Royal commission into matters relating to norfolk island


Chapter 6 THE BERWICK CASE



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Chapter 6

THE BERWICK CASE


The decision in this case was given after the Royal Commission had completed its task of gathering evidence and information. It resolves the doubt which existed in many minds throughout the hearing on what is the present status, and relationship to Australia, of Norfolk Island. It establishes that:

  1. Norfolk Island is part of the Commonwealth of Australia,

  2. The law—making power conferred upon the Commonwealth Parliament in respect of Norfolk Island by ss. 51 and 122 of the Constitution is plenary, that is, unrestricted in any sense.

  3. The power conferred by s. 122 is, on the one hand, sufficiently wide to enable the Commonwealth Parliament to pass laws which provide for the direct administration of Norfolk Island by the Commonwealth Government without separate territorial institutions or a separate fiscus; yet, on the other hand, wide enough to enable Parliament to endow the Island with separate political, representative and administrative institutions, having control of its own fiscus.

  4. If the Commonwealth Parliament imposes taxation on the residents of Norfolk Island, the Commonwealth Government is not obliged to spend any of the revenue sc derived for the benefit of Norfolk Island as opposed to Australia

These findings of the Court which are of course binding on this Commission and the residents of Norfolk Island alike have had, of necessity a great influence on many of the conclusions reached In this Report The first finding, that Norfolk Island is part of the Commonwealth, puts beyond doubt application of the Australian Citizenship Act 1948—1973 to the Island Consequently in respect of residents of the Island a person born in the Island or one whether born there or not who was a British subject and resided in the Island (or in any other part of the Commonwealth) for the five years immediately before 26 January 1949 automatically possesses Australian citizen­ship Similarly a person born off the Island and outside Australia before 26 January 1949 who was a British subject on that date and whose father was born or naturalised in Australia, automatically possesses Australian citizenship A person born off the Island and outside Australia after 26 January 1949 of an Australian citizen parent is an Australian citizen only if the birth has been registered for citizenship purposes Any other person now residing in the Island is not an Australian citizen but may qualify for citizenship on the same basis as if he were living in the mainland.

Australian citizenship has the effect of conferring numerous rights and benefits on those who possess it and also of imposing numerous obligations and burdens upon them This in itself has compelled a change in the Commission’s approach to the rights of residents in the Island to pensions Medibank and other social service benefits and to the obligation of residents of the Island to contribute to the cost of them. Early in the Commission hearings it was not thought that any recommendations in relation to payment of taxes would be necessary but in the light of the decision on this case it is impossible to avoid treatment of this aspect in reporting adequately upon the Terms of Reference

The second finding that the powers of the Commonwealth under ss 51 and 122 and other sections of the Constitution which confer legislative power are plenary, means that once a I law in relation to Norfolk Island is found to be a law on a particular subject—matter and once the subject—matter is found to be one of Commonwealth power no other nexus or relationship between the law and the subject—matter of power needs to be F established The Parliament is sovereign alike in what directs and what forbids.

The third finding that the power conferred on the Common­wealth Parliament by s 122 of the Constitution is wide enough to enable the Parliament to provide for direct administration of the Island by the Commonwealth Government or for administration I of the Island by separate political representative and administrative institutions in the Island, means that the Commonwealth a Parliament may provide whatever form of government for the Island it sees fit and to this end may have regard to the size of the Island its importance and the stages of its political and economic development.


The fourth finding that if the Commonwealth exercises its power to impose taxation on residents of the Island, the revenue which it derives need not be expended for the benefit of Norfolk Island means that the revenue it derives may be paid into Consolidated Revenue and be used as the Commonwealth Government sees fit

Chapter 7
GENERAL OBSERVATIONS AND IMPRESSIONS

1.On witnesses


In examining and assessing the value to be placed on the evidence given at the hearings of the Commission one has had to reflect on a prodigious variety of witnesses Broadly they fall into three categories namely

  1. Those who impressed as being both honest and accurate in respect of all the evidence they gave.

  2. Those who appeared to be honest but inaccurate in respect of parts of their evidence because of ignorance prejudice partisanship an inclination to believe what they wished a tendency to exaggerate or some other human failing by way of illustration there were witnesses in this category who glibly claimed ‘Australia has never done anything for Norfolk Island’.

  3. Those who in respect of some of the evidence they gave F left no doubt in one’s mind that they were neither honest nor accurate indeed some of them had to be cautioned They displayed a readiness to say anything which they considered would serve their own interests or the interests of those they represented regardless of whether it was true or accurate.

  4. In general the evidence given by the Pitcairn descendants was more acceptable than that of newcomers to the Island, part of whose evidence was so coloured that little reliance could be placed upon it



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