High Court Rejects Habeas Corpus Application Over Invalid Judge Appointment

OUTCOME: Dismissed

High Court of Australia [NAME] [NAME] and [NAME] Re [NAME], [COMPANY]; Ex parte [NAME] [1999] HCA 44

ORDER Application dismissed with costs

Cur adv vult

The following written judgments were delivered: —

2 September 1999 [NAME], [NAME] and [NAME].

1. Following a trial in the Supreme Court of the [NAME] ([NAME]), before [NAME] and a jury, the applicant was convicted of murder. He was sentenced to imprisonment for life. He appealed unsuccessfully to the [ADDRESS] of the Federal Court [1] . He has made an application for special leave to appeal to this Court. That application is the subject of separate proceedings, and is not presently relevant.

1. [NAME] v The Queen (1997) 76 FCR 9.

2. The applicant seeks a writ of habeas corpus addressed to the first respondent. In effect, he asks this Court to order his release from custody. The ground of the application is that he was not duly convicted. The basis of that assertion is the contention that [NAME] was not validly appointed.

3. The argument that the appointment of [NAME[NAME] was invalid turns upon the proposition that appointments to the Supreme Court of the [NAME] are governed by s 72 of the Constitution. If that proposition is correct, there are at least two grounds of invalidity. First, [NAME[NAME] was not appointed by the [NAME]-in-Council, as required by s 72(i). He was appointed by the Executive of the [NAME]. This is not a mere formality. Behind the legal question of the identity of the appointor, there is the practical question of the identity of those who advise in relation to the choice of appointee. It may be taken that the [NAME], in appointing [NAME[NAME], acted upon the advice of an [NAME] Minister or [NAME], not upon the advice of Federal Ministers. The same, no doubt, applies generally to appointments made to the [NAME] in recent years, whether of acting or permanent judges. Thus, there is an issue as to who selects people for appointment as [NAME] judges. Secondly, [NAME] was appointed, for a limited term, as an Acting Judge. This was permitted by a law enacted by the [NAME] of the [NAME] [2] . However, it is contrary to the tenure prescribed by s 72 of the Constitution. The law of the [NAME] was enacted upon the assumption that compliance with s 72 was unnecessary. It should be added that the remuneration of [NAME] was not fixed by the [NAME], but pursuant to an [NAME] statute [3] . This, also, was upon the assumption that s 72 did not apply.

1. Supreme Court (Amendment) [NAME] (No 2) 1993 [NAME], s 26. 2. Supreme Court (Amendment) [NAME] (No 2) 1993 [NAME], s 11.

4. The understanding which presently governs the appointment of judges and magistrates throughout Australia's [NAME], internal and external, is that s 72 does not apply to appointments to [NAME] courts. That understanding is based directly upon the authority of two unanimous decisions of this Court, one in 1965, [NAME] v [NAME] [4] , and one in 1971, [COMPANY] v [NAME] [5] . Those decisions, in turn, were based upon a line of authority extending back to 1915 [6] . The applicant challenges that line of authority, and submits that the two decisions directly in point should be overruled.

1. (1965) 114 CLR 226. 2. (1971) 125 CLR 591. 3. R v [NAME] (1915) 19 CLR 629.

5. What is at stake is not only the lawfulness of the conviction and sentence in the instant case. The validity of the appointment, and the lawfulness of past decisions of, judicial officers in any [NAME] who were appointed by a local Executive acting on the advice of local ministers, or who did not have the tenure required by s 72, is in question. Also at stake, for the [NAME] and the future, in respect of self-governing [NAME], is the question of who has the power to choose judicial officers, to define their terms of office, to fix their remuneration, and to deal with questions of their possible removal.

6. Underlying the arguments advanced on behalf of the applicant is a problem of interpretation of the Constitution which has vexed judges and commentators since the earliest days of Federation. It involves "a notoriously technical and difficult branch of Australian constitutional law" [7] . It concerns the relationship between various provisions of Ch III of the Constitution and s 122, which confers upon the [NAME] a [NAME] power to make laws for the government of [NAME] (which includes a power to set up [NAME] courts).

1. [NAME] v [NAME] (1965) 114 CLR 226 at 274, per Windeyer J.

7. One of the reasons for the difficulty in giving the relevant provisions a meaning which achieves internal consistency, and at the same time accommodates the realities of government and administration with which the Constitution must deal, is the disparate nature of [NAME]. Some (such as the [NAME], the [NAME], and the [NAME]) are internal. Others (such as Norfolk Island, the Coral Sea Islands, the [NAME], the Ashmore and Cartier Islands, the Cocos (Keeling) Islands, Christmas Island, and the Heard and McDonald Islands) are external. The [NAME] has already obtained a substantial measure of responsible government [8] . There is a view that the [NAME], by reason of certain provisions of the Constitution, can never become a State [9] . There have been various circumstances in which external [NAME] have come to be under the authority of the Commonwealth. In R v [NAME], for example, [NAME] referred to "recently conquered [NAME]" with German and Polynesian populations [10] . The [NAME] have been, still are, and will probably continue to be, greatly different in sise, population, and development. Yet they are all dealt with, compendiously and briefly, in s 122.

1. [NAME], "The [NAME] and Statehood", [NAME], vol 52 (1978) 554. See also [NAME] v [NAME] (1999) 196 CLR 553. 2. See the argument in [NAME] v [NAME] (1965) 114 CLR 226 at 232. 3. R v [NAME] (1915) 19 CLR 629 at 638.

8. Section 72 deals with the appointment of "the Justices of the High Court and of the other courts created by the [NAME]", and prescribes their tenure of office. Until the Constitution was amended in 1977, such Justices had, in effect, life tenure, subject to a power of removal by the [NAME]-[NAME] on an address from both Houses of the (Federal) [NAME]. Since 1977, the term of such an appointment expires when the Justice attains the age of seventy. That, however, does not alter either the question or the answer. In 1915 the Court had to decide a case which, directly, raised a somewhat different issue as to the relationship between s 122 and other parts of the Constitution, but which had obvious implications for the question of the relationship between ss 72 and 122. The issue in R v [NAME] [11] was whether s 80 of the Constitution, making trial by jury obligatory in certain cases, applied to a certain prosecution in the [NAME] of Papua. [ADDRESS] answered the question in the negative, giving reasons which also clearly implied that the judicial officer of the [NAME] of Papua who dealt with the case was not a person who was required by s 72 to have life tenure. A suggestion, in 1915, that the magistrates and judges of all [NAME], internal or external, in whatever stage of development, were required to have life tenure, would have been regarded as startling by people who were familiar with the tenure of office of magistrates and judges in the various [NAME] [12] .

1. (1915) 19 CLR 629.

2. For a history of the New South Wales magistracy, including an account of their appointment and tenure, see [NAME], High and Responsible Office: A History of the New South Wales Magistracy (1991). At the time of Federation, and until the Local Courts [NAME] 1982 NSW, stipendiary magistrates were members of the New South Wales [NAME] Service. It was only after 1955 that new recruits to the magistracy were required to be legally qualified ([NAME], p 175).

9. In [NAME] v [NAME] [13] , the Court answered in the negative a question whether the provisions of s 72 of the Constitution applied to the appointment of a stipendiary magistrate of the [NAME]. There was no dissent. [ADDRESS] was invited to overrule R v [NAME], but declined to do so. [NAME[NAME] said [14] that "it is a decision of long standing upon the basis of which legislation has frequently been passed". The Chief Justice did not accept all of the reasoning in R v [NAME], some of which was wider than was necessary for the actual decision. In particular, he did not accept that Ch III of the Constitution was wholly inapplicable to [NAME] [15] . However, he considered that, upon its true construction, s 72 did not apply to courts created by or pursuant to laws under s 122 [16] . The section is not a limitation on the power to create courts of judicature which is included in the grant of legislative power contained in s 122. Such courts are not within the meaning of the expression "the other courts created by the [NAME]" in s 72. That construction, which gives a negative answer, not to a wide question as to the relationship between Ch III and s 122, but to a particular question as to whether s 72 addresses the position of courts created pursuant to s 122, is open on the language, and produces a sensible result, which pays due regard to the practical considerations arising from the varied nature and circumstances of [NAME]. It takes account of the consideration that, as the legislative background to the [NAME] case illustrates, at any given time some [NAME] may enjoy self-government and some will not. Even if the applicant's argument were correct, whether a court in a self-governing [NAME] satisfied the description of a court created by the Federal [NAME] might depend upon whether the [NAME] had legislated concerning the [NAME]'s courts, and upon the form of such legislation. If that were the case, some [NAME] courts would be affected by s 72, and not others.

1. (1965) 114 CLR 226. 2. [NAME] v [NAME] (1965) 114 CLR 226 at 244. 3. [NAME] v [NAME] (1965) 114 CLR 226 at 248. 4. [NAME] v [NAME] (1965) 114 CLR 226 at 248.

10. The decision in [NAME] v [NAME] was unanimously affirmed and applied in [COMPANY] v [NAME] [17] . What is of direct significance for the [NAME] case is that the judgments proceeded upon the basis that there was "no relevant ground of distinction between [the [NAME]] Court of Petty Sessions and the Supreme Court of the [NAME]" [18] .

1. (1971) 125 CLR 591. 2. [NAME] (1971) 125 CLR 591 at 598.

11. The amendment to s 72 in 1977 did not alter the meaning of s 122, or the relationship between the two sections. By removing the requirement of life tenure for Justices appointed pursuant to s 72, the amendment removed what had, until then, been one of the indications that [NAME] courts were not within the purview of s 72. However, if [NAME] courts were not courts created by the [NAME] within the meaning of those words as they appeared in s 72 in 1915, and 1965, and 1971, then nothing occurred to change the meaning of those words in 1977. The force of that consideration cannot be evaded by a suggestion that there then arose an opportunity for a fresh insight into the meaning of the Constitution, unembarrassed by what would previously have been one of the practical consequences.

12. The invitation to overrule the decision in [NAME] v [NAME], and to refuse to follow the holding in [NAME] and [COMPANY] v [NAME] that it applies equally to the Supreme Court of the [NAME], should be declined.

13. The applicant developed a further argument, based upon s 52(i) of the Constitution. The [NAME], it was submitted, is, or includes, the seat of government, and laws for the [NAME], unlike other [NAME], are made under s 52(i) and not s 122. A court set up to administer those laws, which are federal laws, is a court to which s 72 applies.

14. Section 52(i) has to be read together with s 125. Whatever the precise meaning of the expression "seat of government", the prevailing, and correct, opinion is that the [NAME] and the seat of government are not synonymous terms [19] , that they are not co-extensive, and that the source of legislative power for such purposes as are presently relevant is s 122. In [NAME] v [NAME] [20] , [NAME[NAME], [NAME] and [NAME] [NAME] said:

Section 52(i) provides for the exclusive power to make laws with respect to the seat of government as well as places acquired by the Commonwealth for [NAME] purposes. Under s 125, the seat of government is required to be within [NAME] granted to or acquired by the Commonwealth. There is now a [NAME], the [NAME], within which the seat of government has been located, although its limits have not been precisely determined by the [NAME]. The seat of government is, however, not co-extensive with the [NAME] in which it is located nor, under s 125, is it intended to be. The [NAME] must rely upon s 122 for the power to make laws for the government of that [NAME]. That power is not made subject to the Constitution as is the power to make laws with respect to the seat of government under s 52(i). Moreover, the power to make laws with respect to the seat of government would seem to be concerned with its political or constitutional aspects, rather than with the government of the [NAME] which it occupies. 1. [NAME] v [NAME] (1965) 114 CLR 226 at 262, per Taylor J. 2. (1994) 181 CLR 548 at 561.

15. There is no foundation for this alternative argument.

16. The application should be dismissed with costs.

[NAME[NAME].

17. The background to this application is set out in other judgments and need not be repeated. The central issue to be decided is whether the Supreme Court of the [NAME] (the Supreme Court) is a court "created by the [NAME]" for the purposes of s 72 of the Constitution.

18. It is not in issue that, if the Supreme Court is a court "created by the [NAME]" for the purposes of s 72, the judge who presided over the applicant's trial was not appointed in accordance with that section [21] . And it is contended that, that being so, his conviction and the warrant pursuant to which he is presently held in custody are invalid. On the other hand, if it is not a court created by the [NAME] for the purposes of s 72, it is accepted that neither that nor any other constitutional provision speaks to the appointment of its judges.

1. Section 72 relevantly provides: "The Justices of the High Court and of the other courts created by the [NAME]: (i) shall be appointed by the [NAME]-[NAME] in Council; (iii) shall receive such remuneration as the [NAME] may fix; but the remuneration shall not be diminished during their continuance in office The appointment of a Justice of a court created by the [NAME] shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court. Subject to this section, the maximum age for Justices of any court created by the [NAME] is seventy years."

19. The first step in determining whether the Supreme Court is a court to which s 72 applies is to determine whether s 122 of the Constitution, which confers power on the [NAME] to make laws "for the government of [a] [NAME]", ultimately sustains its existence. If it does, it is convenient to proceed on the basis that the Supreme Court is a court created by the [NAME] pursuant to s 122 notwithstanding that, in various respects, it is now subject to the legislative power of the [NAME] of the [NAME] [22] and appointments to it are made by the Executive of the [NAME] [23] . On the basis that it is a court created by the [NAME] under s 122, the [NAME] step is to consider the relationship between that section and Ch III of the Constitution, it being in Ch III that s 72 is found. If, on that analysis, s 72 does not apply to the Supreme Court, the application must be dismissed. So, too, it must be dismissed if the Supreme Court is now a creature of the body politic of the [NAME] and not a court created by the [NAME] under s 122 for, in that event, s 72 can have no application to it.

1. Section 34 of the [NAME] (Self-Government) [NAME] 1988 Cth, as amended by s 7 of the [NAME] (Transfer) [NAME] 1992 Cth. 2. Sections 4 and 4A of the [NAME] 1933 [NAME].

Section 122 and the seat of government

20. Subject to a possible qualification later to be mentioned when considering the relationship between s 122 and Ch III of the Constitution, the power conferred by s 122 of the Constitution to make laws for the government of a [NAME] extends, as a matter of ordinary language, to the creation of courts having jurisdiction with respect to matters arising under or involving the application of laws in their operation in the [NAME] concerned [24] . And as a matter of ordinary language, s 122 will sustain the existence of such courts if, for example, they are established by or made subject to the legislative power of a self-governing [NAME].

1. See as to the creation of courts, [NAME] v [NAME] (1965) 114 CLR 226 at 242, per [NAME]; at 258-259, per [NAME[NAME]; at 260, 264, per [NAME[NAME]; at 266, per [NAME[NAME]; at 280-281, per [NAME[NAME]; [NAME] and [COMPANY] v [NAME] (1971) 125 CLR 591 at 601-602, per McTiernan J; at 608-609, per [NAME[NAME]; at 613-614, per [NAME[NAME]; at 619, per [NAME[NAME]; at 626, per [NAME[NAME]; [NAME] v [NAME] (1998) 193 CLR 346 at 401, per Gaudron J; [NAME] v [NAME] (1999) 196 CLR 553 at 596, per Gaudron J.

21. Notwithstanding the language of s 122, it was contended for the applicant that that provision does not authorise the creation of the Supreme Court or sustain its existence. In this respect, it was put that s 52 of the Constitution, not s 122, is the source of legislative power with respect to the [NAME]. Section 52 relevantly provides:

The [NAME] shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(i) the seat of government of the Commonwealth.

22. There is, in my view, some difficulty in approaching s 52 as an independent source of legislative power as distinct from a constitutional provision directed to rendering exclusive to the Commonwealth specified powers which are found elsewhere in the Constitution [25] . If, however, there is scope for it to operate as an independent grant of legislative power with respect to the seat of government, it is concerned, as was pointed out in [NAME] v [NAME] [26] , with the "political or constitutional aspects" of that notion, rather than with the government of the [NAME] in which it is located. In this respect, it should be noted that s 52(i) relevantly confers "power to make laws for the peace, order, and good government of the Commonwealth with respect to the seat of government", not power to make laws for its government. It was also pointed out in [NAME] v Stewart that "[t]he seat of government is not co-extensive with the [NAME] in which it is located nor, under s 125 [27] , is it intended to be [and, thus the] [NAME] must rely upon s 122 for the power to make laws for the government of that [NAME]" [28] .

1. [NAME] v [COMPANY] (1970) 123 CLR 89 at 110-111, per Kitto J; [NAME] v Stewart (1994) 181 CLR 548 at 576-577, per Gaudron J. 2. (1994) 181 CLR 548 at 561, per [NAME[NAME], [NAME] and [NAME] [NAME].

3. Section 125 relevantly provides: "The seat of Government of the Commonwealth shall be within [NAME] which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth." 4. [NAME] v Stewart (1994) 181 CLR 548 at 561, per [NAME], Deane, [NAME] and [NAME] [NAME] also [NAME] v [NAME] (1965) 114 CLR 226 at 262, per Taylor J; at 273, per [NAME[NAME]; at 281-282, per [NAME[NAME]; [NAME] v [COMPANY] (1970) 123 CLR 89 at 114-115, per Menzies J; at 124, per Windeyer J.

23. In this context, it is appropriate to note that, by s 3(1) of the [NAME] 1933 [NAME], the Supreme Court is established as the "Supreme Court of the [NAME]" and, by s 31, is given jurisdiction to "give effect to all claims for relief arising under the common law or the statute law of the [NAME]". The reference in those provisions to "the [NAME]" is clearly a reference to the [NAME] [29] in which the seat of government is located, not to the seat of government itself.

1. Note that this follows from the long title of the [NAME] as "[a]n [NAME] to establish a Supreme Court of the [NAME]". Moreover, by s 3(1) the Supreme Court is to be known as "the Supreme Court of the [NAME]".

24. A law of the [NAME] establishing or sustaining the existence of a court for the [NAME] with jurisdiction with respect to "claims arising under the common law or the statute law of the [NAME]" is a law pursuant to s 122 for the government of that [NAME], not a law under s 52(i) with respect to the seat of government. Thus, on the assumption that the Supreme Court is a court created by the [NAME] pursuant to s 122, it is necessary to consider the relationship between that section and Ch III of the Constitution to ascertain whether it is also a court "created by the [NAME]" for the purposes of s 72.

Courts created pursuant to or sustained by s 122 and Ch III of the Constitution

25. As a matter of ordinary language, the words "created by the [NAME]" in s 72 are apt to include a court created by the [NAME] pursuant to s 122. This notwithstanding, it was held by this Court in [NAME] v [NAME] [30] , and later affirmed in [COMPANY] v [NAME] [31] that the words "created by the [NAME]" do not refer to courts created under s 122. Those decisions and other decisions of this Court with respect to the relationship between s 122 and Ch III of the Constitution, in which s 72 is found, have not produced "a coherent body of doctrine" [32] . And as I pointed out in [NAME] v [NAME] [33] , they have created as many problems as they have solved.

1. (1965) 114 CLR 226. 2. (1971) 125 CLR 591. 3. [NAME] v [NAME] (1965) 114 CLR 226 at 265, per Menzies J. 4. (1999) 196 CLR 553 at 602. See as to the nature of those problems, [NAME] v [NAME] (1965) 114 CLR 226 at 245-248, per [NAME]; at 252-253, 257, per [NAME[NAME]; at 265-267, per [NAME[NAME]; at 274, per [NAME[NAME].

26. In particular, the decisions with respect to the relationship between s 122 and Ch III give rise to difficulties in connection with this Court's jurisdiction to entertain appeals from the decisions of courts created pursuant to s 122 if, as has been held, those courts are neither federal courts nor courts exercising federal jurisdiction [34] . That is because s 73(ii) relevantly confers jurisdiction only with respect to appeals from "[another] federal court, or court exercising federal jurisdiction; or the Supreme Court of [a] State".

1. [NAME] v [NAME] (1965) 114 CLR 226 at 242-243, per [NAME]; at 250-251, per [NAME[NAME]; at 263-264, per [NAME[NAME]; at 266, per [NAME[NAME]; at 274, per [NAME[NAME]; at 279-281, per Owen J; [NAME] and [COMPANY] v [NAME] (1971) 125 CLR 591 at 600, per [NAME]; at 602, per [NAME[NAME]; at 609, per [NAME[NAME]; at 609, per [NAME[NAME]; at 613-614, per [NAME[NAME]; at 623, per [NAME[NAME]; at 626-627, per [NAME[NAME].

27. To some extent, the problems associated with this Court's jurisdiction to hear appeals from courts created or sustained by s 122 have been alleviated by decisions holding that the [NAME] may, pursuant to that section, confer jurisdiction on this Court to hear appeals from those courts [35] . However, it is difficult to reconcile those decisions with the exclusive and exhaustive nature of the provisions of Ch III [36] , its exclusive and exhaustive nature having been most recently confirmed in Re Wakim; Ex parte [NAME] [37] . Given that difficulty and given, also, the critically important role assigned to the judicature by the Constitution, I would grant leave, if leave is necessary, to re-open [NAME] v [NAME] and [NAME] and [COMPANY] v [NAME].

1. [NAME] v [NAME]; Ex parte [NAME] (1926) 37 CLR 432 at 440-441, per [NAME]; at 446, per Higgins J; at 448, per Rich J; at 449, per Starke J; R v [NAME]; [COMPANY] (1956) 94 CLR 254 at 290, per [NAME[NAME], [NAME] and [NAME] [NAME]; at 327-328, per [NAME[NAME]; [NAME] v [NAME] (1965) 114 CLR 226 at 239, per [NAME]; at 256-257, per [NAME[NAME]; at 279, per Owen J; [NAME] and [COMPANY] v [NAME] (1971) 125 CLR 591 at 604, per Menzies J; at 612, per [NAME[NAME]; at 626, per [NAME[NAME]; [NAME] v [NAME] (1998) 193 CLR 346 at 380, per [NAME] and Toohey J. 2. [NAME] v [NAME] (1999) 196 CLR 553 at 598-600, per Gaudron J. 3. (1999) 198 CLR 511.

28. As already indicated, the words "created by the [NAME]" in s 72 of the Constitution are, as a matter of ordinary language, apt to include courts created pursuant to s 122. If those words are to be construed otherwise, it can only be by reason that either some provision of Ch III and/or s 122 indicates otherwise. So far as Ch III is concerned, the critical provision is s 71 which relevantly provides:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the [NAME] creates, and in such other courts as it invests with federal jurisdiction.

29. Section 71 is exhaustive as to the courts that may exercise the judicial power of the Commonwealth [38] . It also impliedly confers power on the [NAME] to create courts [39] , but only "federal courts". It emerges clearly from Ch III of the Constitution that federal jurisdiction is co-extensive with the matters specified in ss 75 and 76 of the Constitution [40] . However, there is no very precise indication of what is meant by "federal courts". For the applicant, it was contended that federal courts are courts created by the [NAME] to exercise federal jurisdiction. However, that argument pays no attention to the adjective "federal" in s 71. To put the matter another way, the applicant's argument proceeds as if s 71 referred simply to "such other courts as the [NAME] creates".

1. R v [NAME]; [COMPANY] (1956) 94 CLR 254 at 290, per [NAME], [NAME] and [NAME] [NAME].

2. See R v [NAME]; [COMPANY] (1956) 94 CLR 254 at 269, 289, per [NAME], [NAME] and [NAME]; [NAME] v [NAME] (1965) 114 CLR 226 at 274, per Windeyer J; [NAME] and [COMPANY] v [NAME] (1971) 125 CLR 591 at 603, per Menzies J; [NAME] v [NAME] (1998) 193 CLR 346 at 377, per [NAME] and Toohey J; at 401, per Gaudron J; at 416, per [NAME[NAME]; at 444, per [NAME[NAME]; at 490, per [NAME[NAME]; Re [NAME]; Ex parte [NAME] (1999) 198 CLR 511 at 546, per [NAME[NAME]; at 551, per [NAME[NAME].

3. The matters specified in s 75 are matters: "(i) arising under any treaty; (ii) affecting consuls or other representatives of other countries; (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between [NAME], or between residents of different [NAME], or between a State and a resident of another State; (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth." The matters specified in s 76 are matters: "(i) arising under this Constitution, or involving its interpretation; (ii) arising under any laws made by the [NAME]; (iii) of Admiralty and maritime jurisdiction; (iv) relating to the same subject-matter claimed under the laws of different [NAME]."

30. The word "federal" in s 71, in my view, serves to indicate that the courts which the [NAME] may create pursuant to that section are not simply courts upon which the [NAME] may confer federal jurisdiction, but courts upon which the [NAME] may (although, it need not) confer jurisdiction to be exercised throughout the Commonwealth in all or any of the matters specified in ss 75 and 76 of the Constitution. Once it is appreciated that, in s 71, "federal" signifies courts of that kind, it is apparent that it does not include a court created pursuant to s 122 of the Constitution.

31. The jurisdiction of a court created pursuant to s 122 of the Constitution is necessarily confined to matters arising under or involving the application of laws in their operation in a [NAME]. That is because a law creating a court with jurisdiction in matters of that kind is a law for the government of the [NAME] concerned. However, a law creating a court the jurisdiction of which is not confined to matters arising under or involving the application of laws in their operation in a [NAME] is not a law for the government of that [NAME]. And the same is true of a law sustaining the existence of a court the jurisdiction of which is not confined in the manner indicated.

32. As already mentioned, the statement that s 122 authorises the creation of courts having jurisdiction with respect to matters arising under or involving the application of laws in their operation in a [NAME] is subject to a possible qualification. That possibility arises because, to take one example, those laws may include laws with respect to the matters referred to in s 51 of the Constitution. Even if, in its operation in a [NAME], a law under s 51 can be characterised as a law for the government of the [NAME] concerned, it is, nonetheless, also a law under s 51 of the Constitution [41] . And a law of that kind properly answers the description of "[a law] made by the [NAME]" for the purposes of s 76(ii) of the Constitution [42] . A matter arising under such a law is a matter within federal jurisdiction and one that invokes the judicial power of the Commonwealth which, by s 71, can only be exercised by the courts specified in that section, namely, federal courts and courts invested with federal jurisdiction.

1. [COMPANY] v The Commonwealth (1997) 190 CLR 513 at 565-567, per Gaudron J (with whom [NAME[NAME] agreed at 560); at 582, per [NAME[NAME]; at 601, 614, per [NAME[NAME]; at 661-662, per [NAME[NAME]; [NAME] v [NAME] (1999) 196 CLR 553 at 601-602, per Gaudron J. See also [COMPANY] v The Commonwealth (1992) 177 CLR 106 at 176, per Deane and [NAME]; at 222-223, per Gaudron J. 2. [NAME] v [NAME] (1999) 196 CLR 553 at 599, per Gaudron J.

33. For the reasons that I gave in [NAME] [43] , I see no reason why a court created pursuant to s 122 cannot be invested with federal jurisdiction and thus exercise jurisdiction in matters arising under a law made by [NAME] under s 51 or in other matters that fall within federal jurisdiction. And the same is true of a court the existence of which is sustained by s 122. However, and as already pointed out, that is so only to the extent that the matter arises under or involves the application of a law in its operation in a [NAME] because, if its jurisdiction were to extend beyond that, the law under which the court was created or its existence was sustained would not be a law for the government of the [NAME] concerned.

1. [NAME] v [NAME] (1999) 196 CLR 553 at 604-605.

34. One other matter should be noted with respect to the vesting of federal jurisdiction in a court created under s 122 or the existence of which is sustained by a law under that section. If it is not necessary for a court of that kind to conform to the requirements of s 72 of the Constitution, a question could arise as to whether, in accordance with the principles recognised in [NAME] v Director of [NAME] (NSW) [44] , there is not some implicit requirement in Ch III with respect to the nature of the matters that may be dealt with by it and perhaps, also, with respect to the manner in which it is constituted before federal jurisdiction can be vested in it.

1. (1996) 189 CLR 51.

35. Once it is accepted, as in my view it must be, that a court created pursuant to s 122 may be invested with federal jurisdiction in matters arising under or involving the application of laws in their operation in a [NAME], there is room to doubt whether the words "the other courts created by the [NAME]" bear their natural and ordinary meaning in s 72. That is because s 71 establishes a dichotomy between "other federal courts [that] the [NAME] creates" and "other courts [that] it invests with federal jurisdiction". In that context, it is possible to read s 72, in so far as it is concerned with "other courts created by the [NAME]", as referring to federal courts created by the [NAME] pursuant to s 71, in contradistinction to those that may be invested with federal jurisdiction.

36. Were the question free of authority, I should think the preferable course would be to give the words of s 72 their natural and ordinary meaning so as to include courts created pursuant to s 122 of the Constitution [45] . However, given that contextual considerations provide a basis for reading s 72 down so as to apply only to federal courts created pursuant to s 71 and given, also, that s 72 has twice been so interpreted by this Court and that the [NAME] has acted on the Court's decisions in that regard, it should, in my view, continue to be read in that way.

1. [NAME] v The Commonwealth (1997) 190 CLR 1 at 109, per Gaudron J; [NAME] v [NAME] (1998) 193 CLR 346 at 402, per Gaudron J; [NAME] v [NAME] (1999) 196 CLR 553 at 603, per Gaudron J.

37. There is a further consideration that confirms my view that, so far as they are concerned with the meaning of s 72, the decisions in [NAME] v [NAME] and [COMPANY] v [NAME] should stand. It is that, even if s 72 were interpreted as applying to courts created under s 122, they would not be federal courts because, as already indicated, their jurisdiction is necessarily confined to matters arising under or involving the application of laws in their operation in a [NAME]. Thus, to hold s 72 applicable to courts created under s 122 would not be to resolve the difficulties associated with this Court's appellate jurisdiction. That difficulty is only resolved if, on proper analysis, courts created under s 122 exercise federal jurisdiction. And the same is true of courts which are the creatures of self-governing [NAME] but the existence of which is sustained by a law under s 122.

38. It was held in [NAME] that jurisdiction may be conferred on a federal court in a matter arising under a law enacted pursuant to s 122 of the Constitution. It follows from that decision that a matter of that kind is a matter arising under a law made by the [NAME] for the purposes of s 76(ii) of the Constitution and, thus, a matter within federal jurisdiction. The same must be true when the same jurisdiction is conferred on a court created by or the existence of which is sustained by s 122. The consequence of that is that, in matters arising under a law enacted pursuant to s 122, s 73 of the Constitution allows for an appeal to this Court.

39. In [NAME] expressed the view that, in all matters, s 73(ii) allows for an appeal to this Court from a court created pursuant to s 122 because "the right or duty in question must ultimately depend for its enforcement on the law creating that court" [46] . That statement was premised on the hypothesis that a court exercising jurisdiction in matters arising under or involving the application of laws in their operation in a [NAME] is, necessarily, a court created by the [NAME]. As appears from this case, in which it was argued that the Supreme Court was now properly to be seen as a creature of the body politic known as the [NAME] and not the creation of the [NAME], that hypothesis may be wrong.

1. [NAME] (1999) 196 CLR 553 at 605.

40. Although it is not necessary to decide whether the Supreme Court is now the creature of the body politic known as the [NAME], it may be observed that its existence is ultimately sustained by a law under s 122 of the Constitution and the rights and duties in issue in matters before it must ultimately depend for enforcement on the law by which that Court is sustained. Thus, in my view, those matters are matters arising under a law of the Commonwealth for the purposes of s 76(ii) of the Constitution and necessarily within federal jurisdiction with the consequence that, in all matters, s 73 allows for an appeal to this Court.

Conclusion

41. As s 72 does not apply to courts created under or whose existence is sustained by s 122 of the Constitution, the application for habeas corpus should be dismissed with costs.

[APPELLANT] and [NAME].

I. Introduction

42. The applicant seeks from the [ADDRESS] of this Court an order absolute in the first instance for the issue of a writ of habeas corpus requiring his release from custody. The matter involves the interpretation of the Constitution and thus lies within the original jurisdiction conferred by s 30(a) of the [NAME] 1903 Cth. In those circumstances, this Court is empowered by s 33(1)(f) of the [NAME] to direct the issue of a writ of habeas corpus.

43. The applicant was convicted in the Supreme Court of the [NAME] (the Supreme Court) on a charge of murder. He was tried before [NAME] and a jury. Provision for the offence of murder was made in s 18 of the [NAME] 1900 NSW. Section 18 adopts but modifies the common law [47] . The section was rendered applicable in the [NAME] (the [NAME]) by s 6 of the Seat of Government [NAME] 1909 Cth and s 4 of the Seat of Government (Administration) [NAME] 1910 Cth (the 1910 [NAME]).

1. [NAME] v The Queen (1967) 121 CLR 205 at 220, 225-226, 238-239; [NAME] v The Queen (1991) 172 CLR 378 at 410-411, 428-429, 454-455.

44. Section 18 later was transmuted into an enactment subject to amendment or repeal by the [NAME] for the [NAME] (the [NAME]). This state of affairs was brought about by the operation of s 34 of the [NAME] (Self-Government) [NAME] 1988 Cth (the Self-Government [NAME]), as amended by s 7 of the [NAME] (Transfer) [NAME] 1992 Cth (the [NAME]). There has been no such relevant amendment by the [NAME]. Whatever may have been the situation had that been the case, in our opinion the criminal liability in respect of which the applicant was tried and convicted owed its existence to the laws made by the [NAME] and identified above.

45. No question arises on this application as to whether the Supreme Court would be exercising federal jurisdiction in, for example, a prosecution of an offence against a law enacted by the [NAME]. The issue in such a case would be whether there nevertheless was a matter "arising under" a law made by the [NAME], namely the Self-Government [NAME], which established the [NAME] and endowed it with power to make the law in question.

46. On 3 April 1995, [NAME] was appointed an acting judge of the Supreme Court for the period commencing on 1 May 1995 and ending at the expiration of 22 December 1995. His Honour's commission was stated as made by the Executive of the [NAME] pursuant to s 4A(1) of the [NAME] 1933 [NAME]. Section 4A was introduced into the legislation by a law made by the [NAME], s 6 of the Supreme Court (Amendment) [NAME] (No 2) 1993 [NAME] (the [NAME]). It provides:

(1) The Executive may, by commission, appoint persons to be acting Judges of the Court.

(2) An appointment under subsection (1) shall be for such period, not exceeding 12 months, as is specified in the commission.

(3) A person is not eligible to be appointed under subsection (1) unless he or she —

(a) has been a Judge of a superior court of record of the Commonwealth, a State or a [NAME]; or

(b) has been enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or [NAME] for not less than 5 years.

47. Section 11 of the [NAME] amended s 17 of the [NAME] so that, so far as it pertained to [NAME], it stated:

(2) An acting Judge shall be paid such remuneration and allowances as are prescribed by regulation.

(3) Subsection (2) does not apply to —

(a) the remuneration of an acting Judge if there is a subsisting determination of the Commonwealth Remuneration Tribunal relating to the remuneration to be paid to the acting Judge; or

(b) an allowance of a particular kind in respect of an acting Judge if there is a subsisting determination of the Commonwealth Remuneration Tribunal relating to an allowance of that kind to be paid to the acting Judge.

(3a) The remuneration and allowances to which a Judge is entitled accrue from day to day and are payable monthly.

(4) The [NAME] money of the [NAME] is appropriated to the extent necessary for payment to Judges of remuneration and allowances.

48. The applicant contends (i) that the Supreme Court is a "court created by the [NAME]" within the meaning of s 72 of the Constitution and (ii) that the appointment of [NAME[NAME] for a term other than one expiring upon his attaining the age which was, at the time of such appointment, the maximum age for judges of that Court, namely the attainment of the age of seventy years [48] , contravened s 72 of the Constitution. The consequence is said to be that the appointment of [NAME] was not validly made and his Honour had no authority to preside over the applicant's trial or to record a conviction or to impose any sentence, so that his imprisonment is unlawful.

1. [NAME], s 4(4).

II. The Judicial Power of the Commonwealth

49. It is appropriate to begin consideration of the issues which arise by looking to s 71 of the Constitution. This [NAME]:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the [NAME] creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the [NAME] prescribes. Section 71 identifies those institutions in which the judicial power of the Commonwealth is vested. This section is the first provision in Ch III, which is headed " The Judicature " and must be read with s 1, the first provision in Ch I, headed " The [NAME] ", and s 61, the first provision in Ch II, headed " The Executive Government ". Each provision uses the term "vested" to identify that branch of government which is to receive and exercise, as the case may be, the legislative, executive or judicial power of the Commonwealth.

50. The term "the Commonwealth" in ss 1, 61 and 71 is used consistently to identify the body politic identified in the covering clauses to the Constitution [49] . In his work The Constitution of the Commonwealth of Australia [50] , Sir [NAME] pointed out that the allotment of functions by the Constitution is not merely made between State and Commonwealth and continued:

[I]t is also an allotment amongst the organs of the Commonwealth Government. The Constitution does not commit subjects to "the Commonwealth" in [NAME]; it designates certain organs which are to exercise particular kinds of power over the subjects committed to them. 1. [NAME] v Hill (1999) 199 CLR 462 at 497-498. 2. 2nd ed (1910), p 94. See also the observations by [NAME[NAME] in R v Sharkey (1949) 79 CLR 121 at 153.

51. In [NAME] v [NAME] [51] , after observing that the Constitution brought into existence "but one Commonwealth which was, in turn, destined to become the nation", [NAME[NAME] continued:

The difference in the quality and extent of the powers given to it introduced no duality in the Commonwealth itself. The undoubted fact that the Commonwealth emerged from a federal compact or that that compact is reflected in the limitations placed upon some of the powers of the Commonwealth or that the new political entity derived from a union of the peoples of the former colonies does not deny the essential unity and singleness of the Commonwealth. 1. (1965) 114 CLR 226 at 247.

52. From this textual analysis, it follows that the judicial power of the Commonwealth referred to in s 71 is not segmented in some fashion to reflect geographic divisions. In particular, and contrary to the views advanced in [NAME] v [NAME]; Ex parte [NAME] [52] by [NAME[NAME], the judicial power of the Commonwealth is not "that of the Commonwealth proper, which means the area included within the [NAME]".

1. (1926) 37 CLR 432 at 441. [NAME[NAME] (at 448) said he regarded the decision in In re Judiciary and Navigation Acts (1921) 29 CLR 257 "as limited to the judicial power of the Commonwealth consisting of the [NAME], in other words, the Commonwealth proper".

53. Rather, the position is consistent with that established with respect to s 61. It is not to be supposed that the executive power of the Commonwealth vested by s 61 is limited in some geographical sense to "the Commonwealth proper". It was determined in [NAME] v Kent [53] that the Commonwealth had power under s 61 of the Constitution to erect the Black Mountain tower on Crown land in the [NAME] and that no statutory authority was required [54] . [NAME[NAME] said [55] :

[T]he executive power of the Commonwealth extends to the doing of acts upon its own lands within a [NAME] surrendered by a State to the Commonwealth without any statutory authority other than the necessary appropriation of funds if those acts are of the kind which lie within the prerogative of the Crown. Nor is it to be supposed that the legislative power of the Commonwealth, vested in the "Federal [NAME]" by s 1, does not include the power to make laws for the government of a [NAME] as specified in s 122 [56] . 1. (1975) 132 CLR 164.

2. See also the discussion by [NAME[NAME] of the phrase "the exclusive jurisdiction of the Commonwealth" in s 111 in his Honour's judgment in [NAME] v Stewart (1994) 181 CLR 548 at 566.

3. Johnson v Kent (1975) 132 CLR 164 at 174.

4. Lamshed v Lake (1958) 99 CLR 132 at 141; [NAME] v [NAME] (1965) 114 CLR 226 at 247.

54. It will be necessary later in these reasons further to consider the significance of this construction of s 71 for the issues which arise in this litigation.

55. The Crown, which is specified as an element in the [NAME] identified in s 1 and in which the executive power is vested by s 61 [57] , had an anterior existence to that of the Commonwealth. However, the [NAME] had to be summoned to meet not later than six months after the establishment of the Commonwealth, as provided by s 5. Further, whilst in a sense this Court was created by the Constitution, which then assumes its continued existence, and operation, the Court could have no life until, pursuant to s 72, the [NAME]-[NAME] in Council had made appointments of Justices and the [NAME] had fixed their remuneration. It was for the Crown, acting pursuant to s 2, to appoint a [NAME]-[NAME].

1. However, s 61 goes on to provide that the executive power "is exercisable by the [NAME]-[NAME]".

56. Thus, to a significant degree, the term "vested" is used in these provisions in a proleptic sense in anticipation of that which is to be done under, but not immediately by force of, the Constitution. To "create" a court is to endow an institution which answers that description with its legal existence by providing for its formation and constitution. It is another step to endow such a body with jurisdiction, that is to say authority, to determine justiciable controversies. Jurisdiction is conferred on this Court directly by s 75, and the [NAME] is empowered by ss 76 and 77 to make laws conferring or investing federal jurisdiction. The Australian Industrial Relations Court is an example of a court created by the [NAME] under ss 71 and 72, whose members retain their commissions, but which by laws supported by s 77 has received jurisdiction and then by subsequent legislation has been denied jurisdiction in respect of freshly instituted matters [58] .

1. See Victoria v Sutton (1998) 195 CLR 291 at 308.

57. Section 71 does not, in terms, empower the creation of other federal courts by the [NAME] but, read with s 72, it has been taken as conferring such authority as a matter of necessary implication [59] . However, s 71 is not the sole source of authority for the [NAME] to create courts, nor are ss 76 and 77 the sole authority to confer jurisdiction. It has long been accepted that the power conferred by s 122 to make laws for the government of [NAME] includes power to create courts and to confer jurisdiction upon them. This illustrates the proposition expressed by [NAME[NAME] in [NAME] v [NAME] [60] that s 122 empowers the [NAME] to "make what provision it will for every aspect and every organ of [NAME] government". An early example was the constitution of a Supreme Court of the [NAME] by the Supreme Court Ordinance 1911 NT made by the [NAME]-[NAME] in Council in pursuance of powers conferred by the [NAME] [NAME] 1910 Cth and the [NAME] (Administration) [NAME] 1910 Cth.

1. [NAME] and [NAME], Federal Jurisdiction in Australia, 2nd ed (1978), pp 104-105. 2. (1965) 114 CLR 226 at 251. See also [NAME]-[NAME] (WA) v [NAME] Commission (1976) 138 CLR 492 at 512; [COMPANY] v [NAME] (1992) 177 CLR 248 at 263-265.

III. The Applicant's Case

58. The [NAME] dispute turns upon the question whether the Supreme Court, at the time that [NAME] was appointed an acting member, answered the description of a court "created by the [NAME]" within the meaning of s 72 of the Constitution. So far as material, s 72 [NAME]:

The Justices of the High Court and of the other courts created by the [NAME] —

(i) Shall be appointed by the [NAME]-[NAME] in Council:

(ii) Shall not be removed except by the [NAME]-[NAME] in Council, on an address from both Houses of the [NAME] in the same session, praying for such removal on the ground of proved misbehaviour or incapacity:

(iii) Shall receive such remuneration as the [NAME] may fix; but the remuneration shall not be diminished during their continuance in office.

The appointment of a Justice of a court created by the [NAME] shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court.

59. [NAME[NAME] was not appointed by the [NAME]-[NAME] in Council. The Executive identified in his commission is that entity created by s 36 of the Self-Government [NAME]. The members of the Executive are the Chief Minister of the [NAME] and such other Ministers thereof as are appointed by the Chief Minister (s 39(1)). Nor was the remuneration of [NAME[NAME] fixed by the [NAME]. It was provided for by a statute of the [NAME], namely s 11 of the [NAME]. Nor was [NAME] appointed for a term expiring upon his attaining any particular age. It follows that, if the court to which [NAME[NAME] was appointed answered the description of a court created by the [NAME], then, in various respects, there was a failure to comply with the requirements of s 72 of the Constitution.

60. The applicant submits that courts created by the [NAME] in exercise of power conferred by s 122 of the Constitution are a subclass of "such other federal courts as the [NAME] creates", within the meaning of s 71. The result is said to be that they should be treated as "other courts created by the [NAME]" within the meaning of s 72.

61. However, the immediate concern of s 71 is with the vesting of the judicial power of the Commonwealth. The institutions to exercise that power are so identified as to fall into three classes. The first is this Court. Its original jurisdiction is provided for in ss 75 and 76, and its appellate jurisdiction by s 73. The identification of the [NAME] class looks ahead to other federal courts created by the [NAME] and the third to the taking by the [NAME] of the step of investing "other courts" with federal jurisdiction. Like s 71, s 73 speaks of courts exercising federal jurisdiction, not merely of State courts doing so.

62. Those "other courts" may be the State courts identified in s 77(iii). But this does not deny that (a) those "other courts" may include courts created by the [NAME] in exercise of the power conferred by s 122 and not in exercise of the power found by necessary implication as to federal courts in ss 71 and 72, or (b) a law based upon s 122 may confer jurisdiction identified in the nine heads in ss 75 and 76, as federal jurisdiction, in a court created by or pursuant to a law based upon s 122.

63. The preferable construction is that a court created by the [NAME] for the government of a [NAME] is not a federal court created under ss 71 and 72 but may answer the description of one of the "other courts" which are invested by laws made by the [NAME] with federal jurisdiction within the meaning of s 71 and thus are recipients of the judicial power of the Commonwealth. The investment of federal jurisdiction in such a non-federal [NAME] court would be by a law supported not by s 77 but by s 122. Such a construction was considered by Gaudron J in [NAME] v [NAME] [61] . If that construction be accepted, it follows (contrary to the case for the applicant) that s 72 had no necessary operation with respect to a court created by the [NAME] in exercise of its authority under s 122 of the Constitution. This would be so, even though the [NAME] invested that court with federal jurisdiction.

1. (1999) 196 CLR 553 at 604.

64. This issue which the applicant raises respecting the phrase "other courts created by the [NAME]" in s 72 has not been the subject of direct determination in earlier decisions of this Court dealing with other aspects of the interrelation between s 122 and Ch III. In [NAME], this Court determined that s 76(ii) of the Constitution, in conjunction with s 77(i), authorises the conferral by the [NAME] of original jurisdiction on federal courts, in that case the Family Court of Australia, in matters arising under laws made by the [NAME] in reliance upon s 122 of the Constitution and that the jurisdiction so conferred is federal jurisdiction. That decision does not determine the issue which arises here respecting the construction of s 72 of the Constitution.

65. Earlier, R v [NAME] [62] decided that an offence against a law made by [NAME] in reliance upon s 122 is not an "offence against any law of the Commonwealth" within the meaning of s 80 of the Constitution. However that may be, in the [NAME] case the applicant was tried by jury.

1. (1915) 19 CLR 629.

66. [COMPANY] [COMPANY] v [NAME] [63] was an appeal purportedly brought directly to this Court from the Supreme Court which had dismissed an appeal against a conviction in the Court of Petty Sessions at Canberra. [NAME] determined that (i) no appeal lay to this Court under s 73 because the Supreme Court, then created and constituted by the [NAME] as a law of the Commonwealth, was neither (a) a federal court within the meaning of s 73 of the Constitution, nor (b) a court exercising federal jurisdiction within the meaning of s 73, and that (ii) a law of the [NAME] supported by s 122 may confer a right of appeal to the High Court from territorial courts, whether or not the matter in issue otherwise be one of federal jurisdiction. The construction we have described as preferable would, as to proposition (i), accept that the Supreme Court may be a court exercising federal jurisdiction within s 73, although it is not a federal court, and it would require reconsideration of proposition (ii).

1. (1971) 125 CLR 591.

67. [NAME] v [NAME] [64] decided that (i) a court of petty sessions constituted under the Court of Petty Sessions Ordinance 1930 [NAME], promulgated under s 12 of the 1910 [NAME] and which had been given appropriate local jurisdiction, might enforce in relation to acts occurring within the [NAME] a law made by the [NAME] under s 51 of the Constitution, such as the Post and [NAME] 1901 Cth, which operates throughout the Commonwealth; (ii) this was so although the court was not one in which the judicial power of the Commonwealth was vested within the meaning of s 71 of the Constitution; and (iii) a law made by the [NAME] in reliance upon s 122 may create or authorise the creation of a court having jurisdiction with respect to occurrences in or concerning the [NAME] without observance of the requirements of s 72 of the Constitution. The construction which we have outlined as preferable, would deny proposition (ii) but accept (i) and (iii).

1. (1965) 114 CLR 226.

IV. The Supreme Court

68. In Section III, we have indicated what we regard as the preferable construction of the constitutional provisions, including s 72. However, neither of the applicant's submissions outlined in Section I falls for determination unless [NAME] was appointed to a court which then answered the description in s 72 of a court "created by the [NAME]".

69. In [NAME] [65] , [NAME[NAME] and [NAME[NAME] identified various other questions respecting the interrelation between s 122 and Ch III, as to which no issue arose in [NAME]. The [NAME] issue as to the construction of s 72 presents a related but distinct question. In [NAME] v The Commonwealth [66] , Gaudron J observed that, whatever view be taken of the decisions in [NAME] v [NAME] and [NAME], it may be that different considerations apply to laws enacted by the legislature of a self-governing [NAME]. The [NAME] case bears out the point.

1. (1999) 196 CLR 553 at 591-592. 2. (1997) 190 CLR 1 at 109.

70. [NAME] manifests a disinclination to read down the statutory text in s 76(ii) "any laws made by the [NAME]". It is also consistent with the rejection by [NAME[NAME] in [NAME] v [NAME] of the notion of a "single theme running throughout Ch III which requires it to be treated so much all of one piece that if any part of it relates only to federal matters, every part of it must likewise be restrained" [67] .

1. [NAME] v [NAME] (1965) 114 CLR 226 at 245.

71. In our view, at the time of the appointment of [NAME], the Supreme Court did not answer the description of a court created by the [NAME] within the meaning of s 72 of the Constitution. We turn to endeavour to explain why this is so.

72. Section 7 of the Self-Government [NAME] establishes the [NAME] as a body politic under the Crown. Section 22 confers upon the [NAME] power to make laws for the peace, order and good government of the [NAME]. On and from 1 July 1992, that power was not restricted, as initially had been the case by reason of par (b) of s 23(1) [68] . This restriction was removed by the [NAME] with the enactment of s 6 of the [NAME]. At the time of the commencement of the Self-Government [NAME], the Supreme Court was that institution established by the [NAME] as a law of the Commonwealth. From 1 July 1992, the [NAME] has been taken, by force of s 34(2) of the Self-Government [NAME] [69] , as an enactment which may be amended or repealed by the [NAME]. The term "enactment" is used in the Self-Government [NAME] in accordance with the definition in s 3 thereof as meaning a law made by the [NAME] under the Self-Government [NAME] or a law or part of a law that is an enactment by reason of the operation of s 34.

1. This read: "Subject to this section, the [NAME] has no power to make laws with respect to: (b) the establishment of courts." 2. After the amendment of s 34 by s 7 of the [NAME].

73. Thereafter, the [NAME] amended the [NAME] in various respects [70] . Significant changes were made by the [NAME]. This inserted (by s 6) in the [NAME] the provision in s 4A under which the Executive appointed [NAME[NAME] and (by s 11) the amendment of s 17 to provide for the remuneration and allowances of acting judges. Schedule 2 to the [NAME] further amended the [NAME] to provide for the appointment by the Executive of resident judges to hold office until the attainment of seventy years. The tenure of such resident judges is further qualified by the provisions for removal in the [NAME] 1994 [NAME].

1. The provisions of the statute had been renumbered by the [NAME].

74. The [NAME], a law made by the [NAME], not the [NAME], had as its long title "An [NAME] relating to the transfer of responsibility for the Supreme Court of the [NAME] from the Commonwealth to the [NAME], and for other purposes". This statute amended (by s 4) the definitions in the Self-Government [NAME] by inserting a definition of "Supreme Court" as meaning "the Supreme Court of the [NAME] existing under the [NAME] 1933 of the [NAME]". Section 12 of the [NAME] inserted s 29A in the [NAME]-Government (Consequential Provisions) [NAME] 1988 Cth to provide that persons holding office as Chief Justice, judge, additional judge or Master of the Supreme Court immediately before 1 July 1992 continued to hold office thereafter "as if he or she had been appointed under the [NAME] 1933 of the [NAME]".

75. The phrase in s 34(2) of the Self-Government [NAME] that a law specified in Sch 2 [71] "shall be taken to be an enactment, and may be amended or repealed accordingly" was directed to the [NAME] and had the substantive operation of conferring upon the [NAME] the status of a law made by the [NAME]. Other laws of the Commonwealth not included in Sch 2 did not, in the terms of the heading to that Schedule, "become enactments". They retain their character as laws of the Commonwealth and prevail by operation of s 28 of the Self-Government [NAME] over inconsistent territorial legislation. Section 28 operates not as a denial of power otherwise conferred by the Self-Government [NAME] upon the [NAME] but as a denial to a law so made of effect "to the extent" of its inconsistency [72] .

1. Which on and from 1 July 1992 included the [NAME]. 2. [NAME] (1999) 196 CLR 553 at 582-583.

76. Section 8 of the [NAME] inserted Pt VA, headed " The Judiciary " in the Self-Government [NAME]. Part VA comprises ss 48A-48D. Section 48A specified the jurisdiction and powers of the Supreme Court [73] . Section 48B provided that an enactment of the [NAME] that changes the retirement age in relation to certain judicial offices in the Supreme Court would not affect the term of office of incumbents at the time of that enactment, without their consent. Section 48C stipulated that an enactment relating to the establishment of a judicial commission for the [NAME] must include certain provisions. Section 48D required the inclusion of certain protections in an enactment of the [NAME] relating to the removal of persons occupying certain judicial offices.

1. It stated: "(1) The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the [NAME]. (2) In addition, the Supreme Court may have such further jurisdiction as is conferred on it by any [NAME], enactment or Ordinance, or any law made under any [NAME], enactment or Ordinance. (3) The Supreme Court is not bound to exercise any powers where it has concurrent jurisdiction with another court or tribunal."

77. We accept the submission put by the [NAME] and the [NAME] that the effect of Pt VA is to establish in advance legislative provisions which, by operation of s 28 of the Self-Government [NAME], would prevail over any inconsistent legislation enacted by the [NAME]. Part VA is not determinative of the question whether, at the time of the appointment of [NAME[NAME], the Supreme Court did not answer the description of a court created by the [NAME].

78. At that time, the authority of the [NAME] to amend or repeal the [NAME] lay in its [NAME] grant of authority under s 22 of the Self-Government [NAME]. That power was relevantly unconfined save for the requirements of s 48A as to the original and appellate jurisdiction of the Supreme Court and for the limitations imposed by ss 48B and 48D on changes to judicial retirement age and removal from office. It is implicit in s 48A that there must continue to be a Supreme Court, but that does not carry the consequence that the Supreme Court is created by the [NAME] for the purposes of s 72 of the Constitution. Section 72 specifies criteria as to appointment, removal and remuneration. In all of these respects at the time of the appointment of [NAME[NAME], the enabling provisions were found in an enactment of the [NAME].

79. In their joint judgment in [COMPANY] v [NAME] [74] , [NAME] and [NAME] [NAME] observed, with the concurrence of Gaudron J [75] :

The [[NAME]] has been erected to exercise not the [NAME]'s powers but its own, being powers of the same nature as those vested in the [NAME]. The [NAME]-[NAME]'s power to disallow an enactment under s 35 of the Self-Government [NAME] does not alter the independent character of the legislative power which s 22 purports to confer on the [[NAME]]. A similar power of disallowance was vested in the Queen in Council to disallow laws made by the Indian Legislature under the [NAME] (s 21) yet the Privy Council in [R v] Burah [76] , in the first of the historic cases defining the independent character of colonial legislatures, held that the Indian Legislature's powers were, within their prescribed limits, "as large, and of the same nature, as those of [NAME] itself". Their Honours went on to note that, in respect of imposition of a tax by the [NAME] [77] : [t]he [NAME] has no power under the Self-Government [NAME] to disallow any duty imposed by the [[NAME]]; the [NAME] must, if it wishes to override the enactment, pass a new law to achieve that result. It cannot repeal or amend the enactment. 1. (1992) 177 CLR 248 at 282. 2. [NAME] (1992) 177 CLR 248 at 284. 3. (1878) 3 App Cas 889 at 904. [The Privy Council emphasised that the Indian legislature was "not in any sense an agent or delegate of the [NAME]".] 4. [NAME] (1992) 177 CLR 248 at 283.

80. In [NAME], all members of the Court agreed that an enactment of the [NAME] imposing a duty of excise could not be characterised as an exercise of the "power of the [NAME]" which was made "exclusive" by s 90 of the Constitution. The difference between the members of the Court was that those constituting the majority held "exclusive" to mean "exclusive of any State or [NAME]", whilst the minority would have treated "exclusive" to mean simply "exclusive of the powers of the [NAME]". Hence, the later statement in [NAME] v [NAME] [78] which explained [NAME] in the following terms:

The view was taken that a legislature created to confer self-government upon a [NAME] — in that case the [NAME] — must be regarded as a body separate from the [NAME], so that the exercise of its legislative power, although derived from the [NAME], is not an exercise of the [NAME]'s legislative power. 1. (1994) 181 CLR 548 at 562.

81. Legislative provision for the creation of a court involves at least the specification of the method of appointment, remuneration and removal of the judges comprising that institution [79] . Section 72 speaks, as counsel for the [NAME] respondent put it, "continuously in the [NAME]" in the sense that a reference to a court "created by the [NAME]" is to a court constituted and sustained, at the time when a question arises as to an appointment, removal or receipt of remuneration, by an exercise of legislative power of the [NAME]. Subject to any implications [80] or limitations arising from provisions of the Constitution other than s 72, and to the operation with respect to inconsistency of s 28 of the Self-Government [NAME], and to whatever may have been the position before 1 July 1992, by the time of the appointment of [NAME], the Supreme Court had been substantially reconstituted in relevant respects by enactments of the [NAME]. These included the very provisions in pursuance of which [APPELLANT[NAME] was appointed and remunerated. The applicant's submissions to the contrary should not be accepted.

1. See R v Davison (1954) 90 CLR 353 at 365; Harris v Caladine (1991) 172 CLR 84 at 116-117, 143-144, 163-164. 2. Including any implication which, with respect to "[NAME] courts" may arise from the reasoning in [NAME] v Director of [NAME] (NSW) (1996) 189 CLR 51.

[NAME]. [NAME] of Government

82. In the alternative to his submissions respecting the application to the Supreme Court of s 72 of the Constitution, the applicant contends that laws for the government of the [NAME] are made by the [NAME] acting, not under s 122 of the Constitution, but under s 52(i). The result is said to be that the legislative power with respect to the [NAME] is "quintessentially federal in character". The result would be that, laws made under s 52(i) being clearly laws made by the [NAME] for the purposes of s 76(ii), courts established to adjudicate matters arising under those laws must be established under ss 71 and 72. We would reject that submission in favour of what was said on the subject by [NAME], [NAME], [NAME] and [NAME] [NAME] in [NAME] v [NAME] [81] .

1. (1994) 181 CLR 548 at 561.

VI. Conclusion

83. The application for habeas corpus should be dismissed with costs. It is, in the circumstances, unnecessary to determine the issues, canvassed in oral argument, as to whether, in any event, habeas corpus would be the appropriate remedy.

[NAME[NAME].

84. These proceedings involve a direct challenge to previous holdings of this Court. The holdings in question concern the relationship between the power conferred on the Federal [NAME] by s 122 of the Constitution to make laws for the government of the [NAME] and the requirements of, and implications within, Ch III concerning the Judicature.

85. There are few constitutional problems in Australia more vexing than these. Few have led to answers so intellectually unsatisfying. Few have produced results more bizarre [82] . Few have given rise to so many judicial regrets about the lack of a coherent doctrine [83] and the consequent "disunity in the judicial system of Australia" which "arises from the separation of federal, State and territorial jurisdictions" [84] .

1. Submissions for the [NAME] and the [NAME]; cf [NAME], "[NAME] and Commonwealth Places: The Constitutional Position", [NAME], vol 73 (1999) 181, at pp 201, 210 . 2. [NAME] v [NAME] (1965) 114 CLR 226 at 265, per Menzies J; cf [NAME] v [NAME] (1999) 196 CLR 553 at 651, per [NAME]. 3. [NAME] and [COMPANY] v [NAME] (1971) 125 CLR 591 at 613, per Windeyer J.

86. Occasionally, judges [85] and writers knowledgeable about the Constitution [86] have contemplated wistfully a return to the simple words of that document unencumbered by the judicial elaboration which has taken this Court, and the nation, away from the text. Over the years this Court has attempted, to some extent, to return to the constitutional wording: rejecting, confining or doubting the initial decisions [87] which treated s 122 as if it were not subject at all to the restrictions expressed in other parts of the Constitution [88] . Yet whenever an attempt has been made to persuade the Court to reconsider past holdings said to be illogical, impractical and even of doubtful constitutional validity [89] , the Court has usually drawn back. Sometimes it has seemed less convinced about the correctness of the decisions than about a need to avoid unsettling constitutional doctrine upon which the arrangements of government in Australia have been based [90] .

1. R v [NAME]; [COMPANY] (1956) 94 CLR 254 at 290, per [NAME], [NAME], Fullagar and [NAME]; [NAME] (1971) 125 CLR 591 at 615, per [NAME[NAME]. 2. [NAME], The Federal Judicial System of Australia (1984), p 712. See also "Notes and Comments", [NAME], vol 36 (1963) 458.

3. R v [NAME] (1915) 19 CLR 629. 4. [NAME], Australian Federal Constitutional Law, 3rd ed (1985), pp 525-526.

5. See, eg, [COMPANY] v The Commonwealth (1997) 190 CLR 513 at 560, per Toohey J; at 568, per Gaudron J; at 613-614, per [NAME[NAME]; at 652-658, my own reasons. 6. [NAME] (1965) 114 CLR 226 at 257, per [NAME[NAME]; at 265, per [NAME[NAME].

87. The key to a proper approach to the [NAME] application is to be found in an observation of [NAME[NAME] in Victoria v The Commonwealth [91] :

I have never thought it right to regard the discarding of the doctrine of the implied immunity of the [NAME] and other results of the [NAME]' Case [92] as the correction of antecedent errors or as the uprooting of heresy [I]n 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realisation that Australians were now one people and Australia one country and that national laws might meet national needs. Each generation of Australians reads the Constitution in the light of the meaning of its words and the requirements of its structure as understood from time to time [93] . This is inherent in the giving of meaning to a constitution as an instrument of government. It is why a search for the subjective intentions of the framers may not fetter the [NAME] and the future to the distant past [94] . 1. (1971) 122 CLR 353 at 396.

2. Amalgamated Society of [NAME] v [COMPANY] (1920) 28 CLR 129. 3. [NAME] v [NAME] (1996) 186 CLR 140 at 230, per [NAME[NAME]; cf Ex parte [NAME]' Association (1959) 107 CLR 208 at 267-268, per [NAME[NAME]; [NAME] v [COMPANY] (1994) 182 CLR 104 at 177, per Deane J; Re Wakim; Ex parte [NAME] (1999) 198 CLR 511 at 552-553, per [NAME[NAME]; at 599-600, my own reasons; [NAME] v Hill (1999) 199 CLR 462 at 487-488, per [NAME], Gummow and [NAME] [NAME]; contrast at 571-572, per [NAME[NAME]. 4. cf [NAME], "The Problematics of Moral and Legal Theory", Harvard Law Review, vol 111 (1997) 1637, at p 1708 ; [NAME], A Matter of Interpretation: Federal Courts and the Law (1997), pp 40, 44, 47.

88. When today we look at the Constitution, we see its language free of old impediments and problems [95] . The question is posed: are we as free today, as the Court felt itself in the [NAME] [96] , to throw off the holdings of the past, not because they were wrong when made but because, read in a new light, the Constitution can now be seen to bear a different meaning [97] ? In my view we are. It is time to return to the language and purpose of the Constitution. The [NAME] are part of the Federation. [NAME] courts are federal courts. Their judges must have the security of tenure of federal judges.

1. Such as the requirement of trial by jury of native peoples in the [NAME] of Papua considered in [NAME] (1915) 19 CLR 629, or the effective provision of life tenure to magistrates in federal [NAME] considered in [NAME] (1965) 114 CLR 226 at a time when most magistrates were [NAME] servants and had no legal qualifications. 2. (1920) 28 CLR 129.

3. Mr [COUNSEL], later Prime Minister, recounted how, when counsel in the [NAME], [COUNSEL] interrupted his argument based on the Court's past authority to declare that it was "a lot of nonsense". [NAME] agreed but explained that he was obliged by the holdings of the Court to put it. He asked, and was given leave, to advance fresh arguments which eventually succeeded. [NAME], Central Power in the Australian Commonwealth (1967), p 38.

The facts

89. In January 1989, Mr [NAME], a senior police officer, was murdered in the [NAME] ([NAME]). The offence of murder was then provided for by s 18 of the [NAME] 1900 NSW which had effect in the [NAME] by virtue of laws made by the [NAME] [98] . In December 1992, Mr [APPELLANT] (the applicant) was committed for trial on a charge of murdering Mr [NAME]. In March 1993, the Director of [NAME] of the [NAME] (the [NAME] respondent) signed an indictment, with a single count of murder, naming the applicant. It was filed in the Supreme Court of the [NAME].

1. Seat of Government [NAME] 1909 Cth, s 6; Seat of Government (Administration) [NAME] 1910 Cth, ss 3, 4.

90. For the purpose of the trial, which began in May 1995, the Supreme Court was constituted by the [NAME] and a jury. The former was not a permanent judge of the Supreme Court [99] . He was a person who had been a judge of a superior court of record of a State, namely the Supreme Court of New South Wales. By a commission dated 3 April 1995, signed by the Deputy Chief Minister and [NAME]-[NAME] for the [NAME], he was appointed an acting judge of the Supreme Court of the [NAME] for the period from 1 May 1995 to 22 December 1995. Such appointment was purportedly made under the law of the [NAME] [100] . The appointment was thus not for the term expiring on the appointee's attaining an age as contemplated by the provisions of the Australian Constitution governing the appointment of judges to other "courts created by the [NAME]" [101] . Nor did the appointment purport to be made "by the [NAME]-[NAME] in Council" as required by the same provision [102] .

1. [NAME] [NAME] 1933 Cth, s 7. See now [NAME] 1933 [NAME], s 4(1). 2. [NAME] 1933 [NAME], s 4A. The [NAME] was renamed and the provisions renumbered pursuant to Legislation (Republication) [NAME] 1996 [NAME]. 3. Constitution, s 72. 4. Constitution, s 72(ii).

91. On 3 November 1995 the jury in the applicant's trial returned a verdict of guilty. The applicant was convicted. A determinate sentence was refused. [NAME] sentenced him to life imprisonment [103] . The applicant appealed from the conviction and sentence to the Federal Court of Australia [104] . [ADDRESS] of that Court dismissed his appeal [105] . The applicant then applied to this Court for special leave to appeal on grounds related to his alleged unfitness to stand trial. That application has been referred to a [ADDRESS] of this Court [106] . Directions were given that the application for special leave should be heard immediately after the hearing of the [NAME] application. That application was reserved to be argued before a [ADDRESS] [107] , as indeed it was. It awaits determination.

1. [NAME] 1900 [NAME], s 12(2). 2. Federal Court of Australia [NAME] 1976 Cth, s 24(1)(b). 3. [NAME] v The Queen (1997) 76 FCR 9. 4. By order of [NAME[NAME] and myself on 12 February 1999. 5. Such order was made by me on 7 December 1998. See High Court Rules, O 55, r 2.

92. In form, the [NAME] proceedings ask this Court, in the exercise of its original jurisdiction, to issue a writ of habeas corpus addressed to the first respondent [108] . Habeas corpus is not a writ named in the Constitution [109] . It is provided for in a law made by the [NAME]. It is sought here in a matter arising under the Constitution and involving its interpretation [110] . No issue was raised as to its availability if the grounds were established [111] .

1. [NAME] 1903 Cth, s 33(1)(f); cf [NAME], The Federal Judicial System of Australia (1984), p 332. 2. Constitution, s 75(v) names [NAME], prohibition and injunction. 3. Constitution, s 76(i). See also s 76(ii). 4. cf Re Superintendent of Goulburn Training Centre; Ex parte [NAME] (1983) 57 ALJR 679; 48 ALR 225; Re Officer in Charge of Cells, [NAME]; Ex parte [NAME] (1994) 68 ALJR 668; 123 ALR 478.

93. After the commencement of the proceedings, the applicant was moved from the [COMPANY] to another place of detention in New South Wales. As agreed by the parties, nothing turns on this. The order of the Supreme Court, or of [NAME], purporting to certify to the conviction and sentence of the applicant was not exhibited. However, the warrant for removal of the applicant to the custody of the first respondent was included in this Court's papers. It is stated as being made pursuant to the Removal of Prisoners ([NAME]) [NAME] 1968 Cth. The warrant recites that the applicant had been "duly convicted" before the Supreme Court. It is that proposition which the applicant challenges.

94. The applicant contends that the Supreme Court is a "court created by the [NAME]" within the meaning of s 72 of the Constitution; that the appointment of a person as a judge of that court for a term other than one expiring on his attainment of an age specified by law contravened s 72; that the appointment of the [NAME] as an acting judge was not validly made; that the said "acting judge" had no authority to preside over his trial, to record a conviction of him or impose a sentence upon him; and that, accordingly, his imprisonment was unlawful, entitling him to immediate release. If the foregoing premises were established, the conviction which the [ADDRESS] of the Federal Court confirmed, would have no validity.

95. To make good his application, the applicant acknowledged that he would have to persuade this Court to overrule two unanimous holdings which stand in his path. To the extent that leave was required to permit him to argue the incorrectness of the holdings in those cases [112] , the applicant sought that leave.

1. cf [COMPANY] v Victoria (1984) 154 CLR 311; [NAME] v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-440; [NAME] v [NAME] (1995) 185 CLR 307 at 338; [COMPANY] v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 673.

96. The first decision in the applicant's way is [APPELLANT] v [NAME] [113] . That case decided that the appointment of a magistrate in the [NAME] was not governed by s 72 of the Constitution. A magistrate could therefore hear and determine a charge of an offence against the Post and [NAME] 1901 Cth, although he had not been appointed in accordance with s 72 of the Constitution. Some of the Justices of this Court held that this conclusion followed from a construction of the phrase "the other courts created by the [NAME]" in s 72. They concluded that these words referred only to "federal courts". They did not include "[NAME] courts", ie those created wholly under s 122 of the Constitution. [ADDRESS] of Petty Sessions of the [NAME], of which the magistrate was a member [114] was such a "[NAME] court" [115] . Other Justices [116] held that the administration of justice in the [NAME], including the [NAME], was not governed by Ch III at all. One Justice [117] considered himself bound by authority to uphold the appointment of the magistrate, whilst rejecting the proposition that the [NAME] were outside "the Federal System" [118] .

1. (1965) 114 CLR 226. 2. [NAME] v [NAME] (1965) 114 CLR 226 at 228. Jurisdiction was exercised under the Court of Petty Sessions Ordinance (No 2) 1930 [NAME]. 3. [NAME] v [NAME] (1965) 114 CLR 226 at 242-243, per [NAME]; at 274, per [NAME[NAME]; at 280-281, per [NAME[NAME]. 4. [NAME] v [NAME] (1965) 114 CLR 226 at 250-251, per Kitto J; at 263-264, per [NAME[NAME]. 5. [NAME] v [NAME] (1965) 114 CLR 226 at 265, per Menzies J. 6. [NAME] v [NAME] (1965) 114 CLR 226 at 269-270, per Menzies J.

97. The [NAME] decision [119] which the applicant contested was an extension of the first. It arose out of a failed attempt to persuade this Court to reconsider the correctness of the decision in [NAME]. [ADDRESS] held that the Supreme Court of the [NAME] was not a federal court, nor a court exercising federal jurisdiction within the meaning of s 73 of the Constitution.

Accordingly, no appeal lay as of right from that court to this Court. The only foundation for an appeal would thus be legislation affording the right. By inference, such legislation might be amended or repealed, leaving litigants in the [NAME] wholly outside the appellate judicial system of the Commonwealth. Cases in the [NAME] would be dependent for appellate supervision of [NAME] courts upon the limitations and vagaries of legislation, as from time to time enacted, and grounded, ultimately, in s 122 of the Constitution, not Ch III.

1. [NAME] and [COMPANY] v [NAME] (1971) 125 CLR 591.

98. During oral argument, the applicant conceded that his challenge also questioned opinions expressed in a third decision, R v [NAME] [120] . That decision held that s 80 of the Constitution (requiring that a trial on indictment of any offence against a law of the Commonwealth shall be by jury) had no application to a law made under s 122 of the Constitution for the government of the [NAME] of Papua. [NAME], although concerned with a specific issue not raised in the [NAME]'s trial (for it was had by jury) is the original font of the line of authority 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 [NAME], and has no application to [NAME]" [121] . Ever since those words were written, Justices of this Court have been attempting to circumvent them or to confine their application. But they lie at the core of the idea of "disjoinder", from Ch III of the Constitution, of [NAME] courts and the [NAME] judicial power. [NAME] and [NAME] are simply two examples of special significance to the [NAME] proceedings [122] .

1. (1915) 19 CLR 629. 2. [NAME] (1915) 19 CLR 629 at 635, per [NAME]. 3. cf [NAME]-[NAME] (Cth) v The Queen (1957) 95 CLR 529 at 545 (PC).

The issues

99. Many issues were argued by the parties and by the [NAME] [123] to support the [NAME] respondent. Although it is necessary to deal with large questions in responding to the applicant's arguments, it is desirable that the issues should be confined to those which must be answered in order to reach a conclusion disposing of these proceedings. In my view, such issues are:

1. Is the source of constitutional power to create the Supreme Court of the [NAME] found within s 52(i) of the Constitution or in s 122?

2. If the source is s 122, is any such court so created a "federal court" for the purposes of ss 71 and 72 of the Constitution so that its judges must be appointed by the [NAME]-[NAME] in Council and for a term expiring on the appointee's reaching a specified age, as required by s 72?

3. If so, is it nonetheless available to the [NAME], acting pursuant to the measure of self-government afforded to it by the [NAME], to create a court outside the Judicature in Ch III and to provide for appointment to such a court of an acting judge appointed by the Executive of the [NAME]? Is the Supreme Court of the [NAME] such a court?

4. If the applicant appears otherwise to be entitled to relief on the answers to the foregoing, should relief be denied on the footing (a) that this Court will not reopen its past authority which stands in the way of conclusions favourable to the applicant; or (b) that a writ cannot, or should not, be granted in the circumstances because the order warranting the applicant's due conviction at his trial is ostensibly one of a superior court of record and one given by a de facto judicial office-holder, namely an acting judge of the Supreme Court of the [NAME]?

1. The Commonwealth, South Australia and [NAME], the [NAME] and the [NAME].

100. A number of issues, subordinate to those just stated, were raised. Some of them concerned the practical ramifications of a decision favourable to the applicant in the different constitutional settings of the [NAME] and the external [NAME] when compared to that of the [NAME]. The potential seriousness of the implications of the decision for the judicial arrangements followed for many years in those [NAME], including the [NAME], cannot be doubted. Such implications are relevant to the question whether the Court's past authority should be reopened. Logically, that question stands at the threshold of reasoning to a conclusion in the matter. But because the arguments for reopening of past authority cannot be appreciated fully without canvassing the merits of the application, it is convenient to deal with them as issue 4(a). Neither the [NAME] respondent nor the Commonwealth sought to advance arguments based on issue 4(b). It was, however, addressed by some of the [NAME] [124] . The applicant contested the entitlement of [NAME] to raise such issues. Because the arguments were developed it is proper that they be considered. But, it is not, in my view, proper to explore the options which might be available to the Commonwealth and the [NAME] to repair the practical consequences which would flow from the reopening of past authority and the establishment of a new constitutional principle concerning the relationship of s 122 and Ch III of the Constitution. Nor, in the approach which I favour, is it essential to explore the many other subordinate questions which were addressed during argument [125] . It will be sufficient if the issues stated above are decided. They are large enough.

1. Submissions for South Australia and [NAME]. 2. Such as whether the Removal of Prisoners ([NAME]) [NAME] 1923 Cth and [NAME] applies to warrants of the Supreme Court of the [NAME] as established as a [NAME] court and whether Quo Warranto or some remedy other than Habeas Corpus, would have been more appropriate to the enforcement of the applicant's rights.

History of the [NAME] and its Supreme Court

101. Before turning to the first issue, it is necessary to say something about the establishment of the [NAME] and the provision for its judicial arrangements. The idea of creating a [NAME] for the seat of government in Australia was borrowed from the precedent provided by the Constitution of the [NAME] of America [126] . Two provisions, relating to the seat of government of the Commonwealth were contained in the Australian Constitution. The first afforded the [NAME], subject to the Constitution, exclusive power to make laws for the peace, order and good government of the Commonwealth with respect to "[t]he seat of government of the Commonwealth, and all places acquired by the Commonwealth for [NAME] purposes" [127] . The [NAME] (contained amongst miscellaneous provisions at the end of the Constitution) provided [128] , relevantly, that "[t]he seat of Government of the Commonwealth shall be determined by the [NAME], and shall be within [NAME] which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney".

1. Art I s 8 cl 17. [NAME], The Constitution in Congress: The Federalist Period 1789-1801 (1997), pp 286-287. As to the position in Canada (Ottawa), see [NAME], Commentary on the British North America [NAME] (1977), pp 52-53. 2. Constitution, s 52(i). 3. Constitution, s 125.

102. The place eventually chosen for the seat of government was near a small settlement in New South Wales originally established by British immigrants in 1820 close to the town of Queanbeyan. An agreement of October 1909 between the Commonwealth and the State of New South Wales was given effect in legislation by which the [NAME] of the State surrendered [129] , and the [NAME] of the Commonwealth accepted [130] , the [NAME] known initially as the [NAME] for the Seat of Government. By the latter [NAME] all laws in force in the [NAME] immediately before the proclaimed day continued in force (s 6) and jurisdiction in the [NAME] was conferred upon this Court [131] . By the Seat of Government (Administration) [NAME] 1910 Cth, provision was made (s 11) for inferior courts of New South Wales to have and exercise jurisdiction in the [NAME]. These arrangements were changed with the passage of amendments to the [NAME] 1903 Cth in 1927 (s 30B). They continued the jurisdiction of this Court and of its Justices. However, there were difficulties in these arrangements and [NAME] drew attention to them in Federal Capital Commission v [COMPANY] [132] .

1. Seat of Government [NAME] 1909 NSW, s 6. 2. Seat of Government [NAME] 1909 Cth, s 6. 3. s 8; cf [NAME] (1971) 125 CLR 591 at 617, per [NAME[NAME]. 4. (1929) 42 CLR 582 by reference to R v [NAME] (1915) 19 CLR 629; [NAME] v [NAME]; Ex parte [NAME] (1926) 37 CLR 432; In re Judiciary and Navigation Acts (1921) 29 CLR 257.

103. In response to these difficulties, and doubtless out of recognition of the growth of the Canberra community and of the business of this Court, the [NAME] enacted the [NAME] [NAME] 1933 Cth. As originally created, that Court envisaged the appointment of a Chief Justice and the other judges by the [NAME]-[NAME] (s 7). To be eligible for appointment, the judges were required to possess the then stated constitutional qualifications for federal judges. This position was maintained until after the decision in [NAME] [133] . In consequence of this Court's holding in that case, that the tenure of office of federal judges was inapplicable to judges of the Supreme Court of a [NAME], the legislation was amended. As amended, it provided that a judge was to hold office until he attained the age of seventy years [134] . A cognate measure was enacted to amend the [NAME] [NAME] 1971 Cth in like manner.

1. (1971) 125 CLR 591. 2. [NAME] [NAME] (No 2) 1971 Cth, s 6; Australia, House of Representatives, Parliamentary Debates (Hansard), 30 September 1971, 1732, at p 1733 .

104. Not long after these statutory changes were made, the electors of the Commonwealth approved the amendment of s 72 of the Constitution. The constitutional alteration abolished the requirement which this Court had inferred from the language of the Constitution, that the judges of this Court and other federal courts must enjoy life tenure [135] . It fixed as a maximum age for those appointed to this Court, or any court created by the [NAME], seventy years [136] . For a time, then, the requirements for appointees as judges of the Supreme Court of the [NAME] coincided once again with the constitutional prescription. They were made to a court created by the [NAME], by a commission signifying appointment by the [NAME]-[NAME] in Council and prescribing a term of service expiring, as the Constitution now permits, upon the judge's attaining the age of seventy years.

1. Waterside Workers' Federation of Australia v [COMPANY] (1918) 25 CLR 434; cf [NAME] (1971) 125 CLR 591 at 611, per [NAME[NAME]. 2. Constitution Alteration (Retirement of Judges) 1977 Cth (No 83 of 1977).

105. So the law stood at the time the [NAME] (Self-Government) [NAME] 1988 Cth (the Self-Government [NAME]) was enacted. That [NAME] afforded a measure of self-government to the [NAME] [137] . The Self-Government [NAME] originally omitted detailed provisions concerning the judiciary of the [NAME]. But it did provide [138] that certain specified laws [139] , including the [NAME] [NAME] 1933 Cth should be taken as an "enactment". This was a word used in the Self-Government [NAME] to mean, ordinarily, a law made by the [NAME] for the [NAME] (the [NAME]) established by s 8 of that [NAME] [140] . Yet for four years the Supreme Court of the [NAME] remained the court as created by the 1933 [NAME]. [ADDRESS] was informed that all but one of the resident judges of the Supreme Court of the [NAME] presently in office, including the Chief Justice, hold commissions dating from the period before 1992.

1. cf Self-government and [NAME] in the [NAME]: Report from the Joint Committee on the [NAME] 1974 (1975). No question as to the validity of the self-government legislation was argued in this application; cf Victorian Stevedoring and [COMPANY] and Meakes v Dignan (1931) 46 CLR 73 at 121, per [NAME]; [COMPANY] v [NAME] (1992) 177 CLR 248. 2. s 34(2). By s 34(3) that subsection did not apply to the [NAME] [NAME] 1933 Cth until after 1 July 1992 or until regulations were earlier made. In the event the regulations were not earlier made. The section was amended by the [NAME] (Transfer) [NAME] 1992 Cth, s 7.

3. Self-Government [NAME], Sch 2.

4. Self-Government [NAME], s 3.

106. Further steps were taken with respect to self-government in the [NAME] as from 1 July 1992. The [NAME] (Transfer) [NAME] 1992 Cth (the [NAME]) was enacted by the [NAME]. It inserted into the Self-Government [NAME] a new Pt VA (The Judiciary). The first provision of this Part, s 48A(1), provides that the Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the [NAME]. By s 48A(2) it is envisaged that the Supreme Court may have further jurisdiction as conferred "by any [NAME], enactment or Ordinance, or any law made under any [NAME], enactment or Ordinance". Provision is then made, by s 48B, for the retirement age of judges and of the Master of the Supreme Court. Relevantly, any change to the [NAME] might not affect the term of office of a person appointed before the commencement of the enactment without that person's consent in writing [141] . Provision is made for removal of a judicial officer from office by the Executive of the [NAME] in writing [142] and following procedures different from those required by s 72 of the Constitution [143] . By a further provision of the [NAME], there was inserted in the [NAME]-Government (Consequential Provisions) [NAME] 1988 Cth a section designed to protect the holders of judicial office in the Supreme Court of the [NAME] immediately before 1 July 1992. Such persons are to hold their office on terms and conditions no less favourable than those applicable to a judge of the Federal Court of Australia. The foregoing provisions of a law of the [NAME] are entrenched, in effect, as conditions for the transfer of legislative responsibility for the Supreme Court of the [NAME] to the [NAME].

1. Self-Government [NAME], s 48B(2). 2. Self-Government [NAME], s 48D(b). 3. The procedures involve investigation by a new Judicial Commission for the [NAME] envisaged in s 48C of the Self-Government [NAME] and a decision of the [NAME] of the [NAME] in place of the action of the [NAME]-[NAME] on an address from both Houses of [NAME] in the same session provided by s 72(ii) of the Constitution.

107. In pursuance of that transfer and of a machinery enactment [144] , the Office of Parliamentary Counsel for the [NAME] reissued a "consolidation" enactment of the [NAME], the short title of which is [NAME] 1933 [NAME]. It comprises a republication, with renumbering of the sections of the former [NAME] [NAME] 1933 Cth [145] . In 1993 the latter [NAME] was, in turn, amended by the [NAME] by the addition of the section permitting the Executive of the [NAME] to appoint acting judges of the Supreme Court [146] .

1. Legislation (Republication) [NAME] 1996 [NAME]. 2. Thus the former s 6 of the federal [NAME] of 1933 is renumbered as s 3. The former s 7 providing for the appointment of a Chief Justice and Judges by the [NAME]-[NAME] is renumbered s 4 of the [NAME] enactment and provides for appointment by the Executive of the [NAME]. 3. Supreme Court (Amendment) [NAME] (No 2) 1993 [NAME], s 6.

108. Because of the terms of s 72 of the Constitution, no acting judges may be appointed to any federal court [147] . No acting judges were contemplated in the former legislation as it governed the Supreme Court of the [NAME]. This was so notwithstanding the decision of this Court in [NAME] [148] removing any constitutional link between [NAME] and federal courts. On the other hand, in the [NAME] legislation had long permitted the appointment of acting judges. Many such judges have held office in that [NAME], presumably in reliance upon the statements in [NAME] and [NAME] and the theory that "[NAME] courts" fell wholly outside the constraints of Ch III of the Constitution [149] .

1. Constitution, s 72 requires that appointment be to a specified age of the appointee not for a specified period of office. 2. (1971) 125 CLR 591. 3. See now [NAME] NT, s 32(2)(b).

109. The new provision of the [NAME] 1933 [NAME] limited the appointment as an acting judge for a period not exceeding 12 months, as specified in the appointee's commission [150] . According to information provided to this Court, three such acting appointments have been made. They were those of [NAME] (before his permanent appointment), [NAME] (formerly Master of the Supreme Court) and [NAME]. The last appointment was specifically for the purpose of securing a judge, additional to the Court's normal establishment, to preside over the applicant's trial. Different views may be held about the desirability of the appointment of acting judges having regard to the effect which such appointments may have, or be seen to have, upon the independence of the judiciary concerned. In some jurisdictions, such as in Canada, challenges to such appointments have been made by reference to [NAME] constitutional standards [151] . The [NAME] application was not argued by reference to [NAME] considerations but strictly on the requirements of the Australian Constitution. In particular, it was not argued that acting appointments of the kind provided for in, and made under, the [NAME] 1933 [NAME] as it now appears, would render that Court (either generally or in a particular case) an unsuitable receptacle for the conferral by the [NAME] of federal jurisdiction [152] . In many State courts in recent years, including the Supreme Courts, acting judges have been appointed. Such State courts are not subject to the express limitations stated in s 72 of the Australian Constitution. Whether any other constitutional difficulty is presented by such acting appointments is a question which does not arise on this application.

1. [NAME] 1933 [NAME], s 4A(2) inserted by Supreme Court (Amendment) [NAME] (No 2) 1993 [NAME], s 6. 2. [NAME] v The Queen [1985] 2 SCR 673; Reference re [NAME] ([NAME]) [1997] NWTR 377.

3. See by analogy [NAME] v Director of [NAME] (NSW) (1996) 189 CLR 51. Nor did the application raise any question as to whether the principles enunciated in [NAME] have application, as such, to a "[NAME] court". [NAME], "[NAME] and Commonwealth Places: The Constitutional Position", [NAME], vol 73 (1999) 181, at p 201 .

110. For the [NAME], looking at exceptional judicial needs that can occasionally arise with major implications for their limited resources (such as the very long trial of the applicant) the appointment of acting judges would doubtless be seen as analogous to the facility regularly employed in many of the [NAME] but with added practical justifications deriving from the circumstances of the [NAME]. However, the [NAME] are not, constitutionally speaking, [NAME]. Indeed, according to an opinion expressed in this Court, the [NAME] may never become a State [153] .

Accordingly, the question is not whether the appointment of [APPELLANT[NAME] for the applicant's trial was desirable or justifiable. It is, and is only, whether it was constitutionally permissible. For the [NAME] respondent and the intervening [NAME] and [NAME] the appointment was lawful as a measure permitted to a [NAME] enjoying a high degree of self-government granted to it by the [NAME] under s 122 of the Constitution. For the applicant, it was not permissible because, try as it might, the [NAME] could not escape its constitutional character. This bound it to the limitations imposed by Ch III of the Constitution which govern the federal judiciary and which forbid the appointment of acting judges.

1. [NAME] (1992) 177 CLR 248 at 273.

The source of power: s 52(i) or s 122?

111. The significance of the first issue is this: If the true constitutional foundation for the government of the [NAME] in question in these proceedings is not s 122 of the Constitution (as has been held and commonly believed or assumed) but s 52(i), there could be no doubt that the only judiciary which could exercise jurisdiction in the [NAME] would be one established under, and conforming to, Ch III. So much was conceded for the [NAME] respondent. So much appears from the structure of the Constitution. Section 52(i) appears in Ch I amongst the grants of legislative power. There is an express statement in s 52, as in s 51, that the grant of power made there is "subject to this Constitution". That phrase can only mean subject to other chapters of the Constitution, including Ch III.

112. The question concerning the source of power was argued in [NAME]. [ADDRESS] there decided, unanimously, that a law for the government of the [NAME], such as that creating a Court of Petty Sessions for the [NAME], was made under s 122 and not under s 52(i) of the Constitution [154] . However, adherents to the contrary view have included such distinguished jurists as [NAME[NAME] [155] . Obviously, the question is not beyond argument. Therefore, despite [NAME] and its affirmation in [NAME] [156] and still more recent authority of the Court [157] , it is necessary, in responding to the [NAME] application, to re-examine the question as a matter of principle. This must be done by reference to the constitutional text.

1. [NAME] v [NAME] (1965) 114 CLR 226 at 241, per [NAME]; at 257-259, per [NAME[NAME]; at 262-264, per [NAME[NAME]; at 271, per [NAME[NAME]; at 273, per [NAME[NAME]; at 281-282, per [NAME[NAME]. 2. [NAME] [NAME] (1929) 42 CLR 582 at 585; [COMPANY] v The Commonwealth (1945) 71 CLR 29 at 83; cf [NAME], "Where is the Seat of Government?", [NAME], vol 25 (1951) 532. 3. (1971) 125 CLR 591.

4. See, eg, [NAME] v Stewart (1994) 181 CLR 548.

113. It can certainly be said, with [NAME[NAME] in [NAME] v [NAME] [158] , that "[t]he relationship between s 52(i) and s 122 has not yet been worked out" [159] . Clearly, the provisions of s 52(i) must be given a meaning and an operation appropriate to a grant of legislative power appearing in a constitution. Moreover, the grant in question exists amidst other powers considered sufficiently important to confer "exclusive power" upon the [NAME]. As well, whatever were the original understandings of the adjacent grant of power to make laws with respect to "all places acquired by the Commonwealth for [NAME] purposes", the more recent decisions about that portion of s 52(i) have emphasised the operation of that subsection as a large grant of power [160] . The context does not, therefore, suggest that s 52(i) is an ephemeral, narrow or insignificant grant of power. Quite the contrary.

1. (1972) 19 FLR 438 at 443. 2. This was approved in [NAME] (1992) 177 CLR 248 at 273. 3. [NAME] v [COMPANY] (1970) 123 CLR 89; [COMPANY] v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 638, 669-670, 673; cf [NAME], "[NAME] and Commonwealth Places: The Constitutional Position", [NAME], vol 73 (1999) 181, at pp 204-206, 208-209 .

114. The fact that a large purpose was envisaged for s 52(i) may also seem in keeping with the original intention of providing for it. This grew out of the decision to create a "seat of government". Necessarily, this would require the creation of a [NAME], but one peculiar and special, as s 125 of the Constitution envisaged. Against the foreign precedents which gave birth to the idea, and the provisions of ss 52(i) and 125, it is perhaps unsurprising that early opinions favoured the view that, so far as lawmaking for the government of the [NAME] set aside for the seat of government was concerned, it was to be sourced to the specific grant of constitutional power (s 52(i)) and not to the [NAME] (s 122) [161] . This may also explain why those who drafted and enacted the original legislation of the [NAME] dealing with the affairs of that [NAME] (including its judicial affairs) did so in terms of legislation bearing express reference to the seat of government [162] . The adoption, twenty years later, of the name "[NAME]" for the [NAME] chosen for the seat of government, could not alter the constitutional character of that [NAME].

1. Opinions of Attorneys-[NAME] of the Commonwealth of Australia (1981), vol I, pp 429-430; cf [NAME] and [NAME], Annotated Constitution of the Australian Commonwealth (1901), p 982 and opinion of [NAME], 19 January 1905 in Opinions of Attorneys-[NAME] of the Commonwealth of Australia (1981), vol 1, 243, at p 247 .

2. Seat of Government [NAME] 1909 Cth; Seat of Government (Administration) [NAME] 1910 Cth.

115. To the argument that s 125 of the Constitution envisaged that the seat of government would be "within [NAME]", contemplating a larger geographical district requiring governance, proponents of this view responded that s 52(i), together with the implied incidental power, would afford the Federal [NAME] more than adequate legislative powers to make laws for the internal administration of the seat of government and that part of its [NAME] which fell outside the seat of government as such. The word "within" in s 125 could be construed to mean "wholly within". The recognition of a separate and distinctive basis for legislative power with respect to this [NAME] would reflect the particular concern of the whole Commonwealth with the seat of government of the federation. It would be consistent with the inclusion of s 122 in Ch VI of the Constitution ([NAME]). Section 122 [NAME], like the analogous [NAME] contemplated in the [NAME], were those that were on the path to statehood. But this was something impossible or extremely difficult to envisage in the case of the [NAME] given its special character and purpose [163] .

1. [NAME] (1992) 177 CLR 248 at 273. I do not stay to explore the possibility of statehood for the [NAME] from which the seat of government, as such, was excised.

116. To the argument that such a view would disqualify those resident in the [NAME] from representation in the Houses of the Federal [NAME] (only permitted in the exercise of the powers granted by s 122) the answer was given that this was indeed the purpose of the Constitution. Its object was to place the [NAME] for the seat of government above the controversies of federal politics. It would be a haven of neutrality. That was undoubtedly the original view taken in the case of the District of Columbia in the [NAME]. It was not until 1961, by the 23 amendment to the [NAME], that the residents of that District obtained the right to vote in presidential elections. According to this argument, a similar amendment would be required to provide validly for the representation in the Federal [NAME] of representatives for the [NAME] whose previous participation, by inference, was invalid because wrongly based on s 122 [164] .

1. [NAME] v The Commonwealth (1975) 134 CLR 201; [NAME] v The Commonwealth (1977) 139 CLR 585.

117. In addition to the foregoing arguments, the applicant relied upon dicta of this Court which drew a distinction between the [NAME] and Commonwealth, on the one hand, and the [NAME] on the other. The [NAME] were somehow outside the federal system constituted by the Commonwealth and the [NAME]. So far as that system was concerned, other [NAME] might be mere dependencies of the Commonwealth. But the [NAME] for the seat of government was an integral part of the federal system. Indeed, it was the centre of that system. It was thus properly governed by the [NAME] of the Commonwealth under the exclusive powers afforded to it for that purpose by the Constitution. It was thus also subject to the federal Judicature [165] .

1. cf [NAME] (1929) 42 CLR 582 at 584; [COMPANY] v Hotchkiss (1958) 101 CLR 536 at 550; [COMPANY] v The Commonwealth (1945) 71 CLR 29 at 83; cf [NAME], "Where is the Seat of Government?", [NAME], vol 25 (1951) 532, at p 538 .

118. For a time, I found the arguments in favour of identifying the source of lawmaking for the [NAME] as s 52(i) rather than s 122 persuasive. Having created a special seat of government (and necessarily provided for a [NAME] within which it would be found) some form of judicial power would be essential. At least it would be so for those matters relevant specifically to the seat of government as such. Once this premise was accepted, the need to provide for a judiciary for the seat of government within Ch III seemed compelling. However, for a number of reasons, I have concluded that, on this issue, the Court should adhere to its established authority. My reasons are as follows.

The source of legislative power is s 122

119. First, the word "within" in s 125 is difficult to reconcile with an exact identity between the "seat of government" and the "[NAME]" within which it is to exist. That preposition indicates a differentiation between the one and the other. It is only with respect to the former that the [NAME] of the Commonwealth enjoys exclusive legislative powers under s 52(i). So far as the [NAME] is concerned, it attracts, as every other [NAME] does, undistinguished in variety, the plenary powers of s 122. The fact that the section appears in a chapter titled "[NAME]" is scarcely of much moment. It is hardly imaginable that the tiny island [NAME] of the Commonwealth could contemplate statehood or, for that matter, that the [NAME] (now disjoined from the [NAME]) [166] could be regarded as a candidate for separate statehood under the Constitution with all that that involves.

1. For the early history of the [NAME], see [NAME], The Federal Judicial System of Australia (1984), p 748. The [NAME] has now been excised from the [NAME]. [NAME]-Government (Consequential Provisions) [NAME] 1988 Cth, s 32 and Sch 5 repealing and amending [NAME] [NAME] 1915 Cth; cf generally [COMPANY] v Gray (1976) 133 CLR 603 at 608-609.

120. Secondly, as was pointed out in [NAME] v Stewart [167] , the power to make laws with respect to the seat of government seems to be concerned with the political and constitutional aspects proper to such a concept rather than the government of the [NAME] in which the seat of government exists. Thus, the making of a law with respect to health or education or most aspects of the criminal law in the [NAME] would appear unconnected with the seat of government as such. Given the assumption that the seat of government is not coterminous with the [NAME] in which it is found, it is necessary then to have resort to the plenary power granted in respect of [NAME] for this purpose. At least that appears a more natural reading of the two provisions than endeavouring to squeeze the multitude of laws necessary for the government of the [NAME] as a [NAME] into the concept of the incidental implications within the grant of power with respect to the seat of government.

1. (1994) 181 CLR 548 at 572-573.

121. Thirdly, the foregoing conclusion is reinforced by the fact that the grant of power made by s 122 is to make laws for the government of any [NAME] "surrendered by any State to and accepted by the Commonwealth". By s 125 that is precisely the way in which the Constitution envisaged that the [NAME], now known as the [NAME], was to be acquired by the Commonwealth. The settled doctrine as explained by [NAME[NAME] in [NAME] [168] should therefore be maintained. The power in s 52(i) is not redundant although, according to [NAME[NAME], it was "perhaps an unnecessary provision" being borrowed from the [NAME] precedent [169] . The provision of s 52(i) affords an additional source of legislative power specific to the capital of the federation, qua capital and seat of government [170] . A clear majority of the Justices of this Court over the years, and most of the commentators who have written on the topic [171] have favoured the view that the constitutional source of the legislative power of the Federal [NAME] to provide for the laws for the government of the [NAME] lies in s 122 and not in s 52(i). That view has not occasioned the controversy which has surrounded the alleged disjoinder of the [NAME] courts from the federal Judicature.

1. (1965) 114 CLR 226 at 278. See also at 241, per [NAME[NAME]. 2. [NAME] (1965) 114 CLR 226 at 273. 3. [NAME] (1965) 114 CLR 226 at 278. See also at 258, per [NAME[NAME]. 4. "Correspondence", [NAME], vol 47 (1973) 344-345; [NAME], "Where is the Seat of Government?", [NAME], vol 25 (1951) 532, at p 535 .

122. To the extent that it is necessary for the applicant to have leave to have this Court overrule the previous decisions on this point (a necessity that I doubt [172] ) I would grant such leave as the point is important and clearly arguable. However, in so far as those decisions stand for the proposition that s 122 is the source of legislative power to make laws for the government of the [NAME], [NAME] and other decisions which have so held or assumed the law to be, should be reaffirmed. I would decide the first issue against the applicant.

1. [NAME] v New South Wales (1996) 70 ALJR 611 at 614; cf [COMPANY] v Victoria (1984) 154 CLR 311 at 316, per [NAME[NAME] (diss).

Section 122 and Ch III of the Constitution

123. Section 122 empowers the [NAME] to "make laws for the government of any [NAME]". According to our ordinary understanding of "government" it includes the traditional tripartite division of governmental power: legislative, executive and judicial. Therefore, on the face of things, s 122 empowers the [NAME] to make laws for the judiciary of a [NAME].

124. Whereas the [NAME] grants of legislative power in ss 51 and 52 in Ch I of the Constitution are expressed to be "subject to this Constitution" and "with respect to" specified heads of power, there is no express limitation stated within s 122. The grant is made "for" the government of any [NAME]. This appears to recognise what the necessities would otherwise suggest — a full and ample power to govern the [NAME] as a dependency of the Commonwealth which was to enjoy entire governmental power over them. Doubtless in the early years of this century, imperial notions apt to the governance of dependent colonial [NAME] having no immediate prospect of self-government coloured the views of readers concerning the nature of the constitutional power granted by s 122. Reflections of this view can be found in the reasons written in [NAME] [173] . Those reflections, which had the effect of substantially disjoining the government of the [NAME] from the rest of the Constitution, including Ch III, remain with us long after imperial notions have otherwise been expelled from our constitutional thinking [174] . The applicant challenges them as incompatible with the Constitution, read with today's eyes.

1. (1915) 19 CLR 629. 2. [NAME] v Hill (1999) 199 CLR 462 at 490-491, 497-501, 503, 526-528.

125. Apart from the large sweep of the language in s 122 itself, there are, it must be conceded, aspects of the text of Ch III which, as the cases point out, favour the view that a judiciary created for the [NAME] under s 122 is unrestrained by the requirements for the Judicature envisaged in the provisions of Ch III. There is no express mention anywhere in Ch III of the [NAME] or of [NAME] courts or the judicial power of the [NAME]. At first glance, this might reinforce the separation of the [NAME] and the treatment of their courts within the four corners of s 122. On this view, such courts would be linked to the nation's court system only by legislative enactment, itself resting on s 122 [175] . The view that a [NAME] judiciary could be established outside the federal Judicature was not one peculiar to the Australian federation. It found support in court decisions of the [NAME] where a like problem had presented [176] . Of course, care must be taken in borrowing the opinions of overseas courts, given the peculiarities of different constitutional arrangements and the differing circumstances to which they must be applied [177] .

1. Mitchell v Barker (1918) 24 CLR 365; [NAME] v [NAME] (1924) 34 CLR 297; [NAME] v [NAME]; Ex parte [NAME] (1926) 37 CLR 432; [COMPANY] v Symes (1929) 43 CLR 53; [NAME] (1965) 114 CLR 226; cf [NAME], Federal Judicial System of Australia (1984), p 296; [NAME] (1971) 125 CLR 591. See also "Recent Cases", [NAME], vol 45 (1971) 366-368, 631-633.

2. American Insurance Co v Canter (1828) 26 US 511; Ex parte Bakelite Corporation (1929) 279 US 438; cf [NAME] v [NAME] (1933) 289 US 516; [NAME] v [NAME] (1973) 411 US 389; [NAME] (1965) 114 CLR 226 at 278.

3. In Art I s 8 cl 9 of the [NAME] there is an express power to "constitute Tribunals inferior to the Supreme Court". That power is [NAME] as the subject matter and has been used to establish a range of legislative courts on a national basis as well as [NAME] courts and courts for the District of Columbia; cf Dynes v Hoover (1857) 61 US 65.

126. The functional importance of the Judicature provided for in Ch III, as the means of upholding the constitutional balance between the Commonwealth and the [NAME], afforded a further reason which convinced many judges for a long time that the [NAME] were outside the protections afforded by the Constitution. Those protections include the appointment, tenure, remuneration and removal of federal judges. Reinforcement for the view that [NAME] were constitutionally disadvantaged, and that Australians living within them were deprived of rights otherwise enjoyed by fellow citisens under the Constitution, receives some support from the lack of a constitutionally guaranteed provision for their representation in the Federal [NAME] [178] . In such a context, the exclusion of the courts of several [NAME] from the protections offered by Ch III might not seem so offensive.

1. Constitution, ss 7, 24, 25, 26.

127. The notion that persons within the [NAME] could similarly fall outside the protections of s 72 was intellectually justified by the view that the Judicature provided in Ch III was, constitutionally speaking, only needed to hold the balance between the Commonwealth and the [NAME]. The [NAME], in their variety, and most of them being "outside" continental Australia, could be left to differing forms of Commonwealth rule. Such rule was sure to be benign because answerable to the Federal [NAME]. If more constitutional protections were desired, the hope for them would lie in progression to statehood. The structure of the Constitution, its division into chapters and the treatment of s 122 in the separate Ch VI was therefore seen as reinforcing the impression that s 122 was divorced from Ch III which was addressed to the "federal" controversies as such. It could be expected that they would arise out of the provisions of Chs I and II as between the Commonwealth and the [NAME]. In [NAME] v [NAME] [179] , [NAME] and [NAME] listed the reasons for adhering to the view that "s 122 is not affected by the operation of Ch III". Their Honours' list was offered in the context of elucidation of the meaning of "federal jurisdiction". But most of the arguments mentioned are also relevant to the [NAME]'s contention that the past authority of this Court on that relationship is wrong and that, contrary to the past holdings, a [NAME] court is a federal court for the purpose of Ch III.

1. (1999) 196 CLR 553 at 616-617. See also [NAME] (1965) 114 CLR 226 at 242; [NAME] (1971) 125 CLR 591 at 610; [NAME] v The Commonwealth (1997) 190 CLR 1 at 42.

128. The Commonwealth supported the maintenance of the old doctrine, not only for reasons of authority but based on a proper analysis of the constitutional text. It cited the well known proposition of the Privy Council in the Boilermakers' Case [180] :

The legislative power in respect of the [NAME] is a disparate and non-federal matter. 1. [NAME]-[NAME] (Cth) v The Queen (1957) 95 CLR 529 at 545 (PC); cf [NAME] v [NAME] (1998) 193 CLR 346 at 493-494 [308]. For criticism see [NAME] v The Commonwealth (1997) 190 CLR 1 at 170-171; [NAME] v [NAME] (1999) 196 CLR 553 at 589-591, 599-603, 651.

129. The Commonwealth acknowledged that Ch III of the Constitution had some limited operation in relation to the [NAME]. Thus, even in [NAME[NAME] could not accept that Ch III was totally divorced from territorial operation. For example, he suggested that this Court could entertain actions between residents of different [NAME] in relation to acts in a [NAME] and could grant the writs provided by s 75(v) of the Constitution to an officer of the Commonwealth located in a [NAME] [181] . Yet although such application of Ch III to the [NAME] appeared to challenge the theory that they were "disparate and non-federal", the Commonwealth (supported by the [NAME] respondent and other [NAME]) urged the Court, rereading the Constitution, to come to the same conclusions as the Court had done in the past, without necessarily embracing all of the reasons given in the earlier cases. Regrettably, I cannot do so.

1. [NAME] (1965) 114 CLR 226 at 241.

The Constitution must be read as a whole

130. The first basic flaw in the logic of past authority lies in the view that because s 122 is found in Ch VI of the Constitution, it is somehow cut free of the requirements of Ch III. The practical reasons which led judges of earlier generations to come to this conclusion can be understood. But as a matter of construction of the Constitution, the view is not supportable. Recognition of the difficulties inherent in this view goes back to early days as judges were required to face the consequences of the logic of [NAME].

131. In [NAME] v Lake [182] , [NAME] insisted that s 122 must be read within the entire constitutional document. He remarked that he had always found it hard to see why s 122 should be disjoined from the rest of the Constitution. On the contrary, he suggested, the Constitution must be read as a coherent instrument for the government of the Australian federation and not as two Constitutions — one for the federation and the other for its [NAME]. To similar effect was his opinion in [COMPANY] v The Commonwealth [183] . In [NAME] [184] , [NAME[NAME] also believed that the Constitution should be read as a whole for a nation and its people, the Commonwealth of Australia. Even [NAME[NAME] in [NAME] accepted that it was an error to "compartmentalise" the Constitution merely because "for drafting convenience" the document had been divided into chapters. Occasional assistance could be derived from the division and structure of the instrument. But such considerations could not justify disjoining one part from the rest of the Constitution [185] . More recent remarks by other members of this Court are along the same lines [186] .

1. (1958) 99 CLR 132 at 145; cf [NAME] and [NAME], [NAME]'s Australian Constitutional Cases, 4th ed (1982), pp 688-689; [NAME], "The Concept of "One Australia" in Constitutional Law and the Place of [NAME]", Federal Law Review, vol 25 (1997) 281. 2. (1945) 71 CLR 29 at 85. 3. (1965) 114 CLR 226 at 278. 4. [NAME] (1965) 114 CLR 226 at 246.

5. See, eg, [NAME] (1992) 177 CLR 248 at 273; [COMPANY] v The Commonwealth (1997) 190 CLR 513 at 566-568, per Gaudron J; at 593-613, per [NAME[NAME]; at 642-661, of my own reasons.

132. Once disjoinder of the kind espoused in [NAME] is abandoned as impossible to sustain in the Australian constitutional context and an interrelationship between Ch III and s 122 is contemplated, the only firm basis for expressing the new relationship between the Chapter and the section lies in an analysis of the language of the provisions of Ch III and a full understanding of the purposes which those provisions were designed to achieve. Complete disjoinder, to the extent that it was implied in [NAME] and expressed by the Privy Council in the Boilermakers' Case, should be overruled. This conclusion requires a re-expression of the interaction between the several provisions. The absence of the words "subject to this Constitution" in s 122 (as they appear in ss 51 and 52) is immaterial [187] . The section would, in any case, have to be read in that way. The constitution must be viewed as a unity. Disjoinder is incompatible both with its language and purpose [188] .

1. [NAME] (1997) 190 CLR 513 at 653. 2. cf [NAME], "[NAME] and Commonwealth Places: The Constitutional Position", [NAME], vol 73 (1999) 181, at pp 210-211 .

The textual requirements of Ch III

133. When the language of the provisions in Ch III is examined and their purposes considered, there are numerous indications, express and implied, that the judiciary of each [NAME] must be created in a way that conforms to that Chapter and, hence, that, prima facie, [NAME] courts must be "federal courts" as the Chapter provides.

134. First, Ch III is apparently dealing with the entirety of the judicial arrangements of the Australian nation. On its face, the Chapter provides for all the judicial arrangements made by the Commonwealth including with respect to the [NAME]. Why "the judicial power of the Commonwealth" in respect of the [NAME] should be regarded as entirely disjoined or divorced from that provided for in s 71 of the Constitution is completely unexplained. As provided in that section, the judicial power is to be vested only in the three categories of courts mentioned — this Court, federal courts created by the [NAME] and other courts invested with federal jurisdiction. The last includes a reference to the investing of State courts with federal jurisdiction, the novel invention of the Australian Constitution [189] . If "federal" in s 71, as an adjective qualifying "courts", means no more than a court created by the [NAME] (an expression used in s 72), it might be suggested that the word is redundant in s 71. But this is not so if the reference to "other courts" in that section is taken to refer to the State courts invested with federal jurisdiction under s 77(iii). Then an entirely logical national hierarchy of courts emerges. It is made up of this Court, federal courts, State Supreme Courts and any other courts invested with federal jurisdiction.

1. Constitution, s 77(iii).

135. It is unnecessary for the Constitution to provide expressly for appointments to, tenure and remuneration in, and removal from, office as a State judge. Such matters were at federation, and still are, provided for in the State Constitutions saved by s 106 of the Australian Constitution and other State laws. But it is necessary to provide, as s 72 does, for such terms of appointment, tenure, remuneration and removal in the case of Justices of the High Court and of courts created by the Federal [NAME]. A court is no less "federal" nor any less a "court created by the [NAME]", if it is a court for a [NAME] established by an [NAME] of the Federal [NAME] [190] , as the Supreme Court of the [NAME] unarguably was in 1933, and continued to be, until the [NAME] and possibly thereafter.

Accordingly, simply in terms of the language of s 72, unless [NAME] courts are indeed disjoined as "non-federal", the requirements of the Constitution are irresistible. Any judge of such a court (in the Constitution called Justices) created by the [NAME], must be appointed as s 72 requires, ie by the [NAME]-[NAME] in Council and (since the constitutional amendment in 1977) for a term lasting to the minimum age as specified by law.

1. [NAME] v [NAME] (1998) 193 CLR 346 at 402-403, per Gaudron J; cf [NAME] v [NAME] (1999) 196 CLR 553 at 603, per Gaudron J; [NAME] v The Commonwealth (1997) 190 CLR 1 at 174-176, per [NAME[NAME].

136. Secondly, there is a clear indication in the terms of s 73 that this is the scheme of the Constitution. That section provides for the appellate jurisdiction of this Court. The manifest objective of that section is to uphold the appellate superintendence of this Court over all Australian courts, federal and State [191] . That objective is clearly stated in the text of s 73. This limits the exceptions and regulations which would prevent this Court from hearing and determining appeals from a Supreme Court of a State, such as would, in 1901, have lain from such courts to the Privy Council. In s 74, there is also the indication of this Court's particular functions in constitutional matters. In s 77 reference is made to the power of the [NAME] to define the jurisdiction of any federal court other than this Court and the extent to which such jurisdiction should be exclusive of that which belongs to or is invested in the courts of the [NAME]. To contemplate the possibility that [NAME] courts, obviously essential for the government of a [NAME] however small, would be beyond the constitutionally guaranteed superintendence of this Court is completely unacceptable. Even if it were tolerable to those who looked at the Constitution in earlier decades, it is completely intolerable today. In particular, it could not be the purpose of the Constitution with respect to the judiciary of [NAME] such as the [NAME] and the [NAME], with significant populations of electors of the Commonwealth, well established court systems and a high measure of self-government.

1. And over the Inter-State Commission (s 73(iii)), reference to which appears to be a dead letter.

137. The offence of contemplating the abandonment of those courts, and more particularly of the litigants within them, at the doorstep of the integrated judicial system of the Commonwealth of Australia, which comes together in this Court as s 73 of the Constitution provides, is not made more acceptable by the existence of legislation which permits appeals from [NAME] courts. Such legislation could be repealed or circumscribed to an intolerable extent. Yet on the theory accepted by the past authority of this Court, supported by the [NAME] respondent and the [NAME], there is nothing whatever in the Constitution to prevent the deletion of the [NAME], and all of them, from a constitutionally protected right of appeal to this Court. The conceded operation of s 75(v) of the Constitution within the [NAME] is of small comfort. Such writs lie only against officers of the Commonwealth. They leave untouched most cases, civil or criminal, as the facts of this case illustrate. Their scope, however important, is circumscribed. The relief which they provide is limited.

138. Unlike the [NAME] external to Australia, the two mainland [NAME] were constituted from lands within or belonging to [NAME] at the time of federation: the [NAME] from the State of New South Wales, as s 125 contemplated; the [NAME] from the [NAME] of South Australia, as s 6 of the Commonwealth of Australia [NAME] 1900 Imp contemplated [192] . At federation, the persons in what later became those two [NAME] had established rights of appeal to this Court from the judgments of the Supreme Courts of New South Wales and South Australia. It is most unlikely that the Constitution's purpose was to deprive them of such important rights. In so far as the Constitution divests them of rights to elect members of both Houses of [NAME], at least until the [NAME] allowed them representation, the Constitution provides a further reason for a construction of Ch III which would uphold for them the protections of the rule of law. This is what s 73 ensures throughout Australia, for all [NAME] and [NAME]: big and small, mainland and island, populous and sparsely inhabited. The section should be construed with that purpose in mind and to avoid alternative, offensive possibilities [193] . The provision of self-government to some of the [NAME] cannot alter this. That provision is itself made under federal law. There is no express reference to it in the Constitution. A [NAME] remains for constitutional purposes a s 122 [NAME]. No legislative enactment can alter that constitutional fact.

1. 63 & 64 Vict c 12 s 6; cf [NAME] (1992) 177 CLR 248 at 279-286; [NAME] v [NAME] (1998) 195 CLR 96 at 129, 144-145. 2. [NAME] (1992) 177 CLR 248 at 286; cf [NAME] (1965) 114 CLR 226 at 277, per [NAME[NAME]; [NAME]-[NAME] (NSW); Ex rel [NAME] v The Commonwealth (1977) 139 CLR 527 at 533.

139. The alteration of s 128 of the Constitution in 1977 to include the electors resident in the [NAME] within the constitutional alteration provisions recognises and reinforces their part in the federal Commonwealth. It renders absurd the suggestion that the [NAME] within which they live are somehow outside the Australian "federal" system and the [NAME] disjoined from other federal courts and from a constitutional relationship with this Court. If the constitutional realities of Australia's relationship with the United Kingdom can be acknowledged [194] in face of textual difficulties, is it so difficult to accept the constitutional realities of Australia's internal arrangements for the [NAME] and [NAME] which together make up the Commonwealth?

1. [NAME] v Hill (1999) 199 CLR 462 at 490-491, 525-527.

140. The contrary arguments which have found favour in the past, including with some Justices although in dissent in the recent past [195] , are affected, in my respectful view, by an erroneous assumption that the meaning of the Constitution is governed by what the framers would have held it to mean. I fundamentally disagree. This is not the case. Today, it is necessary to reconsider the constitutional text in a context inescapably affected by the development of the internal [NAME], their full inclusion in the representative democracy of the Commonwealth of Australia [196] and their full participation in Australia's national life. Viewed in this light, the notion that it would be constitutionally possible to cut them out of the integrated appellate judicial arrangements of the Commonwealth is so obviously incompatible with the text and purpose of the Constitution that a construction of Ch III which could have that result must be rejected in favour of one which prevents it from happening.

1. [NAME] v [NAME] (1999) 196 CLR 553 at 616-617, per [NAME] and [NAME]. 2. Constitution Alteration (Referendums) 1977 Cth (No 84 of 1977); cf [COMPANY] v The Commonwealth (1992) 177 CLR 106 at 246, per [NAME[NAME]; [NAME] v [NAME] (1997) 189 CLR 520 at 566; [NAME] (1997) 190 CLR 513 at 653.

141. Thirdly, the decision of this Court in Re [NAME] [197] , overruling [NAME] v [NAME] [198] , rests upon the fundamental premise that it is not possible for the Federal [NAME] (or any other legislature within the Commonwealth) to enlarge the original jurisdiction of this Court or of a federal court beyond the matters expressly provided in ss 75, 76, 77 and 78 of the Australian Constitution [199] . Accepting that premise, it cannot logically be open to the Federal [NAME] (still less to any other legislature within the Commonwealth, including a State or [NAME]) to expand the appellate jurisdiction of this Court beyond the appeals expressly provided for in s 73. If the principle operates upon provisions in one part of Ch III, it must surely operate throughout the Chapter. Different views have been stated in the past about that principle [200] . But it must now be taken as settled for the purposes of the [NAME] proceedings by [RESPONDENT]. Yet on the theory of the [NAME] respondent and the [NAME], a [NAME] court is neither a "federal court" nor a State court. Unless in the particular case it is "a court exercising federal jurisdiction", there is no constitutionally guaranteed appeal from the judgments of a [NAME] court to this Court. Thus, on the face of things, a [NAME] court, exercising purely territorial jurisdiction (if that be assumed) would give rise to no judgment which could be the subject of an appeal to this Court or any other federal court, including the Federal Court of Australia. If, on the other hand, every part of the jurisdiction of the [NAME] court is deemed "federal jurisdiction" a question immediately arises. If the "jurisdiction" is "federal" for the purposes of s 73(ii) why is the "court" not "federal" for the purposes of s 73(ii)?

1. (1999) 198 CLR 511. 2. (1998) 193 CLR 346. 3. Applying In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264-265; [NAME] v [COMPANY] (1955) 92 CLR 529; R v [NAME]; [COMPANY] (1956) 94 CLR 254 at 268. 4. [NAME] v [NAME] (1998) 193 CLR 346 at 379-385, per [NAME] and Toohey J; at 491-496, my own reasons; [NAME] (1999) 198 CLR 511 at 611-616.

142. The only way that these illogical and foolish results can be avoided is to view the appeals provided for from courts enumerated in s 73(ii) as an exhaustive list of the courts within the applicable Australian court hierarchy including, once established, a Supreme Court of a [NAME]. As this is the construction which the purpose of s 73 seems to advance and as it preserves to the people of the Commonwealth, wherever they reside, including in the [NAME], the fundamental constitutional protection of the rule of law, it is the construction which I favour.

143. Fourthly, this view of the meaning of "federal court" in s 73 is in no way diminished when regard is had to the subject matters of jurisdiction upon which the [NAME] may make laws defining the jurisdiction of any federal court. Thus, issues may arise, and often do, in the [NAME] with respect to all of the matters mentioned in ss 75 and 76 [201] . So far as the [NAME] jurisdiction of [NAME] courts as federal courts is concerned, it will arise "under" laws made by the [NAME] in reliance upon s 122 (and in exceptional cases s 52(i)). Only this view reconciles the integration of ss 122 and 125 with Ch III in a way conformable with the text of those sections. Each of them refers to the Commonwealth and [NAME]. They are exactly the same polities referred to in the provisions of Ch III. The notion that they are somehow divorced from each other is contradicted by the text. The unnecessary disjoinder between them should be ended. They should, at last, be reconciled.

1. A recent case involving a decision in Admiralty jurisdiction exercised in the [NAME] is [COMPANY] v [COMPANY] (1997) 190 CLR 181.

Creation of the [NAME] court

144. The [NAME] respondent (supported by the [NAME]) submitted that, whatever might have been the position of the Supreme Court of the [NAME] as a "federal court" within s 72 of the Constitution prior to 1992, after the [NAME], and consequential amendments to the Self-Government [NAME], it was thereafter a [NAME] court created by the [NAME]. Upon this argument, it no longer had to comply with the requirements of Ch III. It was in a situation more akin to that of a State Supreme Court. This submission called in aid the observations of this Court in [NAME] [202] describing the "new legislative power" of the [NAME] as separate and distinct from the exercise of the legislative power of the Federal [NAME] [203] . Thus, "[t]he [NAME] of the [NAME] has been erected to exercise not the [NAME]'s powers but its own" [204] including (it was submitted) a power to create a separate [NAME] court.

1. (1992) 177 CLR 248. 2. [NAME] (1992) 177 CLR 248 at 263-264, per [NAME[NAME], [NAME] and [NAME] [NAME]; at 281-282, per [NAME] and [NAME] [NAME]; at 284, per [NAME[NAME]. 3. [NAME] (1992) 177 CLR 248 at 282.

145. I entirely agree that the legislative power conferred by the Self-Government [NAME] in respect of the [NAME] is most ample [205] . It could not be described as plenary given the entrenchment by the [NAME] of certain limitations upon the power [206] , the reservation of a [NAME] power to the [NAME]-[NAME] to disallow enactments of the [NAME] [207] , the continuing functions of the [NAME]-[NAME] in the [NAME] [208] notwithstanding its new status [209] and the power of the Federal [NAME] (occasionally exercised) to override any law operating in a [NAME] [210] . Moreover, because the grant of legislative power to the [NAME] [NAME] is made under s 122 of the Constitution, it cannot enlarge the power which it is within the province of the Federal [NAME] to grant. Thus it cannot override the requirements of Ch III. These requirements continue to govern the courts of the [NAME], whichever legislature actually calls those courts into existence.

1. cf R v [NAME]; Ex parte Northern Land Council (1981) 151 CLR 170 at 279.

2. Self-Government [NAME], s 34; cf [NAME] v [NAME] (1999) 196 CLR 553 at 580.

3. Self-Government [NAME], s 35.

4. Self-Government [NAME], s 72 (Royal prerogative of mercy) and s 74 (regulation-making power).

5. Self-Government [NAME], s 7: "The [NAME] is established as a body politic under the Crown by the name of the [NAME]."

6. See, eg, [NAME] 1997 Cth; cf [NAME] v [NAME] (1999) 196 CLR 553 at 580; cf [NAME], "[NAME] and Commonwealth Places: The Constitutional Position", [NAME], vol 73 (1999) 181, at p 203 .

146. The applicant argued that, notwithstanding the [NAME] and the legislative fiction which it worked in conjunction with the Self-Government [NAME] to convert the [NAME] of the [NAME] of 1933 into an enactment of the [NAME] legislature, the Supreme Court of the [NAME] remained a court "created by the [NAME]" [211] . The federal [NAME] creating it has never been repealed. The old Court was never abolished. All that the Self-Government [NAME] and the [NAME] did was to assign future responsibility for the extant Court. This was done by virtue of, and under, federal legislation.

1. Constitution, s 72.

147. I accept this argument. It is therefore unnecessary for me to consider the applicant's alternative submission. This was that, in the context of the Constitution, the expression "as the [NAME] creates" [212] and "created by the [NAME]" [213] includes all courts which ultimately derive their legislative authority from the Federal [NAME]. There is some support for this notion in [NAME]'s opinion that, in such matters, the [NAME] may [NAME] "mediately or immediately" [214] . The better view, in the case of the Supreme Court of the [NAME], is that the Federal [NAME] acted "immediately" to create the Court in 1933 and has done nothing since to abolish its creation.

1. Constitution, s 71. 2. Constitution, s 72. 3. Lamshed v Lake (1958) 99 CLR 132 at 142.

148. This conclusion has the practical advantage of confirming the constitutional validity of the Court. It confines attention to the validity of the appointments to the Court, so created, of judges not appointed by the [NAME]-[NAME] in Council nor for the term provided by s 72 of the Constitution. To the complaint that this opinion robs those elected to the [NAME] to represent the people of the [NAME], of the ultimate say in the choice and removal of judges of the courts of the [NAME], there are several answers. No other construction of the constitutional text defends the participation of those courts in the constitutionally guaranteed and integrated judicial system of Australia for which s 73 provides. The protection of all appointees to judicial office under the Commonwealth is a matter upon which the Constitution has spoken. It is an important matter. No devolution of self-government by federal law, however otherwise extensive, can derogate from it for the simple reason that legislative self-government may not breach express constitutional requirements. In practice, it could be assumed that conventions would develop by which the [NAME]-[NAME] in Council would take closely into account the advice of the Executive of the [NAME], just as would be done in respect of other functions assigned to the [NAME]-[NAME] by the Self-Government [NAME]. Although many, perhaps most, legislative matters concerning the courts and the judiciary of the [NAME] may be regulated by enactments of the [NAME] [NAME], the central constitutional guarantees in s 72 of the Australian Constitution must be observed. These are not matters which the Federal [NAME] can devolve to a [NAME]. They reside in the Constitution itself.

Past authority should be overruled

149. In the past, several Justices of this Court have expressed their disquiet about the state of authority concerning the relationship between s 122 and Ch III of the Constitution. Usually, they have contented themselves with dissociation from the "sweeping generalisation" [215] of [NAME] in [NAME]. However, they have declined a more radical review of the Court's authority out of an apparent concern for the disruption that this might cause [216] . Instead, they have preferred to embrace the illogicalities of the Court's holdings as a "workable anomaly" [217] . In this application neither the parties nor the [NAME] sought to defend the total disjoinder of Ch III from the [NAME]. Essentially, whilst offering defences of some of the opinions of the past, they rested their resistance to overruling on the basis that it would destroy the continuity of constitutional doctrine, disrupt the reliance on unanimous opinions of the Court which have stood for at least thirty years and occasion great uncertainty and inconvenience in respect of judicial orders made by [NAME] judges, of which the conviction and sentence of the applicant was but one vivid illustration [218] .

1. [APPELLANT] (1965) 114 CLR 226 at 275, per [NAME[NAME]. 2. [NAME] (1965) 114 CLR 226 at 257, per [NAME[NAME]. 3. [NAME] (1965) 114 CLR 226 at 277, per [NAME[NAME]. 4. See comment of [NAME], "[NAME] and Commonwealth Places: The Constitutional Position", [NAME], vol 73 (1999) 181, at p 210 .

150. I accept the force of these submissions. I respect the opinions of those who have gone before who have considered that, whatever the difficulties, the Court should not contemplate departure from past holdings [219] . Because of the status of the Supreme Court of the [NAME] as a court created by the [NAME], the problem presented for the orders of that Court would appear to be confined, in the view which I take, to orders made by that Court since 1992 by three acting judges and one permanent judge, not appointed as s 72 of the Constitution requires. The orders of other [NAME] courts would be affected. The status of the Supreme Court of the [NAME] is said to be different from that of the Supreme Court of the [NAME]. Acting judges have been a feature of that [NAME] for most of this century. It is necessary to face up to these serious consequences just as it was when the Court approached its decision in Re [NAME]. Ameliorative steps could doubtless be taken to overcome some of the difficulties [220] . It would be inappropriate, in the circumstances, for me to explore these. But I do not doubt that the consequences of responding to the applicant's request that the Court should overrule [APPELLANT] and [NAME] would be substantial. They demand an attitude of modesty about one's opinions and caution in giving effect to them.

1. [NAME] (1965) 114 CLR 226 at 257, per [NAME[NAME]. 2. cf R v [NAME]; Ex parte [NAME] (1973) 129 CLR 231 at 243-244, per [NAME]; at 248, per [NAME[NAME].

151. It will usually be inferred that the Constitution is intended to operate without undue inconvenience to the people who are governed by it [221] . Disturbing past authority of this Court usually causes inconvenience. But that inconvenience would result not from the Constitution itself but from a seriously mistaken interpretation which has endured, in part at least, because of a concern about the disruption which correction would cause. The logic of adhering forever to an erroneous construction of the Constitution on that ground would require that future generations always close their eyes, even to important mistakes of construction which they perceive, because their predecessors either did not see them or saw matters in a different light, being conditioned by different experiences and circumstances. [NAME] and [NAME] are unanimous opinions of this Court, they rest, ultimately, on the shaky foundation of [NAME], variously expressed and undermined by the many misgivings stated in this Court since it was decided. So illogical is [NAME] authority — and so potentially serious in disjoining [NAME] courts from a constitutionally protected relationship with the integrated Australian judiciary — that in my view this Court should approach the matter as one of principle rather than authority [222] .

1. [NAME] v The Commonwealth (1999) 197 CLR 510 at 532, per [NAME] and [NAME[NAME]; at 582, my own reasons; [NAME] (1999) 198 CLR 511 at 600. 2. cf [NAME] v [NAME] (1997) 189 CLR 520 at 556.

152. From time to time, this Court has felt obliged to depart from past authority, despite the great importance of old doctrines [223] , despite the consequence of abolishing, in one case, what for fifty years had been considered a federal court [224] ; despite the overthrow of doctrine which many judges had laboured to refine [225] ; despite extremely significant legal, economic, political and other consequences which flow from the decision [226] ; and despite the acknowledged utility of the legislation declared invalid [227] . This is such a case.

1. Amalgamated Society of [NAME] v [COMPANY] (1920) 28 CLR 129. 2. R v [NAME]; [COMPANY] (1956) 94 CLR 254; [NAME]-[NAME] (Cth) v The Queen (1957) 95 CLR 529 (PC). 3. Cole v Whitfield (1988) 165 CLR 360, concerning s 92 of the Constitution. 4. [NAME] v New South Wales (1997) 189 CLR 465, concerning s 90 of the Constitution. 5. [NAME] (1999) 198 CLR 511.

153. Those opposing that course appealed to the fact that s 72 of the Constitution had been taken to the Australian electorate in 1977 after the decisions in [NAME] and [NAME]. It was submitted that the amendments then adopted amounted to an endorsement by the electors of the view of [NAME] courts which this Court had taken in those decisions. This argument has no merit whatever. The analogous fiction has long been discarded in the context of ordinary legislation [228] . It carries even less persuasive force where the electors are involved in the lawmaking process. Their reasoning is completely unfathomable. If anything, the amendments of the Constitution, made in 1977, give rise to contrary implications. With the approval of the electors, s 72 was amended to remove the practical consideration which in [NAME] clearly concerned the Court, viz if the Court of Petty Sessions of the [NAME] was a "federal court", its magistrate was a justice of such a court and was therefore entitled to life tenure under Ch III. Furthermore, as I have already suggested, the amendment of s 128 of the Constitution in 1977 [229] recognised steps which had been taken legislatively over previous decades to incorporate the electors of the Commonwealth resident in the internal [NAME] into the representative democracy of the nation. If any inferences [NAME] from the 1977 referendums, they point away from the early notions that [NAME] were in a state of "tutelage" [230] to the Commonwealth. Now they are incorporated in its democracy. They participate in its referendums. And they cannot be denied the appellate right which s 73 protects and the judicial standards which s 72 requires.

1. R v Reynhoudt (1962) 107 CLR 381 at 388; Flaherty v Girgis (1987) 162 CLR 574 at 594; [NAME] v [COMPANY] (1996) 187 CLR 310 at 329, 351. 2. Constitution Alteration (Referendums) 1977. 3. R v [NAME] (1915) 19 CLR 629 at 637-638, per [NAME].

154. The spectre of ghastly consequences is not infrequently paraded at the Bar table of this Court, doubtless in the hope that its appearance will "frighten" the Justices "into submission" [231] so that they will leave demonstrated error alone. But judges of ultimate constitutional and appellate courts do not enjoy the luxury of escape from "apocalyptic scenarios about life after" the rejection of earlier doctrine shown by analysis to be insupportable [232] . In a society such as ours, the outcomes are rarely as dire as predicted. Usually the law sensibly aids the necessary repairs. To the extent that it is necessary, the applicant should have the leave he sought to re-argue past authority. [NAME] and, to the extent required, [NAME], should be overruled.

1. [NAME] v Guardian Assurance Plc [1995] 2 AC 296 at 326, per Lord Lowry. 2. cf Canadian National Railway Co v Norsk Pacific Steamship Co [1992] 1 SCR 1021 at 1174-1175, per Stevenson J.

The de facto officers' doctrine is inapplicable

155. Neither the [NAME] respondent nor the Commonwealth nor counsel intervening for the [NAME] sought to argue that, if the foregoing conclusions were reached, the orders purportedly made by the [NAME] [NAME[NAME] [NAME] could be sustained by the de facto officers' doctrine [233] . However, a submission for the Attorneys-[NAME] of South Australia and [NAME] referred the Court to recent decisions overseas [234] . It is therefore proper to make brief reference to the point.

1. R v [NAME]; Ex parte [COMPANY] (1977) 17 SASR 321 at 331; G J Coles & [COMPANY] v [NAME] Tribunal (1986) 7 NSWLR 503 at 520; [COMPANY] v Planning Administrator (1991) 25 NSWLR 615 at 639-640; [NAME], "De Facto Officers" in [NAME], 2nd ed (1997) 229, at p 236, (originally published Res Judicatae, vol 1 (1938) 285); cf [NAME], "De Facto Officers", Australian Journal of Administrative Law, vol 2 (1994) 5, at p 7. See also [NAME], "Unconstitutional Statutes and De Facto Officers" Federal Law Review, vol 2 (1966) 37.

2. Reference re Language Rights under the [NAME] 1870 (1985) 19 DLR (4th) 1; [NAME] v [NAME]-[NAME] (Manitoba) (1986) 27 DLR (4th) 39.

156. In the [NAME], it has been held that the de facto officers' doctrine may not be invoked to preclude a challenge to a decision of a person who purported to [NAME] as a federal judge although not appointed in accordance with Art III of the Constitution [235] . But in that country [236] and in other countries of our legal tradition [237] a distinction has been drawn between the validity of the acts de facto of a person invalidly appointed to a valid office and the acts of a person appointed to an office which itself has no validity.

1. See, eg, Glidden Co v Zdanok (1962) 370 US 530 at 536; [NAME] v [NAME] (1985) 751 F 2d 1008; [NAME] v [NAME] (1982) 458 US 50; [NAME] v [NAME] (1991) 501 US 868 at 879 and [NAME] v [NAME] (1995) 515 US 177. 2. cf Buckley v Valeo (1976) 424 US 1. 3. cf In re [NAME] (1893) 15 NZLR 361 at 372-373.

157. In the [NAME] case, the appointment of the [NAME] [NAME] was in the latter class. By the foregoing analysis, the [NAME] was not competent to enact a provision creating the office of an acting judge of the Supreme Court [238] .

Accordingly, even assuming that the rules devised by the common law for the protection of the [NAME] against the great inconvenience of the later discovery of the invalidity of official acts could protect the acts of a person "appointed" as a "judge" otherwise than as s 72 of the Constitution requires, that question is not reached in this case. It is preferable (if not necessary) that an opinion on that point be withheld until it is necessary for decision. In my view, no comfort could be found for this case in the de facto officers' doctrine.

1. As the [NAME] 1933 [NAME], s 4A purported to do and as the commission issued to the [NAME] [NAME] purported to give effect.

Conclusion and orders

158. To invalidate the orders of the [NAME] [APPELLANT] convicting and sentencing the applicant, it is enough that it be shown that he acted in the exercise of an office of acting judge of the Supreme Court of the [NAME] which office was invalid as contrary to s 72 of the Australian Constitution. As the applicant's removal into New South Wales and [NAME] detention in that State depend for their validity on such orders and sentence, it necessarily follows that they are unlawful. Unless he is detained under some other law, pursuant to the order of a court validly made, the applicant must, in my opinion, be released.

159. At the hearing it was agreed that the name of the first respondent should be changed to substitute the name of the [NAME] of the custodial institution in which the applicant was held at the time of publication of the Court's decision. The record should be amended to delete the name of the first respondent as now appearing and to substitute the name or description of the applicant's [NAME] [NAME]. The rule nisi for the writ of habeas corpus should be made absolute with costs [239] . Unless otherwise lawfully detained, the applicant must be discharged immediately from custody without the issue of a writ of habeas corpus [240] .

1. cf Ex parte [NAME] and [NAME]; In re [NAME] (1925) 37 CLR 36 at 72. 2. cf Ex parte [NAME] and [NAME]; In re [NAME] (1925) 37 CLR 36 at 140.