BILLS DIGEST NO. 98, 2015–16              15 March 2016

Law and Justice Legislation Amendment (Northern Territory Local Court) Bill 2016

Margaret Harrison-Smith
Law and Bills Digest Section 

Date introduced: 3 March 2016

House:  House of Representatives

Portfolio: Attorney-General

Commencement: Sections 1–3 commence on Royal Assent. Schedule 1 Part 1 commences at the same time as section 4 of the Local Court Act 2015 (NT). Schedule 1 Part 2 commences immediately after the commencement of Schedule 1 Part 2 of the Norfolk Island Legislation Amendment Act 2015.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at March 2016.

Purpose of the Bill

The purpose of the Law and Justice Legislation Amendment (Northern Territory Local Court) Bill 2016 is to ensure that functions conferred on judicial officers of Northern Territory courts by a number of Commonwealth Acts will not unintentionally be expanded or contracted as a result of the amalgamation of the Northern Territory Local Court and Court of Summary Jurisdiction into one court, the Local Court of the Northern Territory (Northern Territory Local Court) by the Local Court Act 2015 (NT).[1]

To avert this unintended consequence, the Bill proposes minor, technical and uncontroversial amendments to the Acts Interpretation Act 1901[2] and to a number of other Commonwealth enactments. The Bill also seeks to ensure that, where applicable, Commonwealth Acts will continue to extend summary jurisdiction to the Northern Territory Local Court.

Structure of the Bill

The Bill comprises one schedule, Schedule 1.

Schedule 1 contains two parts.

Schedule 1 Part 1 (Main amendments) proposes consequential amendments to the Acts Interpretation Act to ensure:

•       references in Commonwealth legislation to magistrate would include references to Northern Territory Local Court judges

•       where appropriate, references to judge in Commonwealth legislation would not include Northern Territory  Local Court judges and

•       references in Commonwealth legislation to court of summary jurisdiction would continue to apply to the Northern Territory Local Court.

Schedule 1 Part 1 also proposes amendments to Commonwealth enactments that displace Acts Interpretation Act definitions by including their own definitions of magistrate, judge and court of summary jurisdiction, to take account of the establishment of the Northern Territory Local Court.

Schedule 1 Part 2 (Other amendments) makes several amendments to provisions of the Extradition Act 1988[3] also amended in Schedule 1 Part 1. These further amendments are necessary because the Local Court Act (and hence Schedule 1 Part 1) is expected to commence before the relevant part of the Norfolk Island Legislation Amendment Act 2015.[4] While the amendments in Schedule 1 Part 1 are necessary as interim measures, once the Norfolk Island Legislation Amendment Act commences the references to Norfolk Island in the Extradition Act would no longer be necessary.

Background

A range of Commonwealth legislation confers jurisdiction and functions on Northern Territory courts and judges. For this reason, as noted by the Minister for Resources, Energy and Northern Australia, Josh Frydenberg, in his second reading speech for the Bill:

This Bill is important in a variety of contexts, including in relation to criminal law matters where functions performed by Northern Territory Local Court magistrates are depended upon for the purposes of Commonwealth criminal matters, for example the issuing of warrants.[5]

Prior to the amalgamation of the Northern Territory Local Court and Court of Summary Jurisdiction by the Local Court Act, the judicial officers of those courts were referred to as ‘magistrates’. However, under the Local Court Act, they will now be referred to as ‘judges’.

As a result of the amalgamation of these two courts, and the change in title of the judicial officers of the newly amalgamated Northern Territory Local Court, unanticipated consequences may arise under Commonwealth legislation conferring power and jurisdiction on Northern Territory courts. As noted by the Minister:

In some instances, this will mean that Northern Territory Local Court judges will have expanded jurisdiction. In other instances, Commonwealth legislation will no longer apply to Local Court judges, including provisions that confer jurisdiction on magistrates. Finally, despite the Northern Territory Local Court being a court of summary jurisdiction, some Commonwealth acts may no longer extend this jurisdiction to the Local Court.[6]

Committee consideration

Senate Standing Committee for the Selection of Bills

At the time of the preparation of this Bills Digest, the Committee had deferred consideration of the Bill until its next meeting.[7]

Senate Standing Committee for the Scrutiny of Bills

At the time of the preparation of this Bills Digest, the Senate Standing Committee for the Scrutiny of Bills had not commented on the Bill.

Policy position of non-government parties/independents

At the time of the preparation of this Bills Digest neither non-government parties nor independents had commented on the Bill.

Position of major interest groups

At the time of the preparation of this Bills Digest there were no comments on the Bill from major interest groups.

Financial implications

The Explanatory Memorandum states that there are no financial implications arising from implementation of the amendments in the Bill.[8]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)[9], the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[10]

Parliamentary Joint Committee on Human Rights

At the time of the preparation of this Bills Digest the Committee had not released its report on the Bill.

Key issues and provisions

The Bill is an omnibus Bill, proposing minor though important amendments to a number of Commonwealth Acts to ensure that functions bestowed under those Acts on Northern Territory courts and judicial officers are not unintentionally expanded or contracted as a result of the Northern Territory Local Court Act.

Schedule 1, Part 1—Main Provisions

ACT Self-Government (Consequential Provisions) Regulations

Item 1 repeals the heading relating to the Extradition Act 1988 in Schedule 1 of the ACT Self-Government (Consequential Provisions) Regulations.[11]

Item 2 repeals modifications made to the Extradition Act by Schedule 1 of these Regulations. These modifications are to the definition of magistrate in section 5 of the Extradition Act, and to paragraph 46(1)(b), which provides for arrangements to be made with the states and territories to enable magistrates to perform particular functions under the Extradition Act 1988.

The modifications made by these regulations extend the application of paragraph 46(1)(b) to arrangements between the Chief Minister of the ACT and the Administrator of the Northern Territory or Norfolk Island for the performance by Territory magistrates of magisterial functions under the Extradition Act. Inclusion of these modifications in the regulations will no longer be necessary as items 19 and 20 propose their inclusion in the Extradition Act itself.

Acts Interpretation Act 1901

Items 3, 4 and 5 make minor amendments to definitions in section 2B of this Act necessary to refer to the proposed amendments in items 6 and 7.

To ensure that undefined references in Commonwealth legislation to the term judge[12] do not extend to Northern Territory Local Court judges, proposed section 16BA provides that a reference to a judge (general or otherwise) in Commonwealth legislation does not include a reference to a Judge or an acting Judge of the Local Court of the Northern Territory (item 6).

Sub-item 34(1) provides that proposed section 16BA would apply to Acts enacted before, on or after the commencement of Schedule 1 Part 1.

To ensure that there is no diminution in their functions under Commonwealth legislation, proposed subsection 16C(3) provides that a reference to a Stipendiary Magistrate or Magistrate includes a reference to a Judge or acting Judge of the Northern Territory Local Court (item 7).

Sub-item 34(2) provides that proposed subsection 16C(3) would apply to Acts enacted before, on or after the commencement of Schedule 1 Part 1.

Bankruptcy Act 1966

To ensure that there is no diminution in their functions:

•       proposed paragraph (b) of the definition of magistrate in subsection 5(1) of the Bankruptcy Act 1966[13] extends the definition of magistrate to a person who holds office as a Judge of the Northern Territory Local Court, with respect to whom an arrangement under subsection 17B(2) applies (item 8)[14]

•       item 9 further amends the definition of magistrate in subsection 5(1) by omitting the words ‘other than the Northern Territory’ as this distinction is no longer necessary and

•       item 11 repeals and replaces the current heading to subsection 17B(2), and omit the words ‘as Magistrates of the Northern Territory’, replacing them with the words ‘Judge of the Local Court’.

Customs Act 1901

To ensure that there is no diminution in their functions:

•       item 12 amends the definition of Division 1B Magistrate in subsection 4(1) of the Customs Act[15] by replacing the reference to a ‘Magistrate of the Northern Territory’  with a reference to a ‘Judge of the Local Court of the Northern Territory’

•       item 13 omits the words ‘hold office as Magistrate in that Territory’ from paragraph 11(2)(b) and substitutes ‘hold office as Judges of the Local Court of that Territory’[16]

•       item 14 would repeal the definition of magistrate in subsection 183UA(1) of the Act, with the result that the definition of magistrate in the Acts Interpretation Act will apply to the Customs Act and

•       proposed subsection 219ZL(3A) extends the protections and immunities arising from the exercise of their judicial functions to a Judge or acting Judge of the Northern Territory Local Court performing functions under the Customs Act (item 15).[17]

Environment Protection and Biodiversity Conservation Act 1999

Item 16 extends the definition of magistrate in section 528 of this Act (the definitions provision) to include a Judge or acting Judge of the Northern Territory Local Court. [18]

Excise Act 1901

Item 17 extends the definition of magistrate in section 107AA of this Act to include a Judge or acting Judge of the Northern Territory Local Court. [19]

Export Control Act 1982

Item 18 extends the definition of magistrate in section 3 of this Act to include a Judge or acting Judge of the Northern Territory Local Court. [20]

Extradition Act 1988

Item 19 repeals the definition of magistrate in section 5 of this Act, and replaces it with a new definition comprising proposed paragraphs (a), (b) and (c). The amendment would ensure that a Northern Territory Local Court Judge may continue to exercise functions formerly exercisable by a Northern Territory magistrate under the Extradition Act.

The Explanatory Memorandum notes that the proposed amended definition would also include amendments to the definition of magistrate which are to be removed from the ACT Self-Government (Consequential Provisions) Regulations.[21]

Item 20 repeals paragraph 46(1)(b) of this Act and replaces it with proposed paragraphs 46(1)(b) and (c). This proposed amendment follows the proposed repeal of modifications to the Extradition Act currently located in the ACT Self-Government (Consequential Provisions) Regulations (see items 1 and 2 above).

Proposed paragraphs 46(1)(c) would ensure that the Commonwealth can still make arrangements with the Northern Territory in relation to ‘magistrates of the Northern Territory, who would be known as Judges following commencement of the Local Court Act 2015 (NT)’.[22]

Fair Work Act 2009

Item 21 would extend the definition of magistrates court in the Dictionary in section 12 of this Act to ‘the Local Court of the Northern Territory’.[23] This would ensure that small claim summary proceedings can continue to be brought in courts of summary jurisdiction in the Northern Territory under section 548 of the Fair Work Act which enables plaintiffs to elect for small claims procedures (item 21).

High Court of Australia Act 1979

Item 22 amends the qualification requirements for appointment as a Justice of the High Court of Australia set out in paragraph 7(a) of this Act so as to exclude judges or acting judges of the Northern Territory Local Court.[24] This is because despite their title, the role of a judge or an acting judge of that Court is essentially that of a magistrate in other jurisdictions. This is said in the Explanatory Memorandum to be consistent with the application of the definition to state judicial officers.[25]

Inspector-General of Intelligence and Security Act 1986

Item 23 amends the definition of Judge in subsection 3(1) of this Act[26] to ensure that Northern Territory Local Court judges, ‘whose role is essentially that of magistrates in other jurisdictions’, do not fall within the scope of this definition.[27]

International War Crimes Tribunals Act 1995

To ensure that the status quo is maintained:

•       items 24 and 25 amend the definition of magistrate in section 4 of this Act to include a Judge or acting Judge of the Northern Territory Local Court.[28] This would ensure that these Judges (formerly known as magistrates) can continue of exercise functions under this Act and

•       item 26 extends the reference to persons who hold office as magistrates of a state to include judges of the Northern Territory Local Court.[29]

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012

Item 27 amends paragraph (b) of the definition of Commonwealth or State judicial officer in section 7 of this Act to exclude a Judge or acting Judge of the Northern Territory Local Court from the definition.[30] This is said in the Explanatory Memorandum to be consistent with the application of the definition to state judicial officers.[31]

Law Enforcement Integrity Commissioner Act 2006

To ensure that they can continue to exercise functions currently undertaken by Northern Territory magistrates under this Act, item 28 amends the definition of magistrate in subsection 5(1) to include a Judge or acting Judge of the Northern Territory Local Court.[32]

Marriage Act 1961

To ensure that they can continue to exercise functions that can currently be undertaken by Northern Territory magistrates under this Act, item 29 amends the definition of magistrate in subsection 5(1) to include a Judge or acting Judge of the Northern Territory Local Court.[33]

Mutual Assistance in Criminal Matters Act 1987

To ensure that they can continue to exercise functions that can currently be undertaken by Northern Territory magistrates under this Act,[34] items 30 and 31 amend the definition of magistrate in subsection 3(1) of this Act to include a Judge or acting Judge of the Northern Territory Local Court in respect of whom an arrangement under section 39 of the Mutual Assistance in Criminal Matters Act is in force.[35]

Quarantine Act 1908

To ensure that they can continue to exercise functions that can currently be undertaken by Northern Territory magistrates under this Act, item 32 amends the definition of magistrate in subsection 5(1) of this Act to include a Judge or acting Judge of the Northern Territory Local Court.[36]

Royal Commissions Act 1902

Item 33 amends paragraph 4(6)(b) of this Act to provide that a Judge or acting Judge of the Northern Territory Local Court cannot issue a warrant under subsection 4(3) of the Act.[37] This maintains the position that currently applies to magistrates.

Application Provisions

Item 34 is discussed earlier in this Bills Digest in conjunction with items 6 and 7 of the Bill.

Arrangements—Transitional Provisions

Sub-item 35(1) relates to arrangements under paragraph 11(2)(b) of the Customs Act 1901.[38] The sub-item would ensure that arrangements made under paragraph 11(2)(b) in relation to persons holding office as Northern Territory magistrates would continue after the change in title to judge of the Local Court takes effect.

Sub-item 35(2) relates to arrangements for Australian Capital Territory Magistrates under subsection 46(1) of the Extradition Act 1988 (as modified by the ACT Self-Government (Consequential Provisions) Regulations) in force immediately before the commencement of this sub-item. This would ensure that those arrangements would remain in place after the proposed amendments to the Extradition Act 1988 provided for in item 20 of Schedule 1.

Sub-item 35(3) ensures that an arrangement made with Norfolk Island under subsection 46(1) of the Extradition Act 1988 that was in force immediately before the commencement of item 20 of Schedule 1, is not affected by amendments to the Act made by Schedule 1.

Schedule 1, Part 2—Other amendments

Extradition Act 1988

Item 36 removes the references to ‘Norfolk Island’ from the definition of magistrate in section 5 of the Extradition Act as amended by item 19 of Schedule 1 Part 1. These references would no longer be required after the commencement of Part 1 of Schedule 2 of the Norfolk Island Legislation Amendment Act, which will implement a new governance and legal framework for Norfolk Island. Item 37 makes similar amendments to paragraph 46(1)(b) of the Extradition Act, inserted by item 20 of Part 1 of Schedule 1.

Both these proposed amendments are technical in nature. They are required because Schedule 1 Part 1 is expected to commence before Schedule 1 Part 2 of the Norfolk Island Legislation Amendment Act.[39]

Item 38 ensures that arrangements entered into under subsection 46(1) in force immediately before the commencement of item 37 are not affected by the amendments made to the Extradition Act by that item.

Concluding comments

This Bill makes minor, technical and uncontroversial amendments to the Acts Interpretation Act and to a number of other Commonwealth enactments. The proposed amendments seek to ensure that the Local Court Act 2015 (NT) will have no unintended consequences for the functions of Northern Territory courts and judicial officers under those Commonwealth enactments.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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[1].              The Local Court Act is expected to commence on 1 May 2016: J Frydenberg, ‘Second reading speech: Law and Justice Legislation Amendment (Northern Territory Local Court) Bill 2016’, House of Representatives, Debates, (proof), 2 March 2016, p. 2.

[2].              Acts Interpretation Act 1901.

[3].              Extradition Act 1988.

[4].              Norfolk Island Legislation Amendment Act 2015. Part 1 of Schedule 2 of this Act will commence on 1 July 2016.

[5].              J Frydenberg, ‘Second reading speech: Law and Justice Legislation Amendment (Northern Territory Local Court) Bill 2016’, op. cit.

[6].              Ibid.

[7].              Senate Standing Committee for the Selection of Bills, Report, 3, 2016, House of Representatives, Canberra, 3 March 2015, p. 3.

[8].              Explanatory Memorandum, Law and Justice Legislation Amendment (Northern Territory Local Courts) Bill 2016, p. 2.

[9].              Human Rights (Parliamentary Scrutiny) Act 2011.

[10].              The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill.

[11].              ACT Self-Government (Consequential Provisions) Regulations.

[12].              Or to ‘a judge of a state or territory’ (or similar phrase): Explanatory Memorandum, op. cit., p. 5.

[13].              Bankruptcy Act 1966.

[14].              The purpose of section 17B of the Bankruptcy Act is to enable the Commonwealth to make arrangements with a state or the Northern Territory for the performance of functions under that Act by state or Northern Territory magistrates. As previously discussed, Northern Territory magistrates would be known as judges following the commencement of the Local Court Act 2015 (NT).

[15].              Customs Act 1901.

[16].              Paragraph 11(2)(b) of the Customs Act currently provides that the Governor-General may make arrangements with the Administrator of the Northern Territory for the performance by all or any of the persons who from time to time hold office as magistrates in that Territory of the functions of a Magistrate under Subdivision C of Division 1B of Part XII of the Act (Detention and internal search of persons suspected of internally concealing substances etc.).

[17].              Section 219ZL extends the protections and immunities arising from their court functions to judges or magistrates performing functions under the Customs Act 1901.

[18].              Environment Protection and Biodiversity Conservation Act 1999.

[19].              Excise Act 1901.

[20].              Export Control Act 1982.

[21].              See item 1 above: Explanatory Memorandum, op. cit., p.7.

[22].              Explanatory Memorandum, op. cit., p.7.

[23].              Fair Work Act 2009.

[24].              High Court of Australia Act 1979.

[25].              Explanatory Memorandum, op. cit., p. 8.

[26].              Inspector-General of Intelligence and Security Act 1986.

[27].              Explanatory Memorandum, op. cit., p. 8.

[28].              International War Crimes Tribunals Act 1995.

[29].              Section 82 of the International War Crimes Tribunal Act allows the Governor-General to make arrangements with the Governor of a state or the Administrator of the Northern Territory with respect to the administration of the Act, including for the performance by all or any of the persons who from time to time hold office as magistrates in the relevant state or the Northern Territory of the functions of a Magistrate under that Act. For example, the issue of arrest warrants under section 10.

[30].              Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012.

[31].              Explanatory Memorandum, op. cit., p. 9.

[32].              Law Enforcement Integrity Commissioner Act 2006.

[33].              Marriage Act 1961.

[34].              Mutual Assistance in Criminal Matters Act 1987.

[35].              Section 39 of the Mutual Assistance in Criminal Matters Act 1987 relates to the making of arrangements with Governors of states (which includes the Northern Territory) and the Administrator of Norfolk Island for the administration of that Act, including arrangements for the performance of the functions of a magistrate under that Act by a magistrate of that state or of Norfolk Island.

[36].              Quarantine Act 1908.

[37].              Royal Commissions Act 1902.

[38].              Paragraph 11(2)(b) of the Customs Act provides that the Governor-General may make arrangements with the Administrator of the Northern Territory for the performance by all or any of the persons who from time to time hold office as Magistrates in that Territory of the functions of a Magistrate under Subdivision C of Division 1B of Part XII of the Act (Detention and internal search of persons suspected of internally concealing substances etc.).

[39].              As set out above, Part 1 of Schedule 1 to this Bill is expected to commence on 1 May 2016. Part 2 of Schedule 1 to the Norfolk Island Legislation Amendment Act (and therefore Part 2 of Schedule 2 to the current Bill) will commence on 1 July 2016.