Norfolk Island Regional Council Preparatory Election Ordinance 2016

EXPLANATORY STATEMENT

Ordinance No. 3,  2016

Subject - Norfolk Island Act 1979

Norfolk Island Regional Council Preparatory Election Ordinance 2016

The Norfolk Island Act 1979 (the Act) provides for the Government of the Territory of Norfolk Island.  It defines the roles, responsibilities and powers of the Governor‑General, the responsible Commonwealth Minister, the Administrator of Norfolk Island, and the Executive Director of Norfolk Island.  The Act also establishes the Norfolk Island Advisory Council which has the role of advising the Administrator of Norfolk Island on matters affecting the Territory during the interim transition time.

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

The Norfolk Island Regional Council Preparatory Election Ordinance 2016 (the Ordinance) provides for an election to elect five Norfolk Island regional councillors to be held on 28 May 2016. The five elected councillors will transition to become the inaugural councillors for the Norfolk Island Regional Council, following its establishment under a future law.

To avoid the need to create a bespoke electoral framework for the local government election, the proposed Ordinance applies New South Wales laws relevant to the election of local councillors to Norfolk Island, with modifications for Norfolk Island.

Specifically, the Ordinance applies relevant portions of the following New South Wales Acts and regulations:

• Local Government Act 1993 (NSW)
• Local Government (General) Regulation 2005 (NSW)
• Parliamentary Electorates and Elections Act 1912 (NSW)
• Parliamentary Electorates and Elections Regulation 2008 (NSW)

The Ordinance makes a number of modifications which affect the way the above listed New South Wales laws will apply in Norfolk Island.  These amendments ensure the laws extended to Norfolk Island are consistent with other laws in force in the Territory.  The general approach taken has been to use the New South Wales framework with as few modifications as possible.  This is because it is a proven and established framework for local government elections.

The New South Wales laws being applied to Norfolk Island will be applied as they are in force on 13 November 2015. Copies of the laws in force at this date may be found on the New South Wales Legislation website.

The Ordinance provides for a number of things incidental to the election of the councillors. These include:

• Claims for, and objections to, inclusion on an electoral roll
• Forms to be used for the purposes of an election
• Political Parties
• Nominations for candidature at an election
• Grouping of candidates and group voting squares
• The preparation of ballot-papers
• Postal voting
• The counting of votes, including the rejection of informal votes
• The application of relevant parts of the Parliamentary Electorates and Elections Act 1912 (NSW) to elections under this Act

The preparation of the Ordinance has been informed by advice from the Norfolk Island Advisory Council. The Advisory Council released a discussion paper on the topic of elections for the Regional Council, took written submissions and held a public hearing. Key aspects of this Ordinance such as the requirements for entitlement to vote are informed by the advice of the Advisory Council.

Details of the Ordinance are set out in the Attachment.

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

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

Authority: Section 19A of the Norfolk Island Act 1979

Statement of Compatibility with Human Rights

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

Norfolk Island Regional Council Preparatory Election Ordinance 2016

This Legislative 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.

Overview of Legislative Instrument

The Ordinance would allow an election for five Norfolk Island regional councillors to be held on 28 May 2016. The five elected councillors will transition to become the inaugural councillors for the Norfolk Island Regional Council, following its establishment under a future law.

To avoid the need to create a bespoke electoral framework for the local government election, the proposed Ordinance would apply New South Wales laws relevant to the election of local councillors to Norfolk Island, with modifications for Norfolk Island.

Specifically, the proposed Ordinance would apply relevant portions of the following New South Wales Acts and regulations, as they are in force on 13 November 2015:

• Local Government Act 1993 (NSW)
• Local Government (General) Regulation 2005 (NSW)
• Parliamentary Electorates and Elections Act 1912 (NSW)
• Parliamentary Electorates and Elections Regulation 2008 (NSW)

Human rights implications

This Legislative Instrument engages the following rights:

• The right to take part in public affairs and elections
• Right to freedom of opinion and expression
• Right to freedom of assembly and association
• Privacy and reputation

The right to take part in public affairs and elections

The right to take part in public affairs and elections guarantees the right of citizens to stand for public office, to vote in elections and to have access to positions in public service.  This right is contained in Article 25 of the International Covenant on Civil and Political Rights (ICCPR).  Article 25 provides that every citizen shall have the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representatives; to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; and to have access, on general terms of equality, to public service in his country.

The instrument provides for the first election of five councillors to the Norfolk Island Regional Council (NIRC).  Citizens may participate directly in the conduct of public affairs when they are elected to the NIRC.  Citizens may indirectly participate in the conduct of public affairs when they elect councillors to represent them.  The instrument does not limit the right to take part in public affairs and elections.  Instead the instrument contributes to the realisation of Article 25 of the ICCPR as it will require all eligible persons over 18 years of age living in Norfolk Island to vote in the first local election of the NIRC.

See also Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , Articles 7 and 8 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and Article 29 of the Convention on the Rights of Persons with Disabilities (CRPD).  The CRPD requires countries to ensure that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use for people with disability. CEDAW requires countries to take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right to participate in non-governmental organisations and associations concerned with the public and political life of the country.  The instrument does not limit people’s accessibility to be elected, or to elect, a NIRC councillor on the basis of their gender, race or disability. 

Right to freedom of opinion and expression

The right to freedom of opinion and expression is contained in Articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR).  In effect, Article 19 provides that the right to freedom of opinion is the right to hold opinions without interference, and cannot be subject to any exception or restriction.  The right to freedom of expression extends to any medium, including written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising. The right is not absolute. It carries with it special responsibilities, and may be restricted on several grounds.  Article 20 provides that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

The right to freedom of expression and opinion is engaged by the instrument where it regulates the content, approval and display of electoral matter during the regulated period, and attaches offences for non-compliance.  The regulation of content, approval and display of electoral matter is contained in Division 9A of Part 11 of the Local Government (General) Regulation 2005 (NSW) as applied and modified by the instrument.  The offences applicable during the regulated period are contained in applied Subdivision 3 in Division 9A of Part 11 of the Local Government (General) Regulation 2005 (NSW), as applied and modified.  The applied regulations are consistent with those on the mainland, and ensure that voters have access to appropriate election matter during the regulated period. 

‘Electoral matter’ means any matter that is intended,  likely or capable of affecting the result of an election held or to be held or that is intended, likely or capable of influencing an elector in relation to the casting of his or her vote at an election. This includes:

‘Regulated period’ for an election means the period starting with the closing date and ending at 6 pm on election day, and all days to which polling for the election is adjourned.

Under Article 19(3) of the ICCPR freedom of expression may be limited as provided for by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals.  The regulation of content, approval and display of electoral matter is a reasonable measure because it is aimed at fraudulent material which is designed to subvert the election process, particularly where it is ‘likely to mislead or improperly interfere’ with the casting of a vote, where the material contains untrue or incorrect statements about candidates or where the material is designed to endanger the validity of a vote.  Provisions requiring the insertion of identifying details into election material are also reasonable and necessary to ensure accountability and allow voters to identify the source of campaign materials.  These measures assist votes to make an informed choice about their vote, thereby promoting the objective of maintaining public order by safeguarding the legitimacy of the election process.

To the extent that the instrument may limit the right to freedom of expression and opinion, those limitations are permissible because they are reasonable, necessary and proportionate.

Right to freedom of association

The right to freedom of association protects the right to form and join associations to pursue common goals is contained in Article 22 of the International Covenant on Civil and Political Rights (ICCPR).  The right to freedom of association is engaged by the instrument where it provides for the registration of political parties. Applied Part 7 of Chapter 10 of the Local Government Act 1993 (NSW), as applied and modified by the instrument, relates to the registration of political parties.  A party may be registered for the purposes of that Act in accordance with the procedure applicable under Part 4A of the Parliamentary Electorates and Elections Act 1912 (NSW), as modified.  The instrument enhances the right to form and join associations to pursue common goals as it provides a regulated framework to allow political parties from Norfolk Island and New South Wales to participate in the NIRC election.  The applied provisions are consistent with those on the mainland, and the modifications ensure that Norfolk Island political parties can participate.   

Privacy and reputation

Section 31 provides for modifications relating to section 296B of the Local Government Act 1993 (NSW) regarding Electoral Commissioner-administered elections, including a provision to allow certain persons access to the records of the Administration of Norfolk Island where the person requests access for the purposes of conducting the election. To the extent that those records contain personal information, the right to protection against arbitrary and unlawful interference with privacy will be engaged. Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence.  Collecting, using, storing, disclosing or publishing personal information may amount to an interference with privacy.  In order for the interference with privacy not to be ‘arbitrary’, any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Any access to, use or sharing of, personal information should only be for the legitimate objective of conducting an election; necessary that the person has access to that information; and reasonable and proportionate to the achievement of the objective. 

Section 31 stipulates that only persons listed in paragraphs (a) to (c) of new subsection 5 may access the records of the Administration, and creates an obligation on the part of the Administration to provide access to those records.  The persons listed in new subsection include persons or authorities performing roles in which access to records containing personal details is a necessary component of their function, such as the returning officer or Electoral Commissioner.  Access has been modified to include additional officers such as the Executive Director due to the additional need to construct a new electoral roll for Norfolk Island and accompanying need to determine a person’s entitlement to vote on that roll. Accordingly, the access permitted under this subsection is reasonable and proportionate to the specific challenges involved in organising an election for a new governance body where information cannot be drawn from the federal or state electoral rolls. Offences relating to unauthorised disclosure, such as those in regulations 284B and 284C of the Local Government (General) Regulation 2005, constitute safeguards to ensure that access is not arbitrary or unlawful, and are therefore compatible with the prohibition on interference with privacy.

As above, the regulation of content, approval and display of electoral matter is contained in Division 9A of Part 11 of the Local Government (General) Regulation 2005 (NSW) as applied and modified by the instrument.  The offences applicable during the regulated period are contained in applied Subdivision 3 in Division 9A of Part 11 of the Local Government (General) Regulation 2005 (NSW), as applied and modified.  Article 17 is engaged to the extent that it prohibits unlawful attacks on a person's reputation, and provides that persons have the right to the protection of the law against such interference or attacks. The term ‘electoral matter’ in the instrument circumscribes the type of material related to the offences provided.  The offences applied to Norfolk Island are time-limited to the ‘regulated period’ to ensure that the limitations on this right are maintained only in relation to the prescribed event for which they are regarded as necessary.  The provision of offences is proportionate to the risk and the reasonable expectation of candidates that their candidacy will not be affected by coordinated and dishonest attacks on their reputation. It is also proportionate to the influence that intimidating behaviour or attacks on the reputation of particular candidates can have on the outcome of public events such as elections, in which the community has a key interest.

Conclusion

The Legislative Instrument is compatible with human rights because it advances human rights.  To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

ATTACHMENT

Details of proposed Norfolk Island Regional Council Preparatory Election Ordinance 2016

Part 1—Preliminary

Section 1 – Name of Ordinance

Section 1 provides the title of the Ordinance is the Norfolk Island Regional Council Preparatory Election Ordinance 2016.

Section 2 - Commencement

Section 2 provides that the Ordinance commences on the day after the Ordinance is registered.

Section 3 – Authority

Section 3 provides that the Ordinance is made under section 19A of the Norfolk Island Act 1979.

Section 4 – Object of this Ordinance

This section provides a general outline of the underlying purposes of the Ordinance and sets out some general aims and provisions to assist in the interpretation of other provisions of the Ordinance.

Subsection 4(2) provides that the Ordinance allows for an election of five persons to become councillors of the Norfolk Island Regional Council (NIRC) primarily by applying, with appropriate modifications, those New South Wales laws which are relevant to the election of local government councillors.

Subsection 4(3) clarifies that the Ordinance does not incorporate, amend, repeal or suspend a provision of the law of New South Wales which may be in force after 1 July 2016 apart from this Ordinance. 

Notes 1 and 2 under subsection 4(3) are included to assist the reader in understanding the legal framework for the Ordinance. To allow the election of councillors to take place before the NIRC’s formal establishment on 1 July 2016, this Ordinance applies those portions of New South Wales laws relevant to the conduct of local government elections from the day following registration of this Ordinance. On 1 July 2016, the Norfolk Island Legislation Amendment Act 2015 (Cth) proposes to insert a new section 18A in the Norfolk Island Act 1979 (Cth). Section 18A applies New South Wales law, as in force from time to time, to Norfolk Island.

This means that from 1 July 2016 until the repeal of this Ordinance (1 July 2017 as provided in section 76), there may be two versions of the New South Wales provisions relating to local government elections in force in Norfolk Island – one version applied by section 7 with the modifications contained in this Ordinance, and one version in force by virtue of section 18A of the Norfolk Island Act 1979 (Cth). In practice this is not expected to be an issue; the provisions extended by this Ordinance would be used for the election on 28 May 2016 only. Future elections are planned to take place under the local government elections provisions in force by virtue of section 18A of the Norfolk Island Act 1979 (Cth). It is not anticipated the next election would take place prior to 1 July 2017 when this Ordinance will be repealed.     

Section 5 – Definitions

Section 5 provides definitions which apply to this Ordinance and the provisions of New South Wales law applied by section 7. It should be noted these definitions apply to the provisions applied by section 7, notwithstanding section 72 which essentially provides that the applied provisions should be interpreted as a New South Wales law would be interpreted.

The definition of Administration is to mean the body provided for in section 5 of the Norfolk Island Act 1979 (Cth).  A note for this definition points out that the Administration will cease to exist on 1 July 2016. The Norfolk Island Legislation Amendment Act 2015 (Cth) essentially provides that all rights, assets, liabilities etc. of the Administration transfer to the NIRC unless a transitional rule is made to the contrary. The note also refers the reader to the transitional rule making power contained in the Norfolk Island Legislation Amendment Act 2015 (Cth). This rule making power may be used to deal with transitional matters arising out of the abolition of the Administration including, if necessary, transitional matters relating to the election of 28 May 2016.

Applied provisions is defined as the provisions of New South Wales law applied to Norfolk Island by section 7.

The definition provided of Commonwealth Minister is essentially taken from the Norfolk Island Act 1979 (Cth). The only difference is the inclusion of “(Commonwealth)” after “Norfolk Island Act 1979” (for clarity and consistency).

Executive Director is defined with reference to section 9 of the Norfolk Island Act 1979 (Cth), and a note is included stating that the position of Executive Director ceases to exist from 1 July 2016. The note references the rule making power under the Norfolk Island Legislation Amendment Act 2015 (Cth) which can be used to resolve any transitional issues arising from the position ceasing to exist.

Norfolk Island is defined to mean the Territory of Norfolk Island as described in Schedule 1 to the Norfolk Island Act 1979 (Cth).

Norfolk Island Regional Council Declaration Ordinance is defined to mean an Ordinance that will be made under section 19A of the Norfolk Island Act 1979 (Cth) to declare a body to be the NIRC for the purposes of the definition of ‘Norfolk Island Regional Council’ contained in that Act.

Rules are defined to mean rules made under section 77.

Section 19A Ordinance is defined with reference to the Norfolk Island Act 1979 (Cth).

In addition to the above definitions, four pieces of New South Wales legislation commonly cited in the Ordinance are defined for convenience.  These pieces of legislation are as in force on 13 November 2015. This is because subsection 14(2) of the Legislation Act 2003 (Cth) operates to prevent this Ordinance from adopting NSW law as in force from time to time. The four terms so defined and the Act to which they refer are:

• LGA – meaning the Local Government Act 1993 (NSW)
• LGR – meaning the Local Government (General) Regulation 2005 (NSW)
• PEEA – meaning the Parliamentary Electorates and Elections Act 1912 (NSW)
• PEER – meaning the Parliamentary Electorates and Elections Regulation 2008 (NSW).

Section 6 – The Acts Interpretation Act 1901 does not apply

Section 6 is included to assist the reader by making it clear the Interpretation Act 1901 (Cth) does not apply to this Ordinance, rather the Interpretation Act 1979 (NI) applies to the extent that it can (see below).  The Interpretation Act 1979 (NI) provides it applies to ‘enactments’, and ‘enactments’ are defined by that act to include Ordinances made under section 19A of the Norfolk Island Act 1979 (Cth).

Although the Interpretation Act 1901 (Cth) does not apply to this Ordinance, it should be noted that many of the provisions contained in the Interpretation Act 1901 (Cth) do apply to section 19A Ordinances by virtue of section 8A of the Interpretation Act 1979 (NI).

The note with this section informs the reader that the Interpretation Act 1979 (NI) only applies to the extent permitted by Division 3 of Part 2 of the Ordinance, which is about the interpretation of the applied provisions. This means the applied provisions should be interpreted in the way they would be interpreted in NSW (except to the extent modified by this Ordinance), while the text of the Ordinance itself should be interpreted in light of the Interpretation Act 1979 (NI), but only to the extent that is permitted by Division 3 of Part 2 of the Ordinance.

Division 1—Application of NSW electoral law

Section 7 is the provision which applies those portions of New South Wales legislation which are relevant to the election of the NIRC.  In particular, the specific pieces of legislation applied by direct reference are the:

• Local Government Act 1993 (NSW) as in force on 13 November 2015
• Local Government (General) Regulation 2005 (NSW) as in force on 13 November 2015
• the Parliamentary Electorates and Elections Act 1912 (NSW) as in force on 13 November 2015
• Parliamentary Electorates and Elections Regulation 2008 (NSW) as in force on 13 November 2015

13 November 2015 has been chosen to fix the NSW law at a date. Even if there are future changes to NSW law after this Ordinance is made, the law as at 13 November 2015 will be available on the NSW legislation website (http://www.legislation.nsw.gov.au/), using the “historical versions” feature on the relevant page for each piece of NSW legislation. Subsection 14(2) of the Legislation Act 2003 prevents this Ordinance from adopting NSW law as in force from time to time.

Division 2—Modification of applied provisions

Subdivision A—General modifications

Division 2 contains the bulk of the modifications to the applied New South Wales provisions. 

8  Norfolk Island treated as one area, not divided into wards

Section 8 provides Norfolk Island is to be treated as one area, not divided into wards for the purposes of the election to be held on 28 May 2016.

9  References to councillor and civic office

Section 9 modifies the meaning of references in the applied provisions to ‘councillor’ and ‘civic office’.  These modifications are necessary as the NIRC will not be in existence at the time of the making of this Ordinance. Those people elected in the first election will have an entitlement to hold civic office and be a councillor of the NIRC, once the NIRC is established.  The planned date for establishment of the NIRC is 1 July 2016.

10  References to general manager

Section 10 provides that references in the applied provisions to ‘general manager’ should be taken to be references to the Executive Director.  It is intended the Executive Director will perform the role assigned by NSW legislation to the General Manager in the conduct of elections.

11  References to Electoral Commissioner or Electoral Commission

Section 11 provides that references to the Electoral Commissioner or the Electoral Commission should be read as a reference to a person or authority (including the Commonwealth Minister) performing any aspects of the role of the Electoral Commission/Electoral Commissioner for the election held on 28 May 2016.  Section 74 allows any or all powers, functions or duties of the Electoral Commissioner or Electoral Commission to be vested in a person or authority.

12  Certain references relating to council

This section essentially provides that references in the applied provisions to ‘council’ should be read as references to the Administration.  This is because the NIRC will not exist at the time the Ordinance is made or the election conducted. Therefore the relevant body for the purposes of these provisions is the Administration of Norfolk Island.

Subsections 12(3) and (4) also make it clear that employees or holders of an office or place of profit under a Territory authority as defined in the Norfolk Island Act 1979 are also taken to be employees or holders of an office or place of profit under the Administration, as the case may be.

13  References to police officers

This section provides that references to police officers in the applied provisions apply as if they are references to a member of the Police Force of Norfolk Island. This clause has been included to ensure that the definition of ‘police officer’ in the Interpretation Act 1987 (NSW) does not govern references to police officers in clauses 346, 349, 356T and 368 of the LGR. The Police Act 1931 (NI) provides for the Police Force of Norfolk Island.

14  References to statutory declarations

This section provides that references to statutory declarations should be read as if they were a reference to a statutory declaration under the Statutory Declarations Act 1959 (Cth).  This modification has been made because the definition of ‘statutory declaration’ in the Interpretation Act 1987 (NSW) depends on the operation of NSW Acts (for example the Oaths Act 1900 (NSW)), which will not be in force on Norfolk Island at the time the election is to be conducted.

15  References to roll of non-resident owners of rateable land

This section removes a reference to owners of rateable land. This change is made because there is presently no land rates system on Norfolk Island. This modification will allow eligible owners of land to apply to be on the non-residential electoral roll.

16  References to roll of occupiers and ratepaying lessees

This section is included to assist the reader. It reflects the fact that individuals will not be entitled to vote by virtue of being a ratepaying lessee. Ratepaying lessees are not included due to the fact that there is no NSW equivalent rating system on Norfolk Island, so there are no individuals in that category and it is redundant. Eligible occupiers of land and owners of land will still be able to enrol and vote for the first NIRC election.

17  Internal references to Acts and regulations containing the applied provisions

This section is a technical provision which intends to ensure that the references within the applied provisions are to be read as references to particular Acts and regulations as they apply because of section 7 of this Ordinance.

Subdivision B— Modifications of Part 1 of Chapter 10 of the LGA (Who may vote?) and related applied provisions

18  Modification relating to section 266 of the LGA (Who has the right to be enrolled as an elector?)

This section sets out the entitlement to enrol to vote. Essentially it requires a person to be at least 18 years of age and an Australian citizen (or a person to whom subsection 1A applies). In addition to these criteria, the person must meet one of the requirements set out in paragraphs (1)(a), (b) or (c).

Subsection (1A) also establishes another group of persons who may be entitled to enrol to vote. This is where the person is an eligible British subject and was on one of the electoral rolls specified in paragraphs (1A)(b)(i) and (ii) immediately before 26 January 1984.

These provisions relating to the age and citizenship requirements are modelled on section 93 of the Commonwealth Electoral Act 1918 (Cth) and designed to mirror, as far as possible, those entitlement arrangements. Paragraphs 18(1)(a) through (c) (inclusive) are modelled on the original text of paragraphs 266(1)(a) through (c) (inclusive) of the LGA. Entitlement to enrol in the first NIRC electoral roll is not linked to entitlement to vote in the Commonwealth House of Representatives as, at the time the Ordinance was made, enrolment to vote in federal elections is not compulsory for Norfolk Island residents.

20  References in Part 1 of Chapter 10 of the LGA to rateable land etc. and persons connected with such land

This section modifies provisions in the LGA relating to rateable land and persons connected with rateable land. The LGA as in force in NSW provides that certain owners of rateable land (including corporations and trusts) are eligible for inclusion on the non-residential electoral roll and therefore able to vote. Paragraph 20(a) removes the reference to ‘rateable’ because there is presently no land rates system on Norfolk Island. This modification will allow eligible owners of land to apply to be on the non-residential electoral roll.

Paragraph 20(b) removes a reference to ‘ratepaying lessee’, as this is not a category of persons who will be eligible to vote in the first NIRC election.

Paragraph 20(c) substitutes a reference to the ‘crown’ with a reference to the Administration, the Commonwealth or a statutory body representing the Administration or the Commonwealth. This modification is made to remove any doubt about whether the ‘crown’ referred to is the crown in the right of the Commonwealth or Norfolk Island or New South Wales.  

Paragraph 20(d) removes a reference to ‘rateable’ because there is no land rates system on Norfolk Island.

Paragraphs 20(e) and (f) remove references to ‘ratepaying lessee’, as this is not a category of persons who will be eligible to vote in the first NIRC election.

Paragraph 20(g) dis-applies the definition of ‘parcel of land’ for the purposes of the applied provision, because the definition contained in the dictionary to the LGA relates to land rates. There is no land rates system on Norfolk Island

Subdivision C—Modifications of Part 2 of Chapter 10 of the LGA (Who may be elected?) and related applied provisions

21  Modifications relating to section 275 of the LGA (Who is disqualified from holding civic office?) and related applied provisions

Paragraph 21(a) provides that a Magistrate of the Court of Petty Sessions of Norfolk Island and a Judge of the Supreme Court of Norfolk Island are disqualified from holding civic office (and therefore from being elected to the NIRC). This is equivalent to NSW disqualification provisions.

Paragraph 21(b) amends paragraph 275(1)(e) of the LGA to provide that offences committed under Chapter 4 of the Criminal Code 2007 (NI) or an equivalent offence of another State or Territory (within the preceding 5 years), are sufficient to disqualify a person from holding civic office.

Paragraph 21(c) amends the application of paragraph 275(1)(h) to provide that a person is disqualified from holding civic office if that person is incapable of being appointed as a director of a company under section 277 of the Companies Act 1985 (NI). This essentially mirrors the disqualification provision under 275(1)(h) of the LGA, but with a reference to the companies legislation relevant to Norfolk Island.

It should be noted that subsection 275(2) of the LGA is modified by subsection 12(3) to disqualify from civic office employees of the Administration and holders of offices of profit under the Administration. Even though the Administration will cease to exist on 1 July 2016, the modification of subsection 275(2) by subsection 12(3) will, in conjunction with subsection 276(1) of the LGA, prevent the election of persons who are such employees or office-holders at the time of the election. This is equivalent to NSW disqualification provisions.

Paragraph 21(d) removes a reference to ‘ratepaying lessee’, as this is not a category of persons who will be eligible to vote in the first NIRC election.

Paragraph 21(e) removes a reference to the word ‘rateable’, as there are no land rates on Norfolk Island.

22  Exclusion of section 277 of the LGA (May the holder of a civic office be re-elected?)

This section dis-applies section 277 of the LGA. As the election held under this Ordinance will be the first, there is no need for provisions relating to re-election.

Subdivision D—Modifications of Part 3 of Chapter 10 of the LGA (What is the system of election?) and related applied provisions

23  Exclusion of certain provisions of Part 3 of Chapter 10 of the LGA

This section dis-applies sections 279, 280, 281, 282, 283 and 284 of the LGA. Most of these sections are excluded for clarity, as they are irrelevant. In particular, this Ordinance will not provide for wards or the election of a mayor (either by electors of Norfolk Island or by elected councillors). It is intended the election of a mayor by the councillors will be dealt with under the Local Government Act 1993 (NSW) and Schedule 5 to the Local Government (General) Regulation 2005 (NSW) as they apply (with amendments) because of section 18A of the Norfolk Island Act 1979 (Cth) on and after 1 July 2016.

Subdivision E—Modifications of Part 4 of Chapter 10 of the LGA (When are elections held?) and related applied provisions

24  Modifications relating to sections 287 and 288 of the LGA (about timing of election of councillors)

This section amends references in the LGA which relate to the timing of elections.  These amendments are required because the first election will be held outside the usual timing for NSW local government elections.

The modifications to paragraphs 24(a) and (b) empower the responsible Commonwealth Minister to delay the election for up to 28 days after 28 May 2016, if the responsible Commonwealth Minister is of the opinion that holding the election on 28 May 2016 is impracticable or inconvenient.

25  Exclusion of certain provisions of Part 4 of Chapter 10 of the LGA

This section dis-applies subsection 288(3) and sections 289 and 290 of the LGA.

Subsection 288(3) is a provision relating to incumbent councillors, of whom there are none, as this election provides for the first NIRC election.

Section 289 relates to election of a mayor by the electors, which will not occur for the first election. 

Section 289 relates to the election of a mayor by the councillors. This provision is not required as it is intended the election of a mayor by the councillors will not be dealt with under the NSW laws applied by this Ordinance. Rather, the election of mayor by the councillors will occur under the Local Government Act 1993 (NSW) and Schedule 5 to the Local Government (General) Regulation 2005 (NSW) as they apply (with amendments) because of section 18A of the Norfolk Island Act 1979 (Cth) on and after 1 July 2016. As section 282 has been dis-applied there will be no mechanism for the election of the mayor until 1 July 2016.

Subdivision F—Modifications of Part 5 of Chapter 10 of the LGA (How are casual vacancies filled?) and related applied provisions

26  Modifications relating to section 291A of the LGA (Countback to be held)

This section modifies subsection 291A(1) of the LGA to allow for a countback to be held in certain circumstances, for example where a casual vacancy results from the death or resignation of a councillor.  The modifications are designed to deal with any vacancy which may occur before the NIRC is declared by a section 19A Ordinance under the Norfolk Island Act 1979.

27  Exclusion of certain provisions of Part 5 of Chapter 10 of the LGA

This item excludes provisions relating to the filling of casual vacancies. Apart from the countback provision modified by section 26 (above), it is intended that any future casual vacancies will be dealt with under the Local Government Act 1993 (NSW) and Schedule 5 to the Local Government (General) Regulation 2005 (NSW) as they apply (with amendments) because of section 18A of the Norfolk Island Act 1979 (Cth) on and after 1 July 2016

28  Modification relating to clause 285 of the LGR (Notification of vacancy)

This section modifies clause 285 of the LGR to remove the requirement that notice of a casual vacancy be given to the Director-General and the Secretary of the Local Government and Shires Association of New South Wales. This is because these positions do not exist in relation to Norfolk Island.

Subdivision G—Modifications of Part 6 of Chapter 10 of the LGA (How are elections conducted?) and related applied provisions

29  Exclusion of certain provisions of Division 1 of Part 6 of Chapter 10 of the LGA

This section dis-applies sections 296AA, 296 and 296A of the LGA.

Section 296AA contains a requirement for a council to pass a resolution at least 18 months before election day. This section is not required because there is no NIRC to pass the resolution.

Sections 296 and 296A are dis-applied because they contain provisions relating to elections administered by a general manager of the Council. As the first election will be administered by the Electoral Commissioner, these provisions are not required and so dis-applied.

30  Election to be administered by the Electoral Commissioner

This provision provides that the election on 28 May 2016 will be administered by the Electoral Commissioner.

31  Modifications relating to section 296B of the LGA (Elections administered by the Electoral Commissioner): access to records

This section amends the application of subsection 296B(5) of the LGA relating to the conduct of elections administered by the Electoral Commissioner and relates to the access of records of the Administration for the purposes of conducting the election.

The new subsection (5) entitles the persons listed in paragraphs (a) through (c) (inclusive) to access the records of the Administration, and requires the Administration to provide them with those records. Paragraph 5(a) provides that a person or authority that is performing any functions of the Electoral Commissioner is also entitled to access Administration records. Paragraph 5(b) provides the Executive Director, in performing any function of a general manager under Division 2 because of section 10, is entitled to access the records of the Administration. Paragraph 5(c) also provides that person performing the role of the returning officer and/or substitute returning officer is entitled to access Administration records.

This replaces a NSW provision which entitles only the returning officer and substitute returning officer to access any relevant records. The entitlement to access records held by the Administration has been expanded to more persons than under the LGA for two reasons. Firstly, records of the Council may be needed by a person performing a function of the Electoral Commissioner to determine a person’s entitlement to vote on the residential roll. This differs to NSW where entitlement to vote in local elections is generally determined by reference to the federal or state electoral rolls and other state sources of information. Secondly, the provision is designed to give reassurance to the Administration of Norfolk Island that granting access to records for the purposes of conducting the election, including to the Executive Director, is authorised by law. 

New subsection 5A would allow any person referred to in paragraphs 5(a), (b) or (c) to disclose information obtained in the course of exercising powers to the Australian Electoral Commission.

32  Other modifications relating to section 296B of the LGA (Elections administered by the Electoral Commissioner)

This section is an amendment making clear that the power of the Electoral Commissioner under paragraph 296B(6)(c) of the LGA to determine any matter not provided for in the LGA or the LGR also applies to any matter not provided for in this Ordinance. 

33  Exclusion of section 297 of the LGA (Delegation of functions by the Electoral Commissioner)

This section repeals a provision relating to delegation of the Electoral Commissioner’s functions.  This is done to avoid confusion with the delegation provision under section 74.

34  Modifications relating to section 298 of the LGA (Residential roll)

Paragraphs 34(a) and (b) modify section 298 of the LGA to allow the Electoral Commissioner to make use of the electoral roll that was used for Legislative Assembly elections for the purpose of establishing the residential roll for the election to be held on 28 May 2016. To avoid doubt, this modification does not require the Electoral Commissioner to make use of the electoral roll that was used for Legislative Assembly elections, and nothing in this section would prevent the Electoral Commissioner from establishing a new roll without reference to the Legislative Assembly electoral roll.

Paragraph 34(c) dis-applies provisions relating to the residential roll that relate to elections being administered by the General Manager of the council. These provisions are not required as the first election will be administered by the Electoral Commissioner.

It should be noted that section 298 of the LGA, applied to Norfolk Island by this Ordinance, contains a very high maximum penalty (1000 penalty units) for inappropriate disclosure of enrolment information. In addition, there are offences with a maximum penalty ranging between 100 and 1000 penalty units contained in clauses 284B, 284C, 375, 376, 377 and 393 of the LGR and section 66L of the PEEA).

The high penalties reflect the seriousness of the offences as they relate to offences with the potential to subvert the democratic process and undermine public confidence in the electoral system. The offences are also consistent with NSW law, which may be in force on Norfolk Island after 1 July 2016 by virtue of 18A of the Norfolk Island Act 1979. 

It should be noted that the Ordinance is being drafted for a single election event to be conducted in May 2016 and will be thereafter repealed (on 1 January 2017).  The penalty provisions are also reasonable in the circumstances given that the Norfolk Island Regional Council is analogous to NSW Local Governments, and hence it is appropriate to use NSW legislation.  

35  Modifications relating to section 299 of the LGA (Non-residential roll)

This section modifies the application of provisions relating to the non-residential roll.

Paragraph 35(1)(a) removes a reference to prior elections, as this will be the first election to the NIRC. The General Manager (which is to be read as ‘Executive Director’ because of section 10) will still be required under the applied provisions to prepare a roll of non-resident owners as soon as practicable.

Paragraph 35(1)(b) dis-applies subsection 299(3) of the LGA as it relates to elections administered by the General Manager only, and the election to be held under this Ordinance will be administered by the Electoral Commissioner.

Subsection 35(2) makes it clear that the reference to rateable land in subsection 299(1A) of the LGA is removed by subparagraph 35(1)(a)(i), rather than by section 15. 

36  Modifications relating to section 300 of the LGA (Roll of occupiers and ratepaying lessees)

This section modifies the application of provisions relating to the roll of occupiers and ratepaying lessees.

Paragraph 36(1)(a) removes a reference to prior elections, as this will be the first election to the NIRC. The General Manager (which is to be read as ‘Executive Director’ because of section 10) will still be required under the applied provisions to prepare a roll of land owners and occupiers as soon as practicable.

Paragraph 36(1)(b) dis-applies subsection 299(3) of the LGA as it relates to elections administered by the General Manager only, and the election to be held under this Ordinance will be administered by the Electoral Commissioner.

Subsection 36(2) makes it clear that the reference to ‘ratepaying lessees’ in subsection 300(1A) of the LGA is removed by subparagraph 36(2)(1)(a)(i), rather than by section 16.  

37  Modifications relating to section 303 of the LGA (Making of claims for inclusion in the roll): review of decisions

This section dis-applies a provision allowing an appeal to the NSW Civil and Administrative Tribunal for persons dissatisfied with an Electoral Commissioner or General Manager’s decision about their claim for inclusion on an electoral roll. It substitutes provisions allowing a dissatisfied person to appeal to the Court of Petty Sessions of Norfolk Island, which was the court that performed this review function under the repealed Legislative Assembly Act 1979 (NI). New subsection 303(3A) would provide that the Court may affirm or vary the decision, set aside the decision and substitute a new decision, or set aside the decision and remit the matter to the decision maker to reconsider it in accordance with any directions of the Court.

38  Other modifications relating to section 303 of the LGA (Making of claims for inclusion in the roll) and related applied provisions

Subsection 38 replaces a further reference to the NSW Civil and Administrative Tribunal with a reference to the Court of Petty Sessions.

39  Modifications relating to section 306 of the LGA (Nominations) and related applied provisions

This section amends the application of provisions in the LGR relating to nomination of candidates.

Subsection 39(1) dis-applies the requirement that the nomination forms display certain sections of the LGA. This is because some of the sections mentioned are repealed, others are partly irrelevant and others are modified. This paragraph also removes the statistical information section from the nomination form. The collection of this personal information would be of no practical benefit in relation to a single election on Norfolk Island.

Subsection 39(2) modifies the application of subclause 293(3) of the LGR which concerns the forfeiture of a deposit provide that if it is determined the deposit is to be forfeited prior to 1 July 2016 it will be forfeited to the Administration, otherwise it will be forfeited to the Commonwealth.

40  Modifications relating to section 308 of the LGA (Candidate information sheets) and related applied provisions

This section removes a reference in the LGR to a roll kept under the Parliamentary Electorates and Elections Act 1912 (NSW), as this roll will not exist in respect of Norfolk Island.

41  Modifications relating to sections 309 and 311 of the LGA and related applied provisions

This section dis-applies provisions relating to the death of a nominated candidate before the day when the poll closes.  Subsection 41(2) specifies that the rules (which can be made under section 77) can make provision for the conduct of an election should a nominated candidate die before polling day.

42  Modifications relating to conduct of contested elections

This section makes modifications of the LGR in relation to the conduct of contested elections.

Paragraphs 42(a), (c) and (d) relate to voting and modify the types of identification that a person who is not enrolled for the area can show at the polling place for the election to be allowed to vote.  A person who is not enrolled for the area, but who claims to be entitled to enrol on the residential roll for the area is permitted to vote at the election in accordance with subclause 320C(1) of the LGR.  As the heading to clause 320C indicates, such people may be enrolling for the first time, re-enrolling or transferring enrolment. Specifically the modifications will allow a person to present to an election official either a Norfolk Island driver’s licence, or both a form of photographic identification and written evidence from a governmental authority of a person’s address.  If a person does not have a driver’s licence, this modification will allow that person to present, for example, a document issued by the Norfolk Island Administration showing a Norfolk Island address along with a passport or other photographic identification. Combined, these two documents will be a valid form of identification for the purposes of 320C of the LGR. This change has been made in recognition of the fact that not all Norfolk Island residents may possess a driver’s licence, and unlike in New South Wales there are no government issued photo identification cards issued by the Administration of Norfolk Island. Paragraph 42(d) modifies paragraph 320C(3)(c) of the LGR to require the person  to show evidence of an address on Norfolk Island instead of necessarily the place specified in the claim for enrolment. This change is made in recognition of the fact that a person on Norfolk Island who does not have a driver’s licence may not have an alternate form of written documentation proving his or her actual street address. 

Paragraphs 42(b) modifies paragraph 313(g) of the LGR to include a reference to a person being kept in a place that has been declared to be a gaol, prison or house of detention. This provision will essentially qualify people being held in such a place for a postal vote.

Paragraph 42(e) removes a reference to New South Wales which is not relevant to the election on Norfolk Island.

Paragraph 42(f) modifies the question to be asked by electoral officials to make it clear that the relevant law is that which applies because of the Norfolk Island Regional Council Preparatory Election Ordinance 2016.

Paragraph 42(g) dis-applies clause 352 of the LGR, as this clause is only relevant to elections held where there is a direct election of the mayor by the voters. The first election to the NIRC will not involve direct election of the mayor.

Paragraphs 42(h), (i) and (k) replace references to ‘the council’ with references to the ‘Administration’.

Paragraph 42(j) removes references to positions which do not exist in respect of Norfolk Island.

Paragraph 42(l) removes a reference to ‘ratepaying lessee’, as this is not a category of persons who will be eligible to vote in the first NIRC election. A person will need to be a resident, non-resident owner or an occupier to be eligible to vote.

Paragraph 42(m) removes a reference from the postal vote declaration form to a person being enrolled in the State of New South Wales or the Commonwealth electoral roll, and substitutes it with a reference to being entitled to be enrolled on the electoral roll. This change is made in recognition of the fact that most Norfolk Islanders would not be eligible to enrol on the NSW electoral roll and that enrolment on the Commonwealth electoral roll is not compulsory for Norfolk Islanders at the time the Ordinance takes effect. 

43  Modifications relating to uncontested elections

Paragraph 43(a) removes references to positions which do not exist in respect of Norfolk Island.

Paragraph 43(b) provides that inserting a copy of the written declaration of uncontested election in the Norfolk Island Gazette or a newspaper circulating in Norfolk Island is sufficient to satisfy the requirement of paragraph 296(3)(a) of the LGR.

Paragraph 43(c) replaces a reference to ‘the council’ with a reference to the ‘Administration’.

44  Modifications relating to section 314 of the LGA (Penalty notice to be issued for failure to vote) and related applied provisions

Paragraph 44(a) removes a reference to penalty notices being in the form prescribed by the regulations.

Paragraph 44(b) modifies the LGA to provide that a penalty notice is to be paid to the Administration prior to 1 July 2016, otherwise it will be paid to the relevant Commonwealth department.

Paragraph 44(c) removes a reference to the Fines Act 1996 (NSW), as this particular law of New South Wales will not be applied to Norfolk Island at the time of the election to be held under this Ordinance.

Paragraph 44(d) dis-applies a clause relating to the issuing of penalty notices and the prescribed form. The prescribed form contains a number of features which are not relevant to Norfolk Island. Any penalty notices issued in relation to the election will be issued in a form determined by the Electoral Commissioner.

45  Modifications of section 317 of the LGA (Validity of elections)

This item removes a provision allowing the Governor of New South Wales to issue a conclusive declaration that notwithstanding a fault the election result stands. This change is made to avoid having the responsible Commonwealth Minister effectively adjudicate an election conducted on his behalf. 

46  Exclusion of section 318 of the LGA (Lapsed or void election)

This section dis-applies section 318 relating to a lapsed or void election.  This is because there will be only one attempt to hold an election under this Ordinance, with any subsequent elections to be held under the local government elections provisions in force by virtue of section 18A of the Norfolk Island Act 1979 (Cth).

Subdivision H—Modifications of Part 7 of Chapter 10 of the LGA (Political parties) and related applied provisions

47  Modifications relating to definition of political party in the Dictionary at the end of the LGA

This section removes a reference to the NSW Parliament, which is not relevant to Norfolk Island, and makes it clear that one of the purposes or objectives of a political party is to be the promotion of election to the NIRC under the laws applied by this Ordinance.

48  Modifications relating to section 320 of the LGA (Registration of political parties), Part 4A of the PEEA (Registration of parties) and the PEER

Subsection 48(1) modifies the application of subsection 320(2) of the LGA to the election of the NIRC on Norfolk Island.

Paragraph 48(1)(b) removes references to the New South Wales Parliament, as these are not relevant to Norfolk Island.

Paragraph 48(1)(ba) makes it clear that references to a person who is entitled to be enrolled under section 266 applies subject to the modifications made by section 18 of this Ordinance.

Paragraph 48(1)(bb) provides that references to New South Wales are to be read as references to Norfolk Island.

Subsection 48(2) dis-applies some further sections of the PEEA relevant to the registration of political parties. The section would dis-apply the definition of ‘address’ in the PEEA, which excludes post office box number. This change is made in recognition of the widespread use of post office boxes on Norfolk Island. Subsection 66D(2)(h) and (e) of the PEEA is also dis-applied as it refers to the Election Funding Act 1981 (NSW) which will not be in force on Norfolk Island at the time the election takes place. Subsections 66FA(1), (3), (4) and (5) are also dis-applied as they require a 12 month gap between registration and entitlements arising from the registration of a political party. Since there isn’t 12 months between the making of this Ordinance and the election, this provision is dis-applied to allow Norfolk Island political parties to participate in the NIRC election. Subsection 66H(3C) removes a reference to section 66FA which is dis-applied by this section. The remainder of the references to provisions in the PEEA in this subsection were already dis-applied in relation to local government political parties by the LGA.

Subsection 48(3) modifies the LGA in order to modify the PEEA so as to remove a requirement that members of the party on whom the party relies for the purpose of qualifying as an eligible party be enrolled to vote. The requirement is not appropriate to Norfolk Island as it requires the people signing the declaration to be on the relevant electoral roll, which is not possible for the first NIRC election as the electoral roll will not be fully established by the time the process for the registration of political parties will need to commence.

Subsection 48(4) removes a form and a reference to that form in clause 33 of the PEER. The form being dis-applied is the party membership declaration form. This change is consequential to new paragraph (ga) applied by subsection (3).

Subdivision I—Modifications of Part 9 of Chapter 10 of the LGA (Dismissal from civic office) and related applied provisions

49  Modifications of section 329 of the LGA (Can the holder of a civic office be dismissed?)

This section dis-applies references to the NSW Civil and Administrative Tribunal, and substitutes them with references to the Supreme Court of Norfolk Island. This court had jurisdiction to hear similar cases under the Legislative Assembly Act 1979 (NI).

Subdivision J—Modifications of Division 9A of Part 11 of the LGR (Provisions related to activities during regulated periods) and related applied provisions

50  Modifications relating to Division 9A of Part 11 of the LGR

This section modifies Division 9A of Part 11 of the LGR, which relate to activities during the ‘regulated period’. ‘Regulated period’ for an election, as defined in clause 356A of the LGR, means the period starting with the closing date and ending at 6 pm on election day, and all days to which polling for the election is adjourned.

Paragraph 50(a) modifies provisions relating to the display of posters containing or consisting of electoral material and any writing, drawing or depicting electoral matter. The modification ensures that such posters and writings, drawing or depictions cannot be displayed on premises leased, occupied, used or controlled or managed by the Commonwealth or an authority of the Commonwealth.

Paragraph 50(b) modifies provisions relating to the display of posters containing or consisting of electoral material and any writing, drawing or depicting electoral matter. The modification ensures that such posters and writings, drawing or depictions cannot be displayed on premises leased, occupied, used or controlled or managed by the Administration.

Paragraph 50(c) modifies clause 356GB of the LGR to ensure that ‘Australia’ as used in that section includes Norfolk Island. This means that a Norfolk Island residential address will be a valid address for the purposes of appearing in the publication of a paid electoral advertisement on the internet.

Paragraph 50(d) dis-applies a reference to the Environmental Planning and Assessment Act 1979 (NSW), which will not be in force at the time the election is held. The reference to this Act is replaced with the word ‘used’ so that the provision relating to the display of electoral matter on to a screen in a theatre or public hall remains operable in relation to Norfolk Island.

Paragraphs 50(e) and (f) modify clause paragraphs 356L(b) and (c) of the LGR to include the Norfolk Island Advisory Council and Norfolk Island Advisory Councillors in the extended operation of subdivision 5 of the LGR, so as to provide that any express or implicit reference to or comment on the Advisory Council or Advisory Councillors is considered an electoral matter for the purposes of subdivision 5. This ensures the Advisory Council is treated consistently under this provision with previous Norfolk Island Legislative Assemblies and Legislative Assembly members, comment on whom is considered electoral matter by virtue of paragraphs 356(L)(1)(d) and (e).

Subdivision K—Modifications of other applied provisions

51  Exclusion of section 691 of the LGA (Proceedings for offences)

This section dis-applies a provision conferring jurisdiction on the NSW Local Courts. Under section 36 of the Court of Petty Sessions Act 1960 (NI), the Norfolk Island Court of Petty sessions has jurisdiction to hear offences against the applied provisions.

52  Modification of section 710 of the LGA (Service of notices on persons)

This section makes a number of amendments to section 710 of the LGA, which relates to the service of notices on persons.

Paragraph 52(a) replaces references to New South Wales with references to Norfolk Island.

Paragraph 52(b) replaces references to the council with references to the Administration.

Paragraph 52(c) provides that a reference to the advertisement in the approved form published in a newspaper also includes a reference to a notice published in the Norfolk Island Government Gazette or in a newspaper circulating in Norfolk Island. This change is made in recognition of the fact that there is no daily newspaper which could unarguably be said to be circulating in Norfolk Island. The local paper is still able to be used, but should a statutory timeframe require the placing of the advertisement on a particular date, that advertisement may be placed in the Norfolk Island Government Gazette, which is widely available on the Island.

53  Modification of clause 275 of the LGR (Definitions)

This section changes a reference to the election manager’s website with a reference to the website of either the Administration, or the relevant Commonwealth Department, or the website of a person or authority in whom a power, function or duty is vested or delegated under section 74 of this Ordinance. The requirement to publish material will be satisfied by the material being placed on any one of these websites. The change is required because there is no identifiable council or Electoral Commission website in respect of Norfolk Island. Therefore a degree of flexibility has been allowed in relation to where the relevant material is published.

54  Modification of clause 277B of the LGR (Advertising by election manager)

This section provides that a reference to notices published in a newspaper also includes a reference to a notice published in the Norfolk Island Government Gazette. This change is made in recognition of the fact that the newspaper with the widest distribution on Norfolk Island is not a daily paper. The local paper is still able to be used, but should a statutory timeframe require the placing of the advertisement on a particular date, that advertisement may be placed in the Norfolk Island Government Gazette, which is widely available on the Island.

55  Modifications of clause 280 of the LGR (Advertising of enrolments)

Paragraph 55(a) removes a reference to ‘ratepaying lessees’ as this is not a category of persons who will be eligible to vote in the first NIRC election.

Paragraph 55(b) provides that a reference to advertising enrolment published in a newspaper also includes a reference to a notice published in the Norfolk Island Government Gazette. This change is made in recognition of the fact that the newspaper with the widest distribution on Norfolk Island is not a daily paper. The local paper is still able to be used, but should a statutory timeframe require the placing of the advertisement on a particular date, that advertisement may be placed in the Norfolk Island Government Gazette, which is widely available on the Island.

56  Modifications of clause 281 of the LGR (Enrolment claims and objections)

This section removes a reference to ‘ratepaying lessee’ as this is not a category of person who will be eligible to vote in the local government election. It also removes a reference to ‘rateable land’. This change is made because there is presently no land rates system on Norfolk Island. Eligible owners of land can still apply to be on the non-residential electoral roll.

57  Modifications of clause 288 of the LGR (Notice of election and call for nomination proposals)

This section provides that a reference to giving notice of election and call for nomination proposals being published in a newspaper also includes a reference to a notice published in the Norfolk Island Government Gazette. This change is made in recognition of the fact that the newspaper with the widest distribution on Norfolk Island is not a daily paper.  The local paper is still able to be used, but should a statutory timeframe require the placing of the advertisement on a particular date, that advertisement may be placed in the Norfolk Island Government Gazette, which is widely available on the Island.

58  Modifications of clause 300 of the LGR (Notice of contested election): publication of notice

This section provides that a reference to giving notice of contested election also includes a reference to a notice published in the Norfolk Island Government Gazette. This change is made in recognition of the fact that the newspaper with the widest distribution on Norfolk Island is not a daily paper.  The local paper is still able to be used, but should a statutory timeframe require the placing of the advertisement on a particular date, that advertisement may be placed in the Norfolk Island Government Gazette, which is widely available on the Island.

59  Other modifications of clause 300 of the LGR (Notice of contested election)

This section provides that a reference to giving notice of contested election also includes a reference to a notice published in the Norfolk Island Government Gazette. This change is made in recognition of the fact that the newspaper with the widest distribution on Norfolk Island is not a daily paper.  The local paper is still able to be used, but should a statutory timeframe require the placing of the advertisement on a particular date or within a particular timeframe, that advertisement may be placed in the Norfolk Island Government Gazette, which is widely available on the Island.

60  Modifications of clause 317 of the LGR (Issue of postal ballot-paper)

This section modifies the LGR to allow the returning officer to nominate more than one address as the address of the returning officer. This modification may be used, for example, should the returning officer decide to have one address on mainland Australia and one on Norfolk Island.

61  Modifications of clause 318 of the LGR (Postal voting procedure)

This section modifies clause 318 of the LGR to provide that, should the returning officer nominate a place where postal votes may be received, an envelope either containing or purporting to contain a ballot paper will be deemed received by the returning officer at the time it arrives at that nominated place. This would allow, for example, a returning officer to nominate an address on the mainland at which postal ballots may be received. Any ballot arriving at this place by the specified time will be taken to have been received by the returning officer, even if the returning officer is not physically present at that place.

62  Modifications of clause 356 of the LGR (Declaring the election)

This section provides that a reference to declaring the election also includes a reference to a notice published in the Norfolk Island Government Gazette. This change is made in recognition of the fact that the newspaper with the widest distribution on Norfolk Island is not a daily paper.  The local paper is still able to be used, but should a statutory timeframe require the placing of the advertisement on a particular date, that advertisement may be placed in the Norfolk Island Government Gazette, which is widely available on the Island.

63  Modifications of clause 356GB of the LGR (Publication of paid electoral advertisements on the internet)

Provides that, for the purposes of clause 356GB(3) of the LGR the word ‘address’ includes a post office box located on Norfolk Island. This is in recognition of the fact that post office boxes are the most commonly used form of address in Norfolk Island.

64  Exclusion of certain provisions of Division 11 of Part 11 of the LGR (Miscellaneous)

This section dis-applies clause 393A, which requires a general manager to report on an election administered by the general manager. This provision is not required for the first NIRC election as it will be administered by the Electoral Commissioner.

It also dis-applies clause 393B of the LGR which relates to the exercise of council functions during caretaker period. This provision is not required as the first NIRC will not be in caretaker mode prior to its establishment under a future law.

65  Modifications of clause 393AA of the LGR (Electoral Commissioner to report on election)

This section modifies the application of clause 393AA of the LGR to require the Electoral Commissioner to prepare a written report on the conduct of the election. This report must be prepared and placed on a website within 6 months of the election day, unless the Commonwealth Minister is satisfied that special circumstances exist.

66  Further modifications of clause 393AA of the LGR

This section further amends clause 393AA of the LGR to specify that a report on the conduct of the election may contain recommendations for the conduct of future local government elections in relation to Norfolk Island.

67  Modifications of Form 1 in Schedule 11 to the LGR (Request for omission or removal of place of living from roll (non-resident electors))

This section removes the NSW Statutory Declaration form from the back of a form that contains a request for omission or removal of place of living from the electoral roll (non-resident electors). This is because the NSW Statutory Declaration depends on the operation of NSW Acts (especially the Oaths Act 1900 (NSW)), which will not apply in Norfolk Island at the time of the election. Individuals seeking non-inclusion of their place of living from the electoral roll will be able to submit the request without a statutory declaration.

68  Modification of section 66DA of the PEAA as modified by the LGA

This section provides that a reference in section 66D of the PEEA also includes a reference to a notice published in the Norfolk Island Government Gazette. This change is made in recognition of the fact that the newspaper with the widest distribution on Norfolk Island is not a daily paper.  The local paper is still able to be used, but should a statutory timeframe require the placing of the advertisement on a particular date, that advertisement may be placed in the Norfolk Island Government Gazette, which is widely available on the Island.

Subsection 68(2) is intended to make clear that subsection 68(1) applies even though the reference to NSW is already modified by 48(1).

Subdivision L—Modifications prescribed by the rules

69  Modifications prescribed by the rules

This section provides that the applied provisions apply with any modifications prescribed by the rules. This means that the rules (which can be made under section 77) are able to supplement or modify the text of the applied provisions as required. It should be noted paragraph 77(2)(d) prevents the rules from directly amending the text of this Ordinance, as distinct from the applied provisions.

Subdivision M—Miscellaneous

70  This Division has effect despite definitions in the applied provisions

This section provides that this division has effect despite any definition in the applied provisions. This means that where there is a definition in the applied provisions which conflicts with a provision in this division, the meaning ascribed to the term should be the meaning ascribed by this division.

71  References in this Division to the applied provisions applying

This section provides that references in this Division to the applied provisions applying is to those provisions which apply by virtue of section 7 of this Ordinance. This section ensures that provisions which may apply from 1 July 2016 by virtue of section 18A of the Norfolk Island Act 1979 (Cth) are not affected by this Division.

Division 3—Interpretation of applied provisions

72  Interpretation of applied provisions

Subsection 72(1) provides that the applied provisions (with the modifications set out in Division 2) should be interpreted in the same way as they would be interpreted as laws of New South Wales.

Paragraph 72(2)(a) limits the effect of subsection 72(1), by making it clear that subsection 72(1) only has effect so far that it is consistent with the interpretation of the applied provisions under section 7 with the modifications set out in Division 2 of this Ordinance. This means that if there is any conflict between the way a law would be interpreted in NSW and the applied provisions as modified by Division 2, the meaning ascribed should be consistent with the applied provisions as modified by Division 2. 

Paragraph 72(2)(b) limits the effect of subsection 72(1) by making it clear that section 7 has effect subject to the definitions section of this Ordinance and this part of the Ordinance. This means that if there is any conflict between the way a law would be interpreted in NSW and the provisions contained in the definition section of this Ordinance or Part 2, the meaning ascribed should be consistent with the definitions section of this Ordinance and/or Part 2 of this Ordinance, as the case may be.

A note has been included to assist readers in understanding the operation of this subsection 72(2).

Subsection 72(3) provides that subsection 72(1) has effect, subject to the limitations expressed in subsection 72(2), despite the Interpretation Act 1979 (NI) except for section 17 of that Act (which does apply in relation to interpretation of the applied provisions).  This means provisions should be interpreted as they would under NSW law, including the Interpretation Act 1987 (NSW), except where they relate to section 17 of the Interpretation Act 1979 (NI) or where that interpretation would conflict with the definitions section of this Ordinance (as per paragraph 72(2)(a)), or the definitions section or Part 2 of this Ordinance (as per paragraph 72(2)(b)).

Subsection 72(4) is a clause which has been included to assist the reader. It makes it clear that nothing in section 72 affects the interpretation of a law which may be in force in Norfolk Island from 1 July 2016 under section 18A of the Norfolk Island Act 1979 (Cth), apart from section 7 of this Ordinance. For example, should there be provisions relating to the conduct of local government elections in force from or after 1 July 2016 by virtue of section 18A of the Norfolk Island Act 1979 (Cth), the interpretation of those provisions will not be affected by anything in section 72.

73  References in applied provisions to time are to Norfolk Island time

This section is included to assist the reader, and makes it clear that the applied provisions are a legal instrument for the purposes of the Norfolk Island Standard Time Ordinance 2015.  The note explains this is to ensure that expressions of time in the applied provisions are to be read as reference to that time by standard time in Norfolk Island.

Part 3—Miscellaneous

74  Powers, functions and duties of the Electoral Commissioner and the Electoral Commission under the applied provisions

Subsection 74(1) is a vesting provision. It provides that for any power relating to Norfolk Island which may be vested in the Electoral Commissioner or the Electoral Commission of New South Wales, that power is instead vested in the Commonwealth Minister.  This provision means the Commonwealth Minister is ultimately responsible for performing the role of Electoral Commissioner and Electoral Commission on Norfolk Island.

Subsection 74(2) is a provision allowing the responsible Commonwealth Minister to direct in writing that the power is also vested in a specified person or authority, or to delegate the power to a specified person. In practice only an authority or person with experience in the conduct of elections would have powers delegated to them or vested in them under this provision.

Subsection 74(3) allows a person or authority in whom power is vested under paragraph (2)(a) to further delegate the power(s). This is only permitted in situations where the Commonwealth Minister has authorised further delegation of the power.

Subsection 74(4) provides that an instrument may identify a power by reference to a certain class of powers. This provision has been included to make it clear that the vesting or delegation of powers to an individual or authority need not specify the precise powers being delegated. Rather, the instrument can be drafted in a general fashion to refer to general classes of powers, or to all powers associated with the position.

Subsection 74(5) provides that the validity of the exercise of a power or law under this section is not affected by the failure of the person or authority to hold a qualification that would generally be required under the laws in force in New South Wales. This provision is included to allow flexibility in the delegation or vesting of power by the responsible Commonwealth Minister and reflects the reality that a person or authority who has power delegated or vested in them under this section may not, although qualified to perform the role, meet the entirety of the qualification provisions for a person who would exercise those powers under NSW laws.

Subsection 74(6) provides that this section does not limit the operation of subclause 275(3) of the LGR, which provides that in Part 11 of the LGR a reference to the Electoral Commissioner includes a reference to the returning officer where the Commissioner authorises the returning officer to exercise a specified function conferred or imposed by that Part.

Subsection 74(7) contains definitions relevant to this section, which are ‘authority’ and ‘power’.

75  Authorisation to collect, use and disclose personal information

Section 304 authorises certain persons to collect, use and disclose personal information in accordance with the persons’ functions under the provisions applied by the Ordinance. The list of people so authorised are in paragraphs (a) through (e) (inclusive).

76  Repeal of this Ordinance

Section 76 provides the Ordinance is to be repealed at the start of 1 January 2017.  This is because the Ordinance is intended to be used for a single election only, to be held on 28 May 2016. The Ordinance extends to 1 January 2017 to allow any residual functions following the first NIRC election to be performed. For example, a report on the election must be produced within 6 months of election date, and the Electoral Commissioner may issue fines for failing to vote in the election. The Ordinance therefore continues in force until 1 January 2017 to avoid any doubt about the validity of these functions which may need to take place after the election. 

77  Rule-making power

This section contains a rule making power to allow the Commonwealth Minister to, by legislative instrument, make rules on matters related to the Ordinance.  Subsection 77(2) is included to assist readers and states those things that the rules may not do such as create an offence or impose a tax.