Bennett & Ors v Commonwealth of Australia

[2006] HCATrans 594

[2006] HCATrans 594

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 TUESDAY, 7 NOVEMBER 2006, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MR R.J. ELLICOTT, QC:   If the Court pleases, I appear with MR G.R. KENNETT for the plaintiffs.  (instructed by Wright Stell)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:If your Honours please, I appear with my learned friend, MS K.L. EASTMAN, for the defendant.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Ellicott.

MR ELLICOTT:   Your Honours, these proceedings are brought by the plaintiffs to establish Norfolk Island’s identity as a separate and distinct community and distinct people under the Australian Constitution.  The effect of the impugned legislation would be to treat the Norfolk Island community as just another part of Australia.  This is not to suggest that the people of Norfolk Island are in some way antipathetic to the people on the mainland.  That would not be so because so many of them have connections ‑ ‑ ‑

KIRBY J:   They are not going to send a gunboat.

MR ELLICOTT:   That is not the point. They believe, and have expected over the years, that section 122 operating on their territory created a relationship with Australia, part of which was that they would remain, until some other constitutional event occurred, a separate and distinct people and community and that Australia would be bound in governing them under section 122 to accept and respect that identity.

Since 1856, all the adult population of Norfolk Island with exceptions accepted at the time - for instance, there was a time, although Norfolk Island may have been one of the early exceptions, where women did not have a vote.  In 1856 women on Norfolk Island did have a vote in one respect, but since then, subject to such exceptions, the adult population of the day until the impugned legislation have enjoyed voting rights and have qualified for election to councils and assemblies that have been established from time to time.  The impugned legislation would wipe all that away in the blinking of an eye and that, I suspect, is why these proceedings are before your Honours and why the matter is of such significance to the people of Norfolk Island.

GUMMOW J:   Mr Ellicott, do we know in the materials how it has come about that a significant segment of the population has New Zealand citizenship?  Is that by descent in some way under New Zealand law?

MR ELLICOTT:   Your Honour, I think that they have that citizenship because geographically Norfolk Island is closer to Auckland than it is to Sydney and Brisbane, and there has of course otherwise been an affiliation between the indigenous population in Norfolk Island and the indigenous population of New Zealand.  But basically it is because over the years New Zealanders have gone to settle and have been accepted into the community of Norfolk Island.

Some of those who have been of Pitcairn descent have not come to Sydney, for instance, for their education but have gone to New Zealand.  Some people who may have been of Pitcairn descent had gone to New Zealand to live and they have married there and brought up children there and later gone back to Norfolk Island.

I suspect over the years a body of New Zealand citizens have found their way to Norfolk Island and the laws of citizenship of New Zealand have applied to them.  There is nothing against dual citizenship in New Zealand and that, of course, has recently been accepted in Australia with the amendments to section 17 of the Australian Citizenship Act, but it is an historical event and New Zealanders – I should call them New Zealand citizens – have formed a substantial part of the population of Norfolk Island.  But to say that they are New Zealanders does not mean that some of them are not of Pitcairn descent; it is a mixed group of people. 

Likewise, a lot of those people who are on Norfolk Island have had their relationships with Sydney for educational and family purposes.  They have been involved in the Australian services historically during the war – all sorts of relationships have occurred.  The core of the population is still of Pitcairn descent.  Naturally over the years it reduces with the influx of other people, but it basically is founded both culturally and historically and in fact on a large core of people who are of Pitcairn descent.

One of the by‑products of this legislation is that you can be of Pitcairn descent and live on Norfolk Island but yet be denied the right to vote or to qualify to take part in the Assembly because you are not an Australian citizen.

Amongst the plaintiffs, all of them are residents of Norfolk Island and some have been there for substantial periods.  Mr Bennett, the first plaintiff, has been there, for instance, since 1968 and, indeed, has been a minister in the Legislative Assembly under the responsible government that was granted in 1979.  Two of them have been involved as members of the Assembly and as a Minister, three citizens only of New Zealand, one is a citizen of the United States, two are descendants of settlers from Pitcairn Island and all have been on the electoral roll of the Legislative Assembly.

The great importance of the proceedings to the people on the Island is perhaps marked by the fact that not only are there individual plaintiffs, but one of the plaintiffs is the administration or, in other words, the government of Norfolk Island.  Now, the effect of the impugned legislation, your Honours will find, if I can take your Honours to pages 206 ‑ ‑ ‑

KIRBY J:   Who is the administrator of the Island?  Who is the administrator appointed by the Commonwealth?

MR ELLICOTT:   The administrator by name is a Mr Tambling, I think.

KIRBY J:   Is he a ‑ ‑ ‑

MR ELLICOTT:   He historically was the member, I think, for the Northern Territory for many years.

KIRBY J:   But he is not himself a descendant of the original inhabitants of the Island?

MR ELLICOTT:   No, and I am not sure of this but within my own knowledge of it, which is not great, but greater than most, is that those people who have been administrators have not come from Norfolk Island.  They have always been people who have come from the mainland.

KIRBY J:   Like the governors used to come from England.

MR ELLICOTT:   Yes, like Mr Peter Coleman who took over the seat of Wentworth from me when I resigned from Parliament came from Norfolk Island.  There have been other ex-senators who have gone there, but before that the administrators, to my knowledge, were people who might have been - for instance, the administrator in 1978 was a Director‑General of ASIO.  So there is a bit of a bag of people ‑ ‑ ‑

GLEESON CJ:   Before the Pitcairners were transferred to Norfolk Island, who were the inhabitants of the Island?

MR ELLICOTT:   The inhabitants up to that point of course were convicts ‑ ‑ ‑

GLEESON CJ:   Before the convicts?

MR ELLICOTT:   Before the convicts there were no inhabitants.  When Captain Cook landed rather precipitously he climbed up the cliffs, which seem larger than the height of these buildings, and he found no one there.

GLEESON CJ:   So when you use the expression “indigenous people” you are referring to Pitcairners?

MR ELLICOTT:   No, I was referring to the New Zealanders.  I am talking of the Tahitian background of the Pitcairners.

KIRBY J:   But the indigenous people of New Zealand are normally taken to be the Maori.

MR ELLICOTT:   Yes.

KIRBY J:   Were you referring to them as being ‑ ‑ ‑

MR ELLICOTT:   There was a Melanesian mission on Norfolk Island and the connection between Norfolk Island and the other Pacific islands and the indigenous people of those islands has been a constant theme in their cultural activities, sporting events and the like have taken place over the years and Norfolk Island has been involved in that.  Although you cannot speak of indigenous people of Norfolk Island, the Pitcairners who went there, and the history is obviously well known to your Honours, were people who were partly Melanesian.

CALLINAN J:   Mr Ellicott, it is my recollection that there is a commission of inquiry, or a Royal Commission into a question of a form of independence in Norfolk Island - I cannot remember who conducted it but within the last 25 years or so.  There should be a report which examined, I think, some of the questions that may be raised in this case.

MR ELLICOTT:   Justice Nimmo did a report in 1975 which went into some of the background in relation to it and it is a reference point for material relating to Norfolk Island.

CALLINAN J:   Can we get a reference to that report or can we get a copy of that report?

MR ELLICOTT:   Yes.  I have one but I did not bring it with me but I will get it.

CALLINAN J:   Thank you.

GLEESON CJ:   There is a judgment of Justice Eggleston, I think, that is a convenient source of historical information.

MR ELLICOTT:   Yes, there is R v Newbery 7 FLR 34 which goes into the background. There is a Senate report recently chaired by Senator Lightfoot from Western Australia. It was fairly heavy handed when it came to Norfolk Island but that is the report under which these laws have been introduced but they all, to some extent, go into the background of Norfolk Island.

KIRBY J:   You seem a little reluctant to give us the Nimmo Report.

MR ELLICOTT:   No, not at all.  I apologise for not having brought it.  The Nimmo Report was considered by the government in 1977, 1978, 1976, and as a result of the consideration of that report it was decided not to implement one of its basic recommendations which really was to extend the mainland laws on to Norfolk Island and the decision was made by the government of the day that these people on Norfolk Island should be entitled to govern their own affairs.

There had been a rather strong view amongst lawyers that Article 73 of the United Nations Charter applied, but that does not seem to have been accepted in the Senate report in ‑ ‑ ‑

CALLINAN J:   I think his Honour’s recommendations were quite different from some strong submissions that were made by counsel assisting.  I just have that recollection also.

MR ELLICOTT:   Yes.  Your Honour seems to have a very close knowledge of that ‑ ‑ ‑

CALLINAN J:   Mr Hampson was counsel assisting and I was in chambers with Mr Hampson so I remember that.

MR ELLICOTT:   I see.  Yes, your Honour.  These reports, of course, have generated views on the part of people, but one of the issues was whether Norfolk Island could economically look after itself and the fact is that apart from the exigencies of matters such as airports and sewerage systems, which are very large expenditures, Norfolk Island basically has been paying for itself.

As I understand it, these movements that are taking place at the moment that are designed to incorporate Norfolk Island do not come from the Treasury, which is not wanting to expend large sums of taxpayer money on Norfolk Island, they would rather it come from other parts of government.  But, be that as it may, the fact is that Norfolk Island has during that period – it started off with things like stamps which, strangely enough, was a very large source of income in those days.  It has dwindled.

It had corporate fees in those days.  Lots of companies registered in Norfolk Island.  It has always had its own customs duty.  It is not part of the customs union of Australia.  It has always had its own migration ordinance, entry into and out of.  A person some time back coming from Norfolk Island to Australia would be treated as any other person coming from overseas.  That is not the case now, but the fact is that Norfolk Island has been an Alsatia in that sense, not for Jack Shepherds but for the Pitcairn people and their descendents and for those who have been admitted into their community. 

Whatever content the community has at the moment has been the result of the attitude of the Australian Government over the years.  From the very start in 1913 under the Act it was provided that the laws of the Commonwealth would not apply to Norfolk Island unless specifically stated, and that is how Norfolk Island has been governed until now.  Basically that has been it.

KIRBY J:   I am surprised, just speaking for myself, that you have not made any reference whatever that I could see in your written submissions to the principles of international law in this matter.  There is no reference to the Charter of the United Nations and there is no reference to the common first articles to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

MR ELLICOTT:   Yes. I was going to give your Honours – I have already mentioned Article 73, which on the face of it one can say, if one reads it literally, it would apply to Norfolk Island, as it applied to Papua and New Guinea or to Cocos Island. They all came in under the same banner of that part of section 122 and they all satisfy the literal description in Article 73, but for some reason in 1975 a Senate Committee decided that Article 73 did not apply to Norfolk Island. I guess it was in the context of the Nimmo inquiry that that took place.

KIRBY J:   Yes, but that is the decision of the Parliament of the Commonwealth.  That is not necessarily the requirement of international law.

MR ELLICOTT:   Well, I think, your Honour, it might, and I will give your Honour the reference.  I am going to give your Honour a reference to the Human Rights and Equal Opportunity Commission’s report.  It is called Territorial Limits:  Norfolk Island’s Immigration Act and human rights and it refers on page 45 ‑ ‑ ‑

KIRBY J:   I am not asking you to deal with this now, Mr Ellicott, but if it is more convenient, if you would send a note or attach the report or whatever has to be done.

MR ELLICOTT:   If your Honour pleases.  It refers at page 45 to this conclusion:

The Commission concludes that the Pitcairners of Norfolk Island should be regarded as constituting a distinct cultural or ethnic minority for the purpose of ICCPR article 27.

So the spirit of Article 73 of the United Nations Charter was brought to bear in 1979 when these people were given self‑government.  They did not have self‑government and they were given it, not in any paternalistic sense, but they were people who it was seen were entitled to it, and I will take your Honours to the Act of 1979. 

But the effect of the impugned legislation, as I was saying, your Honours will find in pages 206 to 210 of the special case.  The Act was assented to on 10 March 2004 and it came into effect on that date.  The effect of it was that whereas up until then persons who were residents – if I can just take your Honours to page 235 for a moment.  It says at regulation 6 or section 6:

a person is entitled to enrolment if the person –

(a)      has attained the age of 18 years; and

(b)      has been present in Norfolk Island for a total of 900 days –

that is two and a half years, in effect –

during the period of 4 years immediately preceding the person’s application for enrolment. 

That might seem a peculiar provision and there were earlier provisions in relation to the period of residence, but the fact is that those provisions found their way in because there was a difficulty in knowing with a transient population of tourists and people on temporary entry permits who might be inclined to stay for a period of, say, six months or 12 months to get work but then leave, whether they had in effect become part of the community or not; in other words, or to put it in terms of residence, whether they had become ordinarily resident.  Basically that did not exclude anybody who was an ordinary resident of the Island.  What has now happened as a result of the ‑ ‑ ‑

GUMMOW J:   But you accept that that law as it is set out at page 235 is valid?

MR ELLICOTT:   Yes.  One could argue about it and it is within the context of the provisions of the section in the Norfolk Island Act 1979 which permitted the Legislative Assembly to determine the qualifications of electors.

GUMMOW J:   Where do see that in the federal statute, the federal statute enforced in 1991 under which the Legislative Assembly was enabled to make this law?

MR ELLICOTT:   Part of that your Honours will find at 196.  In section 38 there is qualification to be a candidate and that was:

(a)he is an Australian citizen or otherwise has the status of a British subject;

(b)      he has attained the age of 18 years;

(c)he is entitled, or qualified to become entitled, to vote at elections

Now, the voting qualification is found in section 31 which is not shown there – that is why you would need the full Act and we have given a reference to the full Act:

(1)      There shall be a Legislative Assembly of the Territory.

(2)Subject to the regulations, the Legislative Assembly shall consist of 9 members.

(3)Subject to this Act, the members of the Legislative Assembly shall be elected as provided by enactment.

That enactment you will find –

KIRBY J:   Which section is that of the 1979 Act?

MR ELLICOTT:   You will find that section 31.  You will find that at 222.

GLEESON CJ:   Is this Act the result of the Nimmo Report?

MR ELLICOTT:   This Act was in the wake of the Nimmo Report.  If your Honour could forgive me for saying so, it was in the wake of a visit by a minister who did not agree with the Nimmo Report’s main recommendations as a result of conferring with the Islanders, and the government supported that view.

At page 223 your Honours will find an ordinance which was passed under the Norfolk Island Act 1957 which, pursuant to that power in the Act of 1979, enabled the Assembly to determine the qualification for enrolment and that is set out at page 224, section 6 of the ordinance, which is in similar terms to the qualification to be elected to the Assembly. In other words, they were given the right, in effect, under the Act to determine their own suffrage and they determined it in a way which did, in effect, confer the right to vote, as well as the qualification for election, on the adult population of the island without exclusion, except for persons who were not British subjects, in effect.

HAYNE J:   In the federal Act that finds reflection in the combination, does it, of section 31(3):

Subject to this Act, the members of the Legislative Assembly shall be elected as provided by enactment.

MR ELLICOTT:   Yes, your Honour.

HAYNE J:   Plus the definition in section 4(1) of an “enactment”, one aspect of which is “a law . . . passed by the Legislative Assembly and assented to under this Act”.  Is that right?

MR ELLICOTT:   Yes.

GLEESON CJ:   I am still not sure, Mr Ellicott, how what I might call the “elaboration” of the concept of ordinary residence that we find on page 235 came in. 

MR ELLICOTT:   Your Honour, if your Honours ‑ ‑ ‑

GLEESON CJ:   I have in mind section 6(1)(b). 

MR ELLICOTT:   Yes.  If your Honours go to page 227, that was an Act of the Legislative Assembly of January 1985.  That inserted provisions for enrolment which changed the conditions of residence, as your Honours will see, from two years.  It went to three years or two years and six months and as I was explaining earlier that was really historically based on the fact that there was some debate about who was ordinarily resident and there were problems associated with people coming in and going out after perhaps 18 months and ‑ ‑ ‑

GLEESON CJ:   Yes, there seems to be some finetuning of this concept of “ordinary residence” which I imagine might have been a big issue.

MR ELLICOTT:   Yes.  It was certainly an issue in the Legislative Assembly.

GLEESON CJ:   How did they get from what appears on page 227 to what appears on page 235?

MR ELLICOTT:   If your Honour goes now to 231 and 232, 6(1)(a) and 6(2)(a), but 6(1)(a) was omitted so it depended then on age and residence.  That is the Act – Statute Law Revision Act 1986.  I have in mind, and this is, in a sense, essential to an understanding of this – and referring to Sue v Hill – the background of British subject as the basis of the right to vote on the mainland, that being removed early in the 80s under the CommonwealthElectoral Act and of Australian citizenship being substituted in the CommonwealthElectoral Act.  So issues are arising in the Commonwealth Parliament about the right to vote and the notion of “British subject”.

GLEESON CJ:   Somewhere along the road that client of yours who is an American citizen got the right to vote.

MR ELLICOTT:   Yes, that would be right.

GLEESON CJ:   Somewhere between page 227 and page 235.

MR ELLICOTT:   Yes, people like him could have had it from 1986 onwards because that omitted the requirement of being an Australian citizen or a British subject, provided the residential qualification was satisfied.  Then that residential qualification was altered at page 235 by the Legislative Assembly Amendment Act 1991.  They chose a period of 900 days or two and a half years and that is what remained in force until the Act which was assented to on 6 October 2005, 237, which altered the qualifications for electors.

This is an Act of the Legislative Assembly, an Act which they did not want to pass which in terms of what was the law, on the face of things, accepting that the amendments had been made to the Norfolk Island Act by the Commonwealth Parliament, they changed the qualifications of enrolment to an Australian citizen to be in conformity with the – on the face of it it was the superior law, that is to say the amendment to the 1979 Act.

GLEESON CJ:   But there was a period between 1985 and 2004 when your entitlement to enrolment and your entitlement to be on the governing body did not depend on any form of citizenship.

MR ELLICOTT:   That is right, and that was accepted by the Australian Government, obviously.  It illustrates how there has been the sudden deprivation of electoral rights and ‑ ‑ ‑

KIRBY J:   We are not talking about a long period.  We are talking about a period some time between 1984 and recent events.

MR ELLICOTT:   In terms of the population, we are really talking about a period since 1856 when we go right through, because these people were always subjects of the Crown.  They were either at common law under the old concepts or later on when notions of British subject developed and they were always British subjects.  Obviously people would come in ‑ ‑ ‑

KIRBY J:   Yes, whether New Zealanders or Pitcairners or Australians, they were all British subjects.

MR ELLICOTT:   Yes, and there is a commonality ‑ ‑ ‑

GLEESON CJ:   Unless they were Americans.

MR ELLICOTT:   Yes, if they were Americans ‑ ‑ ‑

GLEESON CJ:   Which one of the plaintiffs is the American?

MR ELLICOTT:   He is the fifth plaintiff, Mr Kleiner, but you will notice he is of Pitcairn descent, being the great‑grandson of John Forrester Young who was born on Pitcairn Island in 1852 and removed to Norfolk Island in 1856, but he cannot vote.  He is not just a United States citizen; he is a Pitcairner.

GUMMOW J:   Yes, but the possession of that characteristic on the face of it was not a criterion for the legislation.

MR ELLICOTT:   No, but, your Honour, with respect, I have not said that, but I have said ‑ ‑ ‑

GUMMOW J: But sooner or later we have got to find some inhibition in the terms of section 122.

MR ELLICOTT:   Your Honour, that is quite right.  I am just giving your Honours the background of this legislation and the fact that since 1856 what I want to stress is that the adult population, whenever there has been some council or assembly or executive body to which people are elected, the adult population in the large has been entitled to vote and certainly all those who were understood at the time and from time to time to be British subjects, and the great bulk of the population was always made up of British subjects, and it still is.  Ninety‑eight or 99 per cent of the population are people who have an allegiance to the Crown in right of some Commonwealth country, be it the United Kingdom, Australia or New Zealand.  It is because of the notions of citizenship coming across this path that these people have been excluded, but yet they all have the same affinity to the Queen or the King of England as the case may be, and that has been a common thread ‑ ‑ ‑

KIRBY J:   Well, it is not the King of England.  The affinity is to the Queen as the Queen of Australia in the case of Australians.

MR ELLICOTT:   Yes, but to the Queen of New Zealand in the case of New Zealanders and to the Queen of the United Kingdom for United Kingdom residents.

KIRBY J:   But we cannot go back there, Mr Ellicott.  We cannot recreate the Empire.

MR ELLICOTT:   You cannot destroy it for the purposes of Norfolk Island.  It is there.  It does not ‑ ‑ ‑

GUMMOW J:   Well, that is the question, and it is not answered just by assertion.

MR ELLICOTT:   No, but it is there in the population.

GLEESON CJ:   Did this minister who went there after the Nimmo Report make a public report himself?

MR ELLICOTT:   He did, your Honour.  There is a ministerial statement of May, I think it is, 1978, and we will hand it up, as well as the second reading speech.

GLEESON CJ:   Thank you.

HAYNE J:   You took us, Mr Ellicott, to the 2005 Act of the Legislative Assembly.  Why was that enacted when I see at page 209 in the federal Act that the new section 39A is said to have effect despite subsections 6(1) and (2) of the Norfolk Island Act?

MR ELLICOTT:   It was done not to have an Act that was out of step with the Self Government Act, 39A(5).  It just brought it into line, that was all.

HAYNE J:   There is an expression by the local Legislative Assembly of intention found in section 6 as amended as the federal Act ‑ ‑ ‑

MR ELLICOTT:   Yes, but section 31 was still there which gave them the right to determine enrolment and this had the effect of, in effect, terminating on the face of it the effect of the 1979 Legislative Assembly ordinance or Act passed by the Legislative Assembly.  On the question of the numbers of people on the Island, can I take your Honours to determine what the make‑up of the population is?

Now, your Honour Justice Gummow put to me a moment ago that where do we find it in section 122? Section 122 talks about a territory but what does the word “territory” mean? Does it mean some land in the middle of the Pacific Ocean? Is that what it means? Surely it does not just mean that. It does mean it in a sense but it is a place where people live. It is not about a nature park. It is about a community or a population and it is the make‑up of the population that needs to be looked at and considered ‑ ‑ ‑

KIRBY J:   I wonder if that is correct ‑ ‑ ‑

MR ELLICOTT: Section 122, in our submission, embodies that notion that when you talk of a territory you are talking about a community of people.

CALLINAN J:   No, it might be an area of land that is of enormous strategic importance and where nobody lives.

MR ELLICOTT:   I understand there is Ashmore ‑ ‑ ‑

KIRBY J:   Look at Antarctica, the Antarctic territory.  There are lots of islands and inlets and uninhabited rocks and so on that are part of the Antarctic territory.

MR ELLICOTT:   Your Honours have me.  I will go back a step ‑ ‑ ‑

KIRBY J:   Penguins, penguins are the only community.

MR ELLICOTT:   When you talk about a territory that has people on it, you are talking about a community of people, not just the area of land geographically.  You must be.  In some cases, like Ashmore and Cartier and – I am not sure about Antarctica because I do not know whether there are people who are there permanently or not, but certainly Ashmore and Cartier are just islands.  One knows that there are people on Cocos Island and one knows that there were lots of people in Papua New Guinea and when this Court in Ex parte Ame talked about section 122 establishing a relationship, that relationship between the Commonwealth and the territory was surely, very largely, a relationship between two communities. I will take your Honours to the authorities and develop that, but I just wanted to say in answer to what Justice Gummow put to me that that is the basis upon which we are putting this.

GUMMOW J:   It seems to be some development - the 18th century ideas in Robinson v Bland and so on of acquisition of settled territories by the British Crown, does it not, as distinct from acquisition of territory where there was no settled system of government.  Why should that notion be translated into 122 to limit it?

MR ELLICOTT:   Because the words that are used there “placed by the Queen under the authority” of the Commonwealth.  It is territory so placed and it is a matter of construing those words “placed under the authority” give some notion even of trusteeship.  Some notion, but I do not want to push the words too far.  I am not saying that it is equivalent to the word “trustee” but it is very close to it.  “To place it under the authority” – what did it mean?

GUMMOW J:   It says “placed by the Queen”, that means placed by the Imperial Government, does it not?

MR ELLICOTT:   Yes.  That is how they finally resolved that question about the mandate of German New Guinea by saying the King actually placed it under the authority of Australia, under the ‑ ‑ ‑

KIRBY J:   Yes, but assume that a failing state in the Pacific sought association with Australia, that expression “placed by the Queen” would be now read as “placed by the Queen of Australia”, would it not?  Assume that that was the way that such a state became a territory of the Commonwealth.

MR ELLICOTT:   I would assume if that territory had no connection with the Queen in right of the United Kingdom and previously had no connection with the Queen in right of Australia, that place or that territory would be otherwise acquired, in other words, under the other words in section 122.

KIRBY J:   I wonder about that.

MR ELLICOTT:   On the other hand, it may be doubtful whether the words “placed by the Queen” would now cover anything other than – and even this may be debatable – the Queen in right of the United Kingdom.

KIRBY J:   I wonder about that.  After Sue v Hill I am not sure that you could say that. I mean that historically was clearly what it was but the Constitution often gets an ambulatory construction. Sue v Hill is a good example.

MR ELLICOTT:   Those words “otherwise acquired” are there to scoop up anything that does not fit within it and it may be that – I do not have to establish this – the word “Queen” there is ‑ ‑ ‑

KIRBY J:   Queen Victoria was undoubtedly the United Kingdom.

MR ELLICOTT:   ‑ ‑ ‑ frozen in time to the Queen or King in the right of the United Kingdom.

HAYNE J:   But does the argument contain at least this proposition? Let it be assumed that there is a territory otherwise acquired, not placed under authority but otherwise acquired. Let it be further assumed that that acquisition is by treaty a term of which is that the current franchise arrangements existing within the territory shall remain, that the existence of that treaty obligation is to be read as confining the constitutional power under section 122.

MR ELLICOTT:   In that hypothetical situation there would be a strong argument for the view that it was so confined, in other words, that if section 122 is to be approached on the basis of relationships, and this Court has in a unanimous, except one - your Honour Justice Kirby gave judgment, but six of your Honours expressed it in terms of relationships in Ex parte Ame.

Now, once one talks about relationships you have to define, in our respectful submission, the source of the relationship and what it was and if it did involve an obligation of that character, not so much getting into the old law about whether you are implementing a treaty, but in terms of whether the section itself picks up the nature of the relationship, that is to say, in that case there had been a treaty and it contained that provision.

In this case you cannot divorce, in our submission, the placing by the Queen of Norfolk Island under the authority of the Commonwealth from the history and nature of, and status, rather of Norfolk Island at the time of it being so placed.  It was recited to be in the Act of 1913 as a separate and distinct settlement.  That immediately picked up its history.  That history, we say, is embodied into the relationship.

If you put it another way, Justice Kitto in Lamshed v Lake rather stated it as being a power whereby a superior power over one community by the government of another, but either way that one puts it, whether it is relationship or that expression of the nature of the power it provokes a consideration of what the relationship is or what the community was. If we are talking about people then we have to consider the people concerned, who they were, what their make‑up is. Obviously, that make‑up continues. They are people who can be represented under section 122 in the Houses of Parliament. They are going to represent those people in the Houses of Parliament, and half of them - I would take an example – are not Australian citizens.

Are you going to just let the Australian citizens vote? Is that going to satisfy section 122 if you are going to give them representation in the Senate or the House? Do you exclude them? If it is a large territory like – assuming Papua New Guinea had been made up of European people and therefore could have come into statehood, could they not have – and there were two or three million of them and you wanted to give them representation, surely you could not exclude them because half of them were of German descent and had German citizenship? In our submission, one would not do that because that would not represent giving representation to the territory which we say at least includes the people of the territory.

KIRBY J:   But you have to read an implied limitation on the power which you accept on its face is expressed in plenary and uniform terms.

MR ELLICOTT:   Yes.

KIRBY J:   And the principle about implications in this Court is, I understand it, that it has to be something necessary to the constitutional document and purpose.  So you have to have quite a high test you jump over.  It has to be necessity.  Is that not correct?

MR ELLICOTT:   Well, the word “necessity” ‑ ‑ ‑

KIRBY J:    Was that not said in the cases about implications?

MR ELLICOTT:   Yes, it may have been but, your Honour ‑ ‑ ‑

KIRBY J:   It is said to put a restraint on our inferring implications into the Constitution. It has to be necessary.

MR ELLICOTT:   You have to take the words of the Constitution which, in relation to what I was putting to your Honours, is representation in the Houses of Parliament and I was asking the question rhetorically: how does one give the territory representation other than by – it must mean the people. Can you because they are only partly Australian citizens and on the mainland Australian citizenship is the norm, can you exclude the non‑Australian citizens from the people? They might be a minority in the given case; they might be a majority. They are in this case a majority, but the ‑ ‑ ‑

GUMMOW J:   Well, part of the question is what is involved in acquiring the citizenship.

MR ELLICOTT:   Yes.

GUMMOW J:   Is there any suggestion that these residents who have a New Zealand or United States citizenship are ineligible in any way for Australian citizenship by acquisition?

MR ELLICOTT:   Well, they might be.  I do not know.  For instance, the United States citizen may – of course, under section 17 there was a problem.  If you cannot be a dual citizen in the United States and you are a United States citizen, you might value ‑ ‑ ‑

KIRBY J:   I believe you can now be a dual citizen in the United States.

MR ELLICOTT:   You can now?  Well, Rupert Murdoch can come and get his Australian citizenship.  I recall that now, your Honour.

KIRBY J:   So what is the problem?

MR ELLICOTT:   Your Honour, it is not a problem in terms of physical capacity or in terms of having a right to be a citizen.  That is not the problem.

GUMMOW J:   The problem, Mr Ellicott, is that these people who do not have Australian citizenship have a citizenship of some other nation, and not of Norfolk Island.  Now, that is the framework in which all this debate has to take place.

MR ELLICOTT:   With very great respect, that is a notion which your Honour is stating sitting here on the mainland thinking about Norfolk Island, which is not part of Australia – that is our submission – and where Australian citizenship is in the gift of the Australian Parliament to the people of Norfolk Island.  They do not get it as of any sense of right.  They get it because they extend the Act to Norfolk Island.  They do not get it because…..a citizen of Canberra or the ACT or the Northern Territory get it.  They get it because they are part of the people of the Commonwealth and it would be very inconvenient to destroy – although theoretically you could abolish citizenship.  There is no need to have it.  They did not have it until 1949.  It is an artificial notion actually, citizenship, and when you talk about the people of the Commonwealth, there are hundreds of thousands of people who are part of the people of the Commonwealth who do not get the vote.  That is an outstanding question, and my reason for mentioning that is simply that citizenship is an artificial notion when it comes to considering what shall happen in relation to the people of ‑ ‑ ‑

GUMMOW J:   What do you mean by “artificial”, Mr Ellicott.

MR ELLICOTT:   Artificial because it is not a defining ‑ ‑ ‑

GUMMOW J:   It is not a common law concept, is that what you mean?

MR ELLICOTT:   It does not have a defining characteristic of the make up of the people of a particular place other than the mainland or the Commonwealth of Australia.  I am talking about a territory and I am talking about the people of the territory and I am saying that citizenship as such is not a defining characteristic of membership of that community.

KIRBY J:   But that is also true, as you pointed out, in the Commonwealth itself.  Citizenship is a non‑constitutional concept.  Nationality is a constitutional concept, but citizenship is not and, therefore, in that respect, the people of the mainland, as you refer to it, are in the same boat as the people of Norfolk Island.  It is something that Parliament defines.

MR ELLICOTT:   There may be an issue as to whether or not – but it is not my purpose to go into it – the people of the Commonwealth can be restricted to citizens.  Now, that has been touched upon in McKinlay.  That has been touched upon there, but the notion of citizenship cuts across the notion of democracy and the voice of the people, the rights of the people to determine what happens, and here we have a group of people on Norfolk Island.  It is not their fault.  They have their history, and I will not go through it at the moment, but the fact that some are citizens of New Zealand, the United Kingdom or Australia has not been a defining characteristic of their community.  To some extent, Pitcairn descent has been.  It is part of the lifeblood of the community, but it is not that everybody has it.  But over the years all these people, be they Pitcairners or not, have acquired citizenship which are diverse but that has not excluded them from membership of that community and that is ‑ ‑ ‑

KIRBY J:   Mr Ellicott, the things that you are putting to us – I am very respectful to the people, speaking for myself, of Norfolk Island and their history and their distinct characteristics and so on – and the things you are putting to us are matters which, I could well understand, if they were put to the Parliament or to a parliamentary committee, might suggest that some very special provisions should be made in respect of their nationality status. 

The fact is that Norfolk Island was placed under the authority of the Commonwealth. It is a territory of the Commonwealth. The Constitution of the Commonwealth is what we are charged to give effect to and it says that it is a territory within section 122 and you have somehow to restrict the power of the Federal Parliament to make a law with respect to the nationality status of the people of Norfolk Island in a way that is not expressed there in section 122 and you have to imply it.

My difficulty is finding a way that we can put restrictions on the Parliament which you are urging upon us for reasons that I can understand but which seem to be reasons of policy, not reasons of constitutional principle.

MR ELLICOTT:   Your Honour, I have taken your Honours to section 122 and the last two lines: “may allow the representation of such territory in either House of the Parliament”. That applies to a wide group of Territories. We have had the experience of Cocos Island, of New Guinea, of Papua, and now we have Norfolk Island.

Now, in one sense, the better example for present purposes is Papua New Guinea, not because it was a mandate or under trusteeship but because if the question that was asked how do we give representation to that territory, assuming it remained such, in either House of Parliament, without having in mind that it is a basic tenet of our Constitution – and I am not getting onto another point that we want to raise – it is a basic tenet of Chapter II of the Constitution and Chapter I that under that responsible government the people of the States and the people of the Commonwealth will be involved in the election of representatives. How does one give representation if the representation is going to be in the House or in the Senate without giving the right to vote to the people of that territory?

I say that the implication if you are seeking it or the notion if one is seeking it is in the section itself. That is what the founding fathers must have intended if that right was going to be given. There is nothing in there about citizenship. It is giving “representation of such territory” which must mean, because we are talking about human beings, people and it must mean the community and it must appeal to basic notions of the liberal democracy which we share under this Constitution.

GLEESON CJ:   We are now concerned, are we not, with the validity of a Commonwealth law concerning what I might call internal government of Norfolk Island?

MR ELLICOTT:   Yes, the organs of government.

GLEESON CJ:   We are not concerned with representation of Norfolk Island in the Parliament of the Commonwealth at the moment, are we?

MR ELLICOTT:   No.

GLEESON CJ:   I am not for a moment intending to suggest that this assumption that I am about to describe is wrong but I am interested to understand why it is right because it seems to be a fundamental assumption that you are making. What is it that obliges the Commonwealth to provide for any form of democratic government within Norfolk Island? What is it that would prevent the Commonwealth – and I am not suggesting there is no answer to this question, I just want to understand what the answer is – what is it that would prevent the Commonwealth under section 122 providing for Norfolk Island to be administered by a public servant based in Canberra?

MR ELLICOTT:   Your Honour, I can answer that nothing.  There is nothing to stop it.  I can argue that within the confines of the section it would not truly be for the government – the word “government” being important – and keeping in mind that it includes the right to delineate the governmental institutions as well as the right to pass laws in the sense of “peace, order and good government” as to this or that subject matter.  But looking at the first content of the power, namely the right to formulate the institutions of government, wherever those rights are formulated in terms of the people being involved, then the people, that is to say, having the views of the community involved by an electoral process, then those people must be involved, not a section of them.

GLEESON CJ:   So that you do not have to provide for self‑government but if you do provide for self‑government you have to provide for democratic self‑government.

MR ELLICOTT:   Yes.

GLEESON CJ:   And you can only provide for democratic self‑government by providing a form of franchise that is truly representative of the people.

MR ELLICOTT:   Of the people.

GUMMOW J:   And who are the people?  People who have been there at least 900 days for four years; is that right?

MR ELLICOTT:   Not necessarily.

GUMMOW J:   But that is sufficient?

MR ELLICOTT:   That is the law which the Legislative Assembly passed.  There may be views about whether that is not too extreme.  There may be views that it should be six months or nine months or 12 months.  We are not attacking, by the way, the limitation to six months.  We accept that that is within the view of the Commonwealth Parliament if it wants to fix six months, as it has done, but the Legislative Assembly in its wisdom has chosen over the years to limit it in that way or extend it in that way.

KIRBY J:   It does not seem to be a constitutional discrimen.

MR ELLICOTT:   No.

KIRBY J:   I mean that it is 900 days, why not 850, why not 700?  If you are testing it by constitutional norms, it does not spring out as a very constitutional definition.

MR ELLICOTT:   Behind it is the notion that they were wanting to, with some knowledge, obviously, that they would have of Norfolk Island and the people that come in and out all the time, and its reliance on the tourist industry and part‑time workers and all the rest of it, with that sort of knowledge they are trying to fix a time that they think will ensure that people who vote are ordinarily resident and are committed to the community.  That is the purpose of it.  You can argue about that.  It could be six months.  In this Court we are not challenging that aspect of the new law.  The part that we attack is that it should require Australian citizenship and that is where our fire is directed.

GUMMOW J:   No, but we have to know what is your in your notion of community and the people.  We have to know the content of this notion of the people and the community of Norfolk Island.  There was a law saying that you could enrol if you had been present there for 900 days over four years – you got on the roll.  I do not think it said you had to stay there to keep on the roll once you had got on.

MR ELLICOTT:   Your Honour is obviously concerned about this lengthy period.

GUMMOW J:   No, it seems to me, actually ‑ ‑ ‑

MR ELLICOTT:   With respect, we are not determining the validity of this law that restricts citizenship by virtue of what might have happened in relation to residence through the Legislative Assembly.

KIRBY J:   No, but you are trying to get us to read in an implied limitation on a power which is expressed in the most ample terms, “the Parliament may make laws for the government of any territory”, which this Court has repeatedly said is a plenary grant of power, the greatest that could be granted, and then we are entitled to test what is the limitation by reference to the limitation you are urging on us, which is a community defined as 900 days in four years, which is a very odd definition.

MR ELLICOTT:   I am not defining it that way, your Honour.  That would be not to state my proposition properly to put it to your Honour in those terms.

KIRBY J:   Well, what is the definition?

MR ELLICOTT:   I am not defining it in terms of people who have been resident there.  The only comment I would be make would be that the local or the Australian legislature can pass a law which in its wisdom will require a residence of a particular period and a period which is directed towards ensuring that the people are truly part of the community because mere residence may not be enough.  That is the only relevance of that concept.

What is not to be taken from section 122 is the notion that you can divide the community by a criterion that has nothing to do with membership of that community. That is to say the notion of citizenship, whether it be of Australia or New Zealand or the United Kingdom or wherever, it just does not have any relevance to a place like Norfolk Island.

KIRBY J:   Well, looked at from within Norfolk Island perhaps your submission is correct, that for their purposes it does not happen to have the relevance that others might see to it, but we have to give effect to the Constitution of the Commonwealth.  That is our constitutional duty.  It expresses itself in terms of the Parliament, ie, the Federal Parliament, “may make laws for the government of any territory”, and there is no restriction on that.  You want us to read it in. 

Now, there may be some principle that preceded the Constitution which was a fundamental principle of British constitutional doctrine that you have to give self‑government to people who were British subjects or if they are British subjects beyond the seas in a colony of the Crown they must be given some representation which got carried into our Constitution when Norfolk Island was received – I do not know. But that is how you are going to have to get it. You are not going to get it, it seems to me, out of the words which are plenary.

MR ELLICOTT:   Well, I am going to try and get it, your Honour, out of some comments that your Honours made – I do not think your Honour was party to them – in Ex parte Ame.  But just answering your Honour’s question, there was the Act, I think it was of 1778 or thereabouts, which in effect said no taxation without representation and it applied to colonies generally and it was in force and remained in force.  It is probably not in force now ‑ ‑ ‑

KIRBY J:   Well, it applied to colonies of settlers, I think.  It did not apply, say, to the Indian colonies or the colonies in the West Indies or colonies of people of different races.

MR ELLICOTT:   Well, it may not have, but it was an abiding principle which guided the colonial office in relation to the government of Crown possessions.

KIRBY J:   Did the Privy Council ever say something like that, that this is just a fundamental norm of British governance, governance under the Crown?

MR ELLICOTT:   I am not aware of it, your Honour, but the existence of that Act is there to express a principle which lies behind our democratic Constitution that there should be no taxation without representation. Can I take your Honours to Ex parte Ame 222 CLR 439 at 457 just to draw your Honours’ attention to something your Honours recently ‑ ‑ ‑

KIRBY J:   Which paragraph?

MR ELLICOTT:   Paragraph 28:

The capacity to acquire and exercise sovereignty, sovereign rights, and rights of administration in respect of external territories necessarily includes the capacity to make provision for the bringing to an end of those rights.  The capacity to acquire external Territory necessarily implies a capacity to relinquish such Territory . . . 

The acquisition of an external Territory by Australia, as contemplated by s 122, involves the establishment of relations between Australia and the inhabitants of that Territory. There is no single form of relationship that is necessary or appropriate. 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 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.

The relations that may exist between Australia and the inhabitants of external territories are not necessarily identical 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.

Now, that we rely on as an exposition of section 122 and we are not trying to read it into the text. Nor are we trying to read paragraph 29 particularly as other than an exposition by this Court of what lies behind this provision. Those words are based on the experience of the decades since Federation because they were diverse. If you go to Cocos Island, it is 10 feet above the sea level or 20 feet and the people there are Malays who were imported there in 1825. The relationship there is quite distinct and different.

GLEESON CJ:   I do not remember whether it was in Ame or some other case but we were once very usefully given – and it may be this is really for your opponent rather than you – a list of the current Territories of the Commonwealth.  It would be very helpful to bear them in mind.

MR ELLICOTT:   Yes, your Honour.  We can assist and ‑ ‑ ‑

MR BENNETT:   I can give that if you want it.

GLEESON CJ:   Thank you.  I think your opponent ought to be able to ‑ ‑ ‑

MR ELLICOTT:   My friend has no doubt got a complete list at hand, but each of those Territories has a distinct history obviously and all of them are very interesting to read about and you realise that the peoples of the various Territories are quite distinct and different, and for some obvious reason Norfolk Island has a very distinct history which is detached from the fact that it was once part of New South Wales under the earlier part of the 19th century.

KIRBY J:   But then it went back to being just under the Crown, I think.

MR ELLICOTT:   Yes, it was a Crown possession from 1856 onwards ‑ ‑ ‑

KIRBY J:   My recollection is that there was a deep principle of British constitutional law that colonies of settlers once given self‑determination could not have self‑determination taken away. Query whether that stands against section 122; query whether it applies in the case of Norfolk Island; query whether the provisions now enacted by the Federal Parliament do purport to take away the right of self‑government. The British did learn something from the loss of the American colonies and settlements and their lesson infused their law in the 19th century. Now, if there is anything in that, I would like to know, but it is not going to be dealt with in generalities. There will be Privy Council cases and there will be discussions by the judges about the matter.

MR ELLICOTT:   I have given your Honour one Act as it sticks in my mind so far as our research has gone.

KIRBY J:   I thought that this was said in the case even of an African possession of the Crown, but I just cannot call the case to mind at the moment.

MR ELLICOTT:   But the point is that arises from Ame’s Case and those passages is that you have to look at the particular relationship and that is important to defining what the territory means in a particular case.

GLEESON CJ:   When did the people of Norfolk Island first get self‑government?

MR ELLICOTT:   In the full sense they did not get it until 1979 and then they did not get it completely because, although they had institutions of responsible government, the subject matters over which they could pass laws was limited.  It was quite substantial but it was still limited.  My understanding is that those have been extended to some degree but it does not still have full self‑government but it has substantial self-government.

Prior to that, after 1913, there was an Executive Council to which people were elected by elders.  Those elders came from the male population.  After that there was a Legislative Council which was advisory and that was partly elected and that electorate was British subject and over 21 years of age ‑ ‑ ‑

GLEESON CJ:   At the time of Federation they were governed by a person who happened to be the Governor of New South Wales, were they not?

MR ELLICOTT:   Yes, who happened to be. 

GLEESON CJ:   Yes.  The man who was the Governor of New South Wales was also appointed Governor of – appointed presumably by the United Kingdom Government.

MR ELLICOTT:   Could I take your Honours to Lamshed v Lake 99 CLR 132 at 153, the judgment of Justice Kitto, about a third of the way down just before that large paragraph beginning “In my opinion”:

The power which that section confers on the Commonwealth Parliament, it is said, is the same as that which a State Parliament has in respect of its State; and as a corollary, a law made under the authority of the section cannot operate outside the particular territory for which it is made.

In my opinion it would be a mistake so to decide. It seems to me that it is necessary only to read s. 122 in its context to see that it is different in nature from enactments which confer powers upon the legislative organs of communities to make laws for the government of their own communities. Enactments of that kind are necessarily to be understood as giving power which, though plenary, extends only to regulating the legal situation within the borders of the relevant area. Section 122, however, appearing as it does in the Constitution of a federation, confers on the legislative organ of the federation plenary power in respect of such areas as may be offered to and accepted by the federation so as to become territories to be governed by the federation. Both the character of the Parliament and the nature of a federal territory are overlooked when the section is likened to a provision such as s. 5 of the Constitution Act of New South Wales. Section 122 is a grant of power, not for the government of a community by a legislature established for it, but for the exercise of superior authority over a community by the legislature of another community.

We combine that with what your Honours said in Ex parte Ame to bring to the fore notions of community or people and the need to identify who the people are or what is the make up of the community. Although it is fair to say that section 122 on its face – and there are plenty of dicta that my friend relies upon – is as large a power as you might find, nevertheless the Court over the years has emphasised that there are clear differences between Territories and that those differences have to be taken or should be taken into account in determining the content of the power which the government – not just taken into account but condition the content of the power that the Parliament of Australia can exercise in relation to that territory.

GLEESON CJ:   Could the Parliament of Australia fix a maximum age for voting in Norfolk Island?

MR ELLICOTT:   I would think so.

GLEESON CJ:   Even though people over that age would be part of the community?

MR ELLICOTT:   If there is an aspect of law - for instance, supposing there had been, and we did have a situation possibly in Australia where those under the age of 21 could not vote and there was a substantial period of debate about that and it was reduced to 18, and supposing the law on Norfolk Island was still 21 years of age, it is not our brief to argue that the Commonwealth Parliament could not reduce that to 18 as being a proper law for the government of the territory because that applies, as it were, across the board in the sense that it is a common feature of electoral law that the adult age should be fixed for voting, so that could be done.

But when you come to citizenship that, as such, has no relevance to the capacity of a community to vote.  It just does not relate to their capacity.  It is an extraneous matter.  It is not extraneous in Australia in the Commonwealth because it is thought to be that which justifies the rights of the Australian – that is the people of the Commonwealth – to be involved in electoral matters but that is because you are looking at the people of the Commonwealth, but when you come to look at the people of the territory you first have to find out what the content of those people is and it has to be discovered and taken into account from time to time.

CALLINAN J:   Is that not contrary to what Justice Kitto said at page 154 of Lamshed at about point 4:

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.

Page 154, the page after the one you read to us.

MR ELLICOTT:   Yes.  Your Honour, he is speaking there of the Australian Capital Territory.

CALLINAN J:   Yes, but he is speaking of all territories.

MR ELLICOTT:   He may be but these comments are directed to a problem associated with the Northern Territory or the Australian Capital Territory and there is a clear distinction between external territories and internal territories.  In the case of Eastman 200 CLR your Honours did comment on external and internal territories.  I will give your Honours the reference.  There is a passage in Eastman’s Case, I think it is in paragraph 7 of the judgment, where your Honours draw a clear distinction between external territories and internal territories.  Clearly enough, the ACT and the Northern Territory were part of the States at Federation and they were only separated afterwards.

GLEESON CJ:   They are part of the indissoluble Commonwealth.  You could never give the ACT its independence of Australia.

MR ELLICOTT:   No.

GLEESON CJ:   But presumably you could give Norfolk Island its independence of Australia.

MR ELLICOTT:   Yes.

GLEESON CJ:   Because it is an external territory.

MR ELLICOTT:   Yes.  You could not disentangle it from the State/Commonwealth situation.

GUMMOW J:   The reference is 200 CLR 322 at 331, paragraph 7.

MR ELLICOTT:   Yes, I think so, your Honour.  Did I have the paragraph right?

GUMMOW J:   Yes, paragraph 7.

MR ELLICOTT:   Yes, that is it.  Your Honours, can I quickly take your Honours to page 50 just to give some content to the citizenship situation on the Island.  This is according to the 2001 census.  Your Honours, there was a census taken in August of this year.  The figures will not be available until December.  If your Honours wanted the up‑to‑date figures your Honours might give us leave to ‑ ‑ ‑

GLEESON CJ:   It is probably useful that we should have them in any event, Mr Ellicott, so we would be grateful if you would let us have them when they become available.

MR ELLICOTT:   I am instructed they do not alter this to any great degree, but your Honours will see that of the permanent population the figures show that there is a group of 17.5 per cent who are not Australian citizens, 15.5 have New Zealand and United Kingdom.  Those figures flow in relation to ordinary resident populations.  Place of birth found in 31 and 32, I will not stop to read those figures, but the point, the permanent population and ordinary resident population are notions which are found described in the documents which if your Honours go to 188 - I am not suggesting that they will give massive clarity, but I am instructed that if one was to ask whether the voting population was restricted to what are described there as permanent or included some of the ordinary resident population, then I would have to answer it by saying it would not only be the permanent population but some of those who are in the ordinary resident population would also be included. 

As a broad proposition what we ask your Honours to conclude is that approximately 20 per cent of the population are not Australian citizens and would be excluded from the vote but for there is a transitional provision, in other words, people have not been deprived of the vote, but it would operate into the future.  So far as qualification for election to the legislative assembly is concerned, the whole 20 per cent are excluded from election. 

GLEESON CJ:   Those numbers include children, I presume, the numbers on pages 50 and 51?

MR ELLICOTT:   Yes, and your Honours will find at page 191 some idea of the population in terms of ages.  If you draw a line above 20 to 24 that represents 24.6 per cent above it and 75.4 per cent below it who are adult in the sense that they are 20 years in age and older.  The numbers at 18 are somewhere in between 75 and 77 per cent, somewhere in there.  There is also 15 and over shown at 193.

GLEESON CJ:   So in terms of voters, we are dealing with approximately three quarters of the numbers referred to on pages 50 and 51?

MR ELLICOTT:   Yes, and in terms of ‑ ‑ ‑

KIRBY J:   The voters in Norfolk Island do not participate in the vote for the federal Parliament, unless they have a residence in an electorate on the mainland.  Is that the position?

MR ELLICOTT:   No, there is a peculiar Act which may or may not be valid, the Commonwealth Electoral Act 1918. Sections 95AA and following which have the effect of giving people on Norfolk Island the right to vote in various electorates with which they may have been connected. This is a seeming irrelevance to say this, but the people of Cocos Island are included in the electorate of the Northern Territory for the purposes of voting and that apparently is the way in which they get their representation in the Parliament, through that method. So they vote in the Northern Territory. Whether that is valid is another matter.

If Norfolk Island’s number was included, say, as Lord Howe Island is in the electorate of Sydney then real questions could arise as to whether that was valid.  That was a way of representing them.  This Act does, in effect – I find difficulty in describing exactly how it operates but it goes beyond the right to vote because you have a residence in a particular electorate.

KIRBY J:   Does that provide for participation in referenda under section 128?

MR ELLICOTT:   That I am not sure, your Honour.  I cannot answer that but I will find out.

KIRBY J:   Presumably Parliament was conscious of the need to provide some form of representation because of the exercise of taxation powers.  It would not want to get into the same position as King George III.

MR ELLICOTT:   It may be they are positioning themselves, your Honour, but one can assume that other laws which apply to Norfolk Island may well be repealed or extended, as the case may be.  Norfolk Island has had its own customs law.  It may be part of this whole picture that that customs law will be repealed and Australian customs will take over.  It may be that the immigration law that has applied on Norfolk Island separately from the Migration Act (Cth) may likewise be repealed and the Migration Act applied to Norfolk Island.  That is to change dramatically the way in which Norfolk Island has been ‑ ‑ ‑

KIRBY J:   At some stage I would be helped if you would put into very specific terms the exact implied limitation on the power in section 122 for which you argue.

MR ELLICOTT:   If your Honour pleases.  I may be doing that now, your Honour.  If I could take your Honours through this, because it is intended to expound what we say is the basis upon which the law should be struck down.  It is not a law for the government of the Island.  In paragraph 1 we affirm that Norfolk Island is an external territory.  That is a significant step towards saying that Norfolk Island is not part of the Commonwealth, basic to our submissions that Norfolk Island is not part of the Commonwealth.

Then we quote Lamshed v Lake and in paragraphs 3, 4 and 5 I have already taken your Honours to Ame’s Case.  We say at the time of its acceptance Norfolk Island was a Crown possession or dependency which had been established by the Crown as a distinct and separate settlement for occupation by Pitcairn Islanders and their descendants and whose inhabitants in 1914 was made up of their descendants and others who had been admitted to their community.  Norfolk Island did not on its acceptance become part, nor has it since become part, of Australia geographically or politically.  The remarks by Justices of this Court in Berwick v Gray are, with respect, incorrect and I have to take your Honours to Berwick v Gray in the light of the history of Norfolk Island and establish that proposition.

Norfolk Island is not, and has never been, part of the Australian community.  Possession of Australian citizenship – and these are the submissions which attempt to indicate why we say it is not a law for the government - has never been a determining factor in identifying those persons who made up the community of people on Norfolk Island, and that is so; that is fact – it has never been.  You could ask the question, but it would not matter – you would not say, “Oh, you’re a citizen of the United Kingdom” and conclude “Well, you can’t be part of this community”.  It would be a nonsense.

Apart from Pitcairn descent, persons given the right to reside in the community after a period thought sufficient for them to be absorbed into its community have become part of its people or community.  The Australian Government has allowed this to happen under migration laws applicable only to the Island.  If the government over a period allows a particular situation to occur in its dealings or relationship with the territory, one might ask, “Why shouldn’t that be taken into account?”  It may not be of great moment here, because we are not concerned with other than people really in the bulk, at least 99 per cent of them, who have other than some allegiance to the Queen or King of England.  So we are not into other citizenships very much, although they are obviously relevant.

But if the government had allowed a situation to arise which enabled one to say half of the people on the Island are of this citizenship which is quite foreign to Australia, then why should not the nature of the territory in that form be taken into account if you are talking about the community?  If there ever was a determining characteristic for a person being part of the community for electoral purposes based on the notion of citizenship, it was being a British subject or in later years being a citizen of a country in right of which allegiance was given to the King or Queen of England.

GLEESON CJ:   Where does that leave Mr Kleiner?

MR ELLICOTT:   It leaves Mr Kleiner in a situation where he would not, on that basis, be part of the community - if that was the proper basis.  I do not adopt that as being the basis.  He has a significance all of his own in that he is a Pitcairner by descent, but I can understand it might be said to me that nowhere is there anything written down that you have to be a Pitcairner to be on Norfolk Island but there is something ‑ ‑ ‑

GLEESON CJ:   We all know some Norfolk Islanders who are not Pitcairners.

MR ELLICOTT:   Yes, that is right.  A law which adopts Australian citizenship as a criterion for the conferring of electoral rights – that is, the right to vote and the right to qualify for election – in relation to the people of Norfolk Island is not a law for the government of Norfolk Island, meaning, thereby, the people or inhabitants of Norfolk Island, because it selects as a criterion for the possession of such rights one which is not a defining characteristic a person must possess in order to be a member of the Norfolk Island community or one of the people of Norfolk Island.  It is inconsistent with Norfolk Island’s status as a distinct and separate settlement and with the basis upon which the community was established and has continued in existence, because its effect is to exclude from electoral rights a substantial number of people who are part of the people of Norfolk Island. 

We deal with the practical effect - over the page - it is to deny electoral rights to a substantial number of people who are part of that community and to treat the community as if it were part of the Australian community or what was called “the community constituting the Australian body politic”, which it is not and never has been.  It is not a law for the government of Norfolk Island community.  It is inconsistent with its character as a distinct and separate settlement and as a distinct and separate community.  Australian citizenship as such has no abiding relevance to an external territory.  It is within the gift of the Australian Parliament and it can just as easily be taken away.  Your Honours commented on that in relation to Papua New Guinea in Ame’s Case and ‑ ‑ ‑

KIRBY J:   It was more Papua because New Guinea was in a different relationship with Australia.

MR ELLICOTT:   Yes, I understand that.  It was quite clear that it was some token sort of citizenship.  It was almost paternalistic, one might say, but it had no real significance for these people.  There is something discriminatory between the fact that Papua New Guineans were given this limited sort of citizenship that denied them the right to come into Australia and the citizenship that was given to Norfolk Islanders, which is a more complete one.  It really is an artificial concept as I have already submitted. 

As a separate argument it is submitted that section 122 is to be construed subject to the concept of responsible government which is an integral part of the Constitution. This argument we develop in paragraphs 38 to 45, and I will come to that, your Honour, but because my friends raised the question, “How can you possibly allow aliens to vote?” we put this proposition. Even if it is a correct characterisation of the people of Norfolk Island who are not Australian citizens that they are “aliens”, as the Commonwealth submits, which we do not accept, this is irrelevant to a consideration of whether they being clearly a substantial proportion of the people of Norfolk Island should be stripped of electoral rights. Their entitlement to vote closed from the fact that they are part of the people of the territory to whom substantial self-government has been granted and who, in accordance with ordinary and basic notions of responsible government, embodied in the Constitution should be entitled to vote.

GLEESON CJ:   It may not make any difference to your argument, but that expression “should be stripped of electoral rights” would not have any different meaning, would it, if you said “should be denied electoral rights”?  Nothing in your argument turns upon the fact that there is a time when they previously had rights, does it?

MR ELLICOTT:   No, your Honour, that is correct.

GUMMOW J:   I think you also agreed that there was no objection to the situation in 1913 and thereafter where there was no electoral system.  We are really talking about an electoral system established in the 1970s, are we not?

MR ELLICOTT:   There was no objection you mean in terms of our submission.  Your Honour, we had put the proposition this way, that whenever there was a law designed to involve the people or the community, first of the all, the fact is up till now that all the people on the Island who were at first resident there but later British subjects – those were the two tests – in other words, looking at the content of the population or the community, almost all the community were involved in either consultation or advice or whatever it might be and ultimately in 1979 were involved in the self‑government which was granted.  In other words, no notion of citizenship ever came in which had in effect deprived anybody of any substantial rights, except a very small percentage if you looked at it in that light. 

For a period – I think it was from 1914 to 1926 – there was an Executive Council and the elders, which were then male of the age of 30 and over, and that was consonant with the approach of the day, those people formed the elders who could elect members to the council of elders who then advised the administrator.

GUMMOW J:   There was a Royal Commission in 1926, I see, into the affairs of Norfolk Island which may have produced these changes in 1926.

MR ELLICOTT:   It may have, your Honour.  I do not know whether my friend minds me handing up his document.  It is a very helpful document, if I might say so.  We have not checked it but it broadly is consonant with what we understand to be the position.  I think it may have been handed up already.  We will check it, but accepting it for the moment ‑ ‑ ‑

HAYNE J:   This is the document entitled “NORFOLK ISLAND ELECTORAL LAWS:  1857 TO PRESENT”?

MR ELLICOTT:   That is the one, yes, your Honour.  That is a very helpful analysis of the position.  Your Honours will see in that period, from 1913 to 1915, they had to be 25 years of age or over and male natural born or naturalised subjects of His Majesty.  That requirement of British subject was there right through and was always adopted.  Norfolk Island traditionally has been very closely linked with the Queen of England, if I can use that concept for the moment without offending anybody’s susceptibilities. 

KIRBY J:   It is a long time since there has been a Queen of England.  I mean, there is the Queen of the United Kingdom.

GUMMOW J:   1603 actually.

MR ELLICOTT:   I am just talking about the person of the Queen or the King as distinct from getting into any description of what they are in right of.

GLEESON CJ:   Monarch.

MR ELLICOTT:   The monarch.  There has been a strong affection, if I can use that expression.  The present Queen actually visited there in the 1970s and it was a significant occasion for them.  That has always been so because of this – they saw Queen Victoria as the person who gave them what they are entitled to and they still see it that way.  It is part of their heritage and their understanding of these matters. 

Your Honours, if I can just give you, without taking you to these cases because they are a series of cases your Honours are familiar with.  They start with Buchanan’s Case and they are cases where notions arise where the Court has said from time to time that a particular territory is not part of Australia or not part of the Commonwealth or not fused into the Commonwealth.  In Buchanan’s Case 16 CLR 315 at 330 Acting Chief Justice Barton, about a third of the way down:

Territories, until they become States, are dependencies, and not in this sense component parts of the Commonwealth –

At 335 Justice Isaacs, about almost halfway:

And now that it is a territory of the Commonwealth, it is not fused with it, and the provisions of secs. 53 and 55 . . . have no application to the Northern Territory. 

In Bernasconi 19 CLR 629 at 637 and 638 Justice Isaacs repeats – this is the Territory of Papua – two‑thirds of the way down:

When the Constitution, however, reaches a new consideration, namely, the government of territories, 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.

That uses the word “annexed”.  Norfolk Island, of course, was never annexed, nor were any of these Territories annexed in the strict sense to the Commonwealth.  In Mitchell v Barker 24 CLR 365 at 367 the Court said about a quarter of the way up:

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.

These notions grew in Mainka v Custodian of Expropriated Property (1924) 34 CLR 297, which related to New Guinea. At page 300 and 301, again Justice Isaacs:

“The mandatory shall full power of administration –

and it is quoting the terms of the mandate, and at the bottom of page 300:

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, but as territory belonging to the King in right of the Commonwealth of Australia.

In Jolley v Mainka (1933) 49 CLR 242 at 250 Justice Starke quotes section 122. He then says, reading the words of the section:

A “territory placed by the Queen under the authority of and accepted by the Commonwealth” is in the nature of a mandated territory, and is dealt with on the footing that it is a territory acquired by the Commonwealth.  Consequently I see no difficulty in construing the words “otherwise acquired by the Commonwealth” as sufficiently large to include a territory placed under the authority of the Commonwealth by mandate from the League of Nations.  The Commonwealth thus acquires plenary control of the territory, subject to and during the subsistence of the mandate.  But the Permanent Mandate Commissions refuse to recognize the sovereignty of the mandatory in this control . . . The territory over which the mandate is conferred is doubtless a new form of acquisition, but that it is an acquisition, something gained or obtained by the Commonwealth, does not admit of doubt.  It is thus a territory “otherwise acquired by the Commonwealth” –

In Ffrost v Stevenson there is quite a debate about how it was that New Guinea came in. I do not need to refer to that for present purposes. The powers in relation to section 122 which are large and expansive are dealt with in Lamshed v Lake (1958) 99 CLR 132. We are not trying to deny the application of these wide powers. They are there. It is important that the subject matter in the sense of subject matter used in relation to a law under section 51, for instance, was defined by Chief Justice Dixon in Lamshed v Lake at 141:

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.

Now, the last sentence might seem to be the end of the case and your Honours might say end of section, that is it, but really that begs the question:  is it for the government of the territory?  There is no doubt that when you look at the terms of this provision you can say, if it is has some nexus with the territory – because it is saying that to vote you have to have citizenship or to qualify you have to have citizenship of Australia.  In that sense it is a law which has some sort of nexus, but that begs the question whether the law itself is for the government of the territory.

GLEESON CJ:   You do not read section 122 as though the adjective “representative” appeared before the noun “government”?

MR ELLICOTT:   No, but if the government involves a relationship with the people, as it appears to have had ever since 1913 in fact, then that relationship should be one that accommodates to the make up, I will call it, of the community or of the people.

KIRBY J:   Well, that is why I have been trying to pin you down, but it is always very difficult to pin you down, Mr Ellicott.

MR ELLICOTT:   No, your Honour, it is not.

KIRBY J:   But this is what I have written down.  You handed up this document which was ‑ ‑ ‑

MR ELLICOTT:   I have given your Honour a piece of paper with it all on it.

KIRBY J:   ‑ ‑ ‑ proffered to us as the deux ex machina that would solve the whole case and there is no statement there of the implications, so what I have done is to try and get it. Therefore there is to be read into section 122 of the Constitution the following implied limitation on the powers of the Parliament of the Commonwealth to make laws for the government of the territory, that such power would restrict the right to vote for representation of the people of that territory who are subjects of the Queen and who have enjoyed that right to vote.

MR ELLICOTT:   Yes.  That is not quite ‑ ‑ ‑

KIRBY J:   But if that is not what you are saying, then I want to know what you are saying and I think I am entitled to know what you are saying is the limitation you are asking this Court to imply because it is not there in the words.

MR ELLICOTT:   I thought I had said it, your Honour.  I am actually not asking your Honours on this submission to imply anything except to read the words “the government of the territory” and to read into the word “territory” what is implicit in it, that in a given case such as Norfolk Island it must include the people of the territory.  The next step in the argument is to say that this law as a law for the government of the people of the territory, if it involves the participation of the people in government, then that law is not a law for the government of the territory if it ignores a substantial part of those people for determining what I will call the suffrage or the electorate in choosing their representatives.

KIRBY J:   But it does not ignore them, it simply requires that if they are going to participate in voting in a territory which is constitutionally speaking a territory of the Commonwealth, they must, like other voters throughout this nation, be citizens of the Commonwealth and similarly the Parliament has said in a territory, including an external territory, including an external territory with the unusual history and ethnic composition of Norfolk Island, shall be citizens of the Commonwealth of Australia. They can become citizens of the Commonwealth of Australia, even though they have other citizenship, because of the change of the Citizenship Act to permit dual citizenship.

MR ELLICOTT:   And if they do not become?  The effect is that whatever it is in a given territory, those who are not Australian citizens they are excluded from the community.

KIRBY J:   Unless there is a limitation, it is a law for the government of the territory.

CRENNAN J:   Well, that is subject to the transitional provision.

MR ELLICOTT:   What we are putting is that that law is not for the government of the territory if it uses to determine the electorate a criterion which is not relevant for the purposes of determining who are the members of this ‑ ‑ ‑

KIRBY J:   It sounds like an argument of policy addressed to the parliamentarians rather than an argument of constitutional law addressed to us.

MR ELLICOTT:   No.  It is a question of defining the relationship between Australia and this territory and the people of that territory and of ascertaining who these people are and of saying whoever they are, those people, adult and in accordance with ordinary electoral practice, are entitled to vote if the government is going to set up institutions of government, whether they are advisory or whether they are legislative. 

GLEESON CJ:   I am wondering whether your argument could not be expressed by asking the following two questions:  could the Parliament legislate to provide that only men may vote and, if not, why not?

MR ELLICOTT:   The answer would be no.

GLEESON CJ:   For the reason that you are giving in relation ‑ ‑ ‑

MR ELLICOTT:   One reason would be the reason I have given, the other is because of the other argument we have, but the first reason is that.  I do not need the other. 

KIRBY J:   I wonder if you rebuff too readily the Chief Justice’s question that there is ‑ ‑ ‑

MR ELLICOTT:   I do not rebuff it.

GLEESON CJ:   He does not rebuff it; he embraces it.

KIRBY J:   No, the earlier question. I am referring to the earlier question whether there is to be implied into the words “government of any territory” where it is government by way of election that it will be government that is representative of the adult persons in that territory. In other words, that where in a Constitution such as that of the Commonwealth of Australia and in respect of territories that have populations as distinct from Antarctica and maybe some others, that if you make law for the “government of any territory” and if that law is a law providing for the electoral law of that territory, that it must be a law for the representative government in the sense of giving adults the right to vote whatever their citizenship.

MR ELLICOTT:   The emphasis is not so much on the word “representative”.  The emphasis is involving the people of the territory in the government of the territory.  If they are going to have a law to involve the people, it must embrace the people ‑ ‑ ‑

GUMMOW J:   Yes, but who are the people?  They are residents, are they?

MR ELLICOTT:   ‑ ‑ ‑ and embrace the people according to ordinary concepts.

GUMMOW J:   But who are these people?

MR ELLICOTT:   Some are men and some are women.

GUMMOW J:   Residents by reference to some time requirement.

MR ELLICOTT:   They are the people from time to time.  The community will needlessly change.  If there was an influx of a large number of Italian migrants or something who had Italian citizenship and they were part of the community, it is a question of fact.  We have done our best to identify it through those census figures.

GUMMOW J:   But is there any comparative notion of absorption from the old migration cases in Australia?

MR ELLICOTT:   The notion of when people should be accepted as part of the community is not a test that we want to apply.  There are two notions there.  There is one that used to relate to questions of immigrants and the like, but in relation to electoral law it is a question, really, of whether the people can be seen to be part of the community because they are ordinarily resident.  In order to determine that, that is a movable feast because it is a matter of judgment.  But what is not a matter of judgement in relation to who shall make up the electorate in a given case, what is not a matter of judgment is, in our submission, citizenship, because it has no relevance to the make up of the community except to say that it is of diverse citizenship the majority of which is Australian but the rest are part of the community or people who are ordinarily resident there.

KIRBY J:   Remember that I raised earlier my memory of some principles of imperial law.  Justice Eggleston in Newbery v The Queen (1965) 7 FLR 34 at 40 refers to some of this line of territory and the case of Campbell v Hall in 1774 and Sammut v Strickland in 1938 in the House of Lords or probably the Privy Council.

GUMMOW J:   The Privy Council for…..it was.

KIRBY J:   So it might be worth your while having a look at those. 

MR ELLICOTT:   Yes, your Honour.  If your Honour pleases.

KIRBY J:   They appear to relate to the limits that are placed on the prerogatives of the Crown once self‑government has been granted; that it cannot do things out of the prerogative, query whether it can be done by legislation and especially by constitutional legislation.

CALLINAN J:   Depending upon whether it is a settled or conquered territory.  So far as we know, was Norfolk Island first settled in 1814 when it was settled as a penal community?

MR ELLICOTT:   When it became a penal settlement, yes.

CALLINAN J:   But was there any settlement there at all before that so far as we know?

MR ELLICOTT:   I am not sure of that, your Honour, but there certainly were no people there.  Possession was taken on behalf of the Crown by Cook.

CALLINAN J:   By Captain Cook in 1774.  But I just wonder whether any of the material discloses whether there was any settlement at all either in 1774 or 1814.

MR ELLICOTT:   Your Honour, I was puzzled by your Honour’s reference to 1814 because, and I find paragraph 4 at page 47 of the special case says:

Norfolk Island was occupied, primarily as a penal settlement, from 1788 to 1814 and again from 1825 to 1856.

CALLINAN J:   I should really have asked then, I suppose, about 1788 and 1774, whether there was any settlement before.

MR ELLICOTT:   There was no settlement.  It was uninhabited.

CALLINAN J:   Thank you.

MR ELLICOTT:   It is accepted that it is an uninhabited place when Captain Cook visited there.

GLEESON CJ:   Although my memory may be playing tricks with me, but I thought that some of these places were used, were they not, for timber, for masts for ships?

MR ELLICOTT:   Yes.

CALLINAN J:   Norfolk pines, I suppose.

GLEESON CJ:   I mean, the fact that it was uninhabited did not mean people never went there.

MR ELLICOTT:   No, I did not mean that.

KIRBY J:   But nobody had run up a flag.  Nobody else claimed it and if the Crown had a principle that if it was conquered they usually established a treaty with the conquered people.  If it was uninhabited they could simply take it, hence the issue in Australia of native title rights.

MR ELLICOTT:   Over the adjournment I will seek assistance from people who would know much more about this than I - the pre‑history of Norfolk Island, that is, pre-Captain Cook, and what happened between his visit there and 1788.

KIRBY J:   There is a view that all of this has been swept away by the international law which was established after 1945 in the Charter and in the International Bill of Rights and so on and that that is a new beginning for the law on these subjects.  You have not really dealt with that.

MR ELLICOTT:   No, not fully.  In part I have, in relation to Article 73.  Article 73 is very explicit in a way that would on its face include Norfolk Island.

GLEESON CJ:   I think you indicated you had a second argument.

MR ELLICOTT:   Yes, your Honour, but I have to take your Honours to the history because, before I get to that second argument, I have to demolish Berwick v Gray.

GLEESON CJ:   What is the reference to that?

CALLINAN J: 133 CLR 603.

MR ELLICOTT:   Perhaps if I deal with that first and then take your Honours to the history.  This case was taken in order to resist the notion that Norfolk Islanders could be subjected to tax.  What is said here about Norfolk Island being part of Australia was really unnecessary to the decision but there is no doubt that their Honours embraced what was said basically by Justice Mason, as he then was.

CALLINAN J:   He seems to have embraced what Justice Eggleston said in Newbery.  That is at the foot of page 608.

MR ELLICOTT:   Yes.  The relevant passage starts in the middle of page 608:

Special considerations affected those Territories which were held under mandate . . . but, with this qualification, it is my opinion, in conformity with the views expressed by Barwick C.J. and Menzies J. in Spratt v. Hermes that external Territories form part of the Commonwealth of Australia and that, in consequence, the Parliament, by laws enacted pursuant to s. 51(ii.), may impose and regulate the imposition of income tax in the external Territories.

We would say whether they form part of the Commonwealth or not they could have imposed this particular law:

There are in any event powerful reasons for regarding Norfolk Island as part of the Commonwealth.  The history of, and the historical documents relating to, Norfolk Island are set out in some detail in the judgment of Eggleston J. Newbery v. The Queen. In that case it was his Honour’s conclusion that Norfolk Island was a Territory placed by the Crown under the authority of the Commonwealth within the meaning of s. 122.

That, of course, was not a finding that it was part of the Commonwealth:

Without questioning the correctness of the conclusion reached by his Honour, I consider that the history and the historical documents also support the conclusion that Norfolk Island forms part of the Commonwealth of Australia.  It was initially part of the penal settlement established in New South Wales and was later administered by the Governor of Van Diemen’s Land as part of that colony.  In 1856, pursuant to the authority conferred by the Australian Waste Lands Act, 1855 (Imp.), it was separated from the colony of Van Diemen’s Land and constituted a separate settlement administered by the Governor of New South Wales who was appointed Governor of Norfolk Island.  Subsequently, on 15th January 1897, on the eve, as it were, of the establishment of the Commonwealth, by an Order in Council it was recited that it was “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 from part, in the meantime the affairs of the island should be administered by the Governor of New South Wales”.  The Order in Council went on to so provide and empowered the Governor of New South Wales to make laws for the peace, order and good government of the island.  The continued administration of Norfolk Island as part of, or by the governors of, the Australian colonies culminating in the Order in Council made in 1897 vesting the administration in the Governor of New South Wales makes it abundantly clear that Norfolk Island forms part of the Commonwealth of Australia.

GLEESON CJ:   Is the corollary of that that Norfolk Island could never be granted its independence, the Commonwealth being indissoluble?

MR ELLICOTT:   Yes, it would have to be.  We submit that historically and constitutionally that conclusion is incorrect and it is a basic part of our argument to isolate, if I may put it that way, Norfolk Island as not being part of the Commonwealth or part of Australia.

KIRBY J:   Given that the taxation power is in section 51 and that the power in section 51 is to make laws for the “peace, order, and good government of the Commonwealth”, is it not implied therefore that the law must be a law with respect to part of the Commonwealth?

MR ELLICOTT:   Yes, and this law was.  It did not attempt to tax Norfolk Islanders in respect of income derived on Norfolk Island, and still does not.  What it was doing was assessing a Norfolk Island company in respect of income derived I think from the – in effect I have called it the mainland, but in the States, and that was clearly a matter within Commonwealth competence under section 51(ii).

KIRBY J:   Is that still the case in respect of taxation of people living in Norfolk Island?

MR ELLICOTT:   Norfolk Island, yes.

KIRBY J:   Is there any element of that behind the Realpolitik of this case?

MR ELLICOTT:   As far as I am instructed, this is not a matter that concerns the Treasury, that is, the Commonwealth Treasury, because your Honours will appreciate that social services as administered under the fiscus of Norfolk Island has been, and quite successfully apparently.

What is in train is a process whereby the social services laws of Australia that are on the mainland would be extended into Norfolk Island with whatever social consequences that may have.  It has been an independent community in terms of fiscus, except to the extent where very large capital works have to be undertaken.  Even then it is supposed to provide some contribution towards them and that is not a matter of complaint.

Now, your Honours, the journey through these papers could take some time and I am not going to take that time but I do need to take your Honours to various aspects of the history.  The documents start at page 56 of the special case.  I will not trouble your Honours with anything prior to the Australian Waste Lands Act which is at page 65 and simply to point out what it says and historically.  It is about two thirds of the way down.  You will see the heading in the margin.

Provided always, that it 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 -

Now, that was a power granted once and for all and it was exercised by Order in Council on 24 June 1856, and that appears at page 68, and the first thing between lines 30 and 40 is that it is detached from Van Diemen’s Land and all power and authority shall cease, and at line 43:

And it is hereby further ordered and declared that, from the date aforesaid, the said island, called Norfolk Island, shall be a distinct and separate settlement; the affairs of which, until further Order is made in that behalf by Her Majesty, be administered by a Governor to be for that purpose appointed by Her Majesty, with the advice and consent –

Now, the trauma of the people of Pitcairn who were taken from Pitcairn at a time when their affairs were economically at a massive low because the Island was not supporting them, the trauma involved, your Honours perhaps can picture the trauma even of getting onto Norfolk Island which is sort of there in the open sea is itself understandable for women and children getting off boats in those days and coming to this isolated island which was committed to them.

They actually came in 1856 and then royal instructions were given and they are important because they start to emphasise that in relation to this territory the views of the people of Norfolk Island were ordered to be taken into account and in fact to dominate the decision making in relation to their government.

GLEESON CJ:   Was there some sort of reception of law?  Was there a reception of common law into Norfolk Island?  What was the law in 1857, for example?

MR ELLICOTT:   Well, it would have taken such parts of the law of England as was appropriate to the circumstances of the Island, but it also had other laws and it may be argued that these were the laws that when you read them – and I will take your Honours – there are 39 laws which are part of the history of Norfolk Island.  But at page ‑ ‑ ‑

HAYNE J:   Well, page 69, line 28, there is a continuation.

MR ELLICOTT:   Yes, and that would have operated earlier by virtue of the penal settlement.  At page 71 at line 27:

And whereas the inhabitants of the said island are chiefly emigrants from Pitcairn’s Island in the Pacific Ocean . . . and who have been accustomed in the territory from which they have removed to govern themselves by laws and usages adapted to their own state of society, you are, as far as practicable, and as far as may be consistent with the regulation next proceeding, to preserve such laws and usages, and to adapt the authorities vested in you by the said recited Order in Council to their preservation and maintenance . . . 

Now we do hereby further enjoin you to exercise the authority so vested in you, as far as you may find it practicable in conformity with such laws and usages as aforesaid which you may find established among the inhabitants in question, in relation to the possession, use, and enjoyment of land.

In a way, that is their charter.  That is why this particular Order in Council is so significant.  It is not just about a place, it is about the people who inhabit it and the supremacy of their views.  At pages 73 to 76 are the 39 laws.  These are laws which the Governor determined.  I think he wrote them out, as appears from the document there, on the way to Norfolk Island and then he discussed this draft with them and then he formulated them in this Gazette of 14 October 1857.

The Executive Government was to be vested in the Chief Magistrate to be elected annually by the community.  That is at page 73, line 45.

3.        The Chief magistrate must be a resident on the Island; he must be in possession of a landed Estate therein; and he must have attained the age of twenty-eight years.

4.        The Councillors must be resident on the Island, and must have attained the age of twenty-five years.

5.        The election of the Chief Magistrate and Councillors shall take place on the day after Christmas Day in each year . . . 

6.        Every person who may have resided upon the Island for six months, who has attained the age of twenty years, and who can read and write, shall be entitled to vote at the election of the Chief Magistrate and Councillors.

That is the origin of women having the right to vote, probably one of the earliest provisions, and there were some interesting comments which your Honours will want to read perhaps later about that particular matter.

GLEESON CJ:   Is that a convenient time, Mr Ellicott?

MR ELLICOTT:   Yes, your Honour.

GLEESON CJ:   How long do you think you will need to complete your argument?

MR ELLICOTT:   I think I will be half an hour or so, your Honour.

GLEESON CJ:   That should give us ample time, Mr Solicitor.

MR BENNETT:   I am not sure, your Honour, but it may do.

GLEESON CJ:   We will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ:   Yes, Mr Ellicott.

MR ELLICOTT:   Your Honours, one territory that may have been acquired otherwise than by the Queen and just acquired were the Coral Sea Islands, apparently.

KIRBY J:   You have dropped your voice, Mr Ellicott.

MR ELLICOTT:   I say one group of islands that were acquired were the Coral Sea Islands which were not acquired by being placed under the authority by the Queen.  That was done in 1969 and they apparently were – whether anybody claimed any rights in relation to them, but Australia asserted sovereignty over them, but they would have been otherwise acquired.

KIRBY J:   Was that done by the British Government or by the Australian?

MR ELLICOTT:   No, by the Australian Government in 1969.

KIRBY J:   Done by the Queen as Queen of Australia, was it?

MR ELLICOTT:   I assume so.  I have not seen the Executive Council minute.  Not in my memory.  I may have seen it.

GUMMOW J:   The Coral Sea Islands Act 1969. It was an Act. The Coral Sea Islands Act 1969 declared it to be a territory of the Commonwealth.

MR ELLICOTT:   Your Honours, apropos of what law applied to Norfolk Island in 1856 there was the statement in the Order in Council of 1856 at 69 that continued laws then in force which would have been presumably laws in force as a result of it being part of Tasmania.  Under the 39 laws which start at 73, the first law:

All Laws, Ordinances, and Regulations, which have been and are in force within the Island called Norfolk Island, are hereby repealed and annulled.

So that there is an argument that there was a vacuum of law on Norfolk Island after 1857.  That is dealt with in an article that we have referred to by Mr Hutley, as he then was.  These 39 laws are fundamental to the ‑ ‑ ‑

KIRBY J:   Were these the 39 rules that were taken from Pitcairn?

MR ELLICOTT:   No, I am sorry, these were the 39 laws that were, in effect, enacted in a sense by Governor Denison.

KIRBY J:   I see that, but there was a group of laws that were the sort of basic law of Pitcairn Island, was there not, or am I getting it confused?

MR ELLICOTT:   Your Honour, I am not aware of those.  He was instructed to take into account the laws and customs on Pitcairn and he says he took those into account and they must have been embodied to some degree in these particular provisions.  I had referred to 6 at the top of page 74.  Now, 14 and 15 are of some significance because they provide for the Chief Magistrate to bring together the whole of the people at the public meeting in due course and “the persons present will be called upon to vote for”, which would include those of both sexes.  Now, 28 provides:

The Chief Magistrate will keep a list of all males who shall have arrived at the age of 25 years; these persons shall be termed Elders, and from these the Juries shall be selected as hereinafter directed.

That institution of eldership continued later on and I will come to that.

KIRBY J:   The voting provisions were well in advance of the provisions in either the United Kingdom or Australia at that time ‑ ‑ ‑

MR ELLICOTT:   Yes, in those respects.

KIRBY J:   ‑ ‑ ‑ because we are talking here of 1857 and I think the first legislation for women to have any vote in Australia was in the 1890s in Western Australia and South Australia and England was not until about 1924, I think.

MR ELLICOTT:   And the Governor comments on that.  I will not take too much time on this, but what is said at 79 is not perhaps inapposite to what is being done here and what is being – I do not mean in this very Court, but what is happening.  He says:

A little thought, however, a small amount of self‑questioning, convinced me that my duty was to allow them to be happy in their own way.  We Englishmen are too apt to insist upon the adoption of our rules and habits in everything; we make up our mind upon matters of opinion, upon matters of practice, and having satisfied ourselves (very often, I must say, after a very cursory examination) that any given system is best for us, we jump at once to the conclusion that it is best for every one else, and we insist upon the adoption of it by others, without any thought that they may also have opinions of their own, with which they may be unwilling to part.

GLEESON CJ:   The next sentence is quite significant too, is it not?

MR ELLICOTT:   Yes:

My business, however, was not to devise some perfect scheme of government for this small community or large family, but to give them every help in the shape of advice.

GLEESON CJ:   Yes, he is not quite sure whether they are a community or a family.  How many of them were there at this time?

MR ELLICOTT:   It was a community of families.

GLEESON CJ:   How many of them were there at this time approximately, I wonder?

MR ELLICOTT:   There were 196.

GLEESON CJ:   Thank you.

CALLINAN J:   I see as to the female franchise at 1881 Governor Denison said he:

should most certainly not have proposed even this small amount of petticoat government, had I not found it already in existence.

MR ELLICOTT:   Yes.  He did not think much of this:

I left untouched the rule which gave the women, as well as the men, a vote in the annual election of the Chief Magistrate.

KIRBY J:   Well, you would have to expect that.

MR ELLICOTT:   So that was his view but all ‑ ‑ ‑

KIRBY J:   He was the Governor for Queen Victoria so ‑ ‑ ‑

MR ELLICOTT:   But that sentiment that is expressed at page 79 is not foreign to people who govern territories from the Commonwealth.  It is very easy to find the sentiment, I can assure you, when you become the Minister for the Territories and it was abundantly clear that the public service in this country had built up an attitude, to some degree, of paternalism towards territories.  But be that as it may, the point about what he records here is the inclusiveness of it all, that he included everybody, and that was the instruction from the Crown. 

In 1896 there was a change and at page 85 you find that the laws were again repealed.  Apparently, there was an attitude in the Island that did not please those in Sydney and so it was that the Governor decided, that is, the Governor of Norfolk Island, as he then was, also the Governor of New South Wales, that he had that title ‑ ‑ ‑

KIRBY J:   He was the Governor and Commander-in-Chief.

MR ELLICOTT:   Yes.  So he, in the interests of the community, at line 35:

wise and expedient to repeal all existing laws and regulations respecting the said island now in force therein, and to appoint an officer for the administration –

and so the Chief Magistrate then became appointed and he was given powers which were assisted to some degree by a council of elders, and that appears at the bottom of 87:

There shall be a council of twelve persons (herein called the “council of elders”) elected as hereinafter provided.  And the council of elders may from time to time choose one of their number as president . . . 

9.(i)     The council shall have the care, construction –

et cetera, of a sort of local council, and that goes on.  At line 38 or thereabouts on page 88:

The council shall be elected by the elders in the manner prescribed by regulations made by the chief magistrate.

Under 12:

The chief magistrate shall cause to be kept a register of the names of the male natural born or naturalized subjects of Her Majesty of the age of twenty-five years and upwards, who have for the previous six months resided on the island, and those persons are herein referred to as “the elders”.

So, again, the suffrage was male but it was defined in that way.  Section 22 at page 90, “All Laws . . . are hereby repealed” with certain provisos.  Now, on 15 January 1897 there was another Order in Council and ‑ ‑ ‑

KIRBY J:   What are you going to all this for?  What are you getting from it?

MR ELLICOTT:   Well, your Honour, the significance of what I am doing is first of all to show the origin, the inclusiveness of the government of the Island, the inclusiveness of all the people on the Island, if I can say, even women at that time, but what Justice Mason dealt with – and I am dealing with Berwick v Gray also – when he concluded that Norfolk Island was part of Australia, he relied on this Order in Council, which I am now about to refer to, of 15 January 1897 and the previous history to say that it was part of Australia.  Now, we have to deal with that and I am taking your Honour to the Order in Council for that purpose.

KIRBY J:   Was his Honour saying more though than it is part of Australia because it is a territory of Australia?

MR ELLICOTT:   Well, that is a notion which has to be challenged simply because Papua was a territory, it was part of Australia.  That would be foreign to the notions attached to Papua or for Cocos Island, and for some reason Norfolk Island has slipped into a niche of its own.

GLEESON CJ:   When did they cease to have prohibition on Norfolk Island?

MR ELLICOTT:   That is a difficult one.  I know they are at it now.  It must have been a long time.

GLEESON CJ:   Well, it seems to be a constant theme of all these Orders in Council you have taken us to that they cannot have any liquor.

MR ELLICOTT:   It is, yes.  I will find out, your Honour.

KIRBY J:   It must have been Methodist ministers or missionaries perhaps.

MR ELLICOTT:   Well, I think there is a strong Methodist cause there, I noticed, your Honour.  At line 20:

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, in the meantime the affairs of the island should be administered by the governor of New South Wales as herein provided.

And that goes on to make those provisions.  Now, it continued the laws in force under the provision in 6 on page 94 and the Order in Council of 24 June 1856 was repealed and that had the effect of removing the 39 laws.  Now, between pages 98 through to 131 there was correspondence that was filed in the New South Wales Parliament in 1897 and it was against the background of this correspondence that the Order in Council of January 1897 was promulgated.

It is necessary for an understanding of what that correspondence did.  If I can encapsulate it very briefly, what it did was first of all Governor Hampden on the way out seemed to get the bright idea that Norfolk Island might be annexed to New South Wales and in effect become part of New South Wales.  He took that up with the colonial government in New South Wales, and I think the Premier at the time was George Reid, and at first they agreed with that.  The question arose then from another colony, New Zealand, and it suggested that if there was going to be any annexation of Norfolk Island it ought to be to New Zealand.  So there is correspondence in there about that and that was pressed upon the colonial office by the Governor of New Zealand. 

Another thing was happening, the cable was going across the Pacific and it was going to go through Norfolk Island, so that was pretty important too.  So all these things are going on.  It is in that context that the question also arises as to whether there could be an annexation without an Imperial Act and the view appears to have emerged from the New South Wales Government that that could not be done without an Imperial Act.  There had been a suggestion that it could be.  So to have an Imperial Act about a place like Norfolk Island was perhaps as difficult as it is to get an Act through the Commonwealth Parliament on a special subject matter.  That became the view, namely, that we cannot annexe it because it will need an Imperial Act. 

Therefore, the other idea that was put forward was that the Governor should act on the advice of the Executive Council, and that is the Executive Council of New South Wales.  That, again, was seen as having the difficulty that what would happen would be that the laws of New South Wales would apply to Norfolk Island and they would be quite inappropriate to be holus‑bolus extended to Norfolk Island. 

No doubt the task of weeding out those which could and which would not was some of great difficulty and therefore for some reason along those lines it was decided ultimately that the notion, first of all, that New Zealand should not be in the Act – that was decided by the colonial office – and, again, it was decided that it should be done by Order in Council.  That is to say, the change should be brought about by Order in Council.  There should be no annexation and this notion of awaiting the time when the Federation came together and the Commonwealth emerged was introduced into the Order in Council.  But it did nothing, it promised nothing, the only legal effect that it ever had was simply to pick up out of the Order in Council of 1857 the way in which the affairs of Norfolk Island should be controlled.

The other thing it did was to place Norfolk Island not under the Governor of New South Wales as the Governor of Norfolk Island but to place Norfolk Island under the Governor of New South Wales simpliciter, but George Reid was not anxious to be the adviser to that Governor.  It was left to the Governor.  There is a letter he wrote.  It appears at 121:

The question as to the future government of Norfolk Island has been seriously considered by Ministers, and I beg to acquaint your Excellency with the result of our deliberations.

Whilst ready to assist your Excellency, in fact to be your Excellency’s advisers upon all matters of concern respecting the Island, we foresee great difficulties in the way of legislation either by the Governor with our advice or by the Legislature of the Colony.

We propose, therefore, that the Island should not be annexed formally to New South Wales, and that our services should be administrative only, legislation being conducted as formerly, or in such manner as may seem fit to Her Majesty’s Government.

It should be understood, however, the Island is, as part of the arrangement, secured to New South Wales, or the future Federal body, when it is found expedient to ask for its annexation.

GLEESON CJ:   The next sentence explains why.

MR ELLICOTT:   Yes:

This will be a tangible basis for an annual vote out of Colonial funds towards the expenses of the Island.

In this correspondence you will find references to how much it is going to cost and who is going to pay for it and it is quite clear that the treasuries could become involved in that.

Your Honours, that Order in Council was very important as Justice Mason saw it.  We would submit it had no operative effect, obviously, to annex the Island.  It had been set up as a separate and distinct settlement in 1857 and there is no doubt that nothing happened as a result of the Order in Council of 1897 to destroy its status as a separate and distinct settlement under the Crown.

Now, things changed, of course.  The Commonwealth was established and Norfolk Island was to be administered under the Governor of the new State, New South Wales, and that appears at 133.  The bounds of New South Wales are delineated at 135 and 136.  They do not include Norfolk Island.  There is a perceptive opinion, in our submission, which appears at page 142 of the first Solicitor‑General, Sir Robert Garran – Mr Garran.  Now, he recites the Order in Council of 1897 and he says at line 21:

Norfolk Island is therefore a separate settlement, for the government of which the King may provide by Order in Council under the Act of 1855, and which is at present administered by the Governor of N.S.W. under the Order in Council of 1897.

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 . . . 

(2)     to place it within the limits of a State . . . 

(3)     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, 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 – nor would it necessarily be within the Commonwealth tariff fence.  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 the procedure provided by section 123 ‑ ‑ ‑

GLEESON CJ:   Mr Ellicott, what is the nature of title to land on Norfolk Island?

MR ELLICOTT:   I think it is freehold.  About two‑thirds is freehold and the balance is Crown lease.

GLEESON CJ:   Over this period of history that you are telling us about, was there a time before which ownership of land or the right to acquire land was limited to descendants of people who had come from Pitcairn?

MR ELLICOTT:   I know that at or about the time in 1897 there is a report in those documents by a Mr Carruthers and it refers to people taking up land and there was criticism of the fact that a lot of the land had not been taken up.  In other words, they were being accused of not developing it and no doubt not providing income and revenues to the treasury but ‑ ‑ ‑

GLEESON CJ:   The reason I am asking the question is this.  The very concept of community on this island has changed or might have changed from time to time, might it not, with the freeing up of access to land of people who were not part of the original community?  Is that something that has happened?

MR ELLICOTT:   If your Honour means have people who are otherwise than of Pitcairn descent taken up a lot of the land, I think it is right to say they have, or have acquired the land by transfer or otherwise.  It may originally have been taken up by Pitcairners.

GLEESON CJ:   I think you told us that at the time of the 39 laws the population of the Island was about 196 and we have the figures or the numbers in the stated case roughly at the present time – 2001, 2003.  We do not have any information, do we, as to how many of those people referred to in the stated case are descendents of people who formed part of the original community?

MR ELLICOTT:   Yes, we do have information about that.  Before I go to that, your Honour, the population of the island, if you go to page 111, as reported by Mr Carruthers and a Mr Oliver, the community was 594.  That is 1896.  There was this Melanesian mission.

GLEESON CJ:   There is actually some interesting history on that page you have just referred us to.

MR ELLICOTT:   At 34, “It may be here stated that the unanimous feeling of the Islanders is that annexation”, that is picked up and expressed in some of the documents that are here that are signed by the Chief Magistrate who was actually being attacked.  There is a clear difference between the people and the Governor of the Island as to whether or not they were acting in a proper way.

The people of Pitcairn descent – if your Honour goes to 193, as at August 2001, 48 per cent of Pitcairn descent, 51.3 of not Pitcairn descent.  That is of the 1,574.  That is of the permanent population.  So it is still very substantial.

GLEESON CJ:   That is what I was interested in.  Thank you, Mr Ellicott.

MR ELLICOTT:   Now, Sir Robert Garran’s opinion, I mean, it only has its own force, it is not the force of law, but it does appear to be the thinking at the time, and his view that it would not be part of the Commonwealth we would submit is the correct view.  It did not become part of the Commonwealth in 1913 and to say that somehow by reason of the fact that it had been brought – I will use the expression under the umbrella of various of the colonies in and around the Australian continent such as Van Diemen’s Land or New South Wales does not mean that it has become part of the Commonwealth when it is placed under the authority of the Commonwealth.

GLEESON CJ:   Justice Mason was not denying, was he, that this is an external territory?

MR ELLICOTT:   No, I did not understand him to say it was an external territory, but he was not denying it, and to say that it is an external territory, as I have said earlier, it may be a description which does not find itself in the Constitution or have a constitutional significance, but it is another way of saying, when you apply it to all our external territories that we know of, that they are not part of the Commonwealth. They just were not part of it and nothing has happened to make them part of it.

There are ways in which they can become part of it and those ways are defined, for instance, in section 121 where it provides that “The Parliament may admit to the Commonwealth or establish new States”.  Now, it is probably establishment that would be appropriate.  For instance, Parliament could have established New Guinea as a new State, or Papua as a new State, and could have done so without the other States having any say about it.

On the other hand, under 123, with “the approval of the majority of the electors of the State”, the Commonwealth could have altered the boundaries of New South Wales to include Norfolk Island within it, as Lord Howe Island is included within it.  In other words, the transition from being not a part of the Commonwealth to being part is provided for in those sections.  On the other hand, as Ex parte Ame shows, equally that territory could cease to become part of Australia as a result of a decision to sever the relationship.  It could, for instance, be an agreement between New Zealand and Australia to place Norfolk Island under Australian sovereignty, and that could be done.

But the notion of whether or not it is part of Australia is, in our submission, answered by considerations that relate partly to those notions that Sir Robert Garran expressed but also by the fact that when you ask the question what was the Commonwealth at the time of Federation, between what parties was the Compact, what geographically fell within those parts of Australia, you get this distinction quite clearly between those which were parts which were internal and those which were external, which are the external territories.  In that passage from Re Governor; Ex parte Eastman that I referred to this morning and which your Honours read:

The Northern Territory has already obtained a substantial measure of responsible government. There is a view that the ACT, by reason of certain provisions of the Constitution, can never become a State. There have been various circumstances in which external territories have come to be under the authority of the Commonwealth.

Bernasconi is referred to.

The territories have been, still are, and will probably continue to be, greatly different in size, population, and development. Yet they are all dealt with, compendiously and briefly, in s 122.

This notion of these being different must surely have been present to the minds of the founding fathers. They would have expected section 122, although compendiously drafted and enacted and accepted, was nevertheless intended to be construed in a way which accommodated the Commonwealth’s obligations or relationship, if you like, to the territories according to their particular and specific position. We would submit that, with very great respect, the decision or the comments or conclusions reached in Berwick’s Case about that matter were incorrect and should not be adopted and your Honours should find in this case that Norfolk Island is not part of Australia. 

That is a foundation to our argument, because it is distinctness and separateness expressed in a notion of whether it is part of the Commonwealth or not, which is a constitutional notion, is an important step in saying that this is a community or a people outside the Commonwealth with whom the Commonwealth has relations. 

Could I take your Honours quickly to Capital Duplicators 177 CLR 248, particularly the judgment of Justice Gaudron at page 285. Her Honour says:

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. It covers, on the one hand, “territory surrendered by [a] State” and, on the other hand, “territory placed . . . And, of course, special provision is made in s. 125 with respect to the grant or acquisition of territory “in the State of New South Wales” 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.

We would, with respect, adopt that observation. 

Although s. 122 operates generally and with respect to territory in the geographic sense, it is relevant to observe that Australia’s internal territories, the Australian Capital Territory and the Northern Territory (“the Internal Territories”), are historically and geographically different from other territory with which the section deals. The Australian Capital Territory exists as such by virtue of a grant by the State of New South Wales pursuant to s. 125 of the Constitution; the Northern Territory owes its existence as a Territory to the surrender of territory by the State of South Australia. They and any future Territory brought into existence by separation from one or more of the States are necessarily constituent parts of the Commonwealth of Australia, both geographically and politically. Other territory might become part of Australia if, for example, the limits of a State are increased to include it –

and here is where her Honour was observing the rule of law –

and some territory may be part of the Commonwealth even though it was not in 1901 and is not now within the limits of any State.

Her Honour refers to Berwick Ltd v Gray and examples Norfolk Island.

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.

Now, that is probably the most direct statement in the books, I think, about this particular subject and although it puts Norfolk Island in a particular category, that is on the basis of Berwick v Gray which we attack, that that last sentence that her Honour had written, in our submission, that applies obviously to Papua as well as the mandate, would apply equally to Norfolk Island.

The provisions under which Norfolk Island was placed under the authority of the Commonwealth are found at 159 and 160 – that is the Order in Council – and the Norfolk Island Act itself is found at 162. At 163 there is a recital of the Order in Council of 1856 and that from the said date Norfolk Island should be a distinct and separate settlement. That is one of the historical facts upon which the acquisition was based – the acquisition in the broad sense as is used by the authorities actually, not by the Constitution except in the words “otherwise acquired”.

There is then reference to the 1897 Order in Council.  The Commonwealth accepts it by declaration under 3, as they had declared the Coral Sea to be part of Australia.  There is a continuation in force of the laws.  Section 5 at 165 is very important because it indicates an intention on the part of the Commonwealth to accept the notion that this is a separate and distinct settlement, as it did with other external territories:

The Acts of the Parliament (except this Act) shall not be in force in Norfolk Island unless expressed to extend thereto.

That has been the rule right up till now and no doubt consideration might be given to getting rid of that in due course.  The Executive Council was continued.  An Executive Council for the Island was set up in, I think, 1903 and there is reference made to it in the schedule that my friends had prepared and which I handed up this morning, but it indicates the nature of the right to vote.

The second reading speech will be found at 171.  I do not think it needs any special reference.  It becomes poetic in part, but I will not dwell on that.  It simply exemplifies the basis upon which Australia accepted the Territory of Norfolk Island.

GLEESON CJ:   I think you were going to give us a ministerial statement in a second reading speech in relation to the 1979 Act.

MR ELLICOTT:   Yes, I am.  Yes, well, I can do that now.

GLEESON CJ:   I think we have it.

MR ELLICOTT:   Your Honours have it.  When your Honours come to the Norfolk Island Act 1979, they, of course, are in the light of both those statements. Those statements indicate an acceptance by the Australian Government of the fact, which is recited in the Act itself, that the residents included descendants of the settlers from Pitcairn Island.

GLEESON CJ:   So the author of this seems to have thought that Norfolk Island was part of Australia?

MR ELLICOTT:   The author, your Honour, had to observe the rule of law and he had not the temerity at that stage to suggest that Berwick v Gray should be set aside, as did Justice Gaudron, but notwithstanding there is a very beneficent Commonwealth at that time and took into account the position of Norfolk Island.  The Act itself in the recitals recites that the Parliament recognises the special relationships of the descendants with Norfolk Island and their desire to preserve their traditions and culture.  

the Parliament considers it to be desirable and to be the wish of the people of Norfolk Island that Norfolk Island achieve, over a period of time, internal self-government as a Territory under the authority of the Commonwealth and, to that end, to provide, among other things, for the establishment of a representative Legislative Assembly and of other separate political and administrative institutions -

There is a statement of intention to review the powers.  That Bill came into existence as the result of the Minister going to Norfolk Island and sitting down with the Legislative Council and in effect with the administrator, in a sense, getting their views on it.  It was based to a large degree on the Northern Territory (Self-Government) Act as a matter of history.  It ultimately took the form it did after consultation with the representative body on the Island.

That having been given, a basic part of that was the provision that I have already taken your Honours to, namely, the voting rights and the qualification right for election.  That statement was a statement basically made to the people on the Island of the government’s policy, as your Honours will have noted.  The second reading speech is limited to the first few pages of the document that your Honours have there.  The rest of it is the debate.  The first three pages are the second reading speech.  It then descends into political statements by the opposition.

GLEESON CJ:   Did those taxation arrangements that resulted in the incorporation, at one stage, of a large number of companies in Norfolk Island ever get to this Court?

MR ELLICOTT:   There is a taxation case called Esquire Nominees that I recall where I was on the other side as Solicitor-General, which I think we succeeded in; we then being the Commonwealth.  Your Honours, there is a satire on Berwick v Gray.  It is an article by John Ewens whom your Honours will recall was the first Parliamentary Counsel.  It is found in the Australian Law Journal, volume 54 at page 68, and it just indicates why the ordinary traveller going there and coming back would wonder how Norfolk Island could possibly be part of the Commonwealth and all the intricacies of such travel.  It is a satire, but it has a point to it that supports our point of view.

GLEESON CJ:   There was actually a different language or a special language at one stage, was there not?

MR ELLICOTT:   There is a language and it is spoken by some, it is not generally spoken.  There has been criticism of the fact that it is therefore not an island culture or something because people do not speak it generally.  I think that report in the Senate in 1975 picked that up as one of reasons for saying that Article 73 did not apply.  But, yes, there is a special language. 

At page 220, your Honours will find the second reading speech which will assist your Honours to know what the legislature may have thought was the object and purpose of the Bill, but it may also enable your Honours, in accordance with the authorities, to look at the rights and obligations which were created and the rights and obligations which were destroyed or affected by the impugned law.  It is open to the view, and we would so submit, that this is not a law with respect to the government of Norfolk Island.  This is a law designed to protect the rights of Australian citizens and that becomes apparent from the text of the second reading speech itself: 

The purpose of the Norfolk Island Amendment Bill 2003 is to amend the Norfolk Island Act 1979 to align Norfolk Island’s electoral provisions more closely with those of the Federal Parliament, the Parliaments of the States and the legislatures of the other self‑governing Territories.

The bill has three important elements.  It extends the right to vote –

extends the right to vote –

in Legislative Assembly elections to all Australian citizens ‘ordinarily resident’ on Norfolk Island for more than six months.

Now, stopping there, the only thing that happened in that sentence that would have extended anything was the fact that the 900 days was then the rule and this limited it to no more than six months so that those Australian citizens on Norfolk Island who had not been there for 900 days would have thereby obtained their qualification to vote.  But the notion of extending the right to vote is not exactly correct:

It establishes Australian citizenship as a qualification for enrolment and for election to the Legislative Assembly.

That is not a complete statement.  Australian citizens as such were not excluded at this point.  They may not have been stated to be the – I am putting this to make the point that really the second reading speech is about democracy in Australia and not about Norfolk Island really:

At the same time, the bill preserves the existing enrolment rights of those who would not otherwise be eligible under the new arrangements.

This means that the proposed changes will not affect the right to vote of any person currently on the electoral roll, regardless of citizenship.  However, in the future any person seeking enrolment, and any candidate for election to the Legislative Assembly, would have to be an Australian citizen . . . 

By way of general observation, the bill’s inclusion of the electoral provision s applying to the Norfolk Island Legislative Assembly in the Territory’s self-government Act is consistent with such provisions being in the self-government acts for both the Australian Capital Territory and the Northern Territory.

So it has equated it.  Further down in the middle of the page:

As with the previous bill, this bill aims to protect the democratic rights of Australians living in a remote part of Australia -

Now, that is tongue‑in‑cheek, surely, but it has to be taken seriously –

and ensure that, if they are ordinarily resident there, they will be able to participate in the decision‑making processes affecting their day to day lives.

There is nothing in that sentence or in this second reading speech at all that would direct itself to the community of Norfolk Island or to the people of Norfolk Island as such.  This is all about Australian citizens and their right to vote:

The bill is about democracy, justice and a “fair go” for all.

Well, if it was a fair go for all, one might have thought that it should apply to all the population of Norfolk Island who were adult and not otherwise disqualified from voting, provided they had a resident’s qualification.

What the bill is trying to achieve, democracy at its most basic level, is therefore something every Parliamentarian should be passionate about.

Well, I guess that is right.

The six month qualifying period proposed for Norfolk Island represents a fair and reasonable compromise.

We are not seeking to submit otherwise.  Over the page:

The bill also removes the right for non‑Australian citizens to enrol and stand for election to an Australian legislature.

Now again, the whole theme of the second reading speech is to treat Norfolk Island as if it was part of Australia, and indeed it so says:

There can be no justification for the continuation of such an anomaly.

There is no anomaly there.  Those people have been voting on Norfolk Island since the year dot.  They may have been British subjects.  They may have been New Zealanders.  They may not have been Australian citizens when citizenship became relevant after 1948, but it was not anomalous.  Nothing anomalous.  Anomalous to what?  This is a separate territory.  It is anomalous because it is treating it as part of Australia.  It goes on:

The Government does not believe that non-Australian citizens should be able to decide what laws will apply to Australian citizens in the Australian community.

Now, it is not an Australian community.  It is Norfolk Island.  One could go on and I do not – I mean, I can make these points till the cows come home.  They do in Norfolk Island on the streets as your Honours might recall.  The cows wander up and down the streets of Norfolk Island still.  But the point is that throughout this second reading speech, it is based on what we say is a misstatement of the constitutional position of Norfolk Island, basically because it is part of Australia - it is asserted to be part of Australia. 

In one sense, one can say the Minister was entitled to say that because Berwick v Gray still stood on the books, but on the other hand, in our submission, it is based on a constitutional error and when the speech is read and considered and when the laws are considered, the laws, in our submission, with respect, are not with respect to the government of Norfolk Island.  They are to do with the rights of Australian citizens and the assimilation of the Norfolk Island legislature with all the other so‑called Australian legislatures, and that, we would submit, is a fundamental constitutional error. 

Your Honours, they are our submissions on that matter. There is, however, another submission that we have put and which your Honours will find developed in paragraphs 38 to 45 of our submission. Your Honours will be well aware – if I can just take your Honours to those submissions. In paragraph 39 we refer to what is referred to as the “Doctrine of Representative Government Embodied in the Constitution”. Your Honour Justice Kirby quite rightly said to me there is a notion that you cannot imply anything in the Constitution unless it is necessarily implied. Now, one thing ‑ ‑ ‑

KIRBY J:   The Court has repeatedly implied things in.  For example, the rule of law in the Communist Party Case and the Theophanous line of territory culminated in Lange - the Engineer’s Case. There have been implications right through the history of the Court, but I think the Court has usually accepted that necessity is the test, that it has to be something that is necessary from the text and purpose of the Constitution to do the implication.

MR ELLICOTT:   Your Honour, there is a sense in which the notion springs out of the text and it is not implied. It is embodied in the text and it is in that sense that representative government – if I can use that short description – is embodied in or integral with the Constitution. As Chief Justice Mason said in Australian Capital Television v Commonwealth 177 CLR:

It is essential to keep steadily in mind the critical difference between an implication and an unexpressed assumption upon which the framers proceeded in drafting the Constitution.

He recites Australian National Airways, Justice Dixon as he then was:

The former is a term or concept which inheres in the instrument and as such operates as part of the instrument, whereas an assumption stands outside the instrument. Thus, the founders assumed that the Senate would protect the States but in the result it did not do so. On the other hand, the principle of responsible government – the system of government by which the executive is responsible to the legislature – is not merely an assumption upon which the actual provisions are based; it is an integral element in the Constitution.

GUMMOW J:   That is responsible government?

MR ELLICOTT:   Yes, responsible government, and that is ‑ ‑ ‑

GUMMOW J:   We are talking about representative government now, are we not?

MR ELLICOTT:   No.  We have responsible government on Norfolk Island.

GUMMOW J:   And both.  We are talking about the franchise as well?

MR ELLICOTT:   We are talking about the franchise, and I did not understand his Honour to be referring to other than responsible representative government, that which applies under the Commonwealth Constitution. That is what was granted and still in existence in Norfolk Island.

GUMMOW J:   But is Norfolk Island part of the Commonwealth for this argument?

MR ELLICOTT:   No, it is not part of the Commonwealth for this argument. It does not have to be. The relationship between section 122 and other parts of the Constitution has been navigated constantly since early times, and some provisions have been said not to apply. The provisions in Chapter III, section 80, and on the other hand, in a way notions related to customs do not apply, notions relating to immigration do not apply, and section 90 does apply, and really Australian Capital Duplicators is instructive because it does pinpoint a provision in the Constitution which was basic to the Federation, and which, by virtue of the fact that the Parliament was making laws with respect to the Territories was, on one view, it not only affected the States and their powers, it also affected the powers of the legislatures.

Now, your Honour’s views on that subject were not necessarily consistently based, but the proposition seems to have been embraced that that basic notion in section 90 was one which was to be visited upon section 122. Now, if it is integral with our Constitution that it has the notion of representative responsible government, and if as the authorities make clear that notion is based on an adult suffrage and a notion which expands as time goes on, eg, it would be unthinkable today that any legislation which gave an inland territory the right to have a male suffrage and to restrict women from voting, that would be anathema and we would submit the same considerations apply to Norfolk Island, whether it is part of the Commonwealth or not part of the Commonwealth. It is not inconsistent with our argument. It is, as I submitted earlier, embedded in section 122 in the last two lines when it says:

representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

It is embedded in there simply because the notion of representation of a territory – and we say that must at least mean the representation of the people – that could not embody any other notion than one that satisfied the fact that if, for instance, Papua was going to be given representation in the Australian Parliament, that the people of Papua according to notions of adult suffrage would be entitled to the vote.  It would be unthinkable that it be given to male Papuans, for instance.  Likewise, it would be unthinkable that it be given to male Northern Territorians or on some other basis which was not indicative of the broad nature of that community. 

It is for that reason that we would submit that you do not have to go outside 122 to find the notion in it. It does not apply directly in this case, and I am not suggesting it. All I am saying is that there is a link within section 122 and the rest of the Constitution. So that, it being integral, it is our submission, in accordance with our submissions which your Honours will find from 38 to 45, that the effect of that is that the people of Norfolk Island have to be considered for the purposes of representation and that only an appropriate adult suffrage is consistent with that notion of representative government.

KIRBY J:   There is your formulation there:  appropriate adult suffrage.  So that it is either to be read in to be the Parliament may make laws for the government of any territory which shall include appropriate adult suffrage or the Parliament may make laws for the government of any territory which may not alter appropriate adult suffrage.  You have to read it into the generality of the language.

MR ELLICOTT:   It is saying that if you pass a law for the government of the territory which grants representative government then that representative government has to accord with a principle which is integral to this Constitution and applies to that representative government as it would apply to the government of the Northern Territory or the Australian Capital Territory.

KIRBY J:   There is a requirement for the Australian Capital Territory that voters be Australian citizens.

MR ELLICOTT:   There may be and it may be the subject of examination if the territory became out of kilter with that notion, but that is a different issue.

KIRBY J:   But even that has an anomaly and that is that British subjects of a certain class still qualify as electors of the Commonwealth and still have to vote under the Commonwealth Electoral Act. So you are arguing for another exception, but you have to somehow read it into section 122.

MR ELLICOTT:   It is not another exception of a different order.  In our submission, it is not appropriate to compare the Australian Capital Territory with Norfolk Island in this respect.  It may well be that Australian citizenship is a very appropriate way of giving the vote to people within the Australian Capital Territory.  That is a matter of understanding the nature and breadth and composition of the community.  But if it was out of kilter with the community, then there is a reason for saying that the people of the Australian Capital Territory are not represented by Australian citizens, just as this Court or some members of this Court have said that the people of the Commonwealth as a notion may not be satisfied by the notion of citizenship, because there are large numbers of people who are not Australian citizens who are disenfranchised in this country, but yet pay taxes and are part of the community and they have been here for years.  A lot of them are British subjects and they have not chosen Australian citizenship.  There is nothing wrong with that.  They are…..people.  It is a free society, after all.

It is a question of people having a right to be involved in their community and its decisions and if Norfolk Island has a particular composition, then that composition requires account when determining that matter.  Now, I have not spent a long time on that proposition, but it is sufficiently stated in our argument.  Those are our submissions, your Honours.

GLEESON CJ:   Thank you, Mr Ellicott.  Yes, Mr Solicitor.

MR BENNETT:   Your Honours will not be surprised to learn that I will not finish today, unless I am stopped, I suppose.

CALLINAN J:   Or accelerated.

MR BENNETT:   Yes, your Honour, maybe.  Your Honours, it is convenient to start with my friend’s amended written submissions that he handed up to the Court, the document headed “OUTLINE OF PLAINTIFF’S SUBMISSIONS”, because one can go through that sentence by sentence and demonstrate that it really comes from nowhere.  The centrepiece of it and the centrepiece of my learned friend’s argument is paragraph 12, which my learned friend put as the answer to the question he was asked about what was the implication.  He says of course is it not an implication; it is a construction of the words “a law for the government of Norfolk Island”, and he says, we submit out of nowhere, or at least out of nothing having any validity or correctness, that this law is not a law for the government of Norfolk Island because he submits it is so bad.  He does not give any rational reason.  The reason given in paragraph 12 is:

because it selects as a criterion for the possession of [the relevant] rights one which is not a defining characteristic a person must possess in order to be a member of the Norfolk Island community or one of “the people” of Norfolk Island. 

The proposition that something is not a law, something defining the right to vote, because it defines the right to vote differently to this phrase my friend draws from the air, which is a meaningless phrase, of course – it is a phrase he draws from the air of a member of the Norfolk Island community or one of the people of Norfolk Island – is simply something that has no basis anywhere.  We would submit once one rejects that out of hand, as one must, that is the end of my friend’s case.  It simply comes from nowhere. 

May I now take your Honours to some of the individual paragraphs to see where my learned friend says it comes from.  Going on in paragraph 12, he says:

It is inconsistent with Norfolk Island’s status as a distinct and separate settlement –

Now, that is a basis which my friend put in some detail in his written submissions but did not mention, except in one casual reference in passing, in his oral submissions. I do not know if it is still pressed. That is the submission that because of the use of the words “distinct and separate settlement” in the Order in Council of 1857 that in some way governs and limits the Commonwealth Government’s powers under section 122. That argument, of course, only has to be stated to be laughed out. My friend did not put it verbally. I assume he has abandoned it. If that is not the case, I would appreciate being informed because I will then have to deal with it.

MR ELLICOTT:   It has not been abandoned ‑ ‑ ‑

MR BENNETT:   My friend says it is not abandoned so I better deal with it and I will do so. It has the proposition that a throwaway line in an Order in Council in 1857 in some way results in the Constitution being read differently, but I will come to that. Let me finish the present exercise.

KIRBY J:   But it is a distinct and separate settlement, is it not, in some respects?  It does have this rather unusual ethnic background.  It is isolated and it has this special group of the Pitcairn Islanders who came into it, so that there are features of it that are distinct and separate from the mainland.

MR BENNETT:   In one sense, but not in any legal sense, your Honour, having any meaning or importance.  All the words meant in the Order in Council was that it was being separated from Tasmania and being made a colony in its own right.  That is all it meant.  I can show your Honours that.  The Order in Council is at page 68.

KIRBY J:   Has not the phrase been repeated later in the preambular statements?  I thought it was in the 1913 federal enactment.

MR BENNETT:   Only, your Honour, in an enumeration of the history where it is cited as one of a large number of historical matters.

KIRBY J:   I am sorry, you were taking us to 88, is it?

MR BENNETT:   Yes, 68, your Honour.Your Honours will recall that Norfolk Island had been part of New South Wales, then it had been transferred to Van Diemen’s Land and now it was being separated from Van Diemen’s Land, not given back to New South Wales, but being made into a colony in its own right.  That is all these words mean.  They are a different way of saying colony in its own right.

CALLINAN J:   Mr Solicitor, the words in I think it is third recital are quite important, “And it is hereby further ordered”, and then it goes on, “until further Order is made”.  So whatever was done there was not necessarily permanent.

MR BENNETT:   No, it was not, your Honour, and it was repealed in 1897.

CALLINAN J:   And the reservation is quite important.  I think a similar reservation appears in all of the letters patent and Orders in Council, does it not?

MR BENNETT:   Yes.  Your Honour, in one sense the argument proves too much.  If my learned friend is right in saying that the empowerment of the monarch to make an Order in Council is once and for all, the monarch makes an Order in Council, that is once and for all, one cannot go back and make another one doing something different, if one says that, then the placing of Norfolk Island under the authority of the Commonwealth in 1913 was invalid, and my friend expressly eschews that argument.  He does submit that.  So the argument, in a sense ‑ ‑ ‑

GUMMOW J:   Well, there is a possibility that 122 itself was a fresh authority to the Imperial Government to place territories under the control of the Commonwealth.

MR BENNETT:   Yes, that is one of the arguments I will put, your Honour.

CALLINAN J:   As an Imperial Act and totally consistent with the earlier Orders in Council and letters patent, and of at least equal authority to the Australian Waste Lands Act, was it?

MR BENNETT:   Yes, and that proposition which Justice Gummow refers to is one of the arguments I intended to put.  It is supported by the fact that the Order in Council of 1913 refers to the 1857 Order in Council and says “and all other matters there unto enabling” or words to that effect.  The words are – I will show your Honours the exact words.  At page 133 your Honours will see that the fourth recital beginning with the words, “Now, therefore” at line 15 – I am sorry, that is the wrong one.

HEYDON J:   Do you want 1914?

MR BENNETT:   I am sorry, your Honour, I have been given the wrong one.

HEYDON J:   Page 159.

GUMMOW J:   March 1914, page 159.

MR BENNETT:   Yes, 159 – yes, it is page 160.  After reciting a whole lot of Orders in Council and revoking the last one, it says at the second paragraph on page 160:

Now, therefore, His Majesty, by virtue and in exercise of the power in this behalf by the Australian Waste Lands Act, 1855, or otherwise in His Majesty vested –

and that would include section 122 of the Constitution.

GLEESON CJ:   Mr Solicitor, are you quite accurate in describing the intention on pages 68 and 69 as being that this Island should be a colony?  It is not described as a colony, is it?

MR BENNETT:   It does not use the word, your Honour.  That is the modern word for what it was.

GLEESON CJ:   On 24 June 1856 was it vacant?

MR BENNETT:   No, your Honour.

GLEESON CJ:   Well, I am reading from a speech in the House of Representatives on page 173 of the book that says:

In 1856, Norfolk Island was vacated.  The Pitcairn islanders, finding that their island had become too small for them, petitioned for another home, and Norfolk Island was given to them.

What I would be interested to know is what in terms of habitation was the position on Norfolk Island on 24 June 1856.

MR BENNETT:   The boat arrived from Pitcairn Island in June 1856, as I recall.  It was a few days before the Order in Council.

CALLINAN J:   Sixteen days before the Order in Council of 24 June.

MR BENNETT:   Yes, so at the date of the Order in Council it was inhabited by the Pitcairners.

GLEESON CJ:   But was it a colony?  Did it become a colony as a result of the Order in Council?

MR BENNETT:   Yes, your Honour.  It had been part of the colony of Van Diemen’s Land.  It was separated from that and made into a colony in its own right.

GLEESON CJ:   Made into a distinct and separate settlement, it is called.

MR BENNETT:   A “settlement” is not a legal term, your Honour.  A settlement is just ‑ ‑ ‑

GLEESON CJ:   Is “colony” a legal term?

MR BENNETT:   It certainly has a meaning today and it is closer to a legal term than “settlement”.  A small village in Australia could be described as a settlement.  The word does not have any legal ‑ ‑ ‑

GUMMOW J:   Is there not an Imperial Act of 1887 that deals with these odds and ends?  It includes settlements, I think, as well as colonies.

MR BENNETT:   Singapore of course was called the Straits Settlement.

GUMMOW J:   Yes, exactly.

HAYNE J:   So was Port Phillip at one point, Mr Solicitor.

MR BENNETT:   Yes.  No particular distinction is intended.  It is a piece of land which will be governed from London, which is part of the British Empire and which is not part of any other colony.  That is the effect of what is being said.  The words that were chosen to describe that situation are not words having a deep and abiding long‑term significance; they are just a convenient way of saying, “It’s not part of Tasmania any more, nor is it part of anywhere else.  We’re making it a separate colony”, or “settlement”, whatever word one wants to use.

GUMMOW J:   The 1856 Order in Council was supported, was it not, by the Waste Lands Act?

MR BENNETT:   Yes, your Honour, which is on pages 64 and 65.

GUMMOW J:   Page 65, about point 7.

MR BENNETT:   Yes, line 34:

Provided always, that it 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.

GUMMOW J:   It does not say erect another colony.  That might be included within it but it is not limited to erection of another colony.

MR BENNETT:   Your Honour, Her Majesty could have achieved that result by making it part of New South Wales, by making it a separate colony, making it part of New Zealand or dividing it in some way.  There are numerous things that could have been done and they all would have fallen under the umbrella of the words “make such provision”, et cetera.  Those words simply dealt with the immediate consequence of separating it from Van Diemen’s Land because separating it from Van Diemen’s Land takes away the present structure of government in the polity and one has to set something else up.  But this is not some sort of constitutional guarantee intended to inure and recognised and accepted by Australia in 1913.  It is nothing like that.  In any event, it was repealed in 1897, so the words could not possibly have any meaning after that.

GLEESON CJ:   I may have overlooked it and I may be mistaken, but I cannot recall having seen anywhere in any of these documents where Norfolk Island is described as a colony.  Nothing may turn on it, but it was the accuracy of your statement earlier about the Order in Council that troubled me.

MR BENNETT:   Yes.  Your Honour, I did not intend to use the word “colony” in any technical way.  That is a modern description of what it was; rather like the Falkland Islands or Pitcairn today.

CRENNAN J:   Mr Bennett, page 71, about line 15 there is a description of the Order in Council where there is reference to the separation from the colony of Van Diemen’s Land, now called Tasmania, and then the reference to Norfolk Island “erected into a distinct and separate Colony”.  That is a description of the Order in Council and the instructions to the Governor‑General. 

MR BENNETT:   Yes, I am grateful to your Honour.  The Under Secretary in 1857 shared my view.  The point is not that it makes any difference whether one uses the word “colony” or “settlement” or any other word; the point is that what was being done was to separate it from Tasmania and place it on its own under the direct control of the colonial office.  That was the effect of it.  Neither the words “separate” and “distinct”, nor the word “settlement”, have any abiding significance; they are simply, I use the phrase “colourless words” in our submissions and that is an appropriate way of describing them.

KIRBY J:   Leave aside the possibility that the words incorporate the notion of separate and distinct and that that carries forward, but what about the doctrines of the common law with respect to colonies of the Crown where some form of self‑administration had been granted and the principle that that could not thereafter be taken away.  Was that something that one could use as a building block for the recognition of the special status of Norfolk Island?

MR BENNETT:   No, your Honour.  That doctrine was based on the three cases.  There was R v Burah, R v Hodge and Powell v Apollo Candle Company.  Those cases were referred to in Capital Duplicators.  They were cases which, in effect, concerned the granting of plenary powers to new legislatures by giving them power to make laws for “the peace, order and good government” of the particular areas.  What was said was they exercise those powers not as agents but as principals and it is ‑ ‑ ‑

KIRBY J:   That was to overcome the doctrine of delegatus non potest delegare, was it?

MR BENNETT:   Yes.

KIRBY J:   And that was never applicable to Norfolk Island because neither the Imperial Parliament nor the Australian Parliament has ever conferred powers in that generality.

MR BENNETT:   Precisely, your Honour.  It is not a doctrine which has any application in the present situation.

KIRBY J:   Is that plain that there has never been at any stage such a grant to the Norfolk Island legislature?

MR BENNETT:   As I understand it, yes, your Honour.  There have been grants of specific powers from time to time.

KIRBY J:   There is a grant at the moment which I noticed had five qualifications, the last of which was that they should not pass any law on euthanasia.  Why is that not a grant in such generality subject to those very specific restrictions?  Printing money was another one.  There were five qualifications I remember reading in the written submissions.

MR BENNETT:   Yes, I have to find that piece of legislation.

KIRBY J:   Because even our Constitution purports to reserve certain matters for Her Majesty and similarly the Canadian and other Constitutions did so. So that if there was just a small list of five items, that might be seen as attracting the Burah line of territory.

MR BENNETT:   Yes, I think there is another provision in the Act which retains the general powers of Parliament.  I just need to find that.

KIRBY J:   You deal with that in your own time, Solicitor.  It does not have to be dealt with now.

MR BENNETT:   Yes, under section 23 of the 1979 Act:

the Governor‑General may –

so that is on the advice of the Australian Government –

within 6 months after the Administrator’s assent to a proposed law, disallow the law or part of the law.

So it is a qualified ‑ ‑ ‑

KIRBY J:   There are such provisions in the Australian Constitution.

MR BENNETT:   I am sorry, your Honour?

KIRBY J:   There are provisions for disallowance I think in our Constitution, the Australian ‑ ‑ ‑

MR BENNETT:   There are, your Honour, in the ‑ ‑ ‑

GUMMOW J:   Well, we dealt with these in Sue v Hill, did we not?

MR BENNETT:   Yes.

GUMMOW J:   Section 58 would no longer be exercised on imperial advice.

MR BENNETT:   Yes.

GLEESON CJ:   Mr Ellicott’s argument, as I understand it, involves this proposition that you do not have to give them representative government, but if you do give them representative government, you cannot give them such a form of representative government as divides the community.

MR BENNETT:   Well, your Honour, our simple answer to that is why not?  Why must one go to one extreme or the other?

HAYNE J:   Well, the argument against you is encapsulated, as I understand it, in paragraph 12 of the paper that was given to us.  Now, either that is a sufficient statement or it is insufficient.  If it is insufficient, its insufficiency may lie in the elision of terms where we find electoral rights, rights which are characteristic of being a member of a community or one of the people.  Now, that is either a good answer or it is a bad answer.  If it is a bad answer, it has some logical or other infirmity.  If it is a good answer, you have no answer to it.  Now, Mr Solicitor, are you going to grapple with it or are you going to talk at us in generalities?

MR BENNETT:   Well, your Honour, my answer to it is it comes from nowhere.  There is no such principle.  It comes out of the air and it is simply asserted.  It is very hard to present arguments or authorities against an assertion that has never been made before as far as I am aware in any court in any context that is relevant.

HAYNE J:   I would for a start have thought that it might be useful to begin by examining the notion that a community is relevantly defined by reference to rights which, using a term generally and neutrally if I may, are identified as civic rights, namely rights to vote.  If that is an appropriate way to identify the community, certain things follow.  If it is not an appropriate way to identify a community which seems rather to be a social rather than a legal term, then the proposition begins to look a little more difficult to support.  If your answer is that it comes from nowhere, it is not good, so be it, Mr Solicitor.

GLEESON CJ:   There is a related issue connected with what Justice Hayne is raising.  As it is expressed in paragraph 12, it assumes that there is only one Norfolk Island community.

MR BENNETT:   Yes, and it assumes that it can be defined.

GLEESON CJ:   As to that first assumption, do you accept that there is only one Norfolk Island community?

MR BENNETT:   No, your Honour, there is a community that can be defined in a number of ways.  Some might choose to define it ethnically, some might choose to define it by reference to ethnically plus a long period of residence, some may define it by reference to a short ethnicity plus a shorter period of residence.  There are various ways one could define it.  Indeed, in electoral terms it may also be defined by other limitations.  Your Honours will have noted that under the original laws there was a limitation by reference to an age older than 21.  There was a limitation by reference to not being in prison or having recently come out of prison. 

GLEESON CJ:   The figures on page 193 of the appeal book show that you can divide permanent residents of Norfolk Island almost straight down the middle.  Almost 50 per cent are of Pitcairn descent and almost 50 per cent are not of Pitcairn descent.  Is that division relevant to anything?

MR BENNETT:   No, your Honour, except insofar as it negates.  My friend does not put his argument on an ethnic basis.  He refers to it a couple of times as a passing matter of relevance, but he does not suggest that it is ultimately relevant to whether the Commonwealth can or cannot or must or must not give a person a right to vote, whether that person is a Pitcairner.  He places emphasis on the fact that ‑ ‑ ‑

GLEESON CJ:   I thought he did.  I thought he said in some of his submissions that some of the people who are disenfranchised as a result of this legislation are people of Pitcairn descent.

MR BENNETT:   Yes, and that is true.

GLEESON CJ:   Indeed, he told us that Mr Kleiner was a person of Pitcairn descent.

MR BENNETT:   Yes, he did, your Honour, but I did not understand him to take the step which might have made that of some relevance of saying that the Commonwealth cannot pass a law which either disenfranchises a Pitcairner or enfranchises a non-Pitcairner.  He has not suggested that.  He has not put that in his ultimate criteria.  He throws that in as an emotive factor, but it cannot be a factor of the slightest legal relevance.

GLEESON CJ:   Could the Commonwealth Parliament enact a law for the Government of Norfolk Island which provided that men could vote and women could not?

MR BENNETT:   Your Honour, it could.  It would be a very undesirable law.  It would be subject to a lot of criticism for a lot of good reasons, but constitutionally there would be no objection to it, any more than there would be to a law making the voting age 30, or excluding people who had ever had a conviction which resulted in imprisonment for more than three months, or any other limitation on the franchise.

KIRBY J:   This Court said in Brownlee, I think, that you could not have a jury which was confined now to men but that was a constitutional – not that it was a foolish law but that it could not be done.

MR BENNETT:   No, that was because, your Honour, one took the concept of jury in section 80, one applied the principles of denotation and connotation to it and said that the basic elements of being chosen from the community of a jury would no longer exist with the denotation in the meaning of “community” for that purpose today.

KIRBY J:   I take that is what Mr Ellicott is trying to do in paragraph 12.  You take the words “for the government” and then you read into that the restrictions or limitations of what is truly “for the government”.  That is the text‑based argument that he advances.

MR BENNETT:   Yes, I understand that, your Honour.  But he also concedes, as I understand him, that one could have a provision which had no Assembly on Norfolk Island, under which it was entirely governed by a public servant sent from Canberra with powers like the old governors.

KIRBY J:   But then we get back to what the Chief Justice put to you, that he then says, as I understand it, you could have that but once you have taken the step of providing for the government of Norfolk Island in a form that permits the people of Norfolk Island in all of their generality to vote, you cannot then impose a law that takes it away from part of that people.  That is then not a law for the government of Norfolk Island properly characterised.

MR BENNETT:   Your Honour, in my submission, the word “government” when used in section 122 does not have a meaning so circumscribed. The concept of “jury” in 1900 had certain defined characteristics. Certain things were not necessarily characteristics. Certain things were. Certain things changed because of denotation and connotation. But when one takes the word “government”, that had a far wider connotation. That would include totalitarian government. It would include oligopolistic government. It would include all sorts of governments. It has a small “g”, of course, and the jury has a small “j”, in section 82, I have to concede.

It simply was not used there as some term of art being intended to carry with it all sorts of implications of the type my learned friend refers to.  One just would not, as a matter of ordinary reading of the language, read the words that way, and even if one did and even if one said contrary to my argument that certain things are so contrary to the whole concept of government that we would not recognise them as government any more, even if one were to say that, which we would not concede – and that might extend to the example about women today – that certainly does not go the step further and say that one cannot have in the franchise what is the most normal and universal provision in franchises around the world, namely that one be a citizen to be able to vote, and my friend says it has to take the next step of saying it has to be relevant to Norfolk Island and it is not part of Australia and so on, and I will come to all that.

The short answer is that there is nothing in section 122 which can sensibly be read to the extent my learned friend reads it in paragraph 12, and he supports it by an argument which, in my respectful submission, may have considerable force as a political argument but has none as a legal argument, that is, it is inconsistent with Norfolk Island status as a distinct and separate settlement. Why it is inconsistent with being a distinct and separate settlement that the franchise is limited by reference to Australian citizenship is hard to see ‑ ‑ ‑

KIRBY J:   The answer he puts is that from the very earliest days this was a very special place.  It was a very small community and they had this very special arrangement from 1856 for them all to join together and they exceptionally gave women the right to vote in the decisions, and that all of this meant that from the beginning this was a peculiar and special community and now in comes the indifferent mainland and seeks to split them up and to divide them and to prevent this very special community, which for 150 years has been doing it in a particular way, and to prevent half of them from having the franchise unless they do something which some of them may not want to do, namely, to become Australian citizens.

GLEESON CJ:   Fifteen per cent, actually.

MR BENNETT:   He accepts, your Honour, that ‑ ‑ ‑

GUMMOW J:   It is not half by any means, is it?

GLEESON CJ:   It is about 15 per cent, I think.

MR BENNETT:   I am sorry, your Honour?

GLEESON CJ:   It is not half of them who are – it is about 15 per cent, is it not?

MR BENNETT:   No, that is right, but he accepts that it was all right when Britain was the colonial master for it to say you have to be a British subject to vote, but it is not all right when it is an Australian Territory for Australia to make the corresponding provision.

KIRBY J:   I thought you were going to say when Australia was the colonial master.

MR BENNETT:   I held back from saying that, your Honour.  There is no reason ‑ ‑ ‑

KIRBY J:   The British subject was a world-wide - it was a global concept.  It applied to people from hundreds of territories and colonies all around the world, whereas, Australian citizenship is much more limited to this continent.

MR BENNETT:   It applies to hundreds of places in Australia.  It applies to the 10 territories of Australia.  Your Honour the Chief Justice asked what the territories were.  There are 10 – three internal and seven external.  The three internal, of course, are Australian Capital Territory, Northern Territory and Jervis Bay.  The seven external are, in no particular order, Norfolk Island, the Coral Sea Island Territory, Ashmore and Cartier Islands, Cocos Keeling Islands, Christmas Island, the Australian Antarctic Territory and the Heard and McDonald Islands Territory.

GLEESON CJ:   Are some of those places that have no permanent residents?

MR BENNETT:   Yes, your Honour.  Heard and McDonald Island is uninhabited.

GUMMOW J:   What about the Coral Sea Islands, you left them out.

MR BENNETT:   No, I mentioned that, your Honour.  That was the first one I mentioned after Norfolk.  That has a population of four who are meteorological officers who man an Australian meteorological office there.

GLEESON CJ:   Who would not be permanent residents?

MR BENNETT:   No, they would not, your Honour.

KIRBY J:   Similarly with the Antarctic territory, I would think, they would not be permanent residents.  They would be doing scientific work and meteorological work but ‑ ‑ ‑

MR BENNETT:   That is my understanding, your Honour.  I do not understand that people are born there or that there are schools there or anything like that.  I think the population of the Ashmore and Cartier Islands – I may be wrong in this – is largely confined to immigration officials and people attempting to obtain entry.

GLEESON CJ:   The Cocos Islands were occupied by one family and their employees, were they not?

MR BENNETT:   Cocos Island was run by the Clunies‑Ross family as a fiefdom.  We were criticised by the United Nations for that in a report that is considered in Clunies‑Ross v The Commonwealth, the case about compulsory acquisition in this Court, where there is interesting discussion of it.  Christmas Island has been referred to.  That was a place which was largely settled by Malays from Singapore and Malaysia and, indeed, the laws of Singapore between two dates that I forget remain as such part of the laws of Christmas Islands inherited at the time of its becoming a territory.

But Heard and McDonald Island is the one that completely gives the lie to my learned friend’s submission that section 122 is concerned with relationships with the community, because of course there is no community at all there. No one lives there, although we did have a case in the International Tribunal for the Law of the Sea about three years ago over the arrest of a fishing boat in the waters of Heard and McDonald Islands. Your Honours are not concerned with that. They also contain Australia’s highest mountain.

Indeed, one consequence of my learned friend’s argument is that the standard trivia question of what is Australia’s highest mountain, the answer to it may depend on the correctness of my learned friend’s submission.  If he is right, it is Kosciuszko.  If he is wrong, it is Big Ben on Heard Island.

My learned friend starts by saying – I will come back to paragraph 1 – in paragraph 2 that:

The exercise of legislative power under s. 122 involves the exercise of superior authority over one community by the legislature of another -

The word “involves” of course there means nothing more than that that is one of the elements commonly found.  It is not a definitional statement in the sense that my learned friend seeks to use it.  In paragraph 1 he says:

Norfolk Island is an external territory of Australia over which Australia accepted authority under s 122.

Yes.

It was not annexed to or part of the territory of Australia or of any of the colonies at the time of federation –

At the time of Federation that is true.  My learned friend adds “or thereafter”.  We do not understand that.  It was annexed to Australia in 1913.  Indeed, it is interesting that the documents my learned friends refer to in 1897 talk about anticipation of it being annexed to New South Wales or some future federal body of which it forms part.  The word used is “annexation”, which is exactly what we say happened.

KIRBY J:   Strictly speaking, it was 1914.  The 1913 Act was one which authorised the reception and the King made the assignment in 1914, which then brought the two legal Acts together.

MR BENNETT:   Yes.  The Act was passed in anticipation of the Order in Council.  So we dispute the words “or thereafter” in paragraph 1.  Then he develops paragraph 2 by having taken the word “community” rather out of context and he slides and substitutes that word for the territory and says:

the acceptance of authority by Australia under s. 122 in respect of an external territory involves the establishment of relations between Australia and the community or inhabitants –

Now, it may or may not involve that, but that is not definitional, that is not the extent of what occurs.  It certainly did not occur at all in relation to Heard and McDonald Islands.  It probably did not occur in relation to Antarctica or the Coral Sea Island territory.  Otherwise, it is one inevitable consequence of the assumption of authority over a territory, or the annexation of a territory, or whatever word one wants to use.

My learned friend treats it as if it is the only thing that it involves or that it is some essential element in its own right giving rise to rights and obligations that otherwise do not exist.  Paragraph 4, the nature of it is not fixed and it will depend on the circumstances.  We only attack that to the extent that it depends on paragraph 3.  The same applies in relation to paragraph 4.  This is this argument about is it part of Australia.  We submit that is a complete irrelevancy. 

GLEESON CJ:   Is that expression “part of Australia” an expression with a single or specific meaning?

MR BENNETT:   No, your Honour.

GLEESON CJ:   Something might be part of Australia for one purpose and not part of Australia for another.

MR BENNETT:   Precisely, your Honour.  That was my next sentence.  Of course, the Acts Interpretation Act recognises that.  Some legislation is expressed to apply to some or all external territories.  Some legislation is expressed not to apply to some or all external territories.  Now, one can say, if one likes, that Australia for the relevant purpose or the purpose of some definition in some Act may include or exclude particular external territories or all of them, but that is not a proposition of general constitutional significance ‑ ‑ ‑

HAYNE J: The particular example of that is the Citizenship Act with its definition of “Australia” when used in a geographical sense includes the external territories and it contains a definition of a “prescribed Territory” which means Norfolk Island or the territory of Cocos Keeling Islands and deals differentially with those expressions.

MR BENNETT:   Yes. As I said, we submit it is an irrelevant question but for the purposes of the various provisions of the Constitution for most of the relevant ones the words “Australia” or “the Commonwealth” would include external territories. For some it might not. Obviously, for example, section 24 is talking only about the voting rights of people in particular States and clearly territories are treated one way there.

GLEESON CJ:   Part of the importance that your opponents attach to this issue is that the justification advanced for the legislation under challenge is that Norfolk Island, being part of Australia, the criterion of Australian citizenship, has the determining factor of the right to vote, is appropriate, but that may be in its entirety a political proposition rather than a legal proposition.

MR BENNETT:   We so submit, your Honour.  We say even my friend is right, there is some technical meaning for constitutional purposes of part of Australia, and even if Norfolk Island is not in that constitutional sense part of Australia – a proposition we would certainly dispute – but assuming all that were correct, that would not invalidate this legislation.  The Parliament can impose any criterion it chooses.  It can say that left‑handed people cannot vote or that people who are not Australian citizens cannot vote or anyone else.  That is a law for the government of Norfolk Island.  Particular exclusions may be politically desirable or undesirable.  More usually, they are likely to have significance in the political debate involving those who are excluded and those who are not, but that does not go to validity.

Now, paragraph 6 is correct as a historical fact.  We just say so what.  It does not take one anywhere.  Paragraph 7, my friend says:

Norfolk Island did not on its acceptance become part nor has it since become part of Australia geographically or politically.

I am not sure what he means by geographically or what we would have to do to make it geographically part of Australia.  It rather stretches the imagination.  I do not know if he would say Lord Howe Island is part of Australia geographically.  It certainly is politically, it is part of a State.  It is hard to see what distinction is being drawn.  We say it has become part of Australia for most relevant purposes as a matter of law.  Berwick v Gray, of course, we rely on.

Paragraph 8 is just meaningless, I do not know what it is intended to mean or what it does mean.  It is an emotive statement with which, no doubt, some would agree politically and some would disagree politically, but it has no legal meaning whatsoever.  Paragraph 9, my friend says “never”.  The table which is handed out shows that from 1979 it was expressed as part of the requirement, although I have to concede that it was expressed redundantly because all Australian citizens in 1979 were British subjects.  But it was certainly from then a requirement, and prior to that for some time being a British subject had been a requirement. 

There is by the way a grammatical error in this document your Honours might correct which I would have corrected if I had handed it up, and that is on the first page at the top of the middle column the word “they” should be “he or she”.  I would not like your Honours to think any document that came from us had that error in it.  Now, at paragraph 10 my learned friend points out that:

Apart from Pitcairn descent persons given the right to reside on the island –

“apart from Pitcairn descent”, comma, I think is meant –

persons given the right to reside on the island after a period thought sufficient for them to be absorbed into its community have become part of its people or community.

GUMMOW J:   Well, there is this notion of absorption, but I am not sure that was adhered to in oral submissions.  I asked about it.

MR BENNETT:   The only effect of that, the only relevant effect, is that it would make any argument based on ethnicity fairly meaningless, but my friend does not seem to make that argument, as I have submitted.

HAYNE J:   The question of absorption and like concepts must be understood against what appears at page 194 of the special case book where we discover that 70 per cent of the population was not born on the Island and somewhat less than 30 per cent was.

MR BENNETT:   Yes.

HAYNE J:   So that notions of absorption into the community have a particular importance, I would have thought, in the way in which the plaintiffs put their case.

MR BENNETT:   Your Honour, it is hard to see how the next sentence is relevant to my learned friend’s argument.  There seems to be some sort of constitutional estoppel that is being set up, but in any event we do not see paragraph 10 as having any relevance for present purposes.  I see, your Honours, it is 4.15.

GLEESON CJ:   We will adjourn at 4.30 and we will resume at 10.00 am.

MR BENNETT:   If your Honour pleases.  Paragraph 11 is subject to the same qualification that I have expressed in relation to paragraph 9, and I have dealt with paragraph 12.  Paragraph 13 seems to put a couple of the thoughts together and says:

the impugned law is to deny electoral rights to a substantial number of people who are part of that community and to treat the community of Norfolk Island as if it were a part of the Australian community –

We say there is no vice in that and in any event concepts of community are just irrelevant in this area.  Then paragraph 14 repeats the non sequitur.  Having made a number of emotional and political statements with no particular legal significance, the document goes on to say:

It is not a law –

for those reasons –

“for the government” –

How, one asks rhetorically, is a law which says who shall vote not a law for the government of the territory?  My friend says “of the Norfolk Island community”.  That rather mixes the concepts.  It does not have to be a law for the government of the Norfolk Island community; it is a law for the territory of Norfolk Island.  Whether it is good or bad for the community is a matter of political debate.

A lot of my learned friend’s arguments, including this one, are of relevance to an anomalous decision of the Divisional Court of the Queen’s Bench Division in a case called R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Bancoult [2001] QB 1067.

GUMMOW J:   This is the ‑ ‑ ‑

MR BENNETT:   British Indian Ocean territory.

GUMMOW J:   Yes.  This seems to think the words “peace, order, good government” are words of limitation.  It would have surprised 19th century colonial office.

MR BENNETT:   Yes.  Your Honour, the decision is per incuriam.  It does not refer to Australian authority.  I mean, the judges of the Queen’s Bench Division ventured into constitutional law without looking at a primary source where they might have got something from it.

KIRBY J:   These are quite considerable judges of the Queen’s Bench Division.  Lord Justice Laws is not to be dismissed as a judge of the Queen’s Bench Division.  He is also a judge of the Court of Appeal.

MR BENNETT:   I do not dismiss him, your Honour.  I simply say ‑ ‑ ‑

KIRBY J:   He is a frequent writer on matters of public law in law journals.

MR BENNETT:   But, your Honours, since 1900 when the Constitution was drafted we have known that the English do not understand constitutional law and the ‑ ‑ ‑

GUMMOW J:   You must be tactful, Mr Solicitor.

MR BENNETT:   This is an example of a British court considering an area with which they are totally unfamiliar and not referring to Australian authority.  The decision has been said by this Court to be wrong.  I will come to that in a moment.  What they said was that “peace, order and good government” had to be construed in a literal and separate sense, and therefore the law in that case was considered not to be for the “peace, order and good government” of ‑ ‑ ‑

GUMMOW J:   Because it was a bad law?

MR BENNETT:   That is right.  That is what they, in effect, said.  It is referred to by this Court in a footnote in the judgment of four Justices in Durham Holdings v The State of New South Wales (2000-1) 205 CLR 399. I have made copies of the front page and the relevant page for your Honours. It is only really one footnote which - your Honours recall this was the case where it was argued that there was some overarching principle which invalidated a law of New South Wales which expropriated property without compensation, and that suggestion was rejected.

In reference to “peace, order and good government” there is footnote (71) on page 408 to the judgment of Justices Gaudron, McHugh, Gummow and Hayne where your Honours said:

The grant of legislative power in these terms is not, by those terms, limited by considerations which attend the exercise of discretionary powers –

such as Wednesbury, and then “cf” which I take in this context to mean that what flows is wrong, the Bancoult.  Bancoult, of course, said the opposite to the proposition that appears there.  Indeed, the ratio of Bancoult was the opposite to that proposition.

GLEESON CJ:   It is a dyslogistic here.

MR BENNETT:   I am sorry, your Honour?

GLEESON CJ:   It does not matter.

MR BENNETT:   I am sorry, I did not hear what your Honour ‑ ‑ ‑

GLEESON CJ:   It is a disapproving cf.

MR BENNETT:   That is what I meant, your Honour, yes.  That is what I was ineptly trying to say.  The relevance of that is that in a very real sense, that is what my learned friend is seeking to do in paragraphs such as 14, saying that the constitutional power to make laws for government is confined to good laws for government or laws which in some way fulfil a series of criteria which ‑ ‑ ‑

GUMMOW J:   The particular problem with Bancoult is at paragraph 56 on page 1104, which is referenced to Wednesbury.  The only constitutional law written these days seems to be practised by public lawyers.

MR BENNETT:   Yes.

GUMMOW J:   See the reference there to Wednesbury, “discretionary public power”.

MR BENNETT:   I am not sure that in England they know the difference between public law and constitutional law, your Honour.  That was, if one was going to reach that decision, a strong case under facts for doing so because it was said to be a law for the peace, order and good government of the territory to remove the entire population so that Britain could sell it as an American military base and one could well imagine the political argument as to why that would not be for the peace, order and good government certainly of the inhabitants.

GLEESON CJ:   There is, however, a sentence in that paragraph that represents a proposition that is confronting you.  Lord Justice Laws says:

But the “peace, order and good government” of any territory means nothing, surely, save by reference to the territory’s population.

That is part of Mr Ellicott’s argument, as I understand it, about section 122, which is that the expression “for the government of any territory” means for the government of the people of any territory assuming there are some.

MR BENNETT:   Well, your Honour, if that were right, it would be invalid for the Commonwealth to pass an ordinance for Heard and McDonald Island forbidding the shooting of penguins, because there is no local population.  The law does not have anything to do with them.  The law is only concerned with outsiders and is not protecting a local population because there is not one.  A law in relation to a territory may do a number of things.  One of the things it will do and something it will do in more

cases than not is affect the local population, but it may not.  It may be a law which deals entirely with other things.  The example I have given on my friend’s criterion would be invalid.  So that is paragraph 14.  In paragraph 15 my learned friend says:

Australian citizenship as such has no abiding relevance to an external territory.  It is within the gift of the Australian Parliament and it can just as easily be taken away.

Well, the second proposition is true, subject to some possible limitations which have not been explored in this Court, were referred to in Ame I think, the question of the extent to which it can be taken away.  Certainly if one naturalises, one can denaturalise.  The circumstances in which it can otherwise be taken away have not been explored.  We know it can be taken away on the termination of a territorial relationship.

The first sentence is nothing more than a political slogan.  To say it has no abiding relevance to an external territory is nothing more than a political statement.  Of course it has relevance to the people in that territory, whether they are given Australian citizenship or not.  I am not sure what the word “abiding” is intended to add unless it is a reference to the fact that it can be taken away and therefore may not abide, but we would submit it is a proposition that just goes nowhere.

I will come back to my friend’s submissions in chief, so I will not deal with 16 now.  Then there is the separate argument which is that the concept “is to be construed subject to the concept of responsible government”.  The short answer to that is that that was simply rejected by this Court in McGinty. 

Your Honours will recall that in McGinty what was argued was that the implied freedom of political communication derived from the concept of responsible government, which was implied in the Constitution, and therefore how much more so did one vote, one value assume part of that. I think it was also put on the basis of representative democracy as well as responsible government.

GLEESON CJ:   Mr Solicitor, I am only asking this question for the benefit of people in the next case.  How long do you think you will take to complete your argument?

MR BENNETT:   I would think half to three-quarters of an hour, your Honour.

GLEESON CJ:   Then we will say that the next case will be not before 11.00 am and we will adjourn until 10.00 am.

AT 4.29 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 8 NOVEMBER 2006