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CROSS-BORDER JUSTICE BILL 2008
2008
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
MINISTER FOR JUSTICE AND ATTORNEY-GENERAL
Cross-Border Justice Bill 2008
SERIAL NO. 23
EXPLANATORY STATEMENT
GENERAL OUTLINE
The purpose of this Bill is to enable Northern Territory to participate in
cross-border justice schemes in conjunction with South Australia and Western Australia.
Cross-border justice schemes established under the legislation will involve police, magistrates, fines enforcement agencies, community corrections officers and prison officers, among others, being able to deal with offenders from any one of the participating jurisdictions, providing they have a connection to the cross-border region. These schemes will facilitate the administration of justice and enhance the safety of the communities in the regions covered by them.
The Bill is based on a model developed by Western Australia.
PART 1 – INTRODUCTION
Division 1 – Preliminary matters
1. Short title
This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Cross-border Justice Act 2009.
2. Commencement
The act commences on a date to be fixed by the Administrator and notified in the Gazette.
3. Act binds the Crown
This provision binds the Crown in right of the Territory and to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.
Division 2 – Object of this Act
4. Act gives effect to cooperative schemes
The Act will enable more effective delivery of justice services to
cross-border regions. This is to be achieved through cooperative schemes with those jurisdictions with which the Northern Territory (NT) shares a border ie South Australia (SA) and Western Australia (WA).
5. Object and achievement of Act
This clause provides that in order to meet its objective of furthering the cause of justice administration in the cross-border regions, the Act confers on police, magistrates, courts of summary jurisdiction, and other office holders the capacity to exercise their NT powers in SA and/or WA. It also confers on them the capacity to accept appointment to hold office under the laws of SA and/or WA, and to exercise the powers associated with that office. They will be able to exercise those powers either in SA and/or WA, or do so in the NT. NT courts of summary jurisdiction will be able to sit, deal with matters and sentence offenders under NT law when the court is sitting in either of these other two jurisdictions. Courts of summary jurisdiction of SA and/or WA will be able to function within the Northern Territory.
6. How this Act is to be construed
The Act provides reciprocal recognition of NT courts and officials applying NT law within the boundaries of SA and/or WA; and of their SA and/or WA counterparts applying the laws of those jurisdictions within the boundaries of the NT.
Division 3 – Interpretation
7. Definitions
This clause defines the commonly used terms used in the Act. Importantly, it specifies that the other ‘participating jurisdictions’ are SA and WA, the two jurisdictions with which the NT shares a border. Therefore precluding the Act from being used for cooperative schemes involving other jurisdictions such as those along the eastern seaboard of Australia.
Other definitions have been drafted specifically for the purposes of this Act.
Such definitions include “cross-border jurisdiction” which is the jurisdiction exercised by a “prescribed court” of a “participating jurisdiction” when dealing with a “cross-border proceeding”.
A “cross-border proceeding” is defined as a proceeding falling within the meaning of clause 68 of this Act, or falling within the meaning of the equivalent legislation in SA or WA. A “prescribed court” is defined as being (for the NT) the Court of Summary Jurisdiction, the Local Court for a proceeding mentioned in section 68(2)(g), the Youth Justice Court or the Alcohol Court and for the other participating jurisdictions, the courts prescribed in their equivalent legislation.
Some definitions such as “connection with a cross-border region” are included in this clause, but they are simply cross-referenced to another clause which sets out their meaning.
A term is also sometimes defined in a general reference to the laws of a participating jurisdiction. This is to accommodate the range of relevant Acts which may be applied under this Bill. For example, “vehicle impounding laws” refers to those laws dealing with the impounding or confiscation of vehicles in the course of their application to driving offences. This acts to limit their application to those situations likely to be encountered by those administering the provisions of this Bill. This definition deliberately limits the context to impounding or confiscation under driving laws, and does not include confiscations that could occur under the confiscation of the proceeds of crime legislation.
8. Cross-border laws
This Bill is the primary legislation to enable the creation of cross-border justice schemes. It works in conjunction with other laws that also have application to these schemes, and collectively this Bill and these other laws are the “cross border laws” for the NT. Other laws include those which will apply to cross border schemes as modified by the regulations. Other
cross-border laws include those which make special provision for the schemes
This clause also sets out what constitutes the cross-border laws of SA and WA, these are consistent with those of the NT.
9. Persons who exercise powers are office holders
This clause provides that office holders under cross-border laws are people who exercise a power conferred upon them by a cross-border law. Not all office holders are government officials, and office holders include, for example, persons employed under the Court Security Act (NT) who may exercise powers to fulfil a contract for the provision of court security or custodial services.
10. References to office holders
Under cross-border laws a person may hold a secondary office. For example, an NT magistrate could hold as a secondary office, the office of a magistrate of SA as conferred under SA law. This clause brings the holder of a secondary office into the scope of being an office holder. Even if the office ceases to exist, someone who retains the powers of that office is still taken to be an office holder.
11. References to written laws of another participating jurisdiction
This clause provides continuity by making it clear that if another jurisdiction amends its cross-border laws, then any reference to those laws in the NT
Cross-border Justice Act still has effect. This is to take into consideration that Legislation is often amended.
12. Use of notes and examples
The Bill includes notes and examples to assist readers understand the meaning of some provisions. However, these are only aids to interpretation and have no legislative force. This is due to the complexity of this legislation.
Division 4 – Modifications of other laws of Territory
13. Appropriate modifications
The intent of the cross-border laws is to respond to the difficulties in the administration of justice in remote border regions. It is not intended that the capacity for police officers, magistrates and so on to perform their functions across borders and exercise the powers of another jurisdiction can be extended to apply in other parts of the Territory. Some laws will be applied differently under cross-border justice schemes than elsewhere. Rather than make complicated amendments to these other Acts, they are to be modified by regulation.
Modifications to other Acts are to apply only in the context of dealing with a cross-border justice matter.
14. Effect of modifications
An Act which has been modified for the purpose of implementing a
cross-border justice scheme, has to be applied on the basis of its modified form when it is being used in this context. If an office holder invokes the
cross-border laws when dealing with a matter under this Bill, they do not have the option of applying the non-modified form of another cross-border law.
Division 5 – Relationship between Territory’s cross-border laws and other laws
15. Law of another participating jurisdiction: office holders, prescribed courts, persons serving sentences
Participating jurisdictions still exercise control over what can and cannot be done within their borders, and still exercise control over what their office holders may or may not be permitted to do. This requires provisions from an office holder’s home jurisdiction that enables them to exercise powers in another jurisdiction, and corresponding provisions from that other jurisdiction to allow them to exercise those powers within that State or Territory.
For example, it is not enough for the NT to legislate so that its office holders can exercise their powers under NT laws in another jurisdiction. The other jurisdiction must also legislate to allow this to happen. Subclause 15(1) provides that unless the other jurisdiction has so legislated, an NT office holder cannot exercise their NT powers in that jurisdiction even though NT cross-border laws may provide for this.
Additionally, even though NT cross-border laws allow an office holder from SA or WA to exercise powers within the NT, they cannot do so unless the laws of SA or WA, as the case may be, provide for this (subclause 15(2)).
This clause continues to provide for other reciprocal recognition in relation to courts to hear and determine matters in other jurisdictions, and the imposition and serving/carrying out of sentences.
16. Law of another participating jurisdiction: other persons required to do things
This clause extends the principle contained in clause 15 to those individuals who are not office holders but nevertheless have a legal obligation to undertake some action (e.g. a person in a motor vehicle accident notifying the appropriate authorities of the accident). It is intended that a person be able to make such notification outside the jurisdiction where the event occurred (e.g. after an accident in the NT a motorist may be able to meet the requirement to notify the police by reporting the accident at a WA police station).
Under clause 16, both NT law and the other jurisdiction’s law have to permit the person to make the notification in the other jurisdiction (and vice versa if the event has occurred in SA/WA and the person be able to make notification in the NT).
17. Service and Execution of Process Act 1992 (Cth)
Currently, in a situation where a police officer has arrested a person in connection with an offence alleged to have occurred in another State/Territory, the Commonwealth Service and Execution of Process Act 1992 (“SEPA”) has determined how the person is dealt with. The police officer has been able to bring the person before a magistrate in the State/Territory where the arrest occurred. The magistrate, however, has only had the option to remand the person to be brought before a court in the jurisdiction of the alleged offence, and the person would then go or be taken in custody to that jurisdiction. The magistrate has had no power to deal with the matter to finalisation. The Bill will not replace this process, but rather, will provide an alternative. If, as is anticipated, the Commonwealth were to amend SEPA so that it would provide that it does not apply to a matter covered by the NT cross-border laws, an office holder or prescribed court of the Territory would have to proceed under the cross-border laws and not SEPA. That is, the office holder would have no alternative but to apply cross-border laws. This, however, is dependent upon SEPA being amended in this fashion. If SEPA is not amended to give primacy to cross-border laws, but allows both systems to co-exist, then the office holder or court would have a choice as to which path to follow.
Division 6 - Application
18. Offences, orders and requirements in relation to which Territory’s cross-border laws apply
This clause enables the cross-border laws to be applied to offences, orders or requirements that may have originated before this Bill is enacted. This provides a certain degree of retrospectivity to the legislation. It means, for example, that a person who has breached an order prior to the commencement of the Cross-border Act could be arrested for this breach after the commencement date using the provisions of this Act.
PART 2 – CROSS-BORDER REGIONS
Division 1 – Prescribing cross-border regions
19. Cross-border regions to be prescribed
A region must extend over the border of the NT into the SA and/or WA and be prescribed to be considered to be a cross-border region.
Division 2 – Connection with a cross-border region
20. Persons suspected of, alleged to have committed or found guilty of offences
This clause sets out the criteria by which it is determined if a person who is suspected of, alleged to have committed, or has been found guilty of an offence has a relevant connection to a cross-border region, thus falling within the scope of this Bill.
The criteria for establishing whether a person has a connection with a cross border region are:
· that this is where the suspected/alleged/proven offence occurred;
· when the person was arrested they were physically in the region or they normally reside in the region; or
· the person resides or resided in the region at the time the suspected/alleged/proven offence occurred.
Only one of these criteria needs to be met for a connection to a
cross-border region to be established. Meaning, for example, that a person from elsewhere who is arrested whilst transiting a cross-border region, would fall within the scope of this Bill. Similarly, a person from the region who is arrested whilst visiting a different area can be dealt with under this Bill.
A connection also exists if at the time a person comes before a court, they ordinarily reside in the region, or the person is before the court in relation to another matter where they have a connection with the region.
For the purposes of deciding whether or not a person has committed an offence under the law of a participating jurisdiction, section 15 of the Criminal Code (NT) applies with respect to the NT, section 5G of the Criminal Law Consolidation Act 1935 (SA) applies with respect to SA and section 12 of The Criminal Code applies for WA.
21. Persons against whom orders of prescribed courts are in force
This clause restates the application and criteria for establishing a
cross-border connection as set out in clause 20 and applies them to the making, variation and breaching of orders.
22. Connection for purposes of making restraining orders
An application for a restraining order falls within the scope of this Bill if the respondent to an application (ie the person against whom a restraining order is sought) has a connection to a cross-border region. The criteria for establishing this connection are that the respondent or the person in whose interests the restraining order is sought ordinarily resides in the region.
23. Persons serving sentences or carrying out orders in respect of offences or alleged offences
This clause provides that a person subject to a sentence or an order has a connection with a cross-border region if the sentence or order results from a court exercising cross-border jurisdiction in relation to a matter where:
· the person has a connection to the region;
· the court exercising cross-border jurisdiction has ordered the payment of a fine; or
· the person ordinarily resides in the region.
24. Other persons required to do things
This clause provides that a person who has a legislated responsibility to take some action has a connection to a cross-border region if they are informed of this requirement while in the region, the event occurred in the region, or the person ordinarily resides in the region.
25. Connections are not mutually exclusive
A person may have multiple connections with a cross-border region. A person may have connections with a cross-border region under any of the provisions in this Division.
Division 3 – Proving connection with cross-border region
26. Definition
This is a definition clause that applies for the purpose of this Division. A “proceeding” is either a cross-border proceeding in a prescribed court of the Territory, or a proceeding before a court of the Territory where an officer of another participating jurisdiction is acting under the provisions of the Cross-border Justice Act.
27. Onus of proving person’s whereabouts at time of arrest
This clause places the onus of proof on the arrested person as to their whereabouts or normal place of residence at the time of arrest. Proof is to be determined on the balance of probabilities.
The reason for this takes into consideration the remoteness of the regions where cross-border justice schemes will operate. It may at times be difficult to establish precisely whether a person was arrested in or normally resided in a region for the purpose of determining whether there is a connection with a cross-border region.
One of the aims of the cross-border justice initiative is to overcome the problem of alleged offenders using the State/Territory borders to evade police and the justice system. However, in defining a region, another “border” is by default imposed and such evasion could again occur. The onus of proof has been placed on the arrested person so as to discourage false claims of the person being outside the cross-border region and to limit the extent to which the boundaries of the region can be used to evade justice.
28. Onus of proving person’s residency during cross-border proceeding
For the same reasons stated in relation to clause 27, the onus of proof for establishing if a person ordinarily resides(ed) in a cross-border region at the time of a cross-border or other proceeding, lies with the person.
Division 4 – Multiple cross-border regions
29. Application of this Division
This clause provides that the Division applies if there are two or more
cross-border regions of which one is a party in all 3 participating jurisdictions and the other or others are partly in only two or three participating jurisdictions. The NT border with the SA and WA touches on different regions of the Territory. The inaugural cross-border justice scheme is planned for the area where the borders of all three jurisdictions meet.
30. Office holders, prescribed courts, persons serving sentences
This clause is similar to clause 15. However, it limits the extent to which, for example, NT office holders can exercise their cross-border powers in another participating jurisdiction.
If a person whose connection with the Central Australian cross-border region is based on them being arrested or residing in SA, is brought before an NT magistrate exercising cross-border powers in the NT under a scheme based on the Kimberley/NT border, the magistrate would not be able to deal with this person because SA will not be a party to a northern Australian scheme.
However, a person may have a connection with more than one cross-border region. An office holder or prescribed court of the Territory may deal with the person under the Territory’s cross-border laws on the basis of the person’s connection with one or another of those regions, having regard to what best facilitates the administration of justice in those regions.
31. Other persons required to do things
This clause requires that a person has a connection with a particular
cross-border region if they are to be authorised or allowed to take action under cross-border laws relating to that region.
PART 3 – POLICE OFFICERS OF TERRITORY EXERCISING POWERS IN ANOTHER PARTICIPATING JURISDICTION
Division 1 – Powers generally
32. Arrest without warrant
A NT police officer may arrest a person (who has a connection with a cross border region), without a warrant and under the laws of the NT, in SA or WA.
The arrest will be governed by the laws of the NT and can only occur if the arrest could be made in the NT.
33. Arrest under warrant
An NT police officer may arrest a person (who has a connection with a cross border region), under warrant and under the laws of the NT, but in another participating jurisdiction. The arrest will be governed by the laws of the NT.
Likewise, a magistrate may issue an arrest warrant under NT law and do so whilst in another participating jurisdiction. It is a requirement that the person the subject of the warrant has a connection with a cross-border region.
34. Person taken into custody
This clause empowers an NT police officer to arrest a person under the laws of the NT either with or without a warrant and in any of the participating jurisdictions, and to keep the person in custody in another participating jurisdiction but under the NT law. A person who is arrested in SA or WA under NT law, does not have to be returned to the NT to be kept in custody. The police officer can also take the person to a police station, court or anywhere else for an authorised purpose.
35. Investigation of suspected or alleged offence or breach of order
An NT police officer may investigate a suspected offence or breach of an order made under NT law, in SA or WA but in doing so, apply NT law governing investigations. This includes the police officer’s powers to conduct interviews and searches, take photographs of people, take fingerprints and other prints, and so on. This clause only applies if the person suspected of having committed the offence or breach has a connection with a cross-border region.
Additionally, a magistrate may issue a warrant or order for the purpose of an investigation under NT law and do so whilst in another participating jurisdiction.
Examples of the application of this clause are as follows.
Example 1 – A person is suspected of committing an offence under NT law in the NT portion of the NT/SA/WA (Central Australia) region. An NT police officer may investigate the alleged offence anywhere in the NT, SA or WA. For the purpose of the investigation of the alleged offence, an NT magistrate anywhere in the NT, SA or WA may issue a warrant to search premises anywhere in the NT, SA or WA. In this case, the person has a connection with a cross-border region involving all three jurisdictions.
36. Return of person not charged to place of arrest or other place
Cross-border justice schemes will operate in the more remote areas of the Territory where there are large distances between population centres and limited transport availability. If an NT police officer has kept a person in custody in another jurisdiction (see clause 34), and the person is released from custody, the police officer must take reasonable steps to ensure the person is returned to where they were arrested or to a place reasonably nominated by the person.
However, if to take a person released from custody to a particular place is likely to endanger the safety of the person or another person, the police officer is not required to assist the person go to that place.
37. Relationship of this Part with Criminal Investigation
(Extra-territorial Offences) Act 1987
The provisions of the Criminal Investigation (Extra-territorial Offences) Act 1987 continue to apply and are not affected by Part 3 of this Bill.
Division 2 – Road traffic powers
Subdivision 1 – Vehicle or driver licensing laws
38. Powers in relation to offences
An NT police officer may exercise their powers under NT vehicle or driver licensing laws in SA or WA if a person is suspected of having committed an offence under these NT laws and the person has a connection with a cross border region.
39. Other powers
An NT police officer may exercise in another participating jurisdiction any of the police officer’s licence powers in relation to a person who ordinarily resident in a part of the Territory that is in a cross-border region. Clause 39(1) defines “licensing powers” to mean those powers that an NT police officer can exercise under NT vehicle or driver licensing laws in addition to those powers referred to in clause 38.
Subdivision 2 – Drink or drug-driving laws
40. Definitions
This is a definition clause specifying what constitutes a “sample”, and what a “test” is and what “testing procedures” are for the purposes of this Subdivision.
41. Conduct of preliminary alcohol and drug test in cross-border region
It may be necessary for an NT police officer to take a breath or oral fluid sample from a person in the WA section of a cross-border region for the purpose of conducting a preliminary alcohol or drug test under NT law.
An NT police officer may also be a SA or WA police officer who holds an appointment as a special constable of the NT. In this case the testing equipment and procedures which they use may be that of the SA or WA police forces and not that of the NT. It is also possible that NT police officers may conduct joint patrols with officers from the NT or SA and use NT or SA police vehicles for this purpose. Again, if this patrol was to stop a person in WA and seek to take a sample using the equipment in the NT or SA police vehicle then the procedures of that jurisdiction would apply.
Subclause 41(2), therefore, provides that if a person is required to comply with the testing procedures used in implementing SA or WA drink driving laws, then they are required to follow these procedures as if they were found in NT law.
Likewise, subclause 41(3) provides for tests which follow SA or WA procedures in relation to an NT person, as being NT procedures of the purposes of testing the sample.
42. Powers that may be exercised in another participating jurisdiction
This clause applies if an NT police officer has required a person in the NT portion of a cross border region to provide a sample for a preliminary alcohol or drug test under NT law. The clause requires that the person from whom the sample is being taken has some connection with a cross-border region. This clause has to be read in conjunction with clause 44 which provides that a NT police officer cannot take a sample for preliminary drug or alcohol testing under NT law in another participating jurisdiction. This clause authorises samples to be taken at later stages in the sampling process in another participating jurisdiction (see clause 43).
43. Providing or taking sample in another participating jurisdiction
Clause 41 provides for the situation of a sample being taken from a person and tested in the NT under NT law, and allows for this to occur using the procedures of SA and WA. Clause 43 deals with the situation of a NT police officer taking a sample for testing from a person under NT laws in SA or WA and using the procedures of SA or WA. The person is again taken to be required to provide a sample using the procedures under WA law.
A test of a sample using SA or WA procedures is again taken to be a test under NT laws.
The option of taking a sample or having it tested in accordance with NT procedures remains an option.
44. Preliminary alcohol or drug test cannot be conducted in another participating jurisdiction
An NT police officer’s power to take samples for testing in another jurisdiction, does not include the taking of samples for preliminary testing under NT law.
Subdivision 3 – Vehicle impounding laws
45. Powers
This clause provides that an NT police officer may exercise in relation to a vehicle in another participating jurisdiction any of the powers the police officer has under the NT vehicle impounding laws in relation to a vehicle if; the person connected with the vehicle has a connection with a cross-border region; and if the exercise of the power is for the purpose of giving effect to a court order (the order was made by a prescribed court of the NT. For the purpose of this section a “person” connected with a vehicle is someone who is suspected, alleged or found guilty of committing the offence which makes the vehicle subject to impounding or confiscation. An NT police officer can exercise NT vehicle impounding laws in SA or WA if the person connected with the vehicle also has a connection to a cross-border region and imprisonment. If an NT police officer executing a search warrant in respect of premises in SA or WA orders a person to leave those premises, a failure to comply with the order is an offence under this Act attracting the same penalty.
Subdivision 4 – Miscellaneous matters
46. Law of Territory applies
The powers exercised under this Division are governed by NT law, taking into account any modifications to specific laws.
47. Relationship with Division 1
This Division does not diminish any powers which a NT police officer may exercise in accordance with Division 1 (Powers generally).
Division 3 – Restraining orders laws
48. Definition
This clause provides that for the purposes of this Division a “NT police order” is a police DVO made by a police officer of the Territory under the Domestic and Family Violence Act.
49. Making of NT police orders
This clause provides that a police officer may make an NT police order in another participating jurisdiction if the person against whom the order is sought or proposed to be made has a connection with the cross-border region. The law of the Territory applies in relation to the making of the order.
50. Enforcement of NT police orders
If a NT police order is made against a person in another participating jurisdiction, and the person in whose interest the order was made ordinarily resides in a cross-border region, a NT police officer may exercise their powers in relation to the person against whom the order has been made. Breaches of these orders are to be dealt with under sections 120 to 122 of the Domestic and Family Violence Act. The powers conferred under this clause are governed by NT law.
Division 4 – Offence
51. Offence to interfere with exercise of power
This clause provides that if a person subject to NT law in another jurisdiction takes an action that would be an offence under NT law in the NT, then the action is an offence under NT law. The penalties for such offences are the same as those prescribed for Territory offences ie an offence of this type when committed in the NT. Where a Territory offence is indictable, it is also indictable if the offence is committed under this Part in SA or WA.
PART 4 – POLICE OFFICERS OF ANOTHER PARTICIPATING JURISDICTION EXERCISING POWERS IN TERRITORY
This Part is the corollary of Part 3 in that it confers powers on SA and WA police officers to exercise their SA and WA powers in the NT.
Division 1 – Power generally
52. Arrest without warrant
SA and WA police officers can arrest people in the NT under SA and WA law, as the case may be, without warrant. They can do so if, under their own State’s law they would be entitled to arrest the person without warrant in their home jurisdiction. It is necessary that the person being arrested has a connection to a cross-border region.
It is not enough, however, for the NT to say that SA and WA officers can exercise their SA or WA powers in the NT. Ordinarily, an arrest in the NT would be covered by NT law. Therefore, it is necessary to disapply NT law in a situation such as this. This is achieved through subclause 52(2).
53. Arrest under warrant
A person who has a connection to a cross-border region can be arrested by a SA or WA police officer under warrant and under the laws of SA or WA, as the case may be. A magistrate of SA or WA can issue a warrant for arrest of the person under SA or WA law. Again, NT law dealing with arrests under warrant is disapplied in relation to this arrest and warrant to enable the SA and WA laws to operate in this situation.
54. Person taken into custody
In this clause the “arresting jurisdiction” is SA or WA, ie the other participating jurisdiction under whose laws a person is being arrested in the NT. A police officer of the arresting jurisdiction may arrest a person (either with or without a warrant) and keep them in custody in the NT. It is necessary that the arrested person has a connection with a cross-border region for this to apply.
Once the person is in custody, they can be taken to a police station, court or other authorised place in the NT. NT custody laws are disapplied in this situation and do not govern this arrest.
55. Investigation of suspected or alleged offence or breach of order
In this clause the “investigating jurisdiction” is SA or WA, (ie the other participating jurisdiction under whose laws an investigation is being conducted).
If a police officer of the investigating jurisdiction suspects a person who has a connection with a cross-border region of having committed an offence or has breached an order, the police officer can conduct that investigation in the NT but under the laws of the investigating jurisdiction, ie SA or WA. Likewise, a magistrate of the investigating jurisdiction may issue a warrant under SA or WA law, as the case may be, for the purpose of an investigation. NT laws of investigation are disapplied to investigations governed by the laws of an investigating jurisdiction.
56. Relationship of this Division with laws relating to forensic examinations
The provisions of the Police Administration Act, Part VII, Division 7 of the Youth Justice Act, Part 2, Division 3 continue to apply and are not affected by Division 2, Part 4 of this Bill. The effect of this is that a police officer of another participating jurisdiction who is investigating an offence under the law of that other jurisdiction may, for the purpose of examining or obtaining material from the body of a person in the NT, elect to use the powers the police officer has under this Division, or to proceed under Acts referred to.
Division 2 – Road traffic powers
Subdivision 1 – Vehicle or driver licensing laws
57. Powers in relation to offences
If a person has a connection to a cross-border region, and a police officer of SA or WA suspects or alleges that the person has committed an offence under SA or WA vehicle or driver licensing laws, police officers can exercise their SA or WA powers, as the case may be.
58. Other powers
This clause provides that a police officer of another participating jurisdiction may exercise in the NT any of the police officer’s licensing powers in relation to a person who ordinarily resides in a cross-border region, a SA or WA police officer can apply SA or WA licensing laws to the person in the NT. In this situation, the police officers are exercising their “licensing powers” ie the powers conferred on them under SA or WA licensing laws, as the case may be.
Subdivision 2 – Drink or drug-driving laws
59. Powers that may be exercised in Territory
This clause empowers SA and WA police officers to exercise their SA/WA powers in relation to taking samples for a preliminary alcohol or drug test under SA/WA law in the NT. The clause requires that the person from whom the sample is being taken has some connection with a cross-border region. The clause is to be read in conjunction with proposed section 60 (which says that an NT police officer cannot take a sample for preliminary drug or alcohol testing under NT law in another jurisdiction).
60. Preliminary alcohol or drug test cannot be conducted in Territory
A SA or WA police officer’s power to take samples in the NT, does not include the taking of samples for preliminary testing under SA or WA law.
Subdivision 3 – Vehicle impounding laws
61. Powers
For the purpose of this section a person connected with a vehicle is someone who is suspected, alleged or found guilty of committing the offence which makes the vehicle subject to impounding or confiscation. A SA or WA police officer can exercise SA or WA vehicle impounding laws in the NT if the person connected with the vehicle also has a connection to a cross-border region and the impounding or confiscation is pursuant to an order made by a prescribed SA or WA court.
Subdivision 4 – Miscellaneous matters
62. Law of Territory does not apply
The powers exercised under this Division are not governed by NT law other than this Act.
63. Relationship with Division 1
This Division does not diminish any powers which a SA or WA police officer may exercise in the NT in accordance with Division 1 (Powers generally).
Division 3 – Restraining orders laws
64. Definition
This clause defines “WA police order” as being an order made by a police officer of WA under the restraining order laws of WA.
65. Making of WA police orders
If a person against whom a WA police order is sought or made has a connection with a cross-border region, a WA police officer may make the order in the NT. NT laws are disapplied in this circumstance. For the purpose of deciding whether or not the person against whom the WA police order is sought or proposed to be made has a connection with a
cross-border region, proposed section 22 and Part 2 Division 4 apply.
66. Enforcement of WA police orders
If a WA police order is made against a person in the NT, and the person in whose interest the order was made ordinarily resides in a cross-border region, a WA police officer may exercise their powers in relation to the person against whom the order has been made. NT law is disapplied to this situation.
PART 5 – PRESCRIBED COURTS OF TERRITORY EXERCISING CROSSBORDER JURISDICTION
Division 1 – Preliminary matters
67. Operation of courts outside Territory not limited
This clause makes reference to section 60A of the Justices Act (NT), which provides for where and when the Court of Summary Jurisdiction operates, and section 48 of the Youth Justice Act (NT). The clause does not limit the application of these sections of these other two Acts, and provides that the application of Part 5 is subject to these other provisions.
Division 2 – Jurisdiction and powers of courts
68. Proceedings that may be heard in another participating jurisdiction
If a person who is the subject of a court proceeding has a connection with a cross-border region for the purpose of that proceeding, an NT court may deal with the matter in a location in SA or WA. This only applies to proceedings under the following Acts or sections of Acts, namely:
· under the Alcohol Court Act;
· in the Court of Summary Jurisdiction under the Justices Act;
· in the Youth Justice Court under the Youth Justice Act;
· Bail Act;
· Sentencing Act;
· Domestic and Family Violence Act;
· Traffic Act (in relation to the imposition or removal of a disqualification from holding or obtaining a driver’s licence; the impounding or forfeiture of a vehicle; the sale or disposal of an impounded or forfeited vehicle).
Regulations may prescribe proceedings under other Acts that fall within the scope of what an NT court may deal with in another jurisdiction. A NT court can only hear and determine a matter in SA or WA, if the court is able to do so in the NT.
69. Exercise of jurisdiction and powers
A prescribed NT court can exercise its cross-border powers in either the NT or one of the other participating jurisdictions. To enable the court to exercise its cross border powers in another participating jurisdiction, it is empowered to sit in that jurisdiction and to have registries there as well. The powers that a NT cross border court, or a magistrate or registrar of that court, may exercise in another jurisdiction include compelling witnesses, administering oaths, punishing for contempt and issuing warrants, summonses and other process. The court can only exercise powers that it is also entitled to exercise in the NT. This is so even if the matter is not heard and determined in another participating jurisdiction, the court may still exercise its powers in that jurisdiction in dealing with a cross-border matter.
70. Practice and procedure
The practice and procedure of a prescribed court of the Territory apply when the court is exercising its cross-border jurisdiction. A NT court sitting as a cross-border court follows NT (and not SA or WA) practice and procedure regardless of where it is sitting, subject to any modifications in the regulations.
71. Rules of evidence
A NT court sitting as a cross-border court follows NT (and not SA or WA) rules of evidence regardless of where it is sitting, subject to any modifications in the regulations.
72. Offence to fail to comply with order, judgment, warrant or summons
A NT court is sitting outside of the NT and exercising cross-border jurisdiction, it is an offence to fail to comply with an order, judgment, warrant or summons made by that court at that sitting, as long as it would also be an offence if the same failure to comply would be an offence if the court were sitting in the NT.
Penalties for offences will be prescribed by regulation, and if the failure to comply would constitute an indictable offence if it occurred when the court was sitting in the NT, then it is also an indictable offence if it occurs when the court is sitting in another participating jurisdiction.
Division 3 – Miscellaneous matters relating to cross-border proceedings
73. Legal practitioners of another participating jurisdiction entitled to appear
This clause provides that a person is only entitled to engage in legal practice (including representing someone else in court) if they are permitted to do so under the legal profession laws of a jurisdiction. Recent legislative changes have resulted in legal practitioners (i.e. lawyers holding practising certificates) being able to engage in legal practice in any Australian jurisdiction, not just the one(s) for which they hold a practising certificate e.g. a WA lawyer holding a WA practising certificate can appear in a NT or SA court on the strength of that practising certificate.
The clause makes it clear that this also applies to a legal practitioner from SA or WA appearing for a person in a cross-border proceeding in the NT where the person has a connection with a cross-border region for the purposes of that proceeding.
Legal profession legislation also enables certain authorised non-legal practitioner individuals to appear on someone’s behalf in a court. Individuals authorised under section 48 of the Aboriginal Affairs Planning Act 1972 (WA) can also appear in court on behalf of a person of Aboriginal descent in relation to a criminal matter. This clause ensures that this entitlement is retained for the purposes of a cross-border matter.
74. Court documents may be filed, served or issued in another participating jurisdiction
This clause authorises a court document of a prescribed court of the NT to be filed, served or issued in SA or WA.
75. Court documents in wrong form do not invalidate proceedings or decisions
This clause ensures that if a document that is lodged, served or issued in a NT court is in the form used in SA or WA, then that document is still effectual for its intended purpose. There is no right of appeal on the basis that the wrong jurisdiction’s form was used. Subclause 75(3), however, does give a NT court the flexibility to order that a NT form be used.
A cross-border court of any of the participating jurisdictions may find itself dealing with matters from two or even three of the jurisdictions at any one sitting. It is unreasonable to expect that each individual court will at all times have available the forms of each jurisdiction. It would be counter-productive to prevent a court from hearing a matter just because the form from the relevant jurisdiction is not available. It is in the interests of justice that the court be able to deal with both matters at the one sitting, rather than delay dealing with the SA/WA matter for want of a SA/WA form.
76. Application of Court Security Act
This clause provides that the Court Security Act governs the provision of security services to NT Courts. The Act will not apply to NT courts sitting outside of the NT. In this situation, the NT court would fall under the equivalent legislation and services of SA or WA.
77. Law of Territory applies
NT courts exercising cross-border jurisdiction is governed by the laws of NT except where the Act provides otherwise. The other laws (which apply) may also be modified by the regulations and apply in their modified form.
Division 4 – Registration of interstate restraining orders
78. Part 2 Divisions 2 and 4 do not apply
Part 2 Division 2 sets out the criteria for determining if a person has a connection to a cross-border region. For the purposes of this Division, a different approach has been taken because of the peculiar nature of restraining orders and the registration process.
Part 2 Division 4 provides for the creation of multiple cross-border regions.
In order to broaden the application of the cross-border scheme in relation to restraining orders, proposed sections 80(b) and 81(b) do not require a connection with a cross-border region. The clause ensures that the specific requirements of proposed sections 80 and 81 will apply and not those of Part 2 Division 4.
79. Definitions
This clause provides for definitions. The clause defines “SA restraining orders” and “WA restraining orders” as restraining orders of those respective jurisdictions. The clause defines “register” under Chapter 3 of the Domestic and Family Violence Act (NT).
80. Registration of SA restraining orders under NT law
If a SA restraining order is made, amended or varied by a SA court, and either the respondent to the restraining order has a connection to a
cross-border region or the person on whose behalf the restraining order has been taken out ordinarily resides in SA, a registrar of the NT Court of Summary Jurisdiction can register that restraining order.
81. Registration of WA restraining orders under NT law
If a WA restraining order is made, amended or varied by a WA court, and either the respondent to the restraining order has a connection to a
cross-border region or the person on whose behalf the restraining order has been taken out ordinarily resides in WA, a registrar of the NT Court of Summary Jurisdiction can register the restraining order.
PART 6 – PRESCRIBED COURTS OF ANOTHER PARTICIPATING JURISDICTION EXERCISING CROSS-BORDER JURISDICTION
Division 1 – Jurisdiction and powers of courts
82. Proceedings that may be heard in Territory
This clause provides that a prescribed court of another participating jurisdiction may hear and determine a cross-border proceeding of the court in the NT if the person who is the subject of the proceeding has a connection with a cross-border region for the proceeding. If a person who is the subject of a court proceeding has a cross-border connection, for the purpose of that proceeding, a prescribed court of SA or WA may deal with that matter in the NT.
83. Exercise of jurisdiction and powers
Clause 83 allows a prescribed court of SA or WA to exercise its cross-border powers in the NT. This clause empowers the court to sit in the NT and to have registries in the NT also. The powers that a SA or WA
cross-border court, or a magistrate or registrar of that court, may exercise in the NT include compelling witnesses, administering oaths, punishing for contempt and issuing warrants, summonses and other process.
Division 2 – Miscellaneous matters relating to cross-border proceedings
84. Trial of person in Territory by prescribed court of participating jurisdiction
This clause makes it clear that a person may be tried and punished in the NT for an offence under the law of another participating jurisdiction by a prescribed court of the other jurisdiction in a cross-border proceeding, despite another law of the NT.
85. Privileges, protection and immunity of participants in proceedings
This clause extends these privileges, protections and immunities to magistrates, legal practitioners and witnesses involved in SA or WA court proceedings being conducted in the NT under cross-border jurisdiction. Noting that Magistrates, legal practitioners and witnesses involved in court proceedings in the NT have certain privileges, protections and immunities so that they are not inhibited in fulfilling their obligations to the court.
86. Court documents may be filed, served or issued in State
This clause gives permission for SA or WA court documents in relation to a
cross-border matter to be filed, served or issued in the NT.
87. Application of Court Security Act
The Court Security Act is the Act will apply to SA and WA courts when they sit in the NT and give the same protections to the courts of SA and WA as they would to an NT.
88. Law of Territory does not apply
Clause 88 provides that except to the extent that this Act provides differently, the law of the Territory does not apply in relation to the exercise by a prescribed court of another participating jurisdiction of its cross-border jurisdiction in the Territory.
Division 3 – Registration of interstate restraining orders
89. Part 2 Division 2 and Division 4 do not apply
Part 2 Division 2 sets out the criteria for determining if a person has a connection to a cross-border region. For the purposes of this Division, a different approach has been taken because of the peculiar nature of restraining orders and the registration process.
Part 2 Division 4 provides for the creation of multiple cross-border regions. In order to broaden the application of the cross-border scheme in relation to restraining orders, clauses 90(b) and 91(b) do not require a connection with a cross-border region. Clause 89 has been included to ensure that the specific requirements of clauses 90 and 91 will apply and not those of Part 2 Division 4.
90. Registration of NT or WA restraining orders under SA law
Clause 90 enables the Principal Registrar of the Magistrates Court of SA to register an interstate restraining order in the NT. To register a restraining order under this clause, is to register it as a restraining order of SA. If either the respondent to the restraining order has a connection to a cross-border region or the person on whose behalf the restraining order has been taken out ordinarily resides in SA, the Principal Registrar of the Magistrates Court of SA can register that restraining order.
91. Registration of NT or SA restraining orders under WA law
This clause enables a NT or SA restraining order to be registered in NT under WA law. To register a restraining order under this clause, is to register it as a restraining order of WA. If either the respondent to the restraining order has a connection to a cross-border region or the person on whose behalf the restraining order has been taken out ordinarily resides in WA, the Registrar under the restraining orders law of WA can register that restraining order.
PART 7 – BAIL OF PERSONS IN CUSTODY UNDER LAW OF TERRITORY
92. Police officer of Territory may exercise powers in another participating jurisdiction
Proposed section 34 sets out the provisions which apply when a NT police officer arrests a person either with or without a warrant under NT law in NT or in another participating jurisdiction. Clause 92 provides that the Bail Act (NT) (with any appropriate modifications) applies to anyone held in the custody of a NT police officer in another participating jurisdiction.
PART 8 – BAIL OF PERSONS IN CUSTODY UNDER LAW OF ANOTHER PARTICIPATING JURISDICTION
93. Police officer of another participating jurisdiction may exercise powers in Territory
Clause 93 is to be read in conjunction with proposed clause 54 which sets out the provisions which apply when a SA or WA police officer arrests a person either with or without a warrant under SA or WA law in the NT or in another participating jurisdiction. Clause 94, states that the bail laws of the SA or WA apply to any matter concerning bail for the person in custody, and not the bail laws of the NT.
PART 9 – MENTALLY IMPAIRED ACCUSED
94. Definitions
This is a definition clause. Cross-border proceedings in prescribed courts in the SA and WA, or appeals from proceedings, are “SA proceedings” and “WA proceedings” respectively. “Territory Approved Facility” is defined as an approved treatment facility as defined in the Mental Health and Related Services Act (NT) and a “Territory prison” is a prison in the Territory.
95. Persons detained or kept in custody under SA law
Clause 95 provides that if, in relation to a SA proceeding, a person is committed to detention in a hospital or prison under this SA Act, that the person can be kept in custody in a Territory approved facility or Territory prison. Section 269V of the Criminal Law Consolidation Act 1935 (SA) provides for a defendant with a mental impairment to be placed under the custody, supervision and care of another or in custody in a prison. Section 269X of that Act provides that if there is to be an investigation into a defendant’s mental competence to commit an offence or stand trial, the court may release the defendant on bail or commit them to an appropriate form of custody (although not a prison unless the court is satisfied that there is no practicable alternative).
96. Persons detained or kept in custody under WA law
Sections 24(1) and 25(2) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) makes provisions for detaining a person where there are issues of whether the person has a mental impairment.
Clause 96 provides that if, in relation to a WA proceeding, a person is committed to WA facility or kept in custody in another place in the Territory under these WA Acts, that the person can be kept in custody in a NT authorised hospital or prison.
PART 10 – SENTENCES AND ORDERS UNDER LAW OF TERRITORY
Division 1 – Custodial sentences and orders
Subdivision 1 – Sentences of imprisonment or detention
97. Serving sentence in Territory or another participating jurisdiction
If a person who is sentenced under NT law has a connection with a cross border region, that person can be held in custody for the purpose of serving their sentence under NT law in a prison or detention centre in the NT, SA or WA.
98. Warrant of commitment
This clause provides that a warrant of commitment has general effect and does not specify in which prison or detention centre a sentence is to be served. The warrant is not directed to any particular authorised officer, but to authorised officers in general. This provides flexibility in where a cross-border prisoner or detainee may serve their sentence, which is one of the aims of the scheme. A NT sentence can be served in SA or WA, and vice versa. A “warrant of commitment” is the approved form that is issued by judicial officers or court registrars if a person is sentenced to imprisonment or detention.
Subdivision 2 – Remand
99. Remanded in custody in Territory or another participating jurisdiction
If a person who is remanded in custody under NT law has a connection with a cross-border region, that person can be held in custody for the duration of their remand under NT law in a remand facility in the NT, SA or WA.
100. Remand warrant
This clause provides that a judicial officer or registrar of the court remanding a person to whom section 99 applies may issue a warrant (A “remand warrant”) in the approved form that is issued by judicial officers or court registrars if a person is remanded in custody.
Under clause 101, a remand warrant has general effect and does not specify in which prison or detention the person is to be held. For that reason, the warrant is not directed to any particular authorised officer, but to authorised officers in general. This provides flexibility as to where a person the subject of cross-border proceedings can be held in custody, which is one of the aims of the scheme.
101. Law of Territory applies
The law of the Territory applies (with any appropriate modifications) in relation to the remand of a person in another participating jurisdiction under the remand warrant issued under section 100.
Subdivision 3 – Bring up orders
102. Bringing up prisoner or detainee in another participating jurisdiction before judicial body of Territory
This clause states that the section applies in relation to a person in custody in a prison or detention centre in another participating jurisdiction under the law of the participating jurisdiction. That for certain purposes a prisoner or detainee is required or entitled to be brought before a court in relation to proceedings before a judicial body (e.g. sentencing).
A “judicial body” of the Territory is defined and includes a court, tribunal or other body or person that under the law of the Territory has a judicial or quasi judicial function or otherwise acts judicially, and includes a Board of Inquiry under the Inquiries Act.
This clause provides that such an order can be made in relation to a person in custody in SA or WA prison or detention centre under the law of any of the participating jurisdictions
This can only occur if the person has a connection with a cross-border region which includes the jurisdiction in which they are held.
103. Custody of person brought up from prison or detention in another
participating jurisdiction
The person who is in charge of a prison or detention centre where a person the subject of a bring up order is held in custody, does not have to personally bring the person before the court. This function can be delegated to an authorised officer and a person who is taken from a prison or detention centre in compliance with a bring up order, must remain in the charge of an authorised officer. At the end of the proceeding involving the person brought up from prison or detention, that person must be returned to the prison or detention centre. Their absence from prison or the detention centre for this purpose is not to be held against the person.
A proceeding involving a person who is the subject of a bring up order could be adjourned. In this circumstance, they are to be confined to a prison or detention centre in a participating jurisdiction or, whilst in the charge of an authorised officer, kept at some place in a participating jurisdiction. They are then to be brought up before the judicial body when required.
Subdivision 4 – Miscellaneous matters
104. Carrying out custodial orders
This clause provides that NT custodial orders can be carried out by an authorised officer in the NT or in SA or WA.
105. Application of Prisons (Correctional Services) Act
This clause provides that the Prisons (Correctional Services) Act does not apply in relation to a person in custody in a prison in another participating jurisdiction under this Part. If a person is being held in custody under NT law in a prison in SA or WA, they do not fall within the scope of this Act. Instead, the corresponding Acts of the SA and WA would apply.
106. Application of Youth Justice Act
This clause provides that the provisions of the Youth Justice Act prescribed by regulation do no apply in relation to a person in custody or in a detention centre in another participating jurisdiction. Those sections of this Act which do not apply to a person held in custody in a detention centre under NT law in SA or WA.
Division 2 – Non-custodial sentences and orders
107. Carrying out non-custodial orders in another participating jurisdiction
A person who is convicted of an offence may receive a non-custodial sentence. If they have a connection with a cross-border region, they may carry out the terms of this sentence either wholly or partly in SA or WA.
108. Conducting diversionary programs for young offenders in another participating jurisdiction
A police officer, juvenile justice officer or other office holder the Territory may exercise in another participating jurisdiction any of the powers the office holder has under Part 3 of the Youth Justice Act in relation to an alleged offender who has a connection with the cross-border region.
PART 11 – SENTENCES AND ORDERS UNDER LAW OF ANOTHER
PARTICIPATING JURISDICTION
Division 1 – Custodial sentences and orders
109. Serving sentence of imprisonment or detention in Territory
If a person who is sentenced under SA or WA law has a connection with a cross border region, that person can be held in custody for the purpose of serving their sentence under those laws in a prison or detention centre in the NT.
110. Remanded in custody in Territory
If a person who is remanded in custody under SA or WA law has a connection with a cross-border region, that person can be held in custody for the duration of their remand under those laws in a remand facility in the NT.
111. Carrying out custodial orders
Where a custodial order has been made under the law of SA or WA, it can be carried out in the NT by an authorised officer of any of the participating jurisdictions. An NT authorised officer may carry out a custodial order made under SA or WA law in either SA or WA.
112. Effect of bring up order if person in custody under law of Territory
A person can be held in custody under NT law in a SA or WA prison or detention centre. The person may be the subject of a SA or WA bring up order. If they are absent from prison or detention centre in order to comply with a SA or WA bring up order, this is not to be held against them for the purpose of the NT sentence.
113. Application of Prisons (Correctional Services) Act
The Act applies in relation to a person in custody in the Territory under this division, If a person is being held in custody under SA or WA law in a prison in the NT, they fall within the scope of this Act.
114. Application of Youth Justice Act
This Clause provides that the provisions of the Youth Justice Act prescribed by regulation apply in relation to a person in custody in a detention centre in the Territory under this division.
Division 2 – Non-custodial sentences and orders
115. Carrying out non-custodial orders in Territory
A person who is convicted of a SA or WA offence may receive a non-custodial sentence. If they have a connection with a cross-border region, they may carry out the terms of this sentence either wholly or partly in the NT.
116. Conducting diversionary programs for young offenders in Territory
A juvenile who is alleged to have committed an offence in SA or WA may be directed to a diversionary program under the relevant laws of those jurisdictions. If they have a connection with a cross-border region, they may participate in a diversionary program either wholly or partly in the NT. Officer holders such as Juvenile Justice Officers and other office holders may supervise a young person on a diversionary program.
This clause provides that SA and WA officers can fulfil these responsibilities under SA and WA respectively in the NT provided that the person on the diversionary program has a connection to a cross-border region. NT laws do not apply in these circumstances.
PART 12 – ENFORCEMENT OF FINES
Division 1 – Preliminary matters
117. Definitions
This clause provides for definitions in Part 12.
If a person fails to pay a fine in the NT, they can have their drivers licence suspended. “Director of Transport” refers to the Director of Transport under the Traffic Act. The other definitions are self-explanatory.
Division 2 – Fines under law of Territory
118. Request to enforce fine in another participating jurisdiction
This clause provides that a fine that is referred to the Fines Enforcement Agency for enforcement, is registered by that office. It may be more expedient for a NT fine to be enforced in SA or WA. In this case, the fines Director may ask the SA or WA fines enforcement agency to register the fine for enforcement in their jurisdiction, provided that the offender has a connection with a cross-border region. The serious nature of the payment of fines requires that such a request must be made formally in writing and is supported by a certified copy of the order imposing the fine, a certificate from the NT fines Director showing the amount of the fine outstanding and providing written advice that establishes the offender’s connection with the cross-border region.
119. Effect of making request
On making the request the fines Director must cancel any order or unexecuted warrant in force in relation to the fine under Part 5 of the Fines Enforcement Act and if the Director cancels a licence suspension order, advise the Director of Transport of the cancellation.
120. Receipt of amount by fines Director
This clause provides that the fines Director is to give written notification to the fines enforcement agency in the other jurisdiction that they have received an amount in whole or part from the offender when this has happened.
121. Receipt of amount from reciprocating agency
Should the fines enforcement agency in the SA or WA send any money to the fines Director in part or whole payment of a fine, then the payment is to be treated as if it were received from the offender.
122. Resumption of enforcement by fines Director
After the NT fines Director has requested another jurisdiction’s fines enforcement agency to take over the enforcement of a fine, the Director can request that agency to refer the fine back to the NT. Also, that other jurisdiction’s agency can request that the NT resume responsibility for a fine.
Division 3 – Fines under law of another participating jurisdiction
123. Request to enforce fine in Territory
If a fine has been imposed in SA or WA, and the fines enforcement agency in that jurisdiction sends a request to the NT Fines Director to enforce a fine, the NT fines Director has no alternative but to register the fine unless the request does not comply with the requirements set out in subclause 118(2). The serious nature of the payment of fines requires that, under clause 118(2), such a request must be made formally in writing and is supported by a certified copy of the order imposing the fine, a certificate from the NT or SA agency showing the amount of the fine outstanding and providing written advice that establishes the offender’s connection with the cross-border region.
124. Effect of registration
Once a SA or WA fine has been registered in the NT, it is enforced under NT law up to the point where the fines Director would ordinarily issue a warrant of commitment.
Because of the substantial differences in approaches to the enforcement of fines, it would be unjust if a person originally fined under SA law could find themselves imprisoned under NT law when this would not necessarily be the case in SA.
Therefore, if a SA or WA fine is registered in the NT for enforcement, once all other avenues of expiation have been exhausted and the only option left would be imprisonment if it were a NT fine, the NT Fines Registrar cannot issue a warrant of commitment.
125. Receipt of money by reciprocating agency
This clause provides that after registration of the order imposing a fine under section 126(1), the fines Director receives written notice from the reciprocating agency that the offender has paid the amount in whole or part, the Director must record the payment and may take action or further action under the Fines Enforcement Act for the amount of fine outstanding.
126. Receipt of amount by fines Director
This clause provides that should the NT fines Director receive money in part or full payment of an SA or WA fine that has been transferred to and registered in the NT for enforcement, the NT fines Director is to send the money to the SA or WA fines enforcement agency.
This applies to money paid by the offender or as a result of enforcement action taken by the NT fines Director under NT law (e.g. seizure of goods).
127. Request to cease enforcement of fine
A SA or WA fines enforcement agency which has previously transferred a fine to NT for enforcement, can request that the NT FRU ceases to take action to enforce the fine. Alternatively, the NT fines Director may inform the SA or WA agency that the NT will no longer be enforcing the fine. If a fine is being returned to the SA or WA agency which had requested that NT enforce the fine, the NT fines Director is to cancel any outstanding order or unexecuted warrant in the NT in relation to that fine. If this includes cancelling a licence suspension that has resulted from non-payment of a fine, then the fines Director is to advise the Director of Transport responsible for licensing of this. The fines Director is to advise the SA or WA agency of what money has been received in relation to the fine and any reduction in the amount of the fine outstanding. Any money that has been received in relation to the fine is to be sent to the other jurisdiction’s agency. The NT fines Director is not to take any further action with respect to this fine.
PART 13 – OFFICE HOLDERS OF PARTICIPATING JURISDICTIONS
Division 1 – Holding offices and exercising powers under law of other jurisdictions
128. Secondary office holders and secondary offices
Secondary office holders are people who hold an office by virtue of holding some other office.
129. Office holders of Territory may be secondary office holders of another participating jurisdiction
NT office holders may hold a secondary office from the SA or WA. This clause also authorises NT office holders to exercise the powers of their SA or WA secondary office for the purpose of administering or enforcing SA or WA cross border laws.
130. Office holders of another jurisdiction may be secondary office holders of Territory
SA and WA office holders may hold a secondary office under NT law. This clause also authorises them to exercise NT powers for the purpose of administering or enforcing NT cross-border laws.
131. Terms of appointment of secondary officer holders under law of Territory
A SA or WA office holder who holds a secondary office in NT, does not receive remuneration from the NT as well as from the jurisdiction of their principal office. They are only entitled to the remuneration that they receive in relation to their principal office. Should they no longer hold their principal office to which their status as a secondary office holder in the NT is linked, then they cease to be a secondary office holder.
Division 2 – Appointment of magistrates of another participating jurisdiction to be magistrates of Territory
132. Appointment as magistrates
The Magistrates Act applies (with modifications) in relation to the appointment of magistrates of another participating jurisdiction to be magistrates under the Magistrates Act (NT).
PART 14 – MISCELLANEOUS MATTERS
133. Reporting accidents, producing driver’s licences etc. to police stations etc.
Laws such as road traffic laws (defined for the NT as being the Traffic Act), place obligations on people to, for example, report certain events such as a serious motor vehicle accident to the police. This clause provides that this obligation under NT law can be met by making a report to a police station in another participating jurisdiction if the person has a connection with a cross border region. Likewise, if a person is required to make a report to the police of another participating jurisdiction they may do so at a WA police station. For the purpose of this clause, the connection to a cross-border region can be established under clauses 20, 23 or 24, depending on which applies to the person.
134. Operation of Coroners Act
This clause provides that the Act does not affect the application of the Coroners Act (NT) in relation to the investigation of the death of a person.
135. Power of Minister to enter agreements
To support the successful implementation of cross-border justice schemes, it is intended that there be agreements between governments at ministerial level. This clause provides for this.
136. Inconsistency between Act and agreement
There are intergovernmental agreements at ministerial level to support this Bill. There will also be service level agreements at agency level for police, courts, community corrections, fines enforcement and so on. Should there be an inconsistency between the terms of any of these agreements and this Bill, the terms of the Bill will prevail.
137. Protection of office holders of Territory taking action in another participating jurisdiction
Office holders have certain protections and immunities in relation to the performance of their official duties. This clause ensures that an NT office holder performing the duties of their NT office in SA or WA, have the same protections and immunities as if they were performing these duties in the NT.
138. Protection of office holders of another participating jurisdiction taking action in the Territory
Office holders have certain protections and immunities in relation to the performance of their official duties. This clause provides that SA and WA office holders performing the duties of their SA or WA office in the NT, have the same protections and immunities under NT law as if they were performing these duties in SA or WA.
139. Disclosure of information to authorities in another participating jurisdiction
Privacy and other laws restrict the capacity of agencies to share information about individuals unless the legislation governing the activities and powers of agencies explicitly allows the sharing of information. For the successful administration of this legislation, it will be necessary for agencies of each of the participating jurisdiction to share information with other agencies from the other participating jurisdictions
This clause authorises the exchange of information across the jurisdictions where an agency would be authorised to provide the same information to the equivalent body in its own jurisdiction. There is also explicit provision in this clause for the CEO (corrections) to provide information for the purpose of research.
140. Delegation by Chief Executive Officer
This clause empowers the CEO to delegate (in writing) their powers and functions under the legislation. The CEO may place limits on this delegation. The person to whom the CEO delegates powers cannot delegate them further to someone else.
141. Regulations
This clause enables the Administrator to make regulations under the Act.
142. Review of Act
This clause provides that the Minister must carry out a review of the operation and effectiveness of this Act as soon as practicable after the expiry of 3 years after the commencement of the Act.
PART 15 – CONSEQUENTIAL AMENDMENT OF LAWS
Division 1 – Alcohol Court Act
143. Act amended
The Act to be amended is the Alcohol Court Act.
144. Amendment to section 8 (Registrar of the Court)
A new subsection 2 is inserted providing that if the Court is required to perform its functions at a place outside the Territory, the Minister may appoint as a Registrar of the Court at the place a person who holds office as a registrar or deputy registrar of a court or the jurisdiction in which the place is located or another appropriately qualified person.
145. Amendment of section 9 (Where Court may sit)
This clause inserts the words “including a place outside the Territory”.
Division 2 – Justices Act
146 – Act Amended
The Act to be amended is the Justices Act.
147. Amendment of section 42 (Clerk of Court)
This clause provides that after section 42 a new subsection 42(1) is inserted that states that the Court is required to perform its functions at a place outside the Territory, the minister may appoint as a Clerk of the Court at the place, a person who holds office as a registrar or deputy registrar or a court of the jurisdiction in which the place is located.
148 New Section 60
This clause inserts a new section 60A concerning where Court may be held. The Court may sit in locations (including a place outside the Territory) the Minister directs and in any building approved by the Minister for the holding of the Court.
Division 3 – Local Court Act
149. Act Amended
The Act amended by this Division is the Local Court Act.
150. New Section 5A
This clause inserts a new section 5A concerning where a Court may be held. The new clause provides that the Court may sit in the locations (including a place outside the Territory) the Minister directs and in any building approved by the Minister for the holding of the Court.
151. Amendment of section 9 (Registrar)
Section 9 of the Local Court Act is amended to insert subsections (4) – (8) concerning where the Court is required to perform its functions at a place outside the Territory, the Minister may appoint a Judicial Registrar, Registrar or Deputy Registrar of the Court at the place. The clause also provides for conditions of service where a person is appointed as one of the above positions.
Division 4 - Magistrates Act
152. Act amended
The Act amended by this Division is the Magistrates Act.
153. Amendment of section 20 (Oath, &c., of office)
Section 20 of the Magistrates Act is amended insert after “oath” the words “affirmation” including a requirement that the oath or affirmation must be taken or made before a Judge; or if taken or made outside the Territory – a person authorised by the Administrator to take into consideration the amendments for the appointment of cross-border officers.
Division 5 - Police Administration Act
154. Act amended
This Division amends the Police Administration Act.
155. Amendment of section 32 (Special Constable to take oath or make affirmation)
This clause provides for a new subsection 32(2) concerns the taking of an oath or affirmation of a Special Constable if taken or made outside the Territory, that a copy of the oath and a written statement signed by the person to the Commissioner within 14 days after it is taken or made.
156. Amendment of section 34E (Oath or affirmation)
This clause omits reference to section 34E(3) and (4).
Division 6 – Youth Justice Act
157. Act amended
The clause provides that the Division amends the Youth Justice Act.
158. Amendment of section 47 (Registrar of Youth Justice Court)
After section 47(1) a new subsection (2) is substituted referring to the situation in which the Court is required to perform its functions at a place outside the Territory, the Minister may appoint as Registrar of the Court at the place a person who holds office as a registrar of a court of the jurisdiction I which the place is located or another appropriate qualified person.
159. Amendment of section 48 (Where Youth Justice Court may be held)
This clause inserts the words “include a place outside the Territory” after the word “locations” in section 48(1).
Division 6 – Expiry Part
160 – Expiry
This clause provides that this Part expires the date after it commences.
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