Jones v The Norfolk Island and Amateur Sports and Commonwealth Games Association
[2010] NFSC 6
•30 September 2010
SUPREME COURT OF NORFOLK ISLAND
Jones v The Norfolk Island and Amateur Sports and Commonwealth Games Association [2010] NFSC 6
Citation: Jones v The Norfolk Island and Amateur Sports and Commonwealth Games Association [2010] NFSC 6 Parties: PHILLIP DARRELL JONES and NEIL CLIVE TALL v THE NORFOLK ISLAND AMATEUR SPORTS AND COMMONWEALTH GAMES ASSOCIATION and THE ADMINISTRATION OF NORFOLK ISLAND File number(s): SC 7 of 2010 Judge: JACOBSON CJ Date of judgment: 30 September 2010 Catchwords: CITIZENSHIP – construction of the Constitution of the Commonwealth Games Federation – whether plaintiffs citizens of Norfolk Island for the purpose of that Constitution in order to be eligible to represent Norfolk Island in lawn bowls Legislation: Acts Interpretation Act 1901 (Cth) s 17
Australian Citizenship Act 2007 (Cth) ss 3, 11, 12
Immigration Act 1980 (NI) s 29
Norfolk Island Act 1979 (Cth) s 38(d)Cases cited: Christian v Griffiths [2010] NFSC 5 referred to
Sykes v Cleary (1992) 176 CLR 77 referred toDate of hearing: 29 September 2010 Date of last submissions: 29 September 2010 Place: Sydney (with telephone link to Norfolk Island) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 58 Counsel for the Plaintiffs: Mr A Cook QC Counsel for the First Defendant: The First Defendant did not appear Counsel for the Second Defendant: Mr W Richards
IN THE SUPREME COURT OF NORFOLK ISLAND
GENERAL DIVISION
SC 7 of 2010
BETWEEN: PHILLIP DARRELL JONES
First PlaintiffNEIL CLIVE TALL
Second PlaintiffAND: THE NORFOLK ISLAND AMATEUR SPORTS AND COMMONWEALTH GAMES ASSOCIATION
First DefendantTHE ADMINISTRATION OF NORFOLK ISLAND
Second Defendant
JUDGE:
JACOBSON CJ
DATE OF ORDER:
30 SEPTEMBER 2010
WHERE MADE:
SYDNEY (WITH TELEPHONE LINK TO NORFOLK ISLAND)
THE COURT ORDERS THAT:
1.The declaration and orders sought in paragraphs 1, 2 and 3 of the originating application be refused.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE SUPREME COURT OF NORFOLK ISLAND
GENERAL DIVISION
SC 7 of 2010
BETWEEN: PHILLIP DARRELL JONES
First PlaintiffNEIL CLIVE TALL
Second PlaintiffAND: THE NORFOLK ISLAND AMATEUR SPORTS AND COMMONWEALTH GAMES ASSOCIATION
First DefendantTHE ADMINISTRATION OF NORFOLK ISLAND
Second Defendant
JUDGE:
JACOBSON CJ
DATE:
30 SEPTEMBER 2010
PLACE:
SYDNEY (WITH TELEPHONE LINK TO NORFOLK ISLAND)
REASONS FOR JUDGMENT
Introduction and Overview
The plaintiffs, Mr Phillip Darrell Jones and Mr Neil Clive Tall, are accomplished lawn bowlers of international standing who were selected to represent Norfolk Island in the bowling competition at the Commonwealth Games (“the Games”) which are soon to commence in Delhi.
The first defendant, The Norfolk Island Amateur Sports and Commonwealth Games Association (“the Association”), is apparently responsible for carrying out entry and accreditation requirements in respect of participation in the Games by Norfolk Island athletes.
It appears from the evidence before me that prior to the closing date for accreditation, officers of the Association informed the plaintiffs that they were eligible to represent Norfolk Island at the Games. However, shortly after the closing date for accreditation on 15 June 2010, both of the plaintiffs were informed by officers of the Association that they were not accredited. The reason they were said not to be eligible appears in emails dated 17 June 2010 and 16 July 2010 from the Operations Director of the Commonwealth Games Federation (“the Federation”) in London.
The Constitution of the Federation (dated October 2009) provides that the Federation is the supreme authority in all matters concerning the Commonwealth Games. The Federation is not a party to these proceedings but the Constitution of the Federation is in evidence. Article 24 of the Constitution governs eligibility to compete in the Games. It provides, inter alia, that:-
… as a condition of entry to compete in the Commonwealth Games, all competitors must be citizens or subjects of the Commonwealth Country that enters them …
By an originating application filed on 16 September 2010, the plaintiffs seek a declaration that each of them is lawfully entitled “to be regarded, and designated, as citizens of the political entity known as Norfolk Island”. They also seek injunctive relief against the Association, and the second defendant, the Administration of Norfolk Island (“the Administration”) restraining them from advising any person or organisation that the plaintiffs are not lawfully entitled to be regarded and designated as citizens of Norfolk Island.
The plaintiffs also seek mandatory injunctive relief against the Association and the Administration requiring them to advise any relevant persons or organisations that Mr Jones and Mr Tall are entitled to be regarded and designated as citizens of Norfolk Island.
The Honourable Adrian Cook RFD, QC, who appears for the plaintiffs emphasises that Mr Jones and Mr Tall are not seeking a declaration that they are eligible to compete in the Games. Rather, the approach which Mr Cook takes in the application is to recognise that if the plaintiffs succeed in obtaining the declaration, they would need to take further steps in order to enable them to compete in the Games.
Mr Cook accepts that if I were to make the declaration and grant the injunctive relief, it would still be necessary for the plaintiffs to pursue the matter with the Association and the Federation.
Mr Cook points out that Norfolk Island has been designated as a Commonwealth Country for the purposes of the Games and that Norfolk Island athletes have competed in the last six Games, that is from 1986, as representatives of Norfolk Island.
The substance of Mr Cook’s argument focuses upon the requirement of citizenship stated in Article 24(1) of the Constitution of the Federation. He submits that a distinction is to be drawn between the notion of citizenship and that of residency. He also submits that the evidence establishes that Mr Jones and Mr Tall are entitled to be regarded as citizens of Norfolk Island because it is a territory of Australia and they are citizens of Australia.
Before considering Mr Cook’s submissions, I should set out the relevant provisions of the Constitution of the Federation and the Regulations and give a description of the evidence.
The Constitution of the Federation
Article 2 provides:
The objects of the Federation are:
1.To promote the Commonwealth Games, which shall be held every four years and shall be open to eligible competitors representing Affiliated CGAs.
“Affiliated CGAs” is defined in Article 31 as follows:
Affiliated CGAs means those sports bodies of Commonwealth Countries (including Commonwealth Games Associations, National Olympic Committee or other multi-sports body formed by a Commonwealth Country) which become affiliated to the Federation in accordance with Article 10 of this Constitution. [Bold in original].
Article 3 states:
The Federation is the supreme authority in all matters concerning the Commonwealth Games. Responsibility is vested in the Federation for the direction, policy and control of the Commonwealth Games and such other events and activities organised under Article 2 above.
Article 10(1) provides:
The Federation in General Assembly shall consider and, if thought fit, approve applications for affiliation from appropriate sports bodies of Commonwealth Countries and upon becoming affiliated to the Federation such sports bodies shall be referred to as Affiliated CGA.
The expression “Commonwealth Countries” is defined in Article 31 as follows:
Commonwealth Countries means all Commonwealth countries and any colonies or dependent or associated territories of Commonwealth countries and Commonwealth Country means any of them. [Bold in original].
The organs of the Federation are the General Assembly which is constituted by Article 12, and the Executive Board which is constituted by Article 13.
Article 24 deals with eligibility. It is an important provision and I will set it out in full:
1. Subject to Article 24(2), as a condition of entry to compete in the Commonwealth Games, all competitors must be citizens or subjects of the Commonwealth Country that enters them and must:
(a) not be currently under disqualification or suspension by the Federation, or their respective Affiliated CGA or IF or under the World Anti Doping Code;
(b) comply with all applicable rules and regulations of the Federation, their respective IFs and the World Anti Doping Code as may be modified and applied by the Federation to ensure that the overriding principles of the Commonwealth Games are observed.
2. Subject to Article 24(3), where a competitor was born in a Commonwealth Country that has common citizenship/passport with other Commonwealth Countries, the competitor may initially represent either the competitor's Commonwealth Country of birth; or the Commonwealth Country of birth of his or her father or mother that shares the same citizenship/passport.
3. After having represented one Commonwealth Country at the Commonwealth Games, a competitor may not represent another Commonwealth Country unless he or she receives the approval of the Federation, the relevant IF and the Affiliated CGAs of the two Commonwealth Countries concerned.
4. It is the responsibility of all Affiliated CGAs to ensure that their competitors are fully aware of and comply with the eligibility rules of the Federation.
5. The Executive Board shall have the power to waive the provisions of Articles 24 (1-3) in its discretion.
Article 27 deals with dispute resolution. It provides for the establishment of a Federation Court. Article 27(3) states that subject to Article 28, the Federation Court shall be authorised to determine such disputes as are determined to be within its jurisdiction.
Article 28 provides for the mediation or arbitration of disputes. It is as follows:
1. Any dispute arising under or in connection with the interpretation of this Constitution or the Regulations shall be solely and exclusively resolved by mediation or arbitration by the Court of Arbitration for Sport according to the Code of Sports-Related Arbitration.
2. The decision of the Court of Arbitration for Sport shall be final.
3. All mediations and arbitrations conducted in accordance with Article 28(1) will be conducted in accordance with English law.
The Regulations
The definitions in the Constitution of the Federation apply to the Regulations in the Constitution of the Federation. There is a definition in Article 31 of the term “region”. It is defined to mean one of the geographical regions set out in Regulation 5.
Regulation 5 refers to six separate regions which include “Oceania”. Australia is within the region of Oceania. So too is Norfolk Island which is listed under the Oceania region in Regulation 5.
The relevance of this for present purposes seems to be marginal because the division into regions seems to arise only in connection with the election of Executive Board members under Regulation 3. Nevertheless, the specification of Norfolk Island as a region of Oceania in Regulation 5 seems to be an acknowledgment that Norfolk Island is a separate polity from Australia for certain purposes relating to the carrying on of the Games.
The evidence
Mr Jones and Mr Tall are Australian citizens by birth. Each holds a current Australian passport.
Each of the plaintiffs has resided on Norfolk Island for in excess of nine years. They have enrolled as voters for elections to the Legislative Assembly of Norfolk Island and have voted in at least three elections.
Mr Jones stood as a candidate for election to the Legislative Assembly in March 2010. No objection was taken to his candidature on the ground that he did not satisfy the relevant residency requirements.
Both of the plaintiffs have worked and conducted businesses in Norfolk Island during the time of their residency and have held permits to reside on Norfolk Island. Each holds a General Entry Permit issued under the Immigration Act 1980 (NI) (“Immigration Act”).
Neither of them holds a Declaration of Residency under s 29 of the Immigration Act but each intends to apply for a Declaration and to continue to reside on Norfolk Island
Mr Jones owns a dwelling house on Norfolk Island and lives in the house. Mr Tall rents his accommodation.
Both of the plaintiffs have represented Norfolk Island at very high levels in international bowling competitions.
Mr Jones has achieved a world ranking of 17 as a singles player in bowls and has represented Norfolk Island in championships including the World Bowls Championships and the South Pacific Games Championship.
Mr Tall has represented Norfolk Island in international competitions including the World Bowls Championships and, most significantly, in the Lawn Bowls Competition at the Commonwealth Games in Melbourne in 2006.
After he was selected as a member of the Norfolk Island team in 2010, Mr Tall ceased his employment so as to be able to engage in extensive practice to prepare for competition at the Delhi Games.
Each of the plaintiffs regards their participation in the Games as a very high honour and is most anxious to be able to compete on behalf of Norfolk Island. Both have contributed to the social and community life of Norfolk Island. Their contributions include voluntary coaching services in the sport of bowling.
The evidence before me includes a memorandum dated 26 April 2010 from legal counsel for the Administration dealing with the question of eligibility to compete in the Commonwealth Games. The memorandum addresses the question of whether a person is a “citizen” or “subject” of Norfolk Island under Article 24 of the Constitution of the Federation by reference to the residency provisions of the Immigration Act.
The memorandum seems to have been considered by the Federation in coming to the view that Mr Jones and Mr Tall are not eligible to participate in the Games. The relevant portion of the email from the Operations Director of 16 July 2010 is as follows:
The decision of the Executive Board to which you allude was based on evidence presented by the Norfolk Island CGA and took into account Article 24 of the CGF Constitution (eligibility) and all associated policies. The fundamental principle of Article 24 is that all competitors must be a citizen of the Commonwealth country that enters them and following recent submissions to the CGF by the Norfolk Island CGA and the Norfolk Island Administration it was determined that for someone to be deemed a citizen of Norfolk Island they must hold permanent residence.
Discussion
Mr Cook relies on the concept of citizenship under the Australian Citizenship Act 2007 (Cth) (“Citizenship Act”). He points out, correctly, that at common law, the question of whether a person is a citizen of a particular State is determined by the municipal law of that State: Sykes v Cleary (1992) 176 CLR 77 at 105-106, 131 and 135.
The definition of “Australia” in s 3 of the Act provides that when used in a geographical sense, Australia includes the external Territories.
Section 11(1) states that the Act extends to the external Territories. The effect of this when read with s 17 of the Acts Interpretation Act 1901 (Cth) is that the Citizenship Act extends to Norfolk Island as an external Territory.
Section 11(3) of the Citizenship Act provides:
It is the intention of the Parliament that this Act apply to the exclusion of any provisions of a law of a State or Territory that provide for Australian citizenship (whether the law was made before or after the commencement day.)
It is clear from this that the Citizenship Act covers the field of Australian citizenship. The provisions of the Immigration Act of Norfolk Island which were referred to in argument are concerned with a different question, namely the question of residency.
It is also clear enough that Mr Jones and Mr Tall are Australian citizens. It would seem that they are Australian citizens under s 12, having been born in Australia and satisfying the other requirements of that section.
Although the Citizenship Act applies to Norfolk Island, it does not seem to me to follow that a citizen of Australia is necessarily a citizen of Norfolk Island. The extension of the Citizenship Act to the external Territories does not seem to me to carry with it the concept of citizenship of the Territory as a separate polity.
If Mr Cook’s proposition is correct, it would follow that every citizen of Australia is also a citizen of Norfolk Island. I do not see that this can be correct as a matter of general principle.
In any event, the proposition for which Mr Cook contends has to be considered in the context in which it appears in the Constitution of the Federation. The essential question which arises is the meaning of the phrase “citizens or subjects of the Commonwealth Country that enters them” in the Games.
That phrase in Article 24 needs to be considered in its full context, including the terms of Article 2(1) which states that the objectives of the Federation are to promote the Games which “shall be open to eligible competitors representing Affiliated CGAs”.
What underlies this, as the real question in issue, is the basis on which Norfolk Island is entitled to enter its athletes as separate representatives of Norfolk Island rather than as representatives of Australia. That it is entitled to do so is not in doubt, but the question is one of construction and interpretation of the Constitution of the Federation and the Regulations of the Federation.
That question cannot be decided in the absence of the Federation as a party to this proceeding.
In any event, as I have said, Article 28(1) provides that any dispute arising under or in connection with the interpretation of the Constitution of the Federation or the Regulations is to be solely and exclusively resolved by mediation or arbitration by the Court of Arbitration for Sport (“CAS”).
CAS is a body which is established to deal with disputes such as this in a very speedy manner. It often resolves disputes in connection with matters arising in relation to the Olympic Games and the Commonwealth Games and it is equipped to do so with access to highly experienced practitioners who act as mediators or arbitrators. It is able to convene mediations and arbitrations as a matter of urgency at very short notice.
Mr Cook submitted that both of the plaintiffs have participated in community affairs and have been accepted and associated into the Norfolk Island community. Also, both hold General Entry Permits which are only granted after consideration of the manner in which they are involved in the community.
Also, as I said earlier, Mr Jones has stood as a candidate for election and Mr Tall appears to be entitled to do so. This suggests that they satisfy the requirement of s 38(d) of the Norfolk Island Act 1979 (Cth) that a person may only qualify to be a candidate for election to the Legislative Assembly if they have been ordinarily resident in the Territory for a period of five years immediately preceding the date of nomination: see Christian v Griffiths [2010] NFSC 5 (Lander J).
That may well be a matter which bears upon the question of whether the plaintiffs are “citizens” or “subjects” of Norfolk Island in accordance with Article 24 of the Constitution of the Federation or eligible to represent Norfolk Island in accordance with Article 2(1). However, it is a matter which arises under or in connection with the interpretation of the Constitution of the Federation and therefore falls within Article 28(1).
I should also add that there is a further difficulty raised by the form of the declaratory relief which is sought. It is a declaration that the plaintiffs are lawfully entitled “to be regarded and designated as citizens”. The meaning of this is not entirely clear but the effect of it seems to be that the plaintiffs seek to say that they are entitled for the purpose of Article 24(1) to be regarded as citizens. This again points to the question of construction to which I have referred and the absence of the Federation as a party.
Similar difficulties arise in relation to the claims for injunctive relief.
The question of whether Mr Jones and Mr Tall are “subjects” of Norfolk Island was not argued.
I do not consider it is open to me to refer the matter to CAS but it is clear that Mr Jones and Mr Tall can do so if they are so advised.
Orders
The order I will make is that the declaration and orders sought in paragraphs 1, 2 and 3 of the originating application are refused.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 1 October 2010
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