Supreme Court of Cocos (Keeling) Island

The Supreme Court of Cocos (Keeling) Island is one of the highest courts for the Cocos (Keeling) Islands, a territory of Australia. The court was originally established in 1958 after the British Government transferred sovereignty for the island from Singapore to Australia. The court had jurisdiction to deal with all serious crimes and major civil claims for damages occurring on the Island.

Judges from Australian courts were appointed to be judges of the court. Those judges would travel to the island to hear, consider and determine cases. In 1992 courts in Western Australia were given concurrent authority to deal with cases on the Island, and those courts have now become the only venue in which litigation is conducted. The Court does not now actually decide cases, as the court will be abolished once the last appointed judge retires.

Background to establishment of court

The Territory of Cocos (Keeling) Island is located in the Indian Ocean. The Islands lie about 2700 kilometres north-west of Perth, Western Australia. There are approximately 27 coral islands. William Keeling discovered the uninhabited Islands in 1609. Alexander Hare first settled them in 1820 with people of Malay origin. In 1827 John Clunies-Ross settled on the Island to harvest coconuts. The Islands are named after the coconut “Cocos Nucifera”. The British Government annexed the Islands in 1857. The Islands became a territory of Australia on 23 November 1955 after having been administered as a dependency of the British Crown Colony of Singapore. As a result of the transfer in 1955, all laws in force before the transfer were to continue except as amended or repealed by Ordinance. The laws inherited have been described as “a complex legal legacy”. They include United Kingdom law, Straits Settlements laws, and Singapore laws.Islands in The Sun Report. p72] Punishments, such as whipping and beating, were still available as options for dealing with criminal offences. Islands In the Sun Report. p79]

Establishment of the court

The court is established by section 4 of the Supreme Court Ordinance 1955 as the Supreme Court of Cocos. The court has jurisdiction under the Singapore Courts Ordinance. This Ordinance gives it all the jurisdiction which the Supreme Court of the Australian Capital Territory had in 1955. The jurisdiction of the Supreme Court of the Australian Capital Territory is in turn based on the jurisdiction of the Supreme Court of New South Wales that existed on 1 Janaury 1911. Islands In the Sun Report. paragraph 28] The court also had jurisdiction when an applied Singaporean law said that either the Supreme Court of the Straits Settlements (including the High Court of that court or the Court of Appeal of that court), the Supreme Court of the Colony of Singapore (including the High Court, or the Court of Appeal of that Court, or the Court of Criminal Appeal of either the Straits Settlements or of the Colony of Singapore.Islands In the Sun.paragraph 16]

The Supreme Court Rules as they existed in the Australian Capital Territory before 23 November 1955 governed the procedure of the Court. This was the date on which the court was established. All cases were to be heard by a single judge without a jury. The Court was to sit principally on the West Island but it could sit anywhere having regard to the interests of justice.p71] The Administrator of the Island is the registrar of the Court. p71] The Administrator is appointed by the Governor-General. 75] One of the difficulties for the Islanders was that there were no resident lawyers on the Island. Coupled with the time difference, it was hard to get timely advice on the legal matters in the territory. p76]

Notable cases

In Clunies-Ross v TotterdellRe John Cecil Clunies-Ross Ex Parte: Geoffrey Frank Totterdell, the Trustee of the Property of John Cecil Clunies-Ross, A Bankrupt [1988] FCA 301 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/1988/301.html?query=FCA%20301 ] , Justice French of the Federal Court of Australia held that the Bankruptcy Ordinance 1888 of the former Colony of Singapore continued to apply to the Island. As a consequence, the court could assist Singaporean courts in bankruptcy proceedings as the court still had a bankruptcy jurisdiction based on that old law. French also held that the United Kingdom Bankruptcy Act 1914 (UK) continued to apply to the court. As a result, bankruptcy on the Island could be dealt with under that English law. It was accepted that Australian bankruptcy laws did not apply to the Island and a letter of request was necessary to be issued for Australian laws to apply.

In giving his judgment on the then state of the law, French said that the laws of the territory can be regarded as “regulated by a system of law which is Byzantine in its complexity”. Paragraph 43]

Reform

The Australian House of Representatives Standing Committee on Legal and Constitutional Affairs conducted an inquiry into the state of laws in the Island, as well as other Territorities under Australian control. In March 1991 it tabled its findings on those legal systems in what is known as the “Islands in the Sun” report. In respect of the Island, it concluded that the laws were a “national disgrace” p43] and probably breached United Nations standards. The committee recommended that the laws that applied in Western Australia replace the existing legal regime. Islands in the Sun Report. Section 2.22 ]

Abolition of the court

In 1992 the Australian Parliament passed laws which put into effect the recommendations of the committee. One of the consequences of this change was that courts in Western Australia have undertaken the work of the court under a service delivery arrangement with the Commonwealth Government. [http://www.aph.gov.au/house/committee/ncet/iotgovernance/report/fullreport.pdf ] The Western Australian Magistrates Court, District Court, Supreme Court, Family Court, Children's Court and Coroner's Court all provide services to the Island as required. [Annual Report. Cocos (Keeling) Island] As a result, the utility for a separate superior court in the territory was no longer necessary.

Those legal changes provide that the Governor-General may abolish the court by way of proclaimation on a future date once the last judge of the court retires.

Judges of the court

* Justice Kriewaldt – Judge [ http://www.nt.gov.au/ntsc/judges/former/kriewaldt.html]
*Robert Shenton French - Judge [ http://www.fedcourt.gov.au/pdfsrtfs_c/chapter1_99.htm]
*Malcolm Cameron Lee – Additional Judge [ http://www.fedcourt.gov.au/pdfsrtfs_c/chapter1_99.htm]

References

ources

*Islands In the Sun. The Legal Regimes of Australia's External Territories and the Jervis Bay Territory. Report of the House of Representatives Standing Committee on Legal and Constitutional Affairs. March 1991
* “The Australian People” James Jupp, Cambridge University Press, 2001. ISBN 0521807891
*”The Constitutional Systems of the Australian States and Territories” Gerard Carney, Cambridge University Press, 2006. ISBN 0521863058
*”Australia’s Arc of Instablility” Dennis Rumley, Vivian Louis Forbes and Christopher Griffin. Springer Publishing. 2006. ISBN 1402038259
*“Federal Jurisdiction in Australia” 1959 by Zelman Cowen Oxford University Press ISBN 0195500547
*“Annual Law Review” by Law School, 1959 University of Western Australia
*”The Cambridge Handbook of Australian Criminology” Adam Graycar & Peter N. Grabosky. ISBN:0521818451 p73.
*http://www.austlii.edu.au/au/cases/cth/FCA/1988/431.html