There are obvious shortcomings in the area of law enforcement in Norfolk Island, and, putting aside for the moment the question of financing improvements, the following measures are recommended:
That non-law-enforcement activities of the Police Force be severed and handed over to Administration personnel.
That a permanent police station complex be constructed at Burnt Pine, and include the following:
Two lock—up cells with toilet facilities;
Provision for reception and identification of offenders;
Space for stores, exhibits, equipment (including breathalyser testing equipment) and amenities for staff;
Residence for lock—up keeper (i.e. One constable);
Radio communication facilities.
That a course be established for training special constables and probation officers in the rudiments of their tasks -
That in relation to punishment, and as an alternative to imprisonment, both the Supreme Court and the Court of Petty Sessions be empowered to impose a sentence on an offender whereby he may be obliged:
To pay a fine;
To compensate, to whatever extent and in whatever manner the court sees fit, the victim or victims of his unlawful conduct;
To suffer deprivation of liberty by performing community service when, and as, directed by a controlling body representative of the community.
The expense of establishing, maintaining and staffing a living-in institution such as those of the kind associated with some periodic detention centres is not justified in Norfolk Island. However, the concepts of deprivation of liberty, compensation to the victim and restitution to the community are well worth applying in the Island and would, it is thought, be sympathetically received by the residents especially as an alternative to ‘deportation’.
That legislation to enable parole to be granted in the Island be introduced immediately, along with power in the Courts to fix a non-parole period in respect of a sentence of imprisonment.
That laws of the Island be updated and consolidated as soon as possible, and be reviewed as part of any review entrusted to the Law Reform Commission of the laws of all Australian Territories.
That those recommendations of the Weir Report not covered by this Report be considered in conjunction with the recommendations contained in this Report,
That Island magistrates, in addition to Supreme Court judges, be empowered to grant bail.
That the jurisdiction of Island magistrates in civil matters be enlarged to the. same level as that exercised by magistrates of the Court of Petty Sessions of the Australian Capital Territory.
That the law library in the Island be supplemented by the addition of more works of reference.
That adequate Court staffing arrangements be provided.
That the Removal of Prisoners (Territories) Act 1923-1973 be amended to allow the Minister for Administrative Services instead of the ‘Minister of State for External Territories’ to advise the Governor-General on the removal of prisoners from Norfolk Island
That in order to give effect to the implications of the decision in the Berwick Case that s. 14 of the Norfolk Island Act 1957—1963 be amended to provide for all Commonwealth legislation past or future affecting Australia generally to be henceforth applicable to Norfolk Island unless the contrary is expressly stated.
That the Commonwealth be responsible for law enforcement in Norfolk Island.
That the commonwealth Government make provision for the hearing of matrimonial causes instituted by residents of the Island under the Family Law Act.
That the Commonwealth Government make provision for granting legal aid to residents of Norfolk Island.
PRINCIPAL MATTERS (1) AND (2)
‘The future status of Norfolk Island and its constitutional relationship to Australia’
‘The most appropriate form of administration for Norfolk Island if its constitutional position were changed’
Principal Matters (1) and (2)
The ten guidelines having been considered, the stage has been reached to report and make recommendations on the two principal matters, viz.
The future status of Norfolk Island and its constitutional relationship to Australia.
The most appropriate form of administration for Norfolk Island if its constitutional position were changed.
As already indicated, prior to the decision in the Berwick Case, a doubt existed regarding the present status of the Island. That doubt in turn raised another doubt as to whether the Commonwealth Parliament had power to alter the status of the Island. It could, of course, (as Newbery’s Case determined)29 have made laws for the government of the Island but governmental powers beyond that point were unclear. The High Court of Australia in the Berwick Case, by holding that the Island is part of the Commonwealth and that the Commonwealth Parliament has plenary legislative power in respect of it, has clarified the hitherto unclear and laid these doubts to rest.
The Court has specifically stated that by virtue of s.122 of the Commonwealth Constitution, the Commonwealth can on the one hand pass laws providing for the direct administration of Norfolk Island by the Commonwealth Government ‘without separate territorial administrative institutions or a separate fiscus’ and on the other hand can endow the Island ‘with separate political, representative and administrative institutions, having control of its own fiscus’. It is, therefore, open to the Commonwealth to lay down any form of government and administration for the Island under Australia that it chooses.
It is equally open to the Commonwealth, if it so chooses, to shed all responsibility for the Island by granting it complete independence.
In reporting and making a recommendation on this crucial question of the future status of Norfolk Island one must be objective and endeavour to be just as fair to Australia as to the Island.
It will be apparent to any dispassionate reader of the transcript of the evidence given before the Commission that Norfolk Island is, as stated in Chapter 11, an economic liability to Australia and a costly one at that. It is easy to understand why Britain, who took the initiative in the matter, wished to unload it upon Australia and why Australia is justified in now weighing the pros and cons of retaining that burden, especially at a time when every effort is being made by the Australian Government to economise.
To say Britain wished to unload Norfolk Island upon New South Wales and subsequently Australia is no exaggeration as the following extracts from the British Archives evidence.
In the British Parliamentary Accounts and Papers (Nos 1 and 2) Vol. 10 1897 relating to colonies and British possessions, there is contained in No. 5 of those papers an admission by viscount Hampden as follows:
I requested my Ministers to consider a suggestion which I made to them, that Norfolk Island should be transferred to New South Wales…
(the underlining from the above quotation is the Commission’s)
It is thus clear that the initial concept of transferring Norfolk Island to New South Wales was floated by Viscount Rampden and he reported this as Governor Designate of New South Wales in a letter dated 21 August 1895 to the Colonial Office. A Mr John Bramston of the Colonial Office replied on 18 September 1895 to Viscount Hampden as follows:
Her Majesty’s government would regard with much satisfaction the taking over of the administration of Norfolk Island by the government of New South Wales...
In papers entitled ‘CO 201 Vol. 1 1896, 619’ there is an original letter from Viscount Hampden dated 21 March 1896 to Mr Chamberlain in which the following paragraph occurs:
You will be well quit of the trouble (i.e. maintaining Norfolk Island) at the price (£3000) for it is doubtful whether the Island can be made to pay its way.
A further paragraph reads as follows:
The islanders are strongly opposed to transfer to New Zealand. Their wishes apart, I should say that you will do well to let New Zealand have this Island if she wants it and will give better terms (than New South Wales).
Still further in Dispatch 545 referring to a note from a government official in the United Kingdom upon advice that New South Wales was willing to accept transfer of Norfolk Island upon the granting of £1000 by the United Kingdom government toward repairing buildings in the Island, Viscount Hampden said ‘If we get off with a grant of £1000 instead of £3000 we shall do well’.
Yet again in Dispatch 548 Viscount Hampden stated ‘We had better, if possible, make the Island part of the colony (of New South Wales) so as to get it off our hands’.
In Dispatch 561 of the same reference, it is recorded that New Zealand was asked by the United Kingdom government to give an assurance that if New Zealand took over Norfolk Island, New Zealand would be prepared to accept the financial liability involved. No satisfactory assurance from New Zealand was received in the United Kingdom and it would appear that this lack of an assurance from New Zealand was the reason why the United Kingdom did not proceed with the New Zealand proposal.
In yet a further private letter from Viscount Hampden to Chamberlain dated 8 August 1896, the following paragraph occurs:
I am well pleased with the result (i.e. the transference of Norfolk Island to New South Wales) and I feel sure that the colonial office will be thankful to be rid of a troublesome and unprofitable business.
The above evidence makes it very obvious that Britain was most eager to unload Norfolk Island upon either New South Wales or New Zealand in order to rid itself of both a social and an economic burden. Law and order had broken down in Norfolk Island and it was around that time that a murder and an alleged murder had taken place. Magisterial supervision in the Island had proved a failure and Britain was being asked to provide further money in order to try and correct the situation. Britain did not want this financial burden to continue and was prepared to make a relatively small contribution toward the cost of restoring buildings in the Island if some other body, ie. either New South Wales or New Zealand, would take the Island over. Britain finally succeeded in inducing New South Wales to take on the burden.
At the hearings of the Commission a determined effort was made to ascertain the wishes of the residents of the Island in relation to its future. Save that they agreed that there should be at least some sort of domestic autonomy they were hopelessly divided.
There is no doubt that the great majority of Pitcairn descendants do not want the status of the Island as a Territory of Australia to be changed. Likewise, there is no doubt that the majority of the settlers of recent years wish the Island to be independent of Australia, some of them completely so and others near enough to completely so that the difference is immaterial. There is also the related question of whether it is in Australia’s own interests to continue to support the Island.
In considering what the future status of Norfolk Island should be, it appears to the Commission that three possibilities should be examined by Australia in making a choice at this stage.
First, to maintain the present situation, viz, to continue to govern the Island as it does at the moment through an Administrator aided by an advisory Council.
Second, to grant independence to the Island and abandon it completely as Britain did.
Third, to take an intermediate position by granting a measure of self-government to the Island and continuing to sustain it in all other respects for at least another five years and then review the situation.
Each option has its merits and demerits. The first, viz. or Australia to continue to govern the Island, would disappoint some people in the Island, but it would gratify others who seriously doubt whether the Island could effectively conduct even a limited amount of executive self-government. If the Island failed in self-government, existing problems would probably worsen, hence the continuation of the existing form of government from Australia has certain merit. Against that view, however, is the thought that unless the residents of the Island are encouraged to make a start in managing their own affairs, they will never learn to do so and gain experience.
The second option, viz, complete independence being granted the Island, offers considerable attractions to Australia. Australia would instantly rid itself of a prospective annual deficit in respect of the Island of at least $3 million plus the Prospect of having to find capital expenditure of a further $4.5 million or more in the near future, in addition to the overall responsibility for governing the Island. If complete independence were granted Norfolk Island, it would please a section of the island’s population but it would also certainly plunge the Island into a major economic depression. Those who remained in the island to attempt to govern and finance what would be the latest and possibly the smallest independent nation in the world would face a Herculean task. A very heavy responsibility to revive the Island’s economy would fall upon the shoulders of those residents who have persistently clamoured for independence. The Commission doubts the ability of those people to succeed in such a venture and, if they did succeed, the Commission feels it would be at the cost of destroying Norfolk Island as it is at present and has come to be appreciated.
The third course open to Australia is to grant the Island a measure of local self-government and test the residents’ capacity in such an endeavour over a trial period of at least five years before reviewing the situation. Such a course would involve Australia in considerable costs and deepen still further her commitment to the Island but it would at the same time give the Island a chance to acquire knowledge and experience in self-government and it would shore up the economy of the Island for a period which may prove to be a transition to ultimate independence. Any choice, however, which compels Australia to incur the very high costs in retaining responsibility for Norfolk Island, as would be the case in courses one and three above, must be justified. Those costs can never in the foreseeable future be justified on economic grounds. If Australia is to continue to regard Norfolk Island as worth maintaining as a part of Australia, then non economic countervailing benefits must be perceptible to those who will have to make the choice on behalf of Australia. The only countervailing benefits which are apparent to this Commission are as follows:
Recognition of the 1856 humanitarian intention of Britain to provide a homeland for the Pitcairners and their descendants.
The desirability of maintaining historical links including the preservation for posterity of the island’s unique beauty and its relics, buildings and sites.
Collection of weather data of vital importance to Australian and New Zealand commerce and defence.
Provision of an emergency landing ground for Australian and other international aircraft in difficulties on pacific routes, e.g. Sydney to Nadi (Fiji).
Ownership of a foothold in the centre of a large expanse of ocean which one day may yield materials or advantages to the commonwealth as a whole.
An insurance against any other power attempting to exercise dominion over the island.
The Pitcairn descendants, in the main, recognise what Australia has done for Norfolk Island since it became a Territory of Australia in 1914. The older Pitcairn descendants, particularly, are still a somewhat shy and reserved people and, with few exceptions, are not commercially minded. All Pitcairn descendants in the Island view it as both their home and their homeland and as a place in which they have been able to pursue a particular life style. Although admitting that life style has been damaged in recent times, particularly over the last ten to fifteen years, they, nonetheless, wish to be put in a position where they can pick up the threads as best they can and resume that way of living.
In contrast, most of the recent arrivals to the Island have a different approach. They have not only benefited from the absence of revenue imposts but most of them have prospered from the commercial ventures in which they have become involved. The Pitcairn descendants made it clear to the Commission that the influx of the commercially minded, while adding to the amenities of the Island, had made serious inroads into their way of life and had introduced a kind of divisiveness that had never been experienced previously. They feel that they are now the economically less fortunate members of the Island community and fear that if independence were granted the Island they would soon be politically powerless as well. Their fears were clearly expressed by one of their senior members, Mr R.H.H. Nobbs, as follows:
I would not like to see the Island depart from its present position as a Territory of the Commonwealth. My reasons for not wanting independence are:
1. It would virtually be the end of the descendants of the Pitcairn community.
2. The Island would be taken over and exploited by large financial interests.
The evidence in relation to the historic rights of the Pitcairn descendants reveals the difference in approach of the two groups.
Witnesses of Pitcairn descent made reference to their so— called rights for the purpose of preserving the ecological balance of the Island and their life style. Witnesses who were more recent settlers attempted to capitalise on those rights to achieve their aim, viz, independence for the Island with freedom to exploit and dominate it. This was apparent, of course, to some of the Pitcairn descendants themselves, one of whom, Miss Rosemary Quintal, said:
(There is) concern by Pitcairners for perpetuation of their unique way of life — which is not catching in so far as mainlanders are concerned.
After mature consideration of the issue, which is so vital to the future of the Island and having particular regard to the non-economic countervailing points mentioned earlier, the Commission is against granting independence for the time being and is in favour of retention of the status quo. The approach of the majority of the Pitcairn descendants, viz that Norfolk Island remain a part of the Commonwealth commends itself for the following reasons
As has been mentioned earlier the Island is not only the home, but is also the homeland of the Pitcairn descendants and their wish as to its future status and constitutional relationship to Australia should be preferred to that of newcomers to the Island
The Commission considers that the motives of the Pitcairn descendants have more to commend them than have the motives of those who desire independence. The Pitcairn descendants are moved in this matter by their desire to prevent any further inroads being made into the rural character of their Island and their own simple and unsophisticated way of life; whereas the majority of the new settlers are motivated very largely by a desire to develop and use the Island for material gain. The Pitcairn descendants consider, and the Commission agrees, that if independence were granted Norfolk Island, they would be further subjugated and there would be a real danger of the Island being turned into a tax haven and centre of commercial tourism of the Honolulu style. This is a prospect the Pitcairn descendants dread and the Commission rejects.
The size and population of the Island, its lack of resources and its geographical isolation demand the support of a larger and stronger country in the Pacific region.
The Island’s economy, which is dependent almost solely upon the fragile tourist industry, could not be maintained without the goodwill and financial support of Australia except at the cost mentioned in (ii) above. The majority of the Pitcairn descendants desire and need the support and protection of Australia if they and their Island are not to be subordinated to monied interests.
An unattached, independent, isolated and defenseless island would be vulnerable should its region ever become of strategic or economic importance.
It is realised that an element in the Island favours putting the question of independence to a referendum but the Commission does not recommend that course. It considers that the last ten to fifteen years have been so upsetting a period for the Island that it is doubtful whether, in the immediate future, the real issues involved in independence could be appreciated fully and calmly assessed. It would be preferable to consider a referendum, if one is to be considered at all, in say five years, after the Island has had a fair opportunity to test itself out under the revised arrangements recommended in this Report if they are implemented. Furthermore, it is the Commission’s view that the majority in the Island wants neither independence nor a referendum on the subject, hence to hold one now would be pandering to the wishes of a minority.
It was very noticeable that those clamouring for independence attempted to cast Australia in the role of an oppressor trying to advance its own interests by imposing unwanted controls upon the islanders. Such unwarranted and emotional assertions brush aside patent truths such as the fact (now well documented) that the Island was never given to the Pitcairners in the first place, that Australia never sought responsibility for Norfolk Island but was induced by Britain to take it of f her hands, that the Australian Government has never gained financially from the Island, but, on the contrary, has contributed many millions of dollars over the years toward sustaining the Island. The only people who have ever sought to dominate Norfolk are the commercial and tax-avoiding interests. Similarly, charges against Australia of exploitation of the Island are equally untrue. Australian administration of the Island has indeed been at fault in certain respects, but Australia has done nothing to exploit the Island for its own ends. The evidence establishes the contrary. However, exploitation of the Island by commercial interests and the intrusion by such elements into the former life style of the Island is not only a stark but in many respects an ugly fact.
It was suggested in evidence that the Commission recommend Norfolk Island be granted ‘independent government in association’ with Australia along the lines of similar forms of government adopted by New Zealand with respect to certain of her former Pacific Island possessions. After examining these forms of government and discussing their operations with New Zealand officials, the Commission concluded that such ‘government in association’ is not free from problems and is inappropriate in the present context. Further it would be tantamount to granting independence to Norfolk Island but with Australia still being obliged to shoulder the major financial responsibilities of the Island. For the reasons already given the Commission is opposed to independence for the Island at this stage of its history and there is no obligation upon Australia to support financially a territory not its own.
Should, however, the Commission’s view that independence not be granted be rejected by the Commonwealth Government, and the decision be made to follow Britain’s example and abandon an obvious economic liability, then it would be wise for the Government to plan immediately for a smooth phasing out of the control of the Island. In that event every assistance and opportunity should be given those residents of the Island who wish to migrate to the Australian mainland to do so. Those who choose to remain in the Island would then, with complete independence given them, be able to gratify in full measure their expressed desire to be quit of the oppression they allege has characterised Australian rule.
The Commission recommends therefore that the Commonwealth Government decide as soon as practicable and announce its decision on whether it proposes to abandon Norfolk Island completely or to, continue to accept responsibility for maintaining it as a viable community. Chapter 11 and this chapter contain the pros and cons of the case for and against abandonment. If the Government chooses to stay in the Island, it should set out clearly the conditions and policies under which it will continue to treat the Island as part of Australia. As the net overall financial burden is clearly being borne by mainland Australia and no one else, it is proper that the Commonwealth Government should have this choice. If Norfolk Island residents were meeting this cost then they would have a case for exercising the choice themselves via a referendum. It would be nonsensical for a minuscule group of 1600 people, who have never contributed anything to Australia by way of taxes and from whom Australia can be expected to receive minimal or no economic benefit, to claim the right to demand that Australia continue to support them on their own terms. It is Australia’s choice, not theirs, and it is for Australia to set down the terms under which it may be willing to continue to pay for the sustenance of Norfolk Island. Equally it is unthinkable that a part of the Commonwealth should continue to be used for the purpose of depriving the Commonwealth Government of revenue which it normally would have received, thus imposing additional tax burdens on other Australian citizens. It is time that some of the irrational outlooks (at times outrightly offensive to Australia) of some Island residents were placed in correct perspective; if Australia does choose to abandon Norfolk Island, people with such outlooks will have only themselves to blame for the hardship which will inevitably descend upon those who elect to remain in the Island. To illustrate the kinds of irrational beliefs which were expressed in evidence the Commission now refers to a few of them.
First there was the assertion by some residents that the present revenue of the Island was ‘our revenue’ as though it were produced exclusively by the efforts of the people in Norfolk Island. This reveals a regrettable inability to understand some basic economic truths. Excluding philatelic activities the main source of revenue gathered in Norfolk Island flows from the tourist industry. That industry could not have developed without the underpinning support of the Commonwealth Government. If the Commonwealth withdrew its financial and physical assistance from the Island, the Island’s economy would collapse overnight. No one would want to fly regular scheduled services into an unmanned and unmaintained airport or into an airport not maintained by properly trained operators. The Commonwealth owns, staffs and operates Norfolk’s airport, and the Qantas airline which provides the bulk of services to the Island has for years suffered heavy losses in order to maintain those services. It is incorrect to speak of the Island as generating its own revenue. Revenue is certainly raised in the Island but most of it is directly attributable to tourism which the Commonwealth has made possible and to duties and charges which it has imposed and permitted its Administrators to use for the benefit of the Island. One witness, Mr J.B. Huckstep, placed the matter in its correct perspective when he said:
Australia has been like a mother country to this Island and no sufficient reason has been advanced to break away from it.
It was also contended that Norfolk Island ‘pays for what it gets’ from Australia. Again one can perceive a lamentable lack of understanding of the Island’s true economic position. Philatelic activities apart, not only is the tourist industry (heavily underpinned through subsidy of the airport and airline by Australian capital) the only significant earner of currency for Norfolk Island to buy its needs, but even that is insufficient and has to be supplemented by Australian grants and cash flows in the form of pensions, salaries and sustenance of works programs such as the restoration of historic buildings and sites. Were it not or tourist spending, Norfolk Island’s ‘balance of payments’ would be very adverse and unbalanced. Nor does the present situation indicate any sign of improvement in the foreseeable future.
Some witnesses asserted that Australia benefits from sales tax upon goods made in Australia and sold in Norfolk Island, thus implying that Australia was profiting from its connection with the Island. The fact is that Australian goods sold in the Island are exempt from sales tax and their prices in the Island are lower in consequence. Assertions such as these, which could easily have been checked, cause doubt to be thrown on the credibility and motives of those who make them. It deserves repeating that Australia never sought the responsibility of Norfolk Island and has derived no net financial benefits from the Island. The main advantage Australia has received from Norfolk Island has been weather information. On the other side of the coin, however, is he capital expenditure made by Australia and the losses it has incurred on the Island’s development which now amount to many millions of dollars.
While on the subject of sales tax, the Commission feels that in the interests of preserving the low cost levels in the Island the present exemption of Norfolk Island from sales tax should continue.
Having rejected the option of granting independence the Commission points out that the remaining two options are both based on the Island remaining part of the Commonwealth. As already stated a majority in the Island appears to be in favour of some sort of domestic autonomy; the Commission is sympathetic to this view and for this reason feels that some change should be made in the present form of government of the Island. The nature of the changes will be discussed when dealing with the second principal matter
To conclude this section on the first principal matter the Commission’s recommendation is: