Ah Yick v Lehmert [1905] HCA 22

Ah Yick v Lehmert [1905] HCA 22 - HCA 1905 case summary — Zoe

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":0LR] OF AUSTRALIA. the only person who can deal with such a matter as the present, jsone of the persons therein described. Sec. 72 of the Judiciary '4e,1903 deals with appeals in cases of indictment, but if sec. 68 gives an appellate jurisdiction, it would by sub-see. (2) (c) bring jn the appellate jurisdiction of the State Courts as to indictments, "ngite of sec. 72. By sec. 4 of the Punishment of Offences Act 1W0l, which was passed as a temporary measure until the tstablishment of the High Court, an appellate jurisdiction was given to the Courts of the States in such a matter as the present. Itis impossible to suppose that the legislature intended the same resilt to follow from the totally different provisions of the Judiciary Act 1903, If sec. 68 has nothing to do with appeals, tie appellate jurisdiction of the Court of General Sessions and theright to appeal must be sought elsewhere. Sec. 39 of the Judiciary Act 1903 confers certain federal jurisdiction on the eyeral State Courts. It is in a Part of the Act distinct from that jnwhich see: 68 is. Part X.,in whieh see, 68 occurs, deals through- out with matters which are made offences by the laws of the Com- monwealth, and deals with them exclusively and exhaustively. Sec.39 deals with civil jurisdiction, and with certain criminal juris- diction in matters as to which the State Courts would ordinarily have jurisdiction, but in which some federal matter intervenes which transfers the case to federal jurisdiction. The present offence iswholly a creature of federal Statute, and any jurisdiction as to itis given by sec. 68 and not by sec. 39. If sec. 39 did include "tise like the present, it might bring into operation the whole of the State laws respecting appeals in cases of indictment, although the appellate jurisdiction in criminal matters is dealt with tshaustively by sec. 72. There is no doubt that the appellate jurisdiction eontended for in the present case is within the words _ofsee, 39, but a consideration of other parts of the Judiciary

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ribute of sovereignty which must of necessity be exercised by 'ene tribunal, that that tribunal must be constituted by the 'overeign power, and that the limits within which the judicial 'gar is to be exereised by the tribunal must be defined. In the "ase of the High Court, the extent to which that Court may exer- se judicial power is defined by the Constitution; in the ease of "ther Courts it is not defined by the Constitution, and must, again "i{neeessity, be defined by the Commonwealth law which creates "those Courts or invests them with federal jurisdiction. 'The term "Sfederal jurisdiction " means authority to exercise the judicial "over of the Commonwealth, and again that must be within limits "prescribed. 'Then "federal jurisdiction" must include appellate _ jurisdiction as well as original juri; diction, The whole scheme of the Constitution assumes that the judicial power includes both in the ease of the High Court, and from the history of the Constitu- tio and the practice in English-speaking countries, it must be taken for granted that the judicial power was known by the "framers of the Constitution to include both, and that those framers intended that the judicial power might be exercised by Courts of triginal jurisdiction or by Courts of appellate jurisdiction. Then ste, 73 of the Constitution defines the appellate jurisdiction of the High Court. Amongst other matters of appellate jurisdiction the "High Court is authorized to hear appeals from all Courts having _ federal jurisdiction, "with such exceptions and subject to such _ Ngulations as the Parliament prescribes," and none have been pre- tibed which affect the present case. Sec. 75 defines and enumer- _ ates five classes of cases in which the High Court has original jmisdiction, and sec. 76 four others in which Parliament may confer original jurisdiction upon the High Court. In all other

huatters, as at present advised, I think the High Court has no original jurisdiction, and cannot, gud High Court, have it. Then _ "t. 77 provides that Parliament may make laws - "(1.) Defining
the jurisdiction of any federal Court other than the High Court,"
td "(111 Investing any Court of a State with federal jurisdic- tion" Now, the power to ereate a federal Court depends upon

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md 76 of the Constitution, and that, assuming see. 39 (2) to qubrace all the matters as to which an appellate jurisdiction is given to State Courts, it cannot be shown that there was any jntention to confer this right of appeal. Let us turn to the mode which sec. 39 is expressed. The second sub-section, which js in question here, provides: [His Honor read the sub-section andeontinued.] Let us consider from what souree see. 39 (2) triginates, It is an exercise of the power given by see. 77 of the Constitution. In sec. 75 of the Constitution there are enumerated thematters in which the High Court is, as soon as constituted, to "have original jurisdiction. In sec. 76 there are enumerated other "matters in which Parliament is given power to legislate so as to confer original jurisdiction upon the High Court, Then sec. 77, the obvious source of sec. 39 of the Judiciary Act, is as follows: (His Honor read the section and continued]. See. 39 (2) of the Juliviary Act is unquestionably, and upon the very face of it, an " exttise of the power given by sec. 77 (3) of the Constitution to "the Parliament to make laws investing the Courts of the States "with federal jurisdiction. 'Che expression of sec. 39 (2) which thiefly calls for examination is the term "federal jurisdiction," tnd in the absence of any context in the Judiciary Act or in the

Constitution to explain its meaning, and, in the absence of any figment to the contrary, one may take it that it is used in that "setion in the same sense as in the Constitution. What does it mean in the Constitution ? It is rightly pointed out that, where the United States Constitution gave, in Article IIL, sec. 2 (2), _miginal jurisdiction in some matters and appellate jurisdiction in others, a grant of appellate jurisdiction in those matters as to which original jurisdiction was conferred could not be implied, and that original jurisdiction eould not be implied as to those matters in which appellate jurisdiction was given. As to that there is no foubt, Ido not from that derive - and I do not think counsel asked us to derive - any argument in favour of the view that the &xpression " federal jurisdiction" was limited exelusively co Sriginal jurisdiction, 'That expression must include primd facie AN jurisdiction within the limits of the judicial power. 'There ay be a context in various cases of the use of that term which

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Acts of Parliament, mist} understood as including original and appellate jurist, the words "federal jurisdiction," used without qualification, be limited to original or appellate jurisdiction, The eon doubt, may furnish us with means of determining wheth federal jurisdietion granted is original, or appellate, or both ag may be. Now, how is it in the case of see. 39 of the Judi Act? Tt has been argued that the federal jurisdiction is in th section, so to say, ent down, so as to mean original juri only, by the operation of the words which follow the term vi "in all matters in which the High Court has original jursdiet or in which original jurisdiction ean be conferred upon it" Ts unable to see that federal jurisdiction, given in matters in which{h High Court has original jurisdiction, is necessarily limited in exercise to original jurisdiction. 'These words of reference do m0 appear to do more than define the subject matters - the classes o cases, - and to hold that they confine the federal jurisdiction to cases of original jurisdiction would not be a reasonable interpreta tion, unless we found something in the context which tends show that the words are not used merely in reference to subject matter, but also for the purpose of limiting the jurisdiction it and Ido not find anything in the language that carries th implication. If we look at sec. 77 of the Constitution, we some light thrown upon the matter. In that section, under whieh sec. 39 of the Judiciary Act is enacted, the opening words con- ferring power upon the Parliament, are, " with respeet to any of the matters mentioned in the last two sections." Now, there if no doubt that, with respect to the matters referred to in oa two sections, the High Court has or ean have original ju diction only, and it is only by virtue of see. 73 that appellt jurisdiction over the original jurisdiction exists in the High Court in those matters. But, looking at the plain language of see 77) it deals with matters enumerated in sees. 75 and 76, matters arising under any treaty and so on right down the category of them See. 77 does not therefore limit the power of Parliament oe laws to the power of conferring original jurisdietion, but it limits

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