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Norfolk Island (Electoral and Judicial) Amendment Bill 1992



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House: House of Representatives Portfolio: Arts, Sport, the Environment and Territories

Purpose To provide certain Norfolk Islanders with an option to vote in federal elections and referendums.

Background Norfolk Island: Norfolk Island was discovered by James Cook in October 1774. In 1914, Norfolk Island became a Territory of Australia and came under the authority of the Commonwealth. Norfolk Island is an island approximately eight kilometres long and five kilometres wide with a total area of 3451 hectares. The climate of Norfolk Island is subtropical, the temperature ranging from a winter minimum of seven degrees centigrade to a summer maximum of twenty- seven degrees centigrade. The annual average rainfall is approximately 1345 millimetres.

Norfolk Island has a population of approximately 2000 people; of these, approximately one- third are descendants of HMS Bounty mutineers brought from Pitcairn Island in 1856. Australians and New Zealanders make up the bulk of the population and tourism is the major economic activity of Norfolk Island, attracting approximately 26 000 tourists each year. The Commonwealth expended in 1988- 89 the sum of $4.893 million on the provision of services and benefits to Norfolk Island. Norfolk Islanders are subject to tax only on income derived from mainland sources. Provision of social services has, since 1979, been the responsibility of the Norfolk Island Government.

Norfolk Island Act 1979: In October 1976, the Commonwealth Government received the Report of the Royal Commission into Matters Relating to Norfolk Island (the Nimmo Report). The Government's response to the Report and certain policy decisions, led to the enactment of the Norfolk Island Act 1979 (the Act). The Act established a substantial measure of self- government and financial independence for Norfolk Island.

Part II of the Act sets out the administrative structure of Norfolk Island. The Administrator of Norfolk Island while having final responsibility for the administration of Norfolk Island acts in accordance with advice given to him by the Executive Council of Norfolk Island (the Council) in relation to matters set out in Schedule 2 of the Act (e.g. the raising of revenues for purposes including water supply, garbage and trade waste and quarrying). The Administrator may or may not act on the advice of the Council in relation to matters set out in Schedule 3 (e.g. fishing, customs (other than the imposition of customs duties) and immigration). In all other cases he/she is able to act on his/her own discretion or on the instructions of the Minister.

Part III of the Act relates to the establishment of, and appointments to, the Executive Council. The Council's principal function is to advise the Administrator on matters referred to under Part II of the Act.

Part IV of the Act deals with legislative process and continuation of existing laws. Under Part IV, the Legislative Assembly of the Island (the Legislative Assembly) has power, with the assent of the Administrator or the Governor- General to make Ordinances for the peace, order and good government of Norfolk Island. While the Assembly's power is not limited to matters in Schedules 2 and 3 of the Act, any Ordinance outside the matters in the Schedules has to be reserved for the Governor- General's pleasure. In addition, the Governor- General may disallow any Ordinance assented to by the Administrator within six months of assent.

Parts V and VI of the Act deal with the creation, constitution and membership of the Legislative Assembly, and finances of Norfolk Island. Part V of the Act provides that the Legislative Assembly is to consist of nine members elected according to an ordinance, for a maximum term of three years. Part VI establishes an account for all public moneys and provides that the receipt, expenditure and control of public moneys is to be regulated by Ordinance. Part VI also provides for the government of Norfolk Island to borrow either from the Commonwealth or other approved sources.

Norfolk Island - A Unique Case?: The substantial measure of self- government and financial independence enjoyed by Norfolk Islanders under the Norfolk Island Act 1979 has controversial aspects, especially in relation to the current Aboriginal self- government debate. 1 Both the passage of the Norfolk Island Act 1979 and the amendments proposed by this Bill are based on a belief, accepted by the Labor, Liberal and National Parties, 2 that Norfolk Island is historically and culturally unique and that as such it is appropriate Norfolk Island should be allowed to exercise many of the powers of both federal and state governments.

The special treatment received by Norfolk Island raises a number of questions in relation to the Aboriginal self- government debate. It may be argued that "If Norfolk Island can have complete self- government and a special constitutional relationship with Australia, then why can't Torres Strait Islanders, Bathurst and Melville Island or any other Aboriginal community have the same?". 3

Commonwealth Parliamentary Representation: The issue of Commonwealth parliamentary representation for Norfolk Islanders has recently been examined by the House of Representatives Standing Committee on Legal and Constitutional Affairs (the Committee) in its March 1991 report Islands in the Sun - The Legal Regimes of Australia's External Territories and the Jervis Bay Territory (the Report). The findings of the Committee included that Australian citizens resident on Norfolk Island remain the only resident Australians not entitled, as of right, to representation in the Commonwealth Parliament. The Committee's conclusions included:

"The Committee is of the view that the right to vote is an absolute right which should not be denied to those people of Norfolk Island who wish to exercise their right." 4; and

"The Committee is aware that provision exists within the Commonwealth Electoral Act 1918 for optional voting for the following categories: an Antarctic elector; an eligible overseas elector; or an itinerant elector. The Committee is mindful of the strongly held views and the historical reasons which make Norfolk Island a unique case. The Committee is therefore prepared to accept, contrary to the import principal which apply anywhere else in Australia, that the residents of Norfolk Island who are Australian citizens should have the right of optional enrolment. Once a citizen exercises this right, voting would be compulsory and normal provisions under the Commonwealth Electoral Act would apply." 5

The Committee recommended that "... the Commonwealth Parliament amend the Commonwealth Electoral Act 1918 to give optional enrolment rights to the people of Norfolk Island; the electorate to which the voters would be attached to be determined on the advice of the Australian Electoral Commission". 6

The issue of Commonwealth Parliamentary Representation for Norfolk Islanders has been a source of tension between Norfolk Islanders and the Federal Government for almost 20 years. Tension first surfaced in 1976 with the release of the Nimmo Report. One of the proposals of the Nimmo Report was that Norfolk Islanders should be enrolled as voters in the federal seat of Canberra. This proposal was not well received by Norfolk Islanders who are reported to have appealed to the UN Committee of 24 on Decolonisation, demanding that Norfolk Island be allowed to hold a referendum on its future. 7 Tensions were defused in 1979 with passage of the Act, which provided Islanders with a substantial measure of self- government and financial independence. The issue surfaced again in late 1991 when the then Minister for Territories announced that Norfolk Island would be made part of the electoral division of Canberra. The rationale for the decision are reported to have included that: there were Australian citizens on Norfolk Island that were disfranchised and that this was a denial of their human rights; there were not enough people to form a single federal electorate on the Island; and constitutional difficulties in incorporating the Island into one of the States. The Island Government is reported to have condemned the proposal as a unilateral annexation of the Island by Australia, arguing that incorporating it into Canberra changed the island's status and could lead to federal

regulations being imposed. 8 In a Norfolk Island Government Press Release of 22 March 1992 the President of the Island Legislative Assembly said

"We are not arguing against the right of individuals to vote, ... However, the Commonwealth proposal to attach the Island to Canberra in order to achieve that is, we believe, needlessly insensitive to our history, our culture and out way of life. The Island's alternative proposal would allow a voter to vote in an electorate with which the individual elector had links."

On 24 April 1992 the Minister for the Arts and Territories announced that agreement had been reached with the Island Government as to the basis upon which eligible islander's would vote in federal elections. The Minister said

"... there is now agreement on an arrangement based on the existing itinerant voter provisions of the Electoral Act. Under the arrangements, eligible Norfolk Islanders who can establish a relevant connection with a State subdivision would be permitted to enrol in that subdivision. Norfolk voters who cannot establish such a connection would need to enrol and vote in the division of Canberra." 9

Main Provisions Amendments to the Commonwealth Electoral Act 1918

A new subsection 4(6), that will be substituted into the Commonwealth Electoral Act 1918 (the Principal Act) by clause 4, will extend the operation of the Principal Act to Norfolk Island.

A new section 95AA, that deals with Norfolk Islander entitlement to be enrolled in a State or Territory electoral division, will be inserted into the Principal Act by clause 11. Basically, the effect of proposed section 95AA will be to entitle a Norfolk Islander to be enrolled in: (a) an electoral division of a State for which they last had an entitlement to be enrolled; or (b) an electoral division of a State for which any of their next of kin is enrolled; or (c) if (a) or (b) does not apply, an electoral division of a State in which they were born; or (d) if (a), (b) or (c) does not apply, an electoral division of a State with which they have a close connection. Where no connection with State electoral division can be established, a qualified Norfolk Islander will be entitled to be enrolled in an electoral division of a Territory. A qualified Norfolk Islander will not be entitled to be enrolled for more than one electoral division at the same time. `Qualified Norfolk Islander' is defined to mean a person who: resides in Norfolk Island; would qualify for enrolment if they lived in an electorate and had lived there for the preceding month; and is not entitled to be enrolled for an electorate as an overseas elector.

The principal effect of Clause 14 will be to make electoral enrolment optional for qualified Norfolk Islanders.

Amendments to the Referendum (Machinery Provisions) Act 1984

A new subsection 3(3), that will be substituted into the Referendum (Machinery Provisions) Act 1984 (the Principal Act) by clause 19, will extend the operation of the Principal Act to Norfolk Island.

In a referendum, the vote or ballot paper of a qualified Norfolk Islander who is on the Roll of a Territory, will be taken to be in relation to that Territory (clause 21).

References 1. See Gardiner- Garden, J. Aboriginality and Aboriginal Rights in Australia, Parliamentary Research Service, June 1992, and Reynolds, H. An Aboriginal Republic, too ?, The Independent Monthly, March 1992. 2. Reynolds, H. An Aboriginal Republic, too ?, The Independent Monthly, March 1992, p. 12. See also 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, March 1991. 3. Ibid.

4. 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, March 1991, p. 147. 5. Ibid., pp. 147 and 148. 6. Ibid., p. 148. 7. The Canberra Times, 3 April 1992. 8. The Canberra Times, 25, April 1992. 9. Minister for the Arts and Territories, News Release, 24 April 1992.

Bills Digest Service 16 July 1992 Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1992.

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Published by the Department of the Parliamentary Library, 1992.