December 4

Norfolk Island and the Constitution

I was asked recently whether Norfolk Island was subject to the Australian Constitution.

I replied that since 1914, Norfolk Island has been a Territory of the Commonwealth of Australia.

It is currently administered under the Norfolk Island Act,  1979. This Act was made under section 122 of the Constitution which provides that the Federal Parliament may make laws for the government of any territory surrendered by any State or placed by The Queen under the authority of and accepted by the Commonwealth.

The Administrator of Norfolk Island is appointed by the Governor General, as advised by the relevant minister. He remains the senior Commonwealth Government representative in the Territory.

The Legislative Assembly’s powers are set out in the Act. These allow for its power to raise its own revenue.

The Commonwealth has power to override enactments of the Legislative Assembly.

Under the Act, then, the island is a self-governing territory of Australia.

However some Norfolk Islanders claim that it was actually granted independence at the time Queen Victoria granted permission to Pitcairn Islanders to re-settle there.

This view is not the view of the Australian Parliament, successive Australian Governments, and of the final authority in the interpretation of the Constitution, the High Court of Australia.

The case was Berwick Limited v R R Gray Deputy Commissioner of Taxation, decided in 1976.

The second paragraph of the judgement of the Chief Justice, Sir Garfield Barwick, succinctly states the position :

“In my opinion, Norfolk Island is part of the Commonwealth. The legislative Power given by s. 51(ii.) of the Constitution is exercisable with respect to The income of residents of Norfolk Island. If it be thought that the Income Tax Assessment Act, 1936-1973 (Cth) must be placed upon the legislative power granted by s. 122 of the Constitution, in so far as it relates to the income of persons resident in Norfolk Island, it is not a valid objection to the statute that revenue derived under the Act from residents of Norfolk Island is not of necessity expended or to be expended in or for the benefit of Norfolk Island.”

Until next time,

David Flint


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