Bills Digest no. 158 2009–10
Territories Law Reform Bill 2010
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Territories Law Reform Bill
2010
Date introduced: 17
March 2010
House: House of Representatives
Portfolio: Home Affairs
Commencement: Various
dates. Sections 1 to 3 of the Bill commence on Royal Assent.
Schedule 1, Part 1, Divisions 1 and 2, Schedules 2 and 3 mainly
commence on the day after Royal Assent. Schedule 1, Part 2
(electoral system changes) commencement is tied to the meeting of
the Legislative Assembly after the first general election after
Royal Assent. Schedule 1, Parts 3, 4 and 7 commence on 1 July 2010.
Schedule 1, Part 5 (freedom of information changes) is dependent on
the commencement of amendments under the Freedom of Information
Amendment (Reform) Act 2010. Schedule 1, Part 6 (Ombudsman
provisions) commences six months after Royal Assent if not earlier
by proclamation.
Links: The
links to the Bill, its Explanatory Memorandum and second
reading speech can be found on the Bills page, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The main purpose of the Territories Law Reform Bill 2010 (the
Bill) is to amend the Norfolk Island Act 1979 to implement
major changes to the governance, electoral and financial mechanisms
for Norfolk Island.
The Bill in Schedules 2 and 3 also revises a vesting section of
the Christmas Island Act 1958 and the Cocos (Keeling)
Islands Act 1955.
As a previous Bills Digest on Norfolk Island reform noted, the
constitutional status and history of the Island is complex and
unusual.[1]
In brief, the Island was unoccupied when mapped by Captain Cook
in 1774, although evidence apparently exists of earlier Polynesian
occupation. It was twice occupied by the British and used as a
penal colony, in the periods 1788-1814 and 1825-1855. In 1856,
descendants of Bounty mutineers who had intermarried with
Polynesian islanders agreed with the British Government to move
from Pitcairn Island to Norfolk Island. Between 1856 and 1897,
Norfolk Island was a separate British colony with its own Governor,
who was also the Governor of New South Wales. In 1897 the British
Crown transferred administrative responsibility for Norfolk Island
to the Governor of the colony of New South Wales, an arrangement
continued in 1900 with the Governor of the new State of New South
Wales. By combined British and Australian action in 1913 and 1914
the Island became a Territory under the authority of the
Commonwealth of Australia.
In the mid-1970s the Commonwealth held a Royal Commission into
the future status of Norfolk Island, chaired by Sir John Nimmo. The
Fraser Government responded by committing itself to a form of self
government for the Island and in 1979 the Norfolk Island Act (NI
Act) was passed by the Commonwealth Parliament. The NI Act
functions as a quasi-constitutional document, setting out the
institutions of legislative, executive and judicial power for the
Island.
The Territory is administered by the Administrator, appointed by
the Governor-General (effectively the Commonwealth Government). In
forming certain opinions required under the Act, the Administrator
must rely on his or her own judgement. In all other respects, the
Administrator acts on advice. That advice comes from a variety of
sources depending on the category of matter involved. In some
instances, the Administrator is the senior representative of the
Commonwealth on the Island, acting on the advice of the Minister
for Territories. In other situations, the Administrator fills a
role akin to the vice-regal function of a State Governor, acting on
the advice of the Norfolk Island Executive Council or Legislative
Assembly (both discussed immediately below). Finally, in some
situations the Administrator refers matters to the
Governor-General, who in turn acts on the advice of the
Commonwealth Government.
The NI Act creates an Executive Council 'to advise the
Administrator on all matters relating to the government of the
Territory'. Members of the executive (that is, Ministers) are
appointed from the Legislative Assembly by members of the Assembly,
and have authority over matters listed in Schedules 2 and 3 of the
NI Act. There are currently 4 Ministers of the NI
Government.
The NI Act also invests the Legislative Assembly of Norfolk
Island with the power 'to make laws for the peace, order and good
government of the Territory', subject to assent by the
Administrator or the Governor-General as the case may be. There are
9 members of the Norfolk Island Legislative Assembly, elected from
the Island voting as a single electorate numbering between 950 and
1200 people.
The legislative power of the Assembly is plenary (with four
defined exceptions),[2] but the conditions attaching to assent as well as other
forms of overriding legislative authority mean that the
Commonwealth retains a significant influence over the laws enacted
to apply in Norfolk Island. Laws about matters listed in Schedule 2
are at the heart of Norfolk Island self-government, because the
Administrator assents or not to such laws on the advice of the
Executive Council (the NI Government). Schedule 3 to the NI Act
lists a smaller range of topics which in 1979 the Commonwealth
Minister described as 'matters of particular sensitivity or
national importance'.[3] Regarding assent to Schedule 3 laws, the Administrator
appears again to act on the advice of the Executive Council, but
importantly is subject to over-riding instructions from the
Commonwealth Minister. Where a law relates to a matter in neither
Schedule 2 nor 3, the Administrator reserves the law for the
attention of the Governor-General (who will act on the advice of
the Commonwealth Government). The Governor-General also has the
power to make ordinances for the Island and to introduce
legislation into the Assembly, although apparently this power has
not been exercised since 1979. Finally the Commonwealth Parliament
has the power to make laws which apply in Norfolk Island, but only
if a Commonwealth Act expressly says so.[4]
In recent years, the governance and financial framework of
Norfolk Island has been the subject of a number of Commonwealth
Parliamentary and other reports. One of the more comprehensive (and
most relied on in the current Bill) was the 2003 report of the
Joint Standing Committee on the National Capital and External
Territories (Joint Standing Committee) entitled Quis custodiet
ipsos custode? Inquiry into Governance on Norfolk Island (the
Quis custodiet ipsos custodies report).[5] This report made extensive
recommendations regarding improvements in governance and
accountability for Norfolk Island including:
- reforms to the Norfolk Island electoral system
- incorporation of designations of Chief Minister and Ministers,
and additional powers of dismissal
- adoption of a comprehensive financial accountability framework,
including auditing and reporting requirements, and
- the extension to Norfolk Island of a comprehensive system of
administrative law.[6]
In September 2007 the Howard Government issued its final
response to the Quis custodiet ipsos custodies report
stating that while it had previously considered a reform program
implementing recommendations from this report it had decided to
defer such a program given assurances from the NI Government that
it would continue its own program of economic and financial reform
that would seek to improve the transparency and accountability for
governance on the island.[7]
Norfolk Island reform was again on the political agenda in 2008
with the newly elected Labor Government, when the then Minister for
Home Affairs, the Hon Bob Debus in a Ministerial statement to the
House of Representatives, announced the Government’s
intention to reconsider the findings of the various Norfolk Island
reports since 2003. The Minister stated:
In the coming months I will take a long-term
strategic policy to the cabinet which will have the aim of securing
the future of Norfolk Island as a sustainable, just and equal part
of Australia into the 21st century.[8]
On 28 May 2009 the Minister made a further announcement stating
that the Australian Government would introduce significant reforms
to improve the governance of Norfolk Island and strengthen the
accountability of the NI Government. The Minister noted that the
Australian Government would continue to consult with the Norfolk
Island community as part of this important process.[9]
The then Norfolk Island Chief Minister, Mr Andre Nobbs in
response, stated that the NI Government welcomed the decision by
the Commonwealth:
[...] to share in our moves toward greater
transparency and accountability and to work together for structural
change which will strengthen our administrative and financial
systems and lay the foundations for long term stability in our
mutual relationship.[10]
Mr Nobbs indicated that the major areas of progress would be in
establishment of an ombudsman service and a robust external audit
function and design of a more modern and effective financial
management framework.[11]
On 12 February 2010 the Commonwealth Government provided an
Exposure Draft of the Territories Law Reform Bill to the NI
Government and then on 17 March 2010, the Bill was introduced into
federal Parliament.[12] The Minister for Home Affairs, the Hon Brendan
O’Connor concluded his second reading speech summarising the
purpose of the Bill in this way:
The Norfolk Island reforms included in the
Territories Law Reform Bill is a first step towards ensuring high
levels of transparency and accountability in Norfolk Island
governance and financial frameworks, and in administrative decision
making. This is an important part of providing Norfolk Island with
the tools necessary to ensure ongoing stability and to sustain
strong and effective self-government under the Norfolk Island
Act.[13]
The Bill makes significant changes to the governance, electoral
and financial mechanisms for Norfolk Island. Specifically these
changes would:
- allow the Governor-General and the responsible Commonwealth
Minister to take a more active role in the introduction and passage
of Norfolk Island legislation including provision for:
- the Commonwealth
Minister to give directions in Schedule 2 matters and to reserve
Schedule 2 matters for the Governor-General’s
consideration
- provide for the selection of, and prescribe the roles of Chief
Minister and other Ministers including by:
- limiting the
number of Ministers that might be appointed
- allowing removal
of the Chief Minister by the Administrator in ‘exceptional
circumstances’
- limiting the
power to allocate Ministerial portfolios to the Chief Minister
- enable regulations to be made for a code of conduct for members
of the Norfolk Island Public Service
- provide that regulations can be made for changes to the process
for the election of the Legislative Assembly
- provide for minimum and maximum fixed terms of the Legislative
Assembly
- implement a contemporary financial management framework
including provision for contemporary guidelines for financial
reporting and budgeting and auditing of the Administration’s
financial statements by the Commonwealth Auditor-General
- allow the Commonwealth Ombudsman and the Administrative Appeals
Tribunal to operate on Norfolk Island and provide for merits review
of decisions made by the Norfolk Island Administration, and
- apply the provisions of the Freedom of Information Act
1982 and the Privacy Act 1988 to information held by
the NI Government and its administration.
The Bill was referred to the Joint Standing Committee on the
National Capital and External Territories for inquiry and report by
11 May 2010 (the Senate Committee inquiry). The Committee in its
report recommended that the Bill be passed. Other recommendations
include:
- that amendments relating to elections, be removed from the Bill
and deferred until 2011
- that the Attorney‐General’s Department continue to
consult with the NI Government, Administration and community on the
content and time-frame of the various regulations
- that a review be undertaken of items under Schedules 2 and 3 of
the NI Act
- improving the timeframe for Commonwealth scrutiny of Norfolk
Island legislation.[14]
Details of the inquiry and report are at:
http://www.aph.gov.au/house/committee/ncet/lawreformbill2010/index.htm
The Bills Digest draws on submissions to the Senate Committee
inquiry and on the Committee report.
The Explanatory Memorandum states that the amendments in this
Bill will have minimal financial impact but that there will be
resource implications for Commonwealth agencies, such as providing
training and information for Norfolk Island Administration and
Government to ensure effective implementation of the Bill.[15]
The Senate Committee inquiry received 16 submissions on the
Bill. By far the most detailed and also most critical came from the
NI Government.
The NI Government submission states that it
recognises in principle the need for changes but that the Bill
largely does not address the changes required and essentially does
not improve the situation on Norfolk Island and that it is an
inappropriate way to move forward. The submission recommends that
further passage of the Bill should be deferred and there be further
discussions between the Commonwealth and NI Governments about
approaches and time frames regarding possible self-government
reform.[16]
The submission lists seven areas of major concern with the Bill.
Further detail of these concerns can be found under the various
comment headings in the Main Provisions section of this Digest.
Robin Adams, former Clerk to the
Norfolk Island Legislative Assembly and now Speaker of the Assembly
is also critical of the Bill. She believes that the Bill undermines
the Island’s style of democracy and points to several changes
in this regard including the proposed ability for the Commonwealth
Minister to give directions in Schedule 2 matters and to reserve
Schedule 2 matters for the Governor-General, and the proposal to
fix the term of the Assembly to be no less than three years. Ms
Adams states:
Our Westminster model of government has been
tailored to work for us— a small community of around 1800
people, with 1100 voters at last count, and a small parliament of
only 9 members. This combination means that our hybrid model of
representative government, which is a mix of Westminster, consensus
and Direct Democracy, can work. The Isle of Man and the Canadian
Northwest Territories parliaments have a similar mix.[17]
Ric Robinson, President of the Society
of Pitcairn Descendants supports the NI Government’s
submission arguing the Bill effectively removes self-government and
that it is aimed not in the best interests of Norfolk Island but
‘to create more control over us by Canberra bureaucrats and
politicians’.[18]
However, not all submissions were critical of the Bill with some
being more critical of the NI Government.
Mike King, Member of the Legislative Assembly
and also the Norfolk Island Labor Party’s only MLA, supports
federal government intervention and is critical of the NI
Government’s opposition to it. He argues:
[...] the focus of local debate seems to have
narrowed to the preservation of self-government in its existing
form. There appears to be little recognition that the issues
addressed in the Bill were canvassed extensively within the island
community over many years leading to various JSCNCET (Joint
Standing Committee on the National Capital and External
Territories) reports; they are not new and they remain issues of
concern. Whilst I am mindful that the Federal (Coalition)
Government rejected many of the JSCNCET recommendations in 2006 in
favour of assurances from the Norfolk Island Government, I accept
both the Federal Labor Government’s right to revisit the
recommendations and the view adopted by Minister Bob Debus (and
apparently by Mr Brendan O’Connor) that further formal
examinations are largely unnecessary. If the Norfolk Island
Government was able to demonstrate through its achievements since
2006 that it had delivered on its assurance to provide a
sustainable future then it could rightfully claim ascendency in the
debate on the Bill. It cannot.[19]
Mr King, in his submission and evidence was highly critical of
the current budgetary position of the NI Government since 2006 when
the Government had undertaken to reform its financial management
practices. He stated:
Measures to improve the budgetary position have
failed in the extreme. Since 2006 the Government’s general
reserves have been steadily depleted; its quick ratio of liquidity
(current realisable assets to current liabilities) falling from
1.2:1 to 0.4:1 clearly evidencing an inability to pay debts as they
fall due. [...] The ‘current cash balance’ of the
consolidated public account diminished by some $9m in 2008/2009. A
lay appreciation of this fall is that some $3m can be attributed to
the GFC (Global Financial Crisis) or the resultant decline in
visitor numbers. The remainder of this fall can be sheeted home to
excessive, improperly planned and managed and unbudgeted
expenditure by the Government There is ample evidence available to
support claims that projects were not properly costed, that public
procurement processes were not followed and that some expenditure
was not warranted. These features reflect a distinct departure from
any reform path and an abandonment of any concept of financial
planning.[20]
Malcolm Snell, vice-president of Norfolk Labor
was also critical of the financial management capacity of the NI
Government and highlighted various issues in regard to financial
management.[21]
EcoNorfolk an environmental
group, also agreed with the need for a new financial framework and
electoral system stating:
We agree with Minister O’Connor that the
amendments to the Norfolk Island Act 1979 to reform the electoral
system and establish a contemporary financial management framework
will assist the Norfolk Island Government in meeting the needs and
expectations of our community and to plan for our future.[22]
Items 13, 14 and 17 amend section
7, the provision that deals with the Administrator’s
exercise of powers. The effect is to increase the Commonwealth
Minister’s power in providing advice to the Administrator.
Under existing section 7, the Administrator must only act on
Schedule 3 matters with the advice of the Executive Council and on
any advice given by the Commonwealth Minister, (with the
Minister’s advice prevailing to the extent of any
inconsistency). In relation to Schedule 2 matters, currently the
Administrator must act on advice of the Executive Council (if such
advice is given), but there is no provision for the Commonwealth
Minister to provide advice. The effect of the amendments in
items 13, 14 and 17 is to provide
that the Commonwealth Minister may also give advice to the
Administrator on Schedule 2 matters and the Commonwealth advice
must be taken over inconsistent advice from the Executive
Council.
The Explanatory Memorandum states that these amendments will
allow the Administrator to access a greater range of advice when
presented with bills for assent dealing with Schedule 2
matters.[23] The NI
Government on the other hand sees these amendments as intending to
extend greater control to the Federal Minister at the expense of
the NI Government noting also that no rationale is provided nor is
there any evidence supporting the need for such a change.[24]
Item 19 repeals and replaces section
9 the effect being that the Commonwealth Minister can
appoint one or more people jointly or severally to be the deputy or
deputies of the Administrator. The deputy or deputies
exercise powers and functions of the Administrator as assigned to
them by the responsible Commonwealth Minister and are exercised
during his or her pleasure. Currently there is scope for
appointment of only one deputy. The Explanatory Memorandum states
that this amendment will provide the Commonwealth with more options
for a ‘replacement’ Administrator when the
Administrator is unable to perform his or her duties.[25]
Item 21 repeals subsection 11(2) and
substitutes a new subsection 11(2). The
new subsection 11(2) defines the Executive Council
as consisting of the Chief Minister and such other Ministers as are
appointed by the Administrator under section 13. This is
effectively a change in terminology using the term Minister rather
than Executive Member.
Item 22 repeals subsection 11(8), the effect of
repeal would be that Legislative Assembly members who do not hold
executive office would no longer be able to attend all Executive
Council meetings. The rationale for this repeal is that the current
arrangement blurs the distinction between the executive and
legislative arms of government.[26]
Item 23 repeals existing sections 12, 13 and 14
and substitutes proposed sections 12, 12A, 13, 14
and 14A. The provisions deal with the
appointment, termination and dismissal of the Chief Minister and
other Ministers.
Proposed section 12 provides that there is to
be a Chief Minister and at least one, but not more than three
Ministers and that the Ministers have executive authority for the
matters specified in Schedules 2 and 3 of the NI Act. The
amendments use the term ‘Minister’ rather than the
current terminology which is ‘executive member’.
Proposed section 12A provides the process of
nomination and appointment of the Chief Minister. The Legislative
Assembly must, at the first meeting after a general election,
nominate one of the Members to be the Chief Minister. The
nomination of Chief Minister must occur after the election of the
Speaker and Deputy Speaker, but before any other business. This
provision essentially codifies the current practice.[27] Proposed
section 12A also provides a process for filling vacancies
in the office of Chief Minister
The Chief Minister is then appointed by the Administrator on
advice of the Legislative Assembly (proposed subsection
13(1)). Other Ministers are to be appointed by the
Administrator on the advice of the Chief Minister (proposed
subsection 13(2)). This process is different to the
existing section 13 in that the Administrator currently appoints
all executive members on the advice of the Assembly.
Item 26 inserts proposed section
15A and provides that the Chief Minister allocates
ministerial portfolios. These administrative arrangements must then
be published in the NI Government Gazette.
The Explanatory Memorandum states that these changes relating to
appointment of Ministers were recommended by the Quis custodiet
ipsos custodes report and that they correspond with the
‘process for appointing Ministers within the Westminster
system of government.’[28] The limit on the ministerial numbers is intended
to ensure effective backbench scrutiny of the Assembly’s
business – four Ministers and four backbenchers, with the
Speaker being the ninth member.[29]
The NI Government is not in favour of prescribing in legislation
the maximum number of Ministers and notes that no other Australian
jurisdiction places such limits on the sovereignty of the
parliament and the need for flexibility in allocation of
portfolios.[30] In
regard to allocation of portfolios their submission states:
The Norfolk Island Government remains
unconvinced as to the need for codifying or prescribing the
operation of a Chief Minister and appointment of the Ministry. The
current system of executive members clearly establishes
‘responsible government’ in Norfolk Island in the true
parliamentary sense of that term.[31]
Proposed section 14 sets out the restrictions
on the tenure of executive office. The Chief Minister and Ministers
cease to hold office when:
- they resign, are disqualified, or are dismissed
- a notice about a general election is published under subsection
39AB(1)[32]
- the Legislative Assembly is dissolved by the Governor-General
under section 39AC[33]
- the Legislative Assembly first meets after a general election
that occurred after their most recent appointment to the office of
either Minister or Chief Minister;
whichever happens first.
In addition, the Chief Minister ceases to hold office when the
Legislative Assembly passes a resolution of no confidence in him or
her (proposed paragraph 14(1)(d)).
Proposed subsection 14A(1) provides that the
Administrator may dismiss the Chief Minister from office if, in the
Administrator’s opinion, there are exceptional circumstances
for doing so. Those exceptional circumstances are not defined in
either the Bill or Explanatory Memorandum. The Administrator may
dismiss a Minister (other than the Chief Minister) from office on
the advice of the Chief Minister (proposed subsection
14A(2)). The Explanatory Memorandum rationalises
subsection 14A(1) on the basis that the power is based on existing
subsection 13(2) which provides that the Administrator can
terminate any executive appointment on the basis of exceptional
circumstances.[34]
Item 39 inserts proposed sections 39AA,
39AB and 39AC and deal with dismissal and
dissolution of the Legislative Assembly and the bringing of a
no-confidence motion in the Chief Minister.
Proposed section 39AA provides that the
Administrator may dismiss a member of the Legislative Assembly from
office if they have engaged in, or are engaging in, seriously
unlawful or grossly improper conduct. This provision would work in
addition to the current section 39, which provides that a member of
the Legislative Assembly vacates their office if they become an
undischarged bankrupt or are convicted of an offence and sentenced
to imprisonment for one year or longer.
Section 39AB provides the process for holding a
general election if there is a successful no-confidence motion in
the Chief Minister, the Legislative Assembly does not appoint a new
Chief Minister within a period of 10 days, and the Governor-General
does not dissolve the Legislative Assembly within that period of 10
days. The section also provides that the Administrator exercises
all the powers of the Administration, the Executive Council and
Ministers in accordance with any directions from the
Governor-General during the period between dissolution of the
Legislative Assembly and the first meeting of the Legislative
Assembly after the election.
Proposed section 39AC provides that the
Governor-General can dissolve the Legislative Assembly if it is
incapable of effectively performing its functions or is conducting
its affairs in a grossly improper manner.
Item 41 inserts
proposed section 42A and establishes a
non-confidence motion process for the Chief Minister.
Several of these provisions have been criticised by the NI
Government and are worthy of scrutiny.
In relation to proposed section 39AA it
states:
‘we are of the view that “unlawful
conduct” or grossly improper conduct, should be
determined by the courts, not the Administrator. Section 39 [...]
already contains strong provisions in relation to disqualification
of individuals from standing for election and from remaining in
office in a range of circumstances, including conviction for
unlawful behaviour. We see no reason for providing an unelected
official with the ability to dismiss from the Assembly a member
lawfully and democratically elected, other than those already
provided in the Norfolk Island Act. This is especially so in light
of the lack of definition of ‘grossly improper conduct’
and we suggest that this provision be removed from the
Bill.[35]
The Senate Scrutiny of Bills Committee in its Alert Digest also
questions this provision noting that it confers a broad
discretionary power on the Administrator. It states:
The explanatory memorandum does not explain the
need for this power, nor why it is not possible to specify with
more precision the nature of the unlawful or improper conduct which
may lead to its exercise.[36]
Another section that warrants scrutiny is proposed
section 39AC. Currently there is no such mechanism for
removing an unworkable Assembly. The Explanatory Memorandum does
not explain the rationale for this new section, nor does it suggest
that has come came from the recommendations of the Quis
custodiet ipsos custodies report.
Items 27, 28, 29, 32 and 35
make significant changes to the provisions in Part IV of the NI Act
dealing with law making.
Schedules 2 and 3 of the NI Act list those items for which the
Legislative Assembly may legislate. Section 21 of the Act requires
the Administrator to give assent to bills dealing with Schedule 2
and 3 items following two processes, either on the advice of the
Executive Council (for Schedule 2 matters) or on the advice of the
Executive Council and the Commonwealth Minister with the
Minister’s instructions prevailing in matters of
inconsistency (for Schedule 3 matters).
Item 29 makes an amendment in relation to the
assent process for proposed laws dealing with Schedule 2 matters.
It would amend subsection 21(5) to require the
Administrator to assent to laws dealing with Schedule 2 matters
acting on both the advice of the Executive Council and any
instructions from the responsible Commonwealth Minister. In the
event of inconsistency the Minister’s instructions would
prevail.
Items 27, 28 and 35 make
amendments relating to the Governor-General’s authority.
Item 28 amends the assent process to also allow
the Administrator to reserve a proposed law for the
Governor-General’s consideration (proposed
subparagraph 21(2)(a)(iii)) subject to subsections 21(5)
and 21(6). The stated purpose of this amendment is
to allow the Administrator to refer laws to the Governor-General
that may be controversial or represent a conflict of
interest.[37]
Item 27 inserts proposed subsection
21(1A) and provides that the Administrator must reserve a
proposed law introduced by the Governor-General[38] for the Governor-General’s
attention. The purpose of this amendment is to allow the
Governor-General to consider whether or not he or she agrees to any
amendments made by the Legislative Assembly during passage.[39]
Item 35 repeals paragraph
27(1)(c). The effect of this repeal is to increase the
Commonwealth’s legislative powers and will allow the
Governor-General to introduce a proposed law (and pass an Ordinance
in the same terms as the proposed law if necessary) on any topic.
Currently this power is restricted to Schedule 2 or 3 matters.
Item 32 inserts proposed section
26A and provides that the responsible Commonwealth
Minister may introduce a proposed law for the peace, order and good
government of the Territory into the Legislative Assembly. The
Explanatory Memorandum states that this change will increase the
Commonwealth’s legislative powers and could for example, be
used to implement national policy objectives (such as those agreed
at the Council of Australian Governments) and to ensure that
Norfolk Island legislation is consistent with the national interest
or Australia’s international obligations.[40]
Existing subsection 67(2) provides that the Governor-General may
make regulations to repeal, alter, or add a new item to Schedule 2
or 3 of the NI Act, but regulations repealing or altering an item
in Schedule 2 may not be made unless a copy of the proposed
regulations has been laid before the Legislative Assembly and
receive Assembly approval. Item 53 amends
subsection 67(2) with the effect of removing the
requirement for the Assembly to approve the repeal or amendment of
items in Schedule 2. This effectively gives the Commonwealth
control of over the items listed in Schedule 2.[41]
In its submissions to the Attorney-General’s Department
the NI Government made the following comments regarding these
provisions as they appeared in the Exposure Draft:
We note that the Bill proposes to reduce the
legislative powers of the Legislative Assembly and to give new
powers to legislate to the Governor-General and the Commonwealth
Minister. No rationale or explanation is given for these measures,
which would reduce the ability of Norfolk Government to govern
itself and erode the democratic right of Norfolk Islanders to elect
representatives who can govern in the interests of the peace, order
and good government of the Island.[42]
In further comment on the changes to the assent procedures, the
NI Government noted that it remained concerned that the wholesale
conversion of Schedule 2 matters to the assent procedures of
Schedule 3 has the potential to impose systemic delays in the
legislative process that will make self government unworkable.
Nevertheless the NI Government notes the Commonwealth’s
concerns that Norfolk Island legislation should be consistent with
the national interest or comply with Australia’s
international interests. [43]
The Attorney-General’s Department advised
the Senate Committee inquiry that the changes relating to assent
procedures respect self government and that the authority of the
Commonwealth to provide advice on Schedule 2 matters under the Bill
is a permissive not a mandatory provision.[44] The Department also noted that the
amendments to the assent process for bills dealing with Schedule 2
items do not restrict the powers of the NI Government to pass
proposed laws:
The Schedules simply indicate how the assent
process provided for by section 21 of the Act is to
operate.[45]
The Senate Committee inquiry report agreed with
the Commonwealth Government in believing that Commonwealth
Government oversight of Norfolk Island legislation is necessary in
ensuring that Norfolk Island legislation is consistent with
Government policy, the national interest and complying with
Australia’s international obligations.[46]
Item 50 inserts proposed sections
61A and will allow the Commonwealth to prescribe by
regulation, rules to be known as the Norfolk Island Public Service
Values.
Items 62 to 79 amend a number
of other Commonwealth Acts. They are a consequence of the
amendments relating to Norfolk Island governance arrangements
described above.
Item 80 amends subsection
35(2) of the NI Act and stipulates the term of the
Legislative Assembly to be a minimum term of three years and a
maximum term of four years.[47] Currently there is no minimum term and the
maximum term is three years. The minimum time of three years does
not apply where the Commonwealth Minister or the Governor-General
dissolves the Assembly according to new sections
39AB and 39AC (item 81, proposed
subsection 35(3)).
Item 83 inserts proposed subsections
31(4) and (5) to allow for the making of
regulations prescribing the electoral system to be used in Norfolk
Island Legislative Assembly elections and the filling of casual
vacancies. It is of note that these would be Commonwealth
regulations made under the Norfolk Island Act. These regulations
would be subject to the usual scrutiny and disallowance procedures
in the federal Parliament but not in the Norfolk Island Legislative
Assembly.
Proposed subsection 31(3) enables the making of
regulations prescribing the electoral system to be used in Norfolk
Island Legislative Assembly elections as well as filling of casual
vacancies to be determined via regulations.
Item 85 inserts proposed section
37A and would enables the Chief Minister on behalf of the
Norfolk Island Administration to make arrangements with the
Australian Electoral Commission to conduct general elections on
their behalf, as well as the filling of casual vacancies.
The Explanatory Memorandum states that these reforms will give
effect to the need for electoral reform identified by the Quis
custodiet ipsos custodies report and that the use of
regulations will allow flexibility in the choice and the timing of
an electoral system suited to the community of Norfolk
Island.[48]
The NI Government on the other hand, ‘strongly
opposes’ change to voting and vote counting methods to be
prescribed by Commonwealth regulations arguing that voting methods
should be specified in the Legislative Assembly Act.[49]
The Senate Scrutiny of Bills Committee also raised concerns with
these provisions stating:
Given the importance of the electoral laws to
the integrity of any system of government, the Committee is
concerned that these are matters more appropriately dealt with in
primary legislation. The Committee therefore seeks the
Minister’s advice about the justification for the proposed
approach.[50]
The Senate Committee inquiry report also agrees that issues of a
suitable electoral system are not insignificant and that there
would be merit in delaying consideration of this part of the Bill
until 2011, allowing time for the Commonwealth Government to
consult with the NI Government and community about the future
electoral framework.[51]
Part VI of the NI Act deals with finance.
Item 110 is a key amendment as it inserts a
new Division 2 entitled ‘Financial
Management and Accountability’ into Part VI. The provisions
in this new Division (proposed sections 48A to
48T) are aimed at providing a new financial
framework for Norfolk Island.
Proposed section 48A requires the Norfolk
Island Minister for Finance to prepare annual budgets for the
Administration and Territory authorities. These annual budgets must
be:
- prepared in accordance with regulations and Orders made under
the NI Act
- tabled in the Legislative Assembly, and
- provided to the Administrator who must send them to the
responsible Commonwealth Minister.
Proposed section 48B requires the Norfolk
Island Minister for Finance to prepare annual financial statements
for the Administration and Territory authorities as soon as
practicable after the end of the financial year and then provide
these statements to the Commonwealth Auditor-General for audit. The
Commonwealth Auditor-General must prepare an audit report on these
annual financial statements which must be provided to the Norfolk
Island Minister for Finance, the Administrator and the responsible
Commonwealth Minister (proposed section 48C). The
audit report and financial statements must be tabled in both the
Legislative Assembly and the federal Parliament by the relevant
Ministers.
Proposed section 48E allows the Commonwealth
Auditor-General to conduct performance audits of the Administration
and Territory authorities. Copies of these performance audit
reports are to be provided to the Norfolk Island Minister for
Finance, the Administrator and the responsible Commonwealth
Minister and are to be tabled in both the Commonwealth Parliament
and the Legislative Assembly. A copy of each report must also be
supplied to those being audited—either the Chief Executive
Officer (CEO)[52]
or the relevant Territory authority manager/s.
Proposed section 48F requires the Commonwealth
Auditor-General to seek comments on proposed performance audit
reports required under section 48E. Comments are to be sought from
those being audited and may also be sought from those with a
special interest in the report (including a Norfolk Island or
Commonwealth Minister). Comments are required within 28 days.
Proposed section 48G provides that the
Auditor-General Act 1997 (Cth) applies to audits by the
Auditor-General under the NI Act, the effect being that the
Auditor-General has all of the powers and functions necessary to
undertake his or her obligations under the NI Act.[53]
Proposed section 48H requires the Norfolk
Island Finance Minister to prepare periodic financial statements in
relation to the Administration and each Territory authority.
The statements must be tabled in the Legislative Assembly; and a
copy provided to the Administrator who must send it to the
responsible Commonwealth Minister.
Proposed section 48J requires the CEO to
prepare annual reports as soon as practicable after the end of each
financial year. The annual report must be prepared in
accordance with regulations, and must report on the operations of
the Administration and Territory authorities in that financial
year. A copy of the annual report must be given to the
Norfolk Island Chief Minister, who must table it in the Legislative
Assembly, and provide a copy to the Administrator. The
Administrator must then send it to the responsible Commonwealth
Minister.
Proposed sections 48K and 48L provide for the
CEO and/or the Minister for Finance to request, by written notice,
a Territory authority to provide information in order to prepare
the reports and statements required to be produced by them under
the NI Act.
Proposed section 48M places an obligation on
the CEO to ensure that he or she manages the affairs of the
Administration in a way that promotes the proper use[54] of Administration
resources. Proposed section 48N places a
similar obligation on the responsible managers of a Territory
authority to manage the affairs of the Authority in a way that
promotes the proper use of resources.
Proposed subsection 48P requires the Norfolk
Island Minister for Finance to ensure that the accounts and records
of the Administration properly record and explain the transactions
and financial position of the Administration. Proposed
subsection 48Q is the equivalent provision relating to
managers of a Territory authority.
Proposed sections 48R and 48S
provide that regulations can be made in relation to:
- public money and public property of the Territory[55]
- money and property of Territory authorities[56] and
- other resources of both the Administration and Territory
authorities.
Proposed section 48T allows the Commonwealth
Finance Minister to make Orders in order to supplement and provide
further detail of the financial framework provisions in Part VI of
the NI Act. Significantly, if an enactment (i.e. any Norfolk Island
law) is inconsistent with the Orders, the enactment has no effect
to the extent of the inconsistency (proposed subsection
48T(3)).
Item 112 repeals sections 51, 51A, 51B,
51C, 51D, 51E, 51F and 51G. These
sections are the existing audit provisions and are to be replaced
by the amendments at item 110 above.
Item 112 also inserts new Divisions 4,
5, and 6 which are summarised below.
New Division 4 entitled
‘Commonwealth Ministers to be kept informed’ contains
new sections 51 to 51C. New sections 51
and 51A require
the Norfolk Island Finance Minister to provide the responsible
Commonwealth Minister and Finance Minister with reports, documents
and information relating to the operations of the Administration.
New sections 51B
and 51C place similar obligations on the
responsible manager/s of a Territory authority. The reports,
documents or information provided to the Commonwealth Minister
under these sections must be relevant to Part VI of the NI Act,
related regulations, or the Commonwealth Finance Minister’s
Orders.
New Division 5 entitled
‘Commonwealth Financial Officer for Norfolk Island’
contains new section 51D and enables the
appointment of a Commonwealth Financial Officer at the discretion
of the Governor-General.
New Division 6 entitled
‘Injunctions’ contains new section 51E
and provides a power for the responsible Commonwealth Minister to
apply for a court injunction to enforce compliance with the
financial management and accountability provisions.
The NI Government agrees in principle that a new financial
framework is desirable, but that is should be established under
Norfolk Island legislation and regulations.
In principle, we agree that a new financial
framework is desirable but believe that wherever practicable this
should be established under Norfolk Island legislation and
regulations, not Commonwealth legislation. The Norfolk Island
Government is prepared to cooperate in making the necessary changes
in consultation with the Commonwealth.[57]
The Attorney-General’s Department in their submission note
that a joint working group involving key players has been
established to develop regulations relating to the new financial
framework and that the NI Government and Administration ‘will
be given the opportunity to comment on draft regulations before
they are registered’.[58]
The NI Government also has specific concerns about some the
provisions in Part 3 of the Bill. For example it considers it
‘extremely inappropriate’ that the Commonwealth
proposes to use the threat and application of Federal Court
injunctions as a means of enforcing financial management and
accountability provisions and notes that no such provision exists
in the ACT and the Northern Territory.[59] It also raised concerns about the
intent and purpose of the position of Commonwealth Financial
Officer stating ‘this effectively again returns Australian
rule prior to 1979’.[60]
The Explanatory Memorandum states that the Commonwealth
Financial Officer is intended to be an optional appointment, made
in the event that the Governor-General is of the view that Norfolk
Island would benefit from Commonwealth assistance, for example in
the implementation of the financial framework obligations under
this Part of the NI Act.[61]
The Administrative Appeals Tribunal Act 1975 (AAT Act)
established a general administrative tribunal, the Commonwealth
Administrative Appeals Tribunal (AAT), with power to review on the
merits a wide range of administrative decisions.
Schedule 1, Part 4 of the Bill (items
124 – 152) amends the AAT Act, the purpose
being to confer on the AAT, merits review jurisdiction for
specified decisions under Norfolk Island legislation.
Item 130 is the central amendment in this
Part.
Section 25 of the AAT Act establishes the authority of the AAT
to review certain decisions. Importantly, the Bill does not specify
which Norfolk Island laws may be subject to AAT merits review and
the AAT will not automatically have jurisdiction to review all
decisions. Rather, item 130 inserts
proposed subsection 25(2) which provides authority
to make regulations which confer jurisdiction on the AAT to review
decisions made under a Norfolk Island enactment. See further
comments below.
Other amendments in Part 4 of the Bill flow from item
130 and new subsection 25(2).
Amongst other things, the Commonwealth Freedom of
Information Act 1982 (FOI Act) gives every person a legal
right to obtain access to information in documentary form, which is
in the possession of ministers or government agencies, subject to
the operation of specific exemptions and exclusions.
Part 5 of Schedule 1 of the
Bill (items 153 to 237) makes
amendments to the FOI Act to extend the application of that Act to
information held by the NI Government and Administration. The
amendments are numerous and a few of them are described below.
Section 3 of the FOI Act sets out the objectives of that Act,
including to ‘extend as far as possible the right of the
Australian community to access to information in the possession of
the Government of the Commonwealth...’. Item
153 amends subsection 3(1) to extend this
primary objective to also include community access to information
in the possession of the Government of Norfolk Island.
Item 154 amends the definition of
agency in section
4(1) of the FOI Act to include ‘a Norfolk Island
authority’ and a Norfolk Island
authority is defined in item 160 of
the Bill. These are central amendments as their effect is to bring
Norfolk Island authorities within the ambit of the FOI Act.
Item 167 inserts proposed section
4B, explicitly confirming that the FOI Act extends to
Norfolk Island. This provision is necessary to satisfy the
requirements of section 18 of the NI Act.[62]
Item 180 inserts proposed section
10B, its effect is to defer the application of the Part II
agency publication scheme on Norfolk Island until 2 years after
commencement of this section. The Part II agency publication scheme
in the FOI Act places obligations on government to publish
information about its activities in general, and about whether it
holds certain kinds of documents.
Item 183 inserts proposed subsection
12(2), its effect is that the FOI Act right of access
scheme will only apply to documents of a Norfolk Island authority
and official documents of a Norfolk Island Minister that are 5
years old or less at time of commencement.[63]
As noted above, the FOI Act is subject to the operation of
specific exemptions and exclusions. Items
191–205 amend a number of the exemption provisions.
The effect is generally to ensure that existing exemptions will
apply equally to Norfolk Island.
Items 206–222 also make amendments to
ensure consistency so that provisions dealing with the various
review processes have the same application on Norfolk Island as
they do under federal law.
Items 228–237 have a similar effect on
the civil and criminal liability provisions (sections 90,
91 and 92).
Part 6 of Schedule 1 of the Bill makes only
three amendments, the effect being to enable the Commonwealth
Ombudsman to assume the function of the Norfolk Island Ombudsman
under Norfolk Island legislation.[64]
Item 238 inserts proposed section
66A into the NI Act. It provides that where the
Commonwealth Ombudsman is required by enactment to give a report to
a Norfolk Island Minister and table that report in the Assembly,
the Norfolk Island Minister will also be required to give the
report to the responsible Commonwealth Minister who must then table
it in the Commonwealth Parliament.
Items 239 and 240 amend
section 4 of the Ombudsman Act 1976. The
effect of item 239 is to extend the Commonwealth
Ombudsman’s authority to also include functions conferred on
the office by a Norfolk Island enactment. Item 240
inserts proposed subsection 4(6) which provides
that the Commonwealth Ombudsman, in performing his or her functions
under a Norfolk Island enactment, may be called the Norfolk Island
Ombudsman.
The Commonwealth Privacy Act 1988 regulates the
handling of personal information by the Australian Government, the
ACT Government and the private sector. The Act contains a set of 11
Information Privacy Principles (IPPs) that apply to Australian
Government and ACT Government agencies, and 10 National Privacy
Principles (NPPs) that apply in the private sector.
Items
242 to 294 amend the Privacy Act, the
purpose being to extend the application of that Act to information
held by the NI Government and Administration.[65] The amendments are numerous and
some of the more significant are summarised below.
As already noted, IPPs include the principles for the
collection, use and disclosure of personal information and regulate
the activities of Australian Government public sector agencies. A
key term is ‘agency’. ‘Agency’ is defined
in subsection 6(1) to include ministers, departments, federal
courts and other bodies established for a public purpose.
Items 242 and 246 are key
amendments. Item 242 amends the term
‘agency’ in subsection 6(1) to include a Norfolk Island
agency. A Norfolk Island Agency is further defined by item
246.[66]
The effect of these new definitions is to ensure that IPPs which
apply to an agency under the Privacy Act will expressly apply to
the NI Government and Administration.
Items 265 and 266 make
amendments relating to the IPPs. Item 265 inserts
a new subsection 15(1A) which provides that in
relation to a Norfolk Island authority, the IPPs 1, 2, 3, 10 and 11
apply only in relation to information collected by an agency after
commencement.
Other amendments have a similar effect of bringing Norfolk
Island agencies within the ambit of the Privacy Act and ensuring
consistency in treatment. For example there are:
- amendments of various definitions to include references to
Norfolk Island[67]
- numerous amendments to insert references to ‘Norfolk
Island Minister’ alongside references to ‘Commonwealth
Minister’ to provide equal treatment and equal
responsibilities for Norfolk Island Ministers under the Act ( for
example item 269).
In its supplementary submission to the Senate Committee inquiry,
the NI Government commends the initiatives in the Bill which relate
to personal rights and the ability of the community to access the
services which relate to administrative appeals, freedom of
information, the Ombudsman and privacy legislation. However the NI
Government preference is that the development of this package
should be implemented along the lines used to extend the powers of
the Commonwealth Ombudsman to Norfolk Island. To this end it
proposed that a working group be established to determine how to
implement this program.[68]
The Attorney-General’s Department, in evidence argued
against the establishment of working groups, noting that
administrative law schemes are already well established at the
Commonwealth level and that it is therefore efficient for the NI
Government and community to access this expert knowledge,
experience and resources.[69]
In its report, the Senate Committee inquiry into the Bill agreed
with this advice noting that the idea of further working groups
would only delay further the introduction of an effective
administrative law package.[70]
A further question of interest relates to the proposed reforms
regarding AAT review.
Under the AAT Act, the AAT does not have a general power to
review decisions made under Commonwealth legislation. Rather, the
Tribunal can only review a decision if an Act or other legislative
instrument provides specifically that the decision is subject to
review by the Tribunal.[71] Neither the Norfolk Island Act nor regulations made
under that Act provide for AAT review of administrative decisions
made under the Act.[72]
The Bill in Schedule 1 Part 4 provides
authority to make regulations which confer jurisdiction on the AAT
to review decisions made under a Norfolk Island enactment. There is
no corresponding amendment that would enable merits review of
administrative decisions made under the Norfolk Island Act and its
delegated legislation (that is, decisions made under the
Commonwealth laws). A question that might be asked is does the Bill
go far enough? Merits review of administrative decisions by the AAT
is seen as an important part of open and accountable government.
Therefore, should the Bill extend merits review to administrative
decisions made under the Norfolk Island Act and regulations by, for
example, the Commonwealth Minister, by the Norfolk Island
Administrator(s) or by the proposed Commonwealth Financial
Officer?
Schedules 2 and 3 of the Bill
make identical amendments to the Christmas Island Act 1958
and the Cocos (Keeling) Islands Act 1955 respectively. The
changes relate to section 8G of both Acts. Item 1
in both Schedules 2 and 3 repeal sections 8G and
substitute new sections 8G.
Existing section 8G forms part of a set of provisions that apply
Western Australian laws to Christmas Island and the Cocos (Keeling)
Islands. Section 8G provides that, once Western Australian laws are
applied to these Territories, the powers and functions under those
laws are vested in the Commonwealth Minister. Section 8G also
establishes a mechanism for the Commonwealth Minister to vest or
delegate powers and functions under Western Australian law to
Commonwealth officers, Western Australian Government officers and
authorities, administration staff in the Territories, local
government authorities and other qualified people.
The Attorney-General’s Department submission notes that
the proposed new section 8G achieves substantially
the same outcome as the current version, but with several important
changes. ‘Most importantly the new provision will include an
automatic vesting mechanism of certain powers.’ [73]
Concluding comments
Reaction to the Bill by the Norfolk Island Government and
community has been strong, much of it adverse and consistent with
the Island's 'rich history of civilised disputation with faraway
rulers'.[74] While
the Commonwealth has depicted the Bill as necessary to ensure
ongoing stability and to sustain strong and effective self
government, opponents on Norfolk Island have treated it as
paternalistic and a threat to self-government. Much of the
controversy over the Bill thus reflects the contested nature of
Norfolk Island's relationship to the Commonwealth of Australia.
This underlying tension may have been compounded by the seeming
haste with which the Bill has been introduced. A short period
between release of the Exposure Draft and introduction of the Bill
into Parliament, plus the untimely introduction of the Bill on the
same day as the Norfolk Island Assembly elections may support an
argument that consultation has been inadequate. Against that, there
is argument that the Bill comes as no surprise—numerous
reports dating back to the 1990s have recommended change to improve
the accountability of the Island’s Government and
administration. In fact previous legislative reform proposed in
2006 had been set aside on an assurance that the Island would
implement its own program of economic and financial reform and that
it would seek to improve the transparency and accountability of
governance on the Island. The Senate Committee inquiry received
evidence that Norfolk Island is suffering serious economic and
financial difficulties which would justify more legislative
measures to improve the accountability and transparency of its
financial framework.
The Bill includes quite significant governance reform proposals,
some of which were recommendations of the Quis custodiet ipsos
custodies report and some which are justified on the basis of
providing a stronger Westminster styled democracy. However other
powers arguably give the responsible Commonwealth Minister, the
Governor-General and the Administrator significantly increased
powers over law making and dismissal of elected representatives.
Parliament may wish to ask for further explanation of why these
provisions would enhance the transparency and accountability of the
Norfolk Island Government.
A further source of tension over the Bill is its heavy reliance
on the use of Commonwealth regulations to implement major reform.
The Bill provides for Commonwealth regulations to be made in
regard to major changes to Norfolk Island’s financial
framework, the electoral system, the Public Service Values and in
introduction of merits review by the AAT. Draft regulations are yet
to be released so it is therefore not possible to comment on the
full impact of the Bill. The Commonwealth Government argues that
use of regulations will provide greater flexibility and it has
given assurances that regulations will be developed in consultation
with the Norfolk Island Government. The regulations required for
the financial aspects of the Bill should be nearing completion as
that part of the Bill is due to commence on 1 July 2010. It is of
note that these are Commonwealth regulations and while the
federal Parliament could scrutinise them under the normal tabling
and disallowance procedures, the Norfolk Island Assembly would not
have such an opportunity. In relation to the regulations required
for implementation of a new electoral system, two parliamentary
Committees see difficulties with this process. One recommendation
is that these provisions be removed from the Bill and considered at
another time.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2438.
[1]. The following background paragraphs
are extracted from S Brennan, Norfolk Island Amendment Bill
1999, Bills Digest, no. 11, 1999–2000, Parliamentary
Library, Canberra, viewed 26 May 2010, http://www.aph.gov.au/library/pubs/bd/1999-2000/2000bd011.htm.
That Bills Digest noted that the section was drawn mostly on
historical summaries found in Commonwealth Grants Commission,
Report on Norfolk Island, AGPS, 1997, pp. 14-16 and House
of Representatives Standing Committee on Legal and Constitutional
Affairs, Islands in the Sun. The Legal Regimes of Australia's
External Territories and the Jervis Bay Territory, AGPS, 1991,
section 7.3.
Mary Anne Neilsen
1 June 2010
Bills Digest Service
Parliamentary Library
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