Territory Courts and Federal Jurisdiction

AuthorStephen McDonald
Published date01 March 2005
Date01 March 2005
Subject MatterArticle
Stephen McDonald
The early cases on the Australian territories approached them not as constituent parts
of the Commonwealth, but as subordinate to it, with the result that the territories
power, s 122 of the Constitution,1 was held to be unaffected by other constitutional
provisions.2 Most strikingly, Ch III of the Constitution was wholly inapplicable to the
courts and judicial proceedings of the territories. Even the important doctrine that Ch
III is exhaustive of the judicial power of the Commonwealth did not restrict the
Parliament's power to confer appellate jurisdiction on the High Court under s 122.3
In more recent cases, majorities of the High Court have adopted a more cohesive
approach which considers s 122 in the context of the Commonwealth Constitution as a
whole.4 The view that the territories are disjoined from the Commonwealth is no
longer tenable, if it ever was.
The courts and the judicial power in the territories must now be reconsidered in the
context of Commonwealth constitutional arrangements, including an integrated
judicial system under the supervision of the High Court, and a unified Australian
common law. As Gummow J has said:
The entrusting by Ch III, in particular by s 73, to this Court of the superintendence of the
whole of the Australian judicial structure, its position as ultimate interpreter of the
common law of Australia and as guardian of the Constitution are undermined, if not
contradicted, by acceptance, as mandated by the Constitution, of the proposition that it is
B Com, LLB (Hons) (Adelaide). This article is based on a dissertation submitted for the
Honours degree of Bachelor of Laws at the University of Adelaide.
1 Section 122 provides:
Government of territories
122. The Parliament may make laws for the government of any territory surrendered by
any State to and accepted by the Commonwealth, or of any territory placed by the
Queen under the authority of and accepted by the Commonwealth, or otherwise
acquired by the Commonwealth, and may allow the representation of such territory
in either House of the Parliament to the extent and on the terms which it thinks fit.
2 Buchanan v The Commonwealth (1913) 16 CLR 315; R v Bernasconi (1915) 19 CLR 629; Mitchell
v Barker (1918) 24 CLR 365; Waters v The Commonwealth (1951) 82 CLR 188.
3 Porter v The King; Ex parte Yee (1926) 37 CLR 432.
4 Lamshed v Lake (1958) 99 CLR 132; Capital Duplicators Pty Ltd v Australian Capital Territory
(1992) 177 CLR 248; Kruger v The Commonwealth (1996) 190 CLR 1; Newcrest Mining (WA) Ltd
v The Commonwealth (1997) 190 CLR 513; Northern Territory v GPAO (1999) 196 CLR 553.
58 Federal Law Review Volume 33
wholly within the power of the Parliament to grant or withhold any right of appeal from
a territorial court to this Court.5
The High Court is the most 'national' of the institutions created by the Constitution,
so it is natural that the re-integration of the territories should begin with the judicial
power and, in particular, with the relationship of territory courts to the High Court.
This article aims to explain the application of Ch III to the territories and the
implications of an approach which sees territory courts as among the 'other courts'
vested with federal jurisdiction, contemplated by s 71. Part II considers the Australian
judicial system and the importance of the High Court's role in unifying the Australian
States and territories. Part III examines the appellate jurisdiction of the High Court
under s 73 of the Constitution, arguing that territory courts should be brought within
the integrated judicial system which Ch III creates. If Australian law is to be applied
with consistency throughout the Commonwealth, it is essential that a general
constitutional appeal be available from the decisions of territory courts to the High
Court. Part IV is concerned with the relationship between territory courts and 'federal
jurisdiction'. The extent to which, and basis upon which, the courts of a territory
exercise federal jurisdiction is not yet clear. It is argued that all jurisdiction of territory
courts should be considered 'federal jurisdiction', even though they are not 'federal
courts'. Part V outlines the consequences for the powers of territory courts and other
courts in relation to the territories.
The history of the territories power
Any consideration of the early cases on the relationship between the terri tories and Ch
III of the Constitution must begin with R v Bernasconi.6 In that case, the Court held that
the requirement of trial by jury in s 80 of the Constitution did not apply to offences
created by legislation passed pursuant to s 122.
The judgments in R v Bernasconi referred to the earlier case of Buchanan v The
Commonwealth,7 which had decided that legislation passed under s 122 need not
comply with the requirements of s 55 of the Constitution.8 Buchanan v The
Commonwealth itself considered a narrow question about the proper construction of s
55, but was treated as indicating that s 122 was unfettered by other sections of the
Constitution generally, and the reasoning in R v Bernasconi went much further than just
the construction of s 80. The approach of the case is summed up by the following
statement from the judgment of Griffith CJ:
Chapter III is limited in its application to the exercise of the judicial power of the
Commonwealth in respect of those functions of government as to which it stands in the
place of the States, and has no application to territories.9
5 Kruger v The Commonwealth (1996) 190 CLR 1, 175. (Footnotes omitted.)
6 (1915) 19 CLR 629.
7 (1913) 16 CLR 315.
8 Section 55 requires that laws imposing taxation deal only with the imposition of taxation,
and with only one subject of taxation.
9 (1915) 19 CLR 629, 635.
2005 Territory Courts and Federal Jurisdiction 59
Subsequent cases10 confirmed the early doctrine and, by the 1950s, the Privy
Council felt able to conclude that '[t]he legislative power in respect of the territories is a
disparate, non-federal matter'.11
The decision in Lamshed v Lake began to break down the doctrine which had reigned
for the first half of the twentieth century. The Court, led by Dixon CJ, rejected an
argument that the phrase 'law of the Commonwealth' in s 109 of the Constitution did
not encompass a law enacted pursuant to s 122.12 Most crucially, the decision
recognised that the Constitution must be read as a whole, and that s 122 must be
interpreted in that context. Although it was unnecessary to overrule the earlier cases,
the judgment of Dixon CJ cast a long shadow of doubt over the interpretation which
they had given to s 122.
R v Bernasconi remains authority for what it decided. The confident views of early
members of the Court have been undermined,13 although perhaps not yet
The rejection of the complete disjunction of s 122 from Ch III
Reasons offered for regarding s 122 as disjoined from the rest of the Constitution
include its placement in Ch VI of the Constitution, the 'plenary'15 nature of the power
and the lack of the express words 'subject to this Constitution'. However, none of those
reasons are persuasive.
It might be thought that, were Chs I-III intended to 'apply to' the territories, the
territories power would have been placed in s 52, which deals with other exclusive
powers of the Commonwealth Parliament, rather than in Ch VI, relating to the
admission of new States. It is arguable that the language of ss 111 and 122 is apt to
10 Mitchell v Barker (1918) 24 CLR 365; Federal Capital Commission v Laristan Building and
Investment Co Pty Ltd (1929) 42 CLR 582, 585 (Dixon J) (accepting but distinguishing
Bernasconi); Edie Creek Pty Ltd v Symes (1929) 43 CLR 53, 56–7 (Knox CJ); Waters v The
Commonwealth (1951) 82 CLR 188; Re Ballard; Ex parte Wright (1960) 1 FLR 473; cf Mainka v
Custodian of Expropriated Property (1922) 34 CLR 297, 301 (Isaacs J).
11 Attorney-General (Cth) v The Queen ('Boilermakers' Case') (1957) 95 CLR 529, 545; [1957] AC
288, 320 (Viscount Simonds, for the Judicial Committee). For further discussion of the early
cases on s 122, see Christopher Horan, 'Section 122 of the Constitution: A Disparate and
Non-Federal Power?' (1997) 25 Federal Law Review 97.
12 Lamshed v Lake (1958) 99 CLR 132. Dixon CJ had earlier indicated his preference for a more
inclusive approach to s 122: Australian National Airways Pty Ltd v The Commonwealth (1945)
71 CLR 29, 84–5.
13 Spratt v Hermes (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer (1971) 125
CLR 591; Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248; Kruger
v The Commonwealth (1996) 190 CLR 1; Newcrest Mining (WA) Ltd v The Commonwealth (1997)
190 CLR 513.
14 See Northern Territory v GPAO (1999) 196 CLR 553, 618 [172] (McHugh and Callinan JJ); cf
651 [257] (Hayne J).
15 The expression has been used on many occasions to describe the ampleness of s 122: Spratt
v Hermes (1965) 114 CLR 226, 273 (Windeyer J); Berwick Ltd v Gray (1976) 133 CLR 603, 611
(Jacobs J); Teori Tau v The Commonwealth (1969) 119 CLR 564, 570 (Barwick CJ). But cf
Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513, 605 (Gummow J),
criticising the use of the term as obscuring the limitations which nevertheless confine the
power, and Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322,
379 [145] (Kirby J).

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