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Norfolk Island Amendment Bill 1999
Bills Digest No. 11 1999-2000
Norfolk Island Amendment Bill 1999
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. Othe r sources should be consulted to determine the subsequent official status of the Bill.
Norfolk Island Amendment Bill 1999
The Norfolk Island Amendment Bill 1999 ('the Bill') has 6 purposes:
- to require candidates for future elections to the Norfolk Island Legislative Assembly to hold Australian citizenship,
- to add Australian citizenship to the requirements for future enrolments on the electoral roll, while relaxing the residency requirement
- to move 'firearms and ammunition' from Schedule 2 to Schedule 3 of the Norfolk Island Act 1979 ('the Principal Act'), thereby permitting the Commonwealth Minister to veto legislation passed by the Legislative Assembly about those matters
- to provide for the Deputy Administrator of Norfolk Island to be appointed by the Commonwealth Minister responsible for External Territories, rather than by the Governor-General
- to remove gender-specific language from the Principal Act
- to make minor grammatical amendments to the Principal Act.
Some on Norfolk Island dispute that it is part of the Commonwealth of Australia. The High Court found to the contrary in 1976,(1) but the assertion persists in part because the constitutional status and history of the Island is complex and unusual.
In brief,(2) the Island was unoccupied when mapped by Captain Cook in 1774, although evidence apparently exists of earlier Polynesian occupation. It was twice occupied by the British and used as a penal colony, in the periods 1788-1814 and 1825-1855. In 1856, descendants of Bounty mutineers who had intermarried with Polynesian islanders agreed with the British Government to move from Pitcairn Island to Norfolk Island. Between 1856 and 1897, Norfolk Island was a separate British colony with its own Governor, who was also the Governor of New South Wales. In 1897 the British Crown transferred administrative responsibility for Norfolk Island to the Governor of the colony of New South Wales, an arrangement continued in 1900 with the Governor of the new State of New South Wales. By combined British and Australian action in 1913 and 1914 the Island became a Territory under the authority of the Commonwealth of Australia.
A distinct history combined with distance from the Australian mainland has generated a strong sense of local identity on the Island. Reaction to the Bill on Norfolk Island has been strong, most of it adverse and consistent with the Island's 'rich history o f civilised disputation with faraway rulers'.(3) While the Commonwealth has depicted the Bill as variously necessary or convenient from the national point of view, opponents on Norfolk Island have treated it as paternalistic and a threat to progress towards self-government. Much of the controversy over the Bill thus reflects the contested nature of Norfolk Island's relationship to the Commonwealth of Australia.
In the mid-1970s the Commonwealth held a Royal Commission int o the future status of Norfolk Island, chaired by Sir John Nimmo. The Fraser Government responded by committing itself to a form of self government for the Island and in 1979 the Principal Act was passed by the Commonwealth Parliament. The Principal Act functions as a quasi-constitutional document, setting out the institutions of legislative, executive and judicial power for the Island.
The Territory is administered by the Administrator, appointed by the Governor-General (effectively the Commonwealth Government). In forming certain opinions required under the Act, the Administrator must rely on his or her own judgement. In all other respects, the Administrator acts on advice. That advice comes from a variety of sources depending on the category of matter involved. In some instances, the Administrator is the senior representative of the Commonwealth on the Island, acting on the advice of the Minister for Territories. In other situations, the Administrator fills a role akin to the vice-regal function of a State Governor, acting on the advice of the Norfolk Island Executive Council or Legislative Assembly (both discussed immediately below). Finally, in some situations the Administrator refers matters to the Governor-General, who in turn acts on the advice of the Commonwealth Government.
The Principal Act creates an Executive Council 'to advise the Administrator on all matters relating to the government of the Territory'. Members of the executive are appointed from the Legislative Assembly by members of the Assembly, and have authority over matters listed in Schedules 2 and 3 of the Principal Act. There are 4 Ministers of the Norfolk Island Government .
The Principal Act also invests the Legislative Assembly of Norfolk Island with the power 'to make laws for the peace, order and good government of the Territory', subject to assent by the Administrator or the Governor-General as the case may be. There are 9 members of the Norfolk Island Legislative Assembly, elected from the Island voting as a single electorate numbering between 950 and 1200 people. Voting is compulsory and the franchise is available under a local law to those over 18 years old who meet a residency requirement, whether Australian citizens or not.(4) While the right to vote is subject to local law, the right to stand for election is governed by Commonwealth legislation. Candidates for election to the Assembly must have been ordinarily resident on the Island for 5 years prior to nomination. Citizenship of Australia is not a requirement and it was recently suggested that 3 members of the current Assembly are not Australian citizens, including the Chief Minister.(5) There are reportedly no formal party groupings in the Assembly.
The legislative power of the Assembly is plenary (with four defined exceptions),(6) but the conditions attaching to assent as well as other forms of overriding legislative authority mean that the Commonwealth retains a significant influence over the laws enacted to apply in Norfolk Island. Laws about matters listed in Schedule 2 are at the heart of Norfolk Island self-government, because the Administrator assents or not to such laws on the advice of the Executive Council (the Norfolk Island Government). Schedule 3 to the Principal Act lists a smaller range of topics which in 1979 the Commonwealth Minister described as 'matters of particular sensitivity or national importance'.(7) Regarding assent to Schedule 3 laws, the Administrator appears again to act on the advice of the Executive Council, but importantly is subject to over-riding instructions from the Commonwealth Minister. Where a law relates to a matter in neither Schedule 2 nor 3, the Administrator reserves the law for the attention of the Governor-General (who will act on the advice of the Commonwealth Government). The Governor-General also has the power to make ordinances for the Island and to introduce legislation into the Assembly, although apparently this power has not been exercised since 1979. Finally the Commonwealth Parliament has the power to make laws which apply in Norfolk Island, but only if an Act expressly says so.
The Principal Act preserved the already-established Supreme Court of Norfolk Island as the seat of judicial power on the Island.
In its submission to the Senate Legal and Constitutional Legislation Committee (SLCLC) inquiry into the Bill, the Norfolk Island Government ('NIG') provided citizenship statistics from the Census of Population and Housing conducted by the Administration of Norfolk Island on 6 August 1996. It found that 81% of the permanently resident population held Australian citizenship, 16% held New Zealand citizenship and less than 2% each held UK and other citizenship respectively. Amongst the temporarily resident population it found a higher proportion of New Zealanders (25%), with 68% holding Australian citizenship. The NIG submitted that up to 20% of Island residents of Pitcairn descent were born in New Zealand, 'for medical or other reasons'.(8)
Following the murder of 35 people by a lone gunman at Port Arthur, Tasmania a meeting of Commonwealth, State and Territory Police Ministers was held in May 1996. Agreement was reached on a national scheme for firearms ownership, use and storage, which included wide prohibitions and restrictions as well as national standards for licensing and registration.
The agreement also provided for an amnesty period and buyback scheme to encourage firearms owners and dealers to surrender prohibited weapons. The Commonwealth agreed to meet the costs of compensation and administration under the agreement, funded by a one-off increase in the Medicare levy. After May 1996, the Commonwealth, States and Territories proceeded to pass legislation and effect necessary administrative changes.
The National Firearms Program Implementation Act 1998 (Cth) extended the firearms buyback scheme to the External Territories of Norfolk Island, Cocos (Keeling) Islands and Christmas Island.
According to the submission made by the Norfolk Island Government ('NIG') to the SLCLC, a Firearms Bill was introduced into the Norfolk Island Legislative Assembly in 1996 and then, after an election, it was reintroduced as the Firearms Bill 1997. Negotiations ensued between the Commonwealth and the NIG, and the Bill was assented to in October 1997, in circumstances described by the NIG in the following terms:
the NIG took the view, after consultation with the Administrator, that it would be irresponsible to permit the obsolete and grossly deficient 1958 legislation to remain in force indefinitely whilst fine-tuning of the 1997 Bill occurred, that the Bill (which was on the cusp of passage by the Assembly) should therefore be enacted, and that remaining divergences from the national scheme should be addressed afterwards. A further consideration was that semi-automatic firearms had been prohibited imports since as long ago as 1983, and remained so. The Bill was accordingly assented to in October 1997.(9)
An amending Bill was introduced in the Legislative Assembly in 1998 following further discussions with the Commonwealth, but appears to have been initially defeated in November. In December 1998, regulations were made under the Firearms Act 1997 (Norfolk Island) and then in March 1999, amendments to the Act successfully passed the Assembly and were assented to on 25 March 1999. The Commonwealth Bill dealt with in this Digest was introduced into the Senate 6 days later.
One witness from Norfolk Island who supported the Bill asserted that there was the equivalent of one registered gun to each person on the Island and many more unregistered firearms, although he said it was 'not possible to verify these figures'.(10) A witness from the Commonwealth Attorney-General's Department said she was aware:
that there would be anecdotally that level of gun ownership…There is at least one very large collection on the island…yes, I am aware that there is a high level of gun ownership.(11)
In October 1997 the responsible NIG Minister wrote to the Commonwealth and said:
There has not, to my knowledge, been a single incident since the Pitcairn Islanders arrived here in 1856, of violence or robbery involving use of a firearm. There is no ability to export semi-automatic rifles from Norfolk Island, nor to import them into Norfolk Island, nor to sell or transfer them in Norfolk Island.(12)
The witness for the Commonwealth quoted above conceded that:
there is no more concern about unlawful use of firearms on Norfolk Island than in any other Australian jurisdiction. In fact, I think that we have to put that in the context of what is really quite a low crime level on Norfolk Island.(13)
The operative amendments are contained in Schedule 1 of the Bill, which contains amendments to the Principal Act.
The Deputy Administrator of Norfolk Island holds what is know n as a 'dormant commission'. An individual, conventionally a relatively junior Commonwealth public servant, is appointed once to fill the position from time to time as the need arises, when necessary duties can be fulfilled neither by an Administrator nor by an Acting Administrator. At present, the Deputy Administrator is appointed by Commission by the Governor-General, thereby entailing the involvement of the Cabinet and Executive Council. Item 1 of Schedule 1 would permit instead the Commonwealth Minister to appoint the Deputy Administrator by written instrument.
The Deputy Administrator currently takes an oath or affirmation before any one of a defined list of individuals including the Governor-General or the Governor-General's appointee. That list will remain the same except that item 3 means that it will now include the Minister or the Minister's appointee, and not include the Governor-General and his or her appointee. Item 2 is consequential on item 3.
Sec tion 38 of the Principal Act presently sets out the eligibility requirements which candidates for election to the Norfolk Island Legislative Assembly must meet at the time of nomination. In its original form, as passed in 1979, the Principal Act additionally required that candidates be an Australian citizen or otherwise have the status of a British subject. This additional requirement was removed by the Commonwealth Parliament by amendment in 1985. Item 5 will reintroduce a requirement that in future candidates be Australian citizens, although this time there is no additional eligibility as a British subject.
Once elected, a member of the Legislative Assembly is subject to disqualification on a number of grounds, which are set out in section 39 of the Principal Act. Consistent with the policy intent of item 5, item 7 will see a member's office become vacant if he or she ceases to be an Australian citizen.
Item 8 clarifies that item 7 will not prejudice a member's term of office already underway when item 7 commences, if they are not or cease to be an Australian citizen, but it will operate to disqualify members who are not Australian citizens from the next election onwards.
At present, the Principa l Act does not prescribe the eligibility requirements for a person's name to be entered on the Norfolk Island electoral roll. Local legislation passed by the Norfolk Island Legislative Assembly, the Legislative Assembly Act 1979 (Norfolk Island), requires a prescribed period of presence on the Island in the period leading up to attempted enrolment (and re-enrolment upon return to the Island after an absence or after serving a term of imprisonment). Item 9 (consisting of proposed sections 39A-39D ) will incorporate but also to some extent contradict and over-rule that local legislation.
Proposed section 39A requires that a person seeking enrolment be at least 18, an Australian citizen and 'ordinarily resident' on Norfolk Island in the previous 6 months. Re-enrolment after an absence from the Island or imprisonment for at least a year is possible, if the person is an Australian citizen and was present on the Island for 150 of the last 240 days prior to enrolment. A person under imprisonment for one year or longer for a Commonwealth, State or Territory offence cannot enrol during their period of imprisonment. A person who ceases to be an Australian citizen after commencement of item 9 must be removed from the roll (see proposed section 39C ).
Enrolment permits a person to vote at Legislative Assembly elections (see proposed section 39B ).
The voting rights of those already on the roll (and who for example may not be Australian citizens) are preserved by item 10 which says the eligibility requirements will only apply to enrolment applications made after commencement of item 9. The effect of item 10 on proposed section 39C , however, is ambiguous. Will an Australian citizen already enrolled when item 9 commences lose their enrolment if he or she subsequently ceases to be an Australian citizen?
As noted in the Background to this Digest, the Norfolk Island Legislative Assembly was granted the power(14) to make laws for the peace, order and good government of Norfolk Island subject to certain restrictions set out in the Principal Act. The conditional or partial form of self-government granted to Norfolk Island under the Principal Act found expression, amongst other things, in section 21 which sets out on whose advice and instructions the Administrator of Norfolk Island must act when considering whether to give assent to laws passed by the Legislative Assembly. If the law relates to a Schedule 2 matter, the Administrator must act on the advice of the Norfolk Island Government. If the law involves a Schedule 3 matter the Commonwealth Minister can issue over-riding instructions to the Administrator. Schedule 2 sets out a list of 93 matters (42 when the Principal Act was passed in 1979), while Schedule 3 lists 10 matters (up from 4 in 1979).
Items 11 and 12 remove 'firearms' and 'ammunition' from Schedule 2 and item 13 adds them to Schedule 3. This gives the Commonwealth Minister direct leverage over the laws passed by the Assembly dealing with firearms and ammunition, a matter which has assumed significance in the wake of the Port Arthur murders in April 1996 and consequent changes to Commonwealth legislation and policies designed to achieve uniform national standards.
There appears to be a difference of interpretation between the Commonwealth and the Norfolk Island Government as to whether, in the absence of instructions from the Commonwealth Minister about a Schedule 3 law, the Administrator simply acts on the advice of the Norfolk Island Government or must first seek instructions from the Commonwealth before assenting or withholding assent to legislation.(15)
Items 4 and 6 are minor grammatical amendments.
Items 14 to 17 replace the masculine pronoun with gender-neutral language.
These Concluding Comments will deal in turn with the citizenship and residency proposals f or enrolment and entitlement to stand as a candidate for the Legislative Assembly, as well as the proposed changes regarding firearms legislation and the Deputy Administrator. The same vein of controversy, however, runs through each issue and it is that recurrent theme which is dealt with here first.
That theme can be summarised as a dispute over the boundary between local autonomy and national standards.(16) Expressed that way, it is a well-recognised source of political argument in Australia, given its federal structure and extremely large landmass. Resentment at 'interference by Canberra' in 'the way things are done around here' is a familiar refrain, particularly the further one travels from the Australian Capital Territory. The same dispute frequently arises in indigenous affairs. The distinctive history of Norfolk Island, going right back to the mutiny on the Bounty, as well as its particular geographic isolation as an island 1500 kilometres from the east coast of the Australian mainland has contributed to a fairly intense localism evident in the NIG's dealings with the Commonwealth. Commonwealth agencies, themselves, seem quite ready to concede that Norfolk Island is appropriately described as 'unique'.(17)
Leaving aside an undercurrent of secessionist sentiment which has occasionally surfaced but which the Deputy Speaker of the Legislative Assembly, for example, sought to downplay to the SLCLC as a minority view,(18) the debate over the Bill so far has centred around the legitimate boundaries of self government for this unique polity within the context of a continuing constitutional relationship with Australia.
The NIG places heavy emphasis on the theme of continuous devolution and steady progress to full self government which it identifies as being at the heart of the Principal Act. For example, it points to Minister Ellicott's Second Reading Speech when the Pri ncipal Act was introduced into the Commonwealth Parliament in 1978:
This Bill…will confer on the Island residents the opportunity to become increasingly involved in their own affairs…The Government intends to review these arrangements over the next five years and to increase the scope of the Legislative Assembly's powers as may be appropriate.(19)
In its submission to the SLCLC, the NIG says that 65 years of Commonwealth administration left large areas of social policy untended (such as social security, wor kers' compensation, planning and environment regulation, revenue raising and criminal justice) whereas considerable progress has been made by the Legislative Assembly on all these fronts since 1979:
The Norfolk Island Government believes this shows that, by and large, self-government is likely to be good government. Certainly it is to be preferred to faltering attempts by the unelected to cope with complex issues by means of a form of remote control.(20)
Instead of progressive devolution, the NIG sees the B ill, however, as evidence of regression to central control, a 'confrontational and provocative'(21) course of action pursued by an administration in Canberra insensitive to the needs and aspirations of Norfolk Islanders:
The amendments, if passed, will damage self-government. They will adversely affect the Island's self-identity, and lead to a wholly unnecessary dispute over the Island's fundamental status. They will result in the disenfranchisement of a significant minority of the population. They will also achieve Departmental ideological and administrative objectives, which have been nursed in bureaucratic recesses over the years.(22)
As evidence of a shift away from devolution within the Commonwealth, the NIG asserts that:
- all electoral legislation (inc luding the abolition of a citizenship requirement for enrolment in 1985) has either been introduced or assented to by successive Commonwealth Governments but features of the local franchise are now described as 'anomalies'
- the present Bill is 'the first occasion since 1979 on which unwanted, unwarranted and provocative amendments to the Island's governing instrument…have been introduced into the Federal Parliament',(23) and
- the Commonwealth has shown summary disregard for successive results in referenda held on the Island regarding proposed electoral changes by the Commonwealth.
Attempts by the Commonwealth to justify measures by reference to other External Territories are typically regarded as a bureaucratic reflex response betraying an intolerance or di sregard for relevant difference.
The NIG submission to the SLCLC goes beyond criticism of the Bill and proposes, instead, a strategy designed to achieve its objective of further devolution and enhanced self-government. It is also noteworthy that following the 12 May 1999 referendum on electoral changes which registered a 71% 'No' vote (discussed further below), the Senate called on the Government 'to enter into formal negotiations with the Government of Norfolk Island in view of the referendum result'.(24)
The issue of process has also attracted controversy. The NIG has referred to the 'antagonism' created by Commonwealth decisions to act without consultation.(25) In particular, they said that despite extensive contact over other elements of the Bill there was no consultation over the proposal regarding the Deputy Administrator before the decision was announced in a letter sent the month before the Bill's introduction.(26) Similarly, after the demise of an earlier proposal to include citizenship as a requirement of the franchise, there was no consultation prior to a Cabinet decision in 1998 to revive the measure. The Norfolk Island Government has commented:
Given the controversial previous history of the proposal, this is surprising.(27)
The Commonwealth Gra nts Commission, reporting on Norfolk Island in late 1997, acknowledged that:
In general, it can be said that, with the exception of the Territories Office, Commonwealth agencies do not give sufficient thought to Norfolk, the third self governing Territory in the Commonwealth, and it is often considered, if at all, either by implication or as an afterthought…
The Territories Office have little contact with the Members of the Norfolk Island Assembly and tend to work through the Administrator and a small number of Norfolk Island's senior public servants. While the Territories Office staff cannot always express a Commonwealth Government opinion, we think there would be benefits if they could have a more open approach in their dealings with the people on Norfolk Island. On the Island's part, there may well be unrealistic expectations of what is feasible or what degree of priority can be given by the Commonwealth to Norfolk Island issues. For whatever reason, there is evidently a fair amount of mistrust on both sides and it is making the administration of the Island more difficult than it need be.(28)
In its main findings, the Grants Commission noted the 'need for improved communication between the Commonwealth and Norfolk Island Governments'.(29)
The Commonwealth Government's position on the appropriate degree of self government for Norfo lk Island is not dealt with in the Explanatory Memorandum, and is referred to only briefly in the Second Reading Speech where it says the Principal Act introduced 'a form of self-government' and:
By way of comparison, the Norfolk Island model of self-government is broadly similar to that of the Northern Territory.(30)
The most detailed exposition of the Commonwealth's position is found in the Minister's response to the Senate Standing Committee for the Scrutiny of Bills, where he made the following points:
- like other External and mainland Territories, Norfolk Island will remain an integral part of the Commonwealth of Australia
- the Commonwealth Government 'remains open to realistic proposals' from the NIG for the enhancement of internal self government, subje ct to improvements in revenue raising.(31)
A major pillar of the Commonwealth's argument for the citizenship requirement in relation to elections is equality across the Commonwealth. It has promoted the combined citizenship/residency proposal for the franc hise as giving Australian citizens the same electoral rights they enjoy in every other jurisdiction, and justified the phasing out of non-citizen voting by asserting that Norfolk Island is the only State or Territory legislature where non-Australian citizens are entitled to vote and stand for election. In dismissing the relevance of local referenda on electoral changes, the Minister has said that:
The rights of Australian citizens are national issues for determination by the Federal Parliament, not the subject of local plebiscites by small community groupings, especially where (a) not all resident Australians are permitted to vote and (b) non citizen residents can vote on an essentially national issue.(32)
It may be noted that there is some support for the C ommonwealth's proposals amongst Norfolk Island residents, and more generally shades of opinion which place much greater emphasis on the constitutional integration of the Island into the Commonwealth of Australia. One witness before the SLCLC inquiry suggested that hostility to 'Canberra' may stem from more than a hankering for political autonomy:
I wonder whether it was the independence movement or when the Commonwealth, and rightly so, stepped in and stopped the tax avoidance and the bottom-of-the-harbour schemes. We still have members who operated those schemes as residents on the island, and some of them are violently anti-Australian. As a matter of fact, some of them have been elected to the assembly over the years.(33)
Election results for the Legislati ve Assembly since 1979 and the outcomes of referenda on Commonwealth electoral proposals (despite some legitimate criticisms of the way questions have been framed) tend, however, to indicate that the preference for localism over centralism is quite widespread amongst long term Island residents.
This brief survey vindicates the NIG's submission that there exists 'a consistent tension between, on the one hand, a continuing Island effort to preserve the unique nature of the polity and, on the other, a continuing metropolitan endeavour to remove 'ano malies' by treating the Island as if it were an integral part of Australia'.(34)
Norfolk Island's compliance with the National Agreement on Firearms was canvassed at some length with witnesses appearing before the SLCLC inquiry into th e Bill, but it is difficult to discern precisely where matters stand at present. The Norfolk Island Government asserted that the Commonwealth Attorney-General's Department 'signed off' on the Island's amendments leaving 'a number of minor matters that still need to be included in the regulations to bring the current Norfolk Island legislation into line with the legislation as approved by the Commonwealth Attorney-General's (sic) in August 1998'. The NIG alleged that 'a raft of new issues' was then raised by the Commonwealth in April 1999 (after introduction of the Bill) which if they had been raised in April 1998 'would have been resolved by now'.(35) The Deputy Speaker of the Island's Assembly said that 'there is really no dispute between the Norfolk Island government and the Australian government'.(36)
Representatives of the Commonwealth agreed that while some of the outstanding differences are 'significant in the sense that they are necessary':
In terms of what needs to be done to remedy it, I think I would agree that they are minor.(37)
Category C firearms - semiautomatic weapons, of which there are 'quite a number on Norfolk Island at the moment' according to the Commonwealth - are apparently the major outstanding issue.(38) The responsible Commonwealth o fficial asserted that the Act passed in March 1999 and the regulations made in December 1998 were not the same as the laws 'ticked off' by the Commonwealth but was not able to elaborate on the differences and the NIG appeared to contradict this evidence.(39) The Commonwealth official disclaimed knowledge of why the two governments appeared to be in an impasse when the NIG had indicated a commitment to full compliance.(40)
In short, there appears to be some confusion over whether the remaining deficiencies in Norfolk Island firearms legislation had been brought to the NIG's attention before the Commonwealth signalled its intention on 25 March 1999 that the Bill would move firearms and ammunition to Schedule 3 of the Principal Act. If it had not, this would tend to undercut the Commonwealth's case for giving the Commonwealth Minister a direct veto over firearms legislation made on the Island and to vindicate the NIG's case that self government is being wound back. If it had, it would give some support to the Commonwealth's argument for greater leverage over this category of legislation.
It is worth noting that the firearms issue appears to have brought to the surface an important difference of opinion over the role of the NIG in relation to Schedule 3 matters. The Second Reading Speech to the Bill asserts that in considering assent to Schedule 3 laws, the Administrator must first obtain the instructions of the Commonwealth Minister for Territories.(41) It may be that this goes too far, and that in light of sections 7 and 21, the Administrator must act on the advice of the Executive Council of Norfolk Island, subject to over-riding instructions from the Commonwealth Minister if any are forthcoming . The NIG objects to the assertion in the Second Reading Speech, but itself may go too far in insisting that contrary instructions must 'first' arrive from the Commonwealth Minister.(42) The combined effect of sections 7 and 21 in relation to assent to Schedule 3 laws appears ambiguous.
By comparison with the detailed submission on this issue put to the SLCLC inquiry by the NIG, the Commonwealth has done little to set out on the public record the merits of its case for this proposal in the Bill. The Second Reading Speech and the Explan atory Memorandum make the same two points: 'the appointment of a comparatively junior Commonwealth officer to an essentially dormant commission does not warrant the attention of the Governor-General'(43) and appointment by the Territories Minister is consistent with the situation in the other two major External Territories, Christmas Island and Cocos (Keeling) Island.
The NIG opposes the amendment on both technical and broader political grounds. It says that in practice Acting Administrators - next in the hierarchy below the Administrator - are rarely appointed, so that in the absence of the Administrator it will freque ntly be the Deputy Administrator who 'has and may exercise and perform all the powers and functions of the Administrator',(44) and that on occasions this has been for as long as three and four month periods. Next, it says that the Administrator (and those acting in the position) must perform important functions, such as forming an opinion as to the characterisation of a law as coming within Schedule 2, 3 or neither. It thus questions what it sees as the implication by the Commonwealth that the office is of little significance.
The NIG challenges other aspects of the Commonwealth's case. It says no evidence of inconvenience arising from the appointment process has been demonstrated,(45) and notes that as a 'dormant commission' the appointment procedures need only be operated once for an individual to hold the office, which can then be activated and returned to dormancy as required - that is, it is not a matter of troubling the Governor-General and Executive Council every time a Deputy Administrator is required to act. The NIG also demonstrates that there is no uniformity of practice across Australia's Territories and asserts that the argument for consistency is therefore 'both pointless…and baseless'.(46) The NIG draws particular attention to the Northern Territory, which the Commonwealth itself has invoked as enjoying a broadly similar form of self government. The NIG says that the Northern Territory Government has a far greater say in the appointment of the Administrator and it is the Administrator who appoints the Deputy Administrator. It notes that the previous Commonwealth Government had foreshadowed a change to the Administrator's office including a greater local say over appointments.(47) To the NIG, the assumption of Ministerial control over appointments to the Deputy Administrator's position is incompatible with 'the longer term aim that such appointments should be devolved to the Norfolk Island Government in the process to achieve self-government'.(48) Finally the NIG notes that a precedent exists, in that consultation over Supreme Court judges takes place with the Executive Council by virtue of section 53 of the Principal Act.
The Commonwealth has indicated recently its view on the broader issues raised by the NIG submission:
Besides his vice regal activities the Administrator is the most senior Commonwealth representative in the Territory and discharges functions on behalf of the Commonwealth. It would be inappropriate for the Norfolk Island Government to participate directly in the appointment of the Norfolk Island Administrator.(49)
The electoral proposals in the Bill have generated the most controversy on Norfolk Island. In 1991 the House of Representatives Standing Co mmittee on Legal and Constitutional Affairs recommended that Australian citizenship be phased in as a requirement for voting and standing for election to the Legislative Assembly. That Committee considered that the residency requirement imposed by local law 'should remain unchanged'.(50) This Bill would propose the same form of phased-in citizenship requirements (the right to vote of currently enrolled non-Australian citizens to be preserved, with citizenship requirements for candidature to operate from the next election), but differs in that it would also significantly reduce and alter the residency requirement for enrolment.
The then Commonwealth Government pursued the citizenship issue with the NIG from October 1990 onwards, but it met vigorous opposition and the proposal did not proceed.(51) The NIG has also drawn attention to the fact that it was Commonwealth legislation which abolished citizenship requirements for membership of the Assembly in 1985(52) when references to 'British subjects' were being removed from various statutes (a like amendment was made by the Assembly to the local law governing enrolment). The Commonwealth's position now appears to be that the 1985 changes overshot the mark and created 'anomalies'. The NIG demonstrated however that at the time the Commonwealth clearly considered the alternatives of requiring Australian citizenship or abolishing a citizenship requirement altogether, and noted that the latter option 'would be consistent with the practice generally for local government, and perhaps better suited to Island circumstances'.(53) An adviser to the NIG put it this way:
The situation is that the Commonwealth has approved of every electoral law change in Norfolk Island that has ever been made. Not only that, it invited the present situation to come about in correspondence in 1984 and 1985 when it gave the very option to the Norfolk Island authorities, which was adopted, of the abolition of the citizenship requirement.(54)
The Main Arguments
The essence of the NIG argument is that a significant period of continuous residence on the Island is the appropriate threshold require ment, given Norfolk Island's distinctive character, and that Australian citizenship, given the long-term demographics of the Island, its geographical distance from the mainland and its highly developed form of self government, is not a relevant criterion. It also argues that the pool of eligible candidates for the Assembly, already small, will be significantly reduced. The NIG is also concerned that reducing the residency requirement for enrolment from 2 and a half years in the last 3, down to 6 months, will permit a number of transient Australian citizens to swamp a small electorate, as a constituency neither well versed in the distinctive ways of the Island nor committed to its long term interests.
The essence of the Commonwealth argument is one of equality across the Commonwealth. The Minister has written:
The aim of the legislation is to confer the same rights and responsibilities for voting on Australian citizens, ordinarily resident on Norfolk Island, as Australian citizens have elsewhere in Australia. While Norfolk Island enjoys a special role and form of self-governance, there is no reason why voting and electoral eligibility should be different to the rest of the nation.(55)
The NIG has responded to the equality argument by asserting that the franch ise in the Commonwealth of Australia, by requiring citizenship, necessitates a minimum 2 years residency in Australia in the last 5 years which it says is comparable to the Norfolk Island requirement of 2 years and 5 months in the last 4 years. In turn, the Commonwealth rejects this argument, arguing that it implies Australia is somehow a foreign country for citizenship purposes whereas the Australian Citizenship Act 1948 has applied in Norfolk Island since its commencement.
The other main argument put forward by the Commonwealth for the citizenship requirement is that it is 'a generally accepted tenet of representational government world wide, that the voters and elected representatives in a nation are citizens of the nation'.(56) In evidence to the SLCLC the NIG disputed this contention, claiming that its research through the Inter-Parliamentary Union revealed that:
no less than 18 countries identified by the IPU do not require national citizenship as a precondition for voting in parliamentary elections. These countries include the United Kingdom, New Zealand, the Netherlands, Argentina, Germany and Ireland.(57)
According to the NIG's submission on the Bill, the Commonwealth suggested in a letter in March 1998:
Any practical problems could be overcome by dual citizenship, '…since Australian law does not require a person to renounce any other citizenship on assuming Australian citizenship'. So far as New Zealanders were concerned, 'the New Zealand High Commission has confirmed that a New Zealand-born person who acquires Australian citizenship can retain his or her New Zealand citizenship'.(58)
The Minister had quoted, in the same letter, a Committee finding which talked, in the context of the Commonwealth Parliament of 'the need to ensure that the primary loya lty of a member…is to Australia and to prevent subversion by foreign governments'. The NIG has posed a powerful counter-argument to the suggested solution of taking out dual citizenship, which it said is 'contrary to the principles said to underly the measures proposed in the Bill':
if citizenship is required as a demonstration of commitment and allegiance, then what commitment is demonstrated by the holding of dual or multiple citizenship?(59)
In assessing the Norfolk Island Government's position on the ci tizenship issue, it is relevant that the current Chief Minister of the NIG is a New Zealand citizen, as are 2 of the other 8 Members of the Assembly, and, under the proposed changes, they would be ineligible for re-election unless they obtain Australian citizenship before the next poll. It is also relevant to note that the Chief Minister made no attempt to conceal this in evidence to the SLCLC and indeed volunteered the information.(60)
On the relaxation of the residency requirement for enrolment, the Commonwealth Minister has said that the qualifying period for enrolment on Norfolk Island 'far exceeds the one month that applies to the Commonwealth and in all States and Territories on the mainland. Tasmania has a qualifying period of 6 months'.(61) The NIG's position is that only those with a demonstrable long-term commitment to the Island should participate in its governance. It also objected on technical grounds that the expression 'ordinarily resident' which appears in proposed paragraph 39A(1)(c) is 'notoriously slippery' and had been rejected in the past by the Legislative Assembly in favour of a quantitative formula.(62)
Opinion on Norfolk Island
One submission from the Island suggest ed there had been 'very few complaints' against the current electoral system.(63) The 1991 report of the House of Representatives Standing Committee on Legal and Constitutional Affairs said that it had received 'some suggestions' that the qualifying period of residency was too long.(64) A recent letter to the local newspaper, The Norfolk Islander , from a Norfolk Island resident of Pitcairn descent who spent 22 years on the mainland working for the Defence Forces supported the introduction of a citizenship requirement and called for the the qualifying period to be significantly reduced.(65) One witness before the SLCLC inquiry, who was born on the Island in 1920 and supports the Bill, submitted that without a citizenship requirement, only two more non-citizen Members would create a majority of five who he claimed would:
have no allegiance whatsoever to Australia or are even perhaps hostile to Australia. Such a situation could have very serious repercussions in Australia as well as on Norfolk Island.(66)
The Ch ief Minister responded to this submission by saying that the movement for independence was not strong and the Deputy Speaker of the Assembly added that:
The vast majority of people in Norfolk Island want to do what we are doing now, and that is to move along this path to self government in which we look after own affairs and in which the Commonwealth does not conduct excursions such as the Norfolk Island Amendment Bill 1999 demonstrates…While these issues are around, they are not the main thrust.(67)
A numb er of individual submissions from the Island to the SLCLC inquiry echoed the NIG's opposition to the electoral measures, while two brief submissions were lodged, one with a number of signatories, in support of the Bill.
The NIG has been keen to stress that, while some support for the Bill exists on the Island, its own opposition to the Bill represents by far the weight of Island opinion. In particular it has stressed the outcome of successive referenda about electoral and constitutional issues conducted on the Island, twice in 1991 and then in August 1998 and May 1999. In the first three cases, what could loosely be called an anti-Commonwealth 'No' vote registered around 80%. Criticisms have been levelled at the way referendum questions have been worded, and they have some validity. The most recent referendum in May this year posed a far more specific question:
"Do you agree with the Australian Federal Government's proposal to alter the Norfolk Island Act so that
(1) people who have been ordinarily resident in the island for 6 (six) months will in future be entitled to enrol on the electoral roll for Legislative Assembly elections; and
(2) Australian citizenship will in future be required as a qualification to be elected to the Assembly, and as a qualification for people who in future apply for enrolment on the electoral roll for Assembly elections".
Three things can be said about this referendum. First, the question still combined two elements in one question, restricting the options of those whose views may h ave differed between parts 1 and 2. Second, at a time when a more specific question was posed in more neutral language, support for what might loosely be called the 'anti-Commonwealth' position dropped by a noticeable margin. Thirdly, however, the 'No' vote still exceeded 70% of the vote.
Third Party Opinion
The President of the Law Society of New South Wales wrote a brief submission to the SLCLC inquiry, which conveyed comments from Society officers 'experienced in constitutional and international law'. It said that the citizenship and res idency proposals appeared 'non-democratic in effect', apparently abridging minority rights at international law and diminishing the 'existing political and cultural rights of the Norfolk Islanders in seeking to preserve their heritage while striving to attain a sustainable form of self government'.(68)
Attention is drawn in the Main Provisions section of this Digest to an apparent ambiguity in Item 10 which may require clarification by amendment. One effect of item 9 appears to be that if a person who is currently an Australian citizen ceases to be one, their name will be removed from the electoral roll. Item 10, however, states that item 9 applies to a person who seeks enrolment after commencement of this Act. This could be interpreted as preserving the enrolment of a currently enrolled Australian citizen who later loses or renounces that citizenship.
It is not clear which outcome is intended.
1. Berwick Ltd v Gray (1976) 133 CLR 603.
2. This section draws mostly on historical summaries found in Commonwealth Grants Commission, Report on Norfolk Island , AGPS, 1997, pp. 14-16 and House of Representatives Standing Committee on Legal and Constitutional Affairs, Islands in the Sun. The Legal Regimes of Australia's External Territories and the Jervis Bay Territory , AGPS, 1991, section 7.3.
3. An article published in The Norfolk Islander of 24 April 1999 attributed this quote to 'a United Nations document more than 20 years ago'.
4. The qualifications for enrolment are set out in section 6 of the Legislative Assembly Act 1979 (Norfolk Island). The basic residency requirement is that a person has been present on the Island for 900 days in the last 4 years prior to seeking enrolment. For those seeking re-enrolment after disqualification (eg a period of absence from the Island), the requirement is 150 days in the previous 240.
5. Senate Legal and Constitutional Legislation Committee, Proof Committee Hansard , 5 July 1999, p. 7.
6. Subsection 19(2) of the Principal Act states that the power of the Legislative Assembly does not extend to the making of laws authorising the acquisition of property on other than just terms, euthanasia, the coining of money or the raising of a defence force.
7. The Hon. Robert Ellicott MP, Debates , House of Representatives, 23 November 1978, p. 3312, Second Reading Speech.
8. The Government of Norfolk Island ('NIG'), Submission No. 15 to Senate Legal and Constitutional Legislation Committee Inquiry into the Norfolk Island Amendment Bill 1999, pp. 23-25.
9. Ibid., p. 47.
10. Senate Legal and Constitutional Legislation Committee, Proof Committee Hansard , 5 July 1999, p. 12.
11. Ibid., p. 18.
12. NIG, op.cit., p. 48.
13. Senate Legal and Constitutional Legislation Committee, Proof Committee Hansard , 5 July 1999, p. 18.
14. Section 19 of the Norfolk Island Act 1979 ('the Principal Act').
15. See text at endnotes 41-42.
16. After reviewing the Island's constitutional history the NIG said: 'The common thread in this historical process has been a dynamism, or tension, arising from the equivocal nature of the Island's status. In general, mainland authorities have tended to espouse integration with Australian political units, whereas Islanders have consistently resisted such an approach. NIG, op.cit., p. 16.
17. See Commonwealth Grants Commission, op.cit., p. xiii and The Hon Alex Somlyay MP, Our Pacific Territories: Coalition Election Statement , Media Release, 30 September 1998 which both use the word 'unique'. See also House of Representatives Standing Committee on Legal and Constitutional Affairs, op.cit., para 1.4.32.
18. Senate Legal and Constitutional Legislation Committee, Proof Committee Hansard , 5 July 1999, pp. 22-23.
19. The Hon. Robert Ellicott MP, Debates , House of Representatives, 23 November 1978, p. 3311, Second Reading Speech.
20. NIG, op.cit., p. 3.
21. See Senate Standing Committee for the Scrutiny of Bills, Ninth Report of 1999 , 26 May 1999 which includes the text of representations from the NIG.
22. NIG, op.cit., p. iii.
24. Motion on Norfolk Island Referendum agreed to, Debates , Senate, 25 May 1999, p. 5306.
25. Senate Legal and Constitutional Legislation Committee, Proof Committee Hansard , 5 July 1999, p. 8.
26. NIG, op.cit., p. 33.
27. Ibid., p. 12.
28. Commonwealth Grants Commission, op.cit., p. 183.
29. Ibid., p. xvi.
30. Senator the Hon. Ian Macdonald, Debates , Senate, 31 March 1999, p. 3549, Second Reading Speech.
31. Senate Standing Committee for the Scrutiny of Bills, op.cit.
33. Senate Legal and Constitutional Legislation Committee, Proof Committee Hansard , 5 July 1999, p. 12.
34. NIG, op.cit., p. 21.
35. Senate Legal and Constitutional Legislation Committee, Proof Committee Hansard , 5 July 1999, p. 2.
36. Ibid., p. 4.
37. Ibid., p. 18.
39. Ibid., p. 19 and 24.
40. Ibid., p. 20.
41. Senator the Hon. Ian Macdonald, Debates , Senate, 31 March 1999, p. 3550, Second Reading Speech.
42. NIG, op.cit., p. 51.
43. Explanatory Memorandum, p. 3.
44. Subsection 9(2) of the Principal Act.
45. NIG, op.cit., p. 35.
46. Ibid., p. 36.
47. Ibid., p. 43.
48. Ibid., p. 34.
49. Question No. 717, Debates , Senate, 21 June 1999, p. 5889.
50. House of Representatives Standing Committee on Legal and Constitutional Affairs, op.cit., para 7.12.4.
51. NIG, op.cit., pp. 11-12.
52. Statute Law (Miscellaneous Provisions) Act (No. 1) 1985.
53. NIG, op.cit., p. 8.
54. Senate Legal and Constitutional Legislation Committee, Proof Committee Hansard , 5 July 1999, p. 27.
55. Australian Financial Review , 9 April 1999.
56. The Norfolk Islander , 8 May 1999.
57. Senate Legal and Constitutional Legislation Committee, Proof Committee Hansard , 5 July 1999, p. 1.
58. NIG, op.cit., p. 13.
59. Ibid., p. 24.
60. Senate Legal and Constitutional Legislation Committee, Proof Committee Hansard , 5 July 1999, p. 7.
61. Senator the Hon. Ian Macdonald, Debates , Senate, 31 March 1999, p. 3550, Second Reading Speech.
62. NIG, op.cit., p. 26.
63. Mr Geoff Bennett, Submission No. 10 to Senate Legal and Constitutional Legislation Committee Inquiry into the Norfolk Island Amendment Bill 1999, p. 2.
64. House of Representatives Standing Committee on Legal and Constitutional Affairs, op.cit., p. 221.
65. The Norfolk Islander , 3 April 1999.
66. Senate Legal and Constitutional Legislation Committee, Proof Committee Hansard , 5 July 1999, p. 12.
67. Ibid., p. 23.
68. President of the Law Society of New South Wales, Submission No. 11 to Senate Legal and Constitutional Legislation Committee Inquiry into the Norfolk Island Amendment Bill 1999.
27 July 1999
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