EXPLANATORY STATEMENT Ordinance No. 3, 2016

EXPLANATORY STATEMENT

Ordinance No. 3, 2016

Subject - Norfolk Island Act 1979

Norfolk Island Regional Council Preparatory Election Ordinance 2016

The Norfolk Island Act 1979 (the Act) provides for the Government of the Territory of

Norfolk Island. It defines the roles, responsibilities and powers of the Governor-General, the

responsible Commonwealth Minister, the Administrator of Norfolk Island, and the Executive

Director of Norfolk Island. The Act also establishes the Norfolk Island Advisory Council

which has the role of advising the Administrator of Norfolk Island on matters affecting the

Territory during the interim transition time.

Section 19A of the Act provides that the Governor-General may make Ordinances for the

peace, order and good government of the Territory of Norfolk Island.

The Norfolk Island Regional Council Preparatory Election Ordinance 2016 (the Ordinance)

provides for an election to elect five Norfolk Island regional councillors to be held on 28 May

2015. The five elected councillors will transition to become the inaugural councillors for the

Norfolk Island Regional Council, following its establishment under a future law.

To avoid the need to create a bespoke electoral framework for the local government election,

the proposed Ordinance applies New South Wales laws relevant to the election of local

councillors to Norfolk Island, with modifications for Norfolk Island.

Specifically, the Ordinance applies relevant portions of the following New South Wales Acts

and regulations:

Local Government Act 1993 (NSW)

Local Government (General) Regulation 2005 (NSW)

Parliamentary Electorates and Elections Act 1912 (NSW)

Parliamentary Electorates and Elections Regulation 2008 (NSW)

The Ordinance makes a number of modifications which affect the way the above listed New

South Wales laws will apply in Norfolk Island. These amendments ensure the laws extended

to Norfolk Island are consistent with other laws in force in the Territory. The general

approach taken has been to use the New South Wales framework with as few modifications

as possible. This is because it is a proven and established framework for local government

elections.

The New South Wales laws being applied to Norfolk Island will be applied as they are in

force on 13 November 2015. Copies of the laws in force at this date may be found on the

New South Wales Legislation website.

The Ordinance provides for a number of things incidental to the election of the councillors.

These include:

Claims for, and objections to, inclusion on an electoral roll

Forms to be used for the purposes of an election

Political Parties

Authorised Version Explanatory Statement registered 10/03/2016 to F2016L00294

Nominations for candidature at an election

Grouping of candidates and group voting squares

The preparation of ballot-papers

Postal voting

The counting of votes, including the rejection of informal votes

The application of relevant parts of the Parliamentary Electorates and Elections Act

1912 (NSW) to elections under this Act

The preparation of the Ordinance has been informed by advice from the Norfolk Island

Advisory Council. The Advisory Council released a discussion paper on the topic of elections

for the Regional Council, took written submissions and held a public hearing. Key aspects of

this Ordinance such as the requirements for entitlement to vote are informed by the advice of

the Advisory Council.

Details of the Ordinance are set out in the Attachment.

The Ordinance is a legislative instrument for the purpose of the Legislation Act 2003. The whole of the proposed Ordinance commences the day after the Ordinance is registered.

Authority: Section 19A of the Norfolk Island Act 1979


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Norfolk Island Regional Council Preparatory Election Ordinance 2016

This Legislative Instrument is compatible with the human rights and freedoms recognised or

declared in the international instruments listed in section 3 of the Human Rights

(Parliamentary Scrutiny) Act 2011.

Overview of Legislative Instrument

The Ordinance would allow an election for five Norfolk Island regional councillors to be held

on 28 May 2015. The five elected councillors will transition to become the inaugural

councillors for the Norfolk Island Regional Council, following its establishment under a

future law.

To avoid the need to create a bespoke electoral framework for the local government election,

the proposed Ordinance would apply New South Wales laws relevant to the election of local

councillors to Norfolk Island, with modifications for Norfolk Island.

Specifically, the proposed Ordinance would apply relevant portions of the following New

South Wales Acts and regulations, as they are in force on 13 November 2015:

Local Government Act 1993 (NSW)

Local Government (General) Regulation 2005 (NSW)

Parliamentary Electorates and Elections Act 1912 (NSW)

Parliamentary Electorates and Elections Regulation 2008 (NSW)

Human rights implications

This Legislative Instrument engages the following rights:

The right to take part in public affairs and elections

Right to freedom of opinion and expression

Right to freedom of assembly and association

Privacy and reputation

The right to take part in public affairs and elections

The right to take part in public affairs and elections guarantees the right of citizens to stand

for public office, to vote in elections and to have access to positions in public service. This

right is contained in Article 25 of the International Covenant on Civil and Political Rights

(ICCPR). Article 25 provides that every citizen shall have the right and the opportunity to

take part in the conduct of public affairs, directly or through freely chosen representatives; to

vote and to be elected at genuine periodic elections which shall be by universal and equal


suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the

electors; and to have access, on general terms of equality, to public service in his country.

The instrument provides for the first election of five councillors to the Norfolk Island

Regional Council (NIRC). Citizens may participate directly in the conduct of public affairs

when they are elected to the NIRC. Citizens may indirectly participate in the conduct of

public affairs when they elect councillors to represent them. The instrument does not limit

the right to take part in public affairs and elections. Instead the instrument contributes to the

realisation of Article 25 of the ICCPR as it will require all eligible persons over 18 years of

age living in Norfolk Island to vote in the first local election of the NIRC.

See also Article 5 of the Convention on the Elimination of All Forms of Racial

Discrimination (CERD) , Articles 7 and 8 of the Convention on the Elimination of All Forms

of Discrimination Against Women (CEDAW) and Article 29 of the Convention on the Rights

of Persons with Disabilities (CRPD). The CRPD requires countries to ensure that voting

procedures, facilities and materials are appropriate, accessible and easy to understand and use

for people with disability. CEDAW requires countries to take all appropriate measures to

eliminate discrimination against women in the political and public life of the country and, in

particular, shall ensure to women, on equal terms with men, the right to participate in non-

governmental organisations and associations concerned with the public and political life of

the country. The instrument does not limit people’s accessibility to be elected, or to elect, a

NIRC councillor on the basis of their gender, race or disability.

Right to freedom of opinion and expression

The right to freedom of opinion and expression is contained in Articles 19 and 20 of the

International Covenant on Civil and Political Rights (ICCPR). In effect, Article 19 provides

that the right to freedom of opinion is the right to hold opinions without interference, and

cannot be subject to any exception or restriction. The right to freedom of expression extends

to any medium, including written and oral communications, the media, public protest,

broadcasting, artistic works and commercial advertising. The right is not absolute. It carries

with it special responsibilities, and may be restricted on several grounds. Article 20 provides

that any advocacy of national, racial or religious hatred that constitutes incitement to

discrimination, hostility or violence shall be prohibited by law.

The right to freedom of expression and opinion is engaged by the instrument where it

regulates the content, approval and display of electoral matter during the regulated period,

and attaches offences for non-compliance. The regulation of content, approval and display of

electoral matter is contained in Division 9A of Part 11 of the Local Government (General)

Regulation 2005 (NSW) as applied and modified by the instrument. The offences applicable

during the regulated period are contained in applied Subdivision 3 in Division 9A of Part 11

of the Local Government (General) Regulation 2005 (NSW), as applied and modified. The

applied regulations are consistent with those on the mainland, and ensure that voters have

access to appropriate election matter during the regulated period.

‘Electoral matter’ means any matter that is intended, likely or capable of affecting the result

of an election held or to be held or that is intended, likely or capable of influencing an elector

in relation to the casting of his or her vote at an election. This includes:

- the name of a candidate at any election;


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- the name of the party of any such candidate;

- the name or address of the committee rooms of any such candidate or party;

- the photograph of any such candidate; and

- any drawing or printed matter that purports to depict any such candidate or to be a

likeness or representation of any such candidate. For example, how-to-vote cards,

posters or advertisement contain electoral matter.

‘Regulated period’ for an election means the period starting with the closing date and ending

at 6 pm on election day, and all days to which polling for the election is adjourned.

Under Article 19(3) of the ICCPR freedom of expression may be limited as provided for by

law and when necessary to protect the rights or reputations of others, national security, public

order, or public health or morals. The regulation of content, approval and display of electoral

matter is a reasonable measure because it is aimed at fraudulent material which is designed to

subvert the election process, particularly where it is ‘likely to mislead or improperly interfere’

with the casting of a vote, where the material contains untrue or incorrect statements about

candidates or where the material is designed to endanger the validity of a vote. Provisions

requiring the insertion of identifying details into election material are also reasonable and

necessary to ensure accountability and allow voters to identify the source of campaign

materials. These measures assist votes to make an informed choice about their vote, thereby

promoting the objective of maintaining public order by safeguarding the legitimacy of the

election process.

To the extent that the instrument may limit the right to freedom of expression and opinion,

those limitations are permissible because they are reasonable, necessary and proportionate.

Right to freedom of association

The right to freedom of association protects the right to form and join associations to pursue

common goals is contained in Article 22 of the International Covenant on Civil and Political

Rights (ICCPR). The right to freedom of association is engaged by the instrument where it

provides for the registration of political parties. Applied Part 7 of Chapter 10 of the Local

Government Act 1993 (NSW), as applied and modified by the instrument, relates to the

registration of political parties. A party may be registered for the purposes of that Act in

accordance with the procedure applicable under Part 4A of the Parliamentary Electorates

and Elections Act 1912 (NSW), as modified. The instrument enhances the right to form and

join associations to pursue common goals as it provides a regulated framework to allow

political parties from Norfolk Island and New South Wales to participate in the NIRC

election. The applied provisions are consistent with those on the mainland, and the

modifications ensure that Norfolk Island political parties can participate.

Privacy and reputation

Section 31 provides for modifications relating to section 296B of the Local Government Act

1993 (NSW) regarding Electoral Commissioner-administered elections, including a provision

to allow certain persons access to the records of the Administration of Norfolk Island where

the person requests access for the purposes of conducting the election. To the extent that

those records contain personal information, the right to protection against arbitrary and

unlawful interference with privacy will be engaged. Article 17 of the ICCPR prohibits

unlawful or arbitrary interferences with a person's privacy, family, home and correspondence.




Collecting, using, storing, disclosing or publishing personal information may amount to an

interference with privacy. In order for the interference with privacy not to be ‘arbitrary’, any

interference with privacy must be in accordance with the provisions, aims and objectives of

the ICCPR and should be reasonable in the particular circumstances. Any access to, use or

sharing of, personal information should only be for the legitimate objective of conducting an

election; necessary that the person has access to that information; and reasonable and

proportionate to the achievement of the objective.

Section 31 stipulates that only persons listed in paragraphs (a) to (c) of new subsection 5 may

access the records of the Administration, and creates an obligation on the part of the

Administration to provide access to those records. The persons listed in new subsection

include persons or authorities performing roles in which access to records containing personal

details is a necessary component of their function, such as the returning officer or Electoral

Commissioner. Access has been modified to include additional officers such as the

Executive Director due to the additional need to construct a new electoral roll for Norfolk

Island and accompanying need to determine a person’s entitlement to vote on that roll.

Accordingly, the access permitted under this subsection is reasonable and proportionate to the

specific challenges involved in organising an election for a new governance body where

information cannot be drawn from the federal or state electoral rolls. Offences relating to

unauthorised disclosure, such as those in regulations 284B and 284C of the Local

Government (General) Regulation 2005, constitute safeguards to ensure that access is not

arbitrary or unlawful, and are therefore compatible with the prohibition on interference with

privacy.

As above, the regulation of content, approval and display of electoral matter is contained in

Division 9A of Part 11 of the Local Government (General) Regulation 2005 (NSW) as

applied and modified by the instrument. The offences applicable during the regulated period

are contained in applied Subdivision 3 in Division 9A of Part 11 of the Local Government

(General) Regulation 2005 (NSW), as applied and modified. Article 17 is engaged to the

extent that it prohibits unlawful attacks on a person's reputation, and provides that persons

have the right to the protection of the law against such interference or attacks. The term

‘electoral matter’ in the instrument circumscribes the type of material related to the offences

provided. The offences applied to Norfolk Island are time-limited to the ‘regulated period’ to

ensure that the limitations on this right are maintained only in relation to the prescribed event

for which they are regarded as necessary. The provision of offences is proportionate to the

risk and the reasonable expectation of candidates that their candidacy will not be affected by

coordinated and dishonest attacks on their reputation. It is also proportionate to the influence

that intimidating behaviour or attacks on the reputation of particular candidates can have on

the outcome of public events such as elections, in which the community has a key interest.

Conclusion

The Legislative Instrument is compatible with human rights because it advances human

rights. To the extent that it may limit human rights, those limitations are reasonable,

necessary and proportionate.


ATTACHMENT

Details of proposed Norfolk Island Regional Council Preparatory Election Ordinance

2016

Part 1—Preliminary

Section 1 – Name of Ordinance

Section 1 provides the title of the Ordinance is the Norfolk Island Regional Council

Preparatory Election Ordinance 2016.

Section 2 - Commencement

Section 2 provides that the Ordinance commences on the day after the Ordinance is

registered.

Section 3 – Authority

Section 3 provides that the Ordinance is made under section 19A of the Norfolk Island Act

1979.

Section 4 – Object of this Ordinance

This section provides a general outline of the underlying purposes of the Ordinance and sets

out some general aims and provisions to assist in the interpretation of other provisions of the

Ordinance.

Subsection 4(2) provides that the Ordinance allows for an election of five persons to become

councillors of the Norfolk Island Regional Council (NIRC) primarily by applying, with

appropriate modifications, those New South Wales laws which are relevant to the election of

local government councillors.

Subsection 4(3) clarifies that the Ordinance does not incorporate, amend, repeal or suspend a

provision of the law of New South Wales which may be in force after 1 July 2016 apart from

this Ordinance.

Notes 1 and 2 under subsection 4(3) are included to assist the reader in understanding the

legal framework for the Ordinance. To allow the election of councillors to take place before

the NIRC’s formal establishment on 1 July 2016, this Ordinance applies those portions of

New South Wales laws relevant to the conduct of local government elections from the day

following registration of this Ordinance. On 1 July 2016, the Norfolk Island Legislation

Amendment Act 2016 (Cth) proposes to insert a new section 18A in the Norfolk Island Act

1979 (Cth). Section 18A applies New South Wales law, as in force from time to time, to

Norfolk Island.

This means that from 1 July 2016 until the repeal of this Ordinance (1 July 2017 as provided

in section 76), there may be two versions of the New South Wales provisions relating to local

government elections in force in Norfolk Island – one version applied by section 7 with the

modifications contained in this Ordinance, and one version in force by virtue of section 18A

of the Norfolk Island Act 1979 (Cth). In practice this is not expected to be an issue; the


provisions extended by this Ordinance would be used for the election on 28 May 2016 only.

Future elections are planned to take place under the local government elections provisions in

force by virtue of section 18A of the Norfolk Island Act 1979 (Cth). It is not anticipated the

next election would take place prior to 1 July 2017 when this Ordinance will be repealed.

Section 5 – Definitions

Section 5 provides definitions which apply to this Ordinance and the provisions of New

South Wales law applied by section 7. It should be noted these definitions apply to the

provisions applied by section 7, notwithstanding section 72 which essentially provides that

the applied provisions should be interpreted as a New South Wales law would be interpreted.

The definition of Administration is to mean the body provided for in section 5 of the

Norfolk Island Act 1979 (Cth). A note for this definition points out that the Administration

will cease to exist on 1 July 2016. The Norfolk Island Legislation Amendment Act 2015 (Cth)

essentially provides that all rights, assets, liabilities etc. of the Administration transfer to the

NIRC unless a transitional rule is made to the contrary. The note also refers the reader to the

transitional rule making power contained in the Norfolk Island Legislation Amendment Act

2015 (Cth). This rule making power may be used to deal with transitional matters arising out

of the abolition of the Administration including, if necessary, transitional matters relating to

the election of 28 May 2015.

Applied provisions is defined as the provisions of New South Wales law applied to

Norfolk Island by section 7.

The definition provided of Commonwealth Minister is essentially taken from the Norfolk

Island Act 1979 (Cth). The only difference is the inclusion of “(Commonwealth)” after

“Norfolk Island Act 1979” (for clarity and consistency).

Executive Director is defined with reference to section 9 of the Norfolk Island Act 1979

(Cth), and a note is included stating that the position of Executive Director ceases to exist

from 1 July 2016. The note references the rule making power under the Norfolk Island

Legislation Amendment Act 2015 (Cth) which can be used to resolve any transitional issues

arising from the position ceasing to exist.

Norfolk Island is defined to mean the Territory of Norfolk Island as described in Schedule 1

to the Norfolk Island Act 1979 (Cth).

Norfolk Island Regional Council Declaration Ordinance is defined to mean an Ordinance

that will be made under section 19A of the Norfolk Island Act 1979 (Cth) to declare a body to

be the NIRC for the purposes of the definition of ‘Norfolk Island Regional Council’

contained in that Act.

Rules are defined to mean rules made under section 77.

Section 19A Ordinance is defined with reference to the Norfolk Island Act 1979 (Cth).

In addition to the above definitions, four pieces of New South Wales legislation commonly

cited in the Ordinance are defined for convenience. These pieces of legislation are as in force

on 13 November 2015. This is because subsection 14(2) of the Legislation Act 2003 (Cth)

operates to prevent this Ordinance from adopting NSW law as in force from time to time. The

four terms so defined and the Act to which they refer are:


LGA – meaning the Local Government Act 1993 (NSW)

LGR – meaning the Local Government (General) Regulation 2005 (NSW)

PEEA – meaning the Parliamentary Electorates and Elections Act 1912 (NSW)

PEER – meaning the Parliamentary Electorates and Elections Regulation 2008

(NSW).

Section 6 – The Acts Interpretation Act 1901 does not apply

Section 6 is included to assist the reader by making it clear the Interpretation Act 1901 (Cth)

does not apply to this Ordinance, rather the Interpretation Act 1979 (NI) applies to the extent

that it can (see below). The Interpretation Act 1979 (NI) provides it applies to ‘enactments’,

and ‘enactments’ are defined by that act to include Ordinances made under section 19A of the

Norfolk Island Act 1979 (Cth).

Although the Interpretation Act 1901 (Cth) does not apply to this Ordinance, it should be

noted that many of the provisions contained in the Interpretation Act 1901 (Cth) do apply to

section 19A Ordinances by virtue of section 8A of the Interpretation Act 1979 (NI).

The note with this section informs the reader that the Interpretation Act 1979 (NI) only

applies to the extent permitted by Division 3 of Part 2 of the Ordinance, which is about the

interpretation of the applied provisions. This means the applied provisions should be

interpreted in the way they would be interpreted in NSW (except to the extent modified by

this Ordinance), while the text of the Ordinance itself should be interpreted in light of the

Interpretation Act 1979 (NI), but only to the extent that is permitted by Division 3 of Part 2

of the Ordinance.

Division 1—Application of NSW electoral law

Section 7 is the provision which applies those portions of New South Wales legislation which

are relevant to the election of the NIRC. In particular, the specific pieces of legislation

applied by direct reference are the:

Local Government Act 1993 (NSW) as in force on 13 November 2015

Local Government (General) Regulation 2005 (NSW) as in force on

13 November 2015

the Parliamentary Electorates and Elections Act 1912 (NSW) as in force on 13

November 2015

Parliamentary Electorates and Elections Regulation 2008 (NSW) as in force on

13 November 2015

13 November 2015 has been chosen to fix the NSW law at a date. Even if there are future

changes to NSW law after this Ordinance is made, the law as at 13 November 2015 will be

available on the NSW legislation website (http://www.legislation.nsw.gov.au/), using the

“historical versions” feature on the relevant page for each piece of NSW legislation.

Subsection 14(2) of the Legislation Act 2003 prevents this Ordinance from adopting NSW

law as in force from time to time.


Division 2—Modification of applied provisions

Subdivision A—General modifications

Division 2 contains the bulk of the modifications to the applied New South Wales provisions.

8 Norfolk Island treated as one area, not divided into wards

Section 8 provides Norfolk Island is to be treated as one area, not divided into wards for the

purposes of the election to be held on 28 May 2016.

9 References to councillor and civic office

Section 9 modifies the meaning of references in the applied provisions to ‘councillor’ and

‘civic office’. These modifications are necessary as the NIRC will not be in existence at the

time of the making of this Ordinance. Those people elected in the first election will have an

entitlement to hold civic office and be a councillor of the NIRC, once the NIRC is

established. The planned date for establishment of the NIRC is 1 July 2016.

10 References to general manager

Section 10 provides that references in the applied provisions to ‘general manager’ should be

taken to be references to the Executive Director. It is intended the Executive Director will

perform the role assigned by NSW legislation to the General Manager in the conduct of

elections.

11 References to Electoral Commissioner or Electoral Commission

Section 11 provides that references to the Electoral Commissioner or the Electoral

Commission should be read as a reference to a person or authority (including the

Commonwealth Minister) performing any aspects of the role of the Electoral

Commission/Electoral Commissioner for the election held on 28 May 2016. Section 74

allows any or all powers, functions or duties of the Electoral Commissioner or Electoral

Commission to be vested in a person or authority.

12 Certain references relating to council

This section essentially provides that references in the applied provisions to ‘council’ should

be read as references to the Administration. This is because the NIRC will not exist at the

time the Ordinance is made or the election conducted. Therefore the relevant body for the

purposes of these provisions is the Administration of Norfolk Island.

Subsections 12(3) and (4) also make it clear that employees or holders of an office or place of

profit under a Territory authority as defined in the Norfolk Island Act 1979 are also taken to

be employees or holders of an office or place of profit under the Administration, as the case

may be.


13 References to police officers

This section provides that references to police officers in the applied provisions apply as if

they are references to a member of the Police Force of Norfolk Island. This clause has been

included to ensure that the definition of ‘police officer’ in the Interpretation Act 1987 (NSW)

does not govern references to police officers in clauses 346, 349, 356T and 368 of the LGR.

The Police Act 1931 (NI) provides for the Police Force of Norfolk Island.

14 References to statutory declarations

This section provides that references to statutory declarations should be read as if they were a

reference to a statutory declaration under the Statutory Declarations Act 1959 (Cth). This

modification has been made because the definition of ‘statutory declaration’ in the

Interpretation Act 1987 (NSW) depends on the operation of NSW Acts (for example the

Oaths Act 1900 (NSW)), which will not be in force on Norfolk Island at the time the election

is to be conducted.

15 References to roll of non-resident owners of rateable land

This section removes a reference to owners of rateable land. This change is made because

there is presently no land rates system on Norfolk Island. This modification will allow

eligible owners of land to apply to be on the non-residential electoral roll.

16 References to roll of occupiers and ratepaying lessees

This section is included to assist the reader. It reflects the fact that individuals will not be

entitled to vote by virtue of being a ratepaying lessee. Ratepaying lessees are not included

due to the fact that there is no NSW equivalent rating system on Norfolk Island, so there are

no individuals in that category and it is redundant. Eligible occupiers of land and owners of

land will still be able to enrol and vote for the first NIRC election.

17 Internal references to Acts and regulations containing the applied provisions

This section is a technical provision which intends to ensure that the references within the

applied provisions are to be read as references to particular Acts and regulations as they apply

because of section 7 of this Ordinance.

Subdivision B— Modifications of Part 1 of Chapter 10 of the LGA (Who may vote?)

and related applied provisions

18 Modification relating to section 266 of the LGA (Who has the right to be enrolled as

an elector?)

This section sets out the entitlement to enrol to vote. Essentially it requires a person to be at

least 18 years of age and an Australian citizen (or a person to whom subsection 1A applies).

In addition to these criteria, the person must meet one of the requirements set out in

paragraphs (1)(a), (b) or (c).


Subsection (1A) also establishes another group of persons who may be entitled to enrol to

vote. This is where the person is an eligible British subject and was on one of the electoral

rolls specified in paragraphs (1A)(b)(i) and (ii) immediately before 26 January 1984.

These provisions relating to the age and citizenship requirements are modelled on section 93

of the Commonwealth Electoral Act 1918 (Cth) and designed to mirror, as far as possible,

those entitlement arrangements. Paragraphs 18(1)(a) through (c) (inclusive) are modelled on

the original text of paragraphs 266(1)(a) through (c) (inclusive) of the LGA. Entitlement to

enrol in the first NIRC electoral roll is not linked to entitlement to vote in the Commonwealth

House of Representatives as, at the time the Ordinance was made, enrolment to vote in

federal elections is not compulsory for Norfolk Island residents.

20 References in Part 1 of Chapter 10 of the LGA to rateable land etc. and persons

connected with such land

This section modifies provisions in the LGA relating to rateable land and persons connected

with rateable land. The LGA as in force in NSW provides that certain owners of rateable land

(including corporations and trusts) are eligible for inclusion on the non-residential electoral

roll and therefore able to vote. Paragraph 20(a) removes the reference to ‘rateable’ because

there is presently no land rates system on Norfolk Island. This modification will allow

eligible owners of land to apply to be on the non-residential electoral roll.

Paragraph 20(b) removes a reference to ‘ratepaying lessee’, as this is not a category of

persons who will be eligible to vote in the first NIRC election.

Paragraph 20(c) substitutes a reference to the ‘crown’ with a reference to the Administration,

the Commonwealth or a statutory body representing the Administration or the

Commonwealth. This modification is made to remove any doubt about whether the ‘crown’

referred to is the crown in the right of the Commonwealth or Norfolk Island or New South

Wales.

Paragraph 20(d) removes a reference to ‘rateable’ because there is no land rates system on

Norfolk Island.

Paragraphs 20(e) and (f) remove references to ‘ratepaying lessee’, as this is not a category of


Paragraph 20(g) dis-applies the definition of ‘parcel of land’ for the purposes of the applied

provision, because the definition contained in the dictionary to the LGA relates to land rates.

There is no land rates system on Norfolk Island

Subdivision C—Modifications of Part 2 of Chapter 10 of the LGA (Who may be

elected?) and related applied provisions

21 Modifications relating to section 275 of the LGA (Who is disqualified from holding

civic office?) and related applied provisions

Paragraph 21(a) provides that a Magistrate of the Court of Petty Sessions of Norfolk Island

and a Judge of the Supreme Court of Norfolk Island are disqualified from holding civic office


(and therefore from being elected to the NIRC). This is equivalent to NSW disqualification

provisions.

Paragraph 21(b) amends paragraph 275(1)(e) of the LGA to provide that offences committed

under Chapter 4 of the Criminal Code 2007 (NI) or an equivalent offence of another State or

Territory (within the preceding 5 years), are sufficient to disqualify a person from holding

civic office.

Paragraph 21(c) amends the application of paragraph 275(1)(h) to provide that a person is

disqualified from holding civic office if that person is incapable of being appointed as a

director of a company under section 277 of the Companies Act 1985 (NI). This essentially

mirrors the disqualification provision under 275(1)(h) of the LGA, but with a reference to the

companies legislation relevant to Norfolk Island.

It should be noted that subsection 275(2) of the LGA is modified by subsection 12(3) to

disqualify from civic office employees of the Administration and holders of offices of profit

under the Administration. Even though the Administration will cease to exist on 1 July 2016,

the modification of subsection 275(2) by subsection 12(3) will, in conjunction with

subsection 276(1) of the LGA, prevent the election of persons who are such employees or

office-holders at the time of the election. This is equivalent to NSW disqualification

provisions.

Paragraph 21(d) removes a reference to ‘ratepaying lessee’, as this is not a category of


Paragraph 21(e) removes a reference to the word ‘rateable’, as there are no land rates on

Norfolk Island.

22 Exclusion of section 277 of the LGA (May the holder of a civic office be re-elected?)

This section dis-applies section 277 of the LGA. As the election held under this Ordinance

will be the first, there is no need for provisions relating to re-election.

Subdivision D—Modifications of Part 3 of Chapter 10 of the LGA (What is the system

of election?) and related applied provisions

23 Exclusion of certain provisions of Part 3 of Chapter 10 of the LGA

This section dis-applies sections 279, 280, 281, 282, 283 and 284 of the LGA. Most of these

sections are excluded for clarity, as they are irrelevant. In particular, this Ordinance will not

provide for wards or the election of a mayor (either by electors of Norfolk Island or by

elected councillors). It is intended the election of a mayor by the councillors will be dealt

with under the Local Government Act 1993 (NSW) and Schedule 5 to the Local Government

(General) Regulation 2005 (NSW) as they apply (with amendments) because of section 18A

of the Norfolk Island Act 1979 (Cth) on and after 1 July 2016.


Subdivision E—Modifications of Part 4 of Chapter 10 of the LGA (When are elections

held?) and related applied provisions

24 Modifications relating to sections 287 and 288 of the LGA (about timing of election

of councillors)

This section amends references in the LGA which relate to the timing of elections. These

amendments are required because the first election will be held outside the usual timing for

NSW local government elections.

The modifications to paragraphs 24(a) and (b) empower the responsible Commonwealth

Minister to delay the election for up to 28 days after 28 May 2016, if the responsible

Commonwealth Minister is of the opinion that holding the election on 28 May 2016 is

impracticable or inconvenient.


This section dis-applies subsection 288(3) and sections 289 and 290 of the LGA.

Subsection 288(3) is a provision relating to incumbent councillors, of whom there are none,

as this election provides for the first NIRC election.

Section 289 relates to election of a mayor by the electors, which will not occur for the first

election.

Section 289 relates to the election of a mayor by the councillors. This provision is not

required as it is intended the election of a mayor by the councillors will not be dealt with

under the NSW laws applied by this Ordinance. Rather, the election of mayor by the

councillors will occur under the Local Government Act 1993 (NSW) and Schedule 5 to the

Local Government (General) Regulation 2005 (NSW) as they apply (with amendments)

because of section 18A of the Norfolk Island Act 1979 (Cth) on and after 1 July 2016. As

section 282 has been dis-applied there will be no mechanism for the election of the mayor

until 1 July 2016.

Subdivision F—Modifications of Part 5 of Chapter 10 of the LGA (How are casual

vacancies filled?) and related applied provisions

26 Modifications relating to section 291A of the LGA (Countback to be held)

This section modifies subsection 291A(1) of the LGA to allow for a countback to be held in

certain circumstances, for example where a casual vacancy results from the death or

resignation of a councillor. The modifications are designed to deal with any vacancy which

may occur before the NIRC is declared by a section 19A Ordinance under the Norfolk Island

Act 1979.


This item excludes provisions relating to the filling of casual vacancies. Apart from the

countback provision modified by section 26 (above), it is intended that any future casual

vacancies will be dealt with under the Local Government Act 1993 (NSW) and Schedule 5 to


the Local Government (General) Regulation 2005 (NSW) as they apply (with amendments)

because of section 18A of the Norfolk Island Act 1979 (Cth) on and after 1 July 2016

28 Modification relating to clause 285 of the LGR (Notification of vacancy)

This section modifies clause 285 of the LGR to remove the requirement that notice of a

casual vacancy be given to the Director-General and the Secretary of the Local Government

and Shires Association of New South Wales. This is because these positions do not exist in

relation to Norfolk Island.

Subdivision G—Modifications of Part 6 of Chapter 10 of the LGA (How are elections

conducted?) and related applied provisions

29 Exclusion of certain provisions of Division 1 of Part 6 of Chapter 10 of the LGA

This section dis-applies sections 296AA, 296 and 296A of the LGA.

Section 296AA contains a requirement for a council to pass a resolution at least 18 months

before election day. This section is not required because there is no NIRC to pass the

resolution.

Sections 296 and 296A are dis-applied because they contain provisions relating to elections

administered by a general manager of the Council. As the first election will be administered

by the Electoral Commissioner, these provisions are not required and so dis-applied.

30 Election to be administered by the Electoral Commissioner

This provision provides that the election on 28 May 2016 will be administered by the

Electoral Commissioner.

31 Modifications relating to section 296B of the LGA (Elections administered by the

Electoral Commissioner): access to records

This section amends the application of subsection 296B(5) of the LGA relating to the conduct

of elections administered by the Electoral Commissioner and relates to the access of records

of the Administration for the purposes of conducting the election.

The new subsection (5) entitles the persons listed in paragraphs (a) through (c) (inclusive) to

access the records of the Administration, and requires the Administration to provide them

with those records. Paragraph 5(a) provides that a person or authority that is performing any

functions of the Electoral Commissioner is also entitled to access Administration records.

Paragraph 5(b) provides the Executive Director, in performing any function of a general

manager under Division 2 because of section 10, is entitled to access the records of the

Administration. Paragraph 5(c) also provides that person performing the role of the returning

officer and/or substitute returning officer is entitled to access Administration records.

This replaces a NSW provision which entitles only the returning officer and substitute

returning officer to access any relevant records. The entitlement to access records held by the

Administration has been expanded to more persons than under the LGA for two reasons.

Firstly, records of the Council may be needed by a person performing a function of the


Electoral Commissioner to determine a person’s entitlement to vote on the residential roll.

This differs to NSW where entitlement to vote in local elections is generally determined by

reference to the federal or state electoral rolls and other state sources of information.

Secondly, the provision is designed to give reassurance to the Administration of Norfolk

Island that granting access to records for the purposes of conducting the election, including to

the Executive Director, is authorised by law.

New subsection 5A would allow any person referred to in paragraphs 5(a), (b) or (c) to

disclose information obtained in the course of exercising powers to the Australian Electoral

Commission.

32 Other modifications relating to section 296B of the LGA (Elections administered by

the Electoral Commissioner)

This section is an amendment making clear that the power of the Electoral Commissioner

under paragraph 296B(6)(c) of the LGA to determine any matter not provided for in the LGA

or the LGR also applies to any matter not provided for in this Ordinance.

33 Exclusion of section 297 of the LGA (Delegation of functions by the Electoral

Commissioner)

This section repeals a provision relating to delegation of the Electoral Commissioner’s

functions. This is done to avoid confusion with the delegation provision under section 74.

34 Modifications relating to section 298 of the LGA (Residential roll)

Paragraphs 34(a) and (b) modify section 298 of the LGA to allow the Electoral

Commissioner to make use of the electoral roll that was used for Legislative Assembly

elections for the purpose of establishing the residential roll for the election to be held on 28

May 2016. To avoid doubt, this modification does not require the Electoral Commissioner to

make use of the electoral roll that was used for Legislative Assembly elections, and nothing

in this section would prevent the Electoral Commissioner from establishing a new roll

without reference to the Legislative Assembly electoral roll.

Paragraph 34(c) dis-applies provisions relating to the residential roll that relate to elections

being administered by the General Manager of the council. These provisions are not required

as the first election will be administered by the Electoral Commissioner.

It should be noted that section 298 of the LGA, applied to Norfolk Island by this Ordinance,

contains a very high maximum penalty (1000 penalty units) for inappropriate disclosure of

enrolment information. In addition, there are offences with a maximum penalty ranging

between 100 and 1000 penalty units contained in clauses 284B, 284C, 375, 376, 377 and 393

of the LGR and section 66L of the PEEA).

The high penalties reflect the seriousness of the offences as they relate to offences with the

potential to subvert the democratic process and undermine public confidence in the electoral

system. The offences are also consistent with NSW law, which may be in force on Norfolk

Island after 1 July 2016 by virtue of 18A of the Norfolk Island Act 1979.

It should be noted that the Ordinance is being drafted for a single election event to be

conducted in May 2016 and will be thereafter repealed (on 1 January 2017). The penalty


provisions are also reasonable in the circumstances given that the Norfolk Island Regional

Council is analogous to NSW Local Governments, and hence it is appropriate to use NSW

legislation.

35 Modifications relating to section 299 of the LGA (Non-residential roll)

This section modifies the application of provisions relating to the non-residential roll.

Paragraph 35(1)(a) removes a reference to prior elections, as this will be the first election to

the NIRC. The General Manager (which is to be read as ‘Executive Director’ because of

section 10) will still be required under the applied provisions to prepare a roll of non-resident

owners as soon as practicable.

Paragraph 35(1)(b) dis-applies subsection 299(3) of the LGA as it relates to elections

administered by the General Manager only, and the election to be held under this Ordinance

will be administered by the Electoral Commissioner.

Subsection 35(2) makes it clear that the reference to rateable land in subsection 299(1A) of

the LGA is removed by subparagraph 35(1)(a)(i), rather than by section 15.

36 Modifications relating to section 300 of the LGA (Roll of occupiers and ratepaying

lessees)

This section modifies the application of provisions relating to the roll of occupiers and

ratepaying lessees.

Paragraph 36(1)(a) removes a reference to prior elections, as this will be the first election to

the NIRC. The General Manager (which is to be read as ‘Executive Director’ because of

section 10) will still be required under the applied provisions to prepare a roll of land owners

and occupiers as soon as practicable.

Paragraph 36(1)(b) dis-applies subsection 299(3) of the LGA as it relates to elections

administered by the General Manager only, and the election to be held under this Ordinance

will be administered by the Electoral Commissioner.

Subsection 36(2) makes it clear that the reference to ‘ratepaying lessees’ in subsection

300(1A) of the LGA is removed by subparagraph 36(2)(1)(a)(i), rather than by section 16.

37 Modifications relating to section 303 of the LGA (Making of claims for inclusion in

the roll): review of decisions

This section dis-applies a provision allowing an appeal to the NSW Civil and Administrative

Tribunal for persons dissatisfied with an Electoral Commissioner or General Manager’s

decision about their claim for inclusion on an electoral roll. It substitutes provisions allowing

a dissatisfied person to appeal to the Court of Petty Sessions of Norfolk Island, which was the

court that performed this review function under the repealed Legislative Assembly Act 1979

(NI). New subsection 303(3A) would provide that the Court may affirm or vary the decision,

set aside the decision and substitute a new decision, or set aside the decision and remit the

matter to the decision maker to reconsider it in accordance with any directions of the Court.


38 Other modifications relating to section 303 of the LGA (Making of claims for

inclusion in the roll) and related applied provisions

Subsection 38 replaces a further reference to the NSW Civil and Administrative Tribunal

with a reference to the Court of Petty Sessions.

39 Modifications relating to section 306 of the LGA (Nominations) and related applied

provisions

This section amends the application of provisions in the LGR relating to nomination of

candidates.

Subsection 39(1) dis-applies the requirement that the nomination forms display certain

sections of the LGA. This is because some of the sections mentioned are repealed, others are

partly irrelevant and others are modified. This paragraph also removes the statistical

information section from the nomination form. The collection of this personal information

would be of no practical benefit in relation to a single election on Norfolk Island.

Subsection 39(2) modifies the application of subclause 293(3) of the LGR which concerns

the forfeiture of a deposit provide that if it is determined the deposit is to be forfeited prior to

1 July 2016 it will be forfeited to the Administration, otherwise it will be forfeited to the

Commonwealth.

40 Modifications relating to section 308 of the LGA (Candidate information sheets) and

related applied provisions

This section removes a reference in the LGR to a roll kept under the Parliamentary

Electorates and Elections Act 1912 (NSW), as this roll will not exist in respect of Norfolk

Island.

41 Modifications relating to sections 309 and 311 of the LGA and related applied

provisions

This section dis-applies provisions relating to the death of a nominated candidate before the

day when the poll closes. Subsection 41(2) specifies that the rules (which can be made under

section 77) can make provision for the conduct of an election should a nominated candidate

die before polling day.

42 Modifications relating to conduct of contested elections

This section makes modifications of the LGR in relation to the conduct of contested

elections.

Paragraphs 42(a), (c) and (d) relate to voting and modify the types of identification that a

person who is not enrolled for the area can show at the polling place for the election to be

allowed to vote. A person who is not enrolled for the area, but who claims to be entitled to

enrol on the residential roll for the area is permitted to vote at the election in accordance with

subclause 320C(1) of the LGR. As the heading to clause 320C indicates, such people may be

enrolling for the first time, re-enrolling or transferring enrolment. Specifically the

modifications will allow a person to present to an election official either a Norfolk Island

driver’s licence, or both a form of photographic identification and written evidence from a


governmental authority of a person’s address. If a person does not have a driver’s licence,

this modification will allow that person to present, for example, a document issued by the

Norfolk Island Administration showing a Norfolk Island address along with a passport or

other photographic identification. Combined, these two documents will be a valid form of

identification for the purposes of 320C of the LGR. This change has been made in

recognition of the fact that not all Norfolk Island residents may possess a driver’s licence, and

unlike in New South Wales there are no government issued photo identification cards issued

by the Administration of Norfolk Island. Paragraph 42(d) modifies paragraph 320C(3)(c) of

the LGR to require the person to show evidence of an address on Norfolk Island instead of

necessarily the place specified in the claim for enrolment. This change is made in recognition

of the fact that a person on Norfolk Island who does not have a driver’s licence may not have

an alternate form of written documentation proving his or her actual street address.

Paragraphs 42(b) modifies paragraph 313(g) of the LGR to include a reference to a person

being kept in a place that has been declared to be a gaol, prison or house of detention. This

provision will essentially qualify people being held in such a place for a postal vote.

Paragraph 42(e) removes a reference to New South Wales which is not relevant to the

election on Norfolk Island.

Paragraph 42(f) modifies the question to be asked by electoral officials to make it clear that

the relevant law is that which applies because of the Norfolk Island Regional Council

Preparatory Election Ordinance 2016.

Paragraph 42(g) dis-applies clause 352 of the LGR, as this clause is only relevant to elections

held where there is a direct election of the mayor by the voters. The first election to the NIRC

will not involve direct election of the mayor.

Paragraphs 42(h), (i) and (k) replace references to ‘the council’ with references to the

‘Administration’.

Paragraph 42(j) removes references to positions which do not exist in respect of Norfolk

Island.

Paragraph 42(l) removes a reference to ‘ratepaying lessee’, as this is not a category of persons

who will be eligible to vote in the first NIRC election. A person will need to be a resident,

non-resident owner or an occupier to be eligible to vote.

Paragraph 42(m) removes a reference from the postal vote declaration form to a person being

enrolled in the State of New South Wales or the Commonwealth electoral roll, and substitutes

it with a reference to being entitled to be enrolled on the electoral roll. This change is made in

recognition of the fact that most Norfolk Islanders would not be eligible to enrol on the NSW

electoral roll and that enrolment on the Commonwealth electoral roll is not compulsory for

Norfolk Islanders at the time the Ordinance takes effect.

43 Modifications relating to uncontested elections

Paragraph 43(a) removes references to positions which do not exist in respect of Norfolk

Island.


Paragraph 43(b) provides that inserting a copy of the written declaration of uncontested

election in the Norfolk Island Gazette or a newspaper circulating in Norfolk Island is

sufficient to satisfy the requirement of paragraph 296(3)(a) of the LGR.

Paragraph 43(c) replaces a reference to ‘the council’ with a reference to the ‘Administration’.

44 Modifications relating to section 314 of the LGA (Penalty notice to be issued for

failure to vote) and related applied provisions

Paragraph 44(a) removes a reference to penalty notices being in the form prescribed by the

regulations.

Paragraph 44(b) modifies the LGA to provide that a penalty notice is to be paid to the

Administration prior to 1 July 2016, otherwise it will be paid to the relevant Commonwealth

department.

Paragraph 44(c) removes a reference to the Fines Act 1996 (NSW), as this particular law of

New South Wales will not be applied to Norfolk Island at the time of the election to be held

under this Ordinance.

Paragraph 44(d) dis-applies a clause relating to the issuing of penalty notices and the

prescribed form. The prescribed form contains a number of features which are not relevant to

Norfolk Island. Any penalty notices issued in relation to the election will be issued in a form

determined by the Electoral Commissioner.

45 Modifications of section 317 of the LGA (Validity of elections)

This item removes a provision allowing the Governor of New South Wales to issue a

conclusive declaration that notwithstanding a fault the election result stands. This change is

made to avoid having the responsible Commonwealth Minister effectively adjudicate an

election conducted on his behalf.

46 Exclusion of section 318 of the LGA (Lapsed or void election)

This section dis-applies section 318 relating to a lapsed or void election. This is because

there will be only one attempt to hold an election under this Ordinance, with any subsequent

elections to be held under the local government elections provisions in force by virtue of

section 18A of the Norfolk Island Act 1979 (Cth).

Subdivision H—Modifications of Part 7 of Chapter 10 of the LGA (Political parties) and

related applied provisions

47 Modifications relating to definition of political party in the Dictionary at the end of

the LGA

This section removes a reference to the NSW Parliament, which is not relevant to Norfolk

Island, and makes it clear that one of the purposes or objectives of a political party is to be the

promotion of election to the NIRC under the laws applied by this Ordinance.


48 Modifications relating to section 320 of the LGA (Registration of political parties),

Part 4A of the PEEA (Registration of parties) and the PEER

Subsection 48(1) modifies the application of subsection 320(2) of the LGA to the election of

the NIRC on Norfolk Island.

Paragraph 48(1)(b) removes references to the New South Wales Parliament, as these are not

relevant to Norfolk Island.

Paragraph 48(1)(ba) makes it clear that references to a person who is entitled to be enrolled

under section 266 applies subject to the modifications made by section 18 of this Ordinance.

Paragraph 48(1)(bb) provides that references to New South Wales are to be read as references

to Norfolk Island.

Subsection 48(2) dis-applies some further sections of the PEEA relevant to the registration of

political parties. The section would dis-apply the definition of ‘address’ in the PEEA, which

excludes post office box number. This change is made in recognition of the widespread use of

post office boxes on Norfolk Island. Subsection 66D(2)(h) and (e) of the PEEA is also dis-

applied as it refers to the Election Funding Act 1981 (NSW) which will not be in force on

Norfolk Island at the time the election takes place. Subsections 66FA(1), (3), (4) and (5) are

also dis-applied as they require a 12 month gap between registration and entitlements arising

from the registration of a political party. Since there isn’t 12 months between the making of

this Ordinance and the election, this provision is dis-applied to allow Norfolk Island political

parties to participate in the NIRC election. Subsection 66H(3C) removes a reference to

section 66FA which is dis-applied by this section. The remainder of the references to

provisions in the PEEA in this subsection were already dis-applied in relation to local

government political parties by the LGA.

Subsection 48(3) modifies the LGA in order to modify the PEEA so as to remove a

requirement that members of the party on whom the party relies for the purpose of qualifying

as an eligible party be enrolled to vote. The requirement is not appropriate to Norfolk Island

as it requires the people signing the declaration to be on the relevant electoral roll, which is

not possible for the first NIRC election as the electoral roll will not be fully established by the

time the process for the registration of political parties will need to commence.

Subsection 48(4) removes a form and a reference to that form in clause 33 of the PEER. The

form being dis-applied is the party membership declaration form. This change is

consequential to new paragraph (ga) applied by subsection (3).

Subdivision I—Modifications of Part 9 of Chapter 10 of the LGA (Dismissal from civic

office) and related applied provisions

49 Modifications of section 329 of the LGA (Can the holder of a civic office be

dismissed?)

This section dis-applies references to the NSW Civil and Administrative Tribunal, and

substitutes them with references to the Supreme Court of Norfolk Island. This court had

jurisdiction to hear similar cases under the Legislative Assembly Act 1979 (NI).


Subdivision J—Modifications of Division 9A of Part 11 of the LGR (Provisions related

to activities during regulated periods) and related applied provisions

50 Modifications relating to Division 9A of Part 11 of the LGR

This section modifies Division 9A of Part 11 of the LGR, which relate to activities during the

‘regulated period’. ‘Regulated period’ for an election, as defined in clause 356A of the LGR,

means the period starting with the closing date and ending at 6 pm on election day, and all

days to which polling for the election is adjourned.

Paragraph 50(a) modifies provisions relating to the display of posters containing or consisting

of electoral material and any writing, drawing or depicting electoral matter. The modification

ensures that such posters and writings, drawing or depictions cannot be displayed on premises

leased, occupied, used or controlled or managed by the Commonwealth or an authority of the

Commonwealth.

Paragraph 50(b) modifies provisions relating to the display of posters containing or consisting

of electoral material and any writing, drawing or depicting electoral matter. The modification

ensures that such posters and writings, drawing or depictions cannot be displayed on premises

leased, occupied, used or controlled or managed by the Administration.

Paragraph 50(c) modifies clause 356GB of the LGR to ensure that ‘Australia’ as used in that

section includes Norfolk Island. This means that a Norfolk Island residential address will be a

valid address for the purposes of appearing in the publication of a paid electoral

advertisement on the internet.

Paragraph 50(d) dis-applies a reference to the Environmental Planning and Assessment Act

1979 (NSW), which will not be in force at the time the election is held. The reference to this

Act is replaced with the word ‘used’ so that the provision relating to the display of electoral

matter on to a screen in a theatre or public hall remains operable in relation to Norfolk Island.

Paragraphs 50(e) and (f) modify clause paragraphs 356L(b) and (c) of the LGR to include the

Norfolk Island Advisory Council and Norfolk Island Advisory Councillors in the extended

operation of subdivision 5 of the LGR, so as to provide that any express or implicit reference

to or comment on the Advisory Council or Advisory Councillors is considered an electoral

matter for the purposes of subdivision 5. This ensures the Advisory Council is treated

consistently under this provision with previous Norfolk Island Legislative Assemblies and

Legislative Assembly members, comment on whom is considered electoral matter by virtue

of paragraphs 356(L)(1)(d) and (e).

Subdivision K—Modifications of other applied provisions

51 Exclusion of section 691 of the LGA (Proceedings for offences)

This section dis-applies a provision conferring jurisdiction on the NSW Local Courts. Under

section 36 of the Court of Petty Sessions Act 1960 (NI), the Norfolk Island Court of Petty

sessions has jurisdiction to hear offences against the applied provisions.


52 Modification of section 710 of the LGA (Service of notices on persons)

This section makes a number of amendments to section 710 of the LGA, which relates to the

service of notices on persons.

Paragraph 52(a) replaces references to New South Wales with references to Norfolk Island.

Paragraph 52(b) replaces references to the council with references to the Administration.

Paragraph 52(c) provides that a reference to the advertisement in the approved form

published in a newspaper also includes a reference to a notice published in the Norfolk Island

Government Gazette or in a newspaper circulating in Norfolk Island. This change is made in

recognition of the fact that there is no daily newspaper which could unarguably be said to be

circulating in Norfolk Island. The local paper is still able to be used, but should a statutory

timeframe require the placing of the advertisement on a particular date, that advertisement

may be placed in the Norfolk Island Government Gazette, which is widely available on the

Island.

53 Modification of clause 275 of the LGR (Definitions)

This section changes a reference to the election manager’s website with a reference to the

website of either the Administration, or the relevant Commonwealth Department, or the

website of a person or authority in whom a power, function or duty is vested or delegated

under section 74 of this Ordinance. The requirement to publish material will be satisfied by

the material being placed on any one of these websites. The change is required because there

is no identifiable council or Electoral Commission website in respect of Norfolk Island.

Therefore a degree of flexibility has been allowed in relation to where the relevant material is

published.

54 Modification of clause 277B of the LGR (Advertising by election manager)

This section provides that a reference to notices published in a newspaper also includes a

reference to a notice published in the Norfolk Island Government Gazette. This change is

made in recognition of the fact that the newspaper with the widest distribution on Norfolk

Island is not a daily paper. The local paper is still able to be used, but should a statutory



Island.

55 Modifications of clause 280 of the LGR (Advertising of enrolments)

Paragraph 55(a) removes a reference to ‘ratepaying lessees’ as this is not a category of


Paragraph 55(b) provides that a reference to advertising enrolment published in a newspaper

also includes a reference to a notice published in the Norfolk Island Government Gazette.

This change is made in recognition of the fact that the newspaper with the widest distribution

on Norfolk Island is not a daily paper. The local paper is still able to be used, but should a

statutory timeframe require the placing of the advertisement on a particular date, that

advertisement may be placed in the Norfolk Island Government Gazette, which is widely

available on the Island.


56 Modifications of clause 281 of the LGR (Enrolment claims and objections)

This section removes a reference to ‘ratepaying lessee’ as this is not a category of person who

will be eligible to vote in the local government election. It also removes a reference to

‘rateable land’. This change is made because there is presently no land rates system on

Norfolk Island. Eligible owners of land can still apply to be on the non-residential electoral

roll.

57 Modifications of clause 288 of the LGR (Notice of election and call for nomination

proposals)

This section provides that a reference to giving notice of election and call for nomination

proposals being published in a newspaper also includes a reference to a notice published in

the Norfolk Island Government Gazette. This change is made in recognition of the fact that

the newspaper with the widest distribution on Norfolk Island is not a daily paper. The local

paper is still able to be used, but should a statutory timeframe require the placing of the

advertisement on a particular date, that advertisement may be placed in the Norfolk Island

Government Gazette, which is widely available on the Island.

58 Modifications of clause 300 of the LGR (Notice of contested election): publication of

notice

This section provides that a reference to giving notice of contested election also includes a






Island.

59 Other modifications of clause 300 of the LGR (Notice of contested election)

This section provides that a reference to giving notice of contested election also includes a




timeframe require the placing of the advertisement on a particular date or within a particular

timeframe, that advertisement may be placed in the Norfolk Island Government Gazette,

which is widely available on the Island.

60 Modifications of clause 317 of the LGR (Issue of postal ballot-paper)

This section modifies the LGR to allow the returning officer to nominate more than one

address as the address of the returning officer. This modification may be used, for example,

should the returning officer decide to have one address on mainland Australia and one on

Norfolk Island.

61 Modifications of clause 318 of the LGR (Postal voting procedure)

This section modifies clause 318 of the LGR to provide that, should the returning officer

nominate a place where postal votes may be received, an envelope either containing or


purporting to contain a ballot paper will be deemed received by the returning officer at the

time it arrives at that nominated place. This would allow, for example, a returning officer to

nominate an address on the mainland at which postal ballots may be received. Any ballot

arriving at this place by the specified time will be taken to have been received by the

returning officer, even if the returning officer is not physically present at that place.

62 Modifications of clause 356 of the LGR (Declaring the election)

This section provides that a reference to declaring the election also includes a reference to a

notice published in the Norfolk Island Government Gazette. This change is made in

recognition of the fact that the newspaper with the widest distribution on Norfolk Island is

not a daily paper. The local paper is still able to be used, but should a statutory timeframe

require the placing of the advertisement on a particular date, that advertisement may be

placed in the Norfolk Island Government Gazette, which is widely available on the Island.

63 Modifications of clause 356GB of the LGR (Publication of paid electoral

advertisements on the internet)

Provides that, for the purposes of clause 356GB(3) of the LGR the word ‘address’ includes a

post office box located on Norfolk Island. This is in recognition of the fact that post office

boxes are the most commonly used form of address in Norfolk Island.

64 Exclusion of certain provisions of Division 11 of Part 11 of the LGR (Miscellaneous)

This section dis-applies clause 393A, which requires a general manager to report on an

election administered by the general manager. This provision is not required for the first

NIRC election as it will be administered by the Electoral Commissioner.

It also dis-applies clause 393B of the LGR which relates to the exercise of council functions

during caretaker period. This provision is not required as the first NIRC will not be in

caretaker mode prior to its establishment under a future law.

65 Modifications of clause 393AA of the LGR (Electoral Commissioner to report on

election)

This section modifies the application of clause 393AA of the LGR to require the Electoral

Commissioner to prepare a written report on the conduct of the election. This report must be

prepared and placed on a website within 6 months of the election day, unless the

Commonwealth Minister is satisfied that special circumstances exist.

66 Further modifications of clause 393AA of the LGR

This section further amends clause 393AA of the LGR to specify that a report on the conduct

of the election may contain recommendations for the conduct of future local government

elections in relation to Norfolk Island.

67 Modifications of Form 1 in Schedule 11 to the LGR (Request for omission or

removal of place of living from roll (non-resident electors))

This section removes the NSW Statutory Declaration form from the back of a form that

contains a request for omission or removal of place of living from the electoral roll (non-


resident electors). This is because the NSW Statutory Declaration depends on the operation of

NSW Acts (especially the Oaths Act 1900 (NSW)), which will not apply in Norfolk Island at

the time of the election. Individuals seeking non-inclusion of their place of living from the

electoral roll will be able to submit the request without a statutory declaration.

68 Modification of section 66DA of the PEAA as modified by the LGA

This section provides that a reference in section 66D of the PEEA also includes a reference to

a notice published in the Norfolk Island Government Gazette. This change is made in

recognition of the fact that the newspaper with the widest distribution on Norfolk Island is

not a daily paper. The local paper is still able to be used, but should a statutory timeframe

require the placing of the advertisement on a particular date, that advertisement may be

placed in the Norfolk Island Government Gazette, which is widely available on the Island.

Subsection 68(2) is intended to make clear that subsection 68(1) applies even though the

reference to NSW is already modified by 48(1).

Subdivision L—Modifications prescribed by the rules

69 Modifications prescribed by the rules

This section provides that the applied provisions apply with any modifications prescribed by

the rules. This means that the rules (which can be made under section 77) are able to

supplement or modify the text of the applied provisions as required. It should be noted

paragraph 77(2)(d) prevents the rules from directly amending the text of this Ordinance, as

distinct from the applied provisions.

Subdivision M—Miscellaneous

70 This Division has effect despite definitions in the applied provisions

This section provides that this division has effect despite any definition in the applied

provisions. This means that where there is a definition in the applied provisions which

conflicts with a provision in this division, the meaning ascribed to the term should be the

meaning ascribed by this division.

71 References in this Division to the applied provisions applying

This section provides that references in this Division to the applied provisions applying is to

those provisions which apply by virtue of section 7 of this Ordinance. This section ensures

that provisions which may apply from 1 July 2016 by virtue of section 18A of the Norfolk

Island Act 1979 (Cth) are not affected by this Division.


Division 3—Interpretation of applied provisions

72 Interpretation of applied provisions

Subsection 72(1) provides that the applied provisions (with the modifications set out in

Division 2) should be interpreted in the same way as they would be interpreted as laws of

New South Wales.

Paragraph 72(2)(a) limits the effect of subsection 72(1), by making it clear that

subsection 72(1) only has effect so far that it is consistent with the interpretation of the

applied provisions under section 7 with the modifications set out in Division 2 of this

Ordinance. This means that if there is any conflict between the way a law would be

interpreted in NSW and the applied provisions as modified by Division 2, the meaning

ascribed should be consistent with the applied provisions as modified by Division 2.

Paragraph 72(2)(b) limits the effect of subsection 72(1) by making it clear that section 7 has

effect subject to the definitions section of this Ordinance and this part of the Ordinance. This

means that if there is any conflict between the way a law would be interpreted in NSW and

the provisions contained in the definition section of this Ordinance or Part 2, the meaning

ascribed should be consistent with the definitions section of this Ordinance and/or Part 2 of

this Ordinance, as the case may be.

A note has been included to assist readers in understanding the operation of this subsection

72(2).

Subsection 72(3) provides that subsection 72(1) has effect, subject to the limitations

expressed in subsection 72(2), despite the Interpretation Act 1979 (NI) except for section 17

of that Act (which does apply in relation to interpretation of the applied provisions). This

means provisions should be interpreted as they would under NSW law, including the

Interpretation Act 1987 (NSW), except where they relate to section 17 of the Interpretation

Act 1979 (NI) or where that interpretation would conflict with the definitions section of this

Ordinance (as per paragraph 72(2)(a)), or the definitions section or Part 2 of this Ordinance

(as per paragraph 72(2)(b)).

Subsection 72(4) is a clause which has been included to assist the reader. It makes it clear that

nothing in section 72 affects the interpretation of a law which may be in force in Norfolk

Island from 1 July 2016 under section 18A of the Norfolk Island Act 1979 (Cth), apart from

section 7 of this Ordinance. For example, should there be provisions relating to the conduct

of local government elections in force from or after 1 July 2016 by virtue of section 18A of

the Norfolk Island Act 1979 (Cth), the interpretation of those provisions will not be affected

by anything in section 72.

73 References in applied provisions to time are to Norfolk Island time

This section is included to assist the reader, and makes it clear that the applied provisions are

a legal instrument for the purposes of the Norfolk Island Standard Time Ordinance 2015.

The note explains this is to ensure that expressions of time in the applied provisions are to be

read as reference to that time by standard time in Norfolk Island.


Part 3—Miscellaneous

74 Powers, functions and duties of the Electoral Commissioner and the Electoral

Commission under the applied provisions

Subsection 74(1) is a vesting provision. It provides that for any power relating to Norfolk

Island which may be vested in the Electoral Commissioner or the Electoral Commission of

New South Wales, that power is instead vested in the Commonwealth Minister. This

provision means the Commonwealth Minister is ultimately responsible for performing the

role of Electoral Commissioner and Electoral Commission on Norfolk Island.

Subsection 74(2) is a provision allowing the responsible Commonwealth Minister to direct in

writing that the power is also vested in a specified person or authority, or to delegate the

power to a specified person. In practice only an authority or person with experience in the

conduct of elections would have powers delegated to them or vested in them under this

provision.

Subsection 74(3) allows a person or authority in whom power is vested under paragraph

(2)(a) to further delegate the power(s). This is only permitted in situations where the

Commonwealth Minister has authorised further delegation of the power.

Subsection 74(4) provides that an instrument may identify a power by reference to a certain

class of powers. This provision has been included to make it clear that the vesting or

delegation of powers to an individual or authority need not specify the precise powers being

delegated. Rather, the instrument can be drafted in a general fashion to refer to general

classes of powers, or to all powers associated with the position.

Subsection 74(5) provides that the validity of the exercise of a power or law under this

section is not affected by the failure of the person or authority to hold a qualification that

would generally be required under the laws in force in New South Wales. This provision is

included to allow flexibility in the delegation or vesting of power by the responsible

Commonwealth Minister and reflects the reality that a person or authority who has power

delegated or vested in them under this section may not, although qualified to perform the

role, meet the entirety of the qualification provisions for a person who would exercise those

powers under NSW laws.

Subsection 74(6) provides that this section does not limit the operation of subclause 275(3) of

the LGR, which provides that in Part 11 of the LGR a reference to the Electoral

Commissioner includes a reference to the returning officer where the Commissioner

authorises the returning officer to exercise a specified function conferred or imposed by that

Part.

Subsection 74(7) contains definitions relevant to this section, which are ‘authority’ and

‘power’.

75 Authorisation to collect, use and disclose personal information

Section 304 authorises certain persons to collect, use and disclose personal information in

accordance with the persons’ functions under the provisions applied by the Ordinance. The

list of people so authorised are in paragraphs (a) through (e) (inclusive).


76 Repeal of this Ordinance

Section 76 provides the Ordinance is to be repealed at the start of 1 January 2017. This is

because the Ordinance is intended to be used for a single election only, to be held on

28 May 2016. The Ordinance extends to 1 January 2017 to allow any residual functions

following the first NIRC election to be performed. For example, a report on the election must

be produced within 6 months of election date, and the Electoral Commissioner may issue

fines for failing to vote in the election. The Ordinance therefore continues in force until

1 January 2017 to avoid any doubt about the validity of these functions which may need to

take place after the election.

77 Rule-making power

This section contains a rule making power to allow the Commonwealth Minister to, by

legislative instrument, make rules on matters related to the Ordinance. Subsection 77(2) is

included to assist readers and states those things that the rules may not do such as create an

offence or impose a tax.


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EXPLANATORY STATEMENT Ordinance No. 3, 2016

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