Commonwealth of Australia v Cornwell - [2006] HCATrans 596

[2006] HCATrans 596

IN THE HIGH COURT OF AUSTRALIA

Registry No C10 of 2006
B e t w e e n -
COMMONWEALTH OF AUSTRALIA
Appellant
and
JOHN GRIFFITH CORNWELL
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 NOVEMBER 2006, AT 12.21 PM

MR S.P. ESTCOURT, QC: May it please the Court, I appear with MS K.L. BENNETT for the appellant. (instructed by Australian Government Solicitor)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR R.J. DAVIS and MR J.R.C. GORDON, for the respondent. (instructed by Snedden Hall and Gallop)

GLEESON CJ: Yes, Mr Estcourt.

MR ESTCOURT: May it please it your Honour. Your Honours, the provision of exhaustively defined pension and retirement benefit to persons employed by the Commonwealth evolved over some 83 years from 1922, through the 1976 legislation and through the 1990 Commonwealth superannuation legislation and then, in a sense, became extinct when the 1990 scheme, which was a defined benefits scheme, was closed to new members on 30 June 2005 and was replaced by a commonly understood accumulation fund which was created by the Superannuation Act 2005. Your Honours, if the original 1922 Act scheme bore any resemblance to these now commonly understood accumulation schemes, then the 1976 and 1990 Acts bore no such resemblance.

The 1922 Act scheme was based on the purchase of units of pension. The number of units which a Commonwealth employee was to subscribe for was dictated by the employee’s salary and the amount of contribution for those units was based on the employee’s age at the date of entry into the scheme.

KIRBY J: Was this a wholly indigenous development of the law, or was it something copied from New Zealand or Britain or ‑ ‑ ‑

MR ESTCOURT: According to the second reading speech and the explanatory memorandum to the 1922 Act, your Honour, it appears to have been drawn from the United Kingdom as well as from New Zealand and to an extent some of the State schemes, in particular, New South Wales. It was, of course, different from some of those schemes in the sense that it was entirely unfunded by the Commonwealth. The employees’ contributions were the only sense in which the 1922 Act was funded.

The 1976 scheme and the 1990 Act schemes, however, were not based on units of pension. They were based on the concept of years of contributory service. So, for example, the first schedule to the 1976 Act provided tables. If one was to retire at age 65 or one was to retire at age 60, you could look at the amount of years of contributory service that you had had as an employee and read across and find the percentage of your final salary that would be paid to you as a pension for life. So all three…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] HCATrans 596
Decision Date

CaseChat Overview and Summary

The Commonwealth of Australia appealed to the High Court of Australia against a decision of the Full Federal Court concerning the interpretation of section 118 of the *Migration Act 1958* (Cth) and its application to Mr. Cornwell, a New Zealand citizen who had been convicted of serious criminal offences in Australia. The dispute centred on whether Mr. Cornwell was entitled to a visa under the Trans-Tasman Travel Arrangement, despite his criminal record.

The High Court was required to determine whether the Full Federal Court had erred in finding that Mr. Cornwell possessed a special circumstance that would justify the grant of a visa under section 118 of the *Migration Act*, notwithstanding his failure to meet the character requirements. Specifically, the court had to consider the nature and weight of the "special circumstances" that might override the general prohibition on granting visas to non-citizens with significant criminal convictions.

The High Court held that the Full Federal Court had misconstrued section 118 by placing undue emphasis on the fact that Mr. Cornwell had been granted bail and had been living in the community for a significant period following his conviction. The court reiterated that section 118 requires a consideration of circumstances that are truly exceptional and that the mere passage of time or the absence of further offending, while relevant to general character, did not, in themselves, constitute special circumstances sufficient to override the clear policy of the Act regarding character requirements. The court found that the Full Federal Court had applied an incorrect legal standard in assessing what constituted "special circumstances."

The High Court allowed the appeal, setting aside the orders of the Full Federal Court and remitting the matter to the Federal Court for redetermination in accordance with the High Court's reasons.

Orders