Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NORFOLK ISLAND LEGISLATION AMENDMENT BILL 2015
TAX AND SUPERANNUATION LAWS AMENDMENT (NORFOLK ISLAND
REFORMS) BILL 2015
A NEW TAX SYSTEM (MEDICARE LEVY SURCHARGE--FRINGE BENEFITS)
AMENDMENT BILL 2015
HEALTH AND OTHER SERVICES (COMPENSATION) CARE CHARGES
AMENDMENT (NORFOLK ISLAND) BILL 2015
HEALTH INSURANCE (APPROVED PATHOLOGY SPECIMEN COLLECTION
CENTRES) TAX AMENDMENT (NORFOLK ISLAND) BILL 2015
HEALTH INSURANCE (PATHOLOGY) (FEES) AMENDMENT (NORFOLK
ISLAND) BILL 2015
PRIVATE HEALTH INSURANCE (RISK EQUALISATION LEVY) AMENDMENT
(NORFOLK ISLAND) BILL 2015
AGED CARE (ACCOMMODATION PAYMENT SECURITY) LEVY AMENDMENT
(NORFOLK ISLAND) BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by authority of the Assistant Minister for Infrastructure and Regional
Development, the Hon Jamie Briggs MP)
Contents
OUTLINE ................................................................................................................................................ 2
Financial impact statement................................................................................................................... 8
Statement of Compatibility with Human Rights...................................................................................... 9
NORFOLK ISLAND LEGISLATION AMENDMENT BILL 2015 .................................................... 14
NOTES ON CLAUSES ......................................................................................................................... 14
SCHEDULE 1 - Interim arrangements etc. .............................................................................. 15
SCHEDULE 2 - Final arrangements etc. .................................................................................. 36
SCHEDULE 3--Statistical information .................................................................................... 65
TAX AND SUPERANNUATION LAWS AMENDMENT (NORFOLK ISLAND REFORMS) BILL
2015 AND A NEW TAX SYSTEM (MEDICARE LEVY SURCHARGE-FRINGE BENEFITS)
AMENDMENT BILL 2015................................................................................................................... 66
NOTES ON CLAUSES ......................................................................................................................... 66
HEALTH AND OTHER SERVICES (COMPENSATION) CARE CHARGES AMENDMENT
(NORFOLK ISLAND) BILL 2015........................................................................................................ 73
NOTES ON CLAUSES ......................................................................................................................... 73
HEALTH INSURANCE (APPROVED PATHOLOGY SPECIMEN COLLECTION CENTRES)
TAX AMENDMENT (NORFOLK ISLAND) BILL 2015 ................................................................... 73
NOTES ON CLAUSES ......................................................................................................................... 73
HEALTH INSURANCE (PATHOLOGY) (FEES) AMENDMENT (NORFOLK ISLAND) BILL
2015........................................................................................................................................................ 73
NOTES ON CLAUSES ......................................................................................................................... 73
PRIVATE HEALTH INSURANCE (RISK EQUALISATION LEVY) AMENDMENT (NORFOLK
ISLAND) BILL 2015............................................................................................................................. 73
NOTES ON CLAUSES ......................................................................................................................... 73
AGED CARE (ACCOMMODATION PAYMENT SECURITY) LEVY AMENDMENT (NORFOLK
ISLAND) BILL 2015............................................................................................................................. 73
NOTES ON CLAUSES ......................................................................................................................... 73
NORFOLK ISLAND LEGISLATION AMENDMENT BILL 2015
TAX AND SUPERANNUATION LAWS AMENDMENT (NORFOLK ISLAND
REFORMS) BILL 2015
A NEW TAX SYSTEM (MEDICARE LEVY SURCHARGE--FRINGE BENEFITS)
AMENDMENT BILL 2015
HEALTH AND OTHER SERVICES (COMPENSATION) CARE CHARGES
AMENDMENT (NORFOLK ISLAND) BILL 2015
HEALTH INSURANCE (APPROVED PATHOLOGY SPECIMEN COLLECTION
CENTRES) TAX AMENDMENT (NORFOLK ISLAND) BILL 2015
HEALTH INSURANCE (PATHOLOGY) (FEES) AMENDMENT
(NORFOLK ISLAND) BILL 2015
PRIVATE HEALTH INSURANCE (RISK EQUALISATION LEVY) AMENDMENT
(NORFOLK ISLAND) BILL 2015
AGED CARE (ACCOMMODATION PAYMENT SECURITY) LEVY AMENDMENT
(NORFOLK ISLAND) BILL 2015
OUTLINE
There are two principal objectives of this package of Bills. The first is amendment of the
Norfolk Island Act 1979 to reform governance arrangements of Norfolk Island. This is in
response to the Same Country: Different World report of the Joint Standing Committee on
the National Capital and External Territories, which recommended substantial changes to the
governance arrangements for Norfolk Island.
The second principal objective of this package of Bills is the extension of many mainland
social security, immigration, and health arrangements to Norfolk Island, as well as changes to
the tax system. This will implement the election commitment the Australian Government
made in September 2013 and is consistent with the general principle that as Norfolk Island is
part of Australia, those Australians who live there should have the same obligations and
receive the same access to benefits as other Australians.
The current governance arrangements have been unable to deliver an adequate level of
services to the community or an effective safety net for those most vulnerable in this small
isolated community. The wide range of functions for which the Norfolk Island Government
has been responsible, which includes national, state and local government services, coupled
with the relatively narrow revenue base available for funding those services has meant large
and growing revenue shortfalls for the Norfolk Island Government. As a result standards of
service, particularly in the areas of social welfare and health care are well below those
enjoyed by other Australians. It is beyond the resources of the small Norfolk Island
community to support its current governance arrangements.
Similarly, the complexity involved in many of the services means the Norfolk Island
Government has struggled to deliver an adequate level of services to the community or
maintain an effective and up to date body of state-level legislation.
1. Reform of legal and governance arrangements
This package of reforms will strengthen and enhance the legal and governance framework for
Norfolk Island. In broad terms, the reform of legal and governance arrangements consists of
two separate phases. The first phase is the interim transition time` which begins on a day to
2
be proclaimed after the passage of the Norfolk Island Legislation Amendment Bill 2015. This
phase includes the abolition of the Norfolk Island Legislative Assembly and Executive
Council, and the establishment of an Advisory Council as an interim consultative body.
The second phase is to commence on 1 July 2016 and includes a mechanism which applies
New South Wales state law to Norfolk Island as Commonwealth law as well as provisions to
allow the Commonwealth to enter into arrangements with the New South Wales Government
for the delivery of state level services. It is anticipated that a Norfolk Island Regional Council
body would be established under New South Wales applied law or an ordinance under the
Norfolk Island Act 1979, to be an elected local government body for the Territory.
1.1 Phase 1: The interim transition time
The purpose of the interim transition time is to enable the Commonwealth to implement the
reforms, and prepare the community for the introduction of tax and social security and the
introduction of the final governance model including the Norfolk Island Regional Council.
During the interim transition time, amendments are proposed in relation to the legislative and
executive arrangements in force on Norfolk Island. The judicial arrangements on Norfolk
Island are preserved without change.
1.1.1 Legislative functions during the interim transition time
It is proposed to abolish the Legislative Assembly, with the effect that the offices of all
present members of the Assembly will terminate.
Enactments of the Legislative Assembly and all ordinances made by the Governor-General
that are currently in force in the Territory will be preserved, as will laws made under such
enactments and Ordinances.
Legislative power for the Territory will be conferred on the Governor-General, who will have
broad power to make Ordinances for the peace, order and good governance of the Territory,
including amending or repealing any Norfolk Island laws, however described (for example
including all enactments, Ordinances, subordinate legislation) that are in force at the time the
part of the Bill commences.
Such Ordinances will be subject to the disallowance provisions of the Legislative Instruments
Act 2003; however, consistent with the arrangements for Ordinances of the Christmas Island
and Cocos (Keeling) Islands territories, the sunsetting provisions of that Act will not apply to
them.
1.1.2 Executive functions during the interim transition time
An Advisory Council that will include Norfolk Island community representatives will be
established in the Act. The Advisory Council is an important mechanism for community
consultation and engagement. The Advisory Council`s role will be to offer advice to the
Administrator on any matter affecting the peace order and good government of the Territory.
The responsible Commonwealth Minister will be able to make provision by legislative
instrument in relation to how the Council is to carry on business and in relation to
remuneration and allowances (if any) for members of the Advisory Council.
During the interim transition time, the statutory office of the Administrator will continue. The
Norfolk Island Administration will be continued as a body politic. The Administrator may
exercise all the powers of the Administration, and may delegate such powers to specified
persons. All rights, liabilities and assets of the Administration in existence prior to the
commencement of the amendments made by Part 1 of Schedule 1 of the Bill will continue to
3
be rights, liabilities and assets of the Administration. Any rights, liabilities or assets
(including property) relating to the government of Norfolk Island which were not, at the
commencement of the amendments made by Part 1 of Schedule 1, rights, assets, or liabilities
of the Administration (for example, assets, liabilities, rights or property held by Norfolk
Island Ministers or the Legislative Assembly in that capacity) will become rights, liabilities,
assets and property of the Administration.
Employees of the Administration prior to the commencement of the amendments made by
Part 1 of Schedule 1 of the Bill, and any other person engaged on Norfolk Island, prior to that
commencement, to perform duties relating to the government of Norfolk Island but who was
not an employee of the Administration, will become an employee of the Administration.
The Administrator will be assisted by a new statutory position of Executive Director, who
will be employed by the Norfolk Island Administration and designated by the Commonwealth
Minister. The Executive Director will be delegated certain functions and powers by either the
Commonwealth Minister or the Administrator. It is envisaged the Executive Director will be
responsible for the day to day running of the Norfolk Island Administration and related
entities including the Norfolk Island Hospital Enterprise and the Norfolk Island Government
Tourist Bureau.
Through his or her ability to instruct the Administrator and delegates, the responsible
Commonwealth Minister will have overarching supervisory powers in relation to the
Administration and bodies corporate established under Norfolk Island enactments.
The Administrator will be subject to the instruction of the Commonwealth Minister both on
matters delegated by the Commonwealth Minister and in relation to the statutory powers and
functions of the Administrator. Matters on which the Commonwealth Minister may be able to
instruct the Administrator are not limited by the Act and include: on what matters the
Administrator is to seek advice from the Advisory Council; what powers should be delegated
to the Executive Director; and how powers are to be exercised. There is provision for the
Administrator to be required by the Commonwealth Minister to notify the Commonwealth
Minister before exercising powers specified by the Commonwealth Minister.
During the interim period, powers and functions under Norfolk Island enactments which are
at present conferred on Norfolk Island Ministers will be conferred on the Commonwealth
Minister, who will be able to delegate these powers or functions. This arrangement will be
provided for in an ordinance to be made by the Governor-General and is therefore not
expressly provided for in the Act.
The Administrator will no longer be advised by an Executive Council. The Executive Council
will be abolished. This relates to the abolition of the Norfolk Island Legislative Assembly,
which will mean that there will not be any Norfolk Island Ministers to form an Executive
Council.
Records currently held in relation to the Legislative Assembly, the Norfolk Island Executive
Council, and persons acting in a capacity of Minister of Norfolk Island will be transferred to
the Administration. Provision has been made for records of the Administration to remain in
the custody of the Administration during the interim transition time.
1.1.3 Financial arrangements during the interim transition time
The financial arrangements in place prior to the interim transition time are to be maintained as
far as possible during the interim transition time. The Public Account of Norfolk Island is to
4
continue as the repository of public money of the Territory, and each Territory authority shall
continue to keep separate accounts.
Authorisation for expenditure of money from the Public Account is to be by legislative
instrument made by the Governor-General; however, current annual and standing
appropriations will remain in place (unless and until varied by the Governor-General) to allow
the continued function of the Administration.
Control of spending during the interim transition time will ultimately rest with the
Commonwealth Minister, however it is anticipated that delegations will be made to enable
spending decisions to be made the Executive Director, the Chief Executive Officer of the
Norfolk Island Administration and the responsible managers of Territory authorities (but only
in relation to spending by the Territory authority). Existing delegations made for the purposes
of approving proposals to enter into arrangements will remain in effect.
As the structure and arrangements relating to the financial framework are to be kept in place,
there are a large number of minor amendments dealing with the abolition of various offices
and bodies, and transferring duties and functions conferred on certain persons to the
Administrator, or another appropriate person.
1.1.4 Employment arrangements during the interim transition time
All employees of the Administration prior to the interim transition time will remain as such.
In addition, the Bill provides that any person who at the interim transition time was not an
employee of the Administration or of a territory instrumentally but was employed to perform
duties relating to the government of Norfolk Island will become an employee of the
Administration, on existing terms and conditions, which may be varied. All such employees
will continue on existing terms and conditions of employment. Such employees are not
Commonwealth Public Service Act 1999 employees.
1.2 Second phase: Final governance arrangements
The final governance arrangements for Norfolk Island will be established on the
commencement of Schedule 2 of the Bill. The final governance arrangements are similar to
those applying to Christmas Island and the Cocos (Keeling) Islands, with the exception that
the Norfolk Island judicial arrangements will continue.
1.2.1 Legislative arrangements at the final transition time
The Bill establishes an applied laws regime for Norfolk Island similar to that operating on
Christmas Island and the Cocos (Keeling) Islands. From commencement of the final transition
time, the default body of law on Norfolk Island is New South Wales applied law (including as
amended, suspended or repealed by legislative instrument of the Governor-General under
Norfolk Island Act 1979). The application of New South Wales law as Commonwealth law
does not in any way place any obligation on New South Wales or its officials to deliver
services or administer legislation in respect of Norfolk Island.
After the commencement date, the Governor-General may also exercise legislative power for
peace, order and good governance of the Territory by Ordinance under the Norfolk Island Act
1979. These post-commencement instruments prevail to extent of any inconsistency with any
other applied NSW law or pre-existing law of the Territory.
However, instruments made by the Governor-General cannot affect nor effect the operation of
Commonwealth law in Norfolk Island (so Commonwealth legislation will apply according to
5
its terms, and will take priority over any local Territory law, unless the relevant
Commonwealth law provides otherwise (see subsection 8E(2) of Christmas Island Act 1958
for equivalent provision)). Subsection 18(1) of the Norfolk Island Act 1979 will remain in
place, meaning that Commonwealth legislation does not extend to Norfolk Island unless it is
expressed to extend.
The application of New South Wales laws will not, of itself, confer powers or impose
responsibilities on New South Wales authorities or officers. Non-judicial powers and duties
will be vested in the Commonwealth Minister administering the Norfolk Island Act 1979, who
will have a capacity to delegate the powers, or direct that they be delegated to some other
person or authority.
1.2.2 Executive arrangements at the final transition time
Executive functions provided for under applied New South Wales law will be the
responsibility of the Commonwealth Minister, who may choose to delegate these functions to
officers in his or her Department or other appropriate individuals or authorities.
The Commonwealth Minister will also be able to enter into arrangements with the
Government of New South Wales for assistance in the administration of applied laws and
other laws in force in the Territory, including the performance of functions and provision of
services by New South Wales agencies on behalf of the Commonwealth.
At the local level, a Norfolk Island Regional Council will be established as an elected body to
perform local level and municipal functions.
1.2.3 Employment arrangements at the final transition time
Employees of the Norfolk Island Administration will be transferred to the Norfolk Island
Regional Council at the final transition time. It is expected that they will perform many of the
same functions in the Regional Council as they already do, with some allowance for
modernisation and restructuring. Employees will not be entitled to any payment when they
cease as an employee of the Administration, but will be employed under the same terms and
conditions.
1.2.4 Treatment of Assets and liabilities of the Norfolk Island Administration
Upon commencement of the final transition time, the Norfolk Island Administration will
cease to exist. Provision has been made for assets and liabilities of the Norfolk Island
Administration to vest in the Norfolk Island Regional Council, unless the Commonwealth
Minister determines via a transition rule that any specified such asset or liability is to vest in
the Commonwealth. Provision is made for the Commonwealth Minister to make transitional
rules dealing with the transfer of Administration records to the Commonwealth or the
Regional Council.
2. Extension of mainland social security, immigration, and health arrangements to
Norfolk Island and changes to Australia's taxation system
Norfolk Island is the only inhabited place in Australia where residents do not participate in
the taxation system, and the only place where Australians cannot access the Australian social
security system. During the 2013 Federal election, the Government committed to extend
federal taxation and social welfare systems to Norfolk Island to address issues of community
welfare and ensure Australian citizens are treated equally throughout the country.
6
Extending the mainland social security system and, by extension, the mainland taxation and
superannuation systems, will address issues of equity and welfare for Australian citizens and
bring the rights and responsibilities of Norfolk Island residents in line with Australians living
in Australia`s other external territories such as Christmas Island.
The Norfolk Island Legislation Amendment Bill 2015 deals with the introduction of mainland
social security (including the Medicare Benefits Schedule and the Pharmaceutical Benefits
Scheme) and immigration arrangements. Amendments relating to the application of taxes and
levies are part of this package of reforms but are dealt with in separate Bills, consistent with
s. 55 of the Constitution.
The extension of health and social welfare arrangements is to take effect on commencement
of Schedule 2 Part 1 of the Norfolk Island Legislation Amendment Bill 2015, which is
1 July 2016.
2.1 Extension of social security
This Bill extends mainland social security arrangements to Norfolk Island. Programmes and
payments extended include the Age Pension, Newstart Allowance, Disability Support Pension
and Youth Allowance. This will ensure Norfolk Island residents have access to social
security on the same terms as other Australians.
Transitional provisions are included in the Bill to ensure both that these changes do not create
a retrospective entitlement to payments for Norfolk Island Residents, and also so that
Norfolk Island residents are not disadvantaged by legislated waiting periods for payments.
The Aged Care (Accommodation Payment Security) Levy Bill 2006 supports this measure by
making consequential amendments to Aged Care (Accommodation Payment Security) Levy Act
2006 as a result of the extension of associated aged care legislation to Norfolk Island.
2.2 Extension of health arrangements
This Bill extends a number of health arrangements which exist on mainland Australia,
including the Medicare Benefits Schedule, the Pharmaceutical Benefits Scheme and the
Private Health Insurance Rebate. These measures commence from 1 July 2016 and are an
important part of ensuring the ongoing welfare of Australians on Norfolk Island.
In relation to Private Health Insurance, this Bill ensures that the same rules that apply to the
calculation of the lifetime health cover base day for others will be applied equally to residents
of Norfolk Island once they become eligible for Medicare. Transitional arrangements
providing Norfolk Islanders a period of 12 months to take out Private Health Insurance and
avoid the Lifetime Health Cover Loading are therefore included in the Bill.
The extension of health arrangements are supported by a number of other bills which make
minor consequential amendments to health related acts:
Health and Other Services (Compensation) Care Charges Amendment (Norfolk
Island) Bill 2015;
Health Insurance (Approved Pathology Specimen Collection Centres) Tax
Amendment (Norfolk Island) Bill 2015;
Health Insurance (Pathology) (Fees) Amendment (Norfolk Island) Bill 2015; and
Private Health Insurance (Risk Equalisation Levy) Amendment (Norfolk Island) Bill
2015
7
These additional bills extend tax and levy related health measures to Norfolk Island, as part of
the extension of mainland health arrangements to the Territory.
2.3 Extension of immigration arrangements
This Bill normalises immigration arrangements for Norfolk Island by extending the
application of the Migration Act 1958 and the Immigration (Guardianship of Children) Act
1946 to Norfolk Island. These amendments will have the effect of ensuring that Norfolk
Island is treated in a way consistent with Australia`s other inhabited external territories such
as Christmas Island. Transitional arrangements will be put in place to ensure that non-
citizens on Norfolk Island can be granted visas under the Australian Migration system to
ensure they do not inadvertently become unlawful as a result of the transition.
2.4 Changes to Australia's tax system
Schedule 1 to the Tax and Superannuation Laws Amendment (Norfolk Island Reforms) Bill
2015 amends the Income Tax Assessment Act 1936, Income Tax Assessment Act 1997 and
Superannuation Guarantee (Administration) Act 1992 to repeal the:
· income tax exemptions that apply to Norfolk Island resident individuals,
companies and trustees in relation to their Norfolk Island sourced income and
their foreign sourced income, bringing them fully into Australia`s income tax
system;
· Medicare levy exemptions that apply to Norfolk Island residents, bringing them
fully into Australia`s Medicare levy system; and
· superannuation guarantee charge exemptions that apply to Norfolk Island
employers and employees in relation to work performed on Norfolk Island,
bringing them fully into Australia`s superannuation guarantee system.
The A New Tax System (Medicare Levy Surcharge-Fringe Benefits) Amendment Bill 2015
supports this measure by making consequential amendments to A New Tax System (Medicare
Levy Surcharge-Fringe Benefits) Act 1999 as a result of the repeal of the Medicare levy
exemptions. The taxation and superannuation reforms generally apply from 1 July 2016; with
transitional arrangements applying in relation to capital gains tax and superannuation
guarantee charge.
Financial impact statement
The total Norfolk Island reform package (including this Bill and related measures) is
estimated to cost $136.2 million over the forward estimates.
8
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Norfolk Island Legislation Amendment Bill 2015 and related Bills
These Bills are compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
The principal objective of this package of bills is to provide the necessary framework for the
sustainable economic and social development of the Norfolk Island Community. This is
achieved through two principal reforms. The first is amendment of the Norfolk Island Act
1979 to reform governance and legal arrangements of Norfolk Island. This will implement in
large measure the Government`s response to the Same Country: Different World report of
the Joint Standing Committee on the National Capital and External Territories.
The second principal object of this package of Bills is the extension of many mainland social
security, immigration, and health arrangements to Norfolk Island. This will implement in
large part the election commitment of the Australian Government made in September 2013
and is consistent with the general principle that as Norfolk Island is part of Australia, those
Australians who live there should have the same obligations and receive the same access to
benefits as other Australians.
A more detailed description of this package of Bills is set out in the Outline to the
Explanatory Memorandum.
Human rights implications
The following human rights are engaged by this package of Bills:
- The right to self-determination
- The rights of minorities
- The right to take part in public affairs and elections
- The right to freedom of movement
- The right to social security
- The right to health
- The right to an adequate standard of living, and
- The right to work
The right to self-determination
Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and Art 1 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR) provide that all
peoples have the right of self-determination and that by virtue of that right they can freely
determine their political status and freely pursue their economic, social and cultural
development.
Some parts of the Norfolk-Pitcairn population of Norfolk Island identify as a people with
rights to self-determination. The proposed governance reforms, which effectively remove
9
Norfolk Island`s self-governing status, may be viewed by this group as being inconsistent
with the right to self-determination.
Even if it is accepted that the Norfolk-Pitcairn population are a people with a right to self-
determination, self-determination is widely understood to be exercisable in a manner that
preserves the territorial integrity, political unity and sovereignty of a country, such as
Australia. Self-government of Norfolk Island is thus not a prerequisite to exercising any right
of self-determination.
The right to self-determination does, however, require that peoples be consulted about
decision that impact on them and have the opportunity to participate in the making of such
decisions, including through the processes of democratic government. It also includes a right
to preserve group identity and culture.
The proposed governance reforms are the result of an extensive consultation process,
including as led by the Administrator of Norfolk Island in response to the report of the Joint
Standing Committee on the National Capital and External Territories Same Country:
Different World. The Norfolk Island community was consulted over several months through
public forums, facilitated discussions, meetings with community leaders and groups, and the
option to provide views directly over the internet or by letter. Hundreds of community
members participated in one or more of the consultation processes. These consultations found
significant support for change within the Norfolk Island community.
The primary purpose of the proposed governance reforms and the extension of mainland
social security, immigration and health arrangements to Norfolk Island is to provide for the
sustainable economic and social development of Norfolk Island, which are important aspects
of the right to self-determination. The maintenance of the Norfolk-Pitcairn culture relies to
some extent on the opportunities for members of that community to remain living on Norfolk
Island. The proposed reforms will facilitate this by providing for sustainable economic
development on Norfolk Island.
During the interim transition time from the current governance arrangements to the new
governance arrangements, the population of Norfolk Island, including the Norfolk-Pitcairn
population, will be able to participate in the making of decisions that affect them through the
Advisory Council.
Under the new governance arrangements, the Australian citizens of Norfolk Island will be
able to directly elect a Norfolk Island Regional Council, which will be responsible for local
level and municipal government functions on Norfolk Island, such as the provision and
maintenance of roads, power, water and sewerage, waste disposal and treatment, land use
planning, management of local natural areas, historic and cultural places and public recreation
facilities. The population of Norfolk Island will also remain eligible to vote in
Commonwealth elections.
In light of the above factors, the Norfolk Island Legislation Amendment Bill 2015 and related
Bills are consistent with any applicable right to self-determination.
Rights of minorities
Article 27 of the ICCPR is an individual right which overlaps to some extent with the
collective right of peoples to self-determination. Article 27 provides that:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in community with other members of their
group, to enjoy their own culture, to profess and practice their own religion, or to use their
own language`.
10
The Norfolk-Pitcairn population of Norfolk Island may constitute a minority under Art 27.
The proposed governance reforms and the extension of mainland social security, immigration
and health arrangements to Norfolk Island do not limit in any way the existing rights of the
Norfolk-Pitcairn population to enjoy their own culture or use their own language. As noted
above, the primary purpose of these reforms is to provide for the sustainable economic and
social development of Norfolk Island, which will in turn facilitate the maintenance of the
Norfolk-Pitcairn culture.
The right to take part in public affairs and elections
Article 25 of the ICCPR sets out another right which is related to, but distinct from the right
to self-determination. Article 25 relevantly provides that:
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in Article 2 (i.e. race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status) and without unreasonable restriction:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the free expression of
the will of the electors;
(c) ...`
(see also Art 5(c) of the Convention on the Elimination of All Forms of Racial Discrimination
(CERD), Arts 7 and 8 of the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW), and Art 29 of the Convention on the Rights of Persons with
Disabilities (CRPD).
The Bill engages this right through the abolition of the Norfolk Island Legislative Assembly.
However, the Human Rights Committee has recognised that the right to take part in public
affairs and elections can be met by different models of governance, so long as these are
democratic and based on the consent of the people (see General Comment No 25 at para 1).
The final governance arrangements proposed for Norfolk Island, and of which the
amendments made by this Bill are a significant component, will include the establishment of a
Norfolk Island Regional Council, responsible for local and municipal issues, elected by the
Australian citizens of Norfolk Island. Further, Norfolk Islanders who are Australian citizens
will retain the right to vote in Commonwealth elections (the Commonwealth government will
be responsible for certain aspects of the governance of Norfolk Island, through the application
of Commonwealth laws including those relating to taxation, social security, the provision of
health care, immigration, and through the administration of New South Wales laws as applied
to Norfolk Island). This model is consistent with arrangements in Australia`s other inhabited
external territories such as Christmas Island and the Cocos (Keeling) Islands.
The final governance arrangements proposed for Norfolk Island are thus consistent with
Art 25(a) and (b), although the model for achieving this right is different to that currently in
place on Norfolk Island.
During the interim transition time, the ability of individuals on Norfolk Island to participate in
the conduct of public affairs at the local level will be more limited due to a lack of a
democratically elected mechanism at the local level during this period. The transition from
one governance model to another is a complicated process, which must be undertaken in a
careful and considered manner to avoid unintended negative impacts on the community
affected. The interim transition time from the current governance model, which has proved
11
itself over a number of years to be financially unsustainable and not to be serving the needs of
the Norfolk Island community, to the new governance model is designed to avoid such
negative impacts and give the necessary time to put the new governance model in place, while
taking immediate action to redress Norfolk Island`s depressed economy and the poor
condition of its essential services. The present Norfolk Island Government has effectively
been insolvent for a number of years and has been unable to deliver an appropriate level of
services.
The short term limitation on local democratic representation is a reasonable, necessary and
proportionate measure in light of the pressing need to address the numerous problems facing
the Norfolk Island community. The creation of an Advisory Council of local community
representatives will minimise the impact of the absence of local democratic representation for
this interim period, which is expected to be less than 2 years. Participation in an advisory
council is a recognised form of participation in the conduct of public affairs (see General
Comment No 25 at para 6). Australian Citizens will still be able to vote in Federal elections
and express their views to the responsible Commonwealth Minister, the Administrator on
Norfolk Island or the Executive Director. Community members may also engage with elected
representatives in the Federal Parliament.
The right to freedom of movement
Article 12(1) of the ICCPR provide that everyone lawfully within the territory of a State shall,
within that territory, have the right to liberty of movement and freedom to choose his
residence. A similar right is found in Art 10 of the Convention on the Rights of the Child
(CRC), Art 18 of the CRPD, Art 5 of the CERD and Art 15 of CEDAW.
Norfolk Island is the only inhabited territory of Australia to which the Migration Act 1958
does not extend. This Bill proposes to extend the application of the Migration Act 1958 and
the Immigration (Guardianship of Children) Act 1946 to Norfolk Island, which will overtake
the Immigration Act 1980 (NI) in providing for migration related matters. This promotes the
right to freedom of movement of Australians by reducing barriers to movement, including
removing the need for Australians not resident on Norfolk Island to carry passports for travel
to Norfolk Island (which is internal travel within Australia) and the removal of residency fees
for those who wish to reside permanently on Norfolk Island.
The right to social security
Article 9 of ICESCR recognises the right of everyone to social security, including social
insurance. A similar right is found in Art 26 of the CRC and Art 28 of the CRPD. Under
Art 2(1) of ICESCR, a country is obliged to take steps 'to the maximum of its available
resources, with a view to achieving progressively the full realisation' of the rights recognised
in ICESCR.
Extension of the mainland social security systems, including superannuation, payments and
services available to other Australians living in Australia promotes Norfolk Island residents`
right to social security. The mainland social security system is manifestly more
comprehensive than the Norfolk Island Government`s own welfare system, which does not
provide any family assistance, childcare or unemployment payments.
The right to health
Article 12 of ICESCR recognises the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health. A similar right is found in Art 24 of the
CRC and Art 25 of the CRPD. Under Art 2(1) of ICESCR, a country is obliged to take steps
'to the maximum of its available resources, with a view to achieving progressively the full
12
realisation' of the rights recognised in ICESCR. Ensuring that health services are affordable is
one component of this right.
The extension of the Medicare Benefits Schedule and the Pharmaceutical Benefits Scheme
will promote the right to health of Australian citizens on Norfolk Island. The pre-existing
Norfolk Island health scheme only subsidises expenses beyond a threshold, whereas Medicare
and the PBS begin providing assistance immediately. This will improve the access of citizens,
and particularly low income earners, to healthcare on the Island.
The right to an adequate standard of living
Article 11(1) of ICESCR recognises the right of everyone to an adequate standard of living
for himself and his family, including adequate food, clothing and housing, and to the
continuous improvement of living conditions. A similar right is found in Art 27 of the CRC
and Art 28 of the CRPD. Under Art 2(1) of ICESCR, a country is obliged to take steps 'to the
maximum of its available resources, with a view to achieving progressively the full
realisation' of the rights recognised in ICESCR.
The primary objective of the governance reforms and extension of mainland social security,
health and other arrangements to Norfolk Island is to address the effective insolvency of the
current Norfolk Island Government and its inability to deliver an appropriate level of basic
services to the Norfolk Island Community. Further, the governance reforms will allow
investments to be made to revitalise Norfolk Island`s depressed economy. All of these steps
will assist in improving the standard of living on Norfolk Island.
The right to work
Article 6(1) of ICESCR recognises the right to work, which includes the right of everyone to
the opportunity to gain his living by work which he freely chooses or accepts. Under this
Article, State Parties undertake to take appropriate steps to safeguard this right. A similar
right is found in Art 27 of the CRPD. Under Art 2(1) of ICESCR, a country is obliged to take
steps 'to the maximum of its available resources, with a view to achieving progressively the
full realisation' of the rights recognised in ICESCR.
Steps that State Parties take to achieve the full realisation of the right to work must include
policies and techniques to achieve steady economic, social and cultural development (see
Art 6(2)). As noted above, one of the primary aims of the reforms set out in the Norfolk Island
Legislation Amendment Bill 2015 and related Bills is to revitalise the Norfolk Island
economy, which in turn should lead to the creation of more jobs on Norfolk Island hence
facilitating the realisation of the right to work for Norfolk Island residents.
Conclusion
The Bill is compatible with human rights because it advances the protection of human rights.
To the extent that it may limit human rights, those limitations are reasonable, necessary and
proportionate.
Assistant Minister for Infrastructure and Regional Development, the Hon Jamie Briggs MP
13
NORFOLK ISLAND LEGISLATION AMENDMENT BILL 2015
NOTES ON CLAUSES
Clause 1: Short Title
Item 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
Table Item 1 specifies that sections 1 to 4 of the Bill (the short title, commencement,
schedule, and translation of certain references provisions) will commence upon the Act
receiving the Royal Assent.
Table Item 2 provides for provisions in Schedule 1 Part 1 of the Bill (the general
amendments) and Schedule 1 Part 2 (transitional provisions including establishment of the
Advisory Council) to commence on a day to be fixed by proclamation, or, if proclamation
does not occur within 6 months, on the day after the end of the 6 month period.
Table Item 3 provides that Schedule 1 Part 2 (transitional provisions) will commence the day
after the Act receives the Royal Assent.
Table Item 4 establishes that Schedule 1 Part 3 will commence immediately after both the
provisions referenced in Table Item 2 commence, and Schedule 1 to the Acts and Instruments
(Framework Reform) Act 2015 commence. The provision in Schedule 1 Part 3 is contingent
on the commencement of Schedule 1 to the Acts and Instruments (Framework Reform) Act
2015.
Table Item 5 provides that Schedule 2 Part 1 of the Bill, containing clauses relating to the
final governance model for Norfolk Island will commence on 1 July 2016.
Table Item 6 specifies that Schedule 2 Part 2 of the Bill, which contains transitional
provisions, will commence at the same time as the provisions in Table Item 2.
Table Item 7 specifies that Schedule 3 of the Bill, containing a minor amendment to the
Census and Statistics Act 2005, will commence the day after the Act receives the Royal
Assent.
Clause 3: Schedules
Item 3 provides that each Act in any schedule of this Bill is amended or repealed as set out in
the applicable item in the Schedule. It also provides that any other item in a Schedule has
effect according to its terms, which relate to provisions such as application provisions. It also
allows that any regulation under Subsection (1) to be amended or repealed by the Governor-
General.
14
Clause 4: Translation of certain references
Clause 4 provides that if Schedule 1 to the Acts and Instruments (Framework Reform) Act
2015 commences before the commencement of Part 1 of Schedule 1 to the Norfolk Island
Legislation Amendment Bill 2015, then the reference in Division 2 to the Legislative
Instrument Act 2003 should be read as a reference to the Legislation Act 2003.
SCHEDULE 1 - Interim arrangements etc.
Part 1--General Amendments
Division 1--Amendment of the Norfolk Island Act 1979
Preamble
Item 1 provides for the repeal of the preamble to the Norfolk Island Act 1979 as the preamble
no longer reflects the Parliament`s intention for the governance of Norfolk Island, as
expressed in this Bill.
Items 2-14 (Inclusive) Amendments to Subsection 4(1)--Interpretation
Item 2 inserts a new definition of Advisory Council` to mean the Norfolk Island Advisory
Council which is a body established in this Bill. It also inserts a definition of Australia` that
includes Norfolk Island when used in a geographic sense. This definition differs from the
definition of Australia` in the Acts Interpretation Act 1901 that does not include Norfolk
Island.
Item 3 removes a reference to the repealed Public Sector Management Act 2000 (NI) and
substitutes the Public Service Act 2014 (NI).
Item 4 repeals the definition of Chief Minister` as this position ceases to exist from
commencement of the interim transition time.
Item 5 repeals the definition of Commonwealth Gazette`. This definition was required by
virtue of subsections 39AB (1), 39AC (2) and paragraph 39AC (8)(a) of the Norfolk Island
Act 1979, which are repealed from commencement of the interim transition time.
Item 6 repeals the definition of Deputy Speaker` as this position ceases to exist from
commencement of the interim transition time.
Item 7 repeals the definition of enactment` and replaces it so as to include ordinances made
by the Governor-General under section 19A, or an ordinance continued in force by this Act,
or a law of the Norfolk Island Legislative Assembly, which is continued by this Act.
Item 8 repeals the definition of Executive Council` as this body ceases to exist from
commencement of the interim transition time.
Item 9 inserts a new definition of Executive Director` which is a new position established in
this Bill.
Item 10 inserts a new definition of interim transition time` to mean the commencement of
Part 1 Schedule 1 to this Bill.
Item 11 amends the definition of legislative assembly` to clarify that the term is used, in the
Bill, to refer to the Legislative Assembly that will cease to exist from the commencement of
the interim transition time.
15
Item 12 inserts a new definition of Legislative Assembly law` to mean a law passed by the
Norfolk Island Legislative Assembly, and assented to under the Norfolk Island Act 1979
before the interim transition time.
Item 13 inserts a new definition of member of the Advisory Council` to clarify that the Chair
of the Advisory Council is a member of the Advisory Council.
Item 14 repeals the definition of Minister` as the position ceases to exist from
commencement of the interim transition time.
Item 15 repeals the definition of Minister for Finance` as the position ceases to exist from
commencement of the interim transition time.
Item 16 defines section 19A Ordinance` to mean an ordinance made under that section after
the interim transition time.
Item 17 repeals the definition of Speaker` as the position ceases to exist from commencement
of the interim transition time.
Item 18 repeals subsection 4(2) which references Schedules 2 and 3 of the Norfolk Island Act
1979. These schedules are being repealed, making subsection 4(2) redundant.
Item 19 repeals a section stating that Chapter 2 of the Criminal Code as this provision is
redundant.
Item 20 Repeal of Section 7 and substitution of New Sections 7 and 7A
Item 21 repeals Section 7--Exercise of Administrator`s powers etc. and substitutes text as
follows.
Subsection 7(1) requires the Administrator to exercise powers and functions conferred on the
Administrator.
Paragraph 7(1)(a) requires the Administrator to exercise powers and perform functions in
accordance with the tenor of his or her Commission.
Paragraph 7(1)(b) requires the Administrator to discharge his or her powers and functions in
accordance with written directions which may be given by the Commonwealth Minister.
Subsection 7(2) specifies that a direction issued by the Commonwealth Minister under
paragraph 7(1)(b) can be either general or specific in nature. This is intended to allow the
Commonwealth Minister to direct the Administrator either in relation to specific cases or
decisions the Administrator may make, or a general direction, for example in relation to a
type or class of decisions for which the Administrator may have decision making powers.
Subsection 7(3) allows the responsible Commonwealth Minister to require the Administrator
to give notice of the Administrator`s intention to exercise a specified power or function, at
least a specified number of days before exercising that power or performing that function.
Subsections 7A(1)enables the Administrator to delegate any or all of the Administrator`s
functions and powers to the Executive Director, or an employee of the Administration, or to
an office holder under an enactment, or to an employee of a body corporate established under
a Norfolk Island enactment. This power of delegation is needed to ensure the usual business
of Government in the Territory can be performed during the transition period. As the
Administrator has a large number of functions under Norfolk Island enactments and is likely
to be delegated a large number of functions under Norfolk Island enactments from the
responsible Commonwealth Minister, many functions will need to be delegated to the
Executive Director to allow him or her to manage the day to day functions of the Norfolk
16
Island Administration and other territory instrumentalities. Some powers may need to be
delegated to employees of the Administration and statutory office holders under existing
Norfolk Island enactments to enable these employees and office holders to continue making
decisions as they discharge their functions.
Subsection 7A(2) states that a delegate must comply with any written directions of the
Administrator and any written directions of the responsible Commonwealth Minister.
Subsection 7A(3) specifies that a direction issued under subsection 7(2) can be either general
or specific in nature.
Subsections 7A(4) and (5) provide that if a direction of the Administrator issued under
subsection 7(2) is inconsistent with a direction issued by the responsible Commonwealth
Minister under subsection 7(2), then the direction issued by the responsible Commonwealth
Minister will prevail.
Subsection 7A(6) allows the responsible Commonwealth Minister to require a delegate of the
Administrator to give notice of his or her intention to exercise a specified power or function,
at least a specified number of days before exercising that power or performing that function.
Subsection 7A(7) is a technical provision which confirms that relevant provisions of the Acts
Interpretation Act 1901 relating to delegations under Acts also apply to this section in relation
to delegations of powers conferred by other laws (i.e. NI enactments).
Subsection 7A(8) states for clarity that nothing in section 7A prevents a power or delegation
being conferred on the Administrator by an enactment.
Item 21 Repeal of sections 9 and 10, New Section 9, 10 and 10A
Item 21 repeals sections relating to Deputies of the Administrator and Oaths or affirmation of
Administrator etc. The Deputy Administrator is no longer required as the Administrator will
be assisted by the new position of Executive Director during the interim transition time.
New Section 9 establishes the position of Executive Director of Norfolk Island, to be
appointed by the relevant Commonwealth Minister. The Executive Director will be a senior
employee of the Administration, and will perform much of the oversight and general
management role of the Norfolk Island Administration and territory instrumentalities
including the Norfolk Island Hospital Enterprise, Norfolk Island Tourism, and the Norfolk
Island Gaming Enterprise. It is intended for the Executive Director to use powers delegated
by the Administrator to begin restructuring the Norfolk Island Administration and improving
the efficiency of the public bodies, whilst administering the daily functions of the Norfolk
Island Administration. Subsection 9(2) confirms the written appointment of an Executive
Director is not a legislative instrument. This is because it is not legislative in character and
therefore not within the meaning of section 5 of the Legislative Instruments Act 2003. This
subsection confirms this and is included to assist readers.
New Section 10 provides a power for the Administrator to engage employees on behalf of the
Administration, and also for the Administrator to specify the terms and conditions of any
people employed by the Administrator on behalf of the Administration. Subsection 10(3)
states Section 10 does not nullify the provisions of any other enactments that allow employees
to be engaged on behalf of the Commonwealth. Subsection 10(4) clarifies the section does
not, by implication, limit any of the powers conferred on the Administrator by section 5.
New Section 10A allows for officers and employees of Commonwealth agencies or
Commonwealth authorities to be made available to assist the Administration.
17
Item 22 Repeal of Part III, substitute new Part III--Norfolk Island Advisory Council
Item 22 repeals Part III of the Norfolk Island Act 1979 which relates the Norfolk Island
Legislative Assembly, and replaces it with a new Part III, concerning the Norfolk Island
Advisory Council.
New Section 11 is a formal provision providing a simplified outline of the new Part III.
New Section 12 establishes the Norfolk Island Advisory Council. The Advisory Council is
intended to tender advice to the Administrator in the time between the commencement of the
interim transition time and the commencement of the final transition time.
New Section 13 specifies the functions of the Advisory Council.
New Subsection 13(a) specifies the Advisory Council can advise the Administrator on matters
affecting the peace, order and good government of the Territory. This provides the Council
with broad discretion about the matters concerning Norfolk Island on which it may choose to
advise.
New Subsection 13(b) further specifies that the Advisory Council may perform any additional
functions which are subsidiary to the function specified in subsection 13(a).
New Section 14 establishes that the Advisory Council will consist of a Chair and four other
members, meaning a total of five Advisory Council members.
New Section 14A allows the responsible Commonwealth Minister to appoint members of the
Advisory Council by written instrument, with Advisory Council members to hold office on a
part time basis.
New Section 14B specifies the responsible Commonwealth Minister will determine the length
of an appointment to the Advisory Council, with the length of appointment not to exceed
12 months.
New Section 14C makes provision for acting members of the Advisory Council.
New Subsection 14C(1) specifies the responsible Commonwealth Minister may appoint an
acting Chair of the Advisory Council in the circumstances specified in the two following
paragraphs.
New Paragraph 14C(1)(a) allows an acting Chair of the Advisory Council to be appointed
when there is a vacancy in the office of the Chair of the Advisory Council, including in
circumstances where the appointment of Chair of the Advisory Council has not yet been
made.
New Paragraph 14C(1)(b) allows an acting Chair of the Advisory Council to be appointed in
circumstances when the Chair is absent from duty or Australia, or is unable to perform the
duties of the office.
New Subsection 14C(2) makes provision for the responsible Commonwealth Minister to
appoint a person to act as a member of the Advisory Council (other than the Chair of the
Advisory Council, provision for which is made in subsection 14C(1)).
New Paragraph 14C(2)(a) allows an acting Advisory Council member to be appointed when
there is a vacancy on the advisory Council, including whether or not an appointment has
previously been made to the Advisory Council.
New Paragraph 14C(2)(b) allows an acting member of the Advisory Council to be appointed
in circumstances when a member is absent from duty or Australia, or is unable to perform the
duties of the office.
18
New Section 14D allows the responsible Commonwealth Minister to specify remuneration
and allowances (if any) for members of the Advisory Council in a legislative instrument.
New Section 14E requires members of the Advisory Council to advise the responsible
Commonwealth Minister in writing of all interests (pecuniary or otherwise) which conflict or
may conflict with the performance of the member`s functions on the Advisory Council. It
also requires Advisory Council members to notify in writing the responsible Commonwealth
Minister should they, during their term as members, acquire any interests (pecuniary or
otherwise) which conflict or may conflict with the performance of the member`s functions on
the Advisory council.
New Subsection 14F(1) provides that a member may resign by giving written notice to the
responsible Commonwealth Minister.
New Subsection 14F(2) provides that the resignation will take effect on the day it is received
by the responsible Minister, unless a later day is specified in the resignation.
New Section 14G allows the Commonwealth Minister to terminate the appointment of a
member of the Advisory Council for any reason.
New Section 14H specifies that the responsible Commonwealth Minister may determine
terms and conditions for Advisory Council members, and that members hold office on the
basis of the terms and conditions specified (if any are specified by the responsible
Commonwealth Minister).
New Section 14J allows the responsible Commonwealth Minister to determine, by legislative
instrument, the procedures to be followed at or in relation to meetings of the Advisory
Council. It includes a non-exhaustive list of matters on which the responsible Commonwealth
Minister may prescribe procedures.
New Section 14K requires the Advisory Council to keep minutes of its meetings.
New Section 14L inserts a new section which relates to assistance to the Advisory Council.
New Subsection 14L(1) allows the Administrator to assist the Advisory Council. In practice,
the Administrator may instruct employees of the Administration to provide assistance to the
Advisory Council.
New Subsection 14L(2) provides a non-exhaustive list of the assistance the Administrator
may provide the Advisory Council. In practice this assistance would include advice and
information, secretariat services, clerical assistance and potentially meeting facilities.
New section 14M clarifies that neither the Administrator, nor any other person, is required to
obtain advice from the Advisory Council before performing a function, or exercising a power,
or taking other action.
Item 23 New Section 15
Item 23 inserts a new section 15--Laws in force in the Territory.
New Section 15 is a new section which specifies which laws are in force in Norfolk Island
from time to time after the interim transition time, namely:
Commonwealth Acts to the extent they are in force from time to time in the Territory;
Laws made under those Acts;
Ordinances made under new s 19A after the interim transition time; and
19
Laws that were in force prior to the interim transition time and which have been
continued in force by section 16 or new section 16A (see item 26) (and which may be
amended in accordance with s 17, including by a new s 19A Ordinances).
Item 24
Item 24 amends the heading of section 16 to clarify that section 16 relates to those laws which
were in force immediately before the commencement of the Norfolk Island Act 1979, which
was on 7 August 1979.
Item 25
Item 25 adds a note for clarity that subsection 16(1) commenced on 7 August 1979.
Item 26 New Section 16A
New Section 16A provides that certain laws which were in force before the interim transition
time continue in force during the interim transition time. These include legislative assembly
laws and ordinances under the Act which were in effect before the interim transition time.
Item 27 New Subsections 17(3) and 17(4)
Item 27 adds new subsections (3) and (4) to section 17. These subsections allow laws
continued in force by section 16 or section 16A to be amended by a section 19A ordinance or
a law made under a section 19A ordinance.
Item 28 Repeal of Divisions 2 and 3 of Part IV, and new Division 2
Item 28 repeals Division 2 (Legislative power of Legislative Assembly) and Division 3
(Legislative power of the Governor-General) and substitutes a new Division 2 (Legislative
powers of the Governor-General).
New Subsection 19A(1) is a provision giving the Governor-General plenary power to make
Ordinances for the peace, order and good government of Norfolk Island.
New Subsection 19A(2) provides that an ordinance made by the Governor-General is a
legislative instrument. Sunsetting provisions do not apply to legislative instruments made
under this subsection by virtue of the exemption in item 47 of section 54 of the Legislative
Instruments Act 2003, which provides an exemption from sunsetting for ordinances of non-
self-governing territories`.
Item 29
Item 29 renames Division 4 of Part IV to Division 3--Inconsistency of laws.
Item 30
Item 30 renames section 29 to Inconsistency of Legislative Assembly laws with old
Ordinances.
Item 31
Item 31 replaces Division 2 with Repealed Division 2 (as in force before the interim
transition time.
Item 32
Item 32 replaces section 27 with repealed section 27 (as in force before the interim
transition time).
20
Item 33 Repeal of Section 30, and new Section 30
Item 34 repeals section 30 Commencement of enactments and substitutes a new section 30
(inconsistency of section 19A Ordinances with the regulations).
New Subsection 30(1) provides that in the case of any inconsistency between the regulations
and a section 19A Ordinance, the regulations will prevail to the extent of the inconsistency.
New Subsection 30(2) provides that for the purposes subsection 30(1), an ordinance is
consistent with the regulations to the extent to which the section 19A ordinance and the
regulations are capable of operating together.
New Subsection 30(3) provides that references to a section 19A ordinance within section 30
also encompasses laws made under a section 19A ordinance.
Item 34
Item 34 repeals Part V of the Act: The Legislative Assembly`, which has the effect that the
Norfolk Island Legislative Assembly ceases to exist at the interim transition time.
Item 35
Item 35 omits the phrase (4) or from subsection 47(3)
Item 36
Item 36 repeals subsection 47(4) as this provision relates to schedule 2 of the Act, which is
repealed by this Bill.
Item 37
Item 37 omits the phrase (other than the general purpose referred to in subsection (4)) as
subsection (4) is repealed by this Bill.
Item 38
Item 38 omits the phrase subject to subsection 27(3) from subsection 47(5) to remove a
redundant reference to subsection 27(3), which relates to the legislative power of the
Governor-General. The legislative power of the Governor-General is now dealt with under
new section 19A.
Item 39
Item 39 repeals the Note referencing section 25, as section 25 is repealed by this Bill.
Item 40
Item 40 changes the heading of Subsection 48A in order to substitute Minister for Finance
with Administrator.
Item 41
Item 41 substitutes Minister for Finance with Administrator in Subsection 48A(1).
Item 42
Item 42 repeals subsections 48A(4), (5) and (6) which require certain actions in relation to the
Norfolk Island annual budget and inserts a clause requiring the Administrator to give a copy
of the annual budget to the responsible Commonwealth Minister.
Item 43
Item 43 changes the heading of Subsection 48B in order to substitute Minister for Finance
with Administrator.
21
Item 44
Item 44 substitutes Minister for Finance with Administrator in Subsections 48B(1)
and (3), as the position of Minister for Finance ceases to exist on commencement of the
interim transition time.
Item 45
Item 45 repeals subsection 48B(4) as it relates to the position of Minister for Finance, which
ceases to exist on commencement of the interim transition time.
Item 46
Item 46 repeals paragraph 48C(3)(a) as it relates to the position of Minister for Finance,
which ceases to exist on commencement of the interim transition time.
Item 47
Item 47 repeals subsection 48C(4) as it relates to the position of Minister for Finance, which
ceases to exist on commencement of the interim transition time.
Item 48
Item 48 repeals subparagraph 48E(2)(b)(i) as it relates to the position of Minister for Finance,
which ceases to exist on commencement of the interim transition time.
Item 49
Item 49 repeals subsection 48E(3) as it relates to Norfolk Island Ministers, which will cease to
exist on commencement of the interim transition time.
Item 50
Item 50 repeals subsection 48E(4) as it relates to the position of Minister for Finance, which
will cease to exist on commencement of the interim transition time.
Item 51
Item 51 substitutes a Norfolk Island Minister with the Administrator in
Subsection 48F(3).
Item 52
Item 52 repeals paragraph 48G(2)(d) as it refers to the Norfolk Island Legislative Assembly
which ceases to exist on commencement of the interim transition time.
Item 53
Item 53 repeals paragraphs 48G(3)(c) and (d), and substitutes paragraphs which require
references to the Attorney-General or the Cabinet in section 37 of the Auditor-General Act
1997 to be read as references to the Administrator.
Item 54
Item 54 repeals paragraphs 48G(3)(g), (h), (i) and (j), and substitutes paragraphs which
require references to the Prime Minister, the Finance Minister or a responsible Minister in
section 37 of the Auditor-General Act 1997 to be read as references to the Administrator.
Item 55
Item 55 changes the heading of Section 48H in order to substitute Minister for Finance with
Administrator, as the Administrator will assume responsibility for the preparation of
financial statements.
22
Item 56
Item 56 substitutes Minister for Finance with Administrator in Subsection 48H(1) as the
Administrator will assume responsibility for the preparation of financial statements.
Item 57
Item 57 repeals subsections 48H(4), (5) and (6) which specify actions the Norfolk Island
Minister for Finance must perform in relation to the budget, and substitutes a subsection
requires the Administrator to provide a copy of the budget to the responsible Commonwealth
Minister.
Item 58
Item 58 substitutes Chief Minister with Administrator in Subsection 48J(1) as the
Administrator will be the relevant person to receive annual reports from the Chief Executive
Officer of the Norfolk Island Administration.
Item 59
Item 59 repeals subsections 48J(3) and (4), as these subsections relate the Chief Minister and
the Legislative Assembly, both of which cease to exist on commencement of the interim
transition time.
Item 60
Item 60 changes the heading of Section 48K in order to substitute Minister for Finance with
Administrator. The position of Minister for Finance will cease to exist on commencement
of the interim transition time.
Item 61
Item 61 omits references to the Minister for Finance and substitutes Administrator in
subsections 48K(1) and (2). These changes ensure the Administrator has powers to obtain
relevant information from territory authorities.
Item 62
Item 62 omits references to the Minister for Finance and substitutes Administrator in
subsections 48P(1) and (3), as the Minister for Finance ceases to exist on commencement of
the interim transition time. The obligations under these subsections will become obligations
of the Administrator.
Item 63
Item 63 repeals paragraph 48R(4)(b) as it relates to the position of Minister for Finance,
which ceases to exist on commencement of the interim transition time.
Item 64
Item 64 repeals paragraph 48S(4)(b) as it relates to the position of Minister for Finance, which
ceases to exist on commencement of the interim transition time.
Item 65
Item 65 changes the heading of Section 51 in order to substitute Minister for Finance with
Administrator.
Item 66
Item 66 omits references to the Minister for Finance and substitutes Administrator in
subsections 51(1) and (3).
23
Item 67
Item 67 changes the heading of Section 51A in order to substitute Minister for Finance with
Administrator.
Item 68
Item 68 omits references to the Minister for Finance and substitutes Administrator in
subsections 51A(1) and (3).
Item 69
Item 69 repeals subsection 53(2) as it relates to the Norfolk Island Executive Council which is
repealed by this Schedule
Items 70 and 71.
Items 70 and 71 remove references to Norfolk Island as a geographical place that are no
longer required by virtue of the new definition of Australia` in Item 2 which includes
Norfolk Island for the purposes of the Norfolk Island Act 1979.
Item 72 Repeal of sections 61, new section 61
New section 61 operates to ensure that the Public Service Act 1999 does not prevent a law of
the Territory making provision for the appointment or employing of a person or persons for
the purposes of the government of Norfolk Island, but that also ensures that the operation of
that Act in respect of the Territory is not limited.
Item 73
Item 73 repeals subsection 61A(2) which specifies which persons are obliged to uphold the
Norfolk Island Public Service Values, and substitutes a new subsection ensuring that the
Norfolk Island Public Service Values will apply to all persons employed under a law of the
Territory mentioned in subsection 61(1) and section 10.
Item 74 Section 62
New Section 62 ensures that the Lands Acquisition Act 1989 does not prevent the making of,
or operation of, an enactment concerning the disposal of Commonwealth land in the Territory.
Items 75, 76 and 77
Items 75, 76 and 77 amend Section 64, which relates to Customs duty on certain goods, to
clarify that for the purposes of that section, Australia` does not include Norfolk Island. This
change is required by virtue of the new definition of Australia` in the Norfolk Island Act
1979 that includes Norfolk Island. These amendments ensure that certain goods can continue
to be exempt from Australian customs duty.
Item 78 Repeal of Sections 65 and 66A
Section 65 is repealed as it relates to remuneration of members of the Norfolk Island
Legislative Assembly, Advisory Council and Ministers. As these positions cease to exist on
commencement of this Schedule, this section is redundant.
Section 66A is repealed as it relates specifically to interactions between the Commonwealth
Ombudsman and Norfolk Island Ministers. As the position of Norfolk Island Minister ceases
to exist upon commencement of the interim transition time, this section is redundant.
Item 79
Item 79 omits an unnecessary (1) as there will be only one provision in section 67.
24
Item 80
Item 80 repeals subsections 67(2) and (3) as these subsections relate to the schedules which
are repealed by this Bill (see Item 82 below).
Item 81
Item 81 amends the heading of Part IX - Transitional to clarify that the Part refers to
transitional arrangements that commenced in 1979.
Item 82
Item 82 repeals Schedules 2 and 3, as they relate to the interaction of the powers of the
Executive Council, Legislative Assembly and the Administrator. As the Legislative
Assembly and Executive Council cease to exist from the commencement of the interim
transition time, and the Administrator`s powers are not limited by reference to particular
subject matters, these Schedules are redundant.
Item 83
Item 83 repeals the note in Schedule 4 to remove a reference to Section 10 (Oath or
affirmation of the Administrator) which is repealed by this schedule.
Item 84
Item 84 repeals Schedules 5 to 9 which relate to oaths and affirmations for positions which
cease to exist after the commencement of the interim transition time.
Division 2--Amendments of other legislation
Aboriginal and Torres Strait Islander Heritage Protection Act 1984
Item 85 removes a redundant reference to a Minister of Norfolk Island, as the position of
Minister of Norfolk Island is repealed upon the commencement of this Schedule.
Administrative Appeals Tribunal Act 1975
Item 86 removes a reference to Norfolk Island Justice Minister` from subsection 3(1), as the
position of Norfolk Island Justice Minister ceases to exist on commencement of this Schedule.
Item 87 removes a reference to Norfolk Island Minister` from subsection 3(1), as the position
of Norfolk Island Minister ceases to exist on commencement of this Schedule.
Item 88 repeals subsections 36B(6), 36C(4) and 36D(8) of the Administrative Appeals
Tribunal Act 1975 (AAT Act) to remove redundant references to Norfolk Island Ministers and
bodies that are repealed by Schedule 1 Part 1 of this Bill. Note the transitional arrangements
that apply to these provisions in item 196 of Schedule 1 Part 2.
Item 89 omits the repealed Public Sector Management Act 2000 (NI) and substitutes the
Public Service Act 2014 (NI) in subsection 67A(2) of the AAT Act.
Administrative Decisions (Judicial Review) Act 1977
Item 90 inserts a new section clarifying that this Act extends to Norfolk Island. This
provision is included for the avoidance of any doubt over the question of whether this Act
extends to Norfolk Island.
Age Discrimination Act 2004
Item 91 removes paragraph 5(g) from the definition of administrative office` as paragraph (g)
relates to the Legislative Assembly, which ceases to exist on the commencement of this
25
schedule. This amendment does not otherwise affect the operation of the Age Discrimination
Act 2004 which will continue to apply on Norfolk Island.
Carbon Credits (Carbon Farming Initiative) Act 2011
Item 92 replaces references to a Minister of Norfolk Island` with the Administrator of
Norfolk Island` subsections 296(7) and (8), as the position of Minister of Norfolk Island
ceases to exist on commencement of this schedule. It should be noted subsections 296(7) and
(8) relate to the making of arrangements with states and territories, and are both repealed on
commencement of schedule 2 of the Norfolk Island Legislation Amendment Act 2015, as there
will be no Norfolk Island Government with which to make an arrangement.
Commonwealth Grants Commission Act 1973
Item 93 replaces reference in subsection 5(3) of the Commonwealth Grants Commission
Act 1973 from a Minister of that Territory` to the Administrator of Norfolk Island`. This
amendment does not affect the operation of the Commonwealth Grants Commission Act 1973,
which will continue to apply on Norfolk Island.
Crimes Act 1914
Item 94 removes an exception in relation to Norfolk Island from the definition of Territory
Ordinance`, meaning that Norfolk Island Ordinances will be treated consistently with
Ordinances in relation to other territories such as Christmas Island.
Criminal Code Act 1995
Item 95 replaces the reference in the Dictionary of the Criminal Code Act 1995 from an
Acting Administrator, or a Deputy Administrator to an Acting Administrator`. This
amendment does not affect the operations of the Criminal Code Act 1995 but rather reflects
that the position of Duty Administrator no longer exists.
Defence Act 1903
Item 96 omits Norfolk Island` from section 51 of the Defence Act 1903, which provides for
the definition of self-governing territories. The operation of the Defence Act 1903 is not
affected by this amended as it continues to apply to Norfolk Island.
Disability Discrimination Act 1992
Item 97 repeals paragraph (g) of subsection 4(1) of the Disability Discrimination Act 1992,
which provides that administrative office` means office of a member of the Legislative
Assembly within the meaning of the Norfolk Island Act 1979. The office of a member of the
Legislative Assembly will no longer exist on the commencement of Schedule 1 Part 1. The
Disability Discrimination Act 1992 will continue to apply the administrative office` meaning
to Norfolk Island as it is covered by an office established by or an appointment under
Commonwealth Law.
Do Not Call Register Act 2006
Item 98 repeals subparagraphs 3(2)(a)(v) and 3(3)(a)(vi) of Schedule 1 of the Do Not Call
Register Act 2006. Section 3 of the Do Not Call Register Act 2006 allows political parties,
independent members of parliament and candidates to make designated telemarketing calls.
This amendment repeals references to a Norfolk Island Legislative Assembly independent
member and election candidate as following the commencement of this Schedule the Norfolk
Legislative Assembly will no longer exist.
Item 99 repeals subclause 7(7) of Schedule 1 of the Do Not Call Register Act 2006, which
under the Do Not Call Register Act 2006 deems a member of the Legislative Assembly of
26
Norfolk Island as an employee of Norfolk Island. The Norfolk Island Legislative Assembly
will not exist after the commencement of this Schedule.
Item 100 repeals subparagraphs 3(2)(a)(v) and 3(3)(a)(vi) of Schedule 1A of the Do Not Call
Register Act 2006. Section 3 of the Do Not Call Register Act 2006 allows political parties,
independent members of parliament and candidates to send designated telemarketing faxes.
This amendment repeals references to a Norfolk Island Legislative Assembly independent
member and election candidate as following the commencement of this Schedule the Norfolk
Legislative Assembly will no longer exist.
Item 101 repeals subclause 7(7) of Schedule 1A of the Do Not Call Register Act 2006, which
under the Do Not Call Register Act 2006 deems a member of the Legislative Assembly of
Norfolk Island as an employee of Norfolk Island. The Norfolk Island Legislative Assembly
will not exist after the commencement of this Schedule.
Environment Protection and Biodiversity Conservation Act 1999
Item 102 repeals subsection 393(2) which relates to the responsible Commonwealth Minister
entering into arrangements with a Norfolk Island Minister, and substitutes a new subsection
allowing the Commonwealth Minister to make arrangements with the Administrator to allow
any person employed under relevant sections of the Norfolk Island Act 1979 to perform
functions or duties under the Environment Protection and Biodiversity Conservation Act
1999. This change is necessary as the position of Norfolk Island Minister will not exist after
the commencement of this schedule, and the Administrator will be the relevant person for the
purposes of making arrangements under the Environment Protection and Biodiversity
Conservation Act 1999.
Item 103 repeals subsection 398(2) which relates to the responsible Commonwealth Minister
entering into arrangements with a Norfolk Island Minister for the purposes of allowing state
and territory officers to be inspectors, and substitutes a new subsection allowing the
Commonwealth Minister to make arrangements with the Administrator to allow any person
employed under relevant sections of the Norfolk Island Act 1979 to perform functions or
duties under the Environment Protection and Biodiversity Conservation Act 1999. This
change is necessary as the position of Norfolk Island Minister will not exist after the
commencement of this schedule, and the Administrator will be the relevant person for the
purposes of making arrangements under the Environment Protection and Biodiversity
Conservation Act 1999.
Item 104 omits the reference to Territory; or` and replace it with Territory.` in paragraph (b)
of the definition of self-governing Territory in the Environment Protection and Biodiversity
Conservation Act 1999
Item 105 repeals the reference Norfolk Island` at paragraph (c) of the definition of
self-governing Territory in the Environment Protection and Biodiversity Conservation Act
1999. This amendment does not affect how the Environment Protection and Biodiversity
Conservation Act 1999 applies on Norfolk Island.
Freedom of Information Act 1982
Item 106 repeals the Cabinet` definition in subsection 4 of the Freedom of Information
Act 1982 and replaces it with a new definition for Cabinet` that does include a Norfolk Island
Government Minister or Cabinet, as following the commencement of this Schedule, both will
no longer exist.
Item 107 repeals the definition of Minister in subsection 4 of the Freedom of Information
Act 1982. Following the commencement of this Schedule, the office of a Norfolk Island
27
Minister will no longer exist. This amendment does not affect how the Freedom of
Information Act 1982 applies on Norfolk Island.
Item 108 repeals the definition of the Norfolk Island Authority` in paragraph (c) of
subsection 4 of the Freedom of Information Act 1982 and replaces it with a new definition.
The new definition allows that the Norfolk Island Authority is a body established or appointed
by the Administrator of Norfolk Island.
Item 109 repeals the definition of the Norfolk Island Authority` in paragraph (e) of
subsection 4 of the Freedom of Information Act 1982 and replaces it with a new definition
referring to a person holding office or performing the duties of an appointment where the
appointment is made by the Administrator.
Item 110 repeals the definition of Norfolk Island Minister` in section 4(1) of the Freedom of
Information Act 1982. After the commencement of this Schedule, the office of a Norfolk
Island Minister will no longer exist.
Item 111 repeals subparagraph (a)(v) of the definition of prescribed authority`. Under the
Freedom of Information Act 1982 the Legislative Assembly of the Territory of Norfolk Island
will cease to exist following the commencement of this Schedule.
Item 112 omits the Public Sector Management Act 2000` and updates it with the Public
Service Act 2014` in subsection 4(1) (paragraph (c) of the definition of principal officer) in
the Freedom of Information Act 1982.
Item 113 repeals the paragraph (c) subsection 4(1) of the Freedom of Information Act 1982,
which referred to the Chief Minister of Norfolk Island or another Minister acting for and on
behalf of that Minister. Following the commencement of this Schedule, the office of the
Chief Minister of Norfolk Island or a Minister of Norfolk Island will cease to exist.
Item 114 repeals subparagraph 4(3)(a)(iii) of the Freedom of Information Act 1982, which
provides that a person shall not be taken to be a prescribed authority. In this instance, an
office member of the Legislative Assembly of the Territory of Norfolk Island or of
Administrator or Deputy Administrator of that Territory or of Minister of Norfolk` and
replaces it with the the office of the Administrator of Norfolk Island; or` because following
the commencement of this Schedule, the Legislative Assembly, Deputy Administrator and
Minister of Norfolk will cease to exist.
Item 115 repeals paragraph 4(3B)(a) of the Freedom of Information Act 1982 and replaces it
with the office of the Administrator, as it repeals similar positions to Item 114.
Item 116 omits the Public Sector Management Act 2000` and updates it with the Public
Service Act 2014` in subparagraph 8(2)(d)(ii) of the Freedom of Information Act 1982.
Item 117 omits or the Legislative Assembly of Norfolk Island` paragraph (8)(2)(e) of the
Freedom of Information Act 1982. After the commencement of this Schedule, the Legislative
Assembly of Norfolk Island will no longer exist. This amendment does not affect how the
Freedom of Information Act 1982 applies on Norfolk Island.
Items 118 and 119 omit or the Legislative Assembly of Norfolk Island` in paragraph 8(2)(h)
of the Freedom of Information Act 1982. Following the commencement of this Schedule, the
Legislative Assembly of Norfolk Island will cease to exist.
Item 120 and 121 omit references to Norfolk Island Minister` from section 12 of the Privacy
Act 1988. The office of a Norfolk Island Minister will cease to exist following the
commencement of this Schedule.
28
Item 122 omits Parliament; or` and replaces it with Parliament.` in paragraph 21(1)(e) of the
Freedom of Information Act 1982. This amendment does not affect the operation for the
Freedom of Information Act 1982.
Item 123 repeals paragraph 21(1)(e) of the Freedom of Information Act 1982, as this
paragraph contained references to Norfolk Island government body politic that ceases to exist
after the commencement of this Schedule.
Item 124 omits or Norfolk Island Minister` from paragraph 26AA(1)(b), (c), (d) and (e) in
the Freedom of Information Act 1982. The office of a Norfolk Island Minister will cease to
exist following the commencement of this Schedule.
Item 125 omits from paragraph subsection 26AA(2) to (4) or Norfolk Island Minister` from
the Freedom of Information Act 1982. Like the pervious section, an office of a Norfolk Island
Minister will cease to exist following the commencement of this Schedule.
Item 126 omits paragraph 46(c) or of Norfolk Island` from the Freedom of Information Act
1982 because following the commencement of this Schedule, the Norfolk Island Legislative
Assembly will not exist.
Item 127 omits (a);` and replace with (a).` in paragraph (b) of the definition of electoral
roll`, subsection 47A(1) of the Freedom of Information Act 1982. This amendment makes
grammatical changes to give effect to Item 128.
Item 128 repeals paragraphs (c) and (d) of the definition of the electoral roll` of subsection
47A(1) of the Freedom of Information Act 1982. Following the commencement of this
Schedule, the Norfolk Island Legislative Assembly will no longer exist.
Historic Shipwrecks Act 1976
Item 129 omits and Norfolk` from the definition of State in subsection 4A(11) of the Historic
Shipwrecks Act 1976 because following the commencement of this Schedule, Norfolk will no
longer be deemed to be a State under the Historic Shipwrecks Act 1976.
Item 130 omits or Norfolk Island` from the definition of Territory in subsection 4A(11) of
the Historic Shipwreck Act 1976. The effect of this amendment means that Norfolk is deemed
to be a Territory under the Historic Shipwrecks Act 1976.
Items 131 and 132 omit a reference to or Norfolk Island` in subsection 4A(12)(a) of the
Historic Shipwrecks Act 1976 as Norfolk Island is deemed to be a Territory and not a State
under the Historic Shipwrecks Act 1976 following Item 129.
Item 133 repeals paragraph 4A(12)(c) of the Historic Shipwrecks Act 1976, following the
commencement of this Schedule, the office of a Minister of Norfolk Island will no longer
exist.
International Criminal Court Act 2002
Item 134 repeals and substitutes the definition of State in section 4 of the International
Criminal Court Act 2002. The new definition of State does not include Norfolk Island after
the commencement of this Schedule.
Item 135 omits other than Australian Capital Territory, and the Northern
Territory or Norfolk Island` and substitutes other than the Australian Capital Territory or the
Northern Territory` in paragraph (a) of the definition of State Minister in Section 4 of the
International Criminal Court Act 2002. Following the commencement of this Schedule, the
office of a Minister of Norfolk Island will no longer exist.
29
Item 136 omits and` in paragraph (c) of the definition of State Minister in Section 4 of the
International Criminal Court Act 2002. This amendment makes grammatical changes to give
effect to Item 78ZZ.
Item 137 repeals paragraph (d) of the definition of State Minister in Section 4 of the
International Criminal Court Act 2002. Following the commencement of this Schedule, the
office a Minister of Norfolk Island will cease to exist.
Item 138 omits and, except in section 6, does not include Norfolk Island` of the definition in
Territory in section 4 of the International Criminal Court Act 2002. This amendment does
not affect the operation of the International Criminal Court Act 2002 as it applies to Norfolk
Island.
Item 139 omits Territory; or` and replaces it with Territory` in paragraph 186(4)(b) of the
International Criminal Court Act 2002. This amendment makes grammatical changes to give
effect to Item 140.
Item 140 repeals paragraph 186(4)(c) of the International Criminal Court Act 2002 as
Norfolk Island is no longer deemed to be a State under the International Criminal Court Act
2002.
International Transfer of Prisoners Act 1997
Item 141 repeals the definition of Territory Minister` in subsection 4(1) of the International
Transfer of Prisoners Act 1997. The new definition does not make reference to an office of a
Norfolk Island Minister, which ceases to exist on the commencement of this Schedule.
Judiciary Act 1903
Item 142 removes a reference to a member of the Government of Norfolk Island`, as the
Government of Norfolk Island ceases to exist on the commencement of this schedule.
Lands Acquisition Act 1989
Item 143 repeals subsection 5(3) of the Lands Acquisition Act 1989 which specifies the Act
does not apply to any grants of Crown Land in Norfolk Island under the previous section 62
of the Norfolk Island Act 1979.New subsection 5(3) contains a provision which ensures that
where land is disposed under New Section 62 of the Norfolk Island Act 1979, it is clear the
Lands Acquisition Act 1989 does not apply. This new subsection confirms the provisions set
out in New Section 62.
Legislative Instruments Act 2003
Item 144 inserts a provision specifying that the Act extends to Norfolk Island.
National Health Act 1953
Item 145 amends the definition of Commonwealth officer` in subsection 84(1) by deleting
that part of the definition which refers to the Administrator, an Acting Administrator or a
Deputy Administrator of Norfolk Island.
National Health Security Act 2007
Item 146 omits or` in paragraph (c) of the definition of State or Territory Health Minister in
the National Health Security Act 2007. This amendment makes grammatical changes to give
effect to 147.
30
Item 147 repeals paragraph (d) of the definition of State or Territory Health Minister in the
National Health Security Act 2007. The office of a Minister of Norfolk Island will not exist
following the commencement of this Schedule.
Item 148 omits , the Northern Territory and Norfolk Island` with or the Northern Territory`
in subsection 3(1) of the definition of the National Health Services Act 2007. This
amendment reflects the changes made in the preceding Items.
Item 149 omits the Northern Territory and Norfolk Island` with and the Northern Territory`
in paragraph 3(2)(b) of the National Health Security Act 2007. Following the commencement
of this Schedule, the office of a Minister of Norfolk Island will not exist.
Privacy Act 1988
Item 150 repeals the definition of Cabinet` in subsection 6(1) of the Privacy Act because
following the commencement of this Schedule, the Norfolk Island Cabinet will cease to exist.
Item 151 repeals paragraph (d) of the definition of Norfolk Island agency` in subsection 6(1)
of the Privacy Act 1988 and substitutes a new definition that provides a body established or
appointed by the Administrator of Norfolk Island.
Item 152 repeals paragraph (f) of the definition of Norfolk Island agency` and provides a new
definition that a person holding or performing the duties of an appointment, where the
appointment is made by the Administrator of Norfolk Island.
Item 153 repeals the definition of Norfolk Island Justice Minister` in subsection 6(1) of the
Privacy Act 1988 as following the commencement of this Schedule the office of the Norfolk
Island Justice Minister will no longer exist.
Item 154 repeals the definition of Norfolk Island Minister` in subsection 6(1) of the Privacy
Act 1998 as following the commencement of this Schedule the office of a Norfolk Island
Minister will no longer exist.
Item 155 repeals subparagraph 7(1)(a)(iiiaa) of the Privacy Act 1998 because the office of a
Norfolk Island Minister no longer exist after the commencement of this Schedule.
Item 156 repeals subparagraph 7(1)(eea) and (eab) of the Privacy Act 1998 which both refer
to a Norfolk Island Minister, following the commencement of this Schedule, that office will
no longer exist.
Item 157 omits or Norfolk Island Minister` in paragraph 28A(3)(a) of the Privacy Act 1998
because following the commencement of this Schedule, the office of a Norfolk Island
Minister will no longer exist.
Item 158 omits Norfolk Island Minister` in paragraph 28B(1)(a) of the Privacy Act 1998
because following the commencement of this Schedule, the office of a Norfolk Island
Minister will no longer exist.
Items 159 and 160 both repeal reference to or Norfolk Island Minister (if any)` in paragraphs
30(3)(d) and 30(4) of the Privacy Act 1998, as from the commencement of this Schedule, the
office of a Norfolk Island Minister will cease to exist.
Item 161 repeals section 33B of the Privacy Act 1998 because the office of the Norfolk Island
Justice Minister ceases to exist following the commencement of this Schedule.
Item 162 omits or a Norfolk Island Minister` from paragraphs 34(2)(a) and (b) of the Privacy
Act 1998 as the office of a Norfolk Island Minister will not exist after the commencement of
this Schedule.
31
Item 163 removes a reference to the repealed Public Sector Management Act 2000 and
substitutes the Public Service Act 2014 in section 37 (table items 5B and 5C) of the Privacy
Act 1998.
Items 164, 165 and 166 removes references to a Norfolk Island Minister from section 43 of
the Privacy Act 1998, as the office of Norfolk Island Minister will not exist after the
commencement of this Schedule.
Item 167 repeals a reference to the Norfolk Island Public Service Board` in the definition of
alternative complaint body` in subsection 50(1) of the Privacy Act 1988. As the Public
Service Act 2014 (NI) abolished the Norfolk Island Public Service Board, this is a redundant
reference.
Item 168 repeals the definition of Norfolk Island Public Service Board` in subsection 50(1)
of the Privacy Act 1988. As the Public Service Act 2014 (NI) abolished the Norfolk Island
Public Service Board, this is a redundant reference.
Items169, 170, 171 and 172 remove references to complaints being made to the Norfolk
Island Public Service Board. As the Public Service Act 2014 (NI) abolished the Norfolk
Island Public Service Board, this is a redundant reference.
Item 173 repeals a reference to the Norfolk Island Justice Minister` in subsection 66(12) of
the Privacy Act 1988 as following the commencement of this Schedule the office of the
Norfolk Island Justice Minister will no longer exist.
Item 174 repeals a reference to the Norfolk Island Justice Minister` in subsection 68(1) of the
Privacy Act 1988 as following the commencement of this Schedule the office of the Norfolk
Island Justice Minister will no longer exist.
Item 175 repeals subsection 70(4) which relates to actions performed by the Norfolk Island
Justice Minister as following the commencement of this Schedule the office of the Norfolk
Island Justice Minister will no longer exist.
Proceeds of Crime Act 2002
Items 176 and 177 remove Norfolk Island from the definition of self-governing Territory to
reflect the governance changes contained in this Bill. This does not affect the application of
the Act to Norfolk Island.
Public Interest Disclosure Act 2013
Items 178, 179 and 180 remove the existing exclusion for public officials under the
Norfolk Island Act 1979, and insert a new provision linking those public officials to the
Department administered by the Minister administering the Norfolk Island Act 1979, and
extends the provisions of the Public Interest Disclosure Act 2013 to statutory office holders
under the Norfolk Island Act 1979.
Remuneration Tribunal Act 1973
Item 181 repeals Paragraph 3(4)(jaa) of the Remuneration Tribunal Act 1973 to remove
references to member of the Legislative Assembly, member of the Norfolk Island Executive
Council, and Minister, as these positions cease to exist. It substitutes a new paragraph
defining the office of member of the Norfolk Island Advisory Council as a public office` for
the purposes of the Remuneration Tribunal Act 1979.
Sex Discrimination Act 1984
Item 182 repeals subsection 4(1), paragraph (f) of the definition of administrative office` in
the Sex Discrimination Act 1984 to remove reference a reference to the position of member
32
of the Norfolk Island Legislative Assembly, as the office of member of the Norfolk Island
Legislative Assembly ceases to exist on commencement of this schedule.
Transfer of Prisoners Act 1983
Item 183 removes a reference to the Legislative Assembly of Norfolk Island from paragraph
3(10)(b) of the Transfer of Prisoners Act 1983, as the Legislative Assembly of Norfolk Island
ceases to exist from the commencement of this schedule.
Part 2--Transitional provisions
Division 1--Introduction
Item 184 provides definitions relevant to the part, including for `asset`, assets official` and
interim transition time`. It also clarifies the terms Deputy Administrator`, Executive
Council` and Legislative Assembly` have the same meanings as they did under the Norfolk
Island Act 1979 as was in force before the interim transition time.
Division 2--Transitional rules
Item 185 allows the Minister to make, by legislative instrument, any rules of a transitional
nature in relation to any of the amendments or changes to legislation made by Part 1 of
Schedule 1.
Subitem 185(2) specifies things the transitional rules may not do, such as create an offence or
civil penalty, provide powers of arrest or detention or entry, search and seizure; impose a tax,
appropriate funds or amend the Act.
Division 3--Transfer of assets and liabilities
Item 186 provides that any assets of the Norfolk Island Executive Council or Legislative
Assembly become assets of the Administration on commencement of the interim transition
time, with the Administration to become the successor at law in relation to the asset. This
change of assets is automatic and does not require any conveyance, transfer or assignment.
Item 187 is similar to item 186, but provides that any liabilities of the Executive Council or
Legislative Assembly become liabilities of the Norfolk Island Administration on
commencement of the interim transition time. This change of liabilities is automatic and does
not require any conveyance, transfer or assignment
Item 188 provides that assets held by any persons in their capacity as a Minister, or as a
member of the Legislative Assembly, or as a member of the Executive Council, becomes an
asset of the Administration on the commencement of the interim transition time. This change
of assets is automatic and does not require any conveyance, transfer or assignment
Item 189 is similar to item 188, but provides that liabilities a person may have in connection
with his or her capacity as a Minister, or as a member of the Legislative Assembly, or as a
member of the Executive Council, becomes a liability of the Administration on
commencement of the interim transition time. This change of liabilities is automatic and does
not require any conveyance, transfer or assignment.
Item 190 provides for the registration of land which may vest in the Administration under
item 186 or 188. Subitem 190(3) clarifies that a certificate issued under paragraph 190(1)(b)
is not a legislative instrument. This is because it is not legislative in character and therefore
not within the meaning of section 5 of the Legislative Instruments Act 2003. This subsection
confirms this and is included to assist readers.
Item 191 provides that a relevant assets official (as defined in Item 184) may register or
otherwise deal with any assets (other than land) which vest in the Administration under
33
items 186 or 188. Subitem 191(3) clarifies that a certificate issued under paragraph 191(1)(b)
is not a legislative instrument. This is because it is not legislative in character and therefore
not within the meaning of section 5 of the Legislative Instruments Act 2003. This subsection
confirms this and is included to assist readers.
Division 4--Transfer of other matters
Item 192 is a transitional provision dealing with transfer of records to the Administration.
Subitem 192(1) specifies the records to which this item applies. It includes records held by
persons in their capacity as a Minister of Norfolk Island, or a member of the Legislative
Assembly, or a member of the Executive Council or as a Deputy Administrator. This section
is intended to apply to official documents and records only, and it is not intended that it
should apply to personal documents or records held by the previously mentioned persons.
Subitem 192(2) specifies that records and documents referred to in subitem 192(1) are
transferred to the Administration after the interim transition time.
Subitem 192(3) provides that for the purposes of item 192, the term Minister` has the same
meaning as was specified in the Norfolk Island Act 1979 as in force immediately before the
interim transition time.
Division 5--Employees
Item 193 sets out the transitional arrangements in relation to certain person who were not
prior to the interim transition time employees of the Administration but were employed to
perform duties relating to the government of the Territory. The Administration is to be the
employer of all public sector employees on Norfolk Island (aside from employees of territory
instrumentalities, who will remain employed by territory instrumentalities). The terms and
conditions of such employees are preserved, but may be varied. Accrued entitlements of such
employees are maintained.
Item 193 is intended to remove ambiguity which may exist in employment
agreements/contracts about what entity is the employer of public sector employees on
Norfolk Island. Subitems 193(a) and (b) specify that a person is not an eligible employee if
that person was either an employee of the Administration or a Norfolk Island body corporate
as at the interim transition time. This is because the employment status of these persons as
employees of either the Administration or a body corporate is already clear. The intent of
paragraph 193(1)(c) is to capture those individuals who were employed under the Public
Service Act 2014 (NI), or under a Norfolk Island enactment, or otherwise employed to
perform duties relating to the government of the Territory. This item intends for persons who
may be ordinarily employed in relation to functions of the Government of Norfolk Island
under any unusual or unorthodox employment agreements will be defined as an eligible
employee.
Division 6--Financial matters
Item 194 is a transitional provision in relation to annual financial statements; it specifies that
sections 48B and 48C of the Norfolk Island Act 1979 only apply in relation to financial
statements for the year beginning on 1 July 2015, or a later financial year if necessary. This is
to ensure that these sections only apply prospectively for future years, and not retrospectively.
Item 195 is a transitional provision in relation to annual reports; it specifies that section 48J,
of the Norfolk Island Act 1979 only applies in relation to annual reports for the year beginning
on 1 July 2015, or a later financial year if necessary. This is to ensure that section 48J only
applies prospectively for future years, and not retrospectively.
34
Division 7--Administrative Appeals Tribunal
Item 196 specifies that notwithstanding the amendments to sections 36B, 36C and 36D of the
Administrative Appeals Tribunal Act 1975, those sections continue to apply after the interim
transition time in relation to Norfolk Island as if the amendments had not been made and the
Commonwealth Attorney-General being able to issue a certificate under these provisions.
This is to ensure that persons are still able to appeal in the Administrative Appeals Tribunal
relevant decisions which were made before the interim transition time.
Division 8--Historic shipwrecks
Item 197 ensures the amendments to section 4A of the Historic Shipwrecks Act 1976 made by
Part 1 in Schedule 1do not affect the continuity of a declaration made under that section
before the interim transition time. This will ensure that existing declarations on historic
shipwrecks and artefacts in relation to Norfolk Island will be unaffected by amendments
contained in this Bill.
Division 9--Public interest disclosure
Item 198 specifies that the changes to the Public Interest Disclosure Act 2013 are not
retrospective, and only apply to conduct that occurs after the interim transition time.
Division 10--Other matters
Item 199 provides that an exempt matter, being the operation of these transitional rules
including for the transfer of assets and liabilities, does not trigger an obligation to pay a stamp
duty or tax under State or territory law. Subitem 199(3) provides that the responsible
Commonwealth Minister may certify in writing that a particular matter is an exempt matter
for the purpose of this section.
Item 200 is a constitutional safety net to ensure that to the extent that any of the amendments
or repeals made by Schedule 1 of the Bill, or the transitional rules, that would result in an
acquisition of property from a person otherwise than on just terms contrary to paragraph
51(xxxi) of the Constitution, the Commonwealth will be liable to pay a reasonable amount of
compensation to the person.
Item 201 specifies that this Part of the Bill has no effect to the extent (if any) that it imposes
taxation.
Item 202 specifies that a certificate made or issued under this Part of the Bill should be taken
to be authentic unless the contrary is established.
Item 203 is a technical provision which clarifies that nothing in Schedule 1 Part 2 limits the
scope of the Governor-General`s power to make ordinances under section 19A of the Norfolk
Island Act 1979.
Part 3--Amendments contingent on the commencement of the Acts and Instruments
(Framework Reform) Act 2015
Item 204 is a correction to punctuation required by Item 205 of this Part.
Item 205 repeals paragraph 10(2)(c) of the Legislation Act 2003. The paragraph repealed is
proposed to be inserted by the Acts and Instruments (Framework Reform) Bill 2014, and is a
reference to ordinances made under section 27 of the Norfolk Island Act 1979. As section 27
is repealed by this Act the reference is no longer required.
Item 206 specifies that, the repeal of paragraph 10(2)(c) by the Acts and Instruments
(Framework Reform) Act 2015 notwithstanding, the paragraph will continue to apply to any
ordinances made before commencement of Part 1 of schedule 1.
35
SCHEDULE 2 - Final arrangements etc.
Part 1--Amendments
Division 1--Amendment of the Norfolk Island Act 1979
Items 1-21 (Inclusive) Amendments to Subsection 4(1)--Interpretation
Item 1 repeals the definition of Acting Administrator` as this position ceases to exist on
commencement of the final arrangements.
Item 2 repeals the definition of Administration` as this legal person ceases to exist on
commencement of the final arrangements as a regional council will be established.
Item 3 repeals the definition of Administrator` as this position ceases to exist on
commencement of the final arrangements. The intention is to constitute the position of
Administrator of Norfolk Island under an ordinance, consistent with the arrangements for the
Administrator of the Territory of Christmas Island.
Item 4 repeals the definition of Advisory Council` as this body ceases to exist on
commencement of the final arrangements as a regional council will be established.
Item 5 repeals the definition of Chief Executive Officer` as this position ceases to exist on
commencement of the final arrangements.
Item 6 repeals the definition of Commonwealth Finance Minister` as this position will have
no role under the Norfolk Island Act 1979 on commencement of the final arrangements.
Item 7 repeals the definition of Commonwealth Finance Minister`s Orders` as the section
under which these orders are made (41T of the Norfolk Island Act 1979) is repealed by this
Act.
Item 8 repeals the definition of Commonwealth Financial Officer for Norfolk Island` as this
position ceases to exist under the Norfolk Island Act 1979 on commencement of the final
arrangements.
Item 9 inserts a new definition of court officer of New South Wales`, and includes a list of
offices in a court of New South Wales as well as a definition of court of New South Wales`.
This item becomes relevant in respect of new section 18B below to ensure the responsible
Commonwealth Minister does not exercise judicial powers or functions which may exist
under New South Wales law.
Item 10 repeals the definition of Executive Director`, as this position ceases to exist from
commencement of the final transition time.
Item 11 repeals the definition of Federal Court` as the accountability provisions to which this
definition relate under the Norfolk Island Act 1979 are repealed on commencement of the
final arrangements.
Item 12 inserts a new definition of final transition time`, which means the commencement of
Part 1 of Schedule 2 of the Norfolk Island Legislation Amendment Act 2015.
Items 13 to 24 (inclusive) repeal a number of definitions which will be redundant on
commencement of the final arrangements, as the provisions to which they relate are being
repealed. Item 17 inserts a new definition of Norfolk Island Regional Council`, meaning a
body corporate established by or under a law in force in the Territory or declared by section
19A Ordinance to be the Norfolk Island regional Council.
36
Item 25
Item 25 repeals Parts II and III, as these provisions relate to the Administration and the
Advisory Council both of which cease to exist on commencement of the final arrangements.
Item 26 Repeal of Section 15, New Section 15
New Section 15 specifies the laws that are in force after the final transition time. These are:
Commonwealth Acts to the extent they are in force from time to time in the Territory
Laws made under those Acts
Ordinances made under s.19A in force from time to time
Laws continued in force under s.16 or 16A (as amended); and
NSW laws applied under s.18A.
Item 27
New Section 18A
New Subsection 18A(1) establishes an applied law regime for Norfolk Island by providing
that laws which are in force in NSW from time to time are also in force in Norfolk Island
from the commencement of the final transition time.
New Subsection 18A(2) this subsection provides that a law in force under subsection 18A(1)
can be incorporated, amended or repealed by a section 19A Ordinance or a law made under a
section 19A ordinance. This subsection enables the modification of applied NSW laws, of the
disapplication of such laws, by Ordinance, where that is appropriate or desirable in the
context of Norfolk Island.
New Subsection 18A(3) permits a section 19A ordinance to suspend the operation of an
applied NSW law in Norfolk Island for a specified period of time.
New subsections 18A(4) and (5) provide that a NSW law applied under subsection 18A(1) is
of no effect to the extent that it is inconsistent with the Constitution, or an enactment (as
defined). This means in any case of inconsistency between the Constitution or an enactment
on the one hand and an applied law of NSW on the other hand, the Constitution or enactment
prevails.
New Subsection 18A(6) clarifies that a provision of the law of New South Wales includes not
just statutory law, but also principles or rules of common law or equity that are part of the law
of New South Wales. Subsection 18A(6) provides that provision of the law of New South
Wales` does not include an Act or a provision of an Act. This is a reference to
Commonwealth Acts, rather than New South Wales Acts.
New Section 18B
New Subsections 18B(1) and (2) provides that powers vested under applied NSW laws in a
NSW Minister, the NSW Governor, the NSW Governor-in-Council of NSW, or other person
or authority (other than a NSW court officer or NSW court)) are instead vested in the
responsible Commonwealth Minister.
New Subsection 18B(3) allows the responsible Commonwealth Minister to delegate any
power vested in him or her under subsections 18B(1) or (2) to a specified person, or direct
that such power is also vested in a specified person or authority.
New Subsection 18B(4) enables a person or authority in who a power has been vested by the
responsible Commonwealth Minister to delegate that power to a specified person if the
Commonwealth Minister has permitted that.
37
New Subsection 18B(5) provides that where the New South Wales Government and the
Commonwealth Government have agreed to enter into an arrangement for the application and
administration of one or more applied NSW laws (under new section 18C), the Minister is
taken to have directed that certain powers are vested in certain NSW officers, employees or
authorities. This provision obviates the need for the responsible Commonwealth Minister to
specifically vest a potentially diverse range of powers to NSW officers or authorities.
New Subsection 18B(6) provides that a Minister may direct that the automatic vesting of a
specified power under subsection (5) does not apply in relation to that power.
New Subsection 18B(7) specifies that the Minister may make directions issued under new
subsection 18(6) subject to any conditions the Minister may see fit.
New Subsection 18B(8) provides that an instrument made under new section 18B may
identify a power by referring to a class of powers.
New Subsection 18B(9) preserves the validity of the exercise of a power under s.18B by a
person or authority who may not hold qualifications necessary for the exercise of that power
under NSW law as in force in NSW. For example a power under an applied law may be
validly exercised by the responsible Commonwealth Minister or his or her delegate, even if
that responsible Minister or delegate would not be ordinarily qualified to exercise that power
under the NSW law as in force in NSW.
New Subsection 18B(10) clarifies that nothing in section 18B affects the operation of section
18A in relation to a subordinate law made under a NSW law.
New Subsection 18B(11) provides that an instrument under section 18B is not a legislative
instrument. This is because it is not legislative in character and therefore not within the
meaning of section 5 of the Legislative Instruments Act 2003. This subsection confirms this
and is included to assist readers.
New Subsection 18B(12) provides definitions relevant to the operation of section 18B,
including authority`, authority of New South Wales` power` and exercise`.
New Section 18C
New Subsection 18C(1) provides the Commonwealth may enter into an arrangement with
New South Wales for the effective application and administration of the laws in force in the
Territory. This section would allow the Commonwealth to arrange for the New South Wales
Government to deliver services or administer laws in relation to Norfolk Island. Any
arrangement under this section would require the agreement of New South Wales.
New Subsection 18C(2) states for clarity that an arrangement under New Subsection 18C(1)
may provide for an officer or employee or authority, or an officer or employee of an authority
of New South Wales to exercise a power or perform any function or duty.
Item 28
Item 28 repeals Part VI--Finance, as Part VI relates to the Norfolk Island Administration and
Government which cease to exist after the final transition time.
Item 29
Item 29 repeals the Norfolk Island Public Service Values. Employees of the Norfolk Island
Regional Council will operate under an appropriate ethical framework either under applied
NSW law or equivalent arrangements to be established in an ordinance.
38
Division 2--Amendments of other Acts
Division 2 of Part 1 of Schedule 2 contains amendments to a large number of Commonwealth
Acts. The majority of the amendments in this division remove redundant references to the
crown in the right of Norfolk Island, which ceases to be an operative concept upon the
commencement of the final transition time. These acts are listed in the table below.
Detailed explanatory material is provided for Acts which do more than remove a redundant
reference to the crown in the right of Norfolk Island on an exceptions basis after the table
below.
Acts being amended to remove redundant references to the crown in the right of Norfolk Island.
Acts beginning with letters A-L Acts beginning with letters M-W
Aboriginal and Torres Strait Islander Act 2005 National Environment Protection Council Act
Age Discrimination Act 2004 1994
Agricultural and Veterinary Chemicals Act 1994 National Residue Survey Administration Act 1992
Airports Act 1996 National Transmission Network Sale Act 1998
Airports (Transitional) Act 1996 Native Title Act 1993
Air Services Act 1995 Olympic Insignia Protection Act 1987
Australian Crime Commission Act 2002 Ozone Protection and Synthetic Greenhouse Gas
Australian Human Rights Commission Act 1986 Management Act 1989
Australian Postal Corporation Act 1989 Patents Act 1990
Banking Act 1959 Product Grants and Benefits Administration Act
Bank Integration Act 1991 2000
Charter of the United Nations Act 1945 Productivity Commission Act 1998
Civil Aviation Act 1988 Product Stewardship (Oil) Act 2000
Civil Aviation (Carriers' Liability) Act 1959 Protection of Movable Cultural Heritage Act
Copyright Act 1968 1986
Corporations (Aboriginal and Torres Strait Protection of the Sea (Oil Pollution
Islander) Act 2006 Compensation Funds) Act 1993
Crimes (Superannuation Benefits) Act 1989 Sex Discrimination Act 1984
Designs Act 2003 Small Superannuation Accounts Act 1995
Disability Discrimination Act 1992 Superannuation Contributions Tax (Assessment
Disability Services Act 1986 and Collection) Act 1997
Financial Sector (Shareholdings) Act 1998 Superannuation Contributions Tax (Members of
Financial Transaction Reports Act 1988 Constitutionally Protected Superannuation
Fisheries Management Act 1991 Funds) Assessment and Collection Act 1997
Foreign Corporations (Application Of Laws) Act Superannuation (Self-Managed Superannuation
1989 Funds) Taxation Act 1987
Fringe Benefits Tax Assessment Act 1986 Superannuation (Unclaimed Money and Lost
Hazardous Waste (Regulation of Exports and Members) Act 1999
Imports) Act 1989 Telstra Corporation Act 1991
Healthcare Identifiers Act 2010 Termination Payments Tax (Assessment and
Industrial Chemicals (Notification and Collection) Act 1997
Assessment) Act 1989 Tobacco Plain Packaging Act 2011
Insurance Acquisitions and Takeovers Act 1991 Trade Marks Act 1995
Marine Navigation Levy Collection Act 1989 Trusts (Hague Convention) Act 1991
Marine Navigation (Regulatory Functions) Levy Weapons of Mass Destruction (Prevention of
Collection Act 1991 Proliferation) Act 1995
Marriage Act 1961
A.C.T. SelfGovernment (Consequential Provisions) Regulations
Item 32 repeals modifications relating to the Extradition Act 1988, as the application of NSW
law from commencement of the final transition time removes the need for an arrangement to
39
be made in relation to magistrate`s functions under the Extradition Act 1988 in respect of
Norfolk Island. Words to the effect of the modifications are then made directly to the
Extradition Act 1991, meaning the modifications are no longer required in the A.C.T. Self-
Government (Consequential Provisions) Regulations.
Administrative Appeals Tribunal Act 1975
Item 33 amends subsection 67A(2) of the Administrative Appeals Tribunal Act 1975 to
provide that a notice issued under the Act should be given to the Secretary of the Department
responsible for administering the Norfolk Island Act 1979, rather than the CEO of the Norfolk
Island Administration. This is because under the new governance arrangements for Norfolk
Island the Administration will cease to exist.
Admiralty Act 1988
Item 34 removes a reference to the Administration of Norfolk Island from the definition of
government` in the Admiralty Act 1988, as the Norfolk Island Administration ceases to exist
on commencement of this Part, this reference is redundant.
Aged Care (Accommodation Payment Security) Act 2006
Item 35 amends subsection 4 (2) of the Aged Care (Accommodation Payment Security)Act
2006 (the Accommodation Payment Security Act) to ensure the Accommodation Payment
Security Act applies to Norfolk Island. Currently subsection 4 (2) provides the Aged Care
Act only applies to the external territories of Cocos (Keeling) Islands and Christmas Island.
This amendment will include Norfolk Island in the list of external territories to which the
Accommodation Payment Security Act applies.
Item 36 inserts a new definition into the Dictionary found in section 6 to the Accommodation
Payment Security Act to confirm that when the term Australia is used in a geographical sense
in the Accommodation Payment Security Act it includes Norfolk Island, the Territory of
Cocos (Keeling) Islands and the Territory of Christmas Island.
Aged Care Act 1997
Item 37 amends subsection 4-1(2) of the Aged Care Act 1997 (the Aged Care Act) to ensure
the Aged Care Act applies to Norfolk Island. Currently subsection 4-1(2) provides the Aged
Care Act only applies to the external territories of Cocos (Keeling) Islands and Christmas
Island. This amendment will include Norfolk Island in the list of external territories to which
the Aged Care Act applies.
Item 38 inserts a new subsection 4-1(4) into the Aged Care Act, stating that despite
subsection 4-1(1), the parts of the Aged Care Act relating to allocation of places, extra service
places and residential care subsidies apply in relation to Norfolk Island as if Norfolk Island
were part of New South Wales and was not a separate Territory.
The note at the end of the new subsection 4-1(4) confirms this amendment has the effect that
references to a Territory in Parts 2.2, 2.5 and 3.1 (allocation of places, extra service places and
residential care subsidies respectively) do not apply to Norfolk Island and references in those
Parts to a State will be relevant to New South Wales as if New South Wales included Norfolk
Island.
Item 39 adds a new subsection 12-6(1B) to the Aged Care Act, ensuring that if the Secretary
determines the regions within New South Wales for different subsidy types, as set out in
subsection 12-6(1) of the Aged Care Act, he or she must determine that one of those regions
consists of Norfolk Island.
40
Item 40 inserts a new definition into the Dictionary found in Schedule 1 to the Aged Care Act
to confirm that when the term Australia is used in a geographical sense in the Aged Care Act
it includes Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of
Christmas Island.
Aged Care (Transitional Provisions) Act 1997
Item 41 amends subsection 4-1(2) of the Aged Care (Transitional Provisions) Act 1997 (the
Transitional Provisions Act) to ensure the Transitional Provisions Act applies to Norfolk
Island. Currently subsection 4-1(2) provides the Transitional Provisions Act only applies to
the external territories of Cocos (Keeling) Islands and Christmas Island. This amendment will
include Norfolk Island in the list of external territories to which the Transitional Provisions
Act applies.
Item 42 inserts a new subsection 4-1(4) into the Transitional Provisions Act, stating that
despite subsection 4-1(1), the Part of the Transitional Provisions Act relating to a residential
care subsidies applies in relation to Norfolk Island as if Norfolk Island were part of New
South Wales and was not a separate Territory.
The note at the end of the new subsection 4-1(4) confirms this amendment has the effect that
references to a Territory in Part 3.1 (residential care subsidies) do not apply to Norfolk Island
and references in that Part to a State will be relevant to New South Wales as if New South
Wales included Norfolk Island.
Item 42 inserts a new definition into the Dictionary found in Schedule 1 to the Transitional
Provisions Act to confirm that when the term Australia is used in a geographical sense in the
Transitional Provisions Act it includes Norfolk Island, the Territory of Cocos (Keeling)
Islands and the Territory of Christmas Island.
A New Tax System (Family Assistance) Act 1999
Item 51 inserts a new section 2A to the A New Tax System (Family Assistance) Act 1999
stating that A New Tax System (Family Assistance) Act 1999 is to extend to Norfolk Island.
Item 52 inserts a new definition into subsection 3(1) to the A New Tax System (Family
Assistance) Act 1999 to confirm that when the term Australia is used in a geographical sense
in A New Tax System (Family Assistance) Act 1999 that it includes Norfolk Island, the
Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.
These amendments will allow families on Norfolk Island who meet the relevant eligibility
conditions to access family tax benefit and other family assistance payments. Eligibility for
child care benefit and child care rebate will be extended to families living on Norfolk Island
who obtain child care from any approved child care service or registered carer established on
Norfolk Island after the commencement of the amendments.
A New Tax System (Family Assistance) (Administration) Act 1999
Item 53 inserts a new section 2A to the A New Tax System (Family Assistance)
(Administration) Act 1999 stating that A New Tax System (Family Assistance)
(Administration) Act 1999 is to extend to Norfolk Island.
Items 54 and 55 amend subsections 80(5) and 89(9) to omit of the Northern Territory and of
Norfolk Island` and to substitute and of the Northern Territory`. The references to the Crown
in the right of Norfolk Island become redundant as a result of the changes to governance
arrangements on Norfolk Island.
41
AntiMoney Laundering and CounterTerrorism Financing Act 2006
Item 56 repeals subsections allowing the Governor-General to make arrangements with the
Administrator of Norfolk Island with respect to the administration of the AntiMoney
Laundering and CounterTerrorism Financing Act 2006. These subsections are no longer
required, as from the commencement of the final transition time the position of Administrator
of Norfolk Island will cease to exist under primary legislation.
Archives Act 1983
Item 57 removes a reference to body established under a law of Norfolk Island from the
definition of authority of the Commonwealth` as under the new governance arrangements
Norfolk Island will no longer have its own legislature.
Item 58 removes other than Norfolk Island from paragraph (h) of the definition of
Commonwealth institution`. Under the new governance arrangements Norfolk Island will no
longer have its own administration. An exemption for Norfolk Island from this definition is
therefore no longer required.
Auditor-General Act 1997
Item 61 includes a provision which extends the Auditor-General Act 1997 to Norfolk Island.
Item 62 inserts a definition of Australia which includes Norfolk Island.
Australian Aged Care Quality Agency Act 2013
Item 63 inserts a new definition into the Dictionary found in section 3 to the Australian Aged
Care Quality Agency Act 2013 (the Quality Agency Act) to confirm that when the term
Australia is used in a geographical sense in the Quality Agency Act it includes Norfolk Island,
the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.
Item 64 amends subsection 6(2) of the Quality Agency Act to ensure the Quality Agency Act
applies to Norfolk Island. Currently subsection 6(2) provides the Quality Agency Act only
applies to the external territories of Cocos (Keeling) Islands and Christmas Island. This
amendment will include Norfolk Island in the list of external territories to which the Quality
Agency Act applies.
Australian Federal Police Act 1979
Item 66 repeals subsection 8(1C), which allows the Commonwealth Minister to enter into an
agreement with the Administrator of Norfolk Island for the provision of police and regulatory
services by the AFP. It substitutes a new subsection 8(1C) in which Norfolk Island is treated
in a manner consistent with other external territories, whereby the relevant Commonwealth
Minister can enter into an arrangement with either the Minister with responsibility for an
external territory or with the Administrator (if any) of an external territory for the provision of
police and regulatory services.
Item 67 removes a reference to the Crown in the right of Norfolk Island, as the concept of the
Crown in the right of Norfolk Island becomes redundant as a result of the changes to
governance arrangements on Norfolk Island.
Australian Hearing Services Act 1991
Item 68 amends subsection 4(1) of the Australian Hearing Services Act 1991 to provide that
the word Australia`, when used in a geographical sense, includes Norfolk Island, the
Territory of Cocos (Keeling) Islands, and the Territory of Christmas Island.
42
Item 69 inserts a provision into the Australian Hearing Services Act 1991, which provides
that the Act applies in Norfolk Island.
Australian Organ and Tissue Donation and Transplantation Authority Act 2008
Item 72 amends section 4 to include a definition of Australia in a geographic sense, as
including Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of
Christmas Island.
Item 73 amends section 7 by removing the exclusion of Norfolk Island from the provision
setting out which external Territories are covered by the Act.
Broadcasting Services Act 1992
Items 77 and 78 remove references to the Government of Norfolk Island, as the Government
of Norfolk Island ceases to exist as an operative concept on commencement of Schedule 2
Part 1.
Carbon Credits (Carbon Farming Initiative) Act 2011
Item 79, as amended in Schedule 1 Part 1, removes clauses which allow the responsible
Commonwealth Minister to enter into arrangements with the Norfolk Island Administrator.
As the position of Administrator of Norfolk Island is removed from primary legislation, this
provision is no longer applicable. Provision to enter into agreement with any person on behalf
of the Government of Norfolk Island is no longer required, as the Commonwealth will have
responsibility for state level services from the commencement of Schedule 2 Part 1.
Child Support (Assessment) Act 1989
Item 81
Item 81 omits the external Territories from section 10 of the Child Support (Assessment)
Act 1989 and substitutes an external Territory other than Norfolk Island. This reverses the
inclusion of residents of external Territories including Norfolk Island residents in the Tax
Acts, and as a result Norfolk Island residents will be considered residents of Australia for the
purposes of the Child Support (Assessment) Act 1989.
Item 82
Item 82 amends subsection 16(1) of the Child Support (Assessment) Act 1989 to remove the
words of the Northern Territory and of Norfolk Island` and to substitute and of the Northern
Territory`. The reference to Norfolk Island in this provision becomes redundant as a result of
the changes to governance arrangements on Norfolk Island.
Item 83
Item 83 inserts a new section 16A into the Child Support (Assessment) Act 1989, which
extends the Child Support (Assessment) Act 1989 to Norfolk Island.
Child Support (Registration and Collection) Act 1988
Item 84
Item 84 omits the external Territories from subsection 4(1) (paragraph (a)) of the Child
Support (Registration and Collection) Act 1988 and substitutes an external Territory other
than Norfolk Island. This reverses the inclusion of residents of external Territories including
Norfolk Island residents in the Tax Acts, and as a result Norfolk Island residents will be
considered residents of Australia for the purposes of the Child Support (Registration and
Collection) Act 1988.
43
Items 85- 91 (inclusive) amend a number of provisions and headings in the Child Support
(Registration and Collection) Act 1988 to remove references to Norfolk Island. The
references to Norfolk Island become redundant as a result of the changes to governance
arrangements on Norfolk Island.
Commonwealth Grants Commission Act 1973
Item 94 repeals subsection 5(3) of the Commonwealth Grants Commission Act 1973. This
subsection relates to the potential to grant special assistance to the Territory of Norfolk Island.
As the Commonwealth will be responsible for state level services in the Territory there is no
requirement for a provision in relation to special grants of assistance to Norfolk Island.
Item 95 repeals section 16C, which relates to Commonwealth Grants Commission inquiries in
relation to the Territory of Norfolk Island. This provision is not necessary, as section 16D of
the Commonwealth Grants Commission Act 1973 will now encompass Norfolk Island
Item 96 removes a reference to other` in the heading of section 16D. As the section now
encompasses Norfolk Island and there is no need to distinguish between other` territories and
Norfolk Island.
Item 97 omits words other than the Territory of Norfolk Island`, meaning that section 16D
will apply to Norfolk Island and the Commonwealth Minister will be able to refer matters in
relation to Norfolk Island to the Commonwealth Grants Commission, consistent with section
16D.
Item 98 omits references to reports made under section 16C, as 16C is repealed by Item 95.
Reports in relation to Norfolk Island produced under section 16D will still be subject to the
requirements of Section 25, including the requirement that the report be laid before each
House of the Parliament.
Crimes Act 1914
Item 103 inserts a new heading for Section 3B, which makes it clear that the section no longer
refers to Norfolk Island.
Items 104, 105, 106 and 107 remove references to Norfolk Island and the Administrator of
Norfolk Island in Section 3B. Section 3B of the Crimes Act 1914 allows the Governor-
General to make arrangements with states and territories in relation to the functions of the
Crimes Act 1914. As the Commonwealth will have responsibility for state level services,
references to Norfolk Island are no longer required in this subsection.
Item 108 removes a reference in subsection 3CA(4) the Crimes Act 1914 to arrangements
which can be made with the Administrator of Norfolk Island. As the Commonwealth will
have responsibility for state level services, references to Norfolk Island are no longer required
in this subsection.
Item 109 and Item 110 remove a reference in the Crimes Act 1914 to arrangements which can
be made with the Administrator of Norfolk Island. As the Commonwealth will have
responsibility for state level services, references to Norfolk Island are no longer required in
this subsection.
Item 111 removes a reference to a parole officer of Norfolk Island. As the Commonwealth
will have responsibility for state level services, references to Norfolk Island are no longer
required in this subsection.
Item 112 removes references to Norfolk Island in the definition of prescribed authority`. As
the Commonwealth will have responsibility for state level services, references to Norfolk
Island are no longer required in this subsection.
44
Item 113 removes references to Norfolk Island in relation to prescribed authority` and parole
officer`. As the Commonwealth will have responsibility for state level services, references to
Norfolk Island are no longer required in this subsection.
Item 114 removes a reference to the Crown in the right of Norfolk Island. A reference to the
Crown in the right of Norfolk Island becomes redundant as a result of the changes to
governance arrangements on Norfolk Island.
Crimes (Aviation) Act 1991
Item 115 removes a reference to a magistrate of Norfolk Island. As the Commonwealth will
have responsibility for state level services, references to Norfolk Island are no longer required
in this subsection.
Items 116 and 117 remove a reference in the Crimes (Aviation) Act 1991 to arrangements
which can be made with the Administrator of Norfolk Island. As the Commonwealth will
have responsibility for state level services, references to Norfolk Island are no longer required
in this subsection.
Criminal Code Act 1995
Item 119 removes a reference to the administrator, an Acting Administrator, or a Deputy
Administrator, of Norfolk Island` from the list of Commonwealth public officials, as these
positions cease to exist in primary legislation on commencement of Schedule 2.
Customs Act 1901
Item 120 removes a reference to arrangements which can be made with the Administrator of
Norfolk Island in relation to magistrates. As Norfolk Island magistrates are established under
Commonwealth law (as opposed to state law for most other magistrates) an agreement to use
Norfolk Island magistrates for the purposes of the Act is not necessary.
Datamatching Program (Assistance and Tax) Act 1990
Item 121 inserts at the end of Part 1 of the Data-matching Program (Assistance and Tax) Act
1990, a new section 3B, which extends this Act to Norfolk Island.
Dental Benefits Act 2008
Item 122 amends section 4 to include a definition of Australia in a geographic sense, as
including Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of
Christmas Island.
Item 123 inserts a new section 7A which provides that the Act extend to all external
Territories.
Item 124 amends section 18, which currently provides that the Dental Benefits Rules may
make payment of dental benefits conditional on matters including whether the service is
provided by, on behalf of, or under an arrangement with an internal Territory or an authority
of an internal Territory. The amendment has the effect of changing the references to an
internal Territory to references to any Territory.
Item 125 amends section 21, which currently provides that the Dental Benefits Rules may
provide that dental benefits are not payable in respect of certain dental services, including
those provided by, on behalf of, or under an arrangement with an internal Territory or an
authority of an internal Territory. The amendment has the effect of changing the references to
an internal Territory to references to any Territory.
45
Enhancing Online Safety for Children Act 2015
Item 130 removes a reference in the Enhancing Online Safety for Children Act 2015 to the
Government of Norfolk Island. From immediately after the final transition time, the concept
of the Government of Norfolk Island` is no longer a relevant or operative concept.
Environment Protection and Biodiversity Conservation Act 1999
Item 131 repeals subsections 393(3) and 398(2) which both allow the Commonwealth
Minister to enter into arrangements with the Administrator of Norfolk Island for various
purposes under the Act. As the position of Administrator of Norfolk Island is removed from
primary legislation, these provisions are no longer applicable.
Item 132 removes the reference to the Administrator of Norfolk Island in subsection 446(8) of
the Environment Protection and Biodiversity Conservation Act 1999. As the position of
Administrator of Norfolk Island is removed from primary legislation, this provision is no
longer applicable.
Items 133, 134 and 135 remove references to Norfolk Island in the definition of
Commonwealth Area`. Item 134 removes a reference excluding Norfolk Island from the
category of External Territory for the purposes of the definition, meaning that Norfolk Island
will be treated consistently with other external territories such as Christmas Island the Cocos
(Keeling) Islands. Items 133 and 135 remove references to Norfolk Island in the same section
that were placed there for clarity, however, now that Norfolk Island is no longer excluded
from the category of external territory these additional references to Norfolk Island are no
longer required.
Items 136 and 137 remove references to the Administrator of Norfolk Island. As the position
of Administrator of Norfolk Island is removed from primary legislation, these provisions are
no longer applicable.
Environment Protection (Sea Dumping) Act 1981
Items 138, 139, 140 and 141 remove references to aircraft and vessels owned by the Norfolk
Island Administration, as the Norfolk Island Administration ceases to exist from the
commencement of Schedule 2.
Extradition Act 1988
Item 142 repeals the definition of magistrate for the purposes of the Extradition Act 1988, and
substitutes a new definition that does not include references to Norfolk Island. The new
definition also inserts modifications directly into the Act that were made by the A.C.T. Self-
Government (Consequential Provisions) Regulations. This update has been included to
simply the act and its provisions.
Items 143-151 (inclusive) remove references to Norfolk Island and the Administrator of
Norfolk Island which are redundant as a result of the governance changes in relation to the
Territory.
Family Law Act 1975
Items 152, 153, 154 remove references to Norfolk Island from section 112AN, which allows
the Governor-General to make arrangements with states and territories in relation to powers,
functions and facilities under the Act. Following the governance changes to be made by the
Bill there will no longer be a relevant authority` as mentioned in section 112AN and as such
there is no need to have that section refer to Norfolk Island.
46
Item 155 amends subsection 116C(4) of the Family Law Act 1975 to the Crown in the right of
Norfolk Island. This reference to the Crown in the right of Norfolk Island becomes redundant
as a result of the changes to governance arrangements on Norfolk Island.
Farm Household Support Act 2014
Item 156 includes a definition of 'Australia' in the Farm Household Support Act 2014
providing for that Act to extend to each of the Territories of Norfolk Island, the Territory of
Cocos (Keeling) Islands and the Territory of Christmas Island.
Item 157 explicitly confirms that the Farm Household Support Act 2014 extends to Norfolk
Island.
Freedom of Information Act 1982
Item 163 removes reference to the Government of Norfolk Island from the objects of the
Freedom of Information Act 1982.
Items 164-168 (inclusive) remove references to Norfolk Island in the definition of
Commonwealth contract and adjust the definition of Norfolk Island authority to reflect
the governance changes. The Freedom of Information Act 1982 will continue to apply to
documents held by the Commonwealth in respect of Norfolk Island and Norfolk Island
authorities.
Items 169 and 170 remove redundant references to the Norfolk Island Legislative Assembly,
Administrator of Norfolk Island, Deputy Administrator of Norfolk Island and Minister of
Norfolk Island.
Item 171 removes a redundant reference to the Government of Norfolk Island.
Items 172, 173, 176, 195, 196, 197, 198, 199, 200, 203 and 205 remove a redundant provision
relating to consultation on documents affecting Norfolk Island intergovernmental relations
and removes associated references to that provision.
Items 174, 175, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191,
192, 193, 194, 201, 202, 204, 206, 207 and 208 remove redundant references to the
Government of Norfolk Island and intergovernmental relations involving the Government of
Norfolk Island.
Health and Other Services (Compensation) Act 1995
Item 211 repeals the Health and Other Services (Compensation) Act 1995 (HOSC Act`s)
current definition of Territory and substitutes a new definition, which includes Norfolk
Island.
Item 212 explicitly confirms the HOSC Act extends to Norfolk Island.
Health Insurance Act 1973
Item 214 amends the Health Insurance Act 1973 (the HI Act) definition of Australia to
include Norfolk Island, with the effect that persons on Norfolk Island meeting the definition
of Australian resident under s3(1) of the HI Act will be eligible for enrolment in the
Medicare programme.
Item 215 provides that the same patient contribution rates for nursing home type patients that
apply in New South Wales will also apply in Norfolk Island.
Item 216 provides that the same terms, which apply in New South Wales to the administration
of s3C, will also apply in Norfolk Island.
47
Item 217 inserts Norfolk Island in the HI Act definition of External Territories.
Item 218 provides that the same terms, which apply in New South Wales to the administration
of Medicare benefits under Part II of the HI Act, will also apply in Norfolk Island.
Item 219 includes Norfolk Island in the jurisdictions captured by s18, which prohibits the
payment of Medicare benefits to a recipient of a judgement or settlement resulting from a
compensation claim, which includes health care costs; and also includes Norfolk Island in the
jurisdictions captured by Section 23 DF(18) if the HIA, which provides for an approved
pathology authority (i.e. a company that is allowed to own pathology lab providing Medicare
services) to be established.
Item 220 includes Norfolk Island in the jurisdictions captured by Section 23 DF(18) if the
HIA, which provides for an approved pathology authority (i.e. a company that is allowed to
own pathology lab providing Medicare services) to be established.
Human Services (Centrelink) Act 1997
Item 221 amends section 3 of the Human Services (Centrelink) Act 1997 to provide that the
word Australia`, when used in a geographical sense, includes Norfolk Island, the Territory of
Cocos (Keeling) Islands, and the Territory of Christmas Island.
Item 222 amends section 5 of the Human Services (Centrelink) Act 1997 to provide that the
Act applies in Norfolk Island.
Human Services (Medicare) Act 1973
Item 223 amends section 3 of the Human Services (Medicare) Act 1973 to provide that the
word Australia`, when used in a geographical sense, includes Norfolk Island, the Territory of
Cocos (Keeling) Islands, and the Territory of Christmas Island.
Item 224 inserts a provision into the Human Services (Medicare) Act 1973, which provides
that the Act applies in Norfolk Island.
Immigration (Guardianship of Children) Act 1946
Item 225 inserts into section 4 of the Immigration (Guardianship of Children) Act 1946
(IGOC Act) the following new definition of Australia:
Australia, when used in a geographical sense, includes Norfolk Island, the Territory of
Cocos (Keeling) Islands and the Territory of Christmas Island.
Currently, Australia is not a defined term in the IGOC Act, so when the term is used, for
example in sections 4AAA, 4AA, 6, 6A, 8 and 12, it takes the meaning given to it in by
section 2B of the Acts Interpretation Act 1901 (the AIA), which does not include Norfolk
Island. This amendment ensures the IGOC Act will extend to Norfolk Island, and that for the
purposes of that Act, Norfolk Island is part of Australia.
Item 226 inserts new section 4AAC into the IGOC Act to provide that the Act extends to
Norfolk Island.
International War Crimes Tribunals Act 1995
Items 229, 230, 231 and 232 remove references to arrangements which can be made with the
Administrator of Norfolk Island in relation to magistrates. As Norfolk Island magistrates are
established under Commonwealth law (as opposed to state law for most other magistrates) an
agreement to use Norfolk Island magistrates for the purposes of the Act is not necessary.
48
Judiciary Act 1903
Item 233 removes a reference to the Crown in the right of Norfolk Island. References to the
Crown in the right of Norfolk Island become redundant as a result of the changes to
governance arrangements on Norfolk Island.
Items 234 to 243 (inclusive) remove references to Norfolk Island. The changed governance
model for Norfolk Island means the Territory no longer requires specific references in these
sections.
Lands Acquisition Act 1989
Items 244 and 245 remove references to authorities established under a law of Norfolk Island
from the definition of Commonwealth authority`. This is because from the commencement of
Schedule 2 Part 1, Norfolk Island will not have its own legislature, and it therefore does not
require a specific exemption in this definition in the Lands Acquisition Act 1989.
Migration Act 1958
Item 249 - Subsection 5(1) (definition of adjacent area)
Item 249 amends the definition of adjacent area` contained in subsection 5(1) of the
Migration Act 1958 (Migration Act) by inserting of Norfolk Island,` after Northern Territory.
The existing definition provides that adjacent area means an adjacent area in respect of a
State, of the Northern Territory, of the Territory of Ashmore and Cartier Islands, of the
Territory of Cocos (Keeling) Islands or of the Territory of Christmas Island, as determined in
accordance with section 5 of the Sea Installations Act 1987.
The effect of the amendment is that the definition of adjacent area` in subsection 5(1) will
additionally include an adjacent area in respect of Norfolk Island. The term adjacent area` is
used in subsections 5(1), 5(7), 9(1), 227(1) and 227(4) of the Migration Act in respect of the
location and status of sea installations.
The purpose of this amendment is to ensure that sea installations in the adjacent area to
Norfolk Island will, for the purposes of the Migration Act, be treated identically to how they
would be treated if they were in the adjacent area to one of the areas currently listed in
subsection 5(1) of the Act.
Item 250 - Paragraph 5AA(3)(b)
Item 250 repeals the existing paragraph 5AA(3)(b) of the Migration Act and substitutes a new
paragraph. Existing paragraph 5AA(3)(b) provides that one of the situations in which a person
is an excluded maritime arrival` is if the person is a non-citizen who holds and produces a
passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk
Island. New paragraph 5AA(3)(b) provides that one of the situations in which a person is an
excluded maritime arrival is if the person is a non-citizen who:
holds and produces a passport that is in force; and
is ordinarily resident on Norfolk Island.
Being an excluded maritime arrival means that you are not an unauthorised maritime arrival
and therefore not subject to the legislation that applies to an unauthorised maritime arrival.
Subsection 5(1) of the Migration Act provides that an unauthorised maritime arrival` has the
meaning given by section 5AA. Subsection 5AA(1) provides that, for the purposes of this
Act, a person is an unauthorised maritime arrival' if:
the person entered Australia by sea:
49
o at an excised offshore place at any time after the excision time for that
place; or
o at any other place at any time on or after the commencement of this
section; and
the person became an unlawful non-citizen because of that entry; and
the person is not an excluded maritime arrival.
The repeal of existing paragraph 5AA(3)(b) is a consequence of the amendment to
subsection 7(1) by item 251 extending the Migration Act to Norfolk Island. As a result of this
amendment a person who has the authority to reside indefinitely on Norfolk Island must either
be an Australian citizen or hold a visa.
The effect of the new paragraph 5AA(3)(b) is to continue the effects of the existing
paragraph 5AA(3)(b) to ensure that residents of Norfolk Island would not become an
unauthorised maritime arrival` if they entered Australia (which will under the expanded
definition include Norfolk Island) by sea without holding a valid visa.
The purpose of the new paragraph is to ensure that people who are ordinarily resident on
Norfolk Island do not become unauthorised maritime arrivals as a result of entry and
departure practices that may have been an acceptable practice under the Immigration Act 1980
(Norfolk Island) (Norfolk Immigration Act), but are not authorised by the Migration Act.
There are consequences that flow from being an unauthorised maritime arrival, and it is not
intended that these should apply to people who are ordinarily resident on Norfolk Island, but
have inadvertently entered Australia (Norfolk Island) in an unauthorised fashion.
For example, if a person who was ordinarily resident on Norfolk Island is outside Australia,
and then returns to Norfolk Island by sea in a manner that is unauthorised by the Migration
Act, they would, but for this amendment be considered an unauthorised maritime arrival.
This scenario would likely be a rare occurrence, however it may happen in circumstances
where (for example) a Norfolk Island resident is not known to the Department on 1 July 2016
(and so was not transitioned to a visa) and arrives on Norfolk Island after 1 July 2016 by sea
without a visa in effect.
Item 251 - Subsection 7(1)
Item 251 inserts Norfolk Island, after means in subsection 7(1) of the Migration Act.
Subsection 7(1) provides the meaning of prescribed territory for the purposes of section 7.
Subsection 7(2) provides that the Migration Act extends to prescribed territories. Subsection
7(3) provides that, subject to the Act, a prescribed territory:
Shall be deemed to be part of Australia for the purposes of the Migration Act; and
Shall be deemed to not be a place outside Australia.
The effect of including Norfolk Island in subsection 7(1), is that the Migration Act will extend
to Norfolk Island, and that for the purposes of the Act, Norfolk Island is deemed to be part of
Australia, and not to be a place outside Australia. The purpose of this amendment is to ensure
that the Migration Act in its entirety will apply to persons on Norfolk Island.
50
Item 252 - Paragraph 42(2A)(b)
Item 253 - Subparagraph 42(2A)(e)(v)
Item 354 - Paragraph 42(2A)(f)
Items 252-254 (inclusive). These three items relate to subsection 42(2A) of the Migration Act.
Subsection 42(2A) provides that subsection 42(1) does not apply to a non-citizen in relation to
travel to Australia in certain circumstances. Each of the paragraphs of subsection 42(2A)
provides a circumstance.
Subsection 42(1) provides that subject to subsections 42(2), 42(2A) and 42(3), a non-citizen
must not travel to Australia without a visa in effect. Effectively, each paragraph of subsection
42(2A) provides a circumstance in which a non-citizen may travel to Australia without a visa
in effect.
Item 252 repeals paragraph 42(2A)(b). Paragraph 42(2A)(b) provided that one of the
circumstances in which subsection 42(1) does not apply to a non-citizen in relation to travel to
Australia is if the travel is by a non-citizen who holds and produces a passport that is in force
and is endorsed with an authority to reside indefinitely on Norfolk Island.
Paragraph 42(2A)(b) facilitated Norfolk Island residents travelling to Australia without first
being granted a visa. On arrival in Australia, the resident could apply for a Norfolk Island
Permanent Resident (Residence) (Class AW) visa while in immigration clearance.
As a consequence of the Migration Act extending to Norfolk Island, this facility is no longer
necessary, as for a person to be lawfully present on Norfolk Island, they will need to either
hold a visa under the Migration Act, or be an Australian citizen. Both of these forms of
authority are equally valid on mainland Australia. As such, there is no need to facilitate a
resident of Norfolk Island travelling to Australia.
Item 253 omits non-citizen; or from subparagraph 42(2A)(e)(v), and substitutes non-
citizen. This is a consequential amendment to the repeal of paragraph 42(2A)(f), and reflects
the fact that paragraph 42(2A)(e) is now the final paragraph of subsection 42(2A).
Item 254 repeals paragraph 42(2A)(f). Paragraph 42(2A)(f) provided that one of the
circumstances in which subsection 42(1) does not apply to a non-citizen in relation to travel to
Australia is if:
the travel is from Norfolk Island to Australia; and
the Minister has made a declaration that paragraph 42(2A)(f) is to apply in relation to
the noncitizen's travel; and
the noncitizen is a person who would, if in the migration zone, be an unlawful
noncitizen.
Paragraph 42(2A)(f) was included in the Migration Act to deal with the issue that Norfolk
Island is part of Australia at international law, but was not part of Australia for the purposes
of the Migration Act. This paragraph facilitated the movement into the migration zone of
those unauthorised arrivals who could not be removed from Norfolk Island immediately
because of the need to consider their position under Australia`s international obligations.
As Norfolk Island will now be part of the Australia for the purposes of the Migration Act,
unauthorised arrivals will already be in Australia when on Norfolk Island, and this paragraph
is now redundant.
51
Mutual Assistance in Criminal Matters Act 1987
Item 255 removes a reference to agreements under Section 39 in relation to magistrates of
Norfolk Island, as Items 259 and 260 amend Section 39 so as to remove references to
arrangements made in respect of Norfolk Island magistrates.
Item 256 removes the words (other than Norfolk Island)`, which has the effect of ensuring
that paragraph (c) of the definition of magistrate now applies to Norfolk Island, as with other
external territories.
Items 257 and 258 remove references to the Crown in the right of Norfolk Island. A reference
to the Crown in the right of Norfolk Island becomes redundant as a result of the changes to
governance arrangements on Norfolk Island.
Items 259 and 260 remove references to arrangements which can be made with the
Administrator of Norfolk Island in relation to magistrates. As Norfolk Island magistrates are
established under Commonwealth law (as opposed to state law for most other magistrates) an
agreement to use Norfolk Island magistrates for the purposes of the Act is not necessary.
National Blood Authority Act 2003
Item 261 amends section 3 to include a definition of Australia in a geographic sense, as
including Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of
Christmas Island.
Item 262 amends the definition of covered Territories in section 3 to include Norfolk
Island.
Item 263 amends section 6 by removing the exclusion of Norfolk Island from the provision
setting out which external Territories are covered by the Act.
National Health Act 1953
Item 265 amends section 6A so that the Act extends to Norfolk Island.
Item 266 amends the definition of Commonwealth officer` in subsection 84(1) by deleting
that part of the definition which refers to the Administrator, an Acting Administrator or a
Deputy Administrator of Norfolk Island.
Item 267 amends subsection 84(1) by providing that for the purposes of Part VII of the
National Health Act 1953, territory` is to include an external territory to which the Act
extends. This will include Norfolk Island by virtue of item 265 above.
Item 268 amends section 84 by inserting a provision (subsection 84(3AA)) providing that a
reference to the governing body of a public hospital on Norfolk island is to be a reference to a
person or body as set out under the regulations.
Item 269 amends paragraph 107(2)(a) of the Act to provide that Norfolk Island is to be treated
as being a part of New South Wales for the purposes of Part VIII of the Act, which deals with
Committees of Inquiry. The Australian Capital Territory is already deemed to be a part of
New South Wales for the purposes of Part VIII.
Item 270 amends section 133 so that it deals with the consequences of prosecution for
offences against the laws of Norfolk Island. This section already provides for the
consequences of prosecution for offences against the laws of other jurisdictions within
Australia.
Item 271 amends section 135 so that a Commonwealth employee registered as a health
professional under the laws of Norfolk Island will be able to perform his or her professional
52
duties in other Australian jurisdictions despite not being registered in such jurisdictions. The
categories health professional listed in section 135 are medical practitioner, dentist, nurse,
pharmaceutical chemist, pharmacist, physiotherapist and optometrist. Section 135 currently
applies to health professionals registered under the laws of States and other Territories.
National Health Security Act 2007
Item 272 removes a reference to the Crown in the right of Norfolk Island. A reference to the
Crown in the right of Norfolk Island becomes redundant as a result of the changes to
governance arrangements on Norfolk Island.
Item 273 removes a reference to Norfolk Island in a clause allowing the responsible Minister
to enter into agreements with state and territory governments under the National Health
Security Act 2007. As the Commonwealth will be responsible for state level services, a
reference to Norfolk Island in this subsection is no longer required.
Items 274 and 275 remove references to officers or employees of Norfolk Island. The
Commonwealth will be responsible for state level services, references to Norfolk Island in
this subsection is no longer required.
Ombudsman Act 1976
Items 280 to 286 (inclusive) remove the separate definition of enactment of Norfolk Island
and insert the relevant Norfolk Island laws into the definition of enactment.
Items 287 to 289 (inclusive) remove subsequent references to enactment of Norfolk Island
and a provision that allows the Ombudsman to operate as the Norfolk Island Ombudsman.
These changes remove special arrangements relating to the Norfolk Island Government and
but allow the Ombudsman to continue performing functions in relation to Commonwealth
activity on Norfolk Island under its standard jurisdiction, as it does for other external
territories.
Items 290 and 291 remove the Ombudsman`s authority and the Defence Ombudsman`s
authority to investigate an action taken by a Norfolk Island magistrate or coroner, to align
with other Australian jurisdictions.
Item 292 provides that the Ombudsman cannot investigate an action taken under a law of
New South Wales that is applied to Norfolk Island. It is intended that the New South Wales
Ombudsman be engaged to perform this task.
Paid Parental Leave Act 2010
Item 295 inserts a new section 3AA into the Paid Parental Leave Act 2010 which extends the
Paid Parental Leave Act 2010 to Norfolk Island.
Item 296 amends section 6 of the Paid Parental Leave Act 2010 to include Norfolk Island in
the definition of Australia for the purposes of this Act.
Item 297 inserts a new paragraph (ea) into subsection 101(5) of the Paid Parental Leave Act
2010 which ensures that the Secretary, in considering whether an employer is a fit and proper
person, has the discretion to take into account whether the employer has, or is alleged to have,
contravened a provision of the Employment Act 1988 (Norfolk Island).
Privacy Act 1988
Items 299 and 300 remove references to the Crown in the right of Norfolk Island. A reference
to the Crown in the right of Norfolk Island becomes redundant as a result of the changes to
governance arrangements on Norfolk Island.
53
Item 301 removes a reference to Norfolk Island from the definition of Commonwealth
contract`, as the governance changes in this Bill mean there will no longer be a Norfolk Island
Government to enter into contracts.
Item 302 removes words which have the effect of excluding employees of the public service
of Norfolk Island from the definition of Commonwealth officer`, as the governance changes
in this Bill mean there will no longer be a Norfolk Island public service, thereby making the
reference to the public service of Norfolk Island redundant.
Items 303 and 304 remove redundant references to the Administrator of Norfolk Island, as the
position of Administrator of Norfolk Island ceases to exist upon commencement of the final
transition time.
Item 305 repeals section 37 (table item 5C) as the references to Norfolk Island Agency and
Chief Executive Officer of the Norfolk Island Administration are redundant.
Private Health Insurance Act 2007
Item 306 is a formal provision that inserts item 1-15 in Division 1 of Part 1-1, extending the
Act to Norfolk Island.
Item 307 removes the words and (4) from Subsection 34-25(1), substitutes the words , (4)
and (4A) to allow for the addition of new subsection 34-25(4A) as per Item 308.
Item 308 inserts new subsections 34-25(4A) and (4B) under a new heading Person living on
Norfolk Island at the final transition time. These items set out the structure under which a
Norfolk Island resident`s lifetime health cover base day is calculated. This item ensures that
the same rules that apply to the calculation of the lifetime health cover base day for others
will be applied equally to residents of Norfolk Island once they become eligible for Medicare.
Item 309 removes the current wording of Subsection 34-30(1)(a), which states that Norfolk
Islanders are deemed to be overseas while living there, and substitutes with amended
wording. The amended wording clarifies that, after the Act is extended to Norfolk Island,
people living on Norfolk Island prior to the final transition date will be deemed to have been
living overseas.
Item 310 inserts a definition of Australia into the Act at Clause 1 of Schedule 1.
Public Works Committee Act 1969
Item 316 amends subsection 6(2) of the Public Works Committee Act 1969, as it refers to
works carried out by the Norfolk Island Administration. As the Norfolk Island
Administration ceases to exist on commencement of Schedule 2, this subsection is no longer
operative. The subsection relevant to works of the Northern Territory is also amended to
improve the clarity of the drafting.
Radiocommunications Act 1992
Item 317 removes references in the Radiocommunications Act 1992 to the Government of
Norfolk Island. From immediately after the final transition time, the concept of the
Government of Norfolk Island` is no longer a relevant or operative concept.
Remuneration Tribunal Act 1973
Item 318 repeals paragraph 3(4)(jaa) which is a reference to the Norfolk Island Advisory
Council which ceases to exist upon commencement of the final transition time.
54
Social Security Act 1991
Item 322 inserts a new section 3AA into the Social Security Act 1991 so that the Act extends
to Norfolk Island.
Item 323 inserts a new subsection 7(2AA) into the Social Security Act 1991 so that
subparagraph (2)(b)(ii) does not apply to a New Zealand citizen who resides on Norfolk
Island. This and item 324 put long-term Norfolk Island residents who are New Zealand
citizens in the same position as residents of Australia who are New Zealand citizens, despite
Norfolk Island residents not previously being required to hold an Australian visa to remain on
Norfolk Island..
Item 324 inserts a new subsection 7(3A) into the Social Security Act 1991, so that for the
purposes of determining under subsections (2A) to (2D), whether a person is a protected SCV
holder, Australia is taken, at all relevant times, to have included Norfolk Island.
Item 325 amends subsection 7(4) of the Social Security Act 1991 so that residence in an
external territory, including Norfolk Island, will be taken to be residence in Australia for the
purposes of Part 2.2 (age pension), Part 2.3 (disability support pension), Part 2.7
(bereavement allowance), and Part 2.8 (widow B pension).
Item 326 amends paragraph 10B(3)(d) of the Social Security Act 1991 by deleting reference to
an exception for Norfolk Island. As Australia will include Norfolk Island (item 329 refers)
the exception becomes redundant.
Items 327 and 328 amend the definition of remote area in subsection 14(1) of the Social
Security Act 1991 to include Norfolk Island, meaning that Norfolk Island will be treated
consistently with other external territories such as Christmas Island and Cocos (Keeling)
Islands.
Item 329 amends the definition of Australia in section 23 of the Social Security Act 1991 to
include Norfolk Island.
Item 330 amends the definition of external territory in subsection 23(1) of the Social Security
Act 1991 to remove Norfolk Island. Norfolk Island is to be regarded as being within the
definition of Australia (Item 329 refers) for the purposes of the social security law.
Item 331 repeals the definition of regional or remote location under subsection 592L(7) of the
Social Security Act 1991 and substitutes a new definition so that regional or remote location
means (a) a location categorised as Inner Regional Australia, Outer Regional Australia,
Remote Australia or Very Remote Australia under the Remoteness Structure as defined in
subsection 1067A(10F) or (b) Norfolk Island. This will result in Norfolk Island being treated
consistently with other external territories such as Christmas Island and Cocos (Keeling)
Islands.
Item 332 repeals paragraph 1067A(10E)(a) and substitutes further criterion so that the
subsection applies to a person if the person`s family home is in a location categorised under
the Remoteness Structure as Inner Regional Australia, Outer Regional Australia, Remote
Australia or Very Remote Australia; or on Norfolk Island. The reference to Norfolk Island is
required to categorise Norfolk Island as a regional or remote location for the purposes of the
relocation scholarship payment and the youth allowance rate calculator.
Item 333 amends section 1162 of the Social Security Act 1991 to omit a reference to Norfolk
Island which is made redundant by changes to the governance arrangements for Norfolk
Island.
55
Social Security (Administration) Act 1999
Item 334 inserts new section 6B into the Social Security (Administration) Act 1999 so that the
Act extends to Norfolk Island.
Social Security (International Agreements) Act 1999
Item 335 inserts new section 4A into the Social Security (International Agreements) Act 1999
so that the Act extends to Norfolk Island.
Student Assistance Act 1973
Item 336 inserts a new definition of Australia into subsection 3(1) of the Student Assistance
Act 1973. Under this new definition, Australia, when used in a geographical sense includes
Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas
Island.
Item 337 amends section 5A to extend Norfolk Island to the Student Assistance Act 1973.
Telecommunications Act 1997
Item 343 omits of the Northern Territory and of Norfolk Island` and substitutes and of the
Northern Territory`. The references to the Crown in the right of Norfolk Island become
redundant as a result of the changes to governance arrangements on Norfolk Island.
Item 344 removes a reference in the Telecommunications Act 1997 to the Government of
Norfolk Island. From immediately after the final transition time, the concept of the
Government of Norfolk Island` is no longer a relevant or operative concept.
Tobacco Advertising Prohibition Act 1992
Item 346 removes a reference to the Crown in the right of Norfolk Island. References to the
Crown in the right of Norfolk Island become redundant as a result of the changes to
governance arrangements on Norfolk Island.
Item 347 removes a reference to Norfolk Island from subsection 15(3) of the Tobacco
Advertising Prohibition Act 1992 as Norfolk Island would no longer have its own legislature
when the amending legislation takes full effect (unlike the other two territories specifically
mentioned - the Australian Capital Territory and Northern Territory). This is also consistent
with the second phase of the reform of legal and governance arrangements to commence on
1 July 2016 which includes a mechanism that applies New South Wales state law to Norfolk
Island as Commonwealth law.
Veterans' Entitlements Act 1986
Item 351 inserts a reference to payments made under Parts IIIE` and VIB` into the definition
of Australia` in subsection 5Q(1). The amendment will ensure that residents of Norfolk
Island will be eligible for payments of the clean energy and the prisoner of war recognition
supplements respectively.
Item 352 amends subparagraphs 38(1)(aa)(iii) and (1)(e)(ii) to remove the redundant
references to the residence of a person in Norfolk Island. The amendments are a consequence
of the amendment to subsection 7(4) of the Social Security Act 1991 (item 325 refers).
Item 353 amends section 59ZM to remove a reference to the Crown in the right of Norfolk
Island. A reference to the Crown in the right of Norfolk Island becomes redundant as a result
of the changes to governance arrangements on Norfolk Island.
56
Item 354 amends subsection 128(6) to remove a reference to the Crown in the right of
Norfolk Island. A reference to the Crown in the right of Norfolk Island becomes redundant as
a result of the changes to governance arrangements on Norfolk Island.
57
Part 2--Transitional provisions
Division 1--Introduction
Item 356 sets out the definitions of words used in Schedule 2 to the main Bill. In particular
the term final transition time is defined as the commencement of Part 2 of Schedule 1, which
is set as 1 July 2016.
Division 2--Transitional rules
Item 357
Subitem 357(1) provides the Minister may make rules by legislative instrument in relation to
transitional matters.
Subitem 357(2) specifies things the transitional rules may not do, such as create an offence or
civil penalty, provide powers of arrest or detention or entry, search and seizure; impose a tax,
appropriate funds or amend the Act.
Division 3--Transfer of assets and liabilities
Item 358
Subitem 358(1) states this section applies to an asset of the Administration immediately
before the final transition time.
Subitem 358(2) provides that on commencement of the final transition time, the asset ceases
to be an asset of the Administration and becomes an asset of the Norfolk Island Regional
Council, with the Norfolk Island Regional Council to become the successor at law in relation
to the asset.
Subitem 358(3) allows that transitional rules may provide that subitem (2) does not apply in
respect of one or more specified assets, and those assets instead become assets of the
Commonwealth, and the Commonwealth becomes successor in law in relation to those assets
which were specified in the transitional rules.
Item 359
Subitem 359(1) states this section applies to liabilities of the Administration immediately
before the final transition time.
Subitem 359(2) provides that on commencement of the final transition time, the liability
ceases to be a liability of the Administration and becomes a liability of the Norfolk Island
Regional Council, with the Norfolk Island Regional Council to become the successor at law
in relation to the liability.
Subitem 359(3) allows that transitional rules may provide that subitem (2) does not apply in
respect of one or more specified liabilities, and those liabilities instead become liabilities of
the Commonwealth, and the Commonwealth becomes successor in law in relation to those
liabilities which were specified in the transitional rules.
Item 360 provides that any land which is transferred to the Norfolk Island Council may be
registered, provided that there is a certificate which is signed by the Minister, and identifies
the land, and states the land has been vested in the Norfolk Island Council under the
transitional rules. This land transfer may be registered and given effect to in the usual way by
a land registration official. The section provides that a certificate made under the item is not a
legislative instrument. This is because it is not legislative in character and therefore not within
58
the meaning of section 5 of the Legislative Instruments Act 2003. This subitem confirms this
and is included to assist readers.
Item 361 is similar in effect to item 360, only it provides for land transfers to the
Commonwealth to be registered, rather than for land transfers to the Norfolk Island Council to
be registered. Subitem 361(3) confirms that a certificate lodged with a land registration
official is not a legislative instrument. This is because it is not legislative in character and
therefore not within the meaning of section 5 of the Legislative Instruments Act 2003. This
subitem confirms this and is included to assist readers.
Item 362 is similar in effect to item 360, only it provides for transfer of assets other than land
to the Norfolk Island Council to be registered, instead of land as is the case in item 360.
Subitem 362(3) confirms that a certificate lodged with an assets official is not a legislative
instrument. This is because it is not legislative in character and therefore not within the
meaning of section 5 of the Legislative Instruments Act 2003. This subitem confirms this and
is included to assist readers.
Item 363 is similar in effect to item 361, only it provides for transfer of assets other than land
to the Commonwealth to be registered, instead of land as is the case in Section 361.
Subitem 363(3) confirms that a certificate lodged with a assets official is not a legislative
instrument. This is because it is not legislative in character and therefore not within the
meaning of section 5 of the Legislative Instruments Act 2003. This subitem confirms this and
is included to assist readers.
Division 4--Transfer of other matters
Item 364 allows the transitional rules to specify that acts which were done by or in relation to
the Administration can be attributed to either the Norfolk Island Council or the
Commonwealth. These acts will be taken to have been performed by the Norfolk Island
Council or the Commonwealth, depending on how the acts in question have been attributed in
the transitional rules.
Item 365 allows the transitional rules to specify the Commonwealth or the Norfolk Island
Council can be substituted as a party to any proceedings to which the Norfolk Island
Administration was a party immediately before the final transition time.
Item 366 provides that transitional rules can be made which transfers records to either the
Commonwealth or the Norfolk Island Council. It is not proposed that records of the Norfolk
Island Administration would become Commonwealth records at any time, unless a
transitional rule was made transferring certain records to the Commonwealth.
Subitems 366(4) and 366(5) provide that where an APP entity (as defined in the Privacy Act
1988) holds personal information collected for a particular purpose, and the individual has a
reasonable expectation that information was collected for use or disclosure for a particular
purpose, then Australian Privacy Principle 6 applies to the APP in respect of those records.
This is to ensure that individuals` personal information is protected by the requirements in
Australian Privacy Principle 6 even after a record or document containing personal
information has transferred to the Commonwealth or the Norfolk Island Regional Council.
Item 367
Subitem 367(1) provides that where an instrument was made by or has effect in relation to the
Norfolk Island Administration, the transitional rules may specify that any references to the
Norfolk Island Administration in that instrument may be read as if the reference(s) to the
Norfolk Island Administration were in fact references to the Norfolk Island Council.
59
Instruments include contracts, instructions, undertakings and agreements, but do not include
legislative instruments or instruments made under a Commonwealth act.
Subitem 367(2) provides that where an instrument was made by or has effect in relation to the
Norfolk Island Administration, the transitional rules may specify that any references to the
Norfolk Island Administration in that instrument may be read as if the reference(s) to the
Norfolk Island Administration were in fact references to the Commonwealth. Instruments
include contracts, instructions, undertakings and agreements, but do not include legislative
instruments or instruments made under a Commonwealth act.
Subitem 367(3) provides definitions used in item 367, specifically the definitions of exempt
instrument` and instrument`.
Division 5--Employees
Item 368
Subitem 368(1) establishes that a person is a transferring employee` if that person was
employed by the Administration immediately before the final transition time. The definition
of employees of the Administration includes those persons defined as Administration
employees by Item 193 of Schedule 1--Part 2.
Subitem 368(2) provides that transferring employees cease to be employed by the
Administration, and becomes an employee of the Norfolk Island Regional Council.
Subitem 368(3) preserves the employment terms and conditions of transferring employees,
meaning that as Norfolk Island Regional Council employees they will retain the same terms
and conditions they enjoyed as Administration employees (noting terms and conditions can be
subject to variation as set out under subitem 368(4).
Subitem 368(4) clarifies that nothing in the section prevents the terms and conditions of
employees from being varied either in accordance with those terms and conditions or under a
law, award, determination or agreement.
Subitem 368(5) provides that a transferring employee is not entitled to any payment or other
benefit because they cease to be an employee of the Norfolk Island Administration as a result
of this item.
Subitem 368(6) provides a definition of vary` for the purposes of Item 368.
Item 369 provides that employees who transfer to the Norfolk Island Council will maintain
accrued entitlements equal to the amount of accrued entitlements they held before the transfer.
A transferred employee`s period of service as an employee of the Administration will be
taken to be unbroken as an employee of the Norfolk Island Government.
Division 6--Visas
Item 370 concerns the creation of transitional rules to deem visas granted to people who hold
specified permits under the Norfolk Immigration Act or are in a circumstance covered by a
specified provision of that Act.
As a consequence of item 251 extending the Migration Act to Norfolk Island, all non-
Australian citizens will need to either hold a visa that is in effect, or they will be unlawful
non-citizens as described in section 14 of the Migration Act. There are a number of
consequences when a person is an unlawful non-citizen. For example, an unlawful non-citizen
can be detained under section 189 of the Migration Act, and under paragraph 22(1)(b) of the
Australian Citizenship Act a person cannot satisfy the General residence requirement for the
citizenship by conferral if they were present in Australia as an unlawful non-citizen at any
60
time during the 4 year period immediately before the day they made the application for
citizenship. It is not intended that those consequences should apply to persons who hold a
legal right to be present on Norfolk Island prior to extending the Migration Act to Norfolk
Island.
Subitem 370(1) allows that the transitional rules may provide that if, immediately before the
final transition time, a person held a specified type of permit granted under the Norfolk
Immigration Act, the person is taken to have been granted a specified type of visa under the
Migration Act immediately after the final transition time.
Subitem 370(2) allows that the transitional rules may provide that if, immediately before the
final transition time, a person was in specified circumstances, the person is taken to have been
granted a specified type of visa under the Migration Act immediately after the final transition
time.
The final transition time` is defined in section 356 of Part 2 of Division 1 of Schedule 2 to
mean the commencement of Part 1 of this Schedule, which is 1 July 2016. As such, the effect
of this provision is to allow for transitional rules to provide for a person holding specified
type of permit or is in specified circumstances to be taken to have been granted a specified
type of visa under the Migration Act immediately after the commencement of Part 1 of this
Schedule, which is immediately after 00.00hrs on 1 July 2016.
It is intended that those visas be deemed granted rather than requiring applications for those
visas to make the transition as straightforward as possible for people currently lawfully on
Norfolk Island, and to avoid the possibility that a person may not apply for a visa and be left
as an unlawful non-citizen as a result.
The reason for making the deeming of the visa grants by transitional rule rather than
providing for the deemed grants in this Bill is to allow further time to adapt the visa products
to the specific circumstance of each cohort.
Division 7--Social security
Item 371 inserts a definition of social security payment to have the same meaning as in the
Social Security Act 1991 for this Division.
Item 372 inserts an application provision regarding qualification for and payability of a social
security payment or concession card. The amendments of the Social Security Act 1991 made
by Part 1 of this Schedule, in relation to qualification for and payability of a social security
payment or concession card in respect of a period, apply in relation to a period that began on
or after the final transition time.
Item 373 inserts a provision to deem backdated Australian residence for Norfolk Island
residents before the final transition time for the purposes of the Social Security Act 1991. The
item applies in relation to qualification for and payability of a social security payment or
concession card in respect of a period that began at or after the final transition time. For the
purposes of subsection 7(2) (Australian resident); subsection 7(5) (qualifying Australian
residence); part 2.2 (age pension), part 2.3 (disability support pension), part 2.7 (bereavement
allowance), part 2.8 (widow B pension), part 2.10 (parenting payment), part 2.11 (youth
allowance), and part 2.12 (newstart allowance), residence of a claimant on Norfolk Island
before the final transition time is taken to have been residence in Australia.
Item 374 applies to sections 512, 567G, 660M, 992J, 992L and points 1064-H7, 1065-E6,
1066-H6, 1066A-I6, 1066B-F6, 1067G-K9, 1067L-F9, 1068-J9 and 1068B-G6 of the
61
Social Security Act 1991 and sets out that these provisions do not apply in relation to the
death of a child if immediately before his or her death, the child was ordinarily resident on
Norfolk Island; and the death occurred before the final transition time.
Item 375 inserts a provision to ensure that for the purposes of the Social Security Act 1991, a
newly arrived resident`s waiting period is to be determined as if residence on Norfolk Island
at any time ending at the final transition time were residence in Australia; and physical
presence on Norfolk Island at any time ending at the final transition time were physical
presence in Australia.
Item 376 inserts a transitional provision allowing early making of claims for a social security
payment or concession card under the Social Security (Administration) Act 1999 for up to
8 weeks prior to commencement.. All claims made early are taken to have been made
immediately after the final transition time.
Division 8 - Family assistance
Item 377 inserts a definition for family tax benefit to have the same meaning as in the A New
Tax System (Family Assistance) Act 1999 in this Division.
Item 378 inserts an application provision regarding eligibility for family tax benefit and single
income family supplement under the A New Tax System (Family Assistance) Act 1999, such
that they apply to the period that began at or after the final transition time. This will ensure
that family tax benefit and single income family supplement cannot be paid in respect of a day
before commencement on 1 July 2016.
Item 379 inserts an application provision regarding eligibility for stillborn baby payment
under amendments to the A New Tax System (Family Assistance) Act 1999, such that they
apply to a child if the child`s delivery occurred at or after the final transition time.
Item 380 inserts an application provision regarding absences from Australia before final
transition time. Sections 24, 62 and 63 of the A New Tax System (Family Assistance) Act 1999
set out the effect of certain absences from Australia on eligibility for family tax benefit. As a
general rule, if a child is absent from Australia for longer than 56 weeks, then the child cannot
attract FTB for an individual. Similarly, an individual who has been absent from Australia for
longer than 56 weeks cannot be eligible for FTB. If a child or individual return to Australia
for less than 6 weeks and then leave again, they are treated as though they have not returned
for the purposes of calculating the 56 weeks. In this item, Australia` has the same meaning as
in the A New Tax System (Family Assistance) Act 1999 (as amended by Part 1 of this
Schedule). This provision provides that only absences that occur after commencement on 1
July 2016 would be taken into account for the purposes of these provisions.
Item 381 inserts a transitional provision allowing early lodgement of claims for family tax
benefit under the A New Tax System (Family Assistance)(Administration) Act 1999 for up to
4 weeks prior to commencement. All claims are taken to have been made immediately after
the final transition time.
Division 9 - Child Support
Item 382 inserts a transitional provision allowing early lodgement of claims for an application
for administrative assessment of child support under the Child Support (Assessment) Act 1989
for up to 8 weeks prior to commencement. An early claim will be taken to have been made
immediately after the final transition time provided it would have been in accordance with
Division 1 of Part 4 of the Child Support (Assessment) Act 1989 had it been made
immediately after the final transition time. In this item, administrative assessment and child
support have the same meaning as in the Child Support (Assessment) Act 1989.
62
Division 10 - Paid parental leave
Item 383 inserts an application provision regarding payability determinations under the Paid
Parental Leave Act 2010. This provision states that the Secretary must not make a payability
determination under that Act that parental leave pay or dad and partner pay is payable to a
person for a child if the child was born before the final transition time and the person was
ordinarily resident on Norfolk Island at the time of the birth.
Division 11 - Adjusted taxable income etc.
Item 384 inserts definitions of a designated official in relation to working out a person`s
adjusted taxable income under the Child Support (Assessment) Act 1989, the Social Security
Act 1991 and the Paid Parental Leave Act 2010 and in relation to working out a person`s
taxable income under the Social Security Act 1991.
Item 385 provides that for the purposes of working out a person`s adjusted taxable income for
a period under a provision of the Child Support (Assessment) Act 1989; the Paid Parental
Leave Act 2010; or the Social Security Act 1991, and a person`s taxable income for some
social security purposes, such income includes the person`s tax-exempt Norfolk Island
income. This will only apply where a Norfolk Island resident`s taxable income for a period
prior to the final transition time is required (as after transition a Norfolk Island resident`s
income will no longer be tax-exempt).
Item 386 inserts a transitional provision for a determination of tax-exempt Norfolk Island
income if information and documents in a designated official`s possession are sufficient to
allow this determination. The designated official may obtain information or documents in
order to inform this decision under the relevant provisions of the law for which the
determination is needed (see item 388). The designated official may determine, from the
information and documents in their possession, an amount to be the person`s tax-exempt
Norfolk Island income for the period. However, in determining the person`s tax-exempt
Norfolk Island income, the designated official must have regard only to income that was
exempt from income tax under repealed Division 1A of Part III of the Income Tax Assessment
Act 1936.
Item 387 applies if the designated official does not possess sufficient information and
documents to determine a person`s tax-exempt Norfolk Island income for the period. The
designated official may determine that the person`s tax-exempt Norfolk Island income for the
period is an amount that the designated official considered appropriate. However, if the
determination is for the purposes of the Child Support (Assessment) Act 1989, the amount that
the Registrar considers appropriate must be at least two-thirds of the annualised MTAWE
figure for the relevant June quarter. These terms are defined at subitem (4).
Item 388 provides that in obtaining information, Division 1, Part 5 of the Social Security
(Administration) Act 1999 has effect as if this Division, to the extent to which it relates to the
Social Security Act 1991, were a part of the social security law. Item 388 also provides that
section 161 of the Child Support (Assessment) Act 1989 has effect as if this Division, to the
extent to which it relates to that Act, were a part of that Act. Item 388 also provides that
Division 2, Part 4-1 of the Paid Parental Leave Act 2010 has effect as if this Division, to the
extent to which it relates to that Act, were a part of that Act.
Item 389 empowers the Secretary or Registrar (as applicable) to delegate the power to make a
decision under this Division in the same way other decisions may be delegated. It provides
that section 234 of the Social Security (Administration) Act 1999 has effect as if this Division,
to the extent to which it relates to the Social Security Act 1991, were a part of the social
63
security law. Section 149 of the Child Support (Assessment) Act 1989 has effect as if this
Division, to the extent to which it relates to that Act, were a part of that Act; and that section
303 of the Paid Parental Leave Act 2010 has effect as if this Division, to the extent to which
it relates to that Act, were a part of that Act.
Item 390 provides for review of decisions under this Division. It provides that Part 4 of the
Social Security (Administration) Act 1999 has effect as if this Division, to the extent to which
it relates to the Social Security Act 1991 were a part of the social security law. Item 390 also
applies to provide for review of decisions. It provides that section 80 of the Child Support
(Registration and Collection) Act 1988 applies to a determination under this Division for the
purposes of a provision of the Child Support (Assessment) Act 1989 as if the table in
subsection 80(1) of that Act included a table item allowing the carer entitled to child support
or the liable parent to lodge an objection to the determination. Item 390 also provides for
review of decisions, providing that Chapter 5 of the Paid Parental Leave Act 2010 has effect
as if this Division, to the extent to which it relates to that Act, were a part of that Act.
Division 12--Extradition
Item 391 is a transitional provision which ensures that any agreements made between the
Governor-General and the Chief Minister of the Australian Capital Territory under subsection
46(1) of the Extradition Act 1988, as modified by the A.C.T. Self-Government (Consequential
Provisions) Regulations remain in force. Any agreements remain in force even given the
changes to the Extradition Act 1988 which inserts provisions consistent with the
modifications in the A.C.T. Self-Government (Consequential Provisions) Regulations directly
into the Extradition Act 1988.
Division 13--Other matters
Item 392 is a technical provision exempting stamp duty and other tax from applying to
exempt matters, including the transfer of assets or liabilities under the transitional rules or any
other provision in Schedule 2 Part 2. It allows the Minister to certify in writing that any
matter is an exempt matter for the purposes of this Item or is a thing connected to an exempt
matter, and provides that a certificate issued under subitem 392(3) is evidence in legal
proceedings of the matters stated in the certificate.
Item 393 is a constitutional safety net to ensure that to the extent that the operation of the Act
would result in an acquisition of property from a person otherwise than on just terms contrary
to paragraph 51(xxxi) of the Constitution, the Commonwealth will be liable to pay a
reasonable amount of compensation to the person.
Item 394 is a constitutional safety net which makes clear that this Part as no effect to the
extent (if any) to which it imposes taxation.
Item 395 provides that a document which appears to be a certificate issued under Schedule 2
Part 2 should be taken to be authentic and properly given unless it is established the certificate
is not authentic or was not properly given.
Item 396 clarifies Schedule 2 Part 2 does not in any way limit the matters which may be dealt
with by ordinances issued under Section 19A.
64
SCHEDULE 3--Statistical information
Section 2 of the Census and Statistics Act 1905 is being amended to remove the words other
than Part III` to ensure that the Census and Statistics Act 1905 as a whole applies to the
external territories listed in the Census and Statistics (Census) Regulations 2005.
Section 2 currently provides that the Act, other than Part III (which is about collection of
statistics outside the census), extends to such external territories as are prescribed. This
ensures that the census (Part II) and administration (Part IV) provisions in the Act apply to
these territories, however it does not extend the additional statistics gathering powers (Part
III) to these territories. Currently Christmas Island and the Cocos (Keeling) Islands are
prescribed in the regulations. As part of the normalisation process, further amendments will
also prescribe Norfolk Island in the regulations.
The proposed amendment to the Act aligns the power to collect statistics in the external
territories with the power to collect statistics in the rest of Australia. It does not compel the
Australian Bureau of Statistics to undertake any additional collection of statistical
information.
65
TAX AND SUPERANNUATION LAWS AMENDMENT (NORFOLK ISLAND
REFORMS) BILL 2015
A NEW TAX SYSTEM (MEDICARE LEVY SURCHARGE-FRINGE BENEFITS)
AMENDMENT BILL 2015
NOTES ON CLAUSES
Outline of chapter
1.1 Schedules 1 and 2 to the Tax and Superannuation Laws Amendment
(Norfolk Island Reforms) Bill 2015 (this Bill) amend the Income Tax Assessment
Act 1936 (ITAA 1936), Income Tax Assessment Act 1997 (ITAA 1997) and
Superannuation Guarantee (Administration) Act 1992 (SG Act) to repeal the:
· income tax exemptions that apply to Norfolk Island resident
individuals, companies and trustees in relation to their Norfolk Island
sourced income and their foreign sourced income, bringing them fully
into Australia`s income tax system;
· Medicare levy exemptions that apply to Norfolk Island residents,
bringing them fully into Australia`s Medicare levy system; and
· superannuation guarantee charge exemptions that apply to Norfolk
Island employers and employees in relation to work performed on
Norfolk Island, bringing them fully into Australia`s superannuation
guarantee system.
1.2 The A New Tax System (Medicare Levy Surcharge-Fringe Benefits)
Amendment Bill 2015 supports this measure by making consequential
amendments to A New Tax System (Medicare Levy Surcharge-Fringe Benefits)
Act 1999 as a result of the repeal of the Medicare levy exemptions.
1.3 The taxation and superannuation reforms made by this Bill and A New
Tax System (Medicare Levy Surcharge-Fringe Benefits) Amendment Bill 2015
generally apply from 1 July 2016, with transitional arrangements applying in
relation to capital gains tax (CGT) and superannuation guarantee charge.
Context of amendments
1.4 During the 2013 federal election, the Government committed to extend
federal taxation and social welfare systems to Norfolk Island to address issues of
community welfare and ensure Australian citizens are treated equally throughout
Australia.
1.5 From 1 July 2016, the taxation system is to apply in Norfolk Island in the
same way it currently applies to mainland Australia with the exception of indirect
taxes, including goods and services tax, luxury car tax, wine equalisation tax,
excise duties and customs duties. This approach is consistent with the current
taxation arrangements in Australia`s other external territories.
1.6 Similarly, Australia`s government benefits (such as social security and
Medicare) will also be extended to Norfolk Island. See the Norfolk Island
Legislation Amendment Bill 2015 for further details.
1.7 Australia`s superannuation guarantee regime is to be extended to
employers and employees on Norfolk Island. Given Norfolk Island`s depressed
66
economic situation and its predominantly low-income population, the
superannuation guarantee will be phased in over several years.
Operation of existing law
Income tax
1.8 The Australian income tax system currently extends to Norfolk Island
and includes Norfolk Island as part of Australia.
1.9 However, certain Norfolk Island residents receive an income tax
exemption for their income sourced from Norfolk Island and from outside
Australia (Division 1A of Part III of the ITAA 1936).
1.10 Distributions from Norfolk Island resident companies are unfrankable
(paragraph 202-45(b) of the ITAA 1997). Broadly, the purpose of the franking
credit system in Australia is to prevent the profits of companies being taxed both
in the hands of shareholders and the company. However, to be a Norfolk Island
resident company, all shareholders have to be Norfolk Island residents. Those
shareholders currently do not pay income tax on distributions from Norfolk Island
resident companies and as a result no double taxation can arise in relation to the
distribution.
1.11 For this reason, distributions from Norfolk Island companies are
unfrankable, because if they were frankable, all Australian income tax paid by
those companies would be refundable to its tax exempt shareholders who would
not themselves be subject to tax on this income. This would undermine the core
rule that Norfolk Island residents pay income tax on their Australian sourced
income (except for that income sourced from Norfolk Island).
Medicare levy
1.12 Similar to the treatment of foreign residents, Norfolk Island residents
(although being Australian resident taxpayers) are exempt from the Medicare levy
(sections 251S, 251T and 251U of the ITAA 1936).
Superannuation guarantee
1.13 The salary and wages paid to Norfolk Island resident employees for work
done in Norfolk Island and the salary and wages paid by Norfolk Island resident
employers for work done in Norfolk Island are not counted in calculating the
superannuation guarantee entitlements of a particular employee and the liability
for the superannuation guarantee charge of an employer (section 27 of the SG
Act). This effectively removes Norfolk Island from the Australian superannuation
guarantee system provided the proper nexus exists between Norfolk Island, the
employer and the employee.
Summary of new law
1.14 Schedules 1 and 2 to this Bill amend the ITAA 1936, ITAA 1997 and SG
Act to repeal the:
· income tax exemptions that apply to Norfolk Island resident
individuals, companies and trustees in relation to their Norfolk Island
sourced income and their foreign sourced income, bringing them fully
into Australia`s income tax system (Division 1A of Part III of the
ITAA 1936);
67
· Medicare levy exemptions that apply to Norfolk Island residents,
bringing them fully into Australia`s Medicare levy system (sections
251S, 251T and 251U of the ITAA 1936); and
· superannuation guarantee exemptions that apply to Norfolk Island
employers and employees in relation to work performed on Norfolk
Island, bringing them fully into Australia`s superannuation guarantee
system (paragraphs 27(1)(b) and (c) of the SG Act).
1.15 Norfolk Island resident companies will also be brought within the
dividend imputation system by repealing paragraph 202-45(b) of the ITAA 1997.
1.16 A number of consequential amendments are also required to the taxation
and superannuation laws to reflect the removal of the Norfolk Island tax
exemptions.
Comparison of key features of new law and current law
New law Current law
Norfolk Island resident taxpayers will Certain Norfolk Island resident
be treated the same as other taxpayers receive an income tax
Australian residents under Australia`s exemption on their income sourced
income tax system, that is, they will from Norfolk Island and from outside
be taxable on their worldwide Australia.
income. Norfolk Island companies and
shareholders are excluded from the
Norfolk Island resident companies dividend imputation system.
and shareholders will be able to
access the dividend imputation Certain Norfolk Island resident
system. taxpayers do not pay the Medicare
levy.
Norfolk Island resident taxpayers will
be subject to the Medicare levy. The salary and wages paid to Norfolk
Island resident employees for work
The salary and wages paid to Norfolk done in Norfolk Island and the salary
Island resident employees for work and wages paid by Norfolk Island
done in Norfolk Island and the salary resident employers for work done in
and wages paid by Norfolk Island Norfolk Island are not counted in
resident employers for work done in calculating the superannuation
Norfolk Island will be counted for guarantee entitlements of a particular
superannuation guarantee purposes. employee.
However, transitional arrangements
will apply as the superannuation
guarantee rate applying to Norfolk
Island employers and employees is
progressively increased to align with
the mainland Australian rate.
68
Detailed explanation of new law
Income tax
1.17 Schedule 1 amends the ITAA 1936 to remove an income tax exemption
that is available to Norfolk Island resident individuals, Norfolk Island companies
and Norfolk Island trustees on income sourced from Norfolk Island and income
sourced from outside Australia. [Schedule 1, item 1]
1.18 Transitional provisions apply in respect of CGT to ensure that Norfolk
Island taxpayers are only taxed on capital gains that accrue after the day the
Norfolk Island income tax exemption is removed (see paragraph 1.34).
1.19 The definitions of Norfolk Island resident, Norfolk Island company and
Norfolk Island trust are currently contained in Division 1A of Part III of the ITAA
1936 and are very detailed to ensure only those entities that genuinely reside in
Norfolk Island are eligible for the exemption.
1.20 The removal of the income tax exemption in Division 1A of Part III of
the ITAA 1936 means that all Norfolk Island resident individuals are subject to
Australian income tax on their income sourced from Norfolk Island and from
sources outside Australia, in addition to their income sourced from areas of
Australia outside Norfolk Island.
1.21 Similarly, with the removal of the Norfolk Island income tax exemption,
Norfolk Island companies must pay income tax on their income sourced from
Norfolk Island and from sources outside Australia, in addition to their income
sourced from areas of Australia outside Norfolk Island. Further, consistent with
the treatment of other Norfolk Island sourced income, Norfolk Island shareholders
will be subject to income tax on dividends from Norfolk Island companies. To
prevent double taxation of corporate income following these changes, the
dividend imputation system has been extended to Norfolk Island companies and
shareholders. [Schedule 1, item 15, section 202-45 of the ITAA 1997]
1.22 Schedule 1 also removes exemptions for Norfolk Island residents from
the requirement to quote their tax file number to an investment body or their
employer or be subject to pay as you go withholding. Under the current law,
Norfolk Island residents are taken to have quoted their tax file number to an
investment body (such as a bank) or to their employer where the income they
receive from that body or employer is exempt from Australian income tax. With
the removal of the income tax exemption, the exemption from having to quote a
tax file number or be subject to withholding becomes redundant and is therefore
repealed. [Schedule 1, items 2 to 4]
Medicare levy
1.23 Schedule 1 to this Bill amends the ITAA 1936 to remove the full
exemption from the Medicare levy for residents of Norfolk Island. [Schedule 1, items 5
to 8]
1.24 As a result, the Medicare levy will apply to all Norfolk Island residents
as it currently applies to all other Australian resident taxpayers.
1.25 The rationale for the exemption of Norfolk Island residents was that
generally, the Medicare levy does not apply to those taxpayers who are unable to
access Medicare benefits. However, with the extension of Medicare benefits to
Norfolk Island residents, the exemption from the Medicare levy is being removed.
69
1.26 This change will not affect the treatment of Norfolk Island residents who
are nonetheless entitled to an exemption from the Medicare levy for another
reason.
1.27 Changes to the Medicare levy will have the same effect on liabilities for
the Medicare levy surcharge for those Norfolk Island resident individuals who
have income for surcharge purposes above the relevant thresholds and who do not
hold private health insurance for themselves and their dependants. [Schedule 1, items 5
to 8 and Schedule 1, items 1 to 4 of A New Tax System (Medicare levy Surcharge-Fringe Benefits)
Amendment Bill 2015]
Superannuation guarantee
1.28 Schedule 2 to this Bill amends the SG Act to remove exemptions for
salary and wages paid to Norfolk Island resident employees for work done in
Norfolk Island, and for salary and wages paid by Norfolk Island resident
employers for work done in Norfolk Island. [Schedule 2, item 1]
1.29 The removal of the exemption means that salary and wages paid to
Norfolk Island resident employees for work done in Norfolk Island and salary and
wages paid by Norfolk Island resident employers for work done in Norfolk Island
will be covered by the superannuation guarantee arrangements. Employers will be
required to make mandatory superannuation contributions to an appropriate
superannuation fund on behalf of employees.
1.30 However, transitional arrangements have been introduced to allow the
superannuation guarantee arrangements to be progressively introduced, in order to
reduce the impact on Norfolk Island and employers (see paragraphs 1.41 to 1.44).
Consequential amendments
1.31 Cross references and notes contained in the taxation and superannuation
laws that refer to the current Norfolk Island tax exemptions have been repealed.
Cross-references to the CGT transitional provisions have also been added or
updated. [Schedule 1, items 9 to 14, 16 and 17]
1.32 The A New Tax System (Medicare Levy Surcharge-Fringe Benefits)
Amendment Bill 2015 makes consequential amendments to the A New Tax System
(Medicare Levy Surcharge-Fringe Benefits) Act 1999 reflecting changes made to
the Medicare levy as it applies to Norfolk Island residents.
Application and transitional provisions
Income tax and Medicare levy
Application
1.33 The amendments to the income tax system (and Medicare levy system)
apply to the 2016-17 income year and later income years. For most taxpayers, this
will mean the changes commence on 1 July 2016 unless a taxpayer has a
substituted accounting period. [Schedule 1, item 19]
Transitional rules -- capital gains tax
1.34 A special transitional regime applies to the CGT liabilities of entities
resident in Norfolk Island.
1.35 The object of the transitional CGT arrangements is to ensure that the
income tax system only applies to tax capital gains that accrue in relation to
70
Norfolk Island taxpayers` CGT assets on or after 1 July 2016 unless those assets
were already subject to Australian income tax.
1.36 To achieve this, all CGT assets held by Norfolk Island taxpayers at the
end of 30 June 2016, will be taken on 1 July 2016 to have been acquired on 30
June 2016 for their market value on that day. However, this rule will not apply if
the Norfolk Island taxpayer would have not been entitled to disregard any gain or
loss from a CGT event that happened in relation to that asset under the law as it
applied prior to these amendments. [Schedule 1, item 18, subsection 102-25(2) of the Income
Tax (Transitional Provisions) Act 1997]
1.37 However, if the CGT asset is a pre-CGT asset (broadly one that was
acquired by the taxpayer before 20 September 1985), the transitional rule does not
apply and the asset will continue to be treated as a pre-CGT asset (that is, exempt
from CGT) until a CGT event happens or another rule applies that affects the pre-
CGT status of the asset.
1.38 Section 24P of the ITAA 1936 has also been rewritten and transferred
into the Income Tax (Transitional Provisions) Act 1997. Section 24P provides an
identical CGT transitional provision in relation to Christmas Island and the Cocos
(Keeling) Islands as a result of similar changes which were made to the taxation
arrangements applying to those territories in 1991. [Schedule 1, item 18, subsection 102-
25(1) of the Income Tax (Transitional Provisions) Act 1997]
1.39 There are no policy changes in relation to the rewrite and transfer and the
rewritten provision is intended to operate identically to section 24P.
Superannuation guarantee
Application
1.40 The superannuation guarantee changes apply for quarters
starting on or after 1 July 2016. [Schedule 2, subitem 2(1)]
Transitional rules -- superannuation guarantee
1.41 Recognising the potential impact that imposing the superannuation
guarantee could have on Norfolk Island employment, the superannuation
guarantee will be gradually phased-in. A special Norfolk Island transitional rate
will apply, starting at one per cent and slowly increasing over a twelve-year
period to minimise any employment impacts. In this way employers and
employees will have time to adjust and take the increasing superannuation
entitlements into account in their wage negotiations.
1.42 The transitional superannuation guarantee rate will only apply to salary
and wages that were previously exempt from superannuation guarantee (to the
extent that they were exempt). The transitional rates are set out in Table 1.1.
71
Table 1.1 General superannuation Norfolk Island
guarantee rate transitional rate
Financial year 9.5%
9.5% 1.0%
2016-17 9.5% 2.0%
2017-18 9.5% 3.0%
2018-19 9.5% 4.0%
2019-20 10.0% 5.0%
2020-21 10.5% 6.0%
2021-22 11.0% 7.0%
2022-23 11.5% 8.0%
2023-24 12.0% 9.0%
2024-25 12.0% 10.0%
2025-26 12.0% 11.0%
2026-27 12.0%
2027-28
1.43 Employers will apply the general superannuation guarantee rate to all
salary and wages that were not previously exempt from the superannuation
guarantee under the limited Norfolk Island exemption. Salary and wages that were
exempt under the Norfolk Island exemption will be subject to the Norfolk Island
transitional rate from 1 July 2016 to 30 June 2026. [Schedule 2, subitem 2(2)]
1.44 Employers will need to apportion the salary and wages they pay between
the two categories -- previously subject to superannuation guarantee and
previously exempt from superannuation guarantee -- and apply the correct rate to
the salary and wages in each category. [Schedule 2, subitem 2(2)]
72
HEALTH AND OTHER SERVICES (COMPENSATION) CARE CHARGES
AMENDMENT (NORFOLK ISLAND) BILL 2015
NOTES ON CLAUSES
Item 1 - After Section 3
Item 1 provides that the Health and Other Services (Compensation) Care Charges Act 1995
extends to Norfolk Island.
HEALTH INSURANCE (APPROVED PATHOLOGY SPECIMEN COLLECTION
CENTRES) TAX AMENDMENT (NORFOLK ISLAND) BILL 2015
NOTES ON CLAUSES
Item 1 - Schedule 1
Item 1 inserts the words Norfolk Island; and in paragraph 4(a) of the Act, which relates to
external territories, so as to specifically include Norfolk Island in the list of external
Territories to which the Act is extended.
HEALTH INSURANCE (PATHOLOGY) (FEES) AMENDMENT (NORFOLK
ISLAND) BILL 2015
NOTES ON CLAUSES
Item 1 - Schedule 1
Item 1 inserts the words Norfolk Island; and in paragraph 4(a) of the Act, which relates to
external territories, so as to specifically include Norfolk Island in the list of external
Territories to which the Act is extended.
PRIVATE HEALTH INSURANCE (RISK EQUALISATION LEVY) AMENDMENT
(NORFOLK ISLAND) BILL 2015
NOTES ON CLAUSES
Item 1 - Section 4
Item 1 inserts the words to Norfolk Island in Section 4 Extension of Act to external
Territories so as to specifically include Norfolk Island in the list of external Territories to
which the Act is extended.
AGED CARE (ACCOMMODATION PAYMENT SECURITY) LEVY AMENDMENT
(NORFOLK ISLAND) BILL 2015
NOTES ON CLAUSES
Item 1 - Schedule 1
Item 1 inserts the words Norfolk Island, in subsection 3(2) of the Act, so as to specifically
include Norfolk Island in the list of external Territories to which the Act is extended.
73