Lewis v Chief Executive Department of Justice and Community Safety and Sentence Administration Board of the Australian Capital Territory [2013] ACTSC 198

Lewis v Chief Executive Department of Justice and Community Safety and Sentence Administration Board of the Australian Capital Territory [2013] ACTSC 198 - ACTSC 2013 case summary — Zoe

[628]

that Territory courts, whether created by Commonwealth legislation or subordinate territory legislation, are not federal courts. In other words, the source of the legislative authority for creating Territory courts is s 122 of the Constitution, not Ch III (Re Governor, Goulbourn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322; Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591);
that judges of Territory courts are not federal judges whose appointment and tenure have to comply with the requirements in s 72 of the Constitution (Re Governor, Goulbourn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322);
that Territory courts can exercise federal jurisdiction (Blunden v Commonwealth (2003) 218 CLR 330; North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146; John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503);
that an exercise of power under s 122 can trigger federal jurisdiction under s 76(i), which can be vested in federal courts under s 77(i) (Northern Territory v GPAO (1999) 196 CLR 553);
to the extent that Territory courts exercise federal jurisdiction, they are 'courts exercising federal jurisdiction' from which an appeal can be taken to the High Court under s 73(ii);
that appeals from Territory courts not exercising federal jurisdiction are not entrenched by s 73(ii), but Parliament has the power under s 122 to provide for them (Porter v The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432). Although the High Court might be exercising appellate jurisdiction when hearing such an 'appeal' (as contemplated in Porter), it may alternatively be the case that it exercises original jurisdiction under s 76(ii) ...;
that because Territory courts can exercise the judicial power of the Commonwealth, the Kable principles apply to them (North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146).

Parties

Applicant/Plaintiff:

# Lewis

Respondent/Defendant:

Chief Executive Department of Justice and Community Safety and Sentence Administration Board of the Australian Capital Territory \[2013\] ACTSC 198

Legislation Cited (86)

Periodic Detention of Prisoners Act 1970(NSW)

Weekend Detention Act 1970(Qld)

Periodic Detention Act 1995(ACT)

Sentencing (Crime of Murder) and Parole Reform Act 2003(NT)

Corrections Management Act 2005(ACT)

Penalties and Sentence Act 1992(Qld)

Australian Consumer Law and Fair Trading Act 2012(Vic)

City Area Leasing Ordinance 1935(ACT)

Tenancy Tribunal (Tenancy Tribunal Act 1994(ACT)

Residential Tenancies Tribunal (Residential Tenancies Tribunal Act 1997(ACT)s 115)

Discrimination Tribunal (Discrimination Act 1991(ACT)s 72), with

Civil and Administrative Tribunal Act 2008(ACT)

Supreme Court Act 1979(NT)

Northern Territory Supreme Court Act 1961(Cth)

(Sentence Administration) Act 2005

Capital Territory (Self-Government) Act 1988

Decisions (Judicial Review) Act 1989

Interpretation Act 1954

Consumer Law and Fair Trading Act 2012

Management Act 2007

(Administration of Sentences) Act 1999

(Sentencing) Act 2005

Assets Recovery Act 1990

Rights Act 2004

Territory (Self-Government) Act 1978

Territory Supreme Court Act 1961

Territory Supreme Court (Repeal) Act 1979

Sentence Act 1992

Detention Act 1995

Detention of Prisoners Act 1970

Detention of Prisoners Act 1981

Sector Management Act 1994

Tenancies Tribunal Act 1997

(Crime of Murder) and Parole Reform Act 2003

Organised Crime (Control) Act 2008

Court Act 1979

Tribunal Act 1994

Detention Act 1970

Area Leasing Ordinance 1935

Procedures Rules 2006

Government Acceptance Act 1909

Government (Administration) Act 1910

Protection Act 1994