Bennett & Ors v Commonwealth of Australia

[2006] HCATrans 442

[2006] HCATrans 442

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

Summons for directions

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 23 AUGUST 2006, AT 9.29 AM

(Continued from 2/6/06)

Copyright in the High Court of Australia

__________________

MR R.J. ELLICOTT, QC:  Your Honour, 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 Honour pleases, I appear with my learned friend, MS K.L. EASTMAN, for the defendant.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes.  Mr Ellicott.

MR ELLICOTT:   Your Honour, there has been considerable interchange of documents and we think we have narrowed down the draft case to a few points upon which your Honour may wish to adjudicate.

HIS HONOUR:   Yes.  My role, I assume, is to settle what is my case for the Full Court.

MR ELLICOTT:   Yes, your Honour.  Your Honour may take a different view.

HIS HONOUR:   Does that give me an absolute power in such matters?  Can I just be completely opinionated?  It is something I keep under close restraint in this Court.

MR ELLICOTT:   I think your Honour has an ultimate discretion in the matter.  Your Honour would be guided by the agreement between the parties.

HIS HONOUR:   Yes, no doubt.

MR ELLICOTT:   At the end of the day, no Justice will state a case that he feels is either inadequate or not appropriate to the Full Court.

HIS HONOUR:   Yes.  I have to say to you, if it is of any help, that reading through the points of difference I tend to be with you on the content of the factual statements but with the Solicitor on the questions to be asked at the end.  So that that is where I am tentatively at the moment, if that is of any help, and maybe you can address yourself to the questions at the end and then I will ask the Solicitor to address the particular factual matters which he wishes to resist from the statements in the case.

MR ELLICOTT:   If your Honour pleases.  Your Honour, in addressing the questions the significant – perhaps if we go to the questions first and just make sure I am addressing your Honour’s concern.

HIS HONOUR:   It is whether 1 and 2 are necessary, given that 3 wraps it all up.

MR ELLICOTT:   Yes.

HIS HONOUR:   Maybe you want 1 for some symbolic reason, but normally one would just ask the legal question.

MR ELLICOTT:   Yes.  It is, as we would frame it, a legal question.  Can we take that as the matter of debate for the moment, should that particular question be put.  Your Honour, in these proceedings we are seeking to have the Court overrule Berwick v Gray 133 CLR 603. If I can just shortly take your Honour to Berwick v Gray – I will hand up a copy – in that case the Bench consisting of Chief Justice Barwick and Justices McTiernan, Mason, Jacobs and Murphy, and Mr Byers, the Solicitor‑General, they all encompassed an argument and a view that Norfolk Island was part of Australia. 

In Mr Byers’ submission, for instance, at 605, “because its close associations with Australia make it part of the Commonwealth”.  Chief Justice Barwick in the second paragraph of his judgment says, “In my opinion, Norfolk Island is part of the Commonwealth.”  Justice Mason at the foot of page 608 after what we would submit was an insufficient consideration of, with very great respect, the documentation and the history said about four lines up:

Without questioning the correctness of the conclusion reached by his Honour –

that is Justice Eggleston in Newbery –

I consider that the history and the historical documents also support the conclusion that Norfolk Island forms part of the Commonwealth of Australia.

That seemed to be a significant matter for their Honours in Berwick v Gray.  In Capital Duplicators (1992) 177 CLR 248, Justice Gaudron at the foot of page 288:

Given that the Internal Territories are constituent parts of the Commonwealth, both geographically and politically, it is also arguable that, as s. 122 appears in Ch. VI which is concerned with the admission and establishment of new States, it only authorizes the alteration of their status from dependent Territory to that involving a separate body politic with separate organs of government, on the basis that, as separate bodies politic, they are subject to the same restraints as the Constitution imposes on the States. That is not to suggest that s. 122 should be construed differently in the case of internal and external Territories –

we will want to say that it should be, but that is another matter –

it is to suggest that the power conferred by s. 122 is qualified by the nature of the body politic which the Constitution established as the Commonwealth of Australia – a qualification that is significant for territory which, geographically and politically, is a constituent part of the Commonwealth, but one that may lack significance in other cases.

The agreement recited in the preamble to the Constitution, namely, “to unite in one indissoluble Federal Commonwealth” may well require that some distinction be made for the purposes of s. 122 between territory which, geographically and politically, is a constituent part of the Commonwealth and territory which is not.

The majority did not reject that notion or just did not deal with it.  There are some passages there that I could argue were getting close to the issue, but that is not the point.  Her Honour drew that distinction in that case.  More recently in AME’s Case (2005) 79 ALJR 1309, if I could hand up a copy of that – that is a citizenship case.

KIRBY J:   Yes, I know, I remember AME.

MR ELLICOTT:   At paragraph [30]:

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.

[31]     One aspect of the acquisition by the Commonwealth of sovereignty and the exercise of sovereign rights by the Commonwealth in respect of an external territory and its inhabitants is the making of laws concerning the entry and re‑entry –

and I do not need to read further there, but that picks up the point which Justice Gaudron referred to, and your Honour, at [100]:

The applicant submitted that, were it otherwise, it would be constitutionally permissible for the Federal Parliament, in reliance upon s 122 of the Constitution, to deprive all or some Australians born within internal territories of the Commonwealth of their Australian nationality (called citizenship).  If it could be done to him, the applicant suggested, it could be done to them.

[101] This apparently startling consequence does not follow as a matter of constitutional analysis. Even if the territories of the Commonwealth are not disjoined from the rest of the nation, a clear textual distinction is drawn in s 122 between “any territory surrendered by any State to and accepted by the Commonwealth”, (such as the Australian Capital Territory and the Northern Territory of Australia) and “any territory placed by the Queen under the authority of and accepted by the Commonwealth” or “otherwise acquired by the Commonwealth” (such as Papua and later mandated, subsequently trusteeship, territory of New Guinea, respectively).

And we would add Norfolk Island.

Given this textual distinction, it is permissible, reading s 122 of the Constitution with the other provisions of that document, to differentiate between the making of laws for the government of territories of the first kind and for the government of territories of the second and third kinds.  This is because territories of the first kind are, by definition, within the continental description of Australia as constituted by the former Australasian colonies of the Queen named in the covering clauses.  It is the people of those colonies whose assent led to the creation of the united federal Commonwealth under the name of the Commonwealth of Australia.

[102]  By contrast, other possessions of the Crown at the time of Australian federation (whether New Zealand, Papua, the Fiji Islands or other territories potentially then regarded as possible future parts of the Commonwealth) –

as was Norfolk Island –

are to be treated as having a different status.

[103] Such differentiation finds still further reflection in s 122 of the Constitution by the recognition that the representation of territories “in either House of the Parliament” was to depend on action of the Federal Parliament itself. It was for it to decide “the extent and … the terms” for any such representation. Similarly, when s 128 of the Constitution was amended in 1977, to permit the people of the Commonwealth in a “territory” to participate in referendums for the amendment of the Constitution, such entitlement was confined to the electors qualified to vote for the election of members of the House of Representatives in a territory “in respect of which there is in force a law allowing its representation in the House of Representatives”.  Only the “internal” territories of Australia have ever fallen within this class.  Australian citizens in the Territory of Papua who were not otherwise entitled, never enjoyed rights as “electors”, as that word is used in the Constitution.

Your Honour then says:

[104]  Inherent in the power to make laws for a territory “placed by the Queen under the authority of and accepted by the Commonwealth” (as Papua was) is a power to make laws providing for the termination of that acquisition and for the independence of that territory.  Whether or not this was a notion originally contemplated when the Constitution was adopted, by analogy to the independence secured under the Constitution by the Australian colonies themselves, it is an interpretation apt to the constitutional language and purpose in the political events that have occurred over the intervening century.  Such political events inevitably influence the interpretation of a national constitution.

Your Honour refers to the reference in Canada.  What those authorities do, in our submission, they lay the basis for the argument that we would want to address them to the Full Court in this case.  It really starts off with the notion that this is a separate and distinct settlement and that it retained that character under the authority of the Crown up until 1913, that is the Crown in the Right of the United Kingdom, that when you come to the words “placed under the authority of the Commonwealth” those words are all embracing in the sense they have to embrace the particular territory.

If it is part of the Commonwealth in the sense that it is the Northern Territory or the Australian Capital Territory geographically, then that is one thing, but if it is external then the argument would go, then you do not – it is an important step in the argument that it is not part of the Commonwealth.

HIS HONOUR:   If it is a step in the argument, why is it necessary to have a separate question?  In answering question 3 you may have to confront that step, but why is it necessary for the Court to answer the question separately?  You will not be disadvantaged by being put out of the argument.  That argument is still available to you in responding to question 3.

MR ELLICOTT:   We see it as a foundation.  It is not just an argument; it really is a notion that is being imported into the constitutional interpretation, that is to say the words “part of the Commonwealth” or “part of Australia”, however you phrase it, and in terms of geographic or political notions is a legal notion and that it is not just a step in an argument.  In Garran’s opinion – it is interesting, the foresight of this gentleman – that is under tab 10 in the black document folder that your Honour has there, I think.

HIS HONOUR:   Yes.

MR ELLICOTT:   If your Honour goes to the last page of that annexure – this is part of Sir Robert Garran’s opinion – the second‑last paragraph:

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.

That notion is, again, part of an argument that we will be putting.  It sees the separateness of it as not being part of the Commonwealth as an important step in that.  Your Honour, I can go further into it, but that is the essence of what we say.  We do not say that if your Honour states the question more broadly that it shuts us out.

HIS HONOUR:   No, that would certainly not be my intention.

MR ELLICOTT:   No, your Honour, but we do submit that there is considerable warrant for doing that.  It is important to note that in the second reading speech that was the repeated basis upon which these laws that are under attack is put forward to the Parliament.  In other words, if I can just read a sentence from Mr Lloyd’s second reading speech, “In summary, the arguments in favour of electoral reform are compelling.  Norfolk Island is part of Australia.”  Now, that, of course, has been part of the Commonwealth’s thinking at least since Berwick v Gray. 

In 1979 when the Self‑Government Act was passed that may even be cast against an acceptance by the Commonwealth that Norfolk Island was part of Australia because of what was said in Berwick v Gray.  It was the interpretation of the High Court and the Commonwealth was not about to say otherwise, but there is no doubt that the current laws had – whereas a more enlightened government in 1979 gave these people self‑government, this particular Bill throughout the second reading speech is based on the notion that there is no difference between Norfolk Island, in the constitutional sense, and Broken Hill, or some other isolated part of Australia, or Kalgoorlie, that it can be said to have had a separate history and culture.

So the very platform upon which this legislation is put is that Norfolk Island is part of Australia.  So those are our submissions, your Honour, and we would ask your Honour to state ‑ ‑ ‑

HIS HONOUR: On question 2, question 2 is different from question 3 in that the sections of the 2004 Act that are referred to are the same but in question 3 the question is asked “Are they valid” whereas in question 2 there is what one might again see as an intermediate step, namely, “Are they a law for the government of Norfolk Island within the meaning of section 122 of the Constitution?” Again, that would quite possibly be an issue in the course of developing argument but it really is only an issue insofar as it leads to the legal question whether those sections are valid. I assume that that is the basis on which the Commonwealth is saying that we should ask the legal question and leave the progress of the argument to be dealt with in the reasons. Is there anything special or additional in relation to ‑ ‑ ‑

MR ELLICOTT:   That is a legal question.  Again, it is at the heart of the argument that would go to the Full Court.  It has to be, of necessity.  In fact, one scratches for – perhaps the external affairs power, but once you get beyond 122 then there are other issues which – and not other sections which are difficult to find to base the argument.  The external affairs power may be, but that is another matter. 

There is, of course, this question which, subject to the Court’s patience, will be put and that is that your Honour will be familiar with the history of Cocos Island.  Cocos Island was a trust territory.  It was put under the United Nations by the United Kingdom from recollection.  When it came to Australia in the 1950s it was subject to that trusteeship provision.  Really, when you read Article 73 of the United Nations Charter it could apply just as easily to Norfolk Island.  The question in relation to Papua New Guinea, it was never considered otherwise than a territory that would ultimately have to consider the issue of self‑government and, of course, it came about during the 1973 to 1975 period.

Norfolk Island – and this is the question of separateness again – it can be argued, depended on Australia doing something but could just as easily have been made part of the trusteeship system of the United Nations.  All those issues are matters for argument.

HIS HONOUR:   Historically, it was not.

MR ELLICOTT:   But, again, emphasises the separateness issue that it is not part of Australia.  That is another reason for treating it separately.

HIS HONOUR:   Why is Lord Howe Island in a different status as an inhabited island off the coast of Australia?  Is that because it was originally in the British maps of New South Wales?

MR ELLICOTT:   I think because it always came within the geographic metes and bounds, or whatever they were.  I think that is how that came about, but it was always part of the colony of New South Wales.  But, of course, it really never had its own inhabitants, in terms of human beings, whereas Norfolk Island did at the time, obviously.  I think that is all I can say on that matter, your Honour, unless your Honour has any questions.

HIS HONOUR:   Yes, thank you very much, Mr Ellicott.  Yes, Solicitor.

MR BENNETT:   Your Honour, we submit that questions 1 and 2 are both steps on the way and there is nothing to stop my learned friend arguing them but they are not separate questions and should not be.

HIS HONOUR:   Does any harm arise from posing them as separate questions?

MR BENNETT:   Probably not from question 2, although it is pointless, but in relation to question 1 there is a harm and that is this, that the question is at best ambiguous and at worst meaningless.  When one says, “Is it part of Australia?” the only answer that one can sensibly give is, “Yes, for some purposes; no, for some purposes”, and it depends what one means by “Australia”, what one means by “part” ‑ ‑ ‑

HIS HONOUR:   It is the Commonwealth of Australia.  It asks the question in terms of the Commonwealth and therefore, presumably, is seeking to ask the question that was discussed in some of the passages that have been raised concerning the different categories of territories and their different relationship with the Commonwealth.

MR BENNETT:   Yes, your Honour, but the phrase, although it was used in a couple of judgments of the High Court as a step in reasoning, does not really have any meaning in law.  There is no magic meaning in law to it.  The Interpretation Act says that words like “Australia” and so on are presumed to have a certain meaning unless the contrary appears and so on. 

Interestingly, if one looks in the Macquarie Dictionary under the word “Australia” – I just give this as an example of the problem – your Honour will see it gives two meanings.  One is “the continent south‑east of Asia”.  The other is “a country consisting of the federated states and territories of the continent of Australia and the island of Tasmania”.  That itself is ambiguous when it says “territories of” as to whether it includes internal or external territories.  The reference to Tasmania is interesting because it shows that there is a geographical meaning.  Your Honour may remember in the 1960s there was a charity that used to advertise in the Australian Law Journal called the Bush Church Aid Society of Australia and Tasmania.

HIS HONOUR:   That is probably originally “and Van Diemen’s Land”.

MR BENNETT:   It may well have been because Norfolk Island, as your Honour knows, was part of ‑ ‑ ‑

HIS HONOUR:   It is a great pity that was ever changed, you know.  It is a great pity the name was changed; however, too late.

MR BENNETT:   Yes, it is a shame.  Too late.

HIS HONOUR:   Mr Ellicott raised the question in argument of whether any reliance would be placed upon, say, the external affairs power or other powers given to the Parliament. If there were to be any such reliance, is it necessary for that to be noted in the questions that are asked at the end, should there be a catch‑all or is it – I suppose if the question is, “Is it valid?”, that leaves all heads of power and therefore subsumes section 122.

MR BENNETT:   We would assume that question 3, which is the only question in the case as we see, subsumes the others.  It subsumes that, it subsumes my friend’s argument about part of Australia.  But may I just finish my argument about ambiguity.  Your Honour, one could ask, “Is the airspace 100 kilometres over Australia part of Australia?  Is it 1,000 kilometres over Australia?  What about 1,000 kilometres under Australia?” The answer is, “For some purposes, yes; for some purposes, no”.  It depends what one means by “part” and for what purpose and what one means by “Australia”.  It is just a question one cannot answer – one cannot answer without writing an essay.  The answer is, “Yes, for purposes A, B and C; no, for purposes D, E and F”.  It depends on the context one is using it and so on.  That is why we object to it.

HIS HONOUR: I can see why on your argument that Norfolk Island is part of the Commonwealth of Australia for the purposes of section 122. What is an example of a respect in which it is not part of the Commonwealth of Australia on your argument?

MR BENNETT:   To the extent that the Interpretation Act defines it out of Australia, for the purposes of an Act which used the word “Australia” it would not be.

HIS HONOUR:   I dimly recall seeing a provision that does that.

MR BENNETT:   Yes.  The Interpretation Act, your Honour – it is the Acts Interpretation Act section 17(a) which says:

Unless the contrary intention appears:

(a)Australia or the Commonwealth means the Commonwealth of Australia –

that is helpful because that is not defined –

and, when used in a geographical sense, includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory;

So it does not include the Heard and McDonald Islands Territory or the Coral Sea Islands Territory or the Ashmore and Cartier Reef or Norfolk Island or Australian Antarctic Territory.  So where that definition applies and the contrary intention does not apply, for that purpose it would not be part of Australia, but it also depends on the word “part”.  If one has a country and that country owns another place, whether you call it a colony or a territory or a dependency or any other word, to ask, “Is that part of the country?” unnecessarily requires the answer, “Well, for some purposes, yes; for some purposes, no”.  It is not a helpful or meaningful question. 

My friend may wish to use it in argument – it seems to have been used in argument in a couple of cases – but really it is really nothing more than a slogan.  It is a political slogan, Norfolk Island is or is not part of Australia, but it is not a meaningful statement.  That is our objection to it.  That does not stop my friend putting the argument.  We would say that the argument seems to depend on these words “separate and distinct settlement”.  We say they are just colourless words meaning it is now separate from Tasmania and nothing more than that, but my friend gives some deep and abiding significance to those words on which he bases a case, and that no doubt will be the subject of argument.  But it does not help, we would submit, to ask the separate question to which one cannot give a yes/no answer.

HIS HONOUR: I think I understand those issues and the issue on the second question is in case there be some other basis on which the Commonwealth wishes to support the validity of the law that will arise in 3 and it is therefore redundant to ask it separately in respect of section 122 in 2.

MR BENNETT:   Yes.  Your Honour, the only other matter is this, in relation to paragraph 19A of Mr Garran’s opinion, we would be submitting that is totally irrelevant.  The Court should not even look at it.  It is not a document of any assistance at all.  It is of interest but nothing more.

HIS HONOUR:   It is always a great help to read the opinions of the law officers of the Commonwealth when we can get our eyes on them.

MR BENNETT:   Yes.  Your Honour, I do not mind at the end of the day it being there as long as I am not by failing to object fixed in some way with its relevance.

HIS HONOUR:   No.

MR BENNETT:   We would say it is a totally irrelevant document, of interest but nothing more.  It is of interest in the same way that a case might be of interest or any other source that the Court goes to in deciding what the law is, but it is not a fact.

HIS HONOUR:   It is part of the historical background of how Norfolk Island came to be related to the Commonwealth of Australia and if we have some of the background, why not have the background of that most distinguished officer of the Commonwealth?

MR BENNETT:   Your Honour, the other problem is, of course, that is what is in it is a throwaway line rather than a conclusion about some deep and abiding principle.

HIS HONOUR:   Yes, but this Court will be able to see the difference between a throwaway line, if that is what it is, and something which was actually perceiving and expressing clearly what the Court concludes is the relationship.

MR BENNETT:   I accept that if my friend wants it in, there is no harm in having it there.  I simply do not want to be taken as having accepted its relevance to the argument.

HIS HONOUR:   No.

MR BENNETT:   There is another matter, paragraph 39.  This is one we want in and my learned friend wants out.

HIS HONOUR:   Is that a paragraph that you want in and that the applicant does not want in?

MR BENNETT:   Yes, your Honour.

HIS HONOUR:   I see.  I had better hear what Mr Ellicott says about that.

MR BENNETT:   But, again, being legislation of the Territory, no doubt one could refer to it in any event.  So it is just convenient to have it there.

HIS HONOUR:   I am, again, inclined to have that in.

MR BENNETT:   Yes.  Paragraph 13B we have agreed in principle.  The grammar is appalling.  We would invite our learned friends to improve that.  That is the second sentence.

HIS HONOUR:   What do you suggest?

MR BENNETT:   It might be better just to say what it says rather than to ‑ ‑ ‑

HIS HONOUR:   You could put, “That proclamation (amongst other things) “repeal[s] all existing laws respecting [Norfolk] ‑ ‑ ‑

MR BENNETT:   Yes.  I am not sure what the exact word is but the sort of brackets just seem to be a little peculiar, but we do not make any issue of it, your Honour.  It is not a ‑ ‑ ‑

HIS HONOUR:   No.

MR BENNETT:   Those are the only matters we ‑ ‑ ‑

HIS HONOUR:   Thank you.  What do you say?  The Solicitor, who is always vigilant for inelegant expression, does not like your 13B.  Can we reword it in some way that will soften his sensitive sensibilities?

MR ELLICOTT:   Yes.  Your Honour, the reason for us wanting not to agree that it is a repeal is that there is an argument – we do not want to concede at this point there is an argument, I am instructed, that this was not within power, this particular proclamation.  We want to reserve our position on that, but we do not mind it saying, “That proclamation (amongst other things) contains the following”, and this is what it contains:  “all laws, ordinances and regulations which have been and are now in force within the island called Norfolk Island are hereby repealed and annulled”.  That is what it says.

HIS HONOUR:   That is a bit longwinded.

MR ELLICOTT:   That is what it actually says.

HIS HONOUR:   But would one not just say, “That proclamation (among other things) contains the following words:” and then quote the words?

MR ELLICOTT:   Yes.  They are the words I have just read out.

HIS HONOUR:   Yes.  That is the form that 13B, when renumbered, will take.  As to 19A I am inclined to leave that in and it will be renumbered and become part of the statement of facts but the record will show that the Solicitor on behalf of the Commonwealth indicates that he will assert at the hearing that the paragraph is irrelevant and should not be taken into account.

MR ELLICOTT:   He is actually saying that two Solicitors‑General of the Commonwealth have said something either meaningless, absurd or ambiguous when they said to the Court or said in their opinions to government that Norfolk Island was or was not part of the Commonwealth.  I assume, your Honour, that when I asked the Court to take no notice of Berwick v Gray my learned friend will agree with me and say that it is nonsense, it does not say anything.

HIS HONOUR:   Every now and again the Court does not take any notice of what Solicitors‑General past or present say to it but ‑ ‑ ‑

MR ELLICOTT:   They usually did in the past, your Honour.

HIS HONOUR:   However, it is in at the moment in the draft.

MR ELLICOTT:   Paragraph 39, your Honour.

HIS HONOUR:   Paragraph 39, what is your objection to that?

MR ELLICOTT:   Our objection to that is that it is after the event, that is to say the validity of this Commonwealth law ought to be determined not in the light of anything that occurred after it was passed by Parliament.  It is a fact.

HIS HONOUR:   What language would be acceptable to you?

MR ELLICOTT:   Really, to leave it out because it does not ‑ ‑ ‑

HIS HONOUR:   I know you want to leave it out, but I am inclined to leave it in as part of the chronological history of what happened.  So can we find a formula that does not do any offence to your sensibilities by ‑ ‑ ‑

MR ELLICOTT:   If it just said, “Subsequent to the coming into force of the 2004 Act, the Legislative Assembly” et cetera.

HIS HONOUR:   Yes.  Are you content?

MR BENNETT:   I have no objection to that, your Honour.

HIS HONOUR:   Very well.  Paragraph 39, when renumbered, should take that form.

MR ELLICOTT:   Your Honour, my friend referred to the Acts Interpretation Act. That, of course, cannot determine whether or not this is a good question or a bad question. The argument does not depend upon what the Parliament says; it depends upon what the Constitution says or what this Court says.

HIS HONOUR:   I realise that, Mr Ellicott, but when we get to answering the final questions a high degree of precision is normal and because they formulate the basis of the orders of the Court and therefore they have to be very accurate and precise and therefore in answer to a question “Is Norfolk Island part of the Commonwealth of Australia?” the Court would, because of a provision such as section 17(a) of the Acts Interpretation Act have to say “Unnecessary to answer” or “For the purposes of section 17(a) of the Act, except in a case of a contrary intention, it is not. However, for other purposes, including section 122 of the Constitution, it is”. That is not really a legally necessary question to ask if the Court is ultimately going to address itself to the question posed in question 3, but that is not to exclude you from all arguments that are available to your clients on the way to the answer to question 3. So that is the way I would resolve the differences between the parties, unless you have anything else to say.

MR ELLICOTT:   No, your Honour.

HIS HONOUR:   You have put your arguments in the usual persuasive way, Mr Ellicott, but ‑ ‑ ‑

MR ELLICOTT:   Your Honour, there are social issues involved in all of this and they are not to be left out of account.

HIS HONOUR:   I realise that.  I am conscious of that, but those social issues will be fully ventilated insofar as they are legally relevant in the course of arguing the issue and nothing that I do today in the framing of the case would be intended to prevent the issues of importance to your clients and others in Norfolk Island from being fully debated before the Court so far as they are legally relevant.

MR ELLICOTT:   My friend is, I am sure, going to talk about democracy, but there is no democracy on Norfolk Island under this Bill because the people of Norfolk Island, all they have in terms of their total government is representation under that Act through some member for Sydney or perhaps a member for the Capital Territory or whatever.  That is the effect of it.  In other words, numbers of people on Norfolk Island are going to be not only disenfranchised but they are also not being – and some of the more intelligent people, perhaps, I do not know, people who can add to what you might call the democratic thinking on the island and the administrative

capacity of the island, they are going to be excluded from the Legislative Assembly.  There are distinct democratic and social issues involved.  They come in anyhow, your Honour, and the Court will consider them if it feels fit.

HIS HONOUR:   Yes.  It is the fact that there are issues of such concern to the plaintiffs and others that persuaded me that the matter is one that should remain in this Court and not be sent to another court.

MR ELLICOTT:   As a result of that amendment to the Acts Interpretation Act it puts Cocos Island in as part of the Commonwealth.  Cocos Island people are mainly on unemployment benefits.  It is a very important provision that, but, anyhow, that is for another day.

HIS HONOUR:   I did not realise that.

MR ELLICOTT:   When they were left, they were left with their own government and all in employment in 1981.

HIS HONOUR:   The matters which have been argued before the Court today are an extension of the discussions that have taken part between the parties.  I congratulate the parties on reaching a high measure of agreement as to the form of the special case.  To summarise the matters that have been already outlined in discussion with counsel, paragraph 19A will remain in the stated case and the record will note the contention of the Solicitor, on behalf of the Commonwealth, that paragraph 19A is irrelevant and should not be given any weight by the Court.  Paragraph 26A and 39 will take the form that was announced by Mr Ellicott and agreed to by the Solicitor.  The only question asked will be question 3 and the questions and the paragraphs of the special case will be renumbered accordingly.  There was one other paragraph.

MR BENNETT:   The grammar of 13.

HIS HONOUR:   Paragraph 13B?

MR BENNETT:   Yes, your Honour.

HIS HONOUR:   Paragraph 13B will take the form that was announced during the course of argument.  Costs of the proceedings before the Court on earlier days and on this day will be costs in the special case, which in due course I will sign and reserve for the opinion of the Full Court.  The Court will now adjourn.

AT 10.16 AM THE MATTER WAS CONCLUDED