High Court of Australia|2001-02-14|Before: Hayne J

The applicant appeared in person but was assisted by a Mr Abbott in the formulation of brief oral argument. It is convenient to deal in turn with each of the matters in the affidavit in support in the order in which they appear in that affidavit.

Section 79 of the Constitution provides:

"The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes."

Section 79 is, therefore, concerned with whether federal jurisdiction is to be exercised by a court constituted by one or by more than one judge.

Section 11(1) of the Act provides:

"For the purposes of the exercise of the jurisdiction of the Federal Magistrates Court, the Federal Magistrates Court is to be constituted by a single Federal Magistrate."

It is not arguable that this provision offends s 79. Indeed, it is a provision of the very kind for which s 79 is intended to provide. True it is, as Mr Guarino pointed out in oral argument, s 79 uses the word "judges" and does not use the word "magistrate". Nevertheless, it is clear when regard is had to s 71 and the power given to the Parliament to create "other federal courts" that the title given to the judicial officer by Parliament in creating such another federal court is not determinative of the constitutional reach of s 79 and the other provisions in Ch III. The constitutional reach of s 79 extends to the Federal Magistrates appointed to serve in the court created by the Parliament by the Act.

Section 20 of the Act provides:

"(1) An appeal must not be brought directly to the High Court from a judgment of the Federal Magistrates Court.

(3) If, apart from this subsection, subsection (1) is to any extent inconsistent with section 73 of the Constitution, this Act has effect as if the words ', except by special leave of the High Court' were added at the end of subsection (1)."

It is not arguable that this provision offends s 79 or s 73. As may be implicit in the reference in s 20(3) to s 73 of the Constitution, s 20 is a provision intended to constitute prescription by the Parliament of exception or regulation (as is expressly contemplated by s 73 of the Constitution) to the otherwise general conferral of appellate jurisdiction on this Court from all judgments, decrees, orders and sentences of a federal court other than the High Court.

Next, as to the second and third of the matters I have identified, provision is made for appeals from the Federal Magistrates Court to lie to the Family Court or to the Federal Court. That provision is made by amendments to the Family Law Act 1975 (Cth) and the Federal Court of Australia Act 1976 (Cth) set out in Scheds 11 and 12 of the Federal Magistrates (Consequential Amendments) Act 1999 (Cth).

The appeals for which provision is thus made are not, or at least arguably are not, appeals by rehearing de novo. That is, however, not an arguable ground for their invalidity. In Allesch v Maunz[1] there is discussion of the nature of an appeal to the Full Court of the Family Court[2]. Nothing in that discussion suggests that the ground which it is now sought to agitate is arguable.

As for the fourth, fifth and sixth of the matters I have mentioned as having been identified in the affidavit in support, it is enough to say that no factual basis has been laid for their agitation by this applicant, even if they were thought to be arguable. There is, as I understand it, no question, in the proceedings to which the applicant is party, of reviewing a decision made as arbitrator and no question, in those proceedings, of punishment for contempt. In any event, as to the latter aspect, it would seem that the issues which it is sought to raise were concluded by the recent decision of this Court in Re Colina; Ex parte Torney[3].

Finally, as for the last of the matters mentioned by the applicant in his affidavit, s 72 of the Constitution does, subject to some qualifications which need not now be noticed, permit the Parliament to fix an age as the maximum age for Justices of a court created by the Parliament. There is no reason to consider it arguable that the constitutional expression "Justice of a court created by the Parliament" does not extend to Federal Magistrates. There is, therefore, no reason to consider that the provisions made in s 9 and Sched 1 of the Act about the term of office and conditions for resignation or removal from office of Federal Magistrates are invalid.

In my opinion, no arguable ground for the grant of an order nisi is shown. It follows that the application is dismissed.

[1] [2000] HCA 40; (2000) 74 ALJR 1206 at 1210-1211 [20]- [24]; [2000] HCA 40; 173 ALR 648 at 653-654.

[2] See also CDJ v VAJ (1998) 197 CLR 172 at 201-202 [111].

[3] [1999] HCA 57; (1999) 73 ALJR 1576; 166 ALR 545.

Magistrates Act 1999

Magistrates (Consequential Amendments) Act 1999

Support (Assessment) Act 1989

Support (Registration and Collection) Act 1988

Court of Australia Act 1976

Magistrates Act 1999

Magistrates (Consequential Amendments) Act 1999

Support (Assessment) Act 1989

Support (Registration and Collection) Act 1988

Court of Australia Act 1976

Re Bryant; Ex parte Guarino [2001] HCA 5; (2001) 178 ALR 57; (2001) 75 ALJR 478 (14 February 2001)

Re Bryant; Ex parte Guarino [2001] HCA 5; (2001) 178 ALR 57; (2001) 75 ALJR 478 (14 February 2001)

At a glance

Court

Decision date

Before

Source

Judgment (22 paragraphs)

Legislation Cited (12)

Cases Cited (6)

Re Bryant; Ex parte Guarino [2001] HCA 5; (2001) 178 ALR 57; (2001) 75 ALJR 478 (14 February 2001)