Arts, Territories and Environment Legislation Amendment Act 1989

No. 60 of 1989

An Act to amend the law relating to the arts, Territories and the environment, and for related purposes

[Assented to 19 June 1989]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Arts, Territories and Environment Legislation Amendment Act 1989.

Commencement

2. (1) Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent.

(2) Sections 11 and 13 shall be taken to have commenced on 7 December 1988.

(3) Part 5 commences, or shall be taken to have commenced, on the commencement of section 25 of the A.C.T. Self-Government (Consequential Provisions) Act 1988.

PART 2—AMENDMENTS OF THE AUSTRALIAN FILM, TELEVISION AND RADIO SCHOOL ACT 1973

Principal Act

3. In this Part, “Principal Act” means the Australian Film, Television and Radio School Act 19731.

Constitution of Council

4. Section 8 of the Principal Act is amended:

(a) by omitting from paragraph (1) (b) “2 members” and substituting “a member”;

(b) by omitting from paragraph (1) (c) “2 students” and substituting “a student”;

(d) by omitting from paragraph (1) (e) “subject to subsection (2), 5” and substituting “3”;

(e) by omitting subsections (2) and (3).

Transitional

5. (1) Where:

(a) at the commencement of this Part, there are 2 members elected under paragraph 8 (1) (b) or (c) of the Principal Act;

(b) both members were elected at the same contested election; and

then, at that commencement, the member who received more votes continues, subject to the Principal Act, to hold office and the other member goes out of office.

(2) Where:

(a) at the commencement of this Part, there are 4 or 5 members elected under paragraph 8 (1) (e) of the Principal Act;

(b) all those members were elected at the same contested election; and

then, at that commencement, those 3 members continue, subject to the Principal Act, to hold office and the other member or members go out of office.

(3) Subject to subsections (1) and (2), where, at the commencement of this Part, the number of members elected under paragraph 8 (1) (b), (c)

or (e) of the Principal Act is higher than the number of members specified in that paragraph as amended by this Part, then, at that commencement, all the members elected under that paragraph go out of office.

(4) All the members, who immediately before the commencement of this Part, held office under paragraph 8 (1) (d) of the Principal Act continue, subject to the Principal Act, to hold office even though that paragraph as amended by this Part limits the number of members of that kind to 3.

Consequential amendments

6. The Principal Act is amended as set out in Schedule 1.

PART 3—AMENDMENTS OF THE AUSTRALIAN CAPITAL TERRITORY (SELF-GOVERNMENT) ACT 1988

Principal Act

7. In this Part, “Principal Act” means the Australian Capital Territory (Self-Government) Act 19882.

Notification of enactment

8. (1) Section 25 of the Principal Act is amended:

(a) by omitting from subsection (1) all the words after “shall” and substituting “publish in the Territory Gazette a notice of the proposed law having been passed and of the place or places where copies of the law can be purchased.”;

(b) by adding at the end the following subsections:

“(3) At the time of publication of the notice under subsection (1) of the passing of a proposed law or as soon as practicable thereafter, copies of the law shall be made available for purchase at the place, or at each of the places, specified in the notice.

“(4) Where, on the day of publication of the notice under subsection (1) of the passing of a proposed law, there are no copies of the law available for purchase at the place, or at one or more of the places, specified in the notice, the Chief Minister shall cause to be laid before the Assembly, within 15 sitting days of the Assembly after that day, a statement that copies of the law were not so available and the reason why they were not so available.

“(5) Failure to comply with the requirements of subsection (3) or (4) in relation to a proposed law shall not be taken to constitute a failure to comply with subsection (1).”.

(2) The amendments made by subsection (1) do not apply in relation to proposed laws passed by the Legislative Assembly for the Australian Capital Territory before the commencement of this section.

Certain laws converted into enactments

9. Section 34 of the Principal Act is amended by inserting after subsection (8) the following subsection:

“(8a) The regulations may amend Schedule 5 by adding to that Schedule a law added to Schedule 3 under subsection (8).”.

Regulations

10. Section 74 of the Principal Act is amended:

(a) by omitting from paragraph (b) “and”;

(b) by adding at the end the following word and paragraph:

“; and (d) amending Schedule 5 as provided by section 34.”.

PART 4—AMENDMENTS OF THE AUSTRALIAN CAPITAL TERRITORY (ELECTORAL) ACT 1988

Principal Act

11. In this Part, “Principal Act” means the Australian Capital Territory (Electoral) Act 19883.

Regulations

12. Section 28 of the Principal Act is amended by adding at the end the following subsections:

“(2) The power of the Governor-General to make regulations under subsection (1) extends to making regulations under which a person who commits an offence under paragraph 245 (12) (a) or (b) of the Electoral Act may, instead of being prosecuted for the offence, dispose of the matter by paying a penalty of twenty dollars.

“(3) Regulations referred to in subsection (2) may apply to offences committed in relation to a general election held before the commencement of the regulations.”.

Further amendments

13. The Principal Act is amended as set out in Schedule 2.

PART 5—AMENDMENTS OF THE A.C.T. SELF-GOVERNMENT (CONSEQUENTIAL PROVISIONS) ACT 1988

Principal Act

14. In this Part, “Principal Act” means the A.C.T. Self-Government (Consequential Provisions) Act 19884.

Transitional application of Merit Protection (Australian Government Employees) Act

15. Section 25 of the Principal Act is amended by omitting all the words to and including “that Act” and substituting “Until an enactment provides that subsection 21 (1) ceases to have effect, the Merit Protection (Australian Government Employees) Act 1984”.

PART 6—AMENDMENTS OF THE COCOS (KEELING) ISLANDS ACT 1955 AND OF THE SUPREME COURT ORDINANCE 1955 OF THE TERRITORY OF COCOS (KEELING) ISLANDS

Division 1—Amendments of the Cocos (Keeling) Islands Act 1955

Principal Act

16. In this Division, “Principal Act” means the Cocos (Keeling) Islands Act 19555.

Interpretation

17. Section 4 of the Principal Act is amended by inserting the following definitions:

“ ‘constable’ means:

(a) a member or special member of the Australian Federal Police; or

(b) an officer or special officer of the Police Force of the Territory;

‘indictment court’ means a court established by a law of the Territory (whether before or after the commencement of this definition) in which trials on indictment of offences against laws in force in the Territory may be conducted;

‘prison’ includes a lock-up or other place of lawful detention;

‘Registrar’, in relation to an indictment court, means the registrar, or a deputy registrar, of that court;

‘Sheriff means the Sheriff, or a Deputy Sheriff, of the Territory;

‘State’ includes a Territory other than the Territory;”.

18. After Part IV of the Principal Act the following Part is inserted:

“PART IVa—TRIALS ON INDICTMENT

Trials on indictment to be by judge and jury

“15aa. The trial on indictment of an offence against a law in force in the Territory shall be by judge and jury.

Minister may make arrangements with States

“15ab. The Minister may make arrangements with the government or an authority of a State for the purposes of the effective application of the provisions of this Part relating to sittings of an indictment court in that State in the exercise of its criminal jurisdiction.

Indictment court may sit in a State

“15ac. (1) Subject to this section, an indictment court, in the exercise of its criminal jurisdiction, may sit in a State if to do so would not be contrary to the interests of justice.

“(2) An indictment court may, at any time after the presentation of an indictment for an offence against a law in force in the Territory and before the jury has returned its verdict, if it is satisfied that the interests of justice require it, order:

(a) if the trial of the offence has not begun—that the trial be held in a State, and at a time and place, specified in the order; and

(b) if the trial of the offence has begun—that the trial be discontinued, the jury be discharged and a new trial be held in a State, and at a time and place, specified in the order.

“(3) An indictment court may make an order under subsection (2) at a sittings of the court in the Territory or in a State.

“(4) An indictment court may make an order under subsection (2) at a sittings of the court in a State whether or not the accused is present but, if the accused is not present, the court shall only make the order if:

(a) the accused is represented; and

(b) the court is satisfied that the accused understands the effect of the order.

“(5) Where an indictment court makes an order under subsection (2), the court may order that:

(a) on the warrant of the Registrar, a magistrate of the Territory or such other person as the court directs (being a person who holds an office in relation to the court), the accused be removed to the place specified in the order, and held there, for the purposes of the trial of that person and for any related proceedings; and

(b) on the summons of the Registrar, all persons required to attend to give evidence in the trial or proceedings attend at the place specified in the order.

“(6) When exercising its criminal jurisdiction in a State, an indictment court has, and may exercise, all the powers that it would have if it were exercising its criminal jurisdiction in the Territory.

“(7) A power exercised by an indictment court under subsection (6) shall be deemed to have been exercised by the court at a sittings of the court in the Territory.

“(8) Where an indictment court is sitting in a State for the purpose of a trial in that State, the court may, if it is satisfied that the interests of justice require it, order that, for the purpose of viewing a place, or taking evidence from a person, in the Territory, or for a prescribed purpose:

(a) the trial be adjourned for such time as the court considers reasonable and necessary, and be continued in the Territory for so long as is necessary for that purpose;

(b) on the warrant of the Registrar, a magistrate of the Territory or such other person as the court directs (being a person who holds an office in relation to the court), the accused be returned to the Territory for the purposes of the continuation of the trial and any related proceedings; and

(c) the jurors empanelled for the trial go to the Territory and remain there for such time as the court directs for the purpose of continuing to attend as jurors in the trial.

“(9) A person who appears as a witness in an indictment court in a trial, or in related proceedings, held wholly or partly in a State, shall be paid by the Commonwealth such fees and allowances as would be payable to the person if the person had appeared as a witness in a trial held in the Territory.

“(10) Where:

(a) an indictment court, when exercising its criminal jurisdiction in a State, makes an order, issues a warrant or summons or gives a judgment;

(b) a person fails to comply with that order, warrant, summons or judgment; and

the person is guilty of an offence against this Act punishable by a penalty that is the same as the penalty for the offence referred to in paragraph (c).

Juries outside the Territory

“15ad. (1) In this section:

‘jury list’ means the roll, list or book, on or in which the names of persons liable to serve as jurors appear.

“(2) Subject to this section and the regulations, the laws in force in a State relating to:

(a) the qualification of jurors;

(b) the preparation of jury lists and jury panels;

(d) the number of jurors;

(e) the right of challenge;

(f) the discharge of juries;

(g) the disagreement of jurors;

(h) the remuneration of jurors; and

(j) other matters concerning jurors (other than matters dealt with under section 15ae) after they have been summoned, appointed or sworn;

that apply for the purposes of the trial of a criminal matter in the Supreme Court of that State sitting at a place in that State, extend and shall be applied, with such changes as are necessary, for the purposes of the trial of a criminal matter in an indictment court when sitting at that place.

“(3) For the purposes of a trial in an indictment court held wholly or partly at a place in a State, the jury list that would be used for the purposes of a criminal trial in the Supreme Court of that State sitting in the same place shall be used as well for the purposes of the trial in the indictment court.

“(4) The precept for a jury shall be issued by the Registrar, or such other person holding an office in relation to the indictment court as the court directs, and the Sheriff or such other person as the court directs shall prepare the jury panels and summon jurors.

“(5) The person who has custody of the jury list referred to in subsection (3) in the State where the indictment court is holding a trial shall:

(a) give a copy of that list to the person directed by the court to prepare a jury panel; and

(b) indicate on that copy the names of the persons who, to his or her knowledge, would not, if summoned at the time the copy is given, be liable to serve as jurors under the law in force in that State.

“(6) The Commonwealth shall pay such reasonable fee as may be demanded for a copy of a list referred to in paragraph (5) (a).

“(7) Any remuneration required to be paid to a person who serves, or is summoned to serve, on a jury in a trial in an indictment court held wholly or partly in a State shall be paid by the Commonwealth.

“(8) Where a law applied by this Act for the purposes of a trial in an indictment court requires an act or thing to be done by a person specified in that law, the court may, if it is necessary to do so for the purpose of the effective application of the law, order that a person who holds a specified office in relation to the court do that act or thing, and the law shall be deemed to apply to that person accordingly.

“(9) The regulations may provide that such provisions of a law referred to in subsection (2) as are specified in the regulations do not apply or apply subject to such modifications as are specified in the regulations.

Offences in relation to jurors

“15ae. (1) In this section:

‘juror’ includes a person whose name is on a jury panel.

“(2) A person who is served with a summons to attend as a juror in a trial in an indictment court held wholly or partly in a State shall not, without reasonable excuse:

(a) fail to attend in accordance with the summons; or

(b) having so attended, withdraw from the presence of the court, without the permission of the Sheriff, before being discharged or excused by a judge of the court or the Sheriff.

Penalty: $200 or imprisonment for 1 month.

“(3) A person shall not personate, or attempt to personate, a person who is a juror for the purpose of sitting on a jury.

Penalty: $1,000 or imprisonment for 6 months.

“(4) A person shall not:

(a) corrupt, or attempt to corrupt, a juror;

(b) except as provided by law, make or promise a payment to a juror, or confer or promise to confer any other benefit on a juror in relation to the person’s service as a juror, other than a payment of the ordinary remuneration of the juror’s employment; or

Removal of accused to State to stand trial

“15af. (1) Where an indictment court makes an order under paragraph 15ac (5) (a) in relation to an accused, the Registrar, a magistrate of the Territory or a person directed by the court under that paragraph, may:

(a) by warrant directed to all constables, require them to convey the accused in custody from the Territory to the prison specified in the warrant and to deliver the accused into the custody of the officer for the time being in charge of that prison; and

(b) by warrant directed to that officer, require that officer to detain the accused in that prison pursuant to this section.

“(2) A warrant referred to in subsection (1) may be executed by any constable.

“(3) An accused delivered into custody at a prison in a State under a warrant under subsection (1) may, subject to any order of the indictment court, be detained in that prison or any other prison in that State for so long as the accused’s detention is necessary for the execution of the order.

“(4) An accused may, while so in custody, be dealt with in the same manner, and is subject to the same laws, as if the warrant issued under

subsection (1) had been issued under a law in force in the relevant State relating to holding persons in custody pending the trial of those persons.

“(5) The Commonwealth shall pay to the relevant State the reasonable expenses of maintaining an accused detained in a prison under a warrant under subsection (1).

Accused to be conveyed to court

“15ag. (1) Where an accused has been removed to a State under this Act, a judge of an indictment court may order that the accused be conveyed to the court for the purposes of trial in that State, and any related proceedings.

“(2) Where a judge of an indictment court makes an order under subsection (1), the person who has the custody of the accused shall release the accused to a constable to enable the accused to be conveyed to the court in accordance with that order.

Return of accused to Territory

“15ah. (1) Where an indictment court makes an order under paragraph 15ac (8) (b), the Registrar, a magistrate of the Territory or a person directed by the Court under that paragraph may, by warrant directed to all constables, require them to convey the accused in custody from the State in which the court made the order to the prison in the Territory specified in the warrant and to deliver the accused into the custody of the officer for the time being in charge of that prison.

“(2) A warrant referred to in subsection (1) may be executed by any constable.

Person deemed to be prisoner under Removal of Prisoners (Territories) Act 1923

“15ai. Where:

(a) a person has been tried in relation to an indictable offence against a law in force in the Territory by an indictment court sitting in a State; and

(b) the person is convicted of that offence and sentenced to imprisonment;

the person shall be deemed:

(d) to have been removed to that State under that Act;

and the provisions of that Act apply (so far as they are capable of applying) in relation to the person accordingly.

Person deemed to be criminal lunatic under Removal of Prisoners (Territories) Act 1923

“15aj. Where a person who has been removed to a State under this Act:

(a) is found to have been insane at the time of the commission of the offence;

(b) is found or certified, or otherwise lawfully proved, to be unfit, on the ground of insanity, to be tried for the offence; or

the person shall be deemed:

(d) to be a criminal lunatic within the meaning of the Removal of Prisoners (Territories) Act 1923; and

(e) to have been removed to that State under that Act;

and sections 9 and 10a of that Act apply (so far as they are capable of applying) in relation to the person accordingly.

Repatriation of person tried in a State

“15ak. Where:

(a) a person has been removed to a State under this Act;

(b) the trial of the person in an indictment court sitting in that State has concluded; and

(c) the person is acquitted (other than on the ground of insanity) or is not, after the date on which the trial concludes, required to serve a sentence of imprisonment;

the Commonwealth shall, on application by the person to the Secretary, provide the person with means to enable the person to return to the Territory.”.

Sittings of courts etc.

19. Section 16 of the Principal Act is amended by omitting from paragraph (1) (a) “, otherwise than in the exercise of its criminal jurisdiction,”.

Grant of pardon, remission etc.

20. Section 17 of the Principal Act is amended by omitting from subsection (1) “court exercising criminal jurisdiction in the Territory” and substituting “court of the Territory exercising criminal jurisdiction”.

Division 2—Amendments of the Supreme Court Ordinance 1955 of the Territory of Cocos (Keeling) Islands

Principal Ordinance

21. In this Division, “Principal Ordinance” means the Supreme Court Ordinance 19556 of the Territory of Cocos (Keeling) Islands.

Court to sit without jury in civil proceedings

22. Section 12 of the Principal Ordinance is amended:

(a) by omitting subsection (1) and substituting the following subsection:

“(1) Notwithstanding any other law in force in the Territory, all civil proceedings before the Supreme Court shall be heard and determined by the Court sitting without a jury.”;

(b) by omitting from subsection (2) “shall not, after the commencement of this Ordinance, apply to” and substituting “does not apply to civil”;

Registrar and other officers

23. Section 18 of the Principal Ordinance is amended:

(a) by inserting in subsection (1) “, a Sheriff’ after “Registrar”;

(b) by inserting in that subsection “, Deputy Sheriffs” after “Deputy Registrars”.

24. After section 18 of the Principal Ordinance the following section is inserted:

Sheriff of the Territory

“18a. (1) Where the Minister does not appoint a Sheriff of the Territory under section 18, the Sheriff of the Australian Capital Territory shall be the Sheriff of the Territory.

“(2) The Sheriff:

(a) is charged with the service and execution of all writs, orders, warrants, precepts, process and commands of the Court that are directed to the Sheriff; and

(b) shall take, receive and detain all persons who are committed to the custody of the Sheriff by the Court, and shall discharge all such persons when directed by the Court or otherwise required by law.

“(3) A Deputy Sheriff may, subject to any directions of the Sheriff, exercise or perform any of the powers and functions of the Sheriff.

“(4) The Sheriff or a Deputy Sheriff may authorise such persons as he or she thinks fit to assist him or her in the exercise of any power or the performance of any function.

“(5) When the Sheriff or a Deputy Sheriff is a party to a cause in the Court, all writs, summonses, orders, warrants, precepts, process and commands in the cause which should in the ordinary course be directed to him or her shall be directed to such disinterested person as the Court or the Judge appoints, and the person so appointed may execute and return them.”.

Informations before Supreme Court

25. Section 21 of the Principal Ordinance is amended:

(a) by omitting from subsection (1) “Crown Solicitor for the Commonwealth” and substituting “Attorney-General of the Commonwealth or the Director of Public Prosecutions”;

(b) by omitting from subsection (2) “Crown Solicitor for the Commonwealth” and substituting “Director of Public Prosecutions”.

PART 7—AMENDMENTS OF THE NORFOLK ISLAND ACT 1979

Principal Act

26. In this Part, “Principal Act” means the Norfolk Island Act 19797.

Constitution of Supreme Court

27. (1) Section 52 of the Principal Act is amended by omitting from subsection (2) “Chief Judge” and substituting “Chief Justice”.

(2) Where a person was Chief Judge of the Supreme Court of Norfolk Island immediately before the commencement of this section, that person shall be taken to have been appointed Chief Justice of that Court.

Consequential amendments

28. The Principal Act is amended as set out in Schedule 3.

PART 8—AMENDMENTS OF THE ENVIRONMENT PROTECTION (SEA DUMPING) ACT 1981

Principal Act

29. In this Part, “Principal Act” means the Environment Protection (Sea Dumping) Act 19818.

Declaration by Minister in relation to coastal waters of a State etc.

30. Section 9 of the Principal Act is amended:

(a) by inserting in paragraph (1) (b) “, or in the coastal waters of,” before “that State”;

(b) by inserting in that paragraph “, or in the coastal waters of,” before “the Northern Territory”.

31. After section 37 of the Principal Act the following section is inserted:

No time limit for prosecution

“37a. A prosecution for an offence against this Act may be brought at any time.”.

Evidence

32. Section 38 of the Principal Act is amended by adding at the end the following subsections:

“(2) In any proceedings for an offence against this Act, evidence of the result of finding out a distance or position by means of an electronic, optical or other device ordinarily used for finding out such a distance or position is prima facie evidence of the distance or position.

“(3) In any proceedings for an offence against this Act, evidence by an inspector that he or she believes that a place or area is within Australian waters is prima facie evidence that the place or area is within Australian waters.

“(4) The Minister may give a certificate:

(a) that a permit was granted to a specified person on a specified day;

(b) that a specified permit contained specified terms;

(d) that a specified condition imposed in respect of a specified permit was revoked, suspended or varied on a specified day;

(e) that the suspension of a specified condition imposed in respect of a specified permit was cancelled on a specified day; or

(f) that a specified notice containing specified terms was served on the holder of a specified permit on a specified day;

and the certificate is prima facie evidence of the matters stated in it.”.

Fees

33. Section 40 of the Principal Act is amended:

(a) by inserting in subsection (3) “or remit” after “waive”;

(b) by adding at the end the following subsection:

“(4) The Minister may, if he or she considers it necessary or desirable to do so, waive or remit the payment of part of any fee payable in respect of an application and, if the Minister does so, the fee prescribed in respect of the application shall, for the purposes of subsection (2), be taken to be reduced by the amount waived or remitted.”.

Amendments in relation to penalties

34. The Principal Act is amended as set out in Schedule 4.

PART 9—AMENDMENTS OF THE SEA INSTALLATIONS ACT 1987

Principal Act

35. In this Part, “Principal Act” means the Sea Installations Act 19879.

Amendments

36. The Principal Act is amended as set out in Schedule 5.

PART 10—AMENDMENTS OF CERTAIN ACTS IN RELATION TO MEETINGS

Amendments of certain Acts in relation to meetings

37. The Acts specified in Schedule 6 are amended as set out in that Schedule.

PART 11—AMENDMENTS OF CERTAIN ACTS IN RELATION TO INVESTMENT

Amendments of certain Acts in relation to investment

38. The Acts specified in Schedule 7 are amended as set out in that Schedule.

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SCHEDULE 1 Section 6

CONSEQUENTIAL AMENDMENTS OF THE AUSTRALIAN FILM, TELEVISION AND RADIO SCHOOL ACT 1973

Subsection 9 (1):

(a) Omit “a member” (first occurring), substitute “the member”.

(b) Omit all words from and including “such a”, substitute “the member shall not commence before the expiration of the term of office of the member whose place the first-mentioned member fills.”.

Subsection 9 (2):

Omit “such a”, substitute “the”.

Subsection 10 (1):

Omit “a”, substitute “the”.

Subsection 10 (2):

(a) Omit “a” (first and second occurring), substitute “the”.

(b) Omit all words from and including “member” (second occurring), substitute “member shall not commence before the expiration of the term of office of the member whose place he or she fills.”.

Subsection 10 (3):

Omit “a” (first occurring), substitute “the”.

Paragraph 20 (2) (b):

Omit “3”, substitute “2”.

Paragraph 20 (7) (b):

Omit “10”, substitute “6”.

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SCHEDULE 2 Section 13

AMENDMENTS OF THE AUSTRALIAN CAPITAL TERRITORY (ELECTORAL) ACT 1988

Paragraph 16 (2) (a)

After “Parts” insert “(other than the amendment of subsection 123 (1) made by section 32 of the A.C.T. Self-Government (Consequential Provisions) Act 1988)”.

SCHEDULE 2—continued

Schedule 1, paragraph (a) of the modification of section 173 of the Commonwealth Electoral Act 1918:

After “19 (1)” insert “of the Territory Electoral Act”.

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SCHEDULE 3 Section 28

CONSEQUENTIAL AMENDMENTS OF THE NORFOLK ISLAND ACT 1979

Subsection 4 (1) (definition of “Chief Judge”):

Omit the definition, substitute the following definition:

“ ‘Chief Justice’ means the Chief Justice of the Supreme Court;”.

Subsection 4 (1) (definition of “Judge”):