EXPLANATORY STATEMENT
Issued by the authority of the Assistant Minister for Infrastructure and Regional Development
Norfolk Island Legislation Amendment Act 2015
Norfolk Island Legislation Amendment Act Transitional Rule 2015 (No 1)
Authority
The Assistant Minister for Infrastructure and Regional Development has made this Transitional Rule in accordance with the power granted to him under item 185 of Schedule 1 to the Norfolk Island Legislation Amendment Act 2015.
Purpose and operation
The Norfolk Island Legislation Amendment Act Transitional Rule 2015 (No 1) prescribes matters in relation to staff who immediately before the interim transition time were performing duties for the Norfolk Island Legislative Assembly (Legislative Assembly) and who are no longer required to perform those duties. The Transitional Rule is necessary to ensure that the employment contracts of the former staff of the Legislative Assembly do not end on the commencement of the interim transition time.
The Transitional Rule will confirm that the relevant staff of the Legislative Assembly transition to the Norfolk Island Administration. This engagement will be on the same terms and conditions that applied immediately before the commencement of the interim transition time.
Consultation
As the outcomes of the Transitional Rules are largely machinery in nature and are the result of the arrangements introduced by the Norfolk Island Legislation Amendment Act 2015, public consultation was not undertaken.
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.
Detailed description of the Transitional Rule
Section 1 – Name of rule
This section provides that the title of this Rule is to be ‘Norfolk Island Legislation Amendment Act Transitional Rule 2015 (No 1)’ (the Rule).
Section 2 – Commencement
This section ensures that the Rule takes effect at the time of commencement of the Part 1 of Schedule 1 to the Norfolk Island Legislation Amendment Act 2015 (the NILA Act).
Section 3 – Authority
This section makes clear that the Rule is made under item 185 of Schedule 1 to the NILA Act.
Section 4 – Definitions
Sub-section 4(1) defines certain terms that are used in this Rule. Sub-section 4(2) also makes clear that, where a term that is used in this Rule has a specific meaning in the NILA Act, the term has the same meaning in this Rule as it does in the NILA Act.
Section 5 – Purpose of this Part
This section sets out the purpose of this Rule. This Rule is a transitional rule made for item 185 of Schedule 1 to the NILA Act. Item 185 provides for the Minister to create rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by Part 1 of Schedule 1 to the NILA Act.
Amongst other things, Part 1 of Schedule 1 to the NILA Act abolishes the Legislative Assembly. This Rule prescribes transitional matters in relation to staff who immediately before the interim transition time were performing duties for the Legislative Assembly and who are no longer required to perform those duties following the abolition of the Legislative Assembly.
Section 6 – Eligible employee
This section ensures that the person engaged as the Clerk to the Legislative Assembly (the Clerk) immediately before the interim transition time is taken to be an eligible employee for the purposes of item 193 of Schedule 1 to the NILA Act. Item 193 of Schedule 1 to the NILA Act sets out transitional arrangements in relation to certain persons who were not employees of the Administration prior to the interim transition time, but were employed to perform duties relating to the government of the Territory.
Section 7 – Application of NILA Act to the Clerk
This section ensures that item 193 of the Schedule 1 to the NILA Act is able to be applied in full to the Clerk. The section is necessary because item 193 is drafted to apply to persons who were ‘employed’ before the interim transition time, but the Clerk was not employed before the interim transition time. Rather, the Clerk was ‘appointed’ to a statutory office. Section 7 makes clear that any reference in item 193 to ‘employment’ is taken to be a reference to an ‘appointment’. And, any reference in sub-items 193(5)-(7) to an ‘employee’ is taken to be a reference to an ‘appointee’
Section 8 – Staff of the former Legislative Assembly
This section provides that a person engaged as the Secretary to the former Legislative Assembly, the Chief of Staff, the Senior Policy Advisor or the Clerk immediately before the interim transitional time are known collectively as the ‘Staff of the former Legislative Assembly’ for the purposes of the Rule.
Unlikely sections 6 and 7, the remaining sections of this Rule apply to all ‘Staff of the former Legislative Assembly’. Sections 6 and 7 do not apply to the Secretary to the former Legislative Assembly, the Chief of Staff and the Senior Policy Advisor as, unlike the Clerk, they are already employees of the Administration.
Section 9 – Application of the PS Act
Regulation 7(f) of the Public Service Regulations 2014 (Norfolk Island) dis-applies much of the Public Service Act 2014 (Norfolk Island) (the PS Act) in relation to “Staff of the Legislative Assembly of Norfolk Island (including any Norfolk Island Ministerial / Cabinet policy advisor staff not appointed to the Norfolk Island Public Service)”. This section ensures that, from the interim transition time, after the Legislative Assembly is abolished, the PS Act will apply in full to Staff of the former Legislative Assembly.
This means that, for example, from the interim transition time, after the Legislative Assembly is abolished, the Chief Executive Officer of the Norfolk Island public service may assign the ‘Staff of the former Legislative Assembly’ new duties in the Norfolk Island public service under sub-section 45(1) of the PS Act.
Section 10 – Other terms and conditions applying to Staff of the former Legislative Assembly
This section provides that the employment of the Secretary, the Chief of Staff and the Senior Policy Advisor, does not come to an end because of the commencement of Part 1 of Schedule 1 to the NILA Act. This section is necessary to ensure that the abolition of the Legislative Assembly is not taken to end the contract of employment that those employees have with the Administration.
This section also ensures that, for the avoidance of doubt and subject to section 11, the Secretary, the Chief of Staff and the Senior Policy Advisor continue to be engaged by the Administration on the same terms and conditions that applied to him or her immediately before the transition time.
This section also ensures that Staff of the former Legislative Assembly are not entitled to receive any payment or benefit, such as redundancy payments, on or after the interim transition time merely because:
(a) he or she is no longer engaged to perform duties for the Legislative Assembly because of the commencement of Part 1 of Schedule 1 to the NILA Act,
(b) he or she is directed to perform duties (however described) other than those that he or she was directed to perform immediately before the transition time, or
(c) he or she is required to occupy a new position (however described) other than the position that he or she occupied immediately before the interim transition time.
The note to this section draws the reader’s attention to sub-item 193(5) of Schedule 1 to the NILA Act which states that an eligible employee is not entitled to receive any payment or benefit on or after the interim transition time merely because he or she stopped being an employee of a person, and became an employee of the Administration, as a result of that item 193. This will be relevant to the Clerk.
Section 11 – References in instruments setting terms and conditions
Sub-item 193(3) and sub-section 10(b) will apply to Staff of the former Legislative Assembly, to ensure that each employee is taken to have been engaged by the Administration on the same terms and conditions as those that applied to them immediately before the interim transition time. However, as the Staff of the former Legislative Assembly were engaged to perform duties for the Legislative Assembly, their contracts of employment or instruments setting terms and conditions of appointment (however described) contain a number of references to the Legislative Assembly, and to various offices of the Legislative Assembly, that will not exist after the interim transition time (once the Legislative Assembly is abolished).
The effect of section 11 is to replace outdated references in the employees’ terms and conditions as preserved by sub-item 193(3) and sub-section 10(b), to avoid confusion and to ensure that the preserved terms and conditions can meaningfully apply to the employees’ employment and duties after the interim transition time.