Bennett v Commonwealth of Australia [2007] HCA 18

Bennett v Commonwealth of Australia [2007] HCA 18

Section 3 of the Norfolk Island Amendment Act 2004 (Cth) is valid to the extent challenged. It is authorised by s 122 of the Constitution, which confers a plenary power to make laws for the government of any territory, unlimited by requirements to provide franchise to all residents or by historical forms of local community self-government. There is no constitutional prohibition on requiring Australian citizenship for voting for or standing for election to the Legislative Assembly of Norfolk Island, and no implied limitation in s 122 or elsewhere in the Constitution precludes such a requirement.

Parties
Plaintiffs: Geoffrey James Bennett & Ors; Defendant: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
27 April 2007
Procedural Posture
Special Case (reserved Questions) / Full Court Decision and Orders
Outcome
Reserved questions answered; challenged provisions valid; costs ordered against plaintiffs.
Legal Topics
Validity of Commonwealth Legislation, Territories Power Under S 122 of the Constitution, Elections and Franchise—norfolk Island, Self Government of Territories, Requirements for Local Electoral Rights
Constitutional Law (cth) Territories Law Validity of Commonwealth Legislation Territories Power Under S 122 of the Constitution Elections and Franchise—norfolk Island Self Government of Territories Requirements for Local Electoral Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Geoffrey James Bennett & Ors

Plaintiffs

Commonwealth of Australia

Defendant

Procedural Posture

Special Case (reserved Questions) / Full Court Decision and Orders

Legal Issues

  1. 1 Whether section 3 of the Norfolk Island Amendment Act 2004 (Cth) is valid to the extent that it amends the Norfolk Island Act 1979 (Cth) to require Australian citizenship as a necessary qualification for voting for and standing for election to the Norfolk Island Legislative Assembly
  2. 2 Whether such provisions are supported by s 122 of the Constitution
  3. 3 Whether the challenge presents a legal or merely political question

Ratio Decidendi

Section 3 of the Norfolk Island Amendment Act 2004 (Cth) is valid to the extent challenged. It is authorised by s 122 of the Constitution, which confers a plenary power to make laws for the government of any territory, unlimited by requirements to provide franchise to all residents or by historical forms of local community self-government. There is no constitutional prohibition on requiring Australian citizenship for voting for or standing for election to the Legislative Assembly of Norfolk Island, and no implied limitation in s 122 or elsewhere in the Constitution precludes such a requirement.

Court Disposition

Reserved questions answered; challenged provisions valid; costs ordered against plaintiffs.

Orders

  • Section 3 of the Norfolk Island Amendment Act 2004 (Cth) is valid insofar as it gives effect to Items 1, 3 and 4 in Part 1 of Schedule 1 and Item 5 in Part 1 of Schedule 1 to the extent that it inserts new provisions to the Principal Act (namely paragraph 39A(1)(b), paragraph 39A(2)(a), section 39C, and the...
  • The plaintiffs are to pay the costs in respect of the special case.