House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Major Projects, Territories and Local Government, the Hon Paul Fletcher MP)

Territories Legislation Amendment Bill 2016

Outline

The purpose of the Territories Legislation Amendment Bill 2016 is to:

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Amend the Norfolk Island Legislation Amendment Act 2015 to ensure that New Zealand citizens holding a permanent visa residing on Norfolk Island have access to social security.

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Amend the Norfolk Island Legislation Amendment Act 2015 to align the early claims period for family assistance payments with the early claims periods for social security and child support payments before 1 July 2016.

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Amend the Child Support (Assessment) Act 1989 and Child Support (Registration and Collection) Act 1988 to extend the child support scheme to residents of the Indian Ocean Territories of Christmas Island and Cocos (Keeling) Island.

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Amend the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 to require eligible Australian citizens and eligible other persons living in Norfolk Island to enrol and vote in federal elections and referendums.

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Amend the Norfolk Island Act 1979 and the Acts Interpretation Act 1901 to extend all Commonwealth laws to Norfolk Island, unless expressly provided otherwise; and make the necessary consequential and transitional amendments to Commonwealth Acts to achieve this outcome (the Passenger Movement Charge Amendment (Norfolk Island) Bill 2016 is consequential to the primary measure).

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Amend the Norfolk Island Act 1979 to broaden the definition of the Norfolk Island Regional Council to enable flexibility in the application of local government law to Norfolk Island.

Schedule 1 - New Zealand citizens residing on Norfolk Island

This Schedule allows New Zealand citizens who hold a permanent visa and reside on Norfolk Island access to social security payments from 1 July 2016. This Schedule is due to commence on the day after Royal Assent, in order to commence before Part 1 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015.

The Norfolk Island Legislation Amendment Act 2015 included an amendment that inserted subsection 7(2AA) into the Social Security Act 1991. The subsection states that from 1 July 2016, subparagraph 7(2)(b)(ii) of the Social Security Act 1991 does not apply to a New Zealand citizen who resides on Norfolk Island.

This means that from 1 July 2016, a New Zealand citizen on Norfolk Island who is the holder of an Australian permanent visa is not an Australian resident for social security purposes and hence ineligible for social security or family assistance payments.

The intention of inserting this provision is to align eligibility for Australian social welfare payments of New Zealand citizens who reside on Norfolk Island with New Zealand citizens residing on the Australian mainland who arrived after February 2001. Without subsection 7(2AA), transitional visa arrangements for New Zealanders on Norfolk Island provide a pathway to Permanent Residence and subsequent access to social welfare payments that is unavailable to New Zealand citizens who commenced residing on mainland Australia after February 2001.

Although intended to remedy the pathway outlined above, subsection 7(2AA) has had an overreaching effect precluding all New Zealanders residing on Norfolk Island who are Australian permanent residents from Australian social welfare regardless of their pathway to permanent residence. It is also inconsistent with the Government's policy objective of encouraging New Zealand citizens with long-term residence in Australia to formalise their visa arrangements by seeking a permanent resident visa. The Parliamentary Joint Committee on Human Rights considered subsection 7(2AA) in its Twenty-second Report of the 44th Parliament, issued on 13 May 2015. The Joint Committee concluded that the measure appears to be discriminatory as it excludes some categories of Australian permanent residents from eligibility and limits rights to equality and non-discrimination.

This Schedule removes item 323 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015 which proposes inserting new subsection 7(2AA). This allows New Zealand citizens who hold a permanent visa and reside on Norfolk Island access to social security payments from 1 July 2016.

Schedule 2 - Claims for assistance made by Norfolk Island residents before 1 July 2016

This Schedule aligns the early claims period for family assistance payments with the early claims periods for social security and child support payments. This Schedule commences the day after the Act receives Royal Assent.

Part 1 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015 extends the child support, family assistance and social security laws to the residents of Norfolk Island from 1 July 2016. Part 2 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015 contains the transitional provisions for the application of the social security, family assistance and child support law to Norfolk Island. The transitional provisions commenced on 18 June 2015.

In order to enable Norfolk Island residents to be qualified to be paid benefits from 1 July 2016, the transitional provisions allow residents to lodge claims for payments early. This is to enable the Department of Human Services to consider claims and undertake the required administrative tasks to ensure payments can be immediately payable from 1 July 2016. This reduces the number of payments requiring backdating and minimises the risk of residents being without financial support while they wait for claims to be processed.

An oversight in the Norfolk Island Legislation Amendment Act 2015 meant the early claims period for child support and social security claims was to be eight weeks, while family tax benefit claims was to be four weeks. This administrative inconsistency would place an additional burden on claimants to lodge claims at separate times. It is therefore preferable that all early claim periods be aligned.

Items 376 and 382 of Part 2 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015 relate to the social security and child support early claims provisions respectively. Both provisions state that if a claim was made "during the 8-week period ending at the final transition time... the application is taken to have been made immediately after the final transition time" (the transition time being 1 July 2016).

Item 381 relates to family assistance early claims and states that if "a claim for family tax benefit was made during the 4-week period ending at the final transition time... the claim is taken to have been made immediately after the final transition time." This Schedule amends this provision to allow an "8-week period" instead of a "4-week period".

Similarly, item 382 was not made to allow applications for the acceptance of a child support agreement to be made prior to the final transition day for the Norfolk Island Legislation Amendment Act 2015. This Schedule provides for early applications for acceptance of such agreements to be made, similarly up to 8 weeks prior to the final transition day.

Schedule 3 - Child support for Indian Ocean Territory residents

This Schedule extends the child support scheme to residents of the Indian Ocean Territories of Christmas Island and Cocos (Keeling) Island. Part 1 of this Schedule commences immediately after the commencement of Part 1 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015 or 1 July 2016. Part 2 of this Schedule commences the day after this Act receives the Royal Assent.

The Norfolk Island Legislation Amendment Act 2015 extends the child support laws to the residents of Norfolk Island from 1 July 2016. The Australian taxation, social security and family assistance laws currently extend to residents of Christmas Island and Cocos (Keeling) Islands. The non-extension of the child support law to residents of Christmas Island and Cocos (Keeling) Islands is anomalous given that it will apply to the residents of Norfolk Island from 1 July 2016. It is intended that child support is extended to Christmas Island and Cocos (Keeling) Islands at the same time as Norfolk Island.

The Norfolk Island Legislation Amendment Act 2015 included transitional provisions to allow Norfolk Island residents an 8-week early application period immediately prior to 1 July 2016 to lodge child support claims. With the extension of the child support program to residents of Cocos (Keeling) Islands and Christmas Island, it is intended that an 8-week early application period for child support applications is also extended to these residents to align with Norfolk Island residents.

Schedule 4 - Norfolk Island electoral arrangements

Schedule 4 to this Bill amends the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 to require eligible Australian citizens and eligible other persons living on Norfolk Island to enrol and vote in federal elections and referendums from 1 July 2016. This provides consistency with eligible Australian citizens and eligible other persons who are required to enrol and vote.

The amendments to the Electoral Act will include Norfolk Island in a federal electoral Division of the Australian Capital Territory. In the event that the Australian Capital Territory has more than one Division, the relevant Division will be a Division that does not include the Jervis Bay Territory. At the time of commencement of the amendments, the practical effect will be the inclusion of Norfolk Island in the Division of Canberra. Inclusion of Norfolk Island in a federal electoral Division will allow Norfolk Island residents to be represented by a single federal member of the House of Representatives and the Senators for the Australian Capital Territory. Previous arrangements under which eligible Norfolk Islanders could choose to enrol in other federal electoral Divisions will be repealed, and individuals who are enrolled in other federal electoral Divisions will have their enrolment transferred to the Division of Canberra.

Schedule 5 - Application of Acts to Norfolk Island

Schedule 5 builds on the reforms contained in the Norfolk Island Legislation Amendment Act 2015 to normalise federal legislative arrangements for Norfolk Island. Schedule 5 enables this objective by extending all Commonwealth Acts to Norfolk Island, unless expressly provided otherwise. This reverses the presumption contained in previous section 18 of the Norfolk Island Act 1979, where Acts did not extend to Norfolk Island unless expressed to extend. Schedule 5 replaces section 18 with a new section 18, and amends the geographical definitions of "Australia" and "the Commonwealth" in the Acts Interpretation Act 1901 to include Norfolk Island. The effect is to reverse the previous presumption.

In effect, new section 18 provides that a Commonwealth Act is in force on Norfolk Island, except as otherwise provided by an Act. This means that:

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Commonwealth Acts which do not state whether or not they extend to Norfolk Island extend to Norfolk Island (even if there is no practical effect of this extension).

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Commonwealth Acts which expressly state they do not extend to Norfolk Island do not (or continue to not) extend to Norfolk Island.

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Commonwealth Acts which state that they extend to Norfolk Island continue to extend (although this is technically unnecessary as a result of new section 18).

In some cases, only certain provisions of Acts apply to Norfolk Island.

The Australian Government has assessed all Commonwealth legislation to determine whether it is appropriate or not appropriate to extend an Act to Norfolk Island at this time. As a result of this consultation across federal government departments, this Schedule makes the necessary consequential amendments to Commonwealth Acts.

The changes made to the operation of section 18 of the Norfolk Island Act 1979 and to definitions in the Acts Interpretation Act 1901 are very broad in nature. To ensure that any unforeseen or unintended consequences can appropriately be dealt with, Schedule 5 permits the responsible Commonwealth Minister (as defined in the Norfolk Island Act 1979) to make transitional rules. If made before 1 July 2017, such rules may modify the effect of any Act or instrument, and may have retrospective application even if they negatively affect the rights of, or impose a liability on, a person. However, the transitional rules are limited in their scope; for example, they must not create an offence or civil penalty, provide powers of arrest, detention, entry, search or seizure, or impose a tax.

The Schedule also contains rule-making powers for the Employment Minister to modify employment legislation, and these powers are limited by the appropriate limits and safeguards.

In summary, this Schedule consequentially amends the following Acts to expressly provide that they do not extend to Norfolk Island:

Australian Securities and Investments Commission Act 2001

Bankruptcy Act 1966

Bankruptcy (Estate Charges) Act 1997

Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992

Cross-Border Insolvency Act 2008

Customs Licensing Charges Act 1997

Customs Securities (Penalties) Act 1981

Customs Tariff Act 1995

Customs Tariff (Anti-Dumping) act 1975

Customs Undertakings (Penalties) Act 1981

Do Not Call Register Act 2006

Education Services for Overseas Students Act 2000

Export Control Act 1982

Imported Food Charges Collection Act 2015

Imported Food Charges (Imposition - Customs) Act 2015

Imported Food Charges (Imposition - Excise) Act 2015

Imported Food Charges (Imposition - General) Act 2015

Imported Food Control Act 1992

Import Processing Charges Act 2001

Motor Vehicle Standards Act 1989

Tradex Duty Imposition (Customs) Act 1999

Tradex Duty Imposition (Excise) Act 1999

Tradex Duty Imposition (General) Act 1999

This Schedule specifically amends the following Acts so that they can extend to Norfolk Island:

Agricultural and Veterinary Chemicals Act 1994

Australian Capital Territory (Self-Government) Act 1988

Australian National Preventative Health Agency Act 2010

Australian Postal Corporation Act 1989

Business Names Registration Act 2011

Equal Employment Opportunity (Commonwealth Authorities) Act 1987

Fair Work Act 2009

Federal Proceedings (Costs) Act 1981

Gene Technology Act 2000

Industry Research and Development Act 1986

Insurance Contracts Act 1984

National Land Transport Act 2014

Passenger Movement Charge Collection Act 1978

Protection of Moveable Cultural Heritage Act 1986

Public Order (Protection of Persons and Property) Act 1971

Water Efficiency Labelling and Standards Act 2005

Workplace Gender Equality Act 2012

This Schedule amends the following Acts to provide for their conditional extension to Norfolk Island:

Do Not Call Register Act 2006 (may extend to Norfolk Island, if prescribed)

Export Control Act 1982 (may extend to Norfolk Island, if prescribed)

Imported Food Charges (Collection) Act 2015 (does not extend to Norfolk Island unless the

Imported Food Control Act 1992 extends)

Imported Food Charges (Imposition - Customs) Act 2015 (does not extend to Norfolk Island

unless the Imported Food Control Act 1992 extends)

Imported Food Charges (Imposition - Excise) Act 2015 (does not extend to Norfolk Island

unless the Imported Food Control Act 1992 extends)

Imported Food Charges (Imposition - General) Act 2015 (does not extend to Norfolk Island

unless the Imported Food Control Act 1992 extends)

Imported Food Control Act 1992 (may extend to Norfolk Island, if prescribed)

Plant Breeder's Rights Act 1994 (may extend to Norfolk Island, if prescribed)

Telecommunications (Interception and Access) Act 1979 (will extend to Norfolk Island upon

the repeal of the Telecommunications Act 1992 (NI))

The following Acts are also specifically amended by this Schedule:

Competition and Consumer Act 2010

Copyright Act 1968

Excise Act 1901

Fair Entitlements Guarantee Act 2012

Independent Contractors Act 2006

Road Safety Remuneration Act 2012

The following Acts are exceptions and unaffected by this Schedule. They are amended to apply to Norfolk Island as they did prior to the commencement of this Schedule.

Broadcasting Services Act 1992

Telecommunications Act 1997

Telecommunications (Carrier Licence Charges) Act 1997

Telecommunications (Industry Levy) Act 2012

Telecommunications (Numbering Charges) Act 1997

Telecommunications (Transitional Provisions and Consequential Amendments) Act 1991

Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997

In addition, consequential amendments related to the Norfolk Island Legislation Amendment Act 2015 are made to the following Acts:

Health Insurance Commission (Reform and Separation of Functions) Act 1997

Hearing Services and AGHS Reform Act 1997

Schedule 6 - Nature of Norfolk Island Regional Council

Schedule 6 amends the definition of 'Norfolk Island Regional Council' in item 17 of Part 2 in Schedule 2 of the Norfolk Island Legislation Amendment Act 2015 to provide flexibility in the application of local government law to Norfolk Island.

Financial impact statement

The 2015-16 Budget committed $136.2 million over the forward estimates for the Norfolk Island reforms. This package of Bills does not have any additional impact on the budget.

The costs associated with implementation of the measures contained in Schedule 4 are minor and will be absorbed by the Australian Electoral Commission within existing resourcing.