Capital TV & Appliances Pty Ltd v Falconer

In my opinion the Supreme Court is not a federal court within Ch. III of the Constitution; it is a territorial court established under s. 122 of the Constitution. The power conferred on the Parliament by s. 122 to make laws for the government of the territories, whether or not it is subject to limitations to be found elsewhere in the Constitution, is a plenary power pursuant to which the Parliament may create, or authorize the creation of, courts having jurisdiction in relation to the territories. It is now clearly settled by authority that a court created under s. 122 for any territory, including the Australian Capital Territory, is not a federal court: Porter v. The King; Ex parte Yee [1] ; Edie Creek Pty. Ltd. v. Symes [2] ; Spratt v. Hermes [3] ; and see Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [4] ; and Attorney-General (Cth) v. The Queen [5] . Dicta that suggest that a territorial court is or may be a federal court (Mainka v. Custodian of Expropriated Property [6] and Douran v. Whisker [7] ) or that a distinction may be drawn between territories which have and those which have not formed part of the Commonwealth (Mitchell v. Barker [8] ) cannot now be treated as correct.

1. (1926) 37 C.L.R. 432. 2. (1929) 43 C.L.R. 53. 3. (1965) 114 C.L.R. 226. 4. (1956) 94 C.L.R., at p. 290. 5. (1957) 95 C.L.R., at p. 545. 6. (1924) 34 C.L.R. 297, at p. 301. 7. (1946) 72 C.L.R. 595, at p. 606. 8. (1918) 24 C.L.R. 365, at p. 367.

The question whether a court is a federal court does not, in my opinion, depend on the tenure given to its judges. An Act passed by the Parliament in purported exercise of the power given by s. 71 to create a federal court will be invalid if the judges of the court are not to be appointed for life: s. 72 of the Constitution, and Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. [9] . However, the mere fact that life tenure is given to the judges does not mean that a court is a federal court. Although, in the exercise of the power given by s. 122, the Parliament may validly create a territorial court whose members have not life tenure (Spratt v. Hermes [3] ) it is not precluded from giving life tenure to the members of such a court. It is, therefore, unprofitable in the present case to consider whether or not all the judges of the Supreme Court are appointed for life.

1. (1918) 25 C.L.R. 434. 2. (1965) 114 C.L.R. 226.

Moreover, a court is not necessarily a federal court because it may be called upon to adjudicate upon a matter arising under a general law which applies to the States as well as to the territories. I respectfully agree with the statement of the Chief Justice in Spratt v. Hermes [1] that "a territorial court having the appropriate local jurisdiction may enforce in relation to acts occurring within the territory in question a law made by the Parliament upon a subject matter falling within s. 51 of the Constitution and intended to operate throughout the Commonwealth", and with the reasons given by Kitto J. [2] for that conclusion. On the other hand, a court set up as a federal court may have conferred on it under s. 122 jurisdiction in respect of a territory. It is settled that the Parliament acting under s. 122 may give a right of appeal to this Court from decisions of the courts of territories (see the cases cited in Spratt v. Hermes [3] ), although in both Porter v. The King; Ex parte Yee [4] and Spratt v. Hermes [5] the Court divided as to whether an original jurisdiction may similarly be conferred. Clearly the Parliament can in the same way confer appellate (and possibly also original) jurisdiction on any other federal court. It is, therefore, not possible to say that a court is a federal court simply because it has jurisdiction to adjudicate upon matters arising under general laws of the Commonwealth, or that it is not a federal court simply because it exercises a jurisdiction in relation to a territory. The question must depend on the source of the power to create the court; if the court is created by a law passed for the government of the territory under s. 122 it is not a federal court. Imprecise as this test may be thought to be, it presents no difficulty in its application in the present case. By s. 11 of the Act it is provided that the Supreme Court -

(a) has, subject to any Act or Ordinance, in relation to the Australian Capital Territory, the same original jurisdiction, both civil and criminal, as the Supreme Court of the State of New South Wales had in relation to that State immediately before 1st January 1911:

(b) has such jurisdiction, both civil and criminal, and whether original or otherwise, as is from time to time vested in it by Act or Ordinance; and

(c) has jurisdiction, with such exceptions and subject to such conditions as are provided by Act or Ordinance, to hear and determine appeals from all judgments, convictions, orders and sentences of inferior courts having jurisdiction in the Territory.

There can be no doubt that the only power to create a court with jurisdiction of that kind is that conferred on the Parliament by s. 122. 1. (1965) 114 C.L.R., at p. 239. 2. (1965) 114 C.L.R., at pp. 259-260. 3. (1965) 114 C.L.R., at p. 239. 4. (1926) 37 C.L.R. 432. 5. (1965) 114 C.L.R. 226.

However the main submission of the appellant was that the Supreme Court is a court exercising federal jurisdiction within s. 73 (ii.) of the Constitution. It was submitted that federal jurisdiction in s. 73 means an authority or power to adjudicate which is derived from a Commonwealth law, including a law passed under s. 122 of the Constitution, and that the Supreme Court derives its power of adjudication from the provisions of the Act, which is a law of the Commonwealth, and therefore exercises federal jurisdiction. It was further submitted that the expression "court exercising federal jurisdiction" in s. 73 is wide enough to include, not only a court of a State, but also a court created by the Commonwealth Parliament, other than a federal court, which exercises federal jurisdiction.

It is unnecessary to consider the meaning of the expression "federal jurisdiction" as used in ss. 71 and 73 of the Constitution because the expression "court exercising federal jurisdiction" in s. 73 refers only to a court of a State. Although ss. 71 and 73 do not expressly refer to State courts, the only power given to the Parliament to invest a court with federal jurisdiction is that given by s. 77, which provides that with respect to any of the matters mentioned in the last two preceding sections the Parliament may make laws - "(iii.) Investing any court of a State with federal jurisdiction". When the Constitution is read as a whole it appears that s. 71 refers to the High Court and to two other classes of courts, namely, federal courts created by the Parliament and such State courts as the Parliament invests with federal jurisdiction under s. 77, and that the expression "court exercising federal jurisdiction" in s. 73 refers to a State court exercising federal jurisdiction with which it has been so invested. This view of the construction of the sections was taken in New South Wales v. The Commonwealth [1] ; Porter v. The King; Ex parte Yee [2] ; Silk Bros. Pty. Ltd. v. State Electricity Commission (Vict.) [3] ; and Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [4] . It is true that Higgins J. in his dissenting judgment in Wall v. The King; Ex parte King Won [5] and Evatt J. speaking obiter in Davies v. Ryan [6] took the view that a court established under s. 122 might be regarded as a court exercising federal jurisdiction within s. 73. The question was not fully discussed in either case and these remarks in my opinion should be treated as having been made per incuriam.

1. (1915) 20 C.L.R., at p. 62. 2. (1926) 37 C.L.R., at p. 440. 3. (1943) 67 C.L.R., at p. 9. 4. (1965) 94 C.L.R., at p. 270. 5. (1927) 39 C.L.R., at pp. 261-262. 6. (1933) 50 C.L.R. 379, at p. 382.

It is, in my opinion, quite unnecessary to consider the arguments advanced by the appellant that the statement by Griffith C. J. in R. v. Bernasconi [1] , 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", cannot be supported in the light of later authorities. The decision itself has stood for many years and ought to be treated as binding, but the correctness of those remarks of Griffith C.J. need not be considered in the present case.

Since the Supreme Court is neither a federal court, nor a court exercising federal jurisdiction, within s. 73 of the Constitution, this Court is not invested by that section with appellate jurisdiction in the present case. Accordingly, the question whether the provisions of ss. 51 and 52 of the Act would create an exception to the jurisdiction conferred by s. 73, if the case otherwise fell within that section, does not arise.

We were not referred to any provision, either of the Constitution or of an enactment made under s. 122, giving us jurisdiction to grant special leave to appeal in the present case. On the view that I take, s. 73 does not confer such jurisdiction.

I would allow the objection to competency and refuse the application for special leave to appeal as incompetent.