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Title

Ch1 The Parliament and the role of the House / THE COURTS AND PARLIAMENT / Constitutional provisions

Database

House Practice

Date

01-05-2005

Source

House of Reps

Parl No.

41

Chapter

The Parliament and the role of the House

Chapter No.

Chapter 01

Page

18

Section No.

 

System Id

procedural/practcer/chapter01.17.doc


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Ch1 The Parliament and the role of the House / THE COURTS AND PARLIAMENT / Constitutional provisions



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House of Representatives                                Ch 1                                                 p 18

 

The Parliament and the role of the House / THE COURTS AND PARLIAMENT

 

Constitutional provisions

With the exception of the High Court which is established by the Constitution, federal courts depend on Parliament for their creation. 1 The Parliament may provide for the appointment of justices to the High Court additional to the minimum of a Chief Justice and two other justices. 2 As prescribed by Parliament, the High Court now consists of a Chief Justice and six other justices. 3

The appointment of justices of the High Court and of other courts created by the Parliament is made by the Governor-General in Council. Justices of the High Court may remain in office until they attain the age of 70 years. The maximum age for justices of any court created by the Parliament is 70 years, although the Parliament may legislate to reduce this maximum. 4 Justices may only be removed from office 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 5 (for discussion of the meaning of ‘misbehaviour’ and ‘incapacity’ see p. 20). A joint address under this section may originate in either House although Quick and Garran suggests that it would be desirable for the House of Representatives to take the initiative. 6 There is no provision for appeal against removal. 7 There has been no case in the Commonwealth Parliament of an attempt to remove a justice of the High Court or other federal court. However, the conduct of a judge has been investigated by Senate committees and a Parliamentary Commission of Inquiry ( see below ). It may be said that, in such matters, as in cases of an alleged breach of parliamentary privilege or contempt, the Parliament may engage in a type of judicial procedure.

The appellate jurisdiction (i.e. the hearing and determining of appeals) of the High Court is laid down by the Constitution but is subject to such exceptions and regulations as the Parliament prescribes, 8 providing that:

. . . 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. 9

The Parliament may make laws limiting the matters in which leave of appeal to Her Majesty in Council (the Privy Council) may be asked. 10 Laws have been enacted to limit appeals to the Privy Council from the High Court 11 and to exclude appeals from other federal courts and the Supreme Courts of Territories. 12 Special leave of appeal to the Privy Council from a decision of the High Court may not be asked in any matter except where the decision of the High Court was given in a proceeding that was commenced in a court before the date of commencement of the Privy Council (Appeals from the High Court) Act on 8 July 1975, other than an inter se matter (as provided by section 74). The possibility of such an appeal has been described as ‘a possibility so remote as to be a practical impossibility’. 13 Section 11 of the Australia Act 1986 provided for the termination of appeals to the Privy Council from all ‘Australian courts’ defined as any court other than the High Court.

The Constitution confers original jurisdiction on the High Court in respect of certain matters 14 with which the Parliament may not interfere other than by definition of jurisdiction. 15 The Parliament may confer additional original jurisdiction on the High Court 16 and has done so in respect of ‘all matters arising under the Constitution or involving its interpretation’ and ‘trials of indictable offences against the laws of the Commonwealth’. 17

Sections 77-80 of the Constitution provide Parliament with power to:

  • define the jurisdiction of the federal courts (other than the High Court);

  • define the extent to which the jurisdiction of any federal court (including the High Court) shall be exclusive of the jurisdiction of State courts;

  • invest any State court with federal jurisdiction;

  • make laws conferring rights to proceed against the Commonwealth or a State;

  • prescribe the number of judges to exercise the federal jurisdiction of any court; and

  • prescribe the place of any trial against any law of the Commonwealth where the offence was not committed within a State.


    • E.g. Federal Court of Australia, Family Court of Australia, Federal Magistrates Court.



    Constitution, s. 71.



    Judiciary Act 1903 , s. 4.



    Constitution, s. 72. Constitution alteration in 1977, Constitution Alteration (Retirement of Judges) Act 1977 .



    Constitution, s. 72. See also Odgers, 11th edn, pp. 507-34.



    Quick and Garran , p. 731.



    Quick and Garran , p. 730.



    E.g. Commonwealth Places (Application of Laws) Act 1970 , s. 16; Judiciary Act 1903 , s. 35.



    Constitution, s. 73.



    Constitution, s. 74.



    Privy Council (Limitation of Appeals) Act 1968 , s. 3 (Act No. 36 of 1968); Privy Council (Appeals from the High Court) Act 1975 , s. 3 (Act No. 33 of 1975).



    Privy Council (Limitation of Appeals) Act 1968 , s. 4.



    P. Hanks and D. Cass, Australian constitutional law , 6th edn, Butterworths, 1999, pp. 314-5.



    Constitution, s. 75.



    Constitution, s. 77; e.g. Extradition (Foreign States) Act 1966 , s. 25 (Act No. 76 of 1966).



    Constitution, s. 76.



    Judiciary Act 1903 , s. 30.