(a) Items 1, 3 and 4 in Part 1 of Schedule 1 to that Act; and
(b) Item 5 in Part 1 of Schedule 1 to that Act to the extent that that item inserts into the Principal Act the following new provisions:
(i) paragraph 39A(1)(b); and
(ii) paragraph 39A(2)(a); and
(iii) section 39C; and
(iv)the definition of "Returning Officer" in section 39D,
valid?
A Yes.
(2) Q Who should pay the costs in respect of the special case?
A The plaintiffs.
Representation
R J Ellicott QC with G R Kennett for the plaintiffs (instructed by Wright Stell)
D M J Bennett QC Solicitor-General of the Commonwealth of Australia with K L Eastman for the defendant (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Bennett v Commonwealth of Australia
Constitutional Law (Cth) – Powers of federal Parliament – Territories – Section 3 of the Norfolk Island Amendment Act2004 (Cth) ("the Act") amended the Norfolk Island Act1979 (Cth) so as to make Australian citizenship a necessary qualification for voting for, and standing for election to, the Legislative Assembly of Norfolk Island – Whether the provisions of the Act giving effect to the amendments were supported by s 122 of the Constitution.
Constitutional Law (Cth) – Territories – Whether the challenge to the validity of the Act presented a political question not amenable to judicial determination – Whether "laws for the government" of a territory, to be valid, must provide for a form of government appropriate to the circumstances of the particular territory.
Constitutional Law (Cth) – Territories – Territories "placed by the Queen under the authority of and accepted by the Commonwealth" – Territory granted institutions of representative government – Whether law enacted in reliance on s 122 may validly remove or curtail features of representative government so granted.
GLEESON CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ. The parties to these proceedings brought a special case raising questions of law which were reserved for the consideration of a Full Court. At issue is the validity of certain provisions of the Norfolk Island Amendment Act 2004 (Cth) ("the 2004 Act"), by which Australian citizenship was made a necessary qualification for voting for, and standing for election to, the Legislative Assembly of Norfolk Island.
Norfolk Island is a territory that was placed under the authority of and accepted by the Commonwealth,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Bennett v The Commonwealth
Sign in free to access the full text
Details
AGLC
Bennett v The Commonwealth [2007] HCA 18
Case
[2007] HCA 18
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a constitutional challenge brought by several residents of Norfolk Island against the Commonwealth. The dispute concerned the validity of section 3 of the Norfolk Island Amendment Act 2004 (Cth), which amended the Norfolk Island Act 1979 (Cth) to make Australian citizenship a prerequisite for voting in and standing for election to the Legislative Assembly of Norfolk Island.
The central legal issue before the Court was whether the provisions of the 2004 Act, which imposed Australian citizenship as a qualification for electoral participation on Norfolk Island, were supported by section 122 of the Australian Constitution. This section grants the Federal Parliament the power to "make laws for the government of any territory." The plaintiffs contended that these provisions were invalid, arguing they impermissibly divided the Norfolk Island community and curtailed existing features of representative government.
The Court reasoned that the power conferred by section 122 of the Constitution is broad and plenary, having been consistently interpreted by the High Court as ample legislative authority for governing territories. The Court found that laws regulating the qualifications of voters and candidates for a territory's legislative assembly are prima facie laws for the government of that territory. The plaintiffs failed to identify any constitutional provision that obliged Parliament to confer voting rights on all adult residents of Norfolk Island, irrespective of citizenship. Consequently, the Court concluded that the challenged provisions of the 2004 Act were validly enacted under section 122.
The questions reserved for the Full Court were answered in favour of the Commonwealth. The Court declared section 3 of the Norfolk Island Amendment Act 2004 (Cth), in so far as it gave effect to specific items in its Schedule, to be valid. The plaintiffs were ordered to pay the costs of the special case.
Orders
Orders of the court
Questions reserved for the consideration of the Full Court answered as follows: (1) Q Is s 3 of the Norfolk Island Amendment Act 2004 (Cth), in so far as it gives effect to: (a) Items 1, 3 and 4 in Part 1 of Schedule 1 to that Act; and (b) Item 5 in Part 1 of Schedule 1 to that Act to the extent that that item inserts into the Principal Act the following new provisions: (i) paragraph 39A(1)(b); and (ii) paragraph 39A(2)(a); and (iii) section 39C; and (iv) the definition of "Returning Officer" in section 39D, valid?
A Yes.
(2) Q Who should pay the costs in respect of the special case? A The plaintiffs.
Background
Background to the litigation
The concerns voiced in the proceedings are strongly held. In my view, the plaintiffs fail. However, out of respect for the arguments presented and the issues of principle that have been canvassed, I will state separately my reasons for being unable to accede to them.The facts, history and legislation The facts: The special case arises out of a statement of claim invoking the original jurisdiction of this Court. The status of the several plaintiffs should be noted because it gives an indication of the concerns that lie behind the proceedings. The Commonwealth did not contest the factual statements made in the statement of claim concerning the plaintiffs. Nor did the Commonwealth at any stage submit that the plaintiffs lacked standing to bring the proceedings or to tender the constitutional issue for decision[46].[46]cf Croome v Tasmania (1997) 191 CLR 119 at 126, 132-133, 138; Abebe v The Commonwealth (1999) 197 CLR 510 at 528 [32]; Combet v Commonwealth (2005) 80 ALJR 247 at 312-313 [303]-[307]; 221 ALR 621 at 703-705. According to the statement of claim, the first plaintiff, Mr Geoffrey Bennett, was born in New Zealand in 1943 and is a citizen of that country. He holds no other citizenship. He has resided continuously on NI since May 1968; was enrolled as an elector in 1972; served on the NI Council from 1976-79; was elected a member of the NI Legislative Assembly in May 1986, was re-elected on two occasions and held office as Minister for Finance until 4 July 1995. The second plaintiff, Mr John Christian, was born in New Zealand in 1959. He too is a citizen of that country holding no other citizenship. He is a descendant of the settlers who moved to NI from Pitcairn Island in 1856. He has resided in NI from 1979 to 1981, and continuously since 1999. He has been enrolled on the NI electoral roll continuously since 2002. The third plaintiff, Mr Bruce Walker, was born in New Zealand in 1946. He is a citizen of that country and holds no other citizenship. In 1996, he became a "resident" under the Immigration Act 1980 (NI) and has been continuously enrolled as an elector since 1993. He served as a member of the Legislative Assembly from 2000 to 2001. The fourth plaintiff, Mrs Ann Walker, was born in Scotland in 1947. She migrated to New Zealand in 1970 and was granted New Zealand citizenship in 1979. She is a citizen both of New Zealand and of the United Kingdom and holds no other citizenship. She married the third plaintiff in 1985 and has lived continuously on NI since 1990. She has been enrolled on the NI electoral roll since 1993. The fifth plaintiff, Mr Richard Kleiner, was born in the United States of America in 1951. He is a United States citizen and holds no other citizenship. However, he is of Pitcairn descent, being the great-grandson of John Young, who was born on Pitcairn Island in 1852 and removed to NI in 1856. Mr Kleiner has resided continuously on NI since December 1997. He held a "temporary entry permit", and subsequently a "general entry permit" under the Immigration Act 1980 (NI), before becoming a "Resident" under that Act on 23 March 2006. He has been enrolled continuously on the NI electoral roll since 2001.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ
KIRBY J
Whether, upon such a question of construction, some provision made by the Parliament concerning the government of a territory might offend a requirement of the Constitution is a question that does not need to be decided in this case. The plaintiffs have been able to point to nothing in the Constitution that obliged the Parliament, when it decided to allow residents of Norfolk Island to vote for a Legislative Assembly, to confer a right to vote on all adult residents of Norfolk Island, including those who are not Australian citizens.Conclusion The questions reserved for the consideration of the Full Court should be answered as follows:(1) Q Is s 3 of the Norfolk Island Amendment Act 2004 (Cth), in so far as it gives effect to:(a) Items 1, 3 and 4 in Part 1 of Schedule 1 to that Act; and(b)Item 5 in Part 1 of Schedule 1 to that Act to the extent that that item inserts into the Principal Act the following new provisions:(i) paragraph 39A(1)(b); and(ii) paragraph 39A(2)(a); and(iii) section 39C; and(iv) the definition of "Returning Officer" in section 39D, valid?A Yes.(2) Q Who should pay the costs in respect of the special case?A The plaintiffs. A special case[34] asks whether provisions of the Norfolk Island Amendment Act 2004 (Cth) ("the 2004 Act") are valid in accordance with s 122 of the Australian Constitution[35].[34]The special case was stated by consent of the parties on 4 September 2006.[35]No other source of constitutional power was propounded. Thus no reliance was placed on s 51(xix), (xxix) or (xxx). By s 122, the Parliament is empowered to "make laws for the government of any territory". The challenged laws, described elsewhere[36], concern the qualifications of candidates for election as members of the Legislative Assembly of Norfolk Island[37] ("NI"). They also provide for qualification to be an elector by enrolment on the electoral roll[38]. The purpose of the 2004 Act is, with prospective effect, to limit the eligibility to vote in, and stand for, elections for the NI Legislative Assembly, to persons who are Australian citizens[39].[36]Reasons of Callinan J at [167]-[170].[37]The 2004 Act, Sched 1 inserting ss 39A, 39B in Norfolk Island Act 1979 (Cth). Read with s 38(2)(da) Norfolk Island Act 1979 (Cth).[38]The 2004 Act, ss 39A, 39B.[39]Australia, Senate, Norfolk Island Amendment Bill 2003, Explanatory Memorandum at 2, set out in the reasons of Callinan J at [171]. On the face of things, a law made by the Parliament on the qualification of candidates and voters for elections for the Legislative Assembly of a territory of the Commonwealth is a law made "for the government of" that territory. Because NI is incontestably a "territory" within s 122, the 2004 Act thus appears to be valid in accordance with the Constitution. It is from the Constitution that this Court derives its powers[40]. It is bound to uphold the Constitution[41].[40]Constitution, s 71.[41]See eg Constitution, ss 75(iii), 76(i). However, as these proceedings have demonstrated, the 2004 Act, imposing for the first time a universal requirement of Australian citizenship for participation in the representative political life of NI, has proved controversial amongst some of the population of that territory. The attempt to impose Australian citizenship in the ways stated was described by the plaintiffs' counsel as an endeavour to divide the "community" of NI in a way said to be impermissible under the Constitution and therefore invalid. In the face of the broad grant of legislative power contained in s 122, reinforced by nearly a century of this Court's decisions, in which the power has been variously described as "ample"[42], "independent"[43] and "relevantly plenary"[44] and such as to "stand[] apart"[45], the plaintiffs obviously faced many obstacles in making good their contentions. [42]Buchanan v The Commonwealth (1913) 16 CLR 315 at 327 per Barton ACJ.[43](1913) 16 CLR 315 at 335 per Isaacs J.[44]New South Wales v The Commonwealth (2006) 81 ALJR 34 at 137 [460]; 231 ALR 1 at 122.[45](2006) 81 ALJR 34 at 137 [460]; 231 ALR 1 at 122.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ,
KIRBY J