full Power within its Jurisdiction to establish Courts of Judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof.
Although prerogative power had been relied on to establish courts of civil jurisdiction in the Colonies, [8] it became constitutional practice when a local legislature was established, to create courts by or under the authority of statute. [9] In New South Wales the Supreme Court was established by the Charter of Justice granted pursuant to statute in 1823. [10] In McCawley v The King, [11] the Privy Council said of s 5 of the Colonial Laws Validity Act:
It would indeed be difficult to conceive how the Legislature could more plainly have indicated an intention to assert on behalf of colonial Legislatures the right for the future to establish Courts of Judicature, and to abolish and reconstitute them, than in the language under consideration.
Their Lordships emphasised the creation and abolition of curial institutions, not the vesting of jurisdiction in them. Earlier, in Taylor v Attorney-General of Queensland, [12] Gavan Duffy and Rich JJ said that the words of this section were -
properly chosen to express the powers sought to be conferred. It was intended that a colonial legislature should have power to constitute new Courts and to put an end to existing Courts, to determine whether specific Courts should continue to exist or should cease to exist, as well as to mould their form, prescribe their duties, and regulate their procedure.
Their Honours should not be understood to have said that s 5 was the source of power to vest jurisdiction in a court. Thus jurisdiction under colonial laws was exercised by courts established under an Imperial statute. The Supreme Court of New South Wales, established by the Charter of Justice, exercised jurisdiction under laws enacted by the colonial legislature. [13] Conversely, it was held that the High Court of Australia had been vested with jurisdiction under the Imperial Colonial Courts of Admiralty Act 1890. [14] The power of the Parliament of the United Kingdom to vest jurisdiction in this or any other Ch III court has now ceased. The jurisdiction once conferred by the Imperial Colonial Courts of Admiralty Act is now a federal jurisdiction. [15]
1. Sir Victor Windeyer, "A Birthright and Inheritance", (1962) 1 University of Tasmania Law Review 635 at 649.
2. Some courts could be established only by or with the authority of statute: see In re Lord Bishop of Natal (1864) 3 Moo PC (NS) 115 at 151 [16 ER 43 at 57].
3. 4 Geo IV c 96. Subsequent statutory authority was provided by The Australian Courts Act 1828 Imp (9 Geo IV c 83) and by the New South Wales Constitution Act 1855 (18 & 19 Vict c 54 s 42).
4. McCawley v The King (1920) 28 CLR 106 at 121; [1920] AC 691 at 710-711.
5. Taylor v Attorney-General of Queensland (1917) 23 CLR 457 at 478.
6. See Castles, An Australian Legal History , (1982) Ch 9 .
7. John Sharp & Sons Ltd v The Katherine Mackall (1924) 34 CLR 420; McIlwraith McEacharn Ltd v Shell Co of Australia Ltd (1945) 70 CLR 175.
8. See the Admiralty Act 1988 Cth, ss 9, 10 and 44.