Bennett v The Commonwealth

[2007] HCA 18

HIGH COURT OF AUSTRALIA

GLEESON CJ
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

GEOFFREY JAMES BENNETT & ORS   PLAINTIFFS

AND

COMMONWEALTH OF AUSTRALIA  DEFENDANT

Bennett v Commonwealth of Australia [2007] HCA 18
27 April 2007
S111/2006

ORDER

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.

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 Act 2004 (Cth) ("the Act") amended the Norfolk Island Act 1979 (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.

Norfolk Island Amendment Act 2004 (Cth), s 3, Sched 1.
Norfolk Island Act 1979 (Cth), ss 38-39D.

1. 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.

2. Norfolk Island is a territory that was placed under the authority of and accepted by the Commonwealth, within s 122 of the Constitution. That occurred on 1 July 1914 in consequence of measures that will be described below. Section 122 provides that the Parliament may make laws for the government of such a territory.

   Norfolk Island electoral laws

3. After its acceptance as a territory, Norfolk Island was governed pursuant to the Norfolk Island Act 1913 (Cth) (which came into effect on 1 July 1914), then pursuant to the Norfolk Island Act 1957 (Cth), then pursuant to the Norfolk Island Act 1963 (Cth), and, since 1979, pursuant to the Norfolk Island Act 1979 (Cth) ("the 1979 Act"). The 2004 Act amended the 1979 Act.

4. The 1979 Act conferred on Norfolk Island a substantial degree of self-government.  The plaintiffs do not suggest that prior legislation providing for the government of the island, but not self-government, was invalid.  The 1979 Act, by s 31, established a Legislative Assembly, consisting of nine members who are elected for a maximum term of three years.  The Legislative Assembly has power, subject to certain exceptions, to make laws for the peace, order and good government of the Territory.

5. In 1979, the Australian Citizenship Act 1948 (Cth) ("the Citizenship Act") by s 10 provided that, subject to exceptions, a person born in Australia after a certain date was an Australian citizen by birth. By definition (s 5(1)), "Australia" included the territories that were not trust territories. In 1979, a person born on Norfolk Island would ordinarily be an Australian citizen. By virtue of an amendment to the Citizenship Act in 1986, a person born on Norfolk Island after 1986 would be an Australian citizen if one parent was an Australian citizen or a permanent resident. It will be necessary to return to certain aspects of the history and composition of the people of Norfolk Island said to be relevant to the plaintiffs' argument. For the present, it is sufficient to note that the special case records that, at the time of a census in 2001, the island had a permanent population of 1574 persons, of whom 82.5% were Australian citizens, 14.1% were New Zealand citizens, and 1.4% were citizens of the United Kingdom, with the remainder from other countries or not stated. Since 2002 Australia has not prohibited dual citizenship[1].  It was common ground that New Zealand citizens may have dual citizenship.

   [1]Australian Citizenship Legislation Amendment Act (2002) (Cth) Sched 1 Item 1.

6. To return to the matters of membership of, and voting for, the Legislative Assembly, s 38 of the 1979 Act set out the qualifications to be a candidate for election. Subject to disqualifications provided for by s 39, a person was qualified to be a candidate if the person was an Australian citizen or otherwise had the status of a British subject and satisfied certain other requirements as to age, entitlement to vote, and residency. Section 38 was amended in 1985[2], and the requirement to be an Australian citizen or otherwise have the status of a British subject was removed.

   [2]Statute Law (Miscellaneous Provisions) Act (No 1) 1985 (Cth) (Sched 1).

7. Section 31 of the 1979 Act provided for the Legislative Assembly to enact laws relating to the election of members of the Legislative Assembly.  An electoral roll was maintained pursuant to the Legislative Assembly Ordinance 1979 (NI).  Section 6 set out the qualifications for enrolment.  They included a requirement that a person be an Australian citizen or otherwise have the status of a British subject. In 1986, that requirement was removed[3].

   [3]Statute Law Revision (Status) (No 3) Act 1986 (NI).  See also Legislative Assembly Amendment Act 1991 (NI).

8. The 2004 Act, which is the subject of these proceedings, amended the 1979 Act. The operative provision was s 3, which effected the amendments specified in a Schedule. The amendments altered s 38 of the 1979 Act, concerning qualifications for election to the Legislative Assembly and also introduced, for the first time in the Act, provisions dealing with qualifications to vote. The effect of the amendments was to make Australian citizenship a necessary qualification for voters and candidates. It is the validity of those amendments that is in question. Following the 2004 Act, the Legislative Assembly (Amendment No 1) Act 2004 (NI) amended the Norfolk Island legislation dealing with enrolment in such a way as to conform to the Commonwealth legislation's requirement of Australian citizenship as a qualification for enrolment.

9. The Commonwealth and the Norfolk Island legislation as to enrolment applied prospectively to persons applying for enrolment after a date in March 2004.  The legislation did not take away the rights of persons who were enrolled before that date, and no person was disenfranchised.

   The generality of s 122

10. In Re Governor, Goulburn Correctional Centre; Ex parte Eastman[4] it was pointed out that the territories, dealt with compendiously and briefly in s 122 of the Constitution, have differed greatly in size, population, and development. Some, such as Norfolk Island, the Coral Sea Islands, the Australian Antarctic Territory, the Ashmore and Cartier Islands, the Cocos (Keeling) Islands, Christmas Island, and the Heard and McDonald Islands, are external territories. Of those, some have no human inhabitants. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame[5] this Court examined the history of the Territory of Papua (formerly British New Guinea) which was placed under the authority of the Commonwealth in 1905, and the Territory of New Guinea (a former German possession) which was placed under Australian administration in 1920. Those two territories later became a single territory, and in 1975 Papua New Guinea became an independent State. Other territories, such as the Australian Capital Territory, the Northern Territory, and Jervis Bay are internal, and the people and economies of those territories are, for most practical purposes, indistinguishable from those of the Australian States. The variety of circumstances to which s 122 must apply explains the generality of its language and, in particular, of the power to "make laws for the government of any territory".

    [4](1999) 200 CLR 322 at 331 [7].

    [5](2005) 222 CLR 439.

    Norfolk Island before 1914

11. Norfolk Island was discovered, and claimed as a British possession, by Captain Cook on 10 October 1774.  At that time it was uninhabited.  It is situated to the east of the Australian mainland, within the area bounded by the parallels 28 degrees 59 minutes and 29 degrees 9 minutes south latitude and the meridians 167 degrees 54 minutes and 168 degrees east longitude.  It is about 1075 kilometres from Auckland, 835 kilometres from New Caledonia and 1675 kilometres from Sydney.  It is on approximately the same latitude as Brisbane.  It has an area of about 3450 hectares.  It was within the territory of New South Wales as defined by the Commission issued to Governor Phillip on 12 October 1786.

12. In 1788, Norfolk Island was occupied as a penal settlement.  Between 1788 and 1814, some public buildings and houses were erected, jetties were constructed, and some land was cleared.  The settlement was abandoned in 1814, and the island remained unoccupied until 1825.  In 1825, convicts were again sent to Norfolk Island.  Additional land was cleared.  Buildings were constructed, and roads were extended.  Animals, including cattle, horses, sheep, pigs and goats were introduced.  Some wool was exported to New South Wales.  The penal settlement came to an end in 1855[6].

    [6]Commonwealth, Report of the Royal Commission into Matters Relating to Norfolk Island, October 1976 at 34-37, 101.

13. By an Act of the Parliament of the United Kingdom of 1843[7] it was enacted that it should be lawful for Her Majesty, by Letters Patent under the Great Seal of the United Kingdom, to sever Norfolk Island from New South Wales, and to annex it to the Colony of Van Diemen's Land.  Such severance and annexation were effected, from 29 September 1844, by letters patent dated 24 October 1843.

    [7]6 & 7 Vict c 35.

14. Before the convicts, their guards, and accompanying settlers evacuated Norfolk Island in 1855, it had been decided by the United Kingdom Government that, upon their departure, the island would be occupied by the inhabitants of Pitcairn.  Pitcairn is a small island about midway between New Zealand and Chile.  It was settled in 1790 by a small group of mutineers from HMAV Bounty, who were fugitives from justice, and some Polynesian men and women.  On 8 June 1856, the inhabitants of Pitcairn Island arrived on Norfolk Island, having travelled there by arrangement with the Imperial authorities.  Some of them later returned to Pitcairn, and something of their subsequent history appears from the recent decision of the Privy Council in Christian v The Queen (The Pitcairn Islands)[8].  The 1976 Report of the Royal Commission into Matters Relating to Norfolk Island[9] stated that "when the 194 Pitcairn Islanders arrived at Norfolk on 8 June 1856, they came ... as new tenants of an Island with valuable and significant developments in the form of roads, bridges, buildings, wharves of sorts and cleared arable land."

    [8][2006] UKPC 47.

    [9]Report of the Royal Commission into Matters Relating to Norfolk Island, October 1976 at 101.

15. By the Australian Waste Lands Act 1855 (Imp)[10] it was provided that it should 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 might seem expedient.  In 1965, in Newbery v The Queen[11], Eggleston J, sitting as the Supreme Court of Norfolk Island, held that the 1855 Act authorised the creation of any form of government, representative or non-representative.

    [10](18 & 19 Vict c 56).

    [11](1965) 7 FLR 34 at 40-41.

16. By an Order in Council dated 24 June 1856 it was ordered:

    "[Norfolk Island] shall be and the same is hereby separated from the said Colony of Van Diemen's Land (now called Tasmania); and that from [the date of proclamation] all power, authority, and jurisdiction of the Governor, Legislature, Courts of Justice, and Magistrates of Tasmania over the said island shall cease and determine.

    ... [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 of Her Privy Council." 

17. The 1856 Order in Council provided that the Governor for the time being of New South Wales should also be the Governor of Norfolk Island.  Royal Instructions issued to the Governor of Norfolk Island, dated 24 June 1856, referred to the framing of laws for inhabitants who "are chiefly emigrants from Pitcairn's Island in the Pacific Ocean".

18. On 14 October 1857, the Governor, Sir William Denison, declared and enacted the "Laws and Regulations for Norfolk Island" which are commonly referred to as the "thirty-nine laws".  They were based on the laws by which the families who had moved to Norfolk Island had governed themselves on Pitcairn.  The population governed by those laws was fewer than 200.  The laws provided for the election of a Chief Magistrate and Councillors.  Every person who may have resided on the island for six months, who had attained the age of 20, and who was literate, could vote.  The powers of the Chief Magistrate and Councillors were set out.  There was provision for juries of Elders (males who had attained 25 years).  Attendance of children at school was compulsory.  Beer, wine, and spirituous liquor (except for medical purposes, to be administered by the Chaplain) were prohibited. 

19. In 1856, it was the intention of the Imperial authorities that Norfolk Island should be reserved exclusively for the families from Pitcairn and their descendants.  However, this policy was later relaxed.  In 1864, there were about 260 people on Norfolk Island, with eight family names.  By 1900, an increased number of family names reflected some degree of immigration[12].  The departure from the original intention to exclude outsiders and the acquisition of land by settlers not of Pitcairn descent was noted by several official visitors to the island[13].  In 1866, the Governor, acting under instructions from the Secretary of State for Colonies, granted land for the establishment of a Melanesian Mission Station.  By 1899, the mission had 210 Melanesian students.  The 1976 Royal Commission Report described the Mission as "the wedge which split apart ... the original policy of reserving Norfolk for the Pitcairners."[14]

    [12]Varman, The Bounty and Tahitian Genealogies of the Pitcairn Island Descendants on Norfolk Island (1992) at viii.

    [13]Hoare, Norfolk Island:  A Revised and Enlarged History 1774-1998, 5th ed (1999) at 81-82, 104-105.

    [14]Report of the Royal Commission into Matters Relating to Norfolk Island, October 1976 at 38.  The Melanesian Mission had ceased its operations on the island by 1920 and had shifted its headquarters elsewhere: Treadgold, Bounteous Bestowal:  The Economic History of Norfolk Island (1988) at 117.

20. Towards the end of the 19th century, it was decided that Norfolk Island would be placed under the control of the Government of New South Wales.  This, according to an Order in Council of 15 January 1897, was "in prospect of the future annexation of [the] island to the colony of New South Wales, or to any federal body of which that colony may hereafter form part".  The new Australian Federation came into being on 1 January 1901, but it seems that at that time it had not been decided whether Norfolk Island would become a part of the State of New South Wales or whether it would become a territory under the authority of the Commonwealth.  The Order in Council of 1897 recited that the 1856 Order in Council had been expressed to operate "until further order is made in that behalf by Her Majesty" and declared that Norfolk Island should be administered by the Governor of New South Wales who was empowered, by proclamation published in the New South Wales Government Gazette, to make laws for the peace, order and good government of the island subject to instructions from Her Majesty (ie from the Imperial Government).  In Newbery v The Queen[15], Eggleston J said that the practical effect of the 1897 Order was to enable the Governor of New South Wales to legislate in that capacity rather than in his former capacity as Governor of Norfolk Island.  The administration of Norfolk Island involved the expenditure of public funds.  The provision of services, and infrastructure, could be expensive.  The practical reality is reflected in a memorandum to the Governor of New South Wales from the Colonial Treasurer, Mr Reid, dated 13 October 1896, expressing a willingness to advance a certain sum.  Mr Reid wrote:

    "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.

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

    [15](1965) 7 FLR 34 at 37.

21. New South Wales assumed responsibility for financial management of Norfolk Island until it became a territory under the authority of the Commonwealth in 1914.  The New South Wales Government provided the first regular shipping service to the island in 1898.  The Government contracted with Burns, Philp & Co, which called at the island 12 times a year.  It paid directly the greater part of the salary of the Chief Magistrate and the full salaries of the senior policeman (who was seconded from the New South Wales force) and three school teachers (seconded from the New South Wales Education Department)[16].

    [16]Treadgold, Bounteous Bestowal:  The Economic History of Norfolk Island (1988) at 106, 110.

22. In 1902, a cable station for the Pacific cable commenced operation on the island; the cable ran from Vancouver and at Norfolk Island separated into two branches, one to Auckland and the other to Southport in Queensland.  The station operated for 60 years[17].

    [17]Treadgold, Bounteous Bestowal:  The Economic History of Norfolk Island (1988) at 107.

23. By an Order in Council dated 18 October 1900, the Queen revoked the 1897 Order and ordered that the affairs of Norfolk Island should thenceforth, and until further Order should be made in that behalf by Her Majesty, be administered by the Governor for the time being of New South Wales.  The 1900 Order provided that all laws, ordinances and regulations in force in Norfolk Island should continue until repealed or altered.  The 1900 Order took effect on 1 January 1901, the date when New South Wales ceased to be a colony and became a State of the new federal union.  Letters Patent dated 29 October 1900 described the boundaries of the State so as to exclude Norfolk Island.

1. Shortly after the establishment of the Commonwealth consideration was given to the annexation of Norfolk Island to the Commonwealth.  Legislation was introduced into the Parliament in 1909, but did not proceed.

   Norfolk Island from 1914

2. By an Order in Council dated 30 March 1914, which recited that the Commonwealth Parliament had in 1913 enacted legislation to provide for the acceptance of Norfolk Island as a territory under the authority of the Commonwealth, the King revoked the 1900 Order and ordered that Norfolk Island was placed under the authority of the Commonwealth of Australia.  The 1914 Order took effect from 1 July 1914.  That also was the date of commencement of the Norfolk Island Act 1913 (Cth) by which Norfolk Island was declared to be accepted by the Commonwealth as a territory under the authority of the Commonwealth. Norfolk Island has been governed by the Commonwealth, initially under the provisions of the 1913 Act, and subsequently under the provisions of the Norfolk Island Act 1957, the Norfolk Island Act 1963, and the 1979 Act, the lastmentioned Act being the Act that was amended by the legislation under challenge in these proceedings.

3. An airfield was built on the island in 1942-1943.  The decision to construct the airfield was taken by the Allied South Pacific Command.  Survey work was done by Australian and American engineers, and construction was by the New South Wales Department of Main Roads.  The airfield was built on land acquired and owned by the Commonwealth[18].  The airport was upgraded by the Commonwealth during the 1980s.  Another major infrastructure project funded by the Commonwealth at about the same time was the construction of a new cable station[19].

   [18]Treadgold, Bounteous Bestowal:  The Economic History of Norfolk Island (1988) at 163-164; Report of the Royal Commission into Matters Relating to Norfolk Island, October 1976 at 288.

   [19]Treadgold, Bounteous Bestowal:  The Economic History of Norfolk Island (1988) at 262.

4. The author of an economic history of the island wrote in 1988[20]:

   "[I]ncreased awareness of Norfolk Island at governmental level, and specifically in Canberra, must be attributed mainly to its strategic location in the hostilities with Japan, but it probably also reflected to some extent the islanders' record of war service and war-time changes in international and domestic (ie Australian) political attitudes to colonial territories in general.  This increased awareness and an associated growth in concern with the welfare of the island community led to post-war Australian economic aid to the island eventually expanding to levels that dwarfed pre-war contributions.  The aid included both technical and financial assistance.  An increasing flow of experts and consultants visited the island to report and advise on matters that ranged from agriculture and forestry through conservation and the preservation of historic buildings to tourism and population policy."

   [20]Treadgold, Bounteous Bestowal:  The Economic History of Norfolk Island (1988) at 180-181.

5. As the island became more accessible, especially by air, tourism developed.  Norfolk Island had a special taxation status, and some of the activity that this brought to the island is exemplified in Esquire Nominees Ltd v Federal Commissioner of Taxation[21].  Over time, the mix of the population changed.  The Report of the Royal Commission into Matters Relating to Norfolk Island stated that, at 30 June 1976, there were 859 persons on the Norfolk Island electoral roll[22].  Of these, 323 were descendants of people who transferred from Pitcairn in 1856.  Of the other 536, nine were born on Norfolk Island, 199 were born in Australia, 196 in New Zealand, and 82 in England. The remainder came from other countries including India, Lithuania and Mauritius.  According to the 2001 census, of the island's permanent population (1574), 48 per cent were of Pitcairn descent.  Reference has been made earlier to the fact that, in 2001, 82.5 per cent of the permanent population were Australian citizens.

   [21](1973) 129 CLR 177.

   [22]at 66-67.

   The validity of the legislation

6. The power conferred upon the Parliament of the Commonwealth by s 122 of the Constitution is a power to make laws for the government of any territory. We are not directly concerned with the further power to allow the representation of a territory in either House of the Parliament to the extent and on the terms which the Parliament thinks fit, although the plaintiffs argued that the nature of that additional power casts some light on the nature of the power presently in question.

7. In Lamshed v Lake[23], Kitto J said:

   "Section 122 ... 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 ... 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 ... 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."

   [23](1958) 99 CLR 132 at 153-154.

8. It was accepted by the plaintiffs that there was, and is, no obligation upon the Parliament, in making a law for the government of Norfolk Island, to provide for self-government. In fact Norfolk Island did not have a substantial measure of self-government until 1979. A law which provided for the government of Norfolk Island by an administration based in Canberra might not now be regarded as a wise or effective law, but it would nonetheless be a law for the government of the Territory. The plaintiffs contended, however, that, in making provision for self-government of Norfolk Island, the Parliament was obliged to enact a law that provided for democratic representation and was not entitled to enact a law that "divide[d] the community by a criterion that has nothing to do with membership of that community." The concept of representation in the concluding words of s 122, though not presently of direct relevance, was said to reinforce this implied limitation upon the apparent generality of the opening words of s 122.

9. It is important to observe the difference between a political and a legal argument about s 122. No doubt, if the Parliament decides that the most appropriate form of government of a territory is democratic self-government, then the method by which it provides for representation of the people of the territory in the process of self-government will affect the acceptability, and ultimately the success, of the form of government established. While concepts such as self-government, representative government, and democratic process have a minimum content, standards as to their most appropriate forms of expression vary with time and place[24].  To establish a form of self-government that purported to be representative but that provided a system of representation that was manifestly unfair or idiosyncratic might have adverse political consequences within Norfolk Island, or within the wider Australian community.  It might be bad administration.  It might make the island more difficult to govern.  There may be political or administrative arguments against a particular system of self-government, but we are concerned with a question of constitutional power.

   [24]Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 189-190 [10]. See also McGinty v Western Australia (1996) 186 CLR 140 at 246-247, 267-268, where reference is made to the judgment of McLachlin CJ (then Chief Justice of British Columbia) in Dixon v Attorney-General (British Columbia) (1989) 59 DLR (4th) 247 at 262-263.

10. The political justification advanced in the Parliament for making Australian citizenship a requirement for participation in the democratic process on Norfolk Island was that this would bring Norfolk Island into line with other Australian legislatures.  "The bill", Parliament was told, "removes the right for non-Australian citizens to enrol and stand for election to an Australian legislature.  There can be no justification for the continuation of such an anomaly.  The Government does not believe that non-Australian citizens should be able to decide what laws will apply to Australian citizens in an Australian community.  The Government does not believe that Norfolk Island should, in this respect, be different from all other Australian legislatures."[25]

    [25]Australia, Senate, Parliamentary Debates (Hansard), 4 December 2003 at 19115.

11. That political justification for the legislation appears to have provoked a substantial part of the argument for the plaintiffs, the difficulty being to find a legal foundation for such argument.  Much emphasis was placed upon the status of Norfolk Island, in and after 1856, as a "distinct and separate settlement".  That concept was formulated at a particular time in the island's history but, as a review of that history shows, circumstances, and government policies, have changed over the years.  There was a tendency, at times, to identify "the island community" with the descendants of those who came from Pitcairn in 1856 but, again, the facts are more complex.  Those descendants are a minority of the island's permanent population.  However distinct and separate the people, or some of the people, of the island may have wanted to be, for more than a century, in matters of administration, including financial arrangements for the provision of the infrastructure necessary for their sustenance, they have been linked, first to New South Wales, then to the Commonwealth. 

12. Part of the argument for the plaintiffs was directed towards demonstrating that Norfolk Island is not a part of Australia.  In this respect, the Court was invited to disagree with what was said in Berwick Ltd v Gray[26].  There, Barwick CJ said that "Norfolk Island is part of the Commonwealth"[27].  Mason J, with whom McTiernan J and Murphy J agreed, said the same[28].  In Capital Duplicators Pty Ltd v Australian Capital Territory[29] Gaudron J cited Berwick v Gray with apparent approval, but went on to say, with reference to some external territories such as Papua and New Guinea, that "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". 

    [26](1976) 133 CLR 603.

    [27](1976) 133 CLR 603 at 605.

    [28](1976) 133 CLR 603 at 608.

    [29](1992) 177 CLR 248 at 285-286.

13. The answer to the question whether an external territory is "part of the Commonwealth" may depend upon the purpose for which the question is asked.  There are different senses in which a place, or a community, or a body politic, may be said to be, or not to be, "a part of" another place, or community, or body politic.  The political justification for the amending legislation appears to have provoked the dispute about whether the people of Norfolk Island are "an Australian community" or whether the Legislative Assembly of Norfolk Island is "an Australian legislature", but for the resolution of the legal challenge to the validity of the legislation what matters is that Norfolk Island is a territory under the authority of the Commonwealth.  To take up what was said by Kitto J in the passage quoted earlier from Lamshed v Lake, the entire legal situation of the territory may be determined by the authority of the Parliament.  If, in making that determination, the Parliament gives effect to a politically contestable view of what is appropriate, that of itself has no bearing on the validity of its legislation.

14. Reference was made to the observation in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame[30] that the acquisition of an external territory by Australia involves the establishment of relations between Australia and the inhabitants of that territory, and that the kinds of relationship that may be appropriate are as various as the kinds of territory that may be acquired. It is difficult to see how that assists the plaintiffs. The observation was made in the context of the relationship that existed between Australia and the people of Papua and New Guinea. The variety of the kinds of relationship that may exist between Australia and the people of external territories is, no doubt, one of the reasons for the width of the power conferred by s 122.

    [30](2005) 222 CLR 439 at 457 [29].

15. The plaintiffs submitted that a law which adopts Australian citizenship as a criterion for the conferring of electoral rights in relation to the people of Norfolk Island is not a law for the government of the people of Norfolk Island because it selects as a criterion 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 excludes from electoral rights a substantial number of people who are part of the people of Norfolk Island. Once it is accepted (as the plaintiffs accepted) that Parliament may make laws for the government of a territory that deny electoral rights to all of the people of the territory, it is difficult to understand why Parliament may not make laws that deny electoral rights to some of the people of the territory or, in particular, to a relatively small minority of the people who are not Australian citizens. Some forms of discrimination in the conferral or withholding of electoral rights may be unjust or unwise, or inconsistent with currently held democratic values. That does not necessarily mean they are unlawful. Other forms of discrimination are generally accepted. Fixing a minimum age for voting is one example. It is impossible to find in the text of s 122, or elsewhere in the Constitution, a prohibition against discriminating on the basis of Australian citizenship. There is nothing in the Constitution, or in the history or circumstances of Norfolk Island, which denies to the laws in question the quality of being laws for the government of Norfolk Island.

16. It was further submitted that "[t]he doctrine of representative government is embedded in the Constitution".  The plaintiffs said:  "The question arises whether, if Parliament decides to establish a form of locally based government for a territory, such as that provided by the 1979 Act (as distinct from direct administration by officers of the Commonwealth), it must do so in a way that ensures the creation and continuing existence of a legislature that is chosen by the people of the territory in accordance with principles of representative government".

17. The question as posed by the plaintiffs according to its terms arises only if Parliament decides to establish a form of locally based government for a territory.  Implicit is the acknowledgment, made explicitly in oral argument, that a law for the government of a territory may provide for a government that is not locally based.  If the principles of representative government referred to in the question are those generally accepted as applicable to "the people of [particular States]" or "the people of the Commonwealth" then, it should be noted, as was pointed out in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame[31], that those references in the Constitution do not bind 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. Just as the plaintiffs acknowledge that locally based government might be inappropriate to an external territory, so also, depending on the circumstances, a locally based government constructed according to current Australian standards of representative democracy may be inappropriate. Indeed, the very complaint of the plaintiffs in this case is that an Australian standard of qualification to participate in the democratic process has been imposed inappropriately on an island population whose distinctive character has not been given adequate recognition.

    [31](2005) 222 CLR 439 at 457 [30].

18. In Kruger v The Commonwealth[32], Dawson J said:

    "No system of government, elected or otherwise, is prescribed for the territories. Sovereign legislative power is conferred by s 122 upon the Commonwealth Parliament to make laws for the government of the territories but there need be no representation of a Territory in either House of the Parliament, nor is there any requirement that institutions of representative government exist within the territories."

    [32](1997) 190 CLR 1 at 69-70.

19. Bearing in mind the diversity of territories, the Parliament, if it decides to establish institutions of representative government within a territory, is not bound to conform to any particular model of representative government. There is nothing in the Constitution, and there is nothing inherent in the concept of representative government, that requires the Parliament, if it chooses to legislate for self-government, to enfranchise residents of Norfolk Island who are not Australian citizens.

20. In Spratt v Hermes[33], Barwick CJ said:

    "Section 122 gives to the Parliament legislative power of a different order to those given by s 51. That power is not only plenary but is unlimited by reference to subject matter. It is a complete power to make laws for the peace, order and good government of the territory – an expression condensed in s 122 to 'for the government of the Territory'. This is as large and universal a power of legislation as can be granted ...

    But this does not mean that the power is not controlled in any respect by other parts of the Constitution or that none of the provisions to be found in chapters other than Chap VI are applicable to the making of laws for the Territory or to its government. It must remain, in my opinion, a question of construction as the matter arises whether any particular provision has such an operation, the construction being resolved upon a consideration of the text and of the purpose of the Constitution as a whole."

    [33](1965) 114 CLR 226 at 241-242; cf the reference to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 by Laws LJ in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 at 1104.

21. 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

22. 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.

1. KIRBY J.   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).

2. 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].

3. 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).

4. 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.

5. 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

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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. 

12. The sixth plaintiff is the Administration of Norfolk Island, a body politic constituted by s 5 of the Norfolk Island Act 1979 (Cth) ("the 1979 Act"). By that provision, the Administration is capable of suing. The Administration brings this constitutional challenge against the Commonwealth, it was said, because of the political opposition in NI to the challenged provisions of the 2004 Act.

13. The natural person plaintiffs assert that, but for the 2004 Act, they would be entitled to be candidates for election to the NI Legislative Assembly. Further, they assert that, if the Act is valid, they will not be so entitled. Instead, they will, if removed from the NI electoral roll, lose their entitlement to re-enrolment and to vote in elections for the NI Legislative Assembly. They object to the deprivation of these civil rights on the basis that it disturbs long-standing features of the entitlement of residents, like themselves, to participate in the political life and democratic, representative self-government of NI.

14. History of acquisition of NI:The special case annexes 29 items of historical material, comprising legal and historical records relating to NI, dating back to 1786.  The first recorded description of NI was that of Commander James Cook during his exploratory voyage to the South Seas for the British Admiralty in 1774.  At the time of the first encounter with European civilisation, NI was unoccupied.  Its remoteness, possible strategic value and the utility of its tall pines for ships' masts were noted in Cook's A Voyage towards the South Pole, which was published in England in 1777[47].  NI was included within the commission granted by George III to Captain Arthur Phillip upon his despatch to establish the British "territory called New South Wales"[48].

    [47]Hoare, Norfolk Island: An Outline of Its History 1774-1977, 2nd ed (1978) at 1-3.

    [48]Governor Phillip's First Commission (12 October 1786), reproduced in Historical Records of Australia, Series 1, Governors' Despatches to and from England, vol 1 (1914) at 1.

15. The decisions to establish NI as a penal settlement; to abandon that settlement in 1814; and later, in 1825, to re-establish it and to bring it within the Government of the Colony of Van Diemen's Land (now Tasmania), are described in other reasons[49].  So too is the decision taken by the Imperial Government to resettle the inhabitants of Pitcairn Island on NI in 1856.  From that time, the Pitcairners comprised the majority of the population on NI.  This fact, together with the geographical isolation of NI, its tiny population, the changes in its governmental arrangements, and its distinctiveness, led the Imperial Government to provide, by the Waste Lands (Australia) Act 1855 (Imp)[50], for the separation of NI from Van Diemen's Land.  Such separation was effected by an Order in Council of 24 June 1856.  This provided that, after a designated date, NI:

    "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 … and … the Governor and Commander-in-Chief … in … the Colony of New South Wales shall be constituted and appointed … Governor of the said island called Norfolk Island."

    [49]Reasons of Gleeson CJ, Gummow, Hayne and Crennan JJ ("joint reasons") at [12]‑[17]; reasons of Callinan J at [154]-[158].

    [50]18 & 19 Vict c 56.

16. Amongst the other provisions of the Order in Council of 1856 was one permitting the Governor:

    "[T]o make grants of Waste Lands to Her Majesty belonging within the said island to private persons for their own behalf, or to any persons, bodies politic or corporate, in trust for the public use of Her subjects there resident, or any of them."

17. These measures coincided with moves to enhance representative government in the other Australian colonies, for which power was specifically given, or recognised, in the Waste Lands (Australia) Act.  This was the context in which Royal Instructions were given to Sir William Denison (who was also Governor of New South Wales) to "have full power and authority to make laws for the order, peace, and good government of the said island", that is, NI.  The Royal Instructions recited[51]:

    "…  And whereas the inhabitants of the said island are chiefly emigrants from Pitcairn's Island in the Pacific Ocean, who have been established in Norfolk Island under our authority, 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, … to preserve such laws and usages, and to adapt the authority vested in you … to their preservation and maintenance."

    [51]Royal Instructions to His Excellency Sir William T Denison, Governor General, made 24 June 1856; entered 16 September 1857.

18. The thirty-nine laws:  Pursuant to the foregoing Instructions, Governor Denison made "laws and regulations for Norfolk Island" on 14 October 1857[52].  These comprised the "thirty-nine laws".  They included provision, as appropriate to the circumstances of the settlement, for a measure of representative democracy.  This paralleled similar laws being made in other parts of the British Dominions, at least in colonies comprising European settlers mostly derived from the United Kingdom itself.  Following the loss of the American colonies and settlements in the War of Independence of 1776, leading to the creation of the United States of America, the Imperial Government was generally sensitive, and amenable, to the aspirations for forms of representative government in the United Kingdom's settler colonies beyond the seas[53].  Governor Denison's "thirty-nine laws" for NI were simply one instance of these developments.

    [52]Supplement to New South Wales Government Gazette, 30 October 1857.

    [53]Maitland, The Constitutional History of England (1908) at 338-340 ("Maitland").

19. The thirty-nine laws included such provisions as:

    "2.The Executive Government of Norfolk Island, during the absence of the Governor, shall be vested in a Chief Magistrate and two Assistants or Councillors, to be elected annually by the community as hereinafter directed.

    3.The Chief Magistrate must be 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.

    …

    14.Should it appear to the Chief Magistrate that any change in, or addition to the Laws or Regulations of the Island are required, he will first consult with his Councillors, and should it appear to the three, or to a majority of the three, that such a change or addition is advisable, notice will be given to the community of the intention of the Chief Magistrate to submit such change or such new rule for their consideration at a public meeting to be held within fourteen days of the date of the Notice.

    15.At such public meeting, the nature of the proposed change or addition, and the reasons for it, will be explained to the meeting by the Magistrate and Councillors, and the people present will be invited to express their opinion upon it.  After the explanation and discussion, the persons present will be called upon to vote for or against the proposition, and a list of the number in favour of or against the measure will be recorded on the minutes of the proceedings.

    16.No repeal of any Law or Regulation will be valid, until confirmed by the Governor; but a new Law or Regulation may be acted on, when it has been approved of by a public meeting, without such confirmation, should it refer to a subject of immediate importance."

20. In some respects the thirty-nine laws were in advance of the times.  They included provisions for conciliation of disputes[54]; a form of trial before a jury consisting of seven elders[55]; compulsory education of children to the age of fourteen years[56]; the employment of a properly qualified schoolmaster[57]; and a prohibition on beer, wine or spirituous liquor save for medicinal purposes[58].

    [54]Clause 17.

    [55]Clauses 19-30.

    [56]Clause 32.

    [57]Clause 34.

    [58]Clauses 35-36.  Alcoholic Prohibition in the United States of America was first introduced in the State of Maine in 1851.  That law eventually led to the adoption of the XVIIIth Amendment to the United States Constitution in 1919, which remained in force until its repeal by the XXIst Amendment in 1933.

21. Commenting on the introduction of these laws in NI, Governor Denison pronounced himself[59]: 

    "… convinced … 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."

    [59]Denison, Varieties of Vice-Regal Life, (1870), vol 1 at 410 ("Denison") (emphasis in original).

22. The Governor "left untouched" the law that gave the women, as well as the men, a vote in the annual election of the Chief Magistrate[60].  This universal franchise on NI was well in advance of the introduction of female suffrage elsewhere.  It was not attained throughout Australia until after Federation[61] and in the United Kingdom and elsewhere, much later. 

    [60]Denison, vol 1 at 411.

    [61]As contemplated by the Constitution, s 30.

23. The thirty-nine laws continued in operation, with various amendments and additions until Governor Henry Brand, on 7 April 1897, pursuant to an Order in Council, revoked the earlier laws and, by Proclamation, made new laws for NI[62].  These laws continued the office of the Chief Magistrate in whom was vested the executive government of NI.  However, he was thereafter appointed by the Governor from time to time[63]. 

    [62]Proclaimed and published in Supplement to the New South Wales Government Gazette, 7 April 1897 at 2564.

    [63]Clause 1.

24. Provision was made for a council of elders[64] with large powers, subject to the approval of the Chief Magistrate, to "make, amend, and repeal by-laws … [and] make suggestions to the chief magistrate as to any changes in the laws and regulations of the island which they may think desirable"[65].  The council of elders was to be elected on the first Tuesday in January of each year[66].  The members were to be "elders of the age of thirty years or upwards" but subject to disqualification.  The Chief Magistrate was obliged to keep "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".  Those persons are referred to as "the elders"[67].  By the time of the 1897 Order in Council, the earlier provision for universal suffrage was replaced by a provision confining participation to the male population as defined[68].  Female suffrage and candidature were not restored until NI became a territory of the Commonwealth[69].

    [64]Clause 8.

    [65]Clause 9(I) and 9(II).

    [66]Clause 11(I).

    [67]Clause 12.

    [68]Laws, Rules and Regulations for the Government of Norfolk Island 1897, published in the Supplement to the New South Wales Government Gazette, 7 April 1897 at 2567. See ss 11(I) and 12.

    [69]By Executive Council Ordinance 1915, ss 4 and 5, inserting new ss 2C and 6 in the Executive Council Law 1913.  Commonwealth Gazette, 19 July 1915.

25. Nationality status of British subject:  The developments that preceded, and followed, the establishment of the Commonwealth of Australia are described in other reasons[70].  They included the enactment of federal legislation for the acceptance of NI as a territory under the authority of the Commonwealth, and the Order in Council of 1914 by which George V placed NI under the authority of the Commonwealth[71].  The successive NI electoral laws are described elsewhere[72]. 

    [70]Joint reasons at [11]-[28]; reasons of Callinan J at [160]-[164].

    [71]Within the Constitution, s 122.

    [72]Joint reasons at [3]-[4], [6]-[9].

26. As was normal during the 19th (and for most of the 20th) century, the nationality requirement for participation in the elected body of NI contemplated, after the Order in Council of 1897, conformity to the only notion of nationality then applicable in Australia and throughout the British Empire: that of being a natural born or naturalised British subject. This is also the only express requirement of nationality mentioned in the Constitution[73].  There were age and residence requirements and, for a short interval, a restored requirement of the male gender[74].  However, the common feature of the requirements for participation under electoral laws after 1897 was the nationality status of allegiance to the British Crown. 

    [73]See eg the Constitution, ss 42, 44(i). See also s 117.

    [74]Laws, Rules and Regulations for the Government of Norfolk Island 1897, published in the Supplement to the New South Wales Government Gazette, 7 April 1897 at 2567. See ss 11(I) and 12.

1. When NI became a territory of the Commonwealth, this feature caused no discordance with Australian electoral laws.  This was because the same principle was applied throughout Australia[75].  Australian citizenship, as such, was not provided for by legislation until the Nationality and Citizenship Act 1948 (Cth)[76].  In 1981, for the first time, the Commonwealth Electoral Act 1918 (Cth) ("Commonwealth Electoral Act") was amended to confer the entitlement to enrol and vote on "Australian citizens" as such[77].  However, the entitlement (and obligation[78]) to vote in Australian elections continued to apply to British subjects whose names were on the roll immediately before 26 January 1984[79].  Indeed, such persons remain on the Australian electoral roll, unless otherwise lawfully removed.  However, since 1984, persons who are not Australian citizens and whose names were not on the electoral roll immediately before 26 January 1984, may not have their names added to the Commonwealth electoral roll.  This is now the case even if those persons are British subjects lawfully resident in Australia.

   [75]Commonwealth Electoral Act 1918 (Cth), s 93(1)(b)(ii).

   [76]See Re Patterson; Ex parte Taylor (2001) 207 CLR 391.

   [77]Statute Law (Miscellaneous Amendments) Act 1981 (Cth), s 32.

   [78]Commonwealth Electoral Act, s 245(1).

   [79]Commonwealth Electoral Act, s 93(1)(b)(ii).

2. Successive representative bodies:  The representative organ of government of NI underwent several changes during the 20th century.  The council of elders was abolished in July 1903.  It was replaced by an Executive Council, elected by the "Elders"[80].  That Council was enlarged in 1913, although only two of the seven members were then elected by the "Elders"[81].  The Executive Council so established was continued by the Norfolk Island Act 1913 (Cth), subject to alteration or abolition by Ordinance made under that Act.

   [80]Law to make better Provision for a Council at Norfolk Island to be called "The Executive Council", 1903, ss 1, 2, 3.  Supplement to the New South Wales Government Gazette, 3 July 1903.

   [81]Norfolk Island Act 1913 (Cth) s 4; Executive Council Law 1913, ss 2, 6. New South Wales Government Gazette, 24 December 1913.

3. By the Executive Council Ordinance 1915, the former Executive Council was abolished and replaced by an Executive Council of 12, six of whom were elected and six appointed by the Administrator[82].  The Administrator, in turn, was appointed by the Governor-General[83].  Eligibility for election was open to any person entitled to vote at elections of members of the Executive Council[84].  Eligibility to vote at elections extended to any person, male or female, who was a natural born or naturalised subject of the King, 21 years of age or over, who met specified residency requirements and was not subject to disqualifying criminal convictions[85].

   [82]Executive Council Ordinance 1915, s 5.

   [83]Administration Law 1913, s 3(1). New South Wales Government Gazette, 24 December 1913.

   [84]Executive Council Law 1913, s 6; cf Executive Council Ordinance 1915, s 5.

   [85]Executive Council Ordinance 1915, s 4 inserting ss 2C and 3 in Executive Council Law 1913.

4. The foregoing provisions were repealed in 1925[86].  A new Council was established along generally similar lines.  A like change occurred in 1935 providing for the Advisory Council of NI.  This comprised eight members, elected annually[87].  That provision was, in turn, replaced in 1960 by the establishment of the Norfolk Island Council comprising eight elected councillors[88].  In 1968, the franchise for voting for the NI Council was expanded to include persons holding temporary immigration permits who had been resident on NI for the preceding 12 months[89].  By the same provision, eligibility for election to the Council was limited to those who had lived on NI for the five years preceding nomination for election[90]. 

   [86]Executive Council Ordinance 1925, s 3.  Commonwealth Gazette, 23 April 1925. 

   [87]Norfolk Island Act 1935 (Cth); Advisory Council Ordinance 1935, ss 5, 6. Commonwealth Gazette, 27 June 1935.

   [88]Norfolk Island Act 1957 (Cth), s 11; Norfolk Island Council Ordinance 1960, s 6.

   [89]Norfolk Island Council Ordinance 1968, s 3 amending s 12 of Norfolk Island Council Ordinance 1960.

   [90]Norfolk Island Council Ordinance 1968, s 2 amending s 8 of Norfolk Island Council Ordinance 1960.

5. New residency requirements for voting for the Council were introduced in 1970[91] to amend further the residency requirements by excluding temporary entry permit holders from the franchise.  That was the position when a Royal Commission into matters relating to NI was established by the Commonwealth.  The report of the Royal Commissioner (The Hon Sir John Nimmo) was published in October 1976[92].  The report recommended that, except in special cases, all laws that applied to other parts of Australia generally should also apply to NI[93]. 

   [91]Norfolk Island Council Ordinance 1970, s 4 amending s 12 of Norfolk Island Council Ordinance 1960.

   [92]Australia, Royal Commission Into Matters Relating to Norfolk Island, Report, October 1976.

   [93]Australia, House of Representatives, Parliamentary Debates (Hansard), 11 May 1978 at 2251.

6. Self-government of NI:  In a policy statement made in May 1978 the Australian Government set out its response to the Royal Commissioner's report[94].  After consultations with the NI community, the Minister made it clear that the recommendation of assimilation of laws had been rejected:

   "… [T]he Government recognises the special situation of Norfolk Island, including the special relationship of the Pitcairn descendants with the Island, its traditions and culture.  It is prepared, over a period, to move towards a substantial measure of self government for the Island.  It is also of the view that, although Norfolk Island is part of Australia and will remain so, this does not require Norfolk Island to be regulated by the same laws as regulate other parts of Australia.  … [T]he Government has decided … to allow the present situation to continue under which laws of the Australian Parliament only apply to this Island if special provision is made in the particular law … The Government's … objective has been to provide for the development of a responsible form of self-government for Norfolk Island."

   [94]Policy on Norfolk Island in Australia.  See Australia, House of Representatives, Parliamentary Debates (Hansard), 11 May 1978 at 2251-2253.

7. This was the background to the enactment of the 1979 Act.  It was that Act that provided for a Legislative Assembly of nine members, to be elected as provided[95].  In order to be eligible to stand as a candidate for election, and to vote, a person was required to be an Australian citizen, or otherwise to have the status of a British subject; to be 18 years or over; and to be a resident of NI or a holder of an entry permit other than a temporary entry permit and to be capable of satisfying specified residency requirements[96].  There were also disqualifications for certain criminal convictions[97].  The residency requirements for enrolment were subsequently amended. 

   [95]The 1979 Act, s 31.

   [96]s 38.

   [97]s 39(1)(b).

8. By the Statute Law (Miscellaneous Provisions) Act (No 1) 1985 (Cth) the requirements for nationality were deleted from the electoral provisions of the 1979 Act[98].  From 1897 until 1985 it had been a precondition both for candidature and voting, that a person should have the nationality status that was common to natural-born or naturalised electors of the Commonwealth of Australia.  However, for reasons that are undisclosed, after nearly a century of its operation, this requirement was abolished.  The laws challenged in these proceedings restore a nationality requirement.  But they do so in terms confined to Australian citizenship, with no continuing reference to the formerly qualifying status of British subject, and no preservation of the entitlements of those of other nationalities based on residency qualifications alone (save for the continuing right to vote of those already on the NI electoral roll).

   [98]s 3 and Sched 1.

   The issues

9. The central issue in these proceedings is whether the laws that the plaintiffs challenge are supported by s 122 of the Constitution. On the face of things, they appear to be. To consider the contentions to the contrary, it is necessary to address a number of issues that emerged during argument before this Court:

   (1)Political merits issue:  Is the question presented by the plaintiffs essentially a political one[99], in the sense that they complain of the imposition by the Australian Parliament of a universal requirement of Australian citizenship for effective participation in the representative democracy of NI?  If so, is the complaint one that is outside this Court's function to declare and uphold the law irrespective of its merits?  Or is this an instance where, as in much constitutional decision-making, contested political issues merge with legal ones?

   (2)Textual limitation issue: Does the fact that s 122 of the Constitution includes the express provision permitting "representation of such territory in either House of the Parliament", indicate that any "laws for the government" of a territory such as NI, must provide in a way appropriate to the particular circumstances of the territory, here NI? Given the substantial numbers of non-Australian citizens resident on NI, who have hitherto enjoyed such entitlements, does the attempted alteration of the 2004 Act fail the test of being a "law for the government" of NI?

   (3)Placement under authority issue:  Does the special character of NI as a territory "placed by the Queen under the authority of and accepted by the Commonwealth" carry with it particular constitutional features that support the plaintiffs' objection to the challenged laws, especially given the long history of representative government in the territory that I have outlined?

   (4)Assumption about territories issue: Do the particular features of the several "territories" of the Commonwealth import into s 122 an assumption concerning the nature of laws that may be made for the government of each territory? Specifically, in the case of NI, having regard to its long-established history as a "distinct and separate settlement" and to the enduring provision for a representative law-making body, does a law enacted by the Australian Parliament that diminishes the representative character of the NI Legislative Assembly, by confining participation in it to Australian citizens, breach an assumption, inherent in the constitutional grant of power in s 122?

   (5)Implied limitation on laws issue: If the foregoing questions are answered adversely to the plaintiffs, should this Court, nonetheless, read into the power to make laws for the government of a territory in s 122, an implied limitation restricting the removal of the qualification to participate in the franchise or to be a candidate for election to the Legislative Assembly, from persons who are subjects of the Queen, otherwise than as Australian citizens?

   (6)International law issue:  Is there any applicable provision of international law which, as a matter of context or otherwise, casts light on the resolution of the foregoing issues affecting the relationship between Australia and NI, or any of them?

   [99]cf joint reasons at [32].

   Political questions and constitutional issues

10. An imperfect dichotomy:  In a broad sense, all constitutional questions involve political questions[100].  It is this feature that caused A V Dicey to declare[101]:

    "That a federal system … can flourish only among communities imbued with a legal spirit and trained to reverence the law is as certain as can be any conclusion of political speculation.  Federalism substitutes litigation for legislation, and none but a law-fearing people will be inclined to regard the decision of a suit as equivalent to the enactment of a law … Hence the citizens become a people of constitutionalists, and matters which excite the strongest popular feeling, as, for instance, the right of Chinese to settle in the country, are determined by the judicial Bench, and the decision of the Bench is acquiesced in by the people … One may well doubt whether there are many states to be found where the mass of the people would leave so much political influence to the courts."

    [100]Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 82 per Dixon J.

    [101]Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (1959) at 179-180.

11. In the history of this nation, as of the United States and other federations, many important questions of large political moment have been decided as legal questions, the outcome being determined by the opinion of this Court (sometimes by a majority) as to the requirements of the Constitution[102].  In such matters, judges of this Court and, as Dicey pointed out, "every judge throughout the land"[103] decide political questions because they are tendered in a justiciable form.  In such cases, judges enjoy no privilege to refrain from giving answers.  The fact that the questions are political, or have political connotations or consequences, affords no excuse for inaction.

    [102]See eg Lee and Winterton, Australian Constitutional Landmarks (2003); New South Wales v The Commonwealth (2006) 81 ALJR 34; 231 ALR 1 is the most recent such decision.

    [103]Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (1959) at 177.

12. From time to time, this Court must give meaning to constitutional words that require reference to what may be broadly called "political" values.  Thus, in Cheatle v The Queen[104], the Court unanimously concluded that "the exclusion of women and unpropertied persons" from the jury, required to try indictable federal crimes prosecuted on indictment, was unacceptable to fulfil the "truly representative" character of an Australian jury as contemplated by s 80 of the Constitution "in the more enlightened climate of 1993". Whilst the historical unanimity in the jury's verdict was constitutionally required[105], the exclusion of women and unpropertied persons was forbidden.  So much was a consequence of constitutional adjudication.  There are many other relevant instances[106].

    [104](1993) 177 CLR 541 at 560-561.

    [105](1993) 177 CLR 541 at 562.

    [106]See eg Sue v Hill (1999) 199 CLR 462 at 503 [96], 528 [173], where it was held that the disqualifying expression "subject or a citizen of a foreign power" in s 44(i) of the Constitution now includes a citizen of the United Kingdom.

13. It follows that giving effect to constitutional requirements in a federation will often, as Dicey recognised, involve political judgments in the broad sense.  Indeed, it is difficult to see how arguments relating to the constitutional validity of laws affecting election to the representative institutions of a territory could be discussed without postulating some political characteristics about the polity against which the parties' arguments could be measured[107].

    [107]cf Attorney-General (WA) v Marquet (2003) 217 CLR 545 at 607-608 [186].

14. Nevertheless, judges must obviously be alert to the distinction between deciding whether power exists to enact a law and deciding whether they consider a law, once enacted, is desirable, wise, just or in keeping with historical values or conceptions of basic civil rights.  Singhv The Commonwealth[108] was a case involving the removal from Australia of a girl aged seven who was born here to parents of Indian nationality and who knew no other country.  In my reasons in Singh I observed that, if I were a legislator, I would not favour such a course[109].  However, the duty of a judge, in giving meaning to constitutional concepts, expressed in the basic law of a nation, is to give effect to the meaning of the text as it is understood from its language, history, context and function.

    [108](2004) 222 CLR 322 at 411 [243].

    [109]See also Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 422 [159].

15. Over the past 30 years and more, debates have occurred in the Australian Parliament, in the NI Legislative Assembly and elsewhere concerning the extent to which NI and its laws should be assimilated into the Australian Commonwealth or allowed to retain the "distinct and separate" features out of respect for its geographical isolation, history, and population.  In 1974 the Royal Commission report favoured closer legal assimilation.  However, as I have observed, the Australian Government and Parliament adopted a different course.  The 1979 Act was enacted to give effect to that course.

16. Amongst the preambular paragraphs contained in that Act, the following words still appear on the Australian statute book:

    "AND WHEREAS the residents of Norfolk Island include descendants of the settlers from Pitcairn Island: 

    AND WHEREAS the Parliament recognises the special relationship of the said descendants with Norfolk Island and their desire to preserve their traditions and culture:

    AND WHEREAS 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 on Norfolk Island:

    AND WHEREAS the Parliament intends that within a period of 5 years after the coming into operation of this Act consideration will be given to extending the powers conferred by or under this Act on the Legislative Assembly and the other political and administrative institutions of Norfolk Island, and that provision be made in this Act to enable the results of such consideration to be implemented …"

17. Later, the 2004 Act was enacted, with provisions (challenged in these proceedings) that, in certain respects, reflect a change of direction. 

18. Justiciable politics:  The history preceding the enactment of the 2004 Act demonstrates the political issues that, from the time of the earliest settlement of NI, have been illustrated in its government and administration.  It could hardly be otherwise.  This Court, in these proceedings, cannot avoid a decision, just because what it decides will have political implications. 

19. The arguments for the plaintiffs emphasised the importance of preserving the distinctive features of what their counsel called the "community" of NI, a concept never precisely defined. The arguments for the Commonwealth emphasised the importance of upholding the rights of all Australian citizens, ordinarily resident in a territory of the Commonwealth, to the exclusion of non-citizens, to vote in elections for the Legislative Assembly of that territory and to be candidates for such election. The fact that the issues are political does not afford this Court a reason for declining a constitutional answer. Yet it does oblige the Court, so far as it can, to proffer an answer that conforms as closely as possible to the constitutional text, read in the light of history, identified matters of context and the decisional authority that casts light on the meaning of s 122 as it applies to NI.

    Textual argument:  the government of the territory

20. The argument stated: The plaintiffs recognised the difficulty they faced because of the generality of the language of s 122 of the Constitution. Self-evidently, the provisions in the section empowering the Parliament to "make laws for the government of any territory" are expressed in extremely broad terms.

1. Section 39 of the Act, to which s 38 is expressed as being subject, and which has been amended by Sched 1 cl 3 of the Amending Act, includes a new sub-s (2)(da), which is as follows:

   "Disqualifications for membership of Legislative Assembly

   ...

   (2)A member of the Legislative Assembly vacates his or her office if:

   ...

   (da)he or she ceases to be an Australian citizen".

2. Section 39(2)(da) applies, however, only to a person who is elected as a Member of the Legislative Assembly on or after the commencement of the Amending Act: Sched 1 cl 4.

3. The Amending Act also, by Sched 1 cl 5, inserts a new Div 1A (Qualifications of Electors) into Pt V of the Act. Under the new Div 1A in Pt V, in order to be enrolled as a voter on the Island a person must be an Australian citizen[190].  Further, a voter's name must be removed from the electoral roll if he or she ceases to be an Australian citizen[191].

   [190]Section 39A(1) and (2) of the Act.

   [191]Section 39C(1) of the Act.

4. The objects of the Amending Act were summarized in its Explanatory Memorandum in this way[192]:

   "The Norfolk Island Amendment Bill 2003 will amend the Norfolk Island Act 1979 to align electoral arrangements in Norfolk Island more closely with other Australian Parliaments (including those of the other self-governing Territories).  In summary, it will:

   •extend the right to vote in Legislative Assembly elections to all Australian citizens 'ordinarily resident' on Norfolk Island;

   •introduce an 'ordinarily resident' qualifying period of 6 months for enrolment on the electoral roll;

   •establish Australian citizenship as a qualification for enrolment and for election to the Legislative Assembly;

   •ensure consistency in the calculation of the 'residency period' and, in particular, preserve the existing enrolment rights of persons under the age of 25 who are absent from the Island for education-related purposes; and

   •preserve the existing enrolment rights of those non-Australian citizens on the electoral roll."

   [192]Australia, Senate, Norfolk Island Amendment Bill 2003, Explanatory Memorandum at 2.

   The question for this Court

5. The specific question for the Court is whether s 3 of the Amending Act is a valid enactment of the Commonwealth Parliament, in so far as it gives effect to:

   (a)cll 1, 3[193] and 4 in Pt 1 of Sched 1 to the Amending Act; and

   (b)cl 5 in Pt 1 of Sched 1 to the Amending Act, to the extent that cl 5 inserts into the Act ss 39A(1)(b), 39A(2)(a), 39C and the definition of "Returning Officer" in s 39D.

   [193]Clause 3 is as follows:

   "After paragraph 39(2)(d)

   Insert:

   (da)he or she ceases to be an Australian citizen".

   The territories power

6. Section 122 of the Constitution confers power on the Commonwealth Parliament to make laws "for the government" of three different kinds of territory: territory surrendered by a State and accepted by the Commonwealth; territory placed by the Queen under the authority of and accepted by the Commonwealth; and, territory otherwise acquired by the Commonwealth[194].  Norfolk Island is a territory of the second kind.

   [194]cf the discussion of different types of colonies, settled, conquered or ceded in the speech of Lord Hope of Craighead in Christian v The Queen [2006] UKPC 47 at [47].

7. At this point it is relevant to recall that the island was uninhabited at the time of its discovery by Captain Cook.  Thereafter, until its acceptance by Australia, everyone who came to reside there, whether involuntarily as convicts, voluntarily as free people, or as Pitcairners seeking an apparently more attractive and comfortable habitat, did so only with the assistance or support of the Imperial authorities or a colony of Australia, or both.  The significance of this is that questions which might perhaps have arisen with respect to any concession by the Imperial authorities of self-government, rights exercisable by Royal Prerogative, or rights generally of continuing or perpetual self-government, do not arise[195].

   [195]See the discussion by Eggleston J in Newbery v The Queen (1965) 7 FLR 34 at 39-40, and the cases referred to by his Honour.

   The plaintiffs' submissions

8. The real question is whether any conditions or limitations should be regarded as attaching to the authority of the Commonwealth over the territory of Norfolk Island. The plaintiffs submit that it is not open to the Commonwealth Parliament to prescribe that legislators in the Territory be confined to a particular subset of people in the Territory, and that the capacity to choose and to be chosen as a legislator be limited to members of that subset. Alternatively, they submit that the acceptance of authority by Australia under s 122 of the Constitution in respect of Norfolk Island as an external territory necessarily involves the establishment of relations between Australia and the community or inhabitants of that Territory.

9. In support of the alternative submission the plaintiffs refer to the joint judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame[196]:

   "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."

   [196](2005) 222 CLR 439 at 457 [29] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ.

10. The balance of the plaintiffs' submissions are heavily, if not to say exclusively, based upon the premise of the alternative submission.  In summary they are these.  The nature of the relationship between an external territory and Australia is not fixed.  The circumstances in which authority over a territory was accepted, including the status and characteristics of the territory at that time, are relevant.  The relations that may exist between Australia and the inhabitants of an external territory are not necessarily identical with those that apply to the people of the Commonwealth[197].  On acceptance by Australia, Norfolk Island was a Crown possession or dependency which had been established as a distinct and separate settlement for occupation by Pitcairners and their descendants, and others admitted to their community.  Norfolk Island did not on its acceptance by Australia, nor has it since, become part of Australia, geographically or politically.  Statements to the contrary in Berwick Ltd v Gray[198] are wrong.  Its community is not, and has never been, part of the Australian community.  Australian citizenship has never been a determining factor in identifying the community of the Island.  A law which requires Australian citizenship for voting and election in Norfolk Island is not a law "for the government" of Norfolk Island because it selects a relevant criterion which is not a defining characteristic a person must possess for membership of the community of Norfolk Island, or of "the people" of Norfolk Island.  Such a law is inconsistent with the status of the island as a distinct and separate settlement, and with the basis upon which the community was established and has continued in existence.  In consequence, the challenged provisions would disenfranchise many of the people of Norfolk Island.  The people of Norfolk Island have never been part of "the community constituting the Australian body politic"[199]. Even if a correct characterization of the people of Norfolk Island who are not Australian citizens be as "aliens", they, as a substantial proportion of the people of Norfolk Island, should not be stripped of electoral rights. Their entitlement to vote flows from the fact that they are part of "the people of [a] 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.

    [197]eg in covering cll 3 and 5 of the Constitution and s 24.

    [198](1976) 133 CLR 603.

    [199]Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 189 per Gaudron J.

    Disposition of the case

11. There are several reasons why the plaintiffs' submissions should be rejected.

12. Whilst it is true that by the 1856 Order (the force of which is not questioned) it was ordered that the Island be made a "distinct and separate settlement", a reservation of the possibility of change by further order was expressly made in it.  Accordingly, the Pitcairners who had then only so recently arrived on Norfolk Island should not have had expectations, let alone rights, of any form of permanent self-governing status.

13. That, as subsequent history until federation shows, the Governors of New South Wales, exercising delegated Imperial authority, although not absolutely bound to do so, were generally content to adopt a great deal of the customary law of the Pitcairners as they and visiting admiralty officers[200] had formulated it on Pitcairn Island, and as contemplated by the 1856 Order, does not mean that the inhabitants or residents became entitled to a permanent right of self-government.

    [200]See Christian v The Queen [2006] UKPC 47 at [2] per Lord Hoffmann.

14. It does not matter for present purposes how the Island or the community of the Island was to be regarded in 1900, whether as a settlement, a colony, a territory, a province, a provincial territory of a colony, a colonial territory, or otherwise; hard and fast definitions of claimed lands and seas and clear international rules of law applicable to them, in those times of competing Imperial expansion, were evolving.  The community on the island was, on any view, then a community of people who owed their presence there to the monarch, and had no legal right to self-government, except to the extent, if any, that the monarch or the monarch's delegate, not irrevocably, may have conferred it.  The last Order in Council before federation was entirely consistent with the earlier ones in not conferring it, but by making provision for the continuation in force of the current law, subject to repeal or alteration by "competent authority".

15. Repeal and alteration by competent authority or authorities was exactly what did in fact occur. The first relevant occurrence was legislation of a higher order than Letters Patent or Order in Council, that is, enactment, by the Imperial Parliament, of s 122 of the Commonwealth of Australia Constitution Act in 1900. That section in terms confers on the Parliament the power to make laws for the government of territories, including those placed by the monarch under the authority of, and accepted by, the Commonwealth. Events to produce such a result, of placement and acceptance of Norfolk Island by Australia, ensued some 13 or so years later by way of an Imperial Order in Council in 1914, following the Act of the Commonwealth Parliament of 1913 which anticipated that Order.

16. It is impossible, in my view, to regard the challenged provisions, concerned as they were with the qualifications of electors and their representatives, as other than laws for the government of Norfolk Island. The plaintiffs' proposition is, effectively, that every law must accept or adopt the franchise for which the legislature of the island, itself elected according to that franchise, has made provision. The truth is that territories subject, or becoming subject, to the Australian Constitution have never possessed the same assured rights as the people of the States, and the States themselves, have. This follows, not only from the history which I have summarized, but also from the implication to which ss 107 and 108 of the Constitution give rise[201]. The Constitution, whilst making provision for the continuation of every power of a Colony becoming a State and (subject to the exercise of valid federal power) of Colonial laws, and the acceptance of a territory by the Commonwealth, is silent, intentionally so, it may be inferred, as to the continuation of the powers and laws of a territory. The special and quite different status of the new States, and their differentiation from the territories is explained by Kitto J in Spratt v Hermes[202] in passages[203] which I will quote when I discuss the relevant cases.

    [201]Sections 107 and 108 provide:

    "107Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

    108Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State."

    [202](1965) 114 CLR 226 at 250-251.

    [203]At [191] below.

    Cases considering s 122

17. It is to those cases that I now turn. There is no decision of the Court which supports the plaintiffs' submissions. Indeed the contrary is generally the position. Repeatedly the cases emphasize the amplitude of the territories power, even though other provisions of the Constitution have at times been held to apply to the territories.

18. In Buchanan v The Commonwealth[204], R v Bernasconi[205] and Porter v The King; Ex parte Yee[206], the Court was asked to read s 122 of the Constitution as subject to ss 55, 80 and 71 of the Constitution respectively, but in each case refused to do so.

    [204](1913) 16 CLR 315.

    [205](1915) 19 CLR 629.

    [206](1926) 37 CLR 432.

19. In Jolley v Mainka[207], the Court considered the Commonwealth's power over the Territory of New Guinea, which was governed by Australia pursuant to a mandate of the League of Nations.  Starke J was of the view that New Guinea was territory "otherwise acquired [that is, not, as here, 'accepted'] by the Commonwealth"[208].  His Honour said that the Commonwealth had acquired "plenary control of the territory, subject to and during the subsistence of the mandate"[209].  Dixon J[210], with whom Rich J agreed[211], said however that the King's acceptance of the mandate on behalf of the Commonwealth made it territory "placed by the [King] under the authority of and accepted by the Commonwealth" in accordance with s 122 of the Constitution. Evatt J held[212] that s 122 of the Constitution had not been engaged: instead, the external affairs power, conferred by s 51(xxix) of the Constitution, empowered the Commonwealth to govern the Territory. Starke J was the only Justice therefore to express an opinion about the possibility of any limitations upon s 122 when engaged.

    [207](1933) 49 CLR 242.

    [208](1933) 49 CLR 242 at 250.

    [209](1933) 49 CLR 242 at 250.

    [210](1933) 49 CLR 242 at 256.

    [211](1933) 49 CLR 242 at 247.

    [212](1933) 49 CLR 242 at 278-279, 289.

20. In Ffrost v Stevenson[213], a case concerning extradition from New South Wales to the Territory of New Guinea, Latham CJ said that s 122, not s 51(xxix), was the source of the authority to make laws for the Territory[214]. To hold otherwise would, in the opinion of his Honour, undermine the plenary nature of s 122[215]:

    "If the legislative power of the Commonwealth with respect to the territories were held to depend upon the provisions of sec 51(xxix) it would follow that sec 55 would be applicable to laws passed under that power – contrary to Buchanan's Case[216] – that trial upon indictment of any offence must be by jury – contrary to Bernasconi's Case[217] – and that the judges of courts in the territories must have a life tenure – contrary to Porter's Case[218]."

    Dixon J made similar observations to Latham CJ, and added this[219]:

    "[I]t may possibly be said that sec 122 implies that none of the other powers conferred on the parliament by the Constitution is to be taken to authorize the government or control of territories outside the Commonwealth; in other words, that it alone is the source of power to govern territories."

    Neither of those Justices in Ffrost v Stevenson admitted of any limits on the exercise of power over the mandated territory.

    [213](1937) 58 CLR 528.

    [214](1937) 58 CLR 528 at 556.

    [215](1937) 58 CLR 528 at 556.

    [216]Buchanan v The Commonwealth (1913) 16 CLR 315.

    [217]R v Bernasconi (1915) 19 CLR 629.

    [218]Porter v The King; Ex parte Yee (1926) 37 CLR 432.

    [219](1937) 58 CLR 528 at 566.

21. In Lamshed v Lake[220], a majority of the Court (Dixon CJ, Webb, Kitto and Taylor JJ, McTiernan and Williams JJ dissenting) held that laws sufficiently connected to a territory were valid under s 122 of the Constitution wherever territorially the Commonwealth had legislative competence.  Dixon CJ[221] (with whom Webb J agreed[222]) emphasized that each territory is a territory of Australia, not a "quasi foreign country", and that the Commonwealth may legislate for the government of territories "as part of its legislative power operating throughout its jurisdiction".  His Honour then went on[223]:

    "The contrary view seems to lead to many absurdities and incongruities.  Take for example the legislative power over trade and commerce with other countries and among the States.  Under that power it could hardly be doubted that the Commonwealth Parliament could provide in effect upon what conditions this or that commodity might be shipped to New Zealand or to Tasmania without other restraint.  Any law of South Australia at variance with the enactment would be void; see O'Sullivan v Noarlunga Meat Ltd[224].  Is it to be supposed that a law to the same effect with respect to a federal territory is outside the competence of the federal Parliament?"

    Kitto J reasoned similarly to Dixon CJ. His Honour said of s 122[225]:

    "[T]he section cannot fairly be read as meaning that the national Parliament, when it turns to deal with a territory which has come under the nation's authority, shall shed its major character and take on the lesser role of a local legislature for the territory, concerned only to regulate the local law.  Surely it means that a territory which has been accepted by the Australian Federation may be fitted into the Australian scene, so far as laws are concerned, by the legislative activity of the Australian Parliament:  that the entire legal situation of the territory, both internally and in relation to all parts of the Commonwealth, may be determined by or by the authority of Parliament." (emphasis added)

    [220](1958) 99 CLR 132.

    [221](1958) 99 CLR 132 at 144.

    [222](1958) 99 CLR 132 at 152.

    [223](1958) 99 CLR 132 at 144.

    [224](1954) 92 CLR 565; on appeal (1956) 95 CLR 177, [1957] AC 1.

    [225](1958) 99 CLR 132 at 154.

22. The dissentients in Lamshed v Lake published brief reasons for judgment. McTiernan J was of the view that a law passed under s 122 restraining the States' powers over trade and commerce "would clearly violate the federal nature of the Constitution and being contrary to it would be invalid"[226]. Williams J said that legislation passed under s 122 could not have extra-territorial operation so as to bind a State[227], and that s 51(i) was insufficient to fill any "hiatus" because a territory is not another country, nor a State[228].

    [226](1958) 99 CLR 132 at 150.

    [227](1958) 99 CLR 132 at 150.

    [228](1958) 99 CLR 132 at 152.

1. By the time Fishwick v Cleland[229] was heard, Australia, pursuant to a Trusteeship Agreement between it and the recently created United Nations, held a mandate for the government of the Territory of Papua and New Guinea. There, the Court was asked whether the exercise of Commonwealth legislative power, pursuant either to the external affairs power in s 51(xxix) or the territories power in s 122 of the Constitution, was required to be consistent with the terms of the Trusteeship Agreement and the Articles of the Charter of the United Nations. On the reasoning of Starke J in Jolley v Mainka, s 122 would arguably be limited by the terms of the Agreement[230].  In Fishwick v Cleland the Court (Dixon CJ, McTiernan, Fullagar, Kitto, Menzies and Windeyer JJ) concluded that there was no limitation on the Commonwealth's power because there were no inconsistencies between the Trusteeship Agreement and the relevant Commonwealth enactment[231].  That would have been sufficient to resolve the case, but the Court went on to say that "if any such inconsistency could be found we should not think that it went to the legislative validity of the enactment considered as a matter of municipal law"[232].  The Court continued[233]:

   "Australia possesses a federal form of government and that of course involves a distribution of legislative powers between States and Commonwealth.  A difficulty has been felt in saying under which of the enumerated powers of the Commonwealth Parliament fell the authority to legislate for the government of a mandated territory and of course whatever difficulty has been felt as to a mandate will be felt as to a trust territory.  But that is a matter of the constitutional law of Australia, a municipal or domestic matter, and is not, we think, determined by reference to the provisions of the Trusteeship Agreement or of the Charter of the United Nations.  It was suggested by the Attorney-General that the 'status' of the Territory of New Guinea was not for the judicial power to determine but rather to be ascertained for judicial purposes by inquiry from the Executive Government.  We need not pursue the suggestion for we think that it is clear upon the documents and information before us that the Territory is subject to the legislative power of the Commonwealth Parliament.  It is the very object of the trusteeship system to place a trust territory under the governmental authority of the State which undertakes to administer the territory in accordance with a Trusteeship Agreement.  In the case of a State possessing a unitary system of government that means that the full powers of government are at its service in performance of its obligations under the Trusteeship Agreement.  In the case of a federal system the powers which may be exercised must of course depend upon the constitution of the State but that is entirely an internal matter."

   [229](1960) 106 CLR 186.

   [230]See (1933) 49 CLR 242 at 250.

   [231](1960) 106 CLR 186 at 194-196.

   [232](1960) 106 CLR 186 at 196.

   [233](1960) 106 CLR 186 at 196-197.

2. In Spratt v Hermes[234], Barwick CJ was wary of interpreting the Constitution as if Ch III were "inapplicable to territories", but concluded that "[t]he Commonwealth may create territorial courts without complying with the requirements of s 72"[235].  Kitto J said in that case[236]:

   "[T]he first five Chapters of the Constitution belong to a special universe of discourse, namely that of the creation and the working of a federation of States, with all the safeguards, inducements, checks and balances that had to be negotiated and carefully expressed in order to secure the assent of the peoples of the several Colonies, with their divers interests, sentiments, prejudices, ambitions and apprehensions, to unite in the federation. When Chap VI is reached, and it is found that s 122 gives the Parliament a general power to make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed under the authority of the Commonwealth or otherwise acquired by it, a change to a fundamentally different topic is perceived. The change is from provisions for the self-government of the new federal polity to a provision for the government by that polity of any community which comes under its authority while not being 'a part of the Commonwealth'."

   Kitto J went on to say[237]:

   "[N]o provision of [Ch III] is to be interpreted as intending to reduce the generality of the power conferred by s 122 to make laws for inter alia the exercise of that judicial power which attaches to the Commonwealth, not in virtue of its character as the central polity of the federation and therefore in respect of the federated area, but in virtue of its responsibility for the entire (non-federal) government of a community made subject in all respects to its authority."

   [234](1965) 114 CLR 226.

   [235](1965) 114 CLR 226 at 248.

   [236](1965) 114 CLR 226 at 250.

   [237](1965) 114 CLR 226 at 251.

3. Menzies J considered a submission that s 122 applied only to territories outside "the Federal System", and rejected it[238].

   [238](1965) 114 CLR 226 at 269-271.

4. Teori Tau v The Commonwealth[239] was concerned with the acquisition of property within a territory and required the Court to decide whether such acquisition must be on just terms. The Court (Barwick CJ, McTiernan, Kitto, Menzies, Windeyer, Owen and Walsh JJ) held that s 122 was not to be read as subject even to s 51(xxxi), one of the few express and guaranteed rights in the Constitution[240]:

   "Section 51 is concerned with what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States. Section 122 is concerned with the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power. The grant of legislative power by s 122 is plenary in quality and unlimited and unqualified in point of subject matter. In particular, it is not limited or qualified by s 51(xxxi) or, for that matter, by any other paragraph of that section.

   While the Constitution must be read as a whole and as a consequence, s 122 be subject to other appropriate provisions of it as, for example, s 116, we have no doubt whatever that the power to make laws providing for the acquisition of property in the territory of the Commonwealth is not limited to the making of laws which provide just terms of acquisition."

   [239](1969) 119 CLR 564.

   [240](1969) 119 CLR 564 at 570.

5. In this case it is unnecessary for me to form or state any view about the breadth of the proposition which I have just set out. For present purposes it is sufficient to note that this is another instance of the extensive operation accorded by the Court to s 122.

6. Teori Tau v The Commonwealth was considered in Newcrest Mining (WA) Ltd v The Commonwealth[241], which was concerned with mining leases over land in the Northern Territory.  Commonwealth legislation purported to operate on the land contained within those leases.  A majority of the Court (Toohey, Gaudron, Gummow and Kirby JJ) held[242] that s 51(xxxi) fettered the Commonwealth's legislative power generally, while three Justices of the majority (Gaudron, Gummow and Kirby JJ) would have overruled Teori Tau v The Commonwealth and found[243] that s 51(xxxi) fettered s 122 as well. Toohey J, however, thought "it would be a serious step to overrule a decision which has stood for nearly thirty years and which reflects an approach which may have been relied on in earlier years"[244].  His Honour was therefore unwilling to overrule it.

   [241](1997) 190 CLR 513.

   [242](1997) 190 CLR 513 at 560 per Toohey J, 561 per Gaudron J, 597-598 per Gummow J, 652 per Kirby J.

   [243](1997) 190 CLR 513 at 561 per Gaudron J, 597-598, 600 per Gummow J, 652 per Kirby J.

   [244](1997) 190 CLR 513 at 560.

7. In Capital Duplicators Pty Ltd v Australian Capital Territory[245], the Court was asked whether Australian Capital Territory laws imposing fees for wholesale and retail licences, which were related to the value of goods sold, were an imposition of an "excise" within the meaning of s 90 of the Constitution. A majority of the Court (Brennan, Deane, Toohey and Gaudron JJ, Mason CJ, Dawson and McHugh JJ dissenting) held that they were, and effectively therefore that s 122 was to be read as subject to s 90 which confers exclusive power over excise and certain other imposts upon the Commonwealth.

   [245](1992) 177 CLR 248.

8. Brennan, Deane and Toohey JJ said that one of the objectives of federation was "the creation of a free trade area embracing the geographical territory of the uniting Colonies, that is, the territory of the Colonies which became the Original States of the Commonwealth on its establishment on 1 January 1901"[246].  Their Honours pointed out[247] that the Australian Capital Territory was surrendered to, and accepted by, the Commonwealth.  They said[248]:

   "It would be surprising if the surrender of part of a State to the Commonwealth and its acceptance by the Commonwealth pursuant to s 111, whilst leaving the territory as part of the Commonwealth, removed it from the operation of the constitutional provisions designed to create and maintain the free trade area."

   [246](1992) 177 CLR 248 at 274.

   [247](1992) 177 CLR 248 at 275.

   [248](1992) 177 CLR 248 at 276.

9. Their Honours then considered whether the Commonwealth could delegate its exclusive power with respect to excise, concluding that what had occurred there was not a delegation of authority, but a creation of a legislature with its own powers not subject to Commonwealth review.  They did not doubt, however, that a relevant power existed[249]: "the [Commonwealth] Parliament must, if it wishes to override the [territory's] enactment, pass a new law to achieve that result". Gaudron J, the fourth Justice in the majority, was of the view that s 122 could not undermine the free-trade area created at federation[250]:

   "One constitutional consequence of the fact that the Internal Territories [ie the Northern and Australian Capital Territories] form part of the geographical area that is the Commonwealth of Australia is that s 122, as it relates to them, must yield to a constitutional provision which mandates a situation for the whole of the Commonwealth. Thus, for example, s 122 must yield to s 118 which requires that '[f]ull faith and credit ... be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.'"

   [249](1992) 177 CLR 248 at 283.

   [250](1992) 177 CLR 248 at 288.

10. The opinion of the dissenting judges in Capital Duplicators is not inconsistent with the notion of an unqualifiedly plenary power under s 122 as it had been held in previous cases. Mason CJ, Dawson and McHugh JJ said this[251]:

    "[T]he imposition by a territory legislature, pursuant to a grant of legislative power by the Parliament, of duties of excise in the territory is not prohibited by s 90. That is because the territory legislature, in imposing such duties, would be exercising legislative power which is referable to, derived from and part of the power of the Parliament which is made exclusive by s 90."

    [251](1992) 177 CLR 248 at 263.

11. The last case to which reference should be made is the one particularly sought to be relied on by the plaintiffs, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame[252].  It is true that there are statements in that case to the effect that the relations between the Commonwealth and persons in a territory are different from the relations between the Commonwealth and persons from a State[253]:

    "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."

    [252](2005) 222 CLR 439.

    [253](2005) 222 CLR 439 at 457 [30] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ.

12. It does not follow, however, that the territories power is in some way to be regarded as necessarily limited because of a difference between the history of a territory and its relations with Australia, and the history of the Colonies of Australia and their relations with the Imperial power and one another.  The Commonwealth will inevitably generally enjoy much greater power with respect to territories than it does with respect to the States: as Kitto J observed in Spratt v Hermes[254], the first five Chapters of the Constitution provide for a federation of States, with various "safeguards, inducements, checks and balances", whereas s 122, in Ch VI, provides, not for the self-government of the federal polity, but for government by that polity.  As was also said in Ame[255]:

    "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."

    [254](1965) 114 CLR 226 at 250-251.

    [255](2005) 222 CLR 439 at 457 [30] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ.

13. Ame, in any event, is distinguishable from the present case in several respects.  There was, both locally[256] and on the part of Australia, a clear constitutional and legislative intent that the former Territory enjoy full independence: s 4 of the Papua New Guinea Independence Act 1975 (Cth) provided that Australia "ceases to have any sovereignty, sovereign rights or
    

    [256]See Ame (2005) 222 CLR 439 at 448 [9]-[10], 449-451 [13]-[14], where relevant provisions of the Papua New Guinea Constitution are considered.

    [257](2005) 222 CLR 439 at 447 [8] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ.

    rights of administration in respect of or appertaining to the whole or any part of Papua New Guinea"[257].  There is no similar provision, or anything even approaching it, in the case of Norfolk Island.

14. None of the cases can avail the plaintiffs.

    Conclusion and orders

15. The questions reserved for the Full Court should be answered as follows:

    1.Is s 3 of the Norfolk Island Amendment 2004 (Cth), insofar as it gives effect to:

    (a)cll 1, 3 and 4 in Pt 1 of Sched 1 to that Act; and

    (b)cl 5 in Pt 1 of Sched 1 to that Act to the extent that that clause inserts into the Act the following new provisions:

    (i)par 39A(1)(b);

    (ii)par 39A(2)(a);

    (iii)s 39C; and

    (iv)the definition of "Returning Officer" in s 39D,

    valid?

    Yes.

    2.Who should pay the costs in respect of the special case?

    The plaintiffs.