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Published online by Cambridge University Press: 24 January 2025
Whilst the nature and scope of Commonwealth judicial power has been much examined since federation, the nature of judicial power exercised in the Australian Capital Territory (ACT) or, indeed, the Commonwealth's territories more generally, has not. Usually the analysis of territory judicial power extends only to the conclusion that it does not form part of the judicial power of the Commonwealth and that it is territorially limited as a result of the operation of s 122 of the Constitution. This article examines in more detail the nature of judicial power in the ACT and identifies some of the significant limits upon, and uncertainties surrounding, that power. It examines the history of courts in the ACT, the relationship between Territory judicial power and the judicial power of the Commonwealth, the jurisdiction of ACT courts and some of the important limits on that jurisdiction.
1 Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 586 per Dixon J.
2 Porter v R; Ex parte Yee (1926) 37 CLR 432.
3 Seat of Government Supreme Court Act 1933 (Cth), s 6. The Act was the first to use the name “Australian Capital Territory”. The use of this name, which was in 1938 to become the official name of the Territory was quite fortuitous. Mr Latham, then Attorney-General of the Commonwealth, remarked that the creation of the Court required the creation of a new seal. It was feared that the use of Federal Capital Territory would not clearly identify the country in which the Territory lay and hence would create difficulties of recognition in foreign countries. The name “Supreme Court of the Federal Capital Territory of the Commonwealth of Australia” was considered but this would have been impossible to fit on all but the most enormous seal. Consequently “Supreme Court of the Australian Capital Territory” was settled upon—see CthParl Deb 1933, Vol 143 at 5349.
4 Seat of Government Supreme Court Act 1933 (Cth), s 11.
5 Judiciary Act 1903 (Cth), s 34A.
6 Federal Court of Australia Act 1976 (Cth), ss 24, 25 and 33.
7 Seat of Government (Administration) Act 1910 (Cth), s 11.
8 An earlier Ordinance, the Court of Petty Sessions Ordinance 1930 (No 10 of 1930), was made but it appears that no action was taken under it to establish the Court.
9 Magistrates Court Act 1985 (ACT), ss 3-4.
10 H Reps Deb 1988, Vol 163 at 1924.
11 Australian Capital Territory (Self Government) Bill, cl 22(1)(b).
12 Most significantly the Coroners Ordinance 1956 (ACT), Magistrates Court Ordinance 1930 (ACT), Magistrates Court (Civil Jurisdiction) Ordinance 1982 (ACT).
13 Sen Deb 1988, Vol 130 at 2596 and 2731-2733.
14 Sen Deb1988, Vol 130 at 2847-2848 and 2850-2852.
15 Miles, J, “The State of the Judicature in the Australian Capital Territory” (1994) 68 ALJ 14 at 16Google Scholar.
16 (1965) 114 CLR 226.
17 (1971) 125 CLR 591.
18 Attorney-General of the Commonwealth of Australia v R (1957) 95 CLR 529 at 545.
19 R v Donyadideh (1993) 115 ACTR 1 at 8-9. This power includes power to review Commonwealth administration which is otherwise the exclusive domain of the Federal Court: Kelson v Forward (1996) 39 ALD 303 at 321.
20 “Belonging” is used in the sense referred to in s 77(ii) of the Constitution to describe that jurisdiction which is inherent in a superior court of record for a particular jurisdiction: see Lorenzo v Carey (1921) 29 CLR 243 at 251 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ.
21 Felton v Mulligan (1971) 124 CLR 367 at 373 per Barwick CJ, 393 per Windeyer J, 412 per Walsh, J; Moorgate Tobacco Co Ltd v Phillip Morris Ltd (1980) 145 CLR 457 at 471Google Scholar per Gibbs J; see also Cowen, Z Zines, L, Federal Jurisdiction in Australia (2nd ed 1978) at 224-228Google Scholar where it is pointed out that whilst the approach in Felton v Mulligan is “intellectually unsatisfying” the alternative is “absurd”.
22 (1997) 190 CLR 1.
23 Ibid 513 at 656 footnote 484.
24 The appointment of Acting Judges was possible between 1933 and 1957 and has been again since 1993. The appointment of such judges would breach the tenure requirements of s 72 of the Constitution: see the comments of Walsh, J in Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 618Google Scholar.
25 This is because the appointment and removal provisions provide for action by the Territory Executive and the Legislative Assembly rather than the Governor-General and the Parliament as required by the Constitution, s 72(ii).
26 Between 1930 and 1977 the removal provisions did not comply with the Constitution, s 72(ii) and since transfer in 1990 have referred to action by the Executive and Legislative Assembly rather than the Governor-General and the Parliament.
27 Special Magistrates have never enjoyed the tenure required by the Constitution, s 72, holding office either during pleasure or for a fixed period.
28 Tenancy Tribunal Act 1994 (ACT); Residential Tenancies Act 1997 (ACT).
29 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254; Attorney-General of the Commonwealth of Australia v R (1957) 95 CLR 529.
30 Legislation passed in the wake of R v Davison (1954) 90 CLR 353 was probably valid as a result of the breadth of the Commonwealth's bankruptcy power: see Bankruptcy Act 1954(Cth) s 13, R v Davison (1954) 90 CLR 353 at 365-366 per Dixon CJ and McTiernan J and at 376 per Fullagar J. However, the validity of legislation passed after the Boilermakers' case (1956) 94 CLR 254 purporting to validate judicial decisions of the Commonwealth Court of Conciliation and Arbitration is less certain, although the question was never litigated—see Blackshield, T, Williams, G and Fitzgerald, B, Australian Constitutional Law and Theory (1996) at 876Google Scholar.
31 (1926) 37 CLR 432.
32 (1965) 114 CLR 226.
33 (1921) 29 CLR 257.
34 (1998) 151 ALR 395.
35 Ibid at 443. McHugh was one of the dissenting judges.
36 Further challenges to the validity to the cross-vesting scheme were heard by the High Court in December 1998: Re Wakim; Ex parte McNally (s 74 of 1998); Re Wakim (s 118 of 1998); Spinks v Prentice (S170 of 1998) (an appeal from the decision in Sprinks v Prentice (1978)157 ALR 555).
37 In addition to s 20 of the Supreme Court Act, jurisdiction is conferred upon the courts ofthe ACT in relation to the Australian Antarctic Territory, Heard and McDonald Islands and Jervis Bay Territory: Australian Antarctic Territory Act 1954 (Cth), s 10, Heard Island and McDonald Islands Act 1953 (Cth), s 9; Jervis Bay Territory Acceptance Act 1915 (Cth), s 4D.
38 [1919] AC 956 at 962-963.
39 Re Totalisator Administration Board of Queensland (1980) 80 ALR 73 at 77-78 per McPherson J.
40 (1958) 98 CLR 310 at 323 quoting A Dicey, The Conflict of Laws (6th ed 1949) at 172.
41 (1972) 20 FLR 318.
42 See, for example, Traut v Rogers (1984) 27 NTR 29.
43 It is not clear why Fox J held O 12 r 1 invalid rather than simply confining the power to make rules ins 28(2)(b) of the Australian Capital Territory Supreme Court Act 1933 (Cth) to those matters where a territorial nexus was demonstrated as would appear to have been required by the Acts Interpretation Act 1901(Cth), s 15A.
44 (1972) 20 FLR 318 at 327. As to the position where the Commonwealth is sued in the Territory pursuant to s 56 of the Judiciary Act 1903 (Cth) see Coe v Queensland Mines (1974) 5ACTR53.
45 Service and Execution of Process Act 1992 (Cth), s 15.
46 Ibid, s 11.
47 Ibid, s 130.
48 Service and Execution of Process Act 1901 (Cth), s 11.
49 (1958) 99 CLR 132 at 145-146.
50 See also Australian Law Reform Commission, Service and Execution of Process (Report No 40,1987) at 36.
51 Jurisdiction of Courts (Cross-Vesting) Act 1987 of the Commonwealth, all States and the Northern Territory.
52 Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT), s 5 and equivalent provisions.
53 David Syme & Co Ltd v Grey (1992) 38 FCR 303 at 331-332 per Gummow J (Neaves J agreeing at 310). Higgins J to the contrary at 348.
54 Gould v Brown, Transcript of Argument, 9 April 1997 at 166.
55 (1998) 151 ALR 395.
56 Aboven36.
57 For this reason the concerns about forum shopping expressed by Master Hogan in Kantis v Barlin (1993) 115 ACTR 11 at 18 seem to be unfounded.
58 See J Miles, above n 15 at 16.
59 [1967] 1 AC 259.
60 Ibid at 286-289.
61 Seat of Government Acceptance Act 1909 (Cth), s 8; Seat of Government (Administration) Act 1910 (Cth), s 11; Court of Petty Sessions Ordinance (No 2) 1930 (ACT), ss 19-20; Seat of Government Supreme Court Act 1933 (Cth), s 11.
62 Clyne v East (1967) 68 SR (NSW) 385;Building Construction Employees and Builders Labourers Federation v Minister for Industrial Relations (1986) 7 NSWLR 372 at 400-401 per Kirby P and at 411 per Mahoney JA. Cf at 419 per Priestley JA. See R Else-Mitchell and JM Bennett, “The Charter of Justice of New South Wales-Its Significance in 1974” (1974) 48 ALJ 262 at 264.
63 The City Area Leases Ordinance 1936 {ACT) conferred power on the Supreme Court to determine, upon application by a lessee, whether a lease purpose clause could be varied.This non-judicial function has been performed by the Supreme Court since 1936 and, in relation to areas of National Land in the ACT, still exists: see National Land Ordinance 1989, s 5(1).
64 Tenancy Tribunal Act 1994 {ACT).
65 Residential Tenancies Act 1997 (ACT).
66 Discrimination Act 1991 (ACT).
67 Compare J Miles, above n 15 at 16.
68 See Self-Government Act, s 48A(3).
69 (1996) 189 CLR 51.
70 (1996) 189 CLR 1.
71 Ibid at 16.
72 Ibid at 17.
73 (1995) 184 CLR 348.
74 The Supreme Court Act 1933 (ACT), s 4(3) provides that additional judges must be judges of a superior court of record of the Commonwealth, a State or another Territory.