Week 1 notes part B - lecture 1b PDF

Preview

Summary

lecture 1b...

Description

TL20010 Constitutional Law Week 1 2019 Seminar 2 (Friday) The Role and Powers of the High Court of Australia Critical concepts • • •

Jurisdiction (original and appellate) Standing “Matter” REQUIRED READING Commonwealth Constitution Chapter III Sections 18, 35, 35A, 40(1), 75, 78A, 78B Judiciary Act

The High Court of Australia : Functions and Jurisdiction

The functions and jurisdiction of the High Court are to be found in Chapter III of the Constitution and in other legislation enacted by the Commonwealth Parliament, including Judiciary Act 1903 (Cth), High Court of Australia Act 1979 (Cth) and High Court Rules. A satisfactory understanding of constitutional litigation in Australia involves some knowledge of the jurisdiction and procedure of the High Court. The Federal Supreme Court Section 71 of the Constitution provides that the judicial power of the Commonwealth shall be vested, inter alia, in a federal Supreme Court to be called the High Court of Australia. The High Court of Australia is a powerful institution, which combines the functions of interpreting and maintaining the Constitution and hearing appeals from State, Territory and other federal courts. Since the abolition of appeals to the Privy Council the High Court has become the ultimate court of appeal in the country. Privy Council Appeals Section 74 of the Constitution provides, inter alia, that the Parliament may enact legislation limiting the grounds upon which leave might be sought to appeal to the Privy Council. The effect of the Commonwealth Parliament’s enactment of the Privy Council (Limitation of Appeals) Act 1968 was to establish the High Court as the final arbiter in all constitutional matters and other matters involving federal jurisdiction. This Act was held to be valid in Kitano v Commonwealth [1976] AC 99. This Act was followed in 1975 by the Privy Council (Appeals from the High Court) Act 1975 which effectively abolished all appeals to the Privy Council from the High Court. The 1975 Act was held to be valid in Attorney-General (Commonwealth) v T &G Mutual Life Society Limited (1978) 144 CLR 161. The intricacies associated with the appeals from State Courts to the Privy Council were eliminated by the Australia Acts in 1986. Justices of the High Court Section 72 provides for the appointment and removal of Justices. The Judiciary Act 1903 (Cth) at the time of its enactment provided for the appointment of a Chief Justice and two

Justices. Over time the Act was amended in order to increase the number of Justices. The current complement of the court is a Chief Justice and six Justices (see s 5 of the High Court of Australia Act 1979 (Cth)). Justices of the High Court had tenure for life until the Constitutional amendment in 1977 when a successful referendum and the Constitution Alteration (Retirement of Judges) 1977 added several paragraphs to s 72 of the Constitution. The amendments provided, in essence, that the retirement age for Justices was 70 years. The qualifications for Justices of the High Court are to be found in s 7 of the High Court of Australia Act 1979 (Cth). This section states that no person shall be appointed as a Justice unless he or she has been a Judge of a federal, State or Territory court, or has been a legal practitioner of the High Court or a Supreme Court of a State or Territory for five years or more. Jurisdiction of the Court The Constitution states that the High Court has jurisdiction in relation to “matters”. Since the decision in In re Judiciary and Navigation Acts (1921) 29 CLR 257 (CB1104-1106), it has been clear that the High Court has no jurisdiction to pronounce on abstract questions of law, and thus is not permitted to provide advisory opinions. This principle and its exposition in the earlier case were explained in Croome v Tasmania (1997) 142 ALR 397. The question of when a “matter” arises for consideration of the court arose again the case of Re McBain; ex parte Australian Catholic Bishops’ Conference (2002) 209 CLR 372, in which the Australian Catholic Bishops’ Conference had sought and obtained a fiat from the Commonwealth Attorney-General to challenge the decision in McBain v Victoria (2000) 177 ALR 320. Constitutional litigation may occur in the original or appellate jurisdiction of the High Court and there are a number of avenues by which constitutional cases may make their way to the High Court: •

Appeals with special leave: Judiciary Act 1903 (Cth), s 35 The circumstances in which litigants may appeal to the High Court as of right had been gradually curtailed during the 20th century until their abolition via amendments to the Judiciary Act 1903 (Cth) in 1984. The validity of the 1984 amendments was upheld in Smith-Kline and French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194. The statutory criteria for grant of special leave to appeal on questions of law to the High Court in s 35A of the Judiciary Act 1903 tend to favour public law questions, especially in the public and general importance criterion in s 35A(a)(i).

35 Appeal from courts of States (1) The jurisdiction of the High Court to hear and determine appeals from: (a) judgments of the Supreme Court of a State, whether given or pronounced in the exercise of federal jurisdiction or otherwise; or (b) judgments of any other court of a State given or pronounced in the exercise of federal jurisdiction; whether in civil or criminal matters, is subject to the exceptions and regulations prescribed by this section. (2) An appeal shall not be brought from a judgment, whether final or interlocutory, referred to in subsection (1) unless the High Court gives special leave to appeal.

(5) The foregoing provisions of this section have effect subject to any special provision made by an Act other than this Act, whether passed before or after the commencement of this section, preventing or permitting appeals from the Supreme Courts of the States in particular matters.

35AA Appeals from Supreme Court of a Territory (1) Subject to subsections (2) and (3), the High Court has jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory. (2) An appeal shall not be brought from a judgment, whether final or interlocutory, referred to in subsection (1) unless the High Court gives special leave to appeal. (2A) An appeal may not be brought to the High Court from a judgment of the Supreme Court of the Australian Capital Territory given after the commencement of this subsection when that Court is known as the Court of Disputed Elections under subsection 252(1) of the Electoral Act 1992 of that Territory. (3) Subsection (1) has effect subject to any special provision made by an Act other than this Act, whether passed before or after the commencement of this section, preventing or permitting appeals from the Supreme Court of a Territory.

35A Criteria for granting special leave to appeal In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to: (a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law: (i) that is of public importance, whether because of its general application or otherwise; or (ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and (b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates. •

Case stated or questions reserved: Judiciary Act 1903 (Cth), s 18 Section 18 provides that any Justice of the High Court may state any question or reserve any question of law for the consideration of the Full Court. The case stated procedure is adopted where the parties to litigation are in agreement about the constitutional facts to be presented to the Court. Section 44 of the Judiciary Act 1903 provides the power to remit questions such as fact-finding questions to a federal court or Supreme Court of a State or Territory. The questions reserved procedure is adopted where questions of law can be referred to the High Court without facts being agreed by the parties, or facts found by a lower court can be used.

18 Reference to Full Court Any Justice of the High Court sitting alone, whether in Court or in Chambers, may state any case or reserve any question for the consideration of a Full Court, or may direct any

case or question to be argued before a Full Court, and a Full Court shall thereupon have power to hear and determine the case or question. •

Application for removal of a case: Judiciary Act 1903 (Cth), s 40(1) Where any cause arising under the Constitution or involving its interpretation is pending in a federal, State or Territory court, s 40(1) of the Judiciary Act 1903 (Cth) provides that the case may be removed to the High Court on application by a party for sufficient cause. Where an application for removal is made by an Attorney-General the High Court must order removal. The High Court may itself order removal of a cause.

40 Removal by order of the High Court (1) Any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in a federal court other than the High Court or in a court of a State or Territory may, at any stage of the proceedings before final judgment, be removed into the High Court under an order of the High Court, which may, upon application of a party for sufficient cause shown, be made on such terms as the Court thinks fit, and shall be made as of course upon application by or on behalf of the Attorney-General of the Commonwealth, the Attorney-General of a State, the Attorney-General of the Australian Capital Territory or the Attorney-General of the Northern Territory. (2) Where: (a) a cause is at any time pending in a federal court other than the High Court or in a court of a Territory; or (b) there is at any time pending in a court of a State a cause involving the exercise of federal jurisdiction by that court; the High Court may, upon application of a party or upon application by or on behalf of the Attorney-General of the Commonwealth, at any stage of the proceedings before final judgment, order that the cause or a part of the cause be removed into the High Court on such terms as the Court thinks fit. (3) Subject to the Constitution, jurisdiction to hear and determine a cause or part of a cause removed into the High Court by an order under subsection (2), to the extent that that jurisdiction is not otherwise conferred on the High Court, is conferred on the High Court by this section. (4) The High Court shall not make an order under subsection (2) unless: (a) all parties consent to the making of the order; or (b) the Court is satisfied that it is appropriate to make the order having regard to all the circumstances, including the interests of the parties and the public interest. (5) Where an order for removal is made under subsection (1) or (2), the proceedings in the cause and such documents, if any, relating to the cause as are filed of record in the court in which the cause was pending, or, if part only of a cause is removed, a certified copy of those proceedings and documents, shall be transmitted by the Registrar or other proper officer of that court to the Registry of the High Court.

41 Proceedings after removal When a cause or part of a cause is removed into the High Court under section 40, further proceedings in that cause or part of a cause shall be as directed by the High Court.

42 Remittal of causes (1) Where a cause or part of a cause is removed into the High Court under section 40, the High Court may, at any stage of the proceedings, remit the whole or a part of that cause or part of a cause to the court from which it was removed, with such directions to that court as the High Court thinks fit. (2) Where it appears to the High Court that the High Court does not have original jurisdiction, whether by virtue of subsection (3) of section 40 or otherwise, in a cause or part of a cause that has been removed into the High Court under section 40, the High Court shall proceed no further in the cause or part of a cause but shall remit it to the court from which it was removed.

•

Intervention by Attorneys-General: Judiciary Act 1903 (Cth), ss 78A and 78B Sections 78A and 78B of the Judiciary Act 1903 provide that Attorneys-General of the Commonwealth and States may intervene in proceedings before the High Court where the matter arises under the Constitution or involves its interpretation. Section 78B is a mechanism to ensure that Attorneys-General who may wish to intervene in constitutional cases are given sufficient notice of issues which arise in pending cases and time to respond by way of intervention. The form of the notice in s 78B is to be found in the High Court Rules. The notice requirements in s 78B apply to proceedings in original and appellate jurisdictions. Other persons or groups who wish to appear as interveners or amici curiae (“friends of the court”) require leave of the court to appear. The High Court has been cautious in permitting submissions by non-government groups as amici curiae: see APLA Ltd v Legal Services Commissioner (NSW) (2005) 219 ALR 403.

78A Intervention by Attorneys-General (1) The Attorney-General of the Commonwealth may, on behalf of the Commonwealth, and the Attorney-General of a State may, on behalf of the State, intervene in proceedings before the High Court or any other federal court or any court of a State or Territory, being proceedings that relate to a matter arising under the Constitution or involving its interpretation. (2) Where the Attorney-General of the Commonwealth or of a State intervenes in proceedings in a court under this section, the court may, in the proceedings, make such order as to costs against the Commonwealth or the State, as the case may be, as the court thinks fit. (3) Where the Attorney-General of the Commonwealth or of a State intervenes in proceedings in a court under this section, then, for the purposes of the institution and prosecution of an appeal from a judgment given in the proceedings, the Attorney-General of the Commonwealth or the State, as the case may be, shall be taken to be a party to the proceedings. (4) Where the Attorney-General of the Commonwealth or of a State institutes an appeal from a judgment given in proceedings in which the Attorney-General of the Commonwealth or the State, as the case may be, has intervened under this section, a court hearing the appeal may make such order as to costs against the Commonwealth or the State, as the case may be, as the court thinks fit.

78B Notice to Attorneys-General (1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. (2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending: (a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit; (b) may direct a party to give notice in accordance with that subsection; and (c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation. (3) For the purposes of subsection (1), a notice in respect of a cause: (a) shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and (b) is not required to be given to the Attorney-General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney-General of a State if he or she or the State is a party to the cause. (4) The Attorney-General may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section. (5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.

High Court: Original and Appellate Jurisdiction The High Court has both original and appellate jurisdiction as provided in the Constitution. Original jurisdiction of the High Court (s 75) Section 75 of the Constitution provides for the original jurisdiction of the High Court in a range of matters. Much litigation has arisen by way of s 75(iii) and s 75(v), which provide that the High Court shall have original jurisdiction in all matters in which the Commonwealth or a person using or being sued on behalf of the Commonwealth is a party, and in which a writ of Mandamus or prohibition or injunction is sought against an officer of the Commonwealth, respectively. The High Court’s original jurisdiction outside constitutional matters declined significantly after the establishment of the Federal Court of Australia in 1976. Additional original jurisdiction (s 76) Section 76 provides that the Parliament may make laws conferring original jurisdiction on the High Court in any matters arising under the Constitution, or involving its interpretation.

Parliament legislated in s 30(a) of the Judiciary Act 1903 (Cth) that the High Court should have original jurisdiction in all matters arising under the Constitution or involving its interpretation.

30 Original jurisdiction conferred In addition to the matters in which original jurisdiction is conferred on the High Court by the Constitution, the High Court shall have original jurisdiction: (a) in all matters arising under the Constitution or involving its interpretation; and (c) in trials of indictable offences against the laws of the Commonwealth. Appellate jurisdiction (s 73) Section 73 of the Constitution provides that the appellate jurisdiction of the High Court includes the determination of appeals from Judges exercising the original jurisdiction of the High Court and appeals from decisions of federal and State Supreme Courts. In Fingleton v R (2005) 216 ALR 474, a majority of the High Court held that s 73 of the Constitution does not prohibit the Court from hearing an appeal on grounds which are new and have not been argued in courts below. However, it is made explicit in the judgments that special leave to appeal in these circumstances will be granted in exceptional cases only. Section 23 of the Judiciary Act 1903 (Cth) provides that in a question affecting the constitutional powers of the Commonwealth, the High Court is prevented from giving a decision unless at least three Justices concur.

23 Decision in case of difference of opinion (1) A Full Court consisting of less than all the Justices shall not give a decision on a question affecting the constitutional powers of the Commonwealth, unless at least three Justices concur in the decision. (2) Subject to the last preceding subsection, when the Justices sitting as a Full Court are divided in opinion as to the decision to be given on any question, the question shall be decided according to the decision of the majority, if there is a majority; but if the Court is equally divided i...