Royal commission into matters relating to norfolk island

Other recommendations relating to communications

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3.Other recommendations relating to communications

Apart from the more urgently needed improvements associated with the air services, a number of other communication aspects deserve comment.

  1. Seaport possibilities

If plans for upgrading the airport are proceeded with, the need for a harbour facility, capable of taking large freight-carrying vessels, diminishes even further. With larger planes a d perhaps more frequent services ferrying larger quantities of eight into the Island, there will tend to be less use made of sea freighting in the future, not more. The present lightering facilities, although exacting in their demands on seafaring skills, are adequately catering for the present levels of sea freight. The physical difficulties which would be encountered in constructing a worth-while harbour at Norfolk Island would be enormous, and the cost of undertaking such construction would be prohibitive, both in absolute terms and also when weighed against a benefits received. The idea, therefore, of such a facility should be abandoned. However, in saying this, one should take care to distinguish between such a seaport on the one hand and a small boat harbour on the other hand. The Commission recommends that the latter facility receive careful investigation.
  1. Shipping services

There being not enough business to justify two shipping lines operating the Sydney-Norfolk Island run, the Commission recommends that the Government arrange for one line to be assured of the business subject to freight rates being carefully controlled.
  1. OTC services

The Commission recommends that tariffs in respect of these OTC services bear a closer relationship to the costs involved and, if practicable, those tariffs be such as to defray those costs over a reasonable time. Hidden subsidies of this nature only distort the true economics of life in the Island and prevent residents from obtaining a clear realisation of the costs involved were they obliged to undertake the task themselves.

  1. Local radio reception

It is recommended that steps be taken to examine and if possible eliminate the present interference to radio reception in the Island caused by power generators at the airport. The interference is an irritant which accords ill with the concept of a quiet peaceful tourist resort.
  1. Delivery of mail and newspapers

This will improve with an improved air service, and it should then be possible to arrange for speedy, regular and adequate supplies of mainland newspapers to reach the Island. To many, the relative absence of mainland and world news may seem a blessing, but it is felt that to most people, and particularly to visitors, the isolation from information provided by the press looms somewhat as a minor deficiency in life in the Island. In any case, people should be able to exercise a choice as to whether they sever relations with the press whilst in Norfolk Island or continue to be kept up to date on happenings elsewhere.

The Commission recommends that the local government invite newsagents in the Island to enter into an arrangement which will ensure the regular supply of mainland papers to the public.

Chapter 16
‘The need for adequate law enforcement and judicial machinery’

1.Present situation

  1. The law applicable to Norfolk Island

In general (and save for qualifications referred to later) there is no separate basic civil and criminal law peculiar to Norfolk Island. The basic law operating in the Island is that which obtains in the Australian mainland Territories. Special ordinances provide for that basic structure, with appropriate amendments, to be applied in the Island.

Prior to Norfolk Island becoming a Territory of the commonwealth on 1 July 1914, the affairs of the Island had been administered by the Governor, for the time being, of the State of New South Wales and its Dependencies in accordance with the terms of an Imperial Order in council dated 18 October 1900. Pursuant to the powers vested in him by that Imperial Order, a Proclamation was issued by the Governor of the State of New South Wales on 23 December 1913 declaring all laws theretofore in force in Norfolk Island to be repealed and outlining the laws which were thenceforth to be applied in the Island. This Proclamation took effect on 24 December 1913.

Section 4 of the Norfolk Island Act 1913, by which the Island was accepted as a Territory of the Commonwealth, provided for all laws, rules and regulations in force in the Island at the commencement of that Act to continue in force, subject to alteration or repeal by ordinances made pursuant to the Act. Section 8 of the Act conferred on the Governor-General the power to make ordinances for the peace, order and good government of the Island. A similar provision is contained in the Norfolk Island Act 1957, which repealed and replaced the 1913 Act.

The 1957 Act has been amended by the Norfolk Island Act 1963, the Statute Law Revision (Decimal currency) Act 1966—1967, the Judges’ Remuneration Act 1969, and the Statute Law Revision Act 1973—1974.

The law applicable to Norfolk Island may, therefore, be said to consist of:

  1. The laws proclaimed by the Governor of the State of New South Wales which were in force on 23 December 1913, and are still in force;

  2. Commonwealth Acts expressed to extend to Norfolk Island and the Statutory Rules made there under;

  3. Ordinances made by the Governor—General over the period 1 July 1914 to the present, pursuant to s.8 of the Norfolk Island Act 1913, as amended, and s.15 of the Norfolk Island Act 1957, as amended, and still in force;

  4. regulations, rules, by—laws, proclamations, declarations and notices made or issued under the laws and ordinances referred to in (i) and (iii).
  1. The Courts

    1. Supreme Court

The Supreme Court is the highest judicial authority in Norfolk Island and is a superior court of record with original, civil and criminal jurisdiction. The juris­diction of this Court is exercised by one judge sitting in Court or, in the cases provided by or under ordinance, sitting in chambers.

The Supreme Court may also sit in the States of New South Wales and Victoria or in the Australian capital Territory to hear and determine a matter otherwise than in the exercise of its criminal jurisdiction, if the Senior judge is satisfied that the hearing of the matter outside Norfolk Island is not contrary to the interests of justice.

The High court of Australia has jurisdiction, with such exceptions and subject to such conditions as are provided by ordinance, to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Court of Norfolk Island.

Two judges are at present appointed to the Supreme Court of Norfolk Island.

The costs of the Supreme Court are presently borne by the Norfolk Island Administration, excluding only the basic salaries of the judges and their staff. Normally, the Court sits twice a year at approximately six-monthly intervals.

    1. Court of Petty Sessions

The Court of Petty Sessions Ordinance 1960-1966 provides that the jurisdiction of this Court, which is made a court of record by the Ordinance, may be exercised by the chief Magistrate or by any three magistrates other than the Chief Magistrate. The criminal jurisdiction of the court is set out in s.36 which reads as follows:

36. (1) Where, by law in force in the Territory —

  1. An offence is punishable on summary conviction;

  2. a person is made liable to a penalty or punishment or to pay a sum of money for any offence, act or omission and no other provision is made for the trial of the person committing the offence; or

  3. Jurisdiction is conferred upon —

    1. A Court of Petty Sessions, a court of summary jurisdiction, a Children’s Court or a court constituted by a Magistrate, a Police Magistrate, a Stipendiary Magistrate, a Special Magistrate or a Justice or Justices; or

    2. A Magistrate, a Police Magistrate, a Stipendiary Magistrate, a Special Magistrate or a Justice or Justices,

The Court has jurisdiction to hear and determine in a summary manner under the provisions of this Ordinance all matters arising under that law.

      1. Without limiting the generality of the provisions of the last preceding sub—section, the jurisdiction of the Court includes jurisdiction

        1. To deal with and impose punishments in respect of contempt of the Court;

        2. To impose punishments and penalties as provided by any law; and
        3. To award costs in all matters brought before the Court, including matters dismissed for want of jurisdiction.

This Court can also hear and determine civil claims in respect of a sum or matter at issue that does not exceed, or the value of which does not exceed, $400 (s. l07). The Norfolk Island Council, at its August 1975 meeting, endorsed a proposed amendment to the Court of Petty Sessions Ordinance to raise the ceiling of the Court’s jurisdiction from $400 to $2000.

An obstacle in the way of early implementation of the proposed amendment is that the rules and regulations governing issues before the Norfolk Island Court of Petty Sessions are those, which apply to issues before the court of Petty Sessions of the Australian Capital Territory and the ceiling in relation to those issues in the latter court is only $1000. This situation arises out of the provision in s.248 (2) of the Norfolk Island Court of Petty Sessions Ordinance that the rules or regulations made under the Court of Petty Sessions Ordinance 1930—1958 of the Australian Capital Territory in relation to civil matters shall, so far as applicable and mutatis mutandis, be deemed to be rules or regulations made under the Norfolk Island Ordinance.

There is an appeal as of right to the Supreme Court from the Court of Petty Sessions (s. 229) in criminal proceedings where a person has been fined not less than $10 or sentenced to imprisonment for any term and, in civil proceedings, in respect of a sum or matter at issue amounting to at least $100. There is also an appeal by leave of the Supreme Court where the Court is of the opinion that the granting of leave to appeal would be in the public interest (s. 230).

The present arrangements for servicing the court are that the five magistrates who are appointed under the Australian Capital Territory Court of Petty Sessions Ordinance have also been appointed as, magistrates under the Norfolk Island Ordinance. Of these, the chief Magistrate of the Australian Capital Territory Court has been appointed Chief Magistrate for Norfolk Island.

In addition, six persons resident in the Island have been appointed as magistrates. The intention is that any three of these local appointees will constitute the court for urgent or routine matters. The Chief Magistrate, travels to Norfolk Island as required, but if he is of unavailable in a situation which warrants his attendance, of the Administrator is empowered under the Ordinance to appoint another magistrate to exercise all the powers and functions of the Chief Magistrate. It is envisaged that such appointments will be from the pool of Australian Capital Territory magistrates. These arrangements are dictated to some extent by the increasing complexity of Court hearings.

A serious deficiency exists with respect to the power of magistrates in the Island to grant bail. Although Supreme Court judges can grant bail, Magistrates cannot

There is a law library for the use of the judges and magistrates but it needs more reference material to make it adequate.

  1. The criminal law

The basic criminal law is the New South Wales Crimes Act, 1900, as existing in 1913. The Criminal Law Ordinances have made few changes of substance to the original Act. Most changes have been in nomenclature to cover officials in the Norfolk Island administration and courts.

A variety of petty offences is contained in the Police offences Ordinance 1933—1964. Section 35(1) of this Ordinance makes provision for the removal of non-Norfolk Islanders from the Territory, in addition to any other penalty, for ‘rogues and vagabonds’ and ‘incorrigible rogues’. Section 35(2) allows the Administrator to forbid the re-entry of such persons after completing any sentence.

Section 11 of the Child Welfare Ordinance 1937-1964 requires the Administrator to be advised if a child under 18 years of age is sentenced to imprisonment or an institution. With the approval of the Minister, the Administrator may order the removal of the offender from the Territory. Under this system, the Court may ‘also recommend an institution of a particular type.

Both the Supreme court and the Court of Petty Sessions can, coder certain circumstances, commit a child to an institution. Under an agreement between the Commonwealth and New South Wales, children committed to an institution by the Courts of Norfolk Island can be removed and detained in institutions in New South Wales.

The Child Welfare Agreement Ordinance 1941—1958 is a ratification of an agreement between the Commonwealth and the New South Wales Governments for the custody in New South Wales institutions of juvenile offenders from Norfolk Island. The Commonwealth Government is required to contribute to the cost of detention and, whilst in custody, the offender is to be treated in a similar manner as if he had been committed to an institution by an appropriate court in New South Wales.

Adults may be transferred to a State prison under the Removal of Prisoners (Territories) Act 1923-1973 of the Commonwealth parliament. Provision is made, however, under s. 8(l) of the Administration Ordinance 1936-1964 for the establishment of prisons, gaols and houses of correction and for the appointment of appropriate custodial and correctional staff in the Island. At present there are in the Island prison cells of antiquated construction which can be used, but one would be reluctant to order that prisoners be confined overnight in them. Further there are no facilities available for persons appointed to guard prisoners. Because of the unsuitability of the cells and the absence of other correctional facilities it is usual practice for the Administrator in pursuance of his powers under the Removal of Prisoners (Territories) Act 1923-1973 to recommend to the Governor-General that a person sentenced in Norfolk Island to a term of imprisonment be transferred to New South Wales to serve his sentence. As an alternative to this, a recent amendment to the Administration Ordinance now provides that a building or any other place in the Island may be declared a gaol, prison or house of detention.

  1. Criminal law administration

  1. Parole

There is no parole legislation in force in Norfolk Island and there is no power under existing legislation for a Norfolk Island Court to fix a non-parole period in respect of a sentence of imprisonment.

  1. Release on licence

Prisoners removed from Norfolk Island under the Removal of Prisoners (Territories) Act 1923-1973 may be released on licence granted by the Governor-General under s. 8A of that Act. However, it should be noted that the Act requires the Governor-General, in exercising this powers to act on the advice of the Minister of State for external Territories. Presumably, following the closure of the Department for External Territories, the Minister administering the Island should issue the advice. The Act should be amended to remove any doubt.

  1. Revision of the criminal law

On 5 June 1975, the Attorney-General tabled in Parliament the Report of the Working Party on Territorial Criminal Law. This Report contains draft proposals for the revision of the substantive criminal law of the Australian capital Territory. The principles enunciated in the Report could, however, also form the basis for reform of the laws of other Territories.

The substantive criminal law applicable in Norfolk Island, like that of the Australian Capital Territory, comprises the laws of New South Wales which were in force some sixty years ago, together with the amendments subsequently made by ordinance. It would appear, therefore, that there is a need for reform of the Island law to much the same extent as there is in the Australian Capital Territory. Rape, for instance, is still a capital offence in Norfolk Island, and fines for traffic offences, having remained unchanged for decades, are now ludicrously small.

  1. Police Force

The present Norfolk Island Police Force consists of three full-time officers - a sergeant and two constables - seconded from mainland Commonwealth Police Forces. In addition, Special constables are appointed from local people as the need arises. The police Station is located at Burnt Pine in temporary quarters. It is planned to build a permanent station in the same area.

Over the years there has evolved a situation in the Islandin which the police fulfill a variety of roles in addition to their police work. These include Gaoler, Inspector of Brands and Marks, Stock Inspector, Pound Keeper, Slaughtering Inspector, Registrar of Bulls, Bailiff, Sheriff, Truant and School Reporting Officer, Inspector of Weights and Registrar of Dogs. All of these duties are time consuming, none is related to law enforcement, and some erode police-public relations.

In addition to the above extracurricular tasks, the Police Force has in the past been caught up with rendering assistance in court proceedings in a variety of roles often to the point of the ridiculous. On occasions, the Police Sergeant has had to act as Prosecutor, Court officer opening and closing the Court, finder and caller of witnesses, conveyor of exhibits, and, generally, perform as a Court factotum. In addition, he has had to give evidence, including evidence in contested cases, in which he was also Prosecutor. Such a state of affairs is highly unsatisfactory.

The substantial deficiences in correctional facilities seriously hamper community policing. There is really no satis­factory institution in the Island for the detention of prisoners for significant periods. Such sentences must be served in New South Wales prisons and this gives the impression that the offenders are, in fact, ‘deported’. Not unnaturally, this gives rise to genuine concern in the Island amongst persons affected.

Two factors seriously affect police work in Norfolk Island, viz, first the close—knit nature of the essentially small and interrelated community in which a marked reluctance exists toward accepting the attitudes toward crime and punishment of a larger and more diverse society; second, the lack of training facilities for the special constables assisting the permanent force. Both factors mitigate against efficient police work in respect of petty thieving, drug abuse (including the use of alcohol), willful damage to property and traffic offences. It is true to say, however, that there is a marked absence of serious crime in the Island.

  1. Copyright and patents

The Patents Act 1952—1969, the Patents Trade Marks, Designs and Copyright Act 1939-1953 and the Copyright Act 1968 all extend to Norfolk Island. Their application to the Island is necessary to enable Australia to fulfill its international obligations under the various Conventions relating to their subject-matters.

Rights granted in Australia under these Acts extend to Norfolk Island. Since no formal steps are necessary to obtain protection of copyright under the Copyright Act, there is no need for any consideration of separate administrative machinery in Norfolk Island in that respect. No problems arising under legislation covering these forms of property (i.e. copyrights, trade marks, designs and patents) in relation to Norfolk Island were brought to the attention of the Commission.

  1. Commercial law

No decision has yet been reached on the question of applying the proposed National Companies legislation to Norfolk Island. The Corporations and Securities Bill, which is, in a sense, comparable legislation, is not presently drafted so as to apply to Norfolk Island.
  1. Family law

The Family Law Act 1975 extends to Norfolk Island (s. 7). The jurisdiction of the Supreme Court of the Island in matrimonial cases has been superseded by the Family Court of Australia as a result of a Proclamation by the Governor—General made under s.40 of the Act on 27 May 1976. The Proclamation was published in the Australian Government Gazette of the same date and became operative as from 1 June 1976. It follows that action must now be taken by the Commonwealth Government to make provision for the hearing of proceedings brought by residents of Norfolk Island under the Act. The following three courses appear to be open to the Government:

  1. Appoint judges of the Supreme Court of Norfolk Island to be judges of the Family Court, assuming that appropriate amendments to the relevant Acts are made;

  2. Arrange for Family Court judges to visit the Island as needed;

  3. Arrange for the parties to proceedings under the Act to be brought to the mainland at Government expense for their cases to be heard by a mainland Family court.

It is pointed out that at the present time regulations are being prepared to enable undefended applications for dissolution of marriage where no children under the age of eighteen years are involved to be heard and determined in the absence of the parties and their legal representatives. It is also to be noted that the Court of Petty Sessions of Norfolk Island is invested with federal jurisdiction to hear and determine matrimonial causes not being proceedings for principal relief (s.39 (6)).
  1. The Law Reform Commission

The Law Reform Commission Act 1973 extends to Norfolk Island and hence it would be in order for the Law Reform Commission, with its expert staff and facilities, to undertake any review of the basic structure of law in the Island, should such a review be deemed desirable. For the sake of tidiness alone, a review would have advantages.
  1. The Australian Legal Aid Office

The Australian Legal Aid Office was established in July 1973 by administrative act to ensure that legal aid is readily and equally available to all persons in need — particularly disadvantaged persons — throughout Australia. A Bill (The Legal Aid Bill 1975) to establish the Australian Legal Aid Office as a statutory body was passed by the House of Representatives but was not debated by the Senate before the dissolution of Parliament on 11 November 1975. The Attorney-General in the new Parliament announced on 15 January 1976 that he had begun a review of Legal Aid in Australia and had in mind the establishment of Legal Commissions in each State and mainland Territory, such Commissions to operate as independent bodies. In his announcement the Attorney-General made no reference to the provision of legal aid for Norfolk Island or other external Territories, but as the Island is part of Australia such aid should be provided.

  1. The preparation of legislation

The Attorney-General’s Department took over the drafting of Regulations and Ordinances, including Norfolk Island Ordinances, from the Office of Parliamentary Counsel in 1973.

This step was designed to provide a means for attracting government lawyers to the work of legislative drafting. The move has been successful to a large extent, but, at the same time, the work of drafting Acts. Regulations and Ordinances has increased very substantially and the Legislative Drafting Division has found it very difficult to keep pace with all the requests made to it, including those relating to drafts for Norfolk Island Ordinances. Steps are being taken to improve this performance.

  1. The Weir Report

In 1974, Mr Harold G. Weir, Assistant Director (Training and Information) of the Australian Institute of Criminology, was asked by the then Minister for the Capital Territory to report on the possibility of developing a locally based correctional service in Norfolk Island. His Report was delivered on 5 December 974 and contained many helpful recommendations. It is not proposed to examine the Report in detail, as it is already receiving attention by the Norfolk Island Council and the administering department. Certain aspects of the subject-matter of the Report, however, were referred to in evidence and it seems proper to comment on them.

First, there is a clear need for some form of punishment cum deprivation-of-liberty system of an appropriate standard to be established in the Island to overcome the ‘deportation’ problem at present existing. Such a system should be fused with a community-based correctional service. One could spend a deal of time debating the types and merits of community-based correctional services, but it does appear that such a concept is desirable having regard to the unique circumstances existing in the Island. The Commission has been most impressed with the implementation of these forms of punishment services as established in New Zealand and scope exists for a suitably modified and inexpensive version to be introduced in the Island.

Second, there is the question of cost and the aspect of priorities. The cost involved in establishing a suitable prison with its necessary facilities, equipment and staff in Norfolk Island for long-term offenders is not justified while the New South Wales facilities are available. Similarly, to establish the full structure envisaged by the Weir Report would appear, at this stage of the Island’s development, to be an equally unjustifiable expense. One can readily think of more urgently needed facilities for the Island to which the Island’s admittedly limited funds could be directed to greater advantage; e.g. an efficient garbage disposal plant, improved wharfage facilities, better roading, fencing and sewerage, or more intensive youth development work.

  1. Some Australian costs associated with law enforcement in Norfolk Island

For illustrative purposes, the costs for 1974-75 were:

Provision of Judges $7,500

Assistance from Deputy Crown Solicitor’s

Office $1,600

Provision of Magistrates $1,700

Legislative drafting $17,250

Advisings $1,700

The Police Force in the Island is responsible to, and funded by, the Norfolk Island Administration. Both costs and responsibility should lie with the Commonwealth Government which bears the same burden in respect of other Commonwealth Territories. There is no Justification for distinguishing Norfolk Island in this regard.

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