Bennett v Commonwealth of Australia

Bennett v Commonwealth of Australia - [2007] HCA 18 - HCA 2007 case summary — Zoe

[17]

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.
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.
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].
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.
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.

[19]

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.
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. Additional land was cleared. Buildings were constructed, and roads were extended. Animals, including cattle, horses, sheep, pigs and goats were introduced. Some wool was exported to New South Wales. The penal settlement came to an end in 1855[6].
By an Act of the Parliament of the United Kingdom of 1843[7] it was enacted that it should be lawful for Her Majesty, by Letters Patent under the Great Seal of the United Kingdom, to sever Norfolk Island from New South Wales, and to annex it to the Colony of Van Diemen's Land. Such severance and annexation were effected, from 29 September 1844, by letters patent dated 24 October 1843.
Before the convicts, their guards, and accompanying settlers evacuated Norfolk Island in 1855, it had been decided by the United Kingdom Government that, upon their departure, the island would be occupied by the inhabitants of Pitcairn. Pitcairn is a small island about midway between New Zealand and Chile. It was settled in 1790 by a small group of mutineers from HMAV Bounty, who were fugitives from justice, and some Polynesian men and women. On 8 June 1856, the inhabitants of Pitcairn Island arrived on Norfolk Island, having travelled there by arrangement with the Imperial authorities. Some of them later returned to Pitcairn, and something of their subsequent history appears from the recent decision of the Privy Council in Christian v The Queen (The Pitcairn Islands)[8]. The 1976 Report of the Royal Commission into Matters Relating to Norfolk Island[9] stated that "when the 194 Pitcairn Islanders arrived at Norfolk on 8 June 1856, they came ... as new tenants of an Island with valuable and significant developments in the form of roads, bridges, buildings, wharves of sorts and cleared arable land."
By the Australian Waste Lands Act 1855 (Imp)[10] it was provided that it should be lawful for Her Majesty at any time, by Order in Council, to separate Norfolk Island from the Colony of Van Diemen's Land and to make such provision for the Government of Norfolk Island as might seem expedient. In 1965, in Newbery v The Queen[11], Eggleston J, sitting as the Supreme Court of Norfolk Island, held that the 1855 Act authorised the creation of any form of government, representative or non-representative.
By an Order in Council dated 24 June 1856 it was ordered:

[22]

The 1856 Order in Council provided that the Governor for the time being of New South Wales should also be the Governor of Norfolk Island. Royal Instructions issued to the Governor of Norfolk Island, dated 24 June 1856, referred to the framing of laws for inhabitants who "are chiefly emigrants from Pitcairn's Island in the Pacific Ocean".
On 14 October 1857, the Governor, Sir William Denison, declared and enacted the "Laws and Regulations for Norfolk Island" which are commonly referred to as the "thirty-nine laws". They were based on the laws by which the families who had moved to Norfolk Island had governed themselves on Pitcairn. The population governed by those laws was fewer than 200. The laws provided for the election of a Chief Magistrate and Councillors. Every person who may have resided on the island for six months, who had attained the age of 20, and who was literate, could vote. The powers of the Chief Magistrate and Councillors were set out. There was provision for juries of Elders (males who had attained 25 years). Attendance of children at school was compulsory. Beer, wine, and spirituous liquor (except for medical purposes, to be administered by the Chaplain) were prohibited.
In 1856, it was the intention of the Imperial authorities that Norfolk Island should be reserved exclusively for the families from Pitcairn and their descendants. However, this policy was later relaxed. In 1864, there were about 260 people on Norfolk Island, with eight family names. By 1900, an increased number of family names reflected some degree of immigration[12]. The departure from the original intention to exclude outsiders and the acquisition of land by settlers not of Pitcairn descent was noted by several official visitors to the island[13]. In 1866, the Governor, acting under instructions from the Secretary of State for Colonies, granted land for the establishment of a Melanesian Mission Station. By 1899, the mission had 210 Melanesian students. The 1976 Royal Commission Report described the Mission as "the wedge which split apart ... the original policy of reserving Norfolk for the Pitcairners."[14]
Towards the end of the 19th century, it was decided that Norfolk Island would be placed under the control of the Government of New South Wales. This, according to an Order in Council of 15 January 1897, was "in prospect of the future annexation of [the] island to the colony of New South Wales, or to any federal body of which that colony may hereafter form part". The new Australian Federation came into being on 1 January 1901, but it seems that at that time it had not been decided whether Norfolk Island would become a part of the State of New South Wales or whether it would become a territory under the authority of the Commonwealth. The Order in Council of 1897 recited that the 1856 Order in Council had been expressed to operate "until further order is made in that behalf by Her Majesty" and declared that Norfolk Island should be administered by the Governor of New South Wales who was empowered, by proclamation published in the New South Wales Government Gazette, to make laws for the peace, order and good government of the island subject to instructions from Her Majesty (ie from the Imperial Government). In Newbery v The Queen[15], Eggleston J said that the practical effect of the 1897 Order was to enable the Governor of New South Wales to legislate in that capacity rather than in his former capacity as Governor of Norfolk Island. The administration of Norfolk Island involved the expenditure of public funds. The provision of services, and infrastructure, could be expensive. The practical reality is reflected in a memorandum to the Governor of New South Wales from the Colonial Treasurer, Mr Reid, dated 13 October 1896, expressing a willingness to advance a certain sum. Mr Reid wrote:

[32]

It was accepted by the plaintiffs that there was, and is, no obligation upon the Parliament, in making a law for the government of Norfolk Island, to provide for self-government. In fact Norfolk Island did not have a substantial measure of self-government until 1979. A law which provided for the government of Norfolk Island by an administration based in Canberra might not now be regarded as a wise or effective law, but it would nonetheless be a law for the government of the Territory. The plaintiffs contended, however, that, in making provision for self-government of Norfolk Island, the Parliament was obliged to enact a law that provided for democratic representation and was not entitled to enact a law that "divide[d] the community by a criterion that has nothing to do with membership of that community." The concept of representation in the concluding words of s 122, though not presently of direct relevance, was said to reinforce this implied limitation upon the apparent generality of the opening words of s 122.
It is important to observe the difference between a political and a legal argument about s 122. No doubt, if the Parliament decides that the most appropriate form of government of a territory is democratic self-government, then the method by which it provides for representation of the people of the territory in the process of self-government will affect the acceptability, and ultimately the success, of the form of government established. While concepts such as self-government, representative government, and democratic process have a minimum content, standards as to their most appropriate forms of expression vary with time and place[24]. To establish a form of self-government that purported to be representative but that provided a system of representation that was manifestly unfair or idiosyncratic might have adverse political consequences within Norfolk Island, or within the wider Australian community. It might be bad administration. It might make the island more difficult to govern. There may be political or administrative arguments against a particular system of self-government, but we are concerned with a question of constitutional power.
The political justification advanced in the Parliament for making Australian citizenship a requirement for participation in the democratic process on Norfolk Island was that this would bring Norfolk Island into line with other Australian legislatures. "The bill", Parliament was told, "removes the right for non-Australian citizens to enrol and stand for election to an Australian legislature. There can be no justification for the continuation of such an anomaly. The Government does not believe that non-Australian citizens should be able to decide what laws will apply to Australian citizens in an Australian community. The Government does not believe that Norfolk Island should, in this respect, be different from all other Australian legislatures."[25]
That political justification for the legislation appears to have provoked a substantial part of the argument for the plaintiffs, the difficulty being to find a legal foundation for such argument. Much emphasis was placed upon the status of Norfolk Island, in and after 1856, as a "distinct and separate settlement". That concept was formulated at a particular time in the island's history but, as a review of that history shows, circumstances, and government policies, have changed over the years. There was a tendency, at times, to identify "the island community" with the descendants of those who came from Pitcairn in 1856 but, again, the facts are more complex. Those descendants are a minority of the island's permanent population. However distinct and separate the people, or some of the people, of the island may have wanted to be, for more than a century, in matters of administration, including financial arrangements for the provision of the infrastructure necessary for their sustenance, they have been linked, first to New South Wales, then to the Commonwealth.
Part of the argument for the plaintiffs was directed towards demonstrating that Norfolk Island is not a part of Australia. In this respect, the Court was invited to disagree with what was said in Berwick Ltd v Gray[26]. There, Barwick CJ said that "Norfolk Island is part of the Commonwealth"[27]. Mason J, with whom McTiernan J and Murphy J agreed, said the same[28]. In Capital Duplicators Pty Ltd v Australian Capital Territory[29] Gaudron J cited Berwick v Gray with apparent approval, but went on to say, with reference to some external territories such as Papua and New Guinea, that "mere acquisition of territory does not, of itself, make that territory a constituent part of the Commonwealth either in a political or in a geographic sense".
The answer to the question whether an external territory is "part of the Commonwealth" may depend upon the purpose for which the question is asked. There are different senses in which a place, or a community, or a body politic, may be said to be, or not to be, "a part of" another place, or community, or body politic. The political justification for the amending legislation appears to have provoked the dispute about whether the people of Norfolk Island are "an Australian community" or whether the Legislative Assembly of Norfolk Island is "an Australian legislature", but for the resolution of the legal challenge to the validity of the legislation what matters is that Norfolk Island is a territory under the authority of the Commonwealth. To take up what was said by Kitto J in the passage quoted earlier from Lamshed v Lake, the entire legal situation of the territory may be determined by the authority of the Parliament. If, in making that determination, the Parliament gives effect to a politically contestable view of what is appropriate, that of itself has no bearing on the validity of its legislation.
Reference was made to the observation in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame[30] that the acquisition of an external territory by Australia involves the establishment of relations between Australia and the inhabitants of that territory, and that the kinds of relationship that may be appropriate are as various as the kinds of territory that may be acquired. It is difficult to see how that assists the plaintiffs. The observation was made in the context of the relationship that existed between Australia and the people of Papua and New Guinea. The variety of the kinds of relationship that may exist between Australia and the people of external territories is, no doubt, one of the reasons for the width of the power conferred by s 122.
The plaintiffs submitted that a law which adopts Australian citizenship as a criterion for the conferring of electoral rights in relation to the people of Norfolk Island is not a law for the government of the people of Norfolk Island because it selects as a criterion one which is not a defining characteristic a person must possess in order to be a member of the Norfolk Island community or one of the people of Norfolk Island; it excludes from electoral rights a substantial number of people who are part of the people of Norfolk Island. Once it is accepted (as the plaintiffs accepted) that Parliament may make laws for the government of a territory that deny electoral rights to all of the people of the territory, it is difficult to understand why Parliament may not make laws that deny electoral rights to some of the people of the territory or, in particular, to a relatively small minority of the people who are not Australian citizens. Some forms of discrimination in the conferral or withholding of electoral rights may be unjust or unwise, or inconsistent with currently held democratic values. That does not necessarily mean they are unlawful. Other forms of discrimination are generally accepted. Fixing a minimum age for voting is one example. It is impossible to find in the text of s 122, or elsewhere in the Constitution, a prohibition against discriminating on the basis of Australian citizenship. There is nothing in the Constitution, or in the history or circumstances of Norfolk Island, which denies to the laws in question the quality of being laws for the government of Norfolk Island.
It was further submitted that "[t]he doctrine of representative government is embedded in the Constitution". The plaintiffs said: "The question arises whether, if Parliament decides to establish a form of locally based government for a territory, such as that provided by the 1979 Act (as distinct from direct administration by officers of the Commonwealth), it must do so in a way that ensures the creation and continuing existence of a legislature that is chosen by the people of the territory in accordance with principles of representative government".
The question as posed by the plaintiffs according to its terms arises only if Parliament decides to establish a form of locally based government for a territory. Implicit is the acknowledgment, made explicitly in oral argument, that a law for the government of a territory may provide for a government that is not locally based. If the principles of representative government referred to in the question are those generally accepted as applicable to "the people of [particular States]" or "the people of the Commonwealth" then, it should be noted, as was pointed out in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame[31], that those references in the Constitution do not bind Australia to any particular form of relationship with all inhabitants of all external territories acquired by the Commonwealth, whatever the form and circumstances of such acquisition. Just as the plaintiffs acknowledge that locally based government might be inappropriate to an external territory, so also, depending on the circumstances, a locally based government constructed according to current Australian standards of representative democracy may be inappropriate. Indeed, the very complaint of the plaintiffs in this case is that an Australian standard of qualification to participate in the democratic process has been imposed inappropriately on an island population whose distinctive character has not been given adequate recognition.
In Kruger v The Commonwealth[32], Dawson J said:

[44]

KIRBY J. A special case[34] asks whether provisions of the Norfolk Island Amendment Act 2004 (Cth) ("the 2004 Act") are valid in accordance with s 122 of the Australian Constitution[35].
By s 122, the Parliament is empowered to "make laws for the government of any territory". The challenged laws, described elsewhere[36], concern the qualifications of candidates for election as members of the Legislative Assembly of Norfolk Island[37] ("NI"). They also provide for qualification to be an elector by enrolment on the electoral roll[38]. The purpose of the 2004 Act is, with prospective effect, to limit the eligibility to vote in, and stand for, elections for the NI Legislative Assembly, to persons who are Australian citizens[39].
On the face of things, a law made by the Parliament on the qualification of candidates and voters for elections for the Legislative Assembly of a territory of the Commonwealth is a law made "for the government of" that territory. Because NI is incontestably a "territory" within s 122, the 2004 Act thus appears to be valid in accordance with the Constitution. It is from the Constitution that this Court derives its powers[40]. It is bound to uphold the Constitution[41].
However, as these proceedings have demonstrated, the 2004 Act, imposing for the first time a universal requirement of Australian citizenship for participation in the representative political life of NI, has proved controversial amongst some of the population of that territory. The attempt to impose Australian citizenship in the ways stated was described by the plaintiffs' counsel as an endeavour to divide the "community" of NI in a way said to be impermissible under the Constitution and therefore invalid. In the face of the broad grant of legislative power contained in s 122, reinforced by nearly a century of this Court's decisions, in which the power has been variously described as "ample"[42], "independent"[43] and "relevantly plenary"[44] and such as to "stand[] apart"[45], the plaintiffs obviously faced many obstacles in making good their contentions.
The concerns voiced in the proceedings are strongly held. In my view, the plaintiffs fail. However, out of respect for the arguments presented and the issues of principle that have been canvassed, I will state separately my reasons for being unable to accede to them.

[45]

The facts: The special case arises out of a statement of claim invoking the original jurisdiction of this Court. The status of the several plaintiffs should be noted because it gives an indication of the concerns that lie behind the proceedings. The Commonwealth did not contest the factual statements made in the statement of claim concerning the plaintiffs. Nor did the Commonwealth at any stage submit that the plaintiffs lacked standing to bring the proceedings or to tender the constitutional issue for decision[46].
According to the statement of claim, the first plaintiff, Mr Geoffrey Bennett, was born in New Zealand in 1943 and is a citizen of that country. He holds no other citizenship. He has resided continuously on NI since May 1968; was enrolled as an elector in 1972; served on the NI Council from 1976-79; was elected a member of the NI Legislative Assembly in May 1986, was re-elected on two occasions and held office as Minister for Finance until 4 July 1995.
The second plaintiff, Mr John Christian, was born in New Zealand in 1959. He too is a citizen of that country holding no other citizenship. He is a descendant of the settlers who moved to NI from Pitcairn Island in 1856. He has resided in NI from 1979 to 1981, and continuously since 1999. He has been enrolled on the NI electoral roll continuously since 2002.
The third plaintiff, Mr Bruce Walker, was born in New Zealand in 1946. He is a citizen of that country and holds no other citizenship. In 1996, he became a "resident" under the Immigration Act 1980 (NI) and has been continuously enrolled as an elector since 1993. He served as a member of the Legislative Assembly from 2000 to 2001.
The fourth plaintiff, Mrs Ann Walker, was born in Scotland in 1947. She migrated to New Zealand in 1970 and was granted New Zealand citizenship in 1979. She is a citizen both of New Zealand and of the United Kingdom and holds no other citizenship. She married the third plaintiff in 1985 and has lived continuously on NI since 1990. She has been enrolled on the NI electoral roll since 1993.
The fifth plaintiff, Mr Richard Kleiner, was born in the United States of America in 1951. He is a United States citizen and holds no other citizenship. However, he is of Pitcairn descent, being the great-grandson of John Young, who was born on Pitcairn Island in 1852 and removed to NI in 1856. Mr Kleiner has resided continuously on NI since December 1997. He held a "temporary entry permit", and subsequently a "general entry permit" under the Immigration Act 1980 (NI), before becoming a "Resident" under that Act on 23 March 2006. He has been enrolled continuously on the NI electoral roll since 2001.
The sixth plaintiff is the Administration of Norfolk Island, a body politic constituted by s 5 of the Norfolk Island Act 1979 (Cth) ("the 1979 Act"). By that provision, the Administration is capable of suing. The Administration brings this constitutional challenge against the Commonwealth, it was said, because of the political opposition in NI to the challenged provisions of the 2004 Act.
The natural person plaintiffs assert that, but for the 2004 Act, they would be entitled to be candidates for election to the NI Legislative Assembly. Further, they assert that, if the Act is valid, they will not be so entitled. Instead, they will, if removed from the NI electoral roll, lose their entitlement to re-enrolment and to vote in elections for the NI Legislative Assembly. They object to the deprivation of these civil rights on the basis that it disturbs long-standing features of the entitlement of residents, like themselves, to participate in the political life and democratic, representative self-government of NI.
History of acquisition of NI: The special case annexes 29 items of historical material, comprising legal and historical records relating to NI, dating back to 1786. The first recorded description of NI was that of Commander James Cook during his exploratory voyage to the South Seas for the British Admiralty in 1774. At the time of the first encounter with European civilisation, NI was unoccupied. Its remoteness, possible strategic value and the utility of its tall pines for ships' masts were noted in Cook's A Voyage towards the South Pole, which was published in England in 1777[47]. NI was included within the commission granted by George III to Captain Arthur Phillip upon his despatch to establish the British "territory called New South Wales"[48].
The decisions to establish NI as a penal settlement; to abandon that settlement in 1814; and later, in 1825, to re-establish it and to bring it within the Government of the Colony of Van Diemen's Land (now Tasmania), are described in other reasons[49]. So too is the decision taken by the Imperial Government to resettle the inhabitants of Pitcairn Island on NI in 1856. From that time, the Pitcairners comprised the majority of the population on NI. This fact, together with the geographical isolation of NI, its tiny population, the changes in its governmental arrangements, and its distinctiveness, led the Imperial Government to provide, by the Waste Lands (Australia) Act 1855 (Imp)[50], for the separation of NI from Van Diemen's Land. Such separation was effected by an Order in Council of 24 June 1856. This provided that, after a designated date, NI:

[62]

The Governor "left untouched" the law that gave the women, as well as the men, a vote in the annual election of the Chief Magistrate[60]. This universal franchise on NI was well in advance of the introduction of female suffrage elsewhere. It was not attained throughout Australia until after Federation[61] and in the United Kingdom and elsewhere, much later.
The thirty-nine laws continued in operation, with various amendments and additions until Governor Henry Brand, on 7 April 1897, pursuant to an Order in Council, revoked the earlier laws and, by Proclamation, made new laws for NI[62]. These laws continued the office of the Chief Magistrate in whom was vested the executive government of NI. However, he was thereafter appointed by the Governor from time to time[63].
Provision was made for a council of elders[64] with large powers, subject to the approval of the Chief Magistrate, to "make, amend, and repeal by-laws … [and] make suggestions to the chief magistrate as to any changes in the laws and regulations of the island which they may think desirable"[65]. The council of elders was to be elected on the first Tuesday in January of each year[66]. The members were to be "elders of the age of thirty years or upwards" but subject to disqualification. The Chief Magistrate was obliged to keep "a register of the names of the male natural born or naturalized subjects of Her Majesty of the age of twenty-five years and upwards, who have for the previous six months resided on the island". Those persons are referred to as "the elders"[67]. By the time of the 1897 Order in Council, the earlier provision for universal suffrage was replaced by a provision confining participation to the male population as defined[68]. Female suffrage and candidature were not restored until NI became a territory of the Commonwealth[69].
Nationality status of British subject: The developments that preceded, and followed, the establishment of the Commonwealth of Australia are described in other reasons[70]. They included the enactment of federal legislation for the acceptance of NI as a territory under the authority of the Commonwealth, and the Order in Council of 1914 by which George V placed NI under the authority of the Commonwealth[71]. The successive NI electoral laws are described elsewhere[72].
As was normal during the 19th (and for most of the 20th) century, the nationality requirement for participation in the elected body of NI contemplated, after the Order in Council of 1897, conformity to the only notion of nationality then applicable in Australia and throughout the British Empire: that of being a natural born or naturalised British subject. This is also the only express requirement of nationality mentioned in the Constitution[73]. There were age and residence requirements and, for a short interval, a restored requirement of the male gender[74]. However, the common feature of the requirements for participation under electoral laws after 1897 was the nationality status of allegiance to the British Crown.
When NI became a territory of the Commonwealth, this feature caused no discordance with Australian electoral laws. This was because the same principle was applied throughout Australia[75]. Australian citizenship, as such, was not provided for by legislation until the Nationality and Citizenship Act 1948 (Cth)[76]. In 1981, for the first time, the Commonwealth Electoral Act 1918 (Cth) ("Commonwealth Electoral Act") was amended to confer the entitlement to enrol and vote on "Australian citizens" as such[77]. However, the entitlement (and obligation[78]) to vote in Australian elections continued to apply to British subjects whose names were on the roll immediately before 26 January 1984[79]. Indeed, such persons remain on the Australian electoral roll, unless otherwise lawfully removed. However, since 1984, persons who are not Australian citizens and whose names were not on the electoral roll immediately before 26 January 1984, may not have their names added to the Commonwealth electoral roll. This is now the case even if those persons are British subjects lawfully resident in Australia.
Successive representative bodies: The representative organ of government of NI underwent several changes during the 20th century. The council of elders was abolished in July 1903. It was replaced by an Executive Council, elected by the "Elders"[80]. That Council was enlarged in 1913, although only two of the seven members were then elected by the "Elders"[81]. The Executive Council so established was continued by the Norfolk Island Act 1913 (Cth), subject to alteration or abolition by Ordinance made under that Act.
By the Executive Council Ordinance 1915, the former Executive Council was abolished and replaced by an Executive Council of 12, six of whom were elected and six appointed by the Administrator[82]. The Administrator, in turn, was appointed by the Governor-General[83]. Eligibility for election was open to any person entitled to vote at elections of members of the Executive Council[84]. Eligibility to vote at elections extended to any person, male or female, who was a natural born or naturalised subject of the King, 21 years of age or over, who met specified residency requirements and was not subject to disqualifying criminal convictions[85].
The foregoing provisions were repealed in 1925[86]. A new Council was established along generally similar lines. A like change occurred in 1935 providing for the Advisory Council of NI. This comprised eight members, elected annually[87]. That provision was, in turn, replaced in 1960 by the establishment of the Norfolk Island Council comprising eight elected councillors[88]. In 1968, the franchise for voting for the NI Council was expanded to include persons holding temporary immigration permits who had been resident on NI for the preceding 12 months[89]. By the same provision, eligibility for election to the Council was limited to those who had lived on NI for the five years preceding nomination for election[90].
New residency requirements for voting for the Council were introduced in 1970[91] to amend further the residency requirements by excluding temporary entry permit holders from the franchise. That was the position when a Royal Commission into matters relating to NI was established by the Commonwealth. The report of the Royal Commissioner (The Hon Sir John Nimmo) was published in October 1976[92]. The report recommended that, except in special cases, all laws that applied to other parts of Australia generally should also apply to NI[93].
Self-government of NI: In a policy statement made in May 1978 the Australian Government set out its response to the Royal Commissioner's report[94]. After consultations with the NI community, the Minister made it clear that the recommendation of assimilation of laws had been rejected:

[74]

In the history of this nation, as of the United States and other federations, many important questions of large political moment have been decided as legal questions, the outcome being determined by the opinion of this Court (sometimes by a majority) as to the requirements of the Constitution[102]. In such matters, judges of this Court and, as Dicey pointed out, "every judge throughout the land"[103] decide political questions because they are tendered in a justiciable form. In such cases, judges enjoy no privilege to refrain from giving answers. The fact that the questions are political, or have political connotations or consequences, affords no excuse for inaction.
From time to time, this Court must give meaning to constitutional words that require reference to what may be broadly called "political" values. Thus, in Cheatle v The Queen[104], the Court unanimously concluded that "the exclusion of women and unpropertied persons" from the jury, required to try indictable federal crimes prosecuted on indictment, was unacceptable to fulfil the "truly representative" character of an Australian jury as contemplated by s 80 of the Constitution "in the more enlightened climate of 1993". Whilst the historical unanimity in the jury's verdict was constitutionally required[105], the exclusion of women and unpropertied persons was forbidden. So much was a consequence of constitutional adjudication. There are many other relevant instances[106].
It follows that giving effect to constitutional requirements in a federation will often, as Dicey recognised, involve political judgments in the broad sense. Indeed, it is difficult to see how arguments relating to the constitutional validity of laws affecting election to the representative institutions of a territory could be discussed without postulating some political characteristics about the polity against which the parties' arguments could be measured[107].
Nevertheless, judges must obviously be alert to the distinction between deciding whether power exists to enact a law and deciding whether they consider a law, once enacted, is desirable, wise, just or in keeping with historical values or conceptions of basic civil rights. Singh v The Commonwealth[108] was a case involving the removal from Australia of a girl aged seven who was born here to parents of Indian nationality and who knew no other country. In my reasons in Singh I observed that, if I were a legislator, I would not favour such a course[109]. However, the duty of a judge, in giving meaning to constitutional concepts, expressed in the basic law of a nation, is to give effect to the meaning of the text as it is understood from its language, history, context and function.
Over the past 30 years and more, debates have occurred in the Australian Parliament, in the NI Legislative Assembly and elsewhere concerning the extent to which NI and its laws should be assimilated into the Australian Commonwealth or allowed to retain the "distinct and separate" features out of respect for its geographical isolation, history, and population. In 1974 the Royal Commission report favoured closer legal assimilation. However, as I have observed, the Australian Government and Parliament adopted a different course. The 1979 Act was enacted to give effect to that course.
Amongst the preambular paragraphs contained in that Act, the following words still appear on the Australian statute book:

[84]

It was on this footing that, in Berwick Ltd v Gray, the Court upheld the power of the Australian Parliament "to endow a Territory with separate political, representative and administrative institutions, having control of its own fiscus"[118]. Once such a power is acknowledged, the provision of laws to govern the conduct of elections for such institutions becomes essential. And that was how the Commonwealth characterised the laws that the plaintiffs challenge in these proceedings.
The textual contentions: The plaintiffs latched onto two features of the language of s 122 in order to mount their argument that the impugned provisions of the 2004 Act were beyond the power to make laws "for the government of" NI. First, they argued that the "territory", for the government of which such laws might be made, imported, in each case, the character of the particular "territory" concerned.
In part, this argument was founded on the variety of ways in which a "territory" could become such under the Constitution. Thus, it may be "surrendered by any State to and accepted by the Commonwealth". Within this category is the Northern Territory of Australia (surrendered by South Australia[119]) and the Australian Capital Territory and Jervis Bay Territory (surrendered by New South Wales)[120]. Then there are territories "placed by the Queen under the authority of and accepted by the Commonwealth". NI is a territory in this class as, earlier, was Papua, which (by the name British New Guinea) was placed under the authority of the Commonwealth by Letters Patent issued by Edward VII dated 18 March 1902 and accepted by the Papua Act 1905 (Cth)[121]. Finally, there is the third class of "territory" being those "otherwise acquired by the Commonwealth", amongst which, arguably, was the mandated (later trusteeship) territory of New Guinea (formerly German New Guinea)[122].
The plaintiffs submitted that the variety of ways in which "territories" could be created, and thus come under the control of the Commonwealth within the contemplation of s 122, indicated that "territories", of their respective origins, needs, locations, ethnic composition, population (if any) and history, were likely to be different. On the face of the Constitution, it was argued, "laws for the government" of such "territories" would necessarily adjust in their permissible content so as to meet the "governmental" requirements of each territory concerned.
In support of this proposition, the plaintiffs pointed to the different ways in which this Court had approached the rights of the inhabitants of some territories as against those of others. They emphasised what was said in the joint reasons of the Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame, a case concerned with the termination of Australian "citizenship" rights previously extended to the indigenous people of Papua[123]:

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In respect of the territories of the Commonwealth, different provisions have been enacted since 1974 for the representation in the Australian Parliament of electors in such territories. So far as concerns the two internal self-governing territories (the Australian Capital Territory and the Northern Territory of Australia), provisions have been enacted, and upheld by this Court, for their representation in the Senate[128] and in the House of Representatives[129]. In respect of electors on NI also, a complicated provision exists in s 95AA of the Commonwealth Electoral Act permitting a "'qualified' Norfolk Islander" to be enrolled for an electoral subdivision within Australia or a one-territory division, as the case may be.
The plaintiffs submitted that the specific contemplation of representation of electors resident in the territories (without express precondition as to their nationality), and the inclusion of s 122 in the Constitution containing many detailed provisions for democratic, representative and responsible government, meant that the apparently plenary language empowering the Parliament to "make laws for the government of any territory" had to be read in a particular way. In short, if any law on the subject were to be made, it had to be a law compatible with the fundamental postulate that the law-making body so created would be truly accountable to, and representative of, the community that existed in the territory. It could not be accountable to, and representative of, part only of that community. Nor could it impose conditions that excluded a significant proportion of the people of the territory on grounds of their nationality. Neither could it impose conditions requiring acquisition of a different nationality, which a significant number of members of that community might not wish to do.
Textual incapacity: The textual argument advanced for the plaintiffs cannot succeed. Whilst it is true that the "territories", contemplated as falling within s 122 of the Constitution, varied in their geographical connection with the Australian mainland; historical links with its governance; population size; ethnic similarity or dissimilarity to the Australian people; and cultural and economic needs, there still remain fundamental commonalities. For such fundamentals, a single criterion for Australian federal laws is provided. The word "territory" in s 122 of the Constitution must be afforded a meaning, large and broad enough to cover all applicable territories in all reasonably imaginable circumstances. This is why the phrase "laws for the government of any territory" cannot, as a textual matter, be read down so as to import limiting notions derived from history.
A more attractive argument for the plaintiffs was that which invoked the closing words of s 122, and the postulate of representation in either House of the Australian Parliament, to cast suggested light on the meaning to be given to the phrase "laws for the government of any territory" appearing earlier in the section. The postulate can be tested thus. If the Australian Parliament enacted a law restricting participation in elections in NI to male residents only (of a kind that was temporarily restored when, after 1897, NI reverted to an all-male electorate of "Elders"), it is doubtful that such a provision would now be upheld by this Court as a valid law of the Australian Parliament. Because a territory such as NI is contemplated by s 122 as being one in respect of which "representation" in the Australian Parliament might be allowed, any form of representative government enacted by federal law and practised in NI would have to be such as rendered the territory potentially suitable for representation in the kind of Parliament created for the Commonwealth[130].
However, when the laws challenged in these proceedings are considered, they make no such impermissible distinction. They exclude non-Australian citizens from election to the Legislative Assembly of NI. As Sue v Hill[131] found, s 44(i) of the Constitution is now to be read as requiring Australian citizenship as a precondition to being eligible for election to the Australian Parliament. Moreover, so far as electors of the Commonwealth are concerned[132], whilst a residual category of electors (still quite large) entitled to participate in voting for the House of Representatives and the Senate comprises British subjects who are permanent residents but not Australian citizens, that category was closed with the electors of this description whose names were on the Australian electoral roll immediately before 26 January 1984[133]. Accordingly, the introduction of the Australian citizenship requirement for NI is no more than one way of bringing the electoral requirements in that territory of the Commonwealth into harmony with the requirements now operating elsewhere in that polity.
It is true that the natural person plaintiffs are not presently Australian citizens. It is also true that, at the last census of Norfolk Island, 17.7% of the ordinarily resident population were New Zealand citizens and 0.9% citizens of the United Kingdom[134]. In such a small cohort of adult people (1863 in all) the potential impact of the exclusion of non-Australian citizens on voter eligibility is comparatively large. In effect, it may coerce those so excluded to secure Australian citizenship, which they might not otherwise desire. On the other hand, NI is a territory of Australia. The imposition of the requirement of Australian citizenship has been a common feature of several recent Australian laws and of decisions of this Court[135]. It cannot therefore be said that, in this respect, the "community" of NI has been singled out for unfair discrimination.
Further, recent amendments to Australian citizenship law, in company with similar changes in other countries, permit dual citizenship, removing the sometimes painful obligation to lose one nationality in order to acquire another[136]. And it is not unusual for participation in the electoral process within a nation state to be conditioned on nationality.
Conclusion: amplitude of s 122: It follows that, on the face of things, the answer to the textual arguments advanced for the plaintiffs must be analogous to that given in Singh v The Commonwealth[137]. So long as NI is, and remains, a territory of the Commonwealth, it is open to the Australian Parliament to conclude that the imposition of requirements of Australian citizenship for candidature for election to the NI Legislative Assembly created by that Parliament, and for future voters wishing to be enrolled to elect that Assembly, is a law "for the government of" that territory. Moreover, having regard to concurrent legal developments of recent years, it is a law harmonious with the requirements of representative government under the Constitution as it is now understood and applied. Such laws do not exceed the provisions of s 122. Nor do they offend the general character of the Constitution so far as it provides for elected representative governmental institutions.

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A possible argument: But can it be said that the mode of acquisition of this particular territory, so that it became a territory of the Commonwealth, brought with it unexpressed features that render it constitutionally impermissible for the Australian Parliament potentially to deprive more than 18% of the population from participation in the representative institution by which many of the territory's laws are made? Is this just a political complaint, about which this Court can do nothing? Or does it invoke a justiciable legal norm?
Crown fiduciary duty?: Two conceivable foundations exist for the argument. The first can be quickly dismissed. It rests on a suggestion that the Crown owes the people resident on NI a duty, in the nature of a fiduciary obligation that it would breach if it failed to ensure that the Australian Parliament continued to recognise the right of participation of residents in the elected representative body of NI, as had been enjoyed since at least Governor Denison's proclamation of the thirty-nine laws in 1857.
It is true that there are some features of the historical material referred to in the Special Case that suggest the recognition of particular obligations on the part of the Crown to the inhabitants of NI. These include the unusual history of settlement; its abandonment and resettlement; and the removal to NI of most of the settlers from Pitcairn Island, another Crown possession. The successive arrangements by the Crown to connect NI with other British possessions, culminating in the action of the King in placing NI under the authority of the Commonwealth, might be thought to reflect a developing sense of Imperial obligation. The Order in Council of 24 June 1856 specifically talks of the grant of land "in trust for the public use" of subjects of the Crown resident on NI. So is there a trust obligation more generally which defends the right of residents such as the plaintiffs to partake in the representative institution of NI? Is it legally enforceable?
In Canada, the courts have recognised the existence of a fiduciary duty with respect to the lands and rights of indigenous peoples[138]. Land surrendered to the Crown by indigenous groups has been treated as subject to a trust-like relationship. Indeed, it has been concluded that the Crown has a broader responsibility to act in a fiduciary way towards indigenous peoples arising out of its historical powers over, and assumption of responsibility towards, such peoples within its protection. This duty has been held to have passed from the Crown in right of the United Kingdom to the modern government of Canada[139]. These authorities broadly follow decisions of the Supreme Court of the United States on the same subject matter[140]. If, because of their vulnerability and dependency, such a relationship might be established with indigenous peoples, it would not be hard to imagine the creation of a similar relationship with the resident population of NI, having regard to its history, isolation, small numbers, and economic as well as cultural dependency.
The plaintiffs did not expressly rely on such an argument. In the context of Australia, the argument draws little support from the cases on the rights of indigenous peoples. In Mabo v Queensland [No 2][141], Toohey J alone found a fiduciary relationship between the Crown and Australian Aboriginals. Although, in my opinion, the issue is still an open one, there are many impediments in the way of constructing from it a legally enforceable barrier to the enactment of the laws challenged in these proceedings.
Whatever duties the Crown might have in its various manifestations, they are necessarily subject to any laws made by the Crown in Parliament. The Constitution was originally enacted as such a law[142]. Section 122 of the Constitution, thus enacted, expressly contemplated and authorised the placement of a territory by the Queen under the authority of the Commonwealth, once that placement was accepted by it. This was duly accomplished in the case of NI. Thereafter, any obligation of the Crown or of the Commonwealth to the residents of NI was subject to laws validly made "for the government of" the territory. Neither expressly nor impliedly are any fiduciary duties owed by the Crown to the territory or its people preserved so as to disable the Australian Parliament from the full enjoyment of its express constitutional law-making powers. Because the point was not taken further and has been described as one of "fundamental importance"[143], it should not be determined in the abstract. I will not pursue it further.
Obligations to a settled colony?: Can it be said, alternatively, that the challenged laws offend a basic principle of British constitutional law that, once a form of self-government is given to a colony of the Crown, acquired by settlement, it cannot be taken away? Words to that effect may be found in respected texts on constitutional law and history. Thus, Maitland, in The Constitutional History of England[144], records the differences between territories acquired by colonisation, on the one hand, and by cession or conquest, on the other. In some circumstances, Maitland states:

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However, there are both factual and legal difficulties in the way of importing any such doctrine to support the plaintiffs' arguments in this case.
As to the facts, whatever the classification of NI (and it was probably by 1857, a "settled" colony), it cannot really be said to have received a relevant measure of self-government before the 1979 Act and then from the Australian Parliament. The earlier laws for various kinds of representative body, whilst undoubtedly participatory and in certain ways in advance of developments elsewhere, could not qualify as establishing representative institutions of government. They were, for the most part, advisory to the Governor or Administrator as the case might be.
In any case, in all but the 19 years before the 2004 Act[145], a nationality requirement for participation was expressly provided. For most of those years, it was the common nationality status of British subject. As the review of legislation that I have set out above demonstrates, a qualification based relevantly on residence on NI only existed in the earliest years (when British nationality could be assumed) or in the years between 1985 and 2004 (when a nationality requirement was temporarily removed). It follows, on the evidence, that the absence of a nationality requirement cannot be portrayed as a longstanding or established (still less ancient) feature of NI's governance, such that it has been imprinted on the text of s 122 of the Constitution, between the lines as it were.
In any case, there are insuperable legal difficulties for any such contention. The rule against the revocation of representative assemblies, once granted, appears to have related only to those resident in territories conquered by the King's armies or ceded by a foreign power[146]. In the times of Empire, settlers knew that they were ultimately "subordinate unto, and dependent upon the Imperial Crown and Parliament of Great Britain"[147]. This, as Maitland points out, was the complaint of the American colonies; not that the British Parliament lacked power to legislate for them but that it had wrongly exercised its power[148].
Secondly, whereas the King might in some circumstances have been unable to revoke grants of representative institutions, once made[149], this incapacity did not extend to an Act of the British Parliament, at least before the Statute of Westminster 1931, adopted after the Imperial Conferences held in 1926 and 1930[150]. At the time of the enactment of the Commonwealth of Australia Constitution Act, there was no legal impediment to the United Kingdom Parliament's providing as it saw fit in respect of any representative institution previously granted by the Crown or established by or under earlier legislation.
Thirdly, in so far as the successive representative institutions for NI were concerned, as made in the 19th century by or under Orders in Council, such Orders invariably reserved the Royal Prerogative to issue new and different Orders in Council in the future. Thus, in the paragraph of the Order in Council of 24 June 1856, in which it was "ordered and declared" that NI was "a distinct and separate settlement", the ensuing orders made for that purpose were expressly declared to exist "until further Order"[151]. The Order in Council that placed NI under the authority of the Commonwealth pursuant to s 122 of the Constitution was one such "further order".
Fourthly, and in any case, once placed under the authority of the Commonwealth, and accepted by it, there was a new legal beginning. The law-making source then took its validity from the Constitution itself. The ultimate foundation for that Constitution is the acceptance of its requirement by the Australian people[152]. This fact directs attention to the language and purpose of s 122 of the Constitution. Such considerations, appearing as they do in a constitutional grant of power to make further laws, support the most ample construction of the power thus afforded. This is the construction that this Court has repeatedly given to s 122.
The decision in Newbery: Many of the foregoing issues were considered by the Supreme Court of Norfolk Island in 1965 in Newbery v The Queen[153]. In that case, the appellant applied for leave to appeal against his conviction for failing to apply for enrolment on the NI Council electoral roll, contrary to s 11(2) of the Norfolk Island Council Ordinance 1960. The challenge was based on the argument that the Ordinance was invalid and that the only valid electoral law of NI was that contained in the thirty-nine laws of 1857. That argument was, in turn, founded on the proposition that the 1857 laws had the effect of granting to the settlement of NI a constitution and a legislature, which could not thereafter be revoked or amended by the Crown nor ignored by the conduct of the Crown in placing NI under the authority of the Commonwealth so as to attract s 122 of the Constitution. The argument was dismissed by Eggleston J.
His Honour found that the successive Orders in Council made for the government of NI between 1856 and 1900 were fully effective within the powers granted to the Crown by the Waste Lands (Australia) Act and successively reserved in the Orders made from time to time[154]. As well, Eggleston J noted that the thirty-nine laws of 1857 were not made directly by Orders in Council in the United Kingdom but by the Governor of New South Wales, acting under such authority. The Order in Council of 1914, placing the territory of NI under the authority of the Commonwealth, was also held to be within the power granted by the Waste Lands (Australia) Act to "make provision for the government" of NI. The similarity between that Imperial grant and the grant of governmental power expressed in s 122 of the Constitution, pursuant to which the territory of NI was accepted by the Commonwealth, is striking. The analysis of Eggleston J is compelling. No error has been shown in it.
Conclusion: no legal objection: It follows that any pre-existing rule of the Royal Prerogative or of the obligations of the Crown, by common law or equity, that applied before NI became a territory of the Commonwealth cannot diminish the power and authority granted to the Australian Parliament by s 122 of the Constitution. Any complaint about the alteration of the representative arrangements for the "community" on NI is thus not a legal one. It is one addressed to the political wisdom and justice of the 2004 Act. They are considerations that this Court has no authority to adjudicate.
In the result, neither an argument based on any suggested fiduciary duty of, or disqualification attaching to, the Crown (assuming such duty or disqualification to have existed) can be invoked in this case to diminish the ample constitutional power and authority of the Australian Parliament under the Constitution to make laws for the government of NI. Any contention to the contrary must be rejected.

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When the plaintiffs were confronted with the difficulty of deriving an implied limitation from the very broad language of s 122 of the Constitution, they suggested that such a difficulty was not significant because the word "territory" was written in that context upon a footing which imported the variety of territorial conditions and their several needs for representative government. In this sense, so it was put, the limitation relevant to representation of the "community" of NI was inherent in the very grant of power to "make laws for the government of" such a "territory".
For the reasons already given, there are insuperable factual and legal difficulties in the way of accepting this argument. It should be rejected.
An implied limitation?: But can an implication be grafted onto the words in s 122 of the Constitution because of the general character of the Constitution as a charter for representative government that adapts to the conditions of the State or Territory concerned? Is the implication effectively imported by the very variety of territories, contemplated on the face of the Constitution and revealed by its operation? Is an implication protective of the right of all long-term residents on NI, regardless of their nationality, inherent in such a small population and in the contextual reference in s 122, to "the representation of such territory in either House of the Parliament"?
The difficulty facing the plaintiffs in importing any such implied limitation arises not only out of the generality of the plain words of s 122 but also from the purpose of the section as one granting a power to make laws for all future needs of the government of every variety of territory that becomes a governmental responsibility of the Commonwealth. The language and context militate strongly against the super-imposition of a limitation by implication, such as the plaintiffs suggested.
As well, in a number of recent decisions, this Court has emphasised the restraints that exist on drawing implications from the Constitution that are not based on its actual terms or structure[156]. The criterion commonly adopted is necessity to give effect to other constitutional provisions[157]. Such necessity may be "logical or practical" or "implicit in the federal structure"[158]. Considerations of appropriateness or the avoidance of discrimination or arguable injustice will not ordinarily be sufficient, of themselves, to justify imposition of an implied limitation on the constitutional text[159]. The difficulty of amending the Constitution is one reason for caution in importing such implications[160].
Care also has to be exercised in converting verbal explanations for decisions in one case into rigid universal criteria[161]. As well, Windeyer J in Victoria v The Commonwealth[162] reminded us that "implications have a place in the interpretation of the Constitution". He recalled Dixon J's declaration: "I do not see why we should be fearful about making implications"[163]. This was something Dixon J did with great effect in the Communist Party Case[164]. The Court also upheld implications based on the structure of the Constitution in the Boilermakers' Case[165] and many others. In recent years, this Court has rejected various suggested constitutional implications, making only one significant exception in Austin v The Commonwealth[166], protective of State judicial pensions. They were protected on the ground, found by the majority, that a federal income tax law of general application placed a particular disability or burden on the operations and activities of the States concerned[167].
An implied prohibition?: When the 2004 Act is examined, it does not in my view, suggest the existence of an implied prohibition, or limitation, on the generality of the language in s 122 of the Constitution, special to a territory such as NI. At no stage did the plaintiffs formulate with precision any such implied limitation. Nor could they demonstrate its necessity or inherent likelihood, compatibly with the language and purpose of s 122.
Moreover, it is not only legal doctrine that weighs against finding an implied limitation in s 122 relevant to these proceedings. The facts themselves do not support a need for it. The provision of a requirement of nationality to vote in NI elections, and to be a candidate, lasted for most of the history of NI before 1985. Given the change in Australia and elsewhere of the applicability of the status of British subject and the introduction from 1984 of the requirement that new voters in federal elections must be Australian citizens, it was open to the Australian Parliament to conclude that a similar provision for elections in NI represented a "law for the government of" a territory.
The supervening intervention of the facility for dual nationality, and the fact that all but 2% of the population of NI who are not already Australian citizens are citizens of New Zealand or the United Kingdom (for whom acquiring Australian citizenship ordinarily constitutes no special burden) sustains the conclusion that the imposition of that requirement was a choice validly open to the Australian Parliament within its powers under s 122 of the Constitution[168]. To adapt what was said by Gleeson CJ and Heydon J in APLA Ltd v Legal Services Commissioner (NSW)[169], there is nothing in the text or structure of the Constitution, or in the nature of the territories power, that requires that candidates or voters must be able to participate in territory elections, including NI elections, although non-citizens of Australia whose Constitution applies to that territory. "It may or may not be thought desirable, but it is not necessary"[170]. The topic is one[171]:

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The forbidden distinctions in Art 2 of the ICCPR are described as being "of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". In reconciling the forbidden distinction of "national … origin" with the pre-condition of citizenship stated in Art 25, it is clear that unreasonable impediments to attaining citizenship because of "national origin" are forbidden. However, the requirement of citizenship for the enjoyment of the rights to vote and to be elected to a representative governmental body are recognised in the civil rights adopted by the international community.
In most parts of the world, the pre-condition of citizenship is taken for granted. If there have been exceptions in Australia, New Zealand, the United Kingdom and NI in the past, it is only because of the universal notion of the nationality of British subjects, which proved so durable. That was a feature of the electoral law of Australia and NI until the 1980s. It lingers on to some extent for those already on the electoral roll before the pre-condition of Australian citizenship was substituted. But it is now treated by the Parliament as an historical anomaly. It is now being generally replaced by requirements of Australian citizenship.
Conclusion: no offence: In the result, there is no offence to international human rights law in the language and meaning of s 122 of the Constitution, as interpreted by this Court, in upholding the validity of the 2004 Act provisions mandating Australian citizenship for participation in future NI elections. The latter provision is not incompatible with international law as stated in the ICCPR or with the standards adopted by other civilised countries. No demonstrated departure from international law in this respect suggests a need to re-examine the outcome that is now derived from the application of Australian municipal law.
Although during submissions some mention was made of other provisions of international law[179], these were not elaborated in argument. I will not therefore pursue them.

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On 14 October 1857, pursuant to the Royal Instructions, the Governor of New South Wales, Sir William Denison, compiled, declared and enacted the "Laws and Regulations for Norfolk Island", referred to as "the thirty-nine laws". These were based largely, but not entirely, upon the laws by which the Pitcairners had been accustomed to govern themselves on Pitcairn Island. They were described by Lord Hoffmann in Christian v The Queen[185] as "rudimentary". It is not surprising therefore that it was contemplated that they might need to be, and were, adapted as appropriate.
On 14 November 1896, the Governor of New South Wales, Sir Henry Brand, proclaimed that all laws and regulations in force within Norfolk Island were repealed and annulled. An Order in Council dated 15 January 1897 ("the 1897 Order") revoked the 1856 Order and ordered that the affairs of Norfolk Island should thenceforth and until further Order be made in that behalf by Her Majesty, be administered by the Governor and Commander-in-Chief for the time being of the Colony of New South Wales and its Dependencies. It expressly ordered, among other things, that all "laws, ordinances, and regulations in force in Norfolk Island ... shall continue in force until repealed or altered by competent authority".
On 11 August 1897 a collection of documents was presented to the Parliament of New South Wales. It consisted of correspondence between Imperial and Colonial officials concerning the transfer of authority over the Island that was effected by the 1897 Order. The collection was presented to the Imperial Parliament in February 1897.
By an Order in Council dated 18 October 1900 ("the 1900 Order"), the Queen revoked the 1897 Order and ordered that the affairs of Norfolk Island should thenceforth, and until further Order made in that behalf by Her Majesty, be administered by the Governor for the time being of the State of New South Wales and its Dependencies. The 1900 Order provided, among other things, that all "Laws, Ordinances, and Regulations in force in Norfolk Island ... shall continue in force until repealed or altered by competent authority" (emphasis added).
Even by 1900 the community was a small and isolated one. It had, as appears from what I have so far summarized, had a long association with the colonies of Australia. It had never been identified internationally as a nation or polity, let alone a wholly self-governing one. It had a particular utility and relevance to Australia by reason of a proposal for the junction of an undersea Pacific cable to Australia. The material before the Court also shows that New South Wales from time to time had provided considerable financial sustenance to the community. Obviously there were doubts about the capacity of the community to be self-sustaining. None of this is to say that the islanders themselves would have wished to forgo any rights that they may have possessed to control their own affairs in so far as that was possible. The history and realities which I have summarized, however, made this entirely impractical, and, without further Imperial intervention, legally impossible.
After federation therefore, consideration, not surprisingly, came to be given by the new Australian polity to the annexation of Norfolk Island to the Commonwealth. The Secretary of the Attorney-General's Department, Mr Garran, prepared an advice to deal with the future legal status of the island[186]:

[144]

The balance of the plaintiffs' submissions are heavily, if not to say exclusively, based upon the premise of the alternative submission. In summary they are these. The nature of the relationship between an external territory and Australia is not fixed. The circumstances in which authority over a territory was accepted, including the status and characteristics of the territory at that time, are relevant. The relations that may exist between Australia and the inhabitants of an external territory are not necessarily identical with those that apply to the people of the Commonwealth[197]. On acceptance by Australia, Norfolk Island was a Crown possession or dependency which had been established as a distinct and separate settlement for occupation by Pitcairners and their descendants, and others admitted to their community. Norfolk Island did not on its acceptance by Australia, nor has it since, become part of Australia, geographically or politically. Statements to the contrary in Berwick Ltd v Gray[198] are wrong. Its community is not, and has never been, part of the Australian community. Australian citizenship has never been a determining factor in identifying the community of the Island. A law which requires Australian citizenship for voting and election in Norfolk Island is not a law "for the government" of Norfolk Island because it selects a relevant criterion which is not a defining characteristic a person must possess for membership of the community of Norfolk Island, or of "the people" of Norfolk Island. Such a law is inconsistent with the status of the island as a distinct and separate settlement, and with the basis upon which the community was established and has continued in existence. In consequence, the challenged provisions would disenfranchise many of the people of Norfolk Island. The people of Norfolk Island have never been part of "the community constituting the Australian body politic"[199]. Even if a correct characterization of the people of Norfolk Island who are not Australian citizens be as "aliens", they, as a substantial proportion of the people of Norfolk Island, should not be stripped of electoral rights. Their entitlement to vote flows from the fact that they are part of "the people of [a] Territory" to whom substantial self-government has been granted, and who, in accordance with ordinary and basic notions of responsible government embodied in the Constitution, should be entitled to vote.

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Disposition of the case

There are several reasons why the plaintiffs' submissions should be rejected.
Whilst it is true that by the 1856 Order (the force of which is not questioned) it was ordered that the Island be made a "distinct and separate settlement", a reservation of the possibility of change by further order was expressly made in it. Accordingly, the Pitcairners who had then only so recently arrived on Norfolk Island should not have had expectations, let alone rights, of any form of permanent self-governing status.
That, as subsequent history until federation shows, the Governors of New South Wales, exercising delegated Imperial authority, although not absolutely bound to do so, were generally content to adopt a great deal of the customary law of the Pitcairners as they and visiting admiralty officers[200] had formulated it on Pitcairn Island, and as contemplated by the 1856 Order, does not mean that the inhabitants or residents became entitled to a permanent right of self-government.
It does not matter for present purposes how the Island or the community of the Island was to be regarded in 1900, whether as a settlement, a colony, a territory, a province, a provincial territory of a colony, a colonial territory, or otherwise; hard and fast definitions of claimed lands and seas and clear international rules of law applicable to them, in those times of competing Imperial expansion, were evolving. The community on the island was, on any view, then a community of people who owed their presence there to the monarch, and had no legal right to self-government, except to the extent, if any, that the monarch or the monarch's delegate, not irrevocably, may have conferred it. The last Order in Council before federation was entirely consistent with the earlier ones in not conferring it, but by making provision for the continuation in force of the current law, subject to repeal or alteration by "competent authority".
Repeal and alteration by competent authority or authorities was exactly what did in fact occur. The first relevant occurrence was legislation of a higher order than Letters Patent or Order in Council, that is, enactment, by the Imperial Parliament, of s 122 of the Commonwealth of Australia Constitution Act in 1900. That section in terms confers on the Parliament the power to make laws for the government of territories, including those placed by the monarch under the authority of, and accepted by, the Commonwealth. Events to produce such a result, of placement and acceptance of Norfolk Island by Australia, ensued some 13 or so years later by way of an Imperial Order in Council in 1914, following the Act of the Commonwealth Parliament of 1913 which anticipated that Order.
It is impossible, in my view, to regard the challenged provisions, concerned as they were with the qualifications of electors and their representatives, as other than laws for the government of Norfolk Island. The plaintiffs' proposition is, effectively, that every law must accept or adopt the franchise for which the legislature of the island, itself elected according to that franchise, has made provision. The truth is that territories subject, or becoming subject, to the Australian Constitution have never possessed the same assured rights as the people of the States, and the States themselves, have. This follows, not only from the history which I have summarized, but also from the implication to which ss 107 and 108 of the Constitution give rise[201]. The Constitution, whilst making provision for the continuation of every power of a Colony becoming a State and (subject to the exercise of valid federal power) of Colonial laws, and the acceptance of a territory by the Commonwealth, is silent, intentionally so, it may be inferred, as to the continuation of the powers and laws of a territory. The special and quite different status of the new States, and their differentiation from the territories is explained by Kitto J in Spratt v Hermes[202] in passages[203] which I will quote when I discuss the relevant cases.

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Cases considering s 122

It is to those cases that I now turn. There is no decision of the Court which supports the plaintiffs' submissions. Indeed the contrary is generally the position. Repeatedly the cases emphasize the amplitude of the territories power, even though other provisions of the Constitution have at times been held to apply to the territories.
In Buchanan v The Commonwealth[204], R v Bernasconi[205] and Porter v The King; Ex parte Yee[206], the Court was asked to read s 122 of the Constitution as subject to ss 55, 80 and 71 of the Constitution respectively, but in each case refused to do so.
In Jolley v Mainka[207], the Court considered the Commonwealth's power over the Territory of New Guinea, which was governed by Australia pursuant to a mandate of the League of Nations. Starke J was of the view that New Guinea was territory "otherwise acquired [that is, not, as here, 'accepted'] by the Commonwealth"[208]. His Honour said that the Commonwealth had acquired "plenary control of the territory, subject to and during the subsistence of the mandate"[209]. Dixon J[210], with whom Rich J agreed[211], said however that the King's acceptance of the mandate on behalf of the Commonwealth made it territory "placed by the [King] under the authority of and accepted by the Commonwealth" in accordance with s 122 of the Constitution. Evatt J held[212] that s 122 of the Constitution had not been engaged: instead, the external affairs power, conferred by s 51(xxix) of the Constitution, empowered the Commonwealth to govern the Territory. Starke J was the only Justice therefore to express an opinion about the possibility of any limitations upon s 122 when engaged.
In Ffrost v Stevenson[213], a case concerning extradition from New South Wales to the Territory of New Guinea, Latham CJ said that s 122, not s 51(xxix), was the source of the authority to make laws for the Territory[214]. To hold otherwise would, in the opinion of his Honour, undermine the plenary nature of s 122[215]:

[163]

In this case it is unnecessary for me to form or state any view about the breadth of the proposition which I have just set out. For present purposes it is sufficient to note that this is another instance of the extensive operation accorded by the Court to s 122.
Teori Tau v The Commonwealth was considered in Newcrest Mining (WA) Ltd v The Commonwealth[241], which was concerned with mining leases over land in the Northern Territory. Commonwealth legislation purported to operate on the land contained within those leases. A majority of the Court (Toohey, Gaudron, Gummow and Kirby JJ) held[242] that s 51(xxxi) fettered the Commonwealth's legislative power generally, while three Justices of the majority (Gaudron, Gummow and Kirby JJ) would have overruled Teori Tau v The Commonwealth and found[243] that s 51(xxxi) fettered s 122 as well. Toohey J, however, thought "it would be a serious step to overrule a decision which has stood for nearly thirty years and which reflects an approach which may have been relied on in earlier years"[244]. His Honour was therefore unwilling to overrule it.
In Capital Duplicators Pty Ltd v Australian Capital Territory[245], the Court was asked whether Australian Capital Territory laws imposing fees for wholesale and retail licences, which were related to the value of goods sold, were an imposition of an "excise" within the meaning of s 90 of the Constitution. A majority of the Court (Brennan, Deane, Toohey and Gaudron JJ, Mason CJ, Dawson and McHugh JJ dissenting) held that they were, and effectively therefore that s 122 was to be read as subject to s 90 which confers exclusive power over excise and certain other imposts upon the Commonwealth.
Brennan, Deane and Toohey JJ said that one of the objectives of federation was "the creation of a free trade area embracing the geographical territory of the uniting Colonies, that is, the territory of the Colonies which became the Original States of the Commonwealth on its establishment on 1 January 1901"[246]. Their Honours pointed out[247] that the Australian Capital Territory was surrendered to, and accepted by, the Commonwealth. They said[248]:

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