Spratt v Hermes

1. (1945) 71 C.L.R., at p. 85, repeated (1958) 99 C.L.R., at p. 144.

Holmes J. once said in the Supreme Court of the United States: "When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago": Missouri v. Holland [3] . I quote this because I feel that we should not in this case reach a decision by reference only to particular sentences to be found in earlier judgments of this Court, some of them given many years ago in conditions different from those of today upon questions different from the present question. The Constitution is, this Court has said, "intended to endure and apply to changing conditions" [4] .

1. (1920) 252 U.S., at p. 433 [64 Law. Ed., at p. 648]. 2. (1960) 106 C.L.R., at p. 197.

Section 122 confers upon the Parliament a full and sufficient power to legislate for all the territories, those within the Continent of Australia and those overseas alike. This plenary power of the Parliament as the legislature of the Australian nation is not diminished, rather is it aided, by other provisions of the Constitution: see Lamshed v. Lake [1] . The national Parliament has complete sovereignty over the Australian Capital Territory no less than over the dependent territories. The source of its power is in my opinion s. 122. That does not mean that the Capital Territory has not a special position in the polity of Australia. It has, for within it lies the seat of government, the seat, that is, of the central government of the federated States, which is the government too of the Australian nation and its dependencies. I do not regard s. 52 as curtailing the power given by s. 122. The power of the Parliament to make laws for the peace, order and good government of the Commonwealth with respect to the seat of government is not the same thing as a power to make laws for the government of the Capital Territory. The phrase "seat of government" has for centuries been used to describe a capital city. It is used in this sense in the British North America Act, 1867 s. 16, by which Ottawa is made the seat of government of Canada. Section 52 (i.) giving the Commonwealth Parliament exclusive power to make laws with respect to the seat of government is derived from the Constitution of the United States (Art. I, s. 8 (17)). A provision that, if Story be correct, owes its origin to insults offered by mutinous soldiery to the Congress at Philadelphia, came, somewhat oddly, into the Constitution of Australia. It is perhaps an unnecessary provision there. However that be, it can have little bearing upon the present question, because the seat of government and the Australian Capital Territory are not co-extensive in fact; nor could they be regarded as co-extensive in law, because s. 125, by what reads as an inartistic interpolation, states that the seat of government shall be within territory to be granted or acquired by the Commonwealth. To ignore the word "within" here would involve a dismissal of language, a disregard of well-known historical events and a defiance of the geographical fact that the Capital Territory covers a very much greater area than does the city of Canberra.

The power of the Parliament to make laws for the government of any territory unquestionably enables it to create, or authorize the Crown to create, courts for that territory. The question is whether ss. 71 and 72 of the Constitution apply to such courts. Section 71, so far as relevant, provides that "the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction ". Then follow in s. 72 provisions as to the appointment, tenure (during good behaviour) and fixed remuneration for "the Justices of the High Court and of the other courts created by the Parliament". In my opinion the words "the other courts created by the Parliament" refer, as a matter of construction, to courts created pursuant to the power given by the immediately preceding section (s. 71), that is to "such other federal courts as the Parliament creates". The dualism inherent in the concept of federal jurisdiction existing alongside State jurisdictions, which we derive from the Constitution of the United States, has for us become further complicated by the provisions, peculiar to our Constitution, by which State courts may be invested with federal jurisdiction. The result is a notoriously technical and difficult branch of Australian constitutional law. However, for the purpose of deciding the present question I do not think it necessary that I enter far into its complexities. If the Court of Petty Sessions of the Australian Capital Territory is a federal court within the meaning of s. 71, a magistrate appointed to it must be appointed pursuant to s. 72, that is during good behaviour. But if that Court is not a federal court, then it seems to me s. 72 has no application and there is no limitation upon the power of the Parliament to provide for, or authorize the Crown to provide for, the magistrate holding his office on some different terms and tenure. The answer is, I think, that s. 71 is concerned with the Commonwealth considered in its federal aspect, and with courts created or invested with federal jurisdiction in that sense, and is not applicable to courts created for territories. The very words of the section lead to that conclusion, and it is in accordance with what has been said by this Court on several occasions. I do not myself find any difficulty in regarding the Australian Capital Territory as being outside the federal system; for the Parliament's power with respect to it is plenary, whereas a limitation and division of sovereign legislative authority is of the essence of federalism. It is worth noticing here that in the United States the distinction between "constitutional" courts, exercising the judicial power of the United States, and "legislative" courts outside Article III of the Constitution was enunciated by Marshall C.J. in 1828: American Insurance Co. v. Canter [1] . But the Supreme Court has not, over the years, adhered consistently to one view as to the status of the courts of the District of Columbia: see e.g. Ex parte Bakelite Corporation [1] ; O'Donoghue v. United States [2] ; and because of marked differences between Art. III of the American Constitution and Chap. III in our Constitution, I have not found the reasoning of American cases directly helpful to a decision in this case.

1. (1828) 1 Pet. 511 [7 Law. Ed. 242]. 2. (1929) 279 U.S. 438 cf. [73 Law. Ed. 789]. 3. (1933) 289 U.S. 516 [77 Law. Ed. 1356].

The form of the proceedings before us makes it necessary to consider the further question of the nature and extent of the jurisdiction of this Court in relation to the territories. The question arises primarily because of the sweeping generalization in the judgment of Griffith C.J. in R. v. Bernasconi [3] , that the power conferred by s. 122 is not restricted by Chap. III of the Constitution, that that Chapter has no application to territories. The actual decision in Bernasconi's Case was that s. 80 of the Constitution did not apply in cases arising under what Griffith C.J. there called "the local laws of a territory, whether enacted by the Commonwealth Parliament or by a subordinate legislature set up by it" [4] . Recognition of the decision does not necessarily involve acceptance of the statement that Chap. III as a whole has no application to the territories. The offence with which Bernasconi was charged was, it is true, an indictable offence under the Queensland Criminal Code, which had been adopted by local ordinance as the law of New Guinea. But the trial, held as it was in accordance with the procedure laid down by the ordinance, was not a "trial on indictment" within the meaning of s. 80 as it has been since then interpreted. It may be thought unwise now to unsettle in any way the reasoning of the judgments in Bernasconi's Case, and in Buchanan's Case [5] , which preceded it. Those cases have stood for over half a century, notwithstanding some judicial expressions of misgiving in recent times. Nevertheless and although, because of the eminence of those who gave the judgments and of their close knowledge of the genesis of phrases of the Constitution, it may seem boldly unbecoming to say so, I do not think that the conclusion that Chap. III, as a whole, can be put on one side as inapplicable to matters arising in the territories is warranted by its actual language. Some of its provisions seem to me to have a wide and general application. In particular it is, in my view, proper to regard ss. 73, 75 and 76 as describing not only the position of this Court in its capacity as the "Federal Supreme Court" exercising the judicial power of the Commonwealth in the federal system, but as also stating its jurisdiction as the highest Australian court having authority to declare and enforce the law, that is the whole law of Australia, wherever it is binding, whether in States, territories, or upon ships at sea, and whatever in a particular case is the source of the obligation it imposes.

1. (1915) 19 C.L.R. 629, at p. 635. 2. (1915) 19 C.L.R., at p. 634. 3. (1913) 16 C.L.R. 315.

The phrase "laws made by the Parliament" seems to be less extensive in denotation than "laws of the Commonwealth": see R. v. Kidman [1] . But, however that may be, I see no ground for refusing the name "a law of the Commonwealth" to any law validly made by or under the authority of the Commonwealth Parliament wherever that law operates.

I have not overlooked the passage in the judgment of the Privy Council in the Boilermakers' Case [2] , where Viscount Simonds spoke of Chap. III as "exhaustively describing the federal judicature and its functions in reference only to the federal system of which the territories do not form part", and said: "There appears to be no reason why the Parliament, having plenary power under s. 122, should not invest the High Court or any other court with appellate jurisdiction from the courts of the territories". If this means that in the exercise of its plenary power to legislate for the territories the Parliament can enlarge the jurisdiction of this Court in any way it chooses, regardless of the provisions of ss. 73, 75 and 76 of the Constitution, then it seems to me, with respect, that this statement probably goes too far. But in terms his Lordship was referring only to appellate jurisdiction; and in Porter v. The King; Ex parte Yee [3] , it had been decided by this Court that the Parliament could confer upon the Court jurisdiction to entertain appeals from territorial courts. This was a majority decision (Isaacs, Higgins, Rich and Starke JJ.). Knox C.J. and Gavan Duffy J. in a joint judgment dissented, as they considered that "the status and duties of this Court are explicitly defined in Chap. III of the Constitution; and an attempt to alter that status or to add to those duties is not only an attempt to do that which is not authorized by s. 122, but is an attempt to do that which is implicitly forbidden by the Constitution" [4] . That view did not prevail. The decision of the majority was that by virtue of s. 122 the Parliament could give to this Court an appellate jurisdiction beyond that explicitly conferred by s. 73. But, because Higgins J. expressly limited his judgment to the matter of appellate jurisdiction, there was no majority for the view that this Court can be given any original jurisdiction beyond that conferred by s. 75 or authorized by s. 76 to be conferred.

1. [1957] A.C. 288, at p. 320; (1957) 95 C.L.R. 529, at p. 545. 2. (1926) 37 C.L.R. 432. 3. (1926) 37 C.L.R., at p. 439.

The distinction between appellate and original jurisdiction may seem slender if it be based on nothing more than the differences in language between s. 73 and ss. 75 and 76; for in each case the language of the grant of jurisdiction in the cases mentioned may seem to carry a negative implication. But there is a difference in language, slight though it is, and it has been thought sufficient to permit a distinction similar to that which has been held to exist in the United States and there described as a "workable anomaly". It can be regarded as founded upon national needs as well as on mere comparisons of language. The special position and function of this Court under the Constitution require that it should be able to declare the law for all courts that are within the governance of Australia. However the existence of the Court's appellate and supervisory jurisdiction in relation to territorial courts is to be justified and explained, it stands now as a long and firmly established principle of Australian constitutional law, not to be disturbed. But considerations that apply to appellate jurisdiction do not apply to the original jurisdiction of this Court. I do not think that the interests of a supposedly logical consistency compel us to say that the Parliament can give the Court original jurisdiction in matters other than those specified in s. 76. If we had to decide that question here, I would be inclined to the view that that list is exhaustive. But the question does not, I think, have to be decided in this case.

As I do not feel able to accept the broad proposition in Bernasconi's Case [1] that Chap. III does not apply to the territories, it is unnecessary for me to consider in any detail the reasoning in Waters v. The Commonwealth [2] . If I be wrong in not accepting that proposition, then the decision in Waters' Case may be inescapable. This, however, merely reinforces for me the conclusion that the power to make laws for the territories under s. 122 is not independent of and uncontrolled by other provisions of the Constitution. In his judgment in Lamshed v. Lake [3] Dixon C.J., repeating the passage in his judgment in Australian National Airways Pty. Ltd. v. The Commonwealth [4] , to which I have already referred, said: "For my part, I have always found it hard to see why s. 122 should be disjoined from the rest of the Constitution and I do not think that Buchanan's Case and Bernasconi's Case really meant such a disjunction" [1] . I respectfully and whole-heartedly agree. The Constitution must be read as a whole, an instrument of government for a nation and its people, the Commonwealth of Australia.

1. (1915) 19 C.L.R. 629. 2. (1951) 82 C.L.R. 188. 3. (1958) 99 C.L.R. 132. 4. (1945) 71 C.L.R., at p. 85. 5. (1958) 99 C.L.R., at p. 145.

Of other matters incidentally discussed in the argument I would say only that, in my view, when the Parliament makes a law intended to be of general application throughout the whole of the Commonwealth and its territories it does so in the exercise of all powers it thereunto enabling. If the law be within power under s. 51 it will, by the combined effect of that section and of s. 122, be law in and for the States and the territories alike. If it be invalid as beyond s. 51 then, in the absence of a clear indication that it should nevertheless apply in the territories, it will I consider fail altogether of effect. Whether a particular Act is intended to extend to the territories, or to a particular territory, as well as to the States then becomes a question of construction to be resolved either by its express provisions or by its intendment as revealed by its scope and nature.

The source of power to make laws for the Australian Capital Territory is s. 122 of the Constitution. This is a plenary power; but, in some cases and for some purposes, s. 52 (i.) may be an additional source of power.

Courts created for a territory pursuant to s. 122 are not federal courts. It is therefore not necessary that judges or magistrates appointed to them should have the tenure prescribed by s. 72.

The Parliament can by legislation pursuant to s. 122 confer upon the High Court an appellate jurisdiction from territorial courts.

But the provisions of ss. 75 and 76 define, probably exhaustively, the original jurisdiction of the High Court. Those provisions apply to proceedings arising in the territories.

It follows, therefore, that in my opinion this Court has jurisdiction to entertain the case stated and that the questions asked should be answered (1) No; (2) Yes.

This is a case stated under s. 13 of the Australian Capital Territory Supreme Court Act. The question raised by it is whether the provisions of s. 72 of the Constitution apply to the appointment of a stipendiary magistrate to exercise jurisdiction in the Australian Capital Territory under the Court of Petty Sessions Ordinance 1930-1961.

Before dealing with that question a preliminary matter requires consideration. Section 11 (a) of the Australian Capital Territory Supreme Court Act gives the Supreme Court of the Territory constituted under that Act the same original jurisdiction, both civil and criminal, in relation to the Territory as the Supreme Court of New South Wales had in relation to that State immediately before 1st January 1911. Its jurisdiction therefore extends to a wide variety of matters. Section 13 provides that a judge of the Supreme Court of the Territory may state any case or reserve any question for the consideration of the Full Court of the High Court or may direct any case or question to be argued before that Court which shall thereupon have power to hear and determine the case or question. In determining such a case or question this Court would be exercising an original and not an appellate jurisdiction and this raises the question whether the constitutional powers of the Parliament to make laws for the government of the Capital Territory empower it to extend the original jurisdiction of the High Court so as to enable it to hear and determine matters arising in the Territory in addition to those matters which are enumerated in ss. 75 and 76 of the Constitution.

It has been held that under the power given by s. 122 of the Constitution to make laws for the government of a Territory the Parliament may confer upon this Court appellate jurisdiction to hear appeals from a court established in that Territory notwithstanding the fact that the court so established is not a federal court or a court exercising federal jurisdiction within the meaning of Chap. III of the Constitution: Porter v. The King; Ex parte Yee [1] ; Chow Hung Ching v. The King [2] . See also the Boilermakers' Case [3] . But, as Dixon J. (as he then was) pointed out in Federal Capital Commission v. Laristan Building and Investment Co. Pty. Ltd. [4] , three of the six members of the Court in Porter's Case [1] considered that ss. 75 and 76 limited the power of the Parliament to confer upon the High Court original jurisdiction in respect of matters arising in a territory. The justification for drawing such a distinction between the power under s. 122 to confer upon the High Court jurisdiction to hear appeals from territorial courts and the power under that section to confer upon the Court original jurisdiction over matters arising in a territory may, I think, be found in the passage in the judgment of Higgins J. in Porter's Case [5] , which was quoted by Dixon J. in the Laristan Case [6] .

1. (1926) 37 C.L.R. 432. 2. (1948) 77 C.L.R. 449. 3. (1956) 94 C.L.R. 254, at p. 290; [1957] A.C. 288, at p. 320; (1957) 95 C.L.R. 529, at p. 545. 4. (1929) 42 C.L.R. 582, at p. 585. 5. (1926) 37 C.L.R. 432. 6. (1926) 37 C.L.R., at p. 447. 7. (1929) 42 C.L.R., at p. 584.

In Waters v. The Commonwealth [1] Fullagar J. took the view that s. 75 of the Constitution did not of its own force confer original jurisdiction upon the High Court in or with respect to Territories, basing his opinion upon R. v. Bernasconi [2] . He expressed no opinion, however, upon the question whether under s. 122 original jurisdiction might be conferred and, if so, whether the power to do so is limited to the matters to which ss. 75 and 76 refer. Whether his Honour's conclusion as to the operation of s. 75 was correct is not in point in the present case since the Parliament has, by s. 13 of the Australian Capital Territory Supreme Court Act, purported to invest this Court with original jurisdiction in respect of matters arising in the Capital Territory whether or not they are matters of the kind mentioned in ss. 75 and 76. Having regard to what was said in the majority judgment in Re Judiciary and Navigation Acts [3] and notwithstanding the broad statements made by Griffith C.J. in Bernasconi's Case [4] that Chap. III of the Constitution has no application to territories and that "the power conferred by s. 122 is not restricted by the provisions of Chap. III" [4] , I am disposed to think that the Parliament in the exercise of its powers under s. 122 cannot extend the original jurisdiction of the High Court so as to enable it to deal with matters other than those enumerated in ss. 75 and 76. I am of opinion, however, that it can empower the Court to exercise original jurisdiction with respect to territories provided that that jurisdiction is limited to the matters of which those sections speak. One such matter is to be found in s. 76 (i.) - "any matter arising under this Constitution or involving its interpretation" - and it is plain that the matter raised in the present proceedings is of this description since the questions posed by the stated case involve the interpretation of the Constitution. If s. 13 of the Australian Capital Territory Supreme Court Act is wider in its terms than is warranted by the constitutional power to make laws for the government of the Territory, it can and should, I think, be read down by the aid of s. 15A of the Acts Interpretation Act so that it may operate to the extent authorized by ss. 75 and 76.

1. (1951) 82 C.L.R. 188. 2. (1915) 19 C.L.R. 629. 3. (1921) 29 C.L.R. 257. 4. (1915) 19 C.L.R., at p. 635. 5. (1915) 19 C.L.R., at p. 635.

What I have said proceeds upon the assumption that s. 122 provides the source of the power of the Parliament to legislate generally for the government of the Capital Territory as it does for the other territories of the Commonwealth. If that view is correct, there is no doubt that the legislative powers conferred by that section enable the Parliament to establish in the Capital Territory territorial courts which are not federal courts within the meaning of s. 71 of the Constitution and are not therefore amongst "the other Courts" to which s. 72 refers. For the prosecutor, however, it has been submitted that while this is so as to territories other than the Australian Capital Territory, the power to make laws for the government of the Capital Territory is a more limited one. That Territory differs in kind from the other territories of the Commonwealth in that it is not a mere dependency of the Commonwealth but is the area within which the seat of government of the Commonwealth is to be found and is, for that reason, an integral part of the federal system. The power to legislate for the government of that territory is, it is contended, to be found in s. 52 (i.) of the Constitution which gives the Parliament, subject to the Constitution, the exclusive power "to make laws for the peace, order, and good government of the Commonwealth with respect to the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes". Whatever may have been decided as to the width of the power, under s. 122, to make laws for the government of territories other than the Capital Territory, there is no sound ground, so the argument runs, for saying that the provisions of Chap. III have no application to the law-making powers conferred by s. 52 (i.). In support of these submissions reliance is placed upon the judgment of Dixon J. (as he then was) in the Laristan Case [1] in which his Honour, after saying "Section 122 is dealing, at least primarily, with Territories which do not form part of the Federal system" [2] , appears to have taken the view that the source of power to legislate for the Capital Territory is s. 52 (i.) and that for that reason the decisions that Chap. III did not extend to territories governed under s. 122 had no application in the case of the Capital Territory. And in Australian National Airways Pty. Ltd. v. The Commonwealth [3] , his Honour said, "It is then said that s. 122 is the only other relevant legislative power in relation to Territories, apart from the seat of government, which is, of course, governed by s. 52 (i.)" [4] . If his Honour's view was that the words "the seat of government" in s. 52 (i.) are synonymous with the territory within which the Constitution, by s. 125, required the seat of government to be established and that s. 52 (i.) therefore provides the source of the power of the Parliament to legislate generally for the government of that territory, I cannot, with all respect, agree. The territories mentioned in s. 122 include any territory surrendered by any State to the Commonwealth and accepted by the Commonwealth and the Capital Territory is plainly such a territory. It was surrendered by the Parliament of New South Wales pursuant to the powers conferred upon it by s. 111 of the Constitution and its surrender was accepted by the Commonwealth. A power to make laws "for the peace, order, and good government of the Commonwealth with respect to" certain matters including "the seat of government of the Commonwealth" does not, I think, include a power to make laws for the general government of the territory within which the seat of government is established. That power is to be found in s. 122.

1. (1929) 42 C.L.R. 582. 2. (1929) 42 C.L.R., at p. 585. 3. (1945) 71 C.L.R. 29. 4. (1945) 71 C.L.R. at p. 83.

In these circumstances the authorities make it plain that the provisions of s. 72 had no application to the appointment of the respondent magistrate.

I would answer the questions as follows: (1) No; (2) Yes.