DID THE commonwealth’s ACQUIRE the Norfolk Island Hospital; the Norfolk Island Central School, and the Police Station ON JUST TERMS?
BACKGROUND In May 2016 the Governor-General signed into law the Land Transfer Ordinance 2016 (Cth) to affect the acquisition by the Commonwealth of the Norfolk Island Hospital, outbuildings and carpark; the Norfolk Island Central School and the Police Station.
Given that no financial compensation was ever made, this paper questions if the above-mentioned Norfolk Island assets were acquired by the Commonwealth on just terms; and considers the ethics and conduct of the Commonwealth in acquiring the Norfolk Island assets.
JUST TERMS Section 8 of the Ordinance provides that if [Norfolk Island] land is acquired, it shall not be otherwise than on just terms. Meeting the legal standard of just terms includes ensuring that the acquisitions are executed in a manner consistent with section 62(2) of the Norfolk Island Act 1979 (Cth) and section 51(xxxi) of the Australian Constitution.
It is apparent that the Commonwealth have attempted to satisfy the legal standard of just terms through an agreement between the parties, namely the Commonwealth and Norfolk Island. However, the ‘Explanatory Statement’ attaching to the Ordinance identified that the parties that were consulted during the making of this agreement were:
the ‘Administration’ (Executive Director, Peter Gesling)
the ‘Norfolk Island Administrator’ (Gary Hardgrave), and
the ‘Norfolk Island Advisory Council’ (Five community members handpicked by the Norfolk Island Administrator)
All of these people were appointed by the Commonwealth and on the Commonwealth payroll at the time the agreement was made.
The two key facilitators of the agreements were the Commonwealth appointed - Commonwealth paid - Executive Director of the Norfolk Island Administration and delegate of the Federal Minister AND the Commonwealth Government itself.
It would not have been possible for duly elected representatives of the Norfolk Island People to participate in these negotiations because at the time the Ordinance was made the Norfolk Island Parliament had been abolished and the Norfolk Island Regional Council had yet to commence.
Given that the Commonwealth essentially made an agreement with itself to acquire the Norfolk Island assets, it is highly questionable at best to suggest that there was an agreement between the parties, or that these acquisitions were made by the Commonwealth on just terms.
ETHICS AND CONDUCT The Commonwealth’s role on Norfolk Island is to provide good government to the Norfolk Island People.
If, as it appears in this situation, the Commonwealth had an interest in utilising the above-mentioned Norfolk Island assets for certain purposes, it would have been more appropriate to negotiate a lease or rental agreement or similar with the Norfolk Island People, rather than taking title over them.
Irrespective of the doubts raised above around just terms, it is neither ethical nor acceptable conduct for the Commonwealth to have appropriated or otherwise acquired any Norfolk Island assets without the absolute and unqualified consent of duly elected representatives of the Norfolk Island People.
Given the above, the Commonwealth Government should now return the ownership of the Norfolk Island assets to the Norfolk Island People.