Bills Digest no. 102 2014–15
PDF version [815KB]
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.
Cathy Madden
Politics and Public Administration Section
12 May 2015
Contents
The Bills Digest at a glance
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments
Appendix : List of selected inquiries
relating to Norfolk Island
Date introduced: 26
March 2015
House: House of
Representatives
Portfolio: Infrastructure
Commencement: Items 1–4
on the day the Act receives Royal Assent. Schedule 1 Part 1 and Schedule 2 Part
2 commence on a day to be fixed by proclamation or if the provisions have not
commenced within six months of Royal Assent on the day after the end of that
period. Schedule 1, Part 2 and Schedule 3 on the day after the Act receives
Royal Assent. Schedule 1, Part 3 on the later of the commencement of provisions
covered by Schedule 1 Part 1 and the commencement of Schedule 1 of the Acts
and Instruments (Framework Reform) Act 2015. Schedule 2, Part 1 commences
on 1 July 2016.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
Norfolk Island (NI) was accepted as
an Australian external territory in 1913. Under arrangements introduced in 1979
Norfolk Island has had partial self-government in which the Norfolk Island
Government is required to deliver many federal, state and local services.
Australian taxation, migration, health and welfare services do not extend or
only partially extend to NI.
The Norfolk
Island Legislation Amendment Bill 2015 has been introduced to radically
overhaul the governance arrangements that currently operate on NI.[1]
Over many years a series of parliamentary and government reports have shown
that NI is facing a critical financial situation, with forecast deficits for each
of the next three financial years of between $7.4 and $7.8 million and that
Norfolk Islanders receive services well below the standard that mainland
Australians receive.[2]
This legislation is an outcome of a report by the Joint Standing Committee on
the National Capital and External Territories (the Committee), Same
Country: Different World, tabled in October 2014.[3]
The Committee concluded that governance and economic reforms must occur
together in order to ensure that NI is sustainable. This Bill starts the
transition of NI from a self-governing territory to a modern local government
type authority.[4]
The Bill abolishes the NI Legislative Assembly and Executive Council and
replaces them with a NI Advisory Council appointed to support the transition to
an elected NI Regional Council. The Regional Council is to commence on 1 July
2016. New South Wales (NSW) laws will apply on NI from 1 July 2016 and that State
will deliver services and administer laws following agreement between NSW and
the Commonwealth. The Bill also starts the process of extending Australian
legislation to NI, in particular social security, Medicare, Pharmaceutical
Benefits Scheme and taxation measures, again to commence from 1 July 2016.
The NI Government has in principle welcomed the extension
of Australian health and welfare measures but does not support the governance
arrangements as recommended by the Same Country: Different World report
and the implementation of the recommendation through this Bill.
The purpose of the Norfolk Island Legislation Amendment
Bill 2015 (the Bill) is to amend the Norfolk Island Act 1979
(the NI Act) to reform the governance arrangements on Norfolk Island
(NI).[5]
During the interim transition period an Advisory Council will be established to
support the transition of the NI Legislative Assembly to the NI Regional
Council, which will have local and municipal responsibilities but not powers
usually exercised by state or national governments. The Bill provides for consequential
amendments to numerous Acts, including omitting references to the territory of
NI, extending legislation to NI and amending or repealing relevant definitions.
The package of Bills also proposes to integrate
NI with the Australian tax and social security systems, including access to
Medicare and the Pharmaceutical Benefits Scheme. Australian immigration,
customs and quarantine services will also be extended to NI. These services are
proposed to commence from 1 July 2016. The other Bills are:
- Tax
and Superannuation Laws Amendment (Norfolk Island Reforms) Bill 2015[6]
- A
New Tax System (Medicare Levy Surcharge—Fringe Benefits) Amendment Bill 2015[7]
- Health
and Other Services (Compensation) Care Charges Amendment (Norfolk Island) Bill
2015[8]
- Health
Insurance (Approved Pathology Specimen Collection Centres) Tax Amendment
(Norfolk Island) Bill 2015[9]
- Health
Insurance (Pathology) (Fees) Amendment (Norfolk Island) Bill 2015[10]
- Private
Health Insurance (Risk Equalisation Levy) Amendment (Norfolk Island) Bill 2015[11]
and
- Aged
Care (Accommodation Payment Security) Levy Amendment (Norfolk Island) Bill 2015.[12]
These Bills are discussed in two separate Bills Digests.[13]
The Bill is divided into three schedules.
Schedule 1 provides for interim arrangements for Norfolk
Island with Part 1, Division 1 amending the NI Act and Division 2 amending
other legislation; Part 2 contains transitional provisions and Part 3
amendments contingent on the Acts and Instruments (Framework Reform) Act
2015 (Cth).
Schedule 2 provides for the final arrangements for Norfolk
Island: Part 1, Division 1 relates to amendments to NI Act; Division 2
relates to other legislation; Part 2 relates to transitional provisions. Schedule
3 provides for statistical information by amending the Census and Statistics
Act 1905 (Cth).
NI had a population of about 2,300 people in 2011, according
to the most recent census.[14]
At the time of the 2011 census, 38.4 per cent of ordinarily resident population
were of Pitcairn descent and 60.8 per cent were not of Pitcairn descent.[15]
At the census date, approximately twenty per cent were visitors, suggesting a
resident population of approximately eighteen hundred Island residents. The
population has a disproportionately high number of senior residents, possibly
reflecting pattern of migration to the mainland by younger workers.[16]
The 2014–15 Budget update indicates the fiscal position of
NI. The NI Government is reliant on the funding agreement with the Commonwealth
Government of up to $7.5 million, subject to certain milestones being achieved,
to ensure that the NI Government budgeted expenses of $39.66 million can be
met. The majority of NI budget is derived from the activities of Government Business
Enterprise (49 per cent),[17]
Commonwealth subsidy (18 per cent) and GST (NI tax measure) income (16 per cent).[18]
The 2014–15 Budget for the service delivery areas
indicate:
2014–15 Revenue
|
2014–15 Expenses
|
$28,756,869
|
$36,254,979
|
Source: Norfolk Island Government, Community budget update
2014–15, p. 5.
The independent report on Norfolk Island Financial
statements by the Australian National Audit Office (ANAO) has indicated that NI
would have deficits for the three years of: $6.4 million in 2015–16, $5.5
million in 2016–17 and $5.5 million in 2017–18. The report indicated that NI would
not be able to sustain itself financially.[19]
Tourism has traditionally been the main economic driver on
NI. Many recent reports have noted the downturn in tourism which has impacted
negatively on NI economy. The NI Tourist and Transport Forum indicates that
tourism accounts for 41 per cent of the Gross Island Product on NI but tourist
numbers had reduced markedly over the last decade.[20]
In December 2014, Gary Hardgrave,
the Administrator of Norfolk Island, released a report by the Centre for
International Economics on the impact of the proposed reforms on the NI economy.
The report found that combined, income tax, social security payments and
Medicare will increase economic activity on the Island by around 14 per cent.[21]
The Australian
Citizenship Act 2007 (Cth) extends to NI, as external
territories are included in the definition of Australia.[22]
While Norfolk Islanders are entitled to enrol to vote in Australian federal
elections, they are not obliged to do so like other Australian citizens.[23]
The NI Government has national (such as immigration,
welfare, quarantine), state (such as legislative assembly, education, police)
and local (such as roads, waste management, planning) responsibilities.
The NI Government operates its own social security system
under the Social Services Act 1980 (NI) and its own health care scheme,
the NI Healthcare Scheme.[24]
The Scheme established under the Healthcare Act 1984 (NI) and the Healthcare
Levy Act 1990 (NI), is a medical fund to assist with the payment of medical
expenses for the residents of NI.[25]
NI residents are not eligible to receive Medicare benefits or Pharmaceutical
Benefits. The NI Government provides free infant, primary and secondary
schooling on the Island, based on the NSW education system. NI operates its own
immigration regime under the Immigration Act 1980 (NI).[26]
Australian income tax and other federal taxes are not
payable on Norfolk Island. Instead, the NI Government levies a range of local
taxes, including GST, and imposts but it does not tax wealth or income.
NI takes its own censuses, independently of
those taken by the Australian Bureau of Statistics which does not cover the
island.
Governance arrangements
Prior to self-government
NI has operated in an unusual and complex legislative and
governance framework, as has been outlined in previous Bills Digests relating
to NI.[27]
By virtue of section 122 of the Constitution, the Australian Parliament
is authorised to make laws:
... for the government of...any territory placed by the Queen
under the authority of and accepted by the Commonwealth, or otherwise acquired
by the Commonwealth...[28]
In 1975 a Royal Commission, headed by Sir John Nimmo, was
established to investigate the future status of NI and its constitutional
relationship to Australia. Its report was tabled in the Australian Parliament
in November 1976. Its key recommendations were to:
-
give full Commonwealth voting rights to Norfolk Island residents
-
replace the then Norfolk Island Council with an elected Assembly
to act like a local government, although not necessarily on the same terms as
applicable on the mainland, and even, in some respects, like a state government
-
extend mainland services and obligations, notably health services,
justice administration, education, social security and taxation, to Norfolk
Island residents and
-
apply all Commonwealth legislation to Norfolk Island with the
exception of immigration, customs, telephone and postal services.[29]
The federal government’s response to the report, while
generally not accepting of the recommendations, led to the enactment of the Norfolk
Island Act 1979 (Cth).
The constitutional position of NI as a territory of
Australia was confirmed in 1976 when the High Court in a unanimous decision
decided that NI is part of Australia, a fact disputed by some
residents of NI, mainly of Pitcairn heritage.[30]
Current arrangements
The Norfolk
Island Act 1979 (the NI Act) establishes a limited form of
self-government for the Island. The Act established the NI Government, composed
of an Administrator (and Deputy Administrator(s)), a Legislative Assembly, an Executive
Council and a public service. NI is administered by an Administrator who must
approve all Bills passed by the NI Legislative Assembly before they become law.[31]
The Preamble to the Act states that it was the Commonwealth Parliament’s
intention that NI achieve over a period of time internal self-government as a
territory under the authority of the Commonwealth.[32]
NI 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 NI
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.[33]
The NI Act creates an Executive Council ‘to advise
the Administrator on all matters relating to the government of the Territory’.[34]
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
four Ministers of the NI Government.[35]
The NI Act also invests the Legislative Assembly
with the power ‘to make laws for the peace, order and good government of the
Territory’.[36]
There are nine members of the NI Legislative Assembly, elected at a minimum
every three years.[37]
The legislative power of the Assembly is plenary (with
four defined exceptions),[38]
but the Commonwealth retains a significant influence over NI laws. The NI Act
divides the legislative functions and responsibilities of the Assembly into
Schedule 2, which includes matters normally performed by state and local
governments, and Schedule 3, which covers matters normally reserved for the
Commonwealth, such as customs, quarantine, immigration and social security. Every
law made by the Legislative Assembly is presented to the Administrator for
Assent. Laws about matters listed in Schedule 2 are at the heart of NI
self-government, because the Administrator assents or not to such laws on the
advice of the Executive Council (the NI Government) and the instructions of the
Commonwealth Minister (if any). In assenting to Schedule 3 laws, the
Administrator 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).[39]
The Governor-General also has the power to make ordinances for the Island and
to introduce legislation into the Assembly.[40]
Commonwealth legislation only applies in NI if the
Commonwealth Act expressly says so.[41]
Part VII of the NI Act provides for the NI judicial
system which includes a Supreme Court. Other courts and tribunals for NI may be
established by or under enactment.[42]
The NI Assembly and Government have powers far beyond those
of the Australian states. They control not only what falls within state
jurisdiction but also social security, taxation and immigration and settlement,
subject to limited oversight by the Commonwealth. NI’s immigration regime is
distinct from that applicable throughout the remainder of the Commonwealth. The
Commonwealth’s Migration Act 1958 has no application on NI. Instead
immigration, including immigration by Australian citizens from other parts of
Australia, is regulated by the NI Immigration Act 1980.
Recent developments
NI legislative, financial and governance arrangements have
been the subject of many government and parliamentary reports, including a
number examining the financial sustainability of the Island. Most of these
reports have called for reforms to NI’s administration, law,
governance, and electoral and financial structures.[43] It has been clear through
the various inquiries and reports that the NI Government is not able to fulfil
the range of federal, state and local responsibilities for which it currently
has responsibility. Most importantly, it has not been able to provide an adequate
social safety net for its residents, resulting in significant consequences for
community health and welfare. For example, in 2006 the Australian Government
had announced that the NI governance arrangements were financially
unsustainable and needed to be replaced with some form of self‑government
involving greater Commonwealth control or a form of local government.[44]
The Government did not proceed on the basis of the ‘assurances of the Norfolk
Island Government that it will continue its program of economic and financial
reform and that it will seek to improve the transparency and accountability of
governance on the island.’[45]
However one of the most significant of these reports, Quis
Custodiet ipsos custodes? Inquiry into Governance on Norfolk Island,[46]
led to the enactment of the Territories Law Reform Act 2010 (Cth).[47]
That Act amended the NI Act to implement a contemporary
financial and governance management framework that ensured public
accountability through finance and performance audits, access to an Ombudsman,
protecting the disclosure of personal information to public agencies and the
availability of merits review of decisions which affect rights and entitlements.
Amendments also extended the Australian Government’s oversight
of NI legislation to include Schedule 2 matters, as well as enable the
Commonwealth Minister and Governor-General to introduce legislation into the NI
Legislative Assembly.[48]
The changes to financial management and accountability
required the NI Minister for Finance to prepare annual financial statements at
the end of each financial year in relation to the administration and territory
authorities and provide it to the Commonwealth Auditor-General, who must prepare
an audit report on the financial statements. The audit report is provided to
the Finance Minister, the responsible Commonwealth Minister and the
Administrator.[49]
The amendments also provided that the Administrative
Appeals Tribunal Act 1975 (Cth) and the Freedom of Information Act 1982
(Cth) apply to NI; enabled the Commonwealth Ombudsman to assume the function of
the NI Ombudsman under NI legislation; and that the Privacy Act 1988 (Cth)
applies to the NI public sector.
In 2011 the Norfolk
Island Road Map, an agreement between the Commonwealth and NI governments,
outlined a number of reform objectives:
Governance through providing a stronger, more open and
transparent form of government, building on the reforms in the Territories
Law Reform Act 2010;
Economic development through quick action to address
barriers to tourism, particularly reform of air services, access to the Island,
and facilities for cruise ships;
Enabling the Norfolk Island Public Service to provide good
financial and policy advice and effective services to the Norfolk Island
Government and community;
Social services including immigration ... removing barriers to
business investment ...;
Access to the benefits provided by the Australian tax system
and a fair contribution to the tax system in return for the benefits; and
Extend[ing] Commonwealth laws to the Island to promote
improved economic growth and diversification.[50]
The Road Map’s objectives were to ensure that residents of
NI can access a similar range and quality of basic services as those available
to other Australians living in rural and remote communities.
In a report on a visit to NI in 2013, the Joint Standing
Committee on the National Capital and External Territories (the Committee) noted
that while progress continued on the implementation of the Road Map the ‘economy
of Norfolk Island and the finances of the Norfolk Island Government will remain
in a state of crisis and decline without fundamental reform to the governance
and economy of Norfolk Island’.[51]
The report also noted a number of milestones since the Road Map’s signing,
including relaxation of immigration controls with the introduction
of an Unrestricted Entry Permit for all Australian and New Zealand citizens
upon arrival and the option to apply for residency.[52]
Current proposal
During the 2013 election campaign the Coalition made an
election commitment to integrate NI into Australia’s taxation, social security
and health arrangements.[53]
In tabling the Australian National Audit Office report on
NI financial statements in 2014, the Assistant Minister for Infrastructure and
Regional Development, Jamie Briggs, noted:
The ANAO has now forecast unfunded budget deficits for the
Norfolk Island government in future years of between $7.4 million and $7.8
million...The ANAO has also found there is a lack of proper financial controls
and poor financial management practices in the Norfolk Island administration,
and has concluded that without further Commonwealth support, the administration
is not a 'going concern'...
... the Norfolk Island Government seems to lack the capability
to address many of the key sustainability issues facing the island.[54]
In March 2014 the Australian Government referred to the
Committee an inquiry into economic development on Norfolk Island. While the
focus was to be on economic development the Committee found it necessary to
also examine governance matters. The Committee found that ‘sound governance
underpins any discussion of economic development...this is especially the case
given the increasingly dire fiscal situation that the Norfolk Island
Administration finds itself in’.[55]
The Department of Infrastructure and Regional Development submission painted a
bleak summary of the state of NI due to infrastructure failures, reduced
revenue capacity, services below standard and the continued lack of investment.[56]
The recommendations of the bipartisan report, Same
Country: Different World: The Future of Norfolk Island, resulted in the
introduction of this legislation.[57]
The key recommendation was:
That as soon as practicable, the Commonwealth Government
repeal the Norfolk Island Act 1979 and establish an interim
administration to assist the transition to a local government type body..(Recommendation
1)
The Government’s response to the report noted the strong
mood for reform within the community with most individuals, including some
members of the Legislative Assembly, acknowledging there needs to be some
change to the model of self-government. The Government however indicated that
the NI Government's preferred model of modified self-government would continue
to see the NI both legislate for and administer state and municipal services,
with the Commonwealth taking on national services only, such as immigration,
customs and quarantine. The Government indicated it did not favour this
approach as it would not address the governance and economic issues that have
negatively impacted the NI community and economy over time. The
Commonwealth Government has committed to high levels of consultation with NI Government
and residents on the reforms.[58]
The Bill proposes to introduce the changes to the
governance arrangements over two stages.
Firstly, an interim transition period in which the Government
proposes to abolish the NI Legislative Assembly, with legislative power being
conferred on the Governor-General. The statutory office of the Administrator
will continue. During the interim period an Advisory Council, with
representatives from the local community, will be established to provide advice
to the Administrator. The Administrator will be assisted by a new position of
Executive Director, who will be responsible for the day-to-day running of the
NI Administration. The Explanatory Memorandum (EM) makes it clear that the
responsible Commonwealth Minister will have overarching supervisory powers in
relation to the NI Administration and existing NI body corporates. During the
interim transition period powers and functions under existing NI laws will be
conferred on the responsible Commonwealth Minister who can delegate the powers
and functions.[59]
The second or “final” phase will be the establishment of
the elected NI Regional Council. The NI Regional Council will have local and
municipal responsibilities. The laws of NSW will apply on NI and the State,
through arrangements with the Commonwealth, will supply state services to the
Island. The Commonwealth will provide national type services through the
extension of Australian taxation, migration, social security and health
services.
According to the EM, the final governance arrangements and
the applied law regimes will be similar to those operating on Cocos Keeling
Islands and Christmas Island.[60]
Selection of Bills Committee
The Senate Selection of Bills Committee resolved that the
Norfolk Island Legislation Amendment Bill 2015 not be referred to a Committee.[61]
Senate Standing Committee for
Scrutiny of Bills
At the time of writing the Senate Standing Committee for
the Scrutiny of Bills had not made any comments in relation to any of the Bills
in the package of Bills.
The Labor Opposition has indicated support for these
changes. The Shadow Parliamentary Secretary for External Territories said:
We absolutely concur, and we are determined
to assist you in that process. You have rightly pointed out that the Australian
government will not be introducing welfare benefits without the obligation of
the Australian taxation system, and we concur with your position. We also
concur with your observation that Australians should be treated the same, no
matter where they live.[62]
The member for Canberra, the default
parliamentary representative for NI residents, has shown support for the new
governance arrangements as a means of protecting the human rights of the
residents of NI through access to opportunity, equality and fairness. However
there is some opposition from within the ACT Labor Party where John Stanhope,
former ACT Chief Minister and administrator of Christmas Island, is fighting to
have a motion of support for the continuation of self-government passed by the
Branch Council.[63]
The policy position of other non-government
parties/independents was not known at the time of writing.
The NI Government, members of the Legislative Assembly and
NI residents and business people have provided their views on the Same Country:
Different World report and the legislation. Most agree in principle on the
need for reform, particularly in the areas of the economy, infrastructure and
the extension of Australian taxation, social security and health benefits to NI
but do not agree with the new governance model. The NI Chief Minister has stated
that:
The Norfolk Island Government welcomes the introduction of
the Australian Commonwealth social security and taxation systems including
Medicare and PBS. This has been a promise to the Norfolk Island community since
2010. The Norfolk Island Government unreservedly rejects the proposal to remove
self-government from the island and abolish the Legislative Assembly, the
Norfolk Island community’s elected representative body...[64]
The 2010 legislation drew criticism from the NI Government
as discussed in its submission
to the inquiry on the Bill:
The Norfolk Island Government recognises in principle the
need for changes but the draft provisions largely do not address the changes
required and essentially do not improve the situation on Norfolk Island. It is
an inappropriate way to move forward.[65]
The NI Government’s preferred model for self-government
was submitted to the Commonwealth Government by the 13th Legislative Assembly
in July 2011 and re-affirmed by Motion of the 14th Legislative Assembly on 9 May
2013.[66]
It was discussed with Minister Briggs on his visit to NI in February 2014 and
formed part of the NI Government’s submission to the Committee: their preferred
model for territory self-governance provides for the current NI institutions to
remain.[67]
Other submissions by people such as Neil Pope, former administrator
of NI, described the Legislative Assembly as moribund, and saw the lack of
trust fed by vested interests as a major problem. He called for the abolition
of the Assembly and the introduction of a local-government type administration.
The same approach was echoed by Julian Yates, a former commonwealth public
servant with extensive experience in working on areas related to NI:
Governance reform is vital. Limited progress has been made,
but much more needs to be done. Norfolk Island should not continue as a
self-governing territory: the experience has not worked. The government on
Norfolk Island should become a local government, perhaps with some enhanced
responsibilities given its remote location, but it ought not to attempt to
provide services beyond its financial and technical competence.[68]
The NI Government has proposed the holding of a referendum
on the issue of future governance arrangements before any legislative change
was introduced. The Assistant Minister in response to a petition by 834 NI
residents and descendants of the Pitcairn islanders presented to the federal
Parliament noted:
Given the consultation that has already occurred, it is not
my intention to call a referendum or plebiscite on the governance arrangements
on Norfolk Island. I note the Norfolk Island Legislative Assembly may pass a
resolution to direct a referendum and does not require the approval of the
Australian Government (the Government). However, on 11 February 2015 the Hon
Lisle Snell MLA, the Chief Minister of the Norfolk Island Legislative Assembly,
withdrew his intention to call a referendum at this time.[69]
Following the introduction of this legislation the NI
Legislative Assembly has resolved to hold a non-binding referendum on 8 May
2015 on the question:
Should the people of Norfolk Island have the right to freely
determine their political status, their economic, social and cultural
development and be consulted at referendum or plebiscite on the future model of
governance for Norfolk Island before such changes are acted on by the
Australian Parliament. YES/NO.[70]
The results of the referendum have shown that NI residents
want a say in their future governance model for NI: 624 yes, 266 no and 22
informal.[71]
It has been reported that the Speaker of the NI
Legislative Assembly has opined that the Commonwealth’s Regional Council model
will entail a loss of democracy and the Hon Lisle Snell, Chief Minister and
Minister for Tourism has said:
The Norfolk Island Government welcomes the introduction of
the Australian Commonwealth social security and taxation systems including
Medicare and PBS. This has been a promise to the Norfolk Island community
since 2010. The Norfolk Island Government unreservedly rejects the
proposal to remove self-government from the island and abolish the Legislative
Assembly, the Norfolk Island community’s elected representative body’.[72]
In contrast, the Administrator for Norfolk Island prepared
a paper on community consultations with NI residents following the release of
the Same country report. The key finding of the community’s views on the
key recommendation was:
Recommendation 1: The repeal of the current Act and the introduction of a new Norfolk
Island Act to effect change of governance arrangements is supported by a
substantial majority of Norfolk Island residents.
The vast majority of residents believe the
14th Assembly has not acted in the best interests of the people of Norfolk
Island. The overwhelming view of the community is the Norfolk Island
Legislative Assembly should now be abolished and replaced, after a transitional
period to effect changes to the governance structures for service delivery, by
a local government type body.[73]
The EM notes that the total NI reform package is estimated
to cost $136.2 million over the forward estimates. Financial arrangements
operating at the time the interim transitional period commences will continue
to operate.
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[74]
The EM to the Bill notes that the package of Bills engages
a number of human rights:
- the
right to self-determination
- the
rights of minorities
- the
right to take part in public affairs and elections
- the
right to freedom of movement
- the
right to social security
- the
right to health
- the
right to an adequate standard of living and
- the
right to work.
One of the key issues is whether the Bill allows for the
human rights and freedoms of the residents of NI, especially the
Norfolk-Pitcairn population. Some of this population identify as a people with
rights to self‑determination under Article 1 of the International
Covenant on Civil and Political Rights and Article 1 of the International
Covenant on Economic, Social and Cultural Rights. The EM outlines that the
proposed measures are a result of extensive consultation and one of the key
objectives of the legislation is to provide for sustainable economic and social
development of NI, an important aspect of the right to self-determination in
maintaining the Norfolk-Pitcairn culture. The EM acknowledges that during the interim
arrangements the ability of NI residents to participate in public affairs at
the local level will be limited but the final governance arrangements will
allow for the NI Regional Council, responsible for local and municipal issues,
to be elected by the citizens. Moves to
bring NI into Australia’s migration, social security and health arrangements
are given as evidence of complying with
the right to freedom of movement, the right of everyone to social security and
the right of everyone to the highest attainable standard of physical and mental
health.[75]
The EM concludes that ‘The Bill is compatible with human
rights because it advances the protection of human rights. To the extent that
it may limit human rights, those limitations are reasonable, necessary and
proportionate’.[76]
The Parliamentary Committee on Human Rights has not yet
reported on the Bill.
As outlined above, significant concerns have been raised
by the NI Government and some residents about the proposal to abolish
self-government. However the residents of NI have indicated they welcome the
benefits that will come with access to Australia’s health and medical services.
Schedule 1—Interim
arrangements
During the interim transition period, which commences on a
day to be proclaimed following the passage of the Bill, the Government proposes
to abolish the Legislative Assembly, with legislative power being conferred on
the Governor-General. The statutory office of the Administrator will continue.
During the interim period, an Advisory Council, with representatives from the
local community, will be established to provide advice to the Administrator.
This period will enable time for consultation between Australian Government
officials and NI residents to prepare for the introduction of Australia’s
health, social security and taxation regimes and finalise the final governance
model in the form of the NI Regional Council.
Part 1, Division
1—Amendments to the Norfolk Island Act 1979
Item 1 repeals the Preamble
to the Act. The Preamble provides a history of the constitutional and
legislative arrangements for NI. Within in it the Commonwealth acknowledges
that the residents include the descendants of the settlers from Pitcairn Island
and recognises their special relationship with NI and their desire to preserve
their traditions and culture. The Preamble also states that the Commonwealth
recognises that it is desirable for the people of NI to achieve over time,
internal self-government. The EM states that ‘the preamble no longer reflects
the Parliament’s intention for the governance of Norfolk Island’.[77] This legislation abolishes self‑government, despite the
NI Government’s previous work towards continuous devolution and steady progress
to full self-government. As noted earlier in this Digest, the Committee and members of the Commonwealth Parliament have over a
number of years raised the independence of NI as an important issue, and there
is a very fiercely held belief among many of the people on the Island that they
should be independent.
Item 2 inserts the definition of
NI Advisory Council which is to be established during the transition period to
support the transition. The item also provides a new definition of Australia
which includes the external territories such as NI.
Items 4, 6, 8, 14, 15 and 17 all repeal definitions relating to executive positions
previously held in the NI Government, including Chief Minister, Speaker, Deputy
Speaker, Executive Council, and Minister.
NI Administrator
Item 20 repeals section 7, the
provision that deals with the Administrator’s exercise of executive powers, and
substitutes a proposed section 7 and 7A. Proposed section 7 requires
the Administrator to exercise powers and functions conferred upon them in
accordance with the tenor of his or her Commission and with written directions
given by the Commonwealth Minister. The proposed section omits any reference to
matters listed in Schedule 2 and 3 about which the NI Government had been able
to legislate on, as these schedules are being repealed.[78]
Proposed subsection 7A(1) allows
the Administrator to delegate any or all of his or her powers to the Executive
Director, an employee of the Administration, an office holder under an
enactment, or an employee of a body corporate established under an enactment. This
will ensure that the NI administration is able to continue to perform their
normal business during the interim period. Proposed subsections 7A(2)–(6) relate to a delegate complying with written directions from the
Administrator or the responsible Commonwealth minister.
Item 21 repeals sections 9 and 10.
Section 9 currently allows for the appointment of a deputy or deputies to the
Administrator and section 10 provides that an Administrator or Deputy Administrator
has to take an oath or affirmation of office before undertaking the duties of
the office. Proposed section 9 allows for the
Commonwealth Minister to appoint a specified employee of the NI Administration as
the Executive Director of Norfolk Island. Subsection 9(2) indicates that the written declaration is not a legislative
instrument. The EM states that the role of the Executive Director will be to
oversight and manage the NI administration and the territory instrumentalities
such as the NI Hospital. He or she will have an immediate role in restructuring
the NI Administration and improving the efficiency of the public sector.[79] The EM states that during
the interim transition period it is anticipated that the responsible
Commonwealth minister will delegate spending control to the Executive Director,
the Chief Executive Officer of the NI Administration and managers of territory
authorities.[80]
It is unclear how the positions of Executive Director and Chief Executive
Officer will operate together as both positions appear to have similar
functions. The Chief Executive Officer role is defined under Part 5 of the Public Service Act 2014 (NI).[81]
The Executive Director and Chief Executive Officer positions are both abolished
on the commencement of the final arrangements.
Proposed section 10 provides for the
Administrator to engage employees for the Government of NI and on such terms
and conditions that the Administrator determines.
Proposed section 10A allows for
Commonwealth public service employees or officers and employees of statutory
authorities to assist the Administration.
NI Advisory Council
Item 22 repeals Part III of the NI
Act which dealt with the establishment and operation of the Executive
Council. The proposed Part III establishes the NI Advisory Council. New
section 12 establishes the Advisory Council and new
section 13 states that the function of the Advisory
Council is to advise the Administrator on matters affecting the peace, order
and good government of NI. Proposed sections 14–14C outline the membership of the Advisory Council. The Advisory
Council will have five members one of which will be Chair; they will be
appointed by the responsible Commonwealth minister; the positions will be
part-time and will be for a specified period no longer than 12 months.
Provisions are made for a person to be appointed acting Chair or acting member
of the Advisory Council if the chair or member is absent or cannot perform the
duties of office. Advice from the Department of Infrastructure and Regional
Development states that the Advisory Council will be drawn from the NI
community; residents will have the opportunity to provide a nomination to the
Administrator.[82]
It is worth noting that this is the intention but is not a legal requirement of
the Bill. As a first priority, the Advisory Council will be asked to consider
the best model for the future NI Regional Council, to be elected in the first
half of 2016, to ensure the highest quality of local services can be delivered
to the community.[83]
The Advisory Council will be abolished on commencement of the final arrangements.
Proposed sections 14D to 14H provide
for the responsible Commonwealth Minister to prescribe the remuneration and
allowances for Advisory Council members (by legislative instrument);
requirements for members to disclose interests in writing; the resignation of Advisory
Council members; and the termination of a member’s appointment by the
responsible Commonwealth minister. Advisory Council members otherwise hold
office on terms and conditions determined by the responsible Commonwealth
minister.
The responsible Commonwealth minister may
prescribe (by legislative instrument) procedures for the operation of the Advisory
Council. New section 14K requires the Advisory Council
to keep minutes of meetings. New section 14L allows the Administrator to assist the Advisory Council by way of
information, advice or making resources and facilities available. However new
section 14M clarifies that the Administrator does not have
to obtain advice from the Advisory Council before acting.
Continuation of laws
Item 23 inserts new
section 15 which outlines the laws in force during the
interim transition period.
Item 26 provides for the
continuance of laws in force prior to the interim transition period to
continue. The legal regime in NI comprises: Commonwealth statutes that extend
to NI; Ordinances made by the Governor-General; enactments of the NI
Legislative Assembly; ordinances made under the Norfolk Island Act 1957 (repealed)
and Norfolk Island Act 1913 (repealed); consolidated laws of the Island
as published in the NSW Government Gazette of 24 December 1913; English
statutes in force on 28 July 1828 capable of applying to NI on 14 April 1960
and United Kingdom paramount laws.[84]
Legislative powers of the Governor-General
Item 28 repeals Divisions 2 and 3
of Part IV of the NI Act which set out the legislative power of the
Legislative Assembly (Division 2) and the legislative powers of the
Governor-General (Division 3). Proposed Division 2 relates to the
legislative powers of the Governor-General. New subsection 19A(1) provides that legislative power for NI will now be conferred on the
Governor-General who may make Ordinances for the peace, order and good
government of the territory. New subsection 19A(2) indicates that an ordinance is a legislative instrument. Item
33 provides that in cases of inconsistency between
regulations and a section 19A Ordinance, the regulations prevail.
Other amendments
Item 34 repeals Part V of the NI
Act which established the NI Legislative Assembly. As a result, the
Legislative Assembly will cease to exist from the commencement of the interim
transition arrangements. Current Members of the Legislative Assembly will not
continue in an elected-representative capacity.
Items 35 to 68 contain amendments to
the financial provisions of the NI Act. Item 36 repeals subsection 47(4) which relates to revenues that had
previously been raised for use for matters listed in Schedule 2 of the NI
Act. Items 40–44 amend financial reporting
requirements in the NI Act to provide that annual budgets and financial
statements are to be prepared by the Administrator not by the NI Minister for Finance.
Other amendments are as a consequence of the abolition of the Legislative
Assembly and executive positions, such as changing ‘Norfolk Island Minister’ to
‘Administrator’ or repealing provisions that include a reference to the ‘Legislative
Assembly’.
Items 72 and 73 allow for
the employment of officers for the purposes of government in NI and a person so
appointed must uphold the NI Public Service Values. The officers could be
employed under NI law or the Public Service Act 1999 (Cth). Item
74 repeals the previous section dealing with grants of
land and inserts new section 62 relating to disposal of land.
Item 78 proposes to repeal section
65 which provides for remuneration and allowances for members of the Legislative
Assembly and section 66A requiring reports by the Commonwealth Ombudsman to be
given to NI Ministers.
Items 79 and 80 amend the
regulation-making powers in section 67 of the NI Act to remove references
to the NI Legislative Assembly and Schedules 2 and 3 of the NI Act.
Schedule 1, Part 1,
Division 2—Amendments to other legislation
Items 85 to 183 make amendments
to 27 Commonwealth Acts as a result of the changing
governance arrangements for NI. For example, these
items include:
- repeal
definitions of, or references to, a ‘NI Minister’ (such as item 87 Administrative
Appeals Tribunal Act 1975)
- extend
certain Acts to NI (such as item 90 Administrative Decision (Judicial
Review) Act 1977 and item 144 Legislative Instruments Act 2003)
- replace
reference to a Minister of NI with the Administrator of NI (item 92 Carbon
Credits (Carbon Farming Initiative) Act 2011)
- omits
reference to NI from definition of self-governing territories (item 96 Defence
Act 1903)
- omit
references to the Legislative Assembly of NI (item 117 Freedom of
Information Act 1982 and item 183 Transfer of Prisoners Act 1983)
- insert
references to a NI body or agency appointed by the Administrator other than
under a NI enactment (item 151 Privacy Act 1988) and
- substitute
references to the NI Legislative Assembly with references to the NI Advisory
Council (item 181 Remuneration Tribunal Act 1973).
Schedule 1, Part 2—Transitional
provisions for the interim transition period
This Part provides for rules and other matters (such as the
transfer of assets and liabilities and employment arrangement for the employees
of NI Administration) that apply during the transition from the current
arrangements operating on NI to those operating during the interim transition
period.
Item 184 provides a list of definitions to apply
during this period including a definition of ‘interim transition time’ which
means the commencement of Part 1 of the Schedule.
Subitem 185(1) allows the
responsible Commonwealth Minister to make (by legislative instrument) rules for
the interim transition period. However, subitem 185(2) provides that the rules cannot create an offence or civil penalty
along with other matters.
Items 186 and 187 allow for the
rights, assets and liabilities of the Executive Council or Legislative Assembly
existing immediately before the interim transition period to become the rights,
assets and liabilities of the NI Administration. If a minister or members of
the Legislative Assembly or the Executive Council held an asset or a liability
in that capacity immediately before the interim transitional period then it
becomes an asset or a liability of the Administration (items 188 and
189).
Eligible employees as defined in item
193 who were employed by the NI Administration prior to
the transition period will become employed by the Administration on the same
terms and conditions that operated prior to the interim transition time. The
definition is wide ranging to encompass many different types of existing
employment arrangements. Provision is made for terms and conditions to be
varied. Eligible employees have to adhere to the Public Service Values referred
to in section 61A of the NI Act. There will be
no immediate change to the employment arrangements within the NI Administration
and related entities, and business will continue as usual as the services and
functions delivered by the Administration will need to continue to support the
community.[85]
Items 194 and 195 specify that the
changes made to sections 48B, 48C and 48J of the NI Act, relating to financial
statements and annual reports as discussed earlier in this Digest, apply from 1
July 2015 (or a later financial year if necessary).
Item 196 provides that, despite
changes made to the Administrative Appeals Tribunal 1975, those sections
will continue to apply after the interim transition period as if the amendments
had not been made.
Item 197 clarifies that
declarations made under the Historic Shipwrecks Act 1976 (Cth) before
the interim transition period will continue.
Item 198 provides that changes to
the Public Disclosure Act 2013 (Cth) will only apply to conduct that
occurs after the interim transition time.
Item 199 provides that an
exempt matter, being the operation of these transitional rules including for
the transfer of assets and liabilities, does not trigger an obligation to pay a
stamp duty or tax under state or territory law. Subitem 199(3) provides that the responsible Commonwealth Minister may certify in
writing that a particular matter is an exempt matter for the purpose of this
section.
Item 200 provides a ‘constitutional
safety net’ covering unjust acquisition of property as a result of changes
occurring during the interim transition period.
Part 3 Amendments contingent on the commencement of the Acts
and Instruments (Framework Reform) Act 2015
The amendments in Part 3 of Schedule 1 would amend the Legislative instruments Act 2003 as
amended by the Acts and Instruments (Framework Reform Act) 2015 (Framework
Reform Act).[86]
Item 12 of Schedule 1 of the Framework Reform Act will (among other
things) insert a new section 10 into the Legislative Instruments Act,
dealing with instruments that are declared to be legislative instruments. New
paragraph 10(2)(c) provides that an Ordinance made under section 27 of the NI
Act is a legislative instrument. New section 10 has not yet commenced and
a date for its commencement has not yet been proclaimed. Part 3, items
204–206 repeal paragraph 10(2)(c) of the Legislative
instruments Act 2003 from the later of the time of commencement of Schedule
1 of the Framework Reform Act and the interim transition time.. Paragraph
10(2)(c) will no longer be required as section 27 of the NI Act will be
repealed by item 28 of Schedule 1 of the Bill. However the paragraph continues
to apply to ordinances made before the commencement of Part 1 of Schedule 1.
Schedule 2—Final Arrangements
The final arrangements will commence on 1
July 2016 and the new governance arrangements for NI will be in place with the
election of the NI Regional Council and NSW laws applying to NI. NI judicial
arrangements will be preserved.
Part 1, Division 1— Amendments to the Norfolk Island
Act 1979
Items 1–24
amend subsection 4(1) of the NI Act to repeal many definitions including
those relating to the interim transition period such as Administrator, Advisory
Council, Chief Executive Officer and so on. Item 17 inserts a definition of the Norfolk Island Regional Council
as a body corporate established under a law in force in the territory. There
are a considerable number of options for how the Regional Council might be formed
in terms of the numbers of councilors and how voting will be conducted. The
Administrator will consult further with the community on the final model ahead
of facilitating the transition to the locally-elected Regional Council from 1 July
2016. The NI Regional Council will be modelled on local governments in NSW with
some adjustments for local conditions. Following the election of councillors
from the community in early 2016, the Regional Council will commence operations
from 1 July 2016. The EM says the Regional Council could be established under
NSW law or under an ordinance under the NI Act.[87]
Item 25 repeals Parts II and III
of the NI Act thereby repealing provisions relating to NI Administration
and the NI Advisory Council. Item 26 sets out the
laws that will be in force in NI at the commencement of the final transition
period.
Item 27 inserts new section 18A allowing for
the application of NSW laws to NI. Such laws can be amended or repealed by a
section 19A Ordinance (subsection 18A(2)).
Provision is made for cases of inconsistency (subsections 18A(4) and
(5)) and to ensure that provision of NSW law also includes
principles of common law (subsection 18A(6)). New
section 18B provides that powers vested under the NSW laws
to NSW ministers and the NSW Governor are instead vested in the responsible
Commonwealth minister who can delegate any such power.
New subsection 18C(1) provides the Commonwealth may
enter into an arrangement with NSW for the effective application and
administration of the laws in force in NI. This section would allow the
Commonwealth to arrange for the NSW Government to deliver services or
administer laws in relation to NI.[88]
Item 28 repeals the entirety of Part VI of the NI
Act, which contains provisions relating to Finance.
Item 29 repeals the NI Public Service Values which
will be replaced by applied NSW law or equivalent arrangement established under
an ordinance.[89]
Part 1, Division 2—Amendment of
other legislation
As discussed, the NI Act provides Commonwealth legislation
only applies in the NI if there is an express provision in the legislation. The
majority of the amendments in this division remove redundant
references to the crown in the right of Norfolk Island, which ceases to be an
operative concept upon the commencement of the final transition time. The
EM provides this Table below.[90]
Acts being amended to remove redundant references to
the crown in the right of Norfolk Island
|
Acts beginning with letters A-L
|
Acts beginning with letters M-W
|
Aboriginal and Torres Strait Islander Act 2005
Age Discrimination Act 2004
Agricultural and Veterinary Chemicals Act 1994
Airports Act 1996
Airports (Transitional) Act 1996
Air Services Act 1995
Australian Crime Commission Act 2002
Australian Human Rights Commission Act 1986
Australian Postal Corporation Act 1989
Banking Act 1959
Bank Integration Act 1991
Charter of the United Nations Act 1945
Civil Aviation Act 1988
Civil Aviation (Carriers’ Liability) Act 1959
Copyright Act 1968
Corporations (Aboriginal and Torres Strait Islander)
Act 2006
Crimes (Superannuation Benefits) Act 1989
Designs Act 2003
Disability Discrimination Act 1992
Disability Services Act 1986
Financial Sector (Shareholdings) Act 1998
Financial Transaction Reports Act 1988
Fisheries Management Act 1991
Foreign Corporations (Application Of Laws) Act 1989
Fringe Benefits Tax Assessment Act 1986
Hazardous Waste (Regulation of Exports and Imports) Act
1989
Healthcare Identifiers Act 2010
Industrial Chemicals (Notification and Assessment) Act
1989
Insurance Acquisitions and Takeovers Act 1991
Marine Navigation Levy Collection Act 1989
Marine Navigation (Regulatory Functions) Levy Collection
Act 1991
|
Marriage Act 1961
National Environment Protection Council Act 1994
National Residue Survey Administration Act 1992
National Transmission Network Sale Act 1998
Native Title Act 1993
Olympic Insignia Protection Act 1987
Ozone Protection and Synthetic Greenhouse Gas
Management Act 1989
Patents Act 1990
Product Grants and Benefits Administration Act 2000
Productivity Commission Act 1998
Product Stewardship (Oil) Act 2000
Protection of Movable Cultural Heritage Act 1986
Protection of the Sea (Oil Pollution Compensation
Funds) Act 1993
Sex Discrimination Act 1984
Small Superannuation Accounts Act 1995
Superannuation Contributions Tax (Assessment and
Collection) Act 1997
Superannuation Contributions Tax (Members of
Constitutionally Protected Superannuation Funds) Assessment and Collection
Act 1997
Superannuation (Self-Managed Superannuation Funds)
Taxation Act 1987
Superannuation (Unclaimed Money and Lost Members) Act
1999
Telstra Corporation Act 1991
Termination Payments Tax (Assessment and Collection)
Act 1997
Tobacco Plain Packaging Act 2011
Trade Marks Act 1995
Trusts (Hague Convention) Act 1991
Weapons of Mass Destruction (Prevention of
Proliferation) Act 1995
|
There are amendments to other Acts which
do more than remove a redundant reference to the crown in the right of NI but
the focus here is on those that extend health, migration and welfare to
NI.
Health
In Part 1 of Schedule 2, items 122 to 125 and 214 to
220 bring NI into Australia’s health system. Items 122 to 125 brings
NI under the Dental Benefits Act 2008 (Cth) by among other matters
changing the definition of Australia to include NI and inserting a new
section 7A into the Act extending the Act to all external territories.[91]
Item 214 revises the definition of Australia to include NI under subsection
3(1) of the Health Insurance Act 1973 (Cth), while item 217
extends the Act to NI.[92]
Items 215 and 216 insert new subsections that for the purpose of the
definition of patient contribution and for other unspecified health services,
that NI is taken to form part of NSW. Items 223 and 224 change the
definition of Australia to include NI in section 3 of the Human Services
(Medicare) Act 1973 (Cth) and add a new subsection 3B that extends
that Act to NI.[93]
The National Health Act 1953 (Cth) is extended to
NI by item 265. Item 306 extends the provisions of the Private
Health Insurance Act 2007 (Cth) to NI.[94]
Items 308 and 309 relate to the commencement for the application of lifetime health cover base day as it applies to
residents of NI who have turned 31 before the final transition time.[95]
Item 310 inserts a new definition of Australia to include NI into the
dictionary that covers the Private Health Insurance Act.
Welfare
Items 51–55 insert new definitions into A New
Tax System (Family Assistance) Act 1999 (Cth) and A New Tax System
(Family Assistance (Administration) Act 1999 (Cth) to extend those Acts to
NI.[96]
Items 81–91 bring NI
into Australia’s child support arrangements.
Item 221 inserts a new definition of Australia
which includes NI into section 3 of the Human Services (Centrelink) Act 1997
(Cth) and item 222 extends that Act to NI.[97]
Item 322 inserts a new section 3AA into the Social Security Act
1991 (Cth) extending the Act to NI.[98]
Item 325 changes the residency status provisions (by amending paragraph
7(4)(e) to include NI, and therefore makes accessible to NI residents payments
under the age pension, disability support pension, bereavement allowance and
widow B pension. Items 327, 328, 331 all amend the Act to include NI in
the definitions of ‘remote area’ and ‘regional or remote location’. Item 329
changes the definition of Australia to include NI and item 330 amends
the definition of external territory to
remove NI in section 23 of the Social Security Act 1991 to ensure
that NI is considered part of Australia for the purposes of social security law.
Item 334 adds a new section 6B to the Social
Security (Administration) Act 1999 (Cth) extending the Act to NI.[99]
Item 295 and 296 extend the Paid Parental Leave
Act 2010 (Cth) to NI and adds NI to the definition of Australia.[100]
Items 371–376 in Part 2 of Schedule
2 contain transitional provisions to ensure that NI residents will not have
retrospective access to entitlements under the extended social security
arrangements such as age pension, Newstart allowance, disability support
pension and youth allowance. Items 377–381 are transitional provisions that ensure that family tax benefit and
single income family supplement cannot be paid for periods before the 1 July
2016. Item 381 allows for early claims of family
tax benefit. Item 382 allows for early
lodgment of claims for an assessment of child support under the Child
Support (Assessment) Act 1989 (Cth) for up to eight weeks before
commencement of the final transition time.[101]
Items 383–388 are transitional provisions that allow for a designated official to
be appointed to work out a person’s adjustable taxable income for the purposes
of the Child Support (Assessment) Act 1989, the Social Security Act
1991 and the Paid Parental leave Act 2010 and technical issues
around determining the tax-exempt income if there is insufficient information
and documentation. Item 390 allows for a review
of decisions.
Migration
Item 249 amends the Migration Act 1958 (Cth)
to insert NI into the definition of adjacent area with other states and
territories in subsection 5(1), which impacts on how sea installations near NI
will be treated.[102]
Item 250 changes the definition of an excluded maritime arrival. Item
251 amends subsection 7(1) of the Migration Act by including NI in
the definition of prescribed territories, which ensures that NI is deemed to be
part of Australia and not a place outside Australia.[103]
Items 252–254 are technical provisions relating to travel between NI for
non-Australian citizens resident on NI. Under current arrangements for travel purposes NI is treated as if it were another
country, despite it being part of Australia, and flights between NI and other
Australian states and territories are processed as international flights. This
means all people travelling to or from NI must undergo immigration clearance
when arriving in or departing from another Australian state or territory. Currently
Australian citizen permanent residents of NI do not require a visa when
travelling to Australia as Australian citizens do not require a visa to enter
Australia (and this will continue). Permanent non-Australian residents of NI need
to apply for a Permanent Resident Norfolk Island visa (PRNIV) on arrival in
Australia by presenting a current passport endorsed with their permanent
resident of NI sticker that indicates resident status, and a completed incoming
passenger card.[104]
Item 370 contains a transitional provision to provide
that non-citizens on NI can be granted visas under the Migration Act to
ensure they do not inadvertently become unlawful as a result of the transition.
Item 225 inserts a new definition of Australia to
include NI into the Immigration (Guardianship of Children) Act and item
226 inserts a new subsection 4AAC extending the Act to NI.[105]
Schedule 2, Part 2—Transitional
provisions
This Part provides for the rules and other matters (such as
the transfer of assets and liabilities) that apply during the transition from
the interim transition period to the final arrangements. Many of the provisions
mirror those applying during the transition to the interim transition period.
Item 356 provides definitions for the purposes of
Part 2, Schedule 2 of the Bill. This includes a definition of ‘final transition
time’, which means the commencement of Part 1 of Schedule 2—that is, 1 July
2016.[106]
Items 358–363 provide that at the final transition
time the assets and liabilities of the NI Administration will be invested in
the NI Regional Council. The Responsible Commonwealth Minister can specify that
any asset or liability can be vested in the Commonwealth.[107]
The records of the Administration will be transferred to the Commonwealth or to
the Regional Council (item 366).
Items 368–369 provide that employees of NI
Administration employed prior to the final arrangements will be transferred to
the NI Regional Council at that time. They will retain the same salary and
conditions.
Item 392 is the equivalent
provision to item 199 of Part 2 of Schedule 1 relating to exemption from stamp
duty and other state taxes.
Items 393 and 394 provide
constitutional safety nets in relation to unjust acquisition of property and
imposition of taxation.
Schedule 3 allows for the Census
and Statistics Act 1905 to cover NI.[108]
This means that NI will be included in the collection of statistical
information, including the census of population and housing conducted by the
Australian Bureau of Statistics.
The Norfolk Island Legislation Amendment Bill 2015 has
bipartisan support from the major parties. However there seems to be growing
disquiet in NI on the extent of the reforms to their governance arrangements
which are perceived as reducing their democratic rights. Community consultation
and submissions to the Committee inquiry have indicated that many NI residents
welcome the introduction of Australia’s health and welfare arrangements as well
as further investments in infrastructure and tourism ventures.
The NI residents have shown an overwhelming support for a say on the future model of governance for NI. The referendum is non-binding, but it provides an indication
of the level of support and/or disagreement with the proposed reforms,
especially the changes to the governance arrangements. Whether it will have any
impact on the debate on this legislation remains to be seen.[109]
The Australian Government has already commenced a community
consultation programme with NI residents about the reforms, in particular
changes to social security, health and taxation and has also started
the process for appointing members of the five-person Norfolk Island Advisory
Council, to represent the local community and contribute to reform for Norfolk
Island.[110]
Appendix: List
of selected inquiries relating to Norfolk Island
Royal Commission
Australia, Report
of the Royal Commission into matters relating to Norfolk Island, AGPS,
Canberra, October 1976
Parliamentary reports
Joint Standing Committee on National Capital and External
Territories, House of Representatives
Same Country: Different World: The Future of Norfolk Island, Canberra, October 2014
Report
of the visit to Norfolk Island 29-30 April 2013, Canberra, June 2013
An
advisory report on the Territories Law Reform Bill 2010,
Canberra, May 2010
Norfolk
Island Financial Sustainability: The Challenge – Sink or Swim, Canberra, November 2005
Report on the visit to Norfolk Island: 2–5 August 2006, Canberra, September 2006
Norfolk Island: Review of the Annual Reports of the Department of
Transport and Regional Services and the Department of the Environment and
Heritage, Canberra, July 2004
Quis custodiet ipsos custodes? Inquiry into Governance on Norfolk
Island, Canberra, December 2003
Norfolk Island Electoral Matters, Canberra,
June 2002
In the Pink or in the Red? Inquiry into the Provision of Health Services
on Norfolk Island, Canberra, July 2001
House of Representatives Legal and
Constitutional Affairs Standing Committee, Islands in the Sun: The Legal Regimes of Australia's External Territories
and the Jervis Bay Territory, Canberra, March 1991
Government reports
Department of Infrastructure and Regional Development, Australian
National Audit Office Independent Report of Norfolk Island’s Financial Statements
2013/14, ANAO, December 2014
Centre for International Economics, Economic Impact of Norfolk Island Reform Scenarios, report prepared for the Department of Infrastructure and Regional
Development, CIE, November 2014
Deloitte Access Economics, Review of Norfolk Island Government Business Analysis, Deloitte Access Economics, November 2014
Department of Infrastructure and Regional
Development, Australian National Audit Office, Independent
report of Norfolk Island's financial statements 2012/13Independent Report of
Norfolk Island's Financial Statements 2012/13, ANAO,
December 2013
Department of Regional Australia, Regional
Development and Local Government, Australian National Audit Office, Independent Report of Norfolk
Island's Financial Statements 2011/12, ANAO, March
2013
G Calvert AO and M Connolly, Review of Existing Child and Family Support Services on Norfolk
Island, prepared for the Department of Regional
Australia, Regional Development and Local Government, September 2012
ACIL Tasman, Norfolk
Island Economic Development Report, report for the Department of
Regional Australia, Regional Development and Local Government ACIL Tasman, March
2012
Australian Continuous Improvement Group, Norfolk
Island Public Service Review, prepared for the Department of
Regional Australia, Regional Development and Local Government, ACIG, November
2011
Commonwealth Grants Commission, Update
of the Financial Capacity of Norfolk Island 2011, The Commission, 2 December
2011
Commonwealth Grants Commission, Review of the Financial Capacity of Norfolk Island 2006, The Commission, 2006
Acumen Alliance, Norfolk Island Government, Financial Advisory Report, report for the Department of Transport and Regional Services Acumen
Alliance, November 2005
Human Rights and Equal Opportunities
Commission, Territorial limits: Norfolk Island's Immigration Act and Human Rights, The Commission, March 1999
Commonwealth Grants Commission, Report on Norfolk Island, AGPS, Canberra,
1997
Australian Bureau of Statistics, Norfolk
Island Household Expenditure Survey 1995, The Bureau, Canberra, 1996
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Parliament
of Australia, ‘Norfolk
Island Legislation Amendment Bill 2015 homepage’ Australian
Parliament website, accessed 11 May 2015.
[2]. Department
of Infrastructure and Regional Development, ‘Note 1.3 Going Concern’ in The
Australian National Audit Office independent report of Norfolk Island’s financial
statements 2012/13,
ANAO, 10 December 2013, accessed 11 May 2015.
[3]. Joint
Standing Committee on the National Capital and External Territories, Same
country: different world: the future of Norfolk Island, Canberra,
October 2014, accessed 16 April 2015.
[4]. Ibid.,
p. 41.
[5]. Norfolk Island Act 1979
(Cth), accessed 6 May 2015.
[6]. Parliament
of Australia, ‘Tax
and Superannuation Laws Amendment (Norfolk Island Reforms) Bill 2015 homepage’,
Australian Parliament website, accessed 8 May 2015.
[7]. Parliament
of Australia, ‘A
New Tax System (Medicare Levy Surcharge—Fringe Benefits) Amendment Bill 2015’,
Australian Parliament website, accessed 8 May 2015.
[8]. Parliament
of Australia, ‘Health
and Other Services (Compensation) Care Charges Amendment (Norfolk Island) Bill
2015 homepage’, Australian Parliament website, accessed 5 May 2015.
[9]. Parliament
of Australia, ‘Health
Insurance (Approved Pathology Specimen Collection Centres) Tax Amendment
(Norfolk Island) Bill 2015 homepage’, Australian Parliament website,
accessed 5 May 2015.
[10]. Parliament
of Australia, ‘Health
Insurance (Pathology) (Fees) Amendment (Norfolk Island) Bill 2015 homepage’,
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[11]. Parliament
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