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2016 - 2017 - 2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
INVESTIGATION AND PROSECUTION MEASURES BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Hon Christian Porter MP)
28745331
INVESTIGATION AND PROSECUTION MEASURES BILL 2017
GENERAL OUTLINE
1. The Investigation and Prosecution Measures Bill 2017 (the Bill) will make three sets
of amendments:
First, it will amend the Telecommunications (Interception and Access) Act 1979
(the TIA Act) and the Surveillance Devices Act 2004 (the SD Act) to support a
restructure of the Independent Commission Against Corruption
of New South Wales (the Commission).
Secondly, it extends the functions, powers and duties of the Commonwealth
Director of Public Prosecutions (CDPP) to the laws of Norfolk Island.
Thirdly, it amends the Norfolk Island Act (the NI Act) to provide for the Supreme
Court of Norfolk Island to sit in other Australian jurisdictions, and to address
limitations on commencing prosecutions for sex offences.
2. The Bill comprises three schedules:
Schedule 1 addresses the amendments relevant to the Commission
Schedule 2 addresses the amendments relevant to the CDPP's functions, powers
and duties on Norfolk Island, and
Schedule 3 addresses the amendments to the NI Act.
3. This Supplementary Explanatory Memorandum concerns Schedule 3 only.
Schedule 3 - Procedure in criminal and civil matters relating to Norfolk Island
Sittings of the Supreme Court of Norfolk Island
4. The Supreme Court of Norfolk Island is continued by the NI Act. The NI Act makes
provision for the Supreme Court to sit in a State or Territory other than Norfolk Island when
exercising its civil jurisdiction. However, it does not make provision for the Supreme Court
to do so when exercising its criminal jurisdiction. This Bill amends the NI Act to make
provision for the Supreme Court to sit in a State or Territory other than Norfolk Island when
exercising its criminal jurisdiction. It also consolidates these new provisions with provisions
relating to the exercise of civil jurisdiction that are currently in the Norfolk Island
Regulations 2017.
5. The provisions relating to the exercise of criminal jurisdiction authorise the venue of a
trial to be relocated to a State, the Australian Capital Territory (the ACT) or the Northern
Territory (NT), and enable a jury to be empanelled in that other 'host jurisdiction' according
to the laws of that State or Territory. Supporting provisions are included that govern the
removal and custody of an accused person for the purposes of the trial. Provisions are also
included that deal with the imprisonment of persons convicted and sentenced by the Supreme
Court when sitting outside Norfolk Island.
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6. As a general rule, the venue of a trial is 'local' in the sense that it is located at the
place where the alleged offence was committed, by a jury composed of residents of that
place. However, it is conceivable that there may be cases where holding a trial on Norfolk
Island, given its small size and remote location, is not consistent with the interests of justice.
For instance, it may be difficult to find jurors who do not know the accused, the victim, or
other witnesses. Concerns about empanelling a jury on Christmas Island, which has a similar
population to Norfolk Island, motivated the 1987 amendments to the Christmas Island Act
1958 that authorised the (now abolished) Supreme Court of Christmas Island to conduct trials
in a State. The provisions of Schedule 3 of this Bill are modelled closely on those
amendments.
Time limits on prosecuting sex offences
7. Both the Supreme Court and Court of Petty Sessions of Norfolk Island exercise
criminal jurisdiction.
8. The Bill amends the NI Act to remove time limits on the prosecution of sex offences
and retrospectively to remove immunity that has previously arisen as a result of the expiry of
any such time limit.
9. Prior to the commencement of the Criminal Code 2007 (NI), the provisions of the
Crimes Act 1900 (NSW) as at 16 December 1936 applied to Norfolk Island by virtue of
section 3 of the Criminal Law Act 1960 (NI) (applied NSW Crimes Act). Section 78 of the
applied NSW Crimes Act imposed a 12 month time limit on commencing prosecution for the
following offences, where the victim was, at the time of the alleged offence, over the age of
14 years and under the age of 16 years:
carnally knowing a girl between 10 and 16 (section 71)
attempt to carnally know a girl between 10 and 16 (section 72)
indecent assault (section 78).
10. These offences and the associated time limit on prosecution are no longer in force in
Norfolk Island (having been repealed by the Criminal Law Amendment Act 1993 (NI)). More
modern equivalents of these offences are established in Part 3.6 of the Criminal Code 2007
(NI), for which no specific time limits on prosecution are imposed. The general position
under Norfolk Island law is that a prosecution for an offence carrying a maximum penalty of
more than six months' imprisonment may be commenced at any time after the commission of
the offence. This position is currently reflected in section 45 of the Court of Petty Sessions
Act 1960 (NI) and section 11 of the Criminal law Act 1960 (NI). The maximum penalty for
each offence established in Part 3.6 of the Criminal Code 2007 (NI) is imprisonment for more
than six months. This is also the case for other sex offences in Parts 3.7, 3.9 and 3.10 of the
Criminal Code 2007 (NI).
11. In its 2017 Criminal Justice Report, the Royal Commission into Institutional
Responses to Child Sexual Abuse recommended that 'State and territory governments should
introduce legislation to remove any remaining limitation periods, or any remaining
immunities, that apply to child sexual abuse offences, including historical child sexual abuse
offences, in a manner that does not revive any sexual offences that are no longer in keeping
with community standards' (recommendation 30). Other jurisdictions, such as the ACT (by
way of section 441 of the Crimes Act 1900, inserted in 2013) and Victoria (by way of
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section 7A of the Criminal Procedure Act 2009, inserted in 2014) have removed limitation
periods and associated immunities. Given that time limits are not imposed on prosecutions for
sex offences against current Norfolk Island law, the principal operation of the Bill is to
remove immunity arising as a result of the expiry of time limits that applied to now-repealed
sex offences against the applied NSW Crimes Act, concordant with the recommendation of
the Royal Commission.
FINANCIAL IMPACT
12. The Bill will have no financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Investigation and Prosecution Measures Bill 2017
Schedule 3 - Procedure in criminal and civil matter relating to Norfolk Island
Overview of the Bill
13. The Bill will amend the NI Act to authorise the Supreme Court to sit in a State, the
ACT or the NT, in the exercise of its civil and criminal jurisdiction. For criminal matters, the
new provisions allow for the venue of the trial to be relocated from Norfolk Island to that
'host jurisdiction' and for a jury to be empanelled in the State or Territory according to the
laws of that jurisdiction. A change of venue will only occur where it is in the interests of
justice to do so.
14. The Bill will also amend the NI Act to remove any time limits on the prosecution of
sex offences and retrospectively to remove immunity that has arisen as a result of the expiry
of any such time limit.
Human Rights Implications
15. The amendments to the NI Act potentially engage the following human rights that are
recognised in the ICCPR:
the right to liberty and security of person
the right to a fair trial
the right to be tried without undue delay
the right to freedom from retroactive criminal laws
Right to liberty and security of person
16. Article 9(1) of the ICCPR recognises that everyone has the right to liberty and
security of person, and provides that no one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by law. At the same time,
Article 9(3) acknowledges that a person awaiting trial may be detained, although it states that
such detention should not be the general rule.
17. The Bill authorises the detention of an accused person for the purposes of a trial held
in the alternative venue. Specifically, section 60F requires a prison officer, by warrant issued
by the Registrar or Magistrate of Norfolk Island under authority of an order by the Supreme
Court under section 60C(5)(a), to detain the accused person, and authorises the detention of
the accused for as long as is necessary for the execution of the order. Such detention is only
authorised on the grounds and in accordance with the procedure that are established by law,
as required by Article 9(1) of the ICCPR. Moreover, the detention is subject to the power of
the Supreme Court, under the Bail Act 2005 (NI), to grant bail. The exercise of this power in
proceedings held or continued in the alternative venue is expressly preserved by s 60C(6).
The Bail Act provides a presumption in favour of bail for most offences.
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18. The Bill does not deal with the conditions of the accused person's detention. Rather,
s 60F(4) provides that, while in custody, the accused person is to be dealt with in the same
manner, and subject to the same laws, as if the detention had been authorised under the law of
the alternative venue. Article 10(2)(a) of the ICCPR requires that, save in exceptional
circumstances, accused persons be segregated from convicted persons and be subject to
separate treatment appropriate to their status as unconvicted persons. Giving effect to this
requirement will be a matter for the law of the alternative venue.
Right to a fair trial
19. Article 14 of the ICCPR recognises that every person is entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law in the
determination of any criminal charge against them, as well as in the determination of their
rights and obligations in a suit at law. It therefore applies to proceedings before a Norfolk
Island court in exercise of its civil and criminal jurisdiction.
20. The Bill engages the right to a fair trial to the extent that it removes time limits on the
prosecution of historical sex offences. By doing so, it exposes persons to criminal
proceedings in respect of offences committed potentially many years prior to trial. The trial
of historical sex offences poses challenges for the criminal justice system, particularly in
terms of the availability and reliability of evidence, as acknowledged by Wilcox J for the
Supreme Court of Norfolk Island in Nobbs v Heath [2001] NFSC 1. Nevertheless, existing
law in force in Norfolk Island provides a number of safeguards that are designed to ensure
that an accused person receives a fair trial. For example, under common law, a trial judge is
required to warn a jury about the dangers of convicting an accused person on evidence of a
complainant that could no longer be adequately tested by the accused due to the delay
between the alleged conduct constituting the offence and the trial, and which itself may be
subject to errors in recollection due to that delay. This was stated by the High Court in
Longman v The Queen (1989) 168 CLR 79. Moreover, the Supreme Court of Norfolk Island
has the inherent power to order a permanent stay of criminal proceedings where the delay in
the trial amounts to an abuse of process, or where the proceedings will otherwise result in an
unfair trial: Jago v District Court of New South Wales (1989) 168 CLR 23; Dietrich v The
Queen (1992) 177 CLR 292. The Bill will operate within an existing legal framework that
safeguards the right of the accused person to a fair trial.
21. The Bill also engages the right to a fair trial to the extent that it authorises the venue
of criminal and civil proceedings to be relocated from the place where the alleged or
impugned conduct was likely engaged in. The relocation of proceedings may impose
hardship on the accused person/defendant by reason of reduced access to witnesses and other
evidence on which they may seek to rely in their defence of the proceedings. In this regard,
Article 14(3)(e) of the ICCPR recognises that the accused person is entitled to obtain the
attendance and examination of witnesses on their behalf under the same conditions as
witnesses against them. It is expected that these factors will be taken into account by the
Supreme Court in determining whether the relocation would be contrary to the interests of
justice, based on existing case law on this issue.
22. By authorising the trial venue to be relocated and the empanelment of a jury in the
alternative venue, the Bill will promote the right to a fair trial in cases where there are
concerns about empanelling an impartial local jury. Similar concerns motivated the 1987
amendments to the Christmas Island Act 1958 on which Schedule 3 of the Bill is closely
modelled.
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Right to be tried without undue delay
23. Article 14(2)(c) of the ICCPR provides that every person is entitled to be tried without
undue delay in the determination of any criminal charge against them. The focus of this right
is on the trial of the accused person. The right is therefore concerned with the delay between
the accused person being notified of the prosecution to the determination of the proceedings.
It is not concerned with any delay between the alleged commission of the offence and the
prosecution of the offence. As such, the amendments do not engage this right.
Freedom from retroactive criminal laws
24. Article 15(1) of the ICCPR provides that no one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a criminal offence at the
time when it was committed. Removing time limits on the prosecution of sex offences, and
removing any immunity that arises as a result of the expiry of those time limits, does not fall
within the scope of this freedom. The Bill is only concerned with prosecuting offences, and is
not concerned with creating offences. The amendments do not criminalise conduct that was
not an offence at the time it was committed. As such, the amendments do not engage this
right.
Conclusion
25. The Bill is compatible with human rights.
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NOTES ON CLAUSES
SCHEDULE 3 - PROCEDURE IN CRIMINAL AND CIVIL MATTERS RELATING
TO NORFOLK ISLAND
Item 1 - Subsection 4(1)
26. This item inserts definitions of several terms that are used in new Part VIIA of the
Norfolk Island Act (the NI Act). The Bill uses the term 'host jurisdiction' to describe the
jurisdiction in which the Supreme Court of Norfolk Island is to sit under the new provisions.
The host jurisdiction may be a State, the Australian Capital Territory (the ACT) or the
Northern Territory (NT). The term 'civil matter' picks up the language currently used in
section 67(a) of the NI Act to describe matters for which the Supreme Court is currently
authorised to sit outside Norfolk Island under Part 2 of the Norfolk Island Regulations 2017.
The other terms defined are used in the new provisions relating to sittings of the Supreme
Court and are the terms used in the Christmas Island Act 1958 on which those provisions are
closely modelled.
Item 2 - Section 59
27. This item amends section 59 on account of the fact that procedures for sittings of the
Supreme Court of Norfolk Island outside Norfolk Island are provided by and under the
NI Act itself, and no longer by or under regulations referred to in existing paragraph 67(a) of
the NI Act.
Item 3 - After Part VII
28. This item inserts the bulk of the amendments to the NI Act:
Subdivision A of Division 1 deals with time limits on prosecuting offences against
Norfolk Island laws.
Subdivision B of Division 1 deals with sittings of the Supreme Court outside
Norfolk Island in criminal matters
Division 2 deals with sittings of the Supreme Court of Norfolk Island outside
Norfolk Island in civil matters
Time limits on prosecuting offences
29. New subsection 60A(1) provides that the prosecution for a sex offence listed in new
Schedule 5 may be commenced at any time after the commission of the offence. Schedule 5
lists a range of offences by reference to:
provisions of the Criminal Code 2007 (NI) - Part 3.6 of the Code establishes
sexual offences, Part 3.7 establishes child pornography offences, Part 3.9
establishes female genital mutilation offences, and Part 3.10 establishes sexual
servitude offences. Part 2.4 of the Code extends criminal liability for these
offences to attempt, complicity and common purpose, agency, incitement, and
conspiracy.
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provisions of the applied NSW Crimes Act as modified from time to time by
amendments to the Criminal Law Act 1960 (NI) - Sections 62 to 81 of the applied
NSW Crimes Act established rape and similar offences. These provisions were
removed by the Criminal Law Amendment Act 1993 (NI) and a new Part IIIA was
inserted establishing sexual offences. Sections 86 to 91D of the applied NSW
Crimes Act established abduction offences, which included procurement offences
and other offences with sexual elements. Part IX of the applied NSW Crimes Act
extended criminal liability to abettors and accessories.
30. New subsection 60A(2) provides that subsection (1) applies even if a shorter time
limit for prosecution applies. Such shorter time limits may be provided under the continued
laws of Norfolk Island (ie, laws continued in force by sections 16 or 16A of the NI Act), or
laws previously in force in Norfolk Island. To the extent that a shorter time limit is provided,
the general position in subsection (1) prevails, and the time limit is removed.
31. Not all offences listed in new Schedule 5 are subject to a time limit on prosecution.
The general position under Norfolk Island law is that a prosecution for an offence carrying a
maximum penalty of more than six months' imprisonment may be commenced at any time
after the commission of the offence. All of the principal offences listed in Schedule 5 carry a
maximum penalty within this range. However, some of these offences have historically been
subject to shorter time limits on prosecution. The inclusion of other offences in subsection (3)
is not intended to imply that those offences are, or have been, subject to time limits on
prosecution.
32. New subsection 60A(2) also provides that subsection (1) applies even if a relevant
shorter time limit on prosecution has expired, and an immunity from prosecution has arisen
as a result of the expiry of that time limit. Read with new section 60M, this clarifies that
subsection (1) has the effect of retrospectively removing time limits on the prosecution of sex
offences, including time limits that applied to the offence at the time of its commission, but
which have subsequently been repealed. One example of such a time limit is section 78 of the
applied NSW Crimes Act.
33. Where a time limit for the prosecution of a sex offence has expired, an accused person
may be said to acquire a 'right' not to be prosecuted for that offence (or an 'immunity' from
prosecution). The legislative history of these time limits and the experience of the criminal
justice system in prosecuting these offences reveal that the time limits are arbitrary and were
imposed without an understanding of the nature of the offending and its impact on the victim.
These time limits are no longer in keeping with community expectations and adversely affect
victims, particularly child victims, who are barred from accessing justice due to delays in
disclosing sexual abuse. These considerations call into question the legitimacy of any right or
immunity that is acquired as a result of the expiry of those time limits and justify the
retrospective removal of that right or immunity.
34. New subsection 60A(1) only applies to time limits on prosecuting sex offences listed
in Schedule 5. It does not affect time limits provided under Norfolk Island law for the
prosecution of other offences. The general position under Norfolk Island law is that a
prosecution for an offence carrying a maximum penalty of six months' imprisonment or less
must be commenced within 12 months after the commission of the offence. However,
specific time limits are provided under the continued laws of Norfolk Island that depart from
this general position. One example is section 93 of the Marine Safety Act 2013 (NI), which
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provides a two year time limit on prosecuting offences under that Act or regulations made
under that Act.
35. Section 60A is concerned with the prosecution of offences. It does not revive sex
offences listed in Schedule 8 that have been amended or repealed. Nor does it establish
criminal liability for conduct that did not constitute a criminal offence at the time that
conduct was engaged in.
Sittings of the Supreme Court of Norfolk Island exercising criminal jurisdiction
36. Division 1 Subdivision B of new Part VIIA contains provisions that are modelled
closely on section 11AAA, 11AA, 12A, 12B and 18A to 18F of the Christmas Island Act
1958.
37. New section 60B provides that the Commonwealth may make arrangements with the
government or an authority of the host jurisdiction for the purposes of the effective
application of the provisions of Division 1 Subdivision B. This provision is based on
s 11AAA of the Christmas Island Act 1958. The cooperation of State and Territory
authorities, such as courts and remand centres, will ensure that the Supreme Court of Norfolk
Island can conduct trials outside Norfolk Island with minimal impact on its usual procedures.
These arrangements are expected to cover the facilities and resources needed to support the
Supreme Court sitting in its criminal jurisdiction, as well as the detention of the accused
person, where provided by law. In the case of a State, subdivision (2) provides that a power
will only be conferred, and a duty or function will only be imposed, on an officer of the State
under Division 1 Subdivision B if the conferral or imposition is in accordance with such an
arrangement that is in place.
38. New section 60C gives the Supreme Court powers necessary to sit outside Norfolk
Island in criminal matters, thereby relocating the venue of the trial outside Norfolk Island. It
is based on s 11AA of the Christmas Island Act 1958:
Subsection (1) confers a general power on the Supreme Court to sit in the
alternative venue. It is operationalised by the subsections that follow. The
Supreme Court is only empowered to sit in the alternative venue if to do so would
not be contrary to the interests of justice.
Subsection (2) provides that, at any time after prosecution commences but before
the jury returns its verdict, the Supreme Court may order that the trial be held or
continued at an alternative venue in a State, the ACT, or the NT. The Supreme
Court may only make such an order if it is satisfied that the interests of justice
require it. If the trial has already begun, the order will provide for the jury to be
discharged. New section 60D makes provision for the empanelment of a new jury
in the alternative venue. Subsection (3) clarifies that the Supreme Court may make
an order under subsection (2) at a sitting in Norfolk Island or in the host
jurisdiction. Section 67 of the NI Act is being amended to specifically authorise
the making of regulations that prescribe circumstances in which the prosecution is
taken to have commenced. Norfolk Island law generally provides for prosecutions
to be commenced by the laying of an information.
Subsection (4) provides that the Supreme Court may order a change of venue
outside Norfolk Island in the absence of the accused person, but must only do so if
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the accused person is represented, and the Supreme Court is satisfied that the
accused person understands the effect of the order.
Subsection (5) provides that, where the Supreme Court orders a change of venue
outside Norfolk Island, it may also order that the accused person be removed to
the alternative venue, and that persons required to give evidence be summoned to
attend at that venue. New section 60F makes further provision for the removal of
the accused person.
Subsections (6) and (7) provide that the Supreme Court has all the powers in the
alternative venue which it would have if it were sitting on the trial in Norfolk
Island, and that the powers so exercised are taken to have been exercised by the
Supreme Court at a sitting in Norfolk Island.
Subsection (8) provides that the Supreme Court may order a return to Norfolk
Island to continue the trial there, and for the accused person and jury to attend.
The Supreme Court may only make such an order if it is satisfied that the interests
of justice require it, and if do so is for the purpose of viewing a place, taking
evidence from a person, or a purpose prescribed in the regulations. New
section 60H makes further provision for the return of the accused person to
Norfolk Island.
Subsection (9) provides that fees and allowances for witnesses under Norfolk
Island law are payable by the Commonwealth for trials held outside Norfolk
Island.
Subsection (10) provides that disobedience to the orders, warrants, summonses or
judgments of the Supreme Court in the alternative venue is an offence against the
NI Act if that disobedience constituted an offence against the laws of Norfolk
Island were it to have occurred in Norfolk Island. The penalty for committing the
offence against the NI Act is the same as the penalty for the offence against the
laws of Norfolk Island.
39. New section 60D provides for the empanelment of a jury in the alternative venue. It is
based on section 12A of the Christmas Island Act 1958:
Subsection (1) applies the laws of the host jurisdiction concerning juries to trials
in the Supreme Court of Norfolk Island when sitting at that venue. For the
purposes of the effective operation of those laws, subsection (7) empowers the
Supreme Court of Norfolk Island to order an officer of the Court to do any act or
thing required to be done under that applied law by some other specified person.
Subsections (2) to (4) prescribe the procedure for empanelling the jury in the
alternative venue. Officers of the Supreme Court of Norfolk Island are charged
with preparing the jury panel and summoning jurors, using the jury list used by
the authorities of the host jurisdiction. To this end, the person who has custody of
that jury list is required to provide a copy of the list, and to indicate on the copy
the names of the persons who are liable to serve as jurors under the laws of the
host jurisdiction. Subsection (5) requires the Commonwealth to pay any
reasonable fee demanded for the copy of the jury list. Subsection (9) provides a
broad definition of the term 'jury list'. In some jurisdictions, the term describes
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the jury roll, whereas in other jurisdictions, the term describes the list of eligible
jurors selected from the roll to be summoned.
Subsection (6) requires the Commonwealth to remunerate jurors. Pursuant to
paragraph (h) of subsection (1), the rate and manner of remuneration is prescribed
by the laws of the host jurisdiction.
Subsection (8) enables regulations to be made under the NI Act that modify the
operation of the laws of the host jurisdiction concerning juries that are applied to
trials in the Supreme Court of Norfolk Island under subsection (1). This provision
authorises the Executive to modify the operation of the NI Act, but only to the
extent that the NI Act applies the provisions of the laws of the host jurisdiction.
Those provisions are already subject to modification over time by the legislature
of the host jurisdiction. Besides subsection 12A(8) of the Christmas Island Act
1958 on which subsection (8) is based, there are other instances in
Commonwealth legislation where the Executive is empowered to modify the
operation of applied laws. One such instance is section 46 of the Sea Installations
Act 1987. Another example is section 18A of the NI Act, which authorises the
Governor-General, by ordinance, to amend or repeal a law of New South Wales
that is applied to Norfolk Island under the Act. It may be necessary to modify
applied jury laws to ensure that applied laws are adapted to the expectations of the
Commonwealth regarding jury trials.
40. New section 60E establishes offences in relation to jurors for a trial of the Supreme
Court of Norfolk Island sitting in an alternative venue. It is based on section 12B of the
Christmas Island Act 1958:
Subsection (1) establishes an offence of failing to attend or absconding from
attendance in accordance with a summons for jury service. Subsection (2)
establishes an exception in cases where the person has a reasonable excuse.
Subsection (3) establishes an offence of impersonating a juror in order to sit on a
jury.
Subsection (4) establishes an offence of corrupting a juror. The offence is
constituted by conduct of a third person corrupting a juror, making a payment to
or conferring a benefit on a juror, or promising to do so. The offence is also
constituted by the juror accepting such a payment or benefit.
41. New sections 60F to 60H govern the removal of an accused person from Norfolk
Island to the alternative venue and custody of the removed person for the purposes of the
trial. They also govern the return of the accused person to Norfolk Island for the purposes of
the trial or upon acquittal. New sections 60J and 60K deal with the imprisonment of persons
convicted and sentenced by the Supreme Court when sitting outside Norfolk Island. These
provisions are based on sections 18A to 18F of the Christmas Island Act 1958 and are
designed to supersede existing arrangements for the removal of prisoners and persons on
remand from Norfolk Island in cases where the Supreme Court sits outside Norfolk Island.
42. New section 60F makes further provision for the removal of an accused person to the
alternative venue if that removal is ordered by the Supreme Court of Norfolk Island under
subsection 60C(5):
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Subsection (1) authorises the Registrar of the Court, a Magistrate, or other person
directed by the Court to require, by warrant, any constable to convey the accused
person from Norfolk Island to a specified prison in the host jurisdiction and to
deliver the accused person into the custody of the officer in charge of that prison.
It also authorises the Registrar of the Court, Magistrate, or other person directed
by the Court to require, by warrant, the officer in charge of the prison to detain the
accused person for as long as necessary for the execution of the removal order.
Subsection (3) authorises the detention of the accused person in the prison, or in
any other prison in the host jurisdiction.
Subsection (4) provides that the accused person is to be dealt with in the same
manner, and subject to the same laws, as if the person was on remand under the
laws of the host jurisdiction.
Subsection (5) provides that the Commonwealth is to pay the host jurisdiction the
reasonable expenses of detaining the accused person.
43. New section 60G empowers the Supreme Court of Norfolk Island to order that the
accused person, having been removed to the alternative venue, be conveyed to the Court for
the trial or related proceedings. To enable this to happen, the person having custody of the
accused person (eg, the officer in charge of the prison) is required to release the accused
person to a constable.
44. New section 60H makes further provision for the return of the accused person if the
Supreme Court of Norfolk Island orders the trial to be continued in Norfolk Island under
subsection 60C(8). In similar terms to subsection 60F(1), it authorises the Registrar of the
Court to require, by warrant, any constable to convey the accused person to a specified prison
in Norfolk Island and to deliver the accused person into the custody of the officer in charge of
that prison.
45. New section 60J deems a person, who has been tried at an alternative venue and been
convicted and sentenced to imprisonment, to be a prisoner and to have been removed to the
host jurisdiction under the Removal of Prisoners (Territories) Act 1923. The provisions of
that Act apply to the detention of the person and their eventual return to Norfolk Island.
46. New section 60K makes similar provision in relation to:
a person who is found to have been insane at the time of the commission of the
offence;
a person who is found to be unfit to be tried on the ground of insanity; or
a person convicted of an offence but later found to be insane.
47. It deems such a person to be a 'criminal lunatic' and to have been removed to the
alternative venue under the Removal of Prisoners (Territories) Act 1923. The new section
uses the terminology used in that Act, even though these terms may not be used under the
laws of Norfolk Island. Sections 9 and 10A of that Act provide for the detention of that
person and their eventual release.
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48. New section 60L provides for the return of a person who has been removed from
Norfolk Island 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 administering the NI Act, to provide the person with means to
enable their return to Norfolk Island.
49. Division 1 Subdivision C of new Part VIIA contains interpretative provisions that
apply to Division 1 as a whole (ie, they apply both to the provisions dealing with time limits
on prosecuting offences, and to the provisions dealing with sittings of the Supreme Court of
Norfolk Island exercising criminal jurisdiction).
50. New section 60M provides that a reference to an offence against a law of Norfolk
Island includes a reference to an offence against a law in force at the time at which the
conduct constituting the offence is alleged to have occurred, which may subsequently have
been amended or repealed. Read with new subsection 60A(2), this provision clarifies that
subsection 60A(1) has the effect not only of retrospectively removing time limits on the
prosecution of sex offences, but also of removing immunity that has previously arisen as a
result of the expiry of those time limits.
51. New section 60N provides definitions for the terms 'conduct' and 'engage in conduct'
by reference to the definition of those terms in the Criminal Code. These terms are only used
in subsection 60E(4) (which establishes the offence of corrupting a juror) and section 60M.
Sittings of the Supreme Court of Norfolk Island exercising civil jurisdiction
52. Division 2 of new Part VIIA recast the provisions relating to sittings of the Supreme
Court of Norfolk Island outside Norfolk Island in civil matters that are currently set out in
Part 2 of the Norfolk Island Regulations 2017, as enabled by section 67(a) of the NI Act.
These provisions have been redrafted to align, where appropriate, with the provisions in
Division 1 Subdivision B (relating to sittings of the Supreme Court outside Norfolk Island in
criminal matters). As a result of this change, Part 2 of the Norfolk Island Regulations 2017
will be repealed, and section 67(a) of the NI Act is being repealed (see item 4).
Item 4 - Paragraph 67(a)
53. This item repeals paragraph 67(a) on account of the fact that it is now the NI Act itself
that provides for and in relation to sittings of the Supreme Court of Norfolk Island in a State
or in a Territory other than Norfolk Island for the purpose of hearing and determining a civil
matter. This item inserts in its place a new paragraph that enable regulations dealing with the
matters referred to in subsection 60C(2) (ie, prescribing circumstances in which the
prosecution for an offence against a law of Norfolk Island is taken to have commenced).
Item 5 - At the end of the Act
54. This item inserts new Schedule 5, which refers to sex offences that are, or were,
established by the Criminal Code 2007 (NI) and the applied NSW Crimes Act. The purpose
of Schedule 5 is to list the sex offences to which section 60A applies, and therefore for which
any time limit for prosecution is removed. These offences are described in more detail in the
notes on section 60A.
14
Item 6 - Application of amendments
55. This item provides transitional arrangements for amendments dealing with sittings of
the Supreme Court of Norfolk Island. Under these arrangements, the Supreme Court of
Norfolk Island will be able to use the provisions in Division 1 Subdivision B of new
Part VIIA to relocate a trial that has already begun at before the commencement of that
Subdivision.
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