Norfolk Island Legislation Amendment (Public Sector Employment and Education) Ordinance 2018

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Regional Development, Territories and Local Government

Norfolk Island Act 1979

Norfolk Island Legislation Amendment (Public Sector Employment and Education) Ordinance 2018

Authority

The Norfolk Island Legislation Amendment (Public Sector Employment and Education) Ordinance 2018 (this Ordinance) is made under section 19A of the Norfolk Island Act 1979 (Cth) (the NI Act). The NI Act provides for the government of Norfolk Island.

Purpose and operation

The intention of this Ordinance is to provide a modern legal framework for the provision of government school education services at the Norfolk Island Central School (the school) by the New South Wales (NSW) Department of Education on behalf of the Commonwealth. The NSW Department of Education has provided education services at the school for many years and this Ordinance will provide legal certainty for the school’s operations.

This Ordinance is also intended to ensure NSW employees working on Norfolk Island are subject to the same employment arrangements as they would be if they were working in NSW, subject to minor differences relevant to Norfolk Island. As a result, employment arrangements for NSW employees working on Norfolk Island will be clearer.

Under section 18A of the NI Act, laws in force in New South Wales (NSW) from time to time are also in force in Norfolk Island (applied laws), and may be incorporated, amended or repealed by an Ordinance made under section 19A of the NI Act (a section 19A Ordinance). A section 19A Ordinance can also suspend the operation of an applied law for a specified period.

The Norfolk Island Applied Laws Ordinance 2016 (the Applied Laws Ordinance) has suspended the operation in Norfolk Island of most applied laws until 1 July 2018. It also contains amendments of applied laws that currently operate in Norfolk Island.

This Ordinance amends the Applied Laws Ordinance to remove the suspension of a number of applied laws relating to education. It also removes the suspension of several NSW public sector employment laws in so far as they relate to NSW employees working on Norfolk Island. It amends these unsuspended laws as appropriate for their application in Norfolk Island.

In addition, this Ordinance amends the Norfolk Island Continued Laws Ordinance 2015 (the Continued Laws Ordinance) to amend or repeal certain laws made by the former
Norfolk Island Legislative Assembly (continued laws), including repealing the Education Act 1931 (NI) and the Education Regulations (NI). Continued laws are continued in force by sections 16 and 16A of the NI Act, and may be amended or repealed by a section 19A Ordinance in accordance with subsection 17(3) of the NI Act.

The changes to the Continued Laws Ordinance are consequential to the removal of the suspension of the applied laws mentioned above.

Schedule 1—Public sector employment legislation

Schedule 1 unsuspends and amends some applied laws relating to public sector employment, and makes a consequential amendment to the Continued Laws Ordinance.

Section 18C of the NI Act provides for arrangements between the Commonwealth and NSW for the administration of laws in force in Norfolk Island (section 18C arrangements). Under section 18C arrangements, some NSW employees may work in Norfolk Island from time to time.

The amendments in Schedule 1 are intended to ensure NSW employees working in
Norfolk Island are subject to the same employment arrangements as they would be if they were working in NSW, subject to minor differences, for example, observing public holidays.

To achieve this outcome, Schedule 1 unsuspends certain applied laws relating to public sector employment, amends those laws in their application in Norfolk Island and provides that they only apply in relation to NSW officers, employees, and authorities who are performing functions under a section 18C arrangement. There is no intention to affect the employment terms of non‑NSW employees working in Norfolk Island.

By amending the Continued Laws Ordinance, Schedule 1 also provides that continued laws dealing with similar subject matter do not apply to NSW officers, employees, and authorities performing functions under a section 18C arrangement.

Schedule 2—Education legislation

Schedule 2 has the effect of applying the Education Act 1990 (NSW) (the NSW Education Act), the Education Standards Authority Act 2013 (NSW) (the NSW ESA Act),
the Education Regulation 2017 (NSW) and the Education Standards Authority Regulation 2013 (NSW) in Norfolk Island. It does so by removing the suspension of these laws under the Applied Laws Ordinance.

Schedule 2 amends the NSW Education Act and the NSW ESA Act to ensure they operate effectively in their application in Norfolk Island. For example, several geographical references are amended to refer to Norfolk Island rather than NSW, Norfolk Island courts and tribunals are given jurisdiction to determine matters, and amendments are made to ensure the legislation applies to the Norfolk Island Central School.

The NSW Education Act as it applies in Norfolk Island (the Applied Education Act) is also amended to facilitate information‑sharing between relevant agencies in Norfolk Island and NSW to enable the school to manage unsatisfactory school attendance and health and safety risks at the school arising from student behaviour.

As a consequence of the application of the NSW education legislation, the
Education Act 1931 (NI) and the Education Regulations (NI) are repealed. Schedule 2 also makes a number of other consequential amendments to both applied laws and continued laws.

Consultation

The Department of Infrastructure, Regional Development and Cities (the Department) worked closely with the NSW Department of Premier and Cabinet on the Schedule 1 changes. The Department did not consult the broader Norfolk Island community on the Schedule 1 changes because they will not affect employment conditions for non-NSW staff on Norfolk Island.

The Department consulted extensively on Schedule 2 with the NSW Departments of Premier and Cabinet and Education. The Department sought feedback from the Norfolk Island community on the Schedule 2 changes. A media release and summary of the main changes were printed in the Norfolk Islander newspaper on 11 November 2017. The Administrator of Norfolk Island also contacted the Mayor of the Norfolk Island Regional Council and the President of the Norfolk Island Parents and Citizens Association.

Other matters

This Ordinance is a legislative instrument for the purposes of the Legislation Act 2003 (Cth).

This Ordinance is able to amend the Applied Laws Ordinance and the Continued Laws Ordinance because of subsection 33(3) of the Acts Interpretation Act 1901 (Cth). Under that subsection, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

A detailed explanation of the provisions of this Ordinance is set out in the Attachment.

Statement of Compatibility with Human Rights

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

Norfolk Island Legislation Amendment (Public Sector Employment and Education) Ordinance 2018

This Ordinance 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.

Overview of this Ordinance

This Ordinance is made under section 19A of the Norfolk Island Act 1979 (Cth) (the NI Act). The NI Act provides for the Government of Norfolk Island.

Under section 18A of the NI Act, laws in force in New South Wales (NSW) from time to time are also in force on Norfolk Island (applied laws), and may be incorporated, amended or repealed by an Ordinance made under section 19A of the NI Act (a section 19A Ordinance). A section 19A Ordinance can also suspend the operation of an applied law for a specified period.

The Norfolk Island Applied Laws Ordinance 2016 (the Applied Laws Ordinance) has suspended the operation in Norfolk Island of most applied laws until 1 July 2018. It also amends some of the applied laws that currently operate in Norfolk Island.

This Ordinance amends the Applied Laws Ordinance to remove the suspension of a number of applied laws relating to education. It also removes the suspension of several NSW public sector employment laws in so far as they relate to NSW employees who may work in Norfolk Island from time to time. It amends these unsuspended laws as appropriate for their application to Norfolk Island.

These applied laws are in force in Norfolk Island under section 18A of the NI Act, not under this instrument. This Statement of Compatibility with Human Rights is therefore limited to considering the human rights implications of the specific modifications to NSW laws made by this Ordinance, rather than of the NSW laws themselves.

Subsection 17(3) of the NI Act provides that a section 19A Ordinance may amend laws made by the former Norfolk Island Legislative Assembly, which are continued in force by section 16A of the NI Act (continued laws).

This Ordinance amends the Norfolk Island Continued Laws Ordinance 2015 (the Continued Laws Ordinance) to amend and repeal a number of laws made by the former Norfolk Island Legislative Assembly, including repealing the Education Act 1931 (NI) and the Education Regulations (NI). These changes are consequential to the removal of the suspension of the applied laws mentioned above and do not engage any of the applicable rights or freedoms.

Human rights implications

This Ordinance engages the following rights:

• Fair trial and fair hearing rights
• Privacy and reputation

Fair trial and fair hearing rights

Under Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), a person is ‘entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’.

Norfolk Island has its own system of courts and tribunals. The Supreme Court of Norfolk Island continues in existence by virtue of subsection 52(1) of the NI Act. In addition, Norfolk Island continued laws have established both the Court of Petty Sessions of Norfolk Island and the Administrative Review Tribunal of Norfolk Island.

Provisions of the Education Act 1990 (NSW) and the Education Standards Authority Act 2013 (NSW) confer jurisdiction on a number of NSW courts and the NSW Civil and Administrative Tribunal with respect to certain matters.

The Ordinance inserts provisions into the Applied Laws Ordinance that will operate to clarify that, in matters that arise under the Education Act 1990 (NSW) as in force in Norfolk Island (the Applied Education Act) and under the Education Standards Authority Act 2013 (NSW) as in force in Norfolk Island (the Applied ESA Act), jurisdiction is vested in the relevant Norfolk Island court or tribunal, to the extent permitted by the Commonwealth Constitution.

Whilst this instrument changes the bodies in which jurisdiction is vested under the Applied Education Act and the Applied ESA Act, it does not reduce or limit the rights of Norfolk Island residents before those bodies. Accordingly, the instrument may be considered to promote human rights by ensuring that fair trial and fair hearing rights for Norfolk Island residents are protected under applied laws.

Privacy and reputation

Article 17 of the ICCPR provides that no one should be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on their honour and reputation.

The Applied Education Act, as amended by Schedule 2 to this Ordinance, will allow for information to be shared between relevant institutions on Norfolk Island and between relevant agencies in NSW and Norfolk Island. This limitation on the right to privacy and reputation is for legitimate purposes. For example, the information will facilitate the management of school attendance by students of compulsory school‑age, and allow schools on Norfolk Island and in NSW to maintain a safe school environment.

All institutions and agencies dealing with information under the Applied Education Act will be subject to relevant safeguards.

For example, section 22A of the Applied Education Act provides that information is to be provided solely for the purpose of ascertaining the age, identity or whereabouts of a child who is not receiving compulsory schooling, or participating in education, training, or paid work, and the reasons why the child is not receiving that schooling or not so participating.

Section 26B of the Applied Education Act provides that information under Division 2 of Part 5A may only be obtained for the purposes of assessing whether the enrolment of a particular student at a school in Norfolk Island or in NSW if the student has previously been enrolled at a school in Norfolk Island is likely to constitute a risk to the health or safety of any person, and developing and maintaining strategies to eliminate or minimise any such risk. Furthermore, information may not be disclosed under that Division if its disclosure is prohibited by section 20G, 20P or 23 of the Health Administration Act 1982 (NSW), section 29(1)(f) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) or section 187 of the Child Welfare Act 2009 (NI). Information about a student obtained under Division 2 of Part 5A is also prohibited from being disclosed under the Government Information (Public Access) Act 2009 (as in force in NSW and Norfolk Island) except in response to an access application that is made by the student the subject of the information, a parent of the student, or any person nominated in writing by the student or a parent. In addition, unless guidelines made under Division 4 of Part 5A of the Applied Education Act otherwise provide, any relevant information obtained under Division 2 of Part 5A must be disclosed to the student concerned and their parents.

Consequently, the limitation on the right to privacy and reputation in the Applied Education Act is reasonable, necessary and proportionate.

Conclusion

This Ordinance is compatible with human rights because it promotes the protection of human rights, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Minister for Regional Development, Territories and Local Government,
The Hon Dr John McVeigh MP

ATTACHMENT

Norfolk Island Legislation Amendment (Public Sector Employment and Education) Ordinance 2018

Section 1—Name

Section 1 of this Ordinance provides that the title of this Ordinance is the Norfolk Island Legislation Amendment (Public Sector Employment and Education) Ordinance 2018.

Section 2—Commencement

Section 2 of this Ordinance provides that sections 1 to 4 of this Ordinance, and Schedule 1 to this Ordinance (about public sector employment legislation), commence the day after this Ordinance is registered on the Federal Register of Legislation. Section 2 provides that Schedule 2 to this Ordinance (about education legislation) commences immediately after Schedule 1 commences.

Section 3—Authority

Section 3 of this Ordinance states the source of the Governor‑General’s power to make this Ordinance: it is made under section 19A of the Norfolk Island Act 1979 (Cth) (the NI Act).

Section 4—Schedules

Section 4 of this Ordinance gives effect to the items contained in the Schedules to this Ordinance.

Schedule 1—Public sector employment legislation

Part 1—Application and amendment of certain public sector employment legislation

Part 1 of Schedule 1 to this Ordinance amends the Norfolk Island Applied Laws Ordinance 2016 (the Applied Laws Ordinance).

Item 1

Item 1 inserts a new definition of ‘applied industrial relations law’. The definition provides that the term ‘applied industrial relations law’, when used in the Applied Laws Ordinance, refers to the NSW Acts that are specified in paragraphs (a) to (k) of the definition, as those Acts are in force in Norfolk Island under section 18A of the NI Act.

Note: There may be differences between the version of a NSW Act that is in force in NSW and the corresponding Act that is in force in Norfolk Island. This is because a NSW Act that is in force in Norfolk Island under section 18A of the NI Act may be amended for Norfolk Island. (Such amendments are contained in the Schedules to the Applied Laws Ordinance.) For the purposes of this Explanatory Statement, a reference to a NSW law as in force in NSW is identified by ‘(NSW)’, whereas a reference to a NSW law as in force in Norfolk Island is identified by ‘(NSW) (NI)’.

Paragraph (l) of the new definition provides that the phrase ‘applied industrial relations law’ also includes a law made under any of the specified NSW Acts as in force in Norfolk Island.

Item 2

Subsection 6(2) of the Applied Laws Ordinance provides a general rule of interpretation to be applied when interpreting NSW Acts as in force in Norfolk Island. It provides that the Interpretation Act 1987 (NSW) (NI) applies to the interpretation of any law of NSW as in force in Norfolk Island. Item 2 amends subsection 6(2) to provide that new section 6A of the Applied Laws Ordinance, inserted by item 3, is an exception to this general rule of interpretation. See ‘Item 3’ below for an overview of this exception.

Item 3

Item 3 inserts new section 6A, which deals with the interpretation and application of applied industrial relations laws.

New subsection 6A(1) provides that the Interpretation Act 1987 (NSW) applies to the interpretation of applied industrial relations laws, rather than the Interpretation Act 1987 (NSW) (NI), subject to the exceptions outlined in subsections 6A(2) to (5). Subsection 6A(1) is intended to ensure that applied industrial relations laws are, on the whole, interpreted consistently with the corresponding NSW laws in force in NSW.

New subsection 6A(2) provides that a reference in an applied industrial relations law to the geographical area of NSW is taken to include Norfolk Island. This includes all references to this geographical area, whether expressed as references to ‘New South Wales’ or to ‘this State’.

For example, the reference to ‘New South Wales’ in subsection 93K(1) of the Teaching Service Act 1980 (NSW) (in the context of an officer being ‘convicted in New South Wales of an offence’) is a geographical reference. Thus, in its application in Norfolk Island, the reference would include Norfolk Island (and thus a conviction in Norfolk Island of an offence).

New subsection 6A(3) provides that, despite the fact that the Interpretation Act 1987 (NSW) applies to the interpretation of applied industrial relations laws, three particular provisions of the Interpretation Act 1987 (NSW) (NI) also apply to the interpretation of applied industrial relations laws. These are sections 38D, 53B and 75A, as inserted by Schedule 3 to the Applied Laws Ordinance.

Section 38D provides that requirements in applied laws relating to the Parliament of NSW need not be complied with, and acts under applied laws are valid despite the absence of action relating to the Parliament. Section 53B provides that if an applied law establishes or requires the establishment or appointment of a statutory body, it is not taken to establish, or require the establishment or appointment of, the same kind of body in Norfolk Island. It is intended that, where an applied industrial relations law refers to such a body, the reference is taken to refer to the body as established under NSW law. Section 75A provides that notices under applied laws may be published in the Commonwealth of Australia Gazette or the Norfolk Island Government Gazette.

New subsection 6A(4) provides that applied industrial relations laws only apply in relation to officers, employees and authorities of NSW, and to officers and employees of authorities of NSW. The laws only apply to the extent that such officers, employees and authorities are exercising powers or performing functions or duties under an arrangement entered into under section 18C of the NI Act (a section 18C agreement). The term ‘authority of New South Wales’ has the same meaning as in section 18B of the NI Act. Section 18B defines ‘authority of New South Wales’ to mean an authority established by or under a NSW law.

New subsection 6A(5) provides a general interpretation rule for applied industrial relations laws that where such a law provides for the appointment, removal or suspension of a person to or from an office or position in NSW, the law is not taken to separately require the appointment, removal or suspension of a person to or from the office or position in respect of Norfolk Island. The effect of this is that appointments, removals and suspensions to and from offices in NSW automatically have effect in relation to Norfolk Island.

Item 4

Item 4 is consequential to item 8. Even though section 18A of the NI Act provides that NSW laws are in force in Norfolk Island, subitem 1(1) of Schedule 1 to the Applied Laws Ordinance provides that the operation in Norfolk Island of most NSW legislation is suspended until 1 July 2018. The NSW legislation that is not suspended is listed in the table in subitem 1(1).

Item 4 amends subitem 1(1) to provide a reference to new subitem 1(3), which is inserted by item 8. New subitem 1(3) provides an additional list of NSW Acts that are not suspended in Norfolk Island.

Item 5

Item 5 is consequential to item 8. It amends the heading to the table in subitem 1(1) of Schedule 1 to clarify that the legislation in that table has never been suspended in relation to Norfolk Island since the time it was applied to Norfolk Island by section 18A of the NI Act. The purpose of this amendment is to distinguish the legislation in the table in subitem 1(1) from the legislation in the table in new subitem 1(3), which was initially suspended in Norfolk Island but which has since been un‑suspended.

Item 6

Item 6 is consequential to item 8. It omits the reference to the Public Health Act 2010 (NSW) from the table in subitem 1(1) of Schedule 1. The Public Health Act 2010 (NSW) was un‑suspended in Norfolk Island from 20 January 2017. The reference to that Act is moved to the table in new subitem 1(3) of Schedule 1 so that the table in subitem 1(3) is a comprehensive list of legislation that was at one time suspended in respect of Norfolk Island, but was subsequently un‑suspended. As mentioned above, the NSW Acts in the table in subitem 1(1) are those Acts that were never suspended in relation to Norfolk Island since the time they were applied to Norfolk Island by section 18A of the NI Act.

Item 7

Item 7 is consequential on item 8. It adds a note at the end of subitem 1(1) of Schedule 1 to explain that the legislation specified in the table in subitem 1(1) applied in Norfolk Island from 1 July 2016, which is the day section 18A of the NI Act commenced to apply NSW law to Norfolk Island.

Item 8

Item 8 inserts new subitems 1(3) to (5) into Schedule 1. Subitem 1(3) includes a table that is intended to contain a comprehensive list of Acts that were suspended in Norfolk Island from 1 July 2016 but have since been un‑suspended. Most of the Acts listed in the table are applied industrial relations laws, which are un‑suspended by this Ordinance. The only other Act listed in the table at this stage is the Public Health Act 2010 (NSW) which was un‑suspended in Norfolk Island by the Norfolk Island Applied Laws Amendment (Public Health) Ordinance 2016.

The table includes information about when the un‑suspension of each Act, and any legislation made under it, occurred. The un‑suspension of the Public Health Act 2010 (NSW) occurred on 20 January 2017. The remainder of the Acts listed in the table are unsuspended at the start of the industrial relations laws application day. New subitem 1(5) provides that the industrial relations laws application day is the day Schedule 1 to this Ordinance commences, which is the day after this Ordinance is registered on the Federal Register of Legislation (per section 2 of this Ordinance).

New subitem 1(4) provides that any information in column 3 of the table in subitem 1(3) is not part of the Applied Laws Ordinance. The column is included purely for the convenience of users of the legislation and may be edited in any published version of the Applied Laws Ordinance.

Item 9

Item 9 inserts new subitem 2(3) into Schedule 1.

New subitem 2(3) provides that subsection 21D(3) of the Interpretation Act 1987 (NSW) (NI), which is inserted by item 11 of Schedule 3 to the Applied Laws Ordinance, does not apply to a reference to the short title of an applied industrial relations law.

Subsection 21D(3) of the Interpretation Act 1987 (NSW) (NI) provides that ‘[a] reference in an applied law to the short title of a New South Wales Act is taken to be a reference to the corresponding applied law’, and ‘applied law’ is defined in subsection 21(1) to mean a law of NSW as in force in Norfolk Island under section 18A of the NI Act.

Subsection 21D(3) of the Interpretation Act 1987 (NSW) (NI) has the effect that a reference in a NSW law as in force in Norfolk Island to another NSW law that has been applied in Norfolk Island is a reference to that law as applying in Norfolk Island rather than in NSW. This provision generally applies where there is no indication at the end of the reference to the law as to whether the reference is to the law as in force in NSW or is to the law as in force in Norfolk Island (e.g. ‘(NSW)’ or ‘(NSW) (NI)’).

New subitem 2(3) provides that the rule in subsection 21D(3) does not apply where the reference is to an applied industrial relations law. Rather, where the reference is to an applied industrial relations law, the question of whether the reference is to the law as in force in NSW or to the law as in force in Norfolk Island is not specified. This is intended to leave room for the appropriate reference to be determined based on the context.

For example, paragraph (a) of the definition of ‘Agreement’ in subsection 3(1) of the Long Service Leave Act 1955 (NSW) (NI), which is inserted by item 1 of Schedule 5 to the Applied Laws Ordinance, states that ‘Agreement’ includes ‘an enterprise agreement within the meaning of the Industrial Relations Act 1996’. The Industrial Relations Act 1996 (NSW) (NI) is an applied industrial relations law. If the rule in subsection 21D(3) of the Interpretation Act 1987 (NSW) (NI) applied, the reference in paragraph (a) of the definition of ‘agreement’ in subsection 3(1) of the Long Service Leave Act 1955 (NSW) (NI) would need to be interpreted as a reference to the Act as it applies in Norfolk Island. However, the context indicates that the reference was intended to refer to the Act as it applies in NSW. This is because the Long Service Leave Act 1955 (NSW) (NI) only applies in relation to non‑NSW employees in Norfolk Island (see notes on next item), while the Industrial Relations Act 1996 (NSW) (NI) only applies in relation to NSW employees working in Norfolk Island. The context therefore indicates that the reference should be to the Industrial Relations Act 1996 (NSW) and not to the Industrial Relations Act 1996 (NSW) (NI). The disapplication of the rule in subsection 21D(3) of the Interpretation Act 1987 (NSW) (NI) allows for the appropriate reference to be determined on a case‑by‑case basis, in accordance with the context of the reference.

Item 10

Item 10 inserts three new amending Schedules: Schedules 1A, 1B and 1C.

New Schedule 1A—Amendment of the Anti‑Discrimination Act 1977 (NSW)

New Schedule 1A contains 4 items, which amend the Anti‑Discrimination Act 1977 (NSW) (NI).

Item 1

Item 1 inserts paragraph (ba) into subsection 54(1) of the Anti‑Discrimination Act 1977 (NSW) (NI). The effect of the amendment is that the Anti‑Discrimination Act 1977 (NSW) (NI) does not render something unlawful if it is necessary for a person to do the thing to comply with a requirement of any other law in force in Norfolk Island.

Item 2

Item 2 repeals paragraph 119(1)(d) of the Anti‑Discrimination Act 1977 (NSW) (NI). Paragraph 119(1)(d) provides that the Anti‑Discrimination Board constituted under the Anti‑Discrimination Act 1977 (NSW) may, by resolution, determine to review, from time to time, the laws of the State. That paragraph does not apply in Norfolk Island, because the Anti‑Discrimination Board of NSW is not expected to review the laws of Norfolk Island.

Item 3

Item 3 repeals sections 121, 122, 122U and 122V of the Anti‑Discrimination Act 1977 (NSW) (NI).

Section 121 of the Anti‑Discrimination Act 1977 (NSW) requires the Anti‑Discrimination Board to review the legislation of the State, governmental policies and practices, and the policies and practices of superannuation funds and pension schemes. Section 122 requires the Anti‑Discrimination Board to prepare an annual report. These sections do not apply in relation to Norfolk Island. Therefore, the Anti‑Discrimination Board is not required to review the legislation of Norfolk Island, or governmental policies or practices, or policies and practices of superannuation funds and pension schemes, in Norfolk Island. Nor is the Anti‑Discrimination Board required to prepare a separate annual report for Norfolk Island.

Section 122U of the Anti‑Discrimination Act 1977 (NSW) empowers the NSW Minister to make an arrangement with the Commonwealth Minister in relation to the performance by the State of human rights functions on behalf of the Commonwealth. Section 122V also makes provision in relation to such arrangements. These sections do not have application in the context of Norfolk Island, and are thus repealed by this item.

Item 4

Item 4 amends subsection 122X(1) of the Anti‑Discrimination Act 1977 (NSW) (NI) to remove the reference to section 122V. Item 4 is consequential to the repeal of section 122V by item 3.

New Schedule 1B—Amendment of the Government Information (Public Access) Act 2009 (NSW)

New Schedule 1B contains one item, which amends the Government Information (Public Access) Act 2009 (NSW) (NI). The item amends the definition of ‘agency’ in subsection 4(1) of the Government Information (Public Access) Act 2009 (NSW) (NI) to exclude the Norfolk Island Regional Council. This is intended to ensure that the Government Information (Public Access) Act 2009 (NSW) (NI) does not apply to the Norfolk Island Regional Council. This is because the changes made by this Ordinance are intended to apply in relation to NSW officials only.

New Schedule 1C—Amendment of the Government Sector Employment Regulation 2014 (NSW)

New Schedule 1C contains one item, which amends the Government Sector Employment Regulation 2014 (NSW) (NI). The item amends clause 12 of the Government Sector Employment Regulation 2014 (NSW) (NI) to provide that a NSW Public Service employee who works in Norfolk Island is entitled to be absent from duty on days that are public holidays in Norfolk Island unless the employee is otherwise required to attend for duty. In addition, a NSW Public Service employee who works in Norfolk Island is entitled to be absent from duty on a day between Boxing Day and New Year’s Day determined by the agency head, unless the employee is otherwise required to attend for duty (per paragraph 12(c)). This is to ensure that NSW Public Service employees working in Norfolk Island may participate in Norfolk Island community celebrations along with the rest of the Norfolk Island community.

Item 11

Item 11 inserts a new amending Schedule.

New Schedule 2A—Amendment of the Industrial Relations Act 1996 (NSW)

New Schedule 2A contains 2 items, which amend the Industrial Relations Act 1996 (NSW) (NI).

Under paragraph 72AE(1)(b) of the Industrial Relations Act 1996 (NSW), where an employee intends to take victims leave, the employer can request the employee to provide to the employer a certificate from a police officer, prosecutor or other relevant official confirming that the employee is a victim of crime and the date or dates on which the court proceedings will be held. Item 1 amends paragraph 72AE(1)(b) for Norfolk Island to provide that the employee can obtain such a certificate from a member or special member of the Australian Federal Police, a member of the Police Force of Norfolk Island, or a member of a State or Territory police force providing police services in relation to Norfolk Island. The purpose of this amendment is to ensure section 72AE is effective regardless of the arrangements that are put in place for the provision of policing services to Norfolk Island.

Subsection 388(2) of the Industrial Relations Act 1996 (NSW) provides for an authorised officer to issue a search warrant authorising an inspector, when accompanied by a police officer, to enter and search premises and seize evidence. Item 2 amends subsection 388(2) for Norfolk Island to provide that the warrant may provide for the inspector to be accompanied by a member or special member of the Australian Federal Police, a member of the Police Force of Norfolk Island or a member of a State or Territory police force providing police services in relation to Norfolk Island. The rationale for item 2 is the same as for item 1: to ensure section 388 is effective in Norfolk Island regardless of the arrangements that are put in place for the provision of policing services to Norfolk Island.

Item 12

Item 12 inserts new subsection 3A(6) into the Long Service Leave Act 1955 (NSW) (NI). New subsection 3A(6) of the Long Service Leave Act 1955 (NSW) (NI) provides that the Act does not apply to officers or employees or authorities of NSW or to officers or employees of authorities of NSW, to the extent that such officers, employees or authorities are exercising powers or performing functions or duties under a section 18C arrangement. The reason for this amendment is that the entitlements of NSW employees exercising powers or functions in Norfolk Island to long service leave are governed by the Long Services Leave Act 1955 (NSW), and not by that law as it is in force in Norfolk Island.

Item 13

Item 13 inserts four new amending Schedules.

New Schedule 7—Amendment of the Teaching Service Act 1980 (NSW)

New Schedule 7 contains 7 items, which amend the Teaching Service Act 1980 (NSW) (NI).

Item 1

Item 1 inserts a new section 5B into the Teaching Service Act 1980 (NSW) (NI). New section 5B provides that a person must not teach in a school in Norfolk Island unless the person is accredited.

New section 5B also provides that words and expressions used in the section have the same meaning as they have in the Teacher Accreditation Act 2004 (NSW). This picks up the definitions of ‘teach’, ‘school’ and ‘accredited’ from the Teacher Accreditation Act 2004 (NSW). The definition of ‘school’ in the Teacher Accreditation Act 2004 (NSW) in turn picks up the definitions of ‘government school’ and ‘non‑government school’ from the Education Act 1990. The definition of ‘government school’ in the Education Act 1990 (NSW) (NI) is amended by item 2 of Schedule 2 to this Ordinance to include the Norfolk Island Central School.

Item 2

Item 2 amends subsection 51(3) of the Teaching Service Act 1980 (NSW) (NI) to provide for a longer period of time for temporary appointments of officers of the Teaching Service. The new subsection 51(3) provides that the Secretary must not make a temporary appointment of an officer of the Teaching Service for a period in excess of 3 years unless satisfied that an appointment in excess of that period should be made having regard to the exigencies of the Teaching Service. This is compared with 6 months in NSW. This is to allow for posting of NSW staff to Norfolk Island for up to 3 years.

Item 3

Item 3 repeals section 92 of the Teaching Service Act 1980 (NSW) (NI). That section is about deductions from the salary or wages of an officer or temporary employee of the Teaching Service where that officer or employee is residing in a residence belonging to the Government of NSW or the Teacher Housing Authority of NSW. Since there are no teachers residences in Norfolk Island belonging to the Government of NSW or the Teacher Housing Authority of NSW, the section is not relevant in Norfolk Island.

Item 4

Item 4 amends section 93B of the Teaching Service Act 1980 (NSW) (NI) to provide that, for the purposes of Part 4A of that Act, which is about management of conduct and performance, a reference to an officer’s performance is a reference to the officer’s performance of duties whether in or outside of NSW. This is to ensure that the performance of officers of the Teaching Service who are working in Norfolk Island may be managed and any misconduct dealt with, wherever that misconduct may have taken place.

Item 5

Item 5 amends section 93C of the Teaching Service Act 1980 (NSW) (NI) to provide that, for the purposes of Part 4A of that Act, the subject‑matter of an allegation of misconduct may relate to an incident or conduct that happened in or outside of NSW. The rationale for this amendment is the same as for item 4.

Item 6

Item 6 amends section 93L of the Teaching Service Act 1980 (NSW) (NI) to add a note explaining that things done for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) are recognised for the purposes of the application of section 93L of the Teaching Service Act 1980 (NSW) (NI), which is about suspension of officers from duty pending certain decisions or on lapsing of their working with children check clearance. For the avoidance of doubt, this note affirms that decisions made under, and relevant triggers arising under, the Child Protection (Working with Children) Act 2012 (NSW) (including those made or arising under the NSW Working With Children check scheme) apply for the purposes of the suspension of officers of the Teaching Service who are working in Norfolk Island.

Item 7

Item 7 amends section 93R of the Teaching Service Act 1980 (NSW) (NI) to add a note explaining that things done for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) are recognised for the purposes of the application to Norfolk Island of Part 4B of the Teaching Service Act 1980 (NSW) (NI), which is about termination of employment of persons barred from working with children. The rationale for this amendment is the same as for item 6.

New Schedule 8—Amendment of the Workers Compensation Act 1987 (NSW)

New Schedule 8 contains 2 items, which amend the Workers Compensation Act 1987 (NSW) (NI).

Item 1

Item 1 amends section 9AA of the Workers Compensation Act 1987 (NSW) (NI) to clarify that employment in Norfolk Island under a section 18C arrangement is taken to be employment connected with ‘this State’ for the purposes of section 9AA of the Workers Compensation Act 1987 (NSW) (NI). The purpose of this amendment is to ensure that the workers compensation provisions of the Act apply to NSW employees performing work in Norfolk Island.

Item 2

Item 2 repeals Part 7 of the Workers Compensation Act 1987 (NSW) (NI). Part 7 relates to compulsory insurance that certain employers are required to take out to cover their liabilities with respect to their workers. It is not necessary for Part 7 to apply in Norfolk Island because the Act only applies to NSW employers, who would already be covered by Part 7 as in force in NSW.

New Schedule 9—Amendment of the Work Health and Safety Act 2011 (NSW)

New Schedule 9 contains one item, which amends the Work Health and Safety Act 2011 (NSW) (NI).

The item amends subsection 108(4) of the Work Health and Safety Act 2011 (NSW) (NI) to provide that, for the purposes of section 108, emergency services workers include officers, employees or members of St John Ambulance Norfolk Island, the Norfolk Island Fire Service, the Australian Federal Police (including a special member), the Police Force of Norfolk Island, a State or Territory police force providing police services in relation to Norfolk Island, and the Norfolk Island Volunteer Rescue Association Inc. The effect of this amendment is that a reasonable direction given by any of the listed people in an emergency will not be taken to be an action with intent to coerce or induce a person to do something under the Work Health and Safety Act 2011 (NSW) (NI).

New Schedule 10—Amendment of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)

New Schedule 10 contains 3 items, which amend the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (NI).

Item 1

Item 1 repeals section 27C of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (NI), which is about preparation of an annual report by the Independent Review Officer. It is not intended that the Independent Review Officer be required to prepare a separate annual report for Norfolk Island.

Item 2

Item 2 repeals Division 2 of Part 6 of Chapter 2 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (NI). That Division regulates contributions to the Workers Compensation Operational Fund by insurers. Any insurers to whom the Division would apply would already be covered by the Division as in force in NSW. Therefore, it is not necessary for the Division to be applied in Norfolk Island.

Item 3

Item 3 repeals subsection 320(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (NI). That subsection provides for the President of the Workers Compensation Commission of NSW to ensure that, as far as reasonably practicable, arrangements are in place to facilitate medical assessments of injured workers under Part 7 of Chapter 7 in the regional areas of the State. It is intended that any medical assessments of injured Norfolk Island workers to which the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (NI) applies be carried out in NSW or in Norfolk Island, and it is not necessary for the President to be subject to this obligation in respect of arrangements in Norfolk Island.

Part 2—Consequential amendments of continued laws

The item contained in Part 2 of Schedule 1 to this Ordinance amends the Norfolk Island Continued Laws Ordinance 2015 (the Continued Laws Ordinance).

Item 14

Item 14 amends item 150 of Schedule 1 to insert new section 8C into the Interpretation Act 1979 (NI). New section 8C provides that a law continued in force by section 16 or 16A of the NI Act (a continued law) that regulates employment does not apply to officers, employees and authorities of NSW, or to officers and employees of authorities of NSW, who are exercising functions under a section 18C arrangement. This is intended to ensure that continued laws that relate to the employment of, and performance of duties and functions by, NSW employees working in Norfolk Island do not apply to such persons.

Rather, it is intended that the applied industrial relations laws would regulate the employment of, and performance of duties and functions by, NSW employees exercising functions under a section 18C arrangement.  Therefore, this item ensures that all continued laws that would be inconsistent with the applied industrial relations laws do not apply to relevant NSW employees.  By removing this inconsistency, the applied industrial relations laws are not prevented from applying to them by paragraph 18A(4)(c) of the NI Act.

Schedule 2—Education legislation

Part 1—Application and amendment of certain education legislation

Part 1 of Schedule 2 to this Ordinance amends the Norfolk Island Applied Laws Ordinance 2016 (the Applied Laws Ordinance).

Item 1

Item 1 (this item) amends subitem 1(3) of Schedule 1 to the Applied Laws Ordinance. That subitem is inserted by item 8 of Schedule 1 to this Ordinance, and this item commences immediately after item 8 of Schedule 1 commences. This item includes the Education Act 1990 (NSW) (the NSW Education Act) and the Education Standards Authority Act 2013 (NSW) in the table of NSW Acts that are no longer suspended in their application in Norfolk Island. The inclusion of these Acts in the table also unsuspends the Education Regulation 2017 (NSW) and the Education Standards Authority Regulation 2013 (NSW) in their application in Norfolk Island, because subitem 1(3) of Schedule 1 to the Applied Laws Ordinance provides that legislation made under an Act specified in the table is also unsuspended.

Item 2

Item 2 inserts 2 new Schedules to the Applied Laws Ordinance.

New Schedule 1AA—Amendment of the Education Act 1990 (NSW)

New Schedule 1AA amends the Education Act 1990 (NSW) (NI) (the Applied Education Act).

Item 1

Item 1 inserts a definition of ‘Children’s Court’ into subsection 3(1) of the Applied Education Act. The definition provides that ‘Children’s Court’, when used in the Applied Education Act, means the Court of Petty Sessions of Norfolk Island.

Item 2

Item 2 amends the definition of ‘government school’ in subsection 3(1) of the Applied Education Act to provide that the definition of ‘government school’ in the Applied Education Act includes the Norfolk Island Central School.

Item 3

Item 3 inserts a definition of ‘Local Court’ into subsection 3(1) of the Applied Education Act. The definition provides that ‘Local Court’, when used in the Applied Education Act, means the Court of Petty Sessions of Norfolk Island. The Court of Petty Sessions of Norfolk Island is the court of summary jurisdiction for Norfolk Island.

Item 3 also inserts a definition of ‘NSW Education Act’ into subsection 3(1) of the Applied Education Act. The definition provides that ‘NSW Education Act’, when used in the Applied Education Act, means the Education Act 1990 as in force in NSW from time to time. This item is intended to simplify references in the Applied Education Act to the NSW Education Act.

Item 4

Item 4 amends the definition of ‘overseas student’ in subsection 3(1) of the Applied Education Act to replace the reference to NSW with a reference to the Territory of Norfolk Island. As amended, the definition provides that, for the purposes of the Applied Education Act, an overseas student is a student who holds a visa under the Migration Act 1958 (Cth) that enables the student to study in the Territory of Norfolk Island, but does not include the holder of a permanent visa or special category visa within the meaning of that Act.

Item 5

Item 5 amends the definition of ‘relevant institution’ in subsection 3(1) of the Applied Education Act. The amendment includes additional bodies in the definition of ‘relevant institution’, namely, a public health organisation (within the meaning of the Health Services Act 1997 (NSW) (NI)), the Police Force of Norfolk Island, and the Norfolk Island Regional Council. The reference in the definition of ‘relevant institution’ to ‘government funding’ is intended to be a reference to Commonwealth government funding. The definition is relevant to sections 22A, 22C and 22D of the Applied Education Act, which deal with obtaining information about children of compulsory school‑age, conferences of relevant parties to deal with unsatisfactory school attendance, and compulsory schooling orders.

Item 6

Item 6 inserts a definition of ‘Supreme Court’ into subsection 3(1) of the Applied Education Act. The definition provides that ‘Supreme Court’, when used in the Applied Education Act, means the Supreme Court of Norfolk Island.

Item 7

Item 7 replaces the definition of ‘Tribunal’ in subsection 3(1) of the Applied Education Act so that ‘Tribunal’, when used in the Applied Education Act, means the Administrative Review Tribunal of Norfolk Island rather than the Civil and Administrative Tribunal of NSW.

Item 8

Item 8 inserts sections 3A and 3B into the Applied Education Act.

New section 3A deals with the courts and tribunals that have jurisdiction under the Applied Education Act.

New subsection 3A(1) provides that jurisdiction in matters arising under the Applied Education Act is, to the extent permitted by the Commonwealth Constitution, conferred on the Supreme Court of Norfolk Island and the Court of Petty Sessions of Norfolk Island. The Supreme Court of Norfolk Island will deal with matters for which the Supreme Court of NSW or the District Court of NSW has jurisdiction under the NSW Education Act. The Court of Petty Sessions of Norfolk Island will deal with matters for which the Local Court of NSW or the Children’s Court of NSW has jurisdiction under the NSW Education Act.

New subsection 3A(2) provides that, to the extent permitted by the Commonwealth Constitution, the Administrative Review Tribunal of Norfolk Island will have the powers or functions under the Applied Education Act that the Civil and Administrative Tribunal of NSW has under the NSW Education Act. This new subsection also provides that the Administrative Review Tribunal of Norfolk Island is to exercise or perform its powers or functions under the Applied Education Act in accordance with the Administrative Review Tribunal Act 1996 (NI).

New section 3A is expressed to be limited by the Commonwealth Constitution in recognition of the fact that the powers exercisable by the relevant NSW courts and tribunal may be a mixture of judicial and non‑judicial powers. It clarifies that these provisions do not purport to confer powers on Norfolk Island bodies where such conferral would infringe upon the doctrine of the separation of powers as enshrined in the Constitution.

New section 3B provides that, for the purposes of any applied law, the Norfolk Island Central School is taken to be a government school and to be established under the Applied Education Act. New section 3B is intended to ensure that all references to a government school in NSW laws applied in Norfolk Island include the Norfolk Island Central School. The amendment is necessary because not all references to schools in NSW legislation that may be applied in Norfolk Island refer to the definition of ‘government school’ in the NSW Education Act. See, for example, the reference to ‘government school’ in subsection 49ZYL(4) of the Anti‑Discrimination Act 1977 (NSW) (NI).

Item 9

Item 9 amends section 4 of the Applied Education Act to reflect the fact that the Act has not been enacted by the NSW Parliament.

Item 10

Item 10 amends paragraph 4(c) and repeals paragraph 4(d) of the Applied Education Act. Section 4 sets out the principles on which the Applied Education Act is based. Item 10 removes the references to the duty and responsibility ‘of the State’ in paragraphs 4(c) and 4(d), as these are not relevant for Norfolk Island, and substitutes that ‘every child should receive an education of the highest quality’.

Item 11

Item 11 amends section 5 of the Applied Education Act, which deals with the principal objects of the Act. Item 11 replaces paragraph 5(c) so that it refers to schools operating in the Territory of Norfolk Island rather than in NSW.

Items 12 and 13

Items 12 and 13 amend subsections 6(1) and 6(1A) of the Applied Education Act to remove the references to the intention of Parliament. This is because the Applied Education Act has not been enacted by the NSW Parliament.

Items 14 to 20

Items 14 to 20 amend section 18A of the Applied Education Act so that it applies to a school in Norfolk Island. Section 18A deals with the publication of school results.

Item 14 amends the definition of ‘relevant national agreement’ in subsection 18A(1) of the Applied Education Act to replace the reference to ‘the State’ with a reference to ‘New South Wales’. The amendment is needed to avoid any ambiguity created by the definition of ‘the State’ in subsection 21(1) of the Interpretation Act 1987 (NSW) (NI) (inserted by item 10 of Schedule 3 to the Applied Laws Ordinance). That definition provides that references to ‘the State’, when used in a geographical sense, mean the Territory of Norfolk Island, and, when used in any other sense, mean the Territory of Norfolk Island unless the context precludes that meaning.

Item 15 amends subsection 18A(2) of the Applied Education Act to replace the reference to ‘the State’ with a reference to ‘New South Wales’. This reflects the fact that NSW will be in possession of school results for the Norfolk Island Central School. As with item 14 above, the amendment is needed to avoid any ambiguity created by the definition of ‘the State’ in subsection 21(1) of the Interpretation Act 1987 (NSW) (NI).

Items 16 to 18 amend subsection 18A(4) of the Applied Education Act to provide that it is an offence for a person, in a newspaper or other document publicly available in NSW or Norfolk Island, to publish any ranking or other comparison of particular schools that include a school in the Territory of Norfolk Island according to school results, except with the permission of the principals of the schools involved, or to identify a school in Norfolk Island as being in a percentile of less than 90 per cent in relation to school results, except with the permission of the principal of the school. The offence carries a maximum penalty of 50 penalty units in the case of an individual and 500 penalty units in any other case. The intention of these amendments is to offer the same protection to the results of a school in Norfolk Island as is offered for NSW schools’ results.

Items 19 and 20 amend subsection 18A(7) of the Applied Education Act to replace references to ‘the State’ and ‘a State’ with references to ‘New South Wales’ and ‘a New South Wales’. As with the amendments in items 14 and 15 above, this is to ensure there is no ambiguity created by the definition of ‘the State’ in subsection 21(1) of the Interpretation Act 1987 (NSW) (NI).

Section 18A as amended by this Ordinance is intended to operate in Norfolk Island and extraterritorially in NSW.

Item 21

Item 21 amends paragraph 19(f) of the Applied Education Act to clarify that the paragraph applies to the education of school children in Norfolk Island. Paragraph 19(f) provides that it is a function of the Minister to carry out such educational audits and program reviews as the Minister considers appropriate to assess and improve the quality of such education.

Item 22

Item 22 amends subsection 20(3) of the Applied Education Act. Section 20 provides that the Minister may provide or arrange special or additional assistance for government school children with special needs, including financial assistance. The amendment to subsection 20(3) clarifies that any payments of financial assistance are to be made out of money appropriated by the Commonwealth Parliament rather than the NSW Parliament.

Items 23 to 25

Items 23 to 25 amend section 20A of the Applied Education Act, which is about the functions of the NSW Education Standards Authority (the Authority) under the Applied Education Act.

Item 23 amends paragraph 20A(2)(k) to clarify that one of the functions of the Authority is to recognise, for the purposes of the Act, educational attainments obtained at educational institutions outside the Territory of Norfolk Island (rather than outside NSW).

Item 24 amends subparagraph 20A(2)(r)(iv) to clarify that one of the functions of the Authority is to advise the Minister in relation to the likely impact of any change in the Authority’s policies (particularly in relation to courses of study) on the overall planning, allocation or use of educational resources in the Territory of Norfolk Island (rather than in NSW).

Item 25 amends subsection 20A(3) to clarify that, in the exercise of its functions under the Applied Education Act, the Authority is to have regard to the resources available for education in schools in the Territory of Norfolk Island as well as in NSW (rather than just in NSW).

Item 26

Item 26 inserts new subsection 21B(1A) into the Applied Education Act. New subsection 21B(1A) is a transitional provision dealing with the introduction of a new compulsory school‑age in the Territory of Norfolk Island.

Item 26 provides that a child who turned 15 before 1 January 2018 and was in 2017 enrolled in Year 9, 10, 11 or 12 at the Norfolk Island Central School is not of compulsory school‑age for the purposes of the Applied Education Act. It also provides that a child who turned 15 before 1 January 2017 and before turning 15 was enrolled at the Norfolk Island Central School is not of compulsory school‑age for the purposes of the Applied Education Act.

These transitional arrangements are consistent with the former school‑leaving age of 15 years provided by the Education Act 1931 (NI), which was in force in Norfolk Island immediately before the commencement of this Schedule.

All other students at the Norfolk Island Central School will be required to satisfy the new compulsory schooling requirements of the Applied Education Act.

Item 27

Item 27 amends subsection 22C(8) of the Applied Education Act by replacing the reference to care proceedings under Chapter 5 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (NSW Child Protection Act) with a reference to proceedings relating to an application for a care and protection order under Chapter 5 of the Child Welfare Act 2009 (NI) (NI Child Welfare Act). Subsection 22C(8) deals with the admissibility of evidence in proceedings before a court or other body of statements made in or documents prepared in relation to conferences dealing with unsatisfactory school attendance. This amendment is necessary because the application of the NSW Child Protection Act in Norfolk Island is currently suspended (see item 1 of Schedule 1 to the Applied Laws Ordinance). Chapter 5 of the NI Child Welfare Act deals with similar matters to Chapter 5 of the NSW Child Protection Act. The amendment of subsection 22C(8) ensures that the operation of the provision in Norfolk Island is comparable to the operation of the equivalent provision in the NSW Education Act.

Item 28

Item 28 amends subsection 22D(5) of the Applied Education Act by replacing the reference to Chapter 6 of the NSW Child Protection Act with a reference to Chapter 3 and section 143 of the NI Child Welfare Act. This amendment is necessary because the NSW Child Protection Act is suspended in Norfolk Island (see item 1 of Schedule 1 to the Applied Laws Ordinance). The NI Child Welfare Act applies instead. Chapter 3 and section 143 of the NI Child Welfare Act deal with similar matters to Chapter 6 of the NSW Child Protection Act. The amendment of subsection 22D(5) ensures that the operation of the provision in Norfolk Island is comparable to the operation of the equivalent provision in the NSW Education Act.

Item 29

Item 29 repeals subsections 22D(11) and 22D(12) of the Applied Education Act. It substitutes new subsection 22D(11), which replaces the references to section 91 and Part 2 of Chapter 5 of the NSW Child Protection Act with references to Chapter 7 and Chapter 5 of the NI Child Welfare Act (which deal with similar matters). This amendment is necessary because the NSW Child Protection Act is suspended in relation to Norfolk Island. The amendment of subsection 22D(11) ensures that the operation of the provision in Norfolk Island is comparable to the operation of the equivalent provision in the NSW Education Act.

Subsection 22D(12) of the Applied Education Act, which provides for the making of rules of court, has not been substituted. Section 7 of the Court Procedures Act 2007 (NI) allows for a rule‑making committee to make rules for the practice and procedure of Norfolk Island courts and this is the appropriate mechanism for the making of any rules in relation to the Norfolk Island Court of Petty Sessions’ jurisdiction under section 22D.

Item 30

Item 30 replaces subsection 23(5) of the Applied Education Act with new subsections 23(5) and 23(5A). Subsection 23(5) of the NSW Education Act provides that the court may make a community service order instead of imposing a fine if a parent of a child of compulsory school‑age fails to cause the child to be enrolled at, and to attend, a government school or a registered non‑government school, or to be registered for home schooling under Part 7 of the NSW Education Act. Item 30 removes the references to the Crimes (Sentencing Procedure) Act 1999 (NSW) because the application of that Act in Norfolk Island is suspended (see item 1 of Schedule 1 to the Applied Laws Ordinance). New subsections 23(5) and 23(5A) provide that a court in Norfolk Island may make a community service order instead of imposing a fine, but refer to the Sentencing Act 2007 (NI), which is currently in force in Norfolk Island and deals with similar matters to the Crimes (Sentencing Procedure) Act 1999 (NSW). Under section 7 of the Sentencing Act 2007 (NI), where a court finds a person guilty of an offence, it may decide not to record a conviction. Subsection 23(5) as amended provides that a community service order may be made whether or not a conviction is recorded.

Item 31

Item 31 repeals subsection 24(5) of the Applied Education Act, which provides that it is an offence for a principal of a government school or registered non‑government school, without reasonable excuse, to fail to keep a register of enrolments and daily attendances of all children at the school as required by section 24 and to comply with other duties imposed by section 24. Failure by the principal of a government school in Norfolk Island to comply with a requirement imposed by or under section 24 of the Applied Education Act will be managed outside the Applied Education Act.

Items 32 to 38

Items 32 to 38 amend sections 26A to 26D and 26F of the Applied Education Act to confer powers both on relevant agencies in Norfolk Island and on relevant agencies in NSW, including non‑government schools and non‑government schools authorities. The intention is that the sections, as amended, will allow information to be provided by one relevant agency to another regardless of whether one or both of them are located in NSW or Norfolk Island. The sections, as amended, will apply in Norfolk Island and extraterritorially in NSW.

Item 32 replaces the definition of ‘non‑government schools authority’ in section 26A of the Applied Education Act to provide that ‘non‑government schools authority’ means a non‑government schools authority within the meaning of Part 5A of the NSW Education Act. There are currently no non‑government schools authorities in Norfolk Island.

Item 33 amends the definition of ‘school’ in section 26A of the Applied Education Act so that, for the purposes of Part 5A of the Applied Education Act, it includes a government school within the meaning of the Applied Education Act or the NSW Education Act and a registered non‑government school within the meaning of the NSW Education Act. There are currently no registered non‑government schools in Norfolk Island.

Item 34 amends subsection 26B(1) of the Applied Education Act. Subsection 26B(1) of the NSW Education Act provides that information can be obtained under Division 2 of Part 5A solely for the purposes of assisting the Secretary or schools to assess whether the enrolment of a particular student at a school is likely to constitute a risk to the health or safety of any person and to develop and maintain strategies to eliminate or minimise any such risk. The amendment provides that subsection 26B(1) applies to the enrolment of a student at a school in Norfolk Island as well as to the enrolment of a student in NSW if the student has previously been enrolled at a school in Norfolk Island.

Item 35 amends subsection 26B(2) of the Applied Education Act. Subsection 26B(2) prohibits information about a student obtained under Division 2 of Part 5A of the Applied Education Act from being disclosed under the Government Information (Public Access) Act 2009 except in response to an access application under that Act made by the student, a parent of the student, or any person nominated in writing by the student or parent. Item 35 amends subsection 26B(2) so that it prohibits disclosure under the Government Information (Public Access) Act 2009 both as in force in NSW and as in force in Norfolk Island. The Government Information (Public Access) Act 2009 (NSW) (NI) has been unsuspended in Norfolk Island in relation to certain officers, employees and authorities of NSW (see subsection 6A(4) of the Applied Laws Ordinance as inserted by item 3 of Schedule 1 to this Ordinance). This amendment is necessary to ensure NSW employees in Norfolk Island and in NSW are subject to the same prohibition.

Item 36 amends the list of relevant agencies in subsection 26C(1) from which information may be obtained about students under Division 2 of Part 5A of the Applied Education Act.

Revised paragraph 26C(1)(d) provides that the list of relevant agencies includes the TAFE Commission and TAFE establishments within the meaning of the NSW Education Act. If left unamended, the definition of ‘TAFE establishment’ would be ambiguous because ‘TAFE establishment’ would be defined in relation to the Technical and Further Education Commission Act 1990 (NSW). Subsection 21D(3) of the Interpretation Act 1987 (NSW) (NI) (as inserted by item 11 of Schedule 3 to the Applied Laws Ordinance) provides that a reference in an applied law to the short title of a NSW Act is taken to be a reference to the corresponding applied law. However, there is no corresponding applied law because the application of the Technical and Further Education Commission Act 1990 (NSW) is suspended in relation to Norfolk Island (see item 1 of Schedule 1 to the Applied Laws Ordinance). The amendment does not change the intended meaning of the definitions.

Revised paragraph 26C(1)(e) provides that the list of relevant agencies includes public health organisations within the meaning of the Health Services Act 1997 (NSW) or the Health Services Act 1997 (NSW) (NI). The effect of paragraph 26C(1)(e) is that the list of relevant agencies includes the agencies that are considered to be public health organisations in NSW, but also includes the Norfolk Island Health and Residential Aged Care Service (NIHRACS). This is because NIHRACS is taken to be an affiliated health organisation under subsection 62(6) of the Health Services Act 1997 (NSW) (NI) (inserted by item 3 of Schedule 2 to the Applied Laws Ordinance).

The references in paragraphs 26C(1)(f) and (g) to the NSW Department of Family and Community Services and the NSW Department of Justice remain unchanged.

Revised paragraph 26C(1)(i) provides that the list of relevant agencies includes the NSW Police Force as defined in subsection 21(1) of the Interpretation Act 1987 (NSW). This amendment is needed because subsection 21(1) of the Interpretation Act 1987 (NSW) (NI) provides that, in applied laws, ‘NSW Police Force’ means ‘Australian Federal Police’ (see item 7 of Schedule 3 to the Applied Laws Ordinance).

Revised paragraph 26C(1) also provides that the list of relevant agencies includes the Australian Federal Police (paragraph 26C(1)(h)), the Police Force of Norfolk Island (paragraph 26C(1)(ia)) and the Norfolk Island Regional Council (paragraph 26C(1)(ib)). These amendments are needed because these agencies operate in Norfolk Island and may hold information relevant to Part 5A.

Item 37 amends section 26D of the Applied Education Act. Section 26D allows certain bodies to request information about a particular student from relevant agencies for the purposes of section 26B of the Applied Education Act. Subsection 26D(6) provides for exceptions to this rule by stating that section 26D does not authorise or require the provision of information if its disclosure is prohibited by certain provisions of other Acts, including paragraph 29(1)(f) of the NSW Child Protection Act. That paragraph protects the identity of persons who make reports about suspected risks of harm to children and young people. The application of the NSW Child Protection Act to Norfolk Island is suspended (see item 1 of Schedule 1 to the Applied Laws Ordinance), and the NI Child Welfare Act applies instead. Item 37 amends subsection 26D(6) to provide that, in addition to protecting the identity of persons making reports under the NSW Child Protection Act, section 26D also protects information from having to be disclosed if its disclosure is prohibited by section 187 of the NI Child Welfare Act. Section 187 of the NI Child Welfare Act covers similar matters to paragraph 29(1)(f) of the NSW Child Protection Act. The NSW Child Protection Act applies in NSW, and the NI Child Welfare Act applies in Norfolk Island, so references to both are needed to ensure appropriate safeguards are in place.

Item 38 amends section 26F of the Applied Education Act. The amendment is consistent with item 37. Subsection 26F(1) provides a general rule that Division 2 of Part 5A allows information to be disclosed despite a prohibition in other Acts or laws. Subsection 26F(2) provides that there are certain exceptions to the rule in subsection 26F(1), including the prohibition imposed by paragraph 29(1)(f) of the NSW Child Protection Act. Item 38 amends subsection 26F(2) to include any prohibition in section 187 of the NI Child Welfare Act as an additional exception to the rule in subsection 26F(1). The NSW Child Protection Act applies in NSW, and the NI Child Welfare Act applies in Norfolk Island, so references to both are needed to ensure appropriate safeguards are in place.

Item 39

Item 39 inserts new subsection 34(3A) into the Applied Education Act. Section 34 relevantly provides that a child is entitled to be enrolled at the government school that is designated for the intake area within which the child’s home is situated and that the child is eligible to attend. New subsection (3A) provides that, for the purposes of section 34, Norfolk Island is taken to be designated as an intake area, and the Norfolk Island Central School is taken to be designated for that intake area.

Item 40

Item 40 amends subsection 34(4) of the Applied Education Act. Subsection 34(4) provides that the Minister may refuse the admission of a child to all or any government schools if the child has been expelled from any government school, or the Minister is of the opinion that there is other sufficient reason to do so. The amendment made by item 40 clarifies that this applies where the child has been expelled from a government school within the meaning of the Applied Education Act or the NSW Education Act. The effect of this amendment is that paragraph 34(4)(a) applies to children expelled from a government school in NSW as well as children expelled from a government school in Norfolk Island.

Item 41

Item 41 inserts new section 83MA into the Applied Education Act. New section 83MA provides that Part 7A (Approval to provide courses to overseas students) of the Applied Education Act does not apply in relation to Norfolk Island unless the Education Services for Overseas Students Act 2000 (Cth) extends to Norfolk Island. That Act does not currently extend to Norfolk Island.

Items 42 and 43

Items 42 and 43 amend section 94 of the Applied Education Act. Section 94 provides that the Authority is to grant Records of School Achievement to students who have fulfilled the requirements set out in subsection 94(1).

Subsection 94(1) of the NSW Education Act provides that Records of School Achievement are to be granted to students who have attended a school outside NSW recognised by the Authority. Item 42 replaces the reference to NSW with a reference to Norfolk Island.

Subsection 94(2) provides that the requisite examinations or other forms of assessment to be undertaken may be conducted on a school‑basis, but are to be moderated on a State‑wide basis in the learning areas and in the manner determined by the Authority. Item 43 replaces the reference to ‘on a State‑wide basis’ with a reference to ‘on a New South Wales‑wide basis, as if the Territory of Norfolk Island were a part of New South Wales’.

Items 44 and 45

Items 44 and 45 amend section 95 of the Applied Education Act. Section 95 provides that the Authority is to grant Higher School Certificates to students who have fulfilled the requirements set out in subsection 95(1).

Item 44 replaces the reference to NSW in subparagraph 95(1)(b)(iii) with a reference to Norfolk Island. The amended subparagraph provides that Higher School Certificates are to be granted to eligible students who have attended schools outside Norfolk Island that are recognised by the Authority or a TAFE establishment.

Item 45 amends subsection 95(2) so that it provides that the requisite examination or other assessment for the Higher School Certificate must include a public examination conducted ‘on a NSW‑wide basis, as if the Territory of Norfolk Island were a part of NSW’.

Item 46

Item 46 amends subsection 107(1) of the Applied Education Act to replace the reference to the Administrative Decisions Review Act 1997 (NSW) with a reference to the Administrative Review Tribunal Act 1996 (NI). This amendment is necessary because the application of the Administrative Decisions Review Act 1997 (NSW) in Norfolk Island is suspended (see item 1 of Schedule 1 to the Applied Laws Ordinance). The Administrative Review Tribunal Act 1996 (NI) applies instead.

Items 47 to 49

Items 47 to 49 amend section 108 of the Applied Education Act, which is about the determination of applications for administrative review of decisions.

Section 108 provides for the determinations the Tribunal may make on an application for administrative review. Item 47 replaces the references in subsection 108(2) to sections 63 (Determination of administrative review by Tribunal) and 65 (Power to remit matters to administrator for further consideration) of the Administrative Decisions Review Act 1997 (NSW), which is suspended in Norfolk Island, with references to subsections 31(1) and (2) of the Administrative Review Tribunal Act 1996 (NI), which deal with similar matters.

Item 47 also inserts a new subsection 108(2A) into the Applied Education Act. New subsection 108(2A) provides that subsections 31(3) and (4) of the Administrative Review Tribunal Act 1996 (NI) (about providing copies of and reasons for decisions, and when decisions take effect) apply in relation to a decision under subsection 108(1) of the Applied Education Act in the same way as they apply to a decision under subsection 31(1) of the Administrative Review Tribunal Act 1996 (NI).

Item 48 amends the note to subsection 108(3) of the Applied Education Act, to replace the reference to the suspended Administrative Decisions Review Act 1997 (NSW) with a reference to section 31 of the Administrative Review Tribunal Act 1996 (NI), which is in force in Norfolk Island. The note to subsection 108(3), as amended, clarifies that section 31 of the Administrative Review Tribunal Act 1996 (NI) provides for the powers of the Administrative Review Tribunal of Norfolk Island when reviewing a decision of the Authority under Part 7A of the Applied Education Act.

Item 49 amends subsection 108(4) of the Applied Education Act. Subsection 108(4) will be inserted into the NSW Education Act by item 33 of Schedule 1 to the Education Amendment (School Safety) Act 2017 (NSW). Item 49 will not come into effect in Norfolk Island until that item commences in NSW. Item 49 replaces the reference to the suspended Administrative Decisions Review Act 1997 (NSW) in subsection 108(4) of the Applied Education Act with a reference to the Administrative Review Tribunal Act 1996 (NI), which is in force in Norfolk Island.

Item 50

Item 50 amends subsection 109(2) of the Applied Education Act to replace the reference to subsection 6(4) of the suspended Administrative Decisions Review Act 1997 (NSW) with a reference to subsection 14(5) of the Administrative Review Tribunal Act 1996 (NI). The reference to subsection 6(4) of the Administrative Decisions Review Act 1997 (NSW) was intended to be a reference to subsection 6(5) of that Act. Both subsection 6(5) of the Administrative Decisions Review Act 1997 (NSW) and subsection 14(5) of the Administrative Review Tribunal Act 1996 (NI) deal with situations where a decision‑maker fails to make a decision on an application within a particular timeframe. In those situations, a failure to make a decision is taken to be a decision to refuse the application. For the purposes of subsection 14(5) of the Administrative Review Tribunal Act 1996 (NI), the relevant timeframe is 5 months in relation to an application to which section 109 applies.

Item 51

Item 51 amends subsection 115(1A) of the Applied Education Act. Subsection 115(1A) deals with the incorporation of parents and citizens associations. Item 51 replaces the reference to incorporation under the Parents and Citizens Associations Incorporation Act 1976 (NSW) or the Associations Incorporation Act 2009 (NSW) with a reference to incorporation under the Associations Incorporation Act 2005 (NI). This amendment is necessary because the two NSW Acts referred to are suspended in their application in Norfolk Island (see item 1 of Schedule 1 to the Applied Laws Ordinance). The Associations Incorporation Act 2005 (NI) is the equivalent Act in force in Norfolk Island.

Item 52

Item 52 inserts new section 117A into Part 11 of the Applied Education Act. New section 117A provides that a Parents and Citizens Association (P&C) constituted under section 15A of the Education Act 1931 (NI) as in force immediately before this Schedule commences continues in existence as if it were a P&C constituted under subsection 115(1) of the Applied Education Act. It also provides that any existing rules of the association continue in force as if they were rules approved by the Minister under subsection 117(1) of the Applied Education Act.

Item 53

Item 53 repeals section 125 of the Applied Education Act. Section 125 deals with the acquisition and disposal of land for the purposes of the Act as it is not intended the NSW Government will acquire or dispose of land in Norfolk Island.

Item 54

Item 54 amends subsection 128(1) of the Applied Education Act. Subsection 128(1) refers to sums appropriated by Parliament for the purposes of scholarships attached to schools. This amendment clarifies that the reference to the Parliament is to the Commonwealth Parliament rather than to the NSW Parliament.

Item 55

Item 55 repeals section 135 of the Applied Education Act, which provides for the Minister to review the Act by 31 December 2011, as it is no longer needed.

New Schedule 1AB—Amendment of the Education Standards Authority Act 2013 (NSW)

New Schedule 1AB contains 3 items amending the Education Standards Authority Act 2013 (NSW) (NI) (the Applied ESA Act).

Item 1

Item 1 inserts a definition of ‘Local Court’ into subsection 3(1) of the Applied ESA Act. The definition provides that, for the purposes of the Applied ESA Act, ‘Local Court’ means the Court of Petty Sessions of Norfolk Island.

Item 2

Item 2 inserts new section 3A into Part 1 of the Applied ESA Act. New section 3A provides that jurisdiction in matters arising under the Applied ESA Act is, to the extent permitted by the Commonwealth Constitution, conferred on the Supreme Court of Norfolk Island and the Court of Petty Sessions of Norfolk Island.

Item 3

Item 3 repeals sections 15 and 23 of the Applied ESA Act. Section 15 establishes an Education Standards Authority Fund, which is not relevant in the Norfolk Island context. Section 23 provides that authorised members of staff of the Authority may issue penalty notices to persons who have committed a penalty notice offence under the education and teaching legislation. The Fines Act 1996 (NSW) applies to a penalty notice under section 23; that Act is suspended in relation to Norfolk Island.

Part 2—Repealing the Education Act 1931 (Norfolk Island) and the Education Regulations (Norfolk Island)

The items contained in Part 2 of Schedule 2 to this Ordinance make amendments to the Norfolk Island Continued Laws Ordinance 2015 (the Continued Laws Ordinance) to repeal the Education Act 1931 (NI) and the Education Regulations (NI). These laws regulate education and are no longer required because of the application of the Applied Education Act in Norfolk Island.

Items 3 and 4

Items 3 and 4 repeal from Schedule 1 to the Continued Laws Ordinance the heading specifying the Education Act 1931 (NI) and item 73, which amends section 21 of the Education Act 1931 (NI). These amendments are consequential to item 7, which repeals the Education Act 1931 (NI).

Items 5 and 6

Items 5 and 6 repeal from Schedule 1 to the Continued Laws Ordinance the heading specifying the Education Regulations (NI) and item 74, which amends regulation 20 of the Education Regulations (NI). These amendments are consequential to item 8, which repeals the Education Regulations (NI).

Items 7 and 8

Items 7 and 8 amend items 1 and 2 of Schedule 2 to the Continued Laws Ordinance to repeal the Education Act 1931 (NI) and the Education Regulations (NI).

Part 3—Consequential amendments of other continued laws

The items in Part 3 amend the Continued Laws Ordinance to make consequential amendments to other continued laws.

Item 9

Item 9 inserts new item 31AA into Schedule 1 to the Continued Laws Ordinance. New item 31AA amends paragraph 33(3)(c) of the NI Child Welfare Act to replace the reference to the Education Act 1931 (NI) with a reference to the Applied Education Act. This amendment is necessary because this Ordinance unsuspends the Applied Education Act and repeals the Education Act 1931 (NI) (see items 1 and 7 of Schedule 2).

Item 10

Item 10 inserts new items 31DA, 31DB, 31DC and 31DD into Schedule 1 to the Continued Laws Ordinance.

New items 31DA and 31DB amend paragraphs 47(3)(d) and 48(1)(d) of the NI Child Welfare Act. Those paragraphs refer to the age at which the consent of a young person is usually required to enter into, or extend, a voluntary care agreement relating to the young person. Before the amendments effected by this Ordinance, the age was linked to the school‑leaving age, which was defined with reference to the Education Act 1931 (NI). The school‑leaving age in that Act was 15 years. The amendments replace the references to ‘of or over the school‑leaving age’ with references to ‘15 or over’. The effect of the amendments is to leave the relevant age unchanged, but remove the reference to the school‑leaving age since the school‑leaving age is now determined by the Applied Education Act.

New item 31DC similarly amends section 49 of the NI Child Welfare Act to replace the words ‘has reached the school‑leaving age’ with ‘is 15 or over’. As a consequence of these amendments, the note to section 49 of the NI Child Welfare Act that refers to the definition of school‑leaving age in the Education Act 1931 (NI) is no longer required. New item 31DD therefore repeals that note.

Item 11

Item 11 inserts a revised item 32, and inserts new items 32AA and 32AB, into Schedule 1 to the Continued Laws Ordinance.

The revised item 32 no longer includes the repeal of subsection 185(3) of the NI Child Welfare Act. The repeal of that subsection is instead included in new item 32AB. This is purely a change in presentation so that the amending items continue to appear in sequential order. It has no substantive effect.

New item 32AA amends paragraph 147(1)(a) of the NI Child Welfare Act to replace the reference to ‘of or over the school‑leaving age’ with ‘who is 15 or over’. This amendment does not change the substantive age in paragraph 147(1)(a). As with item 10 above, the amendment is necessary because the school‑leaving age was defined in the NI Child Welfare Act by reference to the Education Act 1931 (NI), which is repealed by Part 2 of Schedule 2 to this Ordinance.

New item 32AB repeals subsection 185(3) of the NI Child Welfare Act. This repeal was originally included in item 32 of Schedule 1 to the Continued Laws Ordinance. The repeal of subsection 185(3) has been moved to a different item so that the amending items continue to appear in sequential order. This change has no substantive effect.

Item 12

Item 12 inserts new items 37AAA and 37AAB into Schedule 1 to the Continued Laws Ordinance.

New item 37AAA replaces the definition of ‘school’ in the Dictionary in the NI Child Welfare Act, so that rather than ‘school’ being defined as a school conducted by the Administration under the Education Act 1931 (NI), ‘school’ is defined as a government school within the meaning of the Applied Education Act. This amendment is necessary because the Education Act 1931 (NI) is repealed by Part 2 of Schedule 2 to this Ordinance.

New item 37AAB repeals the definition of ‘school‑leaving age’ in the Dictionary in the NI Child Welfare Act. The definition is no longer required because items 10 and 11 of this Ordinance omit the references to ‘school‑leaving age’ from the NI Child Welfare Act.

Item 13

Item 13 amends item 190 of Schedule 1 to the Continued Laws Ordinance in order to repeal paragraphs 5(3)(a) and (b) of Schedule 1 to the Interpretation Act 1979 (NI). Those paragraphs refer to the Education Act 1931 (NI) and the Education Regulations (NI). They are no longer necessary because the Education Act 1931 (NI) and the Education Regulations (NI) are repealed by Part 2 of Schedule 2 to this Ordinance.

Part 4—Consequential amendments of applied laws

The item in Part 4 amends the Applied Laws Ordinance.

Item 14

Item 14 repeals item 10 of Schedule 6 to the Applied Laws Ordinance. That item amended the definition of ‘primary school’ in subsection 85(1) of the Public Health Act 2010 (NSW) (NI) so that it referred to the Education Act 1931 (NI) rather than the Education Act 1990 (NSW). However, the amendment is no longer necessary because the Education Act 1990 (NSW) is unsuspended in its application to Norfolk Island by item 1 of Schedule 2 to this Ordinance. The reference to the Education Act 1990 in subsection 85(1) of the Public Health Act 2010 (NSW) (NI) will be taken to be a reference to the Applied Education Act because of subsection 21D(3) of the Interpretation Act 1987 (NSW) (NI) as inserted by item 11 of Schedule 3 to the Applied Laws Ordinance.