Norfolk Island Legislation Amendment Act Transitional Rule 2016 (No 1)

The rule revolves around the final transition time, defined by reference to item 356 of Schedule 2 to the NILA Act as the point at which the Administration and Advisory Council cease to exist. This concept marks the shift from the pre-existing governance structure under the Norfolk Island Act 1979 to the application of laws of applied law jurisdictions under section 18A of that Act, with the Norfolk Island Regional Council assuming local government functions. The rule uses the term "Administration" as defined in item 356, encompassing the body corporate that previously exercised powers on Norfolk Island, and "Advisory Council" as defined in the Norfolk Island Act 1979 immediately before the final transition time.

A central concept is the "instrument", defined in item 367 of Schedule 2 to the NILA Act to include contracts, deeds, undertakings, agreements, notices, authorities, orders and instruments made under Acts or regulations, but excluding exempt instruments. Section 9 applies this concept to redirect references to the Administration in instruments meeting specified criteria to the Norfolk Island Regional Council. The 1993 AFP arrangement is singled out as a defined term, being the 1993 agreement between the Commonwealth and the Administration for the provision of services by the Australian Federal Police, and is treated separately under sections 10 and 13.

The rule distinguishes categories of records. Section 6 covers records documenting the core business of the Advisory Council, such as advice to the Administrator, consultation reports, media releases, minutes of meetings, membership records, policies and formal reports, together with routine operational records and records of the Legislative Assembly. Section 7 covers records containing data from systems recording movements of persons or goods, information relating to arrivals and departures, permissions to enter or remain, accountable documents (validated official documents with potential monetary value prepared for immigration, customs or citizenship purposes, such as visa labels and citizenship certificates), registers of such documents, and other records relating to relevant matters under Commonwealth or Norfolk Island laws. Excluded records under section 7 are those requiring a device or software licence held by the Administration where an arrangement already existed for the Commonwealth to receive the information in accessible form.

Vesting of assets under section 8 applies only to devices, software licences or other things required to access records transferred under section 7, where the Commonwealth lacks its own equivalent and no prior access arrangement existed. The concept of acts attributable to the Norfolk Island Regional Council in section 12 extends to powers in the nature of local government powers, defined by reference to powers conferred by the Local Government Act 1993 (NSW) as in force in Norfolk Island on a council established under that Act, and to powers under the three specified continued laws. The savings provisions in sections 13 and 14 preserve the operation of repealed provisions of the Norfolk Island Act 1979 and the Australian Federal Police Act 1979 for limited purposes, with modifications to references to the Administrator and Chief Executive Officer.

The constitutional safety net in section 15 introduces the concept of acquisition of property within the meaning of paragraph 51(xxxi) of the Constitution, triggering a liability on the Commonwealth to pay reasonable compensation determined by a court if just terms are not otherwise provided.

The rule directly affects the Norfolk Island Regional Council, which is substituted as a party to specified proceedings under section 11, becomes the successor in law to the Administration in relation to most instruments under section 9, and is attributed with acts previously done by the Administration under section 12. The Council must also manage the preparation of annual financial statements for the 2015-2016 year under the modified provisions saved by section 14, including the obligation to pay fees that would otherwise have been payable by the Administration.

The Commonwealth is affected through the receipt of transferred records under sections 6 and 7, the vesting of assets under section 8, the redirection of references in the 1993 AFP arrangement under section 10, and the continuation of that arrangement under section 13 until a new one is executed. The responsible Commonwealth Minister is the point of reference for the redirected 1993 AFP arrangement. Territory authorities are affected by the savings provisions in section 14, which apply the modified financial statement requirements to them for the relevant financial year.

Parties to instruments that were made by, or given to, or under which rights accrued to, the Administration are affected by the redirection of references to the Norfolk Island Regional Council, provided the instrument is not the 1993 AFP arrangement and is not made under an Act or regulations that preclude the substitution. Litigants in proceedings under the Goods and Services Tax Act 2007 (NI) pending immediately before the final transition time, and in other proceedings to which the Administration became a party after 1 June 2016 that remained pending, are affected by the substitution of the Norfolk Island Regional Council as the party.

Persons in possession of records or documents meeting the descriptions in sections 6 and 7 immediately before the final transition time are required to facilitate their transfer to the Commonwealth. Holders of devices, software licences or other things required to access records transferred under section 7 are affected by the vesting provisions where the specified conditions are met. Individuals or entities that may claim an acquisition of property as a result of the operation of the rule are affected by the compensation mechanism in section 15.

The rule also affects the Administrator of the Territory appointed under the Norfolk Island Administrator Ordinance 2016, who is substituted for references to the Administrator in the saved financial statement provisions, and the general manager appointed by the Norfolk Island Regional Council under section 334 of the Local Government Act 1993 (NSW) as in force in Norfolk Island, who is substituted for references to the Chief Executive Officer.

The rule imposes duties on the holders of records and documents to which sections 6 and 7 apply to transfer those records and documents to the Commonwealth after the final transition time. Subitem 366(2) of Schedule 2 to the NILA Act does not apply to such records, creating a positive obligation to effect the transfer instead of leaving them with the Norfolk Island Regional Council. For records under section 7, the duty extends to ensuring that excluded records are handled according to any pre-existing arrangement for the Commonwealth to receive the information in accessible form, while non-excluded records must be transferred along with any required device or software licence under section 8.

The Norfolk Island Regional Council has a duty under section 11 to step into proceedings as the substituted party, and under section 12 to treat acts done by the Administration in connection with local government-like powers or the specified continued laws as its own acts. The Council must also comply with the modified financial statement preparation requirements saved by section 14, including the obligation on the Department that deals with the administration of Norfolk Island to pay amounts that would otherwise have been payable by the Administration, and to account for unpaid fees of Territory authorities.

The Commonwealth has a duty under section 15 to pay reasonable compensation where the operation of the rule results in an acquisition of property otherwise than on just terms. If the Commonwealth and the affected person do not agree on the amount, the person has a right to institute proceedings in a court of competent jurisdiction for recovery of the amount determined by the court.

Rights under the rule include the continuation of the 1993 AFP arrangement under section 13, subject to the redirection of references to the Commonwealth acting through the responsible Commonwealth Minister, until a new arrangement takes effect. Parties to instruments covered by section 9 have the right to treat references to the Administration as references to the Norfolk Island Regional Council, preserving the continuity of contractual and other obligations. The Norfolk Island Regional Council has the right to be substituted as a party in the specified proceedings, and to have acts of the Administration attributed to it for the purposes of local government functions and the three continued laws.

The rule confers no new rights to create offences or civil penalties, consistent with the limitations on the rule-making power in item 357 of Schedule 2 to the NILA Act. Rights to compensation under section 15 are enforceable through court proceedings, providing a mechanism for persons whose property is acquired to seek redress.

The rule does not itself create any offences or civil penalties. Item 357 of Schedule 2 to the NILA Act authorises rules prescribing transitional matters but does not extend to the creation of offences or civil penalties, and the rule contains no provisions imposing fines, imprisonment or other sanctions for non-compliance. Enforcement of the obligations in the rule therefore occurs through the mechanisms available under the NILA Act itself, the Norfolk Island Act 1979 as continued or applied, and other Commonwealth or applied laws.

Failure to transfer records as required by sections 6 and 7 may be addressed through the general provisions governing the transfer of assets and liabilities in Schedule 2 to the NILA Act, including any remedies available to the Commonwealth as successor in law. Disputes over the vesting of assets under section 8 or the attribution of acts under section 12 may be resolved through proceedings in courts of competent jurisdiction, with the constitutional safety net in section 15 providing a specific avenue for claims involving acquisition of property.

The substitution of the Norfolk Island Regional Council in proceedings under section 11 is enforced through the ordinary processes of the relevant court or tribunal, with the Council assuming the rights and liabilities of the former party. Compliance with the saved financial statement provisions under section 14 is enforceable through the auditing and reporting obligations that continue to apply with the modifications set out in subsections 14(3) and 14(5). The 1993 AFP arrangement continues to operate according to its terms as saved by section 13, with any enforcement rights under that arrangement preserved and redirected to the Commonwealth.

Because the rule operates as a transitional measure within the broader framework of the NILA Act, enforcement actions are likely to be brought by the Commonwealth or the Norfolk Island Regional Council in the context of ongoing governance and service delivery on Norfolk Island, rather than through standalone penalty proceedings under the rule.

The rule interacts with the Norfolk Island Act 1979 by saving specific provisions of that Act that were repealed by item 25 and item 28 of Schedule 2 to the NILA Act. Section 13 preserves the operation of Part II of the Norfolk Island Act 1979 for the limited purpose of continuing the 1993 AFP arrangement until a new arrangement under subsection 8(1C) of the Australian Federal Police Act 1979 takes effect. Section 14 preserves sections 48B, 48C, 48D, 48G and 48J of the Norfolk Island Act 1979 for the preparation and auditing of annual financial statements for the 2015-2016 year, with modifications that substitute references to the Administrator of the Territory and the general manager of the Norfolk Island Regional Council, and redirect payment obligations to the Department that deals with the administration of Norfolk Island.

The rule interacts with the Australian Federal Police Act 1979 by saving subsection 8(1C) of that Act as in force immediately before the final transition time, allowing the 1993 AFP arrangement to continue in effect with the redirection of references under section 10. It also interacts with the Local Government Act 1993 (NSW) as in force in Norfolk Island under section 18A of the Norfolk Island Act 1979, by defining powers in the nature of local government powers by reference to that Act and by attributing acts of the Administration under that framework to the Norfolk Island Regional Council.

The rule interacts with the Goods and Services Tax Act 2007 (NI) by substituting the Norfolk Island Regional Council as the party to pending proceedings under that Act. It interacts with the Electricity Supply Act 1985 (NI), the Lighterage Act 1961 (NI) and the Telecommunications Act 1992 (NI), which are continued in force by the Norfolk Island Act 1979, by attributing acts done by the Administration under those laws to the Norfolk Island Regional Council. The rule also interacts with the constitutional framework through section 15, which engages paragraph 51(xxxi) of the Constitution to provide for just terms compensation.

The rule operates alongside the general transitional provisions in Schedule 2 to the NILA Act, including subitems 358(2) and 366(2) relating to vesting of assets and transfer of records, by carving out exceptions in sections 6, 7 and 8. It interacts with the definition of "instrument" in item 367 of Schedule 2 to the NILA Act by applying that definition to the redirection of references in section 9. The rule does not amend the text of the NILA Act or other primary legislation, consistent with the limitations on the rule-making power.

The rule itself constitutes the mechanism for implementing the transitional arrangements required by the amendments in Part 1 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015. Those amendments, which took effect on 1 July 2016, repealed provisions of the Norfolk Island Act 1979 that established and maintained the Administration and Advisory Council, and introduced the application of laws of applied law jurisdictions under section 18A. The rule was made to prescribe the specific transitional matters that the general provisions in Schedule 2 to the NILA Act did not fully address, particularly in relation to the handling of records, the redirection of references in instruments, and the continuation of certain arrangements and financial reporting obligations.

The purpose stated in section 5 is to deal with the effects of abolishing the Administration and Advisory Council. The detailed provisions in sections 6 and 7 were included because the default transfer rules in subitem 366(2) of Schedule 2 would not have ensured that records relating to the core business of the Advisory Council and Legislative Assembly, and records relating to immigration, customs and citizenship, were transferred to the Commonwealth in a manner that preserved their accessibility and accountability. The vesting provision in section 8 was required to address situations where access to those records depended on devices or software licences held by the Administration.

The redirection of references in sections 9 and 10, and the substitution in proceedings under section 11, were necessary to maintain continuity of legal relationships and litigation without requiring individual amendments to every instrument or proceeding. The attribution of acts under section 12 ensures that the Norfolk Island Regional Council can exercise local government functions and powers under the specified continued laws without gaps in authority. The savings provisions in sections 13 and 14 were included to avoid disruption to police services and to allow completion of financial reporting for the 2015-2016 year under a modified version of the repealed provisions. The constitutional safety net in section 15 was included to address any potential inconsistency with paragraph 51(xxxi) of the Constitution arising from the automatic vesting and transfer provisions.

The source text does not name any specific court challenges or decided cases concerning the rule. The inclusion of the constitutional safety net in section 15 indicates that the drafters anticipated potential disputes over whether the automatic vesting of assets under section 8 or the transfer of records under sections 6 and 7 could constitute an acquisition of property otherwise than on just terms. Section 15 provides a direct mechanism for affected persons to seek compensation through proceedings in a court of competent jurisdiction, which may reduce the likelihood of broader constitutional challenges by offering a statutory remedy.

The rule's treatment of the 1993 AFP arrangement under sections 10 and 13, and the specific carve-outs for records relating to immigration, customs and citizenship under section 7, reflect the sensitive nature of those matters in the transition from Norfolk Island self-governance. The exclusion of certain records where an access arrangement already existed, and the requirement for the Commonwealth to have its own device or software licence before vesting occurs, are designed to minimise disputes over practical access to information. The limitation in section 9 that the redirection of references does not apply where an Act or regulations preclude the Norfolk Island Regional Council from being treated as the maker or party to the instrument provides a safeguard against unintended overreach.

The attribution of acts under section 12, particularly in relation to powers under the continued laws such as the Electricity Supply Act 1985 (NI), may give rise to questions about the scope of "powers in the nature of a power of a local government" as defined by reference to the Local Government Act 1993 (NSW). The rule does not resolve such questions but preserves the ability of parties to litigate them in the ordinary course. The savings for financial statements under section 14, with modifications to payment obligations, may also be the subject of disputes between the Norfolk Island Regional Council and Territory authorities regarding unpaid fees.

One gotcha is the definition of excluded records in section 7(5)(b), which applies only where an arrangement was in place immediately before the final transition time for the Commonwealth to receive the information in a form that can be read without the aid of a device or software licence held by the Administration. If no such arrangement existed, the record must be transferred and the device or licence vests in the Commonwealth under section 8, even if this creates practical difficulties for the Norfolk Island Regional Council in accessing copies or related data.

Another gotcha is the limited scope of proceedings covered by section 11. Only proceedings under the Goods and Services Tax Act 2007 (NI) to which the Administration was a party, and other proceedings to which the Administration became a party after 1 June 2016 that were pending immediately before the final transition time, trigger the substitution. Proceedings commenced earlier or under other laws are not covered, potentially leaving the Norfolk Island Regional Council or the Commonwealth to determine successor status under the general provisions of Schedule 2 to the NILA Act.

The exception in section 9(2)(d) for instruments made under an Act or regulations that preclude the Norfolk Island Regional Council from being treated as the maker or party requires careful checking of the underlying legislation. If such a preclusion applies, the reference to the Administration remains unchanged, which may create inconsistency with the general redirection. The exclusion of the 1993 AFP arrangement from section 9 means that parties relying on that arrangement must look to section 10 and the saved provisions in section 13 for the correct reference.

Section 12(3) provides that the attribution of acts does not affect the operation of other provisions of the rule, including the vesting of assets under section 8. This means that even where an act is attributed to the Norfolk Island Regional Council, any device or software licence required to access related records may still vest in the Commonwealth. The modifications in section 14(3) to the saved financial statement provisions, including the redirection of payment obligations to the Department, require careful application to avoid disputes over which entity bears responsibility for fees and auditing costs.

Practising lawyers advising the Norfolk Island Regional Council should review all instruments to which the Administration was a party or which were given to the Administration, and update internal records to reflect that references to the Administration are now taken to be references to the Council, unless the instrument is the 1993 AFP arrangement or is made under legislation that precludes the substitution. For proceedings covered by section 11, the Council should file notices of substitution in the relevant court or tribunal immediately after the final transition time to ensure continuity of representation.

Compliance officers handling records should identify all records and documents in the possession of the former Administration or Advisory Council that meet the descriptions in sections 6(5) and 7(2), and arrange for their physical or electronic transfer to the Commonwealth after 1 July 2016. Where records relate to immigration, customs or citizenship, particular attention must be given to whether they are excluded records under section 7(5)(b), and if not, whether any device or software licence required for access must be transferred under section 8. The Commonwealth should confirm receipt of transferred records and assets, and update its systems to reflect the vesting.

Accountants and financial advisers should ensure that annual financial statements for the financial year beginning on 1 July 2015 are prepared in accordance with the saved provisions of sections 48B, 48C, 48D, 48G and 48J of the Norfolk Island Act 1979, with the modifications set out in section 14(3) and 14(5). This includes treating references to the Administrator as references to the Administrator of the Territory, references to the Chief Executive Officer as references to the general manager of the Norfolk Island Regional Council, and redirecting payment obligations to the Department that deals with the administration of Norfolk Island.

Parties to contracts or other instruments with the former Administration should confirm with the Norfolk Island Regional Council that the Council accepts the redirected references under section 9, and should review any rights or liabilities that accrued before the final transition time to ensure they are enforceable against the correct entity. Where a potential acquisition of property arises from the operation of the rule, affected persons should document the basis of the claim and engage with the Commonwealth regarding compensation under section 15, or commence proceedings in a court of competent jurisdiction if agreement cannot be reached.

The Norfolk Island Regional Council should maintain records of all acts done by the Administration before the final transition time that relate to local government powers or the specified continued laws, to support the attribution under section 12. The Commonwealth should monitor the continuation of the 1993 AFP arrangement under section 13 and progress negotiations for a new arrangement under subsection 8(1C) of the Australian Federal Police Act 1979 to replace it. All parties should seek specific legal advice on the application of the rule to their particular circumstances, given the technical nature of the carve-outs and modifications.