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Stephen McDonald[∗]
The early cases on the Australian territories approached them not as constituent parts of the Commonwealth, but as subordinate to it, with the result that the territories power, s 122 of the Constitution,[1] was held to be unaffected by other constitutional provisions.[2] Most strikingly, Ch III of the Constitution was wholly inapplicable to the courts and judicial proceedings of the territories. Even the important doctrine that Ch III is exhaustive of the judicial power of the Commonwealth did not restrict the Parliament's power to confer appellate jurisdiction on the High Court under s 122.[3]
In more recent cases, majorities of the High Court have adopted a more cohesive approach which considers s 122 in the context of the Commonwealth Constitution as a whole.[4] The view that the territories are disjoined from the Commonwealth is no longer tenable, if it ever was.
The courts and the judicial power in the territories must now be reconsidered in the context of Commonwealth constitutional arrangements, including an integrated judicial system under the supervision of the High Court, and a unified Australian common law. As Gummow J has said:
The entrusting by Ch III, in particular by s 73, to this Court of the superintendence of the whole of the Australian judicial structure, its position as ultimate interpreter of the common law of Australia and as guardian of the Constitution are undermined, if not contradicted, by acceptance, as mandated by the Constitution, of the proposition that it is wholly within the power of the Parliament to grant or withhold any right of appeal from a territorial court to this Court.[5]
The High Court is the most 'national' of the institutions created by the Constitution, so it is natural that the re-integration of the territories should begin with the judicial power and, in particular, with the relationship of territory courts to the High Court.
This article aims to explain the application of Ch III to the territories and the implications of an approach which sees territory courts as among the 'other courts' vested with federal jurisdiction, contemplated by s 71. Part II considers the Australian judicial system and the importance of the High Court's role in unifying the Australian States and territories. Part III examines the appellate jurisdiction of the High Court under s 73 of the Constitution, arguing that territory courts should be brought within the integrated judicial system which Ch III creates. If Australian law is to be applied with consistency throughout the Commonwealth, it is essential that a general constitutional appeal be available from the decisions of territory courts to the High Court. Part IV is concerned with the relationship between territory courts and 'federal jurisdiction'. The extent to which, and basis upon which, the courts of a territory exercise federal jurisdiction is not yet clear. It is argued that all jurisdiction of territory courts should be considered 'federal jurisdiction', even though they are not 'federal courts'. Part V outlines the consequences for the powers of territory courts and other courts in relation to the territories.
Any consideration of the early cases on the relationship between the territories and Ch III of the Constitution must begin with R v Bernasconi.[6] In that case, the Court held that the requirement of trial by jury in s 80 of the Constitution did not apply to offences created by legislation passed pursuant to s 122.
The judgments in R v Bernasconi referred to the earlier case of Buchanan v The Commonwealth,[7] which had decided that legislation passed under s 122 need not comply with the requirements of s 55 of the Constitution.[8] Buchanan v The Commonwealth itself considered a narrow question about the proper construction of s 55, but was treated as indicating that s 122 was unfettered by other sections of the Constitution generally, and the reasoning in R v Bernasconi went much further than just the construction of s 80. The approach of the case is summed up by the following statement from the judgment of Griffith CJ:
Chapter III is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories.[9]
Subsequent cases[10] confirmed the early doctrine and, by the 1950s, the Privy Council felt able to conclude that '[t]he legislative power in respect of the territories is a disparate, non-federal matter'.[11]
The decision in Lamshed v Lake began to break down the doctrine which had reigned for the first half of the twentieth century. The Court, led by Dixon CJ, rejected an argument that the phrase 'law of the Commonwealth' in s 109 of the Constitution did not encompass a law enacted pursuant to s 122.[12] Most crucially, the decision recognised that the Constitution must be read as a whole, and that s 122 must be interpreted in that context. Although it was unnecessary to overrule the earlier cases, the judgment of Dixon CJ cast a long shadow of doubt over the interpretation which they had given to s 122.
R v Bernasconi remains authority for what it decided. The confident views of early members of the Court have been undermined,[13] although perhaps not yet overthrown.[14]
Reasons offered for regarding s 122 as disjoined from the rest of the Constitution include its placement in Ch VI of the Constitution, the 'plenary'[15] nature of the power and the lack of the express words 'subject to this Constitution'. However, none of those reasons are persuasive.
It might be thought that, were Chs I-III intended to 'apply to' the territories, the territories power would have been placed in s 52, which deals with other exclusive powers of the Commonwealth Parliament, rather than in Ch VI, relating to the admission of new States. It is arguable that the language of ss 111 and 122 is apt to bring them within the ambit of s 52(iii),[16] but this analysis has received little attention.[17]
If the location of s 122 were sufficient to force the conclusion that Ch III was 'inapplicable to the territories', the same argument must apply equally to Chs I and II. However, at least some provisions in those Chapters must affect the territories. A number of sections were referred to by Barwick CJ in Spratt v Hermes,[18] and one might add to those ss 58, 59, 60 and 68. Furthermore, the powers conferred upon the Commonwealth Parliament by ss 51 and 52 must authorise laws operating in the territories.[19] Perhaps the most obvious is the first limb of s 52(i) which gives the Parliament exclusive power to make laws 'with respect to … the seat of government', which must be 'within territory' acquired by the Commonwealth.[20]
Some provisions within Ch III must also necessarily apply in the territories.[21] For example, the High Court's original jurisdiction to issue mandamus, prohibition or injunction to restrain officers of the Commonwealth acting beyond jurisdiction[22] must extend to officers in a territory,[23] as must jurisdiction over matters in which the Commonwealth is a party.[24] Likewise, ss 74 and 78 must extend to matters arising in a territory.
The omission of the words 'subject to this Constitution' from s 122 might suggest that the territories power is of a different order to those in ss 51 and 52. However, 'it can hardly be suggested that s 122 operates other than subject to the Constitution, and, in particular, that it is not to be read with the Constitution as a whole'.[25] At the very least, s 122 must be read with the provisions constituting the Commonwealth Parliament, the existence of which its terms presume. Similarly, if s 122 were not read with s 128, the Parliament could alter the Constitution without the approval of the electors, as required by the latter section. Using s 122, the Parliament might also defeat the ostensible purpose of central constitutional provisions, such as s 90 (by providing for duties of excise for a territory),[26] or s 92 (by preventing interstate trade, commerce or intercourse through a territory).
It is impossible to suggest seriously that s 118's requirement that full faith and credit be given, throughout the Commonwealth, to the laws and judicial proceedings of every State, does not apply in the territories,[27] and, given that s 122 permits the Commonwealth Parliament to make laws for their government, it is absurd to suggest that the laws of the Commonwealth might not be binding on the courts, judges and people of those territories.[28]
As well as these clear textual and logical indications, the convention debates also suggest that little significance should be attributed to the placement of the territories power into Ch VI.[29] The reason for placing s 122 in Ch VI was not to avoid the application of Ch III in the territories. Rather, it was thought that the 'New States' envisaged by Ch VI would begin as territories.[30] Any new State admitted or established under s 121 would undoubtedly be 'part of the Commonwealth', so there is no justification for treating Ch VI as outside the provisions dealing with 'the Commonwealth'.
Furthermore, ss 111 and 125 explicitly recognise that territories may be carved out of the geographical area of the Original States. It would be odd if, upon acceptance by the Commonwealth, such territories (particularly the Australian Capital Territory[31]) ceased to be 'part of the Commonwealth'.
Barwick CJ took the opportunity, in Spratt v Hermes,[32] to explode the fallacies of the early doctrine, holding that Ch III should not be regarded as wholly inapplicable to the territories. However, feeling bound by the decisions in earlier cases, he sought to construct a principle which would allow certain provisions of Ch III to apply in the territories, while denying the operation of other provisions. This approach seized upon the word 'federal', which appears in several contexts in Ch III. Barwick CJ held that the territories power was 'non-federal',[33] so that the courts of a territory were not 'federal courts', and could not exercise 'federal jurisdiction'.
While the legislative power conferred by s 122 might be described as 'non-federal' in the sense that that power is not 'shared in any wise with the States',[34] that is the full extent to which it can be so described. As Barwick CJ acknowledged, the word 'federal' is 'not always used with conformity or with precision'.[35] Obviously then, acceptance of the statement that, on one meaning of the word, the territories can be described as 'non-federal', does not compel a conclusion that s 122 is, in all respects, a 'non-federal power'.
Several different usages of the word 'federal' were identified and discussed by Quick and Garran:
(1) As descriptive of a union of States, linked together in one political system.
(2) As descriptive of the new State formed by such a union.
(3) As descriptive of dual system of government, central and provincial.
(4) As descriptive of the central governing organs in such a dual system of government.[36]
It appears that Barwick CJ adopted the third of Quick and Garran's meanings. Because there is no 'dual system of government' in the territories, so the argument goes, the territories are not part of the 'federal system' — the 'Commonwealth proper'[37] — and the provisions of the Constitution concerning the relationship between the Commonwealth and States are inapplicable to them. However, the word 'federal' is clearly used, in some sections of the Constitution, with the other meanings identified by Quick and Garran. For example, some heads of 'federal jurisdiction'[38] are 'federal' under Quick and Garran's fourth meaning.
However, to state simply that the territories are 'federal' under the fourth meaning would be to over-simplify the position. Such a statement ignores the fact that the polity 'the Commonwealth' exists only by virtue of the union of colonies (now States) which created it. When it is remembered that the Commonwealth is the product of the union of States, it becomes apparent that any matter which is 'federal' under Quick and Garran's fourth meaning, is also a matter which involves the union (and is thus federal under their first and second meanings).[39]
Once it is accepted that the word 'federal' is not always used consistently, it is evident that the blanket statement, that the territories are a 'non-federal matter', is false. Such a statement is apt to mislead and is not, without further analysis, useful in determining whether, on their proper construction, other sections of the Constitution apply to the territories.[40]
The very object of federation was to bring into existence one nation and one people.[41] However, those who would treat the territories as 'non-federal' ignore that they are part of the one Commonwealth. In Spratt v Hermes, Menzies J also felt constrained by previous decisions. However, he recognised the difficulties in the approach taken by Barwick CJ:
To me, it seems inescapable that territories of the Commonwealth are parts of the Commonwealth of Australia and I find myself unable to grasp how what is part of the Commonwealth is not part of 'the Federal System': see the Commonwealth of Australia Constitution Act, s 5, which refers not only to every State but to 'every part of the Commonwealth'.[42]
The representation of some territories by voting members in the federal Parliament[43] and subsequent constitutional recognition[44] of this state of affairs support the proposition that the territories are part of the Commonwealth. The people of the territories are involved in the government of the federation, including the geographical areas of the States.
It has been suggested that the so-called internal territories — the Northern Territory, Australian Capital Territory and Jervis Bay Territory — might be part of the Commonwealth, but that external territories, those which at federation were not parts of an Original State, might not.[45]
Support for this approach might be sought in s 111, which applies only to territories surrendered by a State and accepted by the Commonwealth, and provides that those territories, upon surrender, become 'subject to the exclusive jurisdiction of the Commonwealth'.[46] This might be thought to give rise to a negative implication that other territories are not subject to the exclusive jurisdiction of the Commonwealth. However, in the light of s 122, which extends to all territories howsoever acquired, that suggestion is untenable. Section 111 indicates only that the State which has surrendered its territory to the Commonwealth retains no governmental power with respect to that territory. The word 'exclusive' here means 'exclusive of the State formerly exercising jurisdiction over the territory'.
In Capital Duplicators Pty Ltd v Australian Capital Territory, Brennan, Deane and Toohey JJ identified the 'creation of a free trade area embracing the geographical area of the uniting Colonies' as a purpose of s 90.[47] They declined to consider whether the free trade area now included other territories. It is difficult to see why any free trade area created by the Constitution should be frozen as at 1900; the acquisition of territories by the Commonwealth is foreshadowed in the constitutional text and there is no reason why the free trade area should not expand accordingly when the Commonwealth is expanded, so as to include the populations of new territories.[48]
Furthermore, the possibility of external territories being admitted as new States of the Commonwealth[49] indicates that 'the Commonwealth' may include land beyond the geographical limits of the Original States.[50]
Once it is accepted that the internal territories are included in the expression, 'the Commonwealth' and that areas geographically external to the island of Australia may be parts of the Commonwealth, there is no justification for differential treatment of external and internal territories. Also, the words of s 122, dealing with all of the territories 'compendiously and briefly',[51] provide no textual justification for differential treatment.
This analysis receives support from the decision in Berwick Ltd v Gray.[52] In that case it was held that, with the possible exception of the League of Nations mandated territories and United Nations trust territories,[53] 'external territories form part of the Commonwealth of Australia'[54] and, in particular, that Norfolk Island was to be regarded as part of the Commonwealth.[55]
One of the clearest features of the Constitution is that it provides for an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth.[56] The High Court has held that there is one single common law of Australia, rather than a separate, potentially distinct, common law for each State.[57] The role of the High Court in developing the common law of Australia has important consequences for the relationship between Ch III and s 122.
Sir Owen Dixon regarded the common law as 'a jurisprudence antecedently existing into which our system came and in which it operates'.[58] On this view, the common law provided the authority for the Parliament at Westminster to enact the Australian Constitution, and the common law's recognition of the Constitution's legitimacy is the source of its continued application. The antecedent jurisprudence of the common law is reflected in Dixon's statement that '[w]e conceive a State as deriving from the law; not the law as deriving from a State'.[59]
Despite his conception of the common law as an antecedent jurisprudence, Dixon recognised the legitimacy of departures from House of Lords precedents.[60] If the common law may develop differently in Australia in comparison with England, it might be wondered why variation between Australian States and territories should not also be allowed.
In Lipohar v The Queen, Gaudron, Gummow and Hayne JJ explained that the position of the High Court, as the apex court of the Australian judicial system, produced uniformity in the common law of Australia. The doctrine of precedent, they said, was central to an understanding of the common law.[61] Because decisions of the High Court in common law matters are binding upon all other Australian courts, it follows that the unity of the common law throughout the Australian judicial system is maintained.[62]
The language chosen might suggest that s 73 itself causes the common law of Australia to be the same throughout the nation. However, it is suggested that this is not what was intended. The opposite is in fact true: the presumption that the common law would be uniform facilitated the creation of a national court of appeal.[63]
It cannot yet be said with certainty that an appeal is available to the High Court from all courts which might apply the common law of Australia.[64]
On present authority,[65] appeals to the High Court in some common law matters arising in the territories could be prevented. The doctrine of precedent, while supporting the proposition, cannot, in the absence of confirmation that s 73 encompasses appeals from territory courts to the High Court, show conclusively that there is a single common law throughout Australia.
Notably, Kirby J, in his separate judgment in Lipohar, described the integrated judicature established by Ch III as 'a reason why, in Australia, there can ultimately be but one unified common law'.[66] It cannot be relied upon as the only reason, although s 73 provides a manifestation, in the constitutional text, of the underlying doctrine. The uniform common law is, like the rule of law,[67] simply assumed by the Constitution, with some indication of that assumption evident from the text.[68] The position of the High Court ensures that there exists a means to maintain the unity of the common law, but did not itself cause the common law to be uniform.[69]
The role of the High Court as the ultimate court of appeal for the whole of Australia is a manifestation of the idea that the Constitution brought the Australian colonies together into one community.[70]
As Deane J has pointed out,[71]
even if it is now correct to describe Australian sovereignty as resting with the Australian people,[72] this does not detract from the historical fact that a single common law was inherited from England. Nor can it deny the common law's important role as a part of the whole law within the context of which the Constitution must be understood and interpreted.[73]
The fact that the High Court is indispensable to the Australian judicature, while appeals to the Privy Council could be limited entirely,[74] suggests (with the benefit of hindsight) that changing relations with the United Kingdom over time would enable the Australian common law to diverge from the common law of England.[75] The gradual recognition of Australia as a sovereign nation provides legitimacy for departures by Australian courts from House of Lords authorities, and the recognition of a distinct Australian common law.[76]
The common law of Australia is the law of a nation, and the territories are properly regarded as part of that nation. It follows that the common law which applies in the territories is the common law of Australia.[77]
Section 73 of the Constitution grants the High Court jurisdiction in appeals from the decisions of State Supreme Courts, federal courts and courts exercising federal jurisdiction. In Porter v The King; Ex parte Yee,[78] it was held that the Parliament could confer upon the High Court jurisdiction to hear an appeal from the Supreme Court of a territory, this power deriving not from s 73 but from s 122.
Following the sweeping disjunctive approach laid down in R v Bernasconi,[79] and, in particular, the holding that 'the judicial power of the Commonwealth' in Ch III refers only to 'the judicial power of the Commonwealth proper',[80] Isaacs, Rich and Starke JJ held that s 122 could sustain a law permitting appeals to the High Court. Higgins J, who had dissented in In re Judiciary and Navigation Acts,[81] sought to confine that decision to the High Court's original jurisdiction.[82] Knox CJ and Gavan Duffy J dissented, holding that the High Court existed only to perform the functions described in Ch III and that the Parliament was impliedly prohibited from adding to those powers under any other section.[83]
The holding that s 122 allows the Parliament to provide for an appeal from a territory court to the High Court does not sit well with the principle in In re Judiciary and Navigation Acts,[84] that Ch III provides an exhaustive statement of the actual and potential jurisdiction of federal courts. That principle was applied in the Boilermakers' Case,[85] where the majority explained Porter v The King; Ex parte Yee as depending upon the view that the provisions of Ch III are exhaustive only as regards 'the federal system', and that the territories did not form part of that system.[86]
There is one other anomalous aspect of High Court appellate jurisdiction which deserves attention. The High Court has jurisdiction to hear and determine appeals from the Supreme Court of Nauru.[87] The Court has decided two appeals[88] in the purported exercise of this jurisdiction, but, since jurisdiction was not challenged in either case, they cannot be regarded as strong authority for the validity of the legislation.
If, as is suggested by Porter v The King; Ex parte Yee and the Nauru cases, the High Court may hear appeals outside s 73 of the Constitution, there would seem to be no reason why the Parliament could not provide for an appeal to the High Court from a judicial determination[89] that did not constitute a 'matter'. Appeals under s 73 are limited to appeals from 'judgments, decrees, orders, and sentences', but if the Parliament may create avenues of appeal outside s 73, it could provide that the Court should hear appeals from an advisory opinion of a State court exercising State jurisdiction.[90] However, this would be inconsistent with the principle that Ch III exhausts the judicial power of the Commonwealth, which has been held to apply to appellate as well as original jurisdiction.[91]
In light of the place of the territories as part of the Commonwealth, the practical result achieved in Porter v The King; Ex parte Yee — allowing the Parliament to provide for an appeal from a territory court — is preferable to the position of the minority. However, it should now be recognised that the judicial power of the Commonwealth may, through Ch III, be vested in the courts of a territory, in addition to federal and State courts.[92]
If the Nauru appellate jurisdiction is properly regarded as 'appellate' jurisdiction, and is to be sustained as valid, it must be distinguished on the basis that Ch III deals with the jurisdiction of the High Court and other federal courts only in relation to the judicial power of Australia (that is the Commonwealth, States and territories — the entities with which the Constitution deals). This reasoning is akin to that which placed s 122 outside the 'federal system', but is clearly more tenable in the case of a foreign nation (which is truly outside the federal system) than to a territory of the federation.[93]
While, on the authority of Porter v The King; Ex parte Yee, s 122 is capable of sustaining a law providing for an avenue of appeal to the High Court from a territory court, there is no requirement that s 122 be exercised in this way. Such an appeal is available only if expressly granted through legislation. In contrast, the appellate jurisdiction in s 73 is directly granted by the Constitution itself.[94] If appeals from territory courts to the High Court could be brought under s 73, this would obviate the need for positive action by the Commonwealth Parliament for the High Court to hear appeals from territory courts. It would also avoid the logical difficulties inherent in Porter v The King; Ex parte Yee.
The territory courts form part of the integrated Australian judicature. The High Court — the ultimate arbiter of the common law of Australia — ought to have jurisdiction to hear appeals from the courts of the territories. If the avenue of appeal from territory courts to the High Court could be blocked, an 'evident purpose'[95] of the Constitution, to create an integrated national system of law, would be defeated; a rogue territory court could develop the common law in a manner which was inconsistent with the common law of Australia laid down by the High Court, leaving it powerless to correct any error. More unthinkable still, if appeals to the High Court were not constitutionally entrenched in matters involving the interpretation of the Commonwealth Constitution, it could receive non-uniform interpretation in some territories. This would undermine the Court's role as the 'guardian of the Constitution'[96]
at the apex of a judiciary 'functionally charged with upholding the rule of law'.[97] If an interpretation which places the decisions of territory courts within the compass of s 73 is open on the language, that interpretation should be preferred to one relying solely upon s 122.
Section 73(ii) specifies courts from which an appeal lies to the High Court.[98] Obviously, a territory court is neither 'the Supreme Court of any State' nor 'any other court of any State'; and it was held in Re Governor, Goulburn Correctional Centre; Ex parte Eastman that a territory court is not a 'federal court' within the meaning of ss 71 and 73.[99]
The only remaining class, into which territory courts must fall if there is to be an appeal from them pursuant to s 73, is 'court[s] exercising federal jurisdiction'.[100]
The constitutional aim of creating an integrated judicial system could be frustrated, in theory, if the High Court could be prevented from hearing appeals from other Australian courts. The extent to which the High Court's s 73 jurisdiction is constitutionally entrenched is not entirely clear,[101] although authority favours the view that much of that jurisdiction is not entrenched. The critical phrase in s 73 is 'with such exceptions and subject to such regulations as the Parliament prescribes'.[102]
The second paragraph of s 73 (the 'proviso') denies the Parliament the power to prevent the High Court from hearing appeals from State Supreme Courts in matters in which, at the establishment of the Commonwealth, an appeal lay to the Privy Council, either as of right or by special leave.[103]
As with ss 75 and 76, the words 'any matter' in s 73 refer not to individual matters which had already arisen at the establishment of the Commonwealth, but to classes of matters. The effect of the proviso is to guarantee an appeal from all judgments, decrees, orders and sentences[104] of State Supreme Courts.[105]
Of course, the proviso applies only to the decisions of State Supreme Courts. It has no application to territory courts, nor to inferior State courts. Quick and Garran considered that, appeals from State Supreme Courts apart, 'the power to except and regulate is … absolute and unlimited',[106]
leaving the appellate jurisdiction 'very much at the mercy of the Legislature'.[107] In the Engine Drivers' Case,[108] four judges cited the decision in R v Murray and Cormie; Ex parte the Commonwealth[109] for the unqualified proposition that the Commonwealth Parliament could make final and conclusive (ie not subject to appeal) a decision of the New South Wales County Court made in the exercise of federal jurisdiction. In fact, that case stands for a much narrower proposition; it decided that the imposition of a limited time period in which to lodge an appeal against a decision, after which it would become final and conclusive, was a valid exercise of the power to prescribe exceptions.[110]
In Watson v Federal Commissioner of Taxation,[111] the Court unanimously upheld the validity of an exception to its appellate jurisdiction. Section 22 of the Judiciary Act 1903 (Cth) provided that the High Court's original jurisdiction could be exercised by a single Justice, and s 196(3) of the Income Tax and Social Services Contribution Assessment Act 1936 (Cth) provided that the Justice's decision was to be final and conclusive. Importantly, however, s 18 of the Judiciary Act permitted the referral of a matter from a single Justice to a Full Court, although the parties in Watson had not availed themselves of that provision.[112]
In Collins v Charles Marshall Pty Ltd, the majority approached the Parliament's power to prescribe exceptions with greater caution, suggesting that 'after all it is only a power of making exceptions', and 'it would be surprising if it extended to excluding altogether one of the heads specifically mentioned by s 73'.[113] In Cockle v Isaksen, Dixon CJ, McTiernan and Kitto JJ further elaborated upon the exceptions which would, in their view, be permissible.[114] The legislation in issue in that case,[115] which prevented appeals to the High Court from certain judgments of inferior State courts, was upheld on the basis that 'it does not eat up or destroy the general rule laid down by the Constitution that appeals shall lie' to the High Court.[116] Importantly, in those matters, an appeal was available to the Commonwealth Industrial Court and the decisions of that court were, in turn, subject to the s 73 appellate jurisdiction, so that the matter could ultimately reach the High Court.
Because of the importance of the High Court for the uniform interpretation of law throughout the Commonwealth, a narrow interpretation of 'exceptions' should be preferred. It is suggested that, while exceptions from certain decisions may be prescribed, all matters must ultimately be capable of appellate review by the High Court.[117] This is narrower than the principle proposed in Collins v Charles Marshall Pty Ltd, which would seem to allow any exception which did not destroy the general rule. However, the decisions discussed above would still stand on the application of this narrower test, with the exception of the Engine Drivers' Case.[118]
Permissible exceptions might include restrictions on appeals from interlocutory orders where those orders could be reviewed in an appeal from a final judgment, and reasonable[119] time limitations within which an appeal must be instigated.[120] It may also be appropriate to adopt a less strict approach for exceptions to appeals from decisions of the High Court exercising original jurisdiction, such as in Watson,[121]
particularly where original jurisdiction is exercised by a Full Court.[122] It would be absurd to require an appeal from the Full Court to itself. The power of a single Justice to refer matters of importance to the Full Court[123] might be essential to the validity of a law preventing an appeal from a decision of a single Justice. Although s 73 does not, on its face, suggest differential treatment between appeals from 'any Justice or Justices exercising the original jurisdiction of the High Court' and other matters, such an exception would not frustrate the Court's constitutional role, given the power of referral to the Full Court. Thus, the allowance of this exception gives the widest possible scope to 'exceptions', while preserving consistency with the purpose of covering cl 5 and Ch III.
In recent years, several Justices of the High Court have appeared to reason from the basis that the High Court's appellate superintendence is constitutionally entrenched to a significant degree.[124] In Gould v Brown, Brennan CJ and Toohey J spoke of 'the Constitution's clear intention to spread this Court's appellate net to cover all judgments given by federal courts, State Supreme Courts and other courts exercising federal judicial power.'[125] They would have allowed the vesting of State jurisdiction in federal courts, and in so doing, would apparently treat appeals from federal courts identically to those from State Supreme Courts.
Indirect support for the view that 'exceptions' should be given a narrow construction is to be found in the observation of McHugh J in Kable v Director of Public Prosecutions (NSW), that
a State law that prevented a right of appeal to the Supreme Court from, or a review of, a decision of an inferior State court, however described, would seem inconsistent with the principle expressed in s 73 and the integrated system of State and federal courts that covering cl 5 and Ch III envisages.[126]
If the appeal from the Supreme Court of each State to the High Court, under s 73(ii), is to be read as restricting the power of State Parliaments to preclude review of the decisions of inferior State courts in matters of State and federal jurisdiction, the same federal jurisdiction, if exercised by a federal (or territory) court, should not be capable of exclusion from High Court superintendence. This is especially so in matters involving the exercise of 'accrued jurisdiction' which would, but for the associated 'federal law question', have had to have been decided by a State Supreme Court.
Due to the High Court's perceived role as 'guardian of the Constitution',[127]
the inclusion of jurisdiction over matters '[a]rising under this Constitution or involving its interpretation' in s 76 rather than s 75 has puzzled commentators.[128] Direct challenge to Commonwealth legislation is entrenched by s 75(iii), but constitutional issues may arise in other litigation and it would be odd if the Commonwealth Parliament could prevent the High Court from hearing appeals from such matters.
In R v Federal Court of Australia; Ex parte Western Australian National Football League (Inc),[129] a majority held that, as s 39B of the Judiciary Act then stood, it was beyond the jurisdiction of the Federal Court to determine whether a corporation was a trading corporation within the meaning of s 51(xx) of the Constitution.[130]
Mason J considered that the Federal Court could determine a constitutional question arising in the exercise of its jurisdiction, subject to the principle that 'other courts and tribunals cannot be entrusted with jurisdiction and power to decide constitutional facts free from supervision by this Court'[131] by means of either an appeal or judicial review. The Parliament, he said, could not validly repose jurisdiction to finally and conclusively determine the existence or non-existence of a constitutional fact in either a tribunal or a court other than the High Court.[132]
Unless s 73 guarantees an appeal to the High Court, it is difficult to see why another federal (or State) court, exercising the same s 76(ii) jurisdiction as the High Court, could not finally and conclusively decide any matter involving constitutional interpretation.[133] The language of s 73 does not suggest that matters involving constitutional interpretation should be treated differently from other heads of jurisdiction in ss 75 and 76.
The attribution of a narrow meaning to the word 'exceptions' could be criticised on the basis that s 73 is, inter alia, a grant of power to the Parliament and that, as such, it should be liberally construed.[134] However, this rule is not absolute and should not be applied where there is 'something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose'.[135]
Since the creation of an integrated system of State and federal courts, with the High Court at its apex, is a purpose of Ch III,[136] s 73 should be construed, as far as possible, so as to carry out that objective. The potential mischief of irremediable inconsistency in the interpretation of the common law of Australia, federal legislation and the Constitution provides a warrant for construing the grant of power narrowly.
Furthermore, limitations on governmental power, or constitutional guarantees, should also be given a broad interpretation.[137] The placing of the High Court in 'final superintendence over the whole of an integrated national court system'[138] is a constitutional guarantee of some aspects of the rule of law.[139] The court's jurisdiction should be appropriately construed by giving the Parliament's power to create exceptions a limited application.
It can be argued that, because the proviso expressly declares that no law shall prevent appeals from decisions of State Supreme Courts, it is to be implied that, in all the cases of all other courts, the Parliament may prevent appeals. However, as there can be no appeal from a State Supreme Court to any other court in State matters,[140] appeals to the High Court from those courts could never be the subject of exceptions. In all other cases envisaged by s 73, however, at least one parliament, Commonwealth or State, may interpose an intermediate appellate court or courts between the primary court and the High Court.[141]
Thus, so long as 'appeal' in s 73 is taken to mean 'direct' appeal rather than 'ultimate' appeal,[142] the inclusion of the proviso in relation to State Courts does not refute the narrow interpretation of 'exceptions'.
There are two further arguments, particular to the territories, which might tell against a narrow construction of s 73.
First, the Parliament may conceivably have legitimate reasons for wanting to make final the decisions of some territory courts. The territories may differ greatly in size, population and development.[143] Some may be on a journey which will culminate in their admission as new States, while others may seek full independence. The history of Australia's own gradual progress towards independence from the United Kingdom illustrates that legal and political independence may not always coincide. The Parliament might take the view that, before granting independence to a territory, there should be a 'trial separation' period during which its Supreme Court could build up its reputation and expertise as a final court of appeal.
Secondly, it could be argued that, for some territories, it is inappropriate to apply the common law of Australia in its entirety, due to different climatic or cultural factors. Considerations of this kind formed the basis for Callinan J's dissent in Lipohar v The Queen.[144] However, for the majority in that case the decisive factor was not merely the de facto homogeny of a community but the existence of a hierarchy of appeals and the operation of the doctrine of precedent in the context of an integrated judicial system administering a cohesive system of law. As long as a territory 'belongs' to Australia it is 'subject to the exclusive jurisdiction of the Commonwealth'[145] and forms part of the Australian legal order.
Even if one concluded that those arguments preclude the narrowest interpretation of 'exceptions', the power to provide exceptions should not be interpreted as extending so far as to deny the High Court its character as Australia's final court of appeal. There are still persuasive reasons for preferring to locate appeals from territory courts in s 73 rather than in legislation made pursuant to s 122. First, this would require the Parliament to take positive action to make 'exceptions' for matters heard in territory courts, and this action would be open to political scrutiny. Secondly, the difficulties in reconciling the decision in Porter v The King; Ex parte Yee with the principles in In re Judiciary and Navigation Acts, mean that locating an appeal from territory courts under s 73 is more intellectually coherent.[146]
The High Court, in Spratt v Hermes,[147] held that the Court of Petty Sessions in the Australian Capital Territory was not a 'federal court' to which s 72 applied. In Capital TV and Appliances Pty Ltd v Falconer,[148] Spratt v Hermes was reaffirmed and it was also held that the 'other courts exercising federal jurisdiction' in ss 71 and 73(ii) referred only to State courts. Section 73 therefore did not provide the High Court with jurisdiction to hear an appeal from the Supreme Court of the Australian Capital Territory. Following Porter v The King; Ex parte Yee, the Court held that s 122 allowed the Parliament to create such an avenue of appeal, but that power had not been exercised.
Barwick CJ concluded that, although a territory court might exercise jurisdiction over a matter arising under a 'law of the Commonwealth', it was nevertheless not 'federal jurisdiction' because only laws under ss 51 and 52 were 'federal' laws and only courts 'which are called into being by, and empowered to exercise jurisdiction under laws made in pursuance of ss 51 and 52' were federal courts.[149] It is impossible to reconcile that approach with accepted principles of characterisation. An Act of the Parliament may at once possess several characters,[150] so that a law may be validly enacted under more than one constitutional head of power. A law for the government of a territory may also be characterised under a head of power in s 51.[151]
There is no compelling justification for treating jurisdiction over matters arising under laws made pursuant to s 122 as 'non-federal'.[152]
Barwick CJ himself refused to accept that the territories were a 'disparate non-federal matter',[153] citing examples of 'federal' matters which could arise in the territories, yet held that jurisdiction over those matters, if exercised by a territory court, would be 'non-federal'.[154]
In cases decided since Capital TV and Appliances Pty Ltd v Falconer,[155] Justices of the High Court have expressed doubts about its correctness. Gaudron J said that she could discern no reason why the Commonwealth Parliament should not be able to confer federal jurisdiction on territory courts.[156] Gummow and Hayne JJ have also endorsed this approach.[157] The question had been the subject of conflicting Federal Court authority.[158] Although Capital TV and Appliances Pty Ltd v Falconer has not been formally overruled, it now appears to be generally accepted that the courts of the territories may, and do, exercise federal jurisdiction.[159]
The Australian Constitution creates a unique scheme (the 'autochthonous expedient'[160]) which allows the Commonwealth Parliament to invest State courts with federal jurisdiction. The power, provided by s 77(iii), has been exercised so as to allow all State Courts to exercise appropriate federal jurisdiction.[161] The maxim expressio unius est exclusio alterius might suggest that the express grant of power in s 77(iii) leads to the conclusion that only those courts may be invested with federal jurisdiction. However, s 71 speaks simply of 'such other courts': the exclusion of the word 'State' from s 71, and from s 73, supports the possibility that territory courts may also be invested with federal jurisdiction.
In Re Wakim; Ex parte McNally, the grant of power in s 77(iii) was one factor which led the majority to conclude that the Commonwealth lacked power to authorise the vesting of State jurisdiction in a federal court.[162] However, the vesting of federal jurisdiction in territory courts is distinguishable; the Constitution clearly envisages the vesting of federal jurisdiction in non-federal courts, whereas it does not envisage the vesting of State (or any 'non-federal') jurisdiction in federal courts. The principle reason for the expedient of investing State courts with federal jurisdiction was to avoid the need to create a hierarchy of federal courts immediately.[163]
This does not support the 'cross-vesting' of State jurisdiction in federal courts,[164] but the potential for 'federal matters' to arise in a territory does suggest the need for a similar expedient allowing the investment of federal jurisdiction in territory courts.
The remaining question is whether there is a source of power for the Parliament to invest a territory court with federal jurisdiction. Two possible sources of power are s 122 and s 71.
Comparisons have been drawn between the legislative power granted to the Commonwealth Parliament by s 122 and the powers of State Parliaments to make laws for the 'peace, welfare and good government'[165] of their respective States. If one approaches the question of vesting federal jurisdiction from that perspective, it seems unlikely that s 122 would provide such a power. No-one would suggest that it is within the compass of the States' legislative powers to vest a State's own courts with federal jurisdiction; that is for the Commonwealth and the Commonwealth alone under s 77(iii). Likewise, a law investing a territory court with federal jurisdiction, although operating in the territory, would actually be a law for the government of the Commonwealth and not for the government of the territory.
The Commonwealth Parliament takes its power under s 122 'in its character as the legislature of the Commonwealth, established in accordance with the Constitution as the national legislature of Australia'.[166] The cases on s 122 have given it a broad scope. Subject to the requirements of other constitutional provisions, it is 'as large and universal a power of legislation as can be granted'.[167]
Implications from Ch III apart, s 122 might be broad enough to authorise the vesting of federal jurisdiction in territory courts. However, the suggestion that a provision located outside Ch III of the Constitution could supply the power to confer federal jurisdiction is incompatible with the well-established principle that Ch III exhausts the legislative power respecting the judicial power of the Commonwealth.[168]
It is therefore desirable to consider s 71. The section refers to 'such other courts as [the Parliament] invests with federal jurisdiction' and does not itself include an explicit grant of power to invest those other courts with federal jurisdiction. However, there is no explicit grant of power to the Parliament to create federal courts (other than the words of s 71) and yet it is clearly capable of doing so. It is therefore possible to argue that, by analogy, s 71 does itself empower the Parliament to invest other courts with federal jurisdiction. Since s 122 clearly envisages the creation, by the Commonwealth Parliament, of courts for the territories, such courts would naturally seem to fall within the category of courts, not being the 'federal courts' referred to in s 71, which might be invested with federal jurisdiction. In contrast, it is extremely unlikely that, but for s 77(iii), State courts would have been so regarded.[169] The unadorned words 'other courts' in s 71 ought therefore to be given their natural and ordinary meaning.
Gaudron J has identified s 71 rather than s 122 as the source of power to invest territory courts with federal jurisdiction.[170] On the other hand, Professor Zines appears to regard s 122 as the most likely source.[171]
Due to the obstacles created by the exhaustive nature of Ch III, the preferable approach is to locate the power in s 71.
If neither s 71 nor s 122 were capable of sustaining a law vesting federal jurisdiction in a territory court, such a court could exercise federal jurisdiction only if it were considered one of the 'other federal courts' created by the Parliament, whose judges are required by s 72 to have tenure to a fixed age. This was the approach taken by Kirby J in Re Governor, Goulburn Correctional Centre; Ex parte Eastman,[172] but was rejected by the majority in that case.[173]
Although the power to invest territory courts with federal jurisdiction is provided by s 71, the power to create courts for the territories is found in s 122.[174] It follows that the federal jurisdiction which may be exercised by those courts is limited to matters arising under, or involving the application of, a law in its operation in a territory[175] or which otherwise has a sufficient connection with a territory.[176]
The Parliament could not create a court as a territory court, in purported exercise of the territories power, and then invest it with federal jurisdiction over matters arising throughout the Commonwealth. If this were permissible, the Parliament could effectively create a 'federal court' while avoiding altogether the appointment and tenure requirements of s 72. Ultimately, the test is whether the law sustaining the existence of the court remains capable of characterisation as one 'for the government of any territory'.
Since s 122 sustains laws for all Commonwealth territories, it would also be possible to invest a territory court with federal jurisdiction over matters arising in several different territories. This is a sensible result, allowing, for example, the Supreme Court of the Northern Territory to exercise federal jurisdiction in matters arising in the associated but much smaller territory of the Ashmore and Cartier Islands.
Allowing the Parliament to vest federal jurisdiction in territory courts would allow a s 73 appeal from territory courts to the High Court — but only when the territory court was exercising federal jurisdiction. It is therefore necessary to consider how much of a territory court's jurisdiction is properly characterised as 'federal jurisdiction'.
If it is accepted that the Commonwealth Parliament may invest territory courts with federal jurisdiction, this must include federal jurisdiction explicitly vested in territory courts.[177]
The decision in Northern Territory v GPAO[178] establishes that a federal court, when deciding a matter arising under a law created pursuant to s 122, exercises 'federal jurisdiction'. In that case the Family Court was exercising jurisdiction pursuant to s 69ZG of the Family Law Act 1975 (Cth), which was beyond the scope of the Commonwealth's power to make laws with respect to marriage and matrimonial causes.[179] The operation of the law in the Northern Territory was therefore wholly dependent on s 122 for its validity. (The operation of the law in the States depended upon a referral of powers under s 51(xxxvii).) The majority held that the Family Court had exercised federal jurisdiction, as the matter arose under a law of the Commonwealth Parliament.[180] McHugh and Callinan JJ disagreed, holding that s 122 was a 'non-federal' power and that jurisdiction over matters arising under laws created pursuant to s 122 was therefore not 'federal jurisdiction'.[181] This is contrary to the accepted principle[182] that the jurisdiction referred to in ss 75 and 76 is synonymous with the 'federal jurisdiction' referred to in ss 71, 73, 77(iii) and 79.
It is appropriate to consider the possibility that territory courts might exercise 'non-federal' jurisdiction in respect of matters arising under s 122.
Certain matters in ss 75 and 76 could also fall to be decided in the exercise of State jurisdiction (that is, the ordinary non-federal jurisdiction of State courts that is granted or sustained by State legislation). Even without a conferral of federal jurisdiction, State courts could exercise jurisdiction in matters between residents of two different States (s 75(iv)). Plus, matters referred to in ss 76(i) and 76(ii) must be capable of determination by State courts exercising their ordinary State jurisdiction: that follows from covering cl 5 of the Constitution.[183] When federal jurisdiction is invested in a State court over matters which would otherwise fall to be determined in jurisdiction granted by State law, the grant of federal jurisdiction is taken to 'cover the field' of jurisdiction over those matters, so that s 109 of the Constitution renders inoperative any State jurisdiction which would otherwise be available. So whenever a State court is called upon to decide a matter in relation to which it has been vested with federal jurisdiction, the jurisdiction exercised by the court will always be federal, not State, jurisdiction.[184]
Since s 122 permits the Parliament to create territory courts, it might be argued that the ordinary jurisdiction of those courts would be 'territory jurisdiction' and, as courts of 'part[s] of the Commonwealth', covering cl 5 would render the Constitution binding upon them. Thus, in the absence of an express investment of federal jurisdiction, territory courts could determine matters arising under the Constitution in the exercise of 'territory jurisdiction'. However, this analysis overlooks the body of jurisprudence which has developed in relation to federal jurisdiction. The classification of jurisdiction as 'federal' or 'non-federal' depends not upon the content, but rather upon the source of the jurisdiction:[185] 'federal jurisdiction is the authority to adjudicate derived from the Constitution and laws'.[186]
Once it is accepted, as Northern Territory v GPAO[187]
confirms, that a law made pursuant to s 122 is a 'law of the Parliament' within the meaning of s 76(ii), it is apparent that s 76(ii) covers all matters arising under any law of the Parliament. A law defining the jurisdiction of a territory court in territory matters may not be expressed, in terms, as an investment of federal jurisdiction in that court, but is a de facto exercise of the power in s 71 to invest jurisdiction in an otherwise jurisdiction-less court.
All enactments of the legislature of a self-governing territory owe their existence ultimately to the law of the Parliament which grants that territory legislature its powers. Jurisdiction over matters arising under such laws is therefore 'federal jurisdiction'.[188]
Although certain constitutional provisions might limit the powers that the Parliament may confer on the legislature of a self-governing territory,[189]
the opposite is not true. Where there are limitations on the power of the Commonwealth Parliament under s 122 (including its lack of power to invest any court with jurisdiction that is not federal jurisdiction), the divestiture of this power to the legislature of a self-governing territory cannot expand it beyond those limitations: 'the stream cannot rise above its source'.
Section 71 refers to courts that the Parliament invests with federal jurisdiction. It is therefore arguable that the power to vest federal jurisdiction cannot be 'delegated' to another body, including a territory legislature.[190]
The better view is that the Parliament may act 'mediately or immediately' but that, so long as the ultimate source is the Commonwealth Parliament, the jurisdiction can be seen as having been vested by the Parliament.[191]
In addition to matters arising under Commonwealth and territory legislation, territory courts may also decide matters arising wholly under the common law ('common law matters'). McHugh J has suggested that 'difficult questions arise as to the nature of an appeal from a Territory court' to the Federal Court in common law matters.[192]
There is, however, a simple practical resolution to these 'difficult questions'. In the Australian Capital Territory, the laws of the territory in effect at the time of transfer were continued by s 6 of the Seat of Government Acceptance Act 1909 (Cth). In each of the other territories, similar legislation is in place.[193] Common law matters in the territories are therefore matters 'arising under a law of the Parliament' as the common law rights, duties and liabilities owe their existence, ultimately, to a law of the Commonwealth Parliament. This is the conclusion which Finn J reached in O'Neill v Mann[194]
and had been foreshadowed by Dixon J as early as 1929.[195]
Although, as the statute book currently stands, this reasoning is sufficient to explain the avenue of appeals to the High Court under s 73 in common law matters arising in all Australian territories,[196] it is theoretically unsatisfying. Would s 73 authorise the High Court to hear appeals from common law matters arising in a territory, in the absence of that legislation? (This assumes that the common law of Australia would apply in a new territory by virtue of its becoming part of the Commonwealth. On one view, those laws in force in the territory prior to its coming under the control of the Commonwealth would continue in force until negatived by the new sovereign authority.[197])
Gaudron J has said that all law in the territories can be considered as owing its existence to the Commonwealth law sustaining the continued existence of the territory court which decided the matter.[198] But a fundamental difficulty with that argument is revealed by considering the following scenario. The Federal Court owes its existence to a law of the Commonwealth Parliament, the Federal Court of Australia Act 1976 (Cth). If a State or Commonwealth law purported to invest the Federal Court with jurisdiction to hear matters arising under State law, it could be said that jurisdiction in those matters was federal jurisdiction, and thus validly conferred on the Federal Court, because the enforcement of the rights and liabilities created by the State law depended upon the federal law creating the Federal Court, so that the matter fell within s 76(ii). However, federal courts cannot exercise jurisdiction in matters which, but for the law sustaining the court, would be purely 'State matters'.[199]
There is another pathway which circumvents the difficulties inherent in that approach. If the common law applies in the territories by virtue of their incorporation or acceptance as part of the Commonwealth of Australia, a law of the Parliament accepting responsibility for the territory would provide the basis for the application of the common law in that territory. This reasoning would apply to all territories where acceptance or acquisition was achieved or recognised by legislation. The acquisition or acceptance of all present and former territories appears to have been effected or recognised by legislation.[200]
Where territories are ceded to or accepted by the Commonwealth by treaty[201] the laws in force ultimately owe their (continued) application to that treaty. Accordingly, jurisdiction in such territories would be federal jurisdiction under s 75(i) of the Constitution.[202]
The logical conclusion of these arguments is that all of the jurisdiction which may be vested in a territory court, both by the Commonwealth and by a territory legislature, is 'federal jurisdiction'. The obvious question is, if all of the possible jurisdiction of a court is 'federal jurisdiction', why is the court not then a federal court? This was considered decisive by Kirby J in Re Governor, Goulburn Correctional Centre; Ex parte Eastman.[203] He held, in dissent, that territory courts were federal courts within the meaning of s 71, and that s 72 therefore required that the judges of those courts be appointed with tenure until an age fixed by the Parliament. This reasoning is quite persuasive and is consistent with the position advocated in this article, that the territories should be recognised as parts of the Commonwealth. However, the decision of the majority in Eastman's Case is also tenable. Even putting aside the inconvenience created by overruling previous High Court decisions which have been acted upon by the Commonwealth Parliament and territory legislatures,[204] there are sound reasons for preferring a construction of s 72 which excludes territory courts.
First, at the time of federation, judicial power in the colonies (which were to become the States) was exercised by magistrates appointed without tenure. It would have come as a great surprise to the framers of the Constitution to discover that it required all magistrates in the territories to be appointed with life[205] tenure.[206] While the subjective beliefs of the framers as to the operation of constitutional provisions are not decisive, this result, which would have been regarded as extraordinary in 1900, does suggest that, if available, other means of reconciling Ch III with s 122 should be sought.
Secondly, s 72 requires that judicial appointments to 'federal courts' be made by the Governor-General in Council, rather than the Administrator or another appropriate person within a territory. Since federation, it has been recognised that s 122 permits the Parliament to act in a wide variety of ways with respect to its territories, including granting complete self-government.[207]
An essential aspect of government is the appointment of judicial officers and an interpretation of ss 72 and 122 requiring an otherwise self-sufficient territory government to turn back to the Federal Executive Council for the appointment of judges to its own Supreme Court is clearly inconsistent with that principle.[208]
In Re Governor, Goulburn Correctional Centre; Ex parte Eastman, Gleeson CJ, McHugh and Callinan JJ considered that leave should not be given to reopen the earlier decisions of the Court.[209] They made it clear however, that their decision related only to s 72 and that they were not advocating a general disjunction of s 122 from Ch III.[210]
Gaudron J attempted a more analytical reconciliation between the earlier decisions on s 72 and her view that s 122 should be read in the context of the Constitution as a whole, including Ch III. Fundamental to this analysis is the recognition that the word 'federal' may be, and in the Constitution is, used in a number of different senses.[211] Four of these were recognised by Quick and Garran.[212]
The reconciliation of ss 72 and 122 depends upon the recognition of a fifth meaning: 'federal' may also mean 'relating to the whole of the new State formed by the union of States'. Gaudron J, adopting this meaning, explained her preferred construction as follows:
The word 'federal' in s 71, in my view, serves to indicate that the courts which the Parliament may create pursuant to that section are not simply courts upon which the Parliament may confer federal jurisdiction, but courts upon which the Parliament may (although, it need not) confer jurisdiction to be exercised throughout the Commonwealth in all or any of the matters specified in ss 75 and 76 of the Constitution. Once it is appreciated that, in s 71, 'federal' signifies courts of that kind, it is apparent that it does not include a court created pursuant to s 122 of the Constitution.[213]
The word 'federal', when used to describe 'courts', is thus understood to have a different meaning than when used in the phrase, 'federal jurisdiction'.
Gummow and Hayne JJ decided the case on the narrower ground that the Supreme Court of the Australian Capital Territory was not a court 'created by the Parliament' within the meaning of s 72, because responsibility for the court had been transferred to the legislature of the self-governing Territory.[214] In dicta, however, they lent their support to the view that a territory court was one of the 'other courts' which could be invested with federal jurisdiction.[215]
The approach adopted in Re Governor, Goulburn Correctional Centre; Ex parte Eastman, while perhaps accurately described as intellectually unsatisfying,[216] does pay due regard to the varied nature of the territories[217] and avoids the complete divorce of s 122 from Ch III. The Court has not resiled from the propositions established in Northern Territory v GPAO,[218] even though dicta in earlier cases might have suggested an inclination towards the position ultimately embraced by Kirby J.[219]
Chapter III is exhaustive of the powers of the Commonwealth Parliament to legislate with respect to State courts.[220] One ordinarily does not expect to find the legislature of one polity legislating for the courts of another.[221] Because Ch III speaks only of vesting federal jurisdiction, it is highly doubtful that the Commonwealth Parliament could invest any other, 'non-federal' jurisdiction in State courts without consent of the State(s) whose courts were concerned (assuming, contrary to the position advocated in this article, that it is possible for the Commonwealth Parliament to invest a court with jurisdiction that is non-federal jurisdiction).
If jurisdiction over matters in the territories were not considered federal jurisdiction, s 122 could not sustain the unilateral investment of jurisdiction in a State Court any more than it could sustain an investment of territory jurisdiction in the court of a foreign nation, for example the House of Lords. Section 122 might supply the power, but one would expect such an investiture to require the consent of the State.[222] However, a doctrine which regards all territory jurisdiction as a species of federal jurisdiction avoids these difficulties. Jurisdiction over matters arising in the territories could be given to a State court, with or without the consent of the State concerned.
This is a sensible result when it is remembered that a territory may be very small — perhaps too small to justify the creation of its own court — and may be in close proximity to a State. The Commonwealth Parliament might decide that the law of the nearby State should apply in the territory[223] and that that State's courts were best suited to adjudicate upon matters arising under those laws.[224] Alternatively, the Parliament might decide to provide for an appeal from a local court to a State Supreme Court or federal court.
There is still the question of 'cross-vesting' State jurisdiction into territory courts. As territory courts are not created under Ch III, their potential jurisdiction is not restricted in the same way as that of federal courts. Chapter III, while exhaustive of the jurisdiction of federal courts, says nothing about additional jurisdiction which may be vested in the 'other courts' which may receive federal jurisdiction.[225]
The decision in Re Wakim; Ex parte McNally[226] is therefore no bar to a territory court exercising State jurisdiction (with the consent of the Commonwealth Parliament or relevant territory legislature). In this respect, territory courts are in a comparable position to State courts. However, because the law creating a territory court depends for its existence upon s 122, any such jurisdiction must have a 'sufficient connection or nexus with the government of the territory'.[227]
The present requirements for the transfer of cases to territory courts[228] ensure that any jurisdiction exercised by a territory court following a transfer is likely to have a sufficient connection.
The Commonwealth Parliament therefore has greater flexibility in the use of Australian courts for the administration of justice in the territories when s 73 is understood as incorporating appellate jurisdiction over them. This appropriately complements the broad powers of the Parliament under s 122.
Although this article has argued that all jurisdiction in the Australian territories should be regarded as federal jurisdiction, it does not follow that the strict separation of judicial power applicable at the Commonwealth level pertains equally to territory courts. Since they are courts 'vested with federal jurisdiction', rather than 'federal courts', the Parliament must take territory courts 'as it finds them' constituted by laws passed pursuant to s 122. (It does not matter that the Parliament itself may have created the courts.) Because territory courts are created pursuant to s 122, which is in Ch VI of the Constitution, they are outside the separation of powers created by Chs I, II and III. This does not contradict the proposition that the territories form part of the federal system and part of the Commonwealth — only that the separation of powers does not apply to courts created outside the text and structure of Chs I, II and III which mandate that separation. This is borne out by the fact that State courts, which may be vested with federal jurisdiction, may also be given non-judicial functions.
If all exercises of judicial power in and for the territories involve federal jurisdiction, it is beyond the competence of the Parliament to exercise that judicial power or to invest any part of that judicial power in any body (including the legislature of a self-governing territory) which is not a 'court' within the meaning of ss 71 and 73. That is mandated by the principle that Ch III exhaustively defines bodies in which the judicial power of the Commonwealth may be vested.[229]
Once it is recognised that a territory court exercises federal jurisdiction, it is apparent that the incompatibility doctrine, recognised by a majority of the High Court in Kable v Director of Public Prosecutions (NSW),[230] applies to territory courts as well as State courts. This is so even if, contrary to the position for which this article has argued, only some of the jurisdiction of territory courts is federal jurisdiction. A territory court may be given non-judicial functions, providing that they are not so repugnant to the judicial process that they detract from the integrity or impartiality of the court.
The investiture of a court with federal jurisdiction is inconsistent with any requirement that it exercise 'incompatible' non-judicial functions. Where the Commonwealth has created a court and a territory legislature attempts to invest it with an incompatible function, the law of the paramount Commonwealth Parliament would prevail.[231] Because there is no requirement that territory courts remain in existence,[232] Ch III itself would not operate to strike down a law of a territory which purported to vest an incompatible function.[233]
When one considers a conferral by the Commonwealth of incompatible powers upon a court created by itself or by a self-governing territory, different approaches are available to resolve the inconsistency. Ordinarily, a law is taken to impliedly repeal earlier inconsistent laws of the same (or subordinate) legislature. Where an incompatible function was vested in a pre-existing court, this would result in the repeal of the law creating the institution as a 'court' within the meaning of ss 71, 73 and 77, and all laws investing that court with judicial functions, and the creation of a new institution — a 'non-court' — which could exercise only the incompatible function and any other non-judicial functions which had been given to the court. This would be disastrous.
There are exceptions to the general rule that a later law repeals an earlier law. An obvious example is the Commonwealth Parliament attempting to vest non-judicial functions in a Ch III court. The effect is not necessarily the destruction of the court and the creation of a new, non-judicial body. The (earlier) law creating a federal court is given paramountcy over (later) laws purporting to vest functions in that court.[234] The intention of the legislature, determined by reference to the legislative history and the law creating the court, is decisive.[235]
A similar course should be taken in relation to territory courts if an attempt is made to vest incompatible functions in them. The position is not as clear for a territory court as for a federal court, because, s 72 being inapplicable,[236]
the appointment and tenure arrangements may not give as strong an indication that the court should exercise only Ch III-compatible powers. However, very clear language would be needed to rebut what ought to be a strong presumption that the Parliament, purporting to give a discrete function to an existing court, does not intend to entirely dismantle the court should that function turn out to be incompatible with the exercise of the judicial power of the Commonwealth.
Finally, it is appropriate to return to the very first decision on the relationship between s 122 and Ch III. In R v Bernasconi,[237] the High Court held that s 80 did not require trial by jury for indictable offences created by laws made under s 122. Given the subsequent recognition that the resolution of matters arising under a law sustained by s 122 involves the exercise of federal jurisdiction, the decision in Bernasconi may need to be reconsidered.
The decision in Lamshed v Lake, that the phrase 'law of the Commonwealth' in s 109 included a law enacted pursuant to s 122, is not easily reconciled with Bernasconi's holding that the same words in s 80 do not include such a law. The applicability of s 80 to offences in the territories is also supported by the language of the section, which envisages offences 'not committed within any State'.[238]
The actual decision in R v Bernasconi has so far been allowed to stand. The Court has not yet been confronted with a direct challenge to the decision in an appropriate case involving trial by jury.[239] In Fittock v The Queen, the High Court was invited to overrule R v Bernasconi, but the case was resolved on the basis that, in any event, the constitutional requirement of trial by jury had not been infringed.[240]
If R v Bernasconi is to survive, it must now be only on the narrow footing that, on its proper construction, s 80 alone (not Ch III as a whole) is inapplicable to offences against laws of the Commonwealth created pursuant to s 122.[241]
An alternative approach (which would involve overruling R v Bernasconi) would be to hold that s 80, referring as it does to a 'law of the Commonwealth', requires trial by jury for offences created by laws enacted directly by the Commonwealth Parliament, but is not apt to refer to a law of the legislature of a self-governing territory.[242] If a corresponding interpretation were given to the same words in s 109, this would avoid difficulties associated with the laws of a territorial legislature being given paramountcy over conflicting State laws.[243] Given that the requirement of trial by jury represents a fetter on legislative power, however, it is difficult to see how the Commonwealth Parliament could confer upon a territory legislature powers which the Commonwealth Parliament itself could not exercise.[244]
I have sought to demonstrate that, in light of the recognition that the Australian Constitution creates an integrated judicial system and assumes the continued existence of a uniform common law in Australia, the courts of the territories should be considered as part of that integrated judicial system. I have argued that, having regard to the actual and potential circumstances of the territories, this should be achieved by deciding, consistently with the direction apparently favoured by majorities in recent cases, that all jurisdiction of territory courts is 'federal jurisdiction '.
This approach represents the most complete integration of the territories possible while maintaining the practical advantage of allowing judicial appointments to territory courts to ignore the strict requirements of s 72. It has the advantages of coherence, and of allowing a level of flexibility in the exercise of judicial power in the territories which pays due regard to their potentially disparate characteristics.
[∗] B Com, LLB (Hons) (Adelaide). This article is based on a dissertation submitted for the Honours degree of Bachelor of Laws at the University of Adelaide.
[1] Section 122 provides:
Government of territories
122. The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.
[2] Buchanan v The Commonwealth [1913] HCA 29; (1913) 16 CLR 315; R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629; Mitchell v Barker [1918] HCA 13; (1918) 24 CLR 365; Waters v The Commonwealth [1951] HCA 9; (1951) 82 CLR 188.
[3] Porter v The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432.
[4] Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132; Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248; Kruger v The Commonwealth [1997] HCA 27; (1996) 190 CLR 1; Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513; Northern Territory v GPAO (1999) 196 CLR 553.
[5] Kruger v The Commonwealth [1997] HCA 27; (1996) 190 CLR 1, 175. (Footnotes omitted.)
[6] [1915] HCA 13; (1915) 19 CLR 629.
[7] [1913] HCA 29; (1913) 16 CLR 315.
[8] Section 55 requires that laws imposing taxation deal only with the imposition of taxation, and with only one subject of taxation.
[9] [1915] HCA 13; (1915) 19 CLR 629, 635.
[10] Mitchell v Barker [1918] HCA 13; (1918) 24 CLR 365; Federal Capital Commission v Laristan Building and Investment Co Pty Ltd [1929] HCA 36; (1929) 42 CLR 582, 585 (Dixon J) (accepting but distinguishing Bernasconi); Edie Creek Pty Ltd v Symes [1929] HCA 37; (1929) 43 CLR 53, 56–7 (Knox CJ); Waters v The Commonwealth [1951] HCA 9; (1951) 82 CLR 188; Re Ballard; Ex parte Wright (1960) 1 FLR 473; cf Mainka v Custodian of Expropriated Property (1922) 34 CLR 297, 301 (Isaacs J).
[11] Attorney-General (Cth) v The Queen ('Boilermakers' Case') [1957] HCA 12; (1957) 95 CLR 529, 545; [1957] AC 288, 320 (Viscount Simonds, for the Judicial Committee). For further discussion of the early cases on s 122, see Christopher Horan, 'Section 122 of the Constitution: A Disparate and Non-Federal Power?' [1997] FedLawRw 3; (1997) 25 Federal Law Review 97.
[12] Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132. Dixon CJ had earlier indicated his preference for a more inclusive approach to s 122: Australian National Airways Pty Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29, 84–5.
[13] Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591; Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248; Kruger v The Commonwealth [1997] HCA 27; (1996) 190 CLR 1; Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513.
[14] See Northern Territory v GPAO (1999) 196 CLR 553, 618 [172] (McHugh and Callinan JJ); cf 651 [257] (Hayne J).
[15] The expression has been used on many occasions to describe the ampleness of s 122: Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 273 (Windeyer J); Berwick Ltd v Gray [1976] HCA 12; (1976) 133 CLR 603, 611 (Jacobs J); Teori Tau v The Commonwealth [1969] HCA 62; (1969) 119 CLR 564, 570 (Barwick CJ). But cf Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 605 (Gummow J), criticising the use of the term as obscuring the limitations which nevertheless confine the power, and Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 379 [145] (Kirby J).
[16] Section 52(iii) gives the Commonwealth Parliament 'exclusive power to make laws … with respect to … Other matters declared by this Constitution to be within the exclusive power of the Parliament'.
[17] Cf Ffrost v Stevenson [1937] HCA 41; (1937) 58 CLR 528, 558 (Latham CJ); Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 603–4 (Gummow J). If accepted, this would negate any argument that the placement of the territories power in Ch VI should be accorded significance.
[18] [1965] HCA 66; (1965) 114 CLR 226, 246, referring to ss 43, 44, 45, 46, 49, 64.
[19] See Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132, 143 (Dixon CJ; Webb, Kitto and Taylor JJ agreeing).
[20] Section 125 of the Constitution. But cf Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548, holding that a 'Commonwealth place' could not be located in a territory.
[21] [1965] HCA 66; (1965) 114 CLR 226, 243, 245–6 (Barwick CJ).
[22] Section 75(v) of the Constitution.
[23] Cf Waters v The Commonwealth [1951] HCA 9; (1951) 82 CLR 188, 191–2 (Fullagar J).
[24] Section 75(iii) of the Constitution, which abolishes the Commonwealth's immunity from suit. See The Commonwealth v Mewett (1997) 191 CLR 471.
[25] Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 606 (Gummow J; Gaudron J agreeing), see also 653 (Kirby J); Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132, 154 (Kitto J); Spratt v Hernes [1965] HCA 66; (1965) 114 CLR 226, 277–8 (Windeyer J); Kruger v The Commonwealth [1997] HCA 27; (1996) 190 CLR 1, 167, 171 (Gummow J), 653 (Kirby J). This accords with usual approaches to statutory and constitutional interpretation: see, for example, Bank of NSW v The Commonwealth ('Bank Nationalisation Case') [1948] HCA 7; (1948) 76 CLR 1, 184–5 (Latham CJ); Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432, 440 (Gibbs J); Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 206 ALR 130, 183 [213] (Callinan J).
[26] See Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248: the purpose of s 90 is to create a free trade area covering (at least) the geographical area of the Original States.
[27] Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132, 142 (Dixon CJ; Webb, Kitto and Taylor JJ agreeing).
[28] See Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, s 5; Capital Television and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591, 605 (Menzies J).
[29] Official Record of the Debates of the Australasian Federal Convention, Melbourne, 28 January 1898, Vol I, 257, quoted in Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 604 (Gummow J).
[30] Indeed, it seems most likely that the first new State to be admitted to the Commonwealth will be the Northern Territory.
[31] Section 52(i) gives the Commonwealth Parliament power 'to make laws for the … government of the Commonwealth with respect to … the seat of government of the Commonwealth'. (Emphasis added.)
[32] [1965] HCA 66; (1965) 114 CLR 226.
[33] It appears that this fallacy was first introduced in R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629. Cf Buchanan v The Commonwealth [1913] HCA 29; (1913) 16 CLR 315, 326 (Barton J): 'We must be satisfied that sec 55 is intended to apply to federal laws made in exercise of the power given by sec 122'. (Emphasis added.) The territories power was not unaffected by s 55 because it was regarded as 'non-federal'. Rather, s 55 was understood as particularly reflecting the interests of the States, so that taxation for the territories lay outside the mischief which was addressed by s 55.
[34] Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 242 (Barwick CJ).
[35] Capital TV and Appliances Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591, 599 (Barwick CJ).
[36] Sir John Quick and Sir Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901) 333ff.
[37] Buchanan v The Commonwealth [1913] HCA 29; (1913) 16 CLR 315, 335 (Isaacs J); R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629, 637 (Isaacs J); Porter v The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432, 441 (Isaacs J).
[38] Consider ss 75(iii) and (v) and ss 76(i) and (ii).
[39] Interestingly, Kitto J appears to have considered that this proved that the territories were non-federal: Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 252–3. Cf Michael Detmold, The Australian Commonwealth: A Fundamental Analysis of its Constitution (1985) 21–2.
[40] It will be necessary to return to the meaning of 'federal' later, and to add to what has been said here, when investigating whether the courts of the territories ought to be considered 'federal courts'. See text accompanying below nn 211–213.
[41] Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461, 485 (Mason J). This has been expressed in a variety of ways. See James v The Commonwealth [1936] HCA 32; (1936) 55 CLR 1, 58 (Lord Wright MR for the Judicial Committee); Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 246–7 (Barwick CJ); Victoria v The Commonwealth ('Payroll Tax Case') [1971] HCA 16; (1971) 122 CLR 353, 396 (Windeyer J); Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507, 527 (Jacobs J); Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, 78 (Mason CJ); Stevens v Head [1993] HCA 19; (1992) 176 CLR 433, 461 (Deane J); Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 656 (Kirby J).
[42] Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 270.
[43] The constitutionality of territorial senators was confirmed in Western Australia v The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 and Queensland v The Commonwealth [1977] HCA 60; (1977) 139 CLR 585.
[44] Section 128 was amended by the Constitutional Alteration (Referendums) Act 1977 (Cth) so as to allow the residents of territories for whom there is a law in force providing for that territory's representation in the House of Representatives to vote on proposed laws to alter the Constitution. It should, however, be noted that the votes of territory residents are counted only in the national vote whereas the votes of State residents are counted in both State and national votes.
[45] Mitchell v Barker [1918] HCA 13; (1918) 24 CLR 365, 367 (the Court); Waters v The Commonwealth [1951] HCA 9; (1951) 82 CLR 188, 192 (Fullagar J); Capital Duplicators Pty Ltd v Australian Capital Television [1992] HCA 51; (1992) 177 CLR 248, 274–5 (Brennan, Deane and Toohey JJ).
[46] Jurisdiction, in this sense, is used to refer to the Legislative, Executive and Judicial powers of the Commonwealth: Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548, 566 (Brennan J).
[47] [1992] HCA 51; (1992) 177 CLR 248, 274.
[48] See David Mossop, 'Time to Reconsider Capital Duplicators' 5 Canberra Law Review 143. An approach to s 51(iii) which saw it as qualifying any power to provide duties of excise contained in s 122 would be sufficient to reach the conclusion of the majority in Capital Duplicators, that the legislature of a self-governing territory cannot impose duties of excise: cf Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513, where s 51(xxxi) was held to qualify s 122.
[49] See s 121 of the Constitution; Commonwealth of Australia Constitution Act 1900 (Imp), s 6.
[50] Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132, 151 (Williams J).
[51] Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 331 [7] (Gleeson CJ, McHugh and Callinan JJ).
[52] [1976] HCA 12; (1976) 133 CLR 603.
[53] Indeed, it has been argued that these territories should have been regarded as falling under s 51(xxix) rather than s 122. See Jolley v Mainka [1933] HCA 43; (1933) 49 CLR 242, 278–9 (Evatt J); Ffrost v Stevenson [1937] HCA 41; (1937) 58 CLR 528, 579–93 (Evatt J); but cf 555 (Latham CJ), 566 (Dixon J); Fishwick v Cleland [1960] HCA 55; (1960) 106 CLR 186, 197 (Dixon CJ). See also Blackshield and Williams, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed, 2002) 273–4.
[54] Berwick Ltd v Gray [1976] HCA 12; (1976) 133 CLR 603, 608 (Mason J; Barwick CJ, McTiernan, Jacobs and Murphy JJ agreeing). See also Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 247 (Barwick CJ), 270 (Menzies J).
[55] Berwick Ltd v Gray [1976] HCA 12; (1976) 133 CLR 603, 608–9 (Mason J; Barwick CJ, McTiernan, Jacobs and Murphy JJ agreeing). See J Q Ewans, 'Norfolk Island as Part of the Commonwealth' (1980) 54 Australian Law Journal 68. It is noteworthy that, of the current external territories, Norfolk Island is in many respects the most independent. For example, it has been granted self-government and has its own immigration laws: see Norfolk Island Act 1979 (Cth); Immigration Act 1980 (NI).
[56] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 102 (Gaudron J).
[57] Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520, 556, 562–6 (the Court); Lipohar v The Queen (1999) 200 CLR 485, 500 [24] (Gleeson CJ), 505–10 [43]–[57] (Gaudron, Gummow and Hayne JJ), 551–2 [167] (Kirby J); cf [230]–[262] 574–585 (Callinan J) and the position in the United States: Black and White Taxicab and Transfer Co v Brown and Yellow Taxicab and Transfer Co [1928] USSC 59; 276 US 518, 533–4 (1928); Erie Railroad Co v Tompkins [1938] USSC 94; 304 US 64, 78–9 (1938). For earlier references to the common law of Australia, see R v Darby [1982] HCA 32; (1982) 148 CLR 668, 671 (Gibbs CJ, Aickin, Wilson and Brennan JJ); Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, 123 (Deane J); Mabo v Queensland (No 2) (1992) 175 CLR 1, 15 (Mason CJ and McHugh J), 57–8, 69 (Brennan J); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 297–8, 306–7, 311 (Mason CJ and McHugh J), 316 (Brennan J), 327 (Deane J); Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477, 508 (Mason CJ and Toohey J), 556 (McHugh J); Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, 556 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 84 (Dawson J), 113–14 (McHugh J), 138 (Gummow J); See also Murray Gleeson, The Rule of Law and the Constitution (2000) 112.
[58] Sir Owen Dixon, 'The Common Law as an Ultimate Constitutional Foundation' in Jesting Pilate (1965) 203, 204.
[59] Sir Owen Dixon, 'Sources of Legal Authority' in Jesting Pilate (1965) 198, 199. See also Sir Owen Dixon, 'The Law and the Constitution' in Jesting Pilate (1965) 38, 45.
[60] Sir Owen Dixon, 'Two Constitutions Compared' in Jesting Pilate (1965) 100, 104–5; Sir Owen Dixon, 'Concerning Judicial Method' in Jesting Pilate (1965) 152, 152. See also Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610, 632–3 (Dixon CJ); Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94, 104 (Kitto J), 133–6 (Menzies J), 137–9 (Owen J); cf Piro v W Foster & Co Ltd [1943] HCA 32; (1943) 68 CLR 313.
[61] (1999) 200 CLR 485, 505–6 [44]–[46], referring also to Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580, 591 (Barwick CJ).
[62] See also Re Wakim; Ex parte McNally (1999) 198 CLR 511, 574 [110] (Gummow and Hayne JJ); Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 138 (Gummow J).
[63] Dixon, above n 58, 205: 'Of course it [State-specific common law] is inconsistent with the appellate jurisdiction of the High Court'. See also Quick and Garran, above n 36, 785. Quick and Garran clearly thought that a single common law represented the status quo and that s 73 would facilitate the maintenance of this position.
[64] Although that is the position for which this article argues. See, in particular, text accompanying below nn 192–202.
[65] Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591.
[66] (1999) 200 CLR 485, 551 [167]. (Emphasis added.) Cf Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386, 415–16 [79] (Kirby J).
[67] Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 193 (Dixon J).
[68] Cf, in relation to the rule of law, Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, 513 [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ): s 75(v) constitutes a 'textual reinforcement' of the underlying assumption of the rule of law.
[69] This seems consonant with comments in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 84 (Dawson J), 113–4 (McHugh J).
[71] Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, 123, referring to Dixon, above n 59.
[72] It is not clear that Australian sovereignty is necessarily to be viewed in this way. See Michael Wait 'The Slumbering Sovereign: Sir Owen Dixon's Common Law Constitution Revisited' [2001] FedLawRw 3; (2001) 29 Federal Law Review 57; Simon Evans 'Why is the Constitution Binding? Authority, Obligation and the Role of the People' [2004] AdelLawRw 6; (2004) 25 Adelaide Law Review 103.
[73] See Dixon, above n 58, 212–13.
[74] This has been achieved by the Privy Council (Limitation of Appeals) Act 1968 (Cth), Privy Council (Appeals from the High Court) Act 1975 (Cth), and the Australia Act 1986 (Cth).
[75] In fact, the prospect of the common law of Australia diverging from that of England was recognised before appeals to the Privy Council were finally limited: see Australian Consolidated Press Ltd v Uren [1967] UKPCHCA 2; (1967) 117 CLR 221, 238–9 (Lord Morris of Borth-y-Gest for the Judicial Committee).
[76] Gleeson, above n 57, 80. Indeed, Australia's own national character may itself reveal the need to depart from the common law of England. An obvious example is the unique demands of federalism upon common law choice of law rules: see John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, 549–51 [119]–[124] (Kirby J).
[77] If confirmation for this point is necessary, it can be found in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, 514–15 [2]–[3] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 568 [176] (Callinan J). That case involved the development of the common law rules for choice of law for the whole of Australia, and arose in the Australian Capital Territory.
[78] [1926] HCA 9; (1926) 37 CLR 432.
[79] [1915] HCA 13; (1915) 19 CLR 629.
[80] Ibid 637 (Isaacs J).
[81] [1921] HCA 20; (1921) 29 CLR 257.
[82] Porter v The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432, 446–7. This approach is discussed in Leslie Zines, Federal Jurisdiction in Australia (3rd ed, 2002) 187–8. Professor Zines concludes that Higgins J's reasoning is unconvincing.
[83] [1926] HCA 9; (1926) 37 CLR 432, 438–40.
[84] [1921] HCA 20; (1921) 29 CLR 257. The different reasons of Higgins J for upholding the appeal in Porter v The King; Ex parte Yee meant that three of the six Justices in Porter accepted that the principle in In re Judiciary and Navigation Acts extended to matters arising in the territories.
[85] R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 270 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). (Footnotes omitted.) See also Re Wakim; Ex parte McNally (1999) 198 CLR 511, 541–4 [8]–[19] (Gleeson CJ), 558–9 [57]–[61] (McHugh J; Callinan J agreeing), 575 [111] (Gummow and Hayne JJ; Gaudron J agreeing); Gould v Brown (1998) 193 CLR 346, 420 [117] (McHugh J), 440–1 [178] (Gummow J).
[86] [1956] HCA 10; (1956) 94 CLR 254, 290 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). The understanding of the territories as 'non-federal' has already been challenged. See text accompanying above nn 32–44.
[87] Nauru (High Court Appeals) Act 1976 (Cth), s 5.
[88] Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 and Amoe v Director of Public Prosecutions (Nauru) [1991] HCA 46; (1991) 103 ALR 595. Although the Nauru (High Court Appeals) Act 1976 (Cth) itself and Article 57(2) of the Constitution of Nauru both use the language of 'appeal', it may be that the jurisdiction of the High Court in relation to Nauru is to be regarded as 'original jurisdiction', in which case difficulties arising from s 73 of the Commonwealth Constitution might be avoided. See Transcript of Proceedings, Ruhani v Director of Police (High Court of Australia, 10 November 2004).
[89] The general view of the High Court has been that an 'advisory opinion' is an exercise of the judicial power, even though not constituting a 'matter' and thus not part of the 'judicial power of the Commonwealth': In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 264 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ); R v Davison [1954] HCA 46; (1954) 90 CLR 353, 380 (Kitto J); The Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 325 (Jacobs J); Gould v Brown (1998) 193 CLR 346, 420–1 [118] (McHugh J), 440 [178] (Gummow J); Re Wakim; Ex parte McNally (1999) 198 CLR 511, 542 [10] (Gleeson CJ); cf the well-known descriptions of judicial power in Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1908) 8 CLR 330, 357 (Griffith CJ); Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134, 149 (Lord Simonds); R v Trade Practices Tribunal; Ex parte Tasmanian Breweries [1970] HCA 8; (1969) 123 CLR 361, 374–5 (Kitto J).
[90] The extent of the Commonwealth's power to legislate in this respect might be limited to opinions upon a subject matter with respect to which the Commonwealth has power to make laws.
[91] Mellifont v Attorney-General (Q) [1991] HCA 53; (1991) 173 CLR 289, 299–306 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ), 311–319 (Brennan J); Saffron v The Queen [1953] HCA 51; (1953) 88 CLR 523, 527–8 (Dixon CJ); Fisher v Fisher [1986] HCA 61; (1986) 161 CLR 438, 450 (Gibbs CJ; Mason, Wilson, Brennan, Deane and Dawson JJ agreeing).
[92] See text accompanying below nn 147–173.
[93] This approach would leave jurisdiction vested by laws made under ss 51(xxix) or 51(xxx), pursuant to international agreement, as a limited category.
[94] This may be contrasted with the appellate jurisdiction of the US Supreme Court, which is purely statutory. See Barry v Mercein, 46 US (5 How) 103, 119 (Taney CJ, for the Court) (1847); United States v Young 94 US (4 Otto) 258, 259 (Waite CJ, for the Court) (1876).
[95] Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 558–9 [129] (Gaudron J). See also Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, 125 (Deane J); Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 114 (McHugh J).
[96] See text accompanying below nn 127–133.
[97] Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 586 [220] (Kirby J).
[98] I reproduce the section here for convenience:
Appellate jurisdiction of High Court
73. The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences--
(i) Of any Justice or Justices exercising the original jurisdiction of the High Court:
(ii) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council:
(iii) of the Interstate Commission, but as to questions of law only:
and the judgment of the High Court in all such cases shall be final and conclusive.
But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.
Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.
[99] (1999) 200 CLR 322, reaffirming Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 and Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591. See text accompanying below nn 203–219.
[100] The bases upon which territory courts may exercise federal jurisdiction are discussed in the text accompanying below nn 177–202.
[101] As is illustrated by the Federal Magistrates Act 1999 (Cth), s 20(3), which makes provision for appeals direct to the High Court by grant of special leave in the event that s 20(1), excepting appeals direct to the High Court, is invalid. Appeals are available to the Family Court (Family Law Act 1975 (Cth), s 94AAA) and the Federal Court (Federal Court of Australia Act 1976 (Cth), s 24(1)(d)), and from those courts to the High Court by s 73 of the Constitution.
[102] The Parliament has exercised its power to prescribe regulations by requiring a grant of special leave from the High Court in most cases, before an appeal can be brought. For example, Judiciary Act 1903 (Cth), s 35(2); Federal Court of Australia Act 1976 (Cth), s 33(3); Federal Magistrates Act 1999 (Cth), s 20(2). The validity of this legislation was upheld in Smith Kline and French Laboratories (Australia) Ltd v The Commonwealth [1991] HCA 43; (1991) 173 CLR 194. The imposition of a special leave requirement does not prevent the Court from exercising its jurisdiction and is thus a regulation, rather than an exception: Parkin v James [1905] HCA 64; (1905) 2 CLR 315, 335 (the Court); but cf Fisher v Fisher [1986] HCA 61; (1986) 161 CLR 438, 450 (Gibbs CJ), referring to Family Law Act 1975 (Cth), s 95.
[103] Parkin v James [1905] HCA 64; (1905) 2 CLR 315, 332–3 (the Court). Cf Quick and Garran, above n 36, 739–40; Collins v Charles Marshall [1955] HCA 44; (1955) 92 CLR 529, 543–4 (Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ); it was assumed that 'appeal' referred to an appeal as of right, but this assumption was rejected in Smith Kline and French Laboratories (Australia) Ltd v The Commonwealth [1991] HCA 43; (1991) 173 CLR 194, 216. See Zines, Federal Jurisdiction in Australia, above n 82, 136, n 125.
[104] The jurisdiction extends only to 'matters' within the judicial power: Mellifont v Attorney-General (Q) [1991] HCA 53; (1991) 173 CLR 289, 300 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ), 312 (Brennan J).
[105] At federation, appeals were available to the Privy Council, as of right or by special leave, from decisions of all State Supreme Courts. See Quick and Garran, above n 36, 739–40; cf P H Lane, Commentary on the Australian Constitution (2nd ed, 1996) 545, n 65; see also Parkin v James [1905] HCA 64; (1905) 2 CLR 315, 335.
[106] Quick and Garran, above n 36, 738.
[107] Ibid 740 (quoting from John Burgess, Political Science and Comparative Constitutional Law (1891) 331.
[108] Federated Engine Drivers' and Firemen's Association of Australasia v Colonial Sugar Refining Co Ltd ('Engine Drivers' Case') [1916] HCA 55; (1916) 22 CLR 103, 117–18 (Isaacs, Gavan Duffy and Rich JJ), 122–3 (Powers J); cf 123–4 (Griffith CJ). See also R v Commonwealth Court of Conciliation and Arbitration and Australian Tramways Employees Association; Ex parte Brisbane Tramways Co Ltd ('Tramways Case No 1') [1914] HCA 15; (1914) 18 CLR 54, 76 (Isaacs J).
[109] [1916] HCA 58; (1916) 22 CLR 437.
[110] It is arguable that a time limitation is in fact a 'regulation' rather than an 'exception' for the purposes of s 73; see also High Court Rules 1952, O 69A r 3 and O 70 r 3.
[111] [1953] HCA 98; (1953) 87 CLR 353, 371–2 ('Watson').
[112] Ibid 372.
[113] [1955] HCA 44; (1955) 92 CLR 529, 544 (Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ). Taylor J, 558–9, took an even narrower view of the meaning of 'exceptions', but in Cockle v Isaksen [1957] HCA 85; (1957) 99 CLR 155 he retreated from this position, adopting that of the majority.
[114] [1957] HCA 85; (1957) 99 CLR 155, 165. See also Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620, 651 (Toohey, McHugh and Gummow JJ).
[115] Conciliation and Arbitration Act 1904 (Cth), s 113(3).
[116] [1957] HCA 85; (1957) 99 CLR 155, 166.
[117] Alternatively, the validity of certain exceptions might depend upon the availability of the remedies of certiorari and injunction to quash non-jurisdictional errors of law made by inferior courts.
[118] [1916] HCA 55; (1916) 22 CLR 103.
[119] Cf Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, 537–8 [173]–[176] (Callinan J).
[120] The validity of such a limitation was upheld in R v Murray and Cormie; Ex parte the Commonwealth [1916] HCA 58; (1916) 22 CLR 437.
[121] [1953] HCA 98; (1953) 87 CLR 353. See text accompanying above nn 111–112.
[122] Section 79 of the Constitution provides that the federal jurisdiction of any court may be exercised by such number of judges as Parliament prescribes. The Judiciary Act 1903 (Cth), s 15 provides that the jurisdiction of the High Court may be exercised by one or more Justices, and s 23 provides that a Full Court consisting of less than all the Justices shall not give a decision on a question affecting the constitutional powers of the Commonwealth unless at least three Justices concur in the decision. Under s 18, any matter may be referred by a Justice sitting alone to a Full Court. The original jurisdiction of the High Court is thus regularly exercised by five, six or seven Justices.
[123] Judiciary Act 1903 (Cth), s 18.
[124] Kruger v The Commonwealth [1997] HCA 27; (1996) 190 CLR 1, 175 (Gummow J); Northern Territory v GPAO (1999) 196 CLR 553, 600 [117] (Gaudron J); Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 375 [136] (Kirby J); Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, 514 [104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[125] (1998) 193 CLR 346, 384 [24].
[126] [1996] HCA 24; (1996) 189 CLR 51, 114. See also 139 (Gummow J).
[127] Quick and Garran, above n 36, 725; Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087, 1133 (Griffith CJ, Barton and O'Connor JJ); Victoria v The Commonwealth and Connor [1975] HCA 39; (1975) 134 CLR 81, 118, 119 (Barwick CJ), 182 (Mason J); Kruger v The Commonwealth [1997] HCA 27; (1996) 190 CLR 1, 175 (Gummow J). See also Alfred Deakin's second reading speech for the Judiciary Bill 1903: Hansard, 18 March 1902, 10966–10967. The special role of the High Court in constitutional cases is also recognised in s 74 of the Constitution.
[128] See, eg, Leslie Zines, 'Federal, Associated and Accrued Jurisdiction', in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 265. The Constitution itself grants the High Court original jurisdiction over the matters listed in s 75, whereas the Parliament is given power to provide that the High Court may exercise original jurisdiction over those matters in s 76.
[130] In other words, on the correct interpretation of the legislation, the existence of a constitutional corporation was a jurisdictional fact. But cf the analysis in Zines, above n 128, 271–2.
[131] (1979) 143 CLR 190, 228 (Jacobs J agreeing).
[132] Cf Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177–9 (the Court); R v Local Government Board [1902] 2 IR 349, 373-4 (Palles CB). A court generally may determine conclusively a question of law within its jurisdiction. Unless the judicial power of the Commonwealth exercised by the High Court admits of a different nature than that exercised by lower courts, the Parliament should be free to grant another court jurisdiction to determine conclusively the meaning of the Constitution and the existence of constitutional facts. The federal jurisdiction vested in lower courts is the same as that given to the High Court by s 75 and pursuant to s 76; the judicial power involved must be the same, regardless of which court is called upon to exercise it.
[133] Residual Assco Group Ltd v Spalvins (2000) 200 CLR 629, 657–8 [69]–[71] (Kirby J); cf 638–40 [8]–[14] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[134] Bank Nationalisation Case [1948] HCA 7; (1948) 76 CLR 1, 332–3 (Dixon J); Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, 227 (Mason J); Commonwealth v Tasmania ('Tasmanian Dam Case') [1983] HCA 21; (1983) 158 CLR 1, 99 (Gibbs CJ), 128 (Mason J), 220 (Brennan J), 302 (Dawson J). On the other hand, a grant of jurisdiction to a court should also be broadly construed: Knight v F P Special Assets Ltd (1992) 174 CLR 178, 205 (Gaudron J); Re McBain; Ex parte Catholic Bishop's Conference [2002] HCA 16; (2002) 209 CLR 372, 444 [189] (Kirby J).
[135] Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309, 368 (O'Connor J).
[136] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 112 (McHugh J), 134 (Gummow J); cf 102–3 (Gaudron J); Kruger v The Commonwealth [1997] HCA 27; (1996) 190 CLR 1, 175 (Gummow J); Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 558–9 [129] (Gaudron J).
[137] In relation to s 51(xxxi) (guarantee of just terms for acquisition of property under Commonwealth laws), which is expressed as a grant of power but operates as a guarantee, see, for example, Minister for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261, 276 (Latham CJ), 285–6 (Rich J), 290 (Starke J), 295 (McTiernan J), 301–2 (Williams J); Bank Nationalisation Case [1948] HCA 7; (1948) 76 CLR 1, 349 (Dixon J); Clunies-Ross v The Commonwealth [1984] HCA 65; (1984) 155 CLR 193, 201–202 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); Trade Practices Commission v Tooth & Co Ltd [1979] HCA 47; (1979) 142 CLR 397, 403 (Barwick CJ); Georgiadis v Australian and Overseas Telecommunications Corporation (1993) 179 CLR 297, 320 (Toohey J). In relation to s 117 (rights of out-of-State residents) see Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461, 527 (Deane J), 554 (Toohey J). In relation to s 116 (freedom of religion), the concept of religion has been given a broad interpretation: see, for example, Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116, 123 (Latham CJ); Kruger v The Commonwealth [1997] HCA 27; (1996) 190 CLR 1, 123 (Gaudron J).
[138] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 134 (Gummow J).
[139] See Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 376 (Kirby J); Mobil Oil Australia Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1, 45 [87] (Kirby J).
[140] By definition, the Supreme Court is the highest court in a State, and there can be no appeal from a State Supreme Court to any federal court other than the High Court: Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529, 543 (Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ); Gould v Brown (1998) 193 CLR 346, 420 [116] (McHugh J), 440 [178], 447 [196] (Gummow J; Gaudron J agreeing).
[141] The exception is obviously appeals from the High Court's original jurisdiction. This jurisdiction has already been discussed: see text accompanying above nn 121–123.
[142] As it clearly was in Cockle v Isaksen [1957] HCA 85; (1957) 99 CLR 155.
[143] Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 331–3 [7]–[9] (Gleeson CJ, McHugh and Callinan JJ).
[144] (1999) 200 CLR 485, 574–585 [230]–[262]. See particularly 574 [231].
[145] The words of s 111 of the Constitution.
[146] See text accompanying above nn 78–97.
[147] [1965] HCA 66; (1965) 114 CLR 226.
[148] [1971] HCA 10; (1971) 125 CLR 591.
[149] Ibid 599. See also Northern Territory v GPAO (1999) 196 CLR 553, 621 [177]–[178] (McHugh and Callinan JJ, dissenting).
[150] Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31, 79 (Dixon J); Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1, 22 (Mason J); Actors and Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23; (1982) 150 CLR 169, 192–4 (Stephen J); State Chamber of Commerce and Industry v The Commonwealth (Second Fringe Benefits Tax Case) [1987] HCA 38; (1987) 163 CLR 329, 353–4 (Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ); Leask v The Commonwealth [1996] HCA 29; (1996) 187 CLR 579, 621–2 (Gummow J), 633 (Kirby J).
[151] Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132, 143 (Dixon CJ); Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 278 (Windeyer J); Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 560–61 (Toohey J), 566 (Gaudron J), 614 (Gummow J), 661–2 (Kirby J).
[152] See text accompanying above nn 32–44.
[153] Capital TV and Appliances Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591, 600; the expression was originally used in Attorney-General (Cth) v The Queen ('Boilermakers' Case') [1957] HCA 12; (1957) 95 CLR 529, 545; [1957] AC 288, 320 (Viscount Simonds, for the Judicial Committee).
[154] Capital TV and Appliances Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591, 599–600.
[155] [1971] HCA 10; (1971) 125 CLR 591.
[156] Northern Territory v GPAO (1999) 196 CLR 553, 604–5 [128]–[133]. See also Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 339–40 [33] (Gaudron J).
[157] Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 348–9 [63]–[67].
[158] O'Neill v Mann [2000] FCA 1180; (2000) 101 FCR 160, 164–5 [10]–[18] (Finn J), holding that the Northern Territory Supreme Court exercised federal jurisdiction; cf North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1728; (2001) 192 ALR 625, 689–690 [408]–[410], [414]–[416] (Weinberg J); North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297; (2002) 122 FCR 204, 232–4 [117]–[133] (Black CJ and Hely J; Drummond J agreeing on this point), holding that territory courts could not exercise federal jurisdiction.
[159] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, 518–19 [18]–[19], 530 [51]–[54], 532 [58] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Putland v The Queen [2004] HCA 8; (2004) 204 ALR 455, 456–7 [4] (Gleeson CJ), 464 [33] (Gummow and Heydon JJ; Callinan J agreeing), 473–4 [73] (Kirby J); North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 206 ALR 315, 326 [28] (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ). If territory courts exercised only 'non-federal' jurisdiction, it is not clear that they would have jurisdiction to grant constitutional writs to restrain an officer of the Commonwealth. See Ex parte Goldring [1903] NSWStRp 53; (1903) 3 SR(NSW) 260; cf Judiciary Act 1903 (Cth), s 67(b).
[160] R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 268 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).
[161] Judiciary Act 1903 (Cth), s 39(2).
[162] (1999) 198 CLR 511, 561–2 [67]–[68] (McHugh J), 578–82 [114]–[127] (Gummow and Hayne JJ; Gleeson CJ and Gaudron J agreeing).
[163] For most of the twentieth century there existed no general federal court. Even the Federal Court of Australia, when established, was not intended as a court of general jurisdiction: see Zines, above n 82, 111–4.
[164] Cf Re Wakim; Ex parte McNally (1999) 198 CLR 511, 605–6 [201] (Kirby J).
[165] For example, Constitution Act 1902 (NSW), s 5; Constitution Act 1867 (Q), s 2; cf Constitution Act 1975 (Vic), s 16. See also Constitution Act 1889 (WA), s 2.
[166] Kruger v The Commonwealth [1997] HCA 27; (1996) 190 CLR 1, 163 (Gummow J); cf 55–6 (Dawson J). See also Australian National Airways Pty Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29, 84–85 (Dixon J); Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132, 153 (Kitto J).
[167] Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 242 (Barwick CJ).
[168] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257; R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254; Re Wakim; Ex parte McNally (1999) 198 CLR 511, especially 558 [59] (McHugh J); see text accompanying above nn 84–86.
[169] Northern Territory v GPAO (1999) 196 CLR 553, 604 (Gaudron J).
[170] Gould v Brown (1998) 193 CLR 346, 402–3 [64]–[65]; Northern Territory v GPAO (1999) 196 CLR 553, 604–5. See also the comments of Gummow J in argument in North Australian Aboriginal Legal Aid Service Inc v Bradley; Transcript of Proceedings, North Australian Aboriginal Legal Aid Service Inc v Bradley (High Court of Australia, 8 October 2003) 38. It should be noted, however, that counsel appears to have been submitting the contrary proposition, viz, that s 122 provided the power.
[171] Zines, above n 82, 177; cf Wall v The King; Ex parte King Won and Wah On [1927] HCA 4; (1927) 39 CLR 245, 261–2 (Higgins J).
[172] (1999) 200 CLR 322.
[173] See text accompanying below nn 203–219.
[174] The exercise of the two distinct powers can be seen in the Supreme Court Act 1933 (ACT), ss 3(1) and 20(1).
[175] Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 339–40 [31] –[33] (Gaudron J).
[176] For example, a suit between two residents of a territory or between residents of two different territories would seem to have a sufficient connection.
[177] For example, Judiciary Act 1903 (Cth), ss 67B, 67C and s 68. Cf Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth), s 4(1)(d).
[178] (1999) 196 CLR 553.
[179] Sections 51(xxi) and 51(xxii) of the Constitution.
[180] Northern Territory v GPAO (1999) 196 CLR 553, 589–92 (Gleeson and Gummow JJ), 605 (Gaudron J), 650–1 (Hayne J). (Kirby J dissented on a different ground.)
[181] Ibid 621–3 [177]–[181]. They considered that the 'federal jurisdiction' referred to in s 77(iii) would not include matters arising under ss 75(i), 75(ii), 75(iv), 76(iii) or 76(iv). This is difficult to reconcile with the words of s 77 which allow the Parliament to invest State courts with federal jurisdiction with respect to any of the matters in ss 75 and 76. It would also follow from this construction that s 79, allowing the Parliament to prescribe the number of judges which may exercise the federal jurisdiction of any court, leaves a lacuna: could the Parliament prescribe the number of judges to exercise 'non-federal' jurisdiction over the matters in ss 75 and 76? The lacuna might be filled by s 51(xxxix), but if s 51(xxxix) provided such a power generally, s 79 would be superfluous. See also Kruger v The Commonwealth [1997] HCA 27; (1996) 190 CLR 1, 171 (Gummow J), pointing out that the s 76(i) federal jurisdiction includes matters involving the interpretation of s 122 itself. But cf Grace Bros Pty Ltd v Magistrates, Local Courts of NSW (1998) 84 ALR 492, 498 (Gummow J).
[182] See, for example, Ah Yick v Lehmert [1905] HCA 22; (1903) 2 CLR 593, 603–4 (Griffith CJ; Barton J agreeing); Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087, 1113 (Griffith CJ, Barton and O'Connor JJ); The Commonwealth v Limerick Steamship Co Ltd and Kidman [1924] HCA 50; (1924) 35 CLR 69, 90 (Isaacs and Rich JJ); Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529, 562 (Taylor J); John Robertson & Co Ltd v Ferguson Transformers Pty Ltd [1973] HCA 21; (1973) 129 CLR 65, 93–4 (Mason J); Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 115 (McHugh J); Gould v Brown (1998) 193 CLR 346, 379 [15] (Brennan CJ and Toohey J); Northern Territory v GPAO (1999) 196 CLR 553, 575 [35] (Gleeson CJ and Gummow JJ), 650 [255] (Hayne J).
[183] Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, s 5 provides that the Constitution, and laws of the Parliament made under it, 'shall be binding on the courts, judges and people of every State and every part of the Commonwealth'. See Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20, 45 (Windeyer J)
[184] Ffrost v Stevenson [1937] HCA 41; (1937) 58 CLR 528, 573 (Dixon J); Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367, 393 (Windeyer J), 412–13 (Walsh J; Barwick CJ agreeing). Cf Zines, Federal Jurisdiction in Australia, above n 82, 237–8.
[185] Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087, 1113 (Griffith CJ, Barton and O'Connor JJ), 1142 (Isaacs J); Lorenzo v Carey [1921] HCA 58; (1921) 29 CLR 243, 252 (the Court); Lipohar v The Queen (1999) 200 CLR 485, 516–17 [78] (Gaudron, Gummow and Hayne JJ); ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 570 [3] (Gleeson CJ, Gaudron and Gummow JJ); Solomons v District Court (NSW) [2002] HCA 47; (2002) 211 CLR 119, 144 [53] (McHugh J).
[186] Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087, 1142 (Isaacs J).
[187] (1999) 196 CLR 553. See text accompanying above nn 178–182.
[188] R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141, 145 (Latham CJ); LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575, 581 (Gibbs CJ, Mason, Wilson, Deane and Toohey JJ; Murphy J agreeing); Re McJannet; Ex parte Australian Workers' Union of Employees (Q) [No 2] [1997] HCA 40; (1997) 189 CLR 654, 656–7 (the Court); Northern Territory v GPAO (1999) 196 CLR 553, 591 [90] (Gleeson CJ and Gummow J), 605 [133] (Gaudron J), 650–1 [256] (Hayne J).
[189] As was suggested in Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248, 270–1 (Brennan, Deane and Toohey JJ). But see above n 48.
[190] See Zines, above n 82, 201–4, discussing the power in s 77(iii) to invest State courts with federal jurisdiction. Cf Wall v The King; Ex parte King Won and Wah On [1927] HCA 4; (1927) 39 CLR 245, 262 (Higgins J).
[191] Cf Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132, 142 (Dixon CJ), and, in the context of creating territory courts, Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 379–80 [147] (Kirby J).
[192] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, n 193. (Citation omitted.)
[193] This legislation either applies the law in force from time to time in another State or territory, or continues the law previously in force in the territory: Northern Territory Acceptance Act 1910 (Cth), s 7; Jervis Bay Territory Acceptance Act 1915 (Cth), s 4A; Ashmore and Cartier Islands Acceptance Act 1933 (Cth), s 6; Heard Island and McDonald Islands Act 1953 (Cth), s 5; Australian Antarctic Territory Act 1954 (Cth), s 6; Cocos (Keeling) Islands Act 1955 (Cth), ss 7A(d) and 8A; Christmas Island Act 1958 (Cth), ss 7(d) and 8A; Coral Sea Islands Act 1969 (Cth), s 4; Norfolk Island Act 1979 (Cth), s 16.
[194] [2000] FCA 1180; 101 FCR 160, 168 [27]–[28]. See above n 158.
[195] Federal Capital Commission v Laristan Building and Investment Co Pty Ltd [1929] HCA 36; (1929) 42 CLR 582, 585. See also Kruger v The Commonwealth [1997] HCA 27; (1996) 190 CLR 1, 168–9 (Gummow J); Zines, above n 82, 183.
[196] For matters 'cross-vested' from State courts, the potential for the matter to be decided in the territory court would owe its existence to the law of the territory consenting to the cross-vesting of jurisdiction.
[197] See the discussion in Buchanan v The Commonwealth [1913] HCA 29; (1913) 16 CLR 315, 333–4 (Isaacs J).
[198] Northern Territory v GPAO (1999) 196 CLR 553, 605; Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 341 [39]–[40]. Even if some territory courts should now be considered as having been created by the legislature of a self-governing territory, the authority of that legislature to create or sustain the court must necessarily derive from a law made pursuant to s 122. See s 34(2) and Sch 2 of the Australian Capital Territory (Self-Government) Act 1988 (Cth); Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 199 CLR 322, 341 [39]–[40] (Gaudron J), 349–352 [71]–[78] (Gummow and Hayne JJ).
[199] Re Wakim; Ex parte McNally (1999) 198 CLR 511.
[200] Seat of Government Acceptance Act 1909 (Cth); Northern Territory Acceptance Act 1910 (Cth); Norfolk Island Act 1913 (Cth); Jervis Bay Territory Acceptance Act 1915 (Cth); Nauru Island Agreement Act 1919 (Cth); Ashmore and Cartier Islands Acceptance Act 1933 (Cth); Papua Act 1905 (Cth); New Guinea Act 1920 (Cth); Heard Island and McDonald Islands Act 1953 (Cth); Australian Antarctic Territory Acceptance Act 1933 (Cth); Cocos (Keeling) Islands (Request and Consent) Act 1954 (Cth); Christmas Island Act 1958 (Cth); Coral Sea Islands Act 1969 (Cth).
[201] For example, Agreement regarding Nauru, opened for signature 30th May 1923, ATS 1923 No 11, entered into force 30th May 1923; Trusteeship Agreement for the Territory of New Guinea, opened for signature 13th December 1946, ATS 1946 No. 1, entered into force 13th December 1946; Trusteeship Agreement for the Territory of Nauru, opened for signature 1st November 1947, ATS 1947 No 8, entered into force 1st November 1947; Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland regarding the transfer of Heard and MacDonald Islands from the United Kingdom to Australia, opened for signature 19th December 1950, ATS 1951 No 3, retrospectively entered into force 26th December 1947.
[202] Judiciary Act 1903 (Cth), s 38 provides that the High Court has exclusive original jurisdiction in any matter arising directly under any treaty. Section 39 would appear to vest State and territory courts with all remaining treaty jurisdiction.
[203] (1999) 200 CLR 322, 377–8 [141].
[204] See the criticisms of Kirby J: ibid 381–2 [150]–[151].
[205] Section 72 of the Constitution was amended in 1977 to replace the requirement of life tenure with a retirement age of 70 years for Justices of the High Court and an age set by Parliament, not more than 70 years, for Justices of other federal courts.
[206] Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 332 [8] and n 61 (Gleeson CJ, McHugh and Callinan JJ).
[207] Quick and Garran, above n 36, 972–3; Berwick Ltd v Gray [1976] HCA 12; (1976) 133 CLR 603, 607 (Mason CJ); cf Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 380 [148] (Kirby J).
[208] The answer, given by Kirby J, that the executive of the territory would probably be consulted, does not overcome this objection: Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 380 [148].
[209] (1999) 200 CLR 322, 333 [12].
[210] Ibid 333 [9].
[211] Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591, 599 (Barwick CJ): 'not always used with precision or with uniformity'. It should be noted that the construction of 'federal' for which Barwick CJ contended in that case is not the same as Gaudron J's, which is advocated here.
[212] Quick and Garran, above n 36, 333ff. See passage accompanying above n 36.
[213] Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 338–9 [30].
[214] Ibid 349–53 [71]–[81]. See also 332–3 [9] (Gleeson, McHugh and Callinan JJ), 334–5 [19] (Gaudron J).
[215] Ibid 347–9 [61]–[67].
[216] Ibid 354 [85] (Kirby J); Northern Territory v GPAO (1999) 196 CLR 553, 598 [113] (Gaudron J).
[217] Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 333 [9] (Gleeson, McHugh and Callinan JJ).
[218] (1999) 196 CLR 553.
[219] Gould v Brown (1998) 193 CLR 346, 402–3 [64] (Gaudron J); Kruger v The Commonwealth [1997] HCA 27; (1996) 190 CLR 1, 109 (Gaudron J). See also Tom Pauling, 'The Constitutional Differences Between Territories and States' (2000) 20 Australian Bar Review 187.
[220] Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529, 543 (Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ); Re Wakim; Ex parte McNally (1999) 198 CLR 511.
[221] Re Wakim; Ex parte McNally (1999) 198 CLR 511, 557 [56] (McHugh J).
[222] State Parliaments lack the power to vest jurisdiction in the courts of another State without the permission of that second State: see, for example, Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW), s 9(b).
[223] For example, the law of Western Australia applies in the territory of the Cocos (Keeling) Islands by virtue of the Cocos (Keeling) Islands Act 1955 (Cth), s 8A.
[224] Such an arrangement is in place with respect to the territories of Christmas Island and the Cocos (Keeling) Islands, the judicial power of which is exercised by the Western Australian Supreme Court. Western Australia has consented to the vesting of this jurisdiction by way of the Indian Ocean Territories (Administration of Laws) Act 1992 (WA), ss 5, 11 and 13.
[225] Except that they may not exercise functions which are incompatible with the exercise of the judicial power of the Commonwealth. See text accompanying below n 230.
[226] (1999) 198 CLR 511.
[227] Attorney-General (WA); Ex rel Ansett Transport Industries (Operations) Pty Ltd v Australian National Airlines Commission [1976] HCA 66; (1976) 138 CLR 492, 527 (Mason J). See text accompanying above nn 174–176.
[228] Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth), s 5(2).
[229] R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 270. See text accompanying nn 84–86.
[230] [1996] HCA 24; (1996) 189 CLR 51.
[231] For example, Euthanasia Laws Act 1997 (Cth). See also Norfolk Island Act 1979 (Cth), s 29; Australian Capital Territory (Self-Government) Act 1988 (Cth), s 28; cf Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 90 ALR 59, 75 (Lockhart J).
[232] The Commonwealth Parliament (or territory legislature) is free to abolish Territory Supreme Courts and, indeed, all territory courts, and to vest the judicial power in relation to the territories in State or federal courts. Cf Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 103 (Gaudron J), 112 (McHugh J), 139, (Gummow J); cf Kruger v The Commonwealth (1996) 1, 165 (Gummow J): the statement that 'covering cl 5 of the Constitution assumes the existence of courts and judges of every part of the Commonwealth' should not be taken to suggest that covering cl 5 requires the continued existence of a court for every territory.
[233] Cf Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 143–4 (Gummow J). The same argument might be made in relation to inferior State courts.
[234] See, for example, Seamen's Union of Australia v Matthews [1957] HCA 53; (1957) 96 CLR 529, 534 (Dixon CJ, Williams, Webb, Kitto and Taylor JJ) considering the validity of the establishment of the Commonwealth Industrial Court, which had been invested with non-judicial as well as judicial powers.
[235] Ibid 534–5.
[236] See text accompanying above nn 203–219.
[237] [1915] HCA 13; (1915) 19 CLR 629.
[238] Ffrost v Stevenson [1937] HCA 41; (1937) 58 CLR 528, 592 (Evatt J).
[239] On 6 August 2004, McHugh, Hayne and Callinan JJ refused an application for special leave to appeal which raised this question. However, the Court acknowledged that, in an appropriate case, 'the decision in Bernasconi might be reconsidered and the effect of the decisions in Capital Duplicators and Svikart v Stewart might also be considered': Transcript of Proceedings, Tipiloura v The Queen (High Court of Australia, McHugh J, 6 August 2004).
[240] [2003] HCA 19; (2003) 197 ALR 1, 3 [8]–[9] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ), 5 [21] (McHugh J), 7 [32]–[33] (Kirby J). See also Ng v The Queen [2003] HCA 20; (2003) 197 ALR 10.
[241] This has been suggested in a number of cases: Australian National Airways Pty Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29, 85 (Dixon J); Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 244 (Barwick CJ); Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591, 605–6 (Menzies J); Northern Territory v GPAO (1999) 196 CLR 553, 591 (Gleeson CJ and Gummow J).
[242] This was the approach which was submitted by the Northern Territory in Fittock v The Queen: [2003] HCA 19; (2003) 197 ALR 1, 3 [7].
[243] See Transcript of Proceedings, Fittock v The Queen (High Court of Australia, Pauling, 13 February 2003) 42–3. The application of the rules for choice of law might resolve apparent conflicts between the laws of a State and the laws of a self-governing territory in the same way as between two States. See Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, 137–8 (Deane J); cf 84, 93–4 (Wilson and Gaudron JJ).
[244] See text accompanying n 189.
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