GLEESON CJ, GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ
ANDREW CHARLES THEOPHANOUS PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA DEFENDANT
Theophanous v Commonwealth of Australia [2006] HCA 18 11 May 2006 M22/2005
ORDER
The questions set out in the Amended Case Stated are answered as follows:
(1)Q. Is Pt 2 of the Crimes (Superannuation Benefits) Act 1989 invalid in so far as it purports to authorise the making by the appropriate court of a superannuation order under s 19 of the Act on the ground that Pt 2 purports to confer federal jurisdiction on State and Territory Courts that is contrary to Chapter III of the Constitution?
A.Unnecessary to answer.
(2)Q. Is Pt 2 of the Crimes (Superannuation Benefits) Act 1989 invalid in so far as it purports to authorise the making by the appropriate court of a superannuation order under s 19 of the Act on the ground that Pt 2 is a law with respect to the acquisition of property otherwise than on just terms?
A.Pt 2 in its application to the pending application for a superannuation order against the plaintiff is a valid law of the Commonwealth.
(3)Q. Who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court?
A.The plaintiff.
Representation:
G R Kennett with R M Niall for the plaintiff (instructed by Zindilis Barristers & Solicitors)
D M J Bennett QC, Solicitor-General of the Commonwealth with C J Horan 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
Theophanous v Commonwealth of Australia
Constitutional Law (Cth) – Acquisition of property – Plaintiff formerly a member of the House of Representatives of the Parliament of the Commonwealth – Plaintiff entitled to a retirement allowance in accordance with s 18 of the Parliamentary Contributory Superannuation Act1948 (Cth) ("Superannuation Act") – Plaintiff convicted after trial on indictment of offences answering the description of "corruption offence" within s 2(1) of the Crimes (Superannuation Benefits) Act 1989 (Cth) ("CSB Act") – Commonwealth Director of Public Prosecutions applied to the County Court of Victoria for a superannuation order in respect of the plaintiff pursuant to s 17 of the CSB Act – Effect of superannuation order would include cessation of all rights of and benefits payable to or in respect of the plaintiff under the Superannuation Act – Whether Pt 2 of the CSB Act invalid as providing for the acquisition of property otherwise than on just terms – Whether the acquisition effected by Pt 2 of the CSB Act of a kind with which "just terms" is an inconsistent or incongruous notion – Whether the operation of Pt 2 of the CSB Act reasonably incidental to the exercise of a head of power other than s 51(xxxi) – Whether the operation of Pt 2 of the CSB Act a reasonably…
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
AGLC
Theophanous v The Commonwealth [2006] HCA 18
Case
[2006] HCA 18
Decision Date
CaseChat Overview and Summary
The case of *Theophanous v The Commonwealth* involved a dispute concerning the validity of Part 2 of the *Crimes (Superannuation Benefits) Act 1989* (Cth) (the CSB Act). The plaintiff, a former member of the House of Representatives, was entitled to a retirement allowance under the *Parliamentary Contributory Superannuation Act 1948* (Cth). Following his conviction for offences described as "corruption offences" under the CSB Act, the Commonwealth Director of Public Prosecutions sought a superannuation order under section 17 of the CSB Act, which would have the effect of ceasing all rights to and benefits payable to the plaintiff under the Superannuation Act. The High Court of Australia was required to determine the constitutional validity of this legislative scheme.
The central legal issues before the High Court were whether Part 2 of the CSB Act was invalid on several grounds. Firstly, it was questioned whether the Act provided for the acquisition of property otherwise than on just terms, contrary to section 51(xxxi) of the Constitution. Secondly, the Court considered whether the acquisition of property effected by Part 2 was of a kind where the concept of "just terms" was inconsistent or incongruous. Thirdly, the Court examined whether the operation of Part 2 was reasonably incidental to a head of Commonwealth power other than section 51(xxxi). Finally, the Court assessed whether the operation of Part 2 was a reasonably proportional consequence of the plaintiff's breach of the law.
The High Court, comprising Gleeson CJ, Gummow, Kirby, Hayne, Heydon, and Crennan JJ, determined that Part 2 of the CSB Act, in its application to the pending superannuation order against the plaintiff, was a valid law of the Commonwealth. The Court did not find it necessary to answer the question regarding the conferral of federal jurisdiction on State and Territory Courts contrary to Chapter III of the Constitution. The Court ordered that the plaintiff pay the costs of the Stated Case and its hearing before the Full High Court.
Orders
Orders of the court
The questions set out in the Amended Case Stated are answered as follows:
(1) Q. Is Pt 2 of the Crimes (Superannuation Benefits) Act 1989 invalid in so far as it purports to authorise the making by the appropriate court of a superannuation order under s 19 of the Act on the ground that Pt 2 purports to confer federal jurisdiction on State and Territory Courts that is contrary to Chapter III of the Constitution?
A. Unnecessary to answer.
(2) Q. Is Pt 2 of the Crimes (Superannuation Benefits) Act 1989 invalid in so far as it purports to authorise the making by the appropriate court of a superannuation order under s 19 of the Act on the ground that Pt 2 is a law with respect to the acquisition of property otherwise than on just terms?
A. Pt 2 in its application to the pending application for a superannuation order against the plaintiff is a valid law of the Commonwealth.
(3) Q. Who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court?
A. The plaintiff.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
GLEESON CJ
GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ
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Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ