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LEGISLATIVE ASSEMBLY MEETING ON FRIDAY, 26 AUGUST 2011 (2)

LEGISLATIVE ASSEMBLY MEETING ON FRIDAY, 26 AUGUST 2011

(Part 2: Motions 6 and 7 and Legislation)

Commentary by J. Brock (FINN)

A meeting of Legislative Assembly took place at 0930hrs on Friday, 26 August 2011. Present were the Hon Mrs Jan Cheek (JC), the Hon Miss Emma Edwards (EE), The Hon Mr Roger Edwards (RE), the Hon Mrs Sharon Halford (SH), the Hon Mr Gavin Short (GS), and the Hon Mr Mike Summers (MS). Also present were the BFSAI Chief of Staff, Mr Jim Kline (JK), Acting Financial Secretary, MS Nicola Granger (NG), The Clerk of Council Ms Claudette Anderson-Prior (CAP), The Deputy Speaker, Mr Anton Livermore (AL), the Chief Executive Mr Tim Thorogood (TT), and the Attorney General, the Hon Mr Mark Lewis (ML).

MOTION No: 6 of 2011

"That this House accepts the response from the Governor (in Council) on the report of the Public Accounts Committee on FIG use of Vehicles

Proposed: The Hon Gavin Short:

GS: Mr Speaker, Honourable Members, this report provides the Governments response to the report of the Public Accounts committee on FIG use of Government Vehicles received by this Assembly at its February meeting.

The Public Accounts Committee has recommended that FIG should audit fuel use monitoring systems periodically throughout departments, analyse the relative merits of the existing system of procurement of vehicles and Plant and to look into the feasibility and cost benefits of greater use of private vehicles for Government business.

The recommendations were considered by Executive Council, which accepted the recommendations in principle and agreed that during the 2011/12 financial year the Director of Public Works in conjunction with the Chief Internal Auditor and Plant and Vehicle manager would develop a system to monitor vehicle fuel usage, investigate the options for vehicle maintenance and contracts and report on the feasibility and implications of encouraging greater use of private vehicles for Government business.

Mr Speaker, I move the Motion.

Second: The Hon Sharon Halford:

SH: Mr Speaker I second the Motion.

The Motion was Passed.

MOTION NO 7 of 2011

That this House accepts the response from the Governor (in Council) on the report of the Public Accounts Committee on Falklands Landholdings Corporation (FLH) Accounts to year end 30 June 2009

Proposed: The Hon Sharon Halford:

SH: Mr Speaker, this report provides the Governments response to the report of the Public Accounts committee received by this Assembly at its February meeting.

The Public Accounts Committee had recommended that an updated public statement be made regarding the direction and management of FLH, with clear management and financial targets over a declared period.

This recommendation was considered by Executive Council, which accepted the recommendation in full. Executive Council then approved a statement of priorities and objectives for FLH to fulfil the first part of the Public Accounts Committees recommendation. This statement is detailed in section 4.2 of the report clarifies the priority for FLH must be to make a profit or at least break even.

It then lists in order of priority a specific set of objectives for FLH. Profitability and productivity are at the top of this list and maintaining social structure and creating Camp communities also feature.

Executive Council further considered proposed management and financial targets. However, it decided that these should be re-presented within 6 months in a clearer form.

Mr Speaker, I am thus pleased to report that not only has the Public Accounts Committees recommendations been accepted in full but have already been fulfilled in part with complete fulfilment scheduled within 6 months.

Mr Speaker, I move the Motion.

Seconded: The Hon Jan Cheek:

JC: Mr Speaker, I second the Motion.

DS: Mr Speaker, Honourable Colleagues, I would just like to say that these two reports from the Public Accounts Committee I would just like to applaud the work of the Public Accounts Committee and I think this shows what a useful body it is. And I would like to thank all those involved in the PAC for their hard work in producing these documents.

ORDER OF THE DAY: BILLS

Electoral (Amendment) Bill 2011: (Gazette No 10 of 3 August 2011):

Legislative went straight to the second reading as it was already in the Falkland Islands Gazette

Explanation by the Hon Chief Executive:

TT: Mr Speaker, Thank you. This Bill would make a number of mostly very technical amendments to the Electoral Ordinance. Members may be relieved to know that I did not intend to give a detailed explanation of all 64 clauses to the Bill.

Mr Speaker, the Electoral Ordinance was amended to some extent before the 2001 Referendum. However, the ordinance was reviewed again in preparation for the forthcoming single constituency referendum and further amendments need to be made. The majority of changes to be made by this Bill simply ensure the existing provisions in the Electoral Ordinance apply exclusive of modifications to the referenda as well as elections. However, the opportunity has also been taken to make a number of other changes to the Electoral ordinance.

Firstly, the Bill would make changes to allow the system of rolling registration, to simplify it and to make it work more effectively.

Secondly the Electoral Ordinance currently provides tenderedballot papers to be issued when someone attempts to vote that is marked as having voted already or has arranged to vote by proxy or postal proxy. Tendered ballot papers are not actually counted and in practice are very rarely issued. It is proposed to abolish them.

However, the single constituency referendum is being used as a pilot for this. So, unlike the rest of the Bill, the amendments relating to tendered ballot papers only come into force at a later date.

Thirdly, the Electoral Ordinance still contains an out dated provision allowing the Governor to require announcements about elections be broadcast on the Former Falkland Islands Broadcasting Station. That will be replaced with a power, subject to safeguards, to make subsidiary legislation about publicity for the arrangements for elections and referenda and also about regulating media coverage of campaigns.

Fourthly the Bill would allow candidates partners not just spouses to attend the counts.

Finally there are changes that are even more technical still. To summarise them: some of them reflect the changes made in the Constitution such as references to the former Legislative Council. Others transfer functions formerly carried out by the Government Secretary, the provision about how election candidates consent to nomination would be amended to reflect the demise of the telegram. Finally there are corrections to cross-referencing other minor errors that are to be identified in the existing version of the Electoral Ordinance.

Mr Speaker, I beg to move the Bill be read a second time.

The Hon Acting Financial Secretary seconded the Motion. There was no debate and the Bill was dealt with by the Short procedure and passed.

Jury (Amendment) Bill 2011 (Gazette No 8 of 4 July 2011):

The Bill had been published in the Falkland Islands Gazette and required a second reading.

Explanation by the Hon Chief Executive:

TT: Mr Speaker, when someone is charged with a serious crime that is to be heard in the Supreme Court rather than the Magistrates Court, that person has the right to choose between being tried by a Judge sitting alone or by a Judge and Jury. That right is specifically provided for in the Constitution and it is reflected in section 16 of the Jury ordinance.

The right to choose between being tried by a Judge and Jury is one aspect of the wider right to a fair trial, which is enshrined in section 6 of the Constitution.

However, potential short comings have been identified in the current provisions relating to Jury Trials. First, there is at least a risk that a verdict could be challenged because of the pool of potential Jurors not being large enough or wide enough. The size of the Jury pool also creates practical difficulties in assembling a large enough panel for Jury Service.

Secondly there is a risk that in some circumstances there could be inconsistent verdicts in separate trials on the same indictment.

Mr Speaker, both the defendant and the prosecution may challenge a Juror on the grounds of prejudice or partiality. This is consistent and a right of fair trial. There are situations in which it could be very difficult in practice to convene a Jury that is as free as possible from prejudice or partiality, especially in a small community like this one. Even the perception of prejudice or partiality is a problem. Justice must not only be done, it must also be seen to be done.

One of the things this Bill is intended to do is to reduce the risk of challenge as far as possible by extending the qualification of Jury Service and hence the pool of possible Jurors.

Mr Speaker, Clause 5 would replace section 3 of the Jury Ordinance with a new version setting out a new set of qualifications for Jury service. Jurors would be drawn from a large and wider pool of people based on 5 categories.

Firstly, as now, registered voters, which covers those with Falkland Islands Status, Secondly, Permanent Residence Permit Holders, Thirdly, work permit holders, Fourthly, Residence Permit Holders and Fifthly, Adult Dependants named on Permanent Residence Permits, Work Permits and Residence Permits.

There would be no longer requirements for 5-years ordinary residence since the age of 13 but simply a requirement to be ordinarily resident at the time of Jury Service. It might be helpful to mention at this stage that if the Bill is given a second reading I will also be moving an amendment to increase the upper age limit for Jury service from 65 to 70. Mr Speaker, these changes would approximately double the number of people who would be qualified for Jury service.

Clauses 6, 7, and 8 would make the necessary changes to the machinery to identifying those who are liable for Jury service and summoning Jurors when they are needed. Those who serve on a Jury are excused from further Jury service for at least two years. At the moment, this also applies to those who attend for Jury service but do not actually serve on a Jury.

Clause 9 would reduce the number of those who move from the Jury pool by limiting excusal to those who actually serve on a Jury.

Mr Speaker, moving on to the second of the two issues, that is the risk of inconsistent verdicts; when more than one person is being charged at the same time with the same offense or connected offenses. Each of them has a separate right to choose whether to be tried by a Judge and Jury or to be tried by a Judge sitting alone. Obviously they may choose differently and there have to be two sets of trials one before a Judge and Jury and the other before a Judge sitting alone for the same offense or connected offenses. Section16(3) of the Jury ordinance deals with that situation. It provides that the Jury trial must be held first and that it must be completed before the trial with the Judge sitting alone can start.

Mr Speaker, the rationale behind that seems to have been to protect the Jury from the risk of being prejudiced by the verdict of the Judge in the earlier case. However, that order might not be appropriate in all circumstances. Obviously it is always possible that two separate trials might end in two separate verdicts. However, it is also possible in certain situations where the different verdicts might actually be contradictory.

Clause 10 of the Bill would amend section 16 of the ordinance to allow a trial Judge to decide which is the most appropriate order to conduct the trials. The Trial judge would be able to listen to the arguments from both sides and decide which order is more appropriate in the circumstances in a particular case. These amendments should protect the right to trial by Jury and the right to a fair hearing within a reasonable time by a fair and impartial court.

If existing provisions are left as they are, there is a serious risk the defendants could successfully argue that their rights to a fair trial have been infringed. This Bill is intended to reduce that risk.

Mr Speaker I beg to move that the Bill be read a second time.

The Acting Financial Secretary seconded the motion.

JC: Firstly I welcome this because historically we have had at least one case I know of and there may be more where verdicts were overturned because the person convicted was successfully able to appeal on the grounds that he was too well-known to some of the jurors. I also welcome it because I know the pool of Jurors is so small now that some are over-burdened and if a trial takes place in summer, for example, farmers may be taken away from their farms unless they can come up with a very good reason not to for a week or more at a time.

But what we will want to know as soon as possible and I think this will probably be something that the Attorney Generals Department will be able to tell us and that is what process will be put in place to ensure that Jurors whatever sort of permit holder or connection there may be but what will be put in place to ensure that they have sufficient command of the English language to understand the evidence presented to them in Court.

Otherwise I support the Bill.

ML: (The Hon Attorney General) Thank-you Mr Speaker, in the legislation itself in the Juries Ordinance that there isnt a specific requirement in terms of sufficient command of the English Language. However, when Jurors are called there are opportunities for both the Prosecution and the Defence to examine those Jurors to satisfy themselves that they are capable and appropriate people to hear that case. If as part of that process it becomes apparent that there is a lack of understanding of the English Language then those Jurors can be rejected by the Prosecution and by the Defence Councils. So there is a safeguard in place. There is no test in the Ordinance as it were.

I suppose the other thing after that response is in terms of are immigration provisions there are provisions in there which require certain standards of English in terms of people coming to work and reside on the Islands. So there is a secondary degree of protection in that sense.

MS: Mr Speaker, I welcome the purpose of this Bill and the intent behind it is clearly important. However, I have serious misgivings about the process. This is an important issue dealing with the rights of people to a fair trial. It cannot be right that the principles of it being adopted that were set out in the Executive Council Paper in the first instance were not made public. And I had to protest to the Governor to get those issued in the first place. In the second place there now appears to be a number of amendments coming to the House, which are quite substantial amendments; and not everybody has had the opportunity to review those and discuss them at length. I dont object to a second reading of this Bill but I would object to a third reading and a completion of the bill because I dont think this has been properly handled. This is not a piece of legislation that needs to be rushed through; its a fundamentally important piece of legislation that all of the public should have the opportunity to feel comfortable with. I certainly dont feel comfortable with all the issues that have now been laid before us and are likely to be laid before us in amendments have been properly considered.

DS: Mr Speaker, Honourable members, as somebody that has been involved in various events in this courtroom, this is something which certainly those in the Judiciary here have been well aware of as a very practical problem. And I think this Bill seeks to address two main issues and one is the practical problem of selecting Jurors and the other is the fundamental right that any defendant has to a fair trial and objectivity from those Jurors. In this very small society where we have, as has been pointed out, at the moment of the list of potential Jurors probably only about 50% of the working population of the Falklands, it is incredibly difficult for any defendant to feel that they are going to be treated fairly, so I welcome this Bill. I take on-board the comments made by the Honourable Mike Summers and there could perhaps have been more consultation I dont necessarily disagree with that but I would like to support my Honourable Colleague, Jan Cheek, when she mentions the test of the ability of a Juror to speak in and understand English. And I believe that, that test has to be somewhat greater than the one that is applied when a residency permit or a work permit or a PRP application is made. I think that is a very fundamental issue and its not perhaps one that would not be heard or investigated thoroughly when the Jurors are selected by both sides in the Court.

GS: In rising, I, too, support this Bill. It is needed because its been here before. There is a very real danger here that you may not be able to get an untainted Jury. However, Dick Sawle has actually slightly stolen my thunder, I do have reservations that the test that is given to a person applying for PRP to the level of English, I dont think would apply to Jury service. That really is just a test to find out whether you have a good enough understanding of English to survive on a day to day basis. I would think a trial probably is a whole different ball game and would require a much greater grasp of the English language.

AL: (The Speaker) The Motion is that the Bill be read a second time. Is there any objection to the Motion?

The Motion was read a second time by the Clerk of Council, Ms Claudette Anderson. The Bill went through the Committee stage but at Clause 5 the Chief Executive spoke.

TT: Mr Speaker, there have been a number of issues being considered further in relation to the Detail of the Bill. And, as a consequence, I will be moving three amendments. One of these is significant and the others are considered to be more technical in nature. The first amendment to Clause 5 would do three things in effect. Firstly, it would re-cast the new version of section 3 of the Jury Ordinance to make qualification for Jury service clearer. Secondly, and this is significant, it would also increase the upper age limit for Jury service from 65 to 70. Finally, It would extend a temporary disqualification from Jury service for those in custody or remand to cover those on bail as well.

Mr Speaker, I beg to move, a. that Clause 5 be omitted, secondly that the amended version of the clause as set out in the paper to be provided to each Member to be substituted, thirdly that the substituted clause be read a second time and fourthly that the substitute clause stand part of the Bill.

There was no objection and Clause 5 as substituted stood part of the Bill.

TT: MR SPEAKER, My second amendment to this Bill is in fact a very simple one. It would make consequential amendments to the new Section 3(B) of the Jury ordinance to reflect the proposed increase in the upper age limit from 65 to 70. Accordingly I beg to move that Clause 6 be amended by omitting 65 and substituting 70 in both places in which it appears in the new section 3(B) being inserted by that clause.

There was no objection and the changes were made part of the Bill.

TT: Mr Speaker, Honourable members, this is the last of the three amendments I am moving to this Bill. This would add two new Clauses to the Bill. The first new clause new Clause 11 would amend section 17(1) of the Jury Ordinance to pick up something missed in the original Bill. Section 17(1) provides that the Trial Judge must explain various things to the defendant in open Court before the defendant chooses between trial by Judge and Jury or a trial by Judge alone. Section 17(1) lists the things that have to be covered in that explanation. The discretion of the Trial judge would be given to determine the order of trial that needs to be reflected in that list.

The second new clause would amend the schedules to the Jury Ordinance in two ways: There are stray references the former Legislative Council as the Clerk to the Councils in part 1 of the schedule. These would now be updated to refer to Legislative Assembly and to the Clerk of the Assembly. An entry in part 3 of the schedule provides that those over the age of 65 or less than 18 can be excused from Jury Service as a right. That would now need to be amended to reflect the increase in the upper age limit. However, it duplicates the qualification provisions in section 3. Until it needed amending it was going to be left alone. However, it is now proposed to remove the entry entirely.

Mr Speaker, I beg to move that new clauses 11 and 12 as set out in the paper provided to each Member be read a second time and be added to the Bill.

No one objected and the new clauses were read a second time added to the Bill. The Acting Financial Secretary seconded the Motion. When the Chief Executive begged that the Bill be read a third time and pass there were objections from Members.

MS: Mr Speaker, Honourable members, coming back to my earlier comments and comments of colleagues about inadequacies in the assurances that Members might have about the use of the English language; I have concerns about Section 10 of the Bill and changes to the rights of the Trial Judge to determine the order of trial, which have not been consulted to the wider public. They have been consulted to members of the Legal Service, who commented at very short notice, which was included in an Executive Council paper yesterday and brought straight to the House. That is not adequate process for something of this importance. And I object to this Bill being given a third reading.

DS: Mr Speaker, I would second those comments.

EE: I would also actually agree with the comments made.

MS: Mr Speaker, just to clarify, I have no objection to this Bill coming to the House on another occasion but I object to it being passed now. So for the benefit of members of the public that is being proposed here is that we take this away, we consolidate the amendments that have been made at very short notice, we consult properly on it and make sure that we have the necessary provisions for dealing with the English Language issues and this Bill comes back either in the same form or an amended form for a third reading at another date.

TT: Can I say, obviously one understands the concerns that have been expressed by a number of Honourable Members. However, the view of the Attorney General and myself is we are happy to leave this decision to the House and the matter is easy to determine. There is no need for any professional advice and obviously we will act accordingly.

The Speaker agreed with Honourable members in that it was right and proper to cease the Bill where it is now and come back for a 3rd reading at a later date. The matter was put to the vote and it was approved 4 members for and 3 members against.

Referendum (Single Constituency Bill) Bill 2011 (Gazette No 8 of 4 July 2011):

Legislative went straight to the second reading as it was already in the Falkland Islands Gazette

Explanation by the Hon Chief Executive:

TT: Mr Speaker, under the Constitution, Members are elected to the Legislative Assembly from two separate constituencies Camp and Stanley. There was, of course, a referendum in 2001 on a proposal to replace the separate constituencies with a single constituency for the whole of the Islands and also to introduce a system of single transferable voting.

That referendum would have been clearly advisory and, even if the proposal had been approved in a referendum, the Constitution would have to be amended by order in council.

Since the new Constitution came into effect at the beginning of 2009, its been possible to make changes to constituencies by ordinance. However, under section 27(3) of the Constitution that can only be done if the Bill for the amending ordinance is supported by a referendum by 2/3rds of all of those voting in both constituencies. Mr Speaker, members decided last year that another single constituency referendum had to be held and this Bill will provide for that referendum to be held on the 3rd of November 2011.

Anyone registered to vote is entitled to vote in the referendum. This Bill will provide for the referendum to be about a single constituency Bill that appears in Schedule 1 of this Bill. That means that the referendum will satisfy the requirements set out in Section 27(3) of the Constitution.

Mr Speaker, voters would be asked, Do you want a single constituency for the whole of the Islands? And they would be able to answer either yes, I support the single constituency Bill or no, I oppose the single constituency Bill.

Unlike 2001 the referendum would only be about the question of whether there should be a single constituency for the whole of the Islands or separate constituencies for Camp and Stanley but it would not be about the voting system itself.

The Bill also deals with the referendum arrangements including the information to be given to the voters, allocation of responsibilities, staffing and the appointment and role of count observers.

To the extent that more specific provision is not made, the Electoral Ordinance would apply to the referendum but there would be a power under the Bill for subsidiary legislation to be made if required.

Mr Speaker, I beg to move that the Bill be read a second time.

The Acting Financial Secretary seconded the Motion. There was no debate and the Bill was dealt with via the short procedure and passed.

(100X Transcription Service)



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