(4) provides that an applied law is 'amended' if the law is amended by an ordinance or the corresponding law of the applied law jurisdiction is amended (see also the new definition of 'amended' inserted into subsection 4(1) by item 53).

170. This provision does not prevent the review of a direction or delegation when new powers, functions or duties are inserted into an applied law and amendment of the direction or delegation if it is considered appropriate that a new or altered function, duty or power should not be subject to the direction or delegation.

Item 73 - After section 66

171. This item inserts new section 66A into the NI Act to deal with the incorporation of matters by reference in an ordinance, or a law made under an ordinance. Under section 19A of the NI Act, the Governor-General may make ordinances for the peace, order and good government of the Territory of Norfolk Island.

172. New subsection 66A(1) of the NI Act makes it clear that, despite subsection 14(2) of the Legislation Act, an ordinance, or a law made under an ordinance, may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a provision of a law of an applied law jurisdiction, whether or not the law is an applied law, as in force at a particular time or as in force from time to time. Subsection 14(2) of the Legislation Act provides that, unless subject to a contrary intention, a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

173. Under subsection 18A(1) of the NI Act, any laws of an applied law jurisdiction, as in force in that state or territory from time to time, are in force in Norfolk Island. Under subsection 18A(2) of the NI Act, any applied state or territory laws may be incorporated, amended or repealed by an ordinance or a law made under an ordinance. Accordingly, new section 66A of the NI Act will avoid any doubt that an ordinance, or a law made under an ordinance, may make provision in relation to a matter by applying, adopting or incorporating a provision, with or without modification, of a state or territory law as in force from time to time. In the absence of new section 66A, amendments to any applied laws would need to be more frequent (in order to keep pace with amendments made to these laws in the relevant state or territory) or potentially more complex, for instance without the ability to incorporate state or territory laws as in force from time to time.

174. New subsection 66A(2) of the NI Act provides that subsection 66A(1) only applies to a law of an applied law jurisdiction that is not an Act, if it is subject to disallowance in that jurisdiction. This is consistent with the operation of s 14(3) of the Legislation Act which restricts the incorporation of matters by reference to Commonwealth legislative instruments which are disallowable. Disallowable instruments are subject to parliamentary scrutiny and are publicly and freely available.

175. An equivalent provision to new section 66A will also be inserted into the CI Act and the CKI Act.

Item 74 - Part IX

176. This item repeals Part IX of the NI Act, which contains a number of transitional provisions that commenced in 1979. These provisions are now spent in their operation.

Division 2 - Application, saving and transitional provisions

Item 75 - Amendments relating to Christmas Island

Application of amendments

177. Subitem 75(1) is an application provision that provides that sections 8G and 8GA of the CI Act, as amended by the Bill ('the new law'), apply in relation to:

•

Western Australian laws, whether in force before or after the commencement time (the time Part 1 of Schedule 1 to the Bill commences)

•

applied Western Australian laws, whether in force before or after the commencement time

•

powers vested in a person or authority, whether vested before or after the commencement time

•

directions and delegations, whether made before or after the commencement time.

Saving of certain delegations

178. Subitem 75(2) is a saving provision that provides that, subject to subitem 75(3), a delegation made under subsection 8G(4) of the CI Act, as in force before its amendment by the Bill ('the old law'), that was in force immediately before the commencement time, continues in force, on and after that time, as if it had been made under subsection 8G(5) of the new law. This subitem is intended to preserve the operation of any delegation made under subsection 8G(4) of the CI Act that is still in force at the time this subsection is repealed.

Certain directions and delegations cease to have effect

179. Subitem 75(3) is an application provision that provides that a direction or delegation made under subsection 8G(3) or (4) of the old law that was in force immediately before the commencement time ceases to have effect if, at the commencement time, the minister is taken, under subsection 8G(5B) of the new law, to have directed that a power is also vested in a person or authority; and the direction or delegation is in respect of that power. With respect to vested powers not directly covered by these deemed vesting provisions, a direction or delegation that was in force immediately before the commencement time otherwise continues in force.

Arrangements with Western Australia

180. Subitem 75(4) is an application provision which provides that a reference in section 8G or 8H of the new law to an arrangement with Western Australia is taken, after the commencement time, to include a reference to an arrangement with Western Australia entered into under section 8H of the old law that was in force immediately before that time. This subitem is intended to preserve the operation of any arrangements entered into by the Commonwealth and Western Australia under section 8H of the CI Act where those arrangements are still in force at the time the CI Act is amended.

Definitions

181. Subitem 75(5) provides that for the purposes of item 75, 'commencement time' means the time that Part 1 of Schedule 1 to the Bill commences, 'new law' means the CI Act, as amended by Division 1 of Part 1 of Schedule 1 to the Bill, and 'old law' means the CI Ac t, as in force immediately before the commencement time.

Item 76 - Amendments relating to Cocos (Keeling) Islands

Application of amendments

182. Subitem 76(1) is an application provision that provides that sections 8G and 8GA of the CKI Act, as amended by the Bill ('the new law'), apply in relation to:

•

Western Australian laws, whether in force before or after the commencement time (the time Part 1 of Schedule 1 to the Bill commences)

•

applied Western Australian laws, whether in force before or after the commencement time

•

powers vested in a person or authority, whether vested before or after the commencement time

•

directions and delegations, whether made before or after the commencement time.

Saving of certain delegations

183. Subitem 76(2) is a saving provision that provides that, subject to subitem 76(3), a delegation made under subsection 8G(4) of the CKI Act, as in force before its amendment by the Bill ('the old law'), that was in force immediately before the commencement time continues in force, on and after that time, as if it had been made under subsection 8G(5) of the new law. This subitem is intended to preserve the operation of any delegation made under subsection 8G(4) of the CKI Act that is still in force at the time this subsection is repealed.

Certain directions and delegations cease to have effect

184. Subitem 76(3) is an application provision that provides that a direction or delegation made under subsection 8G(3) or (4) of the old law that was in force immediately before the commencement time ceases to have effect if, at the at the commencement time, the minister is taken, under subsection 8G(5B) of the new law, to have directed that a power is also vested in a person or authority; and the direction or delegation is in respect of that power. With respect to vested powers not directly covered by these deemed vesting provisions, a direction or delegation that was in force immediately before the commencement time otherwise continues in force.

Arrangements with Western Australia

185. Subitem 76(4) is an application provision which provides that a reference in section 8G or 8H of the new law to an arrangement with Western Australia is taken, after the commencement time, to include a reference to an arrangement with Western Australia entered into under section 8H of the old law that was in force immediately before that time. This subitem is intended to preserve the operation of any arrangements entered into by the Commonwealth and Western Australia under section 8H of the CKI Act where those arrangements are still in force at the time the CKI Act is amended.

Definitions

186. Subitem 76(5) provides that for the purposes of item 76, 'commencement time' means the time that Part 1 of Schedule 1 to the Bill commences, 'new law' means the CKI Act, as amended by Division 1 of Part 1 of Schedule 1 to the Bill, and 'old law' means the CKI Ac t, as in force immediately before the commencement time.

Item 77 - Amendments relating to Norfolk Island

Application of amendments

187. Subitem 77(1) is an application provision that provides sections 18A to 18E of the NI Act, as amended by the Bill ('the new law'), apply in relation to:

•

laws of an applied law jurisdiction, whether in force before or after the commencement time (the time Part 1 of Schedule 1 to the Bill commences)

•

applied laws, whether in force before or after the commencement time

•

powers vested in a person or authority, whether vested before or after the commencement time

•

directions and delegations, whether made before or after the commencement time.

Saving of Ordinances that incorporate, amend, repeal or suspend applied New South Wales laws

188. Subitem 77(2) is a saving provision that provides that a section 19A ordinance made for the purposes of subsection 18A(2) or (3) of the NI Act, as in force before its amendment by the Bill ('the old law'), that was in force immediately before the commencement time continues in force, on and after that time, as if it had been made for the purposes of subsection 18A(2) or (3) (as applicable) of the new law. This subitem is intended to preserve the operation of any section 19A ordinance which incorporates, amends, repeals or suspends any applied NSW laws and is still in force at the time the NI Act is amended.

Saving of certain delegations

189. Subitem 77(3) is a saving provision that provides that, subject to subitem 77(4), a delegation made under subsection 18B(4) of the old law that was in force immediately before the commencement time continues in force, on and after that time, as if it had been made under subsection 18B(5) of the new law. This subitem is intended to preserve the operation of any delegation made under subsection 18B(4) of the NI Act that is still in force at the time this subsection is repealed.

Certain directions and delegations cease to have effect

190. Subitem 77(4) is an application provision that provides that a direction or delegation made under subsection 18B(3) or (4) of the old law that was in force immediately before the commencement time ceases to have effect if, at the commencement time, the minister is taken, under subsection 18B(5B) of the new law, to have directed that a power is also vested in a person or authority; and the direction or delegation is in respect of that power. With respect to vested powers not directly covered by these deemed vesting provisions, a direction or delegation that was in force immediately before the commencement time otherwise continues in force.

Arrangements with New South Wales

191. Subitem 77(5) is an application provision which provides that a reference in section 18B or 18C of the new law to an arrangement with a state is taken, at and after the commencement time, to include a reference to an arrangement with NSW entered into under section 18C of the old law that was in force immediately before that time. This subitem is intended to preserve the operation of any arrangements entered into by the Commonwealth and NSW under section 18C of the NI Act where those arrangements are still in force at the time the NI Act is amended.

Definitions

192. Subitem 77(6) provides that for the purposes of item 77, 'commencement time' means the time that Part 1 of Schedule 1 to the Bill commences, 'new law' means the NI Act, as amended by Division 1 of Part 1 of Schedule 1 to the Bill, and 'old law' means the NI Ac t, as in force immediately before the commencement time.

Part 2 - Jurisdiction of Norfolk Island courts

193. This part deals with amendments to the NI Act which will allow the courts of a prescribed state or territory to have jurisdiction (including appellate jurisdiction) in relation to Norfolk Island as if it were part of that state or territory. This will allow for the courts of the relevant state or territory providing services to Norfolk Island to hear matters relevant to the services being provided by the state or territory government officials under the applied laws of that same jurisdiction. This would be similar to the arrangements which apply in Christmas Island and the Cocos (Keeling) Islands where the courts of Western Australia have jurisdiction with respect to these external territories as if these territories were part of Western Australia. It is likely to be a number of years before these provisions are utilised. Part 3 then subsequently deals with the potential abolition of the Norfolk Island courts and the transfer of the jurisdiction of these courts to the courts of the prescribed state or territory.

Division 1 - Main amendments

Norfolk Island Act 1979

Item 78 - Subsection 4(1)

194. This item amends subsection 4(1) of the NI Act by inserting a new definition of 'prescribed State or Territory', which means a state or territory prescribed for the purposes of new subsection 60AA(1).

Item 79 - Before section 52

195. This item inserts a new Division heading into Part VII of the NI Act, before section 52: 'Division 1-The Supreme Court of Norfolk Island'. This amendment is consequential to the insertion of new Division 3 into Part VII of the NI Act by item 81.

Item 80 - Before section 60

196. This item inserts a new Division heading into Part VII of the NI Act, before section 60: 'Division 2-Establishment of courts and tribunals'. This amendment is consequential to the insertion of new Division 3 into Part VII of the NI Act by item 81.

Item 81 - At the end of Part VII

197. This item inserts a new Division at the end of Part VII of the NI Act: 'Division 3-Conferral of jurisdiction on prescribed State or Territory courts', which consists of new section 60AA of the NI Act.

198. New subsection 60AA(1) of the NI Act provides that a state or territory (other than Norfolk Island) may be prescribed by the regulations (the 'prescribed State or Territory') for the purposes of this subsection.

199. New subsection 60AA(2) of the NI Act provides that the courts of the prescribed state or territory have jurisdiction (including appellate jurisdiction) to hear and determine matters arising under laws in force in Norfolk Island as if Norfolk Island were part of the prescribed state or territory. The note to this subsection identifies that the transfer of jurisdiction from the Norfolk Island courts to the courts of the prescribed state or territory will be dealt with in Division 3 of Part 2 of Schedule 1 to this Bill, once enacted.

200. New subsection 60AA(3) of the NI Act provides that a court of the prescribed state or territory may, in exercising jurisdiction under this section, sit in Norfolk Island or the prescribed state or territory.

201. New subsection 60AA(4) of the NI Act provides that section 68 of the Judiciary Act 1903 applies, with appropriate modifications, to a court exercising jurisdiction in a criminal proceeding under this section. The effect of this subsection is to apply the criminal procedure laws, including the relevant arrest, custody and bail laws, of the prescribed state or territory to a court of the prescribed state or territory exercising jurisdiction under this section. With respect to their jurisdiction in relation to Norfolk Island, the criminal practice and procedure of the courts of the prescribed state or territory will largely be the same as they exercise with respect to their home jurisdiction.

202. New subsection 60AA(5) of the NI Act provides that the laws of the prescribed state or territory, including the laws relating to procedure, evidence and the competency of witnesses, are binding on all courts exercising jurisdiction under this section in that state or territory, or in Norfolk Island, in all cases to which they are applicable. This provision is based on subsection 79(1) of the Judiciary Act 1903 and its effect is that, with respect to their jurisdiction in relation to Norfolk Island, the practice and procedure of the courts of the prescribed state or territory would be the same as they exercise with respect to their home jurisdiction.

203. New subsection 60AA(6) provides that this section is subject to the Constitution and any law in force in Norfolk Island. The note to this subsection identifies that the effect of this paragraph 60AA(6)(b) is that new subsections 60 (3), (4) and (5) are subject to the provisions of Part VIIA of this Act (as amended by this Bill).

204. New subsection 60AA(7) of the NI Act avoids any doubt, that a suspension of a law under subsection 18A(4) of the NI Act does not, by virtue of that suspension alone, affect the application of that law under subsections (4) and (5) of this section. For instance, the suspension in Norfolk Island of an applied state law dealing with criminal procedure in the prescribed state or territory would not prevent the application of this law to the court of a prescribed state or territory exercising criminal jurisdiction under this section.

Division 2 - Consequential amendments

Coral Sea Islands Act 1969

Item 82 - Subsection 2(1)

205. This item inserts a new definition of 'prescribed State or Territory' into subsection 2(1) of the Coral Sea Islands Act 1969 and is a consequential amendment to the amendments of section 8 of the Coral Sea Islands Act 1969 by items 83, 84 and 85. The new definition of 'prescribed State or Territory' has the same meaning given by the NI Act.

Item 83 - Before subsection 8(1)

206. This item inserts new subsections 8(1A) and (1B) into the Coral Sea Islands Act 1969. The courts of Norfolk Island presently have jurisdiction in and in relation to the Coral Sea Islands and these new subsections will have the effect that any courts of a prescribed state or territory will also have jurisdiction with respect to the Coral Sea Islands and, in exercising this jurisdiction, may sit in the Coral Sea Islands, in Norfolk Island or in the prescribed state or territory.

Item 84 - Subsection 8(1)

207. This item amends subsection 8(1) of the Coral Sea Islands Act 1969 by inserting a reference to Part VII of the NI Act. The effect of this amendment is to clarify that the jurisdiction of the courts of Norfolk Island with respect to the Coral Sea Islands is subject to the general operation of Part VII of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

Item 85 - Subsection 8(3)

208. This item makes a consequential amendment to subsection 8(3) of the Coral Sea Islands Act 1969. The effect of this amendment is to confirm the existing arrangements under which section 8 of that Act does not confer any jurisdiction on any courts with respect to matters arising under the Offshore Petroleum and Greenhouse Gas Storage Act 2006.

Criminal Code Act 1995

Item 86 - Dictionary in the Criminal Code (paragraphs (h) and (i) of the definition of Commonwealth judicial officer )

209. This item makes a consequential amendment to the dictionary in the Criminal Code by amending the definition of 'Commonwealth judicial officer' to remove references to 'the Territory of Norfolk Island' in paragraphs (h) and (i) of this definition. The effect of this amendment will be to provide state or territory judicial officers who exercise jurisdiction or powers under laws in force in Norfolk Island with the equivalent status to state or territory judicial officers who exercise jurisdiction or powers under laws in force in the other external territories and the Jervis Bay Territory.

Designs Act 2003

Item 87 - At the end of section 84

210. This item adds a new subsection 84(3) into the Designs Act 2003. Section 84 deals with the jurisdiction under that Act of other prescribed courts, which include the Supreme Court of Norfolk Island, and this consequential amendment will clarify that the jurisdiction of the Supreme Court of Norfolk Island under this section is subject to section 60AA of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

Environment Protection (Sea Dumping) Act 1981

Item 88 - After subsection 33(4)

211. This item adds a new subsection 33(4A) into the Environment Protection (Sea Dumping) Act 1981. Section 33 deals with the jurisdiction under that Act of a prescribed state or territory court to grant an injunction, and this consequential amendment will clarify that any jurisdiction of the Supreme Court of Norfolk Island under this section is subject to section 60AA of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

Fisheries Management Act 1991

Item 89 - After subsection 54(5)

212. This item inserts a new subsection 54(5A) into the Fisheries Management Act 1991. Section 54 deals with the jurisdiction under that Act of a prescribed court to order a rectification of the register, and this consequential amendment will clarify that any jurisdiction of the Supreme Court of Norfolk Island under this section is subject to section 60AA of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

Olympic Insignia Protection Act 1987

Item 90 - At the end of section 68

213. This item adds a new subsection 68(3) into the Olympic Insignia Protection Act 1987. Section 68 deals with the jurisdiction under that Act of a prescribed court, and this consequential amendment will clarify that any jurisdiction of the Supreme Court of Norfolk Island under this section is subject to section 60AA of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

Patents Act 1990

Item 91 - At the end of section 155

214. This item adds a new subsection 155(3) into the Patents Act 1990. Section 155 deals with the jurisdiction under that Act of a prescribed court, and this consequential amendment will clarify that any jurisdiction of the Supreme Court of Norfolk Island under this section is subject to section 60AA of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

Trade Marks Act 1995

Item 92 - At the end of section 192

215. This item adds a new subsection 192(4) into the Trade Marks Act 1995. Section 192 deals with the jurisdiction under that Act of a prescribed court, and this consequential amendment will clarify that any jurisdiction of the Supreme Court of Norfolk Island under this section is subject to section 60AA of the NI Act, including the conferral of jurisdiction upon the courts of a prescribed state or territory.

Division 3 - Application, saving and transitional provisions

Item 93 - Definitions

216. This item contains a number of definitions for the purposes of this division, which contains the application, saving and transitional provisions dealing with the transfer of proceedings between the Norfolk Island courts and the courts of a prescribed state or territory.

217. This item provides that, for the purposes of this division:

•

'Coroner' has the same meaning as in the Coroners Act 1993 (NI)

•

'Court of Petty Sessions' means the court established by section 5 of the Court of Petty Sessions Act 1960 (NI)

•

'judicial transition time' is defined in item 96

•

'new law' means the NI Act, as amended by Division 1 of Part 2 of this Bill

•

'new procedural provisions' means section 60C and sections 60F to 60L of the NI Act, as amended by Division 1 of Part 3 of Schedule 1 to this Bill

•

'transition period' is defined in item 95.

Item 94 - Application of procedural etc. laws of prescribed State or Territory

218. This item is an application provision which provides that subsections 60AA(3) to (7) of the new law, which deal with court procedure and related matters, will also apply to a court exercising jurisdiction under this division with respect to the transfer of a new or pending proceeding from a Norfolk Island court to the court of a prescribed state or territory.

Item 95 - Application of certain procedural laws in transition period

219. Subitem 95(1) is an application provision which provides that the new procedural provisions apply during the transition period, as if they were in force during that period, in relation to a court exercising jurisdiction under section 60AA of the new law or this division.

220. Subitem 95(2) provides that the 'transition period' means the period starting on the day a state or territory is prescribed by the regulations for the purposes of subsection 60AA(1) of the new law; and ending immediately before the commencement of Part 3 of Schedule 1 to this Bill.

221. The effect of this item is that section 60C and sections 60F to 60L of the NI Act, as amended by Division 1 of Part 3 of Schedule 1, which deals with a range of criminal procedural matters, will apply to the courts of a prescribed state or territory exercising jurisdiction under the new section 60AA of the NI Act or the provisions dealing with the transfer of proceedings under this division, before the actual commencement of Part 3 of Schedule 1.

Item 96 - Transfer of Supreme Court jurisdiction - new proceedings

222. This item is a transitional provision which, subject to the Constitution, will transfer, at the 'judicial transition time', most of the jurisdiction of the Supreme Court of Norfolk Island to the Supreme Court of the prescribed state or territory or any other court of a prescribed state or territory prescribed for the purposes of subitem 96(4) (see subitem 3). The effect of this item is that, at the judicial transition time, being the time prescribed by the regulations for the purposes of this item (subitem 96(2)), the Supreme Court of Norfolk Island will not have any jurisdiction with respect to new matters and will only retain jurisdiction in relation to matters pending or completed before the judicial transition time (subitem 96(1)).

Item 97 - Transfer of Supreme Court jurisdiction - pending proceedings

223. This item is a transitional provision which will enable the Supreme Court of Norfolk Island, after the judicial transition time, to transfer proceedings where it has retained jurisdiction, for instance in pending matters, to the Supreme Court of the prescribed state or territory or any other court of a prescribed state or territory prescribed for the purposes of subitem 96(4), as appropriate. Such matters must be transferred where requested by the parties to the proceedings (subitem 97(1)) and where the Supreme Court of Norfolk Island decides the transfer of the proceedings is not contrary to the interests of justice (subitems 97(2) and (4)).

Item 98 - Action to be taken before abolition of Supreme Court

224. This item is a transitional provision which will provide for the transfer to the Supreme Court of the prescribed state or territory, or any other court of a prescribed state or territory prescribed for the purposes of subitem 96(4), as appropriate, of all the remaining proceedings of the Supreme Court of Norfolk Island (not already transferred under item 97) as soon as practicable once there is no longer a serving judge of the court. The machinery provisions of this item are similar to those of item 97, dealing with the transfer of court documents and any money lodged with the court.

Item 99 - Transfer of Court of Petty Sessions jurisdiction - new proceedings

225. This item is a transitional provision which, subject to the Constitution, will transfer, at the 'judicial transition time', most of the jurisdiction of the Court of Petty Sessions of Norfolk Island to the Supreme Court of the prescribed state or territory or any other court of a prescribed state or territory prescribed for the purposes of subitem 99(3). The effect of this item is that, at the judicial transition time, being the time prescribed by the regulations for the purposes of this item (subitem 96(2)), the Court of Petty Sessions will not have any jurisdiction with respect to new matters and will only retain jurisdiction in relation to matters pending or completed before the judicial transition time (subitem 99(1)).

Item 100 - Transfer of Court of Petty Sessions jurisdiction - pending proceedings

226. This item is a transitional provision which will enable the Court of Petty Sessions of Norfolk Island, after the judicial transition time, to transfer proceedings where it has retained jurisdiction, for instance pending matters, to the Supreme Court of the prescribed state or territory or any other court of a prescribed state or territory prescribed for the purposes of subitem 99(3), as appropriate. Such matters must be transferred where requested by the parties to the proceedings (subitem 100(1)) and where the Court of Petty Sessions decides the transfer of the proceedings is not contrary to the interests of justice (subitems 100(2) and (4)).

Item 101 - Action to be taken before abolition of Court of Petty Sessions

227. This item is a transitional provision which will provide for the transfer to the Supreme Court of the prescribed state or territory, or any other court of a prescribed state or territory prescribed for the purposes of subitem 99(3), as appropriate, of all the remaining proceedings in the Court of Petty Sessions of Norfolk Island (not already transferred under item 100) as soon as practicable once there is no longer a serving magistrate of the court. The machinery provisions of this item are similar to those of item 100, dealing with the transfer of court documents and any money lodged with the court.

Item 102 - Court of Petty Sessions of Norfolk Island

228. This item is a transitional provision which provides that an ordinance made under section 19A of the NI Act must not repeal the Court of Petty Sessions Act 1960 (NI) while any person holds office as a magistrate of the Court of Petty Sessions of Norfolk Island.

Item 103 - Norfolk Island Coroner's Court

229. This item is a transitional provision which provides that the Coroner of Norfolk Island must not begin an inquest or inquiry under the Coroners Act 1993 (NI) after the judicial transition time (subitems 103(1) and (2)). An ordinance made under section 19A of the NI Act must also not repeal the Coroners Act 1993 (NI) while any person holds office as Coroner or Deputy Coroner of Norfolk Island (subitem 103(3)).

Item 104 - Power to make Ordinances

230. This item is an avoidance of doubt provision which provides that, subject to items 102 and 103, this division, does not, by implication, limit the matters that can otherwise be dealt with by an ordinance made under section 19A of the NI Act.

Part 3 - Supreme Court of Norfolk Island

231. This part deals with the potential abolition of the Norfolk Island courts and the transfer of the jurisdiction of these courts to the courts of a prescribed state or territory. This part will commence on a date to be fixed by proclamation, but only when there are no longer any serving judges of the Supreme Court of Norfolk Island and the courts of a prescribed state or territory have jurisdiction with respect to Norfolk Island (that is, a state or territory has been prescribed by regulations made for the purposes of new subsection 60AA(1) of the NI Act; see item 81). It is likely to be a number of years before these provisions are utilised.

Division 1 - Amendments

Norfolk Island Act 1979

Item 105 - Subsection 4(1)

232. This item repeals the definitions of 'Chief Justice', 'civil matter' and 'host jurisdiction' in subsection 4(1) of the NI Act. These definitions relate to the Supreme Court of Norfolk Island and their repeal is consequential to the repeal of the provisions in the NI Act providing for the establishment and operation of this court.

Item 106 - Subsection 4(1)

233. This item inserts a new definition of 'issuing officer' into subsection 4(1) of the NI Act. A person is an 'issuing officer' for the purposes of issuing a warrant or a summons on the order, under the NI Act, of a court of a prescribed state or territory if the person is an officer of the court duly authorised by the court to issue the warrant or summons, or a magistrate of the prescribed state or territory. This amendment is consequential to the amendments made to the NI Act by this division.

Item 107 - Subsection 4(1)

234. This item repeals the definitions of 'judge' and 'Supreme Court' in subsection 4(1) of the NI Act. These definitions relate to the Supreme Court of Norfolk Island and their repeal is consequential to the repeal of the provisions in the NI Act providing for the establishment and operation of this court.

Item 108 - Divisions 1 and 2 of Part VII

235. This item repeals Divisions 1 and 2 of Part VII of the NI Act (as amended by Part 2 of Schedule 1 to this Bill), the provisions in this Act providing for the establishment and operation of the Supreme Court of Norfolk Island and the establishment of other courts and tribunals for Norfolk Island under enactment (sections 52 to 60 of the NI Act). The repeal of these provisions will effectively abolish the Supreme Court of Norfolk Island. Other Norfolk Island courts and tribunals, which are established under laws continued by section 16 or 16A of the NI Act, may be abolished by a section 19A ordinance (see also items 102, 103, 104 and 132).

Item 109 - Division 3 of Part VII (heading)

236. This item repeals the heading to Division 3 of Part VII of the NI Act and is a consequential amendment to the repeal of Divisions 1 and 2 of Part VII by item 108 above.

Item 110 - Subdivision B of Division 1 of Part VIIA (heading)

237. This item repeals the heading and substitutes a new heading to Subdivision B of Division 1 of Part VIIA of the NI Act, 'Subdivision B-Hearing criminal matters in prescribed State or Territory', and is a consequential amendment to the amendments made to this subdivision by items 111 to 127 of Schedule 1 to this Bill.

Item 111 - Section 60B

238. This item repeals section 60B of the NI Act. This provision deals with arrangements for the purposes of the Supreme Court of Norfolk Island sitting in its criminal jurisdiction in a state or territory (other than Norfolk Island) and its repeal is consequential to the abolition of the Supreme Court by the repeal of the provisions in this Act providing for its establishment and operation (see item 108).

Item 112 - Section 60C

239. This item repeals existing section 60C of the NI Act and substitutes a new section 60C and deals with criminal trials in a court of a prescribed state or territory. This new section is based on the existing section 60C of the NI Act, which deals with the Supreme Court of Norfolk Island sitting outside Norfolk Island in its criminal jurisdiction.

240. New subsection 60C(1) provides that, subject to this section, a court of a prescribed state or territory may, in exercising its criminal jurisdiction under the NI Act, sit in the prescribed state or territory if to do so would not be contrary to the interests of justice.

241. New subsection 60C(2) provides that the court of a prescribed state or territory may, in accordance with new subsection 60C(3), order that any criminal trial be held or continued in the prescribed state or territory. If the trial has already begun in Norfolk Island, the order may provide for the jury (if any) to be discharged.

242. New subsection 60C(3) clarifies that the court of a prescribed state or territory may make an order under subsection 60C(2) at any time after the prosecution of the accused for the offence commences and before the verdict is delivered; at a sitting in Norfolk Island or in the prescribed state or territory; and, if the court is sitting in the prescribed state or territory, whether or not the accused is present. Section 67 of the NI Act, as amended, will specifically authorise the making of regulations that prescribe circumstances in which the prosecution is taken to have commenced.

243. New subsection 60C(4) provides that the court of the prescribed state or territory may only make an order under subsection 60C(2) if the court is satisfied that the interests of justice require it and, if the order is made in the prescribed state or territory in the absence of the accused person, only if the accused person is represented, and the court is satisfied that the accused person understands the effect of the order.

244. New subsection 60C(5) provides that, where the court of a prescribed state or territory makes an order under subsection 60C(2), it may also order that the accused person be removed to the place specified in the order, and that all persons required to give evidence be summonsed to attend at that venue. Section 60F of the NI Act, as amended, makes further provision for the removal of the accused person.

Item 113 - Sections 60D and 60E

245. This item repeals sections 60D and 60E of the NI Act. These sections regulate the use of juries in criminal trials heard before the Supreme Court of Norfolk Island when sitting outside Norfolk Island in its criminal jurisdiction and their repeal is consequential to the repeal of the provisions in the NI Act providing for the establishment and operation of this court. New subsection 60AA(4) of the NI Act, which applies section 68 of the Judiciary Act 1903, with appropriate modifications, will instead apply the criminal procedure laws, including the relevant arrest, custody and bail laws, of the prescribed state or territory to a court of the prescribed state or territory exercising criminal jurisdiction under the NI Act.

Item 114 - Section 60F (heading)

246. This item repeals the section heading and substitutes a new heading to section 60F of the NI Act, 'Removal of accused to stand trial in prescribed State or Territory', and is a consequential amendment to the amendments made to this section by items 115 and 116.

Item 115 - Subsections 60F(1) to (3)

247. This item repeals and substitutes new subsections 60F(1) to (3) of the NI Act. These new subsections are based on the existing section 60F of the NI Act and will deal with the removal of an accused to stand trial in a prescribed state or territory when the court of a prescribed state or territory is exercising criminal jurisdiction under the NI Act.

Items 116 - Subsections 60F(4) and (5)

248. This item amends subsections 60F(4) and (5) of the NI Act by substituting references to 'host jurisdiction' with references to 'prescribed State or Territory'. These amendments are consequential to the amendments made to section 60F of the NI Act by item 115. Section 60F of the NI Act, as amended, will deal with the removal of an accused to stand trial in a prescribed state or territory when the court of a prescribed state or territory is exercising criminal jurisdiction under the NI Act.

Item 117 - Subsection 60G(1)

249. This item repeals and substitutes new subsection 60G(1) of the NI Act. This new subsection is based on the existing subsection 60G(1) of the NI Act and will deal with the conveyance of an accused to court for the purposes of trial in a prescribed state or territory when the court of a prescribed state or territory is exercising criminal jurisdiction under the NI Act.

Item 118 - Subsection 60G(2)

250. This item amends subsection 60G(2) by substituting a reference to 'a judge of the Supreme Court' with a reference to 'a court'. This amendment is consequential to the amendment made to section 60G of the NI Act by item 117.

Item 119 - Subsection 60G(2)

251. This item amends subsection 60G(2) by substituting a reference to 'the Court' with a reference to 'the court'. This amendment is consequential to the amendment made to section 60G of the NI Act by item 117.

Item 120 - Section 60H

252. This item repeals and substitutes new section 60H of the NI Act, 'Return of accused to Norfolk Island for particular purposes'. This new section is based on existing subsection 60C(8) and section 60H of the NI Act and will deal with the return of an accused and, if before a jury, any empanelled jury, to Norfolk Island for particular purposes, when an accused is otherwise standing trial in a prescribed state or territory. The purposes for a return to Norfolk Island include the viewing of a place, taking evidence from a person, or a purpose prescribed in the regulations. The court of a prescribed state or territory may only make such an order if it is satisfied that the interests of justice require it.

Items 121 and 122 - Paragraphs 60J(1)(a) and 60J(2)(b)

253. These items respectively amend paragraphs 60J(1)(a) and 60J(2)(b) of the NI Act by substituting references to 'the Territory', 'the Supreme Court', 'host jurisdiction' or 'jurisdiction' with references to 'Norfolk Island', 'the prescribed State or Territory' or 'State or Territory', as appropriate. Section 60J of the NI Act, as amended, will provide that a person convicted of an indictable offence under a law of Norfolk Island by the court of a prescribed state or territory sitting in the prescribed state or territory is taken to be a prisoner within the meaning of the Removal of Prisoners (Territories) Act 1923 and to have been removed to that state or territory under that Act.

Items 123 and 124 - Subsection 60K(1) and paragraph 60K(2)(b)

254. These items respectively amend subsection 60K(1) and paragraph 60K(2)(b) of the NI Act by substituting references to 'host jurisdiction' or 'jurisdiction' with references to 'the prescribed State or Territory' or 'State or Territory', as appropriate. Section 60K of the NI Act, as amended, will provide that in certain circumstances during the course of criminal proceedings in a prescribed state or territory where a person is found or certified to have been, or be, 'insane' that they are taken to be a 'criminal lunatic' within the meaning of the Removal of Prisoners (Territories) Act 1923 and to have been removed to that state or territory under that Act. Consistent with the existing section 60K, the amended section uses the terminology used in that Act, even though these terms may not be used under the laws of Norfolk Island, including applied state or territory laws. Sections 9 and 10A of that Act provide for the detention of such a person and their eventual release.

Item 125 - Section 60L (heading)

255. This item repeals and substitutes a new heading to section 60L of the NI Act, 'Repatriation of person tried in prescribed State or Territory', and is a consequential amendment to the amendments made to this Subdivision by items 126 and 127.

Items 126 - Paragraphs 60L(a) and (b)

256. This item repeals and substitutes new paragraphs 60L(a) and (b) of the NI Act by substituting references to 'host jurisdiction' and 'Supreme Court' with references to 'prescribed State or Territory' and 'a court of the prescribed State or Territory', as appropriate. Section 60L of the NI Act, as amended, will provide for the return of a person who has been removed from Norfolk Island to a prescribed state or territory, if the person has been acquitted or is not liable to imprisonment at the conclusion of the trial. The Commonwealth is required, on application by the person to the Secretary of the Department, to provide the person with means to enable their return to Norfolk Island.

Item 127 - Section 60L

257. This item amends section 60L of the NI Act by substituting a reference to 'the Territory' with 'Norfolk Island'. This amendment is consequential to the amendments made to section 60L and paragraphs 60L(a) and (b) of the NI Act by items 125 and 126.

Item 128 - Division 2 of Part VIIA

258. This item repeals Division 2 of Part VIIA of the NI Act. These provisions deal with the Supreme Court of Norfolk Island sitting in its civil jurisdiction in a state or territory (other than Norfolk Island) and its repeal is consequential to the abolition of the Supreme Court by the repeal of the provisions in this Act providing for its establishment and operation (see item 108).

Item 129 - Subsection 66(1)

259. This item amends subsection 66(1) of the NI Act by substituting a reference to 'a court of the Territory exercising criminal jurisdiction' with a reference to 'a court of a prescribed State or Territory exercising criminal jurisdiction in relation to Norfolk Island'. The effect of the amendment is that section 66, which deals with the granting of pardons, remissions or commutations of sentences by the Governor-General, will apply to criminal convictions in a court of a prescribed state or territory exercising criminal jurisdiction in relation to Norfolk Island.

Item 130 - Paragraph 67(a)

260. This item amends paragraph 67(a) by substituting a reference to 'subsection 60C(2)' with a reference to 'paragraph 60C(3)(a)'. This amendment is consequential to the repeal and substitution of section 60C of the NI Act by item 112. The effect of the amendment is that section 67, which deals with the making of regulations, will specifically authorise the making of regulations that prescribe circumstances in which the prosecution is taken to have commenced for the purposes of paragraph 60C(3)(a) of the NI Act.

Division 2 - Application, saving and transitional provisions

Item 131 - Definitions

261. This item contains a number of definitions of terms used in this division, which contains the application, saving and transitional provisions dealing with the amendments to the NI Act made by Part 3 of Schedule 1 to this Bill.

262. This item provides that, in this division, 'commencement time' means the time that Part 3 of Schedule 1 to the Bill commences; that 'new law' means the NI Act, as amended by Division 1 of Part 3 of Schedule 1 to the Bill; and that 'old law' means the NI Ac t, as in force immediately before the commencement time.

Item 132 - Saving - power to abolish tribunals

263. This item is an application provision which avoids any doubt that the repeal of Division 2 of Part VII of the NI Act, which deals with the establishment of Norfolk Island tribunals, by Schedule 1 to this Bill does not prevent the abolition of a tribunal by an enactment made under the new law. This item applies to Norfolk Island tribunals established by or under an enactment before the commencement time.

Item 133 - Saving - hearing of criminal matters in host jurisdictions

264. This item is a savings provision which provides that Subdivision B of Division 1 of Part VIIA of the old law, which deals with the Supreme Court of Norfolk Island sitting in its criminal jurisdiction in a state or territory (other than Norfolk Island), will continue to apply, unamended, in relation to any ongoing trials that are being, or have been, held in a host jurisdiction by the Supreme Court at the time the amendments to these provisions commence. This provision is intended to ensure there is consistency in the procedural laws which apply to any ongoing criminal trials which have not been finalised at the commencement time.

Item 134 - Saving - hearing of civil matters in host jurisdictions

265. This item is a savings provision which provides that Division 2 of Part VIIA of the old law, which deals with the Supreme Court of Norfolk Island sitting in its civil jurisdiction in a state or territory (other than Norfolk Island), will continue to apply, unamended, in relation to any ongoing proceedings that are being, or have been, held in a host jurisdiction by the Supreme Court at the time the amendments to these provisions otherwise commence. This provision is intended to ensure there is consistency in the procedural laws which apply to any ongoing civil proceedings which have not been finalised at the commencement time.

Item 135 - Prosecutions for historical offences - continuity of regulations

266. This item is a savings provision which provides that the amendment of section 67 of the NI Act made by this Part does not affect the continuity of regulations that were made for the purposes of that section and were in force immediately before the commencement of this item.

Item 136 - References to the Supreme Court of Norfolk Island

267. This item is an application provision which provides that a reference in any Act, or in an instrument under any Act, to the Supreme Court of Norfolk Island is taken, after the commencement of this item, to be a reference to the Supreme Court of the prescribed state or territory.