Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice and Customs) Share this | Hansard source

I rise to speak on the Territories Law Reform Bill 2010. Firstly, I would like to acknowledge that there was an election on Norfolk Island a few months ago, and I would like to take this opportunity to congratulate the newly elected members of the 13th Legislative Assembly, particularly the newly elected Chief Minister, Mr David Buffett, whom I met with recently in Canberra.

It is no exaggeration to say that Norfolk Island is a unique and integral part of Australia. In addition to being one of Australia’s most geographically isolated communities, it is also one of Australia’s oldest territories, having been settled in conjunction with Australia’s founding settlement at Sydney in New South Wales. At various times in its history the island formed part of the colonies of Van Diemen’s Land, which is now Tasmania, and New South Wales. Norfolk Island’s convict history and heritage and the traditions of its residents remain an important part of Australia’s national heritage and culture. Mr Christian-Bailey, a former member of the Norfolk Island Legislative Assembly, described the island culture in an article published in 2006, when he said:

The Norfolk Island Community has an incredibly proud history. We were arguably the first people in the Commonwealth to have a free and compulsory vote for everyone over 18, including women. This was enshrined in our own laws as early as 1838. We have always been proud of ourself-reliance, our resourcefulness and of our strong community spirit. We have our own language, which we still love to use with one another, and our cultural traditions are strong and distinct from those of Australia.

Going back further, in 1839 Joseph Campbell wrote an account entitled Norfolk Island and its inhabitants. Campbell describes the small and exceptionally beautiful place, inhabited by 400 people—‘about 250 who reside in the town, the rest in the small farms in various parts of the island’. There were excellent roads built by convicts, first-rate soils, thousands of lemon and guava trees, native flowers and, of course, the Norfolk Island pines. In those days there were a chief magistrate and jury running the island. Islanders had no taxes to pay but gave one week’s labour out of every seven months to any public work that needed to be done. Before a person could settle on Norfolk, they needed to obtain the votes of two-thirds of everyone over 20 who could read and write, and the inhabitants were described as ‘very jealous of admitting people as members of their community’. Times have changed, and I now understand that six months residency is required before you can move to Norfolk Island permanently, although the island comes more broadly under the Australian Citizenship Act.

Visitors to Norfolk, and indeed the islanders themselves, often describe the island as one of the most beautiful and unspoilt places on earth. Sadly, I have not had the opportunity to visit the island, although I would like to do so in the near future. And when I am there I will certainly be keen to undertake discussions and consultations with the Norfolk Island legislators, its leadership and also as many of the community groups as possible. It is fair to say that the members of the Joint Standing Committee on the National Capital and External Territories, the committee secretariat and, most importantly, the people on the island who have given their time to the consultation process deserve a timely response, and we will endeavour to see an appropriate outcome from this legislation for the people of Norfolk Island.

Successive Australian governments have acknowledged the importance of Norfolk Island to Australia’s national heritage, and the value of the traditions and culture of the Pitcairn descendants is a part of multicultural Australia. However, while the Norfolk Island community is unique in many ways, regardless of where you live in Australia many of the issues that confront Norfolk Island are similar to what occurs in regional towns of a similar size. You have a community that is physically removed from Australia and from the centre of power in Australia.

As a Western Australian, I certainly understand and have some empathy for how people might feel about being governed from distant Canberra and I am sympathetic to some of the concerns that the people of Norfolk Island have had in relation to this bill. As a former Western Australian senator, Ian Campbell, said when he was the Minister for Local Government, Territories and Roads:

… it is very important that people in a place like Norfolk Island who do not necessarily agree with that sort of received wisdom feel that they have got the right to pursue a different way of doing things.

In considering the need for electoral reform, it is important to bear in mind that the Australian parliament has the overarching responsibility to protect the rights of its citizens, wherever they may live in the federation. Indeed, we have an obligation to ensure that the laws in all Australian jurisdictions are consistent with national obligations and also our obligations under international law.

As noted about Norfolk Island in a previous Bills Digest, the constitutional status and history of the island is complex and unusual. After the creation of the Commonwealth of Australia in 1901, Norfolk Island was placed under the authority of the new Commonwealth government to be administered as an external territory. During the Second World War, the island became a key airbase and refuelling depot between Australia and New Zealand, and New Zealand and the Solomon Islands. Since Norfolk Island fell within New Zealand’s area of responsibility, it was garrisoned by a New Zealand Army unit, known as N Force, at a large army camp which had the capacity to house up to 1,500 men. N Force relieved a company of the Second Australian Imperial Force. The island proved too remote to come under attack during the war and N Force left the island in February 1944. In the late 1960s a mini-invasion by British expats followed after the island was featured on a BBC television documentary presented by Alan Whicker. Fifty families decided to emigrate from the United Kingdom to Norfolk Island as a result of that program. In 1979 Norfolk was granted limited self-government by Australia, under which the island elects a government that runs most of the island’s affairs. As such, residents of Norfolk Island are not represented in the Commonwealth Parliament of Australia, making them the only group of residents of an Australian state or territory not directly represented here.

The main purpose of the Territories Law Reform Bill 2010 is to amend the Norfolk Island Act 1979 to implement major changes to the governance, electoral and financial mechanisms for Norfolk Island. The bill, in schedules 2 and 3, also revises a vesting section of the Christmas Island Act 1958 and the Cocos (Keeling) Islands Act 1955. The bill makes very significant changes to the governance, electoral and financial mechanisms for Norfolk Island. Specifically these changes would:

• allow the Governor-General and the responsible Commonwealth minister to take a more active role in the introduction and passage of Norfolk Island legislation including provision for the Commonwealth minister to give directions in schedule 2 matters and to reserve schedule 2 matters for the Governor-General’s consideration.
• provide for the selection of, and prescribe the roles of Chief Minister and other ministers including by: limiting the number of ministers that might be appointed; further, allowing the removal of the Chief Minister by the Administrator in ‘exceptional circumstances’; limiting the power to allocate ministerial portfolios to the Chief Minister.
• enable regulations to be made for a code of conduct for members of the Norfolk Island public service.
• provide that regulations can be made for changes to the process for the election of the Legislative Assembly.
• provide for minimum and maximum fixed terms of the Legislative Assembly.
• implement a contemporary financial management framework including provision for contemporary guidelines for financial reporting and budgeting and auditing of the administration’s financial statements by the Commonwealth Auditor-General.
• allow the Commonwealth Ombudsman and the Administrative Appeals Tribunal to operate on Norfolk Island and provide for merits review of decisions made by the Norfolk Island administration.
• apply the provisions of the Freedom of Information Act 1982 and the Privacy Act 1988 to information held by the Norfolk Island government and its administration.

Schedules 2 and 3 amend the Christmas Island Act and the Cocos (Keeling) Islands Act. These amendments provide a vesting mechanism for powers and functions under Western Australian laws as they apply to those territories—powers and functions under Western Australian officers and authorities where an agreement with the Australian government exists for those officers and authorities to act in the territories.

Although the coalition support this bill in principle, as, I might say, does the administration of Norfolk Island in the main, we have some reservations regarding some aspects of it. In particular, we are concerned about the FOI and privacy provisions within the bill. We are concerned about the increased bureaucratic processes that might place an unreasonable burden on Norfolk Island’s public service. We therefore reserve the right to move amendments in the Senate as they may be necessary to maintain flexibility in determining what is an appropriate level of added bureaucracy for the island.

I would like to acknowledge some of the concerns of the Norfolk Island government that have been put to me directly and that were also expressed to the joint standing committee when it inquired into this bill. The administration has six main concerns which I will detail briefly. These concerns are legitimate and it is important that this parliament acknowledges them with due respect and takes them into account within its decision-making process.

The first of these concerns is what it has expressed to me as an ‘erosion of the ability to self-govern’. Anyone familiar with Norfolk Island will understand that island self-government is jealously—and rightly—guarded by its residents and of course by the Norfolk Island government. That government argues that the ability to manage schedule 2 matters is fundamental to self-government. According to the Norfolk Island government, schedule 2 matters affect the internal machinery of its government. Matters under schedule 2 include, but are not limited to, roads, street lighting, electricity supply, quarrying, tourism, firearms, housing, community and cultural affairs as well as matters incidental to or consequential on the examination of executive authority. A letter from the Chief Minister of Norfolk Island, Mr Buffett, noted that the ‘addition of a veto power for matters pertaining to schedule 2 undermines the very principle that underlines the democratic rights of Norfolk Islander voters to govern themselves in relation to matters that are specific to Norfolk Island’.

The second concern that the Norfolk Island government has raised is the ‘ability to remove the Legislative Assembly’. The Norfolk Island government argues that to provide fair and equitable government the ability to dissolve the Legislative Assembly should only be available to the Governor-General, who would be able, on advice from the Administrator, to appoint a caretaker government, as is the convention in Australia.

The third concern raised was the issue of elections. The Norfolk Island government agrees with the recommendation of the joint standing committee that this part of the bill be removed and further discussion and consultation be entered into.

Their fourth concern pertains to financial arrangements. The Norfolk Island government largely does not agree with the financial proposals in the bill. It has expressed the view that the proposals will result in direct interference with the operation of the Norfolk government, and it is particularly concerned with the obligations on employees of the Norfolk Island government to provide directly information not necessarily agreed to or vetted by the Norfolk government. It has indicated that this provides for the Commonwealth government to bypass the elected representatives and treat employees of the Norfolk government as if they were employees of the Commonwealth government.

The fifth issue is the accountability process. The Norfolk Island government has reservations about the method of implementation proposed by the bill for the Administrative Appeals Tribunal and for privacy and freedom of information provisions. The Norfolk government has expressed its desire to implement what it has termed the ombudsman model for these provisions, which would allow it to enshrine matters in their own legislation in consultation with the Commonwealth.

The sixth and final concern relates to deputies. The Norfolk Island government has some concerns with the ability under the proposed bill for the responsible minister to appoint numerous deputies to the Administrator. The Chief Minister has said:

It has been identified that these deputies would only be utilised in times of emergency, i.e. when the Administrator and the Official Secretary (who normally holds a dormant Deputy commission) were not available. If this is in fact the case the Norfolk Island Government would like this reflected in the Bill to provide clarification of the deputies’ role.

The opposition acknowledge Norfolk Island’s traditions and culture as well as the concern felt by some islanders that these reforms may threaten the current governance situation on Norfolk Island, but we also acknowledge that both the Norfolk government and the Islanders recognise, at least in principle, that there is a need for reform. I have no doubt that the people of the island and the people in their Legislative Assembly are raising these concerns in good faith.

In summary, the opposition would like to see a pragmatic approach taken to this bill—however, this approach must always be in the best interests of the Norfolk Islanders themselves. We support the bill in principle, but we do reserve the right in the Senate to move amendments that address some of the unique and special culture and history of Norfolk Island. We cannot necessarily subject what is an island of 1,500 people to the full gamut of Australian democracy if they can find mechanisms that might be more suitable for a government of their size and for a government that administers what is a relatively small population. With those reservations, the opposition supports the bill and will look at it in a more detailed way during the Senate process.

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