Bennett & Ors v Commonwealth of Australia
[2006] HCATrans 595
[2006] HCATrans 595
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S111 of 2006
B e t w e e n -
GEOFFREY JAMES BENNETT
First Plaintiff
JOHN EDGAR CHRISTIAN
Second Plaintiff
BRUCE STANLEY WALKER
Third Plaintiff
ANN MITCHELL WALKER
Fourth Plaintiff
RICHARD AARON KLEINER
Fifth Plaintiff
ADMINISTRATION OF NORFOLK ISLAND
Sixth Plaintiff
and
COMMONWEALTH OF AUSTRALIA
Defendant
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 8 NOVEMBER 2006, AT 10.04 AM
(Continued from 7/11/06)
Copyright in the High Court of Australia
__________________
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: May it please the Court. Your Honours, my submissions that remain will be divided into four sections. First, I will very briefly deal with two questions from the Bench left over from yesterday; secondly, I will deal with a number of aspects of the construction of section 122; thirdly, I will deal with my learned friend’s argument about Norfolk Island not being part of Australia; and then finally I will deal with two brief historical references in the material in the stated case.
The two questions left over from yesterday, your Honour the Chief Justice asked for a list of territories which I supplied. Your Honours might find it useful also to have a list of ex territories of which there are five. They are Papua, New Guinea, Nauru and two territories called Northern Australia and Central Australia into which the Northern Territory was at one stage divided in the late twenties or early thirties and shortly afterwards were united. So there are five places which are ex territories in addition to the 10 current territories itemised yesterday.
Secondly, your Honour Justice Kirby asked yesterday about the degree of self‑government on Norfolk Island. We have provided a document to your Honours and our learned friends which sets out in some detail the degree of self‑government in the relevant legislation. What is important about it for present purposes is that it is a long way short of a plenary grant of power of the type given to the various Indian entities in Burah and Hodge and Powell v Apollo Candle Company.
Among other things there is an effective power in the Governor‑General to enact ordinances for Norfolk Island and, in effect, force them on the territory. There is a power of disallowance and the powers themselves are rather like the Indian and Canadian Constitutions. They have a list of powers that are granted, a list of powers which are not granted and a sort of implied residual list.
KIRBY J: There is, of course, a power of disallowance in respect of the mainland territories, I think. It was exercised recently.
MR BENNETT: Yes, there is, your Honour.
KIRBY J: So that is not necessarily inconsistent with self‑government and is generally regarded as most exceptional.
MR BENNETT: Your Honour, here it goes further because there is a reservation of power to make ordinances. One has to ask rhetorically, if one can disallow what is done and can impose an ordinance oneself, how much self‑government has been granted in the relevance sense? But be that as it may. Now, those were the two questions from yesterday.
KIRBY J: You are not boasting of the lack of self‑government of Norfolk Island?
MR BENNETT: It is not a question of boasting, your Honour; it is a question of dealing with my learned friend’s submissions. Now, on the construction of section 122, your Honours will see that the power is to make laws for the government of a territory, not for the people of the territory and not for the community of the territory or any other word of that sort. It is interesting to note that in my learned friend’s additional outline yesterday, he carefully slides in paragraphs 1, 2 and 3 from legislating in relation to the territory to the community and the inhabitants and that, we submit, is a slide that ought not to be made.
I will come to the reference from Lamshed v Lake later, but we simply point out that in certain contexts that may be one of the things included in the exercise of power. As I submitted yesterday, there are other cases where it is not. For example, a law saying you cannot shoot penguins on Heard Island would have nothing to do with any relevant population because there is not one. My friend’s submissions yesterday when he commenced involved the same slide, and that slide is the first step in his reasoning to the current laws not being laws and, in our respectful submission, it is not accurate.
The important point, of course, and it is a point made in all of the cases since Bernasconi, both those that approve it and those that do not, is that territories are diverse. The concept of a territory under section 122 can cover a huge range of totally different polities. The next matter on section 122 is that your Honour Justice Kirby asked yesterday in what right is the reference to the Queen in section 122. Your Honour, at the time of the Constitution, of course, the Crown was regarded as indivisible, so that issue did not arise. It did not ‑ ‑ ‑
GUMMOW J: Yes, it did. Of course it arose. The Crown acted on advice of all sorts of ministers – ministers in Canada, ministers in New Zealand.
MR BENNETT: In that sense, yes.
GUMMOW J: The Crown only acts on advice. The question is: who are the advisers? That is the question.
MR BENNETT: Yes. Well, your Honour, clearly, as at 1900 and as at 1913, that was a reference to the Queen would be acting on the advice of her UK advisers because the act she would be engaged in would be the act of surrendering something which was a British colony or settlement or territory, whatever word one wants to use. That would obviously be done in her capacity under which she would be advised by her UK advisers and indirectly by the colonial office. It is clearly a context where the Queen is being referred to, in a sense, external to Australia. It is probably the only context of that type and it is unique in that respect.
KIRBY J: The issue does not really arise in this case, does it, because it was King George V and he did it on the advice of the United Kingdom advisers and our Parliament had, in anticipation, enacted the 1913 statute to receive it.
MR BENNETT: Yes, your Honour. The Queen is acting there – or the King – as grantor and Australia is the grantee. It is very much a provision of the Constitution in which the monarch is not referred to as monarch of Australia for that reason. It is the monarch as an external entity in control of the other parts of what was ‑ ‑ ‑
KIRBY J: We do not have to solve it in this case, because it was undoubtedly King George V in his capacity as King in England – the United Kingdom.
MR BENNETT: Yes. The final matter in relation to section 122 is that my learned friend relies on the last words by analogy. Those are that the Parliament:
may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.
We stress, of course, that is talking about representation in the Federal Parliament. As an aside, it is fairly obvious that representation there would be confined to Australian citizens. No one would suggest for a moment that under the application of that provision today that there is any suggestion that non‑Australian citizens should be entitled to vote ‑ ‑ ‑
KIRBY J: I do not see why you say that. For the most part of the last century people who were not Australian citizens voted and even after we made statutory citizens, people who were British nationals voted and still do and, indeed, must vote.
MR BENNETT: Yes, there is a specific exception in relation to certain categories of British nationals. That is so.
KIRBY J: If that is available for those non‑statutory citizens why is it such an odd notion that a non‑citizen should participate in the vote for the Parliament when they come from a territory which has a peculiar history and a peculiar population composition?
MR BENNETT: Your Honour, at the very least that is one of the two possible readings of it and one cannot use the words to say, as my learned friend does, that that implies that representation has to be of everyone in the territory.
KIRBY J: It is just an odd idea that when the fundamental purpose is democracy and representation of the people that you start dividing up the people who happen to be the people for this purpose, the people of this territory.
MR BENNETT: Yes, and the Commonwealth Parliament is given the power to decide to what extent people of a territory will be entitled to exercise part of the general franchise of Australia.
KIRBY J: I do not think that is the interpretation; it is the representation that is as it thinks fit. You may give no representation or you may give some, but when you give it, the suggestion is that you have to give it for all of the people who are there.
MR BENNETT: Your Honour, with respect, that cannot be right. We know that franchise in the Australian constitutional context, and indeed in all contexts around the world in democratic societies, involves the drawing of lines. It involves the drawing of lines of age, for example, it involves making decisions about whether people undergoing sentences of imprisonment of varying lengths can or cannot vote, it involves making a range of decisions about how one defines the franchise. There is, in my respectful submission, no implication to be found there that one cannot define the franchise, among other things, by reference to nationality or citizenship. Certainly one does not get that from the last words of section 122. I will come to the question of whether one gets it aliunde.
The third part of my submissions and the major part today concerns the issue which my learned friend raises, and at one stage sought to raise as a separate question – and that was denied – namely whether Norfolk Island is part of Australia. We submit that in a sense that is nothing more than a slogan, that it is or it is not. Obviously it is for some purposes, obviously it is not for some purposes. One gets that because legislation may say and frequently does say, “This Act applies to Norfolk Island, this Act does not apply to Norfolk Island, this Act applies to the external territories, this Act does not apply to the external territories”, and so on.
GUMMOW J: We have to consider the level at which you are asking the question. No one suggests I do not think that Norfolk Island has international personality. So, looking at the plane of international law, obviously it is part of Australia. Then you come to municipal law and you ask questions within this constitutional framework we have and then we are at the level you are now approaching. In the municipal sphere there is a geographical question and then there is a body politic‑type question.
MR BENNETT: It is hard to see what is meant by the geographical question if one would say that Tasmania is part of Australia, although in a geographical sense one might argue that it was not. Lord Howe Island is a place which is part of New South Wales and thereby part of Australia, but again geographically one would have to ask the question. For purposes such as section 24 of the Constitution, clearly one is talking there only of States and an external territory is not part of Australia for that purpose. There are other purposes for which it clearly is.
We had initially taken the view that the question was just irrelevant to anything, that it was a fairly meaningless question, but the way my friend puts his argument, I do have to some extent to address it. My friend uses it to leap a hurdle which otherwise he cannot leap. That hurdle is that a provision making Australian citizenship an element of the franchise, which we submit is a normal and regular feature of franchises which is well within the power of the Federal Parliament to give or to impose or not impose, he says that is inappropriate because it is Australian citizenship and we are talking only about Norfolk Island and Norfolk Island, he says, is not part of Australia and that leads him into his arguments.
For those reasons, I do need to say a little about it, but we do submit that one of the reasons the argument fails is that the question is not a meaningful or important one. It is a political slogan and a question of whether a political slogan is true or false. I illustrated that yesterday with the whimsical example in relation to another external territory of the question asked at trivia nights about what is the highest mountain in Australia. If one says Heard Island is part of Australia, it is Big Ben. If one says it is not, it is Kosciusko.
KIRBY J: That would be because the people around the dinner table are geographers or ordinary citizens, but we are sitting here as lawyers so we have to look at it from a legal point of view as to whether and for what purposes it is part of the Commonwealth of Australia under the Constitution.
MR BENNETT: The true question is for what purposes, not whether, because the question itself is too diffuse to be capable of sensible answering.
CALLINAN J: Mr Solicitor, do we know anything about the financial sustenance and financial capacity of the community on the Island at the time of Federation or at about that time? Is there anything in the evidence about any of that?
MR BENNETT: I think some of the materials had some numbers in them about amounts ‑ ‑ ‑
CALLINAN J: What I am really interested in was of looking to Australia for any sort of sustenance or support.
MR BENNETT: Your Honour, certainly from time to time the Norfolk Island Government applies for federal grants ‑ ‑ ‑
CALLINAN J: I am really interested in the historical situation.
MR BENNETT: Yes. For example, the Networking the Nation grant involved its connections with Australia. It may be convenient, your Honour, in relation to that if I have leave to provide after the close of argument, within a few days, a document setting out the economic history of the relationship purely from the appropriate records.
CALLINAN J: Would you not need the concurrence of Mr Ellicott to do that, of fresh evidence ‑ ‑ ‑
MR BENNETT: Your Honour, I do. I seek ‑ ‑ ‑
GUMMOW J: Justice Hayne points to 174 of the book. There is a lot of detail there at the time of the Bill for the 1913 Act.
MR BENNETT: Yes.
GLEESON CJ: I thought there was actually a sentence mentioned yesterday in a letter from Mr Reid in which he pointed out that it would be necessary to give New South Wales certain control over Norfolk Island in order, I think – he did not put it exactly this way, but in order to justify New South Wales expenditure.
MR BENNETT: Yes, that is at page 119, your Honour.
CALLINAN J: The page that Justice Hayne points to talks about financial supplements, I see, in the second column.
GLEESON CJ: I think Mr Ellicott mentioned yesterday a matter of what would plainly be of considerable importance, and that is the matter of what might be called infrastructure on the Island. That now includes an aerodrome but at Federation it presumably included wharves.
MR BENNETT: Yes. I think loading and unloading of ships was done by something resembling a flying-fox in the early days. I do not think there ever was a wharf as such in the early days.
CALLINAN J: Mr Solicitor, thank you for that. Where is the reference to the international cable? Was there some reference to that?
MR BENNETT: I will have that found, your Honour.
CALLINAN J: Thank you.
MR BENNETT: But I do seek leave to put in a short document which ‑ ‑ ‑
HAYNE J: Page 115 is the cable, I think.
CALLINAN J: Thank you.
HAYNE J: Item No 20.
MR BENNETT: Which would contain the references in the special case book to economic history and perhaps one or two other public documents which – yes, 152 and 153, I am informed. Now, we do stress some other legislative matters in relation to the “part of Australia” argument. Persons on Norfolk Island are entitled to enrol in Australian electorates and vote in Australian elections.
KIRBY J: But they have to be Australian citizens?
MR BENNETT: Yes.
KIRBY J: Well, you say “Oh, yes” as this is a shocking question, but I repeat, British subjects who were not Australian citizens voted in our election for years and still do in the United Kingdom.
MR BENNETT: Yes, there is, as I say, an exception in relation to that. That just illustrates I suppose that this is an area in relation to which one would expect the Parliament to be able to control the franchise. It is one of the standard provisions in relation to which control of the franchise is regarded as legitimate and normal, like age, being in prison for long periods and the like.
Your Honours have the material in relation to the proportion of the population of Norfolk Island which is Australian born and the proportion which is Australian citizens. I will not take you back to that. From 1913 goods which are manufactured on Norfolk Island have been exempt from customs duty when taken to the mainland, and that continues to the present day.
Australian citizenship and immigration laws determine who can travel to and remain on the Island. An alien coming from overseas to Norfolk Island needs an Australian visa under Norfolk Island law. I can get the reference to that if your Honours wish it. Permanent residents of Norfolk Island who are not Australian citizens have free access to and permanent residency on the mainland under section 42(2A)(b) of the Migration Act, and they can obtain a visa under regulation 1123 of the immigration regulations. We stress that for a large part of Norfolk Island’s history British citizenship was a requirement for the franchise. My learned friend suggests in paragraph 12 of his document that people ‑ ‑ ‑
KIRBY J: It was not actually British citizenship; it was the status of a subject of the Crown.
MR BENNETT: Yes. It should be noted that the impugned legislation does contain a grandfather clause in relation to people who were entitled to vote prior to it, so no one was actually stripped of the right to vote. My learned friend seeks to develop his proposition ‑ ‑ ‑
KIRBY J: Do we have the Minister’s speech as to why he superimposed this obligation in Norfolk Island on Norfolk Islanders for Norfolk Island people voting for their own local small Assembly?
MR BENNETT: Yes. My learned friend read the passage to your Honour. It is at page 221 and the first full paragraph in the first column on that page in the speech in the Senate:
The bill also removes the right for non-Australian citizens to enrol and stand for election to an Australian legislature. There can be no justification for the continuation of such an anomaly. The Government does not believe that non-Australian citizens should be able to decide what laws will apply to Australian citizens in an Australian community. The Government does not believe that Norfolk Island should, in this respect, be different from all other Australian legislatures. It is a most fundamental aspect of representational government.
We rely on, we repeat and adopt that paragraph. My learned friend criticises it because, of course, of his fundamental premise that Norfolk Island is not part of Australia. It is, no doubt, some foreign place which has nothing to do with us.
KIRBY J: This was a speech by the Minister for Defence, was it, 19110? It is not entirely clear. These are second reading speeches incorporated into the Hansard.
MR BENNETT: This is a speech of the Senate, your Honour, yes, by the Minister for Defence.
KIRBY J: So this is 2003 legislation for the defence of the Commonwealth.
GUMMOW J: No, he is the Minister in the Senate representing the responsible Minister in the House, I should imagine.
MR BENNETT: Yes. At page 215 your Honour will see that Senator Hill, the Minister for Defence, in the Senate moves “that the following bills be introduced” and the fourth one is “A bill for an act to amend the law relating to Norfolk Island”. He then makes the second reading speech in the Senate which is that speech.
Now, it is inherent in my learned friend’s submission that this Court needs to decide in relation to any territory where the issue arises who are the people of the territory by reference to standards of history, ethnicity and the like, and that if a Commonwealth law defines the franchise in one iota differently to the way this Court would so define it then it is invalid.
KIRBY J: Do not be too shocked about that because the Court had to do a similar thing with the word “jury” and we decided, contrary to the history of the jury, that it did not have to be men of property. It had to be all citizens of Australia. That is a constitutional task that falls to the Court from time to time.
MR BENNETT: Yes, but there is a difference here where my learned friend’s submission is that notwithstanding a power to:
make laws for the government of any territory surrendered . . . and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit -
that that is limited by concepts of who are “the community or the people” in a particular territory, and that is a very big gloss to imply into the Constitution, and one simply cannot get it from the word “laws” or the word “government” or even the word “representation”, although, of course, the last part of it which uses the word “representation” does not refer to the internal government of the territory. It is interesting that the section does not contain the words which appear in section 24 which provides that:
The House of Representatives shall be composed of members directly chosen by the people –
Those words do not appear anywhere in section 122. The final matter I need to attend to in relation to the third part of my submissions is the cases on which my learned friend relies to establish that external territories in general, and Norfolk Island in particular, are not part of Australia. I will deal with these fairly quickly, but in every case what he has done is to take a sentence out of context, a sentence having a totally different meaning, or a sentence referring to the undoubted fact that territories are diverse and differ from each other in many respects.
Now, one starts with Buchanan v Commonwealth (1913) 16 CLR 315, and the issue there concerned the applicability of section 55 of the Constitution to the Northern Territory. The ratio of that case is very simple. Section 55 is concerned with the relative powers of the Senate and the House. It is therefore peculiarly concerned with matters affecting States, and therefore is not concerned with matters affecting territories. My learned friend referred to page 330 where in the context of section 55 Acting Chief Justice Barton said this at line 5:
I cannot think, then, that in legislating for a territory in pursuance of sec. 122 Parliament is bound to have regard to the provisions of sec. 55, which, in my judgment, are referable to “taxation” only as the word is used in sec. 51 (ii) – the taxation of a Commonwealth whose component parts are the States. Territories, until they become States, are dependencies, and not in this sense –
and we stress the words “in this sense” –
component parts of the Commonwealth; and legislation for them, when it takes the form of taxation, is not, in my opinion, the taxation of the Commonwealth which is the subject –
of that section. So it is in the context of analysing the particular provision and it has not been applied in later cases in that form, and the case does not stand, we would submit, for any relevant principle that assists my learned friend.
R v Bernasconi (1915) 19 CLR 629 in the passage in the judgment of Justice Isaacs commencing at page 637, that of course is the classic case talking about the differences between territories and pointing out the inappropriateness of juries in an ex‑German territory. The passage at 637 to 638 makes that very clear. He says at page 637 point 7, the second full paragraph on the page:
When the Constitution, however, reaches a new consideration, namely, the government of territories –
this is new from section 80 –
not as constituent parts of the self-governing body, not “fused with it” as I expressed it in Buchanan’s Case, but rather as parts annexed to the Commonwealth and subordinate to it, then sec. 122 provides the appropriate grant of power.
He then goes on to the passage about the differences and the inappropriateness of the British jury system. So he is talking there about the extent to which a particular provision of the Constitution designed for a particular purpose, section 80, has application to territories where they are necessarily diverse. It is not a general proposition that territories are not part of Australia. Of course, that is illustrated by the fact that his Honour did not draw a distinction between internal and external territories in making those observations.
Mitchell v Barker (1918) 24 CLR 365 is a case concerning whether a magistrate in the Northern Territory can exercise judicial power of the Commonwealth or does so. The passage appears in the judgment of the Court delivered by the Chief Justice who was answering the question whether a territory court is a federal court. He was not answering the question whether a territory is part of Australia. A State court is not a federal court, although it may exercise federal jurisdiction, but it is clearly part of Australia. He says at the beginning of the judgment on 367:
This appeal . . . is brought on the assumption that this Court is a Federal Court within the meaning of sec 73 of the Constitution – an assumption which is, at least, open to very great doubt. In R v Bernasconi this Court held that the group of sections comprised in Chap III of the Constitution do not apply to a Territory of the Commonwealth. If that is right in its largest sense, the Special Magistrate’s Court is not a Federal Court –
But in that context his Honour says this:
It may be that a distinction may some day be drawn between Territories which have and those which have not formed part of the Commonwealth. But the Court, as now constituted, cannot say so.
So not only is it a dictum with the word “may” twice, he goes on to say that the Court is not saying so. He talks about the Papua Act and the Northern Territory Act and so on. It is not authority for any proposition that there is some vital and necessary distinction.
The next case is Mainka v The Custodian of Expropriated Property (1924) 34 CLR 297. The passage here is in the judgment of Justice Isaacs at pages 300 to 301 where he discusses the nature of mandated territories. Having gone through the history of the mandate, which of course was annexed to the relevant Act, he says:
Thus, starting with the basis of Imperial statute, there is a connected chain of authority leading to sec 2 of the Ordinance of 1922 conferring the necessary appellate jurisdiction.
This is appellate jurisdiction from New Guinea.
The words in art 2 of the Mandate, “as an integral portion of the Commonwealth” are found, with the necessary substitution of the mandatory, in the other mandates of the same class –
these are the other UN mandates and he refers to South‑West Africa, Samoa and Nauru.
The words in the Australian Mandate appear to mean, not that the mandated territory is deemed to be physically part of the continent of Australia –
which obviously it cannot be –
but as territory belonging to the King in right of the Commonwealth of Australia.
That is simply not saying it is not part of Australia or part of the Commonwealth; it is simply saying it is not physically part, whatever that means, and that it belongs to. “Belongs to” is as close a relationship as one needs for relevant purposes. It is not dealing with the question of whether it is part for some constitutional purpose or another.
GLEESON CJ: The issue in Berwick v Gray about whether Norfolk Island was part of the Commonwealth arose, as I understand it, because of a submission that was made to the effect that revenue raised by taxation from residents of the Island could only lawfully or constitutionally be applied for the benefit of the Island, and it was in responding to that argument that the Court or some members of the Court said Norfolk Island is part of the Commonwealth. It was to reject an idea that they could only lawfully be taxed if the revenue raised was expended entirely for the benefit of Norfolk Island.
MR BENNETT: Yes. Your Honour, it is another example of this discussion taking place in particular contexts, but it is a context, unlike the others, very close to this one because the argument is, in effect, it has to be for the benefit of the particular group, not for the benefit of Australians as a whole and, therefore, it is separate in that sense. That argument was rejected though. It was rejected in Lamshed v Lake which I will come to and we submit it should be rejected here.
Your Honour, the next case is Jolley v Mainka (1933) 49 CLR 242. This, like the first Mainka Case, was a currency case involving New Guinea. The first passage is that of Justice Starke at page 252. He says at the top of the page:
It is contended that the provision of the Commonwealth Bank Act 1920 making Australian notes legal tender throughout all territories under the control of the Commonwealth is not in force in the Territory of New Guinea, because it is not a territory within the meaning of that Act, and also because the New Guinea Act 1920 provides that the Acts of the Commonwealth shall not be in force in that Territory unless expressed to extend thereto. New Guinea, although accepted under mandate from the League of Nations, is nevertheless in my opinion a territory “otherwise acquired by the Commonwealth” . . . and necessarily therefore a territory “under the control of the Commonwealth” -
and then he goes on to discuss the Commonwealth Bank Act in some detail. It is not dealing in any way with the question about part or not part. It is simply whether particular legislation is expressed to apply to it as it is required to. It is interesting within this case Justice Evatt, at page 279, says at the top of the page:
Further, sec. 122 not only looks to the “acquisition” of territory, but to the possibility of the representation of every such territory in the Commonwealth Parliament itself. The process envisaged is one of a gradual approach of the acquired territory towards inclusion within the existing organization of the Commonwealth –
That is existing organisation, ie, of States. It is not saying it is not part of it.
In the Mandated Territory, the process envisaged by art. 22 is exactly reverse.
That, in my respectful submission, again is not something which really has any relevance. He says:
It is to be controlled as if it were, contrary to the fact, an integral portion of the Commonwealth -
but he is clearly using “integral” there to refer to States and that is not something which is of any assistance in the present question.
Ffrost v Stevenson (1937) 58 CLR 528 concerned the question of service in - extradition, but extradition to New Guinea from New South Wales under the Service and Execution of Process Act. The issue there was the extent to which one could have a law of the territory which in a sense operated indirectly in the mainland itself. The Chief Justice, Sir John Latham, at page 551, having discussed in some detail the nature of a mandatory, says at the bottom of the page:
the mandate is recognized by the Act itself to be the source of governmental powers of the Commonwealth.
In other words, it is not a question of the mandate being something external which affects the powers under section 122, as some of my learned friend’s submissions appear to suggest. It is rather that the mandate is incorporated in the Act and therefore one has to look at it to see what the Act does:
The position of a mandatory in relation to a mandated territory must be regarded as sui generis -
and goes on to discuss that.
KIRBY J: Is there anything in the cases that suggests, either by analogy with the mandate of the League of Nations or trusteeship under the United Nations, that a territory which is placed by the Queen under the authority of and accepted by the Commonwealth is likewise in a position of trust, that the Commonwealth has received this territory and it has received it by a special route and therefore has it placed under its authority, but it is a territory of a peculiar and particular kind to the people of which the Crown and the Commonwealth owe a trustee type obligation?
MR BENNETT: So far as I am aware, no one has ever said that, your Honour.
KIRBY J: Would that be inconsistent with the words of 122 read now in the light of the greater wisdom that has come from our acknowledgement of our mandated and trustee obligations to certain territories?
MR BENNETT: No, your Honour, because that obligation comes solely from the Commonwealth Acts which incorporate the mandate. It does not come from outside; it comes from inside.
GUMMOW J: Fishwick v Cleland would support you, would it not?
MR BENNETT: Yes. Yes, I am coming to that case.
KIRBY J: That might not be the way the League of Nations or later the United Nations looked on it. You will remember they were very critical of our administration of Nauru, that we were trustees, but we just took all the superphosphate.
MR BENNETT: Well, your Honour, the criticism related to an alleged breach of an international obligation.
GUMMOW J: Well, that is what Fishwick v Cleland ‑ ‑ ‑
MR BENNETT: It says nothing about the validity of an internal law which does that.
GUMMOW J: Fishwick v Cleland was all about the joint administration of Papua New Guinea.
MR BENNETT: Yes.
GUMMOW J: The court said in 106 CLR 186 even if it was inconsistent with the United Nations trustee arrangements, that would not go to legislative validity of the Papua New Guinea Act which provided for the unified administration of the two territories.
MR BENNETT: Precisely, your Honour. That was all I was going to say about Fishwick v Cleland when I came to it, so your Honour saves me ‑ ‑ ‑
KIRBY J: It sounds like a rather insular attitude.
MR BENNETT: Your Honour, there has always been a distinction between domestic law and international law, and the ‑ ‑ ‑
KIRBY J: It is a distinction that is being reduced over time.
MR BENNETT: Well, your Honour, not to the extent of affecting our government of a territory which is simply ‑ ‑ ‑
KIRBY J: Law marches in step with reality, ultimately.
MR BENNETT: We submit it does not assist at all in this case. Your Honour, the next case is Lamshed ‑ ‑ ‑
KIRBY J: Anyway, it has not been argued.
MR BENNETT: No. The next case is Lamshed v Lake (1957-1958) 99 CLR 132. This, as I say, concerned a provision in the Northern Territory Act that trade, commerce and intercourse from the Northern Territory and the States should be absolutely free. The question was whether that could be used in relation to conduct in South Australia and the Court had no trouble in holding that it could; Justices McTiernan and Williams dissented. The Chief Justice, Sir Owen Dixon, at pages 140 to 141, talks about the separation of the Northern Territory from South Australia and the history of it. At page 141 point 5, he states the proposition which he proceeds to reject:
The chief ground upon which it is said that s. 10 declaring trade, commerce and intercourse between the Territory and the State shall be free can have no effect upon the laws of the State of South Australia is that s. 122 empowers the Parliament to make laws for the government of the Territory and no more. Accordingly it is said that laws made under the power cannot have a direct operation in the rest of Australia. It is just as if the Commonwealth Parliament were appointed a local legislature in and for the Territory with a power territorially restricted to the Territory.
It is an interpretation of s. 122 which I wholly reject. To my mind s. 122 is a power given to the national Parliament of Australia as such to make laws “for”, that is to say “with respect to”, the government of the Territory. The words “the government of any territory” of course describe the subject matter of the power. But once the law is shown to be relevant to that subject matter it operates as a binding law of the Commonwealth wherever territorially the authority of the Commonwealth runs.
Just putting that a little differently – it cannot be an objection to a law under section 122 that it is for the benefit of Australia rather than the territory. That was, as your Honour the Chief Justice mentioned, rejected later by the High Court where the argument is put in relation to taxation. It shows that it is simply - the sort of basis relied on today, talking about the people of the territory and their relationship with the law is, in my respectful submission, completely misconceived. There is a statement at page 151 in the judgment of Justice Williams where he says, at point 3:
The Territory of Northern Australia is in one respect different to the other territories -
He goes on to limit section 122 in that respect. But the important thing is that his judgment was a dissenting judgment and is directly contradictory to the view expressed by the majority in that case.
Before I leave Lamshed v Lake there is a useful statement in the judgment of Justice Kitto, who was one of the majority, and he puts it in a way much more appropriate to this case. He says in the sentence that straddles pages 153 and 154:
But the fact that the section is found embedded in the agreed terms of federation, with every appearance of having been regarded in the process of drafting as a provision upon a matter germane to the working of the federation, seems to me to underline the necessity of adopting an interpretation which will treat the Constitution as one coherent instrument for the government of the federation, and not as two constitutions, one for the federation and the other for its territories. If that necessity is recognised, the section cannot fairly be read as meaning that the national Parliament, when it turns to deal with a territory which has come under the nation’s authority, shall shed its major character and take on the lesser role of a local legislature for the territory, concerned only to regulate the local law. Surely it means that a territory which has been accepted by the Australian Federation may be fitted into the Australian scene, so far as laws are concerned, by the legislative activity of the Australian Parliament; that the entire legal situation of the territory, both internally and in relation to all parts of the Commonwealth, may be determined by or by the authority of Parliament.
So that is a very precise refutation of my learned friend’s submissions by Justice Kitto, because if we said we think it suits the rest of Australia better for Australian citizens alone to have the franchise on Norfolk Island and enacted the law for that reason only, it would be a valid exercise of the power under section 122, which is precisely the opposite of what my learned friend submits.
In Spratt v Hermes (1965) 114 CLR 226 there are two passages of some relevance. One is in the judgment of the Chief Justice Sir Garfield Barwick starting at page 247 point 6. He starts in the middle of the page saying:
Consequently, in my opinion, the expression “law of the Commonwealth” embraces every law made by the Parliament whatever the constitutional power under or by reference to which that law is made or supported: see per Dixon CJ in Lamshed v Lake.
Although the territories may not be included in the federal system in the sense that the powers of the Commonwealth with respect to them are not federally circumscribed, they are, in my opinion, clearly included in the expression “The Commonwealth”, eg throughout Chap I of the Constitution. I see no occasion for contrasting a Commonwealth which contains or embraces only the constituent elements of a federation with a Commonwealth which includes all the areas over which it can by one power or another legislate. If the fundamental concept of a single Commonwealth is accepted, there would seem to be no need to entertain any distinction between territories which originally contained people who were members of a colony at the point of federation and other territories or to seek to find significance in the presence within a territory of the seat of government.
KIRBY J: That is a very powerful statement and I can take the force of it but it has to somehow be reconciled with other passages in reasons of the Court from time to time that reflect on the different nature of different territories, the different way in which they came into the control of the Commonwealth, of the different type of populations they have, their different relationship with the centre and so on.
MR BENNETT: Your Honour, in our respectful submission, not one of the cases limits the power in section 122 by reference to those matters. What the cases do is look at the legislation in relation to the territory, which in some cases included an annexation of the provisions of the Mandate, and interpret that legislation. None of it says that the power is limited. The other passage in Spratt v Hermes is in the judgment of Justice Menzies. At page 269 at point 7, about three‑quarters of the way down the page, your Honours see the word “laws” in the left‑hand margin. At the end of that line he says:
I am not able, however, to accept the suggested limitation upon s. 122. The notion that there are territories which do not form part of “the Federal System” has been put forward to explain why it is that constitutional limitations such as those which are to be found in s. 55 and Chap. III of the Constitution do not apply to laws made under s. 122 and also how the High Court can, by a law made under s. 122, be given jurisdiction to hear appeals from non-federal courts consistently with the principles eventually adopted in the Boilermakers’ Case. For my part, I am prepared to accept as binding decisions such as Bernasconi, Buchanan and Yee without accepting the particular rationalization that has been offered for them, viz. that territories of the Commonwealth are outside “the Federal System”. To me, it seems inescapable that territories of the Commonwealth are parts of the Commonwealth of Australia and I find myself unable to grasp how what is part of the Commonwealth is not part of “the Federal System”: see the Commonwealth of Australia Constitution Act, s. 5, which refers not only to every State but to “every part of the Commonwealth”. If there be room for doubt as to this in so far as territories outside Australia are concerned, I think the terms of s. 122 itself preclude doubt in the case of territories within Australia. That section contemplates that an area which is part of a State, and so within “the Federal System” will be accepted –
Et cetera. So what he is saying is, proposition 1, all territories are part of Australia, proposition 2, particularly internal territories for an additional reason.
GLEESON CJ: Does this mean that the federal Commonwealth is not quite as indissoluble as the Constitution in its opening part represents? We could give Norfolk Islanders independence, could we not?
MR BENNETT: Yes, your Honour.
GLEESON CJ: So if it is part of the Commonwealth and yet we could give it its independence, to that extent the Commonwealth is not indissoluble.
MR BENNETT: Your Honour, first of all, there may be an open question as to what is meant by “indissoluble” in that context. It may simply mean that the union between the States is indissoluble, not that, for example, New South Wales and Australia between them could not give Lord Howe Island its independence.
KIRBY J: Independence was asserted and acknowledged in the case of Papua and New Guinea, so to that extent the indissolubility did not apply to them.
MR BENNETT: And Nauru, your Honour.
KIRBY J: And Nauru, yes.
MR BENNETT: Although in that case there was a later reassignment of a right of appeal.
KIRBY J: A right of first instance hearing in the original jurisdiction of the court, not an appeal.
MR BENNETT: I am sorry, your Honour, yes, I stand corrected.
KIRBY J: So it has been held.
GLEESON CJ: Maybe that which is indissoluble is only the original federal union.
MR BENNETT: Yes, exactly, your Honour. Indissoluble does not mean that little bits of States cannot be given away. It means rather that the union of the six States is indissoluble. Even if it did have that secondary meaning, all that would illustrate is that the words are used in different senses in different parts of the Constitution.
KIRBY J: “Indissoluble” is followed by the words “under the Crown”. There are some who contend that at least that part is not indissoluble, that link is not indelible.
MR BENNETT: It is the union that is – but, your Honour, the argument would not assist my learned friend in this case because of the alternative bases on which one can put it. The next case is Fishwick v Cleland which I think I have already referred to sufficiently and will not go back to. The remaining recent cases are Newcrest, Ame and Capital Duplicators. In relation to Newcrest Mining (WA) Ltd v The Commonwealth (1996-97) 190 CLR 513, the present matter was referred to by a number of your Honours. Your Honour Justice Gummow at page 597 said in the long paragraph in the middle of the page:
The addition of the words “of the Commonwealth” to the phrase in s 51 “laws for the peace, order, and good government” requires further attention. Their presence does not confine the heads of power in s 51 so as to restrict the postal power to an operation with respect to the States, the borrowing of money on the public credit of the Commonwealth to borrowing in States, the census to those found in States, and the currency, coinage and legal tender to that circulating or proffered in the States. Rather, the government referred to in the phrase “laws for the peace, order, and good government of the Commonwealth” is that of the body politic wherein and for which the laws made by the Parliament have the binding force specified in covering cl 5. The body politic comprises “the courts, judges, and the people of every State and of every part of the Commonwealth”. Territories are parts of the Commonwealth within the meaning of covering cl 5.
Justice Gaudron does not specifically address that issue but says at page 561 that she agrees generally with the reasons for judgment of your Honour. At page 562 she does note the different meanings of the word “Commonwealth”. Justice Toohey agrees with Justice Gaudron and the ‑ ‑ ‑
KIRBY J: Justice Toohey reserved the correctness of Teori Tau. He would not go as far as Justice Gaudron, Justice Gummow and I would go.
MR BENNETT: No, that is so, your Honour.
KIRBY J: Therefore, Teori Tau still remains in place.
MR BENNETT: Yes, but Teori Tau is not a decision on whether the territory is part of the Commonwealth. It is a decision on whether the limitation, section 51(xxxi), applies to a law made under section 122. It is a question of internal construction of the Constitution rather than any proposition of the type being considered here. Your Honour Justice Kirby, at page 656, referred in passing to the matter again and said at the top of the page:
The more recent authority of this Court has evidenced a gradual retreat from the approach of complete disjunction –
that is of territories from the rest of Australia –
and a return to Dixon J’s insistence upon viewing the territories power in its context in a Constitution established by and for the people of Australia for the entire government of their country, including the territories. Perhaps this movement reflects an appreciation of the change of the political realities upon which the Constitution must operate as much as fresh insights into the text and this Court’s decisional authority. No longer is s 122 of the Constitution necessary for the contemplated or prospective government of colonies such as Papua‑New Guinea and Fiji, with their distinct needs, as originally envisaged when the Constitution was drafted. Now, the power must be read as part of a constitutional document providing for the government only of the Australian people, including those who live in the mainland and island territories of the Commonwealth. They constitute one people and Australia is one country. It is for such a people and country that the provisions of ss 51(xxxi) and 122 must now be understood and applied by this Court. The only way to avoid absurd results, out of joint with contemporary realities, is to read s 122 as subject to the expressed and implied safeguards, restrictions or qualifications appearing elsewhere in the Constitution.
Then Teori Tau is overruled.
GUMMOW J: Justice Toohey’s position in Teori Tau in Newcrest should not be misunderstood, at the bottom of page 560 in Newcrest. As a consequence of Lamshed v Lake he is saying that in the Northern Territory and the ACT the Parliament will be relying upon a section 51 power which…..into the territory. In that case it was the external affairs power and therefore is subjected to 51(xxxi). It is only when you get into the realm of a law that is supported only by 122 ‑ ‑ ‑
MR BENNETT: Yes, a number of the earlier cases referred to the external affairs power as well in relation to aspects of particular legislation.
GUMMOW J: Exactly.
MR BENNETT: There is a line in the judgment of Justice McHugh at page 585 where he says in the first full paragraph on the page:
it is of not relevance to the question of construction of s 122 that State owners are protected by the “just terms” guarantee against Commonwealth acquisitions and territory owners are not so protected. The relationship between the State owner and the Commonwealth in such a case is a federal relationship. The relationship between the territory owner and the Commonwealth is non‑federal. Moreover, it should not be overlooked that, on any view of the Constitution, territory owners and residents are otherwise disadvantaged compared to State owners and residents. Territory residents are not “people of the Commonwealth” for the purpose of s 24 –
Well, obviously not. That section divides up the States and the voting from each one –
Consequently, they have no constitutional right to participate in federal elections for the House of Representatives. They are not “people of the State” for the purpose of s 7 of the Constitution. Consequently, they have no constitutional right to participate in federal elections for the Senate. They are not residents of States for the purpose of the protection given by s 117 –
That of course refers to residents of States –
Consequently, they may be discriminated against in the States by the States and in the territories by the Commonwealth or their own government if they have self‑government.
Well, that proposition of course, we would submit, supports us. It draws a distinction, but it draws a distinction which does not in any way limit the relevant power in section 122, and it draws the distinction for particular purposes only where clearly the distinction has to be drawn.
KIRBY J: I was not clear from the answer to my question yesterday as to whether the people of Norfolk Island secure a vote for the Australian Senate and, if so, how?
MR BENNETT: Your Honour, I think the answer to that, and I will say this subject to correction, is that the provisions of the Commonwealth Electoral Act have some detailed sections which have the effect that when one goes from the Commonwealth to Norfolk Island, one keeps one’s right to vote in the old electorate.
KIRBY J: Even though no longer residing there.
MR BENNETT: Yes. One is treated as if one was…..certain purposes. I do not ‑ ‑ ‑
KIRBY J: But this would only apply to Australian citizens and that residual class of British subjects who were not cut off by about 1979, I think, or something like that.
MR BENNETT: Yes. The provision is section 95AA(2):
“qualified” Norfolk Islander means a person who:
(a) resides in Norfolk Island; and
(b) would be qualified for enrolment under section 93 if he or she lived at an address in a Subdivision and had lived at that address for a period of one month last past; and
(c) is not entitled to be enrolled for a Subdivision –
because the person is no longer there -
a qualified Norfolk Islander who is one of the people of a State for the purposes of section 7 and 24 of the Constitution is entitled to be enrolled for:
(a) the Subdivision in that State for which he or she last had an entitlement to be enrolled.
(b) if he or she never had such an entitlement – a Subdivision in that State for which any of his or her next of kin is enrolled; or
(c) if neither paragraph (a) nor (b) applies – the Subdivision in that State in which he or she was born; or
(d) if none of paragraphs (a), (b) and (c) applies – a Subdivision in that State with which he or she has a close connection.
So there is a fairly broad power to come into it.
KIRBY J: But does all of that only apply to an Australian citizen and the residual category of British subject, or not?
MR BENNETT: Yes, your Honour, because the definition says would be qualified for enrolment if the person had lived at the old address.
GLEESON CJ: Is there corresponding New Zealand legislation under which some residents of Norfolk Island vote at New Zealand elections?
MR BENNETT: I will endeavour to find that out for your Honour and have the Court advised of it. There are some other provisions in the Act about Antarctica and about other external territories and so on, but I will not trouble your Honours with those. They can be readily found in the ‑ ‑ ‑
KIRBY J: The provision you just read is made pursuant to the closing words of section 122 of the Constitution.
MR BENNETT: Yes, your Honour, although ‑ ‑ ‑
KIRBY J: It says “representation of such territory in either House” as distinct from representation ‑ ‑ ‑
GUMMOW J: No. It requires them to constitutional membership of the phrase “people of the Commonwealth”, does it not?
MR BENNETT: It seems to assume an extension of section 7 or 24, rather than, perhaps incidental ‑ ‑ ‑
GUMMOW J: It does not assume it. It requires it, does it not?
MR BENNETT: Yes. It is probably the incidental power combined with sections 7 and 24.
KIRBY J: So there is no representation of the territory as such in either House of Parliament?
MR BENNETT: No, your Honour, not as such.
KIRBY J: Is that a factor that makes one specially careful about disturbing and dividing the people of the territory in that there is no other form of representation of them in the Federal Parliament?
MR BENNETT: We would submit not, your Honour. It may well be a political argument to that effect but it is not a legal argument to that effect. I should deal very briefly with Ame. My learned friend referred ‑ ‑ ‑
KIRBY J: I thought there was some discussion of this issue in the Eastman Cases or one of them concerning the mode of appeal from the territories to this Court and whether for that purpose in Chapter III they were federal courts.
MR BENNETT: Your Honour, there are a number of cases discussing whether territory courts are federal courts and whether they exercise federal jurisdiction. Those cases, we would submit, have nothing to do with the question of whether the territory is or is not part of the Commonwealth for any purpose. They are merely cases which consider the relationship between section 122 and the various provisions in Chapter III, and none of them depend on the sort of proposition my learned friend is putting.
In Ame (2005) 222 CLR 439 there is a passage in the judgment of six of your Honours in that case – the decision itself was unanimous – at page 457. My learned friend places great emphasis on this passage and we submit it is really taken out of context. What was being considered here, of course, was the mass termination of the citizenship of people in Papua New Guinea on the grant of independence and at paragraph 29 your Honours said this:
The acquisition of an external Territory by Australia, as contemplated by s 122, involves –
and I will come back to that word –
the establishment of relations between Australia and the inhabitants of that Territory.
We note two things about the word “involves”. The first is it really means “includes” as one aspect and, secondly, it needs to have added to it “where applicable” to exclude situations such as territories which have no population.
There is no single form of relationship that is necessary or appropriate.
That is clearly correct, as all the cases illustrate.
The kinds of relationship that may be regarded by Parliament as appropriate are as various as the kinds of Territory that may be acquired, and the forms of acquisition that may be adopted. Just as acquisition of a Territory ordinarily –
and we stress “ordinarily” –
involves the creation of relationships, the relinquishment of a Territory involves the alteration or termination of relationships. The steps that may be taken for the purpose of such alteration or termination are also various.
This is in the context of the steps taken at the time of acquisition or termination. My learned friend reads this paragraph as if it said this: the acquisition of an external territory involves and consists of the establishment of relationships between Australia and the inhabitants and its powers under section 122 are therefore limited by the fact that we are only talking about relationships with those inhabitants and therefore it is not a law if it discriminates between some of them.
That is rather like the sort of argument that this Court rejected which was accepted by the English Divisional Court of the Queen’s Bench Court in the case I took your Honours to yesterday. It is that sort of thinking. In my respectful submission, it is just not what the paragraph says. All the paragraph is saying is that one of the things included in the power where you are dissolving the relationship is the relationship with the people who have become Australian citizens. That is all it is saying. It is not saying any more than that. The use of it made by my learned friend, in my respectful submission, is completely out of context.
GLEESON CJ: What that case was about was rights to enter Australia.
MR BENNETT: Yes, that was the other aspect of it. There there was a class of Australian citizen who did not have the right to enter Australia without a visa. Your Honours recall the slightly ironical way the Papua New Guinea Constitution talked about people who had real Australian citizenship as opposed to people who just had Australian citizenship which in some way was not real. In paragraph 30 your Honours said this:
The relations that may exist between Australia and the inhabitants of external territories are not necessarily identical –
and we stress the word “necessarily” –
with those that apply to the people united in a federal Commonwealth pursuant to covering cl 3 of the Constitution, the people of the Commonwealth referred to in covering cl 5, or the people referred to in s 24. For example, the Constitution does not require that the inhabitants of an external Territory should have the right to vote at federal elections. The references in the Constitution to “the people of [particular States]” or “the people of the Commonwealth” serve a significant purpose in their various contexts, but they do not have the effect of binding Australia to any particular form of relationship with all inhabitants of all external territories acquired by the Commonwealth, whatever the form and circumstances of such acquisition.
My friend draws from that the proposition that section 122 is subject to a limitation based on the relationship with the inhabitants of a particular territory, and that inference simply cannot be drawn, we would respectfully submit, from that passage.
Finally, your Honours, in relation to the cases, might I mention Capital Duplicators v Australian Capital Territory (1992) 177 CLR 248. There is a passage in the judgment of Justice Gaudron at page 285. Here of course the question was whether when the word “exclusive” in relation to the power to impose duties of customs and excise in section 90 appeared it meant exclusive of the States or exclusive of the States and self‑governing territories. It may be accepted that it did not mean exclusive of non‑self‑governing territories. They clearly were part of the Commonwealth but had the exclusive power for the relevant purposes. The question was the effect of self‑government being given to a territory and the three Indian appeals in the 19th century and the effect of self‑government in that sense. In that context Justice Gaudron at page 285 said:
Notwithstanding the need to look at the Constitution as a whole, it is convenient to begin with s. 122. The power conferred by that section is a power that applies to territory in the geographic sense.
Not, as my learned friend would say, the personal sense.
It covers, on the one hand, “territory surrendered by [a] State” and, on the other hand, “territory placed by the Queen under the authority of . . . the Commonwealth, or otherwise acquired by the Commonwealth”. And, of course, special provision is made in s. 125 . . . for the seat of government. The power conferred by s. 122 is a general one to make laws “for the government of any territory”, but it does not follow that the content of that power is the same regardless of the way the particular territory was acquired.
Although s. 122 operates generally and with respect to territory in the geographic sense, it is relevant to observe that Australia’s internal territories –
and she mentions two of them –
are historically and geographically different from other territory with which the section deals.
She then goes on to talk about those territories. Then on the next page:
But, as is apparent from the external Territories which were held under mandate from the League of Nations and, later, under trusteeship from the United Nations, the mere acquisition of territory does not, of itself, make that territory a constituent part of the Commonwealth either in a political or in a geographic sense.
We would respectfully submit that it does in a legal sense unless the enacting legislation in some way limits that as it did with the mandates.
CALLINAN J: Mr Solicitor, do you get a negative implication in relation to territories out of section 107 of the Constitution which, of course, continues the States?
MR BENNETT: Section 107 could not have applied to territories because there were not any at the time of Federation.
CALLINAN J: That is what I am suggesting. Well, it could have. It could have continued the powers and rights of the States and conferred similar rights, continuing rights as it were, upon territories that might become part of the Commonwealth, but it does not.
MR BENNETT: No, your Honour, which is an illustration ‑ ‑ ‑
CALLINAN J: Whereas you have provision elsewhere in the Constitution for the reception or acceptance of territories, so it would not have been inconceivable that if you had wanted to do that, you might have provided that their rights, if any, of self‑government should continue. So why do you not get a negative implication out of it?
MR BENNETT: I do your Honour. There is a negative implication to the extent that where there was an opportunity to place a limitation on section 122 the framers of the Constitution refrained from doing so. I would add that to the other submissions I make on the construction of section 122.
The fourth and final part of my submissions is very brief indeed, your Honours will be glad to hear. It concerns two historical documents referred to by my learned friend in the special case book which he claims to get support from. The first is the letter at page 130. That is a letter written in 1897, immediately prior to the activity in that year, from Mr Chamberlain to the Governor of New South Wales as Governor of Norfolk Island. He refers to receiving a dispatch enclosing a memorandum to the Premier about the proposed transfer of the administration of Norfolk Island:
I have now the honour to transmit you an Order of Her Majesty in Council, dated the 15th instant, which was passed for the purpose at the last meeting of the Council, and which will, I trust, meet the wishes of your Government, and prove sufficient for all present purposes.
This, of course, was the intermediate compromise that you have the Governor of New South Wales but not New South Wales itself.
I had previously consulted the Law Officers of the Crown as to the measures which would be required in order to effect a complete annexation of Norfolk Island to the Colony of New South Wales, and whether this object could be effected by Order in Council under the [Waste Lands Act].
My friend relies then on this next sentence:
I am advised that, in their opinion, the Island cannot be annexed to the Colony by Order in Council, and that the statute contemplates that Norfolk Island should remain a Crown Colony, governed under the directions of the Queen in Council, not that it should be annexed to another Colony.
Now, there are three things about that statement. First, it is merely the views of the law officers; secondly, it ‑ ‑ ‑
KIRBY J: Why do you dismiss that so lightly?
MR BENNETT: Your Honour, it is not something ‑ ‑ ‑
KIRBY J: I mean, we learn in many of the native title cases how careful the law officers at Whitehall were during the 19th century to act with scrupulous care.
MR BENNETT: Yes, I understand that, your Honour. It has some force for that reason. The second problem is we do not know what the views of the law officers were. We do not have their opinion. We do not know what it was based on. We do know it was not based on my learned friend’s argument about Norfolk Island being a separate and distinct settlement. We do know that. We know that because it says “and that the statute contemplates that Norfolk Island should remain a Crown Colony”. The statute, of course, is not the document that talks about separate and distinct settlement. All the statute talks about is separating it from Tasmania. So one does not know what that was based on. It is difficult to see it from page 65 where the statute appears. The only words are:
shall be lawful for Her Majesty at any Time by Order in Council to separate Norfolk Island from the Colony of Van Diemen’s Land, and to make such Provision for the Government of Norfolk Island as may seem expedient.
It is hard to see why one would not construe those words as permitting annexation to somewhere else, and we say of course that happened in any event in 1913 or 1914. It is of much more significance that the very next document to the letter my learned friend relies on, the enclosure with it, specifically says at the top of page 131:
And whereas it is expedient that other provision should be made for the Government of Norfolk Island, and that, in prospect of the future annexation of that Island to the Colony of New South Wales, or to any Federal body of which that Colony may hereafter form part –
They used the word “annexation”. They do contemplate that it will be annexed, perhaps not by Order in Council, but they certainly do not regard annexation as contrary to the statute there. So it is difficult to see when one reads the two together what one gets from it, but the reference to the statute in document No 38 shows that it cannot have been my friend’s argument about the Order in Council, whatever it was, and it proves too much because it would suggest that the annexation could not take place. That is all I want to say about those documents.
The other document my learned friend gets comfort from is the advice of Sir Robert Garran, or Mr Garran, as he then was, which appears at pages 141 to 142. The part my learned friend relies on appears at page 142. He refers to the history and sets out the Order in Council of June 1856 and the repeal of it, and he then says “Norfolk Island is therefore a separate settlement”. All that can mean in the context of the reference to the Order in Council and its repeal is that that was done in 1857 and in the absence of change it was set up as a separate settlement. He is not saying it cannot stop being a separate settlement or it in some binding way has to remain a separate settlement, notwithstanding the repeal of the order. He is simply not saying that. One only gets that sort of thing if one takes those seven words out of their context.
GLEESON CJ: I am looking at line 25 – during the time when this settlement was being administered by the Governor of New South Wales under the Order in Council of 1897, upon whose advice was the Governor of New South Wales acting? The Premier of New South Wales?
MR BENNETT: Presumably, your Honour, yes, although there were various reservations at that time, but it would have been presumably the advice of the Premier.
GLEESON CJ: But part of the reality behind all this is that administering a territory costs money and, as Mr Reid pointed out on page 121 at line 42, whatever government the money was coming from – and presumably at this stage it was New South Wales – the justification for the expenditure of that government money had to involve some kind of at least understanding that in the fullness of time there was going to be an annexation either to New South Wales or to the Commonwealth.
MR BENNETT: Yes, and that appears from page 121 in the letter from the Premier.
GUMMOW J: Page 174 in the speech on the Bill for the 1913 Act, second column, it indicates what happened between 1897 and 1913:
The island has a capital of £5,700, of which £4,800 is invested in the funded stock of New South Wales . . . The stock is redeemable only with the consent of the New South Wales Government –
et cetera. So it looks as if that is the way things were being done.
MR BENNETT: Yes. It then says:
in taking over the island we shall relieve the State of an expenditure of more than £1,500 a year, its Government may consent to the redemption of the stock –
and so on. There is a detailed analysis of the financial situation there. But just returning to Sir Robert’s advice, he then says:
The possible modes of annexing Norfolk Island to the Commonwealth appear to be:
(1) to make it a territory placed by the Queen under the control of and accepted by the Commonwealth – or otherwise acquired by the Commonwealth (Constitution, section 122) -
That is what, of course, happened. That is the first alternative. The second and third are “to place it within the limits of a State” or “to admit it as a new State” –
The Island could apparently be made a territory under the control of the Commonwealth by the joint operation of an Imperial Order in Council and a Commonwealth Act. The effect of this would be that the Parliament could make laws for its government, and that it would be a dependency of the Commonwealth, not a part of the Commonwealth itself -
My friend relies heavily on those words, but those words are just an aside and in their context they simply mean not part of the States of the Commonwealth because, what he is saying is, in (2) and (3) it is a State, in (1) it is not a State. He is simply using “Commonwealth” in the sense of the six States –
and the general laws of the Commonwealth would not be in force in the Island to any further extent than the Parliament thought fit to provide –
that is what section 122 says –
nor would it necessarily be within the Commonwealth tariff fence.
That would be a matter for the Commonwealth.
In other words, it would be in the same relation to the Commonwealth as British New Guinea will be if the Papua Bill is passed.
The Island could be placed within the limits of a State by –
various procedures –
and the effect would be that it would become part of the State and of the Commonwealth.
So it is clear that he is drawing, for the purposes of that advice, a distinction between a State and not a State. He is using the word “Commonwealth” to mean the States as opposed to the territories.
That is an interesting usage which he chose to use. It is not a usage which has any particular legal accuracy either then or now. It may be a usage having some accuracy for some purposes, but it is a usage, not an opinion. He is not saying in this opinion: “In my opinion territories are not part of the Commonwealth or even external territories are not part of the Commonwealth”. He is not saying that at all. He is just using words in a particular way as a matter of convenience in an opinion. My friend is construing it as if it were a statute. In my respectful submission, it does not take the matter any further.
Your Honours, the conclusions we ask your Honours to come to are these. First of all, for all the reasons we gave, paragraph 12 of my learned friend’s outline, comes out of nowhere. I have demonstrated that each of the matters said to be a basis for it is for one reason or another unavailable. The most important of those is the proposition that Norfolk Island is not part of Australia, whatever that means. I have demonstrated that that proposition is simply wrong, that it is part of Australia for every relevant purpose and that certainly one cannot take that proposition as something upon which one can found the further proposition that it is foreign to the concept of a law for the government of that territory that it associates it more closely with Australia in the setting of the franchise.
Your Honours, for those reasons and the other reasons I have given in our written submissions and in my verbal submissions, we respectfully submit that the answer to the question in the stated case is clear. The answer is that the – exact wording of the question – it is that the legislation is valid and question (1) on page 44 should be answered “yes”, and consequentially question (2), the plaintiffs ‑ ‑ ‑
KIRBY J: Could I just ask you, I know Mr Ellicott resisted the notion that he had to find an implication that would cut down the generality of the words, “may make laws for the government of any territory”, but if one were tempted by his arguments, in effect, to find a limitation or an implication, what is the best case that indicates, as this Court has from time to time, the care that must be taken in deriving implications that are not there in the constitutional text?
MR BENNETT: I suspect, your Honour, and I can only say I suspect, Lange and McGinty.
KIRBY J: But Lange did, in fact, embrace an implication.
MR BENNETT: While indicating how limited it was.
KIRBY J: Perhaps you might just, if you would not mind - you said you were going to send in a note in answer to Justice Callinan, I think - if you can just find a couple of cases which have said that, it might be helpful to read them again?
MR BENNETT: Yes. Your Honour, the other matter I should have mentioned is this. To the extent that my friend seeks to get comfort from the ethnicity of a high proportion of the residents of Norfolk Island, one could say the same thing about Hahndorf in South Australia or about ‑ ‑ ‑
KIRBY J: That is not a distinct community with a long history separate from geographically, and in some ways historically and emotionally in some ways from the rest of Australia.
MR BENNETT: No, your Honour. Those are additional elements he needs to rely on. The element of the ethnicity cannot get him there. Or the other example was the Sikh community in Woolgoolga and one can think of ethnic communities in suburbs of Sydney and Melbourne. One does not get any particular constitutional right ‑ ‑ ‑
GLEESON CJ: It might be more accurate to say that if you are thinking in terms of ethnicity or that kind of history, it might not be safe to assume that there is only one community in Norfolk Island.
MR BENNETT: Precisely, your Honour. We know that the population has been swelled by immigration of various types over the years and the original group has been diluted. Also, of course, whether it goes back far enough to justify the appellation is something one could debate, but that is another matter. It goes back, of course, initially to the five families of the mutineers and the three families that joined them on Pitcairn, making eight families in all which came across. One would not normally apply the word “ethnicity” to that sort of group but that is not really relevant except to my learned friend’s emotional argument.
KIRBY J: Ethnicity might not be quite the correct label as to why the plaintiffs seek a distinctive position as people living on Norfolk Island. It may be more a question of their notion of identity, their identity as Norfolk Islanders as distinct from, as it were, unwilling Australian citizens.
MR BENNETT: Your Honour, many people put a local allegiance ahead of their national allegiance. It is interesting that if one reads the Danish newspapers around the time of the recent marriage, one would hardly know that the princess came from Australia; one would know that she came from a place called Tasmania. There are all sorts of contexts in which people place great regard on their local loyalty as opposed to their more general allegiance.
KIRBY J: But neither in your written submissions nor your oral have you suggested that there is some hidden agenda here of taxation or other advantage, that that is not a matter in the case.
MR BENNETT: Your Honour, we have not said that there is or there is not a hidden agenda. We have not treated that as relevant.
KIRBY J: No, it is a question of your assertion that the Commonwealth can lay down for the Territory as everywhere else that you have to be an Australian citizen and their assertion, “We want to keep our own identity” and whether those two can mix.
MR BENNETT: As might people in other ethnic enclaves.
GUMMOW J: But there is no question of people being stateless. The people in question are New Zealanders.
MR BENNETT: Yes, and one American and I think one citizen of the UK.
GUMMOW J: Yes.
MR BENNETT: That is so, your Honour, and we are not taking away citizenship anyhow. Any of them could apply for Australian citizenship.
GUMMOW J: Exactly.
MR BENNETT: This is simply a normal limitation in the franchise in a single country of which this island forms part. May it please the Court.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Ellicott.
MR ELLICOTT: Your Honours, the question whether people can apply for Australian citizenship is, in our submission, irrelevant to the constitutional issue that we are dealing with. That is a matter of legal significance for other respects but not in respect to this matter, in our submission, because you have to find a test, as we are putting the case, that enables one to say the Australian Parliament can, in the exercise of its power, select out a group or a part of the people for the purposes of what I have called self‑government. I do not want to go back but I simply make note of that.
Your Honours, there was reference to the law officer’s opinion at 130. As we understand it, that opinion was based on the fact that the territories of New South Wales were limited by the Act of 1855. That is the Constitution Act (NSW) in section 46, I think it was. In other words, they were saying that you would need another Imperial Act in order to do it. That is the basis upon which the law officers did that. I can hand up copies of that Act of 1855 if your Honours wish it.
Now, just putting another proposition because the Colonial Boundaries Act was there at the time and maybe that could have been used, but they did not, as we understand it, refer to that. There was an opinion later that said you can do it because of the Colonial Boundaries Act but only the Commonwealth could do it because when that opinion was given the Colonial Boundaries Act, according to clause 6, I think it is, only applied to the Commonwealth and did not apply to the States. But there is a valid reason that they gave – in their eyes, a valid reason – which comprehends that. Now, we can hand up those opinions and we can hand up that Act, if your Honours wish it, but that is the explanation.
GUMMOW J: What is the date of the Colonial Boundaries Act?
MR ELLICOTT: It is 1895, I am sorry, your Honour.
GUMMOW J: Yes, that is what I thought.
MR ELLICOTT: That is covering clause 8.
GUMMOW J: Yes. That was designed to fix up a whole confusion, really, of bits and pieces of legislation?
MR ELLICOTT: Yes, that is right, and whether they overlooked it, I do not know, but they gave their opinion, I think, in ‑ ‑ ‑
GUMMOW J: In 1897.
MR ELLICOTT: The opinion is dated 10 December 1896, so the Boundaries Act had been passed.
MR BENNETT: I accept what my friend has just said.
GUMMOW J: It sounds right, I think.
MR ELLICOTT: Your Honours, my friend, I think, is seeking to lead your Honours into error, and that is not unusual in itself, but for this reason that it seems to – my friend seems to be suggesting that somehow the provisions of section 122 have the effect of giving another power to deal separately with Norfolk Island with the result that it was not accepted by the Commonwealth as a separate and distinct settlement. I just wanted to take your Honours very quickly back to ‑ ‑ ‑
KIRBY J: Is that what he said, or did he not say all of this is just irrelevant. It may be politically relevant, but it is not legally relevant because the words of the grant of legislative power are in absolute generality, “may make laws for the government of the territory”.
MR ELLICOTT: Yes, I do not want to repeat the argument, but we have been talking a lot about whether it is part of the Commonwealth. Now, the basic proposition there is really designed to show that there is a – I do use the word “relationship” – that there is a relationship involved, and it is a relationship which in Ame’s Case is described between Australia and a territory. We are saying that the territory in this case is not part of Australia and that emphasises the notion, now, what do we mean by part of Australia? We mean it is not part of the indissoluble Commonwealth; that is to say, the political entity that was established under the Constitution. It is not part of it. You cannot say it is. It does not become it simply because it is a territory. It does not change that. The word “indissoluble” may not be necessary to say that, but it is stated to be indissoluble. It is in that sense that it is constitutionally relevant to determine whether or not it is part of the Commonwealth in that sense.
That enables our argument, we would submit, to have some merit and we would say substance and truth that indeed there is a relationship, and how do you define it? It is a relationship on the one hand between that indissoluble Commonwealth and on the other hand the territory geographically, as Justice Gaudron said in that case, or otherwise, or does it conjure up notions - for instance, your Honours used the word “inhabitants” in Ame’s Case. Look up the dictionary. “Inhabitants” include – I have to tell my friend it includes penguins. In other words, if you look up the dictionary, the inhabitants of Heard Island are penguins. The inhabitants of Norfolk Island happen to be a lot of people and probably no doubt some very precious animals and others that have gone onto the Island, but they are the people who live there or dwell there.
Now, “inhabitants” in that sense conjures up notions of a relationship between that Commonwealth and the inhabitants of the territory. You do not talk about relationships, except perhaps in an Aboriginal sense, with just land or in a farmer’s sense with the land. That is a different notion. It has spiritual connotations. But so far as the argument legally as lawyers then that is basic to it and that is why we constantly have been putting that it is not part of the Commonwealth.
There is a passage that my friend did not refer to in Capital Duplicators and I must say I did not either and I perhaps should have. It is at 274. In the judgment of Justices Brennan, Deane and Toohey and although it is in no way conclusive it does indicate, we would submit, some reservation on their Honours’ part about Berwick v Gray. Their Honours say this about two‑thirds of the way down:
As Cole v Whitfield showed, one of the objectives of the federation was the creation of a free trade area . . . The territory of the Commonwealth at that time embraced the whole of the territory of those States . . . The Commonwealth of Australia Constitution Act ensured that the territory of the Commonwealth was coterminous with the aggregate of the territories of the Original States. A colony or territory which was not then a part of a State did not become a part of the Commonwealth. It is unnecessary to consider whether an external colony or territory which was not then a part of a State can become part of the Commonwealth unless it be admitted into or established by the Commonwealth as a State pursuant to s. 121 of the Constitution or is included within the limits of a State pursuant to s. 123 of the Constitution.
Their Honours give references to Spratt v Hermes and to Berwick v Gray and that would indicate that their Honours, I would submit, had some question in their minds as to whether the observations that my friend has been relying upon in those two cases have merit. My purpose in going back, and I will do it quickly if I may – first of all, page 65, to the Waste Lands Act at line 35:
Provided always, that it shall be lawful for Her Majesty at any Time by Order in Council to separate Norfolk Island from the Colony . . . and to make such Provision for the Government of Norfolk Island as may seem expedient.
So there were two things. One was to separate and the other was to make such provision as may be deemed expedient. But once the separation took place, that was the end of that power, that power was spent. That occurred, if one goes to 68:
Norfolk Island, shall be a distinct and separate settlement; the affairs of which –
Now, once you get beyond the words “distinct and separate settlement” that has determined the separation. That is the end of that. That power is spent. But the other power, provision:
the affairs of which, until further Order is made in that behalf by Her Majesty, be administered by a Governor –
Now, it is important that the power of separation is gone. It has been exercised and unless a statute comes along nothing can change that situation. The Order in Council of 1897, which is found at 92 and 93, recites the fact of it being a distinct and separate settlement and it does not purport to change that and in line 20 other provision is made for the affairs of the Island.
What is happening in the year 1913 and 1914 is exactly the same, that is to say there is a change in how things are to be done and how the affairs are to be cared for. That is done under an Order in Council and it was a valid exercise of the power conferred by the Waste Lands Act and through the Order in Council of 1856. It was a valid exercise of the power and when it came to the Commonwealth it came, in our submission, as a separate and distinct settlement.
GLEESON CJ: When did transportation to Van Diemen’s Land cease, do you know? I wondered if it was still going on after 1856.
MR ELLICOTT: I had thought it was in the 1840s, but I could be wrong, your Honour.
GLEESON CJ: There was still transportation to Western Australia, was there not, in 1868?
MR ELLICOTT: I take it your Honour means by transportation the act of a magistrate in England or whoever. I am not sure of that, but no doubt there was a movement of so‑called criminals around the colonies.
GLEESON CJ: I was just asking myself why they separated Norfolk Island from Van Diemen’s Land.
MR ELLICOTT: Yes. There is no doubt that a decision had been made at some time in England that transportation should cease and obviously it was spent by the time the Pitcairners came. Your Honour asked the question which I can answer about whether there was anybody on Norfolk Island when the Pitcairners arrived. They arrived on 8 June 1956, which is Bounty Day. That Order in Council was made later in June, but there was a small party of overseers and convicts who had been left there. In other words, the penal settlement, in effect, as a penal settlement had ceased, but overseers and convicts were left there in order to, I suppose, wrap up the buildings and put things in order, but also for the purpose of accommodating the entry of the Pitcairners onto the Island. Within a very short time they removed themselves, or whatever happened, from the Island. So there was no settlement there, one can say, in any real sense.
GLEESON CJ: They were just some transitional arrangements?
MR ELLICOTT: Yes. Your Honour Justice Kirby referred again to British subject for Norfolk Island and when you look at it – and your Honour mentioned what had happened in 1979 or it might have been in the early 1980s, I think, but it does not matter. When it happened, it happened and we had our debate in Sue v Hill in this Court ‑ ‑ ‑
KIRBY J: There were a number of steps and we looked at this in the case of Patterson and Shaw and of Singh. It had a long history.
MR ELLICOTT: Yes. There is quite a history of cases in this Court which your Honours are all familiar with and know much better than I do, but that event was very important because it has obviously infected the parliamentary view of who is Australian or something and they think it has sort of placed a characteristic on anybody who can be called Australian, which of course it is not. It has not done that at all because there are thousands and thousands of people who are not citizens who would call themselves Australian, and they are going overseas and coming back all the time.
But that is really what has caused the problem so far as Norfolk Island is concerned because all these people were voting there and they continued to vote after the restriction came in in Australia and suddenly the community is divided. I do not want to go back to the argument, but it needs to be put into that context, that it is not so much an accident of history but it is a sudden view, no doubt in the context of either the looming or actual passing of the Australia Act and a decision to restrict voting rights to Australian citizenship under the Commonwealth Electoral Act that has ultimately led some 20 years later to this, we say, attempt to restrict the voting rights in the Northern Territory.
Your Honour, the English case did not go on appeal but it did come back again. The reference we have is [2006] EWHC 1038 (Admin). Mr Bancoult commenced proceedings seeking to have relevant parts of a new order quashed and he succeeded in the Divisional Court. We do not yet have a copy of that decision, but we were able to glean that much from a computer search. The reasoning in the case depended on identifying limits to the prerogative power in respect of a colony and the justiciability of such limit. It is probably not very relevant here.
The only relevance of that case, we would submit, is in our favour, that is, the decision in the High Court is the emphasis on the words “the governed”. It does say something. It is about people, as distinct from penguins. It is about people and it emphasises the need, we say, when you come to section 122, to ask about the meaning of “government of the territory” and in terms of government of the people of the territory or the inhabitants of the territory, it raises the very issues that we have raised. I thank my friend for bringing it to your Honours’ attention, but otherwise we do not see it as particularly relevant, because the power that we are seeking to argue with your Honours is not the power to pass laws for the peace, order and good government of the territory, not that aspect of section 122, but the power which is part of the power to pass laws for the government of the territory, namely, the power to deal with the institutions.
My friend said it was meaningless to talk about the people of the territories. How do you determine the people of the – who are they? The Constitution has the very notion in it: the people of the States and the people of the Commonwealth.
Finally, your Honours, my friend has made what we would submit is the only meaningless statement and that is that our submission in proposition 12 comes out of nowhere. That has to be meaningless because we have put down – and I am not going to re‑argue it – in that paragraph, which may need refinement – in the course of argument things are refined – but it puts down a proposition which depends on how you define the people of the territory. That does not come out of nowhere. That comes out of ordinary concepts of who makes up the people of a place or the inhabitants of a place. It is not a meaningless concept. It is a very relevant concept to the Constitution. It is relevant, of course, when we come to talk about democratic institutions.
Your Honours, there are a number of matters – and I say this in conclusion – we have to deal with your Honour Justice Callinan’s request in relation to the Nimmo Report, we have some schedules to refer to. There is
one matter I wanted to mention which I should have mentioned in‑chief. I do not want to go any further than to say on what we think is good authority understand that when Australia’s ratification to the United Nations Charter in 1946 was lodged it was stated to apply to the Commonwealth and separately to the territories of Papua and New Guinea and Norfolk Island and the trust territories.
The Department of Foreign Affairs and Trade cannot find the ratification, which is perhaps unusual, but perhaps we did not, but I think we did and you would think they would have it. We have not been able to find it. We just ask leave to put that in.
GLEESON CJ: Yes.
MR ELLICOTT: We should have mentioned it earlier and to deal with those other matters.
GLEESON CJ: Yes, you can put those matters in writing, Mr Ellicott, and then Mr Bennett was going to give us some information about whether there is any New Zealand legislation corresponding to some provisions of the Electoral Act that he referred to.
MR ELLICOTT: Yes, and there was a reference to the Norfolk Island Act and there is something incorrect in it which I will draw to my friend’s attention. That is in our submission and perhaps that can be corrected. Your Honours, we, of course, would ask your Honours to answer the questions the opposite to that which my friend would contend.
GLEESON CJ: Thank you, Mr Ellicott. We will reserve our decision in this matter and we will adjourn for a couple minutes to allow people to rearrange their papers for the next case.
AT 12.15 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Constitutional Law
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Administrative Law
Legal Concepts
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Judicial Review
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Standing
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Jurisdiction
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Statutory Construction
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Procedural Fairness
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