We turn now to the second principal matter in the Commission’s Terms of Reference, viz. ‘The most appropriate form of administration for Norfolk Island if its constitutional position were changed’.
The need for recommendations concerning the future administration
It should first be pointed out that although the constitutional position of Norfolk Island in relation to Australia has not in fact changed since it became a Territory of Australia in 1914 and that for at least five years the status of Norfolk Island and its constitutional relationship to Australia remain that of a Territory of the Commonwealth of Australia that no immediate change is being recommended in this Report, it is correct to say, following the decision in the Berwick Case, that in the minds of many people the constitutional position of the Island has changed. All people with views on the status of Norfolk Island must now adapt their approach to related matters to accord with the decision of the High Court. It is appropriate, therefore, that at the time of this final resolution of the legal question the future administration of the Island be considered and recommendations be made, for to do so is of vital importance to the Island and its people.
The present attitudes in the Island and their relationship to the Commission’s approach
In addressing itself to this question of the most desirable form for the future administration of the Island the Commission faced yet again an area of very conflicting interests and wishes. Although it set out to find the wishes of the people and to arrive at a consensus, this proved just as impossible as in other areas it was directed to examine. The wishes of the people, viewed as a whole, ranged from maintenance of the status quo through varying degrees of association with Australia to complete independence. There were two main groups of witnesses; the first of these consisted principally of Pitcairn descendants and their spouses and settlers who had been in the Island for many years, while the second group embraced chiefly the commercial interests along with a small number of Pitcairn descendants, some of whom had been moved to join those interests by fears of taxation and disadvantageous controls over land. Between these two main groups and other smaller groupings a very wide spectrum of views was presented in evidence; a few Pitcairn descendants even resented the holding of positions by some of their own people in the Island Administration on the ground that those people thought they were ‘a bit superior to their brothers and sisters’.
In this predicament of being unable to isolate a reasonable consensus of Island opinion, let alone a clear and unanimous expression of the Island’s wishes, the Commission chose to adopt an objective approach to the subject. This necessarily involved appraising both needs and capabilities in the Island itself and taking into consideration the paramount fact that the Island is a part of the Commonwealth of Australia. what is applicable to the rest of Australia should be, at least, primafacie, applicable also to Norfolk Island. Therefore, if in devising any form of administration for the Island a departure from commonly accepted forms of administration in comparable situations elsewhere in Australia is to be made, then reasonable justification for that departure should exist.
The main items requiring attention
With that approach as a basis, it is possible to delineate a number of items in respect of which, although no consensus exists, quite clearly a great deal of discussion and thought has occurred in the Island itself. These items may be listed as follows:
The degree of self-government if any form of it should be granted ‘to the Island.
The term of office of any local governing body, the number of its members and their voting powers.
The executive powers to be allotted such body and those to be retained by the Commonwealth.
Whether the Administrator should sit on that local body and whether he should exercise a power of veto over its decisions.
The sources of finance to enable the local body to perform its executive functions.
a. Voting for the local body
b. Candidature for membership of it.
Whether the Island should be split into wards or be simply one area for local government electoral purposes.
The period in respect of which local executive government should be given a fair trial before its success is reviewed and any change contemplated.
Whether any proportion of seats on the local governing body should be reserved for Pitcairn descendants.
The allocation of staff to carry out local government functions and Commonwealth functions respectively.
Parliamentary representation and the people’s rights of redress against the local body’s decisions.
The need for consultation with the local body in respect of representation at meetings of the South Pacific Commission and similar bodies.
The pressing need to expedite legislation relating to new ordinances and amendments to existing ones.
Two aspects providing necessary background
Before examining these key items, it is desirable to introduce for consideration some prefatory material which is of close relevance to decisions which must be made in respect of them.
Past administration by Australia
The first prefatory point concerns past administration of the Island by Australia. Two basic and damaging defects in this administration became obvious during the hearing, viz.
The lamentable lack of efficient communication between Canberra and the Island’s representatives. There have been many occasions when the Island was either not consulted or inadequately consulted regarding legislation and other matters affecting the Island, e.g. presentation of the Island’s views at meetings of the South Pacific Commission.
The complete absence of any written, agreed, long-term policies for the Island, to which successive Governments and Administrations alike could have adhered and progressed over the years. Norfolk Island has been allowed to stumble along since 1914 without any clear idea of government intentions in vital areas. Year by year ad hoc decisions have resulted in forces other than government gradually usurping the influence and lead which Australia itself ‘should have provided. One example will suffice, to wit the absence of a far-sighted immigration policy for the Island which has resulted in the descendants of the original inhabitants becoming a minority in their own land. Of 859 people shown on the most recent electoral roll, only 323 are of Pitcairn descent and only 130 are married to those descendants. The original concept of preserving Norfolk Island for the Pitcairners and their descendants has been allowed to lapse. This, and Australia’s failure for so long to terminate the use of the Island as a tax haven, caused the Island to lose much of its character of a homeland for a displaced people and to become instead a highly organised tax haven and a centre for commercial enterprises.
The present form of administration in the Island
The second prefatory point requiring brief mention is an outline of the present form of administration of the Island so that the reader may be able to understand fully the changes which will be recommended in relation to it.
In any discussion of the administration of the Island by Australia and those who are being administered it needs to be said first that the people of the Island have no representation in either House of the Parliament of the Commonwealth.
On the authority of an Administrative Arrangements Order dated 22 December 1975, Ministerial responsibility for Norfolk Island is exercised by the Minister for Administrative Services. The Department of Administrative Services administers the Territory under the Norfolk Island Act 1957-1973 and an Administrator resident in the Island is responsible for the day to day administration on behalf of the Commonwealth Government. Prior to the above Administrative Arrangements Order, the Island had been administered from 20 December 1972 by the Department of the Capital Territory which had taken over the task from the Department for External Territories on the abolition of that Department.
The Minister has responsibility for the peace, order and good government of Norfolk Island. The Arrangements Order places responsibility on the Departments of Health and Education for services provided by those Departments. At least in theory, other Australian Government Departments can pursue independent approaches to the Administrator.
Under the Act, the Administrator is required to exercise all powers and perform all functions that belong to his office in accordance with the tenor of his commission and in accordance with such instructions as are given him by the Minister.
Beneath the Administrator there is a Norfolk Island Administration, officers of which, other than certain seconded staff, are members of the Norfolk Island Public Service. The Official Secretary of that Service has been, as a matter of practice, the Deputy Administrator. The work of the Administration is financed by revenue raised in the Island and by Commonwealth grants.
The Norfolk Island Council Ordinance provides for a Norfolk Island Council but gives it no executive power it acts only in an advisory capacity. It advises the Administrator on all matters affecting policy for the Island and all administrative arrangements and actions, and may analyse and criticise. If the Administrator does not accept Council’s advice, he is bound to place the Council’s view before the Minister, along with his own reasons for rejecting the Council’s advice. The Council meets at least once a month and consists of eight elected members and the Administrator who is made its Chairman by the Ordinance. The Council elects one of its Councillors to be President of Committees. Voting for the Council is by secret ballot and compulsory.
In the Department of Administrative Services, a section known as the ‘Smaller Territories Branch’ provide liaison between the Island and the Minister, formulates proposals, co-ordinates the implementation of policy decisions, reviews legislative proposals and prepares instructions to the Legislative Drafting Division of the Attorney-General’s Department.
Over and above its annual grant towards the cost of the administration of the Island, the Commonwealth Government provides money for restoration of historic buildings and the operations of the airport and the meteorological station. Statements for Revenue and Expenditure for the year ended 30 June 1975 have been set out in Chapter 11 of this Report which deals with the economy of the Island.
It will be recalled from Chapter 5 of this Report that the Island people were offered in 1960 a large area of executive powers over what can be described as local government operations. Most municipal governments in Australia possess similar powers. The Norfolk Island Council declined to accept the offer because the relevant ordinance gave to the Administrator a power of veto and because the Council had been told that it would have to raise its own finance from new sources of revenue.
In summary, there is at present a situation where the residents have no vote in the Commonwealth Parliament and have only advisory cum consultative rights in respect of their own local government; revenue raised in the Island provides a significant sum toward the current expenditure by the Administration in the Island but it does not cover the total cost.
Discussion of items meriting recommendations
The main items agitating the residents in relation to local Government have now been identified and attention has been drawn to areas essential for a thorough understanding of the matters under consideration. It is, therefore, now appropriate to consider those items which seem to merit recommendations.
It is wholly anomalous that any Australian citizen should not possess a vote in respect of his national parliament and this should be rectified as soon as practicable. It has been recommended in Chapter 12 of this Report that Norfolk Island be made part of the Federal electorate of Canberra and thus be entitled to vote in elections for both the Senate and the House of Representatives. Persons in Norfolk Island eligible to vote for the Commonwealth Parliament would then have the same representation as similar voters in the electorate of Canberra.
The form of local government desirable
Since Norfolk Island is a part of the commonwealth, it should be treated, with respect to executive powers, at least in a manner similar to that of other comparable areas of Australia. Bearing in mind its history, its distance from the mainland and above all the desire of its people to have domestic autonomy, it appears to the Commission that the most appropriate form of local government for it is one which will enable a body of its own choice to exercise most of the executive powers of the kind which are at present being exercised by the Administrator.
It should be stressed in considering this subject that one is contemplating the grant of executive power to a group which has never exercised authority and borne the responsibility of any form of self-government, a somewhat complex task which even experienced groups find difficult and beset with problems. Members of the Norfolk Island Council have not been trained to meet the demands of progressive self-government, having in the past acted only in an advisory capacity. It is wise in these circumstances that the people assuming power for the first time learn to walk before they attempt to run, and that the pace of change match the Island’s ability to handle it. If, after a suitable period of successful performance in the exercise of the powers conferred upon it, the situation in the Island appears to warrant an extension of those powers, there is no reason why an extension of those powers should not be considered.
The two earlier objections to the assumption of executive powers by the Island, and the name of the local body
The Commission is conscious of the Norfolk Island Council’s two main objections to the 1960 proposals, viz, the power of veto in the Administrator and the fear of having to raise its own finance from new sources of revenue. The Commission considers that the former can be removed and the latter overcome with beneficial results to the Island. It further considers that, in keeping with the now established Territorial status of Norfolk Island, the local government body should be an incorporated entity to be known as the Norfolk Island Territory Assembly. Its Chief Executive Officer should be its Secretary, who should be appointed by the Assembly from outside its members.
Voting for the local Assembly
Until a recent amendment (No. 6 of 1976) to the Norfolk Island Council Ordinance 1960-1972, itinerant workers in the Island and other persons who had been ordinarily resident in the Island for the previous twelve months could exercise a vote in elections for the Island’s Council. The Commission agrees with the policy behind the amendment which restricts eligibility to vote largely to bonafide long-term residents or those intending to be such; e.g. holders of certificates of residency or enter and remain permits. Itinerants are excluded.
The possibility of electoral wards in the Island
The size of the Island and the uneven distribution of potential candidates make a division of the Island into wards for electoral purposes undesirable. Its population locations are easy of access and good communication facilities are available.
Number of members for the Assembly and voting rights
The number of members should be nine and naturally, in an exercise of self-government such as this, no representative of the Australian Government should be a member of the Assembly let alone chair its meetings. Each member should exercise a deliberative vote with an additional casting vote being available to the President of the Assembly, or the person acting in his stead. The quorum should be five in number.
Term of office of Assembly members and their remuneration
To provide reasonable continuity in office and thus give time for Assembly members to carry out programs which may extend over many months, the Commission feels that the term of office of a member of the Assembly should be for a period of three years. Members of the Assembly should be adequately remunerated for their work.
The concept of the reservation of seats for special groups
Many witnesses suggested in evidence that a proportion of seats on the local body should be reserved for Pitcairn descendants. Other witnesses, including Pitcairn descendants, rejected the notion. The Commission, not only because of the Racial Discrimination Act 1975, but also because of the undesirability of worsening factionalism in the Island, also rejects it. At the risk of being repetitious, the Commission states again that the people of Norfolk Island should seek to develop an identity as ‘Norfolkians’ and work together for the good of the Island. Cliques of any kind within the Assembly could prove disastrous. If the recommendations contained in this Report are adopted, it is believed that the fears which gave rise to the notion will disappear.
The powers which are not allotted to the Assembly
If the recommended allotment of executive powers is granted to the Assembly, there will, of course, remain with the Commonwealth a residue of powers unallotted. The Commission recommends that the Assembly have, in respect of those residuary powers, an advisory role of the kind the Norfolk Island Council now exercises.
Representation of the island at gatherings of special importance to it
Should become the right of the Assembly to consider submissions to meetings of the South Pacific Commission and similar bodies and to have its point of view included in any representations made to such bodies by Australia.
The delays experienced in introducing our new amending legislation
Delays of two years and upwards have occurred before a recommendation by the Norfolk Island Council for a new ordinance or an amendment to an existing one has been implemented. Such delays have occurred even when the recommendations had the endorsement of the Administrator and the approval of the Minister. There appear to be two main reasons for the delay. First, there is a long-standing shortage of trained legislative draftsmen to cope with the enormous volume of work the Legislative Drafting Division of the Attorney-General’s Department is called upon to perform. Second, there are procedures which must be followed by the administering department. They include examination of the proposal for new legislation, consultation with other interested departments, preparation of a submission for the legislative draftsman, consultation with the draftsman, examination of the draft ordinance, if necessary, further consultations with the draftsman, examination of the ordinance in its final form, submission of same to the Norfolk Island Council pursuant to s.8 of the Norfolk Island Act and presentation of the ordinance to the Executive Council.
The problem will be alleviated to a considerable extent if recommendations in this Report are adopted, as most local matters will fall under the control of the Assembly and hence be administered through by-laws prepared and issued by the Assembly which will not require to pass through Canberra processes.
To assist however with respect to those matters which the Commonwealth will still control, the Commission feels it would be an improvement if one particular person in the office of the Legislative Drafting Division were appointed and instructed to make Norfolk Island legislation his number one priority.
Desirability of maintaining the advisory role of local government
In advocating the allocation to a Territory Assembly of a bloc of executive powers the Commission, as already stated, does not envisage the complete cessation of an advisory role of the kind now exercised by the Norfolk Island Council; on the contrary, the Commission considers that it is of the highest importance that the Assembly continue to bend its collective mind to the entire administration of the Island, particularly with the view to possible expansion of its own executive powers in the years ahead and to providing a constant liaison between the Administrator representing the Commonwealth Government and the Assembly. It is essential that the two governing bodies achieve, as far as possible, an informed and harmonious rapport with each other, realising their mutual interdependence, in so far as total government of the Island is concerned. In this type of administrative arrangement it is vital that the Assembly render intelligent, balanced advice to the Administrator whenever it sees fit. Conversely, the functions of the Administrator must include keeping the Assembly informed and being at all times willing to consider, on their merits, views expressed by it. Both parties need to display understanding and tolerance in carrying out their complementary roles.
The Administrator’s present dual role
One of the more prominent dissatisfactions upon the Island is caused by the present dual functions of the Administrator; he is the Minister’s representative and at the same time Chairman of the Advisory Council. This dichotomy puts the Administrator in an unenviable position and is a potential source of difficulty and conflict. It should be eliminated; the Administrator should not be a Member of the Assembly which should elect its own President/Chairman.
The power of veto by the Administrator
The Commission has given considerable thought to the concept of a veto being exercised by the Administrator over the Assembly’s decisions. Such a power was part of the rejected 1960 proposals. Variants of it (along with associated appeal systems from the veto) were put forward in evidence. It appears to the Commission that if the Island is to be encouraged along the path of self-government the first steps in this direction should be calculated to develop both a sense of complete responsibility and a sense of certainty in decision taking by the Assembly. Neither of these can mature when the decisions of the Assembly can be thwarted by the veto of an Administrator. Admittedly, if decisions by the Assembly prove unwise then some means of redress must exist. It is felt that sufficient and adequate powers of redress will exist through the power of the people to express disapproval at the next election if they consider a decision of the Assembly is a bad one, or through the overall power of the Commonwealth Government to deal with such a decision if, in its view, it is against the interests of the Island or the Commonwealth. The Commission, however, does not believe that there will be many decisions requiring censure of the Assembly. It considers that it is of the utmost importance that the Assembly develop confidence and self-respect in its formative years and that fettering it with a veto, exercisable by an Administrator, would certainly not assist it to acquire these qualities.
Finance for the Assembly to exercise its powers
We turn now to the aspect of finance for the Assembly to deploy its executive powers and conduct its business. The question of finance, it will be recalled, was the other of the obstacles to acceptance of the 1960 proposals, for the then Advisory Council felt that it would be constrained to finance its new responsibilities by drawing on fresh sources of revenue of which there were few.
The main method
It is an accepted maxim in public finance that responsibility for raising revenue should accompany the right to expend it. The latter, if unaccompanied by the former, tends to irresponsibility, if not outright profligacy. In the case of most local governments most of the necessary finance is raised by levying rates on properties within the municipality. The Commission does not think such a course would be appropriate for Norfolk Island. The quantity of private property in the Island and its income-producing value are inadequate for the purpose of raising by rates sufficient finance for the Assembly to perform its functions. Put simply, there is not sufficient privately owned land in the Island to yield from a reasonable level of rates anything approaching the volume of revenue required to meet the cost of local government.
Nor in the peculiar case of Norfolk Island is there a real need to invoke such a system. The principal source by far of the Island’s wealth is tourism, not property nor activities based on property. For years now the tourist-based economy of the Island has been able to sustain a flow of revenue sufficient to defray most of the current expenses incurred in conducting the affairs of the Island. If the recommendations of this Commission are adopted and the Island is brought into line with mainland Territories in such fields as social security, education, health (including responsibility for the hospital and the care of geriatrics) and law enforcement, very significant financial loads will become the responsibility of the Commonwealth. In passing, it is emphasised that while the provision of finance for education in the Island should be a Commonwealth matter, the actual control of education should remain the responsibility of the New South Wales Education Department and the Island.
The Commission envisages the transfer to the Assembly of most of the present sources of revenue in the Island. It is admittedly a unique method of providing revenue for a local government body, but the Island’s unique and individualistic character warrants it. There is no sense in disturbing a revenue-raising system that is efficient and effective and a colourful feature of the history of one of Australia’s territories by dividing the sources of revenue between the Assembly and the Commonwealth.
Major revenue earners such as customs duties, liquor sales and stamp sales should continue to be the mainstay of the Island’s revenue, but, in future, they should be managed and, controlled by the Assembly. In this way the Assembly will be guaranteed certainty of funds in respect of which it can budget and if, in the Assembly’s wisdom, customs duties or stamp and liquor sales prices should be varied, this again should be its responsibility. The Commission has adopted this approach not only because of the sound principle that the body which spends money should have the responsibility of raising it, but also because it is what the majority of the people in the Island desire, and because it is essential for the Assembly to gain experience in the control of finance.
By adopting this form of financing the Assembly and by abolishing the veto of the Administrator over the Assembly’s rulings, the two objections to the 1960 proposals will be removed and the way cleared to permit the residents to enter upon self-government in local matters.
In addition to the above sources of revenue the Assembly, while it should not be given the power to borrow money, should be given the right to make application to the Commonwealth Grants Commission for financial assistance. Merely making such an application, of course, does not assure the applicant of success, but requests from the Norfolk Island Territory Assembly would, it is assumed, be treated on their merits in the manner as similar applications from other Commonwealth Territories.
Naturally, the Commonwealth Government should arrange to pay for the expenses of its own Administrator and any Commonwealth staff should also sight the annual estimates and the auditing of the Assembly’s accounts.
Matters relating to existing assets of the Commonwealth in the Island
Consequent upon any division of powers between the Assembly and the Commonwealth there will be necessary a division of certain assets in the Island, notably land, buildings, plant and equipment, all of which at this moment belong to the Commonwealth.
The Commission considers that with one exception all plant and equipment in the Island at present owned by the Commonwealth should be given to the Assembly once that body becomes a legal entity capable of accepting title to goods and property. Responsibility for insurance and maintenance will likewise pass across with title.
The exception is that plant and equipment which is necessary for the operation/maintenance in the Island of activities which are to remain under the control of the Commonwealth such as the airport, the meteorological station and Government House.
In so far as buildings and their contents generally are concerned, these should be divided between the Assembly and the Commonwealth by agreement to be reached between the Secretary of the Department of Administrative Services in consultation with the Secretary of the Assembly. Those buildings taken over by the Assembly and the land on which they are placed should be the subject of ninety-nine-year Crown Leases at, a purely nominal rental.
Once so leased the lessee (i.e. the Assembly) should be responsible for all insurance and maintenance of such assets and should also be entitled to receive all revenue from such assets.
All powers over all land in the Island should be retained by the Commonwealth. However, the Assembly in its advisory capacity would have the opportunity to make recommendations in relation to the exercise of those powers.
Having discussed its approach to matters relating to the question of what would be the most appropriate form of administration for Norfolk Island for the future, the Commission makes the following recommendations on this subject:
That residents of Norfolk Island be included in the electorate of Canberra in the Australian Capital Territory for the purpose of giving them representation in the Commonwealth Parliament.
That the present Norfolk Island Council be abolished and replaced by an incorporated body to be known as the Norfolk Island Territory Assembly.
That the Assembly consist of nine elected members holding office for three years.
That a President and Deputy President be elected by the Assembly from among its members.
That each Assembly member exercise a deliberative vote and that the President or Deputy President exercise a casting vote when necessary.
That a quorum for a meeting of the Assembly be five members.
That the Assembly’s Chief Executive Officer be its Secretary and head of the Assembly’s staff and be appointed by the Assembly from outside its members.
That members of the Assembly be paid such remuneration for their services as the Assembly determines.
That there be no wards for electoral purposes in the Island and that no seats be reserved on the Assembly for any particular group of the Island residents based on blood ties or country oforigin or otherwise.
That voting be compulsory and by secret ballot.
That legislative and executive powers be the Assembly in respect of the following
immigration, with a right of appeal to the minister by any person aggrieved;
registrations (births, deaths, marriages, companies, motor vehicles, dogs, etc.) which are at present handled by the administration;
the undertaking of business activities and contracts with respect to any of the matters specified above.
That for the purpose of raising moneys for its budget the Assembly take over those operations at present yielding revenue to the Administration other than those relating to hospital and medical services.
That the Assembly not be given the power to borrow money but be given the right to apply to the Commonwealth Grants Commission for financial assistance.
That the Administrator possess no power of veto over the Assembly’s legislative and executive responsibilities nor hold any membership or office of the Assembly.
That the Commonwealth continue to exercise all governmental powers not shown above as being specifically conferred upon the Assembly and, in particular, retain all powers over all land in the Island.
That the exercise of the legislative and executive powers of the Assembly be allied with power in the Assembly to advise the Administrator on any matter relating to Norfolk Island over which the Commonwealth Government has power.
That at all times the Assembly and the Administration maintain close liaison and keep each other thoroughly informed of each other’s work.
That the performance of the Assembly be reviewed by the Commonwealth after five years and consideration be then given to the question of increasing the powers of the Assembly.
That the Commonwealth Government in the light of this Report lay down a clear set of policies to be followed in the administration of Norfolk Island particularly in respect of the following;
land development and ownership
transport to and from the mainland
government buildings and historical sites
That the Commonwealth at its own expense provide and maintain an Administrator and his staff in the Island to represent the Government and conduct the business of the Commonwealth in the Island.
That the division of the present Administration’s existing staff between the Assembly and the Commonwealth be determined by the Secretary of the Department of Administrative Services in consultation with the Secretary of the Assembly.
That Commonwealth assets in the Island be divided as outlined it this Report.
That the Commonwealth consult the Assembly on all matters which hold particular relevance to Norfolk Island and where practicable give the Island opportunity of sending representatives to meetings of international bodies whose deliberations may specifically affect the Island.
That when the supply of legal draftsmen permits, a particular draftsman in the Legislative Drafting Division of the Attorney-General’s Department be appointed and instructed to give priority to the drafting of ordinances relating to the Island.
That the Commonwealth sight the annual estimates of the Assembly and that external auditing of the Assembly’s annual accounts be carried out by the Commonwealth Auditor-General who should deliver copies of his report to the Secretary of the Department of Administrative Services, the President of the Assembly, and the Administrator.
That Australian manufactures destined for sale in Norfolk Island continue to be exempt from sales tax.