Royal commission into matters relating to norfolk island


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



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


In 1856, Norfolk Island was (by an Imperial Order in Council of 24 June 1856, made pursuant to s. 5 of the Australian Waste Lands Act 1855, an Imperial Statute) separated from the Colony of Van Diemen’s Land and created a distinct and separate settlement from the date of the proclamation in New South Wales (31 October 1856) of the Order in Council. It was placed under the jurisdiction of a Governor. The Queen appointed the person of the then Governor of New South Wales as Governor of Norfolk Island.

In a dispatch dated 27 February 18569 to the Right Hon. Sir George Grey, Bart, Governor Denison expressed clearly his view on the undesirability of linking Norfolk Island with any adjoining colony. He wrote:

12. In a former Dispatch from Van Diemen’s Land, in December 1854, I suggested that the Island should be retransferred to New South Wales. I wish now to modify this recommendation, and to suggest that Norfolk Island should not form part of any of the adjacent Colonies, but should be kept altogether distinct from and independent of them. The effect of making it a part of any of these Colonies would be to confer upon the legislatures the right of dealing with the people and the land according to their will and pleasure; and thus an opportunity would be afforded for interfering with the experiment which is now about to be made. Such interference could not be useful, and would, probably, be injurious. I would, therefore, press most earnestly upon your notice the propriety of withdrawing the Island from the jurisdiction of the adjoining Colonies.

In view of the misunderstanding which clearly developed amongst the Pitcairners in Norfolk concerning their alleged ‘ownership’ of the entire Island it should be pointed out early in this Report that no evidence was produced to support this claim, and much was discovered to rebut it completely. The aspect which it is desired to stress here is that even prior to leaving Pitcairn’s for Norfolk, the Pitcairners were expressly informed by the then British Consul of the Society Islands, one B Toup Nicolas in a letter dated 5 July 1854 that:

I am at the same time to acquaint you that you will be pleased to understand that Norfolk Island cannot be ‘ceded’ to the Pitcairn Islanders, but that grants will be made for allotments of land to the different families; and I am desired further to make known to you that it is not at present intended to allow any other class of settlers to reside or occupy land on the Island

In 1856, Governor Denison received instructions from the British Government as to the manner in which his governorship of Norfolk Island was to be conducted and land grants made. They were as follows;

Whereas by an Order made by us in Council bearing even date with these Presents, we did order that, from and after the date of the proclamation of that Order as therein directed, the said Island called Norfolk Island should be and the same was thereby separated from the said Colony of Van Diemen’s Land, now called Tasmania, and erected into a distinct and separate 4 Colony, the affairs of which shall, until further Order is made in that behalf by Us, be administered by a Governor to be for that purpose appointed by Us with the advice and consent of our Privy Council: And whereas by the said Order in Council is further provided that from the date afore said, the said Governor of the said Colony of Norfolk Island shall have full power and authority, to make laws for the order, peace, and good government of the said Island, subject nevertheless to such Rules and Regulations as we at any time by instruction or instructions, with the advice of our Privy Council, under our Sign Manual and Signet, may think fit to prescribe in that behalf:

Now we do hereby declare the following to be the Rules and Regulations so mentioned and referred to in the said Order in Council. In framing such laws as aforesaid you are to observe, as nearly as the circumstances will admit, the rules laid down by our Instructions under our Sign Manual and Signet addressed to you from time to time as Governor of New South Wales; And whereas the inhabitants of the said Island are chiefly emigrants from Pitcairn’s Island in the Pacific Ocean, who have been established in Norfolk Island under our authority, and who have been accus­tomed in the territory from which they have removed to govern themselves by laws and usages adapted to their own state of society, you are, as far as practicable, and as far as may be consistent with the regulation next preceding, to preserve such laws and usages, and to adapt the authority vested in you by the said recited Order in Council to their preservation and maintenance.

And whereas you are further authorised by the said Order in Council to make grants of Waste Lands in the said Island in our name and in our behalf, subject nevertheless to such Rules and Regulations as aforesaid: Now we do hereby further enjoin you to exercise the authority so vested in you, as far as you may find it practicable, in conformity with such laws and usages as aforesaid which you may find established among the inhabitants in question, in relation to the possession, use, and enjoyment of land.

And we do further direct that in all matters within your competency in relation to the government of Norfolk Island, and not specially provided for in these our present Instructions, you do govern yourself by our Instructions addressed to you as Governor of New South Wales, as far as the same may be applicable to the subject.

Following occupation of the Island by the Pitcairn community, the belief persisted that the Crown had granted the entire Island to the Pitcairners. It is still a key point in the current assertion by some Islanders that they should be allowed to govern themselves. The true facts, however, are amply evidenced, not only by the above-quoted instructions and the Nicolas and Fremantle letters, but conclusively by the terms of the 1856 Order in Council, viz:

And is hereby further ordered and declared that from the date aforesaid the said Governor for the time being of the said Island called Norfolk Island, shall have full F power and authority in Her Majesty’s name and in Her behalf but subject nevertheless to the Rules and Regulations which may be prescribed by any such instructions as aforesaid to make grants of waste lands to Her Majesty belonging within the said Island to private persons on their own behalfor to any persons, bodies politic or corporate in trust for the public use of Her subjects there resident or any of them.

It is thus quite clear that the Island was not given to F anyone and that the allocation of land in the Island was reserved to the Governor of New South Wales Sir William Denison who was also the Governor of Norfolk Island.

The orders issued to Lieutenant Gregorie by Governor Denison were ‘to divide among the different families the land on Norfolk Island which having been already cleared will probably be easier brought into cultivation than the bush land’ 10.

Reserves of cleared land were to be made for church and school purposes also for public purposes at the landing places F and 500 acres of the uncleared land was also to be reserved The remainder was to be divided amongst the different heads of families according to agreement with the magistrate ‘the object being to check as much as possible any attempt on the part of the inhabitants of the adjoining colonies to settle on Norfolk Island’

This part of Governor Denison’s instructions was not acted upon the heads of the families declaring that they did not desire it and would prefer to cultivate the land in common In 1857 Governor Denison visited the Island for the first time and was so disgusted with the deterioration of the convict buildings which the Pitcairners had been permitted to occupy and also the farms which they had taken over in the main. He put an end to the communal occupation of the Island by insisting on individual ownership of blocks of land. He believed such proprietorship of the land would produce better results. He ordered that the heads of families should each select an allot­ment not exceeding in any case fifty acres. The grants were not unconditional. The grantee was not allowed to sell to persons unconnected with the Island. If he wished to leave the Island he could sell to one of the inhabitants; failing that, the community could purchase it at valuation. Thus ‘strangers’ were barred.11

In a letter dated 30 October 1857, to the Right Hon. Henry Labouchere, M.P., the Governor stated my principal object is to get rid of that species of community of property which now exists’. A copy of his full instructions and advice to the Chief Magistrate of Norfolk Island on these matters is contained in Appendix (V). The first allocations of land were made on 14 September 1859.

During his visit to Norfolk, at a meeting at Government House, Governor Denison also obtained the Islanders’ approval of a set of thirty—nine simple rules for their governance, based on those found acceptable at Pitcairn’s and which he, as supreme legislator, had compiled in conjunction with the Islanders’ pastor, Rev. G.H. Nobbs, and the Chief Magistrate, Frederick Young. Subsequently, in August 1858, in an interesting reflection of the moral and religious attitude to life, which they had developed in Pitcairn, two further laws were requested by the Islanders and approved by the Governor. They were as follows:

No. 40 All persons accused of fornication will, upon conviction thereof, be sentenced to pay a fine of £10.

No. 41 All persons convicted of racing or furious driving through the streets or upon any of the public roads of the settlement will be fined £l.12

The contrast in penalties vividly illustrates the relative importance placed upon such misdemeanors by the Pitcairners, and their priorities in turpitude

Under these laws, which remained practically unchanged for some forty years, the Islanders enjoyed a form of self—government, until 1896. They had the right to alter or amend laws subject to the approval of the Governor for this forty-year period they were in effect an almost self—governing, self—sufficient community The public business of the Island was conducted by ‘the House’, a meeting of all adult members of the community where decision was by majority rule. There was little direct intervention in Island affairs by the Governor The charge on the New South Wales Treasury for expenditure on Island affairs was remarkably low It was confined to occasional visits by the Governor and appointments of Commissions of Inquiry.

There was no taxation, nor were local rates levied. Public works were carried out by adult males who were required to give three and a half days a month for half a year (This system has now been replaced by a payment being made in lieu of the work.) The Island remained a separate and distinct settlement, the Governor of which was the Governor for the time being of New South Wales The only disruptive event began in 1903 It related to the buildings in the Kingston area which had remained Government property They had been occupied by the Pitcairners who allowed them to fall into a state of disrepair Some of the Pitcairners refused to accept occupation licences which would have required them to repair and maintain their rent—free buildings and they were evicted in 1908 There is still a residue of resentment in the Island against the evictions which were carried out by military personnel.

By 1895 the existing arrangements in the Island were considered unsatisfactory and at the urging of the then Governor of New South Wales, Viscount Hampden, the New South Wales Government agreed in principle to the United Kingdom request for New South Wales to take over the control of Norfolk Island. New Zealand raised objections to this change of control on the grounds, first, that New Zealand would be linked to Norfolk Island by cable and objected to the cable junction being in a territory controlled by another colony; second, that the Norfolk Islanders themselves, whilst protesting at any change, would prefer to come under the control of New Zealand; third, New Zealand had ecclesiastical ties with Norfolk Island (being in the same diocese of Melanesia); fourth, New Zealand had greater experience in dealing with Island administration in the Pacific; and finally, New Zealand was closer to Norfolk Island than was New South Wales. The New Zealand claims received no support in London.

In transferring Norfolk Island to New South Wales the prevailing view of Viscount Hampden was that this should be done without total incorporation of the Island in New South Wales. He thought, and so did the New South Wales Government Ministers, that some New South Wales legislation would not be appropriate to the Island. The concept was to annex Norfolk Island to New South Wales, but at the same time declare the Island to be exempt from laws of New South Wales, and give to the Governor power of legislation until the Legislature of New South Wales provided otherwise. A telegram from Viscount Hampden in these terms was received in London on 14 October 1896. It reads as follows:

With reference to your telegrams of 20 September, Ministers propose that administration only should be transferred, legislative powers remaining as before. Order in Council will probably be sufficient. Complete annexation to N.S.W. or future Federal body be postponed until Colonial Government think it desirable. Meanwhile, Government of N.S.W. will bear expenses of administration.

Also in a letter dated 9 March 1896 to Viscount Hampden enclosing his report on the Island, the Honourable J.H. Carruthers (New South Wales Secretary for Lands) made reference to the possibility of transfer to the proposed Federal body in Australia as under:

I think also that the N.S.W. Government should be prepared, F on the consummation of Federation, to hand over its jurisdiction over Norfolk Island and Lord Howe Island to the Federal Government. A verbal understanding on this I point would no doubt be easily obtainable.

It is particularly worth noting that this first move for control of Norfolk Island to be shifted came from the British Government and not from the Island itselfor from the Colony of New South Wales There was of course no Commonwealth Government then in existence.

On 14 November 1896 all laws in force were repealed and a fresh set of twenty—three new laws and regulations for the administration of Norfolk Island was proclaimed as a preliminary F to the assumption of control by New South Wales The office of F Chief Magistrate (hitherto elective) became a Government office and was not again filled by an Islander A Council of Elders of twelve members elected annually was constituted with the responsibility for the maintenance of roads and public reserves The Council could with the approval of the Chief Magistrate make by—laws

The Islanders vigorously opposed the change of administration and in 1896 sent a delegation to Sydney to present a protest pointing out that ‘the House’ had resolved in 1888 that Norfolk Island should remain a Crown Colony. A Memorial on similar lines was presented to the Queen but without effect.

An Order in Council of 15 January 1897, made pursuant to the Australian Waste Lands Act of 1855 revoked the Order in Council of June 1856, and all powers of government were transferred from the Governor of Norfolk Island to the Governor of the Colony of New South Wales, whose powers were subject to instructions by Her Majesty. The Order also provided for the annexation of Norfolk Island to any Federal body to which New South Wales might later belong. The main practical effect of the Order was to enable the Governor of New South Wales to legislate in his capacity as Governor of New South Wales, and not in his capacity as Governor of Norfolk Island.

By an Order in Council dated 18 October 1900, made under the Australian Waste Lands Act of 1855, the Governor of the State of New South Wales and its dependencies was to administer the affairs of Norfolk Island in lieu of the Governor of the former Colony of New South Wales administering those affairs, and the Order in Council of 15 January 1897 was revoked. The Governor could ‘make laws for the peace, order and good government of Norfolk Island, subject nevertheless to any instructions that may be given to him by Her Majesty under Her Sign Manual and Signet or through one of Her Principal Secretaries of State’. It is also important to note that the Order in Council expressly provided for the Governor to make grants or other dispositions of any lands within the Island which might be lawfully granted or disposed of by Her Majesty.

Meanwhile in the United Kingdom the Commonwealth of Australia Constitution Act 1900 (Imp.) was passed and took effect on 1 January 1901 to bring the Commonwealth of Australia into being.

In 1903, the Council of Elders in the Island was replaced by an Executive Council consisting of two elected and four members appointed by the Governor, who also appointed the President.

In 1903, also, the then Governor of New South Wales and of Norfolk Island, Sir Harry Rawson, visited the Island to discuss a number of matters with the Islanders. A petition with eighty— three signatures had been presented protesting against the possible annexation by the Commonwealth He pointed out that the Federal Parliament had the power to make laws for different communities but the constitution of New South Wales had no such provision.

A dependency of New South Wales would be subject to the laws of New South Wales

In 1913 the Norfolk Island Act 1913 (No 15 of 1913 which came into effect on 1 July 1914) provided for the acceptance of the Island as a territory under the authority of the Common­wealth of Australia and for the government thereof The Act also enlarged the Executive Council to twelve members, six being elected annually and six being nominated by the Administrator and Chief Magistrate.

Section 5 of the Act provided that the Acts of the Commonwealth Parliament (except the Norfolk Island Act 1913 itself) should not be in force in Norfolk Island unless expressed to extend thereto, and it was provided that subject to the Act the Governor—General was empowered to make ordinances for the peace, order and good government of the Island.

An order in Council dated 30 March 1914 revoked the 1900 Order in Council and placed Norfolk Island under the authority of the Commonwealth of Australia

This action flowed directly from the intent expressed in the 1897 order in Council that the Island be annexed to any Federal body to which New South Wales might later belong, which Order itself had been prefaced in 1896 by the British Government initiating action to shift control of Norfolk from itself to New South Wales and the Commonwealth of Australia

This 1914 order in Council was expressed to be done ‘by virtue and in exercise of the power in this behalf by the Australian Waste Lands Act 1855 (Imp.) or otherwise in His Majesty vested’ The Order in Council was printed in the Commonwealth of Australia Gazette of 17 June 1914

The Norfolk Island Act 1935 was passed to amend the 1913 Act. The Executive Council in the Island was replaced by an advisory Council consisting of eight members elected annually. The office of Administrator was separated from that of Chief Magistrate. The Administrator was made responsible for all public works, but as far as possible was to consult with the Council on these matters. Ordinances (with some exceptions, e.g. in the case of urgency) were to be submitted to the Council before being made.

The Norfolk Island Act 1957 repealed the Norfolk Island Acts of 1913 and 1935 but re—enacted the provision for a Council of eight members to be known as the Norfolk Island Council. This Council took over the powers of the previous Advisory Council. The Act also provided for the possible grant to it of some executive powers in the future. It should be noted that although the 1957 Act repealed the 1913 Act, such repeal did not affect the effectiveness of the declaration of acceptance of Norfolk Island by the Commonwealth. See the Acts Interpretation Act 1901—1957, s.8.(b).

In 1960, it was decided to confer on the Council a wide range of local government powers. Accordingly, the Norfolk Island Council Ordinance 1960, which gave the Council normal powers with regard to local functions, was passed. The powers were to be exercised by a fully elected Council with an elected president. It was also proposed that the Council should maintain the electoral roll. Immediately after being elected in July 1960 the Council resolved that it could not accept the proposed powers because, first, the Administrator was given a power to veto by—laws passed by the Council and second, the Council woul d have to raise its own revenue, the then Administrator having stated that the traditional sources of revenue would be denied it.

In 1961, a draft set of proposals was submitted by the administering department to the Council. These proposals would have transformed the Council into an Administrator’s Council, and would have given Council power to direct the Administrator in regard to those functions listed in s .63 of the Ordinance (i.e normal powers with regard to local government functions) The Council would also have been able to determine how local revenue was to be expended and would have had the power to make by—laws subject to the approval of Parliament However in 1962 Island elections substantially reduced the number of Councilors generally belonging to ‘the bloc’ who favoured taking over executive functions and nothing more was done in the matter.

In October 1963 another Norfolk Island Act was passed and came into effect on 27 April 1964. It amended earlier Acts to provide for the wish of the Island people not to participate in executive government of the Island and for the 1960 Ordinance to be repealed. It also provided for a large measure of consultancy between the Council and the Administrator.

The principal provisions of the Norfolk Island Council Ordinance 1964 were:


  1. The Administrator was to be ex officio Chairman of the Council.

  2. The Council was to have eight elected members with an elected President of Committees.

  3. The Administrator was to be responsible for maintaining the electoral roll.

In 1965 in the case of Newbery v. The Queen 7, F L R, 34 Eggleston J held that the Commonwealth Parliament had power, under s.122 of the Constitution to make laws for the Government of Norfolk Island

In 1968, the Norfolk Island Council Ordinance was amended to vary the provisions in relation to eligibility to vote for, and to stand for election to, the Council

In 1970, a proposal was made that the Chairman of the Council should be elected and the Council should exercise some executive powers. It received little support at the July 1970 Council elections.

♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦

It is against the above historical background that the Australian Government in 1975 sought, through this Royal Commission, to obtain well—informed recommendations relating to the Island’s future status, its constitutional relationship to Australia and the most appropriate form of administration for it.

Chronological Summary

1774 - Norfolk Island was discovered by Captain James Cook.

1788 - Lieutenant Philip Gidley King and twenty-two others landed at Kingston to establish the first convict settlement.

1804 - Population, consisting of both free settlers and convicts had reached 1100.

1810 - Over one—quarter of the Island had been cleared.

1814 - Population was withdrawn from Norfolk Island and transferred to van Diemen’s Land (Tasmania).

1825 - The second and barbarous convict settlement was established in the Island.

1844 - Norfolk Island was annexed to Van Diemen’s Land on 29 September 1844.

1846 - Norfolk Island was reported as having 5228 sheep: some wool was exported to New South Wales.

1847 - British Government decided to commence closure of Norfolk Island as a convict settlement.

1855 - Island was unoccupied except for a small party of caretakers.

1856 - The entire population (194 persons) of Pitcairn’s Island was transferred to Norfolk Island. Norfolk 4 Island was severed from Van Diemen’s Land and made a :11 separate and distinct settlement under the juris­diction of a Governor The Governor of New South Wales was appointed Governor of Norfolk Island.

1857 - Governor Sir William Denison visited Norfolk Island and the first laws and regulations for the Island were gazetted.

1859 - First freehold grants (of approximately fifty acres each) were made to the head of each family.

1866 - The Melanesian Mission was established in Norfolk Island.

1897 - The administration of Norfolk Island was placed under the Governor of the Colony of New South Wales.

1900 - The Commonwealth of Australia Constitution Act was passed to take effect on 1 January 1901 By an Order in Council the Governor of the State of New South Wales was appointed to administer the affairs of Norfolk Island in lieu of the Governor of the former Colony of New South Wales.

1903 - The Council of Elders in the Island was replaced by an Executive Council consisting of two elected members and four members appointed by the Governor, who also appointed the President.

1913 - The Norfolk Island Act 1913 was passed. It provided for the acceptance of the Island as a territory under the authority of the Commonwealth of Australia. The Executive Council was enlarged to twelve members, six elected annually, six nominated by the Administrator and Chief Magistrate.

1914 - An Order in Council dated 30 March 1914 revoked the 1900 Order in Council and placed Norfolk Island under the authority of the Commonwealth of Australia.

1920 - The Melanesian Mission held its last church service in the Island.

1935 - The Norfolk Island Act 1935 was passed to amend the 1913 Act. The Executive Council was replaced by an Advisory Council of eight members elected annually.

1957 - The Norfolk Island Acts of 1913 and 1935 were repealed and replaced by the Norfolk Island Act 1957, but the advisory role of the Island Council of eight elected members was retained and provision was made for the possible grant of some executive powers to the Council in the future.

1960 - The Norfolk Island Council Ordinance 1960 was passed.

1963 - An amendment to the Norfolk Island Act repealed the 1960 Ordinance and withdrew the provision for possible executive powers.

1965 - In the case of Newbery v. The Queen 7 F.L.R. 34 it was held that the Commonwealth Parliament had power to make laws for the government of Norfolk Island.

1974 - Queen Elizabeth II, the first monarch to do so, visited the Island. Bicentenary celebrations were held to mark the discovery of the Island by Captain Cook.

1975 - A Royal Commission was appointed by Letters Patent dated 15 May 1975 to inquire into and to report and make recommendations on the future of Norfolk Island.

1976 - In the case of Berwick Limited v. R.R. Gray, Deputy Commissioner of Taxation 6 A.T.R. 28; 76 A.T.C. 4015; 8 A.L.R. 580 the High Court of Australia held that Norfolk Island is part of the Commonwealth of Australia.



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