Royal commission into matters relating to norfolk island

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REPORT OF THE

ROYAL COMMISSION

INTO MATTERS RELATING TO

NORFOLK ISLAND

October 1976

Australian Government Publishing Service

Canberra 1976

© Commonwealth of Australia 1976

ISBN 0 642 02234 8

Printed by F.D Atkinson. Government Printer of Australia

P.O. Box 965
CIVIC SQUARE, A.C.T. 2608
15 October 1976

Your Excellency,

In accordance with Letters Patent dated 15 May 1975, I have the honour to present to you the Report of the Royal Commission into matters relating to the future of Norfolk Island.

The Letters Patent issued to your Commissioner are returned herewith.

Yours sincerely,

John A. Nimmoo

His Excellency the Honourable Sir John Kerr
A.K., G.C.M.G., K.St.J., Q.C.
Government House
Yarralumla
Australian Capital Territory

TABLE OF CONTENTS


Chapter 1
LETTERS PATENT APPOINTING ROYAL COMMISSIONER AND
SETTING OUT THE TERMS OF REFERENCE 9

Chapter 2

RECOMMENDATIONS OF THE COMMISSION IN SUMMARY FORM 11

1. In relation to the first principal matter (Chapter l7) 11

2. In relation to the second principal matter (Chapter 17) 11

3. In relation to Guideline (b) (Chapter 9) 14

4. In relation to Guideline (d) (Chapter 11) 14

5. In relation to Guidelines (e) and (f) (Chapter 12) 15

6. In relation to Guideline (h) (Chapter 14) 16

7. In relation to Guideline (i) (Chapter 15) 16

8. In relation to Guideline (j) Chapter 16) 17

Chapter 3

PROCEEDINGS OF THE COMMISSION 20

1. Counsel assisting and the secretariat 20

2. Invitation to interested parties 20

3. Witnesses and exhibits 20

4. Hearings and inspections 20

5. Libraries and archives 20

6. Final submissions 21

7. Overseas discussions and inspections 21

Chapter 4
INTRODUCTION 22

Chapter 5


HISTORICAL OUTLINE AND CHRONOLOGICAL SUMMARY 23

1. The origin of the Pitcairners 23

1. The transference of the Pitcairners to Norfolk Island 25

2. The History of Norfolk Island 27

3. The historical outline of the various administrative and legislative arrangements relating to Norfolk Island 31

Chapter 6


THE BERWICK CASE 40

Chapter 7


GENERAL OBSERVATIONS AND IMPRESSIONS 42

1. On witnesses 42

2. On evidence 42

Chapter 8


GUIDELINE (a) -

‘The interests of Norfolk Island residents” 44

1. The identity of residents 44

1. Period of residency 45

2. Purpose of residency 45

3. Occupations or businesses of residents 46

4. The allegiance of residents 47

5. Land interests of residents 47

6. Residents’ Organisations 49

7. The main interests highlighted by residents in their evidence 50

8. The need for an objective approach 52

Chapter 9

GUIDELINE (b)
‘The historical rights of the descendants
Of the Pitcairn settlers arising from their Settlement in 1856’ 54

1. Identification of the Pitcairn descendants 54

1. The claims relating to ownership and self—government 55

2. The right to the Pitcairn way of life 57

3. Rights open to question 58

(a)The aspect of taxation freedom 58

(b)Grazing rights 59

(c)Land rights 60

4. Conclusions and recommendations 61

Chapter 10


GUIDELINE (c)
‘Norfolk Island’s Legal Position As A Territory Of Australia’ 62

Chapter 11


GUIDELINE (d)

‘The present and probable development of the economy of Norfolk Island’ 63

1. Historical background 63

1. The transition to the present situation 67

2. The present economy and the dominance of tourism 68

3. Possibilities and problems in the development of other industries 78

4. The role of companies in the economy 80

5. Aspects of the Island’s public finance 83

6. Factors affecting the future 85

7. Conclusions and recommendations 89

8. Relationship to the Australian economy 90

Chapter 12
GUIDELINES (e) AND (f) 93

1. The present situation 93

(a)Social services 93

(b)Pensions 94

(c)Medical benefits 94

(d)Health 96

1. Medical services 96

2. Specialist medical services 96

3. Dental services 96

4. Hospital services 96

5. In-patient services 97

6. Out-patient services 97

7. Pharmacy services 97

8. Public health services 98

9. Maternal and child health 98

10. Domiciliary nursing 98

11. Family planning, mental health, alcoholism and drug dependency services 98

12. School medical services 99

13. Health education 99

14. Immunisation services 99

15. Quarantine services 99

16. Physiotherapy 99

17. Emergency blood supply 99

18. Certification procedures 99

(e)Education 100

(f)Compensation and other benefits 101

1. Re Workers Compensation 102

2. Employment and employment services 102

3. Wages and wage-fixing machinery 103

4. Freedom of association and the right to organise 103

5. Labour inspection 103

6. Labour Standards 103

7. Superannuation 104

8. Wage Structure 104

1. Attitudes to the above, both Island and mainland 104

(a)The Norfolk Island Council view 104

(b)Individual views of Island residents 104

(c)Department of social security 105

(d)Department of health 105

(e)Department of education 105

(f)The Department of the Capital Territory 105

(g)The Australian Treasury 106

(h)The Department of Employment and Industrial Relations 106

(i)The Department of Administrative Services 106

(j)The aspect of hardship 107

2. Conclusions and recommendations 107

Chapter 13
Guideline (g) 132

1. Introduction 132

(a)Form of this chapter 132

(b)Need for definitions 132

(c)‘Tax evasion’ 132

(d)‘Tax avoidance’ 132

(e)‘Tax haven’ 133

1. The emergence of Norfolk Island as a tax haven 133

(a)Prerequisites of a tax haven 133

(b)Development of the prerequisites 133

(c)Distinction between Norfolk Island and Australia 133

(d)Effect of the distinction 134

(e)Extension by special provisions 134

(f)Background to the special provisions 134

(g)Effects on withholding tax interest and dividends 135

(h)Summary of situation which had evolved 135

2. Elaboration of some of the more important essentials of a tax haven in the Norfolk Island context 135

(a)Communications 135

(b)Freedom of currency movements 136

(c)Availability of professional and financial services 136

(d)Political and administrative stability 137

(e)The proliferation and diminution of tax avoidance 137

3. The uses made of Norfolk Island as a tax haven 137

(a)Means employed in tax avoidance schemes 137

(i) Basis of arrangements 137

(ii) Steps to secure ‘residency’ of companies 137

(iii) The creation of a legal fiction 138

(iv) Examples of practices adopted 139

(v) Avoidance schemes relating to dividends 139

(vi) The significance of the Esquire Nominees Case Esquire Nominees Ltd (Trustee of Manolas Trust) v. Federal Commissioner of Taxation (1973) 129 C.L..R 177 140

(vii) Examples of avoidance schemes other than interest and dividend schemes 141

(viii) Use of trusts 142

(ix) Avoidance by Australians of Australian tax on foreign income 142

(x) Avoidance of Australian tax by Foreigners 143

(xi) Avoidance of foreign tax by foreigners 143

(b)The extent of past avoidance and evasion 144

(i) Effective virtual commencement date 144

(ii) The indicator provided by banking activity 144

(iii) Estimations of tax lost to Australia 147

(iv) Indicator from numbers of service industries 147

(v) The element of publicity 147

(vi) The potential loss from tax avoidance 147

4. Additional harmful effects 148

5. Alleged benefits of using the Island as a tax haven 148

6. Efforts to counter the tax avoidance schemes 149

7. The position after the 1973 amendments 151

8. Avoidance of estate and gift duty 153

9. The anomaly in the taxation treatment of competing companies 157

10. Other activity related to taxation avoidance 157

11. Argument in favour of retaining the tax haven status of Norfolk Island 157

12. State duties – death and stamp 157

13. Criticism against the retrospective character of the amending legislation of 1973 158

14. Conclusions 158

Chapter 14

GUIDELINE (H) - ‘CONDITIONS FOR PERMANENT ENTRY INTO THE ISLAND COMMUNITY’ 160

1. Background 160

Current situation 162

(a)Temporary entry permits 163

(b)Entry permit not being a temporary entry permit 164

(c)Certification of declaration of residential status 165

1. Immigration procedures 166

2. Amendments and proposed amendments to legislation and policy 167

3. Present situation of population and holders of permits 170

4. Recommendations 170

Chapter 15
GUIDELINE (I)

‘THE NEED FOR ADEQUATE COMMUNICATIONS BETWEEN THE ISLAND AND AUSTRALIA, AND THE REST OF THE WORLD’. 173

1. Introduction 173

1. Present situation 173

(a)Radio telephone and telegram services 173

(b)Local radio broadcasting 174

(c)Local telephone services 174

(d)Newspapers 174

(e)Mail deliveries 174

(f)Air services 175

(g)Shipping services 176

(h)Meteorological services 176

(i)Ingress and egress 176

2. Air services to and from Norfolk Island 177

(a)The problem merging 177

(b)Main factors involved 177

(c)The Norfolk Island airport 178

(d)Alternative air service proposals 179

(e)The Qantas position 181

(f)The position of other airlines 182

(g)The environmental considerations involved in upgrading the airport 184

(i)Effects of the actual construction work 185

(ii)Development effects 185

(iii)Noise pollution from jet aircraft 185

(iv)Effects upon fauna and flora of noise and fume pollution from jet aircraft 185

(v)Vibration effects upon buildings 186

(vi)Conclusions 186

(h)The costs involved and responsibility for them 186

(i)Attitude of the former administering department (Capital Territory) 187

(j)Decisions to be taken and recommendations in relation thereto 188

3. Other recommendations relating to communications 189

(a)Seaport possibilities 189

(b)Shipping services 189

(c)OTC services 190

(d)Local radio reception 190

(e)Delivery of mail and newspapers 190

Chapter 16

GUIDELINE (j)
‘The need for adequate law enforcement and judicial machinery’ 191

1. Present situation 191

(a)The law applicable to Norfolk Island 191

(b)The Courts 192

(c)The criminal law 194

(d)Criminal law administration 194

(e)Police Force 195

(f)Copyright and patents 196

(g)Commercial law 196

(h)Family law 196

(i)The Law Reform Commission 197

(j)The Australian Legal Aid Office 197

(k)The preparation of legislation 197

(l)The Weir Report 197

(m)Some Australian costs associated with law enforcement in Norfolk Island 198

1. Recommendations 198

Chapter 17

PRINCIPAL MATTERS (1) AND (2) 201

1. ‘The future status of Norfolk Island and its constitutional relationship to Australia’ 201

2. ‘The most appropriate form of administration for Norfolk Island if its constitutional position were changed’ 201

1. The future status of Norfolk Island and its constitutional relationship to Australia. 201

2. The most appropriate form of administration for Norfolk Island if its constitutional position were changed. 201

1. The first matter 201

(a)The Berwick Case 201

(b)The issue of independence 204

(c) Recommendation 208

1. The second matter 208

(d)The need for recommendations concerning the future administration 208

(e)The present attitudes in the Island and their relationship to the Commission’s approach 209

(f)The main items requiring attention 209

(g)Two aspects providing necessary background 210

(i) Past administration by Australia 210

(ii) The present form of administration in the Island 211

(h)Discussion of items meriting recommendations 212

(i) Parliamentary representation 212

(ii) The form of local government desirable 213

(iii) The two earlier objections to the assumption of executive powers by the Island, and the name of the local body 213

(iv) Voting for the local Assembly 213

(v) The possibility of electoral wards in the Island 213

(vi) Number of members for the Assembly and voting rights 214

(vii) Term of office of Assembly members and their remuneration 214

(viii) The concept of the reservation of seats for special groups 214

(ix) The powers which are not allotted to the Assembly 214

(x) Representation of the island at gatherings of special importance to it 214

(xi) The delays experienced in introducing our new amending legislation 214

(xii) Desirability of maintaining the advisory role of local government 215

(xiii) The Administrator’s present dual role 215

(xiv) The power of veto by the Administrator 215

(xv) Finance for the Assembly to exercise its powers 216

(i)Recommendations 218

APPENDIXES 222

Appendix I

LIST OF WITNESSES WHO APPEARED BEFORE THE NORFOLK ISLAND ROYAL COMMISSION 224

Appendix II


ORGANISATIONS AND PERSONS WHO MADE SUBMISSIONS
BUT DID NOT APPEAR BEFORE THE COMMISSION 229

Appendix III


EXHIBITS TENDERED TO ROYAL COMMISSION 231

CONFIDENTIAL EXHIBITS TENDERED TO ROYAL COMMISSION 244

Appendix IV
SCHEDULE OF RELEVANT PUBLICATIONS 245

Appendix V


INSTRUCTIONS AND ADVICE ADDRESSED TO THE CHIEF MAGISTRATE OF
NORFOLK ISLAND 247

Appendix VI


SUPPLEMENT TO THE NEW SOUTH WALES GOVERNMENT GAZETTE
OF FRIDAY 30 OCTOBER 1857 252



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