High Court of Australia Judgments – Summary Notes

Attorney-General (Vic) v Andrews [2007] HCA 9 (21 March 2007)

In this decision, the High Court of Australia upheld workers’ compensation laws which allowed large companies to opt out of compulsory State schemes.

Optus argued that to have a level playing field it should be subject to the same Commonwealth workers’ compensation scheme as its main competitor, Telstra. It applied to the Minister to be declared an eligible corporation and to be licensed under the federal Safety, Rehabilitation and Compensation (SRC) Act. The licence was granted by the SRC Commission and took effect on 30 June 2005. Under the licence it is left to a corporation to organise its own insurance cover in respect of its liabilities for death or injury of workers. Optus expects to save $186,000 a month, or $2,232,000 a year, by opting out of Victorian WorkCover.

Victoria and the Victorian WorkCover Authority (VWA) argue that the relevant provisions of the SRC Act are beyond Commonwealth legislative power to the extent that they purport to authorise the grant to Optus of a licence, authorise Optus to accept liability for workers’ compensation, and remove Optus from the scheme of State insurance. They say the provisions infringe the constitutional insurance power, section 51(xiv), which provides that Parliament has the power to make laws with respect to insurance, other than State insurance. The Minister argues that the power to enact the provisions is conferred by section 51(xx) (the corporations power) and/or by section 51(v) (dealing with postal, telegraphic, telephonic and other like services).

The VWA issued proceedings in the Federal Court of Australia, seeking declarations that the licence granted to Optus was invalid and that the relevant provisions of the SRC Act were beyond the legislative power of the Commonwealth. Justice Bradley Selway dismissed the application. He found there was no basis for treating “State insurance” in section 51(xiv) as extending to State laws requiring persons to insure with a State insurer or conferring an economic monopoly on a State insurer. The Victorian Attorney-General appealed to the Full Court of the Federal Court and successfully applied to have the matter removed into the High Court.

The High Court, by a 5-2 majority, dismissed the appeal and held that the licensing provisions of the SRC Act are valid. They were not laws with respect to insurance, whether State insurance or otherwise, but were rather supported by other heads of Commonwealth legislative power, including the corporations power in section 51(xx) of the Constitution. It held that a State law requiring Optus to meet liabilities under a State compensation scheme would alter, impair or detract from a federal scheme, so the State law would be invalid to the extent of the inconsistency under section 109 of the Constitution. The result of the operation of section 109 upon Victoria’s Accident Compensation Act is that Optus is not subject to compulsory WorkCover insurance. The Court held that Victorian provisions which are rendered invalid to the extent of inconsistency with federal licensing provisions share the character of laws with respect to workers’ compensation. The federal law did not otherwise impair Victoria’s capacity to conduct insurance business.

  A v State of New South Wales [2007] HCA 10 (21 March 2007)

Succumbing to pressure to lay a charge with no reasonable and probable cause constituted a malicious prosecution, the High Court of Australia held in this case.

A, a NSW police service employee, was charged in March 2001 with homosexual intercourse with his 12- and 10-year-old stepsons, D and C, when they were aged eight and nine respectively. The boys were placed in foster care after the first interviews in October 2000 which followed a complaint of sexual abuse by an unidentified complainant. Detective Constable Floros was part of the joint investigation team in the Child Protection Enforcement Agency, and interviewed the boys, their mother S, and A. At committal proceedings in August 2001, C admitted his evidence was false and that he lied to help his brother who disliked A intensely. The magistrate discharged A on both counts, concluding there was no reasonable prospect that a jury could convict him.

A commenced proceedings for malicious prosecution, unlawful arrest, unlawful imprisonment and abuse of process. The District Court heard that Detective Floros had told A’s solicitor, Greg Walsh, that he felt sorry for A but was under pressure to charge A because he was a police employee. In a second conversation Detective Floros repeated that he had been under pressure to charge A and if it had been up to him he would not have done so. He agreed with Mr Walsh that the boys’ evidence was unreliable. Judge Harvey Cooper dismissed all causes of action apart from the claim of malicious prosecution in relation to the charge concerning C and awarded A $31,250. He held that Detective Floros had acted maliciously by charging A for the improper purpose of succumbing to pressure from Child Protection Enforcement Agency officers to charge A. The Court of Appeal dismissed an appeal by A against Judge Cooper’s decision in relation to the charge concerning D but allowed a cross-appeal by the State and Detective Floros against the decision in relation to the charge concerning C.

A appealed to the High Court, which today unanimously allowed the appeal and ordered that Judge Cooper’s decision be restored. The appeal related to two of the required elements for a successful action for damages for malicious prosecution: that the defendant acted maliciously in initiating or maintaining the proceedings, and that the defendant acted without reasonable and probable cause. To constitute malice, the sole or dominant purpose of the prosecutor in bringing the proceedings must be a purpose other than to properly invoke the criminal law. Absence of reasonable and probable cause may be established by showing either that the prosecutor did not honestly believe the case that was instituted and maintained or that the prosecutor had no sufficient basis for such a belief. The Court held that it was open to Judge Cooper to conclude that neither charge was brought for the purpose of bringing a wrongdoer to justice but that the charges were the result of succumbing to pressure. However, absence of reasonable and probable cause was demonstrated only in respect of C, so A had proved malicious prosecution in respect of the charge concerning C. The Court also held that it was open to Judge Cooper to find that Detective Floros either did not form the view that a charge was warranted in respect of C or, if he did form that view, that there was no sufficient basis for doing so. The High Court held that the Court of Appeal had erred in interfering with Judge Cooper’s findings of fact which depended upon his assessment of the credibility of the evidence given respectively by Detective Floros and Mr Walsh.

The Queen v Taufahema [2007] HCA 11 (21 March 2007)

A man convicted of the shooting murder of a police officer although he fired no shots himself should have faced a retrial rather than being acquitted on appeal, the High Court of Australia held in this decision.

Mr Taufahema, 30, was the unlicensed driver of a stolen car carrying his brother John, Meli Lagi and Sione Penisini, who fired the shot that killed Senior Constable Glenn McEnallay on 27 March 2002 in Hillsdale in Sydney’s south. The car was being driven erratically at excessive speed. Senior Constable McEnallay briefly pursued the car until it struck a gutter and stopped. While he called for back-up, the men, each carrying a loaded gun, leaped from the car. Mr Penisini fired five shots into the police car windscreen, four of which hit Senior Constable McEnallay, one of which caused fatal head wounds. Mr Taufahema was arrested after hiding his gun behind flowerpots, his brother and Mr Penisini were caught after attempting to carjack a passing vehicle, and Mr Lagi was arrested a few days later. Gloves, a hockey mask and bullets were found in the car.

Mr Taufahema was convicted of murder and of unlawful possession of a Smith & Wesson .357 revolver. He was sentenced to 23 years’ jail with a non-parole period of 16 years. Mr Penisini pleaded guilty to murder, unauthorised use of a firearm and attempted carjacking. John Taufahema was convicted of murder, attempted carjacking, using a firearm to evade apprehension and using a prohibited firearm. Mr Lagi was acquitted of murder but found guilty of two firearms offences. All four were on parole at the time of the shooting. At Mr Taufahema’s trial, the prosecution contended that he was party to a joint criminal enterprise of using a firearm to prevent arrest of the four men, but by the end of the trial this contention had changed to a joint enterprise to evade arrest, involving the shooting of a police officer as a foreseen possibility. In the Court of Appeal, the prosecution suggested that the joint enterprise was hindering a police officer in the execution of his duty. The Court allowed an appeal by Mr Taufahema against the murder conviction and ordered an acquittal rather than a new trial. Its reasons included flaws in the trial judge’s directions, evading arrest not actually being a crime, and the evidence not supporting that any agreement was made to hinder a police officer.

The prosecution sought special leave to appeal against the order of acquittal, even though it had not argued for a new trial at the Court of Criminal Appeal. The application was referred to a Full Court and argued as on appeal. By a 4-3 majority, the High Court granted special leave to appeal, allowed the prosecution appeal, and ordered that the verdict of acquittal be set aside and a new trial held. The prosecution argued that at a retrial it would submit that the four men were engaged in a joint criminal enterprise of armed robbery and that shooting another person was foreseen as a possible incident of that joint enterprise. This issue had not been argued at the trial and arose for the first time in the High Court. The majority said this was regrettable but there was no absolute bar to either side raising fresh points. It held that the prosecution was not prevented from requesting a new trial to be conducted on a different basis, provided the difference was not substantial. The prosecution proposed to rely on the same evidence in a second trial but to characterise it in a different way. The majority held that at the first trial the criminal enterprise revealed by the evidence was not identified as armed robbery but the evidence was capable of supporting an inference that it was. It held that that interpretation should be decided by a second jury.

Cornwell v The Queen [2007] HCA 12 (22 March 2007)

In this case, the High Court of Australia held that an alleged drug trafficker was unable to take advantage of protection against self-incrimination but should nonetheless have his application for an acquittal reconsidered by the Court of Criminal Appeal.

Mr Cornwell was charged with conspiracy to import 120kg of cocaine. His first trial, in the New South Wales Supreme Court before Justice Rod Howie, resulted in a hung jury. At the second trial, conducted in the NSW District Court by Judge Anthony Blackmore, Mr Cornwell was convicted on 8 June 2004 and sentenced to 24 years’ jail with a non-parole period of 14 years and six months.

In the first trial, Justice Howie admitted into evidence bugged conversations between Mr Cornwell and two other defendants, Juan Diez and John Lawrence, on the basis that the three were involved in supplying drugs to buyers in Australia and that this was highly probative of their participation in the conspiracy. Mr Cornwell sought a certificate against self-incrimination under section 128 of the NSW Evidence Act as he wished to object to testifying about the Diez-Lawrence conversations. Justice Howie said he would grant the certificate under section 128(6) after Mr Cornwell answered questions about the drug trade, meaning that that evidence could not be used against him. As it happened the certificate was not actually issued. This was not discovered until the second trial when the Director of Public Prosecutions asked to have Mr Cornwell’s testimony at the first trial admitted. Justice Howie then issued a certificate after application by Mr Cornwell and the Crown appealed. Justice Blackmore held that the Diez-Lawrence conversations went to a fact in issue so section 128(8) precluded Mr Cornwell from relying on the certificate to prevent his evidence from the first trial being tendered. Mr Cornwell did not give evidence at the second trial. He successfully appealed against conviction to the NSW Court of Criminal Appeal (CCA) which ordered a retrial. The Crown appealed this decision to the High Court. It also appealed against the CCA’s refusal to allow an appeal against Justice Howie’s grant of the certificate. Mr Cornwell also sought special leave to cross-appeal against the CCA’s order for a new trial instead of an acquittal. This application was argued as on appeal with the two Crown appeals.

The High Court, by a 4-1 majority, allowed the Crown appeal in relation to section 128(8), unanimously dismissed the appeal against Mr Cornwell’s conviction being overturned, and unanimously granted his application for special leave to cross-appeal and allowed the cross-appeal. The Court held that if section 128(8) was the controversial issue, it would have been appropriate to reinstate Mr Cornwell’s conviction, but four grounds of appeal to the CCA were not dealt with and one ground — that the verdict was unreasonable and not be supported by the evidence — was not fully explored and must be remitted for reconsideration by the CCA. The Court held that section 128 did not apply because Mr Cornwell’s testimony at the first trial about drug dealing was that he did an act which was a fact in issue or had a state of mind which was a fact in issue. Section 128 could not apply to Mr Cornwell about the Diez-Lawrence conversations. Justice Howie had erred in granting the certificate. The Court held that the first and second trials formed one proceeding — the prosecution of Mr Cornwell — so his testimony at the first trial was admissible at the second. Section 128 does not ensure that evidence received at a trial cannot be used at a retrial on the same charge. Judge Blackmore was not bound by Justice Howie’s rulings on section 128 and had the discretion to receive the evidence at the second trial.

The Queen v Hillier [2007] HCA 13 (22 March 2007) 

In this decision, the High Court of Australia held that the ACT Court of Appeal had erred in its approach to circumstantial evidence in a murder case.

Mr Hillier, 43, of Chisholm in Canberra, was charged with the murder his former de facto wife, Ana Louise Hardwick, 35, who was found strangled in her Isabella Plains home on 2 October 2002. The couple lived together from 1987 to 1999 and had two children. When they separated the children lived with Mr Hillier, but in June 2002, on Ms Hardwick’s application, the Family Court of Australia ordered that the children reside with her. Mr Hillier had an appeal pending when Ms Hardwick died. The prosecution case was that Mr Hillier murdered Ms Hardwick to avoid losing custody of their children. He was convicted in the ACT Supreme Court and sentenced to 18 years’ jail. The Court of Appeal, by majority, allowed an appeal and ordered that the conviction and sentence be set aside. It concluded there was a real possibility that another person was responsible for Ms Hardwick’s death, pointing to the presence of an another person’s DNA on Ms Hardwick’s pyjamas, a pair of handcuffs (still in their packaging) and matching marks on the bedhead, bruises on her wrists, footprints in soot from a fire lit in her bedroom after she died, and fingerprints and hair from an unidentified source. The Director of Public Prosecutions sought special leave to appeal to the High Court, arguing that the Court of Appeal erred in substituting its views of the evidence for the verdict of the jury, and in setting aside Mr Hillier’s conviction rather than ordering a retrial. The application was argued before a High Court full bench as on appeal.

The DPP argued that Mr Hillier had the opportunity to kill Ms Hardwick, he had a motive as he was concerned about losing custody, his DNA was also on Ms Hardwick’s pyjama top, and chemical injuries to his fingertips were caused to avoid being fingerprinted. In the week before she died, Mr Hillier made numerous phone calls to doctors, psychiatrists, lawyers and counsellors to seek assistance with his Family Court appeal, but the calls stopped when Ms Hardwick is thought to have died.

The High Court unanimously granted the special leave application and allowed the appeal. By a 4-1 majority, the Court remitted the matter to the Court of Appeal for rehearing. One member of the High Court would have ordered a retrial. The Court held that the majority in the Court of Appeal had identified facts which, examined in isolation from other evidence, were treated as requiring the conclusion that it was not open to the jury to be satisfied of his guilt beyond reasonable doubt. The High Court held that the Court of Appeal failed to consider whether, on the whole of the evidence, all of it circumstantial, it was open to the jury to be persuaded beyond reasonable doubt that Mr Hillier was guilty. Neither at trial, nor on appeal, was a circumstantial case to be considered in piecemeal fashion. The conclusion that a guilty verdict was not open to the jury could only be reached if some aspects of the evidence were assessed separately from the rest. The Court held that the reasoning of the Court of Appeal majority was erroneous.

Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 (18 April 2007)

The High Court of Australia in this case held that a section in the Migration Act imposing strict time limits on the seeking of remedies in the Court against adverse migration decisions is invalid.

Mr Bodruddaza was born in 1976 in Bangladesh. He entered Australia on a postgraduate research visa. Before it expired he sought a skilled independent overseas student visa. He failed two English tests which left him five points short of the 120 required for his visa application to be considered. His application was refused and he instructed a migration agent to seek a review of the Immigration Department’s decision. The 21-day period for filing a review application with the Refugee Review Tribunal expired on 6 February 2006. The application was filed the next day. On 9 May 2006, the RRT held that it did not have the jurisdiction to determine the review application as there was no provision for an extension of time. On 11 July 2006, Mr Bodruddaza instituted proceedings in the High Court, asserting that the department showed error in refusing him a visa and seeking writs of certiorari, prohibition and mandamus, to quash the department’s decision and to require determination by the Minister of the visa application. Section 75(v) of the Constitution provides that the Court has original jurisdiction for writs sought against Commonwealth officers.

The application to the High Court was outside the maximum 84-day period specified in section 486A of the Act. The section provides that an application to the Court to grant a remedy in exercise of its original jurisdiction in relation to a migration decision must be made with 28 days of actual notification of the decision. The High Court may extend this by 56 days upon application made within the 84-day period and if the Court is satisfied that to do so is within the interests of the administration of justice, but otherwise the Court must not make an order allowing an application for a remedy outside the 28-day period. High Court Rule 4.02 states that any period of time fixed by the Rules may be enlarged or abridged by the Court either before or after the time has expired. Section 486A denies the Court the capacity to make an order allowing an application out of time.

A special case agreed on by the parties asked whether section 486A applies to Mr Bodruddaza’s application and if so whether section 486A is invalid in respect of that application. A third question involves determination by the Court of the legal merits of the application, asking whether the department’s decision displayed jurisdictional error. The Court unanimously held that section 486A was invalid and thus does not validly deny the competence of the Court to hear the application. The section was inconsistent with the power of judicial review contained in section 75(v) of the Constitution. Section 486A, hinged on the date of actual notification rather than deemed notification, did not allow for a person becoming aware later of circumstances giving rise to a possible challenge to a decision, or allow for supervening events which may have led to a failure to act on time through no fault of the applicant. Mr Bodruddaza was one day late, apparently through failure by his migration adviser, and this could be dealt with through the Court’s discretion to grant or withhold a remedy under section 75(v). The Court held that section 486A is invalid and could not be read down or severed to preserve any valid operation.

However it held that Mr Bodruddaza had failed to show jurisdictional error by the department in assessing his visa application. He required 20 points for English skills to meet the points test but received only 15. Test scores had to be achieved through one test, not through an aggregate of his two tests.

Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15 (19 April 2007)

Third-party insurance pay-outs should be taken into account when reducing damages when a claimant’s own fault such as failing to wear a seatbelt has contributed to their injuries, the High Court of Australia held in this decision.

Mr Zhang, 33, suffered serious injuries as a passenger in a traffic accident on 24 December 1997 on the F6 freeway between Sydney and Wollongong. The driver, Mr Guang, lost control when the tread came off a tyre. Mr Zhang was thrown from the van. The accident occurred in his employment by Golden Eagle International Trading. In the New South Wales District Court, Mr Zhang sued Golden Eagle, Mr Guang and DMP, which had serviced the vehicle and certified it as roadworthy less than a month before. The action against DMP failed and DMP entered a submitting appearance in the appeal to the High Court. Golden Eagle and Mr Guang admitted liability but alleged that Mr Zhang was contributorily negligent because he did not wear a seatbelt.

Section 45 of the NSW Motor Accidents Act imposes a duty on third-party insurers to make certain payments once liability for an accident has been admitted by a person against whom a damages claim is made. Section 45(4) provides that payments made before a claimant obtains a damages judgment is a defence, to the extent of the amount paid, against a damages claim. At trial, Judge Audrey Balla assessed Mr Zhang’s damages at $2,791,761, reduced that by 30 per cent for contributory negligence, allowed an amount for funds management, then deducted the third-party insurance payment of $409,906, leaving $1,768,362.

The Court of Appeal held that the $409,906 should have been deducted first from the total damages before the reduction of 30 per cent for contributory negligence. This left Mr Zhang better off. The Court of Appeal also ordered that the recalculation should use prospective life expectancy tables, not historical tables, both from the Australian Bureau of Statistics.

Golden Eagle and Mr Guang appealed to the High Court, seeking reinstatement of Judge Balla’s decision. They submitted that the whole of the damages assessment, including the section 45 payment, is apportioned for contributory negligence, and only then are the section 45 payments deducted from the balance to reach the final amount. Mr Zhang submitted that effect would not then be given to the defence stipulated in section 45(4) if the insurer’s payments were treated as part of the total assessment.

The High Court, by a 3-2 majority, allowed the appeal and upheld Judge Balla’s method of calculating damages. It held that Mr Zhang’s argument would mean that section 45 payments are immunised from the effects of reducing damages for contributory negligence, which would mean an unjust result for the insurer and a windfall to Mr Zhang. The Court unanimously rejected a ground of appeal relating to life expectancy tables and held that the Court of Appeal was correct to use prospective rather than historic tables to get a more accurate assessment of life expectancy.

Commonwealth of Australia v Cornwell [2007] HCA 16 (20 April 2007)

In this case, it was held that the loss caused by incorrect superannuation advice given to a person in 1965 did not arise until his retirement in 1994, with the result that his negligence action was not defeated by the ACT statute of limitations.

In 1962 Mr Cornwell began working for the Commonwealth as the spray painter in the transport section of the former Department of the Interior at the Kingston bus depot in the ACT. He was classified as a temporary employee but employed full-time. In 1987, Mr Cornwell’s job was reclassified as a permanent public service position and he became a member of the Commonwealth Superannuation Fund, established in 1976. In 1994, his employment was transferred from the Commonwealth to the ACT but he remained within the Commonwealth super scheme and transferred into a new fund established in 1990. Mr Cornwell retired at the end of 1994 and was paid super benefits based on his combined membership of the 1976 fund and the 1990 fund.

He contended that, although classified as temporary, he had been eligible to join the original 1922 fund but that he had been dissuaded by misleading advice from applying. This was given by the transport section manager, Nelson Simpson, at a meeting in July 1965 and he had reasonably relied on that advice. Mr Simpson allegedly said Mr Cornwell was not entitled to join the super fund because he was an industrial and temporary employee. Mr Cornwell pleaded that the Commonwealth was vicariously liable for Mr Simpson’s advice and in reliance on that advice he had lost the opportunity to join the fund in 1965, when he would have become eligible after three years’ service as a temporary employee. If he had joined the fund in 1965, he would have been entitled on retirement after 29 years’ contributions to a pension of 44.1 per cent of his final salary. By joining in 1987, Mr Cornwell had seven years’ contributions which entitled him to a pension of only 12.6 per cent of his final salary.

Under section 11 of the ACT Limitation Act, action must be brought within six years of the cause of action accruing. Mr Cornwell instituted action in the ACT Supreme Court in 1999 against the Commonwealth for various causes of action. Chief Justice Terence Higgins held that the cause of action for negligent misstatement was not statute-barred as it had not accrued until Mr Cornwell’s retirement date of 31 December 1994. He held that the Commonwealth was vicariously liable for Mr Simpson’s statement, which caused Mr Cornwell to suffer economic loss. Chief Justice Higgins entered judgment for Mr Cornwell for damages to be assessed. An appeal to the ACT Court of Appeal by the Commonwealth was dismissed. The Commonwealth appealed to the High Court.

The Court, by a 6-1 majority, dismissed the appeal. It rejected the Commonwealth’s submission that Mr Cornwell first suffered loss when the 1976 scheme came into effect, and instead held that his loss was not necessarily and irretrievably sustained until his retirement in 1994. What was prospective before his retirement matured into actual loss only at the end of his service and he had met the statutory criteria for him to be entitled to a retirement benefit.

Burge v Swarbrick [2007] HCA 17 (26 April 2007)

Moulds used in the reproduction of a high-speed yacht did not attract copyright protection as works of artistic craftsmanship, the High Court of Australia held in this case.

Mr Swarbrick is a naval architect whose Perth company Swarbrick Yachts International Pty Ltd manufactures fibreglass yachts called the JS 9000, sold in Australia and around the world for up to $65,000. He designed the JS 9000 as a fast boat sailed easily by two or three people. Mr Swarbrick has also designed America’s Cup and Whitbread racing yachts. Mr Rogers and Mr Warren were employed by Swarbrick Yachts in the moulding of hulls and decks but left to work for Bold Gold to build a JS 9000 yacht using a hull and deck moulding which Bold Gold bought from Mr Rogers for $7,500. In late 2002, Mr Swarbrick gave Mr Rogers the moulding in disputed circumstances which have not been resolved. Mr Bosman and Mr Zaza formed Bold Gold Investments for the purpose of acquiring the moulding from Mr Rogers. Mr Burge was engaged as factory operation manager. Work at Bold Gold’s factory ceased in September 2003 after Justice Christopher Carr in the Federal Court of Australia granted Mr Swarbrick an interim injunction. The injunction prevents the manufacture of any mould using the JS 9000 hull and deck mouldings and the reproduction of the object called “the plug”, a hand-crafted full-scale model of the hull and deck sections of a finished JS 9000. The moulds are exact, although inverted, copies of the plug.

Section 77 of the Copyright Act provides for the limitation of copyright protection resulting from use of a corresponding but unregistered design but an exception is provided for “a work of artistic craftsmanship”. Justice Carr held that Bold Gold had infringed Mr Swarbrick’s copyright in the plug, the hull mould and the hull moulding, being artistic works, and had engaged in conduct which, but for the interim injunction, would have resulted in infringement of his copyright in artistic works being the deck mould and deck moulding. The Full Court dismissed an appeal. Bold Gold and its personnel then appealed to the High Court.

The Court unanimously allowed the appeal. It held that determining whether a work is “a work of artistic craftsmanship” does not turn on assessing the work’s beauty or aesthetic appeal or on assessing any harmony between its visual appeal and its utility. The determination turns on the extent to which the work’s artistic expression is unconstrained by functional considerations. Whether the plug was a work of artistic craftsmanship did not depend on Mr Swarbrick’s intention to design and build a yacht of great aesthetic appeal or on his belief that the JS 9000 had a high level of aesthetic appeal. The visual appeal was secondary to the functional aspects of a sports boat of high speed. The Court held that Justice Carr should have concluded that the plug was not a work of artistic craftsmanship because Mr Swarbrick’s work in designing it was not that of an artist-craftsman. It held that Justice Carr was however correct to describe the hull and deck mouldings as manifestations of the plug. The Court rejected a claim that the mouldings are independently works of artistic craftsmanship. It set aside all orders, including the injunction, made by Justice Carr and held that remaining cross-claims be stood over for determination by the Federal Court.

Bennett v Commonwealth of Australia [2007] HCA 18 (27 April 2007)

The High Court of Australia in this case dismissed a challenge to the validity of Commonwealth legislation requiring voters and candidates in Norfolk Island elections to be Australian citizens.

Norfolk Island became a territory of the Commonwealth in 1914 when it was placed under the authority of and accepted by the Commonwealth in accordance with section 122 of the Constitution. Norfolk Island has since been governed pursuant to a series of Commonwealth Acts. The Norfolk Island Act 1979 granted self-government and established the Legislative Assembly of Norfolk Island. The Norfolk Island Amendment Act 2004 amended the Norfolk Island Act to make Australian citizenship a necessary qualification for voting for, and standing for election to, the Legislative Assembly.

Norfolk Island was occupied as a British penal settlement from 1788 to 1814 and from 1825 to 1855. When the second penal settlement was abandoned, the Imperial authorities set aside Norfolk Island for occupation by the inhabitants of Pitcairn Island, which lies between New Zealand and Chile. Pitcairn Island was settled in 1790 by mutineers from the Bounty and some Polynesian men and women. The 200 or so inhabitants of Pitcairn arrived on Norfolk Island in June 1856.

From 1856 to 1914 Norfolk Island was administered by the Governor of New South Wales, although until 1897 the Governor administered Norfolk Island in his capacity as Governor of Norfolk Island. New South Wales took over the financial management of the island from 1897 to 1914. Since 1914, the Commonwealth has been responsible for financing the administration and the development and maintenance of infrastructure on Norfolk Island. The 2001 census recorded that Norfolk Island had a permanent population of 1574, of whom 82.5 per cent were Australian citizens and 14.1 per cent were New Zealand citizens, and that 48 per cent were descended from the Pitcairn Islanders.

The Court held unanimously that the Norfolk Island Amendment Act was a valid exercise of the Commonwealth Parliament’s power to make laws “for the government of any territory” under section 122 of the Constitution. The Court rejected the plaintiffs’ contention that in providing for self-government of the island, Parliament was obliged to provide for a particular type of democratic representation that did not discriminate on the basis of Australian citizenship. Nothing in section 122 or elsewhere in the Constitution prohibited Parliament from granting electoral rights on the basis of Australian citizenship.