Theophanous v Commonwealth of Australia [2006] HCA 18

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ

ANDREW CHARLES THEOPHANOUS PLAINTIFF

AND

COMMONWEALTH OF AUSTRALIA DEFENDANT

Theophanous v Commonwealth of Australia

[2006] HCA 18

11 May 2006

M22/2005

ORDER

The questions set out in the Amended Case Stated are answered as follows:

(1) Q. Is Pt 2 of the Crimes (Superannuation Benefits) Act 1989 invalid in so far as it purports to authorise the making by the appropriate court of a superannuation order under s 19 of the Act on the ground that Pt 2 purports to confer federal jurisdiction on State and Territory Courts that is contrary to Chapter III of the Constitution?

A. Unnecessary to answer.

(2) Q. Is Pt 2 of the Crimes (Superannuation Benefits) Act 1989 invalid in so far as it purports to authorise the making by the appropriate court of a superannuation order under s 19 of the Act on the ground that Pt 2 is a law with respect to the acquisition of property otherwise than on just terms?

A. Pt 2 in its application to the pending application for a superannuation order against the plaintiff is a valid law of the Commonwealth.

(3) Q. Who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court?

A. The plaintiff.

Representation:

G R Kennett with R M Niall for the plaintiff (instructed by Zindilis Barristers & Solicitors)

D M J Bennett QC, Solicitor-General of the Commonwealth with C J Horan for the defendant (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Theophanous v Commonwealth of Australia

Constitutional Law (Cth) – Acquisition of property – Plaintiff formerly a member of the House of Representatives of the Parliament of the Commonwealth – Plaintiff entitled to a retirement allowance in accordance with s 18 of the Parliamentary Contributory Superannuation Act 1948 (Cth) ("Superannuation Act") – Plaintiff convicted after trial on indictment of offences answering the description of "corruption offence" within s 2(1) of the Crimes (Superannuation Benefits) Act 1989 (Cth) ("CSB Act") – Commonwealth Director of Public Prosecutions applied to the County Court of Victoria for a superannuation order in respect of the plaintiff pursuant to s 17 of the CSB Act – Effect of superannuation order would include cessation of all rights of and benefits payable to or in respect of the plaintiff under the Superannuation Act – Whether Pt 2 of the CSB Act invalid as providing for the acquisition of property otherwise than on just terms – Whether the acquisition effected by Pt 2 of the CSB Act of a kind with which "just terms" is an inconsistent or incongruous notion – Whether the operation of Pt 2 of the CSB Act reasonably incidental to the exercise of a head of power other than s 51(xxxi) – Whether the operation of Pt 2 of the CSB Act a reasonably proportional consequence of breach of the law in question.