Cunningham v Commonwealth of Australia [2016] HCA 39: Parliamentary Retirement Allowances
Wednesday 12 October 2016 @ 11.45 a.m. | Legal Research
Four former Members of Parliament have lost a High Court challenge after the Court unanimously ruled that reductions to their retirement allowances did not constitute an acquisition of property on unjust terms within the meaning of s51(xxxi) Constitution. In the case of Cunningham v Commonwealth of Australia [2016] HCA 39, the Court did not agree with former Members Barry Cunningham, Tony Lamb, John Moore, and Barry Cohen that a series of decisions by the remuneration tribunal as well as government amendments to superannuation schemes had wound back their entitlements and essentially was an acquisition of their property on unjust terms.
Background to the Case
One of the central issues was the Life Gold Pass entitlements which, when introduced in 1918, allowed former ministers unlimited domestic travel. However, since amendments were introduced in 2002, the number of travels was reduced to 25 and again reduced to 10 in 2012. The former Members brought the matter before the Full Court of the High Court as a special case to adjudicate on the issue of law arising from the tribunal determinations and government amendments. The questions of law included whether the retiring allowance amendments, the Determinations, and the enactment of amendment to the Life Gold Pass Act, constitute or authorise an acquisition of property otherwise than on just terms, within the meaning of s 51(xxxi) of the Constitution.
Decision of the High Court
The court rejected the argument and held that the retiring allowance amendments were not laws with respect to the acquisition of property nor did the tribunal determinations constitute an acquisition of property. By majority, the High Court further ruled that the entitlements to retiring allowances were inherently liable to variation, because the rights stipulated in the Superannuation Act depended for their content upon the will of the Parliament as exercised from time to time. The High Court further held, by a majority, that the Life Gold Pass Act and its subsequent amendment were similarly not laws with respect to the acquisition of property.
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