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Chapter III. The Judicature.
71. Judicial power and Courts
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. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.
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Yah well, hey now... here's a thought... ya know, let's have some judges eh; in a Federal Supreme Court, to be called the High Court of Australia, and other federal courts.
Of all of the sections of the Australian Constitution, this is the one that seems the most like they were just phoning it in.
Although having said this, there might have been a reason for naming the highest court in the land the "High Court" of Australia for it was the High Court at Westminster Hall which tried King Charles I and found him guilty of tyranny. If parliament is meant to have an independent bent then having sent job job its meant to sit in judgement, at least recalls this event of history.
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72. Judges' appointment, tenure and remuneration
The Justices of the High Court and of the other courts created by the Parliament:
- shall be appointed by the Governor-General in Council;
- shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;
- shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.
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Misbehaviour in Section 72 is pretty limited. Basically it amounts to things like non-attendance, neglect of or refusal to perform duties, or an outrageous breach civil or criminal law of such a quality as to indicate that the incumbent is unfit to exercise the office.
It is really really hard to remove judges due to an outrage of good behaviour. I do not think that a matter of parking fines, drunkenness, petty theft et cetera, would be enough to remove a judge. An outrage of good behaviour would have to be so serious that it would have to be found by proof, in appropriate manner, to the Parliament, and in formal proceedings where the offender has been given proper notice and opportunity to defend themself.
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The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.
The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court.
Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years.
The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment.
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Unlike the United States where the empanelment of a Supreme Court Justice is for life, the Australian Constitution was altered by referendum in 1977 to impose a limit on absolute dodderiness.
To put this in context, when the old age pension was introduced in 1911, it was assumed that most people would die before they got to the age of 65 and hence, not be eligible to receive it. 70 years old, therefore, was at the time, positively ancient. Even now with better health care, most people will retire from work in their 60s or 70s, though that may change in future.
Since High Court decisions outlive Justices, it makes sense that they should at least be young enough to experience some degree of the effects of the decisions that they hand down and hopefully, this should be enough to temper those decisions.
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A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor-General.
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It may seem strange as to why a resignation notice of a Justice of the High Court would need to be hand delivered to the Governor-General but I think that I understand the rationale. The rest of Section 72 is at pains to separate the legislative and judicial power of the Commonwealth and it makes sense that the structure of the Constitution itself, which not only explains a direct limitation upon the power of judicial removal, should also create a difficulty of the judiciary to remove themselves.
Remember, the desire of Section 72 is to protect and ringfence the judiciary as the interpreters of the Constitution; so in order to do that, it creates a deliberately difficult mechanism of self-removal to reflect the gravity of the situation.
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Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions.
A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation.
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Hooray. We have a grandfather clause and an equivalence clause. This is because unless a law says a thing (which includes the Constitution) then is it really a thing at law?
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73. Appellate jurisdiction of High Court
The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences:
- of any Justice or Justices exercising the original jurisdiction of the High Court;
- of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or
- of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council;
- of the Inter-State Commission, but as to questions of law only;
- and the judgment of the High Court in all such cases shall be final and conclusive.
But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.
Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.
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Up until the Australia Act 1986, the High Court of Australia was the second to last appellate jurisdiction of the nation. Section 73 provides that it can hear appeals from lesser courts from any other court in the country. If you have a parking fine which you would like to dispute and you have infinitely deep pockets and you can fight the matter on matters of law, then you can take your parking fine dispute all the way to the High Court of Australia. Though at that point, you may as well have just paid the fine.
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74. Appeal to Queen in Council
No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.
The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure.
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As far as I am aware, the last vestiges of Australian citizens being able to appeal the decisions of courts in Australia, was extinguished with the passage of the Australia Act:
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/num_act/aa1986114/s11.html
Termination of appeals to Her Majesty in Council
11. (1) Subject to subsection (4) below, no appeal to Her Majesty in Council lies or shall be brought, whether by leave or special leave of any court or of Her Majesty in Council or otherwise, and whether by virtue of any Act of the Parliament of the United Kingdom, the Royal Prerogative or otherwise, from or in respect of any decision of an Australian court.
- Section 11, Australia Act 1986
Although this act can be amended, it does by operation strike off Section 74 of the Constitution.
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75. Original jurisdiction of High Court
In all matters:
- arising under any treaty;
- affecting consuls or other representatives of other countries;
- in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
- between States, or between residents of different States, or between a State and a resident of another State;
- in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.
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Section 75 and Section 76 are taken together for the purposes of this discussion.
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76. Additional original jurisdiction
The Parliament may make laws conferring original jurisdiction on the High Court in any matter:
- arising under this Constitution, or involving its interpretation;
- arising under any laws made by the Parliament;
- of Admiralty and maritime jurisdiction;
- relating to the same subject-matter claimed under the laws of different States.
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One of the most famous cases in the Supreme Court of the United States is the case of Marbury v Madison [1803] in which...
https://supreme.justia.com/cases/federal/us/5/137/
It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.
- Marbury v. Madison, 5 U.S. 137 (1803)
In practice this is one of those occasions where the constitutional arrangements of the United States is not contained within the Constitution. The American legal system is awash with cases, especially dealing with civic and civil rights, where it is the court that has decided what the state of play is and what those rights are. However, Marbury v Madison (1803) is one of the few cases where the court claimed a right for itself. It has to be said that this was a very very bootstrappy decision; which has echoed down through the ages as not only being accepted but also as useful.
The sweaty men confined in the basements of Town Halls in Australia, arguing about what should go into the Australian Constitution some 90 years later, not only saw the utility in having the High Court have original jurisdiction to say "what the law is" but also thought to codify it such that it couldn't be attacked unless through referendum.
In America, this right of the court to say what the law is could in theory be overturned by another sitting of that same court. In Australia, that's impossible.
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77. Power to define jurisdiction
With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
- defining the jurisdiction of any federal court other than the High Court;
- defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;
- investing any court of a State with federal jurisdiction.
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In 1901 the Commonwealth of Australia started off with exactly one court - the High Court. It stands to reason that eventually the Commonwealth would think about specialist court to deal with specific branches of law. Family law, Industrial Relations disputes and arbitration, the differences between civil and criminal law, appeals at law with regards the interpretation of law, taxation law and the law of contracts. The list goes on and on.
There is also the tension that the newly minted Commonwealth of Australia would have to fight disputes between what its responsibilities and jurisdictions were, as well as having to be the default arbiter between the states within the Commonwealth, for at the time of federation the six states were frenemies and arguably they still are.
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78. Proceedings against Commonwealth or State
The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.
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It makes sense that if the Parliament has the power to define the jurisdiction of the Courts which are created, then it also has the power to confer rights to proceed against the Commonwealth or a State in respect of matters within the limits of said judicial power.
The most obvious reading of this says that a person who has been brought before the courts, should have some legal rights in the proceedings. It would be ridiculous if someone brought before a court had no legal right to proceed against the Commonwealth or State which brought them there.
However since 1901, the march of technology is such that there have been things invented which were not yet thought of. Would an audio recording of someone be admissible as evidence? What about a video recording? What about a recording made without someone's knowledge? What kind of documentation is allowable? Would a scanned copy be admissible as evidence? What about a document which never existed as a physical copy? Just the realm of what is and is not acceptable evidence, would need to be defined in the 121 years since the Constitution was written.
In principle, this is why the Constitution does not have a Bill of Rights attached. The sweaty men in basements of Town Halls in the 1890s, obviously had the forethought that the world would change and perhaps beyond what they could even imagine. Electricity and the Automobile are barely a thing in 1901 but after the First World War, the world would change dramatically and change again and again.
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79. Number of judges
The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.
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Does a thing need to by heard by one judge? A panel? The scary consequence which comes as a result of Section 79 is that Parliament has the power to prescribe that a case could be heard by zero judges. In principle, what this means is that it is possible and legal for the Commonwealth to invent an automatic court with no judge at all because zero judges is still a number of judges.
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80. Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
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The 7th Amendment to the US Constitution specifies a trial by jury under certain conditions. The United States it would appear, thought of this as an afterthought; which is why it sits as an amendment which has been tack onto the end and is not part of the body of the document. The framers of the Australian Constitution, who did not have such a strange conception of rights (because an Englishman is free to do whatever he likes unless hedged in by law), did not include this as a right to be attached but rather, a specific regulation.
In practice, most of the courts which come about as a result of Sections 77-78, are not criminal cases and as such are not offences 'against' the law of the Commonwealth. Juries are not appointed to Family Law or Industrial Law cases most criminal cases are actually tried within the various state and territory courts and under the various Crimes Acts of those states and territories.
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