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

I rise to talk on the Territories Law Reform Bill 2010. This bill in the main relates to Norfolk Island, which is a unique and integral part of Australia. In addition to being one of Australia’s most geographically isolated communities—indeed, probably one of the world’s most 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. The island has a unique history which is separate from Australia, although obviously clearly linked to Australia. At various times in its history, the island formed part of the colonies of Van Diemen’s Land, now Tasmania, and New South Wales. Norfolk Island’s convict history and the heritage and traditions of its residents, particularly those of Pitcairn descent, remain an important part of Australia’s natural 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 our self-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.

I think that is an important point. The people of Norfolk Island see themselves obviously as Australians but as people with a separate culture from Australia and it is one that we should do our best to respect.

Going back further to 1879, Joseph Campbell wrote an account about Norfolk Island and its inhabitants. Campbell describes the small and exceptionally beautiful place inhabited by some 400 people—about 250 who reside in the town, the rest in 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 the Norfolk Island pines. In those days a chief magistrate and jury ran 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 everybody over 20 who could read and write. The inhabitants were described as very jealous of admitting people as members of their community.

Times have changed somewhat and now you need a six-month residency before you can apply to stay on Norfolk Island permanently, although the island comes under the Australian Citizenship Act more broadly. Visitors to Norfolk and 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 travel to Norfolk Island in my capacity as the shadow minister responsible for external territories, although I have had discussions with many members of the coalition and outside of the coalition who have been to the island. They have reinforced to me that the island has its own culture, traditions and values. I am keen to go and see this for myself at some stage in the future. But I have had a chance to meet with the Norfolk Islander legislators when they have been in Canberra and I have consulted with them over the telephone. I acknowledge the efforts that they have made in contacting me to let me know their thoughts about this bill which, of course, will radically change the way Norfolk Island is governed.

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 as part of a wider multicultural Australia. However, while the Norfolk Island community is unique in many ways, many of the issues that confront the people on Norfolk Island are similar to those that occur in regional towns of a similar size. Norfolk is relatively small, being inhabited by some 1,500 residents. The community is physically removed from the centre of power in Australia, geographically and also emotionally. The people of Norfolk are very far removed from Canberra. I feel some sympathy toward the people in relation to this. However, I understand that there are many on Norfolk Island who also yearn to have the same privileges and rights that all other Australians have. As the former Western Australian senator, the Hon. Ian Campbell, said when he was Minister for Local Government, Territories and Roads in 2004:

… 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—and, of course, that includes in our external territories. Indeed, this parliament has an obligation to ensure that all laws in Australian jurisdictions are consistent with the national obligations under international law. As has been previously noted about Norfolk Island, the constitutional status 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 World War II the island became a key air base in refuelling depots between Australia and New Zealand and between 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 that had the capacity to house 1,500 people. N Force relieved a company of the 2nd Australian Imperial Force which allowed them to go and campaign elsewhere. But the island proved to be too remote to come under attack during the war and N Force, the New Zealand garrison, left the island in February 1944.

In 1979 Norfolk Island was granted limited self-government by Australia under what they consider to be a proxy constitution where 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, making them the only group of residents in an Australian state or territory not represented here. This bill makes radical changes to what had been put in place in 1979. The Territories Law Reform Bill 2010 will change radically the governance, electoral and financial administration of Norfolk Island. The changes are substantial and the way the island is governed will not be the same again if this bill is passed in its present form.

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 significant changes to the governance, electoral and financial mechanisms for Norfolk Island. More 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. It also provides for the selection and prescribes the roles of the Chief Minister and other ministers, including by limiting the number of ministers that might be appointed, by allowing the removal of the Chief Minister by the Administrator in exceptional circumstances and by limiting the power to allocate ministerial portfolios to the Chief Minister.

The bill allows regulations to be made for a code of conduct for members of the Norfolk Island Public Service. Clearly, with a population of 1,500, the Norfolk Island Public Service is not an extensive organisation, and I will get to that a little later on. This bill also provides that regulations can be made for changes to the process for the election of the Legislative Assembly, provides for minimum and maximum fixed terms of the Legislative Assembly, and implements a contemporary financial management framework, including provision for contemporary guidelines for financial reporting, budgeting and auditing of the administration’s financial statements by the Commonwealth Auditor-General. It also allows for 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. Finally, it applies 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 1958 and the Cocos (Keeling) Islands Act 1955. These amendments provide a vesting mechanism for powers and functions under Western Australian laws applied 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 supports this bill in principle, we do have some reservations, and of course the Norfolk Island government has previously expressed significant reservations about this bill. We in the opposition are specifically concerned about the increased bureaucratic processes that this bill entails, and we believe they will place in some circumstances an undue burden on Norfolk Island’s limited public service. I will detail these amendments shortly.

I want to go to the concerns that the Norfolk Island government have in the past expressed in relation to this bill. I do acknowledge—and I am sure the government will point this out when the minister makes his contribution—that the Norfolk Island government’s position has changed significantly since this bill was introduced. They did come and see us in Canberra and they expressed significant concerns about the bill taking away what they believed was their right to self-government. That situation has changed, but it has changed in conjunction with the fact that Norfolk Island has some significant financial difficulties and as a result the Commonwealth has them somewhat—to use the phrase—over a barrel, and they do now support the bill. This has been reiterated to me by the Norfolk Island government. They do now support this bill in its current form.

Notwithstanding that, the opposition still believe that it makes very little sense for us to inflict the full horror of Australian bureaucracy on an island of 1,500 people and we will seek to move what we believe are sensible amendments to at least allow the Norfolk Island administration to attempt to do some of the things in a way that might be more appropriate for an island of their size; specifically we would like to do that in relation to privacy provisions and the freedom of information regime.

Before going specifically to that I do want to acknowledge that, regardless of the fact that the Norfolk Island government have now changed their position, they did have some concerns with this bill in the past. Those concerns have been expressed very stridently to the joint standing committee which had a look into this legislation. Their concerns can be detailed in six different parts. The concerns were legitimate. We in the opposition did not support them all but it is important as a parliament that we acknowledge and give due respect to the Norfolk Island government by detailing the concerns that they have expressed in the past about this legislation.

Firstly, they believed that the legislation was going to lead to the erosion of their ability to self-govern. That is a right that they guard very jealously. The Norfolk Island government argued that their ability to manage schedule 2 matters was a fundamental part of their ability to self-govern. According to the Norfolk Island government, schedule 2 matters affect the internal machinery of their own 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 consequent on the examination of executive authority. In a previous letter 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 underlies 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 had expressed was the ability for the Commonwealth to remove the Legislative Assembly. The Norfolk Island government argued that, to provide fair and equitable government, the ability to dissolve the assembly should only be available to the Governor-General, who would be able to, on advice from the administrator, appoint a caretaker government, as is the convention here in Australia.

The third issue they had raised as a concern was the issue of elections. The Norfolk Island government had previously agreed with the recommendation of the joint standing committee that this part of the bill be removed and further discussion and consultation be entered into. The fourth concern of the Norfolk Island administration in relation to this bill was that they largely did not agree with the financial proposals that are contained within it. They have expressed the view that these proposals would result in direct interference with the operation of the Norfolk Island government and they were particularly concerned with the obligations on employees of the Norfolk Island government to provide information not necessarily agreed to or vetted by the Norfolk Island government. They have expressed this in the past and they believed that this allowed the Commonwealth government to bypass the elected representatives of Norfolk Island and treats employees of the Norfolk Island government as if they were employees of the Commonwealth government.

The fifth issue that was raised relates to accountability processes. The island government had reservations about the method of implementation proposed by the bill for the Administrative Appeals Tribunals for privacy conditions and for the freedom of information provisions. As I mentioned previously, the coalition also believes that transposing the full bureaucratic Australian model, designed to cover our 22 million people, onto the people of Norfolk Island, which has a population of 1,500 people, really is taking the desire to standardise our laws to a ludicrous extreme. The Norfolk Island government had expressed their desire to implement a different model—and this is what the opposition continues to support—in relation to how they dealt with the Commonwealth Ombudsman being allowed to have an involvement in Norfolk Island matters, and that is that they would work with the Commonwealth on providing a model that was more appropriate for Norfolk Island—and in the past they had hoped that the Commonwealth would do that.

I had some discussions with the Australian government prior to the election. The Labor government did not seem to have any particular objections to this and, indeed, I did hope that we might be able to work with them on making these amendments. Clearly since the election they have changed their view and now they do not want to enter into those discussions and they insist that this bill be passed in its wholesale form, which I think is a shame because we might have been able to come to a different arrangement and so make these amendments redundant. But the government are not interested in doing that.

Finally, the sixth area of concern to the Norfolk Island government relates to the treatment of Norfolk Island deputies. The Norfolk Island government had concerns over the ability under the proposed bill for the responsible minister to appoint numerous deputies to the Administrator, and the Chief Minister had expressed the view directly that it had been identified that these deputies would be utilised in times of emergency, when the Administrator and the Official Secretary, who normally holds a dormant deputy commission, were not available. If this in fact was the case, the Norfolk Island government wanted this to be reflected in the bill to provide clarification of the deputies’ role.

Whilst acknowledging Norfolk Island’s traditions and culture as well as the concern felt by some islanders that these reforms did threaten the current government situation on Norfolk Island, both the Norfolk Island government and the islanders recognise, at least in principle, the need for reform. Of course now they support this bill in a different way, but that really relates specifically to the changed financial circumstances on the island whereby they are requiring Commonwealth assistance and, of course, the Commonwealth has said, ‘We’re happy to assist but only if this bill is supported’ and so that is now the position of the Norfolk Island government. But I do not think that we should have ever doubted that they had good intentions as to reforming the way that they govern Norfolk Island and that they were keen to work with the Commonwealth to find arrangements that they believed might have been more suitable for the way that Norfolk Island is governed.

We still believe that there is a chance for this parliament to ease some of the bureaucratic weight that this legislation entails and we will be moving amendments, as I foreshadowed, to the way that freedom of information applies to Norfolk Island and the way that the Norfolk Island public sector agencies will be required to adhere to information privacy principles. We will be doing this because freedom of information as it relates to the Commonwealth of Australia and privacy as it relates to the Commonwealth of Australia involves incredibly extensive legislation. It would place very significant burdens on the very limited administration of Norfolk Island and we do not believe that there is necessarily a case for such a small administration to be exposed to the full weight of this enormous bureaucratic undertaking, which I think would be the best way of putting it.

This bill does not need to extend the full gamut of Commonwealth FOI and privacy laws to Norfolk Island. No rationale has been supplied to this parliament as to why we should do that. There are the concerns of the Norfolk Island administration who, after all, are probably best placed to say what they believe is in Norfolk Island’s interests and they should not be brushed aside or ignored. We believe that the concerns that they have had in the past in relation to the ability of the island’s administration to be able to deal with such an enormous bureaucratic undertaking still stand and the opposition is going to move amendments that will allow the islanders to maintain flexibility in determining what they believe is an appropriate level of added bureaucracy for their island.

The amendments would allow the Norfolk Island government to legislate their own freedom of information and privacy principles and would give them the freedom of scope to decide what model best suits their needs. This is the approach that the Norfolk Island government have taken in their dealings with the Commonwealth in the past and it has been successful. Surely that is a better way rather than having the Commonwealth coming in and overriding the wishes of the Norfolk Island government, who were elected by the people of Norfolk Island to speak on their behalf. Surely it is better for the Commonwealth to sit down and try to work out a regime that best suits the island’s needs rather than for the Commonwealth to come out with this ‘one size fits all’ approach that says, ‘We’re going to override the wishes of the local community and we’re going to impose this enormous bureaucracy on Norfolk Island regardless of the wishes of its local community.’

We would prefer to see a much more pragmatic approach from this parliament. We believe that approach would be in the best interests of Norfolk Islanders themselves. So we do support the thrust of this bill, as has the government of Norfolk Island, but we do not believe that we should necessarily be imposing the full gamut of freedom of information legislation and privacy legislation. So we would urge this parliament to explore a way with the government of Norfolk Island by which we can find mechanisms that are more suitable for a territory of their size and population with obviously a limited administrative capacity for an administration that governs only 1,500 people. We think that is a sensible approach and I would commend that to the House.

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