Capital TV & Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591 (8 April 1971)

HIGH COURT OF AUSTRALIA

CAPITAL T.V. AND APPLIANCES PTY. LTD. v. FALCONER (1971) 125 CLR 579

Constitutional Law (Cth) - High Court

High Court of Australia

Barwick C.J.(1), McTiernan(2), Menzies(3), Windeyer(4), Owen(5), Walsh(6) and Gibbs(7) JJ.

CATCHWORDS

Constitutional Law (Cth) - Territories - Australian Capital Territory - Courts of territories - Supreme Court of Australian Capital Territory - Whether "federal court" or court "exercising federal jurisdiction" - Australian Capital Territory Supreme Court Act 1933-1968 (Cth) - The Constitution (63 & 64 Vict. c. 12), ss. 71, 73, 122.

High Court - Jurisdiction - Appeal from Supreme Court of Australian Capital Territory - Whether appeal as of right - The Constitution (63 & 64 Vict, c. 12), ss. 71, 73, 122.

HEARING

Sydney 1970, November 16-19; 1971, April 8: 8:4:1971

APPEAL from the Supreme Court of the Australian Capital Territory.

DECISION

1971, April 8.

The following written judgments were delivered:-

BARWICK C.J. The Supreme Court of the Australian Capital Territory was (the Act). The following sections of the Act are presently relevant:

"6. (1) There shall be a Supreme Court of the Territory

which shall be known as the Supreme Court of the

Australian Capital Territory.

(2) The Court shall be a superior court of record.

(3) The Court shall consist of one Judge appointed

under sub-section 1 of the next succeeding section and

the additional Judge or Judges appointed under

sub-section

(2) of that section.

7. (1) The Governor-General may appoint, by commission,

a person who is or has been -

(a) a Judge of another court created by the

Parliament,

or of a court of a State; or

(b) a practising barrister, solicitor, barrister and

solicitor, or legal practitioner of the High Court or

of the Supreme Court of a State, the Australian

Capital Territory or another Territory of the

Commonwealth, of not less than five years'

standing,

to be a Judge of the Supreme Court.

(2) The Governor-General may appoint by commission

a person who or persons each of whom is a Judge of

another court created by the Parliament to be an

additional Judge or additional Judges of the Supreme

Court.

(3) The Judges appointed under the last preceding

sub-section have seniority as additional Judges of

the Supreme Court according to the dates of their

commissions.

8. (1) Subject to the next succeeding sub-section

jurisdiction

of the Supreme Court is exercisable by one

Judge sitting in court or to the extent provided by

this Act sitting in Chambers.

11. The Supreme Court -

(a) has, subject to this as to any other Act or to any

Ordinance, in relation to the Territory, the same

original jurisdiction, both civil and criminal, as

the Supreme Court of the State of New South Wales

had in relation to that State immediately before the

first day of January, One thousand nine hundred

and eleven;

(b) has such jurisdiction, both civil and criminal, and

whether original or otherwise, as is from time to

time vested in the Supreme Court by Act or by

Ordinance; and

(c) has jurisdiction, with such exceptions and subject

to such conditions as are provided by Act or by

Ordinance, to hear and determine appeals from all

judgments, convictions, orders, and sentences of

inferior Courts having jurisdiction in the Territory.

51. (1) The High Court shall have jurisdiction to hear and

determine appeals from every judgment (whether final

or interlocutory) of the Supreme Court in a civil

matter, which -

(a) is given or pronounced for, or in respect of, any

sum or matter at issue amounting to or of the

value of Three thousand dollars;

(b) involves directly or indirectly any claim, demand

or question to or respecting any property or any

civil right amounting to or of the value of three

thousand dollars;

(c) affects the status of any person under the laws

relating to aliens, marriage, divorce, bankruptcy

or insolvency; or

(d) is one with respect to which the High Court thinks

fit to give special leave to appeal.

(2) An appeal may not be brought from an

interlocutory

judgment or order except by leave of the

Supreme Court or the Judge or of the High Court, but,

except as provided in the next succeeding sub-section,

it shall not be necessary to obtain the leave of the

Supreme Court or the Judge to appeal to the High

Court.

(3) An appeal shall not lie to the High Court from a

decision of the Supreme Court or the Judge with respect

to costs which are in its or his discretion, except by

leave of the Court or Judge or of the High Court.

(4) No appeal shall lie from a judgment given by

consent.

52. (1) A person convicted on indictment before the

Supreme Court may appeal to the Full Court of the

High Court-:

(a) against his conviction

(i) on any ground of appeal that involves a

question of law alone;

(ii) with the leave of the Supreme Court or the

Judge, on any ground of appeal that involves

a question of fact alone or a question of

mixed law and fact;

(iii) with the leave of the Full Court of the High

Court, on any ground of appeal mentioned in

the last preceding sub-paragraph or on any

other ground that appears to the Full Court

of the High Court to be a sufficient ground of

appeal; and

(b) with the leave of the Full Court of the High Court,

against the sentence passed on his conviction,

unless the sentence is one fixed by law,

and the Full Court of the High Court has jurisdiction

to hear and determine the appeal." (at p596)

2. The appellant was convicted by the Court of Petty Sessions sitting in Canberra on 21st January 1970 of having on 18th September 1969 used part of the land comprised in a described lease of land at Fyshwick in the said Territory contrary to the provisions of s. 9A (iii) of the City Area Leases Ordinance 1936-1969. Section 9A (iii) of the City Area Leases Ordinance 1936-1969 provides:

"iii. Where the land or part of the land comprised in a lease

is subject to a sub-lease and is used for a purpose other

than the purpose for which the use of the land

comprised

in the lease is authorised by or under the lease the

sub-lessee and each sub-lessee shall be taken to have

committed an offence and is punishable upon

conviction

to a fine not exceeding 100 pounds plus 10 pounds for each day

on which the contravention continues after the first

day." (at p596)

3. The appellant appealed against its conviction to the Supreme Court of the Australian Capital Territory pursuant to s. 207 of the Court of Petty Sessions Ordinance 1930-1958. On 18th June 1970 the Supreme Court of the Australian Capital Territory heard the appellant's appeal and ordered its dismissal. (at p597)

4. The appellant on 9th July 1970 filed in the Canberra Registry of this Court a notice of appeal against the order of the Supreme Court of the Australian Capital Territory on a number of grounds. An affidavit filed on behalf of the appellant in support of the notice of appeal claims that the appeal lies from the order of the Supreme Court to this Court "by virtue of the provisions of s. 73 of the Commonwealth of Australia Constitution", in that the said order was made by the Supreme Court of the Australian Capital Territory which is a court exercising federal jurisdiction and that the jurisdiction of this Court to hear and determine an appeal from the order of the Supreme Court has not been excepted by or subjected to any disabling regulations by the Parliament of the Commonwealth. The respondent has raised an objection to the competence of the appeal on the following grounds:

1. That the Australian Capital Territory Supreme Court Act

1933-1968 does not give to the High Court jurisdiction to

hear and determine an appeal from the order of the

Supreme Court of the Australian Capital Territory

referred to in the notice of appeal.

2. Section 73 of the Commonwealth of Australia Constitution

does not give the High Court jurisdiction to hear and

determine an appeal from the said order. (at p597)

5. The appellant's appeal does not fall within the area of those appeals which may be brought to this Court as of right under the provisions of the Act, see s. 51 and s. 52. But it may be brought by this Court's special leave. However, the appellant submits that this Court has jurisdiction to hear an appeal from all judgments, decrees, orders and sentences of the Supreme Court by virtue of s. 73 of the Constitution because, according to the appellant's primary submission, the Supreme Court is another federal court within the meaning both of s. 71 and s. 73; and, according to its secondary submission, because it is a court invested with federal jurisdiction. (at p597)

6. Two questions for the Court's decision are thus involved in the respondent's objection. First, whether the Supreme Court of the Australian Capital Territory is a "federal" court or a court invested with federal jurisdiction within the meaning of the Constitution. And secondly, whether the provisions of s. 51 of the Act contain or constitute exceptions from the jurisdiction of this Court to hear appeals from the Supreme Court of the Australian Capital Territory. (at p597)

7. The Court decided in Spratt v. Hermes (1) that the Court of Petty Sessions created by the Petty Sessions Ordinance of the Australian Capital Territory was not a federal court within the meaning of s. 71 of the Constitution. I can find no relevant ground of distinction between that Court of Petty Sessions and the Supreme Court of the Australian Capital Territory. Consequently, in my opinion, Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 is authority for the proposition that the Supreme Court is not a federal court within the meaning of s. 71 and s. 73 of the Constitution. (at p598)

8. In considering what my decision should be in Spratt v. Hermes (1) I had of necessity to consider how far, if at all, the prior decisions of this Court in relation to Ch. III of the Constitution and to the several sections within that Chapter should be accepted, having in mind my own firm view as to the absence of any duality in the Commonwealth itself. Those decisions had erected what appeared to me to be a dichotomy of the totality of judicial power of a single Commonwealth into the "federal" judicial power, or as Isaacs J. put it in his judgment in R. v. Bernasconi [1915] HCA 13; (1915) 19 CLR 629, at p 637 , "the . . . judicial power of the Commonwealth proper" and the non-federal judicial power. I then came to the conclusion after a close examination of the decisions that, whatever I might myself have thought if the slate were clean, the doctrine of the duality of the judicial power was so deeply entrenched that it ought now now to be overturned. As well, no disadvantages of a practical kind seemed to me to stem or to be likely to stem from its continuance: indeed, there were some obvious advantages flowing from it of which the conclusion reached in Spratt v. Hermes (1) was one. Consequently, though expressing a view against the doctrine of duality in the Commonwealth itself and whilst not endorsing all the supporting reasoning in such cases, I said that departure from the doctrine as to the applicability of Ch. III and of the ambit of the description "law of the Commonwealth" as founded upon R. v. Bernasconi (1915) [1915] HCA 13; 19 CLR 629 "would not result in any change in the actual result of any of the reported cases with the exception of Waters v. The Commonwealth [1951] HCA 9; (1951) 82 CLR 188 ". Further, I joined Sir Frank Kitto in his explanation of the basis of the enforceability by the Supreme Court in relation to acts done within the Australian Capital Territory of legislation made by virtue of s. 51 of the Constitution and applicable to the Territory as an exercise of the powers granted by s. 122. (at p598)

9. I have been invited by the argument in this case to consider again those consequences of the reasoning in R. v. Bernasconi (3) with which I did not express disapproval in my judgment in Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 . Because of what I consider to be the great importance of the matter, I have done so, familiarizing myself once again with all the relevant decisions. But in the end, I have come to the same conclusion, namely that I should accept the view that the judicial power to which s. 71 refers is that part of the totality of judicial power which the Commonwealth may exert which can be called "federal judicial power". The word "federal" is not always used with precision or with uniformity. It seems to me that the sense of the word "federal" in s. 71 of the Constitution resulting from the decisions of this Court is that the federal judicial power is that which is called into exercise by or in connexion with legislation enacted pursuant to s. 51 and s. 52. The legislative power of the Commonwealth though always resulting, as I think, in a "law of the Commonwealth", is of different orders conveniently enough described as federal and non-federal. The federal powers are those which are shared with the States because of the concurrency of the powers, the powers granted by s. 52 being included though because of their exclusive nature they are not in strictness shared with the States. Legislative power derived elsewhere than from s. 51 and s. 52 is of a different order to that derived from those sections, different because it is not referable to a specified subject matter : it can conveniently be described as nonfederal. But the powers are in each instance plenary. A consequence of accepting the limitation of s. 71 to the judicial power for the exercise of which laws made pursuant to s. 51 and s. 52 may call is that the other federal courts of which s. 71 speaks are those which are called into being by, and empowered to exercise jurisdiction under laws made in pursuance of s. 51 and s. 52. It is also a consequence that the courts which may be invested with federal jurisdiction are courts set up by the States. They cannot include courts created by the Commonwealth. What Isaacs J. said in Porter v. The King ; Ex parte Yee must be taken to represent established doctrine. He said [1926] HCA 9; (1926) 37 CLR 432, at p 440 :

"Nor is it"-the territorial court-"a court 'exercising

federal jurisdiction' within the meaning of s. 73, because such

a court is in contradistinction to a 'federal court'. It means

a State Court invested with federal jurisdiction or assuming in

fact to be so invested." (at p599)

10. But though the power given by s. 122 is of a different order to the powers given by s. 51 and s. 52 because not limited by subject matter and to be described as non-federal, and though I feel bound to accept the duality of Commonwealth judicial power, artificial and to a degree unreal though that may be, it does not follow that activity of the Commonwealth in relation to its territories is a "disparate non-federal matter", either in a legal or in a political sense. It is difficult to think of the conduct of affairs in the Australian Capital Territory as a "disparate non-federal matter": or the defence of a territory or part of it, for example, Darwin, as a non-federal matter, both the cost of the Australian Capital Territory and of defence being provided and financed by money raised under s. 51(ii.): and defence itself authorized by laws made under s. 51 (v.). (at p600)

11. In my opinion, it is a necessary conclusion from the Court's decision in Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 that the Supreme Court of the Australian Capital Territory is neither a federal court within the meaning of s. 71 or s. 73 of the Constitution as interpreted by the decisions of this Court nor a Court invested with "federal" jurisdiction. I adhere to my decision in Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 and in particular to my concurrence with the reasons given by Sir Frank Kitto for the capacity by the Court of Petty Sessions of the Australian Capital Territory to enforce the relevant provisions of the Post and Telegraph Act. Maybe I should make it clear that I did so and do so now on the footing that the Post and Telegraph Act 1901-1961 operated in the Australian Capital Territory by virtue of the legislative power granted by s. 122. Once conclude, as I do, that the Supreme Court of the Australian Capital Territory is not a federal court nor a court invested with federal jurisdiction within the meaning of s. 71 and s. 73 of the Constitution, it seems to me to follow that its jurisdiction could not be related to the Post and Telegraph Act so far as it derives its legislative force from s. 51 of the Constitution. (at p600)

12. Consequently, this Court does not have jurisdiction to hear the appellant's appeal by reason of the provisions of s. 73 of the Constitution. Being of that opinion I have no need to consider the question whether the provisions of s. 51 contain or constitute an exception from this Court's jurisdiction within the meaning of s. 73. (at p600)

13. Finally, the matter is not one in which special leave to appeal should be given. (at p600)

McTIERNAN J. The appellant company was convicted in a Court of Petty Sessions of the Australian Capital Territory of selling certain goods in contravention of the City Area Leases Ordinance 1936-1969 (A.C.T.). An appeal brought to the Supreme Court of the Australian Capital Territory was dismissed. An appeal to this Court, stated to be as of right, was lodged. The respondent has objected to the competency of that appeal. (at p601)

2. Section 52 of the Australian Capital Territory Supreme Court Act 1933-1964 (Cth) deals with appeals from the Supreme Court in criminal cases and gives a right of appeal in certain circumstances to the Full Court of the High Court to a person convicted on indictment before the Supreme Court of the Territory. The appellant company was not however convicted on an indictment. The appellant nevertheless claims that it has an appeal to this Court as of right under s. 73 of the Constitution. (at p601)

3. Leaving aside for the present the excepting words of s. 73 the appellant relies upon the following words of that section:

"The High Court shall have jurisdiction . . . to hear and

determine appeals from all judgments, decrees, orders, and

sentences.

. .

(ii) Of any other federal court, or court exercising federal

jurisdiction. . . ." (at p601)

4. The contention put forward in argument for the appellant was that the conviction in question is a judgment, decree, order or sentence of "any other federal court" or that of a "court exercising federal jurisdiction". (at p601)

5. It may be assumed that the conviction is a judgment or order within the meaning of s. 73. (at p601)

6. The first question, therefore, is whether the Supreme Court of the Australian Capital Territory is a "federal court" within the meaning of s. 73(ii.). The Court was constituted by the Australian Capital Territory Supreme Court Act 1933-1964 and its jurisdiction is defined by s. 11 of that Act. Looking at the provisions of s. 11 it is clear that the jurisdiction thereby defined is not jurisdiction which the Parliament of the Commonwealth has power under s. 77(i.) of the Constitution to define. The matters which are mentioned in s. 11 are not limited to matters enumerated in s. 75 and s. 76 of the Constitution. It is with respect to any of those matters that Parliament may make laws under s. 77(i.) defining the jurisdiction of any federal court other than the High Court. (at p601)

7. Reading Ch. III of the Constitution as a whole it seems to me that to preserve consistency between s. 77 and s. 73 the expression "federal court" in s. 73(ii.) should be interpreted as meaning a court the jurisdiction of which is defined by s. 77(i.). In my opinion the Australian Capital Territory Supreme Court Act is wholly a law for the government of the Australian Capital Territory passed pursuant to s. 122 of the Constitution. (at p602)

8. If that Act should be construed as granting a like tenure to that specified by s. 72 of the Constitution for justices of federal courts, this, in my opinion, should not require the conclusion that the Supreme Court of the Territory is a federal court. The tenure of a justice of a court created by an Act passed pursuant to s. 122 is a matter within the discretion conferred on the Parliament by that section. (at p602)

9. In my opinion, upon the true construction of the Constitution, the Supreme Court of the Australian Capital Territory is not a "federal court" within the meaning of s. 73(ii.). (at p602)

10. As the words "federal court" in s. 73(ii.) look forward to a court whose jurisdiction is defined by the Parliament pursuant to s. 77(i.), so the words "court exercising federal jurisdiction" in s. 73(ii.) look forward to a State court invested with federal jurisdiction by the Parliament pursuant to s. 77(iii.). In Porter v. The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432 , Isaacs J. (as he then was), when speaking of the Supreme Court of the Northern Territory, said (1926) 37 CLR, at p 440 :

"Nor is it a Court 'exercising Federal jurisdiction' within

the meaning of s. 73, because such a Court is in contradistinction

to a 'Federal Court'. It means a State Court invested with

Federal jurisdiction or assuming in fact to be so invested.

Any attempt to justify appellate jurisdiction in this Court

from a territorial Court on the self-executing provisions of the

Constitution fails."

With respect, I consider that to be a correct interpretation of the words in the context constituted respectively by s. 73(ii.) and s. 77(iii.). (at p602)

11. Even if it were to be found that an appeal in this case lay as of right under s. 73, I consider that the Parliament has, pursuant to that section, excepted this particular case. In my judgment the intention of s. 52 of the Supreme Court Act, which section bears the marginal note "Appeal from Supreme Court in criminal cases", was to deny an appeal in those criminal cases not enumerated in that section. (at p602)

12. In my opinion, therefore, the objection to the competency of this appeal should be upheld. I do not consider that this is a case in which special leave to appeal should be granted. (at p602)

MENZIES J. The facts of the matter are of no importance here; the only question, upon an objection to competency, is whether an appeal lies to this Court from an order of the Supreme Court of the Australian Capital Territory exercising jurisdiction conferred upon it by the Australian Capital Territory Supreme Court Act 1933-1968 (Cth) in hearing and dismissing an appeal from a conviction in a Court of Petty Sessions at Canberra upon an information alleging a contravention of s. 9A(3) of the City Area Leases Ordinance 1936-1969 made under parliamentary authority. (at p603)

2. Despite some suggestion to the contrary, the appeal is clearly enough not authorized by ss. 51 or 52 of the Australian Capital Territory Supreme Court Act, and, if it lies, it must do so by virtue of s. 73 of the Constitution. The main question is whether s. 73 does grant a right to appeal to this Court, either because the Supreme Court is a "federal court" or, in hearing and determining the appeal, the Supreme Court was "exercising federal jurisdiction" within the meaning of that phrase in s. 73. If the Supreme Court is a federal court or was exercising federal jurisdiction, a further question arises, namely whether the express provisions of ss. 51 and 52 of the Australian Capital Territory Supreme Court Act amount to an exception prescribed by Parliament denying an appeal under s. 73 (at p603)

3. A federal court, for the purposes of s. 73, is a court created by Parliament under s. 71 of the Constitution. If a court is established by Parliament with justices lacking any of the attributes specified in s. 72, that court cannot be a court created under s. 71, and so it cannot be a federal court: Alexander's Case [1918] HCA 56; (1918) 25 CLR 434 . The reason is that Parliament could not have intended a court, established with justices denied the attributes referred to in s. 72, to be a federal court. It does not follow, however, that where the justices of a court created by Parliament are, by the statute, given all the attributes referred to in s. 72, that the court is a federal court created under s. 71: the Boilermakers' Case [1956] HCA 10; (1956) 94 CLR 254; (1957) 95 CLR 529 . The decision whether or not a court has been created as a federal court under s. 71 depends upon the legislative intention to be derived from the whole of the law establishing the court. Thus the Boilermakers' Case [1956] HCA 10; (1956) 94 CLR 254; (1957) 95 CLR 529 is not merely authority that a federal court cannot be given non-judicial duties or powers. Had that been the limit of the decision, the Court of Conciliation and Arbitration would have stood as a federal court stripped of its powers of conciliation and arbitration. The decision, of course, went further and denied that, what Parliament had described as a court and upon which it had attempted to confer judicial powers, was a federal court notwithstanding that the so-called court was established with justices being appointed and having the tenure and security of remuneration for which s. 72 of the Constitution provides. The reason was that in substance the so-called court had been created under s. 51 for the settlement of industrial disputes. See (1956) 94 CLR, at pp 270-272 and (1957) 95 CLR, at pp 533-535 . It was decided by both the High Court and the Privy Council that a body, created by Parliament, called a court, having justices with all the attributes required by s. 72, and upon which Parliament had, in terms, conferred judicial power, was, nevertheless, not a federal court because Parliament's primary or essential intention was to create a body with arbitral powers. (at p604)

4. Before examining the Australian Capital Territory Supreme Court Act to determine whether or not Parliament has created the Supreme Court as a federal court, it is necessary, however, to deal with further constitutional matters. (at p604)

5. The first, and one which I regard of great significance, is that - although a federal court cannot be given non-judicial powers or duties - federal courts, including this Court, can be given judicial duties beyond the matters set out in ss. 75 and 76 of the Constitution by reason of the exercise of legislative power outside Ch. III. This is established by the line of decisions which recognizes that, by laws made under s. 122, this Court may be given jurisdiction to hear appeals from courts not being federal courts for the purposes of ss. 71, 72 and 73 of the Constitution, and not being State courts. This was decided in Porter v. The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432 , and that decision was accepted by both the High Court and the Privy Council in the Boilermakers' Case [1956] HCA 10; (1956) 94 CLR 254; (1957) 95 CLR 529 . Now if this court can have jurisdiction conferred upon it by laws deriving their constitutional validity from s. 122, a like jurisdiction, in addition to federal jurisdiction, can be conferred upon any other federal court created by Parliament under s. 71. It is possible, therefore, for a federal court created under s. 71 to have, in addition to such powers as may have been conferred upon it by a law under s. 77, additional judicial power conferred upon it by a law under s. 122. To find, therefore, that a court created by Parliament has some jurisdiction which could only arise from an exercise of legislative power under s. 122 cannot determine the question whether or not the court is a federal court created under s. 71. (at p604)

6. There is another point of constitutional importance with which I must deal. The Solicitor-General for the Commonwealth argued that s. 76(ii.) of the Constitution, which provides that

"The Parliament may make laws conferring original

jurisdiction

on the High Court in any matter -

. . . . .

(ii.) Arising under any laws made by the Parliament"

ought to be read with the restriction that the words "laws made by the Parliament" do not cover laws made by the Parliament by virtue of the powers conferred upon Parliament by s. 122 of the Constitution. This I reject. The submission, I believe, contradicts the decision of this Court in Lamshed v. Lake [1958] HCA 14; (1958) 99 CLR 132 , a decision of far-reaching importance from which, I think, there should be no departure. There Dixon C.J., with the approval of the majority of the Court, said (1958) 99 CLR, at p 141 :

"To my mind s. 122 is a power given to the national

Parliament

of Australia as such to make laws 'for', that is to say

'with respect to', the government of the Territory. The

words 'the government of any territory' of course describe the

subject matter of the power. But once the law is shown to be

relevant to that subject matter it operates as a binding law

of the Commonwealth wherever territorially the authority

of the Commonwealth runs."

It was said of laws made under s. 122 (1958) 99 CLR, at p 142 :

"They are laws made by the Parliament of the

Commonwealth

and s. 5 of the covering clauses makes them binding on

the courts, judges and people of every State notwithstanding

anything in the laws of any State."

Finally it was said (1958) 99 CLR, at pp 143-144 :

"What has been said is enough to show that when s. 122 gives

a legislative power to the Parliament for the government of a

territory the Parliament takes the power in its character as the

legislature of the Commonwealth, established in accordance

with the Constitution as the national legislature of Australia,

so that the territory may be governed not as a quasi foreign

country remote from and unconnected with Australia except

for owing obedience to the sovereignty of the same Parliament

but as a territory of Australia about the government of which

the Parliament may make every proper provision as part of

its legislative power operating throughout its jurisdiction." (at p605)

7. The only basis for a restricted construction of s.76(ii.) would be to find in R. v. Bernasconi [1915] HCA 13; (1915) 19 CLR 629 , a general principle that, for the purposes of Ch. III, "laws of the Commonwealth" or "laws made by Parliament" do not cover laws made under s. 122. To reach this conclusion would, I think, be an extension - despite Lamshed v. Lake [1958] HCA 14; (1958) 99 CLR 132 - of the decision of the Court in R. v. Bernasconi [1915] HCA 13; (1915) 19 CLR 629 . That decision should not, I think, be extended and it should be regarded as a decision which goes no further than to establish that, as a matter of construction, the words "any law of the Commonwealth" in s. 80 should be read as if they were followed by the words "other than a law made under s. 122". While, therefore, I consider that the decision in R. v. Bernasconi [1915] HCA 13; (1915) 19 CLR 629 should be allowed to stand as establishing the construction to be accorded to s. 80, I do not regard it as affording any reason for restricting the words "any laws made by the Parliament" in s. 76(ii.) to exclude laws made by the Parliament under s. 122. It would hardly be sensible to read s. 76(ii.) as denying Parliament power to make laws conferring original jurisdiction upon this Court in a matter arising under the law made by Parliament under s. 122 and then to read s. 122 as conferring upon Parliament the power to make such a law. In my opinion there is no ground for inferring any limitation upon the ordinary meaning of the words used in s. 76(ii.). (at p606)

8. Finally, before I turn from an examination of the relevant constitutional provisions to their application, there is to be considered the meaning of the words "court exercising federal jurisdiction" in s. 73(ii.) of the Constitution. To my mind the reference is to a court exercising the jurisdiction conferred upon it by Parliament under s. 77. It seems to me that throughout Ch. III "federal jurisdiction" means jurisdiction conferred therein upon the High Court by the Constitution itself (ss. 73 and 75); or, conferred by Parliament upon the High Court under s. 76; or, conferred by the Parliament upon some other federal court (ss. 71 and 77(i.)); or, invested by Parliament in a State court (ss. 71 and 77(iii.)). The words "invests" in s. 71 and "invested" and "investing" in s. 77 relate, in my opinion, to the authorizing of State courts to exercise federal jurisdiction. The word "invests" in s. 71 anticipates, as it were, the authority later conferred upon Parliament by s. 77 and should not be understood as authorizing the investment of courts created by Parliament otherwise than under s. 71 with any federal jurisdiction. No jurisdiction which is not federal jurisdiction can be given to any court by virtue of the powers given to Parliament by Ch. III. It follows that, when the High Court or any other federal court is exercising judicial power by virtue of a law not made under Ch. III, it is not exercising "federal jurisdiction" in the constitutional sense. Support for the foregoing proposition - which seems to me to appear plainly enough from Ch. III - is to be found in a consistent body of authority. See, for instance, Ah Yick v. Lehmert [1905] HCA 22; (1905) 2 CLR 593, at pp 603-604, per Griffith CJ New South Wales v. The Commonwealth [1915] HCA 17; (1915) 20 CLR 54, at p 62, per Griffith CJ; at pp 72, 73, per Barton J; at p. 89, per Isaacs J. ; In re Judiciary and Navigation Acts, [1921] HCA 20; (1921) 29 CLR 257, at p 265 ; Porter v. The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432, at p 446, per Higgins J; at p 440, per Isaacs J ; Boilermakers' Case (1956) 94 CLR, at pp 269 and 270 . (at p607)

9. It does not follow, however, that jurisdiction with respect to the matters enumerated in ss. 75 and 76 must always be categorized as federal jurisdiction in the constitutional sense. Were this so, a court constituted by Parliament, otherwise than as a federal court, could not be given jurisdiction with respect to a matter arising under the Constitution or arising under a law made by the Parliament. The contrary has, however, been decided. It is not necessary to go back beyond Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 , which is a decision that a court which was not a federal court in the constitutional sense could be given jurisdiction in a matter arising under the Constitution and arising under the Post and Telegraph Act. All members of the Court regarded the jurisdiction so exercised as validly conferred by a law made under s. 122 of the Constitution. Resort to the source of the law conferring jurisdiction, as the means of determining whether the jurisdiction being exercised is or is not federal jurisdiction, is, it must be admitted, less than an ideal method of determining the character of the jurisdiction being exercised by a court - whether it be this Court or any other court. This is, however, what the decisions require and legislation has been enacted on the footing that this Court may be authorized by a law under s. 122 to hear appeals from territorial courts whether or not the matter in issue was a matter of federal jurisdiction. See for instance the Australian Capital Territory Supreme Court Act, Papua and New Guinea Act 1949-1950, as amended, and Northern Territory Supreme Court Act 1961, as amended. (at p607)

10. The only escape from looking to the source of the law conferring jurisdiction, as a means of determining the character of the jurisdiction, would be, as I see it, to regard what is described as "the judicial power of the Commonwealth" in s. 71 as something narrower than what is described as "federal jurisdiction" in ss. 73 and 77, so that jurisdiction conferred by s. 122 is to be regarded as part of the judicial power of the Commonwealth, but as outside federal jurisdiction. It seems to me, however, that the use of both phrases in s. 71, as well as the words "other federal courts", militates strongly against such a construction. The construction I adopt entails the conclusion that the words "court exercising federal jurisdiction" in s. 73 describe State courts invested with federal jurisdiction, and do not cover any court created by Parliament under s. 122 or any other source of legislative power outside Ch. III. See Silk Bros. Pty. Ltd. v. State Electricity Commission (Vict.) [1943] HCA 2; (1943) 67 CLR 1, at p 9 . The constitutional appellate jurisdiction of this Court under s. 73 (ii.) is therefore limited to appeals from (1) federal courts, (2) State courts exercising federal jurisdiction, (3) the Supreme Court of any State, and (4) any other court of any State from which, on 1st January 1901, an appeal lay to the Queen in Council. The reason for the inclusion of (3) and (4) in addition to (2) was, of course, to give appeal from such courts when exercising State jurisdiction; i.e. jurisdiction outside invested federal jurisdiction. This construction of s. 72 would, of course, preclude a constitutional right to appeal to this Court from the Court of Petty Sessions at Canberra, for that Court is not a federal court, and, upon the view which I have formed, it is not exercising federal jurisdiction, even in deciding a matter arising under the Constitution or under a law made by the Parliament. (at p608)

11. The result of this examination has led me to the conclusion that an appeal lies from the Supreme Court of the Australian Capital Territory to this Court by virtue of the Constitution only if the Supreme Court is a federal court. For the reason I have already given, it cannot exercise federal jurisdiction unless it is a federal court, and if it be a federal court then an appeal lies without more. (at p608)

12. I have, therefore, reduced this case to a single issue. Is the Supreme Court of the Australian Capital Territory a federal court, or is it merely a territorial court? (at p608)

13. An examination of the Australian Capital Territory Supreme Court Act reveals the following matters that are pertinent to this inquiry:

(1) That the Court is constituted as a "Supreme Court of the Territory": s. 6.

(2) That the Court "may sit at Canberra, and at such other places in the Commonwealth as are from time to time specified by the Governor-General by notice in the Gazette": s. 9(1).

(3) The jurisdiction of the Court is defined by reference to the jurisdiction of the Supreme Court of the State of New South Wales "in relation to that State immediately before the first day of January, One thousand nine hundred and eleven", but that jurisdiction is "in relation to the Territory": s. 11. It is to be observed, however, that the jurisdiction conferred by this section would cover what, in the Supreme Court of New South Wales, would be federal jurisdiction vested in that court by virtue of s. 77 of the Constitution.

(4) Writs may be served "out of jurisdiction of the Court" as authorized by s. 16.

(5) That there is nothing in the Act inconsistent with the requirements of s. 72 of the Constitution: ss. 7, 8(3)(b) and 10. (at p609)

14. Having taken all these matters into account, I have reached the conclusion that the Supreme Court of the Australian Capital Territory is not a federal court appointed under s. 71 of the Constitution, but a territorial court appointed under s. 122, with or without s. 52. In reaching this conclusion I have been greatly influenced by the facts that the Court is "a Supreme Court of the Territory" and that the Territory is to be regarded as the area of the jurisdiction of the Court. At first it seemed to me the circumstance that the Court had jurisdiction to decide matters which, in other courts, would be matters of federal jurisdiction points to a different conclusion, but, for reasons already stated, I am satisfied that it is not the matter to be decided but the source of the authority to decide the matter that determines the character of the jurisdiction being exercised. No part of the jurisdiction of the Court stems from Ch. III, and the jurisdiction which it exercises, even as to matters falling within the enumeration of ss. 75 and 76 of the Constitution, is not federal jurisdiction. If this seems anomalous it is no more anomalous than that this Court, in hearing an appeal from the Supreme Court of the Australian Capital Territory, is not exercising federal jurisdiction because its authority to hear such an appeal stems from a source of power outside Ch. III of the Constitution. (at p609)

15. The conclusion which I have reached makes it unnecessary for me to determine whether or not ss. 51 and 52 of the Australian Capital Territory Supreme Court Act should be regarded as exempting appeals, other than those described therein, from this Court's power to hear appeals under s. 73 of the Constitution. The problem does not arise because, in my view, there is no constitutional appeal from the Supreme Court to this Court. (at p609)

16. In my opinion, therefore, the objection to competency is well founded and the appeal should be dismissed for want of jurisdiction. (at p609)

WINDEYER J. I agree that the objection must be upheld. I do not think that the Supreme Court of the Australian Capital Territory is a "federal court" or court "exercising federal jurisdiction" within the meaning of s. 73 of the Constitution. Furthermore I consider that the Australian Capital Territory Supreme Court Act 1933-1968 by s. 51 and s. 52(1) creates exceptions, within the meaning of s. 73 of the Constitution, to any right of appeal that could exist. I said much of what I would wish to say on the main question in what I wrote in Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 . I add only that I agree in the reasoning of other members of the Court in this case in support of the same conclusion. I shall only make some remarks on the meaning of the word "federal" in Australian constitutional law. (at p610)

2. At the time of the federation of the Colonies, the word "federal" came to be commonly used in relation to the Commonwealth and its institutions. It was the federation, a political entity as distinct from the several federated States. This accorded with American usage and with words in the Constitution itself: for examples: s. 1, "The legislative power of the Commonwealth shall be vested in a Federal Parliament . . ."; s. 62, "There shall be a Federal Executive Council . . ." The adjective "federal" in the expressions "federal court" and "federal jurisdiction" in ss. 71, 73, 77 and 79 are further examples of this usage. The word "federal" is properly used in contrast with the word "State" used adjectivally. But the word "federal" is sometimes used in a wider sense, as equivalent to "national", or to the word "Commonwealth" used adjectivally. Thus Commonwealth servants are sometimes called federal servants: laws made by the Commonwealth Parliament are often called federal laws: Canberra was once commonly called the federal capital; but is now more often called the national capital or the capital of Australia. A territory surrendered by a State to the Commonwealth by virtue of s. 122 is sometimes called a federal territory. Strictly that is a misnomer; for federalism postulates a division of authority between the Commonwealth and a State; whereas Commonwealth territories, those within and those beyond Australia, are within the sole and sovereign governance of the Commonwealth. Section 72 of the Constitution does not apply to courts created by the Parliament to exercise jurisdiction in Commonwealth territories, it being now settled law that the words "the other courts created by the Parliament" denote the courts described as "such other federal courts as the Parliament creates" that are referred to in s. 71. Therefore, to ask whether or not the judge of a court created by the Parliament has the tenure of office that is prescribed by s. 72 of the Constitution does not, I think, aid a determination of whether or not his court is properly called a federal court. A court that is not strictly a federal court cannot become a federal court because its judges are given the tenure of office that judges of federal courts must have. The Parliament may give what tenure it chooses to the judges of any court that it creates that is not, strictly speaking, a federal court. We were told that it is considered that the judges of the Supreme Court of the Australian Capital Territory, a superior court of record, hold their offices during good behaviour. Whether or not that is so seems to me irrelevant to the present question: but, as it was a matter mentioned in the course of the argument, I shall say a few words on it. The question must I think depend ultimately upon the terms of a judge's appointment according to his commission, aided by implications from the nature of his office. (at p611)

3. Section 72 of the Constitution recalls the Act of Settlement, 12 & 13 William III, c. 2, that "Judges' commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them". But s. 72 is more than an echo of that. Its terms are more compelling. An address from Parliament is made the sole method of removal; and it must be "on the ground of proved misbehaviour or incapacity". Without pursuing the matter to any length I may refer to what is said in Todd, Parliamentary Government in the British Colonies (1880); to Quick and Garran on the Constitution, pp. 728-734; and to a very learned article that appeared last year in the Yale Law Journal, vol. 79 pp. 1475-1531, concerning the good behaviour tenure of judges in the United States of America. The decision of this Court in Waterside Workers' Federation of Australia v. J.W. Alexander Ltd. [1918] HCA 56; (1918) 25 CLR 434 has not escaped criticism. But in the main it stands firm, although in so far as it suggests that the judge of any court at all created by the Parliament of the Commonwealth must be appointed for life, it cannot stand for courts created for the territories. The decision in Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 is to the contrary. However, the tenure of office of judges of the High Court and of other federal courts that is assured by the Constitution is correctly regarded as of indefinite duration, that is to say for life, but capable of being relinquished by the holder, and terminable, but only in the manner prescribed, for misbehaviour in office or incapacity. That is because, quite apart from the provisions of the Act of Settlement, and long before it, an estate to be held during good behaviour, or "so long as he shall well demean himself", if not expressly limited for a term, meant an estate for life defeasible upon misbehaviour. A completely sovereign legislature, as the Commonwealth Parliament is with respect to the territories, can provide for appointments that are to be held during good behaviour to be for life subject to removal in any manner it chooses to prescribe, or it can make them for a term of years, or it can adopt the common law by which offices under the Crown are held at the pleasure of the Crown: see Terrell v. Secretary of State for the Colonies (1953) 2 QB 482 . But in cases to which s. 72 applies, appointments must be for life subject to the provisions of the section. (at p612)

4. A close reading of the words in s. 71 of the Constitution, "The judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court of Australia" might leave room for an argument that this Court, being called the Federal Supreme Court, should have jurisdiction only in federal matters strictly so called. Similarly, it might be said that "the judicial power of the Commonwealth" in s. 71 relates only to the Commonwealth as a federation established by the Imperial Act and there referred to as "the peoples (of the several Colonies) united in a Federal Commonwealth under the name the Commonwealth of Australia". But that would be a timid and pedantic regard for verbiage. When this Court hears appeals from courts in the territories, pursuant to a power to do so given by Parliament, it does not do so in a federal capacity. It does so as the supreme court of the Australian nation, exercising a jurisdiction conferred by the Parliament not pursuant to its federal powers but as a sovereign legislature having plenary powers over Australia's territories. The Parliament can authorize an appeal to this Court, on such conditions and subject to such limitation as it thinks fit, from any court that it was within its power as a sovereign legislature to create, although it is not a court within the federal system and governed by the provisions of Ch. III of the Constitution. That has been recognized by this Court and by the Privy Council: see the cases collected by the Chief Justice in his judgment in Spratt v. Hermes (1965) 114 CLR, at p 239 . That rule must stand. It has been firmly stated. And it has a growing importance today and for the future because of the development of Australia as a nation and the place that this Court has in the judicial system of a nation having external territories and accepting increasing obligations in this region of the world. (at p612)

5. I would not wish to be taken as saying that territories within Australia, surrendered to the Commonwealth by any State and thus within s. 122, are in all respects removed from all provisions of the Constitution because they are outside the federal system of divided powers. They owe their existence to the Constitution. They are products of it. It is not necessary to say here how far laws with respect to them may be subject to particular constitutional provisions. I wish only to emphasize that I express no views on that. I regret the disunity in the judicial system of Australia that arises from the separation of federal, State and territorial jurisdictions and the multiple hierarchy of courts that it produces. We must accept it as the law of the Constitution; but we need not add to its complexities. I am not prepared to read the provisions of Ch. III of the Constitution as extending the appellate jurisdiction of this Court in cases arising in the territories beyond the limits that Parliament has set for it. (at p613)

OWEN J. The appellant was convicted by a Court of Petty Sessions in the Australian Capital Territory of a breach of a provision in the City Area Leases Ordinance of the Australian Capital Territory. He appealed to the Supreme Court of the Territory and his appeal was dismissed. He thereupon lodged an appeal to this Court against the order of dismissal. An objection based upon s. 52(1) of the Australian Capital Territory Supreme Court Act was taken to the competency of the appeal on the ground that the offence of which the appellant had been convicted was not an indictable offence and that he had not been convicted on indictment. Section 51 of that Act limits the right of appeal to this Court in civil matters to those mentioned in the section and in criminal cases s. 52(1) provides for appeals only in cases in which the appellant has been convicted on indictment before the Supreme Court of the Territory. (at p613)

2. For the appellant, however, it was contended that the Supreme Court of the Territory is, within the meaning of s. 73 of the Constitution, either a "federal court" or, in hearing the appeal from the Court of Petty Sessions, was a "court exercising federal jurisdiction" and that in either event an appeal lies to this Court under s. 73. These contentions gave rise to interesting arguments and discussions of many earlier decisions of this Court dealing with Ch. III and s. 122 of the Constitution. But when Ch. III of the Constitution is read as a whole, it seems to me that the words "court exercising federal jurisdiction" in s. 73 refer to a State court which the Parliament has invested with federal jurisdiction pursuant to the power conferred by s. 77 (see New South Wales v. The Commonwealth (1915) 20 CLR, at p 62 ; Silk Bros. Pty. Ltd. v. State Electricity Commission (Vict.) (1943) 67 CLR, at p 9 ) and the Supreme Court of a Territory is not such a court. Is it then a "federal court" within the meaning of the section? In my opinion it is not. It is a territorial court created by the Parliament pursuant to s. 122 of the Constitution and not a "federal court" within the meaning of Ch. III (see Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 and the cases collected therein). But if, contrary to my opinion, the Supreme Court of the Territory is either a "federal court" or a "court exercising federal jurisdiction", the appellant is, it seems to me, in no better position. Section 73 of the Constitution enables the Parliament to prescribe exceptions to the right of appeal for which that section provides, and if the Supreme Court of the Territory is a "federal court" or a "court exercising federal jurisdiction", then ss. 51 and 52 (1) of the Australian Capital Territory Supreme Court Act must, I think, be regarded as prescribing exceptions to the general right of appeal which might otherwise have been available under s. 73 of the Constitution. By making provision for appeals in certain cases, those two sections by implications exclude a right of appeal in cases other than those specified. (at p614)

3. In my opinion the objection to the competency of this appeal should be upheld. (at p614)

WALSH J. The Supreme Court of the Australian Capital Territory made an order dismissing an appeal against a conviction by a Court of Petty Sessions in the Australian Capital Territory of an offence against a provision in the City Area Leases Ordinance 1936-1968 of that Territory. The appellant filed a notice of appeal to this Court. An objection was made to the competency of that appeal. On behalf of the appellant a notice was filed that it intended, at or after the hearing of the objection to the competency of the appeal, to apply for special leave to appeal against the said order of the Supreme Court. (at p614)

2. Sections 51 and 52 of the Australian Capital Territory Supreme Court Act 1933-1968 (herein called the Act) contain provisions for appeals in certain civil and criminal cases from the Supreme Court to this Court. In my opinion it is clear that these provisions do not confer any right of appeal in the present case from the order made by the Supreme Court. The appellant contends, however, that the order was, within the meaning of s. 73 of the Constitution, an order "of any other federal court, or court exercising federal jurisdiction". It was submitted also that the jurisdiction conferred by s. 73 on this Court to hear and determine an appeal from the order has not been affected by any exception or regulation prescribed by the Commonwealth Parliament. (at p614)

3. The primary submission for the appellant was not that the Supreme Court was a "federal court" within the meaning of s. 73. The primary submission was that it was a "court exercising federal jurisdiction". But I think it is convenient to consider, first, the question whether it was a federal court. (at p615)

4. It has been established by earlier decisions in this Court that the fact that a court has been constituted by a legislative act of the Parliament of the Commonwealth does not necessarily have the consequence that it is a federal court. In their joint judgment in Reg. v. Kirby; Ex parte Boilermakers' Society of Australia, Dixon C.J., McTiernan, Fullagar and Kitto JJ. said (1956) 94 CLR, at p 290 :

"It would have been simple enough to follow the words of s.

122 and of ss. 71, 73 and 76 (ii.) and to hold that the courts

and laws of a territory were federal courts and laws made by

the Parliament."

Their Honours went on to say that "an entirely different interpretation has been adopted" and they added that it is "one which brings its own difficulties". In accordance with that "entirely different interpretation" it has been held that a court which is not a federal court within the meaning of that expression in s. 71 of the Constitution may be validly established in a territory of the Commonwealth by the exercise (directly or indirectly through subordinate legislation) of the legislative power of the Parliament. Such a court may be established, because independently of the power derived from Ch. III of the Constitution, the power given to the Parliament by s. 122 to make laws for the government of any territory may be used to make a law to establish such courts as may be needed for the purposes of the government of the territory. Thus, in Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 , it was held that the Court of Petty Sessions in the Australian Capital Territory is not a federal court. No challenge has been made in this case to that decision. Whatever differences there have been in the views expressed from time to time by members of this Court concerning the relationship between s. 122 and Ch. III of the Constitution and whatever qualifications have been placed upon the generality of the statement of Griffith C.J. in R. v. Bernasconi (1915) 19 CLR, at p 635 that Ch. III "has no application to territories", it has been held that the Parliament may establish in a territory a court which is not a federal court in the sense in which that term is used in Ch. III. This rule was established a long time ago as a rule which was applicable at least to territories other than the Australian Capital Territory: see Porter v. The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432 . There was some doubt whether or not in this respect the Australian Capital Territory was in the same position as other territories. This subject was discussed by Professor Cowen in Federal Jurisdiction in Australia (1959), pp. 143-148, and by others to whose writings he there referred. In Spratt v. Hermes (1965) 114 CLR, at p 266 , Menzies J., in a summary of what he thought had earlier been decided by this Court, made an exception of the Australian Capital Territory when stating that it had been decided that the Parliament may by a law made under s. 122 establish in the territories courts which are not federal courts in the constitutional sense. The importance of Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 for present purposes is that the same rule was there accepted as being applicable to the creation of a Court of Petty Sessions in the Australian Capital Territory, by an Ordinance promulgated under authority derived from an Act of the Commonwealth Parliament. It was clear that that Court was not validly established as a federal court in accordance with Ch. III. But it was held that its establishment was within power. That was the view of all the members of the Court who took part in the case. I do not find any need in the present case to examine the reasons given for that conclusion. In particular I do not think it is necessary to consider what was said in Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 about s. 52(i.) of the Constitution or what has been said more recently about that provision (in its application to "places acquired by the Commonwealth for public purposes") in Worthing v. Rowell and Muston Pty. Ltd. (1970) 123 CLR 89 and in Reg. v. Phillips [1970] HCA 50; (1970) 125 CLR 93 . If the power of the Parliament under s. 52(i.) includes a power which would authorize the establishment of a court having jurisdiction in the Australian Capital Territory in relation to occurrences in and concerning that Territory, there is in my opinion no reason to hold that that power displaces or restricts the powers which according to the decision in Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 are given to the Parliament in relation to that Territory by s. 122. In Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 the members of the Court who considered that s. 52(i.) was not a source of relevant power and those who did not express that opinion all agreed that s. 122 was an available and sufficient source of power to create in the territory a court which was not a federal court. (at p616)

5. I take it then to be established that it is within the competence of the Parliament to create in the Australian Capital Territory a court which is not a federal court. It does not follow that it is not also within its competence to establish a court which is a federal court and to give that court such jurisdiction as the Parliament may choose to specify to hear and determine matters arising in or in relation to the territory. For present purposes I propose to assume that it was and is competent for the Parliament to do that. It is necessary then to consider whether that is what was done by the Parliament when the Act was passed. Did it exercise a power to create a federal court to be one of the federal courts to which s. 71 refers or did it exercise a power (given by s. 122) to create a court which was not a federal court? In my opinion this question is not to be answered simply and solely by looking at those provisions of the Act which fixed or referred to the tenure of the judges of the court. If they were given a tenure which accorded with the requirements of s. 72 of the Constitution, that might be some indication that it was intended that the court should be established as a federal court. But it would not be decisive. If, on the other hand, the provisions of the Act were such as to make it clear that there was no compliance with s. 72 or even if the provisions left it doubtful whether or not s. 72 was satisfied, this might be an indication that the intention was to create a court which would not be a federal court within the meaning of s. 71 and to which s. 72 would have no application. In my opinion, the provisions concerning the appointment of judges and the constitution of the court do provide an indication that it was not a federal court that was established by the Act. But in any event there were, in my opinion, other indications that what the Act was designed to do, and what it has done, was to set up in and for the purposes of the territory a court to deal with matters pertaining to that territory and was not to create a federal court. (at p617)

6. The Supreme Court was created by an Act passed in 1933 then called the Seat of Government Supreme Court Act. Up to that time jurisdiction in the Territory had been given to the High Court, first, by the Seat of Government Acceptance Act 1909 and, later, by the Judiciary Act 1927. The difficulties surrounding that method of providing for the adjudication of matters pertaining to the territory (see The Federal Capital Commission v. Laristan Building and Investment Co. Pty. Ltd. (1929) 42 CLR, at pp 583-586 ) need not be examined now. That method was replaced by the setting up, by the 1933 Act, of a court which was to be "a Supreme Court of the Territory" (s.6). It was to consist of one judge and it was to be constituted by the judge of the Supreme Court sitting as such Supreme Court (s. 7). The appointment of the judge was to be made by the Governor-General by commission (s. 8). Nothing was stated as to the tenure which the judge was to have. The learned Solicitor-General has submitted to this Court that "the preferred view" is that an appointment made in accordance with the Act would satisfy the requirements of s.72. It would take effect as an appointment for life. I do not think that it is necessary in this case to decide whether or not that view is correct. But I am unable to regard the provisions in the Act relating to the tenure of the judges as a clear indication that the Supreme Court was meant to be a federal court. It may be true that if for other reasons it was plain that the intention was to create a court of the kind to which s. 72 relates (that is a federal court, since in the section the words "the other courts created by the Parliament" have been construed to refer only to the "other federal courts" mentioned in s. 71), then an appointment following the terms of the Act would be taken to be an appointment for life. But in determining whether or not the intention was to create a court of that kind, a provision in the Act by which the power to appoint is conferred in terms which are not explicit as to the tenure of the judge cannot be assumed to carry with it an implication that the appointment is to be for life. I think it is of some importance also to notice that in the 1933 Act there was a provision (s. 8(2)) that the Governor-General might appoint by commission a judge of the Federal Court of Bankruptcy or of the Commonwealth Court of Conciliation and Arbitration to act as a judge of the Supreme Court, during any period in respect of which the Governor-General was satisfied that the judge was or would be unable to act. That power to appoint an acting judge remained in the Act until 1958. Although the power to appoint for a limited period an acting judge, who would during that period constitute the Court, was a power under which the appointee was necessarily a person who had life tenure in another judicial office, it would appear that that circumstance would not save from invalidity the appointment of an acting judge of the Supreme Court, if that Court were a federal court in the constitutional sense. That would appear to follow from the reasoning of the majority of the Court in Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. [1918] HCA 56; (1918) 25 CLR 434 . The provision for the appointment of an acting judge has been repealed and replaced by other provisions (see the Australian Capital Territory Supreme Court Act 1958, s. 5, and the Australian Capital Territory Supreme Court Act 1968, ss. 4, 5, 6). But if the conclusion upon a consideration of the Act, as it was before those changes, should be that the court established by it was not a federal court, I think that this must remain true after those changes, which cannot be thought to have altered the constitutional character of the court. (at p619)

7. The jurisdiction given by the Act to the Supreme Court is specified in s. 11. It includes the same original jurisdiction, both civil and criminal, as the Supreme Court of the State of New South Wales had in relation to that State immediately before 1st January 1911. It includes such jurisdiction, both civil and criminal, as is from time to time vested in the court by Act or by Ordinance. It includes appellate jurisdiction in respect of judgments etc. of inferior courts having jurisdiction in the territory. In the earlier form of the section, the paragraphs specifying the jurisdiction were preceded by the provision that (subject to the Act) the court should have the specified jurisdiction "in all matters arising under any law of the Territory, and generally in relation to the Territory". By a subsequent amendment (in 1957) those words were deleted, but the jurisdiction specified in the first paragraph of s. 11 is still stated to be a jurisdiction which the court has "in relation to the Territory". (at p619)

8. In my opinion those provisions show that the Act was an exercise of the power conferred by s. 122. A court was set up to serve a purpose of the government of the Territory. The court which was set up was not a federal court. I do not rest this conclusion upon a view that if the court were a federal court, it could not have conferred upon it any judicial authority except in respect of the matters set out in ss. 75 and 76 of the Constitution. If it be correct to say that, upon a federal court created in accordance with s. 71, there may be conferred, by the exercise of the power given by s. 122, a jurisdiction additional to whatever jurisdiction may be given to the court pursuant to s. 77, it would follow that it would not be possible to base a conclusion that a court is not a federal court simply upon the fact, if it be the fact, that some jurisdiction given to the court is jurisdiction which could not be conferred otherwise than by an exercise of power under s. 122. But as I have said I do not reach my conclusion by that means, and I do not think that I need decide whether or not it is within power to confer upon a federal court (other than this Court) a separate and additional jurisdiction beyond that which could be conferred in accordance with Ch. III. The basis of my conclusion may be summarized in two propositions. The first is that because of the power given by s. 122 a court which is not a federal court in the sense of Ch. III may be established in the territories (including the Australian Capital Territory) by the legislative act of the Commonwealth Parliament. The second is that upon a consideration of the Act it is seen that the court established by it is a court that is not in that sense a federal court. The first proposition involves in it a denial that any court which is a creature of the Commonwealth Parliament must be a federal court and Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 provides a sufficient reason for that denial. The second proposition expresses the conclusion which I have reached upon a consideration of the provisions of the Act to which I have referred. (at p620)

9. It is necessary now to consider whether the Supreme Court was, when dealing with the appeal brought to it by the appellant, a "court exercising federal jurisdiction", within the meaning of s. 73. An examination of decisions of this Court which have dealt with questions arising under Ch. III of the Constitution, and of the reasons given for those decisions, reveals that difficulties of logic and of language have been encountered in the working out of the interpretation and application of the provisions of that Chapter. This was recognized in the passage which I have already quoted from the majority judgment in this Court in the Boilermakers' Case [1956] HCA 10; (1956) 94 CLR 254 . It is clearly seen upon a comparison of the judgments of different members of this Court in Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 . But this does not provide a justification for disregarding the earlier decisions or for looking at the provisions of Ch. III as if they were now to be examined for the first time. The arguments that we have heard in the present case have covered a wide range. Learned counsel for the appellant has sought to demonstrate that, to a large extent, what he described as "the Bernasconi doctrine" has by now been rejected by this Court and he has submitted that when the cases decided after Bernasconi's Case [1915] HCA 13; (1915) 19 CLR 629 are considered, it must be kept in mind that they contain reasoning which is dependent upon notions derived from Bernasconi's Case [1915] HCA 13; (1915) 19 CLR 629 which should now be condemned as erroneous. I think it is not useful to go over the details of the arguments addressed to us. But I must deal with what seem to me to be the essential grounds upon which was based the contention that the Supreme Court was exercising federal jurisdiction. I make the preliminary observation that to a considerable extent the submissions made on behalf of the appellant were in conflict in my opinion with views which have been commonly accepted over a long period and which could not be lightly discarded now. (at p620)

10. The assumption which must be made in considering the present question is that the Supreme Court when hearing the appeal to it was not a federal court. It was not of course a court of a State. It was a court established by the Commonwealth Parliament under the power conferred on it by s. 122 to make laws for the government of a territory. In my opinion that Court was not exercising federal jurisdiction when it heard the appeal brought to it by the appellant against a conviction for an offence against a law contained in an Ordinance of the Territory. (at p621)

11. Counsel for the appellant submitted that federal jurisdiction means an authority to adjudicate which is derived from Commonwealth law. He submitted that the authority of the Supreme Court is derived from the Act and that the Act, although enacted under the power given by s. 122, is none the less a law of the Commonwealth. Therefore, it was said, the Supreme Court exercised federal jurisdiction. (at p621)

12. There has been dissent from the view, founded on Bernasconi's Case [1915] HCA 13; (1915) 19 CLR 629 , that a law made under s. 122 is not a "law of the Commonwealth". Since Lamshed v. Lake [1958] HCA 14; (1958) 99 CLR 132 , it could not be asserted that such a law is not for any purpose a law of the Commonwealth. But the acceptance of that view does not establish the conclusion to which the argument for the appellant was directed. The first proposition in the argument is, in my opinion, unacceptable. The assertion that federal jurisdiction means an authority to adjudicate derived from the Commonwealth law rests on an unwarranted assumption that all jurisdiction that may be described as "Commonwealth jurisdiction" (for the reason that it is derived from a law enacted by or under the authority of the Commonwealth Parliament) must also be described as "federal jurisdiction". The assumption that the term "federal" is synonymous with the term "Commonwealth" (used adjectivally to refer to a court or to its jurisdiction) cannot be supported in my opinion as a valid assumption, for the purposes of the interpretation of s. 71 or s. 73 of the Constitution. As I have already stated, there may be courts which although they might be called Commonwealth courts, in the sense that they have been established pursuant to a law of the Commonwealth Parliament, are not federal courts. Likewise there may be, in my opinion, jurisdiction which, although it is given by a law of the Commonwealth Parliament, is not federal jurisdiction. (at p621)

13. We were referred to some judicial statements which were said to support the submission of counsel for the appellant as to the meaning of federal jurisdiction. I shall refer to some of the passages upon which he relied. In Baxter v. Commissioners of Taxation (N.S.W.) [1907] HCA 76; (1907) 4 CLR 1087, at p 1143 Isaacs J., in discussing s. 39 of the Judiciary Act, said that s. 39(2) conferred "federal jurisdiction" only and he added that "none other is in the power of the Commonwealth Parliament to grant". But that statement was made in a discussion of the nature of the jurisdiction given to State Courts by the Commonwealth Parliament. When Isaacs J. dealt in Porter v. The King with the jurisdiction of a territorial court, he said of it [1926] HCA 9; (1926) 37 CLR 432, at p 440 :

"Nor is it a Court 'exercising Federal jurisdiction' within

the meaning of s. 73, because such a Court is in contradistinction

to a 'Federal Court'. It means a State Court invested with

Federal jurisdiction or assuming in fact to be so invested. Any

attempt to justify appellate jurisdiction in this Court from a

territorial Court on the self-executing provisions of the

Constitution

fails."

In Lorenzo v. Carey [1921] HCA 58; (1921) 29 CLR 243, at p 252 the statements made as to the meaning of "federal jurisdiction" in Ch. III were likewise made in the course of the discussion of jurisdiction given to State courts by s. 39 of the Judiciary Act; and when Windeyer J. referred to those statements, in his judgment in Anderson v. Eric Anderson Radio & T.V. Pty. Ltd. [1965] HCA 61; (1965) 114 CLR 20, at p 44 , he was concerned with a question as to the jurisdiction of a State court. The observations made in those two cases as to the nature of the jurisdiction exercised by a court of a State which has been invested with federal jurisdiction appear to me to have no real bearing on the question which arises in the present case. I think, therefore, that I need not consider whether or not those observations should be accepted as correct. I am of opinion that they could not in any event provide a reason for giving an affirmative answer to the question whether a court of a territory, exercising in that territory a judicial authority derived from a law made under s. 122, is exercising federal jurisdiction within the meaning of s. 73. In my opinion that question should be answered in the negative. I am of opinion that the statement by Isaacs J. in Porter's Case [1926] HCA 9; (1926) 37 CLR 432, at p 440 which I have already quoted was correct and is unaffected by the fact that in subsequent cases there has been dissent from some of the statements made in Bernasconi's Case [1915] HCA 13; (1915) 19 CLR 629 or in other cases, including Porter's Case, which accepted the principles enunciated in Bernasconi's Case [1915] HCA 13; (1915) 19 CLR 629 . (at p622)

14. A different view from that which I have stated was taken by Higgins J. in Wall v. The King; Ex parte King Won and Wah On (No. 1) [1927] HCA 4; (1927) 39 CLR 245, at pp 261-262 . But the question debated in that case was not whether an appeal lay to this Court by virtue of s. 73 of the Constitution. It was whether the case before the court came within the terms of an Ordinance providing for appeals in certain cases to this Court, this being the Ordinance which in Porter's Case [1926] HCA 9; (1926) 37 CLR 432 had been held to be valid. My conclusion that the quoted statement of Isaacs J. in Porter's Case (1926) 37 CLR, at p 440 should be accepted is supported in my opinion by the weight of authority: see New South Wales v. The Commonwealth [1915] HCA 17; (1915) 20 CLR 54, particularly at pp 62, 89 , and Silk Bros. Pty. Ltd. v. State Electricity Commission of Victoria (1943) 67 CLR, at p 9 . I think that we ought not to depart from the view that in s. 73 (ii) the words "court exercising federal jurisdiction" refer only to a State court exercising federal jurisdiction with which it has been invested in accordance with s. 77(iii.). (at p623)

15. If the argument were accepted that any jurisdiction derived from any law made (directly or indirectly) by the Commonwealth Parliament is "federal jurisdiction", that would mean that the whole of the jurisdiction exercised by the Supreme Court of a territory and indeed by any court in a territory must be classed as federal jurisdiction within the meaning of ss. 71 and 73. If on the other hand the view be taken that no jurisdiction which is exercised by virtue of authority conferred by a law not made under Ch. III is federal jurisdiction, it would follow that the Supreme Court (regarded as a court established by a law made under s. 122 and not as a federal court created under Ch. III) would not in any matter with which it dealt be a court exercising federal jurisdiction. It would in all cases be exercising jurisdiction conferred on it by virtue of the power under s. 122 and it would be inappropriate to use the word "federal" to describe that jurisdiction. I am of opinion that that view of the matter should be accepted. It is to be preferred in my opinion to a view that all the jurisdiction exercised by all the courts of the territories is federal jurisdiction for the reason that it is derived from a law made by the Commonwealth Parliament. An intermediate position may be suggested, namely, that some of the jurisdiction of courts in territories is to be regarded as federal jurisdiction because of the subject matter of the grant of jurisdiction, but otherwise the jurisdiction of those courts is not federal jurisdiction. It is possible but by no means certain that it was because of such a view that Kitto J. in Spratt v. Hermes (1965) 114 CLR, at pp 259-260 qualified his statement as to the nature of the judicial power exercised by a court in a territory in dealing with an offence in that territory against a law of that territory, by including in it the words "unless there be some federal factor in the case". The same view may have been assumed to be correct when s. 18 of the Bankruptcy Act 1924-1965 was framed. It provided (inter alia) that courts of territories were thereby "invested with federal jurisdiction in bankruptcy throughout the Commonwealth". With this may be contrasted the form of s. 27(2) of the Bankruptcy Act 1966 and of s. 23(2) of the Matrimonial Causes Act 1959, in both of which provisions "jurisdiction" (not federal jurisdiction) is "conferred" on the Supreme Courts of territories. I am of opinion that when authority is conferred on courts of the territories to adjudicate in cases arising under legislation upon bankruptcy and matrimonial causes that jurisdiction is not to be described as federal merely because those are subjects with respect to which the Commonwealth Parliament has power under s. 51 to make laws. But even if, contrary to my view, the jurisdiction exercised in such matters ought for that reason to be classified as federal jurisdiction that would not assist the appellant in the present case. (at p624)

16. For the reasons stated I am of opinion that the appeal was not competent. It appears clear that the case is not one in which special leave to appeal could properly be granted. In my opinion the objection to competency should be upheld and special leave to appeal should be refused. (at p624)

GIBBS J. The appellant, a private company, having unsuccessfully appealed to the Supreme Court of the Australian Capital Territory ("the Supreme Court") from a conviction in the court of petty sessions at Canberra of a breach of the City Area Leases Ordinance 1936-1968 of the Australian Capital Territory, gave notice of appeal to this Court. The respondent objected to the competency of the appeal. The appellant thereupon intimated that if the objection to competency were allowed it would seek special leave to appeal. The questions for our decision are whether an appeal lies to this Court in the present case and, if not, whether we have power to grant leave to appeal. (at p624)

2. By ss. 51 and 52 of the Australian Capital Territory Supreme Court Act 1933-1969 (Cth) ("the Act") this Court is given jurisdiction to hear and determine certain appeals from judgments of the Supreme Court in civil matters and also to hear and determine certain appeals by persons convicted on indictment before the Supreme Court. The present case does not fall within either of those provisions. However, on behalf of the appellant, it was submitted that jurisdiction to hear this appeal is conferred by s. 73 (ii.) of the Constitution. For that submission to succeed it must be held that the Supreme Court answers the description of "any other federal court, or court exercising federal jurisdiction" within s. 73 (ii.) and that the Parliament has not by ss. 51 and 52 of the Australian Capital Territory Supreme Court Act prescribed an exception to the jurisdiction given by s. 73. (at p625)

3. In my opinion the Supreme Court is not a federal court within Ch. III of the Constitution; it is a territorial court established under s. 122 of the Constitution. The power conferred on the Parliament by s. 122 to make laws for the government of the territories, whether or not it is subject to limitations to be found elsewhere in the Constitution, is a plenary power pursuant to which the Parliament may create, or authorize the creation of, courts having jurisdiction in relation to the territories. It is now clearly settled by authority that a court created under s. 122 for any territory, including the Australian Capital Territory, is not a federal court: Porter v. The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432 ; Edie Creek Pty. Ltd. v. Symes [1929] HCA 37; (1929) 43 CLR 53 ; Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 ; and see Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR, at p 290 ; and Attorney-General (Cth) v. The Queen (1957) 95 CLR, at p 545 . Dicta that suggest that a territorial court is or may be a federal court (Mainka v. Custodian of Expropriated Property (1924) 34 CLR 297, at p 301 and Douran v. Whisker [1946] HCA 9; (1946) 72 CLR 595, at p 606 ) or that a distinction may be drawn between territories which have and those which have not formed part of the Commonwealth (Mitchell v. Barker [1918] HCA 13; (1918) 24 CLR 365, at p 367 ) cannot now be treated as correct. (at p625)

4. The question whether a court is a federal court does not, in my opinion, depend on the tenure given to its judges. An Act passed by the Parliament in purported exercise of the power given by s. 71 to create a federal court will be invalid if the judges of the court are not to be appointed for life: s. 72 of the Constitution, and Waterside Workers' Federation of Australia v. J.W. Alexander Ltd. [1918] HCA 56; (1918) 25 CLR 434 . However, the mere fact that life tenure is given to the judges does not mean that a court is a federal court. Although, in the exercise of the power given by s. 122, the Parliament may validly create a territorial court whose members have not life tenure (Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 ) it is not precluded from giving life tenure to the members of such a court. It is, therefore, unprofitable in the present case to consider whether or not all the judges of the Supreme Court are appointed for life. (at p625)

5. Moreover, a court is not necessarily a federal court because it may be called upon to adjudicate upon a matter arising under a general law which applies to the States as well as to the territories. I respectfully agree with the statement of the Chief Justice in Spratt v. Hermes (1965) 114 CLR, at p 239 that "a territorial court having the appropriate local jurisdiction may enforce in relation to acts occurring within the territory in question a law made by the Parliament upon a subject matter falling within s. 51 of the Constitution and intended to operate throughout the Commonwealth", and with the reasons given by Kitto J. (1965) 114 CLR, at pp 259-260 for that conclusion. On the other hand, a court set up as a federal court may have conferred on it under s. 122 jurisdiction in respect of a territory. It is settled that the Parliament acting under s. 122 may give a right of appeal to this Court from decisions of the courts of territories (see the cases cited in Spratt v. Hermes (1965) 114 CLR, at p 239 ), although in both Porter v. The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432 and Spratt v. Hermes [1965] HCA 66; [1965] HCA 66; (1965) 114 CLR 226 the Court divided as to whether an original jurisdiction may similarly be conferred. Clearly the Parliament can in the same way confer appellate (and possibly also original) jurisdiction on any other federal court. It is, therefore, not possible to say that a court is a federal court simply because it has jurisdiction to adjudicate upon matters arising under general laws of the Commonwealth, or that it is not a federal court simply because it exercises a jurisdiction in relation to a territory. The question must depend on the source of the power to create the court; if the court is created by a law passed for the government of the territory under s. 122 it is not a federal court. Imprecise as this test may be thought to be, it presents no difficulty in its application in the present case. By s. 11 of the Act it is provided that the Supreme Court -

(a) has, subject to any Act or Ordinance, in relation to the

Australian Capital Territory, the same original jurisdiction,

both civil and criminal, as the Supreme Court of the

State of New South Wales had in relation to that State

immediately before 1st January 1911:

(b) has such jurisdiction, both civil and criminal, and whether

original or otherwise, as is from time to time vested in it

by Act or Ordinance; and

(c) has jurisdiction, with such exceptions and subject to such

conditions as are provided by Act or Ordinance, to hear

and determine appeals from all judgments, convictions,

orders and sentences of inferior courts having jurisdiction

in the Territory.

There can be no doubt that the only power to create a court with jurisdiction of that kind is that conferred on the Parliament by s. 122. (at p626)

6. However the main submission of the appellant was that the Supreme Court is a court exercising federal jurisdiction within s. 73 (ii.) of the Constitution. It was submitted that federal jurisdiction in s. 73 means an authority or power to adjudicate which is derived from a Commonwealth law, including a law passed under s. 122 of the Constitution, and that the Supreme Court derives its power of adjudication from the provisions of the Act, which is a law of the Commonwealth, and therefore exercises federal jurisdiction. It was further submitted that the expression "court exercising federal jurisdiction" in s. 73 is wide enough to include, not only a court of a State, but also a court created by the Commonwealth Parliament, other than a federal court, which exercises federal jurisdiction. (at p627)

7. It is unnecessary to consider the meaning of the expression "federal jurisdiction" as used in ss. 71 and 73 of the Constitution because the expression "court exercising federal jurisdiction" in s. 73 refers only to a court of a State. Although ss. 71 and 73 do not expressly refer to State courts, the only power given to the Parliament to invest a court with federal jurisdiction is that given by s. 77, which provides that with respect to any of the matters mentioned in the last two preceding sections the Parliament may make laws - "(iii.) Investing any court of a State with federal jurisdiction". When the Constitution is read as a whole it appears that s. 71 refers to the High Court and to two other classes of courts, namely, federal courts created by the Parliament and such State courts as the Parliament invests with federal jurisdiction under s. 77, and that the expression "court exercising federal jurisdiction" in s. 73 refers to a State court exercising federal jurisdiction with which it has been so invested. This view of the construction of the sections was taken in New South Wales v. The Commonwealth (1915) 20 CLR, at p 62 ; Porter v. The King; Ex parte Yee (1926) 37 CLR, at p 440 ; Silk Bros. Pty. Ltd. v. State Electricity Commission (Vict.) (1943) 67 CLR, at p 9 ; and Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1965) 94 CLR, at p 270 . It is true that Higgins J. in his dissenting judgment in Wall v. The King; Ex parte King Won (1927) 39 CLR, at pp 261-262 and Evatt J. speaking obiter in Davies v. Ryan [1933] HCA 64; (1933) 50 CLR 379, at p 382 took the view that a court established under s. 122 might be regarded as a court exercising federal jurisdiction within s. 73. The question was not fully discussed in either case and these remarks in my opinion should be treated as having been made per incuriam. (at p627)

8. It is, in my opinion, quite unnecessary to consider the arguments advanced by the appellant that the statement by Griffith C.J. in R.v. Bernasconi (1915) 19 CLR, at p 635 , that "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", cannot be supported in the light of later authorities. The decision itself has stood for many years and ought to be treated as binding, but the correctness of those remarks of Griffith C.J. need not be considered in the present case. (at p628)

9. Since the Supreme Court is neither a federal court, nor a court exercising federal jurisdiction, within s. 73 of the Constitution, this Court is not invested by that section with appellate jurisdiction in the present case. Accordingly, the question whether the provisions of ss. 51 and 52 of the Act would create an exception to the jurisdiction conferred by s. 73, if the case otherwise fell within that section, does not arise. (at p628)

10. We were not referred to any provision, either of the Constitution or of an enactment made under s. 122, giving us jurisdiction to grant special leave to appeal in the present case. On the view that I take, s. 73 does not confer such jurisdiction. (at p628)

11. I would allow the objection to competency and refuse the application for special leave to appeal as incompetent. (at p628)

ORDER

Appeal dismissed with costs as incompetent. Special leave to appeal refused with costs.