1. Eastman v The Queen

High Court of Australia|1999-09-02|Before: Gleeson CJ, Callinan JJ, Windeyer J

The applicant seeks a writ of habeas corpus addressed to the first respondent. In effect, he asks this Court to order his release from custody. The ground of the application is that he was not duly convicted. The basis of that assertion is the contention that Carruthers A-J was not validly appointed.

The argument that the appointment of Carruthers A-J was invalid turns upon the proposition that appointments to the Supreme Court of the ACT are governed by s 72 of the Constitution. If that proposition is correct, there are at least two grounds of invalidity. First, Carruthers A-J was not appointed by the Governor-in-Council, as required by s 72(i). He was appointed by the Executive of the ACT. This is not a mere formality. Behind the legal question of the identity of the appointor, there is the practical question of the identity of those who advise in relation to the choice of appointee. It may be taken that the ACT Executive, in appointing Carruthers A-J, acted upon the advice of an ACT Minister or ACT Ministers, not upon the advice of Federal Ministers. The same, no doubt, applies generally to appointments made to the ACT Supreme Court in recent years, whether of acting or permanent judges. Thus, there is an issue as to who selects people for appointment as ACT judges. Secondly, Carruthers A-J was appointed, for a limited term, as an Acting Judge. This was permitted by a law enacted by the Legislative Assembly of the ACT [2] . However, it is contrary to the tenure prescribed by s 72 of the Constitution. The law of the ACT was enacted upon the assumption that compliance with s 72 was unnecessary. It should be added that the remuneration of Carruthers A-J was not fixed by the Parliament, but pursuant to an ACT statute [3] . This, also, was upon the assumption that s 72 did not apply.

Supreme Court (Amendment) Act (No 2) 1993 ACT, s 26. 2. Supreme Court (Amendment) Act (No 2) 1993 ACT, s 11.

The understanding which presently governs the appointment of judges and magistrates throughout Australia's territories, internal and external, is that s 72 does not apply to appointments to territory courts. That understanding is based directly upon the authority of two unanimous decisions of this Court, one in 1965, Spratt v Hermes [4] , and one in 1971, Capital TV and Appliances Pty Ltd v Falconer [5] . Those decisions, in turn, were based upon a line of authority extending back to 1915 [6] . The applicant challenges that line of authority, and submits that the two decisions directly in point should be overruled.

(1965) 114 CLR 226. 2. (1971) 125 CLR 591. 3. R v Bernasconi (1915) 19 CLR 629.

What is at stake is not only the lawfulness of the conviction and sentence in the instant case. The validity of the appointment, and the lawfulness of past decisions of, judicial officers in any territory who were appointed by a local Executive acting on the advice of local ministers, or who did not have the tenure required by s 72, is in question. Also at stake, for the present and the future, in respect of self-governing territories, is the question of who has the power to choose judicial officers, to define their terms of office, to fix their remuneration, and to deal with questions of their possible removal.

Underlying the arguments advanced on behalf of the applicant is a problem of interpretation of the Constitution which has vexed judges and commentators since the earliest days of Federation. It involves "a notoriously technical and difficult branch of Australian constitutional law" [7] . It concerns the relationship between various provisions of Ch III of the Constitution and s 122, which confers upon the Parliament a general power to make laws for the government of territories (which includes a power to set up territory courts).

Spratt v Hermes (1965) 114 CLR 226 at 274, per Windeyer J.

One of the reasons for the difficulty in giving the relevant provisions a meaning which achieves internal consistency, and at the same time accommodates the realities of government and administration with which the Constitution must deal, is the disparate nature of territories. Some (such as the ACT, the Northern Territory, and the Jervis Bay Territory) are internal. Others (such as Norfolk Island, the Coral Sea Islands, the Australian Antarctic Territory, the Ashmore and Cartier Islands, the Cocos (Keeling) Islands, Christmas Island, and the Heard and McDonald Islands) are external. The Northern Territory has already obtained a substantial measure of responsible government [8] . There is a view that the ACT, by reason of certain provisions of the Constitution, can never become a State [9] . There have been various circumstances in which external territories have come to be under the authority of the Commonwealth. In R v Bernasconi, for example, Isaacs J referred to "recently conquered territories" with German and Polynesian populations [10] . The territories have been, still are, and will probably continue to be, greatly different in sise, population, and development. Yet they are all dealt with, compendiously and briefly, in s 122.

Lumb, "The Northern Territory and Statehood", Australian Law Journal, vol 52 (1978) 554. See also Northern Territory v GPAO (1999) 196 CLR 553. 2. See the argument in Spratt v Hermes (1965) 114 CLR 226 at 232. 3. R v Bernasconi (1915) 19 CLR 629 at 638.

Section 72 deals with the appointment of "the Justices of the High Court and of the other courts created by the Parliament", and prescribes their tenure of office. Until the Constitution was amended in 1977, such Justices had, in effect, life tenure, subject to a power of removal by the Governor-General on an address from both Houses of the (Federal) Parliament. Since 1977, the term of such an appointment expires when the Justice attains the age of seventy. That, however, does not alter either the question or the answer. In 1915 the Court had to decide a case which, directly, raised a somewhat different issue as to the relationship between s 122 and other parts of the Constitution, but which had obvious implications for the question of the relationship between ss 72 and 122. The issue in R v Bernasconi [11] was whether s 80 of the Constitution, making trial by jury obligatory in certain cases, applied to a certain prosecution in the Territory of Papua. The Court answered the question in the negative, giving reasons which also clearly implied that the judicial officer of the Territory of Papua who dealt with the case was not a person who was required by s 72 to have life tenure. A suggestion, in 1915, that the magistrates and judges of all territories, internal or external, in whatever stage of development, were required to have life tenure, would have been regarded as startling by people who were familiar with the tenure of office of magistrates and judges in the various Australian States [12] .

(1915) 19 CLR 629. 2. For a history of the New South Wales magistracy, including an account of their appointment and tenure, see Golder, High and Responsible Office: A History of the New South Wales Magistracy (1991). At the time of Federation, and until the Local Courts Act 1982 NSW, stipendiary magistrates were members of the New South Wales Public Service. It was only after 1955 that new recruits to the magistracy were required to be legally qualified (Golder, p 175).

In Spratt v Hermes [13] , the Court answered in the negative a question whether the provisions of s 72 of the Constitution applied to the appointment of a stipendiary magistrate of the ACT. There was no dissent. The Court was invited to overrule R v Bernasconi, but declined to do so. Barwick CJ said [14] that "it is a decision of long standing upon the basis of which legislation has frequently been passed". The Chief Justice did not accept all of the reasoning in R v Bernasconi, some of which was wider than was necessary for the actual decision. In particular, he did not accept that Ch III of the Constitution was wholly inapplicable to territories [15] . However, he considered that, upon its true construction, s 72 did not apply to courts created by or pursuant to laws under s 122 [16] . The section is not a limitation on the power to create courts of judicature which is included in the grant of legislative power contained in s 122. Such courts are not within the meaning of the expression "the other courts created by the Parliament" in s 72. That construction, which gives a negative answer, not to a wide question as to the relationship between Ch III and s 122, but to a particular question as to whether s 72 addresses the position of courts created pursuant to s 122, is open on the language, and produces a sensible result, which pays due regard to the practical considerations arising from the varied nature and circumstances of territories. It takes account of the consideration that, as the legislative background to the present case illustrates, at any given time some territories may enjoy self-government and some will not. Even if the applicant's argument were correct, whether a court in a self-governing territory satisfied the description of a court created by the Federal Parliament might depend upon whether the territory legislature had legislated concerning the territory's courts, and upon the form of such legislation. If that were the case, some territory courts would be affected by s 72, and not others.

(1965) 114 CLR 226. 2. Spratt v Hermes (1965) 114 CLR 226 at 244. 3. Spratt v Hermes (1965) 114 CLR 226 at 248. 4. Spratt v Hermes (1965) 114 CLR 226 at 248.

The decision in Spratt v Hermes was unanimously affirmed and applied in Capital TV and Appliances Pty Ltd v Falconer [17] . What is of direct significance for the present case is that the judgments proceeded upon the basis that there was "no relevant ground of distinction between [the ACT] Court of Petty Sessions and the Supreme Court of the Australian Capital Territory" [18] .

(1971) 125 CLR 591. 2. Capital TV (1971) 125 CLR 591 at 598.

The amendment to s 72 in 1977 did not alter the meaning of s 122, or the relationship between the two sections. By removing the requirement of life tenure for Justices appointed pursuant to s 72, the amendment removed what had, until then, been one of the indications that territory courts were not within the purview of s 72. However, if territory courts were not courts created by the Parliament within the meaning of those words as they appeared in s 72 in 1915, and 1965, and 1971, then nothing occurred to change the meaning of those words in 1977. The force of that consideration cannot be evaded by a suggestion that there then arose an opportunity for a fresh insight into the meaning of the Constitution, unembarrassed by what would previously have been one of the practical consequences.

The invitation to overrule the decision in Spratt v Hermes, and to refuse to follow the holding in Capital TV and Appliances Pty Ltd v Falconer that it applies equally to the Supreme Court of the ACT, should be declined.

The applicant developed a further argument, based upon s 52(i) of the Constitution. The ACT, it was submitted, is, or includes, the seat of government, and laws for the ACT, unlike other territories, are made under s 52(i) and not s 122. A court set up to administer those laws, which are federal laws, is a court to which s 72 applies.

Section 52(i) has to be read together with s 125. Whatever the precise meaning of the expression "seat of government", the prevailing, and correct, opinion is that the ACT and the seat of government are not synonymous terms [19] , that they are not co-extensive, and that the source of legislative power for such purposes as are presently relevant is s 122. In Svikart v Stewart [20] , Mason CJ, Deane, Dawson and McHugh JJ said:

Section 52(i) provides for the exclusive power to make laws with respect to the seat of government as well as places acquired by the Commonwealth for public purposes. Under s 125, the seat of government is required to be within territory granted to or acquired by the Commonwealth. There is now a Territory, the Australian Capital Territory, within which the seat of government has been located, although its limits have not been precisely determined by the Parliament. The seat of government is, however, not co-extensive with the Territory in which it is located nor, under s 125, is it intended to be. The Parliament must rely upon s 122 for the power to make laws for the government of that Territory. That power is not made subject to the Constitution as is the power to make laws with respect to the seat of government under s 52(i). Moreover, the power to make laws with respect to the seat of government would seem to be concerned with its political or constitutional aspects, rather than with the government of the territory which it occupies. 1. Spratt v Hermes (1965) 114 CLR 226 at 262, per Taylor J. 2. (1994) 181 CLR 548 at 561.

There is no foundation for this alternative argument.

The application should be dismissed with costs.

The background to this application is set out in other judgments and need not be repeated. The central issue to be decided is whether the Supreme Court of the Australian Capital Territory (the Supreme Court) is a court "created by the Parliament" for the purposes of s 72 of the Constitution.

It is not in issue that, if the Supreme Court is a court "created by the Parliament" for the purposes of s 72, the judge who presided over the applicant's trial was not appointed in accordance with that section [21] . And it is contended that, that being so, his conviction and the warrant pursuant to which he is presently held in custody are invalid. On the other hand, if it is not a court created by the Parliament for the purposes of s 72, it is accepted that neither that nor any other constitutional provision speaks to the appointment of its judges.

Section 72 relevantly provides: "The Justices of the High Court and of the other courts created by the Parliament: (i) shall be appointed by the Governor-General in Council; (iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court. Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years."

The first step in determining whether the Supreme Court is a court to which s 72 applies is to determine whether s 122 of the Constitution, which confers power on the Parliament to make laws "for the government of [a] territory", ultimately sustains its existence. If it does, it is convenient to proceed on the basis that the Supreme Court is a court created by the Parliament pursuant to s 122 notwithstanding that, in various respects, it is now subject to the legislative power of the Legislative Assembly of the Australian Capital Territory [22] and appointments to it are made by the Executive of the Territory [23] . On the basis that it is a court created by the Parliament under s 122, the second step is to consider the relationship between that section and Ch III of the Constitution, it being in Ch III that s 72 is found. If, on that analysis, s 72 does not apply to the Supreme Court, the application must be dismissed. So, too, it must be dismissed if the Supreme Court is now a creature of the body politic of the Australian Capital Territory and not a court created by the Parliament under s 122 for, in that event, s 72 can have no application to it.

Section 34 of the Australian Capital Territory (Self-Government) Act 1988 Cth, as amended by s 7 of the ACT Supreme Court (Transfer) Act 1992 Cth. 2. Sections 4 and 4A of the Supreme Court Act 1933 ACT.

Subject to a possible qualification later to be mentioned when considering the relationship between s 122 and Ch III of the Constitution, the power conferred by s 122 of the Constitution to make laws for the government of a territory extends, as a matter of ordinary language, to the creation of courts having jurisdiction with respect to matters arising under or involving the application of laws in their operation in the territory concerned [24] . And as a matter of ordinary language, s 122 will sustain the existence of such courts if, for example, they are established by or made subject to the legislative power of a self-governing territory.

See as to the creation of courts, Spratt v Hermes (1965) 114 CLR 226 at 242, per Barwick CJ; at 258-259, per Kitto J; at 260, 264, per Taylor J; at 266, per Menzies J; at 280-281, per Owen J; Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 601-602, per McTiernan J; at 608-609, per Menzies J; at 613-614, per Owen J; at 619, per Walsh J; at 626, per Gibbs J; Gould v Brown (1998) 193 CLR 346 at 401, per Gaudron J; Northern Territory v GPAO (1999) 196 CLR 553 at 596, per Gaudron J.

Notwithstanding the language of s 122, it was contended for the applicant that that provision does not authorise the creation of the Supreme Court or sustain its existence. In this respect, it was put that s 52 of the Constitution, not s 122, is the source of legislative power with respect to the Australian Capital Territory. Section 52 relevantly provides:

The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to:

There is, in my view, some difficulty in approaching s 52 as an independent source of legislative power as distinct from a constitutional provision directed to rendering exclusive to the Commonwealth specified powers which are found elsewhere in the Constitution [25] . If, however, there is scope for it to operate as an independent grant of legislative power with respect to the seat of government, it is concerned, as was pointed out in Svikart v Stewart [26] , with the "political or constitutional aspects" of that notion, rather than with the government of the territory in which it is located. In this respect, it should be noted that s 52(i) relevantly confers "power to make laws for the peace, order, and good government of the Commonwealth with respect to the seat of government", not power to make laws for its government. It was also pointed out in Svikart v Stewart that "[t]he seat of government is not co-extensive with the Territory in which it is located nor, under s 125 [27] , is it intended to be [and, thus the] Parliament must rely upon s 122 for the power to make laws for the government of that Territory" [28] .

See Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 at 110-111, per Kitto J; Svikart v Stewart (1994) 181 CLR 548 at 576-577, per Gaudron J. 2. (1994) 181 CLR 548 at 561, per Mason CJ, Deane, Dawson and McHugh JJ. 3. Section 125 relevantly provides: "The seat of Government of the Commonwealth shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth." 4. Svikart v Stewart (1994) 181 CLR 548 at 561, per Mason CJ, Deane, Dawson and McHugh JJ See also Spratt v Hermes (1965) 114 CLR 226 at 262, per Taylor J; at 273, per Windeyer J; at 281-282, per Owen J; Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 at 114-115, per Menzies J; at 124, per Windeyer J.

In this context, it is appropriate to note that, by s 3(1) of the Supreme Court Act 1933 ACT, the Supreme Court is established as the "Supreme Court of the Territory" and, by s 31, is given jurisdiction to "give effect to all claims for relief arising under the common law or the statute law of the Territory". The reference in those provisions to "the Territory" is clearly a reference to the Australian Capital Territory [29] in which the seat of government is located, not to the seat of government itself.

Note that this follows from the long title of the Supreme Court Act as "[a]n Act to establish a Supreme Court of the Australian Capital Territory". Moreover, by s 3(1) the Supreme Court is to be known as "the Supreme Court of the Australian Capital Territory".

A law of the Parliament establishing or sustaining the existence of a court for the Australian Capital Territory with jurisdiction with respect to "claims arising under the common law or the statute law of the Territory" is a law pursuant to s 122 for the government of that Territory, not a law under s 52(i) with respect to the seat of government. Thus, on the assumption that the Supreme Court is a court created by the Parliament pursuant to s 122, it is necessary to consider the relationship between that section and Ch III of the Constitution to ascertain whether it is also a court "created by the Parliament" for the purposes of s 72.

Courts created pursuant to or sustained by s 122 and Ch III of the Constitution

As a matter of ordinary language, the words "created by the Parliament" in s 72 are apt to include a court created by the Parliament pursuant to s 122. This notwithstanding, it was held by this Court in Spratt v Hermes [30] , and later affirmed in Capital TV and Appliances Pty Ltd v Falconer [31] that the words "created by the Parliament" do not refer to courts created under s 122. Those decisions and other decisions of this Court with respect to the relationship between s 122 and Ch III of the Constitution, in which s 72 is found, have not produced "a coherent body of doctrine" [32] . And as I pointed out in Northern Territory v GPAO [33] , they have created as many problems as they have solved.

(1965) 114 CLR 226. 2. (1971) 125 CLR 591. 3. Spratt v Hermes (1965) 114 CLR 226 at 265, per Menzies J. 4. (1999) 196 CLR 553 at 602. See as to the nature of those problems, Spratt v Hermes (1965) 114 CLR 226 at 245-248, per Barwick CJ; at 252-253, 257, per Kitto J; at 265-267, per Menzies J; at 274, per Windeyer J.

In particular, the decisions with respect to the relationship between s 122 and Ch III give rise to difficulties in connection with this Court's jurisdiction to entertain appeals from the decisions of courts created pursuant to s 122 if, as has been held, those courts are neither federal courts nor courts exercising federal jurisdiction [34] . That is because s 73(ii) relevantly confers jurisdiction only with respect to appeals from "[another] federal court, or court exercising federal jurisdiction; or the Supreme Court of [a] State".

See Spratt v Hermes (1965) 114 CLR 226 at 242-243, per Barwick CJ; at 250-251, per Kitto J; at 263-264, per Taylor J; at 266, per Menzies J; at 274, per Windeyer J; at 279-281, per Owen J; Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 600, per Barwick CJ; at 602, per McTiernan J; at 609, per Menzies J; at 609, per Windeyer J; at 613-614, per Owen J; at 623, per Walsh J; at 626-627, per Gibbs J.

To some extent, the problems associated with this Court's jurisdiction to hear appeals from courts created or sustained by s 122 have been alleviated by decisions holding that the Parliament may, pursuant to that section, confer jurisdiction on this Court to hear appeals from those courts [35] . However, it is difficult to reconcile those decisions with the exclusive and exhaustive nature of the provisions of Ch III [36] , its exclusive and exhaustive nature having been most recently confirmed in Re Wakim; Ex parte McNally [37] . Given that difficulty and given, also, the critically important role assigned to the judicature by the Constitution, I would grant leave, if leave is necessary, to re-open Spratt v Hermes and Capital TV and Appliances Pty Ltd v Falconer.

See Porter v The King; Ex parte Yee (1926) 37 CLR 432 at 440-441, per Isaacs J; at 446, per Higgins J; at 448, per Rich J; at 449, per Starke J; R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 290, per Dixon CJ, McTiernan, Fullagar and Kitto JJ; at 327-328, per Webb J; Spratt v Hermes (1965) 114 CLR 226 at 239, per Barwick CJ; at 256-257, per Kitto J; at 279, per Owen J; Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 604, per Menzies J; at 612, per Windeyer J; at 626, per Gibbs J; Gould v Brown (1998) 193 CLR 346 at 380, per Brennan CJ and Toohey J. 2. See Northern Territory v GPAO (1999) 196 CLR 553 at 598-600, per Gaudron J. 3. (1999) 198 CLR 511.

As already indicated, the words "created by the Parliament" in s 72 of the Constitution are, as a matter of ordinary language, apt to include courts created pursuant to s 122. If those words are to be construed otherwise, it can only be by reason that either some provision of Ch III and/or s 122 indicates otherwise. So far as Ch III is concerned, the critical provision is s 71 which relevantly provides:

Section 71 is exhaustive as to the courts that may exercise the judicial power of the Commonwealth [38] . It also impliedly confers power on the Parliament to create courts [39] , but only "federal courts". It emerges clearly from Ch III of the Constitution that federal jurisdiction is co-extensive with the matters specified in ss 75 and 76 of the Constitution [40] . However, there is no very precise indication of what is meant by "federal courts". For the applicant, it was contended that federal courts are courts created by the Parliament to exercise federal jurisdiction. However, that argument pays no attention to the adjective "federal" in s 71. To put the matter another way, the applicant's argument proceeds as if s 71 referred simply to "such other courts as the Parliament creates".

R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 290, per Dixon CJ, McTiernan, Fullagar and Kitto JJ. 2. See R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 269, 289, per Dixon CJ, McTiernan, Fullagar and Kitto JJ; Spratt v Hermes (1965) 114 CLR 226 at 274, per Windeyer J; Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 603, per Menzies J; Gould v Brown (1998) 193 CLR 346 at 377, per Brennan CJ and Toohey J; at 401, per Gaudron J; at 416, per McHugh J; at 444, per Gummow J; at 490, per Kirby J; Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 546, per Gleeson CJ; at 551, per McHugh J. 3. The matters specified in s 75 are matters: "(i) arising under any treaty; (ii) affecting consuls or other representatives of other countries; (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of another State; (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth." The matters specified in s 76 are matters: "(i) arising under this Constitution, or involving its interpretation; (ii) arising under any laws made by the Parliament; (iii) of Admiralty and maritime jurisdiction; (iv) relating to the same subject-matter claimed under the laws of different States."

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.

The jurisdiction of a court created pursuant to s 122 of the Constitution is necessarily confined to matters arising under or involving the application of laws in their operation in a territory. That is because a law creating a court with jurisdiction in matters of that kind is a law for the government of the territory concerned. However, a law creating a court the jurisdiction of which is not confined to matters arising under or involving the application of laws in their operation in a territory is not a law for the government of that territory. And the same is true of a law sustaining the existence of a court the jurisdiction of which is not confined in the manner indicated.

As already mentioned, the statement that s 122 authorises the creation of courts having jurisdiction with respect to matters arising under or involving the application of laws in their operation in a territory is subject to a possible qualification. That possibility arises because, to take one example, those laws may include laws with respect to the matters referred to in s 51 of the Constitution. Even if, in its operation in a territory, a law under s 51 can be characterised as a law for the government of the territory concerned, it is, nonetheless, also a law under s 51 of the Constitution [41] . And a law of that kind properly answers the description of "[a law] made by the Parliament" for the purposes of s 76(ii) of the Constitution [42] . A matter arising under such a law is a matter within federal jurisdiction and one that invokes the judicial power of the Commonwealth which, by s 71, can only be exercised by the courts specified in that section, namely, federal courts and courts invested with federal jurisdiction.

See Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 565-567, per Gaudron J (with whom Toohey J agreed at 560); at 582, per McHugh J; at 601, 614, per Gummow J; at 661-662, per Kirby J; Northern Territory v GPAO (1999) 196 CLR 553 at 601-602, per Gaudron J. See also Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 176, per Deane and Toohey JJ; at 222-223, per Gaudron J. 2. Northern Territory v GPAO (1999) 196 CLR 553 at 599, per Gaudron J.

For the reasons that I gave in GPAO [43] , I see no reason why a court created pursuant to s 122 cannot be invested with federal jurisdiction and thus exercise jurisdiction in matters arising under a law made by Parliament under s 51 or in other matters that fall within federal jurisdiction. And the same is true of a court the existence of which is sustained by s 122. However, and as already pointed out, that is so only to the extent that the matter arises under or involves the application of a law in its operation in a territory because, if its jurisdiction were to extend beyond that, the law under which the court was created or its existence was sustained would not be a law for the government of the territory concerned.

Northern Territory v GPAO (1999) 196 CLR 553 at 604-605.

One other matter should be noted with respect to the vesting of federal jurisdiction in a court created under s 122 or the existence of which is sustained by a law under that section. If it is not necessary for a court of that kind to conform to the requirements of s 72 of the Constitution, a question could arise as to whether, in accordance with the principles recognised in Kable v Director of Public Prosecutions (NSW) [44] , there is not some implicit requirement in Ch III with respect to the nature of the matters that may be dealt with by it and perhaps, also, with respect to the manner in which it is constituted before federal jurisdiction can be vested in it.

Once it is accepted, as in my view it must be, that a court created pursuant to s 122 may be invested with federal jurisdiction in matters arising under or involving the application of laws in their operation in a territory, there is room to doubt whether the words "the other courts created by the Parliament" bear their natural and ordinary meaning in s 72. That is because s 71 establishes a dichotomy between "other federal courts [that] the Parliament creates" and "other courts [that] it invests with federal jurisdiction". In that context, it is possible to read s 72, in so far as it is concerned with "other courts created by the Parliament", as referring to federal courts created by the Parliament pursuant to s 71, in contradistinction to those that may be invested with federal jurisdiction.

Were the question free of authority, I should think the preferable course would be to give the words of s 72 their natural and ordinary meaning so as to include courts created pursuant to s 122 of the Constitution [45] . However, given that contextual considerations provide a basis for reading s 72 down so as to apply only to federal courts created pursuant to s 71 and given, also, that s 72 has twice been so interpreted by this Court and that the Parliament has acted on the Court's decisions in that regard, it should, in my view, continue to be read in that way.

See Kruger v The Commonwealth (1997) 190 CLR 1 at 109, per Gaudron J; Gould v Brown (1998) 193 CLR 346 at 402, per Gaudron J; Northern Territory v GPAO (1999) 196 CLR 553 at 603, per Gaudron J.

There is a further consideration that confirms my view that, so far as they are concerned with the meaning of s 72, the decisions in Spratt v Hermes and Capital TV and Appliances Pty Ltd v Falconer should stand. It is that, even if s 72 were interpreted as applying to courts created under s 122, they would not be federal courts because, as already indicated, their jurisdiction is necessarily confined to matters arising under or involving the application of laws in their operation in a territory. Thus, to hold s 72 applicable to courts created under s 122 would not be to resolve the difficulties associated with this Court's appellate jurisdiction. That difficulty is only resolved if, on proper analysis, courts created under s 122 exercise federal jurisdiction. And the same is true of courts which are the creatures of self-governing territories but the existence of which is sustained by a law under s 122.

It was held in GPAO that jurisdiction may be conferred on a federal court in a matter arising under a law enacted pursuant to s 122 of the Constitution. It follows from that decision that a matter of that kind is a matter arising under a law made by the Parliament for the purposes of s 76(ii) of the Constitution and, thus, a matter within federal jurisdiction. The same must be true when the same jurisdiction is conferred on a court created by or the existence of which is sustained by s 122. The consequence of that is that, in matters arising under a law enacted pursuant to s 122, s 73 of the Constitution allows for an appeal to this Court.

In GPAO I expressed the view that, in all matters, s 73(ii) allows for an appeal to this Court from a court created pursuant to s 122 because "the right or duty in question must ultimately depend for its enforcement on the law creating that court" [46] . That statement was premised on the hypothesis that a court exercising jurisdiction in matters arising under or involving the application of laws in their operation in a territory is, necessarily, a court created by the Parliament. As appears from this case, in which it was argued that the Supreme Court was now properly to be seen as a creature of the body politic known as the Australian Capital Territory and not the creation of the Parliament, that hypothesis may be wrong.

Although it is not necessary to decide whether the Supreme Court is now the creature of the body politic known as the Australian Capital Territory, it may be observed that its existence is ultimately sustained by a law under s 122 of the Constitution and the rights and duties in issue in matters before it must ultimately depend for enforcement on the law by which that Court is sustained. Thus, in my view, those matters are matters arising under a law of the Commonwealth for the purposes of s 76(ii) of the Constitution and necessarily within federal jurisdiction with the consequence that, in all matters, s 73 allows for an appeal to this Court.

As s 72 does not apply to courts created under or whose existence is sustained by s 122 of the Constitution, the application for habeas corpus should be dismissed with costs.

The applicant seeks from the Full Court of this Court an order absolute in the first instance for the issue of a writ of habeas corpus requiring his release from custody. The matter involves the interpretation of the Constitution and thus lies within the original jurisdiction conferred by s 30(a) of the Judiciary Act 1903 Cth. In those circumstances, this Court is empowered by s 33(1)(f) of the Judiciary Act to direct the issue of a writ of habeas corpus.

The applicant was convicted in the Supreme Court of the Australian Capital Territory (the Supreme Court) on a charge of murder. He was tried before Carruthers A-J and a jury. Provision for the offence of murder was made in s 18 of the Crimes Act 1900 NSW. Section 18 adopts but modifies the common law [47] . The section was rendered applicable in the Australian Capital Territory (the Territory) by s 6 of the Seat of Government Acceptance Act 1909 Cth and s 4 of the Seat of Government (Administration) Act 1910 Cth (the 1910 Administration Act).

Ryan v The Queen (1967) 121 CLR 205 at 220, 225-226, 238-239; Royall v The Queen (1991) 172 CLR 378 at 410-411, 428-429, 454-455.

Section 18 later was transmuted into an enactment subject to amendment or repeal by the Legislative Assembly for the Australian Capital Territory (the Assembly). This state of affairs was brought about by the operation of s 34 of the Australian Capital Territory (Self-Government) Act 1988 Cth (the Self-Government Act), as amended by s 7 of the ACT Supreme Court (Transfer) Act 1992 Cth (the Transfer Act). There has been no such relevant amendment by the Assembly. Whatever may have been the situation had that been the case, in our opinion the criminal liability in respect of which the applicant was tried and convicted owed its existence to the laws made by the Parliament and identified above.

No question arises on this application as to whether the Supreme Court would be exercising federal jurisdiction in, for example, a prosecution of an offence against a law enacted by the Assembly. The issue in such a case would be whether there nevertheless was a matter "arising under" a law made by the Parliament, namely the Self-Government Act, which established the Assembly and endowed it with power to make the law in question.

On 3 April 1995, Carruthers A-J was appointed an acting judge of the Supreme Court for the period commencing on 1 May 1995 and ending at the expiration of 22 December 1995. His Honour's commission was stated as made by the Executive of the Territory pursuant to s 4A(1) of the Supreme Court Act 1933 ACT. Section 4A was introduced into the legislation by a law made by the Assembly, s 6 of the Supreme Court (Amendment) Act (No 2) 1993 ACT (the Amendment Act). It provides:

(1) The Executive may, by commission, appoint persons to be acting Judges of the Court.

(2) An appointment under subsection (1) shall be for such period, not exceeding 12 months, as is specified in the commission.

(3) A person is not eligible to be appointed under subsection (1) unless he or she -

(a) has been a Judge of a superior court of record of the Commonwealth, a State or a Territory; or

(b) has been enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or Territory for not less than 5 years.

Section 11 of the Amendment Act amended s 17 of the Supreme Court Act so that, so far as it pertained to Carruthers A-J, it stated:

(2) An acting Judge shall be paid such remuneration and allowances as are prescribed by regulation.

(a) the remuneration of an acting Judge if there is a subsisting determination of the Commonwealth Remuneration Tribunal relating to the remuneration to be paid to the acting Judge; or

(b) an allowance of a particular kind in respect of an acting Judge if there is a subsisting determination of the Commonwealth Remuneration Tribunal relating to an allowance of that kind to be paid to the acting Judge.

(3a) The remuneration and allowances to which a Judge is entitled accrue from day to day and are payable monthly.

(4) The public money of the Territory is appropriated to the extent necessary for payment to Judges of remuneration and allowances.

The applicant contends (i) that the Supreme Court is a "court created by the Parliament" within the meaning of s 72 of the Constitution and (ii) that the appointment of Carruthers A-J for a term other than one expiring upon his attaining the age which was, at the time of such appointment, the maximum age for judges of that Court, namely the attainment of the age of seventy years [48] , contravened s 72 of the Constitution. The consequence is said to be that the appointment of Carruthers A-J was not validly made and his Honour had no authority to preside over the applicant's trial or to record a conviction or to impose any sentence, so that his imprisonment is unlawful.

It is appropriate to begin consideration of the issues which arise by looking to s 71 of the Constitution. This states:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. Section 71 identifies those institutions in which the judicial power of the Commonwealth is vested. This section is the first provision in Ch III, which is headed " The Judicature " and must be read with s 1, the first provision in Ch I, headed " The Parliament ", and s 61, the first provision in Ch II, headed " The Executive Government ". Each provision uses the term "vested" to identify that branch of government which is to receive and exercise, as the case may be, the legislative, executive or judicial power of the Commonwealth.

The term "the Commonwealth" in ss 1, 61 and 71 is used consistently to identify the body politic identified in the covering clauses to the Constitution [49] . In his work The Constitution of the Commonwealth of Australia [50] , Sir William Harrison Moore pointed out that the allotment of functions by the Constitution is not merely made between State and Commonwealth and continued:

[I]t is also an allotment amongst the organs of the Commonwealth Government. The Constitution does not commit subjects to "the Commonwealth" in general; it designates certain organs which are to exercise particular kinds of power over the subjects committed to them. 1. See Sue v Hill (1999) 199 CLR 462 at 497-498. 2. 2nd ed (1910), p 94. See also the observations by Dixon J in R v Sharkey (1949) 79 CLR 121 at 153.

In Spratt v Hermes [51] , after observing that the Constitution brought into existence "but one Commonwealth which was, in turn, destined to become the nation", Barwick CJ continued:

The difference in the quality and extent of the powers given to it introduced no duality in the Commonwealth itself. The undoubted fact that the Commonwealth emerged from a federal compact or that that compact is reflected in the limitations placed upon some of the powers of the Commonwealth or that the new political entity derived from a union of the peoples of the former colonies does not deny the essential unity and singleness of the Commonwealth. 1. (1965) 114 CLR 226 at 247.

From this textual analysis, it follows that the judicial power of the Commonwealth referred to in s 71 is not segmented in some fashion to reflect geographic divisions. In particular, and contrary to the views advanced in Porter v The King; Ex parte Yee [52] by Isaacs J, the judicial power of the Commonwealth is not "that of the Commonwealth proper, which means the area included within the States".

(1926) 37 CLR 432 at 441. Rich J (at 448) said he regarded the decision in In re Judiciary and Navigation Acts (1921) 29 CLR 257 "as limited to the judicial power of the Commonwealth consisting of the States, in other words, the Commonwealth proper".

Rather, the position is consistent with that established with respect to s 61. It is not to be supposed that the executive power of the Commonwealth vested by s 61 is limited in some geographical sense to "the Commonwealth proper". It was determined in Johnson v Kent [53] that the Commonwealth had power under s 61 of the Constitution to erect the Black Mountain tower on Crown land in the Territory and that no statutory authority was required [54] . Jacobs J said [55] :

[T]he executive power of the Commonwealth extends to the doing of acts upon its own lands within a territory surrendered by a State to the Commonwealth without any statutory authority other than the necessary appropriation of funds if those acts are of the kind which lie within the prerogative of the Crown. Nor is it to be supposed that the legislative power of the Commonwealth, vested in the "Federal Parliament" by s 1, does not include the power to make laws for the government of a territory as specified in s 122 [56] . 1. (1975) 132 CLR 164. 2. See also the discussion by Brennan J of the phrase "the exclusive jurisdiction of the Commonwealth" in s 111 in his Honour's judgment in Svikart v Stewart (1994) 181 CLR 548 at 566. 3. Johnson v Kent (1975) 132 CLR 164 at 174. 4. Lamshed v Lake (1958) 99 CLR 132 at 141; Spratt v Hermes (1965) 114 CLR 226 at 247.

It will be necessary later in these reasons further to consider the significance of this construction of s 71 for the issues which arise in this litigation.

The Crown, which is specified as an element in the Parliament identified in s 1 and in which the executive power is vested by s 61 [57] , had an anterior existence to that of the Commonwealth. However, the Parliament had to be summoned to meet not later than six months after the establishment of the Commonwealth, as provided by s 5. Further, whilst in a sense this Court was created by the Constitution, which then assumes its continued existence, and operation, the Court could have no life until, pursuant to s 72, the Governor-General in Council had made appointments of Justices and the Parliament had fixed their remuneration. It was for the Crown, acting pursuant to s 2, to appoint a Governor-General.

However, s 61 goes on to provide that the executive power "is exercisable by the Governor-General".

Thus, to a significant degree, the term "vested" is used in these provisions in a proleptic sense in anticipation of that which is to be done under, but not immediately by force of, the Constitution. To "create" a court is to endow an institution which answers that description with its legal existence by providing for its formation and constitution. It is another step to endow such a body with jurisdiction, that is to say authority, to determine justiciable controversies. Jurisdiction is conferred on this Court directly by s 75, and the Parliament is empowered by ss 76 and 77 to make laws conferring or investing federal jurisdiction. The Australian Industrial Relations Court is an example of a court created by the Parliament under ss 71 and 72, whose members retain their commissions, but which by laws supported by s 77 has received jurisdiction and then by subsequent legislation has been denied jurisdiction in respect of freshly instituted matters [58] .

See Victoria v Sutton (1998) 195 CLR 291 at 308.

Section 71 does not, in terms, empower the creation of other federal courts by the Parliament but, read with s 72, it has been taken as conferring such authority as a matter of necessary implication [59] . However, s 71 is not the sole source of authority for the Parliament to create courts, nor are ss 76 and 77 the sole authority to confer jurisdiction. It has long been accepted that the power conferred by s 122 to make laws for the government of territories includes power to create courts and to confer jurisdiction upon them. This illustrates the proposition expressed by Kitto J in Spratt v Hermes [60] that s 122 empowers the Parliament to "make what provision it will for every aspect and every organ of territory government". An early example was the constitution of a Supreme Court of the Northern Territory by the Supreme Court Ordinance 1911 NT made by the Governor-General in Council in pursuance of powers conferred by the Northern Territory Acceptance Act 1910 Cth and the Northern Territory (Administration) Act 1910 Cth.

See Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978), pp 104-105. 2. (1965) 114 CLR 226 at 251. See also Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492 at 512; Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 263-265.

The present dispute turns upon the question whether the Supreme Court, at the time that Carruthers A-J was appointed an acting member, answered the description of a court "created by the Parliament" within the meaning of s 72 of the Constitution. So far as material, s 72 states:

The Justices of the High Court and of the other courts created by the Parliament -

(i) Shall be appointed by the Governor-General in Council:

(ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity:

(iii) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court.

Carruthers A-J was not appointed by the Governor-General in Council. The Executive identified in his commission is that entity created by s 36 of the Self-Government Act. The members of the Executive are the Chief Minister of the Territory and such other Ministers thereof as are appointed by the Chief Minister (s 39(1)). Nor was the remuneration of Carruthers A-J fixed by the Parliament. It was provided for by a statute of the Territory, namely s 11 of the Amendment Act. Nor was Carruthers A-J appointed for a term expiring upon his attaining any particular age. It follows that, if the court to which Carruthers A-J was appointed answered the description of a court created by the Parliament, then, in various respects, there was a failure to comply with the requirements of s 72 of the Constitution.

The applicant submits that courts created by the Parliament in exercise of power conferred by s 122 of the Constitution are a subclass of "such other federal courts as the Parliament creates", within the meaning of s 71. The result is said to be that they should be treated as "other courts created by the Parliament" within the meaning of s 72.

However, the immediate concern of s 71 is with the vesting of the judicial power of the Commonwealth. The institutions to exercise that power are so identified as to fall into three classes. The first is this Court. Its original jurisdiction is provided for in ss 75 and 76, and its appellate jurisdiction by s 73. The identification of the second class looks ahead to other federal courts created by the Parliament and the third to the taking by the Parliament of the step of investing "other courts" with federal jurisdiction. Like s 71, s 73 speaks of courts exercising federal jurisdiction, not merely of State courts doing so.

Those "other courts" may be the State courts identified in s 77(iii). But this does not deny that (a) those "other courts" may include courts created by the Parliament in exercise of the power conferred by s 122 and not in exercise of the power found by necessary implication as to federal courts in ss 71 and 72, or (b) a law based upon s 122 may confer jurisdiction identified in the nine heads in ss 75 and 76, as federal jurisdiction, in a court created by or pursuant to a law based upon s 122.

The preferable construction is that a court created by the Parliament for the government of a territory is not a federal court created under ss 71 and 72 but may answer the description of one of the "other courts" which are invested by laws made by the Parliament with federal jurisdiction within the meaning of s 71 and thus are recipients of the judicial power of the Commonwealth. The investment of federal jurisdiction in such a non-federal Territory court would be by a law supported not by s 77 but by s 122. Such a construction was considered by Gaudron J in Northern Territory v GPAO [61] . If that construction be accepted, it follows (contrary to the case for the applicant) that s 72 had no necessary operation with respect to a court created by the Parliament in exercise of its authority under s 122 of the Constitution. This would be so, even though the Parliament invested that court with federal jurisdiction.

This issue which the applicant raises respecting the phrase "other courts created by the Parliament" in s 72 has not been the subject of direct determination in earlier decisions of this Court dealing with other aspects of the interrelation between s 122 and Ch III. In GPAO, this Court determined that s 76(ii) of the Constitution, in conjunction with s 77(i), authorises the conferral by the Parliament of original jurisdiction on federal courts, in that case the Family Court of Australia, in matters arising under laws made by the Parliament in reliance upon s 122 of the Constitution and that the jurisdiction so conferred is federal jurisdiction. That decision does not determine the issue which arises here respecting the construction of s 72 of the Constitution.

Earlier, R v Bernasconi [62] decided that an offence against a law made by Parliament in reliance upon s 122 is not an "offence against any law of the Commonwealth" within the meaning of s 80 of the Constitution. However that may be, in the present case the applicant was tried by jury.

Capital TV and Appliances Pty Ltd v Falconer [63] was an appeal purportedly brought directly to this Court from the Supreme Court which had dismissed an appeal against a conviction in the Court of Petty Sessions at Canberra. Capital TV determined that (i) no appeal lay to this Court under s 73 because the Supreme Court, then created and constituted by the Supreme Court Act as a law of the Commonwealth, was neither (a) a federal court within the meaning of s 73 of the Constitution, nor (b) a court exercising federal jurisdiction within the meaning of s 73, and that (ii) a law of the Parliament supported by s 122 may confer a right of appeal to the High Court from territorial courts, whether or not the matter in issue otherwise be one of federal jurisdiction. The construction we have described as preferable would, as to proposition (i), accept that the Supreme Court may be a court exercising federal jurisdiction within s 73, although it is not a federal court, and it would require reconsideration of proposition (ii).

Spratt v Hermes [64] decided that (i) a court of petty sessions constituted under the Court of Petty Sessions Ordinance 1930 ACT, promulgated under s 12 of the 1910 Administration Act and which had been given appropriate local jurisdiction, might enforce in relation to acts occurring within the Territory a law made by the Parliament under s 51 of the Constitution, such as the Post and Telegraph Act 1901 Cth, which operates throughout the Commonwealth; (ii) this was so although the court was not one in which the judicial power of the Commonwealth was vested within the meaning of s 71 of the Constitution; and (iii) a law made by the Parliament in reliance upon s 122 may create or authorise the creation of a court having jurisdiction with respect to occurrences in or concerning the Territory without observance of the requirements of s 72 of the Constitution. The construction which we have outlined as preferable, would deny proposition (ii) but accept (i) and (iii).

In Section III, we have indicated what we regard as the preferable construction of the constitutional provisions, including s 72. However, neither of the applicant's submissions outlined in Section I falls for determination unless Carruthers A-J was appointed to a court which then answered the description in s 72 of a court "created by the Parliament".

In GPAO [65] , Gleeson CJ and Gummow J identified various other questions respecting the interrelation between s 122 and Ch III, as to which no issue arose in GPAO. The present issue as to the construction of s 72 presents a related but distinct question. In Kruger v The Commonwealth [66] , Gaudron J observed that, whatever view be taken of the decisions in Spratt v Hermes and Capital TV, it may be that different considerations apply to laws enacted by the legislature of a self-governing territory. The present case bears out the point.

(1999) 196 CLR 553 at 591-592. 2. (1997) 190 CLR 1 at 109.

GPAO manifests a disinclination to read down the statutory text in s 76(ii) "any laws made by the Parliament". It is also consistent with the rejection by Barwick CJ in Spratt v Hermes of the notion of a "single theme running throughout Ch III which requires it to be treated so much all of one piece that if any part of it relates only to federal matters, every part of it must likewise be restrained" [67] .

In our view, at the time of the appointment of Carruthers A-J, the Supreme Court did not answer the description of a court created by the Parliament within the meaning of s 72 of the Constitution. We turn to endeavour to explain why this is so.

Section 7 of the Self-Government Act establishes the Territory as a body politic under the Crown. Section 22 confers upon the Assembly power to make laws for the peace, order and good government of the Territory. On and from 1 July 1992, that power was not restricted, as initially had been the case by reason of par (b) of s 23(1) [68] . This restriction was removed by the Parliament with the enactment of s 6 of the Transfer Act. At the time of the commencement of the Self-Government Act, the Supreme Court was that institution established by the Supreme Court Act as a law of the Commonwealth. From 1 July 1992, the Supreme Court Act has been taken, by force of s 34(2) of the Self-Government Act [69] , as an enactment which may be amended or repealed by the Assembly. The term "enactment" is used in the Self-Government Act in accordance with the definition in s 3 thereof as meaning a law made by the Assembly under the Self-Government Act or a law or part of a law that is an enactment by reason of the operation of s 34.

This read: "Subject to this section, the Assembly has no power to make laws with respect to: (b) the establishment of courts." 2. After the amendment of s 34 by s 7 of the Transfer Act.

Thereafter, the Assembly amended the Supreme Court Act in various respects [70] . Significant changes were made by the Amendment Act. This inserted (by s 6) in the Supreme Court Act the provision in s 4A under which the Executive appointed Carruthers A-J and (by s 11) the amendment of s 17 to provide for the remuneration and allowances of acting judges. Schedule 2 to the Amendment Act further amended the Supreme Court Act to provide for the appointment by the Executive of resident judges to hold office until the attainment of seventy years. The tenure of such resident judges is further qualified by the provisions for removal in the Judicial Commissions Act 1994 ACT.

The provisions of the statute had been renumbered by the Transfer Act.

The Transfer Act, a law made by the Parliament, not the Assembly, had as its long title "An Act relating to the transfer of responsibility for the Supreme Court of the Australian Capital Territory from the Commonwealth to the Territory, and for other purposes". This statute amended (by s 4) the definitions in the Self-Government Act by inserting a definition of "Supreme Court" as meaning "the Supreme Court of the Territory existing under the Supreme Court Act 1933 of the Territory". Section 12 of the Transfer Act inserted s 29A in the ACT Self-Government (Consequential Provisions) Act 1988 Cth to provide that persons holding office as Chief Justice, judge, additional judge or Master of the Supreme Court immediately before 1 July 1992 continued to hold office thereafter "as if he or she had been appointed under the Supreme Court Act 1933 of the Territory".

The phrase in s 34(2) of the Self-Government Act that a law specified in Sch 2 [71] "shall be taken to be an enactment, and may be amended or repealed accordingly" was directed to the Assembly and had the substantive operation of conferring upon the Supreme Court Act the status of a law made by the Assembly. Other laws of the Commonwealth not included in Sch 2 did not, in the terms of the heading to that Schedule, "become enactments". They retain their character as laws of the Commonwealth and prevail by operation of s 28 of the Self-Government Act over inconsistent territorial legislation. Section 28 operates not as a denial of power otherwise conferred by the Self-Government Act upon the Assembly but as a denial to a law so made of effect "to the extent" of its inconsistency [72] .

Which on and from 1 July 1992 included the Supreme Court Act. 2. GPAO (1999) 196 CLR 553 at 582-583.

Section 8 of the Transfer Act inserted Pt VA, headed " The Judiciary " in the Self-Government Act. Part VA comprises ss 48A-48D. Section 48A specified the jurisdiction and powers of the Supreme Court [73] . Section 48B provided that an enactment of the Assembly that changes the retirement age in relation to certain judicial offices in the Supreme Court would not affect the term of office of incumbents at the time of that enactment, without their consent. Section 48C stipulated that an enactment relating to the establishment of a judicial commission for the Territory must include certain provisions. Section 48D required the inclusion of certain protections in an enactment of the Assembly relating to the removal of persons occupying certain judicial offices.

It stated: "(1) The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory. (2) In addition, the Supreme Court may have such further jurisdiction as is conferred on it by any Act, enactment or Ordinance, or any law made under any Act, enactment or Ordinance. (3) The Supreme Court is not bound to exercise any powers where it has concurrent jurisdiction with another court or tribunal."

We accept the submission put by the Attorney-Generals of the Northern Territory and the Australian Capital Territory that the effect of Pt VA is to establish in advance legislative provisions which, by operation of s 28 of the Self-Government Act, would prevail over any inconsistent legislation enacted by the Assembly. Part VA is not determinative of the question whether, at the time of the appointment of Carruthers A-J, the Supreme Court did not answer the description of a court created by the Parliament.

At that time, the authority of the Assembly to amend or repeal the Supreme Court Act lay in its general grant of authority under s 22 of the Self-Government Act. That power was relevantly unconfined save for the requirements of s 48A as to the original and appellate jurisdiction of the Supreme Court and for the limitations imposed by ss 48B and 48D on changes to judicial retirement age and removal from office. It is implicit in s 48A that there must continue to be a Supreme Court, but that does not carry the consequence that the Supreme Court is created by the Parliament for the purposes of s 72 of the Constitution. Section 72 specifies criteria as to appointment, removal and remuneration. In all of these respects at the time of the appointment of Carruthers A-J, the enabling provisions were found in an enactment of the Territory.

In their joint judgment in Capital Duplicators Pty Ltd v Australian Capital Territory [74] , Brennan, Deane and Toohey JJ observed, with the concurrence of Gaudron J [75] :

The [Assembly] has been erected to exercise not the Parliament's powers but its own, being powers of the same nature as those vested in the Parliament. The Governor-General's power to disallow an enactment under s 35 of the Self-Government Act does not alter the independent character of the legislative power which s 22 purports to confer on the [Assembly]. A similar power of disallowance was vested in the Queen in Council to disallow laws made by the Indian Legislature under the Indian Councils Act (s 21) yet the Privy Council in [R v] Burah [76] , in the first of the historic cases defining the independent character of colonial legislatures, held that the Indian Legislature's powers were, within their prescribed limits, "as large, and of the same nature, as those of Parliament itself". Their Honours went on to note that, in respect of imposition of a tax by the Assembly [77] : [t]he Parliament has no power under the Self-Government Act to disallow any duty imposed by the [Assembly]; the Parliament must, if it wishes to override the enactment, pass a new law to achieve that result. It cannot repeal or amend the enactment. 1. (1992) 177 CLR 248 at 282. 2. Capital Duplicators (1992) 177 CLR 248 at 284. 3. (1878) 3 App Cas 889 at 904. [The Privy Council emphasised that the Indian legislature was "not in any sense an agent or delegate of the Imperial Parliament".] 4. Capital Duplicators (1992) 177 CLR 248 at 283.

In Capital Duplicators, all members of the Court agreed that an enactment of the Assembly imposing a duty of excise could not be characterised as an exercise of the "power of the Parliament" which was made "exclusive" by s 90 of the Constitution. The difference between the members of the Court was that those constituting the majority held "exclusive" to mean "exclusive of any State or Territory legislature", whilst the minority would have treated "exclusive" to mean simply "exclusive of the powers of the States". Hence, the later statement in Svikart v Stewart [78] which explained Capital Duplicators in the following terms:

The view was taken that a legislature created to confer self-government upon a Territory - in that case the Australian Capital Territory - must be regarded as a body separate from the Commonwealth Parliament, so that the exercise of its legislative power, although derived from the Commonwealth Parliament, is not an exercise of the Parliament's legislative power. 1. (1994) 181 CLR 548 at 562.

Legislative provision for the creation of a court involves at least the specification of the method of appointment, remuneration and removal of the judges comprising that institution [79] . Section 72 speaks, as counsel for the second respondent put it, "continuously in the present" in the sense that a reference to a court "created by the Parliament" is to a court constituted and sustained, at the time when a question arises as to an appointment, removal or receipt of remuneration, by an exercise of legislative power of the Parliament. Subject to any implications [80] or limitations arising from provisions of the Constitution other than s 72, and to the operation with respect to inconsistency of s 28 of the Self-Government Act, and to whatever may have been the position before 1 July 1992, by the time of the appointment of Carruthers A-J, the Supreme Court had been substantially reconstituted in relevant respects by enactments of the Assembly. These included the very provisions in pursuance of which Carruthers A-J was appointed and remunerated. The applicant's submissions to the contrary should not be accepted.

See R v Davison (1954) 90 CLR 353 at 365; Harris v Caladine (1991) 172 CLR 84 at 116-117, 143-144, 163-164. 2. Including any implication which, with respect to "territory courts" may arise from the reasoning in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

In the alternative to his submissions respecting the application to the Supreme Court of s 72 of the Constitution, the applicant contends that laws for the government of the Territory are made by the Parliament acting, not under s 122 of the Constitution, but under s 52(i). The result is said to be that the legislative power with respect to the Territory is "quintessentially federal in character". The result would be that, laws made under s 52(i) being clearly laws made by the Parliament for the purposes of s 76(ii), courts established to adjudicate matters arising under those laws must be established under ss 71 and 72. We would reject that submission in favour of what was said on the subject by Mason CJ, Deane, Dawson and McHugh JJ in Svikart v Stewart [81] .

The application for habeas corpus should be dismissed with costs. It is, in the circumstances, unnecessary to determine the issues, canvassed in oral argument, as to whether, in any event, habeas corpus would be the appropriate remedy.

These proceedings involve a direct challenge to previous holdings of this Court. The holdings in question concern the relationship between the power conferred on the Federal Parliament by s 122 of the Constitution to make laws for the government of the Territories and the requirements of, and implications within, Ch III concerning the Judicature.

There are few constitutional problems in Australia more vexing than these. Few have led to answers so intellectually unsatisfying. Few have produced results more bizarre [82] . Few have given rise to so many judicial regrets about the lack of a coherent doctrine [83] and the consequent "disunity in the judicial system of Australia" which "arises from the separation of federal, State and territorial jurisdictions" [84] .

Submissions for the Australian Capital Territory and the Northern Territory; cf Hopper, "Territories and Commonwealth Places: The Constitutional Position", Australian Law Journal, vol 73 (1999) 181, at pp 201, 210 . 2. Spratt v Hermes (1965) 114 CLR 226 at 265, per Menzies J; cf Northern Territory v GPAO (1999) 196 CLR 553 at 651, per Hayne J. 3. Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 613, per Windeyer J.

Occasionally, judges [85] and writers knowledgeable about the Constitution [86] have contemplated wistfully a return to the simple words of that document unencumbered by the judicial elaboration which has taken this Court, and the nation, away from the text. Over the years this Court has attempted, to some extent, to return to the constitutional wording: rejecting, confining or doubting the initial decisions [87] which treated s 122 as if it were not subject at all to the restrictions expressed in other parts of the Constitution [88] . Yet whenever an attempt has been made to persuade the Court to reconsider past holdings said to be illogical, impractical and even of doubtful constitutional validity [89] , the Court has usually drawn back. Sometimes it has seemed less convinced about the correctness of the decisions than about a need to avoid unsettling constitutional doctrine upon which the arrangements of government in Australia have been based [90] .

R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 290, per Dixon CJ, McTiernan, Fullagar and Kitto JJ; Falconer (1971) 125 CLR 591 at 615, per Walsh J. 2. Renfree, The Federal Judicial System of Australia (1984), p 712. See also "Notes and Comments", Australian Law Journal, vol 36 (1963) 458. 3. R v Bernasconi (1915) 19 CLR 629. 4. Howard, Australian Federal Constitutional Law, 3rd ed (1985), pp 525-526. 5. See, eg, Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 560, per Toohey J; at 568, per Gaudron J; at 613-614, per Gummow J; at 652-658, my own reasons. 6. Spratt (1965) 114 CLR 226 at 257, per Kitto J; at 265, per Menzies J.

The key to a proper approach to the present application is to be found in an observation of Windeyer J in Victoria v The Commonwealth [91] :

I have never thought it right to regard the discarding of the doctrine of the implied immunity of the States and other results of the Engineers' Case [92] as the correction of antecedent errors or as the uprooting of heresy [I]n 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realisation that Australians were now one people and Australia one country and that national laws might meet national needs. Each generation of Australians reads the Constitution in the light of the meaning of its words and the requirements of its structure as understood from time to time [93] . This is inherent in the giving of meaning to a constitution as an instrument of government. It is why a search for the subjective intentions of the framers may not fetter the present and the future to the distant past [94] . 1. (1971) 122 CLR 353 at 396. 2. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. 3. McGinty v Western Australia (1996) 186 CLR 140 at 230, per McHugh J; cf Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 267-268, per Windeyer J; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 177, per Deane J; Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 552-553, per McHugh J; at 599-600, my own reasons; Sue v Hill (1999) 199 CLR 462 at 487-488, per Gleeson CJ, Gummow and Hayne JJ; contrast at 571-572, per Callinan J. 4. cf Posner, "The Problematics of Moral and Legal Theory", Harvard Law Review, vol 111 (1997) 1637, at p 1708 ; Scalia, A Matter of Interpretation: Federal Courts and the Law (1997), pp 40, 44, 47.

When today we look at the Constitution, we see its language free of old impediments and problems [95] . The question is posed: are we as free today, as the Court felt itself in the Engineers Case [96] , to throw off the holdings of the past, not because they were wrong when made but because, read in a new light, the Constitution can now be seen to bear a different meaning [97] ? In my view we are. It is time to return to the language and purpose of the Constitution. The Territories are part of the Federation. Territory courts are federal courts. Their judges must have the security of tenure of federal judges.

Such as the requirement of trial by jury of native peoples in the Territory of Papua considered in Bernasconi (1915) 19 CLR 629, or the effective provision of life tenure to magistrates in federal territories considered in Spratt (1965) 114 CLR 226 at a time when most magistrates were public servants and had no legal qualifications. 2. (1920) 28 CLR 129. 3. Mr R G Menzies, later Prime Minister, recounted how, when counsel in the Engineers Case, Starke J interrupted his argument based on the Court's past authority to declare that it was "a lot of nonsense". Menzies agreed but explained that he was obliged by the holdings of the Court to put it. He asked, and was given leave, to advance fresh arguments which eventually succeeded. See Menzies, Central Power in the Australian Commonwealth (1967), p 38.

In January 1989, Mr Colin Winchester, a senior police officer, was murdered in the Australian Capital Territory (ACT). The offence of murder was then provided for by s 18 of the Crimes Act 1900 NSW which had effect in the ACT by virtue of laws made by the Parliament [98] . In December 1992, Mr David Harold Eastman (the applicant) was committed for trial on a charge of murdering Mr Winchester. In March 1993, the Director of Public Prosecutions of the ACT (the second respondent) signed an indictment, with a single count of murder, naming the applicant. It was filed in the Supreme Court of the ACT.

Seat of Government Acceptance Act 1909 Cth, s 6; Seat of Government (Administration) Act 1910 Cth, ss 3, 4.

For the purpose of the trial, which began in May 1995, the Supreme Court was constituted by the Hon K J Carruthers and a jury. The former was not a permanent judge of the Supreme Court [99] . He was a person who had been a judge of a superior court of record of a State, namely the Supreme Court of New South Wales. By a commission dated 3 April 1995, signed by the Deputy Chief Minister and Attorney-General for the ACT, he was appointed an acting judge of the Supreme Court of the ACT for the period from 1 May 1995 to 22 December 1995. Such appointment was purportedly made under the law of the Territory [100] . The appointment was thus not for the term expiring on the appointee's attaining an age as contemplated by the provisions of the Australian Constitution governing the appointment of judges to other "courts created by the Parliament" [101] . Nor did the appointment purport to be made "by the Governor-General in Council" as required by the same provision [102] .

Australian Capital Territory Supreme Court Act 1933 Cth, s 7. See now Supreme Court Act 1933 ACT, s 4(1). 2. Supreme Court Act 1933 ACT, s 4A. The Act was renamed and the provisions renumbered pursuant to Legislation (Republication) Act 1996 ACT. 3. Constitution, s 72. 4. Constitution, s 72(ii).

On 3 November 1995 the jury in the applicant's trial returned a verdict of guilty. The applicant was convicted. A determinate sentence was refused. Carruthers A-J sentenced him to life imprisonment [103] . The applicant appealed from the conviction and sentence to the Federal Court of Australia [104] . The Full Court of that Court dismissed his appeal [105] . The applicant then applied to this Court for special leave to appeal on grounds related to his alleged unfitness to stand trial. That application has been referred to a Full Court of this Court [106] . Directions were given that the application for special leave should be heard immediately after the hearing of the present application. That application was reserved to be argued before a Full Court [107] , as indeed it was. It awaits determination.

Crimes Act 1900 ACT, s 12(2). 2. Federal Court of Australia Act 1976 Cth, s 24(1)(b). 3. Eastman v The Queen (1997) 76 FCR 9. 4. By order of Gaudron J and myself on 12 February 1999. 5. Such order was made by me on 7 December 1998. See High Court Rules, O 55, r 2.

In form, the present proceedings ask this Court, in the exercise of its original jurisdiction, to issue a writ of habeas corpus addressed to the first respondent [108] . Habeas corpus is not a writ named in the Constitution [109] . It is provided for in a law made by the Parliament. It is sought here in a matter arising under the Constitution and involving its interpretation [110] . No issue was raised as to its availability if the grounds were established [111] .

See Judiciary Act 1903 Cth, s 33(1)(f); cf Renfree, The Federal Judicial System of Australia (1984), p 332. 2. Constitution, s 75(v) names Mandamus, prohibition and injunction. 3. Constitution, s 76(i). See also s 76(ii). 4. cf Re Superintendent of Goulburn Training Centre; Ex parte Pelle (1983) 57 ALJR 679; 48 ALR 225; Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 68 ALJR 668; 123 ALR 478.

After the commencement of the proceedings, the applicant was moved from the Goulburn Correctional Centre to another place of detention in New South Wales. As agreed by the parties, nothing turns on this. The order of the Supreme Court, or of Carruthers A-J, purporting to certify to the conviction and sentence of the applicant was not exhibited. However, the warrant for removal of the applicant to the custody of the first respondent was included in this Court's papers. It is stated as being made pursuant to the Removal of Prisoners (Australian Capital Territory) Act 1968 Cth. The warrant recites that the applicant had been "duly convicted" before the Supreme Court. It is that proposition which the applicant challenges.

The applicant contends that the Supreme Court is a "court created by the Parliament" within the meaning of s 72 of the Constitution; that the appointment of a person as a judge of that court for a term other than one expiring on his attainment of an age specified by law contravened s 72; that the appointment of the Hon K J Carruthers as an acting judge was not validly made; that the said "acting judge" had no authority to preside over his trial, to record a conviction of him or impose a sentence upon him; and that, accordingly, his imprisonment was unlawful, entitling him to immediate release. If the foregoing premises were established, the conviction which the Full Court of the Federal Court confirmed, would have no validity.

To make good his application, the applicant acknowledged that he would have to persuade this Court to overrule two unanimous holdings which stand in his path. To the extent that leave was required to permit him to argue the incorrectness of the holdings in those cases [112] , the applicant sought that leave.

cf Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311; John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-440; Northern Territory v Mengel (1995) 185 CLR 307 at 338; Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 673.

The first decision in the applicant's way is Spratt v Hermes [113] . That case decided that the appointment of a magistrate in the ACT was not governed by s 72 of the Constitution. A magistrate could therefore hear and determine a charge of an offence against the Post and Telegraph Act 1901 Cth, although he had not been appointed in accordance with s 72 of the Constitution. Some of the Justices of this Court held that this conclusion followed from a construction of the phrase "the other courts created by the Parliament" in s 72. They concluded that these words referred only to "federal courts". They did not include "Territory courts", ie those created wholly under s 122 of the Constitution. The Court of Petty Sessions of the ACT, of which the magistrate was a member [114] was such a "Territory court" [115] . Other Justices [116] held that the administration of justice in the Territories, including the ACT, was not governed by Ch III at all. One Justice [117] considered himself bound by authority to uphold the appointment of the magistrate, whilst rejecting the proposition that the Territories were outside "the Federal System" [118] .

(1965) 114 CLR 226. 2. Spratt v Hermes (1965) 114 CLR 226 at 228. Jurisdiction was exercised under the Court of Petty Sessions Ordinance (No 2) 1930 ACT. 3. Spratt v Hermes (1965) 114 CLR 226 at 242-243, per Barwick CJ; at 274, per Windeyer J; at 280-281, per Owen J. 4. Spratt v Hermes (1965) 114 CLR 226 at 250-251, per Kitto J; at 263-264, per Taylor J. 5. Spratt v Hermes (1965) 114 CLR 226 at 265, per Menzies J. 6. Spratt v Hermes (1965) 114 CLR 226 at 269-270, per Menzies J.

The second decision [119] which the applicant contested was an extension of the first. It arose out of a failed attempt to persuade this Court to reconsider the correctness of the decision in Spratt. This Court held that the Supreme Court of the ACT was not a federal court, nor a court exercising federal jurisdiction within the meaning of s 73 of the Constitution. Accordingly, no appeal lay as of right from that court to this Court. The only foundation for an appeal would thus be legislation affording the right. By inference, such legislation might be amended or repealed, leaving litigants in the Territories wholly outside the appellate judicial system of the Commonwealth. Cases in the Territories would be dependent for appellate supervision of Territory courts upon the limitations and vagaries of legislation, as from time to time enacted, and grounded, ultimately, in s 122 of the Constitution, not Ch III.

Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591.

During oral argument, the applicant conceded that his challenge also questioned opinions expressed in a third decision, R v Bernasconi [120] . That decision held that s 80 of the Constitution (requiring that a trial on indictment of any offence against a law of the Commonwealth shall be by jury) had no application to a law made under s 122 of the Constitution for the government of the Territory of Papua. Bernasconi, although concerned with a specific issue not raised in the present applicant's trial (for it was had by jury) is the original font of the line of authority that "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" [121] . Ever since those words were written, Justices of this Court have been attempting to circumvent them or to confine their application. But they lie at the core of the idea of "disjoinder", from Ch III of the Constitution, of Territory courts and the Territory judicial power. Spratt and Falconer are simply two examples of special significance to the present proceedings [122] .

(1915) 19 CLR 629. 2. Bernasconi (1915) 19 CLR 629 at 635, per Griffith CJ. 3. cf Attorney-General (Cth) v The Queen (1957) 95 CLR 529 at 545 (PC).

Many issues were argued by the parties and by the interveners [123] to support the second respondent. Although it is necessary to deal with large questions in responding to the applicant's arguments, it is desirable that the issues should be confined to those which must be answered in order to reach a conclusion disposing of these proceedings. In my view, such issues are:

Is the source of constitutional power to create the Supreme Court of the ACT found within s 52(i) of the Constitution or in s 122?

If the source is s 122, is any such court so created a "federal court" for the purposes of ss 71 and 72 of the Constitution so that its judges must be appointed by the Governor-General in Council and for a term expiring on the appointee's reaching a specified age, as required by s 72?

If so, is it nonetheless available to the Territory legislature, acting pursuant to the measure of self-government afforded to it by the Parliament, to create a court outside the Judicature in Ch III and to provide for appointment to such a court of an acting judge appointed by the Executive of the ACT? Is the Supreme Court of the ACT such a court?

If the applicant appears otherwise to be entitled to relief on the answers to the foregoing, should relief be denied on the footing (a) that this Court will not reopen its past authority which stands in the way of conclusions favourable to the applicant; or (b) that a writ cannot, or should not, be granted in the circumstances because the order warranting the applicant's due conviction at his trial is ostensibly one of a superior court of record and one given by a de facto judicial office-holder, namely an acting judge of the Supreme Court of the ACT?

The Commonwealth, South Australia and Western Australia, the Northern Territory and the ACT.

A number of issues, subordinate to those just stated, were raised. Some of them concerned the practical ramifications of a decision favourable to the applicant in the different constitutional settings of the Northern Territory and the external Territories when compared to that of the ACT. The potential seriousness of the implications of the decision for the judicial arrangements followed for many years in those Territories, including the ACT, cannot be doubted. Such implications are relevant to the question whether the Court's past authority should be reopened. Logically, that question stands at the threshold of reasoning to a conclusion in the matter. But because the arguments for reopening of past authority cannot be appreciated fully without canvassing the merits of the application, it is convenient to deal with them as issue 4(a). Neither the second respondent nor the Commonwealth sought to advance arguments based on issue 4(b). It was, however, addressed by some of the interveners [124] . The applicant contested the entitlement of interveners to raise such issues. Because the arguments were developed it is proper that they be considered. But, it is not, in my view, proper to explore the options which might be available to the Commonwealth and the Territories to repair the practical consequences which would flow from the reopening of past authority and the establishment of a new constitutional principle concerning the relationship of s 122 and Ch III of the Constitution. Nor, in the approach which I favour, is it essential to explore the many other subordinate questions which were addressed during argument [125] . It will be sufficient if the issues stated above are decided. They are large enough.

Submissions for South Australia and Western Australia. 2. Such as whether the Removal of Prisoners (Territories) Act 1923 Cth and ACT applies to warrants of the Supreme Court of the ACT as established as a Territory court and whether Quo Warranto or some remedy other than Habeas Corpus, would have been more appropriate to the enforcement of the applicant's rights.

Before turning to the first issue, it is necessary to say something about the establishment of the ACT and the provision for its judicial arrangements. The idea of creating a Territory for the seat of government in Australia was borrowed from the precedent provided by the Constitution of the United States of America [126] . Two provisions, relating to the seat of government of the Commonwealth were contained in the Australian Constitution. The first afforded the Parliament, subject to the Constitution, exclusive power to make laws for the peace, order and good government of the Commonwealth with respect to "[t]he seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes" [127] . The second (contained amongst miscellaneous provisions at the end of the Constitution) provided [128] , relevantly, that "[t]he seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney".

Art I s 8 cl 17. Currie, The Constitution in Congress: The Federalist Period 1789-1801 (1997), pp 286-287. As to the position in Canada (Ottawa), see McConnell, Commentary on the British North America Act (1977), pp 52-53. 2. Constitution, s 52(i). 3. Constitution, s 125.

The place eventually chosen for the seat of government was near a small settlement in New South Wales originally established by British immigrants in 1820 close to the town of Queanbeyan. An agreement of October 1909 between the Commonwealth and the State of New South Wales was given effect in legislation by which the Parliament of the State surrendered [129] , and the Parliament of the Commonwealth accepted [130] , the territory known initially as the Territory for the Seat of Government. By the latter Act all laws in force in the Territory immediately before the proclaimed day continued in force (s 6) and jurisdiction in the Territory was conferred upon this Court [131] . By the Seat of Government (Administration) Act 1910 Cth, provision was made (s 11) for inferior courts of New South Wales to have and exercise jurisdiction in the Territory. These arrangements were changed with the passage of amendments to the Judiciary Act 1903 Cth in 1927 (s 30B). They continued the jurisdiction of this Court and of its Justices. However, there were difficulties in these arrangements and Dixon J drew attention to them in Federal Capital Commission v Laristan Building and Investment Co Pty Ltd [132] .

Seat of Government Surrender Act 1909 NSW, s 6. 2. Seat of Government Acceptance Act 1909 Cth, s 6. 3. s 8; cf Falconer (1971) 125 CLR 591 at 617, per Walsh J. 4. (1929) 42 CLR 582 by reference to R v Bernasconi (1915) 19 CLR 629; Porter v The King; Ex parte Yee (1926) 37 CLR 432; In re Judiciary and Navigation Acts (1921) 29 CLR 257.

In response to these difficulties, and doubtless out of recognition of the growth of the Canberra community and of the business of this Court, the Parliament enacted the Australian Capital Territory Supreme Court Act 1933 Cth. As originally created, that Court envisaged the appointment of a Chief Justice and the other judges by the Governor-General (s 7). To be eligible for appointment, the judges were required to possess the then stated constitutional qualifications for federal judges. This position was maintained until after the decision in Falconer [133] . In consequence of this Court's holding in that case, that the tenure of office of federal judges was inapplicable to judges of the Supreme Court of a Territory, the legislation was amended. As amended, it provided that a judge was to hold office until he attained the age of seventy years [134] . A cognate measure was enacted to amend the Northern Territory Supreme Court Act 1971 Cth in like manner.

(1971) 125 CLR 591. 2. Australian Capital Territory Supreme Court Act (No 2) 1971 Cth, s 6; Australia, House of Representatives, Parliamentary Debates (Hansard), 30 September 1971, 1732, at p 1733 .

Not long after these statutory changes were made, the electors of the Commonwealth approved the amendment of s 72 of the Constitution. The constitutional alteration abolished the requirement which this Court had inferred from the language of the Constitution, that the judges of this Court and other federal courts must enjoy life tenure [135] . It fixed as a maximum age for those appointed to this Court, or any court created by the Parliament, seventy years [136] . For a time, then, the requirements for appointees as judges of the Supreme Court of the ACT coincided once again with the constitutional prescription. They were made to a court created by the Parliament, by a commission signifying appointment by the Governor-General in Council and prescribing a term of service expiring, as the Constitution now permits, upon the judge's attaining the age of seventy years.

Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434; cf Falconer (1971) 125 CLR 591 at 611, per Windeyer J. 2. Constitution Alteration (Retirement of Judges) 1977 Cth (No 83 of 1977).

So the law stood at the time the Australian Capital Territory (Self-Government) Act 1988 Cth (the Self-Government Act) was enacted. That Act afforded a measure of self-government to the ACT [137] . The Self-Government Act originally omitted detailed provisions concerning the judiciary of the Territory. But it did provide [138] that certain specified laws [139] , including the Australian Capital Territory Supreme Court Act 1933 Cth should be taken as an "enactment". This was a word used in the Self-Government Act to mean, ordinarily, a law made by the Legislative Assembly for the ACT (the Assembly) established by s 8 of that Act [140] . Yet for four years the Supreme Court of the ACT remained the court as created by the 1933 Act. This Court was informed that all but one of the resident judges of the Supreme Court of the ACT presently in office, including the Chief Justice, hold commissions dating from the period before 1992.

cf Self-government and Public Finance in the Australian Capital Territory: Report from the Joint Committee on the Australian Capital Territory December 1974 (1975). No question as to the validity of the self-government legislation was argued in this application; cf Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 121, per Evatt J; Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248. 2. s 34(2). By s 34(3) that subsection did not apply to the Australian Capital Territory Supreme Court Act 1933 Cth until after 1 July 1992 or until regulations were earlier made. In the event the regulations were not earlier made. The section was amended by the ACT Supreme Court (Transfer) Act 1992 Cth, s 7. 3. Self-Government Act, Sch 2. 4. Self-Government Act, s 3.

Further steps were taken with respect to self-government in the ACT as from 1 July 1992. The ACT Supreme Court (Transfer) Act 1992 Cth (the Transfer Act) was enacted by the Parliament. It inserted into the Self-Government Act a new Pt VA (The Judiciary). The first provision of this Part, s 48A(1), provides that the Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory. By s 48A(2) it is envisaged that the Supreme Court may have further jurisdiction as conferred "by any Act, enactment or Ordinance, or any law made under any Act, enactment or Ordinance". Provision is then made, by s 48B, for the retirement age of judges and of the Master of the Supreme Court. Relevantly, any change to the Act might not affect the term of office of a person appointed before the commencement of the enactment without that person's consent in writing [141] . Provision is made for removal of a judicial officer from office by the Executive of the ACT in writing [142] and following procedures different from those required by s 72 of the Constitution [143] . By a further provision of the Transfer Act, there was inserted in the ACT Self-Government (Consequential Provisions) Act 1988 Cth a section designed to protect the holders of judicial office in the Supreme Court of the ACT immediately before 1 July 1992. Such persons are to hold their office on terms and conditions no less favourable than those applicable to a judge of the Federal Court of Australia. The foregoing provisions of a law of the Parliament are entrenched, in effect, as conditions for the transfer of legislative responsibility for the Supreme Court of the ACT to the Assembly.

Self-Government Act, s 48B(2). 2. Self-Government Act, s 48D(b). 3. The procedures involve investigation by a new Judicial Commission for the Australian Capital Territory envisaged in s 48C of the Self-Government Act and a decision of the Legislative Assembly of the ACT in place of the action of the Governor-General on an address from both Houses of Parliament in the same session provided by s 72(ii) of the Constitution.

In pursuance of that transfer and of a machinery enactment [144] , the Office of Parliamentary Counsel for the ACT reissued a "consolidation" enactment of the ACT, the short title of which is Supreme Court Act 1933 ACT. It comprises a republication, with renumbering of the sections of the former Australian Capital Territory Supreme Court Act 1933 Cth [145] . In 1993 the latter Act was, in turn, amended by the Assembly by the addition of the section permitting the Executive of the ACT to appoint acting judges of the Supreme Court [146] .

Legislation (Republication) Act 1996 ACT. 2. Thus the former s 6 of the federal Act of 1933 is renumbered as s 3. The former s 7 providing for the appointment of a Chief Justice and Judges by the Governor-General is renumbered s 4 of the ACT enactment and provides for appointment by the Executive of the ACT. 3. Supreme Court (Amendment) Act (No 2) 1993 ACT, s 6.

Because of the terms of s 72 of the Constitution, no acting judges may be appointed to any federal court [147] . No acting judges were contemplated in the former legislation as it governed the Supreme Court of the ACT. This was so notwithstanding the decision of this Court in Falconer [148] removing any constitutional link between Territory and federal courts. On the other hand, in the Northern Territory legislation had long permitted the appointment of acting judges. Many such judges have held office in that Territory, presumably in reliance upon the statements in Bernasconi, Spratt and Falconer and the theory that "Territory courts" fell wholly outside the constraints of Ch III of the Constitution [149] .

Constitution, s 72 requires that appointment be to a specified age of the appointee not for a specified period of office. 2. (1971) 125 CLR 591. 3. See now Supreme Court Act NT, s 32(2)(b).

The new provision of the Supreme Court Act 1933 ACT limited the appointment as an acting judge for a period not exceeding 12 months, as specified in the appointee's commission [150] . According to information provided to this Court, three such acting appointments have been made. They were those of Crispin A-J (before his permanent appointment), Hogan A-J (formerly Master of the Supreme Court) and Carruthers A-J. The last appointment was specifically for the purpose of securing a judge, additional to the Court's normal establishment, to preside over the applicant's trial. Different views may be held about the desirability of the appointment of acting judges having regard to the effect which such appointments may have, or be seen to have, upon the independence of the judiciary concerned. In some jurisdictions, such as in Canada, challenges to such appointments have been made by reference to general constitutional standards [151] . The present application was not argued by reference to general considerations but strictly on the requirements of the Australian Constitution. In particular, it was not argued that acting appointments of the kind provided for in, and made under, the Supreme Court Act 1933 ACT as it now appears, would render that Court (either generally or in a particular case) an unsuitable receptacle for the conferral by the Parliament of federal jurisdiction [152] . In many State courts in recent years, including the Supreme Courts, acting judges have been appointed. Such State courts are not subject to the express limitations stated in s 72 of the Australian Constitution. Whether any other constitutional difficulty is presented by such acting appointments is a question which does not arise on this application.

Supreme Court Act 1933 ACT, s 4A(2) inserted by Supreme Court (Amendment) Act (No 2) 1993 ACT, s 6. 2. Valente v The Queen [1985] 2 SCR 673; Reference re Territorial Court Act (Northwest Territories) [1997] NWTR 377. 3. See by analogy Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. Nor did the application raise any question as to whether the principles enunciated in Kable have application, as such, to a "Territory court". See Hopper, "Territories and Commonwealth Places: The Constitutional Position", Australian Law Journal, vol 73 (1999) 181, at p 201 .

For the Territories, looking at exceptional judicial needs that can occasionally arise with major implications for their limited resources (such as the very long trial of the applicant) the appointment of acting judges would doubtless be seen as analogous to the facility regularly employed in many of the Australian States but with added practical justifications deriving from the circumstances of the Territories. However, the Territories are not, constitutionally speaking, States. Indeed, according to an opinion expressed in this Court, the ACT may never become a State [153] . Accordingly, the question is not whether the appointment of Carruthers A-J for the applicant's trial was desirable or justifiable. It is, and is only, whether it was constitutionally permissible. For the second respondent and the intervening States and Territories the appointment was lawful as a measure permitted to a Territory legislature enjoying a high degree of self-government granted to it by the Parliament under s 122 of the Constitution. For the applicant, it was not permissible because, try as it might, the Territory could not escape its constitutional character. This bound it to the limitations imposed by Ch III of the Constitution which govern the federal judiciary and which forbid the appointment of acting judges.

The significance of the first issue is this: If the true constitutional foundation for the government of the Territory in question in these proceedings is not s 122 of the Constitution (as has been held and commonly believed or assumed) but s 52(i), there could be no doubt that the only judiciary which could exercise jurisdiction in the Territory would be one established under, and conforming to, Ch III. So much was conceded for the second respondent. So much appears from the structure of the Constitution. Section 52(i) appears in Ch I amongst the grants of legislative power. There is an express statement in s 52, as in s 51, that the grant of power made there is "subject to this Constitution". That phrase can only mean subject to other chapters of the Constitution, including Ch III.

The question concerning the source of power was argued in Spratt. This Court there decided, unanimously, that a law for the government of the ACT, such as that creating a Court of Petty Sessions for the Territory, was made under s 122 and not under s 52(i) of the Constitution [154] . However, adherents to the contrary view have included such distinguished jurists as Dixon J [155] . Obviously, the question is not beyond argument. Therefore, despite Spratt and its affirmation in Falconer [156] and still more recent authority of the Court [157] , it is necessary, in responding to the present application, to re-examine the question as a matter of principle. This must be done by reference to the constitutional text.

Spratt v Hermes (1965) 114 CLR 226 at 241, per Barwick CJ; at 257-259, per Kitto J; at 262-264, per Taylor J; at 271, per Menzies J; at 273, per Windeyer J; at 281-282, per Owen J. 2. See Laristan (1929) 42 CLR 582 at 585; Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29 at 83; cf Ewens, "Where is the Seat of Government?", Australian Law Journal, vol 25 (1951) 532. 3. (1971) 125 CLR 591. 4. See, eg, Svikart v Stewart (1994) 181 CLR 548.

It can certainly be said, with Fox J in Golden-Brown v Hunt [158] , that "[t]he relationship between s 52(i) and s 122 has not yet been worked out" [159] . Clearly, the provisions of s 52(i) must be given a meaning and an operation appropriate to a grant of legislative power appearing in a constitution. Moreover, the grant in question exists amidst other powers considered sufficiently important to confer "exclusive power" upon the Parliament. As well, whatever were the original understandings of the adjacent grant of power to make laws with respect to "all places acquired by the Commonwealth for public purposes", the more recent decisions about that portion of s 52(i) have emphasised the operation of that subsection as a large grant of power [160] . The context does not, therefore, suggest that s 52(i) is an ephemeral, narrow or insignificant grant of power. Quite the contrary.

(1972) 19 FLR 438 at 443. 2. This was approved in Capital Duplicators (1992) 177 CLR 248 at 273. 3. Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89; Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 638, 669-670, 673; cf Hopper, "Territories and Commonwealth Places: The Constitutional Position", Australian Law Journal, vol 73 (1999) 181, at pp 204-206, 208-209 .

The fact that a large purpose was envisaged for s 52(i) may also seem in keeping with the original intention of providing for it. This grew out of the decision to create a "seat of government". Necessarily, this would require the creation of a territory, but one peculiar and special, as s 125 of the Constitution envisaged. Against the foreign precedents which gave birth to the idea, and the provisions of ss 52(i) and 125, it is perhaps unsurprising that early opinions favoured the view that, so far as lawmaking for the government of the territory set aside for the seat of government was concerned, it was to be sourced to the specific grant of constitutional power (s 52(i)) and not to the general (s 122) [161] . This may also explain why those who drafted and enacted the original legislation of the Parliament dealing with the affairs of that territory (including its judicial affairs) did so in terms of legislation bearing express reference to the seat of government [162] . The adoption, twenty years later, of the name "Australian Capital Territory" for the territory chosen for the seat of government, could not alter the constitutional character of that territory.

Opinions of Attorneys-General of the Commonwealth of Australia (1981), vol I, pp 429-430; cf Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901), p 982 and opinion of R R Garran, 19 January 1905 in Opinions of Attorneys-General of the Commonwealth of Australia (1981), vol 1, 243, at p 247 . 2. Seat of Government Acceptance Act 1909 Cth; Seat of Government (Administration) Act 1910 Cth.

To the argument that s 125 of the Constitution envisaged that the seat of government would be "within territory", contemplating a larger geographical district requiring governance, proponents of this view responded that s 52(i), together with the implied incidental power, would afford the Federal Parliament more than adequate legislative powers to make laws for the internal administration of the seat of government and that part of its territory which fell outside the seat of government as such. The word "within" in s 125 could be construed to mean "wholly within". The recognition of a separate and distinctive basis for legislative power with respect to this territory would reflect the particular concern of the whole Commonwealth with the seat of government of the federation. It would be consistent with the inclusion of s 122 in Ch VI of the Constitution (New States). Section 122 territories, like the analogous territories contemplated in the United States Constitution, were those that were on the path to statehood. But this was something impossible or extremely difficult to envisage in the case of the ACT given its special character and purpose [163] .

Capital Duplicators (1992) 177 CLR 248 at 273. I do not stay to explore the possibility of statehood for the ACT from which the seat of government, as such, was excised.

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