NORFOLK ISLAND ADMINISTRATION BILL 2016

31 May 2016

2nd Reading Speech


The Hon. ADAM SEARLE ( 15:13 ): I lead for the Opposition in debate on the Norfolk Island Administration Bill 2016. The Opposition does not support the bill at this time. I move:

That the question be amended by omitting “be now read a second time” and inserting instead “be referred to General Purpose Standing Committee No. 1 for inquiry and report.”

In addressing the bill and the amendment, we note that in 2015 the Federal Parliament passed legislation that changed the way in which Norfolk Island is administered. The legislation abolished the Legislative Assembly of Norfolk Island from 1 July 2015. New South Wales previously had arrangements with Norfolk Island for the provision of health and education services, but the ambit of this bill is potentially much larger than a simple fee‑for‑service arrangement. The bill provides that New South Wales may enter into arrangements with the Commonwealth for the effective application and administration of the laws enforced on Norfolk Island. Such an arrangement may provide for the exercise of powers by an authority of New South Wales or an employee of New South Wales on or in relation to Norfolk Island.

We note from the second reading speech that education and health services are already supplied to the island’s residents by New South Wales, presumably under an arrangement with the Commonwealth and presumably without the need for legislation. However, as we indicated, this legislation simply provides a blank cheque, as it were, for an arrangement between the State and the Commonwealth. Apart from a bland assertion by the Government that services will be funded by the Commonwealth and result in no net cost for New South Wales, the Government has not provided the Parliament or the wider community with any real sense of the financial arrangements or impacts. The Government also has not outlined the scope of services, although we accept that in the first phase they will be limited to health and education. 

The bill provides for a potentially considerable extension of the laws of New South Wales into the lives of the people of Norfolk Island. Norfolk Island has been governed by a mixture of Commonwealth laws and laws made by the island’s Legislative Assembly. Our understanding is that the local laws of Norfolk Island will be replaced through the regulatory power. Effectively, the Federal regulatory capacity will extend the content of at least some New South Wales laws to Norfolk Island and displace the local laws. That will happen without any consultation with the people of Norfolk Island and without their having any right to representation or consultation with the New South Wales Government or Parliament. 

In circumstances where so much is not known—at least by the Opposition—about the background or content of any negotiations between the Commonwealth, New South Wales and the people of Norfolk Island about these arrangements, we are hesitant to support the bill at this stage; hence our proposal that the bill be referred to General Purpose Standing Committee No. 1 as the appropriate committee for inquiry and report. Our view is that such an inquiry should establish the implications of the extension of administration and legislation of New South Wales to Norfolk Island and any safeguards or models of consultation that should be properly considered and introduced if this bill is to proceed. Should the move to establish the inquiry not be supported in this Chamber, the Labor Opposition will not be supporting the legislation. We do not believe it is prudent to support such a potentially wideranging extension of our laws and the roles and undertakings of our administrative bodies into another territory without a proper understanding of the potential implications. 

To give some history, Norfolk Island was discovered by Captain Cook in 1788 and it became the place for convicts from Sydney to receive particularly harsh punishment. Eventually, after all of the convicts left, the empty island was deployed in 1856 by Queen Victoria’s Government to settle the Bounty mutineers. In 1856 it was declared by imperial order that Norfolk Island should be kept separate and distinct from the mainland Australian States, which were federated in 1901 without Norfolk Island. In 1913 the United Kingdom essentially handed Norfolk Island over to Australia to administer as an external territory. In 1979 it was granted a large measure of self-government with an elected parliament responsible for health, customs, immigration, tourism, culture and most matters of democratic concern. 

For approximately 36 years it has effectively been an autonomous territory. I note that there have been issues about its financial sustainability and whether or not the fishing licence fees collected by the Commonwealth should have been conferred on the territory. I also note, although administered under these arrangements, that the island had a particular special identity. For example, it competed in the Commonwealth and Oceanic games under its own name and won medals in that capacity. It also had representation with the Commonwealth Parliamentary Union and on some United Nations committees. The issue of moving to a different form of self-government and instituting a local council—in fact, the council elections may have been held last weekend—is a matter for the Commonwealth Government, but the notion of replacing the territory’s current laws with New South Wales laws raises issues about consultation with Norfolk Island residents about laws this Parliament may make in the future which may have an application to those residents.

It is our understanding that the majority of residents are not happy about this arrangement and that those concerns are being taken to the United Nations Special Committee on Decolonization. I have received, courtesy of persons formerly associated with the Norfolk Island Government, a joint opinion by Dr Christopher Ward, SC, Dr Stephen Tully, Professor Vaughan Lowe, QC, and Professor Richard Hoyle, about whether or not Norfolk Island can or should be inscribed in the United Nations list of non-self-governing territories. It is their view that Norfolk Island should be included on that list, but that is a matter for the United Nations and the Commonwealth Government. The Opposition contends that it would not be a good thing for this Parliament to proceed down that path without knowing a good deal more.

The legislation that was passed by the Commonwealth, subject to orders to be made by the Governor General, extended all New South Wales laws to Norfolk Island. It is my understanding that the Governor General has made an order holding back the rollout of New South Wales laws and that only seven laws dealing with health and education matters are intended to take effect from 1 July 2016. The legislation is open-ended so it not only allows the State to enter into any arrangement with the Commonwealth but also envisages that New South Wales authorities and employees will be exercising their authority and functions in Norfolk Island. However, according to the Minister’s second reading speech, they do that without legislative support. One might then ask: If these services are already being provided, why is this legislation necessary? We assume it is to put it on a firmer foundation and that a much wider array of services are intended to be undertaken in that territory by the New South Wales Government under contract with the Commonwealth.

The problem is that the Commonwealth Government now has all the levers to extend the content of New South Wales laws to Norfolk Island and it does not need the concurrence of the New South Wales Government to do so. When one looks at the continuing disagreement between the various State and Commonwealth governments about funding for health and education on mainland Australia, one finds that there may well be some dispute about the value of the services provided. One can see a situation in which the Commonwealth Government extends to Norfolk Island by its legislative levers more New South Wales laws and engages the roles and responsibilities of New South Wales agencies to extend their operations of Norfolk Island.

It may be that the remuneration offered by the Commonwealth Government is in its view adequate to undertake those tasks but not so in the view of the New South Wales Government. There is no way for us to get out of that difficulty if we are drawn further into providing services and operations on Norfolk Island, even against our own wishes and inclinations, because the consent of the New South Wales Government is not required. Once we get drawn in, we will find ourselves stuck and we may be the subject of ever-increasing obligations to that Territory in a way that we did not intend and that ultimately leads to a cost impost for the New South Wales taxpayer.

That is our fundamental and primary concern as New South Wales lawmakers. As we do not have all the financial details we cannot support the bill at present. I am not talking about every last detail because obviously these are commercial contracts but in a sense they are not competitive so there is no reason why they should not be on the public record. However, there is not even a real sense of what is to be involved as a result of this legislation. There is so much that is not known. We do not think it is safe, sound or prudent for us to pass this law and to give impetus to this rollout of New South Wales law and activities on Norfolk Island.

The second proposition that I raised at the beginning of my contribution relates to the residents of Norfolk Island having a voice. I understand that they will have a voice at the upcoming Commonwealth election. They may voluntarily register to vote and, if so, they will be allocated to the Federal electorate of Canberra in the Australian Capital Territory. But I note that Canberra is a landlocked electorate; it is not contiguous with the sea in any way so it makes it a little anomalous. Having said that, we understand that this is not a novel arrangement; namely, a similar arrangement applies in relation to the Cocos Keeling Islands and Western Australia. Indeed, the Western Australian law applies to those islands in the same way as it is proposed to extend New South Wales law to Norfolk Island but the Norfolk Island residents will have no subnational representation. If the content of our laws are to be placed on Norfolk Island by the Commonwealth, there should be some mechanism of consultation between this Parliament and Norfolk Island so we know its views if laws that we make at some future point will apply to it. That does not appear to have been given any consideration.

The Opposition has met with representatives of the Norfolk Island People for Democracy, including Christopher Magri, the Minister for Industry and Commerce in the former Norfolk Island Government. We have also had communications with a number of private citizens as well as persons formerly engaged in the administration, including some worrying representations from persons employed in the public services of Norfolk Island. One public servant had her pay cut by 2 per cent because she made a comment on Facebook adverse to the administrator of Norfolk Island, former Coalition member Gary Hargreaves, and persons engaged in broadcast facilities on Norfolk Island have been prevented from broadcasting any service critical of the removal of self‑government or the raising of issues such as this bill in the Parliament.

Those are allegations that are, as yet, untested, but they are very serious. I would like to think that the Government of New South Wales and members in this Chamber would not charge down this path without evaluating whether there is anything in these somewhat concerning and undemocratic measures if, in fact, they have taken place. I have also received a copy of a letter from Mr David Buffett, a former Chief Minister of Norfolk Island, who also held ministerial responsibilities in both health and education at different times. His letter is addressed to Reverend the Hon. Fred Nile, but I think it is appropriate to read it onto the record because I think the concerns it raises go to the heart of these matters and I think they should be very carefully evaluated by all members before they vote on this matter. Mr Buffett says:

I write to you with some reasonable knowledge of Norfolk Island affairs, having served as Chief Minister, and held ministerial responsibility in both Health and Education portfolios, at various times.

This legislation has been brought to your parliament at the request of Commonwealth authorities. There has been no satisfactory Commonwealth consultation about the detail of this proposed legislation, with the community of Norfolk Island; although claims to the contrary are made by Commonwealth Ministers and officers. Similarly, I respectfully draw your attention to the fact that neither has there been consultation between the NSW government (source of the services) and the community of Norfolk Island at large (where the services are to be placed) about detail and preferred delivery of the services designated in the proposed legislation. Information (both spasmodic and conflicting) filtering to the community, signal commonwealth directions being given to NSW representatives and NSW representatives conveying same to Norfolk Island players in the respective fields of Education and Health. However, you will immediately understand the compelling difference between “directions” and “consultation”.

Prospective recipients of these services in Norfolk Island are concerned about a number of aspects of the proposed legislation and seek to examine these concerns in detail. The preferred method of such an examination is to seek referral of the Bill to a Committee of Enquiry.

I will not read it all, but the letter goes on to say:

First, the matter of education.

Presently, education facilities are accessed from K to Yr. 12 in a single Norfolk Island school. This service is provided by the NSW Department of Education and Communities (teachers, curriculum, etc.) and funded by Norfolk Island authorities. This arrangement commenced in 1906 and has continued to provide an excellent education facility in Norfolk Island. Over this century plus period of time, the NSW Department has experienced name changes, as has the Norfolk Island education authority.

A current Memorandum of Understanding (January 2015) stands in place and will continue to stand in place, to deliver such services.

Education will not be endangered in Norfolk Island, should the above Bill be referred to a Committee of Enquiry.

Second, the matter of health.

Presently, health services are provided by a statutory body in Norfolk Island, known as the Norfolk Island Hospital Enterprise. This enterprise, to name its major components, employs the doctors, a dentist, nursing staff, radiologist, pathologist, pharmacist, runs an aged care unit on the same premises, and a 24 bed hospital. The facility is supported by the NSW Department of Health, South Eastern Sydney Local Health District.

As with education, a current Memorandum of Understanding (2013) stands in place with the South Eastern Sydney Local Health District. Today [26 May 2016] I have had discussion in Norfolk Island with the CEO of this District authority, and he confirms continuity of the existing health services beyond 1st July 2016. His services are not dependent upon the proposed NSW legislation.

Notwithstanding the significant revision of responsibilities for delivery of a range of services in Norfolk Island (principally a migration of responsibilities from a Norfolk Island authority, to a commonwealth instrumentality), Education and Health services would not be interrupted in Norfolk Island, by referral of the Bill to a committee of Enquiry.

I do seek your support to refer The Norfolk Island Administration Bill 2016 to a Committee of Enquiry.

And he provides his contact details. I find that representation, and many like it that I have received over the past few weeks, compelling. I believe there are a large number of questions that have not been answered and which it would be unfair for the Parliamentary Secretary to have to address on the fly.

Mr David Shoebridge: She’ll give it a go.

The Hon. ADAM SEARLE: I am sure she will give it a go. For example, what steps has the New South Wales Government undertaken to apprise itself of the application to the decolonisation committee? Is there anything in that claim in the precedents of the island? Is there a potential embarrassment for the State of New South Wales if we are seen by international authorities to be aiding and abetting recolonisation, for example? Is it a matter they have even looked at? If they have looked at it and they are convinced utterly that there is nothing in it, it would be good to receive that advice, presumably furnished by the Solicitor General, but I would hazard a guess that that has not taken place.

Before members vote on this legislation, particularly if members intend to vote in favour of the legislation, they should have a full understanding from the Government about, apart from health and education, what else is intended to be covered by this legislation in future agreements. How much money is the Commonwealth putting on the table? Is that adequate, according to Treasury advice, to cover the costs incurred by New South Wales? What measures are in place to stop the Commonwealth extending obligations of New South Wales agencies and authorities and employees to provide services on Norfolk Island so that we do not find ourselves getting drawn further and further into an ever-extending financial commitment? What mechanisms are in place to resolve a difference of opinion between the Commonwealth and the State of New South Wales about the cost of providing service X, whether it is health, education or some other future service to be provided?

I do not like the terms “the thin edge of the wedge” or “the slippery slope”, but by embracing this legislation now with so much unknown there is a risk that we are effectively giving a blank cheque to an ever‑increasing commitment by New South Wales and its authorities to provide services on Norfolk Island. There is no real guarantee that that will not cost the New South Wales Government and taxpayers in the future, because we do not know what mechanisms are there to protect the public finances of this State, and I draw attention to the democratic deficit. I understand that there are a lot of additional things that will be in place on Norfolk Island. I think Norfolk Islanders will have to pay income tax from 1 July—and that is fine, other Australians do that—but they will not be heard in the deliberations of this Parliament when we make rules for this State in the future, even though our laws may be then made to apply to Norfolk Island and its residents to the exclusion of domestically made Norfolk Island law. That is troubling; there should at least be some mechanism for consultation.

Too much is not known. In our humble view, there are too many risks to support the legislation at this time. Rather than simply say no, we propose an inquiry by General Purpose Standing Committee No. 1. We understand that 1 July is not that far in the future, but a short, sharp deliberation could be undertaken. General Purpose Standing Committee No. 1 has done that before; for example, with electricity privatisation, which was dealt with in a matter of weeks. But, given that letter I have just read onto the record, it appears that this legislation does not need to be passed by 1 July to ensure the continuity and ongoing provision of health and education services. I am not saying that the committee inquiry should be lengthy, but we should take this opportunity to get to the bottom of the concerns that have been raised with me and no doubt with other members of this Chamber.

My understanding is that when the Norfolk Island representatives came here a few weeks ago they met with me and with other members of this House, and I believe they sought to meet with representatives of the New South Wales Government. I am not sure whether they did so. I look to the Parliamentary Secretary to give us a full report of the interaction between the New South Wales Government and the representatives of the Norfolk Island People for Democracy.

Mr David Shoebridge: She already has.

The Hon. ADAM SEARLE: I will suspend my judgement until I hear from the Parliamentary Secretary herself. Notwithstanding any response she may make, I think it is incumbent on us to evaluate these issues for ourselves, to get to the bottom of these matters to ensure that there are no risks for taxpayers and the Government of New South Wales or, if there are some risks, that we can take some steps to put safeguards in place. I do not think we should accept a bland catch-all assurance from the Parliamentary Secretary on behalf of the Government that there will be no cost to the New South Wales taxpayer or that the Commonwealth will cover it all. That may well be true, at least for the near future, but as more services are required of New South Wales authorities and as more New South Wales laws are imposed upon Norfolk Island and its residents, that may not always be the case.

Let us take this opportunity to proceed prudently and cautiously; let us have that inquiry. When it reports back we can consider the bill at that point, with the additional information we will then have. To do anything else, to rush this through without that inquiry, would be risky, imprudent and frankly irresponsible and we will not be party to it.