Bills Digest no. 101 2015–16
PDF version [639KB]
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
Mary Anne Neilsen, Law and Bills Digest Section
17 March 2016
Contents
The
Bills Digest at a glance
Purpose of the Bills
Structure of the Bills
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments
Date introduced: 24
February 2016
House: House of
Representatives
Portfolio: Infrastructure
and Regional Development
Commencement: Sections
1 to 3 of both Bills commence on Royal Assent.
Schedules 1 and 2; Part 2 of Schedule 3; Part 2 of
Schedule 4 and Schedule 6 of the Territories Legislation Amendment Bill 2016 commence
on the day after Royal Assent. Part 1 of Schedules 3 and 4 and Schedule 5
commence on 1 July 2016.
Schedule 1 of the Passenger Movement Charge Amendment
(Norfolk Island) Bill 2016 will commence at the same time as Schedule 5 of the
Territories Legislation Amendment Bill 2016 (1 July 2016). The provisions of
this Bill will not commence if Schedule 5 does not commence.
Links: The links to the Bills,
their Explanatory Memoranda and second reading speeches can be found on the
homepages for the Passenger
Movement Charge Amendment (Norfolk Island) Bill 2016 and the Territories
Legislation Amendment Bill 2016 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 Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at March
2016.
The Norfolk Island Legislation
Amendment Act 2015 began the process of radically overhauling the
governance arrangements that had operated on Norfolk Island (NI).[1]
The Act started the transition of NI from a self‑governing territory to a
modern local government type authority to commence from 1 July 2016. It also started
the process of extending Australian legislation to NI, in particular social
security, Medicare, the Pharmaceutical Benefits Scheme and taxation measures,
again to commence from 1 July 2016.
These Bills continue the process of extending Australian
law to NI, through consequential amendments to various Commonwealth Acts. In
particular, the Territories Amendment Bill 2016 introduces compulsory enrolment
to NI electors and provides for NI to be represented by the Member for Canberra
and the two Senators for the Australian Capital Territory. It also starts the
phased application of the Fair Work Act 2009 to NI employment
arrangements and industrial relations. The Passenger Movement Charge (Norfolk
Island) Amendment Bill 2016 applies a financial charge on people departing NI
for another country, to align with the situation applying to mainland Australia
and the Indian Ocean territories.
The purpose of the Territories Amendment Bill 2016 (the
Territories Bill) is to continue the process of bringing Norfolk Island (NI) within
the framework of Australian law through:
- amending
the Commonwealth
Electoral Act 1918 (Cth) (CEA) to make it compulsory for
NI electors to enrol and be represented by the Member for the division of
Canberra in the Australian Capital Territory (ACT) and by ACT Senators
- providing for the phased introduction of the Fair
Work Act 2009 (Cth) and associated workplace
relations legislation to NI
- amending
the Acts
Interpretation Act 1901 (Cth) and the Norfolk Island Act
1979 (Cth) to provide for Commonwealth law to automatically apply to NI
unless it is expressly excluded
- consequential
amendments of several Commonwealth Acts to extend their coverage to NI or to exclude
NI and
- correcting
a number of anomalies in the current treatment of some Australian territories,
such as extending child support arrangements to residents of the Indian Ocean territories.
The purpose of the Passenger Movement Charge (Norfolk
Island) Amendment Bill 2016 (the Passenger Movement Bill) is to amend the Passenger Movement
Charge Act 1978 (Cth) to apply a financial charge on people departing NI
for another country. This brings NI in line with existing arrangements for
passengers leaving mainland Australia for another country, as well as
passengers departing from the Indian Ocean territories.
The Passenger Movement Bill provides that a person is exempt from liability for passenger
movement charge if they depart NI for another country (or for an installation
in the Joint Petroleum Development Area) with the intention of returning to another
place in Australia within seven days.
The Territories Bill is divided into six schedules:
- Schedules
1 and 2 correct oversights or anomalies in the Norfolk Island
Legislation Amendment Act 2015 relating to social security and
child support
- Schedule
3 extends child support arrangements to residents of the Indian Ocean territories
(Christmas Island and the Cocos (Keeling) Islands)
- Schedule
4 relates to NI’s electoral arrangements
- Schedule
5 deals with machinery changes to make certain Commonwealth Acts apply to
NI, and ensure that other Acts exclude NI and
- Schedule
6 revises and broadens the definition of the NI Regional Council in the Norfolk
Island Act.
The Passenger Movement Bill has one Schedule, which
contains the amendments to the Passenger Movement Charge Act.
In 2015 the Australian Government enacted the Norfolk Island
Legislation Amendment Act 2015 (the 2015 Act) which commenced
the process of radically overhauling the governance arrangements that had
operated on NI. Further detail on the history of NI, including its evolving
governance arrangements, is set out in the Bills Digest for that Act.[2]
With the abolition of the NI Legislative Assembly and
Executive Council by the 2015 Bill, the island began the transition from a
self-governing territory to a local government type authority. During the
interim transition period, which commenced on 18 June 2015, an Advisory Council
has been 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 new Regional Council is due 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 2015 Act also started 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.[3]
These reforms had been met with resistance from some NI residents,
particularly in regard to the move away from self-government (see below).[4]
In June 2015 the NI Advisory Council was appointed by the
Assistant Minister for Infrastructure and Regional Development, Jamie Briggs, and
commenced operation from 1 July 2015.[5]
This Bill continues the reform of NI governance
arrangements with particular reference to electoral arrangements and the
extension of federal employment legislation to NI. The Bill also makes
amendments to various Commonwealth Acts so that Australian legislation will
automatically apply to NI, unless specifically excluded.
While Norfolk Islanders are entitled to enrol to vote in
Australian federal elections, they are not obliged to do so unlike other
Australian citizens. Currently under the CEA residents of NI who are
Australian citizens have the option to vote in a federal electorate in a state they
have connection to or in the electorate of Canberra, ACT or Solomon in the
Northern Territory (NT).[6]
NI employment terms and conditions are currently covered
by the Employment Act 1988 (NI).[7]
The Government’s approach involves a three-stage transition to
the federal workplace relations system under the Fair Work Act. Subject
to the passage of the Bill through Parliament, it is intended that from 1 July
2016, the Fair Work Act will apply to NI but with a phased extension of
specific provisions of that Act. By use of the rule making power to be inserted
by the Bill, the Employment Minister will provide:
- from 1 July 2016, NI employees will be entitled to 85 per cent of
the National Minimum Wage—that is, currently around $14.70[8]
- from 1 July 2017, the minimum wage for NI employees will be
increased to 100 per cent—the current National Minimum Wage is $17.29.
- from 1 July 2018, Modern Awards (which set wages and conditions for
industries or occupations) will be extended to NI. [9]
From the date of commencement of the Fair
Work Act on NI (that is, 1 July 2016), workplace relations on NI will be
underpinned by the National Employment Standards. These are 10 minimum employment
entitlements which have to be provided to all employees.[10]
In his second reading speech on the Territories Bill, the
Minister for Major Projects, Territories and Local Government, Paul Fletcher,
stated that legislation relating to telecommunications and corporations will
not be extended to NI at this time, due to the complexity of the arrangements,
but will be considered at a later date.[11]
Selection of Bills Committee
The Committee resolved that the Bills not be referred to committees.[12]
Senate Standing Committee for the Scrutiny
of Bills
The Senate Standing Committee for the Scrutiny of Bills had
no comment on the Passenger Movement Bill.[13]
The Scrutiny Committee raised two concerns with the broad rule-making power at item
5 of Schedule 5 to the Territories Bill. Firstly, the Committee
noted that the Bill allows transitional rules made before 1 July 2017 to modify
the effect of primary legislation (such provisions are referred to as Henry
VIII clauses).[14]
Secondly, the Committee noted that transitional rules made before 1 July 2017 may
also have retrospective effect, as subitem 5(4) of Schedule 5 to the
Territories Bill provides that section 12(2) of the Legislation Act
2003, which would usually operate to prevent such an outcome, does not
apply to those rules.[15]
After considering the detailed justification for the
approach to the transitional rules set out in the Explanatory Memorandum, the Scrutiny
Committee concluded that while it ‘remains concerned about the scope of this
power, its potential to apply retrospectively and that it could give rise to
detriment’ it left ‘the question of whether the proposed rule-making power is
appropriate to the Senate as a whole’.[16]
The Labor Party supports the Bills.[17]
In the second reading debate on the 2015 Bill the member for Canberra said:
I want to underscore the fact that there
will be democracy on Norfolk Island under the new arrangement; it will just
take a different form. Norfolk Islanders will fall into my electorate of
Canberra, as we have heard. That means they will be represented by a federal
representative in the House of Representatives, and voting will not be
optional; it will be compulsory as it is on mainland Australia. This is in
addition to electing their own regional council, with elections to be held
early next year.[18]
The policy position of other non-government
parties/independents was not known at the time of writing.
It has been reported that some NI residents are unhappy
with the transition process and have called for a review.[19]
A group campaigning against the changes, the Norfolk Island People for
Democracy, has also made allegations against the Executive Director of the interim
administration, Peter Gesling, and the Australian Government claiming they are
trying to stifle free speech by putting limits on broadcasting on NI radio. While Mr Gesling says the Australian Government is consulting
widely, Tim Sheridan, who was the former NI Minister for Broadcasting, says
there is little information on what changes will be made in July 2016 and this
is adding to the frustration and tension on NI.[20]
There are reports that NI business people
have concerns with the proposed introduction of the Fair
Work Act. Among other things, that Act sets the minimum wage at $17.29 an
hour. NI's minimum is now $10.70.[21]
Minister Fletcher has promised a ‘phased extension’ to give islanders
appropriate time to adjust to the changes (as detailed above).[22]
Financial implications
There are no direct financial implications from the Bills although
as the Explanatory Memorandum notes, the Government made
provision in the 2015–16 Budget for reform of NI governance. The Budget 2015–16
provided $136.6 million over five years from 2014–15 (including spending of
$35.8 million in capital and receiving $19.9 million in revenue) to reform
the governance arrangements and extend Commonwealth and State government
programmes to NI.[23]
The Explanatory Memorandum also notes the Australian Electoral Commission will
absorb the minor costs related to amendments contained in Schedule 4 of the
Bill.
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bills’ 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 Bills are compatible and where the Bills may
limit human rights, those limitations are reasonable, necessary and
proportionate.[24]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights considers
that the Bills promote human rights.[25]
As discussed below, in its report on the 2015 Bill the Committee raised
concerns about provisions that would have a discriminatory effect on New
Zealand citizens with permanent residency who live on NI, by denying them
access to social security.[26]
The Committee’s report on the current Bills:
...notes that these Bills will allow New Zealand citizens who
hold an Australian permanent visa and reside on Norfolk Island access to social
security payments, consistent with the arrangements for other Australian
permanent visa holders.[27]
The Committee thanked the Minister for ‘positively
responding’ to its advice on the 2015 Bill.[28]
Territories Legislation Amendment
Bill 2016
Transitional rules
The Territories Bill contains a number of so called ‘Henry
VIII clauses’[29]
in the form of transitional rules (such as items 5, 50, 55, 68 and 85 in
Schedule 5). The provisions allow the relevant Minister to make rules,
by legislative instrument, which change the effect of the parent Act itself, or
change the effect of other primary legislation in relation to matters affecting
NI. These provisions are described in further detail below. In each case there
are limits placed on the extent of these rule‑making powers. In
particular the transitional rules cannot create an offence or civil penalty;
provide powers of arrest or detention or entry, search or seizure; impose a
tax; set an amount to be appropriated from the Consolidated Revenue Fund or
directly amend the text of the particular Act. The Senate Standing Committee
for the Scrutiny of Bills has consistently drawn attention to ‘Henry VIII’
clauses and other provisions which (expressly or otherwise) permit subordinate
legislation to amend or take precedence over primary legislation. Such
provisions clearly involve a delegation of legislative power to the Executive and
can be a matter of concern to the Committee.[30]
As noted above the Committee, while raising concerns about some of the clauses,
has left it to the Senate as a whole to decide the appropriateness of the
rule-making powers.
Schedule 1—New Zealand citizens
residing on Norfolk Island
Schedule 1 amends the Norfolk Island Legislation
Amendment Act to repeal item 323 of Schedule 2, which would otherwise
insert new subsection 7(2AA) into the Social Security Act 1991.[31]
The effect of that subsection would be that that the Social Security Act
would not apply to a New Zealand permanent resident of Australia who resides on
NI when it came into force from 1 July 2016.
As mentioned above, the Parliamentary Joint Committee on
Human Rights in its report on the 2015 Bill had identified an issue with New
Zealand permanent residents of Australia who are recipients of social security:
Currently, on mainland Australia all permanent visa holders
are entitled to social security under the Social Security Act 1991 (the
Act). Under the Norfolk Island Legislation Amendment Bill 2015 (the Bill), the
Act will be extended to Norfolk Island providing the same social security
system on the island as is provided on mainland Australia. However, the
extension of social security payments to residents of Norfolk Island will not
apply to New Zealand citizens that hold an Australian permanent visa.[32]
The Committee found that the measure appeared to be
directly discriminatory and therefore limited the right to equality and
non-discrimination.[33]
As set out above, the Committee thanked the Minister for
responding to its advice on this issue through the amendment in Schedule 1 to the
Bill.[34]
Schedule 4—Norfolk Island electoral
arrangements
Part 1 of Schedule 4 amends the CEA and the Referendum
(Machinery Provisions) Act 1984 (Cth) to bring NI electors into the
Commonwealth electoral arrangements. The Bill will make
enrolling to vote in federal elections compulsory, and provide for the
representation of NI electors by a single member for an electorate in the ACT,
namely the division of Canberra, and by two ACT senators. Part 2 contains
transitional provisions.
Amendments to the Commonwealth
Electoral Act 1918 (CEA)
Item 1 amends subsection 4(1) of CEA to
include NI in the definition of the ACT. This means that the ACT is to include
NI for the purposes of the CEA.
Item 2 repeals and substitutes the definition of ‘Controller-General
of Prisons’ in section 4 of the CEA. The new definition refers to the office in
two different categories, one category being the states, the ACT (not including
a non-self-governing territory) and the NT and the second category being a non-self-governing
territory (that is NI, Jervis Bay, Christmas Island and the Cocos (Keeling)
Islands). The new definition is intended to ensure that principal officers who
have control of prisons and gaols in non-self-governing territories are subject
to the requirements of sections 109 and 227, in addition to those officers of
the states, NT and ACT who were previously covered by the definition.[35]
Item 3 provides a definition of ‘non-self-governing
territory’ to be inserted into section 4 of the CEA. A
non-self-governing territory means NI, the Jervis Bay Territory, the Territory
of Christmas Island or the Territory of Cocos (Keeling) Islands. Item 4 repeals
and substitutes the definition of ‘Registrar-General’ in section 4 of the CEA.
Like the new definition of Controller-General of Prisons, the definition is
divided into two categories, one for states, the ACT and the NT and one for a
non-self-governing territory. This has application for section 108 of the CEA,
which requires Registrars-General to provide regular information on deaths to
the Electoral Commissioner. The new definition is also relevant in relation to
the amendments in item 43.
Existing sections 46 and 48 of the CEA deal with procedures
for calculating the representation of the states and territories in the House
of Representatives. Items 11 to 19 amend these provisions to take
account of new arrangements that will affect NI. For example item 11
inserts new paragraph 46(1)(da), which requires the Electoral
Commissioner to ascertain the number of people of NI for the purposes of
determining the number of members of the House of Representatives to be chosen
in the states and territories at a general election. Item 16 inserts new
subsections 48(2BA) and 48(2BB). Amongst other things item 16
provides that if the Electoral Commission determines, after the relevant
calculation of the people of NI, there is to be no member chosen in NI, then NI
is to be taken to be part of the ACT.
Item 23 inserts new section 56AA into the CEA.
The practical effect is to ensure that NI and the Territory of Jervis Bay will
be in different divisions of the ACT. Therefore a member of the House of
Representatives representing the ACT will only represent one external territory.
Item 30 repeals sections 95AA, 95AB and 95AC of the
CEA that currently set outs the arrangements for the enrolment of NI
electors. These provisions will no longer be required under the new
arrangements.
Item 32 amends subsection 98AA(2)(a) to
provide that a driver’s licence issued under the law in force on NI can be used
as a form of evidence of identity for the purposes of enrolment.
Item 33 is a consequential amendment that would repeal
a reference to section 95AA in subsection 99(3) of the CEA. If section
95AA is repealed as outlined in item 30, the reference would be
redundant (see above).
Section 101 of the CEA provides for compulsory
enrolment of electors. Failure to comply with the requirement is an offence. However,
current subsection 101(5A) provides that the requirement does not apply to electors
who reside on NI. Item 38 repeals subsection 101(5A), so that NI
electors will be subject to the compulsory enrolment requirement. Items 34 to
37 are consequential to the removal of subsection 101(5A).
Existing section 394 of the CEA provides that
without the authority of the Governor-General no election or referendum or vote
of electors of a state (defined to include the ACT, NI and NT) can be held on
the day appointed as polling day for a Senate or House of Representatives general
election. Item 45 repeals and substitutes section 394. According
to the Explanatory Memorandum, the amendment is intended to ensure that the
general prohibition around timing applies to elections in NI in the same way
that it applies to such elections in the states, the ACT and the NT.[36]
Items 49 to 60 provide transitional arrangements
for Schedule 4. As noted above, NI electors currently have the option to vote
in federal state and territory electorates. Item 51 allows for the
Electoral Commissioner to transfer NI electors who are currently enrolled in a state
or territory to the roll for the ACT, that is the division of Canberra (paragraph
51(2)(a)). The Commissioner can decide not transfer a NI elector if he/she is
satisfied that the elector is not entitled to be on the roll for the ACT. The
Commissioner must notify the NI elector that this has occurred. A transfer cannot
be made during the period the rolls have closed for an election.
Item 52 sets out procedures to be undertaken by the
Electoral Commissioner for the transfer of NI electors already enrolled in the
ACT.
Item 60 allows the responsible Commonwealth Minister
to make rules prescribing matters related to the amendments and repeals made in
Schedule 4. Certain limits and safeguards are included.
Schedule 5—Application of Acts to
Norfolk Island
Part 1—General amendments
Items 1 and 2 amend section 2B of the Acts
Interpretation Act 1901 to include NI in the definitions of
‘Australia’ and ‘Commonwealth’ respectively. The effect of these amendments is
that other legislation that relies on the definition of ‘Australia’ or the
definition of the ‘Commonwealth’ provided by the Acts Interpretation Act
will include NI.
Item 3 repeals and substitutes section 18 of the Norfolk
Island Act 1979.[37]
Section 18 currently provides that Commonwealth Acts do not apply to NI unless
expressed to extend to NI. New section 18 reverses this presumption, and
provides that a Commonwealth Act is in force on NI unless an Act expressly
provides otherwise.
Item 5 allows the responsible
Commonwealth Minister (that is the Minister who administers the Norfolk
Island Act) to make rules for the transition to the provisions in Schedule
5. Rules made before 1 July 2017 may modify the effect of any Act or instrument
and may have retrospective application (subitem 5(4)). As set out above,
the Scrutiny of Bills Committee drew the attention of the Senate to this
provision, noting that it ‘may be considered to delegate legislative powers inappropriately’.[38]
The rules are limited in their scope as
set out in subitem 5(2). For example, they must not create an offence or
civil penalty, they must not impose a tax or directly amend the text of the Norfolk
Island Act.
Item 6 provides for compensation for acquisition of
property. This provision follows a standard format which responds to a
constitutional requirement that Commonwealth acquisitions of property be
compensated for if they have not been undertaken on just terms.
Part 2—General amendments
Part 2 contains a number of machinery provisions providing
amendments to 57 specific Acts in relation to their operation on NI. The
Explanatory Memorandum at pages 5 to 7 sets out the Acts to be amended and the
type of amendment. The following tables rely on that information.
|
Acts to be amended to specifically extend to Norfolk
Island
|
Acts to be amended to specify that they do not extend
to Norfolk Island
|
|
Agricultural and Veterinary Chemicals Act 1994
|
Australian Securities and Investments Commission Act
2001
|
|
Australian Capital Territory (Self-Government) Act 1988
|
Bankruptcy Act 1966
|
|
Australian National Preventive Health Agency Act 2010
|
Bankruptcy (Estate Charges) Act 1997
|
|
Australian Postal Corporation Act 1989
|
Broadcasting Services (Transitional Provisions and
Consequential Amendments) Act 1992
|
|
Business Names Registration Act 2011
|
Cross-Border Insolvency Act 2008
|
|
Equal Employment Opportunity (Commonwealth Authorities)
Act 1987
|
Customs Licensing Charges Act 1997
|
|
Federal Proceedings (Costs) Act 1981
|
Customs Securities (Penalties) Act 1981
|
|
Gene Technology Act 2000
|
Customs Tariff Act 1995
|
|
Industry Research and Development Act 1986
|
Customs Tariff (Anti-Dumping) Act 1975
|
|
Insurance Contracts Act 1984
|
Customs Undertakings (Penalties) Act 1981
|
|
National Land Transport Act 2014
|
Education Services for Overseas Students Act 2000
|
|
Water Efficiency Labelling and Standards Act 2005
|
Import Processing Charges Act 2001
|
|
Workplace Gender Equality Act 2012
|
Motor Vehicle Standards Act 1989
|
|
Passenger Movement Charge Collection Act 1978
|
Tradex Duty Imposition (Customs) Act 1999
|
|
Protection of Movable Cultural Heritage Act 1986
|
Tradex Duty Imposition (Excise) Act 1999
|
|
Public Order (Protection of Persons and Property) Act
1971
|
Tradex Duty Imposition (General) Act 1999
|
|
Water Efficiency Labelling and Standards Act 2005
|
|
|
Workplace Gender Equality Act 2012
|
|
Other Acts are to be amended so as to extend to NI when
prescribed or other conditions apply.
|
Acts to be amended so that they may extend to Norfolk
Island if prescribed
|
Acts to be amended that would extend to Norfolk Island subject
to certain conditions
|
|
Do Not Call Register Act 2006
|
Telecommunications (Interception and Access) Act 1979
(will extend to NI upon repeal of the Telecommunications Act 1992 (NI))
|
|
Export Control Act 1982
|
|
|
Imported Food Control Act 1992
|
Imported Food Charges (Collection) Act 2015
Imported Food Charges (Imposition–Customs) Act 2015
Imported Food Charges (Imposition–Excise) Act 2015
Import Food Charge (Imposition–General) Act 2015
(These Acts will only extend to NI if the Imported Food
Control Act 1992 is prescribed to extend to NI)
|
|
Plant Breeder’s Rights Act 1994
|
|
Certain other Acts are to be amended so that they continue
to operate on NI as they did before commencement of this Schedule. These Acts
are:
- Broadcasting
Act 1992
- Telecommunications
Act 1997
- Telecommunications
(Carrier Licence Charges) Act 1997
- Telecommunications
(Industry Levy) Act 2012
- Telecommunications
(Numbering Charges) Act 1997
- Telecommunications
(Transitional Provisions and Consequential Amendments) Act 1991
- Telecommunications
(Transitional Provisions and Consequential Amendments) Act 1997 and
- Part
XIB of the Competition and Consumer Act 2010.[39]
As mentioned above, the Minister has indicated that
further legislative reform in regard to telecommunications and corporations on
NI will be undertaken at a later date.
Amendment of employment and
industrial relations legislation
As mentioned above, the Government is proposing to
implement a staged transition in relation to employment and industrial
relations legislation with the various stages to be implemented via Ministerial
rules rather than through the primary legislation. This intention is reflected
in the amendments to the Fair Work Act in items 51 to 56 of Schedule
5.[40]
Item 51 inserts definitions of ‘Australia’ and
‘Commonwealth’ in section 12 of the Fair Work Act. Both terms are
defined to include NI when used in a geographical sense. This has the effect of
extending the Fair Work Act to NI. Item 55 inserts new section
32A, which provides that the Minister may make rules modifying the Fair
Work Act and the Fair Work Regulations 2009 in regard to their operation in
NI.[41]
This power is subject to certain limitations. For example, the
rules must not create an offence or civil penalty, they must not impose a tax
or directly amend the text of the Act (proposed subsection 32A(2)). The
Minister may not delegate this power (item 56).
There are also equivalent rule-making
powers in relation to:
- Fair Entitlements Guarantee Act 2012 (item
50, new section 9A)
- Independent Contractors Act 2006 (item
68, new section 5A) and
- Road Safety Remuneration Act 2012 (item
85, new section 15A).
Other amendments to Commonwealth legislation include:
- item
29 amends the Copyright
Act 1968 to include NI in the definition of Australia for the purposes
of section 152 relating to amounts payable for broadcasting published sound
recordings.
- item
44 excludes NI from the definition of Australia in subsection 4(1) for the
purposes of the Excise
Act 1901.
Other provisions
Schedule 2—Claims for assistance
made by Norfolk Island residents before 1 July 2016
Item 1 of Schedule 2 amends paragraph 381(a) of
Schedule 2 of the Norfolk Island Legislation Amendment Act to extend the
‘early claims’ application period for family assistance payments from four
weeks to eight weeks. The ‘early claims’ period is part of the transitional
provisions provided under the 2015 Act to enable NI residents to lodge
claims for family assistance, child support and social security payments prior
to 1 July 2016 when the entitlements first become payable.[42]
The amendment corrects an anomaly under those transitional provisions which
would have allowed family assistance claims to be lodged only four weeks prior
to 1 July 2016 whereas early claims for social security and child support could
be lodged eight weeks prior to 1 July 2016. The amendment has the effect of
providing an eight week early claims period for all three payments.
Schedule 3—Child support for Indian
Ocean Territory residents
Part 1 amends the Child Support (Assessment) Act
1989 and the Child Support (Registration and Collection) Act 1988 to
extend child support arrangements to residents of the Indian Ocean territories.
Previously the Indian Ocean territories had been in an anomalous position of
being excluded from the national scheme. Part 2 provides transitional
arrangements to allow for an eight week early application period before 1 July
2016.
Schedule 6—Nature
of Norfolk Island Regional Council
Item 1 amends the definition of ‘Norfolk
Island Regional Council’ in the Norfolk Island Legislation Amendment Act[43] by removing the requirement for that body to be a ‘body corporate’
and instead requiring the Council to be ‘a body’. The effect would be that the Regional
Council may be any type of body, including a body corporate or a body politic.
This would provide flexibility in the application of
local government law to NI.[44]
Passenger Movement
Charge Amendment (Norfolk Island) Bill 2016
Item 1 of the Passenger Movement Bill removes the
definition of Australia in section 3 of the Passenger Movement
Charge Act 1978. As ‘Australia’ will no longer be defined in the Act,
the definition of that term in the Acts Interpretation Act will apply.
As discussed above, after the amendment made by item 1 of Schedule 5 to the
Territories Bill, ‘Australia’ as defined in the Acts Interpretation Act,
will include NI. As a result, the passenger movement charge will apply to
people who travel from NI to another country.
Section 4 of the Passenger Movement Charge Act sets
out how the passenger movement charge applies when a person’s travel involves intermediate
destinations. Subsection 4(3) currently provides that if a person departs from an
Indian Ocean Territory for another country or an installation in the Joint
Petroleum Development Area[45]
and they intend to then travel to another place in Australia within seven days
of their original departure from the Indian Ocean Territory, then their
original departure is not treated as a departure from Australia. As a result,
the person does not need to pay the passenger movement charge. Items 2 and
3 amend subsection 4(3), so that it applies to departures from NI
in the same way that it applies to departures from the Indian Ocean
territories. This means that a passenger departing NI for another country will
not be liable to pay the passenger movement charge if they have the intention
of returning to another place in Australia within seven days.
Item 5 provides for a similar exemption if leaving
Australia with the intention of departing that other country for NI within
seven days.
The Bills are part of a transition process bringing NI
under Commonwealth law and ensuring that NI residents are subject to the same
rules as other Australians. In relation to electoral matters, it has been
anomalous that enrolment and voting are voluntary for Australian residents on
NI. Following passage of the Territories Bill all eligible Australians living on
NI will be required to enrol and vote in federal elections and referenda. The Territories
Bill will also provide for a three-year transition period for NI workers to be
covered by Commonwealth employment laws and related industrial conditions.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Norfolk Island
Legislation Amendment Act 2015. For further information see: C Madden, Norfolk
Island Legislation Amendment Bill 2015, Bills digest, 102, 2014–15,
Parliamentary Library, Canberra, 2015.
[2]. C
Madden, Norfolk
Island Legislation Amendment Bill 2015, op. cit., pp. 5–10.
[3]. For
further information on the 2015 Act and for background on Norfolk Island
see C Madden, Norfolk
Island Legislation Amendment Bill 2015, Bills digest, 102, 2014–15,
Parliamentary Library, Canberra, 2015.
[4]. M
Low, ‘Canberra will run Norfolk Island - but not all the locals are happy’, The Conversation, 19 May 2015.
[5]. J
Briggs (Assistant Minister for Infrastructure and Regional Development), Norfolk
Island reforms commence, media release, 1 July 2015.
[6]. Commonwealth
Electoral Act 1918 (Cth), subsections 95AA, 101(1A),
101(5A), 245(1).
[7]. Employment Act 1988
(NI).
[8]. The
current minimum wage on NI is $10.70 per hour: see regulation 12 of the Employment
Regulations 1991 (NI).
[9]. Fair
Work Ombudsman, ‘Norfolk Island reforms’,
FWO website.
[10]. Ibid.
For information see: FWO, ‘National
Employment Standards’, FWO website.
[11]. P
Fletcher, ‘Second
reading speech: Territories Legislation Amendment Bill 2016’, House of
Representatives, Debates, (proof), 24 February 2016, p. 4.
[12]. Selection
of Bills Committee, Report,
3, 2016, The Senate, Canberra, 3 March 2016.
[13]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 3, 2016, 2 March 2016, p. 3.
[14]. Ibid.,
p. 6.
[15]. Ibid.
[16]. Ibid.,
p. 7.
[17]. G
Brodtmann, ‘Second reading speech: Territories Legislation Amendment Bill 2016
and Passenger Movement Charge Amendment (Norfolk Island) Bill 2016’, House of
Representatives, Debates, (proof), 15 March 2016, p. 57.
[18]. G
Brodtmann, ‘Second
reading speech: Norfolk Island Legislation Amendment Bill 2015’, House of
Representatives, Debates, 12 May 2015, p. 3720.
[19]. N
Grimm, ‘Norfolk
Island residents call for review into process of ending self-government’, AM,
transcript, Australian Broadcasting Corporation (ABC), 30 January 2016.
[20]. ‘Censorship
claims on Norfolk Island’,
Cook Islands News, 3 February 2016.
[21]. ‘Untangling the Norfolk Island web’, SBS News website, 24 February
2016.
[22]. P
Fletcher, op. cit.
[23]. Explanatory
Memorandum, Territories Legislation Amendment Bill 2016 and Passenger
Movement Charge Amendment (Norfolk Island) Bill 2016, p. 7; Australian Government,
‘Part
2: Expense measures’,
Budget measures: budget paper no. 2 2015–16.
[24]. The
Statement of Compatibility with Human Rights can be found at pages 8 to 13 of
the Explanatory Memorandum to the Bills.
[25]. Parliamentary
Joint Committee on Human Rights, Thirty-fifth
report of the 44th Parliament, The Senate, Canberra, 25 February 2016,
pp. 1–2.
[26]. Parliamentary
Joint Committee on Human Rights, Twenty-second
report of the 44th Parliament, The Senate, Canberra, 13 May 2015, pp.
67–71.
[27]. Parliamentary
Joint Committee on Human Rights, Thirty-fifth
report of the 44th Parliament, op. cit., p. 2.
[28]. Ibid.
[29]. A
‘Henry VIII’ clause is an express provision which authorises the amendment of
either the empowering legislation, or any other primary legislation, by means
of delegated legislation.
[30]. Rule
of Law Institute of Australia, Draft
Henry VIII clauses & the rule of law, The Institute, 2012.
[31]. Social Security Act
1991.
[32]. Parliamentary
Joint Committee on Human Rights, Twenty-second
report of the 44th Parliament, op. cit., pp. 67–71.
[33]. Ibid.,
p. 69.
[34]. Parliamentary
Joint Committee on Human Rights, Thirty-fifth
report of the 44th Parliament, op. cit., p. 2.
[35]. Explanatory
Memorandum, op. cit., p. 17. Section 109 deals with the responsibilities of
Controllers-General of Prisons to provide the Electoral Commissioner with lists
of persons serving prison sentences of at least three years and section 227
deals with mobile voting booths. Subsection 93(8AA) provides that a person
serving a sentence of imprisonment of at least three years is not entitled to
vote.
[36]. Explanatory
Memorandum, op. cit., p. 25.
[37]. Norfolk Island Act
1979.
[38]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 3, 2016, op. cit., p. 7.
[39]. Part
XIB of the Competition
and Consumer Act 2010 deals with anti-competitive conduct and
record-keeping rules for the telecommunications industry.
[40]. Fair Work Act 2009.
[41]. ‘This
Act’ is defined in section 12 of the Fair Work Act to include the
Regulations.
[42]. The
Explanatory Memorandum at p. 2 provides further explanation.
[43]. Item 17, Schedule 2.
[44]. Explanatory
Memorandum, op. cit., p. 44.
[45]. The
Joint Petroleum Development Area is defined in the Petroleum (Timor
Sea Treaty) Act 2003.
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