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Monday, 14 October 1991
Page: 1822

Mr KERR(3.57 p.m.) —-I am very pleased to have this opportunity to respond to the paper presented to the House by the Minister for the Arts, Sport, the Environment, Tourism and Territories (Mrs Kelly) in relation to the report of the Standing Committee on Legal and Constitutional Affairs on the legal regimes of the external territories entitled Islands in the Sun. The Government has agreed to implement a significant number of the recommendations contained in the report. It is particularly pleasing to note that the Government has indicated the need for reform of the legal regimes of Cocos (Keeling) Islands and Christmas Island.

As the Committee indicated in its report, the legal regimes of these Territories, both of which are inhabited, simply cannot be permitted to continue in their current form. It is particularly pleasing that the Government has responded in such a timely and energetic way to the recommendations that were made. The basic thrust of the recommendations in respect of both Cocos (Keeling) Islands and Christmas Island was that the inherited legal regime was simply unacceptable and that, essentially, the laws of Western Australia, as amended from time to time, be applied in those islands to replace the currently applied law, but that it be done with sensitivity to the local specific requirements of the islands' populations. In each instance the Government has responded extremely positively, undertaking to apply the Western Australian based legal regime by 1 July 1992, and building into the system of adoption of that law a system of consultation with the local people and an education program to provide local residents with information about their statutory rights and obligations as these developments occur. We are very pleased with the substantial response that the Minister has given to those very important recommendations.

It is, however, in relation to the response by the Government to certain aspects of the report dealing with Norfolk Island and the Jervis Bay territory that I wish to address my main comments today. That is not to say that they are the only points that ought to receive the attention of this House, because there are very important issues with respect to Ashmore and Cartier Islands and the Coral Sea island territories which I believe this report has properly brought into focus. In each case we have recommended that consideration be given to the incorporation of those territories within the adjacent mainland jurisdiction of the Northern Territory and Queensland respectively, to provide for their government. Those are the issues that I believe need to be addressed in the long run.

I turn to two matters where the Government has chosen not to adopt the thrust of the Committee's report. They are in relation to Norfolk Island and Jervis Bay. Currently, the Jervis Bay territory is ruled under the laws of the Australian Capital Territory made by the ACT Government pursuant to an agreement by the Commonwealth. As the Committee noted in its report, the ACT Government is not responsible for the effect of its legislation on Jervis Bay and, as a consequence, the Commonwealth Government has to monitor that situation. The Committee does not question the commitment of those charged with administering the law in Jervis Bay. However, it questions the administrative sense and, indeed, the need for Jervis Bay to be administered from a distance.

As recommended by the Committee, it seems anomalous that more locally based administrative units such as the Shoalhaven Council are not drawn on to provide local services. Further, the historical basis on which Jervis Bay was made a territory has long become irrelevant. Commonsense would seem to indicate that the Committee's recommendation that the Commonwealth and New South Wales governments pursue the possibility of applying New South Wales law in Jervis Bay, as well as giving consideration to the incorporation of Jervis Bay within the State of New South Wales, be rigorously explored. In that regard, I note also that our report says that the principal Commonwealth concerns in Jervis Bay are now the environment and the interests of the Aboriginal community in Wreck Bay. One disserving point that I have noted in terms of the response to our report is rejection of a proposal to give the Wreck Bay community control of access onto its lands. I believe it is anachronistic that the Wreck Bay Aboriginal community must suffer the incursion of passers-by to and from the waterways through their granted lands. It is, of course, a matter for the community itself. They may well wish to permit that to occur in the future by way of either a licence or general permission or let, but it seems to me to be a rather diminished grant of land rights to that community to pass over administration of a particular piece of land but still allow public access through that land in the way that occurs in Jervis Bay at the moment.

I urge that the House press on the Government the need to catch up with realities. It strikes me that the historical reason for the provision of a separate port facility for the Australian Capital Territory--which was the reason why Jervis Bay was passed to the Commonwealth as a port facility to provide direct seaport linkage for this particular Territory--simply has become an historical anachronism. It is not a relevant reason for the Australian Government persisting with a separate system of administration of that Territory.

I move on to the matter of Norfolk Island. In its report, the Committee made a number of recommendations to ensure that the people of Norfolk Island enjoy a range of rights and protections consistent with those available elsewhere in the Commonwealth. The Committee is very pleased that the Government has accepted its recommendations in relation to the provision of optional voting and enrolment rights to the people of Norfolk Island, enabling them to participate in Federal elections. This right was previously denied to those people.

True it is that many on Norfolk Island do not wish to exercise those rights. It is out of respect for those residents of Norfolk Island who strongly hold to the view that they should not be compelled to participate in electoral systems that we adopted the quite unusual framework of permitting an optional enrolment in Federal elections. But there are on the island a number of people who wish to exercise these democratic rights and, for the first time, they will be able to do so effectively and as a right.

There is one particular matter that deserves note where the Minister has not been inclined to follow the recommendations of the Committee. That is with respect to the citizenship requirements for participation for election in the local Assembly. Increasingly, the Assembly has been invested with the wide range of self-government powers. That recognises the particular constitutional circumstances of Norfolk Island where, to the greatest degree possible, self-management has been passed to islanders and they in turn have accepted that responsibility. It is reflected by the differing regimes with respect to social security and differing regimes with respect to a whole range of issues that apply distinctly and uniquely on the island.

One thing that is clear is that the franchise that presently exists to be a voter in the Norfolk Island Assembly is open not only to those who are Australian citizens but also to those who hold citizenships other than Australian--in particular, many New Zealanders and some indeed from the United States or various other parts of the world who have come to Norfolk Island under the specific migration provisions that exist under the legislation that applies. This means that in the Norfolk Island circumstance, unique in Australia, non-Australian citizens can participate in self-government of a Territory or State.

We have, through the administrative arrangements and the statutory changes that have occurred on Cocos Island and the memorandum of understanding, limited the franchise on Cocos Island to those Malays, for example, who have chosen to take Australian citizenship. We do not by any means wish to remove from the Territory those who have chosen not to take Australian citizenship--by their inheritance and their pattern of residence they have, no doubt, properly been seen to have acquired a right of residency--but we do say that only Australian citizens should be entitled to vote; and that is the principle we have applied on Christmas Island and Cocos Island. It is a principle well treasured in this Parliament. It is not a principle that has been adopted with Norfolk Island. In the minds of the Committee that is a major point which deserves reconsideration by the Government because it is not appropriate at this stage of Australia's development--or of the development of Norfolk Island as a Territory which has moved so far towards self-determination within the Commonwealth structure --for that anomaly to remain.