House of Representatives

Addendum to the Explanatory Memorandum

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

Addendum to the Explanatory Memorandum

Schedule 1, Part 1, Item 14, Subsections 8G(4) to (6)

After paragraph 39 on page 28, insert the following paragraphs:

39A. New subsections 8G(5) of the CI Act and the CKI Act, as well as new subsection 18B(5) of the NI Act, are based on existing provisions of these Acts, which deal with the delegation of powers vested in the minister under applied state laws. These applied laws arrangements have been in place in the Indian Ocean Territories since 1992 and Norfolk Island since 2016.

39B. The laws of Western Australia, as in force from time to time in that State, are applied in the Indian Ocean Territories, while presently, the laws of New South Wales, as in force from time in that State, are applied in Norfolk Island. These applied laws regimes provide that non-judicial powers and duties under these applied laws are vested in the minister, who has a capacity to delegate the powers, or direct that they be delegated, to some other person or authority.

39C. Considering the potential breadth and scope of the powers and duties conferred by these applied laws upon the minister, which could, in practice, extend to all the non-judicial powers and duties contained in the laws of Western Australia, it is necessary and appropriate for the minister to have a broad delegation power to ensure that these powers are exercised effectively at an appropriate level. If the minister was constrained in his or her ability to delegate these powers there is a risk that these applied laws may not be properly or effectively administered in Christmas Island. This is because the circumstances for which it may be appropriate to delegate these powers are not certain and cannot necessarily be foreseen. Similarly, it is impractical and restrictive to anticipate the factors with respect to these applied laws that the minister or relevant person or authority may consider when determining whether persons exercising delegated powers have the appropriate expertise and qualification to exercise those delegate powers.

39D. Finally, it should be noted that in circumstances where there is an arrangement between the Commonwealth and the relevant state to administer the laws in force in the external territory, that the state official, with the corresponding power in the relevant state, will ordinarily exercise the delegated powers of the minister (see new subsections 8G(5A) of the CI Act and the CKI Act and proposed subsection 18B(5A) of the NI Act). This is the case in Christmas Island, where under service delivery arrangements between the Commonwealth and Western Australia, Western Australian officials routinely exercise a range of functions and powers under applied Western Australian laws as in force in this Territory in the same way that they would in Western Australia.

Schedule 1, Part 1, Item 40, Subsections 8G(4) to (6)

After paragraph 84 on page 37, insert the following paragraphs:

84A. New subsections 8G(5) of the CI Act and the CKI Act, as well as new subsection 18B(5) of the NI Act, are based on existing provisions of these Acts, which deal with the delegation of powers vested in the minister under applied state or territory laws. These applied laws arrangements have been in place in the Indian Ocean Territories since 1992 and Norfolk Island since 2016.

84B. The laws of Western Australia, as in force from time to time in that State, are applied in the Indian Ocean Territories, while presently, the laws of New South Wales, as in force from time in that State, are applied in Norfolk Island. These applied laws regimes provide that non-judicial powers and duties under these applied laws are vested in the minister, who has a capacity to delegate the powers, or direct that they be delegated, to some other person or authority.

84C. Considering the potential breadth and scope of the powers and duties conferred by these applied laws upon the minister, which could, in practice, extend to all the non-judicial powers and duties contained in the laws of Western Australia, it is necessary and appropriate for the minister to have a broad delegation power to ensure that these powers are exercised effectively at an appropriate level. If the minister was constrained in his or her ability to delegate these powers there is a risk that these applied laws may not be properly or effectively administered in the Cocos (Keeling) Islands. This is because the circumstances for which it may be appropriate to delegate these powers are not certain and cannot necessarily be foreseen. Similarly, it is impractical and restrictive to anticipate the factors with respect to these applied laws that the minister or relevant person or authority may consider when determining whether persons exercising delegated powers have the appropriate expertise and qualification to exercise those delegate powers.

84D. Finally, it should be noted that in circumstances where there is an arrangement between the Commonwealth and the relevant state to administer the laws in force in the external territory, that the state official, with the corresponding power in the relevant state, will ordinarily exercise the delegated powers of the minister (see new subsections 8G(5A) of the CI Act and the CKI Act and new subsection 18B(5A) of the NI Act). This is the case in the Cocos (Keeling) Islands, where under service delivery arrangements between the Commonwealth and Western Australia, Western Australian officials routinely exercise a range of functions and powers under applied Western Australian laws as in force in this Territory in the same way that they would in Western Australia.

Schedule 1, Part 1, Item 57, At the end of Part I

After paragraph 116 on page 42, insert the following paragraphs:

116A. New South Wales has announced that the existing arrangements in Norfolk Island, under which it provides some state-type education and health support services, will cease by the end of 2021. Accordingly, the applied laws amendments are intended to provide a flexible legal mechanism under which the laws of a state or territory may be applied as Commonwealth law in Norfolk Island and will enable state-type service arrangements to be entered into with a state or territory. These applied laws arrangements are intended to operate in a similar way to the existing applied NSW laws arrangements. An 'applied law jurisdiction', being NSW or another state or territory, may be prescribed by regulations made under the Act. The laws of a jurisdiction would only be applied when there is an agreement in place between the relevant state or territory and the Government.

116B. In light of the present circumstances regarding the provision of state-type services in Norfolk Island, it is considered necessary and appropriate to allow regulations to determine which state or territory laws will be in force in Norfolk Island. Prescribing these matters in regulations will allow these arrangements to be implemented in a timely manner if agreement is achieved between the relevant state or territory and the Government. If provision for these matters were to be included in primary legislation there is risk of a delay in implementing state-type arrangements which would have an adverse effect on the provision of state-type services to the community in Norfolk Island.

116C. Further, any regulations prescribing these matters are disallowable by a single House of Parliament acting alone, and are subject to the usual parliamentary scrutiny, including the Senate Scrutiny of Delegated Legislation Committee. As legislative instruments, section 17 of the Legislation Act requires that the instrument-maker be satisfied that appropriate consultation has occurred.

Schedule 1, Part 1, Item 66, Subsections 18B(4) to (6)

After paragraph 139 on page 47, insert the following paragraphs:

139A. New subsection 18B(5) of the NI Act, as well as new subsections 8G(5) of the CI Act and the CKI Act, are based on existing provisions of these Acts, which deal with the delegation of powers vested in the minister under applied state laws. These applied laws arrangements have been in place in Norfolk Island since 2016 and the Indian Ocean Territories since 1992.

139B. Presently, the laws of New South Wales, as in force from time in that State, are applied in Norfolk Island, while the laws of Western Australia, as in force from time to time in that State, are applied in the Indian Ocean Territories. These applied laws regimes provide that non-judicial powers and duties under these applied laws are vested in the minister, who has a capacity to delegate the powers, or direct that they be delegated, to some other person or authority.

139C. Considering the potential breadth and scope of the powers and duties conferred by these applied laws upon the minister, which could, in practice, extend to all the non-judicial powers and duties contained in the laws of the relevant state, it is necessary and appropriate for the minister to have a broad delegation power to ensure that these powers are exercised effectively at an appropriate level. If the minister was constrained in his or her ability to delegate these powers there is a risk that these applied laws may not be properly or effectively administered in Norfolk Island. This is because the circumstances for which it may be appropriate to delegate these powers are not certain and cannot necessarily be foreseen. Similarly, it is impractical and restrictive to anticipate the factors with respect to these applied laws that the minister or relevant person or authority may consider when determining whether persons exercising delegated powers have the appropriate expertise and qualification to exercise those delegate powers.

139D. Finally, it should be noted that in circumstances where there is an arrangement between the Commonwealth and the relevant state to administer the laws in force in Norfolk Island, that the state official, with the corresponding power in the relevant state, will ordinarily exercise the delegated powers of the minister (see new subsection 18B(5A) of the NI Act and new subsections 8G(5A) of the CI Act and the CKI Act).

Schedule 1, Part 1, Item 67, Subsections 18B(9) to (12)

After paragraph 145 on page 48, insert the following paragraphs:

145A. Subsections 8(1) and (4) of the Legislation Act have the combined effect that an instrument that is made under a power delegated by Parliament and has one or more provisions that have legislative character (rather than administrative character) will be a legislative instrument: unless the relevant Act expressly exempts the instrument from being a legislative instrument.

145B. In Visa International Services Association v Reserve Bank of Australia (2003) 131 FCR 300 at 424 (Visa International), the Federal Court identified a number of factors that are likely to have bearing on whether a decision is to be characterised as being of administrative or legislative character. The list included (at paragraph 592):

•

whether the decision determined rules of general application, or whether there was an application of rules to particular cases;

•

whether there was Parliamentary control of the decision;

•

whether there was public notification of the making of the decision;

•

whether there was public consultation;

•

whether there were broad policy considerations imposed;

•

whether the regulations (or other instrument) could be varied;

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whether there was power of executive variation or control;

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whether there was provision for merits review; and

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whether there was binding effect.

145C. The case law makes it clear that not one of these factors will determine whether the decision is of an administrative or legislative character. Rather, it is necessary to consider the decision in light of all these factors. Legislative and administrative decisions can also be broadly distinguished between legislative decisions which determine the content of the law and administrative decisions which apply the law in particular cases (Roche Products Pty Limited v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451 per Branson J).

145D. Applying these factors to the instruments made under new section 18B, it is apparent that none of these instruments determine the content of the law. Notably, these instruments deal with the vesting, delegating or directing of powers otherwise vested in the minister and other persons under applied state laws. In this respect, the instruments are of an administrative character, dealing with the application or carrying out of these powers, and do not determine or alter the content of these delegated, vested or otherwise directed powers.

145E. Furthermore, there is no public consultation required for making these instruments, nor is there any requirement to notify the public when the instrument is made. The policy considerations imposed are narrow, being confined to the administration of these applied laws, and do not otherwise generally affect the public.

145F. In any case, an instrument of delegation, including any directions to the delegate, as well as an instrument that is a direction to a delegate are classes of instruments that are not legislative instruments for the purposes of the Legislation Act: see Legislation (Exemptions and Other Matters) Regulation 2015 (the Regulation), items 1 and 2 of the table in subsection 6(1). The explanatory statement to the Regulation explains that delegations, including directions to the delegate, 'are administrative in character, as they facilitate the carrying out of powers and functions but do not alter the scope or effect of those powers and functions'.

145G. Accordingly, the instruments made under new section 18B will be instruments of an administrative character, rather than a legislative character. The statement in new subsection 18B(13), that the relevant instruments are not legislative instruments, are declarations of the law and do not provide an exemption from the Legislation Act. However, because the legislative versus administrative character test is complex, the declaratory statement is intended to assist readers of the Bill to understand that the instruments are not legislative instruments.

Schedule 1, Part 1, Item 72, At the end of Division 1 of Part IV

After paragraph 164 on page 50, insert the following paragraphs:

164A. Subsections 8(1) and (4) of the Legislation Act have the combined effect that an instrument that is made under a power delegated by Parliament and has one or more provisions that have legislative character (rather than administrative character) will be a legislative instrument: unless the relevant Act expressly exempts the instrument from being a legislative instrument.

164B. In Visa International Services Association v Reserve Bank of Australia (2003) 131 FCR 300 at 424 (Visa International), the Federal Court identified a number of factors that are likely to have bearing on whether a decision is to be characterised as being of administrative or legislative character. The list included (at paragraph 592):

•

whether the decision determined rules of general application, or

•

whether there was an application of rules to particular cases;

•

whether there was Parliamentary control of the decision;

•

whether there was public notification of the making of the decision;

•

whether there was public consultation;

•

whether there were broad policy considerations imposed;

•

whether the regulations (or other instrument) could be varied;

•

whether there was power of executive variation or control;

•

whether there was provision for merits review; and

•

whether there was binding effect.

164C. The case law makes it clear that not one of these factors will determine whether the decision is of an administrative or legislative character. Rather, it is necessary to consider the decision in light of all these factors. Legislative and administrative decisions can also be broadly distinguished between legislative decisions which determine the content of the law and administrative decisions which apply the law in particular cases (Roche Products Pty Limited v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451 per Branson J).

164D. Applying these factors to the instruments made under new section 18D, it is apparent that none of these instruments determine the content of the law. Notably, these instruments deal with the vesting, delegating or directing of powers otherwise vested in the minister and other persons under applied territory laws. In this respect, the instruments are of an administrative character, dealing with the application or carrying out of these powers, and do not determine or alter the content of these delegated, vested or otherwise directed powers.

164E. Furthermore, there is no public consultation required for making these instruments, nor is there any requirement to notify the public when the instrument is made. The policy considerations imposed are narrow, being confined to the administration of these applied laws, and do not otherwise generally affect the public.

164F. In any case, an instrument of delegation, including any directions to the delegate, as well as an instrument that is a direction to a delegate are classes of instruments that are not legislative instruments for the purposes of the Legislation Act: see Legislation (Exemptions and Other Matters) Regulation 2015 (the Regulation), items 1 and 2 of the table in subsection 6(1). The explanatory statement to the Regulation explains that delegations, including directions to the delegate, 'are administrative in character, as they facilitate the carrying out of powers and functions but do not alter the scope or effect of those powers and functions'.

164G. Accordingly, the instruments made under new section 18D will be instruments of an administrative character, rather than a legislative character. The statement in new subsection 18D(13), that the relevant instruments are not legislative instruments, are declarations of the law and do not provide an exemption from the Legislation Act. However, because the legislative versus administrative character test is complex, the declaratory statement is intended to assist readers of the Bill to understand that the instruments are not legislative instruments.

Schedule 1, Part 2, Item 81, At the end of Part VII

After paragraph 204 on page 58, insert the following paragraphs:

204A. The provisions of new section 60AA complement the amendments to the NI Act which allow state or territory laws to be applied in Norfolk Island. The provisions to permit the courts of a prescribed state or territory to have jurisdiction in relation to Norfolk Island would only be utilised if the Australian Government entered into an agreement with a state or territory government for the delivery of state-type services and it was considered appropriate for the courts of that jurisdiction to also operate in Norfolk Island. Where a state or territory government was delivering most or all state-type services in Norfolk Island under the laws of that state or territory, it may be appropriate for the courts of that state or territory to adjudicate on matters arising under those laws.

204B. In light of the present circumstances regarding the provision of state-type services in Norfolk Island, it is considered necessary and appropriate to provide that a state or territory (other than Norfolk Island) may be prescribed by the regulations (the 'prescribed State or Territory') for the purposes of new subsection 60AA of the NI Act. Prescribing these matters in regulations will allow these arrangements to be implemented in a timely manner if agreement is achieved between the relevant state or territory and the Government. If provision for these matters were to be included in primary legislation there is risk of a delay in implementing state-type arrangements which would have an adverse effect on the provision of state-type services to the community in Norfolk Island.

204C. Further, any regulations prescribing these matters are disallowable by a single House of Parliament acting alone, and are subject to the usual parliamentary scrutiny, including the Senate Scrutiny of Delegated Legislation Committee. As legislative instruments, section 17 of the Legislation Act requires that the instrument-maker be satisfied that appropriate consultation has occurred. For instance, should a decision be made in the future to transfer the jurisdiction of the Norfolk Island courts to the courts of another Australian state and territory, then there would be consultation with all relevant parties to inform development of a comprehensive transition plan, with justice system administrators being a key part of that process.

Schedule 1, Part 3, Item 112, Section 60C

After paragraph 244 on page 65, insert the following paragraphs:

244A. New section 60C is modelled on 2018 amendments to the NI Act, contained in the Investigation and Prosecution Measures Act 2018, which similarly authorise the Supreme Court of Norfolk Island to hear criminal trials outside Norfolk Island in its criminal jurisdiction if the court is satisfied that the interests of justice require it.

In this respect, new section 60C also reflects equivalent legislative provisions which operate with respect to the Indian Ocean Territories, where the courts of Western Australia have jurisdiction as if these external territories were part of Western Australia. Similar to the new provisions of the NI Act, provisions in the CI Act and the CKI Act provide that the Supreme Court of Western Australia may, when exercising its criminal jurisdiction with respect to these external territories, conduct criminal trials in Western Australia if the court is satisfied that the interests of justice require it.

244B. If these provisions were ever utilised in the future, they would not substantially change the manner in which the courts presently exercise their criminal jurisdiction in Norfolk Island or limit access to justice in Norfolk Island for accused persons. As is presently the case, serious criminal trials would only take place outside Norfolk Island in circumstances where the interests of justice require it, for instance where there are concerns about the ability to empanel an impartial local jury. Many of the existing services of the Norfolk Island courts are already delivered remotely by judicial officers sitting on the mainland and it is expected that these arrangements would continue.

244C. Furthermore, courts serving remote communities, like Norfolk Island, adopt a range of practices to ensure appropriate access to justice, including circuit visits and the use of technology such as telephone and video conferencing. In practice, if these provisions were ever utilised in the future, the experience of defendants and practitioners would be very similar to the present administration of the Norfolk Island courts. Legal aid would continue to be available. Similarly, consistent with present arrangements, an accused required to be remanded for significant periods would be transferred to the mainland. This is because Norfolk Island has very limited remand facilities and this would not change under any future criminal justice arrangements.

244D. It is also appropriate that judicial officers have significant discretion when considering whether the hearing of a criminal trial in a prescribed state or territory, rather than Norfolk Island, is in the interests of justice. The judiciary is best placed to consider these factors on a case by case basis and case law indicates that these factors will include the court considering any potential hardship on the accused, including potential reduced access to witnesses or evidence. Under new section 60C of the NI Act, the accused can make submissions to the court on whether a trial should be heard in a prescribed state or territory, rather than Norfolk Island, including making submissions on access to legal representation, evidence and trial support in their specific circumstances. It is impractical and restrictive to anticipate the factors that a court may legitimately consider when determining this matter in practice, on a case by case basis. Accordingly, if further provision for these matters were to be expressly included in primary legislation there is the risk that such factors may, in restricting judicial discretion, lead to inadvertent or perverse outcomes and may actually work against the interests of justice.

Schedule 3, Part 3, Item 60, After subsection 6(5)

After paragraph 483 on page 106, insert the following paragraphs:

483A. The amendments made to the Privacy Act by the Bill will clarify its application with respect to the very small category of public entities established under applied laws in the external territories. In this context, the minister's power to exempt any of these bodies from the definition of 'agency' is expected to be rarely used.

483B. In this context, these amendments also ensure that these public entities and officials are subject to the operation of appropriate privacy legislation but recognise that in certain circumstances, it may be more appropriate for the relevant entity or official to be subject to the privacy law requirements of the applied state or territory law instead of the Privacy Act. This is consistent with Australian Government policy that public bodies in the external territories, such as local government bodies, which are established and regulated by an applied state or territory law should be subject to the same regulatory environment as equivalent bodies in the relevant state or territory. These arrangements are important for ensuring that with respect to any state-type service delivery arrangements agreed by the Commonwealth with a state or territory, that the relevant state or territory official may administer these applied laws consistently with the operation of these laws in their home jurisdiction.

483C. The applied laws regimes which apply in the external territories are dynamic and subject to change, because laws apply in the external territories as they are in force from time to time in their original jurisdiction. The administration of applied laws is dependent on state-type service delivery arrangements entered into with state or territory governments which are also subject to change over time. Accordingly, the use of delegated legislation to exempt bodies established and regulated by these applied laws is appropriate in this context as it allows these arrangements to be adjusted relatively quickly as circumstances change. If provision for these matters were to be included in primary legislation there is the risk that such exemptions may quickly become redundant or inappropriate as circumstances change.

483D. Further, any legislative instrument made by the minister pursuant to proposed subsection 6(5A) of the Privacy Act is disallowable by a single House of Parliament acting alone, and subject to the usual parliamentary scrutiny, including the Senate Scrutiny of Delegated Legislation Committee. The minister will be obliged in any explanatory statement to justify the making of the instrument, including any reasoning that the relevant entity will be subject to an applied state or territory law which provides equivalent, or substantially similar, requirements regarding the use of personal information as the Privacy Act, as well as recording any relevant consultation undertaken. In making this assessment, the minister would consult relevant stakeholders, including the Office of the Australian Information Commissioner.