EXPLANATORY STATEMENT
Ordinance No. , 2017
Issued by the authority of the Minister for Local Government and Territories
Norfolk Island Act 1979
Norfolk Island Continued Laws Amendment (Director of Public Prosecutions) Ordinance 2017
Authority
The Norfolk Island Act 1979 (the Act) provides for the Government of the Territory of Norfolk Island.
Section 19A of the Act provides that the Governor-General may make Ordinances for the peace, order and good government of the Territory of Norfolk Island.
The Norfolk Island Continued Laws Amendment (Director of Public Prosecutions) Ordinance 2017 (the Ordinance) is made under section 19A of the Act. The Ordinance amends the Norfolk Island Continued Laws Ordinance 2015 (the Principal Ordinance) to amend a number of Norfolk Island enactments. Norfolk Island enactments, made by the former Legislative Assembly, have been continued in force under section 16A of the Act and, under section 17, may be amended or repealed by a section 19A ordinance.
Purpose and operation
The Australian Government has committed to providing to Norfolk Island a level of services comparable to those enjoyed by Australians in other similar-sized communities. The Ordinance contributes to delivering this commitment by allowing the Commonwealth Director of Public Prosecutions (CDPP) to perform certain functions in relation to particular Norfolk Island laws. This allows prosecutions against particular Norfolk Island laws to be dealt with by a professional and independent prosecution service with significant technical expertise, akin to normal prosecution practices on mainland Australia and the other external Territories.
Consultation
The Department of Infrastructure and Regional Development consulted with the Attorney-General’s Department (AGD), the CDPP, and the Department of the Prime Minister and Cabinet, who support making the proposed Ordinance.
The CDPP advised that the proposed Ordinance would provide the Commonwealth Director of Public Prosecutions with sufficient and appropriate powers to effectively conduct prosecutions, and related functions.
Details of the Ordinance are set out in the Attachment.
The Ordinance is a legislative instrument for the purposes of the Legislation Act 2003.
The Ordinance commences on the day after it is registered on the Federal Register of Legislation or on commencement of the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017, whichever is the later.
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 (Director of Public Prosecutions) Ordinance 2017
This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Australian Government has committed to providing to Norfolk Island a level of services comparable to those enjoyed by Australians in other similar-sized communities. The Ordinance contributes to delivering this commitment by allowing the Commonwealth Director of Public Prosecutions (CDPP) to perform certain functions in relation to particular Norfolk Island laws. This allows prosecutions against particular Norfolk Island laws to be dealt with by a professional and independent prosecution service with significant technical expertise, akin to normal prosecution practices on mainland Australia and the other external Territories.
Human rights implications
This Disallowable Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
Minister for Local Government and Territories,
Senator the Hon Fiona Nash
ATTACHMENT
Norfolk Island Continued Laws Amendment (Director of Public Prosecutions) Ordinance 2017
Section 1 – Name
This section provides that the title of the Ordinance is the Norfolk Island Continued Laws Amendment (Director of Public Prosecutions) Ordinance 2017.
Section 2 – Commencement
This section provides that the Ordinance commences on the day after it is registered on the Federal Register of Legislation or on commencement of the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017, whichever is the later.
Section 3 – Authority
The Norfolk Island Act 1979 (the Act) provides for the Government of the Territory of Norfolk Island.
Section 19A of the Act provides that the Governor-General may make Ordinances for the peace, order and good government of the Territory of Norfolk Island.
Norfolk Island Continued Laws Amendment (Director of Public Prosecutions) Ordinance 2017 (the Ordinance) will be made under section 19A of the Act. The Ordinance amends the Norfolk Island Continued Laws Ordinance 2015 (the Principal Ordinance) to amend a number of Norfolk Island enactments. Norfolk Island enactments, made by the former Legislative Assembly, have been continued in force under section 16A of the Act and, under section 17, may be amended or repealed by a section 19A ordinance.
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to the Ordinance is amended or repealed as set out in the applicable terms in the Schedule concerned, and any other item in a Schedule to that Ordinance has effect according to its terms.
Schedule 1 – Amendments
Part 1—Amendment of the Bail Act 2005 (Norfolk Island)
Norfolk Island Continued Laws Ordinance 2015
Item 1 – Before item 22B of Schedule 1
Item 1 inserts new items 22AA and 22AB into Part 1 of Schedule 1 to the Norfolk Island Continued Laws Ordinance 2015 (the Principal Ordinance) with the effect of amending the Bail Act 2005 (NI) in the following ways. Item 22AA amends subsection 3(1) (definition of Crown Law Officer) with the effect of repealing the definition of the Crown Law Officer. This is because the meaning of ‘Crown Law Officer’ will be contained in the Interpretation Act 1979 (NI). Item 22AB amends subsection 3(1) of substituting the role of the Crown Law Officer, or a person authorised by a Crown Law Officer in writing, with a member of the police force, as the police are best placed to provide the information concerning a bail undertaking to an individual.
Item 2 – After item 22B of Schedule 1
Item 2 inserts new items 22BA and 22BB into Part 1 of Schedule 1 to the Principal Ordinance with the effect of amending the Bail Act 2005 (NI) in the following ways. Item 22BA amends paragraph 48(3)(a) substituting the role of the Crown Law Officer, or a person authorised by a Crown Law Officer in writing, with a member of the police force and item 22BB repeals paragraph 48(4)(c) which contains a redundant reference to the Crown Law Officer.
Part 2—Amendment of the Court Procedures Act 2007 (Norfolk Island)
Norfolk Island Continued Laws Ordinance 2015
Item 3 – After item 48 of Schedule 1
Item 3 inserts new item 48AA into Part 1 of Schedule 1 to the Principal Ordinance. The effect of this amendment is be to amend subparagraph 15(2)(d)(i) of the Court Proceedings Act 2007 (NI) with the effect of removing a provision that a fee is not payable for the laying of information in the Court of Petty Sessions by the Crown Counsel acting under a Norfolk Island law.
Item 4 – After item 48 of Schedule 1
Item 4 inserts new item 48D into Part 1 of Schedule 1 to the Principal Ordinance. The effect of this amendment is to repeal sections 33 and 34 of the Court Procedures Act 2007 (NI). This will have the effect of removing provisions relating to service of documents that will be redundant with the CDPP assuming the responsibilities previously conferred on the Crown Counsel under Norfolk Island laws. Service of documents on the Norfolk Island Regional Council is dealt with under the Local Government Act 1993 (NSW) (NI). Service against the Commonwealth Minister can be dealt with in accordance with established practice, for example under the Parliamentary Entitlements Regulations 1997.
Part 3—Amendment of the Criminal Code 2007 (Norfolk Island)
Norfolk Island Continued Laws Ordinance 2015
Item 5 – After item 53C of Schedule 1
Item 5 inserts new item 53CA into Part 1 of Schedule 1 to the Principal Ordinance with the effect of amending subsection 48(10) of the Criminal Code 2007 (NI) with the effect of removing the requirement for the Minister to consent to a prosecution for conspiracy. The CDPP will instead exercise the discretion and it is not necessary for the Minister responsible for Territories to also be able to consent to prosecutions for conspiracy.
Item 6 – After item 53D of Schedule 1
Item 6 inserts new item 53DA into Part 1 of Schedule 1 to the Principal Ordinance with the effect of inserting subsection 114(10) into the Criminal Code 2007 (NI). This will allow an adult to be arrested for, charged with, or remanded in custody or granted bail for, an offence of maintaining a sexual relationship with a young person, before the consent of the CDPP is given. This change aligns this offence with the other offences in the Code which will require consent of the CDPP.
Item 7 – After item 53F of Schedule 1
Item 7 inserts new item 53G into Part 1 of Schedule 1 to the Principal Ordinance with the effect of amending subsection 211(11) of the Criminal Code 2007 (NI) to remove the requirement for the Minister to give consent before a proceeding for an offence of conspiracy to defraud to be begun. The CDPP will instead exercise the discretion and it is not necessary for the Minister responsible for Territories to also be able to consent to prosecutions for this offence.
Item 8 – After item 54 of Schedule 1
Item 8 inserts new item 54A into Part 1 of Schedule 1 to the Principal Ordinance with the effect of amending subsection 349(1) of the Criminal Code 2007 (NI) to remove the requirement for the Minister to give consent before a proceeding for the offences of : aggravated perjury; perjury; corruption in relation to legal proceedings; deceiving witness, interpreter or juror; threatening etc witness, interpreter or juror; compounding of offence; or, accessory after the fact, can be commenced. The CDPP will instead exercise the discretion and it is not necessary for the Minister responsible for Territories to also be able to consent to prosecutions for these offences.
Item 9 – After item 56 of Schedule 1
Item 9 inserts new item 56A into Part 1 of Schedule 1 to the Principal Ordinance with the effect of repealing the definition of Crown law officer contained in section 56A of the Criminal Code 2007 (NI).
Part 4—Amendment of the Criminal Procedure Act Code 2007 (Norfolk Island)
Norfolk Island Continued Laws Ordinance 2015
Item 10 – Item 57A of Schedule 1 (after paragraph (a))
Item 10 amends Item 57A of Part 1 of Schedule 1 to the Principal Ordinance with the effect of adding ‘Crown law officer’ to the list of repealed definitions, so as to remove the definition from the Criminal Procedure Act 2007 (NI). This is because the meaning of ‘Crown Law Officer’ will be contained in the Interpretation Act 1979 (NI)
Item 11 – After item 57A of Schedule 1
Item 11 inserts item 57B and 57C into Part 1 of Schedule 1 to the Principal Ordinance with the following effects. Item 57B amends the heading of section 110 of the Criminal Procedure Act 2007 (NI) to reflect the effect of item 57C, which is to remove the role of the Minister in the discharge of prisoners.
Part 5—Amendment of the Interpretation Act 1979 (Norfolk Island)
Norfolk Island Continued Laws Ordinance 2015
Item 12 – At the end of item 167A of Schedule 1
Item 12 inserts items 12D and 12 E into Part 1 of Schedule 1 to the Principal Ordinance with the effect of amending the Interpretation Act 1979 (NI) with the following effects.
Item 12D will make it clear that references to Crown Law Officer or Crown Counsel in Norfolk Island enactments will be references to the Commonwealth Director of Public Prosecutions.
Item 12E will give the Commonwealth Director of Public Prosecutions the power to delegate powers given to him or her by a Norfolk Island enactment to members of staff of the Office, within the meaning of the Director of Public Prosecutions Act 1983 (Cth), other than the Associate Director, within the meaning of that Act. This provision is based on ss31(1) and (2) of the Director of Public Prosecutions Act 1983 (Cth). The delegation power is necessary as it will often not be practicable for the Director to personally discharge functions under Norfolk Island laws. The provision will allow the Director to delegate functions under Norfolk Island continued laws consistently with how functions conferred on the Director under Commonwealth laws may be delegated.
Part 6—Amendment of the Juries Act 1960 (Norfolk Island)
Norfolk Island Continued Laws Ordinance 2015
Item 13 – Items 190B and 190C of Schedule 1
Item 13 repeals current items 190B and 190C of Part 1 of Schedule 1 to the Principal Ordinance and substitute them with new items 190B and 190C. They also insert new items 190CAA and 190 CAB into that part with the effect of amending the Juries Act 1960 (NI) in the following ways. New item 190B removes the redundant reference to the Crown Counsel from paragraph 10(j) and item 190C replaces the reference to the ‘Norfolk Island public service’ with ‘public service’ in subparagraph 10(r)(ii). Item 190CAA repeals subparagraph 10(r)(v) to remove a redundant reference to the Crown Counsel. Items 190CAB and 190C replace the reference to the ‘Norfolk Island public service’ with ‘public service’ in subparagraphs 10(r)(xx) and (xi).
Part 7—Amendment of the Maritime Safety Act 2013 (Norfolk Island)
Norfolk Island Continued Laws Ordinance 2015
Item 14 – After item 202E of Schedule 1
Item 14 inserts item 202EAA into Part 1 of Schedule 1 to the Principal Ordinance with the effect of repealing subsection 4(1) of the Maritime Safety Act 2013 (NI) to repeal the definition of Crown Counsel. This is because the meaning of ‘Crown Counsel’ will be contained in the Interpretation Act 1979 (NI).
Item 15 – After item 202E of Schedule 1
Item 15 inserts item 202GA into Part 1 of Schedule 1 to the Principal Ordinance with the effect of amending subsection 101(2) of the Maritime Safety Act 2013 (NI) to omit the reference to the Crown Counsel. This leaves the power to permit the recovery of moneys solely with the Minister.
Part 8—Amendment of the Sentencing Act 2007 (Norfolk Island)
Norfolk Island Continued Laws Ordinance 2015
Item 16 – Before item 297A of Schedule 1
Item 16 inserts item 297AA into Part 1 of Schedule 1 to the Principal Ordinance with the effect of repealing subsection 3(1) of the Sentencing Act 2007 (NI) to repeal the definition of Crown Counsel. This is because the meaning of ‘Crown Counsel’ will be contained in the Interpretation Act 1979 (NI).
Part 9—Amendment of the Sentencing Regulations 2011 (Norfolk Island)
Norfolk Island Continued Laws Ordinance 2015
Item 17 – After item 297A of Schedule 1
Item 17 inserts the heading Sentencing Regulations 2011 (Norfolk Island) and item 298 into Part 1 of Schedule 1 to the Principal Ordinance. Item 298 will have the effect of omitting the reference to “Crown Law Officer” and substituting “Director of Public Prosecutions of the Commonwealth (or delegate or person authorised by the Director” in Form 1 of the Sentencing Regulations 2011 (Norfolk Island). This is to allow the Director or his or her delegate to sign the form when required.
Part 10—Amendment of the Supreme Court Act 1960 (Norfolk Island)
Norfolk Island Continued Laws Ordinance 2015
Item 18 – After item 336 of Schedule 1
Item 18 inserts items 336A, 336B, 336C and 336D into Part 1 of Schedule 1 to the Principal Ordinance with the effect of amending s23 of the Supreme Court Act 1960 (NI). The amendments mean subsections 23(2), (4), (5) and (6) will only apply in respect of a person appointed by the Minister to prosecute indictable offences under s23(1) of the Act and not to prosecutions conducted by the CDPP. This is because provision has been made for the matters dealt with by s23(2), (4), (5) and (6) in the Director of Public Prosecutions Regulations 1984. Section 23(3) will be a provision of general application which will continue to apply in respect of all prosecutions for indictable offences triable before the Supreme Court. Item 336D inserts a new subsection 23(7) to define ‘a continued law offence’ in this section to have the same meaning as in Division 12 of Part 2 of Schedule 1 to the Norfolk Island Continued Laws Ordinance 2015 of the Commonwealth. This definition is relevant to the other amendments made to s23 of the Supreme Court Act 1960 (NI).
Part 11—Transitional provisions
Norfolk Island Continued Laws Ordinance 2015
Item 19
This item inserts new Division 11 to the Principal Ordinance. New Division 11 contains transitional provisions relating to the amendments made by Schedule 1 to this Ordinance.
Item 367
New item 368 will contain definitions relevant to the transitional provisions in new Division 11. The definition of ‘continued law offence’ will be the same as that in the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017.
Item 368
This item will substitute references to a Norfolk Island Crown law official with a reference to the CDPP.
Subitem 368(1) sets out the instruments to which the provision will apply, being only those instruments which are in force before the commencement of Schedule 1 to this Ordinance, are prosecution related and are not exempt.
Subitems 368(2)-(3) will allow the CDPP to determine, in writing, that the provision does not apply to a particular instrument. This is to allow flexibility given it is not possible to exhaustively review all instruments to which the section might apply. The CDPP has been chosen as the person best qualified to determine the section does not apply to a particular document in order to preserve the CDPP’s independence and discretion in relation to prosecution matters. If such power were conferred on the Minister responsible for Territories it may involve the Minister in matters affecting individual prosecutions.
Subitem 368(4) will provide definitions relevant to item 369. The definition of ‘prosecution-related instrument’ makes it clear the section applies to references to Crown law officials in court orders relating to prosecution proceedings. This will mean, for example, that if the court has ordered in a prosecution related matter that certain information be provided to the Crown Counsel, the provision changes that reference to the Crown Counsel to be a reference to the Director of Public Prosecutions.
Item 369
This item will provide that if, before the commencement of Schedule 1 to this Ordinance, a Crown law official was a party to prosecution-related proceedings, the Director of Public Prosecutions is substituted as a party instead. This is to enable the CDPP to take over the conduct of such matters automatically.
Item 370
This item will require documents, records and any other thing (including physical evidence) relating to an open or pending prosecution in the possession of a Crown law official or the Regional Council be transferred to the Director of Public Prosecutions after the commencement of Schedule 1 to this Ordinance. This provision is to allow the CDPP to assume responsibility for the prosecution of matters which are open and pending.
Item 371
Documents relating to closed and completed prosecutions are in the custody of the Norfolk Island Regional Council or the Crown Law official. This item will allow the CDPP to request prosecution related documents and things (including physical evidence) from the Crown law official or the Regional Council, and the section requires that the Crown law official or the Regional Council provide them to the CDPP in response to any such request. This is intended to authorise the Regional Council to provide these documents even if they contain personal information.
Item 372
This item will provide an exemption from serving as a juror for any person who has held office as or performed the duties of a Crown law official. This is in response to the possibility that a former Crown law official may have or be perceived to have antecedent knowledge of particular prosecution matters.