Federal and Territorial Courts
| Author | C. K. Comans |
| DOI | 10.1177/0067205X7100400202 |
| Published date | 01 June 1971 |
| Date | 01 June 1971 |
| Subject Matter | Article |
FEDERAL AND TERRITORIAL COURTS
By
C.
K.
CoMANS·
The
decision
of
the
High
Court
in
Capital T.V. and Appliances Pty
Ltd
v. Falconer!
makes
afurther contribution
to
the
step by step
effort of the Court to develop acoherent doctrine with respect
to
the
place
of
the
Commonwealth Territories in
the
federal system.
It
goes
some way towards .answering
the
questions
that
arise with respect
to
the
jurisdiction
that
may
be
exercised by territorial courts on· the
one hand, and on the
other
hand, the.jurisdiction
that
may
be .exer-
cised
by
federal courts,
and
State
courts invested with federal juris-
diction, in respect of matters having arelationship with aTerritory.
The
matters decided were simply
that
the·
Supreme
Court
of
the
Australian Capital Territory is
not
afederal court,
but
is aterritorial
court
established by virtue
of
the
powers
of
the· Parliament
under
section
122
of
the Constitution,
nor
is
it
a
court
exercising federal
jurisdiction.
The
Court
did
not
find
it
necessary
to
decide whether
the
tenure
of
office
of
the· judges
of
the
Supreme Court met· the
requirements
of
section 72
of
the
Constitution with respect to federal
courts.
It
held
that, even assuming
that
those requirements
were
met,
the
Supreme Court·was
not
afederal court. This conclusion was based
on.
the
intenti~n
of
Parliament,
as
appearing from .
the
words used
to create the Court
and
the scope of the· jurisdiction conferred
on
it.
Further,
it
was.
held
that
the only courts "exercising federal· juris-
diction·', apart from federal .courts,
are·
State courts.invested with
.federal jurisdiction.
Menzies J. and,
as
the
writer understands his judgment, Gibbs J.
also,
were
of
the
opinion that there was nothing in
the·
jurisdiction
of
the
Court
that
made
it
impossible for
it
to
be
afederal court, since
afederal
court
can
be
given jurisdiction by
an
exercise
of
power
under
section 122,
and
Walsh J. proceeded
on
.the assumption
that
this proposition ,(With which
he
seemed inclined"
to
agree) was true.
In
their view, the Court was not afederal court simply because Par-
liament
had
intended
to
create
it
under
section
122
of
the Constitution
.
and
could validly
do
so. Gibbs J. seems
to
have considered
that
the
whole
of
the
jurisdiction
of
the
Court
was such
that
it
could
be
con-
:ferred only
by
virtue of section 122.
He
may
have considered that
*O.B.E.~
LL.M.(Melb.),
of
the Victorian Bar Second Parliamentary Counsel,
Commonwealth
of
Australia.
1[1971] A.L.R. 385; 4S
A.LJ.R.
186.
218
1971] Federal and Territorial Courts 219
afederal court·must have some jurisdiction capable
of
falling within
section
75
or
section 76.
The
view
of
Menzies J. seems to produce.the
unprecedented result that the effect
of
an
enactment
of
the Parliam.ent
may depend
on
which of two available. powers
the
Parliament
has
intended
to
exercise.
On
the other hand, McTiernan J. appears
to
have
thought
that
the
jurisdiction
of
the Court conferred under s.
122
precluded the possi-
bility
of
its being afederal court.
The
position.
of
Barwick
e.J.,
Windeyer J.
and
Owen J.
on
this matter is
not
clear. Barwick C.J.2
gave as
the
reason for his decision simply
that
Spratt v. Hermei3'
bad
decided
that
the
Court of Petty Sessions of the Territory
Was
not
a
federal court
and
that he could find
no
relevant ground for distinction
between the Court.of Petty Sessions and the Supreme Court.
One
would
think:
that
the contention advanced in the Capital·T.V.
case
that
the
judges of the Supreme Court held office in accordance with
the
require-
ments
of
section
72
raised apoint of distinction
that
required considera-
tion
of
the question whether the. jurisdiction of.
the
Supreme
Court
was
such that
it
could
not
be
afederal court. The Chief Justice did further
elaborate his views as
to
the nature of federal judicial power,
and
these
views will
be
examined below.
It
seems
to
be
implicit
in
the decision
that
acou·rt· created
by
the
Parliament is either afederal. court .or aterritorial ·court;
it
cannot
be
both. However,. some of the judgments give support
to
the
proposition
that, whilst the jurisdiction of aterritorial
court
must
be
jurisdiction
in
relation
to.
aTerritory, it can include jurisdiction which overlaps with
existing
or
potential
jurisdiction,in
relation
to
the
Territories,. of federal
courts
and
of State courts exercising. federal Jurisdiction.
The
extent
and
significance of this overlap will be examined below.
The
Chief
Ju~tice4
restated his. view (rejected
by
Menzies J.,
in
Spratt
v.Hermes),5
that
section 51
of
the Constitution
is
not
asource
of
power
to
make laws operating
in
the Territories.
The
other
justices
expressed
no
opinion
on
this question. However,
the
validity
of
the
proposition may well
be
considered
to
have
been
implicit
in
the
joint
judgment of the
Court
in Tau
v._
The Commonwealth and others.6
All.
the
judges
see~
to
have
understood section 11
of
the
Australian
Capital Territory Supreme Court Act 1933-1966
(Cth)
as conferring
.jurisdiction only
"in
relation
to
the Territory". They·
did
not
avert
to
2[1971)
A.L.R~385,
388.
3(1965) 114 C.L.R. 226.
4[1971] A.L.R. 385,389.
Ii
114 C.L.R. 226,270.
6(1969) 119 C.L.R. 554.
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