Norfolk Island Regional Council Preparatory Election Ordinance 2016
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Norfolk Island Regional Council Preparatory Election Ordinance 2016
Ordinance No. 3, 2016
I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Ordinance.
Dated 10 March 2016
Peter Cosgrove
Governor‑General
By His Excellency’s Command
Paul Fletcher
Minister for Major Projects, Territories and Local Government
Contents
Part 1—Preliminary
1 Name
2 Commencement
3 Authority
4 Object of this Ordinance
5 Definitions
6 The Acts Interpretation Act 1901 does not apply
Part 2—Election
Division 1—Application of NSW electoral law
7 Application of NSW electoral law as in force on 13 November 2015
Division 2—Modification of applied provisions
Subdivision A—General modifications
8 Norfolk Island treated as one area, not divided into wards
9 References to councillor and civic office
10 References to general manager
11 References to Electoral Commissioner or Electoral Commission
12 Certain references relating to council
13 References to police officers
14 References to statutory declarations
15 References to roll of non‑resident owners of rateable land
16 References to roll of occupiers and ratepaying lessees
17 Internal references to Acts and regulations containing the applied provisions
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?)
19 Exclusion of section 269 of the LGA (Who is a “resident” for the purposes of this Part?)
20 References in Part 1 of Chapter 10 of the LGA to rateable land etc. and persons connected with such land
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?)
22 Exclusion of section 277 of the LGA (May the holder of a civic office be re‑elected?)
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
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)
25 Exclusion of certain provisions of Part 4 of Chapter 10 of the LGA
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)
27 Exclusion of certain provisions of Part 5 of Chapter 10 of the LGA
28 Modifications relating to clause 285 of the LGR (Notification of vacancy)
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
30 Election to be administered by the Electoral Commissioner
31 Modifications relating to section 296B of the LGA (Elections administered by the Electoral Commissioner): access to records
32 Other modifications relating to section 296B of the LGA (Elections administered by the Electoral Commissioner)
33 Exclusion of section 297 of the LGA (Delegation of functions by the Electoral Commissioner)
34 Modifications relating to section 298 of the LGA (Residential roll)
35 Modifications relating to section 299 of the LGA (Non‑residential roll)
36 Modifications relating to section 300 of the LGA (Roll of occupiers and ratepaying lessees)
37 Modifications relating to section 303 of the LGA (Making of claims for inclusion in the roll): review of decisions
38 Other modifications relating to section 303 of the LGA (Making of claims for inclusion in the roll) and related applied provisions
39 Modifications relating to section 306 of the LGA (Nominations) and related applied provisions
40 Modifications relating to section 308 of the LGA (Candidate information sheets) and related applied provisions
41 Modifications relating to sections 309 and 311 of the LGA and related applied provisions
42 Modifications relating to conduct of contested elections
43 Modifications relating to uncontested elections
44 Modifications relating to section 314 of the LGA (Penalty notice to be issued for failure to vote) and related applied provisions
45 Modifications of section 317 of the LGA (Validity of elections)
46 Exclusion of section 318 of the LGA (Lapsed or void election)
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
48 Modifications relating to section 320 of the LGA (Registration of political parties), Part 4A of the PEEA (Registration of parties) and the PEER
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?)
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
Subdivision K—Modifications of other applied provisions
51 Exclusion of section 691 of the LGA (Proceedings for offences)
52 Modifications of section 710 of the LGA (Service of notices on persons)
53 Modifications of clause 275 of the LGR (Definitions)
54 Modifications of clause 277B of the LGR (Advertising by election manager)
55 Modifications of clause 280 of the LGR (Advertising of enrolments)
56 Modifications of clause 281 of the LGR (Enrolment claims and objections)
57 Modifications of clause 288 of the LGR (Notice of election and call for nomination proposals)
58 Modifications of clause 300 of the LGR (Notice of contested election): publication of notice
59 Other modifications of clause 300 of the LGR (Notice of contested election)
60 Modifications of clause 317 of the LGR (Issue of postal ballot‑paper)
61 Modifications of clause 318 of the LGR (Postal voting procedure)
62 Modifications of clause 356 of the LGR (Declaring the election)
63 Modifications of clause 356GB of the LGR (Publication of paid electoral advertisements on the internet)
64 Exclusion of certain provisions of Division 11 of Part 11 of the LGR (Miscellaneous)
65 Modifications of clause 393AA of the LGR (Electoral Commissioner to report on election)
66 Further modifications of clause 393AA of the LGR
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))
68 Modifications of section 66DA of the PEEA as modified by the LGA
Subdivision L—Modifications prescribed by the rules
69 Modifications prescribed by the rules
Subdivision M—Miscellaneous
70 This Division has effect despite definitions in the applied provisions
71 References in this Division to the applied provisions applying
Division 3—Interpretation of applied provisions
72 Interpretation of applied provisions
73 References in applied provisions to time are to Norfolk Island time
Part 3—Miscellaneous
74 Powers, functions and duties of the Electoral Commissioner and the Electoral Commission under the applied provisions
75 Information privacy
76 Repeal of this Ordinance
77 Rule‑making power
Part 1—Preliminary
1 Name
This is the Norfolk Island Regional Council Preparatory Election Ordinance 2016.
2 Commencement
(1) Each provision of this Ordinance specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
- Commencement information
- Column 1 Column 2 Column 3
- Provisions Commencement Date/Details
-
- The whole of this Ordinance The day after this Ordinance is registered. 11 March 2016
Note: This table relates only to the provisions of this Ordinance as originally made. It will not be amended to deal with any later amendments of this Ordinance.
(2) Any information in column 3 of the table is not part of this Ordinance. Information may be inserted in this column, or information in it may be edited, in any published version of this Ordinance.
3 Authority
This Ordinance is made under section 19A of the Norfolk Island Act 1979.
4 Object of this Ordinance
(1) The main object of this Ordinance is to provide for the election, before 1 July 2016, of 5 persons who will become councillors of the Norfolk Island Regional Council as a result of the Norfolk Island Regional Council declaration Ordinance.
(2) This Ordinance provides for that election mainly by applying, in Norfolk Island and with modifications for Norfolk Island, New South Wales laws relevant to the election of local government councillors.
Note: Those laws could not otherwise apply in Norfolk Island before 1 July 2016 (when section 18A will be added to the Norfolk Island Act 1979 (Commonwealth) to apply New South Wales laws generally in Norfolk Island).
(3) This Ordinance does not incorporate, amend, repeal or suspend a provision of the law of New South Wales so far as the provision is in force in Norfolk Island on or after 1 July 2016 apart from this Ordinance.
Note 1: On and after 1 July 2016, the provisions of the law of New South Wales are in force in Norfolk Island because of section 18A of the Norfolk Island Act 1979 (Commonwealth). That section will permit a section 19A Ordinance to incorporate, amend, repeal or suspend a provision of the law of New South Wales in force under section 18A.
Note 2: On and after 1 July 2016, 2 versions of the provisions of New South Wales law relevant to the election of local government councillors may apply in Norfolk Island:
(a) those provisions applied by section 7 of this Ordinance (with modifications set out in Division 2 of Part 2 of this Ordinance); and
(b) those provisions so far as they are in force in Norfolk Island under section 18A of the Norfolk Island Act 1979 (Commonwealth) apart from section 7 of this Ordinance and Division 2 of Part 2 of this Ordinance.
5 Definitions
In this Ordinance, and in the provisions applied by section 7 with the modifications set out in Division 2 of Part 2 (as those provisions apply with those modifications because of that section):
Administration means the Administration of Norfolk Island provided for by section 5 of the Norfolk Island Act 1979 (Commonwealth) as in force at the commencement of this Ordinance.
Note: That section is to be repealed on 1 July 2016, so the Administration ceases to exist then. Part 2 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015 (Commonwealth) includes transitional provisions relating to the cessation of existence of the Administration, and allows transitional rules to be made to deal with transitional matters relating to the repeal.
applied provisions means the provisions applied by section 7.
Commonwealth Minister means the Minister for the time being administering the Norfolk Island Act 1979 (Commonwealth) and includes a Minister or member of the Federal Executive Council for the time being acting for or on behalf of the first‑mentioned Minister.
Executive Director means the Executive Director of Norfolk Island provided for by section 9 of the Norfolk Island Act 1979 (Commonwealth) as in force at the commencement of this Ordinance.
Note: That section is to be repealed on 1 July 2016, so the office of Executive Director ceases to exist then. Part 2 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015 (Commonwealth) allows transitional rules to be made to deal with transitional matters relating to the repeal.
LGA means the Local Government Act 1993 (NSW) as in force on 13 November 2015, so far as it applies because of section 7 of this Ordinance.
LGR means the Local Government (General) Regulation 2005 (NSW) as in force on 13 November 2015, so far as it applies because of section 7 of this Ordinance.
Norfolk Island, when used in a geographical sense, means the Territory of Norfolk Island as described in Schedule 1 to the Norfolk Island Act 1979 (Commonwealth).
Norfolk Island Regional Council declaration Ordinance means a section 19A Ordinance (other than this Ordinance) that declares a body to be the Norfolk Island Regional Council for the purposes of the definition of Norfolk Island Regional Council in subsection 4(1) of the Norfolk Island Act 1979 (Commonwealth).
Note: On 1 July 2016, the definition of Norfolk Island Regional Council will be inserted in subsection 4(1) of the Norfolk Island Act 1979 (Commonwealth) by item 17 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015 (Commonwealth).
PEEA means the Parliamentary Electorates and Elections Act 1912 (NSW) as in force on 13 November 2015, so far as it applies because of section 7 of this Ordinance.
PEER means the Parliamentary Electorates and Elections Regulation 2008 (NSW) as in force on 13 November 2015, so far as it applies because of section 7 of this Ordinance.
rules means rules made under section 77.
section 19A Ordinance has the same meaning as in the Norfolk Island Act 1979 (Commonwealth).
6 The Acts Interpretation Act 1901 does not apply
The Acts Interpretation Act 1901 (Commonwealth) does not apply to this Ordinance.
Note: The Interpretation Act 1979 (Norfolk Island) applies instead (because this Ordinance is an enactment for the purposes of that Act), except to the extent provided in Division 3 of Part 2 of this Ordinance (which is about interpretation of the applied provisions).
Part 2—Election
Division 1—Application of NSW electoral law
7 Application of NSW electoral law as in force on 13 November 2015
The following apply in Norfolk Island with the modifications set out in Division 2:
(a) the following provisions (the main applied provisions) of Chapter 10 (How are people elected to civic office?) of the Local Government Act 1993 (NSW) as in force on 13 November 2015:
(i) Part 1 (Who may vote?);
(ii) Part 2 (Who may be elected?);
(iii) Part 3 (What is the system of election?);
(iv) Part 4 (When are elections held?);
(v) Part 5 (How are casual vacancies filled?);
(vi) Part 6 (How are elections conducted?);
(vii) Part 7 (Political parties);
(viii) Part 9 (Dismissal from civic office);
(b) the other provisions of that Act, as in force on that day, so far as they relate to the main applied provisions;
(c) the provisions of the Local Government (General) Regulation 2005 (NSW), as in force on that day, so far as they relate to:
(i) the main applied provisions; or
(ii) the provisions described in paragraph (b); or
(iii) item 14 of Schedule 6 to the Local Government Act 1993 (NSW) as in force on 13 November 2015;
(d) the provisions of the Parliamentary Electorates and Elections Act 1912 (NSW), as in force on that day, so far as they are relevant to the main applied provisions or the provisions described in paragraph (b) or (c) of this section;
(e) the provisions of the Parliamentary Electorates and Elections Regulation 2008 (NSW), as in force on that day, so far as they relate to the provisions described in paragraph (d) of this section.
Note: The applied provisions could in 2016 be viewed on the New South Wales Government’s NSW legislation website (http://www.legislation.nsw.gov.au).
Division 2—Modification of applied provisions
Subdivision A—General modifications
8 Norfolk Island treated as one area, not divided into wards
The applied provisions apply as if Norfolk Island were one area, not divided into wards, for the purposes of the LGA and the LGR.
9 References to councillor and civic office
Councillor
(1) The applied provisions apply as if a reference in the LGA or the LGR to a councillor were a reference to a person who will become a councillor of the Norfolk Island Regional Council as a result of the Norfolk Island Regional Council declaration Ordinance.
Civic office
(2) The applied provisions apply as if a reference in the LGA or the LGR to a civic office were a reference to the status of being entitled to become a councillor of the Norfolk Island Regional Council as a result of the Norfolk Island Regional Council declaration Ordinance.
10 References to general manager
The applied provisions apply as if a reference in the LGA or the LGR to the general manager, to the relevant general manager or to a general manager of a council were a reference to the Executive Director.
11 References to Electoral Commissioner or Electoral Commission
The applied provisions apply as if a reference in them to the Electoral Commissioner or the Electoral Commission were a reference to a person or authority (including the Commonwealth Minister):
(a) in whom a relevant power, function or duty of the Electoral Commissioner or the Electoral Commission is vested by or under section 74; or
(b) to whom such a power, function or duty is delegated under that section.
12 Certain references relating to council
(1) The applied provisions apply as if a reference in any of them to the office of the council (or of a relevant council) were a reference to the office of the Administration.
(2) The applied provisions apply as if a reference in any of them to the office hours of the council (or of a relevant council) were a reference to the office hours of the Administration.
(3) The applied provisions apply as if a reference in the LGA to an employee of the council or of a council were a reference to an employee of the Administration or of a Territory authority within the meaning of the Norfolk Island Act 1979 (Commonwealth).
(4) The applied provisions apply as if a reference in the LGA to holding an office or place of profit under the council were a reference to holding an office or place of profit under the Administration or under a Territory authority within the meaning of the Norfolk Island Act 1979 (Commonwealth).
(5) Subsections (3) and (4) do not affect a reference to the general manager of a council (which is dealt with in section 10).
13 References to police officers
The applied provisions apply as if a reference in the LGR to a police officer were a reference to a member of the Police Force of Norfolk Island.
14 References to statutory declarations
The applied provisions apply as if a reference in them to a statutory declaration were a reference to a statutory declaration under the Statutory Declarations Act 1959 (Commonwealth).
15 References to roll of non‑resident owners of rateable land
The applied provisions apply as if a reference in them to the roll of non‑resident owners of rateable land were a reference to the roll of non‑resident owners of land.
Note: Rateable land is not relevant in the applied provisions (see section 18 for the persons who are entitled to be enrolled and also section 20).
16 References to roll of occupiers and ratepaying lessees
The applied provisions apply as if a reference in them to the roll of occupiers and ratepaying lessees were a reference to the roll of occupiers.
Note: Ratepaying lessees are not relevant in the applied provisions (see section 18 for the persons who are entitled to be enrolled and also section 20).
17 Internal references to Acts and regulations containing the applied provisions
The applied provisions apply as if:
(a) a reference in the LGA to this Act were a reference to the LGA; and
(b) a reference in the PEEA to this Act were a reference to the PEEA; and
(c) a reference in the LGR to the Act were a reference to the LGA; and
(d) a reference in the LGR to this Regulation were a reference to the LGR.
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?)
The applied provisions apply as if subsection 266(1) of the LGA were replaced with the following subsections:
(1) A person who is at least 18 years of age and either an Australian citizen or a person to whom subsection (1A) applies is entitled to be enrolled as an elector for the area if:
(a) the person is a resident of the area; or
(b) the person is an owner of land in the area; or
(c) the person is an occupier of land in the area.
(1A) This subsection applies to a person if:
(a) the person would be a British subject within the meaning of the relevant citizenship law as defined in subsection 93(8A) of the Commonwealth Electoral Act 1918 (Commonwealth) if the relevant citizenship law had continued in force; and
(b) immediately before 26 January 1984, the person’s name was:
(i) on the roll for a Division within the meaning of the Commonwealth Electoral Act 1918 (Commonwealth) as in force at that time; or
(ii) on a roll kept for the purposes of the Australian Capital Territory Representation (House of Representatives) Act 1973 (Commonwealth) or the Northern Territory Representation Act 1922 (Commonwealth).
19 Exclusion of section 269 of the LGA (Who is a “resident” for the purposes of this Part?)
The applied provisions apply as if section 269 of the LGA had not been enacted.
20 References in Part 1 of Chapter 10 of the LGA to rateable land etc. and persons connected with such land
The applied provisions apply as if:
(a) a reference in Part 1 of Chapter 10 of the LGA to rateable land were a reference to land; and
(b) subsection 271(1) of the LGA did not contain the words “or ratepaying lessee”; and
(c) the reference in paragraph 270(1)(d) of the LGA to the Crown were a reference to the Administration, the Commonwealth or a statutory body representing the Administration or the Commonwealth; and
(d) paragraph 270(1)(d) of the LGA did not contain the words “and the land is rateable Crown land”; and
(e) subsections 271(3), (4) and (4A) of the LGA had not been enacted; and
(f) subsection 272(2) of the LGA did not contain the words “, or as ratepaying lessees, or as occupier and ratepaying lessee,”; and
(g) the definition of parcel of land in the Dictionary at the end of the LGA had not been enacted.
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?)
The applied provisions apply as if:
(a) the reference in paragraph 275(1)(b) of the LGA to a judge of any court of the State included a reference to:
(i) a Magistrate of the Court of Petty Sessions of Norfolk Island; and
(ii) the Chief Justice or a Judge of the Supreme Court of Norfolk Island; and
(b) the reference in paragraph 275(1)(e) of the LGA to an offence referred to in Part 4 of the Crimes Act 1900 (NSW) (Offences relating to property) included a reference to:
(i) an offence, under a law of another State or of a Territory, that is equivalent to an offence referred to in Part 4 of the Crimes Act 1900 (NSW); and
(ii) an offence under Chapter 4 of the Criminal Code 2007 (Norfolk Island); and
(c) the reference in paragraph 275(1)(h) of the LGA to disqualified from managing a corporation under Part 2D.6 of the Corporations Act 2001 (Commonwealth) included a reference to incapable of being appointed as a director of a company under section 277 of the Companies Act 1985 (Norfolk Island); and
(d) subsection 275(3) of the LGA did not contain the words “or ratepaying lessee”; and
(e) subsection 275(3) of the LGA did not contain the word “rateable”.
22 Exclusion of section 277 of the LGA (May the holder of a civic office be re‑elected?)
The applied provisions apply as if section 277 of the LGA had not been enacted.
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
The applied provisions apply as if sections 279, 280, 281, 282, 283 and 284 of the LGA had not been enacted.
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)
The applied provisions apply as if:
(a) section 287 of the LGA provided for an ordinary election of the 5 councillors for Norfolk Island to be held on Saturday 28 May 2016 (and not on any other day); and
(b) references in subsection 288(1) of the LGA to the Minister were references to the Commonwealth Minister; and
(c) the reference in subsection 288(1) of the LGA to the Gazette were a reference to the Norfolk Island Government Gazette.
25 Exclusion of certain provisions of Part 4 of Chapter 10 of the LGA
The applied provisions apply as if subsection 288(3) and sections 289 and 290 of the LGA had not been enacted.
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)
The applied provisions apply as if subsection 291A(1) of the LGA were replaced with the following subsection:
(1) This section applies to a casual vacancy that occurs because of any of the following events involving a person elected under this Chapter (as it applies because of the Norfolk Island Regional Council Preparatory Election Ordinance 2016) occurring before another section 19A Ordinance declares a body to be the Norfolk Island Regional Council for the purposes of the definition of Norfolk Island Regional Council in subsection 4(1) of the Norfolk Island Act 1979 (Commonwealth):
(a) the person dies;
(b) the person resigns by writing given to the Commonwealth Minister;
(c) the person is disqualified from holding civic office by section 275 of this Act (as it applies because of the Norfolk Island Regional Council Preparatory Election Ordinance 2016);
(d) the person becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;
(e) the person becomes a mentally incapacitated person.
27 Exclusion of certain provisions of Part 5 of Chapter 10 of the LGA
The applied provisions apply as if sections 291, 292, 293, 294, 294A, 294B and 295 of the LGA had not been enacted.
28 Modifications relating to clause 285 of the LGR (Notification of vacancy)
The applied provisions apply as if clause 285 of the LGR required notice to be given only to the Election Commission.
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
The applied provisions apply as if sections 296AA, 296 and 296A of the LGA had not been enacted.
30 Election to be administered by the Electoral Commissioner
The applied provisions apply as if the election provided for by this Ordinance were an election administered by the Electoral Commissioner.
31 Modifications relating to section 296B of the LGA (Elections administered by the Electoral Commissioner): access to records
The applied provisions apply as if subsection 296B(5) of the LGA were replaced with the following subsections:
(5) The Administration must provide the following persons and authorities with access to any records of the Administration requested by the person or authority for the purposes of conducting the election:
(a) a person or authority:
(i) in whom a relevant power, function or duty of the Electoral Commissioner or the Electoral Commission is vested by or under section 74 of the Norfolk Island Regional Council Preparatory Election Ordinance 2016; or
(ii) to whom such a power, function or duty is delegated under that section;
(b) the Executive Director exercising the powers, and performing the functions, of a general manager under Division 2 (Electoral rolls) because of section 10 of the Norfolk Island Regional Council Preparatory Election Ordinance 2016;
(c) a person exercising the powers, or performing the functions, of a returning officer or substitute returning officer, because of a provision of the Norfolk Island Regional Council Preparatory Election Ordinance 2016.
(5A) A person or authority referred to in paragraph (5)(a), (b) or (c) may, despite any other of the applied provisions, disclose information obtained in the course of exercising powers or performing functions or duties referred to in the paragraph, to the Electoral Commission within the meaning of the Commonwealth Electoral Act 1918 (Commonwealth) for the purposes of the Electoral Commission’s functions and duties under that Act.
32 Other modifications relating to section 296B of the LGA (Elections administered by the Electoral Commissioner)
The applied provisions apply as if the reference in paragraph 296B(6)(c) of the LGA to matter not provided for by this Act or the regulations included matter not provided for by or under this Ordinance.
33 Exclusion of section 297 of the LGA (Delegation of functions by the Electoral Commissioner)
The applied provisions apply as if section 297 of the LGA had not been enacted.
Note: Delegation of the Electoral Commissioner’s functions is dealt with in section 74 of this Ordinance.
34 Modifications relating to section 298 of the LGA (Residential roll)
The applied provisions apply as if:
(a) the reference in subsection 298(2) of the LGA to the Legislative Assembly were a reference to the Legislative Assembly as defined in the Norfolk Island Act 1979 (Commonwealth); and
(b) in subsection 298(2) of the LGA the words “may use” were replaced with “may, but is not required to, use”; and
(c) subsections 298(3), (4) and (8) of the LGA had not been enacted.
35 Modifications relating to section 299 of the LGA (Non‑residential roll)
(1) The applied provisions apply as if:
(a) subsection 299(1A) of the LGA did not contain:
(i) the words “after a roll of non‑resident owners of rateable land for an election lapses under this section”; or
(ii) the word “next”; and
(b) subsection 299(3) of the LGA had not been enacted.
(2) Subparagraph (1)(a)(i) has effect despite section 15 of this Ordinance.
36 Modifications relating to section 300 of the LGA (Roll of occupiers and ratepaying lessees)
(1) The applied provisions apply as if:
(a) subsection 300(1A) of the LGA did not contain:
(i) the words “after a roll of occupiers and ratepaying lessees for an election lapses under this section”; or
(ii) the word “next”; and
(b) subsection 300(3) of the LGA had not been enacted.
(2) Subparagraph (1)(a)(i) has effect despite section 16 of this Ordinance.
37 Modifications relating to section 303 of the LGA (Making of claims for inclusion in the roll): review of decisions
The applied provisions apply as if subsection 303(3) of the LGA were replaced with the following subsections:
(3) A person dissatisfied with a decision made under subsection (2) may apply to the Court of Petty Sessions of Norfolk Island for review of the decision.
(3A) On review, the Court may:
(a) affirm or vary the decision; or
(b) set the decision aside and substitute a decision made by the Court; or
(c) set the decision aside and remit the matter to the decision maker to reconsider 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
The applied provisions apply as if in subsection 303(4) of the LGA the reference to the Civil and Administrative Tribunal were a reference to the Court of Petty Sessions of Norfolk Island.
39 Modifications relating to section 306 of the LGA (Nominations) and related applied provisions
(1) The applied provisions apply as if:
(a) paragraphs 289(4)(a) and (c) of the LGR (about nomination forms) had not been made; and
(b) Forms 2 and 3 in Schedule 11 to the LGR did not contain the heading “STATISTICAL INFORMATION SHEET” and the material under that heading; and
(c) subclause 391(6) of the LGR had not been made.
(2) The applied provisions apply as if subclause 293(3) of the LGR (about forfeiture of nomination deposit) provided for forfeiture, to whichever of the following is relevant, of a deposit that is not required to be returned:
(a) if it is determined before 1 July 2016 that none of the grounds for return of the deposit under clause 293 of the LGR exist—the Administration;
(b) otherwise—the Commonwealth.
40 Modifications relating to section 308 of the LGA (Candidate information sheets) and related applied provisions
The applied provisions apply as if paragraph 290(1)(b) of the LGR (about candidate information sheets required by section 308 of the LGA) did not contain the words “(as shown on a roll kept under the Parliamentary Electorates and Elections Act 1912)”.
41 Modifications relating to sections 309 and 311 of the LGA and related applied provisions
(1) The applied provisions apply as if subsections 309(3) and 311(2) and (4) of the LGA had not been enacted.
Note: Subsections 309(3) and 311(4) provide for an election to fail if a nominated candidate dies before:
(a) the day the poll for the election closes, in the case of a contested election; or
(b) the day the candidate would have been elected, if he or she had not died, in the case of an uncontested election.
(2) The rules may make provision relating to the conduct of the election after the death of a nominated candidate.
Note: The rules may modify the applied provisions for this purpose, among others (see section 70).
42 Modifications relating to conduct of contested elections
The applied provisions apply as if:
(a) the definitions of driver licence and Photo Card in subclause 275(1) of the LGR had not been made; and
(b) paragraph 313(g) of the LGR included a reference to a person being kept in a building or place that, under the Administration Act 1936 (Norfolk Island), has been declared (and has not since ceased) to be a gaol, prison or house of detention; and
(c) in paragraph 320C(2)(b) of the LGR the words “a driver licence or a Photo Card” were replaced with “either a drivers licence that is in force under section 17 of the Traffic Act 2010 (Norfolk Island) or both photographic identification of the person and written evidence from a governmental authority of the person’s address”; and
(d) in paragraph 320C(3)(c) of the LGR the words “is the same as the place specified in the claim for enrolment as the person’s residence” were replaced with “is on Norfolk Island”; and
(e) paragraph (b) of question 3 in subclause 339(4) of the LGR did not contain the words “or State of New South Wales”; and
(f) the reference to the Local Government Act 1993 in question 4 in subclause 339(4) of the LGR were a reference to the Local Government Act 1993 (NSW) as it applies because of the Norfolk Island Regional Council Preparatory Election Ordinance 2016; and
(g) clause 352 of the LGR had not been made; and
(h) the reference in paragraph 353(3)(a) of the LGR to the council were a reference to the Administration; and
(i) the reference in subclause 354(3) of the LGR to the council were a reference to the Administration; and
(j) paragraph 356(3)(b) of the LGR did not contain the words “the Director‑General, the Secretary of the Local Government and Shires Association of New South Wales, and”; and
(k) the reference in subclause 15(3) of Schedule 5 to the LGR to the council were a reference to the Administration; and
(l) in declaration 2 in Form 8 in Schedule 11 to the LGR the words “, occupier or ratepaying lessee” were replaced with “or occupier”; and
(m) in declaration 3 in Form 8 in Schedule 11 to the LGR the words “on the New South Wales or Commonwealth electoral roll” were replaced with “on the electoral roll for this election”.
43 Modifications relating to uncontested elections
The applied provisions apply as if:
(a) paragraph 296(3)(b) of the LGR did not contain the words “, the Director‑General, the Secretary of the Local Government and Shires Association of New South Wales,”; and
(b) in paragraph 296(3A)(a) of the LGR the words “a newspaper circulating in the relevant area” were replaced with “the Norfolk Island Government Gazette, or in a newspaper circulating in Norfolk Island, or both”; and
(c) the reference in subclause 296(4) of the LGR to application to the council were a reference to application 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
The applied provisions apply as if:
(a) subsection 314(3) of the LGA did not contain the words “in the form prescribed by the regulations”; and
(b) the reference in paragraph 314(3)(b) of the LGA to payment of penalty to the Electoral Commissioner were a reference to payment of the penalty to the Administration before 1 July 2016 or payment of the penalty on or after that day to the Department of State of the Commonwealth administered by the Commonwealth Minister; and
(c) subsection 314(5) of the LGA had not been enacted; and
(d) clause 357 of the LGR, and Form 15 in Schedule 11 to the LGR, had not been made.
45 Modifications of section 317 of the LGA (Validity of elections)
The applied provisions apply as if subsection 317(2) of the LGA had not been enacted.
46 Exclusion of section 318 of the LGA (Lapsed or void election)
The applied provisions apply as if section 318 of the LGA had not been enacted.
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
The applied provisions apply as if, in the definition of political party in the Dictionary at the end of the LGA, the reference to election to Parliament or to a council of a candidate were a reference to election of a candidate in the election provided for 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
(1) The applied provisions apply as if paragraph 320(2)(b) of the LGA were replaced with the following paragraphs (modifying Part 4A of the PEEA as adopted by subsection 320(2) of the LGA):
(b) references to party currently represented in Parliament are to be disregarded;
(ba) references to elector are to be read as references to person who is entitled to be enrolled as an elector under section 266 of this Act as it applies with the modifications made by section 18 of the Norfolk Island Regional Council Preparatory Election Ordinance 2016;
(bb) references to New South Wales are to be read as references to Norfolk Island;
(2) The applied provisions apply as if paragraphs 320(2)(f), (g), (g1) and (g2) of the LGA were replaced with the following paragraphs (modifying Part 4A of the PEEA as adopted by subsection 320(2) of the LGA):
(f) the definition of address in section 66A(1) of that Act is to be disregarded;
(fa) sections 66C, 66D(2)(h) and (3), 66FA, 66H(3A) and (3C), 66JA and 66N of that Act are to be disregarded;
(g) the reference in section 66D(2)(g) to as enrolled is to be disregarded;
(ga) the reference in section 66D(2)(g1) to the form prescribed by the regulations is to be read as a reference to the form approved by the Electoral Commissioner;
(3) The applied provisions apply as if clause 33 of the PEER and Form 19 in Schedule 1 to the PEER had not been made.
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?)
The applied provisions apply as if:
(a) references in section 329 of the LGA to the Civil and Administrative Tribunal, or the Tribunal, were references to the Supreme Court of Norfolk Island; and
(b) subsection 329(5) of the LGA had not been enacted.
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
The applied provisions apply as if:
(a) the references in subparagraph 356E(2)(a)(i) and paragraph 356F(4)(a) of the LGR to the Crown or a New South Wales Government agency were references to the Commonwealth or an authority of the Commonwealth; and
(b) the references in subparagraph 356E(2)(a)(ii) and paragraph 356F(4)(b) of the LGR to any council or county council were references to the Administration; and
(c) the reference in subclause 356GB(3) of the LGR to Australia included a reference to Norfolk Island; and
(d) in paragraph 356I(2)(b) of the LGR the words “the subject of a development consent in force under the Environmental Planning and Assessment Act 1979 in relation to its use” were replaced with “used”; and
(e) the references in paragraph 356L(1)(b) of the LGR to council included references to the Norfolk Island Advisory Council; and
(f) the references in paragraph 356L(1)(c) of the LGR to councillor included references to member (whether the Chair or any other member) of the Norfolk Island Advisory Council.
Subdivision K—Modifications of other applied provisions
51 Exclusion of section 691 of the LGA (Proceedings for offences)
The applied provisions apply as if section 691 of the LGA had not been enacted.
Note: Under section 36 of the Court of Petty Sessions Act 1960 (Norfolk Island), the Court of Petty Sessions has jurisdiction to try offences against the applied provisions.
52 Modifications of section 710 of the LGA (Service of notices on persons)
The applied provisions apply as if:
(a) in section 710 of the LGA references to New South Wales were replaced with references to Norfolk Island; and
(b) in section 710 of the LGA references to the council were replaced with references to the Administration; and
(c) in paragraph 710(4)(b) of the LGA the words “approved form published in a newspaper circulating in the district in which the land, building or premises are situated” were replaced with “Norfolk Island Government Gazette or in a newspaper circulating in Norfolk Island”.
53 Modifications of clause 275 of the LGR (Definitions)
(1) The applied provisions apply as if subclause 275(4) of the LGR had the effect that a reference to the election manager’s website or internet website were a reference to a website maintained by any one or more of the following:
(a) the Administration;
(b) the Department of State administered by the Commonwealth Minister;
(c) a person or authority in or to whom a power, function or duty is vested or delegated under section 74 of this Ordinance.
(2) Subsection (1) has effect despite any other provision of this Ordinance that would otherwise modify references to the election manager.
54 Modifications of clause 277B of the LGR (Advertising by election manager)
The applied provisions apply as if the reference in subclause 277B(2) of the LGR to newspaper notices included a reference to notices in the Norfolk Island Government Gazette.
55 Modifications of clause 280 of the LGR (Advertising of enrolments)
The applied provisions apply as if:
(a) in subclause 280(1) of the LGR the words “, occupiers, or ratepaying lessees,” were replaced with “or occupiers”; and
(b) subclause 280(1) of the LGR did not contain the word “rateable”; and
(c) in subclause 280(3) of the LGR the words “a newspaper circulating generally in the State or another newspaper circulating in the relevant area, or both” were replaced with “the Norfolk Island Government Gazette, or in a newspaper circulating generally in Norfolk Island, or both”.
56 Modifications of clause 281 of the LGR (Enrolment claims and objections)
The applied provisions apply as if:
(a) in paragraph 281(1)(d) the words “, occupier, or ratepaying lessee,” were replaced with “or occupier”; and
(b) paragraphs 281(1)(d) and (e) of the LGR did not contain the word “rateable”.
57 Modifications of clause 288 of the LGR (Notice of election and call for nomination proposals)
The applied provisions apply as if in subclause 288(1) of the LGR the words “newspaper circulating in the area” were replaced with “newspaper circulating in the area, or in the Norfolk Island Government Gazette, or both”.
58 Modifications of clause 300 of the LGR (Notice of contested election): publication of notice
The applied provisions apply as if paragraph 300(1)(a) of the LGR were replaced with the following paragraph:
(a) published in the Norfolk Island Government Gazette, or in a newspaper circulating in Norfolk Island, or both; and
59 Other modifications of clause 300 of the LGR (Notice of contested election)
The applied provisions apply as if in subclause 300(2) of the LGR the words “a newspaper circulating in the area” were replaced with “the Norfolk Island Government Gazette or in a newspaper circulating in Norfolk Island”.
60 Modifications of clause 317 of the LGR (Issue of postal ballot‑paper)
The applied provisions apply as if the following subclause were inserted after subclause 317(1) of the LGR:
(1A) The returning officer may nominate more than one address as the address of the returning officer.
61 Modifications of clause 318 of the LGR (Postal voting procedure)
The applied provisions apply as if in clause 318 of the LGR the following subclause were inserted after subclause 318(5):
(5A) Without limiting the circumstances in which an envelope containing or purporting to contain a postal ballot‑paper is received or taken to be received, any such envelope is taken to have been received by the returning officer by 6 pm on the first business day following election day if, by that time on that day, the envelope arrives at an address nominated by the returning officer.
62 Modifications of clause 356 of the LGR (Declaring the election)
The applied provisions apply as if in subclause 356(7) of the LGR the words “a newspaper circulating generally in the State or another newspaper circulating in the area, or both” were replaced with “the Norfolk Island Government Gazette, or a newspaper circulating in Norfolk Island, or both”.
63 Modifications of clause 356GB of the LGR (Publication of paid electoral advertisements on the internet)
The applied provisions apply as if in subclause 356GB(3) of the LGR a person’s address included a post office box located on Norfolk Island.
64 Exclusion of certain provisions of Division 11 of Part 11 of the LGR (Miscellaneous)
The applied provisions apply as if clauses 393A and 393B of the LGR had not been made.
65 Modifications of clause 393AA of the LGR (Electoral Commissioner to report on election)
The applied provisions apply as if:
(a) in subclause 393AA(1) of the LGR the words “provide the Minister with” were replaced with “prepare”; and
(b) subclause 393AA(2) of the LGR did not contain the words “provided to the Minister and”; and
(c) in subclause 393AA(2) of the LGR the words “the Minister is satisfied” were replaced with “the Commonwealth Minister is satisfied”.
66 Further modifications of clause 393AA of the LGR
The applied provisions apply as if paragraph 393AA(1)(e) of the LGR were replaced with the following paragraph:
(e) any 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))
The applied provisions apply as if Form 1 in Schedule 11 to the LGR did not contain:
(a) the second sentence in note 1; and
(b) the heading “STATUTORY DECLARATION” and the material under that heading.
68 Modifications of section 66DA of the PEEA as modified by the LGA
(1) The applied provisions apply as if in subsection 66DA(1) of the PEEA the words “one or more newspapers circulating throughout New South Wales” were replaced with “the Norfolk Island Government Gazette, or in a newspaper circulating in Norfolk Island, or both”.
(2) Subsection (1) has effect despite subsection 48(1) of this Ordinance.
Subdivision L—Modifications prescribed by the rules
69 Modifications prescribed by the rules
The applied provisions apply with any modifications prescribed by the rules.
Subdivision M—Miscellaneous
70 This Division has effect despite definitions in the applied provisions
This Division has effect despite any definition in the applied provisions.
71 References in this Division to the applied provisions applying
A reference in this Division to the applied provisions applying is to those provisions applying under section 7 of this Ordinance.
Note: This Division does not affect the distinct operation of those provisions in Norfolk Island on and after 1 July 2016 under section 18A of the Norfolk Island Act 1979 (Commonwealth).
Division 3—Interpretation of applied provisions
72 Interpretation of applied provisions
(1) The applied provisions applying under section 7 with the modifications set out in Division 2 are to be interpreted in the same way as they would be interpreted as laws of New South Wales.
(2) Subsection (1) has effect:
(a) only so far as the interpretation described in that subsection is consistent with the application of the applied provisions in Norfolk Island under section 7 with the modifications set out in Division 2; and
(b) subject to:
(i) section 5 (Definitions); and
(ii) this Part.
Note: For example, this means that many provisions of the Interpretation Act 1987 (NSW) will be relevant to interpreting the applied provisions in their application in Norfolk Island, although the effect of the Interpretation Act 1987 (NSW) may be displaced by a modification in Division 2 of this Part.
(3) Subsection (1), as limited by subsection (2), has effect despite the Interpretation Act 1979 (Norfolk Island), except section 17 of that Act (about references to officers, offices and various things being references to those officers, offices and things in, for or of Norfolk Island).
Note: One example of the effect of this is that a reference in the applied provisions to a penalty unit is to be interpreted as defined in the Interpretation Act 1987 (NSW), with a value of $110, rather than under the Interpretation Act 1979 (Norfolk Island) which provides for a value of $100.
(4) To avoid doubt, this section does not affect the interpretation of the applied provisions so far as they are in force in Norfolk Island on and after 1 July 2016 under section 18A of the Norfolk Island Act 1979 (Commonwealth) apart from section 7 of this Ordinance.
Note: On and after that day, 2 versions of the applied provisions may apply in Norfolk Island:
(a) the applied provisions under section 7 of this Ordinance (with modifications set out in Division 2 of this Part); and
(b) the same provisions so far as they are in force in Norfolk Island under section 18A of the Norfolk Island Act 1979 (Commonwealth) apart from section 7 of this Ordinance and Division 2 of this Part.
73 References in applied provisions to time are to Norfolk Island time
To avoid doubt, the applied provisions are taken to be a legal instrument for the purposes of the Norfolk Island Standard Time Ordinance 2015.
Note: This ensures that expressions of time in the applied provisions are to be read as references to that time by standard time in Norfolk Island (which is 11 hours in advance of Co‑ordinated Universal Time).
Part 3—Miscellaneous
74 Powers, functions and duties of the Electoral Commissioner and the Electoral Commission under the applied provisions
Vesting of powers in the Commonwealth Minister
(1) If a power is vested in the Electoral Commissioner or the Electoral Commission by a New South Wales law applied in Norfolk Island under section 7, the power is, in relation to Norfolk Island, vested in the Commonwealth Minister instead of the Electoral Commissioner or the Electoral Commission.
Delegation etc.
(2) If a power is vested in the Commonwealth Minister under subsection (1), the Commonwealth Minister may, in writing:
(a) direct that the power is also vested in a specified person or authority; or
(b) delegate the power to a specified person.
(3) A person or authority in whom a power is vested under paragraph (2)(a) may, if the person or authority is so empowered by the Commonwealth Minister in the direction, delegate the power, in writing, to a specified person.
Other matters
(4) An instrument under this section may identify a power by reference to a class of powers.
(5) The validity of the exercise of a power under a law by a person or authority under this section is unaffected by the failure of the person or authority to hold a qualification required of a person exercising that power under the law as in force in New South Wales.
(6) This section does not limit subclause 275(3) of the LGR.
Note: That subclause 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 on the Commissioner by that Part.
Definitions
(7) In this section:
authority means:
(a) a body corporate, or an unincorporated body, established for a public purpose; or
(b) an authority (within the ordinary meaning of that expression).
power includes function or duty, and, in that context, exercise means perform.
75 Information privacy
(1) To avoid doubt, the Privacy Act 1988 (Commonwealth) applies in relation to the election provided for by this Ordinance.
(2) To avoid doubt, this Ordinance authorises a person to collect, use and disclose personal information (within the meaning of the Privacy Act 1988) in the person’s performance of the functions, or exercise of the powers, of any of the following under the applied provisions (as modified by Division 2 of Part 2 of this Ordinance), for the purposes of that performance or exercise:
(a) the Electoral Commissioner;
(b) the Electoral Commission;
(c) a general manager;
(d) a returning officer (or substitute returning officer);
(e) an electoral official.
76 Repeal of this Ordinance
This Ordinance is repealed at the start of 1 January 2017.
77 Rule‑making power
(1) The Commonwealth Minister may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Ordinance to be prescribed by the rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Ordinance.
(2) To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) directly amend the text of this Ordinance.