Chapter 1 Introduction
1.1
The purpose of the Territories Law Reform Bill 2010 (the Bill) is to:
n provide for the
implementation of reforms to strengthen Norfolk Island governance arrangements
and transparency, and improve the accountability of the Government of Norfolk
Island and its Administration; and
n amend the Christmas
Island Act 1958 (Cwlth) and the Cocos (Keeling) Act 1955 (Cwlth) ‘to
provide a vesting mechanism for powers and functions under Western Australian
(WA) laws applied in the Indian Ocean Territories’ (IOTs) leading to greater
efficiency in the administration of service delivery arrangements.[1]
Background
1.2
In May 2009, the then Minister for Home Affairs, the Hon Bob Debus MP, announced
a proposed package of reforms to governance and administrative arrangements for
Norfolk Island. It was envisaged that the reforms would be implemented in
consultation with the Government of Norfolk Island, its Administration and the
Norfolk Island community. The aim of the reforms was to improve governance
arrangements and increase the accountability and transparency of the Government
of Norfolk Island and its Administration.[2]
1.3
Specifically the reforms would:
n allow the
Commonwealth Ombudsman and the Administrative Appeals Tribunal to operate on
Norfolk Island and provides for judicial review of decisions made by the
Norfolk Island Administration
n apply the provisions
of the Freedom of Information Act 1982 (Cwlth) and the Privacy Act
1988 (Cwlth) to information held by the Norfolk Island Government and its
Administration. This would include a role for the Commonwealth Privacy
Commissioner.
n allow the
Administrator of Norfolk Island to access a greater range of advice when
presented with bills for assent under Schedule 2 of the Norfolk Island Act
1979 (Cwlth)
n allow the
Governor-General and the Territories Minister to take a more active role in the
introduction and passage of Norfolk Island legislation
n provide for changes
to the process for the election of the Norfolk Island Legislative Assembly
n provide for the selection
of and prescribe the roles of Chief Minister and other Ministers
n include enacting a
code of conduct for Members of the Norfolk Island Legislative Assembly
n provide for fixed
terms for the Norfolk Island Legislative Assembly
n 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.
1.4
In addition, Quis custodiet ipsos custodes? Inquiry into
Governance on Norfolk Island (the 2003 report), was the first of two
reports relating to Norfolk Island governance and financial arrangements by the
committee. While the 2003 report examined governance arrangements for Norfolk
Island, the second report entitled The Challenge: Sink or swim examined
ways of achieving financial sustainability for Norfolk Island.
1.5
The 2003 report made recommendations aimed at improving the transparency
and accountability of Norfolk Island administrative, governance and financial
arrangements. This would entail implementation of a comprehensive
Administrative law review system, in addition to possible changes to the
governance and financial frameworks.
1.6
In February 2009, Minister Debus acknowledged the progress by the
Government of Norfolk Island in implementing a new administrative complaints
system. Further, Minister Debus commented on discussions with the Government of
Norfolk Island regarding strengthening transparency and accountability
measures, especially in relation to future appointment of the Commonwealth
Ombudsman. Minister Debus stated:
This is a step in the right direction which paves the way for
the Commonwealth Ombudsman to be appointed to handle matters of a serious
nature arising out of the new Administrative Complaints System. Strong
accountability and anti-corruption checks and balances are essential to any
modern government.[3]
1.7
In regard to the discussions between the Government of Norfolk Island
and the Minister for Home Affairs, the Chief Minister of Norfolk Island
commented that there was agreement on areas of the Norfolk Island Act which
could be further examined and amended. The Chief Minister stated:
There was significant agreement on areas of the Norfolk
Island Act which could be further examined and amended to improve
accountability. The Commonwealth has offered us assistance in implementing
these changes.[4]
1.8
In May 2009, following the announced proposed reforms for Norfolk Island,
the Chief Minister stated that he welcomed moves towards greater transparency
and accountability to strengthen Norfolk Island’s administrative and financial
systems to improve long term stability. The Chief Minister stated:
While there are many areas of detail still to be settled, in
general I welcome the decisions 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. I
have continually reported to the Norfolk Island community that we have moved in
many areas to build stronger transparency and accountability mechanisms but
needed the cooperation of the Commonwealth in undertaking legislative and
programme changes … to make further progress. The Commonwealth has now agreed
to both make the necessary changes and to provide the funding to ensure that
they are effective.[5]
1.9
The Chief Minister also acknowledged the need for a more sophisticated
financial and information technology system to enable forward strategic and
budget planning. The Chief Minister stated:
We have recognised for a long time the need for more
sophisticated financial and information technology systems, but lacked some of
the specific internal expertise and financial resources to implement integrated
change across the whole public sector”, Mr Nobbs said. “In my discussions with
Minister Debus, I have raised our need for assistance with training, hardware
and software to greatly enhance our financial management and IT systems and
provide us with much better data to enable forward strategic and budget
planning.[6]
Purpose and overview of the Bill
1.10
There are three schedules contained in the Bill. Schedule 1 consists of
seven parts and amends a number of Commonwealth Acts. Schedules 2 and 3 of the
Bill will amend the Christmas Island Act 1958 (Cwlth) and the Cocos
(Keeling) Islands Act 1955 (Cwlth).
1.11
In particular, Schedule 1 of the Bill will amend a range of Commonwealth
legislation to improve Norfolk Island governance arrangements and strengthen
the accountability of the Norfolk Island Government.
1.12
Schedules 2 and 3 of the Bill will provide a vesting mechanism for
powers and functions under WA laws applied to Christmas Island and the Cocos
(Keeling) Islands.
1.13
Proposed Schedule 1, Parts 1 and 2 will:
n Reform the electoral
system for the Norfolk Island Legislative Assembly including prescribing
minimum and maximum terms.
n Prescribe a process
for selection of Chief Minister and Ministers including outlining their roles
and responsibilities.
n Provide the
Administrator with additional avenues to seek advice in regard to Bills for
assent under Schedule 2 of the Norfolk Island Act.
n Provide a mechanism
for the Governor-General and Territories Minister to participate more actively
in regard to the passage of Norfolk Island legislation.
1.14
Proposed Schedule 1, Part 3 will:
n Provide for the
implementation of a customised and proportional financial management framework.
This financial framework will allow for the ‘responsible management of public
funds, property, budget formulation, financial reporting, annual reporting and
procurement.
n Extend the
jurisdiction of the Commonwealth Auditor-General to Norfolk Island and allow
for the possibility of the appointment of a Commonwealth Financial Officer for
Norfolk Island.
1.15
Proposed Schedule 1, Part 4 will amend the Administrative Appeals
Tribunal Act 1975 (Cwlth) to apply the powers and procedures under the Act
to Norfolk Island enactments.
1.16
Proposed Schedule 1, Part 5 will amend the Freedom of Information Act
1982 (Cwlth) to allow residents of Norfolk Island to have the right to
access information held by Norfolk Island Government agencies.
1.17
Proposed Schedule 1, Part 6 will allow the Commonwealth Ombudsman to
perform the functions of the Norfolk Island Ombudsman upon enactment by either
the Commonwealth Parliament or the Norfolk Island Legislative Assembly. This
includes the provision of reporting requirements.
1.18
Proposed Schedule 1, Part 7 will allow for the provisions under the Privacy
Act 1988 (Cwlth) to be applied to information held by the Norfolk Island
Government and Administration.
1.19
Proposed Schedules 2 and 3 will amend the Christmas Island Act 1958
(Cwlth) and the Cocos (Keeling) Act 1955 (Cwlth) to allow WA
Government officers engaged under service delivery arrangements to be
automatically vested with the powers required to perform their job.
General comments about the Bill
Consultation
Norfolk Island
1.20
There were two main consultation periods undertaken and coordinated by
the Attorney-General’s Department on behalf of the Government in regard to the
package of reforms for Norfolk Island.[7]
1.21
Consultation with the Norfolk Island Legislative Assembly,
Administration and community was undertaken in October 2009 in regard to the
proposed reforms to administrative law and again in mid February 2010 after the
exposure draft of the Bill was released for comment.[8]
1.22
In December 2009, the Minister for Home Affairs, the
Hon Brendan O’Connor MP visited Norfolk Island to discuss possible
reforms with the Norfolk Island Government and community. At this time, the
Minister advised the Norfolk Island Legislative Assembly ‘that the Bill was
scheduled for introduction in the autumn sittings, and that on-island
consultation would occur early in’ 2010.[9]
1.23
On 12 February 2010, the exposure draft of the Bill was made available
to Norfolk Island. From 15-17 February 2010,[10] officers of the
Attorney-General’s Department and the Department of Finance and Deregulation
met with Members of the Norfolk Island Legislative Assembly on the exposure draft
of the Bill. The closing date to receive submissions or comment on the Bill was
25 February 2010.[11]
1.24
A total of 119 submissions were received from Norfolk Island in regard
to the exposure draft Bill consultation and ‘were used to inform further amendments
to the exposure draft Bill prior to its introduction into Parliament on 17
March 2010.’[12]
1.25
On 24 March 2010, the consultation period on the Bill was extended to
16 April 2010.[13]
1.26
Members of the Norfolk Island 12th and 13th
Legislative Assemblies have since expressed their concern that the timeframe
for lodging submissions was too short and that a draft explanatory memorandum
to the Bill was not made available during the consultation process.[14]
1.27
In particular, the Government of Norfolk Island commented that:
The inference arising from a lack of local consultation is
that the architects and implementers of the Bill overstate their understanding
of Norfolk Island conditions. This lack of understanding can be overcome by
bona fide local consultation but not by mere reading and uncritical adoption of
external reports such as the 2003 Quis custodiet ipsos custodes Report. This
particular report was the subject of quite serious criticism by previous
Commonwealth and Norfolk Island governments as to its methodology in giving
credence and emphasis to untested, confidential and unreliable evidence given
to the committee of the day.[15]
1.28
The Government of Norfolk Island advocated that:
Detailed consultation, in many cases already requested but
not commenced, needs to be given the time and resources to be properly and
thoroughly completed.[16]
1.29
Further, the Government of Norfolk Island was of the strong view that
the reforms for Norfolk Island required time and effort to engage in
consultation prior to implementation. The Government of Norfolk Island stated:
The Norfolk Island Government is strongly of the view that
the Commonwealth will only succeed in its goals of improving Norfolk Island’s
governance arrangements and strengthen the accountability of the Norfolk Island
Government if it takes the time and makes the effort to consult with the
Norfolk Island Government in a timely and bona fide manner.[17]
1.30
The Commonwealth Government stated that the extension of the
consultation period to 16 April 2010 was intended to ‘ensure that a rigorous,
good faith consultation is undertaken on this significant Bill, including
providing the incoming members of the Norfolk Island Legislative Assembly the
opportunity to provide comments.’[18]
1.31
In addition, on the closing date of the extended consultation period,
the Minister for Home Affairs stated:
The additional comments received from the community reaffirm
the need for the Australian Government to continue with these important
reforms.[19]
Indian Ocean Territories
1.32
The provisions in the proposed Bill relating to Australia’s IOTs of
Christmas Island and the Cocos (Keeling) Islands will not have a direct impact
on the IOTs communities. In this respect, the Attorney-General’s Department
held discussions with officers of the WA Government, the Australian Government
Solicitor and the Office of Parliamentary Counsel to develop the Bill.[20]
1.33
On 19 March 2010, the Attorney-General’s Department invited the IOTs
Shires and communities to provide comment to the Bill.[21]
Development of regulations
1.34
The proposed Bill provides for regulations to be made in regard to
changes to Norfolk Island’s financial framework, the electoral system, the
Public Service Values and ‘the specification of decisions under Norfolk Island
legislation which may be subject to merit review by the Administrative Appeals
Tribunal.’[22]
1.35
The Attorney-General’s Department advised the applicable regulations
would override any inconsistent Norfolk Island regulations as ‘any other
outcome would result in legislative inconsistencies and confusion as to rights,
responsibilities and obligations’ under the Norfolk Island Act. The
Attorney-General’s Department stated:
The bill provides for the making of regulations in respect of
a number of issues, such as the financial frameworks, the electoral system, the
Norfolk Island Public Service Values and the specification of decisions under
Norfolk Island legislation which may be subject to merits review by the
Administrative Appeals Tribunal. Arrangements have already commenced to form a
Commonwealth and Norfolk Island officer level working group to develop the
regulations to support the financial management and accountability reforms
contained in the Territories Law Reform Bill. It is anticipated that a similar
process will be used in respect of the remaining regulations. To ensure the
successful operation of the provisions the Commonwealth regulations will by
necessity override any inconsistent Norfolk Island regulation. Any other
outcome would result in legislative inconsistencies and confusion as to rights,
responsibilities and obligations under the act.[23]
1.36
The Government of Norfolk Island was concerned that draft regulations had
not been provided during the exposure draft Bill consultation and stated:
Notwithstanding that much of the regulatory changes regarding
finance and electoral changes were to be contained in regulations, which in
some cases override the Norfolk Island Act, no draft regulations were (or have
since been) provided.[24]
1.37
The Government of Norfolk Island was of the view that ‘the lack of detail,
incomplete information on regulations and procedures as well as extremely
limited time hampers the Government’s ability to make detailed and meaningful
comment.’ The Government of Norfolk Island advocated delaying passage of the
Bill until further consultation was conducted and stated:
It is reasonable to expect that ‘constitutional’ change of
this magnitude should not proceed without detailed and reasoned consultation.[25]
1.38
A working group consisting of officers from the Attorney-General’s
Department, the Department of Finance and Deregulation, representatives of the
Government of Norfolk Island and Administration are currently assisting with
the development of the financial framework regulations. The working group is
expected to meet again before July 2010.[26]
1.39
The Department of Finance and Deregulation commented that regulations
allow for new financial arrangements to be tailored and detailed and can be easily
revised. The Department of Finance and Deregulation stated:
We really are trying to tailor the arrangements to be as
clear, simple and effective as possible. That is why we believe that the better
approach is through subsidiary legislation. I acknowledge there are comments
that, if the primary act changes—and the details are yet to be seen and worked through—that
will lead to some difficulty. The alternative would have been that we would be
attempting to address these issues in legislation, potentially going to a level
of detail in the primary act that needed to be subject to later adjustment as
we learned better what we were trying to react to and also to really keep an
eye to clarity and simplicity as we do that.[27]
1.40
Regulations prescribing Norfolk Island Public Service Values and
application of the Administrative Appeals Tribunal to Norfolk Island are expected
to be drafted by the end of 2010. No specific time frame was provided for the
drafting of regulations regarding elections.
1.41
In regard to consultation on development of regulations, the
Attorney-General’s Department stated the Department of Finance and
Deregulation, the Australian Electoral Commission and the Norfolk Island
Government and Administration would be consulted during the drafting process.[28]
1.42
In addition, the Attorney-General’s Department stated that the Government
of Norfolk Island and its Administration will be provided with ‘the opportunity
to comment on the draft regulations before they are registered.’[29]
1.43
Additional discussion about regulations for specific areas of the Bill
is contained in Chapters 2, 3 and 4.
Financial impact of the Bill
1.44
Amendments contained in the Bill are expected to have a minimal
financial impact. The Bill will have resource implications for Commonwealth
agencies in relation to providing training and information for the Norfolk
Island Administration and Government ‘to ensure effective implementation of the
Bill.’[30] This includes
implementation of the new financial framework, freedom of information, privacy
and other obligations under administrative law.[31]
1.45
The Government of Norfolk Island raised concerns about the possibility
of bearing costs associated with implementation of various parts of the Bill.
1.46
In particular, the Government of Norfolk Island was concerned ‘that many
of the impositions contained in the Bill are marred by excessive complexity
which, inevitably, will result in undue cost and delay.’[32]
1.47
The Government of Norfolk Island advocated that ‘consideration must be
given at every stage to the impact on Norfolk Island financially, the potential
impact of all such provisions on Norfolk Island laws, the operation of the
Assembly, and the practicality of the provisions in terms of self government.’[33]
1.48
In particular, the Government of Norfolk Island raised concerns about
financial resource implications for the Administration that will arise from the
imposition of Commonwealth Auditor-General requirements. The Government of
Norfolk Island stated:
There are serious financial resource implications for the
Administration that will arise from the imposition of Commonwealth
Auditor-General requirements, the Auditor-General Act 1997 and
particularly in the context of regulations made under proposed new sections 48R
and 48S. The Commonwealth will need to give early consideration to financial
assistance to address costs of implementation, conversion and compliance with
proposed changes.[34]
1.49
The Attorney-General’s Department advised that the Norfolk Island
Government will not incur any costs associated with implementation of the Bill.
In addition, Commonwealth agencies with relevant responsibility associated with
the reforms contained in the Bill will continue to provide assistance to the
Government of Norfolk Island and its Administration.[35]
1.50
The Attorney-General’s Department expanded on the Commonwealth
Government’s commitment to implement the key reforms contained in the Bill. The
Attorney-General’s Department stated:
I cannot give specific commitments to any future
appropriations that the Commonwealth may or may not apply to any activity, but
our willingness to engage on island with the community, which compared to the
past has significantly increased in the last 12 months; our bringing to
the island the other agencies that are going to participate, such as the
Ombudsman and the Administrative Appeals Tribunal; the willingness of the
department of finance to contribute senior staff to help develop the financial
framework, for example; and the commitment to work at the officer level to
deliver the results give an indication of our intention to implement this
effectively for the future.[36]
Conclusions
1.51
Regulations relating to specific provisions in the proposed Bill will be
developed through consultation with various Commonwealth agencies and Norfolk
Island stakeholders.
1.52
The regulations will then be presented to the Parliament and be required
to sit before the Parliament as disallowable instruments for a specified period
of sitting days before entering into force. The regulations will also be
subject to scrutiny by the Senate Regulations and Ordinances Committee.
1.53
The timeframe for development of the majority of regulations is by the
end of 2010 with the exception of regulations relating to electoral reform.
1.54
While the committee acknowledges there will be future scrutiny of the
regulations, the committee suggests it would be beneficial for Commonwealth
agencies to continue to develop regulations in consultation with Norfolk Island
stakeholders to specific timeframes. This may enable more meaningful and
productive consultation with Norfolk Island stakeholders in regard to the
implementation of the main parts of the Bill.
1.55
The committee acknowledges that the time taken for initial consultation
on the draft exposure Bill with the Government of Norfolk was short, but notes
that the Minister for Home Affairs extended this period to ensure that a more
rigorous consultation was undertaken. The extended timeframe for comment also
provided the opportunity for incoming members of the Norfolk Island Legislative
Assembly to provide comments.
1.56
In terms of the financial impact of implementation of various provisions
under the Bill, the Attorney-General’s Department provided an assurance that
the Government of Norfolk Island will not incur any costs in terms of
implementation. In addition, Commonwealth agencies with relevant responsibility
associated with the reforms contained in the Bill will continue to provide assistance
to the Government of Norfolk Island and its Administration.
1.57
Throughout the report, the evidence received suggests that while there
were concerns raised in regard to specific areas of the Bill, the committee
believes these concerns can be worked through within a short period through the
established working group process.
1.58
More broadly, the reforms contained in the proposed Bill are the culmination
of consultation that has been undertaken with various Norfolk Island
stakeholders including past and present Norfolk Island Governments, the
Administration and the Norfolk Island community over a number of years. In
addition, issues concerning administrative law reform, governance, electoral
and financial arrangements have been raised with the committee through a number
of parliamentary inquiries.
1.59
Notwithstanding the comments made in regard to development of
regulations associated with the Bill, the committee supports the general
provisions of the Bill.
Recommendation 1 |
|
1.60
|
The committee supports the general provisions of the
Territories Law Reform Bill 2010 and recommends that the Bill be passed by
the Senate.
|
Recommendation 2 |
|
1.61
|
The committee recommends that the Attorney-General’s
Department continue to consult with the Government of Norfolk Island, the
Norfolk Island Administration and Norfolk Island community in regard to the
content of regulations (including the timeframe for their development and
entering into force) relating to the Territories Law Reform Bill 2010.
|
Scope of the inquiry
1.62
The majority of the submissions received in reference to this inquiry
relate to the proposed reforms relevant to Norfolk Island. While a number of
submissions and evidence received supported the Bill, concerns were also raised
regarding consultation of the exposure draft Bill and future implementation of
the reforms contained in the Bill.
1.63
Notwithstanding the committee’s comments about complementary issues
raised during the course of the inquiry, the main focus of this inquiry is on
the practicality of the components of the proposed Bill, rather than scrutiny
of the policy aspects of the Bill.
1.64
The committee provided the Government of Norfolk Island and the Norfolk
Island community with the opportunity to directly address issues associated
with the Bill through a public hearing. The committee was also able to
scrutinise the approach taken by the Commonwealth Government in formulating the
Bill and also by the Attorney-General’s Department in conducting consultation
on the exposure draft bill and on the development of regulations through the
working group process.
1.65
To ensure that the issues raised with the committee during the course of
the inquiry are reported, the committee has included the additional issues
raised by Norfolk Island residents in the final chapter of this report.
Conduct of the review
1.66
On 19 March 2010, a media release was issued announcing the inquiry and
called for submissions to be received by 7 April 2010. Submissions were also
sought by advertising the inquiry in The Australian on
24 March 2010, The Norfolk Islander on 20 March 2010 and the
Christmas Island and Cocos (Keeling) Islands community bulletin in
English, Malay and Chinese on 19 and 22 March 2010.
1.67
The committee also sought submissions from the Government of Norfolk
Island, including Members of the 12th and 13th Norfolk
Island Legislative Assemblies, the Shire Councils of Christmas and Cocos
(Keeling) Islands and the Minister for Home Affairs.
1.68
The committee received 14 submissions and 8 exhibits to the inquiry,
which are listed at appendices A and B respectively.
1.69
Public hearings were held on Norfolk Island on 8 April 2010 and in
Canberra on 12 April 2010.
1.70
Witnesses who provided evidence to the committee at these public
hearings are listed at Appendix C. Transcripts of evidence of these public
hearings are available on the committee’s website at www.aph.gov.au/ncet
Report structure
1.71
Chapter 2 outlines the proposed amendments contained in Schedule 1, part
1 of the Bill which relate to machinery of government reform for Norfolk
Island.
1.72
Chapter 3 outlines the proposed amendments contained in Schedule 1, part
2 of the Bill which relate to electoral reform for Norfolk Island.
1.73
Chapter 4 outlines the proposed amendments contained in Schedule 1, part
3 of the Bill which relate to financial management reform for Norfolk Island.
1.74
Chapter 5 outlines the proposed amendments contained in Schedule 1, parts
4, 5, 6 and 7 of the Bill which relate to administrative law reform for Norfolk
Island.
1.75
Chapter 6 examines proposed Schedules 2 and 3 of the Bill which relate
to vesting powers and functions under WA laws applied in the IOTs.
1.76
Chapter 7 outlines additional issues of concern raised by Norfolk Island
residents during the course of the inquiry.