Bennett v Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Hayne,Heydon,Crennan JJ,Kirby J,Callinan J
• Judgment Date: 27 April 2007
• Neutral Citation: 2007-0427 HCA A,[2007] HCA 18
• Court: High Court
• Docket Number: S111/2006
• Date: 27 April 2007

[2007] HCA 18

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, HayneCallinanHeydon and Crennan JJ

S111/2006

Geoffrey James Bennett & Ors

Appellant

and

Commonwealth of Australia

Respondent

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)

Norfolk Island Amendment Act 2004 (Cth), s 3, Sched 1.

Norfolk Island Act 1979 (Cth), ss 38–39D.

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.

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.

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.

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.

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.

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 Eastman4 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 Ame5 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’.

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....