Norfolk Island Land Transfer Ordinance 2016

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2016L00762 In force Legislative Instrument

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EXPLANATORY STATEMENT

Ordinance No. 7, 2016

Issued by the authority of the Minister for Territories, Local Government and Major Projects

Norfolk Island Act 1979

Norfolk Island Land Transfer Ordinance 2016

Authority

The Norfolk Island Act 1979 (the Norfolk Island Act) provides for the Government of the Territory of Norfolk Island.  It defines the roles, responsibilities and powers of the GovernorGeneral, the responsible Commonwealth Minister, the Administrator of Norfolk Island, and the Executive Director of Norfolk Island. 

Section 19A of the Norfolk Island Act provides that the Governor-General may make Ordinances for the peace, order and good government of the Territory of Norfolk Island.

The Norfolk Island Land Transfer Ordinance 2016 is made under section 19A of the Norfolk Island Act.

Purpose and operation

From 1 July 2016, the Commonwealth will assume responsibility for the delivery of Commonwealth and state-level services on Norfolk Island.  On 1 July 2016, the Administration of Norfolk Island (the Administration) will transition to a Regional Council under the framework established by the Norfolk Island Legislation Amendment Act 2015 (the NILA Act).  Division 3, Part 2 of Schedule 2 to the NILA Act provides for the transfer of assets and liabilities of the Administration to the Norfolk Island Regional Council (the Regional Council) at the final transition time established by the NILA Act (1 July 2016).

To support the new governance arrangements for Norfolk Island, prior to 1 July 2016, the Department of Infrastructure and Regional Development (the Department) intends to commence the process of transferring ownership of certain Commonwealth assets related to local government functions (eg. roads, parks and reserves) to the Administration, and acquiring other assets related to state-type services (eg. the school, hospital, police station) from the Administration.

The purpose of this Ordinance is to effect transfers of interests in land between the Administration of Norfolk Island (or the Regional Council after 1 July 2016) and the Commonwealth.  The Ordinance sets out a process which enables the Minister with responsibility for Territories to transfer an interest in land.  The transfer may be effected by writing signed by the Minister, which has effect without any other act, requirement or condition, and may be made subject to conditions specified by the Minister in the instrument which effects the transfer.

Transfers of interest in land are also subject to certain terms established by the Ordinance.  These terms include that the transfer may be compulsory or may give effect to an agreement between the parties; that any acquisition under this Ordinance must be on just terms as defined by section 51(xxxi) of the Constitution; and that liabilities arising from previous ownership of the interest are transferred with the interest.

Consultation

The Administration has been consulted on a proposed schedule of assets to be transferred. The Norfolk Island Administrator and the Norfolk Island Advisory Council have also been advised of the proposed transfer of assets.

Details of the Ordinance are set out in the Attachment.

The Ordinance is a legislative instrument for the purpose of the Legislation Act 2003.

The whole of the proposed Ordinance commences the day after the Ordinance is registered.

 

 

Authority: Section 19A of the Norfolk Island Act 1979

 

Statement of compatibility with human rights

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

The instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The instrument does not engage any of the applicable rights or freedoms. It is compatible with human rights as it does not raise any human rights issues.


ATTACHMENT

Norfolk Island Land Transfer Ordinance 2016

 

Section 1 – Name

This section provides that the title of the Ordinance is the Norfolk Island Land Transfer Ordinance 2016.

Section 2 – Commencement

This section provides that the whole of the Ordinance commences the day after it is registered.

Section 3 – Authority

This section provides that the Ordinance is made under section 19A of the Norfolk Island Act.

Section 4 – Minister may transfer certain Norfolk Island land

Subsection 1 empowers the Minister administering the Norfolk Island Act (the Minister) to transfer interests in land held by the Commonwealth to the Administration of Norfolk Island (or the Regional Council after it is established on 1 July 2016), and interests in land held by the Administration or the Regional Council to the Commonwealth. 

Such transfers are not intended to be subject to the requirements for disposal of land under the Lands Acquisition Act 1989 (Lands Acquisition Act) because this Ordinance constitutes an enactment under section 62 of the Norfolk Island Act.  The intention is to engage section 5 of the Lands Acquisition Act, which provides that if a provision referred to in section 62 of the Norfolk Island Act is in operation, the Lands Acquisition Act does not apply to anything dealt with by the provision.

Subsection 2 provides that the transfer may be compulsory (in a case where the Commonwealth acquires an interest in land from the Administration or Regional Council) or it may give effect to an agreement between the Commonwealth and the Administration or the Regional Council. 

Subsection 3 provides that transfers normally have effect without any other act, requirement or condition. However, this provision also gives the Minister discretion to impose specific conditions on the transfer in the instrument which effects the transfer.  This discretion is subject to the requirement in section 62(2) of the Norfolk Island Act that enactments which provide for the acquisition of land must provide that such land must not be acquired otherwise than on just terms.

Section 5 – Registering transfers

Notwithstanding subsection 4(3), this subsection provides that if an interest is transferred under this Ordinance, the Minister may sign a certificate confirming the transfer.  The certificate should identify the interest in some way and state that the relevant interest has been transferred under the Ordinance to the Commonwealth, the Administration or the Regional Council, as applicable. The certificate may be lodged with a land registration official who may register the transfer and ownership of the interest according to the established procedures on Norfolk Island.

 

The certificates established under this Section do not effect the transfer, which is effected under section 4.  A certificate will, however, be placed on the public register and will provide confirmation that the transfer of interest in land was made subject to the terms of this Ordinance.

Section 6 – Exemption for transfers

Section 6 provides that no taxes or fees applicable to transfers of land on Norfolk Island will be payable in relation to interests in land transferred under this Ordinance.  This means, for example, that no levy under the Business Transactions (Levy Imposition) Act 2006 will be payable in respect of a transfer under subsection 4(1).  This section reflects the nature of the exchange of interests in land between two government entities supported by an Act of Parliament, where payment of applicable levies diverges from agreed funding arrangements and may result in administrative inefficiency.

Section 7 – Liabilities also transfer

Section 7 provides that any liability arising from previous ownership of an interest in land by the Commonwealth or the Administration is transferred with the interest in land, whether or not the liability has arisen at the time the interest is transferred.  Liabilities which arise under this section are to be distinguished from liabilities arising from operational activities conducted on the property, for which liability will remain with the previous owner of the property (for example, any liability relating to medical care provided within the Norfolk Island hospital premises prior to 1 July 2016 will remain with the Administration).

Section 8 – Acquisitions must be on just terms

Section 8 provides that if land is acquired under this Ordinance, it shall not be otherwise than on just terms.  This section is intended to comply with the requirements of section 62(2) of the Norfolk Island Act.

 

Overview

The Norfolk Island Land Transfer Ordinance 2016, made under section 19A of the Norfolk Island Act 1979, was introduced to facilitate the transfer of land interests between the Commonwealth and the Norfolk Island Administration, and later the Norfolk Island Regional Council, as part of the broader transition of governance on Norfolk Island. This transition saw the Commonwealth taking over the delivery of services on the island, necessitating the reconfiguration of land ownership to align with the new governance structure. Enacted by the Minister for Territories, Local Government and Major Projects, the primary objective of the Ordinance is to establish a streamlined process for the transfer of land interests, ensuring it occurs without unnecessary procedural hurdles and is conducted on just terms as required by the Constitution. The Ordinance allows the Minister to transfer land interests by written instrument, exempting such transfers from the usual requirements of the Lands Acquisition Act 1989, while ensuring that acquisitions are made on just terms. It also provides for the transfer of any liabilities associated with the land, streamlines the registration process by allowing the Minister to issue a certificate of transfer, and exempts the transfers from certain taxes and fees to prevent administrative inefficiencies. This legislative instrument aims to support the seamless transition of governance and service delivery on Norfolk Island.

Scope and Application

The Norfolk Island Land Transfer Ordinance 2016, made under the authority of the Norfolk Island Act 1979, is designed to facilitate the transfer of land interests between the Commonwealth and the Administration of Norfolk Island or the Regional Council as part of the governance transition on Norfolk Island. This Ordinance applies to interests in land held by either the Commonwealth or the Administration, and it comes into effect on the day following its registration. The transfers can either be compulsory or based on an agreement between the parties, and they are executed through a written instrument signed by the Minister, which becomes effective without any additional requirements or conditions. The transfers are subject to terms such as just terms for acquisitions as mandated by the Constitution and the transfer of any existing liabilities from previous ownership. The Ordinance also exempts the transfers from any applicable taxes or fees, and it ensures that any liabilities arising from the previous ownership of the land interest are transferred with the land interest. Importantly, the Ordinance does not engage any of the human rights and freedoms recognised in the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011, thereby ensuring its compatibility with human rights.

Key Provisions

The Norfolk Island Land Transfer Ordinance 2016 (the Ordinance) is made under section 19A of the Norfolk Island Act 1979. The primary purpose of the Ordinance is to facilitate the transfer of land interests between the Administration of Norfolk Island (the Administration) or the Norfolk Island Regional Council (the Regional Council) and the Commonwealth. The Ordinance allows the Minister responsible for the Norfolk Island Act to transfer land interests held by the Commonwealth to the Administration (or the Regional Council after its establishment on 1 July 2016) and vice versa. This transfer mechanism is distinct from the provisions under the Lands Acquisition Act 1989, as the Ordinance operates under the specific enactment outlined in section 62 of the Norfolk Island Act. Under section 4 of the Ordinance, the Minister has the authority to transfer land interests, which may be compulsory or based on an agreement between the parties. Transfers can be made subject to specific conditions stipulated by the Minister in the instrument that effects the transfer. This discretion is subject to the requirement that land must be acquired on just terms as per section 62(2) of the Norfolk Island Act. Section 5 allows the Minister to sign a certificate confirming the transfer, which can be registered with a land registration official to confirm the transfer on the public register. Importantly, section 6 exempts transfers under this Ordinance from applicable taxes and fees, ensuring the process aligns with agreed funding arrangements. Section 7 mandates that any liabilities arising from previous ownership of the land interest are transferred with the interest, though operational liabilities remain with the previous owner. The Ordinance imposes several obligations on the parties involved. The Minister must ensure that any compulsory acquisition of land is conducted on just terms, as mandated by section 8. Additionally, any transfer of land interests must be documented in a certificate signed by the Minister, which is then registered with the relevant authority, as per section 5. The Regional Council and the Commonwealth must adhere to the terms and conditions set out in the Ordinance when engaging in land transfers. Any exemptions from taxes and fees must be respected as per section 6, and the transfer of liabilities is automatic as outlined in section 7. Breaches of the provisions in the Ordinance can result in various consequences. Section 8 explicitly states that any acquisition of land must be on just terms, and failure to comply with this requirement could render the acquisition invalid. While specific penalties for non-compliance are not detailed in the Ordinance, breaches of land acquisition laws generally can lead to legal challenges, financial penalties, or the requirement to compensate the affected parties. The implications of failing to adhere to the conditions and terms specified in the Ordinance could involve disputes over the validity of the land transfer or liabilities associated with the land.

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Area of Law
Administrative Law
Property Law
Instrument
Ordinance
Concepts
Definitions & Interpretation
Offence Provisions
Compliance Obligations
Liabilities also transfer
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