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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TERRITORIES LAW REFORM BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs,
the Honourable Brendan O'Connor MP)
TERRITORIES LAW REFORM BILL 2010
OUTLINE
The primary purpose of the Bill is to make amendments to a range of
Commonwealth legislation to improve Norfolk Island's governance
arrangements and strengthen the accountability of the Norfolk Island
Government. The Bill provides for the reform of the electoral system
of Norfolk Island and establishes a contemporary financial management
framework. The Bill also amends administrative law legislation to
strengthen the transparency and accountability of the Norfolk Island
Government and public sector.
The Bill further implements changes to the Christmas Island Act 1958
and the Cocos (Keeling) Islands Act 1995 to provide a vesting mechanism
for powers and functions under Western Australian laws applied in the
Territories.
The reforms in part are based on recommendations from the Joint
Standing Committee on the National Capital and External Territories
Inquiry into Governance on Norfolk Island, Quis custodiet ipsos
custodes?, published in 2003.
The Norfolk Island reforms are in Schedule 1 of the Bill. Parts 1 and
2 of Schedule 1 make general governance and electoral amendments to the
NI Act to:
. Reform the voting system for the Norfolk Island Legislative Assembly
and provide more certainty about when elections are held.
. Prescribe a process for selecting a Chief Minister and Ministers and
their roles and responsibilities.
. Allow the Administrator to access a greater range of advice when
presented with bills for assent under Schedule 2 of the NI Act.
. Allow the Governor-General and the Minister responsible for Territories
to take a more active role in the introduction and passage of Norfolk
Island legislation.
Part 3 of Schedule 1 makes further amendments to the NI Act to enable
the implementation of a contemporary financial management framework
that will assist the Norfolk Island Government to meet the expectations
of its community and to plan for the future. This includes provisions
to establish a customised and proportionate financial framework which
provides for the responsible management of public money and public
property, preparation of budgets, financial reporting, annual reports
and procurement.
Parts 4 to 7 of Schedule 1 are aimed at improving the accountability
and transparency of the Norfolk Island Government and Administration by
implementing mechanisms for the review of administrative actions
equivalent to those available to residents on the mainland.
Amendments to the Administrative Appeals Tribunal Act 1975 will enable
merits review jurisdiction to be conferred on the Administrative
Appeals Tribunal for specified decisions made under the authority of
Norfolk Island enactments. These amendments provide for the making of
regulations to specify which Norfolk Island enactments will be subject
to the review process.
The Bill amends the Freedom of Information Act 1982 and the Privacy Act
1988 to extend the application of those Acts to information held by the
Norfolk Island Government and Administration.
The Bill also makes minor amendments to the Ombudsman Act and Norfolk
Island Act to make the Commonwealth Ombudsman the Ombudsman for Norfolk
Island. This enables Norfolk Island to enact ombudsman legislation to
facilitate the operation of the Commonwealth Ombudsman on Norfolk
Island.
Schedules 2 and 3 amend the Christmas Island Act and the Cocos
(Keeling) Islands Act. These amendments provide a vesting mechanism
for powers and functions under Western Australian laws applied in the
Territories. Powers and functions are automatically vested in Western
Australian officers and authorities where an agreement with the
Australian Government exists for those officers and authorities to act
in the Territories.
FINANCIAL IMPACT STATEMENT
The amendments in this Bill will have minimal financial impact. There
will be resource implications for Commonwealth agencies, such as
providing training and information for Norfolk Island Administration
and Government to ensure effective implementation of the Bill. This
includes the implementation of the financial frameworks, and the new
freedom of information, privacy, and other administrative law
obligations.
REGULATION IMPACT STATEMENT
No regulation impact statement is required for the measures contained
in this Bill.
TERRITORIES LAW REFORM BILL 2010
NOTES ON CLAUSES
List of abbreviations used
AAT Administrative Appeals Tribunal
AAT Act Administrative Appeals Tribunal Act 1975
Auditor-General Act Auditor-General Act 1997
FOI Freedom of Information
FOI Act Freedom of Information Act 1982
NI Act Norfolk Island Act 1979
Ombudsman Act Ombudsman Act 1976
Privacy Act Privacy Act 1988
Clause 1 - Short Title
Provides for the Act to be cited as the Territories Law Reform Act
2010.
Clause 2 - Commencement
Clause 2 (table Item 1) provides that sections 1 to 3 of the Bill (and
anything not covered in the table) will commence on the day the Bill
receives the Royal Assent.
Schedule 1, Part 1, Divisions 1 and 2 (table Items 2-5) which outline
general amendments to the NI Act and consequential amendments to other
Commonwealth Acts will commence on the day after the Bill receives the
Royal Assent.
Table Item 6 provides that changes to the electoral arrangements in the
NI Act under Schedule 1, Part 2 commence at the start of the first
meeting of the Norfolk Island Legislative Assembly which is held after
the first general election after the Bill receives the Royal Assent.
The start of the first meeting of the Legislative Assembly is to be
announced by the Minister in the Commonwealth Gazette.
Schedule 1, Part 3 (table Item 7), 4 (table Item 8) and 7 (table Item
13) commence on 1 July 2010.
Schedule 1, Part 5 makes amendments to the FOI Act. These amendments
are dependent on the commencement of amendments to the FOI Act made
under the Freedom of Information Amendment (Reform) Act 2010. As a
result, the commencement table (Items 9, 10 and 11) provides that these
provisions commence on either 1 July 2010, or immediately after the
commencement of the specified provisions in the Freedom of Information
Amendment (Reform) Act, whichever occurs later.
Schedule 1, Part 6 amends the NI Act and the Ombudsman Act. Table Item
12 provides that these provisions will commence on a day determined by
proclamation. If no day is fixed for commencement by proclamation,
then the Part commences on the day after a period of six months from
the day the Bill receives the Royal Assent.
Schedules 2 and 3 commence on the day after the Bill receives the Royal
Assent (table Item 14).
Clause 3 - Schedule(s)
This clause provides that each Act that is specified in a Schedule is
amended or repealed as set out in the applicable Items in the Schedule,
and that any other Item in a Schedule has effect according to its
terms.
Schedule 1 - Amendments relating to Norfolk Island
Part 1 - General amendments
Division 1 - Amendments of the Norfolk Island Act 1979
Norfolk Island Act 1979
Item 1 - Subsection 4(1)
Item 1 inserts a definition of Chief Minister into subsection 4(1) of
the NI Act. The Chief Minister is defined as the Chief Minister
appointed under section 13 of the NI Act.
Item 2 - Subsection 4(1)
Item 2 inserts a definition of Commonwealth Finance Minister into
subsection 4(1). The Commonwealth Finance Minister is defined as the
Commonwealth Minister who administers the Financial Management and
Accountability Act 1997. This definition is necessary to distinguish
between the Commonwealth Finance Minister and the Norfolk Island
Minister for Finance (see Item 9). Each has a number of different
obligations under the NI Act and the inclusion of this definition is
intended to ensure that the role of each office can be clearly
identified.
Item 3 - Subsection 4(1)
Item 3 inserts a definition of Commonwealth Gazette into subsection
4(1). The Commonwealth Gazette is defined as the Commonwealth of
Australia Gazette. This definition is necessary to distinguish between
the Commonwealth Gazette and the Norfolk Island Government Gazette for
the purposes of obligations under the NI Act.
Item 4 - Subsection 4(1)
Item 4 inserts a definition of Commonwealth Minister into subsection
4(1). Commonwealth Minister is defined as a Minister of State of the
Commonwealth. This definition supports the definitions of Commonwealth
Finance Minister and responsible Commonwealth Minister in Items 2 and
11. The definition ensures that the distinction between the role and
responsibilities of Norfolk Island Ministers and Commonwealth Ministers
can be clearly identified in the NI Act.
Item 5 - Subsection 4(1) (definition of executive member)
Item 5 repeals the definition of executive member from subsection 4(1).
The term executive member is being replaced with the term Minister
throughout the NI Act and consequently the definition of executive
member is being repealed (see Item 8 and 23)).
Item 6 -Subsection 4(1) (definition of executive office)
Item 6 repeals the definition of executive office from subsection 4(1).
The term executive office is repealed as members of the Legislative
Assembly are no longer appointed to executive office as executive
members. Members of the Legislative Assembly are instead being
appointed as Ministers (see Item 8 and 23).
Item 7 - Subsection 4(1) (definition of Finance Minister)
Item 7 repeals the definition of Finance Minister from subsection 4(1).
This definition is repealed as it is no longer used in the NI Act. It
is replaced by the definition of Minister for Finance in Item 9.
Item 8 - Subsection 4(1)
Item 8 inserts a definition of Minister into subsection 4(1). Minister
is defined as the Chief Minister or a Minister appointed under section
13. This definition is necessary as the NI Act contains a number of
provisions addressing the appointment and termination of Ministers.
The use of the term Minister replaces the previously used term of
executive officer. This change was recommended by the Joint Standing
Committee on the National Capital and External Territories in its
report Quis custodiet ipsos custodes (recommendation 17). The change
reflects current practice on Norfolk Island and is a more readily
understood and recognised term.
Item 9 - Subsection 4(1)
Item 9 inserts a definition of Minister for Finance into subsection
4(1). The Minister for Finance is defined as the Minister who is
responsible for the administration of the Public Account of Norfolk
Island. This definition is necessary to distinguish between the
Commonwealth Finance Minister and the Norfolk Island Minister for
Finance. Each has a number of different obligations under the NI Act
and the inclusion of this definition is intended to ensure that the
role of each office can be clearly identified.
Item 10 - Subsection 4(1)
Item 10 inserts a definition of Norfolk Island Public Service Values
into subsection 4(1). The Norfolk Island Public Service Values are
defined as the rules prescribed by regulations made for the purposes of
subsection 61A(1).
Item 11 - Subsection 4(1)
Item 11 inserts a definition of responsible Commonwealth Minister into
subsection 4(1). The responsible Commonwealth Minister is defined as
the Commonwealth Minister who administers the NI Act. The definition
ensures that the distinction between the role and responsibilities of
Norfolk Island Ministers and Commonwealth Ministers can be clearly
identified in the NI Act.
Item 12 - Paragraph 7(1)(e)
Item 12 omits 'Minister' and replaces it with 'responsible Commonwealth
Minister'. This amendment reflects the change in terminology in the
NI Act under the amendment Bill, and clarifies which Commonwealth
Minister has authority under this section.
Items 13 and 14 - Subsection 7(2)
Item 13 omits 'paragraph (1)(b)' from subsection 7(2) and replaces it
with 'paragraphs (1)(a) and (b)'. Item 14 omits 'that paragraph' from
subsection 7(2) and substitutes 'paragraph (1)(a) or (b)'.
Subparagraph 7(1)(a) provides that the Administrator shall exercise all
powers and perform all functions in accordance with such advice, if
any, from the Executive Council in relation to a matter specified in
Schedule 2. Subparagraph 7(1)(b) provides that the Administrator shall
exercise all powers and perform all functions in accordance with the
advice of the Executive Council in relation to a matter specified in
Schedule 3.
Subsection 7(2) provides that, notwithstanding subparagraph 7(1)(b),
the Administrator shall not act in accordance with the Executive
Council's advice in relation to matters specified in Schedule 3 if that
advice is inconsistent with instructions given by the responsible
Commonwealth Minister. Items 13 and 14 amend subsection 7(2) so that
the Administrator, notwithstanding subparagraphs 7(1)(a) and (b), shall
not act in accordance with the Executive Council's advice in relation
to matters specified in either Schedule 2 or 3, if that advice is
inconsistent with instructions given by the responsible Commonwealth
Minister.
These Items broaden the Administrator's authority to seek Commonwealth
advice on legislative matters and are supported by the amendments at
Item 17, which authorise the responsible Commonwealth Minister to
provide such advice. In essence, under the reforms, the Administrator
must seek advice from the Commonwealth on Schedule 3 matters, and may
also seek such advice on Schedule 2 matters. For example, instructions
may be issued in situations where it is necessary for Norfolk Island
legislation to be consistent with the national interest or comply with
Australia's international obligations.
To ensure that these instructions are effective the Act provides that
Commonwealth advice must be taken over inconsistent advice from the
Norfolk Island Executive Council.
Item 15 - Subsection 7(2)
Item 15 omits 'Minister' and substitutes it for 'responsible Commonwealth
Minister'. This amendment reflects the change in terminology in the NI Act
under the amendment Bill, and clarifies which Commonwealth Minister has
authority under this section.
Item 16 - Subsection 7(3)
Item 16 omits the first occurrence of 'Minister' and substitutes it for
'responsible Commonwealth Minister'. This Item clarifies that it is
the responsible Commonwealth Minister who gives instructions to the
Administrator.
Item 17 - Subsection 7(3)
Item 17 omits 'paragraph (1)(b)' from subsection 7(2) and replaces it
with 'paragraphs (1)(a) or (b). Subsection 7(3) provides that the
Minister may give the Administrator instructions in respect of advice
tendered to the Administrator by the Executive Council for the purposes
of subparagraph 7(1)(b), which is matters specified in Schedule 3.
Item 17 amends subsection 7(3) to allow the Minister to also give
instructions in respect of advice tendered to the Administrator by the
Executive Council for the purposes of subparagraph 7(1)(a), which is
matters specified in Schedule 2.
This Item supplements Items 13 and 14 to broaden the Administrator's
authority to seek Commonwealth advice on legislative matters by
authorising the responsible Commonwealth Minister to provide such
advice. In essence, under the reforms, the Administrator must seek
advice from the Commonwealth on Schedule 3 matters, and may also seek
such advice on Schedule 2 matters. For example, instructions may be
issued in situations where it is necessary for Norfolk Island
legislation to be consistent with the national interest or comply with
Australia's international obligations.
To ensure that these instructions are effective the Act provides that
Commonwealth advice must be taken over inconsistent advice from the
Norfolk Island Executive Council.
Item 18 - Subsection 7(3)
Item 18 omits the second occurrence of 'Minister' and substitutes it
for 'responsible Commonwealth Minister'. This amendment reflects the
change in terminology in the NI Act under the amendment Bill, and
clarifies which Commonwealth Minister has authority under this section.
Item 19 - Section 9
Item 19 repeals section 9 of the NI Act and substitutes a new section
9. The new section 9 provides that the responsible Commonwealth
Minister can appoint one or more people jointly or severally to be the
deputy or deputies of the Administrator. The deputy or deputies
exercise powers and functions of the Administrator as assigned to them
by the responsible Commonwealth Minister and exercised during his or
her pleasure. The appointment of a deputy or deputies does not affect
the exercise or performance of a function by the Administrator. This
amendment will provide the Commonwealth with more options for a
'replacement' Administrator when the Administrator is unable to perform
his or her duties.
Item 19 also includes a subsection that provides that a reference in
Commonwealth legislation to a 'Deputy Administrator' is a reference to
a deputy of the Administrator. This ensures that Commonwealth
legislation which uses the current section 9 terminology will still
have effect after this section commences. The existing references will
now refer to the new office of Deputy of the Administrator.
Item 20 - Subsection 10(2)
Item 20 omits 'The Deputy Administrator' and substitutes 'A deputy of
the Administrator'. This Item reflects the change made to section 9 of
the NI Act at Item 19.
Item 21 - Subsection 11(2)
Item 21 repeals subsection 11(2) and substitutes a new subsection
11(2). The new subsection 11(2) defines the Executive Council as
consisting of the Chief Minister and such other Ministers as are
appointed by the Administrator under section 13. This amendment
ensures the definition of Executive Council remains consistent with the
change in terminology from executive members holding executive office
to Chief Minister and Minister. In effect, the composition of the
Executive Council will remain as it currently exists under the NI Act.
Item 22 - Subsection 11(8)
Item 22 repeals subsection 11(8). Existing subsection 11(8) allows
members of the Legislative Assembly who do not hold executive office to
attend all Executive Council meetings. This subsection is being
repealed as is blurs the distinction between the functions and
responsibilities of Ministers and the functions and responsibilities of
other members of the Legislative Assembly. The Joint Standing
Committee on the National Capital and External Territories recommended
that subsection 11(8) be repealed in its report Quis custodiet ipsos
custodes? (recommendation 19).
Item 23 - Sections 12, 13 and 14
Item 23 repeals existing sections 12, 13 and 14 of the NI Act and
substitutes new sections 12, 12A, 13, 14 and 14A.
Section 12
Section 12 provides that there is to be a Chief Minister and at least
one, but not more than 3, Ministers and that the Ministers have
executive authority for the matters specified in Schedules 2 and 3.
The provision of a maximum number of Ministers, being three plus a
Chief Minister, is intended to ensure effective backbench scrutiny of
the Assembly's business - 4 Ministers and 4 backbenchers, with the
Speaker being the 9th member. This entrenches the important separation
of executive and legislative responsibility under the NI Act. This
change was recommended by the Joint Standing Committee on the National
Capital and External Territories in its report Quis custodiet ipsos
custodes (recommendation 17). The amendments reflect the change in
terminology from executive members to Ministers. A Minister is a more
easily understood and recognised term which is already currently used
in practice in the Norfolk Island Legislative Assembly. The Joint
Standing Committee on the National Capital and External Territories
recommended the change in terminology in its report Quis custodiet
ipsos custodes? (recommendation 17).
The new section 12 replaces the old sections 12 and 13 and retains the
existing restriction that people employed in the Public Service of the
Territory, or of the Commonwealth, are not eligible to be Ministers
(the restriction is located in the previous section 13). Section 12
also retains the provision that if a Minister becomes an employee of
the Public Service of the Territory or the Commonwealth they vacate
their ministerial office (also located in the previous section 13).
Section 12A
Section 12A provides the process for the nomination of the Chief
Minister. The Legislative Assembly must, at the first meeting after a
general election, nominate one of the Members to be the Chief Minister.
The nomination of Chief Minister must occur after the election of the
Speaker and Deputy Speaker, but before any other business.
This amendment codifies the current practice of the Legislative
Assembly in nominating one executive member to have the designation of
Chief Minister. The nomination by the Legislative Assembly also
provides a clear line of accountability and responsibility for the
office of the Chief Minister. Section 12A also provides process for
filling vacancies in the office of Chief Minister. Vacancies that
occur during a meeting are filled at the meeting by nominating a Member
to be Chief Minister. If a vacancy occurs at any other time, the
Speaker must convene a meeting as soon as practicable, so that a Member
can be nominated to be Chief Minister.
Section 12A further provides that the Speaker and Deputy Speaker of the
Legislative Assembly are not eligible to be nominated as Chief
Minister. This reflects the Westminster system of government where the
Speaker is an independent office.
The Chief Minister is nominated by the Legislative Assembly and
appointed by the Administrator under the new section 12A. The
Legislative Assembly is deemed to have advised the Administrator to
appoint a member as Chief Minister once the nomination has occurred.
Section 13
Section 13 provides for the appointment of Ministers. The
Administrator may also appoint one or more members of the Legislative
Assembly as a Minister on the advice of the Chief Minister. This
process differs from the previous section 13 of the NI Act, where
formerly, the Administrator appointed all executive members on the
advice of the Legislative Assembly.
The change aligns the Norfolk Island process for appointing Ministers
with the Westminster system of government. As the Chief Minister is
the leader of the Norfolk Island Government he or she advises the
Administrator on who the other Ministers will be. This change
establishes clear lines of Ministerial responsibility - the Ministers
are responsible to the Chief Minister, who is responsible to the
Legislative Assembly and the Legislative Assembly is responsible to the
Norfolk Island community.
New section 13 also provides that the appointment of the Chief Minister
and Ministers take effect at the time of the appointment or the time
specified in the instrument of appointment if this is a later time.
Section 14
Section 14 provides for the termination of the Chief Minister's and
other Ministers' appointments. The Chief Minister ceases to hold
office when:
. they cease to be a member of the Legislative Assembly by resignation
or by reason of section 39 (disqualifications for membership of the
Legislative Assembly) or section 39AA (dismissal of members of the
Legislative Assembly, see Item 39 below); or
. they are dismissed from office by the Administrator under section 14A
(dismissal of Ministers); or
. they resign from office, in writing and signed, delivered to the
Administrator; or
. the Legislative Assembly passes a resolution of no confidence in them;
or
. a notice about a general election is published under subsection
39AB(1) (resolution of no confidence in the Chief Minister, see Item
39 below); or
. the Legislative Assembly is dissolved under section 39AC (dissolution
of the Legislative Assembly the Governor-General, see Item 39 below);
or
. the Legislative Assembly first meets after a general election of the
Legislative Assembly that occurred after their most recent appointment
to the office of Chief Minister;
whichever happens first. The new section includes existing section 14
restrictions on the tenure of executive office. The new provisions
dealing with removal from office are also included in the new section
including dismissal from office by the Administrator (section 14A),
removal from office by a no-confidence motion (section 39AB) and
dissolution of the Legislative Assembly by the Governor-General
(section 39AC).
Other Ministers cease to hold office when:
. they cease to be a member of the Legislative Assembly by resignation
or by reason of section 39 (disqualifications for membership of the
Legislative Assembly) or section 39AA (dismissal of members of the
Legislative Assembly, see Item 39 below); or
. they are dismissed from office by the Administrator under section 14A
(dismissal of Ministers); or
. they resign from office, in writing and signed, delivered to the
Administrator; or
. a notice about a general election is published under subsection
39AB(1) (resolution of no confidence in the Chief Minister, see Item
39 below); or
. the Legislative Assembly is dissolved under section 39AC (dissolution
of the Legislative Assembly the Governor-General, see Item 39 below);
or
. the Legislative Assembly first meets after a general election of the
Legislative Assembly that occurred after their most recent appointment
to the office of Chief Minister;
whichever happens first. The new section includes existing section 14
restrictions on the tenure of executive office. The new provisions
dealing with removal from office are also included in the new section
including dismissal from office by the Administrator (section 14A) and
dissolution of the Legislative Assembly by the Governor-General
(section 39AC).
Section 14A
Section 14A provides that the Administrator may dismiss the Chief
Minister from office if, in the Administrator's opinion, there are
exceptional circumstances for doing so.
The power may only be exercised by the Administrator if exceptional
circumstances exist. The power is based on the former section 13(1)
and supplements the authority of the Legislative Assembly to pass a
motion of no confidence in the Chief Minister.
Section 14A also provides that the Administrator may dismiss a Minister
from office on the advice of the Chief Minister. As the Chief Minister
has the power to advise the Administrator on who should be appointed as
a Minister, it is appropriate that the Chief Minister has the power to
advise the Administrator to dismiss a Minister from office.
Item 24 - Subsection 15(2)
Item 24 omits 'appointed to an executive office shall' from subsection
15(2) and replaces it with 'appointed to an office of Minister must'.
This amendment reflects the change in terminology from executive member
to Minister (see Item 23).
Item 25 - Subsection 15(3)
Item 25 amends subsection 15(3) to change the reference to 'executive
office' to 'office of a Minister'. This amendment reflects the change
in terminology from executive member to Minister (see Item 23).
This Item also amends the title of section 15 to add 'etc.', to ensure
that the title is not misleading. Subsection 15(3) refers to 'any
person' and is not limited to Executive Council Members or Ministers.
Item 26 - At the end of Part III
Item 26 inserts new section 15A into the NI Act. Section 15A provides
that the Chief Minister is to administer such matters relating to the
powers of the Administration as the Chief Minister allocates to him- or
herself. Ministers are to administer such matters relating to the
powers of the Administration as the Chief Minister allocates to them.
In doing so, the Chief Minister may authorise a Minister or Ministers
to act on the Chief Minister's or another Ministers' behalf.
The Chief Minister must publish details of the arrangements in the
Norfolk Island Government Gazette which publically informs the Norfolk
Island community of the allocation of ministerial responsibilities. It
also provides clarity and transparency in the roles and
responsibilities of the Norfolk Island Ministers and reinforces the
chain of Ministerial responsibility. The Joint Standing Committee on
the National Capital and External Territories recommended these
amendments in its report Quis custodiet ipsos custodes? (recommendation
17).
Item 27 - After subsection 21(1)
Item 28 inserts subsection 21(1A). Subsection 21(1A) provides that the
Administrator must reserve a proposed law introduced by the Governor-
General for the Governor-General's pleasure. The Governor-General has
the power to introduce a proposed law under section 26 of the NI Act.
It is appropriate that proposed laws introduced by the Governor-General
are reserved for the Governor-General's pleasure because the
Legislative Assembly can amend the proposed laws during passage in the
Assembly. The reservation of the proposed law for the Governor-
General's pleasure allows the Governor-General to consider whether or
not he or she agrees to any amendments made by the Legislative Assembly
during passage.
Item 28 - At the end of paragraph 21(2)(a)
Item 27 inserts new subparagraph (iii) into paragraph 21(2)(a).
Paragraph 21(2)(a) provides that the Administrator, when presented with
a proposed law which provides for matters specified in Schedule 2 or 3
or both, shall declare that they assent to the proposed law or that
they withhold assent to the proposed law. Item 27 adds a third option
for the Administrator - to reserve the proposed law for the Governor-
General's pleasure. This amendment will expand the options available
to the Administrator when presented with a proposed law. It will allow
the Administrator to refer laws where their assent, or withholding of
assent, could be seen as a conflict of interest or otherwise
controversial. For example, it will allow the Administrator to refer
laws that may be inconsistent with a national policy objective to the
Governor-General for consideration and oversight, via the giving or
withholding of assent.
Item 29 - Subsection 21(5)
Item 29 amends subsection 21(5). Subsection 21(5) provides that the
Administrator, when considering a proposed law that provides only for
matters specified in Schedule 2, shall not assent, withhold assent, or
return the proposed law to the Legislative Assembly with amendments,
except in accordance with the advice of the Executive Council. Item 29
amends subsection 21(5) so that the Administrator shall not assent,
withhold assent or return to the Legislative Assembly with amendments,
a proposed law dealing with matters specified in Schedule 2 except in
accordance with the advice of the Executive Council and any
instructions from the responsible Commonwealth Minister.
Subsection 21(5) further provides that if there is an inconsistency
between the advice of the Executive Council and any instructions from
the responsible Commonwealth Minister, the Commonwealth Minister's
instructions are to prevail to the extent of the inconsistency. This
Item supplements Items 13, 14 and 17.
Item 30 - Subsection 21(6)
Item 30 omits 'Minister' and substitutes it for 'responsible Commonwealth
Minister'.
This amendment reflects the change in terminology in the NI Act under the
amendment Bill, and clarifies which Commonwealth Minister has authority
under this section.
Item 31 - Subsection 22(3)
Item 31 omits '21(2)' from subsection 22(3) and replaces it with
'21(1A) or (2)'. This amendment is consequential to the amendment in
Item 28. If the Governor-General returns a proposed law to the
Legislative Assembly with amendments under section 21(2), and that law
was introduced by the Governor-General, the law must be reserved for
the Governor-General's pleasure after the Legislative Assembly has
considered the recommended amendments.
Item 32 - At the end of Division 2 of Part IV
Item 32 inserts new section 26A to the NI Act. Section 26A provides
that the responsible Commonwealth Minister may introduce a proposed law
for the peace, order and good government of the Territory into the
Legislative Assembly. This change will increase the Commonwealth's
legislative powers. It will allow the responsible Commonwealth
Minister to introduce a proposed law, or proposed amendments to a
current law, for the Legislative Assembly's consideration.
For example, this power may be used to implement national policy
objectives (such as those agreed at the Council of Australian
Governments) and to ensure that Norfolk Island legislation is
consistent with the national interest or Australia's international
obligations.
Item 33 - At the end of paragraph 27(1)(a)
Item 33 adds 'and' to paragraph 27(1)(a). This amendment is necessary
as subparagraph 27(1)(c) is being removed at Item 35, leaving only two
subparagraphs in subsection 27(1).
Item 34 - Paragraph 27(1)(b)
Item 34 omits the word 'and' from paragraph 27(1)(b). This amendments
is necessary for drafting purposes as subparagraph 27(1)(c) is repealed
at Item 35, leaving paragraph (1)(b) as the last subparagraph in
subsection 27(1).
Item 35 - Paragraph 27(1)(c)
Item 35 repeals paragraph 27(1)(c). Paragraph 27(1)(c) restricted the
Governor-General's power to make an Ordinance in the same terms as a
proposed law introduced by the Governor-General, if the Legislative
Assembly did not pass the proposed law within 60 days, to matters not
specified in Schedules 2 or 3. This removal of paragraph 27(1)(c) will
allow the Governor-General to make an Ordinance, in the same terms as a
proposed law introduced under section 26, that makes provision for
matters specified in Schedules 2 and 3.
This amendment will increase the Commonwealth's legislative powers. It
will allow the Governor-General to introduce a proposed law (and pass
an Ordinance in the same terms as the proposed law if necessary) on any
topic. For example, this power may be used to implement national
policy objectives (such as those agreed at the Council of Australian
Governments) and to ensure that Norfolk Island legislation is
consistent with the national interest.
Item 36 - Subsection 27(4)
Item 36 omits 'Minister' and substitutes it for 'responsible Commonwealth
Minister'. This amendment reflects the change in terminology in the NI Act
under the amendment Bill, and clarifies which Commonwealth Minister has
authority under this section.
Item 37 - Subsection 28A(1)
Item 37 omits 'Minister' and substitutes it for 'responsible Commonwealth
Minister'. This amendment reflects the change in terminology in the NI Act
under the amendment Bill, and clarifies which Commonwealth Minister has
authority under this section.
Item 38 - After subsection 35(1)
Item 38 inserts new subsection 35(1A). Subsection 35(1A) provides that
subsection 35(1) does not apply to general elections held under section
39AB or 39AC. Subsection 35(1) provides that a general election of
members of the Legislative Assembly is held on a date determined by the
Administrator. General elections held in accordance with section 39AB
or 39AC are held on a date determined by the responsible Commonwealth
Minister (see Item 39 below), and are therefore excluded from the
operation of the existing subsection 35(1).
Item 39 - At the end of Division 1 of Part V
Item 39 inserts new sections 39AA, 39AB and 39AC into the NI Act.
Section 39AA
Section 39AA provides that the Administrator may dismiss a member of
the Legislative Assembly from office if they have engaged in, or are
engaging in, seriously unlawful conduct or grossly improper conduct.
This amendment will work in partnership with the current section 39,
which provides that a member of the Legislative Assembly vacates their
office if they become an undischarged bankrupt or are convicted of an
offence and sentenced to imprisonment for one year or longer. The
amendment will capture behaviour that is not covered by section 39, but
is serious enough to require being dismissed from the Legislative
Assembly. It is intended that the authority be used at the
Administrator's discretion, and taking into account the gravity of
action taken under this section. The section requires the
Administrator to evaluate the seriousness of the conduct in question in
acting under this section.
Section 39AB
Section 39AB provides the process for holding a general election if
there is a successful no-confidence motion in the Chief Minister, the
Legislative Assembly does not appoint a new Chief Minister within a
period of 10 days, and the Governor-General does not dissolve the
Legislative Assembly within that period of 10 days. If this occurs, a
general election of members of the Legislative Assembly will be held on
a day specified by the responsible Commonwealth Minister by notice in
the Commonwealth Gazette. This date must also be published in the
Norfolk Island Gazette as soon as practicable.
The specified day chosen must not be earlier than 36 days and not later
than 90 days after the period of 10 days. The specified day also
cannot be a polling day for an election of the Senate or a general
election of the House of Representatives. During the time between when
the notice is published in the Commonwealth Gazette, and the first
meeting of the Legislative Assembly after the election, the
Administrator exercises all the powers of the Administration, the
Executive Council and Ministers in accordance with any directions from
the Governor-General. For clarity, it is intended that this power be
exercised to the exclusion of the Legislative Assembly, which would be
unable to function without a Chief Minister.
If the Administrator decides it is necessary to issue or spend public
money of the Territory when an enactment does not authorise the issuing
or spending, the Administrator may do so with the authority of the
Governor-General. The Governor-General exercises his or her power to
issue directions and to authorise the issuing or spending of money by
proclamation, which is not a legislative instrument.
Section 39AC
Section 39AC provides that the Governor-General can dissolve the
Legislative Assembly if it is incapable of effectively performing its
functions or is conducting its affairs in a grossly improper manner.
If the Legislative Assembly is dissolved under this section then a
general election of members of the Legislative Assembly will be held on
a day specified by the responsible Commonwealth Minister by notice in
the Commonwealth Gazette. This date must also be published in the
Norfolk Island Gazette as soon as practicable.
The specified day chosen must not be earlier than 36 days after the
dissolution and not later than 90 days after the dissolution. The
specified day also cannot be a polling day for an election of the
Senate or a general election of the House of Representatives.
During the time between when the Legislative Assembly is dissolved, and
the first meeting of the Legislative Assembly after the election, the
Administrator exercises all the powers of the Administration, the
Executive Council and Ministers in accordance with any directions from
the Governor-General. If the Administrator decides it is necessary to
issue or spend public money of the Territory when an enactment does not
authorise the issuing or spending, the Administrator may do so with the
authority of the Governor-General. The Governor-General exercises his
or her power to issue directions and to authorise the issuing or
spending of money by proclamation, which is not a legislative
instrument.
The responsible Commonwealth Minister must cause a statement of the
reasons for the dissolution to be published in both the Commonwealth
Gazette and the Norfolk Island Government Gazette as soon as
practicable. The statement of the reasons for the dissolution must
also be tabled in both Commonwealth Houses of Parliament within 15
sitting days of the Houses after the dissolution.
Item 40 - At the end of section 42
Item 37 inserts new subsection 42(7). Subsection 42(7) provides that
if a motion of no confidence in the Chief Minister is before the
Legislative Assembly, the Assembly must deal with that motion before
dealing with any other business. This amendment will ensure that the
possible removal of a Chief Minister is dealt with expeditiously by the
Legislative Assembly.
Item 41 - After section 42
Item 41 inserts new section 42A into the NI Act. Section 42A provides
that a resolution of no confidence in the Chief Minister has no effect
unless:
. it affirms a motion that is expressed to be a motion of no-confidence
in the Chief Minister; and
. at least 14 days notice of the motion has been given, in accordance
with the standing rules and orders; and
. the resolution is passed by at least the number of members necessary
to be quorum; and
. the resolution is passed by a majority of the number of members
present and voting at the meeting of the Assembly.
If a motion for a resolution of no confidence in the Chief Minister is
being voted on in the Legislative Assembly, each member present at the
meeting must cast a vote on the motion. The minimum of two weeks'
notice of the motion will provide sufficient time for Members of the
Legislative Assembly who are on the mainland or overseas to return to
Norfolk Island for the motion. Passing the resolution by a majority of
members present is consistent with the established practice in section
42 of the NI Act. The obligation for all members present to vote will
ensure that the Legislative Assembly gives considered thought to the
motion of no confidence as the role of Chief Minister is pivotal to an
effective Norfolk Island Government.
Item 42 - Section 49
Item 42 omits 'Finance Minister' everywhere that it occurs in section
49 and replaces it with 'Commonwealth Finance Minister'. This Item
clarifies that it is the Commonwealth Finance Minister who has the
power to lend money to the Administration of Norfolk Island or a
Territory authority.
Item 43 - Subsection 50(1)
Item 43 omits 'Finance Minister' and replaces it with 'Commonwealth
Finance Minister'. This Item clarifies that it is the Commonwealth
Finance Minister who has the power to approve the Administration or a
Territory authority borrowing money from someone other than the
Commonwealth or raising money otherwise than by borrowing.
Item 44 - Subsection 50A(1)
Item 44 omits 'Finance Minister' and replaces it with 'Commonwealth
Finance Minister'. This Item clarifies that it is the Commonwealth
Finance Minister who can enter into a contract to guarantee the
repayment of money, or amounts liable to be paid in relation to the
money, borrowed by the Administration.
Item 45 - Subsection 50A(2)
Item 45 omits 'Finance Minister' everywhere that it occurs in
subsection 50A(2) and replaces it with 'Commonwealth Finance Minister'.
This Item clarifies that it is the Commonwealth Finance Minister who
can in writing determine that the repayment of money, and associated
payments, borrowed by the Administration is guaranteed by the
Commonwealth.
Item 46 - Subsection 50D(1)
Item 46 omits 'Finance Minister' and replaces it with 'Commonwealth
Finance Minister'. This Item clarifies that it is the Commonwealth
Finance Minister who may delegate his or her powers or functions under
sections 50 or 50A.
Item 47 - Subsection 50D(1)
Item 47 omits 'Finance Minister's' and replaces it with 'Commonwealth
Finance Minister's'. This Item clarifies that it is the Commonwealth
Finance Minister who may delegate his or her powers or functions under
sections 50 or 50A.
Item 48 - Subsection 50D(2)
Item 48 omits 'Finance Minister' and replaces it with 'Commonwealth
Finance Minister'. This Item clarifies that an official delegated
powers under section 50D must comply with any directions of the
Commonwealth Finance Minister.
Item 49 - Subsection 53(2)
Item 49 omits 'Minister' and substitutes it for 'responsible Commonwealth
Minister'.
This amendment reflects the change in terminology in the NI Act under the
amendment Bill, and clarifies which Commonwealth Minister has authority
under this section.
Item 50 - After section 61
Item 50 inserts new sections 61A into the NI Act. Section 61A provides
that the regulations may prescribe rules to be known as the Norfolk
Island Public Service Values. People appointed or employed under an
enactment mentioned in section 61 of the NI Act (an enactment providing
for the appointment and employment of people necessary for the purposes
of the Act and the proper government of Norfolk Island) must behave in
a way that upholds the Norfolk Island Public Service Values at all
times. This amendment will allow the Commonwealth to prescribe values
for the Norfolk Island Public Service in regulations.
Item 51 - Section 62
Item 51 omits 'Minister' and substitutes it for 'responsible Commonwealth
Minister'.
This amendment reflects the change in terminology in the NI Act under the
amendment Bill, and clarifies which Commonwealth Minister has authority
under this section.
Item 52 - Subsection 65(4)
Item 52 omits 'executive member' and replaces it with 'Minister'. This
change reflects the change in terminology from executive members to
Ministers (see Item 8 and 23).
Item 53 - Subsection 67(2)
Item 53 amends subsection 67(2). Existing subsection 67(2) provides
that the Governor-General may make regulations to repeal, alter, or add
a new Item to Schedule 2 or 3 of the NI Act, but regulations repealing
or altering an Item in Schedule 2 may not be made unless a copy of the
proposed regulations has been laid before the Legislative Assembly and
the Assembly has passed a resolution approving the proposed
regulations. Item 53 amends subsection 67(2) so that regulations
repealing or altering an Item in Schedule 2 or 3 must not be made
unless a copy of the proposed regulations has been tabled in the
Legislative Assembly on a sitting day and at least one sitting day has
passed since the sitting day on which the proposed regulations were
tabled.
This amendment will ensure that the Legislative Assembly and the
Norfolk Island community are aware of proposed regulations that repeal
or alter an Item or Items in Schedule 2 or 3. The removal of the
requirement for the Legislative Assembly to pass a resolution approving
proposed regulations which repeal or alter an Item in Schedule 2 will
provide the Commonwealth with control over the Items listed in Schedule
2. In practice, the Norfolk Island Government is consulted prior to
the tabling of proposed regulations repealing, altering, or adding a
new Item to Schedules 2 or 3.
Item 54 - Item 42 of Schedule 2
Item 54 omits 'executive members' from Item 42 of Schedule 2 and
replaces it with 'Ministers'. This change reflects the change in
terminology from executive members to Ministers (see Items 8 and 23).
Item 55 - Schedule 6
Item 55 omits 'holding executive office' everywhere that occurs in
Schedule 6 and replaces it with 'holding office as a Minister'. This
change reflects the change in terminology from holding executive office
to holding office as a Minister (see Items 8 and 23).
Item 57
Previously, the Act referred to executive members. The amended
sections 13 and 15 replace the reference to executive members with
Ministers. A person holding an executive office and designated as the
Chief Minister immediately before the commencement of the amendments
will continue holding the office of Chief Minister until the next
general election held after the commencement of the amendments. This
will be the first election after the Act receives the Royal Assent.
Item 58
Previously, the Act referred to executive members. The amended
sections 13 and 15 replace the reference to executive members with
Ministers. Persons holding an executive office immediately before the
commencement of the amendments will continue holding the office of
Minister until the next general election held after the commencement of
the amendments. This will be the first election after the Act receives
the Royal Assent.
Item 59
Previously, the Act did not limit the number of executive office
holders that could be appointed. The amended sections 12 and 13 will
restrict the number of Ministers to a maximum of 3. Where the number
of executive office holders immediately before the commencement of the
amendments exceeds 3, then all executive office holders will continue
holding the office of Minister until the next general election held
after the commencement of the amendments. This will be the first
election after the Act receives the Royal Assent.
Item 60
The new section 12A(1) dealing with nomination of the Chief Minister
will not take effect until the first meeting of the Legislative
Assembly after the general election occurring after the commencement of
these amendments. Commencement will occur on the day the Act receives
the Royal Assent. The person holding the executive office designated
as Chief Minister immediately before the commencement of the amendments
will continue as the Chief Minister until the general election held
after commencement of the amendments. This will be the first election
after the Act receives the Royal Assent.
Item 61
The previous process for the presentation of bills to the Administrator
for consent will continue for those bills presented prior to the
commencement of the amendments to sections 21 and 22. Commencement of
those amendments will occur on the day the Act receives the Royal
Assent.
Division 2 - Consequential amendments
Item 62
This consequential amendment repeals the definition of Minister in the
Aboriginal and Torres Strait Islander Heritage Protection Act 1984
(relating to Norfolk Island). This reflects a change in title in the NI
Act from an 'Executive Member' to 'Chief Minister' and 'Minister'.
The following provisions are amended:
. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 -
Subsection 13(1) (definition of Minister)
Items 64, 66 and 70
These consequential amendments remove the phrase 'person holding an
office under section 13 of the Norfolk Island Act 1979', replacing them
with the phrase 'Minister of Norfolk Island'. This reflects the
simplification of terminology under the NI Act. These consequential
amendments result from amendments to sections 4(1), 11(2) and 13 of the
NI Act (with the terms 'Minister' and 'Chief Minister' replacing the
term 'Executive Member').
The following provisions are amended:
. Environment Protection and Biodiversity Conservation Act 1999 -
Subsections 393(3) and 398(2)
. Historic Shipwrecks Act 1976 - Paragraph 4A(12)(c)
Items 65 and 67
These consequential amendments remove the phrase 'that Act',
substituting it with the phrase 'the Norfolk Island Act 1979'. These
amendments are consequential to amendments in Items 64 and 66, which
remove the reference to 'the Norfolk Island Act 1979' in subsections
393(3) and 398(2). This leaves the subsections referring to 'that Act'
with no reference to the actual Act being referred to, hence the need
to replace 'that Act' with 'the Norfolk Island Act 1979'.
The following provisions are amended:
. Environment Protection and Biodiversity Conservation Act 1999 -
Subsections 393(3) and 398(2)
Item 68
Freedom of Information Act 1982 - Subparagraph 4(3)(a)(iii)
This consequential amendment results from an amendment to s11(2) of the
NI Act which states that the Executive Council consists of the Chief
Minister and such other Ministers as are appointed by the Administrator
under s13 (see Item 20B). The amendment reflects the change in title
from 'Executive Members' to 'Chief Minister' and 'Ministers' in the NI
Act. The consequential amendment to the FOI Act is to reflect this
change in terminology.
Item 69
Hazardous Waste (Regulation of Exports and Imports) Act 1989 -
Subsection 42(4)
This consequential amendment removes the definition of Minister under
subsection 42(4) of the Hazardous Waste (Regulation of Exports and
Imports) Act 1989. This amendment reflects changes to sections 4(1),
11(2) and 13 of the NI Act. Minister under the NI Act means a 'Chief
Minister' or a 'Minister 'appointed under section 13 of the NI Act.
Subsection 42(4) of the Hazardous Waste (Regulation of Exports and
Imports) Act 1989 has been repealed because the definition of Minister
was inconsistent with the definition of Minister under the NI Act.
Items 71 and 74
These consequential amendments remove the phrase 'or executive member
(within the meaning of the Norfolk Island Act 1979)', replacing it with
the phrase 'Minister of Norfolk Island'. This change echoes the
adjustment in title under the NI Act from 'Executive Members' to 'Chief
Minister' and 'Ministers' in amended sections 4(1), 11(2) and 13 of the
NI Act. These consequential amendments reflect this change in
terminology
The following provisions are amended:
. International Criminal Court Act 2002 - Section 4 (paragraph (d) of the
definition of State Minister)
. International Transfer of Prisoners Act 1997 - Subsection 4(1)
(paragraph (b) of the definition of Territory Minister)
Items 72, 73, 75, 76 and 79
These consequential amendments remove the phrases 'or executive member'
and 'or executive member's' from the Acts below. This mirrors a change
in title under the NI Act from 'Executive Member's' to 'Chief Minister'
and 'Ministers' amended sections 4(1), 11(2) and 13 of the NI Act. In
practice, Norfolk Island Executive Members are generally referred to as
Members. These consequential amendments reflect this change in
terminology.
The following provisions are amended:
. International Criminal Court Act 2002 - Section 4 (definition of State
Minister),
. International Transfer of Prisoners Act 1997 - Subsection 4(1)
(definition of Territory Minister)
. Remuneration Tribunal Act 1973 - Paragraph 3(4)(jaa)
Item 77
National Health Security Act 2007 - Subsection 3(1) (paragraph (d) of
the definition of State or Territory Health Minister)
This consequential amendment removes paragraph (d) of the definition of
the 'State or Territory Health Minister', replacing it with the phrase
'the Minister of Norfolk Island.' The deletion of this paragraph
removes the phrase 'executive member'. This reflects the terminology
change under the NI Act from 'Executive Member' to 'Ministers' and
'Chief Minister' (ss 4(1), 11(2) & 13).
Item 78
Privacy Act 1988 - Subsection 6C(3) (subparagraphs (d)(vi) and (f)(vi)
of the definition of State or Territory authority)
This consequential amendment reflects the change in terminology in the NI
Act from an 'Executive Member' to 'Chief Minister' and 'Minister'. The
consequential amendment to the Privacy Act removes references to 'a person
holding an executive office mentioned in section 12 of the Norfolk Island
Act 1979'. There is no need to insert any replacement provisions in the
Privacy Act on the basis that a NI Minister will be included in the
existing reference to 'a State or Territory Minister' at subparagraphs
6C(3)(d)(v) and 6C(3)(f)(v).
Part 2 - Amendments relating to elections
Division 1 - Dates for Elections
Norfolk Island Act 1979
Item 80 - Subsection 35(2)
Subsection 35(2) stipulates the maximum time before the term of the
Norfolk Island Legislative Assembly expires or must be dissolved. Item
80 amends subsection 35(2) to provide for a minimum term of three years
and a maximum term of four years. This amendment intends to provide
stability to Norfolk Island's electoral system and assist the Norfolk
Island Government in implementing its legislative program. The
amendment will give effect to recommendation 23 of the Joint Standing
Committee on the National Capital and External Territories in its 2003
report on the Inquiry into Governance on Norfolk Island, Quis custodiet
ipsos custodes?
Item 81 - At the end of section 35
Item 81 inserts new subsection 35(3) which sets out exceptions to the
new requirements in subsection 35(2) (see Item 80) regarding the
minimum and maximum time for the term of the Norfolk Island Legislative
Assembly. Subsection 35(3) is necessary to supplement amendments under
this Act which insert new sections 39AB and 39AC (see Item 39). New
section 39AB enables the Commonwealth Minister who administers the NI
Act to dissolve the Legislative Assembly where it has passed a
resolution of no confidence in the Chief Minister and where the
Legislative Assembly has not nominated a new Chief Minister within 10
days. New section 39AC enables the Governor-General to dissolve the
Legislative Assembly where, in the opinion of the Governor-General, it
is incapable of effectively performing its functions or is conducting
its affairs in a grossly improper manner.
The new subsection 35(3) provides that where an election is required as
a result of the application of section 39AB or 39AC then that election
may be held within the minimum term stipulated by section 35(2).
Part 2 - Amendments relating to elections
Division 2 - Other matters
Norfolk Island Act 1979
Item 82 - Subsection 31(3)
Item 82 enables the making of regulations prescribing the electoral
system to be used in Norfolk Island Legislative Assembly elections and
the filling of casual vacancies. This will give effect to the need for
electoral reform identified by the Joint Standing Committee on the
National Capital and External Territories in its 2003 report on the
Inquiry into Governance on Norfolk Island, Quis custodiet ipsos
custodes?
Item 83 - At the end of section 31
Item 83 inserts new subsections 31(4) and (5) into the NI Act. The new
subsections enable the method and manner in which votes are to be cast
and counted in Norfolk Island Legislative Assembly elections, as well
as the filling of casual vacancies, to be determined via regulations.
The use of regulations will allow flexibility in determining an
electoral system that best suits the community of Norfolk Island. The
new subsections also allow scope for matters related to the electoral
system that are yet to be considered to be determined at a later time
via regulations.
Item 84 - Section 37
Item 84 repeals existing section 37 of the NI Act, which deals with the
filling of casual vacancies in the Norfolk Island Legislative Assembly.
The insertion of the new subsection 31(5) (see Item 83), which enables
the making of regulations providing for the filling of casual
vacancies, makes section 37 unnecessary.
Item 85 - Before section 38
Item 85 inserts section 37A. This new section enables the Norfolk
Island Government to make arrangements with the Australian Electoral
Commission to conduct general elections on their behalf, as well as the
filling of casual vacancies. This amendment will give effect in part
to recommendation 26 of the Joint Standing Committee on the National
Capital and External Territories in its 2003 report on the Inquiry into
Governance on Norfolk Island, Quis custodiet ipsos custodes?
Item 86 - Application of amendments
Item 86 limits the application of the amendments in this Division to
general elections where the writs were issued after the commencement of
this clause. Item 86 similarly limits the application of amendments in
relation to filling casual vacancies. The delay in application will
enable consultation with the Norfolk Island Legislative Assembly,
Administration and community on the regulations supporting the
electoral reform.
Part 3 - Amendments relating to finance
Item 86A - Subsection 4(1) (definition of accounts of the Territory)
Item 86A repeals the existing definition of accounts of the Territory
in section 4(1) of the NI Act.
The definition formerly fed into the former section 51C, which is now
being repealed by item 112. As such, the definition of this term is no
longer required in the Act.
Item 86B - Subsection 4(1) (definition of Auditor)
Item 86B repeals the existing definition of Auditor in subsection 4(1)
of the NI Act.
The amendments to the NI Act provide for the Commonwealth Auditor-
General to commence audits for Norfolk Island in accordance with new
section 48C (see item 110). As a result of these amendments, the
definition of this term is no longer required.
Item 87 - Subsection 4(1)
Item 87 adds a definition of Chief Executive Officer to subsection
4(1).
The Chief Executive Officer has the same meaning as in the Public
Sector Management Act 2000 (NI). The term Chief Executive Officer was
not previously defined or referred to in the NI Act. However, under
the new financial framework in Part VI of the NI Act, obligations will
be imposed on the Chief Executive Officer.
Item 88 - Subsection 4(1)
Item 88 adds a definition of Commonwealth Finance Minister's Orders to
subsection 4(1).
Under the new financial framework in Part VI of the NI Act, the
Commonwealth Finance Minister will be able to make Orders under section
48T to clarify financial requirements, for example in relation to the
preparation of financial statements. Financial statements are prepared
in accordance with accounting standards. As accounting standards
change from time to time, the Orders will need to be consistently re-
issued. Specifying these financial requirements in the form of
regulations would require considerable additional time, expense and
inflexibility. It is therefore common practice to set these financial
requirements in Finance Minister's orders. The Commonwealth, all
Australian states, New Zealand, United Kingdom, Canada, United States
of America and South Africa all set these rules in orders or standards
rather than regulations.
Item 89 - Subsection 4(1)
Item 89 adds a definition of Commonwealth Financial Officer for Norfolk
Island to subsection 4(1).
The Commonwealth Financial Officer for Norfolk Island means the
Commonwealth Financial Officer for Norfolk Island appointed under
regulations made for the purposes of section 51D. Section 51D is a new
section, inserted by item 112. The inclusion of the definition makes
it clear that the Commonwealth Financial Officer is appointed in
accordance with section 51D and the regulations.
Items 90 & 91- Subsection 4(1)
Item 90 adds a definition of Federal Court to subsection 4(1). Item 91
adds a definition of financial management and accountability provisions
to subsection 4(1).
These definitions are introduced to help clarify when and where an
injunction may be obtained by the responsible Commonwealth Minister
under new section 51E, if a person has engaged or is engaging, or is
proposing to engage, in any conduct that contravenes the specified
provisions of Part VI of the NI Act.
Items 94, 104 and 106 - Sections 4(1) and 47
Item 94 adds a definition of Public Account of Norfolk Island to
subsection 4(1).
Items 104 and 106 make consequential changes to clarify that references
to an Account in subsection 47(4) and (5) are references to the Public
Account of Norfolk Island.
This new term is inserted to clarify that the Public Account of Norfolk
Island is the account established under subsection 47(1) as amended by
this Act.
Items 95, 96, 101, 103, 105, 105A, 107, 107A, 108, and 109- Sections
4(1), 25, 27, 47, and 48
Items 95 and 96 repeal and replace the definition of public moneys of
the Territory with public money of the Territory in subsection 4(1).
As a consequence of the change of term, items 101, 103, 105, 105A, 107,
107A, 108 and 109 replace existing references in the NI Act to 'public
moneys' with 'public money' and to 'moneys' with 'money'.
The purpose of the new definition of public money of the Territory is
to clarify the money of the Territory that will be covered by the new
financial framework in Part VI of the NI Act. The definition, which is
modelled on the corresponding definition in section 5 of the Financial
Management and Accountability Act 1997 (Cth), includes all money in the
custody or under the control of the Administration, or in the custody
or under the control of a person acting for or on behalf of the
Administration in respect of the custody or control of the money. The
definition includes money that is held on trust for, or otherwise for
the benefit of, a person other than the Administration. The definition
does not include money in the Norfolk Island Provident Account, as
established under the Provident Account Act 1958 (NI).
Item 97 - Subsection 4(1)
Item 97 adds a definition of public property of the Territory to
subsection 4(1).
Prior to these amendments, the NI Act did not contain a definition of
public property of the Territory. Public property of the Territory is
defined to ensure that the financial provisions in Part VI of the NI
Act cover all property in the custody or under the control of the
Administration, or in the custody or under the control of a person
acting for or on behalf of the Administration in respect of the custody
or control of the property. The definition includes property that is
held on trust for, or otherwise for the benefit of, a person other than
the Administration. The definition of public property of the Territory
is modelled on the corresponding definition in section 5 of the
Financial Management and Accountability Act 1997 (Cth).
Item 92 & 93 - Subsection 4(1)
Item 92 adds a definition of money of a Territory authority to
subsection 4(1). Item 93 adds a definition of property of a Territory
authority to subsection 4(1).
The proposed new definitions of public money of the Territory and
public property of the Territory do not include money or property in
the custody of, or belonging to a Territory authority. The definitions
of money of a Territory authority and property of a Territory authority
are added to provide a complete picture of the Norfolk Island
Government's financial position. By adding these definitions to
subsection 4(1), money or property in the custody or under the control
of a Territory authority, or in the custody or under the control of a
person acting for or on behalf of a Territory authority is subject to
the new financial framework in Part VI of the NI Act.
Item 92A - Subsection 4(1)
Item 92A adds a definition of performance audit to subsection 4(1).
The new term has the same meaning as in the Auditor-General Act,
whereby in relation to a person or body, it means a review or
examination of any aspect of the operations of the person or body.
Item 98 - Subsection 4(1)
Item 98 adds a definition of responsible manager to subsection 4(1).
The new term is introduced to identify the person responsible for the
finances of the Territory authority for the purpose of the new
financial framework in Part VI of the NI Act. The definition of
responsible manager means the most senior individual (or group of
individuals - where the body has a governing council) with the body who
(or which) is responsible for the operation and finances for the
Territory Authority.
Items 99 and 102 - Subsection 4(1) and section 46
Items 99 and 102 remove the definition of Territory authority from
section 46 and add a new definition to subsection 4(1).
Prior to these amendments, the NI Act contained a narrow definition of
Territory authority in section 46.
The new definition of Territory authority will clarify which entities,
other than the Administration, are also subject to the new financial
framework in Part VI of the NI Act.
The definition of Territory authority includes:
a) a body corporate established for a public purpose by or under an
enactment;
This part of the definition is modelled on the definition of
Commonwealth authority in s7(1)(a) of the Commonwealth Authorities and
Companies Act 1997 (Cth). It is intended to capture statutory
authorities created for a public purpose, by or under an enactment, as
these entities are legally separate from the Administration and may
not otherwise fall within the new financial framework in Part VI of
the NI Act.
Currently, two statutory authorities are created by Norfolk Island
enactment, legally separate from the Norfolk Island Administration -
the Norfolk Island Hospital Enterprise, established by the Norfolk
Island Hospital Act 1985 (NI) and the Norfolk Island Government
Tourist Bureau, established by the Norfolk Island Government Tourist
Bureau Act 1980 (NI). These two statutory authorities would be
covered by paragraph (a) of the definition of 'Territory authority'.
b) a body, entity, organisation or group of persons specified in the
regulations; and
c) a body corporate in which the Administration or another Territory
authority has a controlling interest.
This part of the definition is inserted in order to capture a body
corporate, created under the Companies Act 1985 (NI) or otherwise,
controlled by the Administration or another Territory authority. The
concept of a 'controlling interest' is analogous to the meaning of
'controls' set out in subsections 34(1A)-(1C) of the Commonwealth
Authorities and Companies Act 1997 (Cth). A Territory authority that
is captured by paragraph (a) of the definition i.e. a body corporate
established for a public purpose by or under an enactment, is not
subject to the 'controlling interest' test in paragraph (c) of the
definition.
For the purposes of the definition, entity has the same meaning as in
the Income Tax Assessment Act 1997 (Cth), but does not include an
individual.
Items 100 and 100A - Section 25
Item 100 replaces the words 'the object or effect of which is to
dispose of or charge any public moneys of the Territory' with 'for the
appropriation of public money of the Territory', reinforcing the
concept of an appropriation within the NI Act. Item 100A includes a
note to refer to section 48, which deals with withdrawals from the
Public Account of Norfolk Island.
This amendment is consequential to amendments made at items 108A and
108B.
Item 102A - Before section 47
Item 102A inserts a new heading, called Division 1 - Public Account of
Norfolk Island. The new heading is necessary to ensure a logical
structure to the Part.
Items 108A and 108B - Section 48
Item 108A amends section 48 by replacing the words 'enactment'
(wherever occurring) with 'an appropriation made by enactment'. Item
108B includes a note to refer to section 25, which deals with proposal
of money Bills.
The purpose of this amendment is to clarify, beyond any potential
doubt, that there is a need for appropriations to be made by the
Legislative Assembly to support any expenditure by the Norfolk Island
government (including Ministers and the Administration).
Appropriations need to support any payments of money, including money
held on trust by the Administration for another person or any money
held on trust by another person for Norfolk Island Government.
Appropriations are also needed for any expenditure, including
(consistent with subsection 47(4) of the Act) payments made in relation
to investment activities (to the extent that investments are authorised
by an enactment, as required already by subsection 48(2) of the Act).
By analogy, at the national level, the need for a comprehensive need
for appropriations to support any expenditure is consistent with
sections 81 and 83 of the Australian Constitution and subsection 27(5)
of the Financial Management and Accountability Act 1997 (which
clarifies that no drawing rights to support payments of public money
are valid unless supported by an appropriation).
These provisions are an important element of the fundamental
recognition of the primacy of the legislature over the executive, and
in particular, any activities involving the payment of public money.
Item 110 - After section 48
Item 110 inserts a new heading, called Division 2 - Financial
Management and Accountability. The new heading is necessary to ensure a
logical structure to the Part.
Item 110 inserts the following new sections, which add to the existing
financial provisions in Part VI of the NI Act, providing part of the
financial framework for Norfolk Island. These provisions may be
supplemented through the provision of regulations and orders made under
the NI Act.
Section 48A
New section 48A requires the Norfolk Island Minister for Finance to
prepare annual budgets for the Administration and Territory
authorities. These annual budgets must be prepared in accordance with
regulations and Orders made under the NI Act.
An example of matters on which regulations or Orders may be made
include what information is required to be presented in the annual
budgets, the forward estimate period, timing of preparation etc.
As soon as practicable after the annual budgets are prepared, the
Norfolk Island Minister for Finance must:
i) cause a copy of each annual budget to be tabled in the Norfolk Island
Legislative Assembly; and
ii) provide a copy of each annual budget to the Administrator.
As soon as practicable after receiving a copy of an annual budget, the
Administrator must send it to the responsible Commonwealth Minister.
Section 48B
New section 48B imposes an obligation on the Norfolk Island Minister
for Finance to prepare annual financial statements for the
Administration and Territory authorities. Annual financial statements
must be prepared in accordance with regulations and Orders, as soon as
practicable after the end of the financial year.
Section 48B also requires the Norfolk Island Minister for Finance to
give the annual financial statements to the Commonwealth Auditor-
General as soon as practicable after they are prepared. If they are
not provided within 5 months after the end of the financial year,
subsection 48B(4) requires the Norfolk Island Minister for Finance to
table a statement of reasons in the Norfolk Island Legislative
Assembly.
Section 48C
New section 48C requires the Commonwealth Auditor-General to prepare an
audit report on the annual financial statements required under section
48B. The Commonwealth Auditor-General must provide a copy of the audit
report to the Norfolk Island Minister for Finance, the Administrator
and the responsible Commonwealth Minister.
The Norfolk Island Minister for Finance must table a copy of that audit
report in the Norfolk Island Legislative Assembly, accompanied by the
annual financial statements, as soon as practicable after receiving it.
The responsible Commonwealth Minister must cause a copy of the audit
report to be tabled in each House of the Parliament as soon as
practicable.
The inclusion of this section was recommended by the Joint Standing
Committee on the National Capital and External Territories in the 2003
report on the Inquiry into Governance on Norfolk Island, Quis custodiet
ipsos custodies? The change was recommended to enable Norfolk Island
to benefit from the Commonwealth Auditor-General's existing experience
and expertise enabling the provision of a high standard of reporting.
Section 48C is modelled on section 56 of the Financial Management and
Accountability Act 1997 (Cth).
Section 48D
New section 48D enables the Commonwealth Auditor-General to charge
audit fees for statement audits made under section 48C (item 110). This
is consistent with generally accepted commercial practice. The fees are
to be calculated based on a scale of fees determined by the Auditor-
General. The Auditor-General is to disclose, in the annual report of
the office, details of how the scale (or scales) of fees that applied
during the year being reported on were determined.
Audit fees are to be payable to the Auditor-General 30 days after issue
of a payment claim and fees may be claimed and payable by instalment.
Unpaid fees may be recovered in a court with the legal capacity to
pursue debts of the Commonwealth.
Section 48D is modelled on section 14 of the Auditor-General Act.
Section 48E
New section 48E allows the Commonwealth Auditor-General to conduct
performance audits of the Administration and Territory authorities.
The Commonwealth Auditor-General must provide a copy of the report to
the Norfolk Island Minister for Finance, the Administrator and the
responsible Commonwealth Minister.
The Auditor-General must cause reports on performance audits under this
section to be tabled in each House of the Parliament. The Norfolk
Island Minister for Finance must table a copy of that report in the
Norfolk Island Legislative Assembly as soon as practicable after
receiving it. The responsible Commonwealth Minister must cause a copy
of the report to be tabled in each House of the Parliament as soon as
practicable.
A copy of each performance audit report must also be supplied to the
Chief Executive Officer where the Administration was the subject of the
audit, or to the responsible manager or managers of a Territory
authority where that authority was the subject of the audit.
The inclusion of this section was recommended by the Joint Standing
Committee on the National Capital and External Territories in the 2003
report on the Inquiry into Governance on Norfolk Island, Quis custodiet
ipsos custodies? The change was recommended to enable Norfolk Island
to benefit from the Commonwealth Auditor-General's existing experience
and expertise enabling the provision of a high standard of reporting.
Section 48F
New section 48F requires the Commonwealth Auditor-General to seek
comments on proposed reports required under section 48E (item 110).
Where the Administration was the subject of the audit, the Auditor-
General must provide the Chief Executive Officer with a copy of the
proposed report. Where a Territory authority was the subject of the
audit, the Auditor-General must provide the responsible manager or
managers with a copy of the proposed report. Comments are required
within a specified time.
The purpose of this clause is to ensure that auditees and other persons
considered by the Auditor-General to have a special interest have the
opportunity to review all proposed reports arising from a performance
audit. Recipients of proposed reports have 28 days to respond to the
Auditor-General on the proposed report. Confidentiality requirements of
Part 5, Division 2 of the Auditor-General Act apply, and under
subclause 36(3) of that Act, recipients must not disclose information
in the reports except as authorised by the Auditor-General.
Section 48F is modelled on section 19 of the Auditor-General Act.
Section 48G
New section 48G provides that the Auditor-General Act applies to audits
by the Auditor-General under the NI Act. Provisions within this section
extend certain parts of the Auditor-General Act to the NI Act where
these parts would not otherwise apply. This section means that the
Auditor-General has all of the powers and functions necessary to
undertake his or her obligations under the NI Act.
Section 48H
New section 48H requires the Norfolk Island Minister for Finance to
prepare periodic financial statements in relation to the Administration
and each Territory authority. The financial statements must be
prepared in accordance with regulations and Orders made under the NI
Act.
Matters which may be prescribed by regulations or Orders include a time
period for preparation, as well as the frequency with which the
statements are to be prepared e.g. monthly, quarterly etc.
As soon as practicable after the statements are prepared, the Norfolk
Island Minister for Finance must:
i) cause a copy of the statements to be tabled in the Norfolk Island
Legislative Assembly; and
ii) provide a copy of the statements to the Administrator.
As soon as practicable after receiving a copy of the statements, the
Administrator must send it to the responsible Commonwealth Minister.
Section 48J
New section 48J requires the Chief Executive Officer (defined under
subsection 4(1)) to prepare annual reports as soon as practicable after
the end of each financial year. The annual report must be prepared in
accordance with regulations, and must report on the operations of the
Administration and Territory authorities in that financial year. A
copy of the annual report must be given to the Norfolk Island Chief
Minister, who, as soon as practicable after receiving it must:
i) table a copy of the annual report in the Norfolk Island Legislative
Assembly, and
ii) provide a copy of the annual report to the Administrator.
As soon as practicable after receiving a copy of the report, the
Administrator must send it to the responsible Commonwealth Minister.
The inclusion of this section was recommended by the Joint Standing
Committee on the National Capital and External Territories in the 2003
report on the Inquiry into Governance on Norfolk Island, Quis custodiet
ipsos custodies? The change was recommended on the basis of the
'fundamental importance of public reporting to the people of Norfolk
Island and the Commonwealth'.
New sections 48K and 48L
New sections 48K and 48L provide for the CEO and/or the Minister for
Finance to request, by written notice, a Territory authority to provide
information in order to prepare the reports and statements required to
be produced by them under the NI Act.
The sections require a Territory authority to comply with the request
within the period specified in the request. The request may also
specify the manner and form the information must be provided in. The
responsible manager or managers of a Territory authority must comply
with the request to the extent that the responsible manager or managers
are capable.
Section 48K applies to reports and statements required under sections
48A, 48H, or 48B.
Section 48L applies to reports and statements required under section
48J.
Section 48M
New section 48M places an obligation on the Chief Executive Officer
(defined under subsection 4(1)) to ensure that he or she manages the
affairs of the Administration in a way that promotes the proper use of
Administration resources.
Subsection 48M(2) provides that in fulfilling his or her obligations
under section 48M, the Chief Executive Officer must comply with the NI
Act, the regulations, the Commonwealth Finance Minister's Orders and
any other law. Subsection 48M(3) defines the term 'proper use', for
the purposes of section 48M as 'efficient, effective and ethical use
that is not inconsistent with the policies of the Administration.'
This section is modelled on existing obligations placed on Chief
Executives of Commonwealth agencies under section 44 of the Financial
Management and Accountability Act 1997 (Cth). This section, like the
Commonwealth provision, may lead to further regulations being made,
under sections 48R, in relation to commitments to spend public money of
the Territory.
Section 48N
New section 48N places an obligation on the responsible manager or
managers of a Territory authority (defined under subsection 4(1)) to
ensure that he or she manages the affairs of the Territory authority in
a way that promotes the proper use of the Territory authority's
resources. This section is modelled on existing obligations placed on
Chief Executives of Commonwealth agencies under section 44 of the
Financial Management and Accountability Act 1997 (Cth)
and is intended to operate in the same manner as the obligations
imposed on the Chief Executive Officer under the new section 48M.
Subsection 48N(2) provides that in fulfilling his or her obligations under
section 48N, the responsible manager or managers must comply with the NI
Act, regulations, the Commonwealth Finance Minister's Orders and any other
law. Subsection 48N(3) defines proper use as efficient, effective and
ethical use that is not inconsistent with the policies of the
Administration. The effect of this is to require Territory authorities to
follow the same financial policies as the Administration.
Section 48P
New subsection 48P(1) requires the Norfolk Island Minister for Finance
to ensure that the accounts and records of the Administration properly
record and explain the transactions and financial position of the
Administration.
New subsection 48P(2) requires the Norfolk Island Minster for Finance
to ensure that these accounts and records are prepared and kept in
accordance with regulations and Orders made under the NI Act.
Accounts and records will also be required to be kept for a specified
period of time, to be proscribed in the regulations or Orders.
Section 48Q
New subsection 48Q(1) requires the responsible manager or managers to
ensure that the accounts and records of a Territory authority properly
record and explain the transactions and financial position of that
Territory authority.
New subsection 48Q(2) requires the responsible manager or managers to
ensure that these accounts and records are prepared and kept in
accordance with regulations and Orders made under the NI Act.
Accounts and records will also be required to be kept for a specified
period of time, to be proscribed in the regulations or Orders.
Section 48R
New section 48R provides for regulations to be made in relation to
public money and public property of the Territory, and other resources
of the Administration. This provision allows the Commonwealth to
prescribe regulations to supplement and provide further detail of the
financial framework provisions in Part VI of the NI Act.
New sub-section 48R(2) identifies a non-exhaustive list of matters for
which regulations may be made. This includes the control and
management of public money and public property of the Territory, grants
of public money of the Territory, financial and accounting systems, the
procurement of goods and services, the disposal of public property and
the audit of annual financial statements.
Subsection 48R(3) specifies that regulations may also provide for the
proper use and management of, and proper accountability for the use and
management of public money and public property of the Territory, and
other resources of the Administration.
Importantly, the specification of matters under subsections 48R(2) and
(3) do not otherwise limit the Commonwealth's power to make regulations
for the purposes of subsection 48R(1).
An example of a regulation that may be made under this section could be
a requirement for the Administration to establish an internal audit
committee.
It is expected that any regulations to be made under this section will
be made following consultation with the Norfolk Island Government.
Section 48S
New section 48S provides for regulations to be made in relation to
money, property and other resources of Territory authorities (defined
under subsection 4(1)). This provision allows the Commonwealth to
prescribe regulations to supplement and provide further detail of the
financial framework provisions in Part VI of the NI Act and ensures
that this financial framework extends to Territory authorities.
New sub-section 48S(2) identifies a non-exhaustive list of matters for
which regulations may be made. This includes the control and
management of money and property of a Territory authority, grants of
money of a Territory authority, financial and accounting systems,
procurement of goods and services, the disposal of property of a
Territory authority and the audit of annual financial statements.
Subsection 48S(3) specifies that regulations may also provide for the
proper use and management of, and proper accountability for the use and
management of money and property of a Territory authority, and other
resources of a Territory authority.
Importantly, the specification of matters under subsections 48S(2) and
(3) do not otherwise limit the Commonwealth's power to make regulations
for the purposes of subsection 48S(1).
This section operates in respect of Territory authorities in
substantially the same manner as section 48R provides the Commonwealth
with financial regulation-making powers in respect of the
Administration.
An example of a regulation that may be made under this section could be
a requirement on Territory authorities to establish internal audit
committees.
It is expected that any regulations to be made will be made following
consultation with the Norfolk Island Government.
Section 48T
New section 48T allows the Commonwealth Finance Minister to make Orders
in order to supplement and provide further detail of the financial
framework provisions in Part VI of the NI Act. These Orders may be
made on any matter on which regulations may be made for the purposes of
subsection 48T(1) or subsection 48S(1). Subsection 48T(3) explicitly
states that if an enactment is inconsistent with the Orders, the
enactment has no effect to the extent of the inconsistency.
An example of an Order that may be made under this section could be
further detailed requirements on the preparation of annual and periodic
financial statements.
It is expected that any Orders to be made under this section will be
made following consultation with the Norfolk Island Government.
Item 111 - Before section 49
Item 111 inserts a new heading, called Division 3 - Borrowing etc. The
new heading is necessary to ensure a logical structure to the Part.
Item 112 - Sections 51, 51A, 51B, 51C, 51D, 51E, 51F and 51G
Item 112 repeals sections 51, 51A, 51B, 51C, 51D, 51E, 51F and 51G. The
repealed sections related to audit provisions, which are amended at
Item 110.
Item 112 inserts a new heading, called Division 4 - Commonwealth
Ministers to be kept informed.
The new heading is necessary to ensure a logical structure to the Part.
Item 112 inserts the following sections under the new heading.
Section 51
New section 51 requires the Norfolk Island Minister for Finance to
provide to the responsible Commonwealth Minister reports, documents and
information relating to the operations of the Administration. These
are to be provided on request, in accordance with time limits set by
the responsible Commonwealth Minister. The report, document or
information provided to the Commonwealth Minister under this section
must be relevant to Part VI of the NI Act, regulations made for the
purposes of Part VI of the NI Act, or the Commonwealth Finance
Minister's Orders.
Section 51 is modelled on paragraph 44A(1)(b) of the Financial
Management and Accountability Act 1997 (Cth).
Section 51A
New section 51A requires the Norfolk Island Minister for Finance to provide
to the Commonwealth Finance Minister reports, documents and information
relating to the operations of the Administration. This section provides
the Commonwealth Finance Minister with the same authority to access
relevant documents and information as the responsible Commonwealth Minister
under section 51 (detailed above) and also supports the Commonwealth
Finance Minister's duties in Part VI of the NI Act in particular under
sections 49, 50 and 50A.
It is expected that the Commonwealth Finance Minister will only exercise
his power in consultation with the responsible Commonwealth Minister.
Section 51B
New Section 51B requires the Norfolk Island Minister for Finance to
provide to the responsible Commonwealth Minister reports, documents and
information relating to the operations of a Territory authority. These
are to be provided on request and in accordance with time limits set by
the responsible Commonwealth Minister. The report, document or
information provided to the Commonwealth Minister under this section
must be relevant to Part VI of the NI Act, regulations made for the
purposes of Part VI of the NI Act, or the Commonwealth Finance
Minister's Orders. The section is intended to operate in the same
manner as new section 51.
Section 51B is modelled on paragraph 44A(1)(b) of the Financial
Management and Accountability Act 1997 (Cth).
Section 51C
New section 51C requires the Norfolk Island Minister for Finance to
provide to the Commonwealth Finance Minister reports, documents and
information relating to the operations of a Territory authority. This
section provides the Commonwealth Finance Minister with the same
authority to access relevant documents and information as the
responsible Commonwealth Minister under section 51B (detailed above).
This section is intended to operate in the same manner as new
section 51A and also supports some of the Commonwealth Finance
Minister's duties under the NI Act including those found under sections
49, 50 and 50A.
It is expected that the Commonwealth Finance Minister will only exercise
his power in consultation with the responsible Commonwealth Minister.
Division 5
Item 112 inserts a new heading, called Division 5 - Commonwealth
Financial Officer for Norfolk Island. The new heading is necessary to
ensure a logical structure to the Part. Section 51D is inserted under
the new heading.
Section 51D
New section 51D enables the appointment of a Commonwealth Financial
Officer for Norfolk Island. The Commonwealth Financial Officer for
Norfolk Island must be appointed by the Governor-General, and will hold
office at his or her pleasure.
The Commonwealth Financial Officer for Norfolk Island will have access
to all relevant financial accounts, records, documents and information
related to the Administration or a Territory authority. Additional
functions and powers may be prescribed by regulation.
The Commonwealth Financial Officer is intended to be an optional
appointment, to be made at the discretion of the Governor-General. It
is intended that such an appointment may be made in the event that the
Governor-General is of the view that Norfolk Island would benefit from
Commonwealth assistance, for example in the implementation of the
financial framework obligations under this Part of the NI Act.
Division 6
Item 112 inserts a new heading, called Division 6 - Injunctions. The
new heading is necessary to ensure a logical structure to the Part.
Section 51E will appear under the new heading.
Section 51E provides a power for the responsible Commonwealth Minister
to apply for an injunction to enforce compliance with the financial
management and accountability provisions (defined in subsection 4(1)).
Under this section, the Federal Court of Australia may order an
injunction requiring a person to restrain from doing an action, or
compel a person to do an action, in order to comply with the financial
management and accountability provisions. This section also enables
the granting of an interim injunction, however it specifies that no
undertakings as to damages are to be made where the interim injunction
is granted.
In the case of a restraining action, an injunction may only be granted
where the person has previously engaged in conduct that contravenes the
financial management and accountability provisions, or where it appears
to the Court that the person will engage in conduct of that kind.
In the case of compelling a person to do an action, an injunction may
only be granted where the Court is satisfied the person has previously
refused or failed to do the action in contravention of the financial
management and accountability provisions, or if it appears to the Court
that it is likely the person will refuse or fail to do the action.
The section notes that the powers conferred on the Federal Court under
this section do not affect any other powers the Court may have under
this Act or otherwise.
Item 121 - Application - annual financial statements
Item 121 provides for the amended section 48B to apply in relation to
financial statements for the financial year beginning 1 July 2010 or a
later financial year.
It is not possible for the section to commence prior to 1 July 2010 as
the Administrator, on advice of the Norfolk Island Government has
already appointed an auditor for that financial year under the existing
section 51.
Item 121A - Application - annual reports
Item 121A provides for the new section 48J to apply in relation to
annual reports for the financial year beginning 1 July 2010 or a later
financial year.
Item 122 - Transitional - audit
Item 122 is a transitional provision which is inserted to ensure that
standards under which previous years have been audited, continue to
apply to those years and associated reports on inspections and audits.
This is limited to the financial year beginning 1 July 2009 or earlier,
as under the amended NI Act, the Commonwealth Auditor-General will
conduct audits from the year beginning 1 July 2010.
Item 122A - pre-commencement appropriation
Item 122A is a transitional provision which is inserted to ensure that
the issue or expenditure of money prior to the commencement of
amendments to section 48 is considered to have been authorised by an
appropriation made by an enactment.
Part 4 - Amendments relating to the Administration Appeals Tribunal
Administrative Appeals Tribunal Act 1975
Item 124 - Subsection 3(1)
Item 124 adds a definition of authority of Norfolk Island to subsection
3(1).
The authority of Norfolk Island means a body (incorporated or not)
established by a Norfolk Island enactment. A Norfolk Island enactment
is defined for the purposes of the AAT Act in subsection 3(1) (see Item
127).
Item 125 - Subsection 3(1) (paragraph (b) of the definition of
enactment)
Item 125 amends the definition of enactment at paragraph 3(1)(b).
Prior to amendment, the definition extended only to Norfolk Island
ordinances, but not to laws passed by the Norfolk Island Legislative
Assembly since the passage of the NI Act. In recognition of Norfolk
Island as a self-governing Territory, Item 125 excludes Norfolk Island
ordinances from the meaning of enactment. Norfolk Island enactment is
defined separately in subsection 3(1) (see Item 127) and includes
ordinances continued in force by the NI Act as well as those made by
the Governor-General under the NI Act.
Item 126 - Subsection 3(1) (at the end of the definition of enactment)
Item 126 inserts a note at the end of the definition of enactment in
subsection 3(1) which suggests that the definition should be read in
reference to subsection 25(8).
Not all references to enactment within the AAT Act to extend to a
Norfolk Island enactment. Therefore the definition of enactment does
not include a Norfolk Island enactment. The relationship between
enactment and Norfolk Island enactment is articulated at section 25 of
the AAT Act as amended by this Act. The note inserted by Item 126
ensures that in reading the definition of enactment for the purposes of
the AAT Act, the reader is alerted to the related provisions at
subsection 25(8). Subsection 25(8) specifies the circumstances in
which the AAT powers and procedures as provided for under the AAT Act
will apply to a Norfolk Island enactment in the same manner as it
applies to all other enactments (see Item 133).
Item 127 - Subsection 3(1)
Item 127 inserts a definition of Norfolk Island enactment into
subsection 3(1) of the AAT Act.
Norfolk Island enactment is defined by reference to the NI Act which at
section 4 provides:
enactment means:
a) a law (however described or entitled) passed by the Legislative
Assembly and assented to under this Act;
b) an Ordinance made by the Government-General under section 2 or in
pursuance of section 69; or
c) an Ordinance continued in force by this Act.
Norfolk Island enactment is not included in the definition of enactment
under subsection 3(1) of the AAT Act. The relationship between
enactment and Norfolk Island enactment and thus the application of the
provisions of the AAT Act is articulated at section 25 of that Act (see
Items 130-133).
Item 128 - Subsection 3(1)
Item 128 adds a definition of Norfolk Island Justice Minister to
subsection 3(1) of the AAT Act.
This definition is necessary to accommodate existing practice of the
division of portfolio responsibilities in the Norfolk Island
Government. There is no formal title of 'Justice Minister' or
'Attorney-General' in the Norfolk Island Government. Therefore, the
relevant Minister is appropriately identified in this definition by the
responsibilities of his or her office, in this case, the administration
of Norfolk Island.
Item 129 - Subsection 3(1)
Item 129 adds a definition of Norfolk Island Minister to subsection
3(1) of the AAT Act.
This definition is consequential to amendments to the NI Act which
provide for the change in title from 'Executive Members' to 'Chief
Minister' and 'Ministers' (see Items 8 and 23).
Item 130 - After subsection 25(1)
The AAT will not automatically have jurisdiction to review all
decisions under Norfolk Island enactments. Section 25 establishes the
authority of the AAT to review certain decisions. Item 130 inserts new
subsection 25(2) which provides authority to make regulations which
confer jurisdiction to the AAT to review decisions made under a Norfolk
Island enactment.
Item 131 - Subsection 25(3)
Subsection 25(3) identifies conditions and qualifications which may be
provided under relevant enactments in respect of applications to the
AAT for review of decisions. Item 131 clarifies that such conditions
may be applied to the review of decisions made in the exercise of
Norfolk Island enactments where provision for such review is made under
regulations pursuant to subsection 25(2) (see Item 130).
Item 132 - After subsection 25(5)
Item 132 inserts subsection 25(5A). This new subsection applies the
principles of existing subsection 25(5) to decisions made under Norfolk
Island enactments. Therefore, subsection 25(5A) provides that where,
pursuant to subsection 25(2), provision has been made in the
regulations for the Tribunal to review decisions made in the exercise
of powers conferred by a Norfolk Island enactment, then the failure of
the person to make a decision within the period prescribed by that
enactment, or another Norfolk Island enactment having effect under that
enactment, is taken to have the effect of the decision being made at
the conclusion of that prescribed period.
Item 133 - At the end of section 25
Item 133 inserts subsection 25(8) which establishes that where
provision has been made in the regulations for the Tribunal to review
decisions made in the exercise of powers conferred by a Norfolk Island
enactment (as provided for under subsection 25(2)), then the AAT Act
applies to that Norfolk Island enactment, and any other Norfolk Island
enactment in so far as it relates to that primary enactment, as if it
were an enactment within the meaning of the AAT Act.
The effect of subsection 25(8) is that where a Norfolk Island enactment
has been specified under the regulations, then the AAT powers and
procedures as provided for under the AAT Act will apply to that Norfolk
Island enactment in the same manner as it applies to all other
enactments as defined at subsection 3(1) of that Act. The intention is
to ensure the application of key provisions of the AAT Act to Norfolk
Island enactments, including sections 27, 27A, 43, 66 and 66A.
The extension of the application of the AAT Act to Norfolk Island
enactments is to ensure the availability of a high quality, independent
merits review for a range of administrative decisions under Norfolk
Island enactments (as provided under regulations) where review is
presently not available, or only available through the courts.
The amendment at subsection 25(8) recognises that it is not appropriate
for all references to enactment in the AAT Act to include both
Commonwealth and Norfolk Island enactments. The amendment clarifies
this by specifying a number of provisions in the AAT Act to which
subsection 25(8) does not apply and therefore in such provisions, the
term enactment will not include a Norfolk Island enactment.
Item 134 - Paragraph 26(1)(a)
Subsection 26(1) restricts the ability for a decision to be altered
once an application has been made to the Tribunal for the review of
that decision. Paragraph 26(1)(a) provides an exception to the general
prohibition on the alteration of such a decision in the event that the
enactment that authorised the making of the decision, also expressly
permits that decision to be altered. Item 134 inserts text into
paragraph 26(1)(a) which clarifies that the paragraph does not apply to
decisions authorised by regulations made for the purposes of subsection
25(2). That is, the paragraph does not apply to those decisions made
in the exercise of powers provided under Norfolk Island enactment as
provided for under the regulations.
Item 135 - After paragraph 26(1)(a)
Subsection 26(1) restricts the ability for a decision to be altered
once an application has been made to the Tribunal for the review of
that decision. Item 135 inserts new paragraph 26(1)(aa), which
provides an exception to the general prohibition on the alteration of a
decision. The exception applies in relation to decisions made in the
exercise of powers under Norfolk Island enactment as provided for under
the regulations pursuant to subsection 25(2). In such cases, the
decision may be altered after an application for review of the decision
has been made to the tribunal where the Norfolk Island enactment under
which the decision was made expressly permits that decision to be
altered. This paragraph complements the exception under existing
paragraph 26(1)(a), by extending the exception to decisions made under
Norfolk Island enactments.
Item 136 - Subsection 27(1)
Section 27 identifies the person or persons who have standing to make
an application to the AAT under the AAT Act for the review of a
decision. Subsection 27(1) specifies that the Commonwealth, or an
authority of the Commonwealth, may make such an application if its
interests are affected by the decision. Item 136 amends subsection
27(1) to provide that in addition to the Commonwealth, Norfolk Island,
or an authority of Norfolk Island, has standing to make an application
to the Tribunal for review of a decision where its interests are
affected. The inclusion of this provision is necessary in light of the
extension of the jurisdiction of the Tribunal to review decisions made
under powers conferred by Norfolk Island enactments, where it is
provided for under regulations.
Item 137 - At the end of subsection 27(1)
Item 137 inserts a note at the end of subsection 27(1). This note is
inserted to clarify the operation of subsection 27(1) to decisions made
under a Norfolk Island enactment. Pursuant to subsection 25(8), (Item
133), the use of enactment in subsection 27(1) does not include a
Norfolk Island enactment. Subsection 27(1) however does apply where
'any other enactment... provides that an application may be made to the
Tribunal for a review of a decision'. The note inserted at Item 137
makes clear that while the term enactment in this context does not
include a Norfolk Island enactment, it does include regulations made
under subsection 25(2) of the AAT Act for review of decisions made in
the exercise of powers conferred by a Norfolk Island enactment.
Item 138 - Paragraph 27A(2)(a)
Section 27A establishes the obligation on a person making a reviewable
decision to take reasonable steps to notify the person or persons whose
interests are affected by that decision. Subsection 27A(2) exempts
from that obligation those decisions which are deemed to have been made
under subsection 25(5), that is, where the decision maker has failed to
act within the period of time prescribed under the relevant enactment.
Item 132 inserts new subsection 25(5A) in the AAT Act which similarly
provides that a decision is deemed to be made in respect of failure to
act within a prescribed time period provided in a relevant Norfolk
Island enactment. In the same way then, Item 138 inserts a reference
to subsection 25(5A) into subsection 27A(2) to exempt decisions deemed
to have been made by the operation of subsection 25(5A) from the
obligation to provide notice under section 27A.
Item 139 - Paragraph 29(1)(d)
Section 29 provides for the manner in which an application for review
of a decision shall be made to the AAT. Paragraph 29(1)(d) requires
the application to be lodged with the Tribunal within the prescribed
time where the terms of the decision are recorded in writing and
provided to the applicant, or where the decision is deemed to have been
made by reason of the operation of subsection 25(5).
Item 139 amends 29(1)(d) to extend the application of the provision to
also require an application to be lodged with the Tribunal within the
prescribed time where the decision is deemed to be have been made by
operation of subsection 25(5A). Subsection 25(5A) (Item 132) provides
that a decision is deemed to be made in respect of failure to act
within a prescribed time period provided in a relevant Norfolk Island
enactment.
Item 140 - Subsection 29(3)
Subsection 29(3) stipulates the 'prescribed time' for an application
for review to the AAT for the purposes of paragraph 29(1)(d) where the
decision has been deemed to have been made by operation of 25(5).
Item 140 inserts wording to provide that subsection 29(3) also applies
to a decision which has been deemed to be made by operation of
subsection 25(5A). Subsection 25(5A) (Item 132) provides that a
decision is deemed to be made in respect of failure to act within a
prescribed time period provided in a relevant Norfolk Island enactment.
Item 141 - At the end of section 36B
Section 36B provides that where disclosure of a matter would be
contrary to the public interest, the State Attorney-General may issue a
public interest certificate. To extend the operation of this provision
to Norfolk Island, Item 141 inserts definitions of Attorney-General,
Cabinet, and State to be applied, for the purposes of section 36B, to
the specific circumstances of Norfolk Island.
Item 141 inserts a definition of State which includes Norfolk Island.
Additionally, the amendments recognise that the Norfolk Island
Government does not currently have a Minister with the title of
'Attorney-General' and inserts a definition of Attorney-General for the
purposes of Norfolk Island which describes the role by reference to the
responsibilities of his or her office, being the Norfolk Island Justice
Minister (defined at Item 128). The inclusion of this definition
ensures that the relevant Minister of the Norfolk Island Government is
authorised to issue certificates under section 36B in the same manner
as a State Attorney-General.
Item 141 further inserts a definition of Cabinet for the purposes of
Norfolk Island. The definition is defined in practical terms being a
body that consists of Norfolk Island Ministers and corresponds to the
Cabinet. The intention of this amendment is to provide that, where a
body of Norfolk Island Ministers meets in a manner that accords with a
Commonwealth or State Cabinet equivalent, then they are afforded the
same protection in respect of the AAT Act. This means that the
disclosure of deliberations or decisions of Cabinet or of a committee
of Cabinet in paragraph 36B(1)(a), includes deliberations or decisions
of the Norfolk Island Cabinet equivalent.
Item 142 - At the end of section 36C
Section 36C provides a State Attorney-General with the authority to
intervene in Tribunal proceedings on public interest grounds. Item 142
inserts the definitions of Attorney-General and State for the purposes
of this section and to be applied to the specific circumstances of
Norfolk Island.
Item 142 inserts a definition of State which includes Norfolk Island.
Additionally, the amendments recognise that the Norfolk Island
Government does not currently have a Minister with the title of
'Attorney-General' and inserts a definition of Attorney-General for the
purposes of Norfolk Island which describes the role by reference to the
responsibilities of his or her office, being the Norfolk Island Justice
Minister (defined at Item 128). The inclusion of this definition
ensures that the relevant Minister of the Norfolk Island Government has
the same authority as a State Attorney-General under section 36C to
intervene on public interest grounds.
Item 143 - At the end of section 36D
Section 36D sets out the procedure for the Tribunal's determination of
disclosure under section 36, subsection 36B(3), and paragraphs
36A(2)(b) and 36C(2)(b). This includes setting out the manner in which
the Attorney-General of the Commonwealth or a State may appear, or be
represented, at a Tribunal in order to inform the Tribunal of his or
her opinion under sections 36A or 36C (paragraph 36D(7)(a)).
Alternatively, the Attorney-General (Commonwealth or State) may inform
the Tribunal of his or her opinion through provision of a written
certificate (paragraph 36D(7)(b)).
Item 143 inserts a definition of State which includes Norfolk Island.
Additionally, the amendments recognise that the Norfolk Island
Government does not currently have a Minister with the title of
'Attorney-General' and inserts a definition of Attorney-General for the
purposes of Norfolk Island which describes the role by reference to the
responsibilities of his or her office, being the Norfolk Island Justice
Minister (defined at Item 128). The definitions are intended to ensure
that the relevant Minister of the Norfolk Island Government is afforded
the same rights and responsibilities under this provision as a State
Attorney-General.
Item 144 - At the end of subsection 43B(1)
Item 144 inserts a note at the end of subsection 43B(1). This note is
inserted to clarify the intended application of subsection 43B(1) to
decisions made under a Norfolk Island enactment. Pursuant to
subsection 25(8), as inserted at Item 133, the use of 'enactment' in
subsection 43B(1) does not include a Norfolk Island enactment.
Subsection 43B(1) provides that Part IVA of the AAT Act applies to
proceedings before the AAT under power conferred on it by or under 'an
enactment' (paragraph 43B(1)(a)). The note inserted at Item 144 makes
clear that while the term enactment in this context does not include a
Norfolk Island enactment, it does include regulations made under
subsection 25(2) of the AAT Act for review of decisions made in the
exercise of powers conferred by a Norfolk Island enactment.
Item 145 - Section 59
Item 145 inserts '(1)' at the start of section 59, to facilitate the
insertion of subsection 59(2) under Item 146.
Item 146 - At the end of section 59
Item 146 inserts new subsection 59(2) which enables the making of
regulations to enable the AAT to give an advisory opinion on a matter
or questions arising under a Norfolk Island enactment where so
referred. This provision extends the application of subsection 59(1)
(previously section 59) to Norfolk Island enactments, where
specifically provided for under regulations.
Item 147 - Subsection 66(4)
Section 66 provides protection against the disclosure of confidential
information under specified circumstances, including where the giving
of evidence (paragraph 66(1)(a)) or the production of the document
(paragraph 66(2)(a)) would be contrary to an order of the Tribunal in
force, under subsection 35(2), or under a similar provision of an
enactment other than this Act. Item 147 inserts an inclusive
definition of enactment for the purposes of this section, which
includes a Norfolk Island enactment.
Subsection 25(8) specifically provides that enactment will include a
Norfolk Island enactment under which reviewable decision may be made
where the regulations so provide. It does not however, extend this to
include other Norfolk Island enactments which have not been prescribed
under regulations. The definition of enactment for the purposes of
section 66 is expanded to include all Norfolk Island enactments and is
therefore not contingent on the making of regulations.
Item 148 - Subsection 66A
Item 148 inserts '(1)' at the start of section 66A, to facilitate the
insertion of subsection 66A(2) under Item 149.
Item 149 - At the end of section 66A
Section 66A outlines the application of confidentiality provisions in
Acts other than this Act. Item 147 inserts an inclusive definition of
enactment for the purposes of this section, which includes a Norfolk
Island enactment, as defined at Item 127. This means that the
reference to a provision 'of an enactment (other than this Act)' which
prohibits disclosure, includes a Norfolk Island enactment.
Subsection 25(8) specifically provides that enactment will include a
Norfolk Island enactment under which reviewable decision may be made
where the regulations so provide. It does not however, extend this to
include other Norfolk Island enactments which have not been prescribed
under regulations. The definition of enactment for the purposes of
section 66A is expanded to include all Norfolk Island enactments and is
therefore not contingent on the making of regulations.
Item 150 - Section 67A
Item 150 inserts '(1)' at the start of section 67A, to facilitate the
insertion of subsection 67A(2) under Item 152 .
Item 151 - Section 67A
Section 67A provides guidance about who may be given a notice required
or permitted under the AAT Act be given to 'a person who made a
decision'. Item 151 inserts '(other than a decision under a Norfolk
Island enactment)' after 'a decision' in the newly numbered subsection
67A(1) (see Item 150). The amendment is intended to make it clear that
subsection 67A(1) does not apply to decisions made under a Norfolk
Island enactment. The giving of notices in relation to decisions made
under a Norfolk Island enactment are dealt with through the insertion
of an additional subsection 67A(2) at Item 152.
Item 152 - At the end of section 67A
Section 67A provides guidance about who may be given a notice required
or permitted under the AAT Act be given to 'a person who made a
decision'. Item 152 inserts subsection 67A(2) which provides that in
relation to decisions made under a Norfolk Island enactment, such
notices may be given to the Chief Executive Officer. The Chief
Executive Officer is defined under the Public Sector Management Act
2000 of Norfolk Island as 'a person appointed as Chief Executive
Officer under section 38' of that Act.
In view of the relatively small size of the Norfolk Island public
sector, stipulating the Chief Executive Officer as the person to
receive notices under section 67A ensures greater efficiency in the
application of the section to Norfolk Island. Where appropriate, it
will be possible for the Chief Executive Officer to delegate his or her
powers and responsibilities to another officer, or officers, of the
Norfolk Island public service.
Part 5 - Amendments relating to freedom of information
Freedom of Information Act 1982
Item 153 - Subsection 3(1)
Section 3 of the FOI Act sets out the objectives of that Act, including
to 'extend as far as possible the right of the Australian community to
access to information in the possession of the Government of the
Commonwealth...'. Item 153 extends this primary objective to also
include community access to information in the possession of the
Government of Norfolk Island, by inserting the words 'or the Government
of Norfolk Island' into the provision.
The amendment reflects the overall objective of this Part of the
amending Bill, which is to ensure that the residents of Norfolk Island
have a right of access to the same information held by Norfolk Island
Government agencies as do all Australians in respect of Commonwealth
information.
Item 154 - Subsection 4(1) (definition of agency)
Item 154 amends the definition of agency in section 4(1) of the FOI Act
to include 'a Norfolk Island authority'. This amendment is
supplemented by Item 160 of the Bill which inserts a new definition of
Norfolk Island authority into the FOI Act.
Item 155 - Subsection 4(1)
Item 155 inserts an inclusive definition of Australia in section 4(1)
of the FOI Act which clarifies that when used in a geographical sense,
the term includes Norfolk Island.
Item 156 - Subsection 4(1) (definition of Cabinet)
Item 156 repeals the definition of Cabinet in section 4(1) of the FOI
Act, and inserts a new definition of Cabinet in relation to Norfolk
Island.
The amendment recognises the Norfolk Island Government structure which
does not have a 'Cabinet', and therefore in relation to Norfolk Island
Cabinet is defined in practical terms as being a body that consists of
Norfolk Island Ministers and corresponds to the Cabinet. The intention
of this amendment is to provide that where a body of Norfolk Island
Ministers meets in a manner that accords with a Commonwealth or State
Cabinet equivalent, then they are afforded the same rights,
responsibilities and protection in respect of the FOI Act.
Item 157 - Subsection 4(1) (paragraph (a) of the definition of
Commonwealth contract)
Item 157 amends the definition of Commonwealth contract in section 4(1)
of the FOI Act to extend the references to Commonwealth contracts to
include contracts to which the Norfolk Island Government (or authority)
is a party.
Item 158 - Subsection 4(1) (subparagraph (b)(iii) of the definition of
Commonwealth contract)
Item 158 amends the definition of Commonwealth contract in section 4(1)
of the FOI Act to extend the references under the Act to Commonwealth
contracts to also include contracts to which the Norfolk Island
Government (or authority) is a party.
Item 159 - Subsection 4(1)
Item 159 inserts a definition of Minister in section 4(1) of the FOI
Act which clarifies that a reference to 'Minister' in that Act includes
a Norfolk Island Minister. A new definition of Norfolk Island Minister
is inserted in the FOI Act under Item 162.
Item 160 Subsection 4(1)
Item 160 inserts a definition of Norfolk Island authority in subsection
4(1) of the FOI Act.
The amendment supplements the definition of agency, as amended by Item
154, to include a Norfolk Island authority. The amendment is intended
to facilitate the extension of the application of the FOI Act to the
Norfolk Island Public Sector (which includes the Norfolk Island Public
Service and Territory instrumentalities), bodies established and
persons appointed under Norfolk Island enactments for public purposes
and bodies and persons holding or performing the duties of an
appointment by the Administrator or a Norfolk Island Minister.
Item 161 - Subsection 4(1)
Item 161 inserts a definition of Norfolk Island enactment in subsection
4(1) of the FOI Act.
Norfolk Island enactment is defined by reference to the NI Act which at
section 4 provides:
enactment means:
a) a law (however described or entitled) passed by the Legislative
Assembly and assented to under this Act;
b) an Ordinance made by the Government-General under section 2 or in
pursuance of section 69; or
c) an Ordinance continued in force by this Act.
The definition also extends to 'an instrument (including rules,
regulations or by-laws) made under such an enactment'. To avoid doubt,
this definition also includes a Norfolk Island enactment as amended by
another Norfolk Island enactment.
Item 162 - Subsection 4(1)
Item 162 inserts a new definition of Norfolk Island Minister in
subsection 4(1) of the FOI Act.
This reflects the change in title of 'Executive Members' to 'Chief
Minister' and 'Ministers' in the NI Act (see Items 8 and 23). Item 162
supplements the definition of a Norfolk Island authority, as amended by
Item 160 to include a Norfolk Island Minister. The term is also
inserted into the definition of Minister by Item 159. The amendments
are intended to facilitate the extension of the application of the FOI
Act to Norfolk Island Ministers, where existing application had been
limited to Commonwealth Ministers.
Item 163 - Subsection 4(1) (at the end of the definition of principal
officer)
Item 163 inserts at the end of the definition of principal officer in
subsection 4(1) of the FOI Act an additional criterion which recognises
the structure of the Norfolk Island Government and Administration.
Item 163 provides that in relation to Norfolk Island, the principal
officer is the person holding, or performing the duties of, the office
of Chief Executive Officer. The Chief Executive Officer is defined
under the Public Sector Management Act 2000 of Norfolk Island as 'a
person appointed as Chief Executive Officer under section 38' of that
Act.
A principal officer is afforded a range of responsibilities under the
Act, some of which may be delegated to other officers (for example,
section 23 provides for delegation of the decision-making power in
relation to a request to an agency). In view of the relatively small
size of the Norfolk Island public sector, the Chief Executive Officer
of Norfolk Island is defined as the principal officer for the purposes
of the Act to enable efficiency in operation of the Act on Norfolk
Island.
Item 164 - Subsection 4(1) (at the end of paragraph (d) of the
definition of responsible Minister)
Subsection 4(1) of the FOI Act sets out the definitions of a number of
terms used in the Act. Item 164 amends 4(1) by inserting 'or' at the
end of paragraph (d) of the definition of responsible Minister. This
amendment facilitates the insertion of an additional paragraph to this
definition under Item 165.
Item 165 - Subsection 4(1) (after paragraph (d) of the definition of
responsible Minister)
Item 165 amends the definition of responsible Minister in subsection
4(1) of the FOI Act by inserting a new paragraph (e).
The amendment provides that in relation to Norfolk Island, the term
responsible Minister means the Chief Minister. The Chief Minister
position is a statutory position under the NI Act.
The responsible Minister is afforded a range of responsibilities under
the FOI Act some of which may be delegated to other officers (for
example, section 23 provides for delegation of the decision-making
power in relation to a request to an agency). In view of the
relatively small size of the Norfolk Island public sector, the Norfolk
Island Chief Minister is determined to be the responsible Minister for
the purposes of the FOI Act to enable its efficient operation.
Item 166 - After subsection 4(3)
Item 166 amends the FOI Act by inserting new subsections 4(3A) and
4(3B).
Subsection 4(3A) provides that unincorporated bodies of the sort
described in subsection 4(2), established by or in accordance with a
Norfolk Island enactment for the purpose of assisting or performing
functions connected with a Norfolk Island authority shall be considered
under the FOI Act to be part of that Norfolk Island authority, and not
a separate Norfolk Island authority itself. The provision ensures that
boards, councils and other bodies established under Norfolk Island
enactments to assist in performance of the functions of a Norfolk
Island authority, will not themselves be regarded as a Norfolk Island
authority (or agency) for the purposes of the FOI Act. A similar
limitation exists at subsection 4(2) for Commonwealth equivalents.
New paragraph 4(3B)(a) provides that a person shall not be taken to be
a Norfolk Island authority because he or she holds a specified office
listed in sub-paragraphs 4(3B)(i) to (iv) inclusive.
New paragraph 4(3B)(b) provides that a person shall not be taken to be
a Norfolk Island authority because he or she holds, or performs the
duties of: a prescribed office; an office of a member of a Norfolk
Island authority; an office established by a Norfolk Island enactment
for the purposes of a Norfolk Island authority; or an office the
duties of which are performed as duties of employment as an officer of
a Norfolk Island authority. The provision ensures the individuals are
not themselves regarded as a Norfolk Island authority (or agency) for
the purposes of the FOI Act. A similar limitation exists at paragraph
4(3)(b) for Commonwealth equivalents.
Item 167 - After section 4A
Item 167 inserts new section 43B into the FOI Act. Section 43B
explicitly confirms that the FOI Act extends to Norfolk Island. This
ensures that the Act applies to Norfolk Island by complying with
section 18 of the NI Act which provides that a Commonwealth Act 'is
not, except as otherwise provided by that Act or by any other Act, in
force as such in the [Norfolk Island] Territory, unless expressed to
extend to the Territory'.
Item 168 - Section 5
Item 168 inserts numbering of subsection 5(1) into section 5 to enable
the insertion of subsection 5(2) under Item 173.
Item 169 - Paragraph 5(a)
Section 5 of the FOI Act provides that the Act applies to courts in
respect of administrative matters. Item 169 clarifies that the
reference to 'a court' at paragraph 5(1)(a) does not include a court of
Norfolk Island. By explicitly excluding the Norfolk Island court from
the operation of subsection 5(1), the amendment ensures that there is
no overlap between the scope of the operation of this provision and the
new subsection 5(2) (inserted at Item 173). New subsection 5(2)
specifies the application of the FOI Act to Norfolk Island Courts.
Item 170 - Paragraph 5(b)
Section 5 of the FOI Act provides that the Act applies to courts in
respect of administrative matters. Item 170 clarifies that the
reference to 'judicial office' at paragraph 5(1)(b) does not include a
judicial office in the court of Norfolk Island. By explicitly
excluding the Norfolk Island court from the operation of subsection
5(1), the amendment ensures that there is no overlap between the scope
of the operation of this provision and the new subsection 5(2)
(inserted at Item 173). New subsection 5(2) specifies the application
of the FOI Act to Norfolk Island Courts.
Item 171 - Paragraph 5(b)
Section 5 of the FOI Act provides that the Act applies to courts in
respect of administrative matters. Item 171 clarifies that the
reference to 'a court' at paragraph 5(1)(b) does not include a court of
Norfolk Island. By explicitly excluding the Norfolk Island court from
the operation of subsection 5(1), the amendment ensures that there is
no overlap between the scope of the operation of this provision and the
new subsection 5(2) (inserted at Item 173). New sub-ection 5(2)
specifies the application of the FOI Act to Norfolk Island Courts.
Item 172 - Paragraph 5(c)
Section 5 of the FOI Act provides that the Act applies to courts in
respect of administrative matters. Item 172 clarifies that the
reference to 'a court' at paragraph 5(1)(c) does not include a court of
Norfolk Island. By explicitly excluding the Norfolk Island court from
the operation of subsection 5(1), the amendment ensures that there is
no overlap between the scope of the operation of this provision and the
new subsection 5(2) (inserted at Item 173). New subsection 5(2)
specifies the application of the FOI Act to Norfolk Island Courts.
Item 173 - At the end of section 5
Item 173 inserts new subsection 5(2) which specifically provides that
for the purposes of the FOI Act, a Norfolk Island Court is a Norfolk
Island authority. Obligations under the FOI Act apply to Norfolk
Island Courts as a result of this designation only to the extent that a
request for access to a document of the Norfolk Island Court relates to
an administrative matter. Under new paragraph 5(2)(d) these
obligations extend to a registry or other office of the court and the
staff of such an office when acting in the capacity of a staff member
of that office.
The scope of the application of subsection 5(2) is limited by new
paragraphs 5(2)(b) and (c) which exclude from the definition of a
Norfolk Island authority a person holding judicial office in a Norfolk
Island Court (when acting in his or her capacity as the holder of that
office), and the holder of an office, established by a Norfolk Island
enactment, and relating to the court (when acting in his or her
capacity as holder of that office). Such persons are neither a Norfolk
Island authority, nor included in the Norfolk Island authority for the
purposes of the FOI Act.
This amendment ensures that documents relating to administrative
matters that are held by courts fall within the scope of the FOI Act,
but that judicial officers, or officers of the court are not themselves
regarded as a Norfolk Island authority for the purposes of that Act. A
similar limitation exists at subsection 5(1) for Commonwealth
equivalents.
Item 174 - Paragraph 8(2)(d)
Section 8 of the FOI Act relates to the publication of information
concerning functions and documents of agencies (which under subsection
4(1) is defined to include a Norfolk Island authority). In particular,
subsection 8(2) requires an agency publish specified information. Item
174 repeals and substitutes paragraph 8(2)(d). The amendment includes
a reference to the legislative arrangements for the appointment of
officers to Norfolk Island authorities, in addition to the existing
requirements regarding the appointment of Commonwealth agency
employees. As amended, paragraph 8(2)(d) requires the publication of
details of appointments of officers to agencies that are made other
than under the Public Service Act 1999 (Cth), or the Public Sector
Management Act 2000 (Norfolk Island).
Item 175 - At the end of paragraph 8(2)(e)
Section 8 of the FOI Act relates to the publication of information
concerning functions and documents of agencies (which under subsection
4(1) is defined to include a Norfolk Island authority). Paragraph
8(2)(e) requires the publication of annual reports prepared by agencies
that are laid before Parliament. Item 175 amends paragraph 8(2)(e) by
inserting 'or the Legislative Assembly of Norfolk Island', to extend
this provision to also require the publication of agency annual reports
which are laid before the Legislative Assembly of Norfolk Island.
Item 176 - At the end of paragraph 8(2)(h)
Section 8 of the FOI Act relates to the publication of information
concerning functions and documents of agencies (which under subsection
4(1) is defined to include a Norfolk Island authority). Paragraph
8(2)(h) requires the publication of information held by an agency that
is routinely provided to Parliament in response to requests and orders
from Parliament. To ensure that this provision applies to relevant
information provided to the Norfolk Island equivalent, Item 176 amends
paragraph 8(2)(h) by inserting 'or the Legislative Assembly of Norfolk
Island'.
Item 177 - At the end of paragraph 8(2)(h)
Section 8 of the FOI Act relates to the publication of information
concerning functions and documents of agencies (which under subsection
4(1) is defined to include a Norfolk Island authority). Paragraph
8(2)(h) requires the publication of information held by an agency that
is routinely provided to Parliament in response to requests and orders
from Parliament. To ensure that this provision applies to relevant
information provided to the Norfolk Island equivalent, Item 177 inserts
'or the Legislative Assembly of Norfolk Island, as the case may be'.
Item 178 - At the end of section 8 (before the notes)
Section 8 of the FOI Act relates to the publication of information
concerning functions and documents of agencies (which under subsection
4(1) is defined to include a Norfolk Island authority). Item 178
amends section 8 to ensure that the provision applies to Norfolk
Island, by inserting a definition of enactment which explicitly
includes a Norfolk Island enactment, for the purposes of section 8.
Item 179 - At the end of section 8C
Section 8C of the FOI Act limits an agency's (which under subsection
4(1) is defined to include a Norfolk Island authority) obligations
under section 8 to publish specified information. These limitations
include exempt matter, and information the publication of which is
restricted or prohibited under an enactment. To ensure that
restrictions and prohibitions under Norfolk Island enactments are
recognised under this provision, Item 179 inserts a definition of
enactment which explicitly includes a Norfolk Island enactment for the
purposes of section 8C.
Item 180 - At the end of Part II
Part II of the FOI Act establishes an information publication scheme.
Item 180 inserts new section 10B into Part II which provides
transitional arrangements for the application of the Part II to Norfolk
Island. Section 10B defers the application of Part II of the FOI Act
on Norfolk Island authorities until 2 years after the commencement of
this section. This is intended to ensure that Norfolk Island
authorities have sufficient time to make the necessary arrangements to
ensure that they can satisfy the obligations under this Part.
Item 181 - After paragraph 11B(4)(a)
Section 11B of the FOI Act provides assistance in determining whether a
conditionally exempt document would be contrary to the public interest
for the purposes of subsection 11A(5). In particular, subsection
11B(4) specifies factors which must not be taken into account in making
a determination of the public interest. Item 181 amends subsection
11B(4) by inserting paragraph 11B(4)(aa). The amendment provides that
a determination of public interest must not include consideration of
whether the document could result in embarrassment to the Government of
Norfolk Island or cause a loss of confidence in the Government of
Norfolk Island. An equivalent provision in respect of the Commonwealth
Government exists at paragraph 11B(4)(a).
Item 182 - Section 12
Item 182 amends section 12 by inserting numbering which facilitates the
insertion of a new subsection 12(2) under Item 183.
Item 183 - At the end of section 12
Section 12 of the FOI Act excludes specified documents from the
application of the right of access under Part III of that Act. Item
183 inserts a new subsection 12(2) which provides that in relation to
Norfolk Island documents or official documents of a Norfolk Island
Minister, the FOI Act only applies to documents, or a part of a
document, that became a document of a Norfolk Island authority or an
official document of a Norfolk Island Minister for a period of 5 years
before the date of commencement of the relevant parts of the Bill.
The amendment is based on the previous subsection 12(2) of the FOI Act,
which was repealed by Schedule 4 of the FOI Reform Bill 2009 as its
operation was spent. The amendment is intended to extend to Norfolk
Island the same transitional arrangements that were afforded to the
Commonwealth at the time that the FOI Act commenced. On this basis,
the new subsection 12(2) also retains the same qualifications that
applied to the previous subsection 12(2).
Item 183 also inserts a new subsection 12(3) which provides that for
the purposes for section 12, enactment explicitly includes a Norfolk
Island enactment.
Item 184 - Subsection 15(6)
Section 15 of the FOI Act sets out the process for making a request to
an agency or Minister for access to documents. Generally, under
paragraph 15(5)(b) the agency or Minister has a period of 30 days to
notify the applicant of the outcome of such a request. Subsection
15(6) provides that this time period may be extended as a result of the
requirements of sections 26A, 27 or 27A.
Item 184 amends subsection 15(6) by inserting a reference to section
'26AA'. Section 26AA as inserted by Item 190 requires that
consultation take place in respect of a request to access documents
affecting Norfolk Island intergovernmental relations. The amendment to
subsection 15(6) enables the Minister to extend the response period on
an access request by a further 30 days to enable consultations required
under section 26AA to take place.
Item 185 - Paragraph 20(3)(c)
Section 20 of the FOI Act specifies the allowable forms of access to
documents under that Act. Under this section the document should be
made available to the applicant in the form requested, however, this
may be refused if providing access in that particular form would result
in one of the exceptions specified at subsection 20(3). For example,
paragraph 20(3)(c) provides that access in the form requested by the
applicant may be refused and access given in another form, where
provision in the requested form would involve an infringement of
copyright, subsisting in matter contained in the document that does not
relate to the affairs of an agency, or of a Department of State. This
exception does not apply to copyright owned by the Commonwealth, an
agency or a State. Item 185 amends paragraph 20(3) by substituting
'Norfolk Island or a State' in place of 'or a State'. This amendment
means that the exception provided in paragraph 20(3)(c) does not apply
to copyright owned by Norfolk Island.
Item 186 - At the end of paragraphs 21(1)(a) and (b)
Item 250 amends subsection 21(1) of the FOI Act by inserting 'or' at
the end of paragraphs 21(1)(a) and (b). This is not intended to affect
the meaning of this provision, but rather ensures consistency of
drafting style throughout that Act.
Item 187 - At the end of subsection 21(1)
Section 21 of the FOI Act allows either the agency or Minister to defer
access to documents under specified circumstances. For example,
paragraph 21(1)(d) provides for deferral if a Minister considers the
document is of such general public interest that the Parliament should
be informed of the contents of the document before it is made public.
Item 186 inserts a new paragraph 21(1)(e) which provides the same
exception to requests to access documents received by a Norfolk Island
Minister or Norfolk Island authority. Paragraph 12(1)(e) explicitly
provides that access to such a document may be deferred until after 5
sitting days of the Legislative Assembly of Norfolk Island, where a
Norfolk Island Minister considers that the document is of such general
public interest that the Legislative Assembly of Norfolk Island should
be informed about the contents of the document before the document is
otherwise made public.
Item 188 - Subparagraph 26A(1)(c)(i)
Section 26A requires consultation in respect of documents affecting
Commonwealth-State relations. Item 188 inserts 'etc' after the
bracketed reference to 'Commonwealth-State relations' at paragraph
26A(1)(c)(i). This amendment is intended to reflect that the reference
also includes other forms of 'relations' dealt with under section 26A.
Thus the reference is intended to also refer to relations between the
Commonwealth and Norfolk Island, or Norfolk Island and a State.
Item 189 - At the end of section 26A
Section 26A requires consultation in respect of documents subject to
access requests under the FOI Act and which affect Commonwealth-State
relations. To enable the application of this provision to be extended
to documents affecting Norfolk Island relations with the Commonwealth
and with States, Item 189 inserts a new subsection 26A(6) which
provides that for the purposes of section 26A, the term State includes
Norfolk Island.
The heading to section 26A is also amended to add 'etc' at the end.
This amendment reflects the application of section 26A to not only
Commonwealth-State relations, but also other forms of 'relations',
including relations between the Commonwealth and Norfolk Island, or
Norfolk Island and a State.
Item 190 - After section 26A
Item 190 inserts new section 26AA into the FOI Act. Section 26AA sets
out the consultation requirements for requests to access documents
affecting Norfolk Island intergovernmental relations. The provision is
drafted to reflect existing obligations in section 26A arising from
requests made to an agency or Commonwealth Minister in respect of
documents affecting intergovernmental relations. Section 26AA applies
these same obligations to requests made of a Norfolk Island authority
or Minister of Norfolk Island.
Section 26AA applies where:
a) arrangements about consultations have been entered into under the
section between Norfolk Island and the Commonwealth, or Norfolk Island
and a State
b) a request is made to a Norfolk Island Minister or authority in relation
to a document that originated or was received from the Commonwealth or
a State, or a document that contains information that originated from
the same, and
c) a Minister of Norfolk Island or a Norfolk Island authority considers
that the Commonwealth or State may reasonably contend that such a
document is conditionally exempt under section 47B (i.e.
intergovernmental relations) and access would be contrary to the public
interest pursuant to section 11A(5).
Where such circumstances exist, section 26AA requires that:
a) access not be granted until consultation with the relevant body
(Commonwealth or State) takes place
b) where, following consultation a decision is taken to grant access, then
written notice of that decision much be given to the Commonwealth or
State, and
c) access must not be given until the Commonwealth or State has had an
opportunity to appeal the decision.
Item 191 - At the end of section 38
Section 38 of the FOI Act provides the criteria for exempting documents
to which secrecy enactments apply. Item 191 inserts new subsection
38(4) which provides that for the purposes of the section reference to
enactment includes a Norfolk Island enactment.
The amendment extends the same protection provided to documents subject
to Commonwealth secrecy provisions to secrecy provisions contained in
Norfolk Island enactments.
Item 192 - Subsection 45(1)
Section 45 of the FOI Act exempts documents which if disclosed, would
found an action for a breach of confidence. The exemption does not
extend to such documents where the action would be by an agency or the
Commonwealth. Item 192 amends subsection 45(1) to extend this
limitation to also exclude actions by Norfolk Island.
Item 193 - Subsection 45(2)
Section 45 of the FOI Act exempts documents which if disclosed, would
found an action for a breach of confidence. Subsection 45(2) limits
the operation of the section by providing that in specified
circumstances, documents are not exempt documents if they relate to the
deliberative process (see section 47C). Item 193 amends section 45 by
inserting a reference to also include documents prepared by a Norfolk
Island authority.
Item 194 - Paragraph 45(2)(b)
Section 45 of the FOI Act exempts documents which if disclosed, would
found an action for a breach of confidence. Item 194 amends paragraph
45(2)(b) to extend the reference to the Commonwealth to also include
Norfolk Island.
Item 195 - Subsection 47(3)
Section 47 of the FOI Act provides the criteria for determining whether
a document is an exempt document because its disclosure under that Act
would disclose trade secrets or commercially valuable information.
Item 195 amends subsection 47(3) by inserting 'Norfolk Island' after
the reference to the Commonwealth. This is intended to expand the
application of the provision so that it applies to Norfolk Island to
the same extent as its existing application to the Commonwealth. This
ensures that undertakings made by, or on the authority of, Norfolk
Island have the same effect under this section as undertakings by, or
on the authority of, the Commonwealth.
Item 196 - Subsection 47A(1) (at the end of the definition of electoral
roll)
Section 47A of the FOI Act provides exceptions from the operation of
that Act for electoral rolls and related documents. Item 196 inserts
new paragraphs 47A(1)(c) and (d), which extends the application of the
exemption provision to the Norfolk Island electoral roll. The
amendment does this by extending the definition of electoral roll to
provide for electoral rolls, or any part thereof, prepared under the
Legislative Assembly Act 1979 of Norfolk Island.
Item 197 - At the end of section 47B (before note)
Section 47B of the FOI Act establishes a public interest conditional
exemption in respect of documents related to Commonwealth-State
relations. Item 197 expands the application of this provision to
documents the disclosure of which would cause, or could reasonably be
expected to cause damage to relations between Norfolk Island and the
Commonwealth (paragraph 47B(1)(c)), or Norfolk Island and a State or
Territory (paragraph 47B(1)(e)).
Item 197 also extends the application of section 47B to information
communicated in confidence by the Norfolk Island Government (or
authority) to the Commonwealth Government (or authority) (paragraph
47B(1)(d)). Additionally, paragraph 47B(1)(f) extends protection to
confidential communication from a State Government (or authority) to
the Norfolk Island Government (or authority).
The new paragraphs extend to Norfolk Island comparable conditional
exemption provisions to those applied to the Commonwealth. Section 47B
notes that in relation to all conditionally exempt documents, access
must generally be granted unless it would be contrary to the public
interest to do so.
Item 198 - Subsection 47C(1)
Section 47C of the FOI Act establishes conditional exemptions for
documents related to the deliberative process. Item 198 amends the
section to extend the application of this provision to deliberative
processes involved in the functions of an agency (which by virtue of
subsection 4(1) includes a Norfolk Island authority) or the Norfolk
Island Government. This provision recognises that in some
circumstances it may not be contrary to the public interest to provide
access to such material.
Item 199 - Section 47D
Section 47D of the FOI Act establishes conditional exemptions for a
document if its disclosure would have an adverse effect on financial or
property interests of the Commonwealth or an agency (which by virtue of
subsection 4(1) includes a Norfolk Island authority). Item 199 extends
the operation of section 47D to protect the financial or property
interests of the Norfolk Island Government. Under the Acts
Interpretation Act, references to the 'Commonwealth' in a geographic
sense include external Territories; the explicit inclusion of the words
'Norfolk Island' through the amendment to this provision make this
interpretation free from doubt.
The heading of section 47D is also amended to reflect the inclusion of
Norfolk Island into the operation of this provision.
Item 200 - Paragraph 47E(c)
Section 47E of the FOI Act provides conditional exemptions for a
document if its disclosure would have an adverse effect on certain
operations of agencies, which by virtue of subsection 4(1) includes a
Norfolk Island authority. Item 200 inserts a reference to Norfolk
Island at paragraph 47E(c) to extend the protections afforded to the
Commonwealth under the section to Norfolk Island.
Item 201 - Paragraph 47G(1)(b)
Section 47G of the FOI Act provides conditional exemptions for a
document related to business or professional affairs, or concerning
business, commercial or financial affairs of an organisation or
undertaking. Under paragraph 47G(1)(b) this includes where disclosure
could reasonably be expected to prejudice the future supply of
information to the Commonwealth or an agency (which by virtue of
subsection 4(1) includes a Norfolk Island authority), where: (a) the
information is for the purpose of the administration of a law of the
Commonwealth or of a Territory, or (b) the administration of matters
administered by an agency. Item 201 amends the section by inserting a
reference to 'Norfolk Island' which expands the scope of protection
granted by the existing provision to the Commonwealth to Norfolk
Island.
Item 202 - Subsection 47G(4)
Section 47G of the FOI Act provides conditional exemptions for a
document related to business or professional affairs, or concerning
business, commercial or financial affairs of an organisation or
undertaking. Item 202 inserts a reference to Norfolk Island at
subsection 47G(4) to extend the protections afforded to the
Commonwealth under the section to Norfolk Island.
Item 203 - After subsection 47J(2)
Section 47J of the FOI Act provides conditional exemptions for a
document if its disclosure would have an adverse effect on the economy.
Item 203 inserts a new subsection 47J(2A) which clarifies that for the
purposes of paragraph 27J(2)(b), Norfolk Island is considered a region
of Australia. This means that an 'adverse impact on Australia's
economy', will include an adverse impact on the economy of Norfolk
Island. This ensures that protections afforded to the Commonwealth are
extended to Norfolk Island.
Item 204 - Paragraph 47J(3)(g)
Section 47J of the FOI Act provides conditional exemptions for a
document if its disclosure would have an adverse effect on the economy.
Subsection 47J(3) provides a non-exhaustive list of documents which
may contain matters which would adversely impact the economy. This
list includes, at paragraph 47J(3)(g) 'borrowings by the Commonwealth,
a State or an authority of the Commonwealth or a State'. Item 204
expands this paragraph to also include borrowings by Norfolk Island.
This ensures that protections afforded to the Commonwealth are extended
to Norfolk Island.
Item 205 - Paragraph 47J(3)(g)
Section 47J of the FOI Act provides conditional exemptions for a
document if its disclosure would have an adverse effect on the economy.
Subsection 47J(3) provides a non-exhaustive list of documents which
may contain matters which would adversely impact the economy. This
list includes, at paragraph 47J(3)(g), 'borrowings by the Commonwealth,
a State or an authority of the Commonwealth or a State'. Item 204
expands this paragraph to also include borrowings by an authority of
Norfolk Island. This ensures that protections afforded to the
Commonwealth are extended to Norfolk Island.
Item 206 - Section 53B
Item 206 inserts numbering into section 53B to allow for the insertion
of new subsection 53B(2) under Item 210.
Item 207 - Section 53B (note)
Section 53B of the FOI Act provides the definition of access grant
decision for the purposes of Parts VI, VII and VIIA of the FOI Act.
The note to subsection 53B(1) clarifies that the table applies to
documents which may be conditionally exempt under sections 47B
(Commonwealth-State relations), 47G (business) or 47F (personal
privacy). Table Item 1 applies to decisions made in relation to
documents which may be conditionally exempt under section 47B. Item
207 amends the note to subsection 53B(1) to clarify table Item 1A
(inserted at Item 209) also applies to decisions made in relation to
documents which may be conditionally exempt under section 47B.
Item 208 - Section 53B (table Item 1)
Section 53B of the FOI Act establishes the definition of access grant
decision for the purposes of Parts VI, VII and VIIA of that Act. Item
208 inserts 'etc' after the reference to 'Commonwealth-State relations'
at table Item 1 in subsection 53B(1). This amendment is intended to
reflect that the reference also includes other forms of relations and
is intended to also refer to relations between the Commonwealth and
Norfolk Island, or Norfolk Island and a State.
Item 209 - Section 53B (after table Item 1)
Section 53B of the FOI Act establishes the definition of access grant
decision for the purposes of Parts VI, VII and VIIA of that Act. Item
209 inserts table Item 1A into section 53B. This Item refers to
decisions in relation to a request for access to a document under
section 26AA (Item 190).
Table Item 1A establishes that in relation to such a request, an access
grant decision is a decision by an agency or Minister to grant access
to an applicant to a document (or an edited copy of the document)
because either the document is conditionally exempt under section 47B,
or access to the document would not, on balance, be contrary to the
public interest for the purposes of subsection 11A(5).
Item 210 - At the end of section 53B
Section 53B of the FOI Act establishes the definition of access grant
decision for the purposes of Parts VI, VII and VIIA of that Act. Item
210 inserts new subsection 53B(2) which clarifies that for the purposes
of table Item 1, the term State has the same meaning as in section 26A.
The meaning of this term in section 26A includes Norfolk Island. This
enables the provision to extend references to Commonwealth-State
relations to include Commonwealth-Norfolk Island relations.
Item 211 - Section 53C
Item 211 inserts numbering into section 53C to allow for the insertion
of new subsection 53C(2) under Item 213 of this amending Bill.
Item 212 - Section 53C (after table Item 1)
Section 53C of the FOI Act provides the definition of affected third
party in relation to requests for access to documents under sections
26A, 27 and 27A for the purposes of Parts VI, VII and VIIA of that Act.
Item 212 inserts new table Item 1A. This Item refers to decisions in
relation to a request for access to a document under section 26AA
(inserted by Item 190). The amendment establishes that in relation to
such a request, an affected third party is the Commonwealth or the
State, as the case may be. The reference to State includes Norfolk
Island.
Item 213 - At the end of section 53C
Section 53C of the FOI Act provides the definition of affected third
party in relation to requests for access to documents under sections
26A, 27 and 27A for the purposes of Parts VI, VII and VIIA of that Act.
Item 213 inserts new subsection 53C(2) which clarifies that for the
purposes of table Item 1, the term State has the same meaning as in
section 26A. The meaning of this term in section 26A includes Norfolk
Island. This enables the provision to extend references to
Commonwealth-State relations to include Commonwealth-Norfolk Island
relations.
Item 214 - Paragraph 54P(1)(a)
Section 54P of the FOI Act establishes a requirement to notify affected
third parties in relation to applications to the Information
Commissioner for review under Part VII of that Act. Item 214 inserts a
reference to decisions made in relation to access requests for
documents to which a consultation requirement applies under new section
26AA (Item 190). Under the amendment, the notification requirements
under section 54P apply in relation to an application for review of a
Ministerial decision not to grant access to such documents.
Comparative requirements exist for documents to which consultation
requirements apply under sections 26A, 27 and 27A.
Item 215 - Paragraph 54S(2)(b)
Section 54S of the FOI Act sets time limits on the process for a review
by the Information Commissioner under Part VII of that Act. Item 215
amends paragraph 54S(2)(b) by inserting a reference to reviewable
decisions made in relation to access requests to which a consultation
requirement applies under section 26AA (Item 190). The requirements
established under section 54S therefore apply to applications to the
Information Commissioner for review made under this Part in respect of
such documents. Comparative requirements exist for documents to which
consultation requirements apply under sections 26A, 27 and 27A.
Item 216 - Subsection 54Y(2) (note)
Section 54Y of the FOI Act provides for the Information Commissioner's
review of deemed decisions. Item 216 inserts in the note to subsection
54Y(2) a reference to reviewable decisions made in relation to access
requests to which a consultation requirement applies under section 26AA
(Item 190). The note clarifies that this consultation requirement may
apply when making an actual decision under subsection 54Y(2). The note
similarly clarifies that consultation requirements may also apply under
sections 26A, 27 and 27A.
Item 217 - Subsection 55G(1) (note)
Section 55G of the FOI Act sets out the procedure for the revocation or
variation of a decision to refuse access during an Information
Commissioner review of the original decision. Item 217 amends the note
to subsection 55G(1) by inserting a reference to section 26AA. The
amendment clarifies that when making a revised decision, the
consultation requirement under section 26AA may still apply. The note
similarly clarifies that consultation requirements may also apply under
sections 26A, 27 and 27A.
Item 218 - At the end of section 55M
Section 55M of the FOI Act limits the Information Commissioner's
authority to make an amendment to a record of opinion. Item 218
inserts new subsection 55M(3) which defines enactment for the purposes
of section 55M to include a Norfolk Island enactment. This limits the
Information Commissioner's ability to make a decision which results in
the amendment of a record of a decision under a Norfolk Island
enactment by a court, tribunal, authority or person (see paragraph
55M(2)(a)).
Item 219 - At the end of section 58AA
Section 58AA of the FOI Act limits the AAT's authority to amend a
record relating to a record of an opinion under section 57A of that
Act. Item 219 inserts new subsection 58AA(3) which provides that for
the purposes of the section, reference to enactment includes a Norfolk
Island enactment. This means that the Tribunal does not have the
authority to recommend that an amendment be made to a record if it is
satisfied that the record is of a decision made under a Norfolk Island
enactment by a court, tribunal, authority or person.
Item 220 - Subsection 60AA(1)
Section 60AA of the FOI Act sets out the requirements for notification
of affected third parties to an application for review of a decision by
the AAT in specified circumstances. The existing provision applies to
the review of a decision to deny access where a consultation
requirement applies under sections 26A, 27 or 27A. Item 220 amends the
section to extend its application to include a decision to deny access
where there is a consultation requirement under section 26AA (Item
190).
Item 221 - Subsection 61(2)
Section 61 of the FOI Act establishes who bears the onus of proof in
AAT proceedings under Part VI of that Act. The existing subsection
61(2) specifies the onus on affected third parties to be applied to
proceedings relating to a decision to give access where a consultation
requirement exists under section 26A, 27 or 27A. Item 221 amends the
section to extend its application to include a decision where there is
a consultation requirement under section 26AA (Item 190).
Item 222 - At the end of subsection 66(1)
Section 66 of the FOI Act provides that in relation to applications for
review to the AAT under section 57A of that Act, the Tribunal has the
discretion to make a recommendation to the responsible Minister that
the applicant's costs in respect of the proceedings should be paid by
the Commonwealth. Item 222 inserts words in subsection 66(1) to
broaden this authority to allow for recommendations to be made by the
Tribunal that costs be paid by Norfolk Island. Subsection 66(2)
identifies criteria that the Tribunal must have regard to in making
such a recommendation.
Item 223 - Subsection 74(1)
Section 74 of the FOI Act provides authority to the Information
Commissioner to transfer complaints relating to actions under the FOI
Act to the Ombudsman under specified circumstances. Recognising that
the Ombudsman Act does not apply to Norfolk Island, Item 223 amends
subsection 74(1) to provide that section 74 applies where the matter
may be dealt with more effectively or appropriately by the Ombudsman,
either under the Ombudsman Act (paragraph 74(1)(a)), or under the 'a
particular Norfolk Island enactment' (paragraph 74(1)(b)). The
language ensures flexibility to enable application to legislative
provisions relating to the Ombudsman in any relevant Norfolk Island
legislation.
Item 224 - Subsection 74(5)
Section 74 of the FOI Act provides authority to the Information
Commissioner to transfer complaints relating to actions under that Act
to the Ombudsman under specified circumstances. Section 74(5) confirms
that where a matter is transferred by the Information Commissioner
under this section, then it is taken to be a complaint made under the
Ombudsman Act and shall be dealt with in accordance with that Act.
Item 224 inserts wording to restrict the application of subsection
75(5) to matters referred to in paragraph 74(1)(a), that is, matters
which may be more effectively or appropriately dealt with by the
Ombudsman, under the Ombudsman Act.
Item 225 - At the end of section 74 (before note)
Section 74 of the FOI Act provides authority to the Information
Commissioner to transfer complaints relating to actions under that Act
to the Ombudsman under specified circumstances. Item 225 inserts
subsection 74(6) which provides that matters transferred to the
Ombudsman in respect of paragraph 74(1)(b), shall be dealt with by the
Ombudsman as if it were a complaint made under the relevant Norfolk
Island enactment. This amendment is consequential to the amendment at
Item 223 and enables the application of this provision to legislative
provisions relating to the Ombudsman in any relevant Norfolk Island
legislation.
Item 226 - At the end of section 89D
Section 89D of the FOI Act limits the Information Commissioner's
authority to amend a record relating to a record of opinion made under
section 86, or a report to the FOI Minister under section 89A(3). Item
226 inserts new subsection 89D(4) which provides that for the purposes
of the section, reference to enactment includes a Norfolk Island
enactment. This means that the Information Commissioner does not have
the authority to recommend that an amendment be made to such a record
if he or she is satisfied that the record is of a decision made under a
Norfolk Island enactment by a court, tribunal, authority or person.
Item 227 - At the end of section 89J
Section 89J of the FOI Act limits the Ombudsman's authority to amend a
record relating to a record of an opinion about a report under section
15. Item 227 inserts new subsection 89J(3) which provides that for the
purposes of the section, reference to enactment includes a Norfolk
Island enactment. This means that the Ombudsman does not have the
authority to recommend that an amendment be made to such a record if he
or she is satisfied that the record is of a decision made under a
Norfolk Island enactment by a court, tribunal, authority or person.
Item 228 - Subsection 90(1)
Section 90 of the FOI Act limits civil liability in respect of actions
taken in reliance on that Act. Subsection 90(1) limits the actions for
breach of confidence or infringement of copyright against the
Commonwealth, a Minister, an agency, or an officer of an agency, in
relation to the publication or granting of access to documents in the
manner and form specified under paragraphs 90(1)(a), (b), or (c). Item
228 inserts 'Norfolk Island' in subsection 90(1) to expand the
application of the provision to also provide the same protection
provided to the Commonwealth to Norfolk Island in respect of actions
arising as a result of actions within the activities described at
paragraphs 90(1)(a), (b) and (c).
Item 229 - Subsection 91(1A)
Section 91 of the FOI Act limits civil liability arising from specified
acts relating to the granting of access to documents under that Act.
Subsection 91(1A) clarifies that the protection against civil action
provided under section 90 of the FOI Act applies regardless of whether
there has been a failure to undertake consultations mandated by that
Act under sections 26A, 27 or 27A. Item 229 broadens this provision to
similarly provide that the protection granted under section 90 is not
affected by a failure to undertake consultations required under section
26AA as inserted at Item 190.
Item 230 - Subsection 91(1B)
Section 91 limits civil liability arising from specified acts relating
to the granting of access to documents under the FOI Act. Section
91(1B) provides that there is no cause of action against the
Commonwealth, an agency, a Minister or an officer solely on the basis
that there has been a failure to undertake consultations required by
the FOI Act under sections 26A, 26AA, 27 or 27A. Item 230 expands the
protection under this provision to exclude action against Norfolk
Island solely on the basis that there has been a failure to undertake
consultations required under the stipulated sections of that Act.
Item 231 - Subsection 91(1B)
Section 91 limits civil liability arising from specified acts relating
to the granting of access to documents under the FOI Act. Section
91(1B) provides that there is no cause of action against the
Commonwealth, Norfolk Island, an agency, a Minister or an officer
solely on the basis that there has been a failure to undertake
consultations required by the FOI Act under sections 26A, 27 or 27A.
Item 231 broadens this provision to similarly provide that no cause of
action is available against such person or bodies solely because of a
failure to undertake consultations required under section 26AA as
inserted at Item 190.
Item 232 - After paragraph 91(1C)(a)
Section 91 limits civil liability arising from specified acts relating
to the granting of access to documents under the FOI Act. Subsection
91(1C) limits liability as specified under paragraphs 91(1C)(d) and (e)
where a document is shown to a person, organisation or proprietor for
any of the purposes specified in paragraphs 91(1C)(a), (b), and (c).
Item 232 inserts an additional purpose for which liability is limited
in new paragraph 91(1C)(aa).
Paragraph 91(1C)(aa) provides that where the document is shown to a
person, organisation or proprietor for the purpose of consultation with
the Commonwealth or a State under subsection 26AA(2) then liability is
limited in respect of actions specified at paragraphs 91(1C)(d) and
(e).
Item 233 - After paragraph 91(1C)(d)
Section 91 limits civil liability arising from specified acts relating
to the granting of access to documents under the FOI Act. Subsection
91(1C) limits liability as specified under paragraphs 91(1C)(d) and (e)
where a document is shown to a person, organisation or proprietor for
any of the purposes specified in paragraphs 91(1C)(a), (b), and (c).
Item 233 extends the parties protected against civil liability
identified at paragraph 91(1C)(d) by inserting that where documents are
provided for the specified purposes, then no action for defamation,
breach of confidence or infringement of copyright lies against Norfolk
Island as a result of the showing of the document. This protection is
in addition to existing protections afforded to the Commonwealth, an
agency (including a Norfolk Island authority), a Minister or an
officer.
Item 234 - After paragraph 91(2A)(a)
Section 91 limits civil liability arising from specified acts relating
to the granting of access to documents under the FOI Act.
Subsection 91(2A) provides that a document shown for a purpose
specified at paragraphs 91(2A)(a), (b), or (c) will not be taken to
constitute an authorisation or approval for the purposes specified at
paragraphs 91(2A)(d) and (e). Item 234 inserts an additional
specified purpose for which a document may be shown by inserting new
paragraph 91(2A)(aa). Paragraph 91(2A)(aa) provides that where the
document is shown to a person, organisation or proprietor for the
purpose of consultation with the Commonwealth or a State under
subsection 26AA(2) it will not be taken to constitute an authorisation
or approval for the purposes specified at paragraphs 91(2A)(d) and (e).
Item 235 - At the end of section 91
Section 91 limits civil liability arising from specified acts relating
to the granting of access to documents under the FOI Act. Item 235
inserts subsection 91(4) which provides that for the purposes of
paragraphs 91(1c)(a) and 91(2A)(a), the term State has the same meaning
as in section 26A. Subsection 26A(6) specifies that the term State
includes Norfolk Island. This enables the provision to extend
references to Commonwealth-State consultations to include Commonwealth-
Norfolk Island consultations.
Item 236 - After paragraph 92(2)(a)
Section 92 limits criminal liability arising from specified acts
relating to the granting of access to documents under the FOI Act.
Subsection 92(2) provides that a person (or any other person concerned)
showing a document for the purposes specified at paragraphs 92(2)(a),
(b) or (c) will not be criminally liable for any offence solely as a
result of showing the document. Item 236 inserts an additional
purpose for which liability is limited at paragraph 92(2)(aa).
Paragraph 92(2)(aa) provides that where the document is shown to a
person, organisation or proprietor for the purpose of consultation with
the Commonwealth or a State under subsection 26AA(2) then the person
involved is not liable for any criminal offence merely because of
showing the document.
Item 237 - At the end of section 92
Section 92 limits criminal liability arising from specified acts
relating to the granting of access to documents under the FOI Act.
Item 237 inserts subsection 92(3) which provides that for the purposes
of paragraph 92(2)(a), the term State has the same meaning as in
section 26A. Subsection 26A(6) specifies that the term State includes
Norfolk Island. This enables the provision to extend references to
Commonwealth-State consultations to include Commonwealth-Norfolk Island
consultations.
Part 6 - Amendments relating to the Ombudsman
Norfolk Island Act 1979
Item 238 - After section 66
Item 238 inserts a new section 66A at Part VIII of the NI Act. New
section 66A applies only where under enactment, the Commonwealth
Ombudsman is required to give a report to a Norfolk Island Minister
(being either the Chief Minister or a Minister appointed under section
13 of the NI Act), and where an enactment also requires that the
Norfolk Island Minister table that report in the Norfolk Island
Legislative Assembly.
Where the above circumstances apply, new section 66A requires the
Norfolk Island Minister to give the Commonwealth Ombudsman's report to
the responsible Commonwealth Minister (subsection 66(2)). The
Commonwealth Minister is then required to cause a copy of the report to
be tabled in each House of the Parliament of the Commonwealth within 15
sitting days after receiving the report (subsection 66(3)).
The operation of the section is dependent upon an enactment
(Commonwealth or Norfolk Island enactment) to provide for the authority
of the Commonwealth Ombudsman to investigate complaints in the
Territory of Norfolk Island. In the event that such authority were
provided under enactment, including the provision of reporting
requirements, then the operation of this provision ensures appropriate
accountability and transparency. The tabling requirements are intended
to ensure that the Commonwealth Parliament, through the responsible
Ministers (both Commonwealth and Norfolk Island) are alerted to any
governance issues in relation to Norfolk Island, should they arise in
the context of complaints to the Commonwealth Ombudsman.
Ombudsman Act 1976
Item 239 - At the end of subsection 4(2)
Section 4 of the Ombudsman Act establishes the offices of the
Commonwealth Ombudsman and Deputy Ombudsman. Subsection 4(2) provides
that the functions of the office of the Commonwealth Ombudsman include
the investigation of complaints made to him or her under the
Commonwealth Ombudsman Act in addition to other functions conferred on
the office by that Act, any other Commonwealth Act or regulations, or
an ACT enactment or regulations. Item 239 inserts paragraph 4(2)(d)
which extends the Commonwealth Ombudsman's authority to also include
functions conferred on the office by a Norfolk Island enactment.
The amendment will enable the Commonwealth Ombudsman to perform the
functions of the Norfolk Island Ombudsman should the Government of
Norfolk Island enact legislation to facilitate this. It will make the
office of the Commonwealth Ombudsman available in the administration of
any Norfolk Island legislation. It is anticipated that the guidance
and oversight that the Commonwealth Ombudsman can provide will assist
the development of a sound and effective administrative process on
Norfolk Island. An externally appointed Ombudsman is of particular
benefit in a small community such as Norfolk Island.
Item 240 - At the end of section 4
Section 4 of the Ombudsman Act establishes the offices of the
Commonwealth Ombudsman and Deputy Ombudsman. Item 240 inserts new
subsection 4(6) which provides that the Commonwealth Ombudsman, in
performing his or her functions under a Norfolk Island enactment, may
be called the Norfolk Island Ombudsman. This is consistent with the
practice adopted in relation to other responsibilities conferred on the
Ombudsman. For example, when performing functions in relation to
immigration matters, the Ombudsman may be called the Immigration
Ombudsman.
Part 7 - Amendments relating to privacy
Australian Capital Territory Government Service (Consequential
Provisions) Act 1994
Item 241 - After subsection 23(1)
Section 23 of the Australian Capital Territory Self Government Services
(Consequential Provisions) Act 1994 provides for Schedule 3 of that Act
to amend the Privacy Act. These amendments may be repealed on 'a day
fixed by or under an Australian Capital Territory (ACT) enactment' for
the purposes of sub-section 23(1).
Item 241 amends the ACT Self Government Service (Consequential Provisions)
Act to ensure that the Territories Law Reform Bill does not affect the
meaning or application of the Privacy Act to the ACT. It does this by
providing that the use of 'enactment' in the Privacy Act does not, by
implication, exclude an ACT enactment.
Privacy Act 1988
Item 242 - Subsection 6(1) (after paragraph (h) of the definition of
agency)
Item 242 amends the definition of agency in subsection 6(1) of the
Privacy Act by inserting new paragraph 6(1)(ha). Paragraph 6(1)(ha)
includes 'a Norfolk Island agency' within the definition. This
amendment is supplemented by Item 246 which inserts a new definition of
Norfolk Island agency into the Privacy Act.
Item 243 - Subsection 6(1)
Item 243 inserts a new definition of Cabinet in relation to Norfolk
Island in subsection 6(1) of the Privacy Act.
The amendment defines Cabinet in practical terms as being a body that
consists of Norfolk Island Ministers and corresponds to the Cabinet.
The intention of this amendment is to provide that where a body of
Norfolk Island Ministers meets in a manner that accords with a
Commonwealth or State Cabinet equivalent, then they are afforded the
same rights, responsibilities and protection in respect of the Privacy
Act.
Item 244 - Subsection 6(1) (definition of Commonwealth contract)
Item 244 amends the definition of Commonwealth contract in subsection
6(1) of the Privacy Act to extend the references to Commonwealth
contracts under that Act to also include contracts to which the Norfolk
Island Government (or agency) is a party.
The amendment is intended to provide protection to personal information
held by a contractor to the Norfolk Island Government. The principal
obligation arising in relation to Commonwealth contracts is set out in
section 95B of the Privacy Act. Section 95B requires an agency
entering into a Commonwealth contract to take contractual measures to
ensure that a contracted service provider for the contract does not do
an act, or engage in a practice, that would breach an Information
Privacy Principle if the act had been done or engaged by an agency. In
expanding the scope of the Information Privacy Principles to Norfolk
Island agencies, it is appropriate to similarly ensure that the
obligations are similarly extended to contractors of such agencies.
Item 245 - Subsection 6(1)
Item 245 inserts a new definition of enactment in subsection 6(1) of
the Privacy Act which expressly provides that the term includes a
Norfolk Island enactment.
The term Norfolk Island enactment is further defined under that Act by
Item 206.
Item 246 - Subsection 6(1)
246 inserts a new definition of Norfolk Island agency in subsection
6(1) of the Privacy Act. This definition supplements the amendment to
the Privacy Act at Item 242, which provides that the term agency
includes a Norfolk Island agency.
Norfolk Island agency is defined as (a) a Norfolk Island Minister; (b)
a public sector agency, as defined in section 4 of the Public Sector
Management Act 2000 of Norfolk Island; (c) a body (incorporated or
not), or a tribunal, established or appointed for a public purpose by a
Norfolk Island enactment, other than a corporation established or
registered under the Norfolk Island Companies Act 1985, or Associations
Incorporation Act 2005; (d) a body established or appointed by the
Administrator or a Norfolk Island Minister other than under a Norfolk
Island enactment; (e) a person holding or performing the duties of an
office established by or under, or an appointment made under, a Norfolk
Island enactment; (f) a person holding or performing the duties of an
appointment made by the Administrator of Norfolk Island, or a Norfolk
Island Minister, other than under a Norfolk Island enactment; or (g) a
court of Norfolk Island.
This definition is intended to ensure that Information Privacy
Principles which apply to an agency under the Privacy Act will
expressly apply to the Norfolk Island Government and agencies. For
example, the unamended definition of agency in the Privacy Act includes
'a Minister' (paragraph (a) of the definition). This must be
construed, in the absence of anything to the contrary as a reference to
a Commonwealth Minister. The amendment ensures that a Norfolk Island
Minister is now similarly included in this definition. The definition
provides similar clarification in respect of the inclusion of
Departments and courts to ensure that the Information Privacy
Principles are applicable to comparative Norfolk Island persons and
bodies.
Item 247 - Subsection 6(1)
Item 247 inserts a new definition of Norfolk Island enactment in
subsection 6(1) of the Privacy Act. This definition supplements the
amendment to the Privacy Act at Item 245, which provides that the term
enactment includes a Norfolk Island enactment.
Norfolk Island enactment is defined by reference to the NI Act which at
section 4 provides:
enactment means:
a) a law (however described or entitled) passed by the Legislative
Assembly and assented to under this Act;
b) an Ordinance made by the Government-General under section 2 or in
pursuance of section 69; or
c) an Ordinance continued in force by this Act.
Item 248 - Subsection 6(1)
Item 248 inserts a new definition of Norfolk Island Justice Minister in
subsection 6(1) of the Privacy Act.
There is presently no Minister with the official title of 'Justice
Minister' or 'Attorney-General' in the Norfolk Island Government. The
definition of Norfolk Island Justice Minister ensures that the Minister
is appropriately identified by his or her responsibilities of office,
in this case, the administration of the Interpretation Act 1979 of
Norfolk Island.
Item 249 - Subsection 6(1)
Item 249 inserts the definition of Norfolk Island Minister in
subsection 6(1) of the Privacy Act. This amendment reflects the change
in title of 'Executive Members' to 'Chief Minister' and 'Ministers'
under the NI Act (see Items 8 and 23). Item 249 supplements the
definition of a Norfolk Island agency, as amended by Item 246, to
include a Norfolk Island Minister. The term is further used in other
amendments to the Privacy Act to facilitate the extension of the
application of particular provisions to Norfolk Island Ministers, where
existing application had been limited to Commonwealth Ministers (i.e.
sections 30, 31 and 32 of the Privacy Act).
Item 250 - At the end of paragraphs 6(5)(a), (b) and (c)
Item 250 amends subsection 6(5) of the Privacy Act by inserting 'or' at
the end of paragraphs 6(5)(a), (b) and (c). This is not intended to
affect the meaning of this provision, but rather ensures consistency of
drafting style throughout the Privacy Act.
Item 251 - After paragraph 6(5)(c)
Subsection 6(5) provides guidance in the interpretation of agency as
defined under subsection 6(1) of the Privacy Act. The subsection
specifies a number of offices or duties which should not in themselves
be determinative of whether a person is an agency for the purposes of
that Act. Item 251 inserts new paragraph (ca) in subsection 6(5).
Paragraph 6(5)(ca) provides that a person should not be deemed to be an
agency for the purposes of the Privacy Act, solely on the basis he or
she is the holder of, or performs the duties of, an office established
by or under a Norfolk Island enactment.
This amendment extends the application of the existing paragraph
6(5)(c) to the comparative offices established under Norfolk Island
enactment. It ensures that the same interpretation is applied to the
determination of whether a particular person holding an office
established under a Norfolk Island enactment, or an office established
under a Commonwealth enactment is an agency for the purposes of the
Privacy Act.
Item 252 - At the end of subsection 6(5)
Subsection 6(5) provides guidance in the interpretation of agency as
defined under subsection 6(1) of the Privacy Act. The subsection
specifies a number of offices or duties which should not in themselves
be determinative of whether a person is an agency for the purposes of
that Act. Item 252 inserts new paragraph (f) in subsection 6(5).
Paragraph 6(5)(f) provides that a person should not be deemed to be an
agency for the purposes of the Privacy Act only on the basis that he or
she is the holder of, or performs the duties of, an office of a member
of a tribunal, prescribed for the purposes of this paragraph, and
established under or by a Norfolk Island enactment.
This amendment extends the application of paragraph 6(5)(e) to the
comparative offices under Norfolk Island enactments. It ensures that
the same interpretation is applied to the determination of whether a
particular person holding an office established under a Norfolk Island
enactment, or an office established under a Commonwealth enactment is
an agency for the purposes of the Privacy Act.
Item 253 - After subsection 6(10)
Item 253 inserts new subsection 6(10A) which clarifies that the Supreme
Court of Norfolk Island is not a 'federal court' for the purposes of
the Privacy Act. Where it is appropriate for the Privacy Act to be
extended to Norfolk Island Courts, this has been expressly provided for
in that Act.
Item 254 - At the end of subparagraph 7(1)(a)(i) and (ii)
Item 254 amends paragraph 7(1)(a) by inserting 'or' at the end of
subparagraphs 7(1)(a)(i) and (ii). This is not intended to affect the
meaning of this provision, but rather ensures consistency of drafting
style throughout the Privacy Act.
Item 255 - After subparagraph 7(1)(a)(ii)
Subsection 7(1) stipulates that unless it is otherwise provided (and
excepting section 8) a reference in the Privacy Act to 'an act' or 'a
practice' is a reference to an act or a practice listed in paragraphs
7(1)(a) to (h). Rights and responsibilities under that Act are
directly linked to acts and practices. Therefore, this provision
ensures that the scope of the Privacy Act is limited to action
undertaken by specific persons or bodies, or under specified statutory
authority.
For example, subparagraph 7(1)(a) provides that an act or practice
(unless otherwise provided and excepting section 8) is a reference to
an act or practice undertaken by an agency (other than an eligible case
manager or hearing service provider), a file number recipient, a credit
reporting agency, or a credit provider, except those persons or bodies
listed in subparagraphs (i) to (vi). Item 255 inserts a new
subparagraph 7(1)(a)(iia) which excludes acts done, or practices
engaged in by a court of Norfolk Island. The amendment ensures that
the provision applies to Norfolk Island in the same manner as it
applies to the Commonwealth by providing that the acts and practices of
Norfolk Island courts in relation to personal information are treated
in the same manner under the Privacy Act as acts and practices of
federal courts (see existing subparagraph 7(1)(a)(ii) of the Privacy
Act).
Item 256 - At the end of subparagraph 7(1)(a)(iii)
Item 256 amends paragraph 7(1)(a) by inserting 'or' at the end of
subparagraph 7(1)(a)(iii). This is not intended to affect the meaning
of this provision, but rather ensures consistency of drafting style
throughout the Privacy Act.
Item 257 - After subparagraph 7(1)(a)(iii)
Subsection 7(1) stipulates that unless it is otherwise provided (and
excepting section 8) a reference in the Privacy Act to 'an act' or 'a
practice' is a reference to an act or a practice listed in paragraphs
7(1)(a) to (h). Rights and responsibilities under that Act are
directly linked to acts and practices. Therefore, this provision
ensures that the scope of the Privacy Act is limited to action
undertaken by specific persons or bodies, or under specified statutory
authority.
For example, subparagraph 7(1)(a) provides that an act or practice
(unless otherwise provided and excepting section 8) is a reference to
an act or practice undertaken by an agency (other than an eligible case
manager or hearing service provider), a file number recipient, a credit
reporting agency, or a credit provider, except those persons or bodies
listed in subparagraphs (i) to (vi). Item 257 inserts a new
subparagraph 7(1)(a)(iiiaa) which excludes acts done, or practices
engaged in by a Norfolk Island Minister. The amendment ensures that
the provision applies to Norfolk Island in the same manner as it
applies to the Commonwealth by providing that the acts and practices of
Norfolk Island Ministers and Commonwealth Ministers are treated in the
same manner under the Privacy Act (see existing subparagraph
7(1)(a)(iii) of the Privacy Act).
Item 258 - After paragraph 7(1)(b)
Subsection 7(1) stipulates that unless it is otherwise provided (and
excepting section 8) a reference in the Privacy Act to 'an act' or 'a
practice' is a reference to an act or a practice listed in paragraphs
7(1)(a) to (h). Rights and responsibilities under that Act are
directly linked to acts and practices. Therefore, this provision
ensures that the scope of the Privacy Act is limited to action
undertaken by specific persons or bodies, or under specified statutory
authority.
Item 258 inserts new paragraph 7(1)(ba) which provides that under the
Privacy Act, an act or practice (unless otherwise provided and
excepting section 8) includes a reference to an act or practice in
respect of an administrative matter undertaken by a court of Norfolk
Island. This ensures that the provision applies to Norfolk Island in
the same manner as it applies to the Commonwealth. This provision will
ensure that the acts and practices of Norfolk Island courts in relation
to personal information are subject to the same rights and
responsibilities under the Privacy Act as acts and practices of federal
courts (see paragraph 7(1)(b)).
Item 259 - Paragraph 7(1)(d) and (e)
Subsection 7(1) stipulates that unless it is otherwise provided (and
excepting section 8) a reference in the Privacy Act to 'an act' or 'a
practice' is a reference to an act or a practice listed in paragraphs
7(1)(a) to (h). Rights and responsibilities under that Act are
directly linked to acts and practices. Therefore, this provision
ensures that the scope of the Privacy Act is limited to action
undertaken by specific persons or bodies, or under specified statutory
authority.
Item 259 specifically excludes the scope of paragraphs 7(1)(d) and (e)
from applying to a Norfolk Island agency. This explicit exclusion is
to ensure that there is no ambiguity in the interpretation of
subsection 7(1) in respect of its application to Norfolk Island.
Comparative paragraphs which ensure the application of the provision is
extended effectively and explicitly to Norfolk Island agencies are
inserted under Item 260.
Item 260 - After paragraph 7(1)(e)
Subsection 7(1) stipulates that unless it is otherwise provided (and
excepting section 8) a reference in the Privacy Act to 'an act' or 'a
practice' is a reference to an act or a practice listed in paragraphs
7(1)(a) to (h). Rights and responsibilities under that Act are
directly linked to acts and practices. Therefore, this provision
ensures that the scope of the Privacy Act is limited to action
undertaken by specific persons or bodies, or under specified statutory
authority.
Item 260 inserts new paragraphs 7(1)(eaa) and (eab) which provide that
under the Privacy Act, an act or practice (unless otherwise provided
and excepting section 8) includes a reference to an act or practice
which is not related to an existing record and is undertaken by a
Norfolk Island Minister in relation to the affairs of a Norfolk Island
agency (paragraph 7(1)(eaa)); or an act or practice undertaken by an
Norfolk Island Minister in relation to a record in his or her
possession which relates to the affairs of a Norfolk Island agency.
This amendments will ensure that both Norfolk Island Ministers and
Commonwealth Ministers are subject to the same rights and
responsibilities in relation to personal information (see paragraphs
7(1)(d) and (e)).
Item 261 - Paragraph 8(1)(b)
Subsection 8(1) outlines rules to determine when an act done or
practice engaged in by a person on behalf of, or in the course of
employment by, a specified body will be deemed to be an act done or
practice engaged in by that body. Item 261 amends this subsection by
inserting at paragraph 8(1)(b) 'or Norfolk Island enactment' after
'Commonwealth enactment'. The amendment ensures that rights and
responsibilities under the Privacy Act are applied consistently to
bodies established under Commonwealth and Norfolk Island enactments.
Item 262 - Subsection 9(3)
Section 9 provides rules for determining when a body will be considered
a 'collector' for the purposes of the application of the Privacy Act.
Important responsibilities attach to collectors under that Act. Item
262 amends this section by inserting at subsection 9(3) 'or Norfolk
Island enactment' after 'Commonwealth enactment'. The amendment
ensures that rights and responsibilities under the Privacy Act are
applied consistently to bodies established under Commonwealth and
Norfolk Island enactments.
Item 263 - Subsection 10(3)
Section 10 provides rules for determining when a body will be
considered a 'record-keeper' for the purposes of the application of the
Privacy Act. Important responsibilities attach to record-keepers under
that Act. Item 263 amends this section by inserting at subsection
10(3) 'or Norfolk Island enactment' after 'Commonwealth enactment'.
The amendment ensures that rights and responsibilities under the
Privacy Act are applied consistently to bodies established under
Commonwealth and Norfolk Island enactments.
Item 264 - Subsection 11(3)
Section 11 provides rules for determining when a person or a body will
be considered a 'file number recipient' for the purposes of the
application of the Privacy Act. Important responsibilities attach to
file number recipients under that Act. Item 264 amends the section by
inserting at subsection 11(3) 'or Norfolk Island enactment' after
'Commonwealth enactment'. The amendment ensures that rights and
responsibilities under the Privacy Act are applied consistently to
bodies established under Commonwealth and Norfolk Island enactments.
Item 265 - After subsection 15(1)
Part III, Division 2 of the Privacy Act establishes the Information
Privacy Principles which include principles for the collection, use and
disclosure of personal information by agencies. Item 265 inserts a new
subsection 15(1A) which provides that in relation to a Norfolk Island
authority, the Information Privacy Principles 1, 2, 3, 10 and 11 apply
only in relation to information collected by an agency after the
commencement of the relevant part of this amending Bill. This is
consistent with the existing application of those specific Information
Privacy Principles to Commonwealth agencies under section 15(1).
The Information Privacy Principles 4 to 9 inclusive will apply to a
Norfolk Island agency in the equivalent way in which they apply to a
Commonwealth agency as per existing subsection 5(2) of the Privacy Act.
Item 266 - Before section 16
Part III, Division 2 of the Privacy Act establishes the Information
Privacy Principles which include principles for the collection, use and
disclosure of personal information by agencies. Item 266 inserts new
section 15B which establishes special provisions to ensure the
Information Privacy Principles are applied to Norfolk Island agencies
in a manner equivalent to Commonwealth agencies. These Principles are
central to the imposition of duties and responsibilities to agencies
under the Privacy Act. The new section 15B ensures that they are
properly amended to apply effectively to the Norfolk Island agencies.
Specifically, section 15B provides that where the 'record-keeper' is a
Norfolk Island agency the reference to the law of the Commonwealth at
Principles 5 (Information relating to records kept by a record-keeper),
6 (Access to records containing personal information) and 7 (Alteration
of records containing personal information), includes a reference to
Norfolk Island.
The amendment is intended to have a similar effect as provision 15A of
the Privacy Act, introduced by Schedule 3 of the Australian Capital
Territory Self Government Services (Consequential Provisions) Act
1994. These sections are replicated and separated as Schedule 3 of the
Australian Capital Territory Self Government Services (Consequential
Provisions) Act can effectively be repealed by an Australian Capital
Territory enactment under section 23 of that Act. Item 266 is
drafted to ensure that even if Schedule 3 of that Act is repealed
pursuant to section 23 it will not affect the application of the
Information Privacy Principles to Norfolk Island agencies.
Item 267 - Paragraph 27(1)(b)
Section 27 stipulates the functions of the Privacy Commissioner in
respect of interferences with privacy. Paragraph 27(1)(b) provides
that the Privacy Commissioner's functions include examination of a
proposed enactment that would require or authorise acts or practices of
an agency or organisation that might otherwise be an interference in
the privacy of an individual, and to minimise such adverse effects.
This examination may occur with or without a request from a Minister.
Item 267 amends paragraph 27(1)(b) by inserting 'or a Norfolk Island
Minister'.
The existing reference in paragraph 27(1)(b) to 'Minister' must be
construed, in the absence of anything to the contrary, as a reference
to a Commonwealth Minister. Therefore, the amendment is necessary to
ensure that a Norfolk Island Minister also has the same authority in
respect of a request to the Privacy Commissioner to examine a proposed
enactment under paragraph 27(1)(b).
Item 268 - Paragraph 27(1)(f)
Section 27 stipulates the functions of the Privacy Commissioner in
respect of interferences with privacy. Paragraph 27(1)(f) provides
that the Privacy Commissioner's functions include the provision of
advice to a Minister, agency or organisation on any matter relevant to
the operation of the Privacy Act. This advice may be given on request,
or on the Commissioner's own initiative. Item 268 amends paragraph
27(1)(f) by inserting 'a Norfolk Island Minister'.
The existing reference in paragraph 27(1)(f) to 'Minister' must be
construed, in the absence of anything to the contrary, as a reference
to a Commonwealth Minister. Therefore, the amendment is necessary to
ensure that a Norfolk Island Minister has the equal ability to seek
advice from the Privacy Commissioner on relevant matters.
Item 269 - Paragraph 27(1)(k)
Section 27 stipulates the functions of the Privacy Commissioner in
respect of interferences with privacy. Paragraph 27(1)(k) provides
that the Privacy Commissioner's functions include the examination of a
proposal for data matching or data linkage that may involve an
interference with the privacy of individuals, or which may otherwise
have any adverse effects on the privacy of individuals, and to ensure
that such adverse effects are minimised. This examination may occur
with or without a request from a Minister. Item 269 amends paragraph
27(1)(k) by inserting 'or a Norfolk Island Minister'.
The existing reference in paragraph 27(1)(k) to 'Minister' must be
construed, in the absence of anything to the contrary, as a reference
to a Commonwealth Minister. Therefore, the amendment is necessary to
ensure that a Norfolk Island Minister has the equal ability to request
the Privacy Commissioner to examine a data matching or data linking
proposal under this provision.
Item 270 - Paragraph 30(3)(d)
Section 30 of the Privacy Act provides for the provision of a report by
the Privacy Commissioner following the investigation of an act or
practice under the Privacy Act. Paragraph 30(3)(d) requires that where
a report is required under subsection 30(1) resulting from an
investigation under paragraph 27(1)(a), 28(1)(b), 28(1)(c) or
28A(1)(b), then the Commissioner must serve a copy of that report on
the agency, file number recipient, credit reporting agency or credit
provider concerned, and the responsible Minister (if any). Item 270
amends paragraph 30(3)(d) by inserting 'or Norfolk Island Minister (if
any)'.
The existing reference to in paragraph 30(3)(d) to 'Minister' must be
construed, in the absence of anything to the contrary, as a reference
to a Commonwealth Minister. Therefore, the amendment is necessary to
ensure that, where relevant, reports must be served on the responsible
Norfolk Island Minister.
Item 271 - Subsection 30(4)
Section 30 of the Privacy Act provides for the provision of a report by
the Privacy Commissioner following the investigation of an act or
practice under the Privacy Act. Paragraph 30(4) requires the Privacy
Commissioner to serve a further report on the responsible Minister (if
any) where a report is served under subsection 30(3) and after 60 days,
the Commissioner is still of the view that the act or practice
interferes with the privacy of an individual and is not satisfied that
reasonable steps have been taken to prevent continuation of the
practice or repetition of the act. Item 271 amends subsection 30(4) by
inserting 'or Norfolk Island Minister (if any)'.
The existing reference in subsection 30(4) to 'Minister' must be
construed, in the absence of anything to the contrary, as a reference
to a Commonwealth Minister. Therefore, the amendment is necessary to
ensure that, where relevant, the further reports must be served on the
responsible Norfolk Island Minister.
Item 272 - At the end of section 33
Section 33 of the Privacy Act excludes certain matters from the Privacy
Commissioner's reports under sections 30, 31 or 32 of the Privacy Act.
Item 272 amends section 33 by inserting new subsection 33(5) which
provides that 'State' includes Norfolk Island.
The effect of section 33(5) is that in determining whether a matter
should be excluded from a report, the Privacy Commissioner shall
include consideration of the need to prevent prejudice to relations
between the Commonwealth Government and the Norfolk Island Government,
or between Norfolk Island and another State or Territory (paragraph
33(2)(b)).
Item 273 - At the end of Division 3 of Part IV
Item 273 inserts new section 33B into the Privacy Act. Section 33B
provides that copies of reports made by the Privacy Commissioner under
sections 30, 31 or 32 and which relate to a Norfolk Island matter must
be provided to the Norfolk Island Justice Minister (defined under Item
248).
To assist the Privacy Commissioner to apply this new provision,
subsection 33B(2) provides guidance in determining when a report
relates to a Norfolk Island matter. A report made under section 30
relates to a Norfolk Island matter where it considers an act or
practice of a Norfolk Island agency (paragraph 33B(2)(a)).
A report made under section 31 relates to a Norfolk Island matter where
it considers a proposed Norfolk Island enactment (as defined at Item
247) (paragraph 33B(2)(b)). A report made under section 32 relates to
a Norfolk Island matter where it considers an activity or audit of a
Norfolk Island agency (as defined at Item 246) (paragraph 33B(2)(c)).
Item 274 - Paragraph 34(2)(a)
Section 34 of the Privacy Act limits the performance of the Privacy
Commissioner's functions by restricting his or her ability to provide
information about the existence (subsection 34(1)) or content
(subsection 34(2)) of information related to an exempt document under
the FOI Act.
Item 274 amends section 34 by inserting 'or a Norfolk Island Minister'
in paragraph 34(2)(a). This amendment extends the application of
section 34 to Norfolk Island and ensures that the Privacy Commissioner
does not give a person official documents of the Norfolk Island
Minister that would be exempt documents under the FOI Act.
Item 275 - At the end of paragraph 34(2)(b)
Section 34 of the Privacy Act limits the performance of the Privacy
Commissioner's functions by restricting his or her ability to provide
information about the existence (subsection 34(1)) or content
(subsection 34(2)) of information related to an exempt document under
the FOI Act.
Item 275 amends section 34 by inserting 'or a Norfolk Island Minister'
in paragraph 34(2)(b). This amendment extends the application of
section 34 to Norfolk Island and ensures that the Privacy Commissioner
does not give a person official documents of the Norfolk Island
Minister that would be exempt documents under the FOI Act.
Item 276 - Section 37 (after table Item 5)
Section 37 of the Privacy Act provides a table to enable the
identification of the 'principal executive' of an agency. The
identification of the appropriate person as the principal executive is
necessary to ensure the efficient operation of subsection 36(6) of that
Act. Subsection 36(6) provides that where a complaint is made about an
act or practice of an agency which is an unincorporated body, the
principal executive of the agency is the respondent.
Item 276 inserts Items 5A, 5B, 5C and 5D into the table in section 37.
These Items identify the appropriate principal executive of the agency
in respect of Norfolk Island agencies. For example, in respect of a
public sector agency as defined by the Public Sector Management Act
2000 of Norfolk Island (table Item 5A); an unincorporated body, or
tribunal as defined in subsection 6(1) paragraph (c) of the definition
of Norfolk Island agency (see Item 246) (table Item 5B); or a body
established or appointed by the Administrator of Norfolk Island, or
Norfolk Island Minister otherwise than under a Norfolk Island enactment
(table Item 5C); then the principal executive of the agency is the
Chief Executive Officer of Norfolk Island (as defined by the Public
Sector Management Act 2000 of Norfolk Island).
This amendment makes the Chief Executive Officer of Norfolk Island the
principal executive for public servants and people appointed or bodies
established under a Norfolk Island enactment and provides a single
channel for communications to and from the Privacy Commissioner and
Norfolk Island on most Norfolk Island matters. The Chief Executive
Officer of Norfolk Island is responsible for public servants and
statutory office holders under the Public Sector Management Act 2000 of
Norfolk Island.
Alternatively, where the agency is a court of Norfolk Island (table
Item 5D), then the principal executive of the agency is the registrar
or principal registrar of the court (or the person occupying an
equivalent office).
Item 277 - Subsection 43(7)
Section 43 of the Privacy Act establishes requirements for the Privacy
Commissioner's conduct of investigation of complaints under the Privacy
Act. Item 277 amends section 43 by inserting 'or Norfolk Island
Minister (if any)' at subsection 43(7) to ensure that the relevant
Norfolk Island Minister has been informed about stipulated matters
related to the investigation under this provision. The outcome of this
amendment is that Norfolk Island Ministers are treated in the same
manner as Commonwealth Ministers in relation to investigations by the
Privacy Commissioner.
Item 278 - Subsection 43(8)
Section 43 of the Privacy Act establishes requirements for the Privacy
Commissioner's conduct of investigation of complaints under the Privacy
Act. Item 278 amends section 43 by inserting 'or a Norfolk Island
Minister' at subsection 43(8) to enable the Privacy Commissioner to
discuss any matter relevant to the investigation with the relevant
Norfolk Island Minister. The outcome of this amendment is that Norfolk
Island Ministers are treated in the same manner as Commonwealth
Ministers in relation to investigations by the Privacy Commissioner.
Item 279 - Subsection 43(8A)
Section 43 of the Privacy Act establishes requirements for the Privacy
Commissioner's conduct of investigation of complaints under the Privacy
Act. Item 279 amends section 43 by inserting 'or a Norfolk Island
Minister' at subsection 43(8A) which restricts the Privacy
Commissioner's ability to discuss certain investigations with a Norfolk
Island Minister under subsection 43(8). The outcome of this amendment
is that Norfolk Island Ministers are treated in the same manner as
Commonwealth Ministers in relation to investigations by the Privacy
Commissioner.
Item 280 - At the end of paragraph 43(9)(b)
Section 43 of the Privacy Act establishes requirements for the Privacy
Commissioner's conduct of investigation of complaints under the Privacy
Act. Item 278 amends section 43 by inserting 'or Norfolk Island
Minister' at paragraph 43(9)(b) to require that, in specified
circumstances, the Privacy Commissioner provide to the relevant Norfolk
Island Minister evidence that an officer of an agency has been guilty
of a breach of duty or of misconduct. The outcome of this amendment is
that Norfolk Island Ministers are treated in the same manner as
Commonwealth Ministers in relation to investigations by the Privacy
Commissioner.
Item 281 - Subsection 50(1)
Section 50 of the Privacy Act authorises the Privacy Commissioner to
transfer matters to other authorities such as the Ombudsman or the
Australian Human Rights Commission in appropriate circumstances.
Subsection 50(1) provides definitions for the purposes of section 50.
Item 281 inserts a definition of Norfolk Island Public Service Board,
which for the purposes of section 50 means the Public Service Board
established under the Public Sector Management Act 2000 of Norfolk
Island.
Item 282 - After subparagraph 50(2)(a)(ii)
Section 50 of the Privacy Act authorises the Privacy Commissioner to
transfer matters to other authorities such as the Ombudsman or the
Australian Human Rights Commission in appropriate circumstances.
Subsection 50(2) provides the criteria to be applied by the Privacy
Commissioner in determining whether a matter should be transferred to
another authority and the process for such a transfer. Item 282
inserts subparagraph 50(2)(a)(iia) which expands the reference to the
'Ombudsman under the Ombudsman Act 1976' (subparagraph 50(2)(a)(ii)) to
also include 'the Ombudsman under a particular Norfolk Island
enactment'. This amendment enables complaints which could be more
effectively or conveniently dealt with by the Norfolk Island Ombudsman
(or the Commonwealth Ombudsman performing functions under an enactment
of Norfolk Island) to be transferred to that office. This could apply,
for example, to complaints relating to Norfolk Island agencies.
Item 283 - At the end of paragraph 50(2)(b)
Item 283 amends section 50 by inserting 'or' at the end of paragraph
50(2)(b). This amendment enables the insertion of an additional
paragraph under Item 284.
Item 284 - After paragraph 50(2)(b)
Section 50 of the Privacy Act authorises the Privacy Commissioner to
transfer matters to other authorities such as the Ombudsman or the
Australian Human Rights Commission in appropriate circumstances.
Subsection 50(2) provides the criteria to be applied by the Privacy
Commissioner in determining whether a matter should be transferred to
another authority and the process for such a transfer. Item 284 amends
section 50 by inserting a new paragraph 50(2)(ba) which expands the
reference to an application made to the Public Service Commissioner
under the Public Service Act 1999 (paragraph 50(2)(b)) to also include
applications with respect to matters that have been, or could have
been, made to the Norfolk Island Public Service Board under the Public
Sector Management Act 2000 of Norfolk Island.
Item 285 - After subparagraph 50(3)(a)(ii)
Section 50 of the Privacy Act authorises the Privacy Commissioner to
transfer matters to other authorities such as the Ombudsman or the
Australian Human Rights Commission in appropriate circumstances.
Subsection 50(3) provides that where a complaint is transferred under
subsection 50(2), it will be taken to be a complaint made to the
authority to which it is transferred. Item 282 inserts new
subparagraph 50(3)(a)(iia) which expands the reference to the
'Ombudsman under the Ombudsman Act 1976' (subparagraph 50(3)(a)(ii)) to
also include 'the Ombudsman under a particular Norfolk Island
enactment'. This amendment requires that where a matter is transferred
by the Privacy Commissioner to the Norfolk Island Ombudsman (or the
Commonwealth Ombudsman performing functions under an enactment of
Norfolk Island) under subsection 50(2), the complaint shall be taken to
be a complaint made to that office. This could apply, for example, to
complaints relating Norfolk Island agencies.
Item 286 - At the end of paragraph 50(3)(b)
Item 286 amends section 50 by inserting 'or' at the end of paragraph
50(3)(b). This amendment enables the insertion of an additional
paragraph under Item 287.
Item 287 - After paragraph 50(3)(b)
Section 50 of the Privacy Act authorises the Privacy Commissioner to
transfer matters to other authorities such as the Ombudsman or the
Australian Human Rights Commission in appropriate circumstances.
Subsection 50(3) provides that where a complaint is transferred under
subsection 50(2) it will be taken to be a complaint made to the
authority to which it is transferred. Item 287 inserts new paragraph
50(3)(ba) which expands the reference to an application made to the
Public Service Commissioner under the Public Service Act 1999
(paragraph 50(2)(b)) to also include applications with respect to
matters that have been, or could have been, made to the Norfolk Island
Public Service Board under the Public Sector Management Act 2000 of
Norfolk Island.
This amendment requires that where a matter is transferred by the
Privacy Commissioner to the Norfolk Island Public Service Board under
subsection 50(2), the complaint shall be taken to be a complaint made
to that office. This could apply, for example, to complaints relating
Norfolk Island agencies.
Item 288 - Before subsection 60(3)
Section 60 of the Privacy Act provides for payment of compensation and
expenses in respect of determinations under that Act, in specified
circumstances. Subsection 60(2) specifies that in cases where the
respondent is an agency that has the capacity to sue and be sued, then
the amount is recoverable as a debt due by that agency to the
complainant. In any other case, the amount is recoverable as a debt
due by the Commonwealth to the complainant. Item 288 inserts new
subsection 60(2B) which provides that in the case of a determination
relating to a Norfolk Island agency the reference to the 'Commonwealth'
at subsection 60(2) is changed to 'Norfolk Island'. This means that
where the agency concerned does not have a capacity to sue or be sued,
the amount is recoverable as a debt due by Norfolk Island to the
complainant.
This means that the Norfolk Island Government is responsible for the
payment of any amount determined by the Privacy Commissioner to be
payable to a complainant under subparagraph 52(1)(b)(iii) or subsection
52(3) of the Privacy Act.
Item 289 - At the end of section 66
Section 66 of the Privacy Act provides a penalty for the failure or
refusal to give information, answer a question, or provide a document
or record when required to do so under that Act. The section also
provides a number of reasonable excuses in relation to the failure or
refusal to give such information under the Privacy Act. Item 289
inserts new subsection 66(12) which provides additional definitions for
the purpose of applying section 66 to Norfolk Island. Specifically,
subsection 66(12) provides that Attorney-General in relation to Norfolk
Island, means the Norfolk Island Justice Minister (defined at Item
248). Subsection 66(12) further provides that State includes Norfolk
Island.
The application of these amendments enable subsections 66(7), (8) and
(9) to be applied directly to Norfolk Island. This means that the
Norfolk Island Justice Minister may provide an undertaking under
subsection 66(8) that other than in specified circumstances, material
will not be used as evidence in proceedings for an offence against the
law of Norfolk Island, or any other disciplinary proceedings against
the individual. In providing such an undertaking the Norfolk Island
Justice Minister must provide stated public interest reasons as to why
the information or document should not be provided to the Privacy
Commissioner.
Item 290 - At the end of subsection 68(1)
Subsection 68(1) of the Privacy Act provides that the Privacy
Commissioner may authorise a person to enter premises of an agency, an
organisation, a file number recipient, a credit reporting agency or
credit provider under specified circumstances. The section further
authorises such a person to inspect any document kept on the premises
relevant to the performance of the Privacy Commissioner's functions.
However, subsection 68(1) excludes documents in respect of which a
certificate has been provided by the Attorney-General under subsection
70(1) or (2). Item 290 extends this exception to also exclude
'documents in respect of which the Norfolk Island Justice Minister has
given a certificate under subsection 70(4)'.
Item 291 - At the end of section 70
Subsection 70(1) of the Privacy Act enables the Attorney-General to
provide a certificate to the Privacy Commissioner certifying that it
would not be in the public interest to give information on a specified
matter or produce a specified document or other record. Paragraphs
70(1)(a) to (h) inclusive provide the criteria that must be applied in
determining whether the provision of the information or document would
be contrary to the public interest. Where such a certificate is
provided, the Commissioner is not entitled to require the information
or document to be given.
Item 291 inserts new subsection 70(4) which establishes a comparative
provision enabling the Norfolk Island Justice Minister (defined at Item
248) to give the Privacy Commissioner a certificate certifying that it
would not be in the public interest to give information on a specified
matter or produce a specified document or other record. Such a
certificate must specify a reason prescribed at paragraphs 70(4)(a) to
(h). Where such a certificate is provided, the Commissioner is not
entitled to require the information or document to be given.
The amendment ensures that the same protections from disclosures that
would not be in the public interest apply to both Norfolk Island and
the Commonwealth.
Item 292 - Subsection 80G(1) (definition of secrecy provision)
Part VIA of the Privacy Act makes special provision for dealing with
personal information in emergencies and disasters. Subsection 80G(1)
sets out definitions of a number of terms used in this Part. Item 292
amends the definition of secrecy provision in subsection 80G(1) by
extending the application of the definition to include provisions of a
Norfolk Island enactment in addition to provisions of a law of the
Commonwealth.
This means that the definition applies to a provision of a Norfolk
Island enactment that prohibits or regulates the use or disclosure of
personal information. This can include provisions with general or
specified application.
Item 293 - After subsection 80R(1)
Item 293 inserts new subsection 80R(1A) in the Privacy Act. Subsection
80R(1A) replicates the operation of subsection 80R(1) in respect of
secrecy provisions in Commonwealth enactments, and applies the same
principle to Norfolk Island enactments.
The effect of the inserted provision is to clarify that the operation
of Part VIA of the Privacy Act is only limited by secrecy provisions,
whether provided for in Commonwealth or Norfolk Island enactments,
where such provisions expressly exclude the operation of this section.
Item 294 - At the end of section 89
Part VIII of the Privacy Act outlines the application of this Act in
respect of obligations of confidence. Section 89 stipulates the
obligations of confidence to which this Part applies. Item 294 inserts
new paragraph 89(c) which extends the application of this Part to an
obligation which arises under or by virtue of a Norfolk Island
enactment which is in force. This ensures that the same protections
are provided to obligations arising under both Norfolk Island and
Commonwealth enactments.
Item 295 - Application - Commonwealth contracts
Section 95B of the Privacy Act outlines the requirements under that Act
in respect of Commonwealth contracts. Item 244 broadens the definition
of Commonwealth contracts under the Privacy Act to include contracts
entered into by the Norfolk Island Government. Item 295 provides
transitional arrangements which limit the application of section 95B to
contracts entered into by the Norfolk Island Government after the
commencement of Item 295. This ensures that the application of the
amendments do not have unintentional retrospective application to
Norfolk Island contracts entered into prior to the obligations arising
under this section entering into force.
Schedule 2 - Amendments relating to Christmas Island
Christmas Island Act 1958
Item 1 - Section 8G
Item 1 repeals section 8G of the Act and substitutes a new section 8G.
The new section 8G establishes an arrangement for vesting and
delegating powers under Western Australian laws applied on Christmas
Island.
Subsection 8G(1) provides that powers of a Minister, Governor or
Governor-in-Council of Western Australia by a Western Australian law in
force on Christmas Island are instead vested in the Commonwealth
Minister.
Subsection 8G(2) provides that powers vested in a person or authority
by a Western Australian law in force on Christmas Island, and which are
not covered by subsection 8G(1), are instead vested in the Commonwealth
Minister.
Subsection 8G(3) provides that the Commonwealth Minister may vest or
delegate powers subject to subsections 8G(1) and 8G(2) to another
person or authority.
Subsection 8G(4) allows the Commonwealth Minister to empower a person
or authority that is vested with a power under subsection 8G(3) to
delegate that power to another person.
Subsection 8G(5) provides that if a person or authority is subject to
an arrangement under section 8H, the Commonwealth Minister is taken to
have vested those powers under Western Australian law applied on
Christmas Island that the person or authority would normally hold in
Western Australia in that person or authority.
Subsection 8G(6) allows the Commonwealth Minister to direct that
subsection 8G(5) does not apply to a specified power, despite the
existence of an arrangement under section 8H.
Subsection 8G(7) provides that a direction under subsection 8G(6) may
be conditional or unconditional.
Subsection 8G(8) states that for the purpose of section 8G, an
instrument may identify a power by reference to a class of powers.
Subsection 8G(9) provides that a person or authority vested with a
power under section 8G is able to exercise that power despite not
holding a qualification required by a Western Australian law.
Subsection 8G(10) clarifies that the operation of section 8G does not
interfere with the application of Western Australian laws to Christmas
Island under section 8A. For example, a regulation made under a law of
Western Australia applies to Christmas Island by virtue of section 8A,
despite the power to make a regulation for Christmas Island being
vested in the Commonwealth Minister by section 8G.
Subsection 8G(11) provides that instruments made under section 8G are
not legislative instruments.
Subsection 8G(12) defines the terms authority, authority of Western
Australia and power for the purposes of section 8G.
Item 2 - Subsection 8H(2)
Item 2 amends the definitions of officer, employee and authority used
in subsection 8H(2) to reflect those used in the new section 8G.
Item 3 - Transitional - directions under paragraph 8G(3)(a) of the
Christmas Island Act 1958
Item 3 provides that any direction in force under the previous
paragraph 8G(3)(a) of the Act remains in force as if it were made under
the new paragraph 8G(3)(a).
Item 4 - Transitional - delegations under paragraph 8G(3)(b) of the
Christmas Island Act 1958
Item 4 provides that any delegation in force under the previous
paragraph 8G(3)(b) of the Act remains in force as if it were made under
the new paragraph 8G(3)(b).
Item 5 - Transitional - delegations under subsection 8G(4) of the
Christmas Island Act 1958
Item 5 provides that any delegation in force under the previous
paragraph 8G(4) of the Act remains in force as if it were made under
the new paragraph 8G(4).
Schedule 3 - Amendments relating to the Cocos (Keeling) Islands
Cocos (Keeling) Islands Act 1955
Item 1 - Section 8G
Item 1 repeals section 8G of the Act and substitutes a new section 8G.
The new section 8G establishes an arrangement for vesting and
delegating powers under Western Australian laws applied on the Cocos
(Keeling) Islands.
Subsection 8G(1) provides that powers of a Minister, Governor or
Governor-in-Council of Western Australia by a Western Australian law in
force on the Cocos (Keeling) Islands are instead vested in the
Commonwealth Minister.
Subsection 8G(2) provides that powers vested in a person or authority
by a Western Australian law in force on the Cocos (Keeling) Islands,
and which are not covered by subsection 8G(1), are instead vested in
the Commonwealth Minister.
Subsection 8G(3) provides that the Commonwealth Minister may vest or
delegate powers subject to subsections 8G(1) and 8G(2) to another
person or authority.
Subsection 8G(4) allows the Commonwealth Minister to empower a person
or authority that is vested with a power under subsection 8G(3) to
delegate that power to another person.
Subsection 8G(5) provides that if a person or authority is subject to
an arrangement under section 8H, the Commonwealth Minister is taken to
have vested those powers under Western Australian law applied on the
Cocos (Keeling) Islands that the person or authority would normally
hold in Western Australia in that person or authority.
Subsection 8G(6) allows the Commonwealth Minister to direct that
subsection 8G(5) does not apply to a specified power, despite the
existence of an arrangement under section 8H.
Subsection 8G(7) provides that a direction under subsection 8G(6) may
be conditional or unconditional.
Subsection 8G(8) states that for the purpose of section 8G, an
instrument may identify a power by reference to a class of powers.
Subsection 8G(9) provides that a person or authority vested with a
power under section 8G is able to exercise that power despite not
holding a qualification required by a Western Australian law.
Subsection 8G(10) clarifies that the operation of section 8G does not
interfere with the application of Western Australian laws to the Cocos
(Keeling) Islands under section 8A. For example, a regulation made
under a law of Western Australia applies to the Cocos (Keeling) Islands
by virtue of section 8A, despite the power to make a regulation for the
Cocos (Keeling) Islands being vested in the Commonwealth Minister by
section 8G.
Subsection 8G(11) provides that instruments made under section 8G are
not legislative instruments.
Subsection 8G(12) defines the terms authority, authority of Western
Australia and power for the purposes of section 8G.
Item 2 - Subsection 8H(2)
Item 2 amends the definitions of officer, employee and authority used
in subsection 8H(2) to reflect those used in the new section 8G.
Item 3 - Transitional - directions under paragraph 8G(3)(a) of the
Cocos (Keeling) Islands Act 1955
Item 3 provides that any direction in force under the previous
paragraph 8G(3)(a) of the Act remains in force as if it were made under
the new paragraph 8G(3)(a).
Item 4 - Transitional - delegations under paragraph 8G(3)(b) of the
Cocos (Keeling) Islands Act 1955
Item 4 provides that any delegation in force under the previous
paragraph 8G(3)(b) of the Act remains in force as if it were made under
the new paragraph 8G(3)(b).
Item 5 - Transitional - delegations under subsection 8G(4) of the
Cocos (Keeling) Islands Act 1955
Item 5 provides that any delegation in force under the previous
paragraph 8G(4) of the Act remains in force as if it were made under
the new paragraph 8G(4).