Norfolk Island Continued Laws Amendment (2015 Measures No. 1) Ordinance 2015

EXPLANATORY STATEMENT

Ordinance No. 10, 2015

Subject - Norfolk Island Act 1979

 Norfolk Island Continued Laws Amendment (2015 Measures No. 1) Ordinance 2015

The Norfolk Island Act 1979 (the Act) provides for the Government of the Territory of Norfolk Island.  It defines the roles, responsibilities and powers of the Governor‑General, the responsible Commonwealth Minister, the Administrator of Norfolk Island, and the Executive Director of Norfolk Island.  The Act also establishes the Norfolk Island Advisory Council which has the role of advising the Administrator of Norfolk Island on matters affecting the Territory during the interim transition time.

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

The Norfolk Island Continued Laws Amendment (2015 Measures No. 1) Ordinance 2015 (the Ordinance) is made under section 19A of the Norfolk Island Act 1979.

The Ordinance amends the Norfolk Island Continued Laws Ordinance 2015 (the Principal Ordinance) to amend and repeal a number of Norfolk Island enactments.

The Ordinance amends the Interpretation Act 1979 (NI), Criminal Code 2007 (NI), Gaming Supervision Act 1998 (NI), Gaming Act 1998 (NI), Traffic Act 2010 (NI), Marine Safety Act 2013 (NI) and the Traffic (General) Regulations (NI).

The Ordinance repeals the Norfolk Island Government Tourist Bureau Act 1980 (NI), the Norfolk Island Government Tourist Bureau Regulations (NI), and the Criminal Code Regulations 2013 (NI).

The purpose of the Ordinance is to:

• improve the administration of Norfolk Island laws;
• enhance oversight of the Norfolk Island Gaming Authority;
• absorb the Norfolk Island Government Tourist Bureau into the Administration of Norfolk Island before its transition to a Regional Council;
• introduce random breath testing powers for police on Norfolk Island; and
• lower the blood alcohol content limit on Norfolk Island.

A Statement of Compatibility with Human Rights is set out at Attachment A.

The amendments relating to the administration of enactments are machinery in nature.  Consultation was not undertaken on these changes.

The amendments relating to the Norfolk Island Criminal Code are machinery in nature.  Consultation was not undertaken on these changes. However, the former Norfolk Island Government did similarly intend to reset the default application date in the Norfolk Island Criminal Code.

The amendments relating to gaming and the Norfolk Island Government Tourist Bureau are machinery in nature and are made as part of the ongoing work to transition the Administration of Norfolk Island to a Regional Council model.  Consultation on these changes was focussed on the Executive Director of Norfolk Island.  

The amendments relating to random breath testing and blood alcohol content were the subject of consultation by the former Norfolk Island Government.  In response to community concerns raised in these previous consultations, the Ordinance provides a deferred commencement date of 1 December 2016 for the change to the blood alcohol concentration limit on Norfolk Island from 0.08 to 0.05.  This allows the community and liquor licence holders to take steps to prepare for the change.  The Australian Federal Police was consulted on the changes.

The Ordinance is a legislative instrument for the purpose of the Legislative Instruments Act 2003.

Schedules 1, 2, 3 and 4, and Part 1 of Schedule 5 commence on the day after registration.

Part 2 of Schedule 5 containing the blood alcohol content changes commences on 1 December 2016.

Details of the Ordinance are set out at Attachment B.

Authority: Section 19A of the Norfolk Island Act 1979

ATTACHMENT A

Statement of Compatibility with Human Rights

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

Norfolk Island Continued Laws Amendment (2015 Measure No. 1) Ordinance 2015

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

Overview of Legislative Instrument

The Norfolk Island Continued Laws Amendment (2015 Measures No. 1) Ordinance 2015 amends the Norfolk Island Continued Laws Ordinance 2015 to:

• Amend the Interpretation Act 1979 (NI) (Interpretation Act) to clarify that a reference to ‘executive member’ in all Norfolk Island legislation is a reference to the Commonwealth Minister; and amend the Interpretation Act to enable the Commonwealth Minister to delegate his or her powers to an Australian Public Service employee who holds or performs the duties of an Executive Level 2 position, or an equivalent or higher position, in the Department.
• Amend the Criminal Code 2007 (NI) (Criminal Code) to reactivate the delayed application of Chapter 2 of the Criminal Code to certain Norfolk Island offences from the commencement of the amendment to 30 June 2018. 
• Repeal the Criminal Code Regulations 2013 (NI).
• Amend the Gaming Supervision Act 1998 (NI), and consequentially amend the Gaming Act 1998 (NI), to enable the Commonwealth Minister, by legislative instrument, to give a direction of a general or specific nature to the Norfolk Island Gaming Authority about the performance of any of the functions or duties of the Authority or its Director.
• Repeal the Norfolk Island Government Tourist Bureau Act 1980 (NI) and provide transitional arrangements to transfer the assets, liabilities, employees and records of the Norfolk Island Government Tourist Bureau to the Administration of Norfolk Island; and consequentially amend the Public Sector Remuneration Tribunal Act 1992 (NI) and the Immigration Regulations 1984 (NI).  
• Amend the Traffic Act 2010 (NI) to provide random breath testing powers for police on Norfolk Island; consequentially amend the Traffic (General) Regulations (NI); and lower the blood alcohol content limit for persons operating a vehicle from 0.08 to 0.05 grams of alcohol in 100 millilitres of blood.
• Amend the Marine Safety Act 2013 (NI) to lower the blood alcohol content limit for persons operating a vessel from 0.08 to 0.05 grams of alcohol in 100 millilitres of blood.

Human rights implications

This Legislative Instrument engages the following rights:

• Presumption of innocence
• Right to security of the person and freedom from arbitrary detention
• Right to humane treatment in detention

Presumption of innocence

The presumption of innocence is contained in Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR).  The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees no guilt can be presumed until the charge has been proved beyond reasonable doubt.

This right is engaged by the creation of a new offence in subsection 32A(4) of the Traffic Act 2010 (NI) regarding random breath testing of drivers.  Subsection 32A(3) provides that a member of the police force may request or signal the driver of a motor vehicle to stop the vehicle.  Subsection 32A(4) provides that if such a request is made, or signal is given, the person must comply with the request or signal.  A penalty is attached for non-compliance.  The usual safeguards for the presumption of innocence attach to this offence.

Right to security of the person and freedom from arbitrary detention

The right to security of the person and freedom from arbitrary detention is contained in Article 9 of the ICCPR.  Article 9 of the ICCPR requires States to provide reasonable and appropriate measures, within the scope of those available to public authorities to protect a person’s physical security.

The use of reasonable and necessary force in arresting a person, without a warrant, can engage the right to security of the person.  This right is engaged in the arrest power for a member of the police force contained in section 32B of the Traffic Act 2010 (NI) in specific circumstances where a person has failed a breath test.  This is consistent with arrangements on the mainland and reasonable and proportionate in the context of the risk to community safety posed by drink drivers.

Right to humane treatment in detention

The right to humane treatment in detention is contained in Article 10 of the ICCPR.  Article 10 of the ICCPR provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

This right is engaged in the detention power for a member of the police force contained in section 32B of the Traffic Act 2010 (NI) in specific circumstances where a person has failed or refused a breath test.  This is consistent with arrangements on the mainland.

Conclusion

The Legislative Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

ATTACHMENT B

Details of Norfolk Island Continued Laws Amendment (2015 Measures No. 1) Ordinance 2015

Section 1 – Name of Ordinance

Section 1 provides the title of the Ordinance to be the Norfolk Island Continued Laws Amendment (2015 Measures No. 1) Ordinance 2015.

Section 2 - Commencement

Section 2 provides that Schedules 1, 2, 3 and 4, and Part 1 of Schedule 5, of the Ordinance commence on the day after the Ordinance is registered.

Section 2 provides that Part 2 of Schedule 5 commences on 1 December 2016.

Section 3 – Authority

Section 3 provides that the Ordinance is made under section 19A of the Norfolk Island Act 1979.

Section 4 – Schedules

Section 4 provides that each instrument that is specified in a Schedule to the Norfolk Island Continued Laws Amendment (2015 Measures No. 1) Ordinance 2015 is amended or repealed as set out in the applicable terms in the Schedule concerned, and any other item in a Schedule to that Ordinance has effect according to its terms.

Schedule 1 – Amendments relating to the administration of enactments

Norfolk Island Continued Laws Ordinance 2015

Interpretation Act 1979 (Norfolk Island)

Item [1] – Item 190 of Schedule 1

Item 1 amends item 190 of Schedule 1 by replacing the heading in clause 5 of Schedule 1 of the Interpretation Act 1979 (NI) with the heading ‘Roles belonging to a Minister, an executive member or the Administrator before the interim transition time’.

Item [2] – Item 190 of Schedule 1

Item 2 amends item 190 of Schedule 1 by inserting a reference to executive member in paragraph 5(1)(a) of Schedule 1 of the Interpretation Act 1979 (NI).  This clarifies that a reference to executive member in all Norfolk Island legislation (except as listed in subclause 5((3)) is a reference to the responsible Commonwealth Minister.  An executive member was a reference to a Minister of the former Norfolk Island Legislative Assembly but following the changes to the governance implemented by the Norfolk Island Legislation Amendment Act 2015, this reference is redundant.  The amendment assists the reader by eliminating the need to rely on section 5 of the Interpretation (Amendment) Act 2012 (NI), and, unlike the Interpretation (Amendment) Act 2012 (NI), expressly covers references to executive member in laws made under an enactment.

Item [3] - Item 190 of Schedule 1

Item 3 amends item 190 of Schedule 1 by repealing the note in subclause 5(1) of the Interpretation Act 1979 (NI).  This is a consequential amendment to the amendment in item 2, above.

Item [4] - Item 190 of Schedule 1

Item 4 amends item 190 of Schedule 1.

This amendment inserts new paragraph 10(1)(f) into clause 10 of Schedule 1 of the Interpretation Act 1979 (NI).  Paragraph 10(1)(f) provides an additional category of persons to whom the Commonwealth Minister may delegate his or her powers, functions and duties under subclause 10(1).  This new category includes an Australian Public Service (APS) employee who holds or performs the duties of an Executive Level 2 position, or an equivalent or higher position, in the Department.

 ‘APS Employee’ is defined in section 2B of the Acts Interpretation Act 1901 (Cth), and ‘Department’ is dealt with in section 19A of the Acts Interpretation Act 1901 (Cth).  These sections of the Acts Interpretation Act 1901 (Cth) apply to Norfolk Island laws by virtue of section 8A of the Interpretation Act 1979 (NI), which was inserted by item 150 of Schedule 1 to the Norfolk Island Continued Laws Ordinance 2015.

The purpose of this amendment is to provide operational flexibility when the Administrator and Executive Director of Norfolk Island are absent and unable to exercise their powers.

Items [5] - Item 190 of Schedule 1

Item 5 amends item 190 of Schedule 1.

This is a consequential amendment to the change in item 4.  It replaces the reference to paragraph 10(1)(e) with a reference to paragraphs 10(1)(e) or 10(1)(f) in subclause 10(2) of Schedule 1 in the Interpretation Act 1979 (NI)

Schedule 2 – Amendments relating to the Criminal Code

Norfolk Island Continued Laws Ordinance 2015

Criminal Code 2007 (Norfolk Island)

Item [1] – After item 53 of Schedule 1

Item 1 reactivates the delayed application of Chapter 2 of the Criminal Code 2007 (NI) to certain Norfolk Island offences from the commencement of the amendment to 30 June 2018.  Chapter 2 of the Criminal Code 2007 (NI) relates to principles of general criminal responsibility.  The amendment provides legal certainty for the interpretation of certain offences until they are amended as a result of a proposed harmonisation review.

The amendments to the Criminal Code 2007 (NI) effectively reset the ‘default application date’ to 30 June 2018, but only from the date of commencement of the amendment.  This minor amendment to Norfolk Island criminal law does not have retrospective effect.  This means that Chapter 2 of the Criminal Code 2007 (NI) applied to certain offences for the period 1 July 2015 to the date of commencement of the amendment.

Item 1 inserts item 53A into Schedule 1.

Item 53A repeals subsections 5(2) and (3) of the Criminal Code 2007 (NI) and substitutes a new subsection 5(2) which provides that from the commencement of subsection 5(2) until 30 June 2018, subsection 5(1) (which states that the only offences against laws of Norfolk Island are the offences created under this Act or any other Act) has no effect.

Item 1 inserts item 53B into Schedule 1.

Item 53A repeals section 8 of the Criminal Code 2007 (NI) and replaces it with a new section 8 on the delayed application of Chapter 2 to certain offences.  Subsection 8(1) provides that, despite section 7 (which states that this chapter applies to all offences against this Act and all other offences against Norfolk Island laws), from the commencement of this section until 30 June 2018, the provisions of Chapter 2 (other than the applied provisions) do not apply to a pre‑2008 offence unless: the offence has been omitted and remade (with or without changes) on or after 1 January 2008; or an enactment, or a law made under an enactment, whether made before or after the commencement of this section, expressly provides for the provisions of this Chapter to apply to the offence.  Subsection 8(2) provides that, in interpreting the applied provisions in relation to an offence, the other provisions of this Act may be considered.  Subsection 8(3) provides for the meaning of ‘omitted and remade’ as an offence has not been omitted and remade if it has been amended without being omitted and remade.  Subsection 8(3) provides that a ‘pre‑2008 offence’ means an offence that was in force before 1 January 2008.

Item 1 inserts item 53C into Schedule 1.

Item 53C replaces section 10 of the Criminal Code 2007 (NI) with a new section 10 on applied provisions.  Section 10 provides that in the Criminal Code 2007 (NI), applied provisions means the following provisions of Chapter 2: subsection 15(5) (Evidence of self‑induced intoxication); Division 2.3.1 (Lack of capacity—children); Division 2.3.2 (Lack of capacity—mental impairment); Division 2.3.3 (Intoxication); Part 2.4 (Extensions of criminal responsibility); Part 2.5 (Corporate criminal responsibility); Part 2.6 (Proof of criminal responsibility); and Part 2.7 (Geographical application).

Item 1 inserts item 53D into Schedule 1.

Item 53D repeals the signpost to the definition of ‘applied provisions’ in subsection 105(6) of the Criminal Code 2007 (NI).

Item [2] – Item 2 of Schedule 2

Item 2 inserts the Criminal Code Regulations 2013 (NI) into item 2 of Schedule 2 - Repeals.  This has the effect of repealing the Criminal Code Regulations 2013 (NI) which are now redundant because the ‘default application date’ defined in the Criminal Code 2007 (NI) has lapsed. See item 1.   

Schedule 3 – Amendments relating to gaming

Norfolk Island Continued Laws Ordinance 2015

Gaming Act 1998 (Norfolk Island)

Item [1] – Item 100 of Schedule 1

Item 1 replaces item 100 of Schedule 1 with a new item 100.

Item 100 repeals section 18 of the Gaming Act 1998 (NI).  See the explanation for item 2, below.

Gaming Supervision Act 1998 (Norfolk Island)

Item [2] – After item 101 of Schedule 1

Item 2 inserts item 101A into Schedule 1. 

Item 101A inserts section 25 into the Gaming Supervision Act 1998 (NI).  Subsection 25(1) of the Gaming Supervision Act 1998 (NI) provides that the Commonwealth Minister may, by legislative instrument, give written directions of a general or specific nature to the Norfolk Island Gaming Authority (the Authority) about the performance of any of the functions or duties of the Authority or its Director.  Subsection 25(2) provides that, without limiting subsection 25(1), a direction under subsection 25(1) may require the Authority to arrange for an external audit of the operations of the Authority or Director.  This is intended to include a financial and/or performance audit.  Subsection 25(3) provides that the Authority must comply with a direction under subsection 25(1).

This item replaces the general direction power that was in section 18 of the Gaming Act 1998 (NI) with a general and specific direction power.

Schedule 4 – Amendments relating to the Norfolk Island Government Tourist Bureau

Norfolk Island Continued Laws Ordinance 2015

Immigration Regulations 1984 (Norfolk Island)

Item [1] – After item 148 of Schedule 1

Item 1 inserts Item 148A into Schedule 1.

Item 148A amends Form 8A in Schedule 1 of the Immigration Regulations 1984 (NI) by replacing the reference to Norfolk Island Government Tourist Bureau with a reference to the Administration of Norfolk Island.

This change to Form 8A is consequential to the other amendments relating to the Norfolk Island Government Tourist Bureau.

Public Sector Remuneration Tribunal Act 1992 (Norfolk Island)

Item [2] – After item 290 of Schedule 1

Item 2 inserts item 290A into Schedule 1.

Item 290A amends the Schedule to the Public Sector Remuneration Tribunal Act 1992 (NI) which refers to the Norfolk Island Government Tourist Bureau, by repealing paragraph (b) of the definition of ‘public sector employee’ and paragraph (a) of the definition of ‘Territory authority’ in item 2 of the Schedule.

The changes to the definitions are consequential to the other amendments relating to the Norfolk Island Government Tourist Bureau.

Norfolk Island Government Tourist Bureau Act 1980 (Norfolk Island)

Item [3] – Item 1 of Schedule 2

Item 3 inserts the name of the Norfolk Island Government Tourist Bureau Act 1980 into item 1 of Schedule 2 – Repeals.  This has the effect of repealing the Norfolk Island Government Tourist Bureau Act 1980 (NI).

Norfolk Island Government Tourist Bureau Regulations

Item [4] – Item 2 of Schedule 2

Item 4 inserts the name of the Norfolk Island Government Tourist Bureau Regulations into item 2 of Schedule 2.  This has the effect of repealing the Norfolk Island Government Tourist Bureau Regulations.

Item [5] – At the end of Schedule 2

Item 5 inserts Part 3 into Schedule 2.

Part 3 provides for the transitional provisions relating to the repeal of the Norfolk Island Government Tourist Bureau Act 1980 (NI).  Part 3 consists of Division 1, 2, 3, 4 and 5.

Division 1, at item 3, provides for the definitions of Advisory Board, asset, assets official, Bureau, land, land registration official, liability and repeal time. 

‘Advisory Board’ has the same meaning as in the Norfolk Island Government Tourist Bureau Act 1980 (NI) as in force immediately before the repeal time.

‘Asset’ means any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and any right, power, privilege or immunity, whether actual, contingent or prospective.

‘Assets official’ in relation to an asset other than land, means the person or authority who under a law of the Commonwealth, a State or a Territory; or under a trust instrument; or otherwise has responsibility for keeping a register in relation to assets of the kind concerned.

‘Bureau’ has the same meaning as in the Norfolk Island Government Tourist Bureau Act 1980 (NI) as in force immediately before the repeal time.

‘Land’ means any legal or equitable estate or interest in real property, whether actual, contingent or prospective.

‘Land registration official’, in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated.

‘Liability’ means any liability, duty or obligation, whether actual, contingent or prospective.

‘Repeal time’ means the commencement of Schedule 4 to the Norfolk Island Continued Laws Amendment (2015 Measures No. 1) Ordinance 2015.

Division 2 provides for the transfer of assets and liabilities of the Norfolk Island Government Tourist Bureau.

Item 4 of Division 2 provides for the vesting of assets of the Bureau.  Subitem 4(1) provides that item 4 applies to an asset of the Bureau immediately before the repeal time.  Subitem 4(2) provides that, on the commencement of the repeal time, an asset of the Bureau ceases to be an asset of the Bureau, without any conveyance, transfer or assignment, and becomes an asset of the Administration of Norfolk Island, with the Administration of Norfolk Island becoming the successor in law in relation to the asset.

Item 5 of Division 2 provides for the vesting of liabilities of the Bureau. Subitem 5(1) provides that the item applies to a liability of the Bureau immediately before the repeal time.  Subitem 5(2) provides that, on commencement of the repeal time, a liability of the Bureau ceases to be a liability of the Bureau and becomes a liability of the Administration of Norfolk Island without any conveyance, transfer or assignment, with the Administration of Norfolk Island becoming the successor in law in relation to the liability.

Item 6 of Division 2 provides that transfers of land to the Administration may be registered.  Subitem 6(1) provides that item 6 applies if any land vests in the Administration of Norfolk Island under item 4 and there is a certificate, lodged with a land registration official and signed by the responsible Commonwealth Minister identifying the land (by a reference to a map or otherwise) and stating that the land has become vested in the Administration of Norfolk Island under Part 3.  Subitem 6(2) provides that the land registration official may register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and deal with, and give effect to, the certificate of land title. 

Item 7 of Division 2 provides for certificates relating to the vesting of assets (other than land) in the Administration of Norfolk Island.  Subitem 7(1) provides that item 7 applies if any asset, other than land, vests in the Administration under item 4 and there is lodged with an assets official a certificate that is signed by the responsible Commonwealth Minister identifying the asset and stating that the asset has become vested in the Administration under Part 3.  Subitem 7(2) provides that the assets official may deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and make such entries in the register as are necessary having regard to the effect of Part 3.

Division 3 provides for the transfer of other matters relating to the Bureau. 

Item 8 of Division 3 provides that anything done by, or in relation, to the Bureau before the repeal time has effect, at and after that time, as if it had been done by, or in relation to, the Administration of Norfolk Island.

Item 9 of Division 3 provides that if the Bureau was a party to any proceedings in a court or tribunal immediately before the repeal time, then the Administration of Norfolk Island is substituted for the Bureau as the party to those proceedings at and after the repeal time.

Item 10 of Division 3 provides that any records or documents that were in the possession of the Bureau or the Advisory Board immediately before the repeal time are to be transferred to the Administration of Norfolk Island after the repeal time.

Item 11 of Division 3 provides for the meaning of references to the Bureau in certain instruments. Item 11 of Division 3 provides that where an instrument (that was in force immediately before the repeal time) makes a reference to the Bureau, and the instrument is one or more of the type(s) specified in paragraph 11(1)(c), the reference(s) to the Bureau is taken after the repeal time to be a reference to the Administration of Norfolk Island.  Subitem 11(2) provides for definitions relevant to item 11, including for ‘exempt instrument’ and ‘instrument’.  Exempt instrument means an Act, an instrument made under the Norfolk Island Act 1979, or an enactment (within the meaning of the Norfolk Island Act 1979).  Instrument does not include an exempt instrument, but includes a contract, deed, undertaking or agreement; a notice, authority, order or instruction; and an instrument made under an Act or under regulations.

Division 4 provides for employees of the Bureau.

Item 12 provides for the transfer of employees.  Subitem 12(1) provides, for the purposes of item 12, a person is a transferring employee if the person was employed by the Bureau immediately before the repeal time.  Subitem 12(2) provides that, at the repeal time, the transferring employee ceases to be an employee of the Bureau, and becomes an employee of the Administration of Norfolk Island.  Subitem 12(3)  provides that a transferring employee who becomes an employee of the Administration under subitem 12(2) is taken to have been engaged by the Administration on the same terms and conditions as those that applied to the transferring employee, immediately before the repeal time, as an employee of the Bureau.  Subitem 12(4) provides that it does not prevent the terms and conditions of a transferring employee’s employment after the repeal time from being varied in accordance with those terms and conditions, or by or under a law, award, determination or agreement.  Subitem 12(5) provides that a transferring employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Bureau as a result of item 12.  Subitem 12(6) provides that for item 12, a reference to ‘vary’ in relation to terms and conditions includes omitting, adding to, or substituting new terms or conditions for any of those terms and conditions.

Item 13 provides for the accrued entitlements of employees of the Bureau.  Subitem 13(1) provides that item 13 applies to a person if the person was employed by the Bureau immediately before the repeal time and, at the repeal time, the person becomes an employee of the Administration of Norfolk Island.  Subitem 13(2) provides that the person is taken to have accrued an entitlement to benefits, in connection with the person’s employment with the Administration, as the case may be, that is equivalent to the entitlement that the person had as an employee of the Bureau immediately before the repeal time.  Subitem 13(3) provides that the service of the person as an employee of the Bureau is taken, for all purposes, to have been unbroken as his or her service as an employee of the Administration.

Division 5 provides for other matters. 

Item 14 of Division 5 provides a constitutional safety net.  Subitem 14(1) provides that if the operation of a provision of Part 3 would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.  Subitem 14(2) provides that if the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

Item 15 provides a presumption that a document that appears to be a certificate made or issued under particular provision of Part 3 is taken to be such a certificate, and is taken to have been properly given, unless the contrary is established.

Schedule 5 – Amendments relating to random breath testing and blood alcohol content

Part 1 – Amendments commencing day after registration

Norfolk Island Continued Laws Ordinance 2015

Traffic Act 2010 (Norfolk Island)

Item [1] – After item 341 of Schedule 1

Item 1 inserts a heading for the Traffic Act 2010 (Norfolk Island) in addition to items 341A, 341B, 341C, 341D containing amendments to that Act.

Item 341A amends subsection 3(1) of the Traffic Act 2010 (NI) to insert a definition for ‘breath test’.  The definition provides that breath test means a test, for the purpose of indicating the concentration of alcohol present in a person’s breath or blood, carried out on that person’s breath by means of the Alcolizer LE, lion alcometer SD-400, or Alcolizer 5 Series.

Item 341B inserts subsection 3(8) into the Traffic Act 2010 (NI) which provides that, for the purposes of the Traffic Act 2010 (NI), an amount of alcohol in grams present in breath when measured by reference to 210 litres of breath is equivalent to the same amount of alcohol in grams in blood when measured by reference to 100 millilitres of blood.

Item 341C repeals subsection 32(7A) of the Traffic Act 2010 (NI) which is redundant.  Item 341B now provides for the interpretation of equivalent quantities.

Item 341D inserts sections 32A and 32B into the Traffic Act 2010 (NI).

Section 32A provides for the power to conduct breath testing.  Subsection 32A(1) provides that a member of the police force may require a person to submit to a breath test in accordance with the member’s directions if the member has reasonable cause to believe that the person is or was driving a motor vehicle on a road; or the person is or was occupying the driving seat of a motor vehicle on a road and attempting to put the vehicle in motion; or the person (being the holder of a drivers licence or a recognised licence) is or was occupying the seat in a motor vehicle next to a driver who holds a learner’s licence while the driver is or was driving the vehicle on a road.

Subsection 32A(2) provides that before requiring a person to submit to a breath test under subsection 32A(1), and for the purpose of determining whether to conduct such a test, a member of the police force may conduct a preliminary assessment to determine if alcohol is present in the person’s breath by requiring the person to talk into a device that indicates the presence of alcohol.

Subsection 32A(3) provides that, without limiting any other power or authority, a member of the police force may, for the purposes of this section, request or signal the driver of a motor vehicle to stop the vehicle.

Subsection 32A(4) provides that, if a request is made, or a signal is given, to a person under subsection 32A(3), the person must comply with the request or signal.  Subsection 32A(4) creates an offence and provide a penalty of 10 penalty units for a failure to comply subsection 32A(4).

Section 32B provides for the power of arrest following a failed or refused breath test.  Subsection 32B(1) provides that a member of the police force may exercise the powers mentioned in subsection 32B(2) in respect of a person if both of the following apply: it appears to the member that the device used by the member to conduct a breath test under subsection 32A(1) indicates that there may be present in the person’s breath or blood a concentration of alcohol of more than zero grams in 210 litres of breath or 100 millilitres of blood; the member has reasonable cause to believe that the person is a novice driver or is driving a commercial vehicle; or it appears to the member that the device used by the member to conduct a breath test under subsection 32A(1) indicates that there may be present in the person’s breath or blood a concentration of alcohol of more than 0.08 grams in 210 litres of breath or 100 millilitres of blood; or the person refuses to submit to a breath test required by a member of the police force under subsection 32A(1) or fails to submit to the breath test in accordance with the directions of the member of the police force.

Subsection 32B(2) provides that the powers that the member of the police force may exercise in respect of the person are as follows: the power to arrest the person, without warrant; the power to take the person (or cause the person to be taken), using such force as is necessary and reasonable in the circumstances, to a police station or such other place as the member considers desirable; the power to detain the person (or cause the person to be detained) at a police station or other place for the purposes of submitting to a breath analysis under subsection 32(7).

Traffic (General) Regulations (Norfolk Island)

Item 1 inserts a heading into the Principal Ordinance for the Traffic (General) Regulations (Norfolk Island) and amends the Regulations as set out in items 341E, 341F and 341G.

Item 341E replaces subregulation 9N(1) of the Traffic (General) Regulations (NI) with new subregulation 9N(1).  Subregulation 9N(1) provides that the following devices are prescribed for the purpose of carrying out a breath analysis under section 32 of the Traffic Act 2010 (NI): the Dräger Alcotest 7110 MKV, also known as the Draeger Alcotest 7110 MKV; and the Dräger Alcotest 9510 AUS, also known as the Draeger Alcotest 9510 AUS.  In practice, a breath analysis is carried out using one device or the other.

Item 341F amends subregulation 9N(2) to replace the reference to ‘The device’ with ‘A device’.  This amendment is consequential to the amendment in item 341E.

Item 341G amends subregulation 9N(3) to replace the reference to ‘The device’ with ‘A device’.  This amendment is consequential to the amendment in item 341E.

Part 2 – Amendments commencing 1 December 2016

Norfolk Island Continued Laws Ordinance 2015

Marine Safety Act 2013 (Norfolk Island)

Item [2] – Before item 203

Item 2 inserts item 202A into Schedule 1.

Item 202A amends paragraphs 20(a) and (b) of the Marine Safety Act 2013 (NI) by replacing references to 0.08 with 0.05 for the prescribed concentration of alcohol ranges.  This provides for the reduced blood alcohol content limit for persons operating a vessel on Norfolk Island.

Traffic Act 2010 (Norfolk Island)

Item [3] – After item 341A of Schedule 1

Item 3 inserts item 341AA into Schedule 1.

Item 341AA amends the definition of prescribed concentration of alcohol in subsection 3(1) of the Traffic Act 2010 (NI) by replacing references to 0.08 with 0.05.  This provides for the reduced blood alcohol content limit for persons operating a motor vehicle on Norfolk Island.

Item [4] – After item 341B of Schedule 1

Item 4 inserts item 341BA into Schedule 1.

Item 341BA amends paragraph 32(6)(b) of the Traffic Act 2010 (NI) by replacing the reference to 0.08 with 0.05.  This is a consequential change reflecting the reduced blood alcohol content limit for persons operating a motor vehicle on Norfolk Island.

Item [5] – Item 341D of Schedule 1

Item 5 amends item 341D of Schedule 1.

Item 341D amends paragraph 32B(1)(b) of the Traffic Act 2010 (NI) to replace the reference to 0.08 with 0.05.  This is a consequential change to the random breath testing power that was inserted by item 1 in Part 1 of Schedule 5 of the Ordinance.  This updates the reference to the blood alcohol concentration limit for persons operating a motor vehicle.