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JOINT STANDING COMMITTEE ON THE NATIONAL CAPITAL AND EXTERNAL TERRITORIES
Territories Law Reform Bill 2010
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JOINT STANDING COMMITTEE ON THE NATIONAL CAPITAL AND EXTERNAL TERRITORIES
Territories Law Reform Bill 2010
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JOINT STANDING COMMITTEE ON THE NATIONAL CAPITAL AND EXTERNAL TERRITORIES
(Joint-Thursday, 8 April 2010)
SHERIDAN, Mr Timothy J
ANDERSON, The Hon. Craig Maurice
SNELL, Mr Lisle Denis
ADAMS, Ms Robin
NOBBS, Mr Andre Neville
WARD, Mrs Melissa
GRIFFITHS, Ms Rhonda Evelyn
BUFFETT, The Hon. David Ernest AM MLA
ADAMS, Ms Robin
KING, Mr Michael William
QUINTAL, Ms Denise Marie
SHELLEY, Mrs Barbara Violet
FINCH, Mr Warren Richard
BUFFETT, Mr Albert Fletcher
COOPER, Mr Wesley
SNELL, Dr Candice Anne
BIGG, Mr Simon Laurence
- Mr Snell
Content WindowJOINT STANDING COMMITTEE ON THE NATIONAL CAPITAL AND EXTERNAL TERRITORIES - 08/04/2010 - Territories Law Reform Bill 2010
CHAIR —Welcome to you all. Although the committee does not require you to give evidence on oath, I should advise you that these hearings are legal proceedings of the parliament and therefore have the same standing as the proceedings of the respective houses. I now invite you to make an opening statement. Mr Buffett, you have already advised me that you would like to table your submission at the end of your presentation. I now invite you to make your statement and then we can begin our discussion.
Mr Buffett —Thank you, Madam Chair and members of the joint standing committee. Again, welcome to Norfolk Island. Thank you for the time you have allocated to us this morning to make our submission to you. This morning I will provide an overview of this submission which has been earlier emailed to you but which I will present in its formal hardcopy form at the conclusion. I will provide an overview of this document and elaborate some parts, if I may—particularly the recommendations.
I will commence with some background to the Territories Law Reform Bill. This is at 2.1 of the document. In terms of the background, there are two tranches: one was the exposure draft, and the other was the Territories Law Reform Bill itself. The time frames for these two documents relate to this year. On 12 February this year, an exposure draft was provided to the Norfolk Island government. Then, just a couple of days later, on 15 to 17 February, officers of the Attorney-General’s Department and also officers of the Department of Finance and Deregulation visited the island to present details of that exposure draft.
In the context of that happening, I think we have got to mention this: we perceived that there was little practical knowledge of the Norfolk Island environment in their preparation and progression of that particular bill. And, whilst they were here, there was really not a great deal of publicity of how they would present what they had in their kit, nor was there a great deal of time for us to make considered responses to that proposed legislation—and it was extensive. Submissions on that exposure draft were required to be lodged with the Attorney-General’s Department by 25 February, only nine days after their visit. So there was a very tight time frame in terms of what is a significant constitutional change for this place. Nevertheless, the Norfolk Island government did respond by 25 February. Then the bill was presented to the Australian parliament—that is, the House of Representatives—on 17 March, only a couple of weeks after the earlier comments were sought. And it was then, on 18 March, referred to you as the joint standing committee. That is just some brief background to that legislation.
The next part of this document gives a structure of the Territories Law Reform Bill, and then it goes on to provide, in tabulated form, its impact upon the Norfolk Island Act. That is really the sequence of this particular piece of legislation. That is about seven pages. I am not going to dwell upon that, of course, but they are important components of the report for reference and for other purposes.
The part of the report that I would like to address is item 4, which really covers governance and electoral issues, because it lists seven concerns of the Norfolk Island government and some members of the Legislative Assembly in terms of this particular bill. I would like to work through those concerns from 1 to 7. Item 4 lists, more than anything, these seven items. The next part elaborates on those seven items. I am not going to do the elaboration part; I am going to identify the seven concerns. Then you will be able to see the elaboration yourselves.
The first concern with this proposed legislation is that it expands the veto power of the federal minister and correspondingly reduces the authority of the Executive Council of Norfolk Island regarding advice to the Administrator as to the exercise of the powers conferred upon him. I should say this: the powers in Norfolk Island are vested in three categories: firstly, schedule 2 matters that are listed in the Norfolk Island Act; then schedule 3 matters in the Norfolk Island Act; and then those that are not listed, the balance, which are commonly called the retained powers.
At present, schedule 2 matters are in the area of authority of the Norfolk Island government. Those matters are advised upon to the Administrator in varying sets of circumstances by the Executive Council of Norfolk Island. The Administrator is bound to heed the advice of his advisers, just as you will find in a state government situation or in a Governor-General situation in the federal sphere. The schedule 3 matters are equally in that context. However, they are subject to veto in certain circumstances by the Commonwealth. The balance of powers are retained powers and are in the power of the Commonwealth.
This particular concern is that the schedule 2 matters are no longer Norfolk Island’s. They are taken to be those that can be additionally referred in the Commonwealth sphere. So it removes the function of the Executive Council to have authority in respect of those matters. That is a regression. It is really a restoration of colonial government prior to 1979, because you will see that that really means that there is an authority from afar that is now controlling those essential things within this place. So that is of significant concern.
I might say also that this progression on the part of the Commonwealth to do this is really contrary to the intent of the preamble to the Norfolk Island Act. The Norfolk Island Act says, in effect, that it will look to the extension of schedule 2 powers over a period of time. That has happened. Originally, in 1979, that particular piece of legislation had something like 42 listed items under schedule 2. It has progressed to something like 90-plus at present under schedule 2 of the Norfolk Island Act. The preamble does not contemplate withdrawal of those items. It talks about progression of those items, and, as you will see, that has happened. This is now another step of moving in the other direction. That is concern No. 1.
Concern No. 2 is about created new Commonwealth Public Service positions, which effectively again returns Australian rule prior to 1979. The examples in this situation are appointment of potentially multiple deputies of the Administrator—not singular but plural—and also a Commonwealth financial officer for Norfolk Island. That is our second concern.
The third concern is the imposition of a fixed form of government on the Norfolk Island community by doing these things. It removes the ability of the legislative assembly to select, to structure and to allocate portfolio to the executive members—that is, ministers—of the legislative assembly which forms the Norfolk Island government and it imposes a form of government focusing on a chief minister with a chief minister’s power to appoint and remove ministers. It also limits the number of ministers that may be appointed. It enables the chief minister to be removed by the administrator if, in the administrator’s position, there are exceptional circumstances. There is no description of ‘exceptional circumstances’ but they are the words used in the legislation. And it limits the power to allocate or reallocate ministerial portfolios to the chief minister. You might see those things as happening in various jurisdictions within the Australian sphere but, in the main, they are by convention, not necessarily set down in a structure of a piece of legislation. This is endeavouring to set in a structural piece of legislation but, in doing so, it obviously removes that existing authority from the legislative assembly.
Concern No. 4, which is point 4.4, reduces the assembly’s power, as the elected representatives, to enact legislation, because it empowers the administrator to reserve all of the proposed powers, regardless of character, for the Governor-General’s assent. I mentioned earlier the three areas, and the area of schedule 2 meant that it was the administrator’s responsibility on the advice of the Norfolk Island government to handle those matters. This changes that. It says that he, on his say-so, may refer them all offshore. It empowers the federal minister to veto all advice from the executive council to the administrator and it empowers the federal minister to introduce a proposed law into the legislative assembly. That is a significant removal of Norfolk Island authority in this process.
I now move to concern No. 5. This really facilitates non-democratic and non-judicial removal of the legislative assembly itself by dismissal of individual members of the assembly by the administrator and it says for seriously unlawful conduct or grossly improper conduct—and, again, those two factors do not have definition in the legislation or elsewhere—and the dissolution of the legislative assembly by the Governor-General. Those two are serious factors in the democratic processes existing in this island and these two provisions that I have just mentioned endeavour to remove them.
Concern No. 6 is about reducing the legislative capacity of the assembly through the use of Commonwealth regulations—not Commonwealth statutes or Commonwealth laws but by Commonwealth regulations. It overrides Norfolk Island laws regarding standards of conduct applying to Norfolk Island public servants. Norfolk Island does have legislation applying in that context. It repeals or alters items in schedule 2 or schedule 3 without the recurrent requirement for a legislative assembly resolution approving such a regulation. There is the overriding of Norfolk Island electoral laws, overriding existing Norfolk Island laws regarding public moneys and public stores and overriding existing Norfolk Island laws regarding financial management by entities falling within the control of the Norfolk Island government.
Concern No. 7 is of great concern principally because of its unknownness. This is about financial arrangements. It unilaterally imposes a new financial framework as to the public account of the island and relating public sector entities. But the detail of this is not known because it is to be implemented by Commonwealth regulations. Whilst there is a huge list of amendments to the Norfolk Island Act and other things it, in fact, does not spell it out at this time, and that is of great concern to us. But, if you read other parts of the legislation, it will obviously mean greater imposition of Commonwealth functions within this place, and I will talk about how that may or may not work in a short time.
Those are seven principal concerns that we have, but there are four other areas that I would now like to address. I turn to folio No. 39. In addressing those seven concerns in some detail there are three additional concerns. Additional to those things I have addressed there are four other areas that are addressed by the bill. Three of these appear to simply impose the Commonwealth machinery on Norfolk Island and they relate to the Administrative Appeals Tribunal, freedom of information and privacy. Again, in respect of the first, which is the Administrative Appeals Tribunal, it appears to be an extension of the Administrative Appeals Tribunal Act 1975 to Norfolk Island almost in its entirety, which would appear to us to be complex and costly in just extending that particular arrangement to this place. We of course do have appeal provisions, although there is room for improvement of those. Equally, freedom of information appears to impose all of the Commonwealth machinery, with all of its complexities. You work with that so you will know its complexities and, in a small jurisdiction, there are better ways of doing it and equally so with privacy.
I want to dwell upon the fourth area and that relates to the Ombudsman. I would like to dwell on this for a moment because it is a success story. There are not a great deal of them around but, in this particular instance, this is a success story. Let me just work through these. The Norfolk Island government considers that the proposed model in this particular piece of legislation is based upon the introduction of Norfolk Island enactments, with provision for appointment of the Commonwealth Ombudsman to act in accordance with that particular piece of Norfolk Island legislation. It would be appropriate, therefore, to Norfolk Island circumstances. The model and the legislation were developed by consultation between the officers of the Commonwealth Ombudsman and the Norfolk Island government. They were specifically drafted by the Commonwealth, having regard to the special circumstances appropriate to a small jurisdiction and the need to minimise bureaucracy, complexity and cost. The outcome achieved in respect of the Ombudsman is a perfect example of what can be achieved through proper and careful consideration of what is appropriate and suitable in this place. You could use that model for the freedom of information and privacy examples that we have turned to here. That is a success story and, as such, is a very good example to cite. So there are seven concerns, plus those four matters, one of which is a success story.
What are the conclusions, members of the committee, of all of these concerns? In a nutshell, the conclusions are basically these. This bill in its current form, with one minor exception, seeks to undo the concept of self-government that has operated since the enactment of the Norfolk Island Act 1979 and it contemplates a return to the system of colonial overview by Commonwealth government appointees.
A conspicuous feature of the undue haste—and I mentioned this at the very outset—associated with the bill is that issues have not been considered through to their logical conclusion. The inference arising from a lack of local consultation is that the architects and the implementers of the bill overstate their understanding of the Norfolk Island conditions and environment. This lack of understanding, it should be stated very clearly, can be overcome by bona fide local consultations but not by mere reading and uncritical adoption of external reports. One example was the 2003 Quis custodiet ipsos custodes? report. I mention that because it was clear on the visit of the Attorney-General’s officers, and I gave you that sequence earlier in the piece, that they were holding up that document rather as a bible—‘These are the things that we’ve got to do’—but it had been very clear at a much earlier stage that most of it had been refuted by both the Norfolk Island government and the Commonwealth government, so it was not something to be seen as the Bible. There we are.
Many of the impositions contained in this bill are marred by excessive complexity which will inevitably result in undue cost and delay. We have experienced significant delay in the Commonwealth sphere in terms of legislation having a need to be referred to the Commonwealth. In the submission at 10.6—and I just mention this so that you might have an opportunity to read it at some time—it says:
A most striking feature of the prescriptive nature of the Bill is that it fails to tap into the, by and large, complete agreement on the part of the Norfolk Island Government to the need to improve issues of governance, administrative law and review.
And so, members of the committee, I return now to the commencement of the submission, which encompasses the recommendations.
At 1.1 are our recommendations—in brief, given all that I have endeavoured to describe to you, but the totality of the document is there to be absorbed. We recommend that further passage of this bill as it sits should not proceed. It should be deferred. Further, we recommend that:
The Commonwealth and Norfolk Island Governments should commence immediate discussions—
I underline the word ‘immediate’; it is not underlined in the text, but I say it now—
on agreeing appropriate approaches and time-lines regarding the pursuit of the common goal—
because there are common goals—
of improving the quality of self-government in Norfolk Island …
We recommend that a working group be established comprising nominated members within Norfolk Island with an equal number of members in the Commonwealth sphere. We thought long and hard about how we should phrase this, and I should give you some background. We really thought that it would be useful if there were Commonwealth parliamentary people who had experience and knowledge of and interest in this place, and we have therefore mentioned the joint standing committee. This is a group that has been here on a number of occasions and has looked at our affairs on a number of occasions. We are unsure, of course, as to whether the joint standing committee has capacity as a committee to enter into these arrangements, so we have put it into a wider context, but we have exampled members of the joint standing committee so that you might see the context in which it is so said. Having said all of that, the working group is to be established so that we might review this bill and prepare appropriate alternative suitable methods for Norfolk Island’s circumstances.
The recommendation at 1.1.5 is that in going through those processes, in these circumstances:
… 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—
which have been carefully drawn up to meet our circumstances—
the operation of the Assembly—
its elected group—
and the practicality of the provisions in terms of self government.
Detailed consultation needs to be had and time frames need to be given so that it can be all properly and thoroughly worked through.
Having heard all of that, you will clearly see that we think this bill in its present form is a danger—some might even say disastrous—for Norfolk Island. I would like to point this out: if the Commonwealth is not even able to deliver a timely bill with proper consultation on a hugely important matter—this is a constitutional matter for Norfolk Island and, in this instance, it involves the Attorney-General’s Department, a high-profile department within the Commonwealth—what hope does Norfolk Island have of the Commonwealth delivering outcomes to us under the extra powers that the Commonwealth is seeking in this particular piece of legislation? Given all of this, we see danger to us all. As the elected representatives of the Norfolk Island community we think you will recognise these difficulties, as elaborated in this document, and we hope that you will report as we recommend and talk to us about all of that. Thank you for generously giving us your time this morning. We are available to respond to queries you might have. Before we do that, may I formally give you this document, which encompass all of the things I have described this morning.
CHAIR —Thank you very much, Chief Minister, for your statement today and for the submission from the Norfolk Island government. Ms Adams, congratulations on your appointment as Speaker. Before we move to questions and discussion, would any other members of the Norfolk Island government like to make a statement?
Mr Nobbs —I have not a formally prepared statement but an overview in summary form of some of the issues on which I absolutely support the Chief Minister. At the top of my summary sheet I have put two key issues for Norfolk Island. The first is long-term security—although I have actually put ‘long-term insecurity’ at the top of the sheet, given the ability of the Commonwealth to inflict a fairly short term and potentially damaging change on the Norfolk Island Constitution. I will come to that in a little more detail shortly. The second issue is democracy—recognising that some of the proposals in the bill do away with a little bit of our democracy and remove some capacity from the democratically elected members of the Norfolk Island community in the Legislative Assembly. I back the Chief Minister’s comment that the constitutional change, given a nine-day time frame, is appalling. I do not think it would be considered in any other jurisdiction in that capacity, particularly given that the Norfolk Island government has offered to communicate and collaborate to advance financial management and oversight planning transparency mechanisms over many years and in particular the last three years. The fact that the regulations have the capacity to override the act is very much a concern, particularly when. those regulations are not evident at the moment.
CHAIR —Are you talking about the financial arrangements to be put in place?
Mr Nobbs —Yes, to be completed at a later date. That then raises for me the issues that we have already had in terms of timely legislative management, with issues in the schedule 3 parameters, and also in general and genuine negotiations between the Norfolk Island government and the Commonwealth. Madam Chair, I will just mention that you assisted me in the former government, particularly to keep some of those discussions and negotiations on track, so you are also aware of the challenges that we face on those issues that are removed from a transparent process and from our control as the democratically elected members of the assembly.
I would also like to refer back to what was probably the most recent visit of the joint standing committee, whereby I think there was a review of the national capital and external territories with regard to the economic environment. Norfolk Island provided a consultative input, I suppose, in that. That consultative input looked at the way that we are able to manage our programs, our delivery of services, our management of revenues and our ability to manage legislative change and regulation in a timely way to assist not only our economy but transparency and the benefits to the community that flow on from a government that can react in a timely fashion to the needs of that community.
In those discussions, we also pointed out some of the issues that we face as a government on Norfolk Island with the lack of consistent communications, whereby the federal minister may change three times over the course of our term or our own legislative assembly may change over that term. The consistency of communication is one of the issues that raise themselves not only in that context but in this context: the establishment of a bill that is not adequately collaboratively put together to enhance a government proposition for Norfolk Island as an external territory.
I probably do not need to elaborate on the difference between how certain federal ministers have handled Norfolk Island. There have been some who have taken a keen interest, and the discussions have flowed and the legislation has progressed in a more timely manner. Then there have been other ministers who have not had a particular interest in Norfolk Island, and we have borne the brunt of some of the delays as well as some of the viewpoints that are not necessarily matched by experience or understanding of how Norfolk Island operates. That thereby raises for us a genuine concern if we are to trade off, through this bill, some of our ability to manage schedule 2 items and if the federal minister has an oversight not only to restrict our passage of those but also to place legislation on the table within the assembly. There is a particularly frightening proposition, I suppose, in some cases as to whether, if the MLAs or the legislative assembly did not agree to the passage of that bill, it did not then revert back to some of the options for dissolving the assembly. These are things that we have to be mindful of, because we have seen a number of personalities in a number of positions that have control over and input into Norfolk Island.
The Chief Minister has talked about the progression of the ombudsman for Norfolk Island. That, he quite rightly states, was a collaborative process between the Norfolk Island government, the Commonwealth Ombudsman and the federal minister, all of whom had a keen interest to see that part of the transparency mechanisms implemented for Norfolk Island in a way that was manageable and effective for Norfolk Island. As the Chief Minister has pointed out, the proposals for some of the new mechanisms such as the AAT, privacy and FOI are not necessarily things that we do not support, but we need to be able to manage the resourcing of those mechanisms, and there needs to be an understanding and a mechanism that associates them with the locale that they are used in.
CHAIR —Thank you very much. Would any other members of the Legislative Assembly like to make a statement? If something comes to mind later, feel free to jump in. I have a couple of questions I would like ask. Chief Minister, going back to your seven points of primary concern, with respect to the financial framework and the public sector financial arrangements, you express concern that, because they are going to be determined at a later point via regulation, that in itself creates untenable uncertainty in your mind. What is your fear and what are your concerns as to how those regulations may appear? I would like to get a feel for how you think an alternative approach could put in place an agreed financial framework. Alternatively, what is your fear of how that financial framework may be determined by the Commonwealth down the track?
Mr Buffett —Let me firstly mention that, within the immediate past few months, there has been a great effort to reconfigure Norfolk Island accounts into a different and what we perceive to be a more acceptable form to the government. I am not too sure that you could say they were unacceptable before, but they are now in a framework that is more recognisable, an internationally accepted framework. That has been achieved. The accounts of Norfolk Island are in that form now. There has been discussion with the Commonwealth as to how we might move into a continuing arrangement where they would recognise and thereby see more clearly how we structure our accounting process. There is really no argument about that. What we are concerned about is, if we have done that with the Commonwealth and they find acceptability with that and they are not raising other concerns, why are they suddenly doing all this? What are they about? It is probably a fear of the unknown, in a sense. But the unknown can be disastrous for us. A great deal of this ‘other’ was unknown and suddenly it comes out of the woodwork, and it is not to our advantage. We have significant reason to be careful about how we move forward, and we need to know about it.
CHAIR —You say that there has been real progress made in developing a new approach to managing the financial accounts. Is it conceivable under the bill as it is currently drafted that what you have developed could be co-opted into regulation? Have there been any discussions with the Commonwealth along those lines?
Mr Nobbs —What the Chief Minister is referring to is the IFRS reporting system. We entered into that in collaboration with the then federal minister, Minister Debus. At the time, that was seen as one of the more transparent and internationally more acceptable methodologies for reporting our finances. We have moved down that path as well as seeking to have the Commonwealth Auditor audit Norfolk Island financial and performance matters. We saw that as a way to open the window of communication so that there was a clearer understanding on both sides of exactly how we operate and how we manage ourselves. I would be hesitant to see IFRS placed into any legislation as it stands at the moment. In my view, it provides less detail than we provided before. In fact, what we discussed at the presentation of the audit in the IFRS format was that we would provide additional information on the government business enterprises and the like just to expand it.
To give you a graphic demonstration, I suppose our normal audit report would be an inch thick; the IFRS report would be lucky if it is a quarter of an inch thick. So there is a different covering of areas but perhaps not the level of detail that we would like to see to enhance an understanding of how the North Island fiscals work. So I would not be supportive of your suggestion that that could be brought into regulations because I do not think that is where we are going to end up. I think there will actually be further discussions. As you are well aware, there is the AIFRS, which is the Australian version of the IFRS, but there are also government financial reporting systems and I think they are probably the more responsible way for us to move—rather than through IFRS. However, that is also something for the finance minister and the Chief Minister to spend some time on and work out whether that is the best way forward.
Just to reiterate, we could actually find ourselves in a worse position by specifying some of these mechanisms in the legislation that then preclude us from having the movement. You are probably going to say, ‘But that might end up only in regulations.’ However, the passage of regulation and the change of regulation is also an issue to us.
CHAIR —I think what I am trying to ascertain is to what degree these discussions had already developed between the Norfolk Island government and the Commonwealth with respect to financial reporting and how that is reflected, if at all—and I am getting the sense that it was not at all reflected—in the bill before us. So I guess I am trying to get a response from you about what potentially, to me at this point in time, looks like a mismatch of expectations.
Mr Buffett —In terms of the present government, there have been no Commonwealth discussions with us. There has been a very brief time. However, the minister has had, in a previous context, some discussions with us and maybe he has an opportunity to elaborate on that. But I just want to make this point in terms of concern No. 7. It is a conceptual concern. This is talking about Commonwealth regulations overriding Norfolk Island pieces of legislation. In a conceptual sense, that is not the way to travel. It is much better for Norfolk Island to develop pieces of legislation that are compatible, which may well be able to be worked out given discussion, in lieu of this proposal in this bill.
CHAIR —I understand your point. Thank you.
Mr Nobbs —I absolutely support the Chief Minister in that regard. The answer to your question about the level of collaboration or communication in the lead-up to this bill with regard to financial issues is zero. We invited discussion on those matters. However, following Minister Debus’s vacating his office as the federal minister with responsibility for Norfolk Island—although we proposed a number of task forces to look at revenue raising options for Norfolk Island and a better balancing fiscal arrangement—there has been very little response. But, almost in its entirety, the bill that was placed before us has had no collaborative input from the 12th legislative assembly and, as the Chief Minister has pointed out, nor from the 13th legislative assembly. Just to reiterate one point that was made earlier, the nine-day time frame for constitutional evaluation before tabling this document was quite appalling—and to have it tabled on the day of our election designates a certain undertone, I think, to how this legislation has been put forward.
Senator FERGUSON —I have a couple of questions about issues that you raised, Chief Minister. Perhaps I could preface my question by saying that, in most states and in the Commonwealth of Australia, the Premier or the Chief Minister, or the Prime Minister, does select ministers. It did not use to be the case, but now it is primarily the responsibility of whoever is the leader of the government to choose their own ministry. Our current Prime Minister chose his own ministry, which has not always been the case when the Labor Party is in government. So it is not an unusual recommendation that a Chief Minister select his ministers.
The other thing that applies in certainly most Australian governments, and I think you would find in almost all democratically elected Westminster systems of government, is that democracy flourishes because of a healthy opposition, which is something that seems to have been absent in the Norfolk Island legislative assembly since 1979. There may have been before my time a recognised opposition. In fact it is oppositions who question and call to account members of the executive. It is not somebody from an outside body that does it; the opposition actually does it. But when many of your members are also ministers and also part of the executive, it makes it very difficult for anybody to question what the executive is doing, because it has been a collective decision in the first place. I wanted say that to preface those remarks. I am not pre-empting what might have been the minister’s reason, but I think one of the reasons why they have recommended there should be a limit on the number of ministers and that they should be appointed by the Chief Minister is that there may be possibility of a questioning body from within the assembly that can question the executive’s decisions.
Mr Buffett —I would like to comment on those two points. I would venture to say that in the experiences that you draw upon those methods are not enshrined in legislation, and that is what this is proposing to do. This is proposing to enshrine it in legislation. If yours is not, why should ours? Let me also explain that in a number of instances the Chief Minister has selected his team. That has happened by conventions just as it has happened in your conventions. And just as yours have developed—you have mentioned that it used not to be but now may be—there is room for Norfolk Island’s to develop. You have had a longer experience and opportunities to develop than we have had. Norfolk Island should equally have its opportunities to develop. But in both instances it has not been enshrined in legislation. That is the real difference. You are saying to us—not you personally, of course, but the Commonwealth is saying this: ‘You will have yours enshrined, but we won’t.’
Senator FERGUSON —Since Federation one of our major parties has always had the chief minister select his cabinet or his ministry. It is only in recent times that all governments have been selected by the chief minister. You said in regard to freedom of information and privacy that there are better ways of doing it. Could you please elaborate on the better ways of doing it?
Mr Buffett —Yes, I am happy to elaborate on that. I gave the example of the Ombudsman processes, which really meant that there was collaboration between Norfolk Island and the Ombudsman’s office in this particular instance to develop Norfolk Island legislation that would encompass all the needs, given the small jurisdiction, and then enshrine that in Norfolk Island legislation—and we have already done that in terms of the Ombudsman arrangement—and then have empowering arrangements in the Commonwealth sphere to allow the Ombudsman to undertake those tasks. That is very much abbreviated. What I am saying in terms of applying that to the other is that there could equally be cooperative discussions to work through how you would provide under Norfolk Island legislation freedom of information capacity and then be able to have and accompanying arrangement within the Commonwealth sphere, if that was required. It was required in the Ombudsman’s sphere, because the Ombudsman did not have the capacity to operate outside the Australian sphere. So there needed to be adjustment in the Australian legislation to allow that. This bill does that. It is one of the plus things in this bill. I am just trying to use that as an example of how, given timely discussion, things can be worked through to find an amicable result for both.
CHAIR —Just to follow up on that, what you are asking for quite specifically in relation to the AAT, freedom of information and the operation of the Privacy Act is a similar adjustment to the Australian legislation that would follow those regimes to operate under the auspices of Norfolk Island legislation in the first instance.
Mr Buffett —That is a very general statement because those matters are different in how they run and are administered and it may not be doing it exactly the same as it has been done. But the principle is really what I am trying to stress. In terms of the principle, yes.
CHAIR —Have you determined conceivably what those mechanisms could be and whether it is possible to take a similar approach to the ombudsman? It is a very good question for us to take back to the department as to whether or not it would be possible to have a similar arrangement to that of the Commonwealth ombudsman for those other regimes to apply. I do not know the answer to that but if that is what you are getting at then that is something we can take back.
Mr Buffett —I am not too sure that we know the answer to all of that at this time. It would be a matter exploring in a number of Commonwealth areas to see where the resources might be drawn together to commence the conversation. For example, in the appeals area we already have appeal arrangements. It must be acknowledged that there is room for improvement in those appeal arrangements but we do have appeal arrangements. We also have some overlapping arrangements in terms of appeals about immigration. So, yes, we do have some channels there and we have explored those over on other occasions. But this is more wide reaching than just the immigration arrangement. But without a doubt there is a practical approach that can be found.
CHAIR —Correct me if I am wrong and this question might be better aimed at members of the 12th assembly, but the impression I had was that there was at least at some point a great deal of goodwill between Norfolk Island and the Commonwealth to explore some of these accountability and transparency reforms, but, based on your evidence this morning, just not in the way it ended up in the current bill. Is that a fair statement?
Mr Nobbs —The subtle difference there is what I alluded to earlier, where a federal minister who was responsible for Norfolk Island was particularly interested in collaborating with us to implement those mechanisms. Yes, we were very keen to explore any ways that we could implement those transparency mechanisms. I do not think there is any backing away from that in this current government but what the areas is a reiteration that for these things to be effective they have to be collaboratively worked on so that the mechanism matches the location.
Senator FERGUSON —Far be it from me to defend the current government because I do not very often, but in this case I do. You talked about undue haste and a lack of consultation. Can I say that as long as I have been on this committee, which is for some time, there have been discussions arising out of the 2002 or 2003 report which you raised as governments considering that to be the bible of what should happen. Ever since that report came out there have been discussions certainly amongst governments in Australia. We have visited this place a couple of times as a committee try to gauge the feelings of people, once unofficially so that it was not a meeting like this where everything was recorded. There is no doubt that there are a variety of views on the island as to how things should proceed or progress, or not proceed at all—a variety of views. It is a fact that although this bill has only come out recently and did come as quickly, it was as a result of a lot of work that had been done in the previous seven or eight years. When Andre was Chief Minister there were some consultation. You may not consider it to be enough, but governments have to decide aside, firstly, who they go to consult with. It has not consulted with the current government because the bill was prepared before this government was elected. So I am not sure that you can level an accusation of undue haste.
The former territories minister in the previous government took a bill to cabinet which was rejected, as I am sure you are aware. It is only since the election of the new government that Minister Debus and Minister O’Connor have spoken to the committee at length, and to others, as to what should be proposed. So I would dispute that there has been a total lack of consultation.
Mr Buffett —You are quite correct in saying that the bill may have been prepared before the present government so there has not been consultation with the present government. But it is my understanding that there was not consultation with the previous government either. Mr Nobbs might be able to speak on that, and I invite him to do so.
Mr Nobbs —I refer you back to the first line at the top of my summary, which says ‘Long-term security’. The reason I wrote that is that the report from 2003 that has been referred to has resulted in Norfolk Island having to defend itself on the way it provides services, the way it has provided governance and the way it has enabled transparency and management at those levels. Yes, there has certainly been some discussion on transparency mechanisms, as there has been on a wide range of issues raised by Norfolk Island in joint standing committee reports and Commonwealth Grants Commission reports. You will find that we have addressed many of those concerns over the many reports. But you will find that the Commonwealth has addressed not even half as many of the issues that the Norfolk Island government has addressed in those reports. However, I will make this point in regard to the bill: yes, it may well be that one, two or perhaps even several of the elements of this bill have been communicated to—and there has been collaboration with—the previous government and with governments prior to that, but the bulk of the bill was unknown. We have requested that, if this sort of bill were proposed, there be interaction between the governments so that instead of sitting across the table seeking to defer the progression of this bill we would be collaboratively building a bill that would support the advancement of Norfolk Island, which also means the advancement of an external territory under the authority of Australia.
Senator FERGUSON —You said you had not seen the regulations. Can I suggest that that is not an uncommon thing with bills. Because we have a two-house system in the Australian parliament, where bills are introduced into the House and then dealt with by the Senate, it is often the case that the Senate will not pass a bill until they see the draft regulations. So, hopefully, depending on what happens to this bill in the House, or if there is a deferral, it would certainly never be passed without some draft regulations, which I am sure you would have the opportunity to look at.
Mr Buffett —I understand the point about sometimes not seeing the regulations, and I thank you for your assurance that, if the bill progresses as you have described, you will certainly be seeing the regulations. I doubt, however, that in all areas of constitutional change you would see bills progressing without it all being spread out. This is a significant constitutional arrangement. I just want to make that point.
Mr ADAMS —I would like to address the issue of the Chief Minister. As I understand it, the bill endeavours to establish an executive and a ministry, which is answerable, of course, to the assembly but separates it so that there is a back bench or an opposition as is normal in the Westminster system. I think that in the past you have nearly governed by committee, and I see the bill as trying to set up that the Chief Minister and his ministers govern, and there is an opposition so that the accountability processes are enhanced. Do you see that, or are you opposed to that process? I was not sure from your submission to the committee.
Mr Buffett —The principal difficulty is that this is endeavouring to enshrine it in the legislative process. We have heard discussion before—
Mr ADAMS —Are you opposed to those principles which are really the Westminster process?
Mr Buffett —When the Norfolk Island Act was put into place in 1979, the proposal of that piece of legislation encouraged us that we would have some consensus in the process of government here, and that must be acknowledged to be a bit different from that which you have described. Norfolk Island has moved significantly in that vein but there have been times when it has been more adversarial, and adversarial is more the context that you have just mentioned. I think that without a doubt there may be occasions where it will oscillate from one end of the spectrum to the other, and that has been demonstrated in the history of the place of the last 30-odd years. That is not a long time in comparison with the Australian parliament. Nevertheless, it is 30-plus years of this system for us. The present legislative statutory arrangements allow that to happen. This is endeavouring to cut off one or the other. It is endeavouring to cut off the consensus process by enshrining in legislation that system that you described. That system you described has been used here. It is used at this moment. The Chief Minister has chosen his team on this particular occasion, and it has been endorsed by the members of the assembly. One member has declared himself to be the leader of the opposition. He is the leader of one, but I am not trying to comment overly on any of that except to spell it out for you. It shows that the present statutory system can cater for that. We do not see a need for it to cancel out all other if in fact at some time the community, through its elected representatives, wishes to exercise it a bit differently. It would if this bill were passed. I would say that it is a plus for us to have that spectrum, not a disadvantage. But it would certainly remove the powers from the totality of the elected representatives and put it in the hands of one.
Mr ADAMS —Coming back to the arguments you put forward in relation to timeliness—and I think Senator Ferguson touched on this—there has been a body of work over 10 or 15 years by this committee, reporting on the governance of and delivery services to Norfolk Island by the assembly. This makes up probably the bulk of the bill that is presently before the federal parliament. It is either naive or a deliberate process to not accept that that work has been done and will accumulate in an outcome of some sort by the federal parliament. What you are saying is one thing, but the governance issues are why that has been put into the present bill.
The other issue I would like to touch on—and you can reply if you wish—is the electoral laws. At the moment your electoral laws exclude people from running for office. They prohibit some people from citizenship as such. Your objection to that is in what regard?
Mr Buffett —I think you will need to elaborate on that.
Mr ADAMS —I do not have your submission in front of me, but you had some issues with the bill in relation to the electoral changes. I understand that the present circumstances of your electoral act actually exclude people from running for office if they are not a citizen or if there is a citizenship issue.
Mr Nobbs —Perhaps I can provide some input into that. I think it was in 2004 that once again a passage of legislation was imposed by the Commonwealth on the Norfolk Island community without full consultation. It removed the ability for those who were not Australian citizens to stand for the Legislative Assembly. Given that our community makeup involves people from New Zealand and probably 20 other international destinations, what that did was exactly what you said; it precluded certain members who were integral to the community from being able to represent the community.
Mr ADAMS —I understand the bill gives it clearance. I think the parliament of Australia and most citizens of Australia would say that if you are a citizen of Australia you should be able to run for any office of election in any territory, state or council election within the boundaries of Australia. There is no objection by—
Mr Nobbs —That is in existence. The only counter to that is that in 2004 there was a certain part of the community disenfranchised from the ability to represent. I would like to touch on something else while I have the microphone active. We have talked about the party system, we have talked about consensus and, as the Chief Minister has pointed out, we have a person who has declared themselves as the opposition in this assembly. That has happened in assemblies before. There have been members declaring themselves as the opposition. There has been a group that, I think, named themselves ‘The Block’. There have been a variety of mechanisms used within the assembly that are allowable within the legislation. It was very interesting for me to note that on our 30th year celebrations for Norfolk’s self-governance the Governor-General herself wrote to us and prepared a speech which applauded the consensus government mechanism that Norfolk uses and the outcomes that it provides for the community.
Senator FERGUSON —Following on from that, you said that there is an opposition and there has been opposition in the past. Under your current arrangements it is still possible for members who are not ministers to attend your executive council meetings, isn’t it?
Mr Nobbs —That is right.
Senator FERGUSON —So you are in a situation where a member of the opposition can actually attend the executive council, where decisions are being made, and hear all of the discussion that is taking place in regard to those proposals.
Mr Nobbs —Are you referring more to the final aspect of the executive council, where those decisions are being taken in their format to the administrator, or are you talking about general executive—
Senator FERGUSON —I understand that any member of the assembly can actually sit in on executive council meetings.
Mr Nobbs —If they have sworn the oath, that is correct. It is a form of transparent government that we have not backed away from.
Senator FERGUSON —It would be unheard of for an opposition member in any Westminster system that I know of to be part of the executive council decision making process.
Mr Nobbs —I further reiterate that the consensus government that Norfolk has operated under has enabled ministers of the government to oppose a change in legislation that is brought to the House. The purpose of the enabling legislation as we currently have it enables each individual to provide their representation along the basis that they committed to for the community. It enables conscience votes in more ways than are probably available in many other jurisdictions. It does not involve a party room decision that is adhered to come hell or high water.
Mr ADAMS —But it excludes. It actually makes a consensus and, therefore, there is not any opposition, so it destroys the process. The mechanism of the Westminster system, the system that we are talking about, is that the opposition keeps the government honest; it keeps it sharp, if you wish. That is what the role of oppositions is. The system we are talking about has its pushes and shoves and, as the chief minister has said, the development of it over the centuries is about that. It is not about having a committee meeting and everybody agreeing and, therefore, we have it all and we go out and sell it. It is about being tested and the decisions being sold in that process. That is what I am saying, and I think that is what Senator Ferguson is saying.
Mr Buffett —I think it deserves saying that what you continue to speak about is the formality and the structure of an opposition. What we have experienced here is not a lack of challenge and accountability. For example we will just use the present numbers that we have: there are four ministers and, therefore, there are five backbenchers. Whilst the five backbenchers might not have the accolade of opposition, to use your experience and analogy, they are the people who particularly challenge. They are the people who are always at question time in the parliament and who are at the ministers: ‘What about this? What about that? What are you doing here? What are you doing there?’ which you will experience particularly not only in the parliament but in a whole range of other ways. Backbenchers participate in a range of other committees that exist in the place. They have a significant role in bringing ministers, therefore the government, to account. I put the point to you that they do not necessarily need the accolade of opposition to be able to perform the accountability role. They do that, and they have done since we commenced this system in 1979. The point we are making is that this does not have to be enshrined in legislation. It is performing in the present statutory arrangement to ensure that there is accountability.
Mr ADAMS —When you say you have five backbenchers, do you elect a speaker?
Mr Buffett —Yes.
Mr ADAMS —That person does not act as a backbencher, does he?
Mr Buffett —The speaker has the capacity to come to the floor of the House to speak and to question, if that is the case. A deputy speaker will then take the chair. That person obviously has a deliberative vote, not a casting vote.
Mr Sheridan —In response to what the chief minister has said and in reply to Mr Adams’s probing about how the system operates, I cannot see anything in the proposed bill where the chief minister is nominated by the legislative assembly, he then chooses his executive members and then, in Mr Adams’s feeling, the other four, with the speaker aside, become the opposition. I cannot see how anything in the proposed legislation would affect that. What is being proposed is exactly how we do things now; it is just not written as law. It is by convention that we do choose the chief minister. This is my third assembly and, in those assemblies, the chief minister has chosen his executive members, and, then, yes, the four non-executive members, the backbenchers, are seen to be the opposition, but it is not written down anywhere. In this proposed legislation the case would still be the same.
If the sort of system that the Commonwealth is trying to impose is a party system, I think we do have a long way to go. This bill does nothing to effect any real change. It is just that it is enshrined in law, whereas, as the Chief Minister stated before, in the Commonwealth sphere it is not. That is the main aim of our objection. Why should it be for us and not for others?
CHAIR —Thank you for that.
Senator ADAMS —Chief Minister, I was just listening to your issues on the governance parts of the bill. Is there anything that you do agree with in that? I was trying to get a positive coming from the commencement of your address, so could you just enlighten me as to whether there is anything there that you do feel you could work with?
Mr Buffett —What I have spread out in those seven concerns are really the governance and electoral issues. There are not many positives.
Senator ADAMS —I did listen intently to see if there was something that you did agree with. The ombudsman was obviously something that you did, but is there anything within that governance section that, with extra consultation, you could cope with?
Mr Buffett —The reality is that with additional consultation some of these things may well find a way forward. For example, there may be a way forward for the fixed term arrangement. But these methods really are not applicable or appropriate for this place. We have been there prior to 1979 in many of these things and over generations in this place it was found that decisions made afar were not suitable for this place and we had continuing areas of concern. There was an effort in 1979 to put aside the colonial aspects and make a self-governing arrangement, which meant that we needed to make the decisions and therefore be responsible for them. That has, with respect, been quite a success story, notwithstanding that we still have to walk through a whole range of issues. The Commonwealth of Australia in the early part of the 1900s did not solve all of its machinery arrangements on day one, nor even in its 30th year.
Senator ADAMS —Thank you for that. I hope that we will get some sort of resolution from your seven points. I am new to the committee and new to Norfolk Island, but I hope to take a great interest in what is going on. I am from New Zealand originally so I have had lots of friends who have visited Norfolk over the years and I would just like to say how impressed I am with what I have seen of the island so far. As far as your elections go, is it correct that there is to be a by-election because of some technicality with the last election? Is that something that has arisen?
Mr Anderson —It is currently before the Supreme Court of Norfolk Island. A challenge has been lodged and a directions hearing is occurring today.
Senator ADAMS —Is there anything within this bill that will solve the problem that you have got at the moment?
Mr Buffett —In respect of?
Senator ADAMS —Of the time that a person has to be living here in Norfolk Island before they can actually become eligible.
Mr Buffett —There is the prospect that some piece of legislation may have greater clarity so that people are not led into the situation that maybe they find themselves in now.
CHAIR —Ms Griffiths, you wanted to say something.
Ms Griffiths —I was not going to take the floor, but I did want to respond to Mr Adams’s comment on the electoral laws. There is a hearing today on the eligibility of a candidate—that candidate being me. The point I wanted to make was in terms of the electoral laws. There are, and have been for some time, problems with our electoral laws but in fact the changes that came about in 2004 did not benefit the Norfolk Islanders. It did not improve the situation in getting the best people to stand for the legislative assembly. The reforms that originated from the Commonwealth were done with very little consultation and have not worked. It further disenfranchised many members of the community. Electoral reforms need to take place to ensure that we get the best people for our legislative assembly and really need to be raised in partnership and in collaboration. There are a number of shortfalls and we would like the opportunity to review those shortfalls and then bring it to you to be addressed by way of partnership.
CHAIR —Thank you.
Senator ADAMS —Ms Griffiths, could you give us an example of how it could go forward and how you think it could work?
Ms Griffiths —In terms of the electoral reforms?
Senator ADAMS —Yes.
Ms Griffiths —I believe that with the electoral laws there are some constraints for residents of the community to participate in the electoral and political process. The changing of the legislative requirements for New Zealand citizens who are Norfolk Islanders to stand has essentially disenfranchised a large proportion of New Zealand citizens who do not wish to take on joint Australian citizenship to stand for the legislative assembly. There are issues with Islanders and residents without Australian citizenship leaving the island for a period of time and then having a great deal of difficulty coming back and even getting back on the electoral roll, let alone standing for the legislative assembly. There are a number of other shortfalls and that has to be carefully examined with a vision of having the best possible people elected and standing for the legislative assembly. Again, that needs to be done in partnership.
CHAIR —I would like to go back to the first concern that you raised in your seven concerns about the governance. In particular, you mentioned the proposed capacity of the Commonwealth to exercise a veto over schedule 2 matters. You also mentioned in your evidence that the number of items listed under schedule 2 has expanded since the Norfolk Island Act 1979 first came into place. I wanted to ask some questions that really explore your views at this point in time. I recognise that you have put this submission together relatively quickly, so bear with me.
Mr Buffett —It was very quick, so please bear with us!
CHAIR —Is the expansion of those listed items under schedule 2 part of the Commonwealth’s case for wanting to change the arrangement with the treatment of schedule 2 items? Is that a prospect and would discussions around what that list currently looks like be a potential way forward to look at how the provisions of this bill could reach some consensus position? I do not know enough about the expansion of the list of schedule 2 items to really know if I am onto something here, but I would be interested in your view.
Mr Buffett —You are onto something and the answer to that question is really important. I am not too sure that I can adequately give it.
CHAIR —I am happy for you to try but also to take it on notice and perhaps give a more considered response.
Mr Buffett —Certainly I will try and I think there is room for further response. Let me say this: one of the grave difficulties that we have in this and a whole range of other matters is that we do not know where the Commonwealth wants to go. Apart from that act of 1979, on subsequent occasions they have not given us a clear statement as to their direction, which makes all of this extremely difficult. We do not know why some of these things are being done. There is no rationale from our point of view. There is no problem exhibited to find this so-called solution in various parts of this act.
Yes, there are some that have been on the books. There has been mention of other things being on the books for some time—that is recognised—but some of this is absolutely new to us, including these scheduled items. It is of great importance for us to know where the Commonwealth wishes to travel with Norfolk Island. We would then be able to assess whether that is actually suitable or appropriate. We may enter into some discussion about that, which would then allow us to know the Commonwealth’s rationale for doing the things contained within this bill and a range of other things as well. So the answer to your question is exceptionally important. It would allow us to tackle some of these things better. But we do not know the answers to those things, and that is part of the difficulty. If you are able to gain answers for those it would assist us.
CHAIR —Thank you for that. If you have any further thoughts or would like to elaborate on that we would be happy for you to take it on notice and provide further correspondence to the committee.
Mr Nobbs —To provide a separate element to that, in one of the first, if not the first, meeting I had with Minister Debus I proposed a heads-of-government plan that was collaboratively worked on to look at infrastructure planning for Norfolk Island program delivery potential legislative planned change and the fiscal relationship between Norfolk Island, and that is exactly what the Chief Minister is alluding to. If there is a clear path for those things, and particularly if there can be a collaboratively designed path, then it makes things a lot easier for us in understanding what the long-term purpose of the legislative change may be in this constitutional process in particular.
I want to add two things to that. For Norfolk Island there is a fine balancing act. I have said it before: we are very close to a complete solution of being able to manage revenues, legislation, program delivery and things like that. When significant change like this is proposed it really makes us question what the outcome will be in that balance. One element of our economic balancing is the low regulatory environment, so we are particularly mindful of not just whether this legislation will incur further restriction or further resource requirements but how it will affect the overall economy and community.
CHAIR —I am interested in what seems to me to be a bit of a contradiction or a dichotomy in the proposals. On the one hand, we have heard evidence this morning, from the Norfolk Island assembly’s perspective, of lack of due attention to the complexities and reform processes in discussions between the Commonwealth and the Norfolk Island assembly and, on the other hand, the accusation by the Commonwealth of wanting to be too involved. It seems to me, and I would be interested in your response to this, that, despite the seemingly prescriptive nature of some of these changes, the general flavour of the Commonwealth’s relationship with Norfolk Island is not to come in and crawl all over your business. In fact it is the opposite; it is not getting due attention.
So how do you reconcile your concern about what you are interpreting as an encroachment on the rights and responsibilities of the Norfolk Island assembly in the undertaking of your business and the custom of practice, which I think you have acknowledged this morning, which is that the Commonwealth, in your view, is guilty of not paying Norfolk Island enough attention? Could it be the case that some of your concerns about these reforms are overstated, given that the custom of practice of the Commonwealth is not, for want of a better term, to crawl all over Norfolk Island business but rather a gesture to try and increase capacity on island in areas like financial management and public systems like FOI, administrative reviews and so forth?
Mr Nobbs —I will leap in for one second, before the Chief Minister, because I am sure he will have quite a deal to say on that. You will find within our submission that there is a suggestion for a working group. There have been ongoing suggestions for working groups to collaboratively come out with outcomes that satisfy the Commonwealth in terms of what they see as Norfolk’s requirements and that satisfy the community in being mechanisms which can be delivered effectively and which are warranted within the island.
Mr Buffett —I think I can see that you may see some inconsistencies. I am trying hard with that.
CHAIR —Can I preface your response by saying that this offer of working groups and the dedication of quite considerable human resource, from both Norfolk Island and indeed the Commonwealth, has not come to pass. What has come to pass is a bill that is quite tight in what it proposes. So I put to you that the Commonwealth is reinforcing its point that it does not want to insert itself into Norfolk Island business. It wants to provide a supporting framework for you on Norfolk Island to continue to do what you do.
Mr Buffett —Yes. Do you consider that the provisions in this bill are not really ‘crawling all over us’, to use your words? This bill, really, talks about major constitutional change. It talks about whether it can dismiss this group. It talks about taking powers away and putting them into the hands of a Commonwealth minister. I am battling a little to see that that is not rather ‘crawling all over us’. And if they were to do that, notwithstanding, I would have thought that, to use your point of view, not wanting to encroach too much, they would have become a great deal more informed about how things tick here before they proposed something of this nature. The provisions of this bill must have been, clearly, prepared in isolation from this place. People who came here were not equipped. They spoke with our officers and with us briefly. The briefness was part of the difficulty. But even in that brief time it could be clearly seen that they did not have a grasp of how things operated here.
I see what you are saying. Nevertheless, this is very much encroaching upon us, and if they want to do that then they should be better equipped to do that. Even if they do want to stand afar they must be better equipped, and they would certainly need to give better time frames. That has not been demonstrated at all—quite the opposite. It was two days and seven days in terms of a consultative process for the first, and then giving another seven-day time frame for people to comment. Even the time frame for commenting on this particular bill is very short. Again, these are not inconsequential matters. They are significant constitutional matters for this place, small though we are.
I am not convinced, at this stage anyhow, that they want to have a hands-off arrangement. These are proposals for hands on. I might just point out to you that there are existing provisions in the Norfolk Island Act for a hands-off approach. The Commonwealth has existing provision to disallow Norfolk Island legislation. It is a bit more lengthy than that provided in this particular piece of legislation but it exists.
The Commonwealth can disallow any of our legislation, if it so wishes. So it can do the sum of these things here. But there are two points to make about that. It is maybe a bit more lengthy but, in being more lengthy, it is more accountable—and that is what the Commonwealth seems to be on about here. This is not accountable in the same way that the other is. But the real thing is that the provision that exists has been in existence for the 30 years that we have been in existence, and it has never been used. If in fact it has never been used in that time frame, where is the need for this, which is more intrusive than the other? We have accepted that the other is in place, for a safeguard situation, but this is going the next step, which really moves into the ‘intrusive’ category and is not to our liking. Does that help the process?
CHAIR —Yes, it does. Thank you for responding to my question. If this bill were to pass in its current form—
Mr Buffett —Oh dear!
CHAIR —I understand that you would not be happy about that. But what would you be asking of the Commonwealth in terms of the level of attention required for Norfolk Island to establish what you would consider the appropriate type of collaborative arrangement? What do you want that relationship to look like?
Mr Buffett —What confidence does it give us, if this bill is passed, to enter into some collaborative arrangement?
CHAIR —Well, I am asking you.
Mr Buffett —It does not give us any confidence whatsoever.
CHAIR —So you would not—
Mr Buffett —We would need to try and do whatever we could. Our focus is to try and get some semblance of balance and sanity into the present situation.
CHAIR —You have made that very clear through your evidence. As far as the major points you have made during your submission this morning, I think you have made it extremely clear what the view of the Norfolk Island assembly is. I would like to invite my colleagues—
Mr Buffett —And the reasoning behind our views.
CHAIR —I am mindful of the time, so I would like to ask my colleagues for any final questions. And then I will invite you, Chief Minister, or any of your colleagues, to make a summing-up or closing statement.
Senator FERGUSON —I want to raise one issue, because in talking about governance, the restructuring of legislatures and those sorts of things, we seem to have glossed over the financial considerations in this bill—although Andre did raise them in relation to revenues and other things. As a general question, how confident are you, without any changes whatsoever, in the financial viability of the Norfolk Island government?
Mr Buffett —We are in difficult financial circumstances; there is no gloss on that at all. We do not have capacity to meet some of the needs within the community at this time. But, having said that, I think it is fair to say that Norfolk Island does not have the same capacity to fund itself that may be seen in some other quarters. For example, Norfolk Island is not able to borrow funds without the approval of the Commonwealth. The Commonwealth has declined approaches for the Norfolk Island government to borrow in the present climate—and you will know that, in the present climate, most governments are entering into significant financial assistance arrangements, including borrowing arrangements. This has hampered the Norfolk Island government in being able to have a more sound financial arrangement than would be normal. It does have assets—not necessarily cash assets—but it is not able to offer those as security to gain cash in the present climate.
The principal industry of this place is tourism, and that too has declined. The government is making greater effort to ensure that we have a greater share of people coming to the place, which means that we import dollars more. That is important to us and it is practical to achieve—not easy to achieve, but practical to achieve.
But in summary, we are in an uneasy financial situation. We are able to cope in the financial situation—although not without difficulty—and we are confident of survival. But we have been declined assistance by the Commonwealth, as far as we have been able to see at this time, on our own account in terms of trying to generate funds locally, and, whilst this is not an issue for today, the Commonwealth has declined some financial assistance also in some other areas. My government has not been involved in that process but I understand that to be the case from an earlier time, so I need to make that clear.
But it must be said also—having made that reasonably frank response to you—that so are other governments in most other places in this economic difficulty around the world. Whether they share our same confidence about being able to survive is not for me to answer. But without a doubt this place can survive and will. This place has been through huge difficulties over generations, small though it is, isolated though it is. But we are still here and we are confident we will be here into the future.
Mr Sheridan —I have a question for Senator Alan Ferguson. Just to reverse your question: if this bill were to go through in its financial aspects, how would that make Norfolk Island more sustainable?
CHAIR —I think that is a more appropriate question for the minister and we will be happy to pass it on to him.
Senator FERGUSON —It is a fair question, but the bill has been devised by the minister and the minister’s department and they are responsible for providing those sorts of answers. We will question the department, I can promise you.
Mr Sheridan —This is why you can see our hesitancy in accepting the recommendations in this bill, because the detail is not there. We do not know how it will enable Norfolk Island to be more sustainable and whether it will be a benefit to us. We do not know, and this is why we are hesitant about accepting it.
Senator FERGUSON —The government has an overarching responsibility to you all. Most of you are Australian citizens so it does have an overarching responsibility and is aware of that. It is not an ‘us versus them’ situation. We regard you in the same way we regard ourselves. Kate is a Territorian; she comes from the Australian Capital Territory. The Northern Territorians feel the same way as well. We are all Australian citizens and so governments of both political persuasions in Australia do not do anything or propose anything for Norfolk Island with ill will. It is proposed with goodwill. If it is wrong then we can discuss it, because they may not have the right answers. But you need to understand that it is done with the best of intentions.
Mr Sheridan —That is fine but we would just like to know the intentions.
Senator FERGUSON —We do understand that.
CHAIR —I think the point that the Chief Minister made earlier too about getting a much better understanding of what the Commonwealth’s intentions are in the context of this bill is something that is very important both to the government of Norfolk Island and the people of Norfolk Island. Mr Snell, do you want to say something?
Mr Snell —Yes, please. Firstly, I would like to mention that at an early hour this morning I was notified that I may have a timeslot at 10.30 this morning to address the committee.
CHAIR —Yes, that is correct.
Mr Snell —I no longer wish to partake of that time, if you do not mind.
CHAIR —That’s fine. We will be able to have a tea break now.
Mr Snell —That is a good idea. What I would like to do now is make a short statement at this time to reiterate and confirm my support for the submission that has been lodged here on behalf of the government.
CHAIR —Please proceed.
Mr Snell —Thank you. I would also like to state that the concern of my constituents is that the passage of this proposed law will have a great deal of impact on some of them and on most of the island. One of the great questions that have been asked of me is the justification for such a change to the Norfolk Island Act and for the new arrangements, particularly in the offices of the administrator. To give the administrator veto powers over schedule 2 is totally unacceptable, and the appointment of deputies in such manners as have been suggested tends to make quite a farcical situation of this whole matter. I cannot elaborate too much more on the unfairness of the proposed Territories Law Reform Bill other than what has been suggested here this morning. I just want to reiterate my total opposition to it. Thank you.
CHAIR —Thank you for that. I invite any other members of the Norfolk Island assembly to make a statement.
Ms Griffiths —One of the things that we have discussed often this morning is the relationship between Norfolk and Australia. You have stated that you come with the best will, and we appreciate that. I think that the proposal the legislative assembly has put forward that there be a working group formed should not so much look at the passage of this bill, which I believe does need to be deferred, but to begin working on defining how the Commonwealth and Norfolk Island government interact.
I think one of the greatest shortfalls of Norfolk and the Commonwealth of Australia is a vision on where Norfolk is planning to go. There have been a number of plans done that are very short term and very short in scope. I think that there is an opportunity here today to look at how our relationship proceeds. Where do we both see Norfolk Island in 20 years time? What are the responsibilities of each party to achieve what is in the plan? What legislative reforms need to be done by the Commonwealth or Norfolk? Where is there potential to access finance, to generate revenue or to better report on our accounts? It is an opportunity to look at the relationship between the Commonwealth of Australia and Norfolk Island from its very core. That is probably the best thing that we can do at this point in time and at this stage of this Legislative Assembly, which is in its infancy. Thank you.
Ms Adams —I have quite deliberately not entered into the discussion this morning, because I am under another hat, talking to the committee at 11 o’clock this morning. I would like to record for the record my absolute support for the submission by the Norfolk Island parliament. Thank you.
CHAIR —Chief Minister, I invite you to make a closing statement before we break for morning tea.
Mr Buffett —I think there are really no further things to be said on our part except to reinforce those things that have already been said by us all this morning. Thank you for the opportunity to speak, to speak promptly upon your arrival and for your consideration in making this early time available to us all. This document is voluminous, yes—some of it is reference material—but really the recommendations and the conclusions are the important components to be absorbed after the other deliberations on the balance. I take seriously your encouragement to communicate further upon the long-term plans of the Commonwealth and, if you are able as a committee to give encouragement to that process on the part of the Commonwealth, I think that would be beneficial to this place. Thank you to you all for your courtesy this morning.
CHAIR —Thank you very much and thank you to all members of the Norfolk Island assembly. We greatly appreciate your attendance here today. If you would like to provide additional information or further thoughts based on discussions this morning, I invite you to do so and encourage you to forward it to the secretariat by the 16th of this month if possible. Thank you for attending. This is a very important part of the process for us, and we are very pleased to be here as a committee to hear what you have to say.
Proceedings suspended from 10.25 am to 11.00 am