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2002-2003
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
THE
SENATE
EXPLANATORY
MEMORANDUM
(Circulated
by the authority of the Minister for Local Government,
Territories and
Roads, Senator the Hon Ian Campbell)
NORFOLK ISLAND AMENDMENT BILL 2003
The Norfolk Island Act 1979 provides the broad framework for the
governance of Norfolk Island, which has been an integral part of Australia
since 1914 when the Norfolk Island Act 1913 effected the acceptance of
the Territory under section 122 of the Constitution.
The Norfolk
Island Amendment Bill 2003 will amend the Norfolk Island Act 1979
to align electoral arrangements in Norfolk Island more closely with other
Australian Parliaments (including those of the other self-governing
Territories). In summary, it will:
• extend the right to vote in Legislative Assembly elections to all Australian citizens ‘ordinarily resident’ on Norfolk Island;
• introduce an ‘ordinarily resident’ qualifying period of 6 months for enrolment on the electoral roll;
• establish Australian citizenship as a qualification for enrolment and for election to the Legislative Assembly;
• ensure consistency in the calculation of the ‘residency period’ and, in particular, preserve the existing enrolment rights of persons under the age of 25 who are absent from the Island for education-related purposes; and
• preserve the existing enrolment rights of those non-Australian citizens on the electoral roll.
Norfolk Island’s current self government arrangements are the
result of a decision by the Federal Parliament and given effect by the
Norfolk Island Act 1979. The Act established and defined the
responsibilities and powers of the Legislative Assembly, the Executive Council
of Norfolk Island and the Administrator of Norfolk Island. The Act also
defined the Australian Government Minister’s responsibilities in relation
to the governance of the Territory. Those responsibilities reflect the
Australian Government’s overarching ‘national interest’ in the
Territory’s good governance and representative democracy, and its
proper financial management. The Australian Government also remains responsible
for ensuring that Norfolk Island laws comply with national obligations under
international law.
The Australian Government has a strong and legitimate
interest and role in Norfolk Island electoral matters. Parliament retains
ultimate responsibility for Territory electoral systems and parliamentary
democracy consistent with the Constitution, Australian Government electoral law
and policy, Australia’s international obligations (which include good
governance and representative democracy), and the obligation to protect the
basic individual rights of Australian citizens.
Electoral provisions for
the Norfolk Island Legislative Assembly are contained in the Norfolk Island
Act 1979 and the Legislative Assembly Act 1979 (Norfolk Island).
• The Norfolk Island Act 1979 prescribes qualifications for election to the Legislative Assembly. Under existing provisions a person can stand for election to the Assembly if aged 18 or over and entitled to vote at elections, and if that person has been ordinarily resident for 5 years immediately preceding the date of nomination. The Legislative Assembly is the only Australian State or Territory legislative body where non-Australian citizens are entitled to vote and stand for election.
• The Legislative Assembly Act 1979 (Norfolk Island) provides
that a person is qualified to enrol where that person has attained the age of 18
and has been present on Norfolk Island for 900 days during the period of 4 years
immediately preceding the application for enrolment. This two and a half year
qualifying period for enrolment on Norfolk Island far exceeds the one month
applying to all mainland States and Territories and the 6 month period in
Tasmania.
The current electoral arrangements are contrary to the
fundamental tenet of representational government that the voters and elected
representatives in a nation are citizens of the nation and have the right to
vote in the electoral jurisdiction of their usual place of residence. The
previous Attorney-General confirmed that the Island’s electoral
arrangements are inconsistent with Australia’s obligations under the
International Covenant on Civil and Political Rights.
Measures almost
identical to those now being proposed were introduced into Parliament in 1999
but rejected by the Senate in March 2000. There was a perception that there had
been insufficient consultation. During debate in the Senate, and in an earlier
dissenting Legislation Committee report, the non-government parties suggested
that the electoral proposals should be referred to the Joint Standing Committee
on the National Capital and External Territories for inquiry and further
consultation (particularly with the Norfolk Island community). This suggestion
was acted upon in November 2000.
After a due process of inquiry and
consultation, including public hearings both on Norfolk Island and in
Canberra, the proposals were recommended by the Joint Standing
Committee’s June 2002 report “Norfolk Island Electoral
Matters” which was tabled in Parliament in August 2002. The
Committee included a further recommendation - Australian Electoral Commission
supervision of Territory elections and referenda. This had not previously been
considered by the Government and is still being
assessed.
Financial impact statement
The Bill will have
no substantial or direct effect on expenditure or revenue.
NORFOLK ISLAND
AMENDMENT BILL 2003
NOTES ON CLAUSES
Clause 1 provides that the Bill may be cited as the Norfolk Island
Amendment Act 2003.
Clause 2 provides for the Act to commence on the day after it receives
the Royal Assent.
Clause 3: Schedule(s)
Clause 3 provides
for amendment of the Norfolk Island Act 1979 as set out in Schedule 1 of
the Bill.
SCHEDULE 1 - AMENDMENT OF THE NORFOLK ISLAND ACT
1979
Item 1 - After paragraph 38(b)
Item 1 makes Australian
citizenship a qualification to stand for election to the Legislative
Assembly.
Item 2 - At the end of paragraphs 39(2)(a) and
(c)
Item 2 is consequential on the amendment to be made by Item
3.
Item 3 - After paragraph 39(2)(d)
Item 3 provides that a
member of the Legislative Assembly vacates office if he or she ceases to be an
Australian citizen.
Item 4 - Application of Item 3
Item 4
ensures that loss of Australian citizenship causes a member of the Legislative
Assembly to vacate office only if elected on or after commencement of this
Act.
Item 5 prescribes Norfolk Island enrolment provisions and complements
sections 6, 7 and 7A of the Legislative Assembly Act 1979 (Norfolk
Island).
Section 39A, entitlement to enrolment on the electoral
roll, incorporates the provisions of section 6 of the Legislative
Assembly Act 1979 (Norfolk Island) with the addition of Australian
citizenship as a qualification for entitlement to enrol, and reduces the
ordinarily resident qualifying period to 6 months. The provision also maintains
the re-enrolment qualifying period prescribed under subsection 6(1) of the
Legislative Assembly Act 1979, but qualifies that the person re-enrolling must
be an Australian citizen. The qualifying period for re-enrolment is 150 days
present on Norfolk Island during the 240 days immediately preceding the
person’s application for enrolment.
The provision specifically
applies section 7A of the Legislative Assembly Act 1979 to ensure
consistency in the calculation of the residency period for electoral purposes.
It preserves the existing enrolment rights of persons under the age of 25 who
are absent from the Island for full time education or vocational training, and
provides that part days shall not count towards the calculation of the residency
period.
Section 39B, entitlement to vote, confirms the right of
those on the electoral roll to vote at Legislative Assembly
elections.
Section 39C, alteration of electoral roll, provides
that persons who cease to be Australian citizens are removed from the electoral
roll, an additional removal qualification to those prescribed at section 7 of
the Legislative Assembly Act 1979 (Norfolk Island).
Section 39D,
interpretation, provides that “electoral roll” and
“Returning Officer” have the same meaning as in the Legislative
Assembly Act 1979 (Norfolk Island) and that “enrolment” means
enrolment on the electoral roll.
Item 6 preserves the entitlement of those on the Norfolk Island roll at
the date of commencement of this Act to remain on the roll.
Item 7 - Gender-neutral language: his or her
Item 7 ensures
that “his” is followed by “or her” wherever occurring in
the Act.
Item 8 ensures that “he” is followed by “or she”
wherever occurring in the Act.
Item 9 ensures that “him” is followed by “or her”
wherever occurring in the Act.
Item 10 - Conjunctions - Paragraphs
19(2)(a) and (c)
Item 10 is to meet current drafting practices within
the Office of Parliamentary Counsel.