Explanatory Memorandum
(Circulated by authority of the Assistant Minister for Regional Development and Territories, The Hon Nola Marino MP)TERRITORIES LEGISLATION AMENDMENT BILL 2020
OUTLINE
The purpose of the Territories Legislation Amendment Bill 2020 (the Bill) is to:
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- Amend the Norfolk Island Act 1979 (NI Act), Christmas Island Act 1958 (CI Act) and Cocos (Keeling) Islands Act 1955 (CKI Act) to ensure the effective operation of the laws of other states and territories which have been applied in these territories.
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- Amend the NI Act to allow the Australian Government to enter into arrangements with any state or territory government to support state-type service delivery in Norfolk Island and provide for the possible future conferral upon the courts of a state or territory jurisdiction (including appellate jurisdiction) in relation to Norfolk Island.
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- Amend the Corporations Act 2001 (Corporations Act), Australian Securities and Investments Commission Act 2001(ASIC Act) and associated Treasury Acts to fully extend their application to the external territories and ensure all Australian companies operate under the same legislative framework.
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- Amend the Bankruptcy Act 1966 (Bankruptcy Act) to allow the Australian Financial Security Authority (AFSA) to provide bankruptcy and personal property security services to Norfolk Island. The Bankruptcy (Estate Charges) Amendment (Norfolk Island) Bill 2020 is consequential to this measure and extends the Bankruptcy (Estate Charges) Act 1997 to Norfolk Island.
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- Amend the Freedom of Information Act 1982 (FOI Act) to clarify its application to bodies established under a law in force in Norfolk Island.
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- Amend the Privacy Act 1988 (Privacy Act) to clarify its application to statutory bodies in the external territories and clarify the application of the Australian Privacy Principles (APPs) to state and territory laws which have been applied in the external territories and the Jervis Bay Territory.
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- Amend the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to extend its coverage to decisions made by Commonwealth officials under applied laws in the external territories and the Jervis Bay Territory and extend the right to judicial review to decisions made under laws made by the former Norfolk Island Legislative Assembly and continued pre-self-government ordinances.
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- Amend the Criminal Code Act 1995 (Criminal Code) to update the definition of 'Commonwealth public official' to include people exercising powers or functions under a law in force in Norfolk Island.
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- Amend the Broadcasting Services Act 1992 (Broadcasting Services Act) to allow the Australian Communications and Media Authority (ACMA) to issue licences and undertake future broadcasting planning in Norfolk Island.
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- Amend the Copyright Act 1968 (Copyright Act) to ensure Norfolk Island is treated as a territory instead of a state for the purposes of the Act.
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- Extend the application of the Education Services for Overseas Students Act 2000 (ESOS Act) to Norfolk Island to allow for the potential regulation of services to overseas students attending Norfolk Island Central School.
The Australian territories of Christmas Island, the Cocos (Keeling) Islands, Norfolk Island, and the Jervis Bay Territory, are governed under Commonwealth legislation which allows for the laws of another jurisdiction to be applied in those territories to enable the regulation and delivery of services usually provided by state or territory governments. The Bill amends a range of Commonwealth legislation to more closely align the legislative frameworks in these territories with the rest of Australia.
In March 2015, the Australian Government announced comprehensive changes in Norfolk Island to address issues of sustainability which arose from the model of governance requiring the former Administration of Norfolk Island to deliver local, state and Commonwealth government services.
In 2016, the Parliament passed the Territories Legislation Amendment Act 2016 (Territories Legislation Amendment Act) which extended all Commonwealth legislation to Norfolk Island unless expressly provided otherwise. The extension of some legislation was deferred to allow extra time for the community to prepare for the transition to the new arrangements. The Bill extends further Commonwealth legislation relating to corporations, bankruptcy, broadcasting and education services for overseas students to Norfolk Island to bring regulation in these areas into line with the rest of Australia.
Schedule 1 - Amendments of Territory Acts
Applied laws
Amendments to the NI Act provide a mechanism under which the laws of Australian states or territories may be applied as Commonwealth law in Norfolk Island. These arrangements are intended to operate in the same way as the existing arrangements that allow for the application of NSW laws and provide a broader and more flexible legal mechanism with respect to the future provision of state-type services in Norfolk Island. The amendments allow for the laws of a state, prescribed by regulations as an 'applied law jurisdiction', to be applied in Norfolk Island.
The Commonwealth minister responsible for Norfolk Island will also be able to enter into arrangements with the relevant state government for assistance in the administration of these applied laws and other laws in force in Norfolk Island, including the performance of functions and provision of services by state officials or authorities (other than courts) on behalf of the Commonwealth.
In the absence of any such arrangements, the application of the laws of a state in Norfolk Island does not in any way place an obligation on the relevant government's officials to deliver services or administer legislation in respect of Norfolk Island. Non-judicial powers and duties will be vested in the Commonwealth minister, who will have capacity to delegate the powers, or direct that they be delegated to some other person or authority.
Alternatively, if a territory (other than Norfolk Island) is prescribed by regulations as an 'applied law jurisdiction', the laws of that territory will be applied in Norfolk Island. These arrangements would be similar to those operating in the Jervis Bay Territory with respect to the application of Australian Capital Territory laws under the Jervis Bay Territory Acceptance Act 1915.
Reflecting the different constitutional status of the territories compared with the states, officials and authorities of a territory prescribed as an applied law jurisdiction would, in the absence of any arrangement between the Commonwealth minister and the territory government, be able to exercise any powers and functions under applied territory laws in relation to Norfolk Island as if it formed part of their own territory. However, these provisions do not prevent the Commonwealth from entering into arrangements with the territory government dealing with the administration of applied territory laws.
The Commonwealth minister will also have capacity to direct that powers or functions under applied territory laws be vested in a person or authority (including the Commonwealth minister) in addition to or instead of the relevant territory official or authority.
Delegation
Amendments to the NI Act, CI Act and the CKI Act address the risk of delegation instruments becoming outdated when applied laws in force in the territories are amended or new laws are made by the relevant state or territory government. This will address any concerns that the delegation instruments cannot encompass powers that do not exist at the time they are made. Other technical changes are intended to improve the operation of the delegation arrangements more generally with respect to applied laws, including enhancing consistency of language between the applied laws regimes, as well as permitting ordinances to incorporate applied laws as in force from time to time.
The amendments also address the need for the Commonwealth minister to sign delegation instruments vesting the powers and functions of the police and local government bodies under applied laws to the police and the local government bodies for each territory. If applied laws are amended by state or territory governments to confer new powers and functions on the police and local government bodies, the amendments ensure the deemed vesting of these new powers and functions by the minister. Provision is also made for other powers and functions under applied laws to be prescribed by an ordinance for the purposes of these deemed vesting provisions. These arrangements will enhance the effectiveness of these delegation arrangements with respect to the functions of the police, local government and others who exercise powers under applied laws in the external territories.
Jurisdiction of Norfolk Island courts
Amendments in relation to the jurisdiction of Norfolk Island courts complement the amendments to the NI Act which allow state or territory laws to be applied in Norfolk Island.
These amendments permit the courts of a prescribed state or territory to have jurisdiction (including appellate jurisdiction) in relation to Norfolk Island as if it were part of that state or territory. This will allow for the courts of the relevant state or territory providing services to Norfolk Island to hear matters relevant to the services being provided by state or territory government officials under the applied laws of that same jurisdiction. This would be similar to the arrangements which apply in Christmas Island and the Cocos (Keeling) Islands where the courts of Western Australia have jurisdiction with respect to these external territories as if these territories were part of Western Australia.
If jurisdiction in relation to Norfolk Island is conferred on the courts of a prescribed state or territory, the amendments provide for that court to sit in either in Norfolk Island or in the prescribed state or territory. However, similar to the arrangements which apply in Christmas Island and the Cocos (Keeling) Islands, a court of a prescribed state or territory may only sit in the prescribed state or territory when exercising its criminal jurisdiction if to do so would not be contrary to the interests of justice.
Consequential amendments provide for the Supreme Court of Norfolk Island to cease operation after its jurisdiction is conferred on a court of a prescribed state or territory. The future operation of other Norfolk Island courts and tribunals will be dealt with by ordinances made under the NI Act.
It is likely to be a number of years before these provisions are utilised.
Schedule 2 - Amendments of Treasury Acts
The Bill extends the application of the Corporations Act, the ASIC Act, the National Consumer Credit Protection Act 2009 (National Consumer Credit Protection Act), the Competition and Consumer Act 2010 (Competition and Consumer Act) and the Cross-Border Insolvency Act 2008 (Cross Border Insolvency Act) to Norfolk Island, Christmas Island, and the Cocos (Keeling) Islands.
The Bill amends application provisions and definitions in these Acts to ensure all Australian companies operate under the same legislative framework.
Transitional provisions allow for the registration of companies registered under the Companies Act 1985 (NI) (Norfolk Island Companies Act) to be transferred to registration under the Corporations Act. This process will be undertaken by ASIC and will not require Norfolk Island companies to make an application in order to transition. The Bill also provides a rule-making power for ASIC to make rules of a transitional nature relating to the amendments made by the Bill. ASIC will be able to make such rules until 12 months after the commencement of the substantive amendments to the Acts administered by ASIC.
After this time, the transitional rule-making power, and any rules made under those powers, will be automatically repealed. However, any rules relating to the transition of a particular Norfolk Island company's registration may continue to operate for a further period of approximately 12 months, to enable an orderly assessment to be conducted of whether more permanent arrangements may be required in respect of the issues that have arisen in the course of the transition of that company's registration.
The Bill also amends the ASIC Supervisory Cost Recovery Levy Act 2017 (ASIC Supervisory Cost Recovery Levy Act) and the ASIC Supervisory Cost Recovery Levy (Collection) Act 2017 (ASIC Supervisory Cost Recovery Levy (Collection) Act) to remove out-of-date references to the 'Crown in right of Norfolk Island', as this body politic no longer exists.
The substantive amendments to the Corporations Act, ASIC Act and other Acts administered by ASIC commence on the later of:
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- the first Monday to occur after the end of the period of 6 months after the day the Bill receives assent; and
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- 2 August 2021.
The deferred commencement is necessary to enable sufficient time for ASIC to transfer the registration of companies from being under the Norfolk Island Companies Act to being under the Corporations Act. The remaining amendments commence on the day after the Bill receives assent.
Schedule 3 - Amendments of Attorney-General's Department Acts
Bankruptcy Act 1966
The Bill amends the Bankruptcy Act to extend the Commonwealth bankruptcy system to Norfolk Island. Norfolk Island currently operates its own bankruptcy system and bankruptcies are administered under the Bankruptcy Act 2006 (NI) (Norfolk Island Bankruptcy Act). Extending the Bankruptcy Act to Norfolk Island ensures bankruptcies in Norfolk Island are administered in a way that is consistent with all other bankruptcies in Australia. The personal insolvency trustee and regulation services of the AFSA also extends to bankruptcies on Norfolk Island.
Division 1 of Part 1 of Schedule 3 to the Bill makes general amendments to the Bankruptcy Act to ensure that the operation of the Bankruptcy Act is extended to Norfolk Island and that relevant definitions capture Norfolk Island.
Division 2 of this Part includes transitional provisions to ensure the smooth transition of any person who was previously made bankrupt under the Norfolk Island Bankruptcy Act and who remains bankrupt at the time of commencement to the Commonwealth bankruptcy system.
Division 2 also ensures that the AFSA has access to information and records necessary to effectively administer any Norfolk Island bankruptcy matters transitioned to the Commonwealth bankruptcy system and ensure compliance with requirements to enter information on the National Personal Insolvency Index under the Bankruptcy Act.
Freedom of Information Act 1982
Part 2 of Schedule 3 to the Bill amends the FOI Act to clarify its application to bodies established by or under a law in force in Norfolk Island, in particular, the laws of a state or territory applied in the territory under the NI Act.
These amendments clarify the application of the FOI Act to bodies such as the Norfolk Island Regional Council (NIRC) which is established under an applied New South Wales (NSW) law, specifically, the Local Government Act 1993 (NSW)(NI). Redundant provisions relating to the former governance arrangements in Norfolk Island have also been removed.
Privacy Act 1988
Part 3 of Schedule 3 amends the definition of 'Australian law' in the Privacy Act to avoid any doubt that this definition includes the laws of a state or territory applied in an external territory or the Jervis Bay Territory under a Commonwealth Act. This clarifies the application of the APPs to laws in force in the external territories and the Jervis Bay Territory. Redundant provisions relating to the former governance arrangements in Norfolk Island are removed and other amendments clarify the application of the Privacy Act to public offices and bodies established under laws in force in the external territories.
Administrative Decisions (Judicial Review) Act 1977
The Bill amends the ADJR Act to extend its coverage to any administrative decision made by a Commonwealth authority or an officer of the Commonwealth under an applied state or territory law operating in the external territories and the Jervis Bay Territory. It also extends the right to judicial review of decisions made under laws of the former Norfolk Island Legislative Assembly and continued pre-self-government ordinances. This allows people living in these territories to seek judicial review under the ADJR Act of decisions made in relation to state-type services, such as health, education and planning.
Criminal Code Act 1995
The Bill amends the Criminal Code to update the definition of 'Commonwealth public official' to include people who exercise powers, or perform functions conferred on them under a law in force in Norfolk Island. This ensures the effective operation of offences relating to the proper administration of government in Chapter 7 of the Criminal Code.
Schedule 4 - Amendments of other Acts
Broadcasting Services Act 1992
Amendments to the Broadcasting Services Act in Part 1 of Schedule 4 facilitate the transition of existing Norfolk Island television and radio services from the Norfolk Island Broadcasting Act 2001 (Norfolk Island Broadcasting Act) and allow future broadcasting planning and licensing in respect of Norfolk Island to be undertaken in accordance with the Broadcasting Services Act.
Copyright Act 1968
The Bill makes minor amendments to the Copyright Act so that Norfolk Island is treated as a territory instead of a state for the purposes of the Act.
Education Services for Overseas Students Act 2000
The Bill extends the application of the ESOS Act to Norfolk Island. The amendments ensure protections in the ESOS Act relating to education quality, financial investment and welfare are available to overseas students on Norfolk Island who hold an Australian student visa.
The amendments also mean that providers delivering education to overseas students on Norfolk Island are required to be registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).
Financial impact statement
These amendments do not have any additional impact on the budget.