Droit de vote des étrangers à Norflok (Océan Pacifique)

Suffrage Universel
Droit de vote en Australie

Droit de vote et d'éligibilité des étrangers dans l'île de Norfolk

Le territoire extérieur australien de l'île de Norfolk, initialement peuplée de descendants de mutins de la Bounty venus de Pitcairn, reconnaît le droit de vote et d'éligibilité au parlement local à toute personne résidant sur l'île depuis 900 jours, sans condition de nationalité ni de réciprocité. L'inscription sur les listes électorales est obligatoire pour tout résident, et le vote l'est également. Jusqu'au milieu des années 1980, ces droits étaient réservés aux résidents de nationalité australienne ou britannique (British subjects). La clause des 900 jours a été introduite parce que cela laisse le temps aux nouveaux venus "de comprendre les différences entre l'île de Norfolk et d'autres endroits", et de cesser de faire usage de l'expression "de là où je viens" (back home) qui fait grincer les dents des Norfolkiens parce qu'"elle est généralement le début d'une affirmation qui fait référence à combien c'est mieux là d'où ils sont venus et comment l'île de Norfolk devrait changer pour leur convenir" (Norfolk Island Select Committee - The Reason Why).

Le gouvernement australien tente depuis les années 1990 d'obliger Norfolk à s'aligner sur la législation australienne en la matière, en partie parce que des Australiens qui viennent s'établir à Norfolk n'ont le droit de vote qu'au bout de ces deux ans et demi alors que des étrangers plus anciennement établis l'ont, et siègent même au parlement local. Cette ingérence du "Commonwealth" (la dénomination officielle de l'Australie) a provoqué de vives réactions locales (voir e.a. Norfolk Island's Select Committee into Electoral and Other Matters).

Pierre-Yves Lambert

http://wopared.aph.gov.au/senate/committee/scrutiny/bills99/rep99-9.htm

Scrutiny of Bills Ninth Report of 1999

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

NINTH REPORT OF 1999

26 May 1999

Norfolk Island Amendment Bill 1999

Introduction

The Committee dealt with this bill in Alert Digest No. 6 of 1999, in which it made various comments. The Minister for Regional Services, Territories and Local Government has responded to those comments in a letter dated 13 May 1999. A copy of the letter is attached to this report. An extract from the Alert Digest and relevant parts of the Minister's response are discussed below.

Extract from Alert Digest No. 6 of 1999

This bill was introduced into the Senate on 31 March 1999 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Regional Services, Territories and Local Government]

The bill proposes to amend the Norfolk Island Act 1979 to:

allow Commonwealth oversight of firearms legislation on Norfolk Island;
provide for Deputy Administrators to be appointed by the Federal Minister responsible for Territories rather than the Governor-General;
extend the right to vote in Legislative Assembly elections to all Australian citizens ordinarily resident on the Island;
establish Australian citizenship as a qualification for enrolment and election to the Legislative Assembly; and
preserve the existing enrolment rights of enrolled non-Australian citizens.

The rights and liberties of electors

Schedule 1, items 5, 7 and 9

Items 5, 7 and 9 of Schedule 1 to this bill propose to insert new paragraphs 38(ba), 39(2)(da) and 39A(1)(b) in the Norfolk Island Act 1979. These new paragraphs will require those who wish to stand for election to the Norfolk Island Legislative Assembly (the Assembly), and those who wish to vote in elections for that Assembly, to be Australian citizens.

The Explanatory Memorandum notes that the Norfolk Island Act 1979 currently provides that a person may stand for election to the Assembly if he or she is at least 18 years of age, is entitled to vote at elections, and has been ordinarily resident on the Island for 5 years immediately preceding the date of nomination. The Legislative Assembly Act 1979 (Norfolk Island) provides that a person is qualified to enrol where that person is at least 18 years of age, and has been present on the Island for 900 days during the period of 4 years immediately preceding their application for enrolment.

The Explanatory Memorandum goes on to note that the 900 day qualifying period for enrolment on Norfolk Island far exceeds the one month period that applies to the Commonwealth and in all States and Territories on the mainland (with Tasmania having a qualifying period of 6 months). It also notes that the Assembly is the only Australian legislative body where non-Australian citizens are entitled to enrol and stand for election. Finally, on this issue, the Explanatory Memorandum notes that the enrolment rights of non-Australian citizens currently on the electoral roll will be preserved, but that the proposed amendments will apply to candidates and voters in the future.

This bill will effectively override subsection 6(1) of the Legislative Assembly Act 1979 (Norfolk Island). In Alert Digest No 7 of 1996, the Committee outlined a number of concerns raised by the Euthanasia Laws Bill 1996, which similarly proposed to overturn a law duly passed by a Territory Assembly. Specifically, the Committee noted that the Territory Assemblies are all elected democratically on a universal adult franchise. The Euthanasia Laws Bill seemed "to take away from the people living within those democracies an ability they now have to elect an assembly with power to legislate about a matter of great moment".

The Committee has received representations from the Government of Norfolk Island which express similar views about this bill (copy appended to this Digest). Specifically, the Island's Chief Minister questions the urgency of the legislation, which is based on proposals first advanced in 1991, and observes that the proposals were rejected in a local referendum in August 1998. He goes on to state that requiring all residents of Norfolk Island to become Australian citizens in order to vote in local elections is "of utmost concern" to the people of the Island, and that "it is not proper for the Commonwealth of Australia to interfere in our local electoral laws".

Norfolk Island enjoys an unusual status as an External Territory under the authority of Australia and attached to it only by historical accident and geographic proximity. The Commonwealth of Australia finds our status "an anomaly" given that we pay no taxes, are not represented in the Australian parliament, receive no medicare benefits, nor social security. We prefer it that way and regard it as unique. We have our own Parliament and Government. We are self-sufficient, relying largely on tourism for our income and levying local taxes to support social welfare, health, education, and a range of local government functions.

For the past twenty years we have been moving progressively toward full self government. This has been a successful transition and we anticipate a harmonious relationship with Australia during the final phases of transition.

It has, therefore, been both confrontational and provocative for the Commonwealth of Australia to pursue a course of action which few on the Island would support and which, in essence, achieves nothing of consequence for either Australia or Norfolk Island.

Our residency qualifications prior to voting are no more onerous than those of Australia. In Australia you must be resident for 2 of the previous 5 years (including 12 continual months in the past 24 months) in order to become a citizen and vote. On Norfolk you must be resident for 2 years and five months in order to vote. Our immigration laws are similar to Australia's but we have much stricter residency requirements.

We do not think transient Australians have any more real place or interest voting in our local elections than we do if temporarily resident in Australia for the purposes of business or study …

Approximately one-quarter of our residents are not Australian citizens, and do not choose to alter their citizenship status. Non-Australian citizens would no longer be able to be enrolled if the proposed amendments succeed.

The Committee, therefore, seeks the Minister's advice on the concerns expressed by the Chief Minister of the Government of Norfolk Island, which address the effect of the bill on the rights and liberties of electors on the Island, and also on the relationship between this bill and Norfolk Island's transition to self-government.

Pending the Minister's advice, the Committee draws Senators' attention to the provisions, as they may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the Committee's terms of reference.

Relevant extract from the response from the Minister

Australian citizenship – Voting & Membership of the Territory Assembly

In summary, the proposed changes will:

(i) give Australian citizens on Norfolk Island the right to enrol to vote at Assembly Elections (after 6 months residence on the Island);

(ii) make Australian citizenship a prerequisite for new enrolments to vote;

(iii) preserve the enrolment and voting rights of persons already on the electoral roll, irrespective of citizenship; and

(iv) make Australian citizenship a prerequisite for standing for election to the Legislative Assembly.

I note the preliminary observation in the Committee's Alert Digest 6/99 that "the provisions may be considered to trespass unduly on personal rights and liberties". On the contrary, they will extend to Australian citizens in this part of Australia personal rights and liberties already enjoyed by all Australian citizens in every other Australian jurisdiction. The personal rights and liberties of foreigners in the Territory will be preserved to the extent that persons already enrolled to vote in Norfolk Island Legislative Assembly elections will have their enrolments preserved, irrespective of citizenship. Further, persons who are already Members of the Assembly will be entitled to serve out in full the terms for which they have been elected, again irrespective of citizenship.

I now turn specifically to the letter to you from the Norfolk Island Chief Minister. Mr Smith mentions a local referendum on the electoral issues. The rights of Australian citizens are national issues for determination by the Federal Parliament, not the subject of local plebiscites by small community groupings, especially where (a) not all resident Australians are permitted to vote and (b) non citizen residents can vote on an essentially national issue.

Mr Smith also says that Norfolk Island enjoys "an unusual status as an External Territory under the authority of Australia and attached to it only by historical accident and geographic proximity". His letter implies that Norfolk Island is temporarily connected to Australia for the time being; that a progressive "transition to full self-government" will somehow result in a grant of a status for the Island separate from Australia.

This is incorrect. Norfolk Island is and will remain an integral part of the Commonwealth of Australia in the same way as Australia's other inhabited island Territories of Christmas Island and the Cocos (Keeling) Islands, and indeed like the mainland Territories of the ACT, the Northern Territory and the Jervis Bay Territory. As with the ACT and the Northern Territory, the Federal Parliament has devolved a degree of internal self government on the Norfolk Island Legislative Assembly. While the revenue raising and sharing arrangements differ substantively, and there is variation in the range of powers exercised from those of the Northern Territory, the models of internal self government provided for in the self government legislation in these two Territories in 1978 and 1979 are very similar indeed.

The Federal Government remains open to realistic proposals from the Norfolk Island Government for the enhancement of internal self government including the possible transfer of further powers and functions between the Commonwealth and the Territory Assembly. However any such enhancement would occur within the existing constitutional status of the Territory as an integral part of Australia. It would also need to take account of the findings in the recent Commonwealth Grants Commission study of the Island economy that the Island Government is having difficulty effectively funding and discharging its present range of functions.

Mr Smith's letter suggests that "transient Australians" should not be entitled to vote in Territory elections; that Australian citizens moving between Australian jurisdictions should be obliged to acquire over a period of years "an understanding of our life, its benefit and its disadvantages and they may vote". In all other Australian jurisdictions the residency qualification for enrolment to voting is one month, except Tasmania where it is six months. We have adopted that longer period in respect of Norfolk Island but it is not an acceptable premise that Australian citizens need detailed local knowledge for voting purposes when moving between Australian parliamentary jurisdictions.

Mr Smith's letter implies that "Australia" is somehow a foreign country for citizenship purposes. It needs to be remembered that the Australian Citizenship Act 1948 has applied in Norfolk Island since inception in the same way as in the rest of Australia, and children born on Norfolk Island have been Australian by birth under the same rules applied on the mainland.

I have attached a copy of an article recently published in the local newspaper The Norfolk Islander which may assist the Committee.

The Committee thanks the Minister for this detailed response. Clearly, the bill raises the issue of the constitutional status of Norfolk Island as an external territory of Australia. It also raises the issue of the effect of prescribed residency qualifications on the voting rights of Australian citizens and Norfolk Island residents. These are issues of fundamental policy and are, therefore, best determined by the Senate itself.

http://www.dot.gov.au/media/macdon/archive/1999/mar_99/m31_99.htm

23 March 1999
M31/99

MACDONALD MEETS WITH
NORFOLK ISLAND CHIEF MINISTER

Minister for Regional Services, Territories and Local Government, Senator Ian Macdonald, today met with Norfolk Island Chief Minister, Mr George Smith, regarding several matters pertaining to the governance and administration of Norfolk Island.

They also discussed the matter of the application of electoral laws in Norfolk Island.

"Norfolk Island is a part of Australia and the same laws that apply to voting eligibility elsewhere in Australia should apply also to Norfolk Island," Senator Macdonald said.

"The changes to the voting system will provide that in future, all Australian citizens, ordinarily resident on Norfolk Island for six months, will be eligible to vote in elections for the territory’s Legislative Assembly."

"Australian citizenship will be a requirement for enrolment to vote or election to the Norfolk Island Legislative Assembly."

"However, the right to vote of those currently on the electoral roll, regardless of citizenship, will be preserved."

Senator Macdonald said that the Government continued to support Norfolk Island’s special form of Government as an Australian external territory. The Norfolk Island Legislative Assembly has responsibility for all internal matters. Citizenship and voting eligibility for Australian citizens in territories is a national responsibility.

http://www.dot.gov.au/media/macdon/archive/1999/may_99/m71_99.htm

13 May 1999
M71/99

NORFOLK ISLAND AMENDMENT BILL 1999

Federal Territories Minister, Senator Ian Macdonald today said the principle behind the Norfolk Island Amendment Bill was to remove anomalies in relation to firearms legislation and to ensure the same electoral rights and responsibilities for Australian citizens exists on Norfolk Island as it does elsewhere in Australia.

"The Bill brings Norfolk Island into line with the rest of Australia by requiring that Australian citizenship is mandatory for election to the Territory’s legislature.

"It also provides that all future persons enrolled on the Norfolk Island electoral roll must be Australian citizens.

"Finally, the Bill provides that any adult Australian citizen who is resident on Norfolk Island after six months has the right to vote. Currently they have to wait three years.

Senator Macdonald said that rights of Norfolk Island residents who are already enrolled on the electoral roll will be preserved, regardless of citizenship. Anyone seeking enrolment after the bill is passed will be required to conform to the new rules."