Inadmissibility decision; Subjects: CIVIL AND POLITICAL RIGHTS, AUSTRALIA; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.25-13130 (E) 081025 081025
Human Rights Committee
Decision adopted by the Committee under the Optional
Protocol, concerning communication No. 3274/2018*, **
Communication submitted by:
A.B. (deceased in 2024) (represented by counsel,
Geoffrey Robertson); submission and counsel
maintained by B.B., the author’s son
Alleged victim:
The author
State Party:
Australia
Date of communication:
11 June 2018 (initial submission)
Document reference:
Decision taken pursuant to rule 97 of the
Committee’s rules of procedure, transmitted to
the State Party on 10 December 2018 (not issued
in document form)
Date of adoption of decision:
17 July 2025
Subject matter:
Legislative changes to governance arrangements
on an island territory
Procedural issues:
Incompatibility; ratione materiae; substantiation
of claims; victim status
Substantive issues:
Cultural rights; discrimination; discrimination on
the grounds of birth, language and political
opinion; effective remedy; minorities; minorities
– right to enjoy own culture; self-determination;
taking part in the conduct of public affairs;
voting and election
Articles of the Covenant:
1, 2, 25, 26 and 27
Articles of the Optional Protocol:
1, 2 and 3
1.
The author of the communication is A.B., a national of Australia born in 1940. He
died on 3 January 2024. His son, B.B., has indicated his wish to maintain the communication.
It is claimed that the State Party violated the rights of A.B. under articles 1, 2, 25, 26 and 27
of the Covenant. The Optional Protocol entered into force for the State Party on 25 December
1991. The author and his son are represented by counsel.
* Adopted by the Committee at its 144th session (23 June–17 July 2025).
** The following members of the Committee participated in the examination of the communication:
Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders, Carlos Ramón Fernández
Liesa, Laurence R. Helfer, Konstantin Korkelia, Dalia Leinarte, Bacre Waly Ndiaye, Hernán Quezada
Cabrera, Akmal Saidov, Ivan Šimonović, Soh Changrok, Teraya Koji, Hélène Tigroudja and Imeru
Tamerat Yigezu.
United Nations
CCPR/C/144/D/3274/2018
International Covenant on
Civil and Political Rights
Distr.: General
8 October 2025
Original: English
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Facts as submitted by the author
2.1
The author states that he is an Indigenous inhabitant of Norfolk Island, an external
territory of Australia.1 The Indigenous inhabitants of Norfolk Island constitute 47 per cent of
its population.
2.2
In 1788, Norfolk Island was settled as a penal colony by what was then the United
Kingdom of Great Britain. In 1856, the Government of the United Kingdom transported
residents of a separate territory, Pitcairn Island, to Norfolk Island and declared that the latter
would have a governor based in an Australian state. The author is a descendant of Pitcairn
Islanders of British-Polynesian origin who settled on Norfolk Island. Owing to the island’s
isolated location, Pitcairners developed a unique community ethos.
2.3
In 1901, Australia became a nation. In 1913, the United Kingdom handed Norfolk
Island over to Australia as an external territory.
2.4
In 1979, the Norfolk Island Act established the Norfolk Island Legislative Assembly,
whose members were elected by popular vote. The Legislative Assembly could make laws
in the matters of crime, health, education, customs, immigration and other local matters. The
federal Government retained the power to regulate defence, aviation, shipping and other
matters.
2.5
Norfolk Island was largely self-governing from 1979 to 2016. During that time,
Norfolk Islanders – through their elected representatives – protected their special culture,
history and language. Their distinct features include the principle of communal self-help, use
of levies, customs and stamp duties, imposition of levies, absence of another system of
taxation, absence of political parties, communal use of land, use of Norf’k (a language spoken
by 75 per cent of Norfolk Islanders), local festival and religious days, Anglo-Polynesian
identity, traditional ecology and spirituality, a flag and emblem specific to the Island, a
harmonic style of church music, voter-initiated intervention in the legislature, a barter
economy, rejection of development for its own sake, and a relaxed and relatively
low-technology lifestyle. The athletes of Norfolk Island competed as Norfolk Islanders in the
Commonwealth and Pacific Games. Until 2016, “God Save the Queen” was the “national
anthem” of Norfolk Island.
2.6
In 2015, the State Party recolonized Norfolk Island by passing the Norfolk Island
Amendment Act 2015. The Amendment Act was a diktat that put an end to democracy on
the Island. It abolished the Legislative Assembly of Norfolk Island and reduced Norfolk
Island to the status of a colony. The Island may no longer be represented on United Nations
committees, at meetings of the Commonwealth Parliamentary Association or at other
international gatherings of democratic countries. Its autonomy was extinguished without any
regard for its Indigenous minority.
2.7
The majority of Norfolk Islanders voted in a referendum against the takeover by the
State Party. Under the Amendment Act, Norfolk Islanders such as the author have no say in
the laws by which they are governed. Indeed, basic matters including crime, health, education
and welfare are subject to the laws of New South Wales, where Norfolk Islanders have no
right to vote. Based on the Australian constitutional rules, Norfolk Islanders are only
represented in distant Canberra. Their representative there can only engage on federal issues,
such as defence and foreign relations.
2.8
It is particularly humiliating and degrading that Norfolk Island athletes and
sportspeople are no longer entitled to compete at international and regional events under their
own flag and identity. In addition, Norfolk Island had been represented on several United
Nations committees (for example, relating to Indigenous issues) before its place was taken
by the State Party’s appointees. The unthinking behaviour of Australia has destroyed culture
and pride on Norfolk Island. It has also caused suffering to the author owing to the loss of
his dignity and Indigenous identity.
1 As noted below, the State Party disputes many of the author’s historical and factual allegations,
including his claim of indigeneity to Norfolk Island.
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2.9
There are no effective remedies because Norfolk Island is neither part of mainland
Australia nor a state in the federal system. The author submits that he has not presented the
same matter for consideration to another international body.
Complaint
3.1
The author alleges that, by adopting the Norfolk Island Amendment Act 2015, the
State Party violated his own rights under articles 1, 2, 25, 26 and 27 of the Covenant. With
respect to article 1 of the Covenant, the elimination of limited self-rule deprived the author
and other Norfolk Islanders of an independent future.
3.2
Contrary to article 2 (1) of the Covenant, although Australians who reside on the
mainland may vote for state governments to adopt laws relating to crime, education and
health, Norfolk Islanders may not. That distinction is impermissibly based on national origin.
3.3
In violation of article 25 of the Covenant, the author, owing to his national origin as a
Norfolk Islander, may not vote for a state government that would adopt laws affecting him
and relating to crime, education, health and welfare. In that respect, he is treated unequally
in comparison with Australians who reside elsewhere in the country. Indeed, the author may
not vote in state elections in New South Wales (and may not choose a representative to the
state parliament), even though New South Wales laws relating to crime, education and health
govern Norfolk Island. The author may only vote in federal elections, in an electorate in
Canberra, and his federal Parliament representative is constrained because the federal
Parliament has no power to address issues such as crime, education, health and welfare. The
author is thus denied the right to take part in the conduct of public affairs through freely
chosen representatives.2
3.4
With respect to article 26 of the Covenant, the author has experienced discrimination
based on his language, political opinions and birth. Although he is Australian, under the
Norfolk Island Amendment Act 2015, Australians living on Norfolk Island do not enjoy the
right to vote for local government or a legislative assembly that undertakes most of the tasks
of state government. They thus experience discrimination in their enjoyment of their rights
under article 25 of the Covenant.
3.5
Regarding article 27 of the Covenant, the author’s right to enjoy his own culture and
use his own language as an Indigenous Norfolk Islander has been violated by the
Administrator appointed by the State Party pursuant to the Norfolk Island Amendment Act
2015. Indigenous Norfolk Islanders, residing in a geographically isolated settlement with a
unique community ethos, need to maintain their culture and traditions. The impugned actions
of the appointed Administrator include the following. First, the Administrator seized and
moved historical artefacts and other items relating to the mutiny on the HMS Bounty and the
transportation of Pitcairners to Norfolk Island in 1856. Those items of great cultural
significance were moved off the Island and can no longer be publicly exhibited and venerated
on Norfolk Island. Second, the Administrator commandeered the local radio station, which
featured programmes in Norf’k, and changed community access to the station. Third, the
Administrator closed the hospital maternity unit, thus preventing Norfolk Islanders from
giving birth to children on the Island in accordance with their tradition. They are now required
to give birth “in Australia” through an insidious and deliberate measure that forces the
children of Indigenous islanders to assimilate with mainlanders. Finally, the Administrator
imposed land rates (tax) without assessing their impact, equity considerations or ability of
Norfolk Islanders to pay.
2 The author initially states that his claim under article 25 of the Covenant relates to the right to take
part in the conduct of public affairs through freely chosen representatives, but later refers to the right
to vote. In his subsequent comments, he states that his claim relates to the right to take part in public
affairs.
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State Party’s observations on admissibility and the merits
Historical background
4.1
In its observations of 31 July 2019, the State Party refers to the majority judgment of
the Australian High Court in Bennett v. Commonwealth for a detailed account of the history
of Norfolk Island.3 As of 2016, its population was 1,748, of whom 20 per cent identified as
having Pitcairn ancestry. While Norfolk Island was inhabited by Polynesians from the
thirteenth to fifteenth centuries, it was uninhabited when James Cook took possession of it
on behalf of the British Crown in 1774. It was occupied as a penal settlement in 1788. The
settlement was abandoned in 1814 but was followed by a second penal settlement from 1825
to 1855. During those periods, Norfolk Island was under the successive control of the
Governors of the British colonies of New South Wales and Van Diemen’s Land (now
Tasmania). The Island then became uninhabited once more.
4.2
Upon the invitation of the monarchy of the United Kingdom of Great Britain and
Ireland, the 193 inhabitants of Pitcairn Island moved to Norfolk Island in 1856. Their forbears
were the HMS Bounty mutineers and Tahitians who had landed on Pitcairn Island in 1790.
Some of the Pitcairners left and returned to live on Pitcairn Island.
4.3
Before the Norfolk Island Amendment Act was adopted in 2015, comprehensive
consultations took place with the Norfolk Island community. Some Islanders supported the
proposed governance changes, while others opposed them. As explained in a legislative
memorandum, the Norfolk Island Amendment Act had two objectives. One was to reform
governance arrangements for the Island in response to a parliamentary report that had
recommended substantial changes in that area. The other objective was to extend many
mainland social security, immigration, health and tax arrangements to the Island, consistent
with an election commitment of 2013 and with the general principle that Norfolk Island is
part of Australia, and that those Australians who live there should have the same obligations
and access to benefits as other Australians. It was further noted in the memorandum that the
existing governance arrangements had resulted in an inadequate level of services, social
welfare and healthcare for the Island community; that the government of the Island had large
and increasing revenue shortfalls; that it was beyond the resources of the Island community
to support its existing governance arrangements; and that the Island was struggling to
maintain effective and updated state-level legislation. Attached to the memorandum was a
statement of compatibility with human rights that had been prepared in accordance with the
Human Rights (Parliamentary Scrutiny) Act 2011. It was concluded in the statement that the
Act was compatible with the human rights set forth in several international instruments,
including the Covenant.
4.4
The arrangements established by the Norfolk Island Amendment Act are as follows.
First, the Norfolk Island Legislative Assembly was replaced by the Norfolk Island Regional
Council, comprising five Councillors who are elected for a four-year term. The Regional
Council is responsible for all local council-type functions on Norfolk Island, such as land
rates and planning, and delivers some state-type functions.
4.5
Second, Australian citizen residents on Norfolk Island are required to enrol and vote
in federal elections. Norfolk Island electors are represented in the electorate of Bean in the
Australian Capital Territory.
4.6
Third, in addition to Commonwealth laws, a combination of laws made by the former
Legislative Assembly of Norfolk Island and the laws of the Australian State of New South
Wales apply in Norfolk Island. It is important to note that the body of New South Wales state
laws (20 in total) has been applied, through the force of an Act of the federal Parliament, as
Commonwealth law. It may be altered by the federal Parliament at any time and may be
adapted to Norfolk Island by legislative amendment made by the Governor-General under
the Norfolk Island Act 1979. Similar governance arrangements apply to the other populated
island external territories of Australia, that is to say Christmas Island and the Cocos (Keeling)
Islands, where the laws of Western Australia generally apply.
3 High Court of Australia, Bennett v. Commonwealth, Judgment, 27 April 2007.
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4.7
Fourth, the Norfolk Island community is consulted on proposed changes to the laws
applying to the Island. For example, consultations have been held on proposed legislative
changes to criminal laws to improve protections for vulnerable people, improvement to the
administration of land valuations, planning and development approvals and the registration
of births, deaths and marriages.
4.8
Fifth, Australian citizens on Norfolk Island are treated equally with other Australians,
through the extension of the national taxation and superannuation systems to the Island. That
extension remedied problems of inequity and welfare. Previously, Norfolk Island was the
only place in Australia where residents did not participate in the taxation system and where
resident Australian citizens could not access the Australian social security and health systems.
4.9
Sixth, the universal healthcare scheme Medicare, the Pharmaceutical Benefits Scheme
and comprehensive social security arrangements (including benefits related to age,
unemployment, disability and youth) now apply to Norfolk Island residents on the same terms
as for other Australians.
4.10
The aforementioned changes involved a significant financial investment by the State
Party and were essential to ensuring equality and fairness.
Factual matters
4.11
The communication contains many errors. The State Party does not accept the
correctness of the communication as a whole, or much of the detail that it contains.
4.12
Norfolk Island does not have Indigenous Peoples or an Indigenous population. An
independent statutory body, the Australian Human Rights and Equal Opportunity
Commission, confirmed that Pitcairn descendants “cannot be described as indigenous people”
and “are indigenous neither to Norfolk Island nor to Pitcairn Island”.4 The State Party has
never accepted that residents of Pitcairn descent are Indigenous. The State Party is aware that
individuals from Norfolk Island of Pitcairn descent have attended international Indigenous
organizations and meetings of their own volition, but such attendance at their own instigation
does not constitute recognition of an Indigenous status. Their efforts to gain international
recognition of persons of Pitcairn descent as Indigenous have been rebuffed.
4.13
Contrary to the author’s assertion, Norfolk Island is clearly part of Australia and the
Australian legal system, as the author himself states elsewhere in his communication. The
same legal remedies are available to residents of Norfolk Island as to other residents of
Australia.
4.14
It is not correct to say, as the author does, that the Commonwealth power is unlimited.
The power of the Commonwealth is subject to both express and implied limitations under the
Constitution, and laws may be successfully challenged if they do not respect those limitations.
4.15
Contrary to the author’s assertion, there is not and never has been an international
obligation on the State Party to “decolonize” Norfolk Island. While the Norfolk Island Act
1979 did grant Norfolk Island a degree of limited self-government, it was granted as a
Territory under the authority of the Commonwealth. Norfolk Island is an integral part of
Australia. No right of self-determination applies to it or its inhabitants, either under the
Charter of the United Nations or under international human rights treaties.
4.16
Contrary to the author’s allegations, he does have a vote in the sole legislature that
applies laws to Norfolk Island. In fact, the author has both the right and the obligation to vote
in the federal Parliament, which is the sole legislature with the power to apply laws to Norfolk
Island. The Commonwealth has applied New South Wales law to Norfolk Island as
Commonwealth law. That body of federal law is adapted to the circumstances of Norfolk
Island by the federal Parliament and by ordinances made by the federal Governor-General.
Any resident of Norfolk Island may make representations on the laws applying to the Island
4 See Human Rights and Equal Opportunity Commission, “Territorial Limits: Norfolk Island’s
Immigration Act and human rights”, 1999, p. 34. Available at
https://humanrights.gov.au/sites/default/files/content/pdf/human_rights/norfolk_island.pdf.
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to their federal Members of Parliament, the federal Minister with executive responsibility for
Norfolk Island, the Administrator of Norfolk Island or the relevant federal department.
4.17
It is irrelevant that the author cannot vote in the New South Wales Parliament, because
the latter has no power to make laws of direct application to Norfolk Island. Moreover, it is
incorrect that matters of crime, health, education and social security are purely within the
remit of the state legislatures and not the federal Parliament. For Norfolk Island, the federal
Parliament is the sole legislature with responsibility for those matters. The author may raise
those matters with his federal Members of Parliament.
4.18
Contrary to the author’s allegation, the Norfolk Island Amendment Act 2015 does not
represent reacquisition by the State Party of full sovereignty over Norfolk Island. Australia
has maintained full sovereignty over Norfolk Island since the date it accepted the Island as a
territory of Australia under the Australian Constitution in 1913.
4.19
The author conflates the interests of the population of Norfolk Island as a whole with
interests of the portion of the population that is of Pitcairn descent. Persons of Pitcairn descent
are but one, albeit important, segment of the population of the Island. They are by all accounts
a minority. The historical rights asserted by the author, relying on academic research, have
no legal basis.
4.20
The author makes many erroneous assertions in relation to cultural rights. In August
2015, the former administration of Norfolk Island moved assets out of a military building
that housed the former Legislative Assembly, and the staff of the Norfolk Island Museum
were involved in recording and assessing the items for historical significance with a view to
such items being donated to the Museum Trust. There is no record of any of the items being
seized and removed from the Island.
4.21
The former administration of Norfolk Island took action against certain broadcasters
at Radio Norfolk for breaches of a code of conduct that required broadcasters to remain
apolitical. The claims that the Commonwealth commandeered the local radio station and
altered community access to it and that persons are prevented from using the Norf’k language
on the station are incorrect. The State Party is not aware of any restrictions on the use of the
Norf’k language on Radio Norfolk. The Norfolk Island Language (Norf’k) Act 2004
recognizes the right of the people of Norfolk Island to speak and write Norf’k freely without
governmental interference or prejudice.
4.22
The author’s claim that land rates have been imposed without an impact assessment
or assessment of equity or capacity to pay is also false. Land rates have been phased in over
time and hardship arrangements are available. Nothing suggests that the payment of rates
affects the author’s cultural rights. Land rates fund the Norfolk Island Regional Council, as
is the case for other local governments in Australia.
4.23
While the author asserts that the State Party closed down the maternity wing of the
hospital, it did not do so and the facts relating to the hospital are unrelated to the rights of the
Pitcairn minority in Norfolk Island.
4.24
While the Administrator of Norfolk Island encouraged the local Returned Services
League of Australia to play the Australian national anthem out of respect for all Australian
military veterans, the decision to play that anthem was taken by the League alone.
4.25
The State Party represents Australia at multilateral and bilateral meetings, including
meetings under the auspices of the United Nations. The view that national Governments
represent their countries in such matters is universal.
4.26
The State Party has not interfered with the representation of Norfolk Island in the
Commonwealth Games and regional sporting events.
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Admissibility
4.27
The author’s claim under article 1 of the Covenant is inadmissible ratione materiae.
The Committee has recognized that it is not competent to consider a claim by an individual
regarding a violation of the right to self-determination under article 1 of the Covenant.5
4.28
The author’s claims under articles 1, 2, 26 and 27 of the Covenant are inadmissible
because they are incompatible with the Covenant. Article 2 of the Covenant does not confer
any substantive rights except where the Committee finds that there is a violation of another
right. The author invokes article 26 of the Covenant as an auxiliary argument in relation to
his claims under article 25. That characterization of article 26 (which is a stand-alone right)
is misconceived. Regarding article 27 of the Covenant, the issues of the hospital maternity
wing and land rates are not connected to the preservation of cultural rights.
4.29
The author’s claims under articles 1, 2, 26 and 27 of the Covenant are also
inadmissible because they are insufficiently substantiated. A claim is not merely an allegation,
but “an allegation supported by substantiating material”.6 The author has not made out a
prima facie case. The governance arrangements on Norfolk Island (in which the author has a
right to participate) are substantively equal to those applying in the rest of Australia and are
fundamentally the same as those applying in the other populated island external territories of
Australia.
Merits
4.30
The communication is without merit. The author holds without discrimination all of
the rights under article 25 of the Covenant, which does not require the adoption of a particular
governance model. Nor does it include a right to self-government or a right to vote at elections
for the Parliament of New South Wales, which has no power to enact laws of direct
application to Norfolk Island.
4.31
The previous governance arrangements on Norfolk Island could not provide the level
of rights and benefits equivalent to that enjoyed by other Australian citizen residents. For that
reason, the Norfolk Island Regional Council was established.
4.32
As noted above, the governance arrangements applicable to Norfolk Island in which
the author has a right to participate are substantively equal to those applying in the rest of
Australia and fundamentally the same as those applying in the other populated island external
territories of Australia (Christmas Island (population: 1,843) and the Cocos (Keeling) Islands
(population: 544)). Indeed, their introduction removed prior discrimination and ensured that
the author and other Australian citizens residing on Norfolk Island have the same rights,
obligations and benefits (including social security and health care) as those received by other
Australian citizens.
4.33
If the Committee were to find that there is differential treatment, such differential
treatment would be legitimate and would not constitute discrimination.7 The Norfolk Island
Amendment Act 2015 was based on reasonable and objective criteria and was proportionate
to its legitimate purpose of ensuring equal access to rights, benefits and obligations between
Islanders and other Australian citizens resident in Australia, by reforming a system that was
incapable of providing such equality.
4.34
The legitimacy of the purpose of the Act is underscored in the report issued in 2014
by the parliamentary Joint Standing Committee on the National Capital and External
Territories in 2014 (“Same country, different world – the future of Norfolk Island”). As stated
in the report, the Standing Committee’s mandate was to focus on the economic prospects of
the Island in the wake of a marked decline in tourists, a serious budget deficit and ongoing
financial management concerns. The Standing Committee noted in the report the
5 H.E.A.K. v. Denmark (CCPR/C/114/D/2343/2014), para. 7.3; and Gillot et al. v. France
(CCPR/C/75/D/932/2000), para. 13.4.
6 Report of the Human Rights Committee, Official Records of the General Assembly, Sixty-fourth
Session, Supplement No. 40, vol. I (A/64/40 (Vol. I)), chap. V, para. 118.
7 General comment No. 18 (1989), para. 13; Love et al. v. Australia (CCPR/C/77/D/983/2001),
para. 8.2.
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ever-increasing reliance of the Island on the federal Government for financial and other
assistance just to maintain basic services for Islanders. It also noted the consistent statement
from experts that economic development would not be possible without new governance
arrangements. It observed that 35 years after the enactment of the Norfolk Island Act 1979,
it was clear that the self-government model had failed on many levels; that many evaluators
had questioned whether the self-government model had best served the interests of Norfolk
Island residents; and that Norfolk Islanders should have the same rights and responsibilities
as all Australian residents. The Standing Committee further noted that the priority should be
what was in the best interests of the people and not a defence at all costs of governance
arrangements that had not been able to provide social or economic conditions equivalent to
those in the rest of the country. The Standing Committee appreciated the complexity, nuances
and to some extent enormity of the task ahead for the Commonwealth Government to
transition the Island to a modern local authority that would be fiscally responsible,
accountable and efficient in delivering suitable services. In addition, in March 2014, a
Member of Parliament, who was then the federal Assistant Minister for Infrastructure and
Regional Development, emphasized the gravity of the financial situation of the Island, and
the increasingly critical nature of the problems faced as deficits increased and essential
infrastructure further deteriorated. He noted that there had been no significant infrastructure
investment on the Island since the 1970s and that the roads were deteriorating, broadband
services were poor and the electrical network was extremely fragile and at risk of collapsing.
4.35
The reasonable and objective criteria applied in the differentiation of the governance
arrangements set forth in the Act are outlined in the aforementioned legislative memorandum.
Those criteria, described in paragraph 4.3 above, were closely aligned to the legitimate
purpose of the differentiation, were publicized well before the governance changes were
made and were the subject of consultation open to all inhabitants of Norfolk Island, including
the author.
4.36
In assessing proportionality, the poor history of governance under the previous system
of limited self-government involving the former Legislative Assembly and administration of
Norfolk Island is of central relevance, as explained above. The author may vote for and be
elected to both the Norfolk Island Regional Council and the federal Parliament, the sole
legislative body with the responsibility for applying laws to Norfolk Island. Those measures
are both proportionate and necessary to the legitimate aim to be achieved.
4.37
For the reasons set out in paragraphs 4.16 and 4.17 above, the claim under article 25
of the Covenant is without merit. The Parliament of New South Wales does not have the
power to make laws of direct application to Norfolk Island, nor does it purport to do so. Any
resident of Norfolk Island, including the author, may make representations on the laws
applying to Norfolk Island to their federal member, the federal Minister with executive
responsibility for Norfolk Island, the Administrator of Norfolk Island or the relevant federal
department.
4.38
The State Party stresses the inaccuracy of the author’s assertion that matters of crime,
health, education, and social security are purely within the province of the state legislatures.
The author can raise those matters with his federal Member of Parliament, who would be the
logical recipient of such representations in terms of carrying them forward.
4.39
With respect to article 27 of the Covenant, for the reasons explained in
paras. 4.19–4.26 above, the State Party has not breached the rights of a minority – persons of
Pitcairn descent – to enjoy their own culture and to use their own language.
Author’s comments on the State Party’s observations on admissibility and the merits
5.1
In his comments of 2 January 2020, the author asserts that the State Party’s position
that Pitcairners are not Indigenous to Norfolk Island is wrong and reflects the State Party’s
racism towards Indigenous Peoples. The State Party is attempting to write Pitcairners out of
history and destroy their cultures and traditions. It unilaterally abolished the Norfolk Island
Act 1979 and manipulated census data to diminish and demean Pitcairners like the author.
5.2
Regarding participation in the law-making process, in federal elections, Norfolk
Islanders comprise just 0.5 per cent of the electorate of Bean, which is located 1,900 km away.
In the 2019 election, only 0.003 per cent of votes in that electorate were cast by Norfolk
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Islanders. Although 912 Norfolk Islanders voted in the voluntary 2015 Norfolk Island
referendum, only 335 Norfolk Islanders voted in the compulsory 2019 Australian election.
The State Party refused to grant the Islanders a referendum because it knew that 68 per cent
of them opposed having their government replaced by federal politicians.
5.3
The State Party gave Norfolk Islanders only seven days’ notice before rushing the
Amendment Act through the federal Parliament in just seven weeks. Thus, Norfolk Islanders
were not extensively consulted before the Constitution was abolished.
5.4
The State Party, having seized control of the Island, is now erasing Norfolk Islanders
from history. Gone is the reference in the Norfolk Island Constitution to the Pitcairn Islanders;
gone too are important historical and cultural symbols and artefacts, which have been stolen
by or on behalf of the State Party. Author and Norfolk Island resident Colleen McCullough
has referred to the State Party’s conduct as bloodless genocide.
5.5
Even though Norfolk Island established important infrastructure during its period of
self-governance, the State Party embarked on a clandestine policy to usurp power from
Norfolk Islanders and write them out of history. Bureaucrats from Canberra and consultants
were sent to the Island to write papers in support of that position. Islanders who sought to
explain the truth were ignored and independent experts who presented contrary opinions had
their reports buried.
5.6
The author expands upon his claim regarding the indigeneity of Norfolk Islanders of
Pitcairn ancestry. He also alleges that the Norfolk Island Act 1979 was sacrosanct and
represented the Island’s Constitution. Between 1979 and 2015, Norfolk Island maintained a
balanced budget and pursued a responsible fiscal strategy, while implementing important
infrastructural projects. Its self-government was thus a tremendous success. After an
economic downturn in the early 2000s, the State Party began plotting to seize power back
from the Islanders.
5.7
From 1979 to 2015, Norfolk Island delivered pensions, benefits and an Island-wide
health insurance scheme. Programmes were also tailored to meet the needs of the Island
community. In some cases, Norfolk Islanders had a greater level of benefits than mainland
Australians. A clear majority of Islanders were satisfied with the level of services and the
State Party has not provided any evidence to the contrary. The State Party’s actions are
inconsistent with its prior engagements with Norfolk Island.
5.8
With respect to article 26 of the Covenant, the author, as a member of an Indigenous
minority, has been subjected to discrimination on the grounds of language, political opinion
and birth, because he has been prevented from voting in the New South Wales Parliament.
The State Party’s actions are not reasonable, proportionate, legitimate or necessary.
5.9
Regarding article 27 of the Covenant, the State Party fails to understand the unique
culture of Norfolk Island. With respect to the artefacts removed from the Island, the State
Party did not confirm that those items have been treated with all the dignity and respect that
cultural artefacts should be afforded, if they still exist. There is every reason to believe that
the Islanders have been permanently deprived of their cherished cultural property.
5.10
Finally, the State Party seeks to justify its censorship of Radio Norfolk on the grounds
that a code of conduct requires broadcasters to remain apolitical. Radio Norfolk provides a
crucial voice for the Island’s minority population. The author was entitled to hear and
participate in a public political debate that the administration closed down out of fear of free
speech.
State Party’s additional observations
Service provision by the State of Queensland
6.1
In October 2021, the federal Government and the state government of Queensland
entered into an agreement to support provision of state services to Norfolk Island. The
partnership agreement, which began on 1 January 2022, provides certainty and stability in
key areas of state-level service delivery for Norfolk Islanders.
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6.2
Where the government of Queensland passes relevant legislation, Norfolk Island
residents may make submissions to a Queensland Parliamentary Committee on any bills
coming before the Queensland Parliament. The federal Government has undertaken to
provide information to the Norfolk Island community by way of a community notice in local
media when it is notified that a bill affecting service delivery on Norfolk Island is being
considered.
Norfolk Island Governance Committee
6.3
In December 2022, the relevant minister committed to establishing the Norfolk Island
Governance Committee to provide the local community with opportunities for civic
participation while the Regional Council was under administration. The Norfolk Island
Governance Committee was developed in close consultation with two key community groups:
the Council of Elders and the Norfolk Island People for Democracy. The terms of reference
of the Committee include the legislative framework and laws applying to Norfolk Island, the
delivery of government services and other governance-related matters of importance to the
community. The Committee has been embraced by Norfolk Island residents, who have
engaged in elections for positions on the Committee. A non-compulsory but high-turnout
ballot for the community representatives of the Committee was held on 11 October 2023 and
the first meeting of the Committee was held a week later. The Committee has six members:
three democratically elected community representatives; the Norfolk Island Administrator,
as the representative for the Minister of Regional Development, Local Government and
Territories; one representative from the federal Department of Infrastructure, Transport,
Regional Development, Communications and the Arts; and one representative from the
Queensland Government Department of Premier and Cabinet. The inclusion of a Queensland
Government representative aligns with the intent to facilitate local community input into
decisions relating to government services, especially those delivered in partnership with
Queensland Government, as the state service provider to Norfolk Island. The Committee
community representatives have advised that the Norfolk Island community does not want
the Committee to be brought out of administration before the implementation of a new
governance model, discussed below. In accordance with those wishes, no local Committee
elections have been scheduled.
Response to factual claims by the author
6.4
Many of the author’s wide-ranging claims are erroneous. Contrary to the author’s
assertions, Norfolk Island is a part of Australia and its legal system. Norfolk Island does not
have its own constitution. The author does in fact have a vote in the legislature applying laws
to Norfolk Island. In 2019, 0.59 per cent (not 0.003 per cent) of the valid votes cast in the
electoral division of Bean were by Norfolk Island residents. In 2022, 0.71 per cent of valid
votes cast in the electoral division of Bean were by Norfolk Island residents. Norfolk Island
has never been listed as a Non-Self-Governing Territory and has never been under a
United Nations trusteeship. The author continues to incorrectly assert that the law-making
process applicable to Norfolk Island is that of the State of New South Wales.
6.5
Regarding the author’s cultural claims, the artefacts mentioned by the author were
never seized or relocated from Norfolk Island by the State Party. It is untrue that the
Administrator of Norfolk Island ordered the removal of all fittings and furnishings, including
the Norfolk Island Seal. The seal had been on public display until late 2019, when it was
placed in preservation storage. In 2022, it was discovered that the seal was missing and it is
believed to have been stolen. As of October 2022, the Federal Police were continuing to
investigate the matter. The State Party provides additional information about involvement of
Norfolk Island in regional and world athletics.
Additional remarks on admissibility and the merits
6.6
The State Party reiterates its position and notes that many of the author’s claims (for
example, alleged actions by the radio station, changes to land rates and taxation) are actio
popularis in nature, as the author has not explained how those actions affected him.
6.7
Regarding article 25 of the Covenant, the author had local political rights and could
provide feedback on, vote for and run for election to the Norfolk Island Regional Council
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and the Norfolk Island Governance Committee. There is no requirement under article 25 of
the Covenant, or Australian law, that a referendum be held every time the Parliament of
Australia makes changes to Commonwealth legislation. The recommendation to change the
governance of Norfolk Island was derived from extensive community consultation, where
citizens directly participated in submission and feedback processes. This included five
community-wide mail-outs, two public meetings attended by 500 residents, 20 meetings of
the previous Norfolk Island Legislative Assembly, two meetings with the Council of Elders,
one meeting with the Norfolk Island Chamber of Commerce, 35 meetings with individuals
and groups of interested citizens, and over 150 items of correspondence. In the submissions
alone, 42 respondents supported repeal of the Norfolk Island Act 1979, while 22 respondents
did not support it and 47 did not state their support or non-support. In consultations with the
community, the vast majority of residents believed that the Norfolk Island Legislative
Assembly had not been working in the best interests of the people of Norfolk Island and that
self-government should be abolished and replaced, after a transitional period to effect
changes to the governance structures for service delivery, by a local government-type body.
Issues and proceedings before the Committee
Consideration of admissibility
7.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
7.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under any other procedure of
international investigation or settlement.
7.3
The Committee observes that the State Party does not contest the admissibility of the
author’s claim under article 25 of the Covenant, or the author’s argument that he exhausted
all available domestic remedies, as required under article 5 (2) (b) of the Optional Protocol.
Accordingly, and having taken note of the author’s arguments on that issue, the Committee
considers that article 5 (2) (b) of the Optional Protocol does not constitute an obstacle to the
admissibility of the communication.
7.4
The Committee notes the State Party’s position that the author’s claims under
articles 1 and 2 are inadmissible ratione materiae and are incompatible with the Covenant.
The Committee recalls that it does not have the competence to consider claims alleging a
violation of the right to self-determination under article 1 of the Covenant.8 The Committee
further recalls that article 2 of the Covenant lays down general obligations for States parties
and cannot give rise, when invoked separately, to a claim in a communication under the
Optional Protocol.9 Accordingly, the Committee considers that the author’s claims under
articles 1 and 2 of the Covenant are inadmissible ratione materiae under article 3 of the
Optional Protocol.
7.5
The Committee notes the State Party’s position that the author’s claims under
article 27 of the Covenant are insufficiently substantiated, ratione materiae and/or actio
popularis in nature. The Committee observes that the author has not asserted that he has
standing to represent Norfolk Islanders as a whole, and states that he submits the
8 See, for example, general comment No. 23 (1994), para. 3.1; E.P. et al. v. Colombia, communication
No. 318/1988, para. 8.2; Gorji-Dinka v. Cameroon (CCPR/C/83/D/1134/2002), para. 4.4; Hom v.
Philippines (CCPR/C/78/D/1169/2003), para. 4.2; Diergaardt et al. v. Namibia
(CCPR/C/69/D/760/1997), para. 10.3; and Lubicon Lake Band v. Canada (CCPR/C/38/D/167/1984),
para. 32.1. The Committee recalls, however, that it may interpret article 1, when it is relevant, in
determining whether rights protected in parts II and III of the Covenant have been violated. See, for
example, Roy et al. v. Australia (CCPR/C/137/D/3585/2019), para. 7.3; and Sanila-Aikio et al. v.
Finland (CCPR/C/119/D/2668/2015), para. 8.6.
9 See, for example, D.Č. v. Lithuania (CCPR/C/134/D/3327/2019), para. 8.5; and X v. Czech Republic
(CCPR/C/113/D/1961/2010), para. 6.6.
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communication in his own name. Thus, the Committee must consider the author’s claims
solely insofar as they relate to his personal rights.10
7.6
In that regard, the Committee recalls that a person can only claim to be a victim in the
sense of article 1 of the Optional Protocol if he or she is actually affected.11 The Committee
considers that the author has not demonstrated that the alleged closure of the maternity wing
impaired the exercise of his personal right to enjoy his own culture or use his own language.
That claim is therefore inadmissible under article 1 of the Optional Protocol. The Committee
also considers that the author has not sufficiently substantiated his claims regarding the
alleged censorship of Radio Norfolk or the alleged theft of artefacts by the State Party. Thus,
those aspects of the author’s claim under article 27 of the Covenant are inadmissible under
article 2 of the Optional Protocol.
7.7
With respect to the author’s claim that land ownership taxation (land rates) impairs
the tradition of self-help typical of the community to which he belongs (Norfolk Islanders of
Pitcairn descent), the Committee notes that he has not clearly indicated whether and in what
amount he is subject to such taxation. The Committee also notes the State Party’s information
regarding the circumstances surrounding the imposition of land rates. The Committee also
observes that reasonable taxation of citizens by States parties may be necessary to collect
sufficient public revenue to fund public services that are essential for the realization of basic
human rights, including rights established by the Covenant and other applicable international
and national instruments. The Committee considers that the author has not sufficiently
substantiated his claim that the land ownership taxation system established in 2015 violated
his rights as a Norfolk Islander of Pitcairn descent under article 27 of the Covenant. With
respect to the author’s claim that he is entitled to traditional land use rights as an Indigenous
person under article 27 of the Covenant, the Committee considers that the author has not
substantiated that his land use rights have been impaired by the State Party. Accordingly, the
Committee declares the claims under article 27 of the Covenant inadmissible under articles 1
and 2 of the Optional Protocol.
7.8
The Committee notes the author’s assertion that as an Indigenous member of a
minority, he was discriminated against in his enjoyment of article 25 of the Covenant on the
basis of his political opinion, birth and national origin. It also notes his claims that the Norfolk
Island Act 1979 was a Constitution, and that Norfolk Island has been deprived of the right to
participate at various athletic and international events. The Committee considers that the
author has not sufficiently substantiated his discrimination-related claims and declares them
inadmissible under article 2 of the Optional Protocol.
7.9
The Committee further notes the author’s claim under article 25 of the Covenant that
following the Norfolk Island Amendment Act 2015, he could not vote in the state elections
of New South Wales, whose laws governed Norfolk Island, and could not vote for a local
legislative assembly or take part in the conduct of public affairs. However, the Committee
observes that, according to the State Party, after the dissolution of the Norfolk Island
Legislative Assembly, the author had the right to vote for and be elected to both the Norfolk
Island Regional Council and the federal Parliament, the legislative body with the sole
responsibility for applying laws to Norfolk Island. The Parliament of New South Wales could
not make laws relating to Norfolk Island. The State Party disputes the author’s claim that the
federal Parliament representative for Norfolk Island had no ability to make representations
on issues of crime, health, welfare and security. It maintains that, during the relevant time,
the author could have raised those matters with his federal Members of Parliament. The
author did not describe any instances where he attempted to make specific representations to
his federal Parliament or Regional Council representatives and was unable to do so or was
informed that the representations would not be considered. The Committee recalls that the
Covenant does not impose any particular electoral system; however, any system operating in
a State Party must be compatible with the rights protected by article 25 and must guarantee
and give effect to the free expression of the will of the electors.12 The Committee considers
10 See Mikmaq tribal society v. Canada, communication No. 78/1980, para. 8.2. See also Länsman et al.
v. Finland (CCPR/C/83/D/1023/2001), para. 6.1.
11 See, for example, Teitiota v. New Zealand (CCPR/C/127/D/2728/2016), para. 8.4.
12 General comment No. 25 (1996), para. 21.
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that the circumstances alleged by the author do not bring his claim within the scope of
article 25 of the Covenant. Accordingly, the Committee considers that this aspect of the
communication is inadmissible ratione materiae under article 3 of the Optional Protocol, as
it is incompatible with article 25 of the Covenant.
8.
The Committee therefore decides:
(a)
That the communication is inadmissible under articles 1, 2 and 3 of the
Optional Protocol;
(b)
That the present decision shall be transmitted to the State Party and to the
author’s son, B.B.