The Territories and Kirk v IndustrialRelations Commission (NSW)Cameron Ford*

Because of express reference to the State SupremeCourts in Ch III of the Constitution, the High Court held inKirk v Industrial Relations Commission (NSW) that Parlia-ment may not change the defining characteristics thosecourts had at federation by removing their supervisoryjurisdiction. This article maintains that, on the currentjudicial separation of Ch III and s 122, that particularreasoning does not apply to the Territory Supreme Courtsbut that a modified version of the reasoning preventsParliament from altering the supervisory jurisdiction Terri-tory Supreme Courts enjoyed at the time they wereinvested with the judicial power of the Commonwealth.

INTRODUCTION

In Kirk v Industrial Relations Commission (NSW),1 the High Court reiterated theprinciple that Parliament may not alter the defining characteristics of a StateSupreme Court so that it does not meet the description of a Supreme Court as itexisted at federation. In this case, it meant that Parliament could not remove aState Supreme Court’s supervisory jurisdiction for jurisdictional error since thosecourts possessed that power at federation. To remove it would be to alter adefining characteristic of those courts.

The ruling was based on the words of Ch III of the Constitution whichexpressly mention the State Supreme Courts. Their Honours said:2

(d) Chapter III of the Constitution requires that there be a body fitting thedescription “the Supreme Court of a State”.

(e) It is beyond the legislative power of a State so to alter the constitution orcharacter of its Supreme Court that it ceases to meet the constitutionaldescription.

(f) A defining characteristic of State Supreme Courts is the power to confine inferiorcourts and tribunals within the limits of their authority to decide by grantingrelief in the nature of prohibition and mandamus, and, as explained further inthese reasons, also certiorari, directed to inferior courts and tribunals on groundsof jurisdictional error.

(g) If a court has limited powers and authority to decide issues of an identified kind,a privative provision does not negate those limits on that court’s authority.

(h) A privative provision in State legislation, which purports to strip the SupremeCourt of the State of its authority to confine inferior courts within the limits oftheir jurisdiction by granting relief on the ground of jurisdictional error, is

* Barrister; Executive Editor, NTLJ; Editor-in-Chief, NTLR (cameron@cameronford.co).

1 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531.

2 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 at [55] (French CJ, Gummow,Hayne, Crennan, Kiefel and Bell JJ), Heydon J agreeing at [113].

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beyond the powers of the State legislature. It is beyond power because itpurports to remove a defining characteristic of the Supreme Court of the State.

It was the express mention of State Supreme Courts in Ch III that led to theruling. Does this ruling bind the Territories of Australia?

NO DEFINING CHARACTERISTICS OF TERRITORY COURTS AT

FEDERATION

The first response is that Territory Supreme Courts are neither mentioned in theConstitution nor were they in existence at the time of federation. When theConstitution was drafted and enacted, Territory Supreme Courts had no definingcharacteristics other than their non-existence. State Supreme Courts had been inexistence for almost 80 years, with Tasmania being the first in 1824,3 followed byNew South Wales 10 days later,4 then South Australia in 1837,5 Victoria in 1852,6

and Queensland7 and Western Australia8 in 1861. They bore the characteristics ofthe courts at Westminster, including their supervisory jurisdiction.9

Territory Supreme Courts came later, with the Northern Territory in 1911,10

the Australian Capital Territory in 1933,11 followed by Norfolk Island in 1957.12

Papua became a Territory in 1905,13 however, it is irrelevant for present purposessince it gained independence in 197514 and is no longer governed by theConstitution.

In Forge v Australian Securities and Investments Commission, Gummow,Hayne and Crennan JJ said:15

Because Ch III requires that there be a body fitting the description “the SupremeCourt of a State”, it is beyond the legislative power of a State so to alter theconstitution or character of its Supreme Court that it ceases to meet the constitutionaldescription.

There is no constitutional description of the Territory Supreme Courts. Theyare not referred to in the Constitution, did not existing at federation, and at thattime might never have come into existence. The future characteristics of Territory

3 Charter of Justice 1823, taking effect on 7 May 1824.

4 Charter of Justice 1823, taking effect on 17 May 1824.

5 Ordinance 7 Will IV c 5 (SA).

6 Act 15 Vic No 10 (Vic).

7 Supreme Court Constitution Amendment Act 1861 (Qld).

8 Supreme Court Ordinance 1861 (WA).

9 Grassby v The Queen (1989) 168 CLR 1 at 16 (Dawson J, Mason CJ, Brennan, Deane and TooheyJJ agreeing); Craig v South Australia (1995) 184 CLR 163.

10 Supreme Court Ordinance 1911 (Cth), continued after self-government under the Supreme Court

Act 1979 (NT).

11 Seat of Government Supreme Court Act 1933 (Cth), then the Supreme Court Act 1933 (ACT).

12 Norfolk Island Act 1957 (Cth), continued after self-government under the Norfolk Island Act 1979

(Cth).

13 Papua Act 1905 (Cth).

14 Papua New Guinea Independence Act 1975 (Cth).

15 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [63].

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Supreme Courts were not enshrined in the Constitution as were the existing

defining characteristics of the State Supreme Courts.

TERRITORY COURTS NOT UNDER CH III

Neither the Territories nor their courts are mentioned in Ch III and Territory

courts are not Ch III courts – they are not established under Ch III,16 they are not

“the other federal courts created by the Parliament” referred to in s 7217 and, until

recently, it was held that they do not exercise federal jurisdiction as mentioned in

s 71.18

Chapter III and s 122

Territory courts are created not under Ch III, but under s 122 in Ch IV of the

Constitution – the Territories power. Section 122 makes no mention of the

creation of courts, but its broad plenary power permits either the federal

Parliament to establish Territory courts,19 or to empower Territory legislatures to

do so.20

The relationship between s 122 and Ch III “has vexed judges and

commentators since the earliest days of Federation”21 and is “a notoriously

technical and difficult branch of Australian constitutional law”.22 While that

relationship is still being refined,23 the cases have settled that Territory courts are

not Ch III courts. They need not comply with the requirements of s 72 as to the

appointment, tenure and remuneration of judges,24 there is no appeal from them

16 Kruger v Commonwealth (1997) 190 CLR 1 (Brennan CJ).

17 Spratt v Hermes (1965) 114 CLR 226 (Barwick CJ); Capital TV & Appliances Pty Ltd v Falconer

(1971) 125 CLR 591.

18 Capital TV & Appliances Pty Ltd v Falconer (1971) 125 CLR 591; Kruger v Commonwealth (1997)190 CLR 1, although they have now been recognised as capable of exercising the judicial power ofthe Commonwealth: see North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218CLR 146 at [28]-[29] and the persuasive argument of Tom Pauling AO QC and Sonia Brownhill in“The Territories and Constitutional Change” (2007) 28 Adelaide Law Review 55, that TerritorySupreme Courts do in fact exercise federal jurisdiction under ss 67C and 68(2) of the Judiciary Act

1903 (Cth).

19 R v Bernasconi (1915) 19 CLR 629; Spratt v Hermes (1965) 114 CLR 226 and every such casesince.

20 Spratt v Hermes (1965) 114 CLR 226.

21 Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at [6](Gleeson CJ, McHugh and Callinan JJ).

22 Spratt v Hermes (1965) 114 CLR 226 at 274 (Windeyer J), cited by Gleeson CJ, McHugh andCallinan JJ in Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322at [6].

23 See, eg Pauling T, “The Constitutional Differences Between Territories and States” (2000) 20Australian Bar Review 187.

24 Spratt v Hermes (1965) 114 CLR 226 at [19], [20], [42] (Barwick CJ); Re Governor, Goulburn

Correctional Centre; Ex parte Eastman (1999) 200 CLR 322.

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to the High Court under s 73,25 and the doctrine of separation of powers implied

in Ch III does not apply to the Territories.26

Of later years, the initial, almost complete, separation of s 122 from Ch III

has been broken down, with some seeing a full integration desirable, if not

inevitable.27 Tom Pauling AO QC28 and Sonia Brownhill29 argue persuasively30

that full integration of the self-governing Territories into Ch III is both possible

and correct since it has been recognised that they exercise the judicial power of

the Commonwealth and have had federal jurisdiction conferred on them by the

Judiciary Act 1903 (Cth).31

In the early days of the Commonwealth, the Privy Council saw Ch III

exhausting the judicial power of the Commonwealth and “[t]he legislative power

in respect of the Territories [a]s a disparate and non-federal matter”.32 Since

Lamshed v Lake33 there has been a steady, but by no means universal, application

of some parts of Ch III to the Territories. A result of that application was the High

Court overruling one of its earlier decisions that the requirement of just terms for

property acquisitions in s 51(xxxi) of the Constitution did not apply to the

Territories.34

Another recent extension of Ch III to Territory Supreme Courts is the

application to them of the doctrine of preservation of institutional integrity of the

courts implied in Ch III following acceptance that Territory courts may exercise

the judicial power of the Commonwealth.35

25 But s 122 empowers the federal Parliament to pass laws permitting appeals from Territory courts tothe High Court: Spratt v Hermes (1965) 114 CLR 226 (Barwick CJ); Attorney-General (Cth) v The

Queen (1957) 95 CLR 529 at 545; Porter v The King; Ex parte Yee (1926) 37 CLR 432; Chow Hung

Ching v The King (1948) 77 CLR 449.

26 Kruger v The Commonwealth (1997) 190 CLR 1; Porter v The King; Ex parte Yee (1926) 37 CLR432; Spratt v Hermes (1965) 114 CLR 226; Capital TV & Appliances Pty Ltd v Falconer (1971) 125CLR 591; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

27 Mcdonald S, “Territory Courts and Federal Jurisdiction” (2005) 33 Federal Law Review 57.

28 Administrator of the Northern Territory and formerly its Solicitor General.

29 Formerly Crown Counsel for the Northern Territory, now of its Bar.

30 See Pauling and Brownhill, n 17.

31 Judiciary Act 1903 (Cth) ss 67C and 68(2).

32 Attorney-General (Cth) v The Queen (1957) 95 CLR 529 at 545.

33 Lamshed v Lake (1958) 99 CLR 132.

34 Teori Tau v Commonwealth (1969) 119 CLR 564, overruled by Wurridjal v Commonwealth (2009)237 CLR 309.

35 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [28]-[29];Wainohu v New South Wales (2011) 85 ALJR 746 at [105] (Gummow, Hayne, Crennan and Bell JJ).

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NO CONSTITUTIONAL REQUIREMENT OF TERRITORY SUPREME

COURTS

It cannot be said that Ch III, or any other Chapter, requires that there be a bodyfitting the description of the “Supreme Court of a Territory”, as Kelly J said in afootnote in K & J Burns Electrical v GRD Group.36 It could well have been thecase that no court would ever exist of that description. For all the framers of theConstitution knew, there might never be a Supreme Court of a Territory, even ifTerritories were created. The Territories may have been too small to have theirown court and may have relied on the courts of a neighbouring State or Territory,similar to the Jervis Bay Territory relying on the courts of the Australian CapitalTerritory,37 and the Northern Territory relying on the Full Federal Court forappeals38 until 1986.39

KIRK REASONING INAPPLICABLE TO TERRITORY COURTS

There is thus no basis under the reasoning of Kirk to limit the power of Territorylegislatures to curtail the supervisory jurisdiction of the Territory SupremeCourts.40 There is no requirement under Ch III that there be a body fitting thedescription of a Supreme Court of a Territory, and neither do the express orimplied requirements of Ch III apply fully to Territory Supreme Courts.

Even had the decision in Kirk been grounded on a general implication fromCh III, such as the separation of powers doctrine, rather than specific words, therewould still need to be more for that implication to affect the Territories.41 If adoctrine as fundamental as the separation of powers, founded on a generalimplication in Ch III, does not apply to the Territories, how much more so aparticular ruling based on specific words which do not encompass the Territories?

ARE THERE OTHER REASONS TO LIMIT PARLIAMENT’S POWER?

There are at least four other possible bases to limit parliamentary curtailment ofTerritory courts’ supervisory jurisdiction, but only the first has any prospects ofsuccess. They are: (1) Parliament may not alter the defining characteristics of acourt that has been invested with the judicial power of the Commonwealth; (2)Parliament may not undermine the institutional integrity of courts; (3) Parliament

36 K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd (2011) 246 FLR 285 at [136].

37 Jervis Bay Territory Acceptance Act 1915 (Cth).

38 Federal Court of Australia Act 1976 (Cth) s 24(1) to (4) (as it then stood); Northern Territory

Supreme Court Amendment Act 1976 (Cth).

39 Statute Law (Miscellaneous Provisions) Act (No 1) 1985 (Cth); Supreme Court Amendment Act

1985 (NT).

40 Three decisions of the Northern Territory Supreme Court have mentioned the Kirk decisioneffectively in passing as if it applied in the Territory, but it does not appear to have been the subject ofargument, was not considered in detail and was not necessary for the decisions: Day v Yuendumu

Social Club Inc (2010) 26 NTLR 136; Yuendumu Social Club Inc v Day (2010) 27 NTLR 79; GRD

Group (NT) Pty Ltd v K & J Burns Electrical Pty Ltd (2010) 27 NTLR 153.

41 Such as the principle of preserving institutional integrity of the courts implicit in Ch III, applied toTerritory courts by virtue of their possible investment with the judicial power of the Commonwealth:North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [28]-[29];Wainohu v New South Wales (2011) 85 ALJR 746 at [105] (Gummow, Hayne, Crennan and Bell JJ).

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may not alter the defining characteristics of the High Court; and (4) there is onecommon law of Australia with the High Court at the apex.

Altering the defining characteristics of courts invested withCommonwealth judicial power

Kirk could apply to Territory Supreme Courts if they were required to havesupervisory jurisdiction to be suitable potential or actual repositories ofCommonwealth judicial power. It was on this basis that the requirement of anindependent and impartial judiciary was held to apply to the Territories42 as partof the doctrine of institutional integrity.

In Forge, Gummow, Hayne and Crennan JJ explained that the requirement ofpreserving institutional integrity was part of the broader prohibition againstaltering the defining characteristics of courts. Their Honours said that:43

if the institutional integrity of a court is distorted, it is because the body no longerexhibits in some relevant respect those defining characteristics which mark a courtapart from other decision-making bodies.

Suitability as potential repository of Commonwealth judicialpower

Is it necessary for Territory Supreme Courts to have an untrammelled supervisoryjurisdiction to be potential (as opposed to actual) repositories of Commonwealthjudicial power? It is suggested the answer is no.

It was a defining characteristic of the State Supreme Courts at federationbecause they had been in existence for some time and had inherited that rightfrom the courts at Westminster. But Family, District, County, Local andMagistrates Courts do not have that inherent characteristic44 and yet can becreated as such and can exercise the judicial power of the Commonwealth.45

Such a supervisory jurisdiction is therefore not a sina qua non of exercising thejudicial power of the Commonwealth. This is to be distinguished from otheraspects of the “defining characteristics” principle such as the institutionalintegrity of a court in being unbiased, impartial and not subject to externaldirection. A court could not be created or invested with the judicial power of theCommonwealth if it lacked those qualities, and the laws attempting to do sowould be unconstitutional.46

The conclusion must be that, without anything more, it is not a definingcharacteristic of a court so as to make it a suitable potential repository ofCommonwealth judicial power that it possess the inherent supervisory jurisdic-tion of superior courts of record. Kirk was based on explicit reference in theConstitution to existing courts with clear and long-established characteristics.

42 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [28]-[29];Wainohu v New South Wales (2011) 85 ALJR 746 at [105] (Gummow, Hayne, Crennan and Bell JJ).

43 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [63].

44 Unless expressly conferred by Parliament, which is not the supervisory jurisdiction in question here.

45 For example, the Family Court of Australia and the Federal Magistrates Court.

46 For example, Wainohu v New South Wales (2011) 85 ALJR 746.

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Suitability as actual repository of Commonwealth judicialpower

It could be argued that Parliament cannot alter the defining characteristics of acourt which was not in existence at the time of federation nor mentioned in theConstitution, but after its coming into existence was invested with the judicialpower of the Commonwealth. The argument would be that, once established, thecourt possessed its defining characteristics and that Parliament deliberatelyconferred the judicial power of the Commonwealth on the court possessing thosecharacteristics. To alter those characteristics would be to alter an existing definingcharacteristic of an existing court which is actually (not potentially) exercisingthe judicial power of the Commonwealth.

The constitutional proposition would be that it is impermissible forParliament, particularly a State Parliament, to alter the defining characteristics ofa court after it has been invested with the judicial power of the Commonwealth.When the federal Parliament chooses a court in which to vest that judicial power,it does so bearing in mind at least two matters – the nature of the power and thenature of the court. Parliament would not be expected to vest a Commonwealthjudicial power in a court unsuited to its exercise. It would be expected to choosea court which would be accustomed to exercising that or similar powers and withthe appropriate rules, procedures and judiciary.

This is borne out by the nature of the powers the Commonwealth has vestedin the Northern Territory Supreme Court under s 67C of the Judiciary Act 1903,47

being matters where a prerogative writ is sought by the Commonwealth againstthe Territory or one of its officers, or is sought against the Commonwealth arisingin, or under a law in force in, the Territory.

Two important points must be made about this conferral of jurisdiction, onegoing to the nature of the power and the other to the nature of the court. The firstpoint is that this is the very supervisory jurisdiction which Kirk said could not beremoved from State Supreme Courts. The High Court considered this to be asufficiently significant power to be part of the constitutional definition of thosecourts. The Commonwealth should not be denied access to that power in aTerritory Supreme Court which it has specifically and deliberately invested withthat power. There could well be a situation where the Northern TerritoryParliament attempted to remove a right of review which would thus preclude theCommonwealth from obtaining prerogative relief. If that occurred, the Common-wealth would be denied access to power, even though it had chosen that court toinvest with the judicial power of the Commonwealth. The Territory Parliamentwould be derogating from the exercise of Commonwealth judicial power.

The second point is that it is obvious the Commonwealth chose the particularcourt and its existing powers deliberately, because s 67C presupposes theexistence of that supervisory jurisdiction. It could theoretically have chosen theLocal Court and conferred on it a supervisory jurisdiction it otherwise lacks, butit chose the Supreme Court, presumably because it has that very definingcharacteristic. In other words, Parliament chose the court in which to repose thejurisdiction of the Commonwealth because of one of its defining characteristics,

47 Conferred in 1979 under the Judiciary Amendment Act 1979 (Cth).

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namely the power to grant prerogative writs. To alter that jurisdiction would be toalter impermissibly a defining characteristic of a court exercising the judicialpower of the Commonwealth for which it was chosen and as anticipated by theConstitution.

Further support for this argument comes from the other jurisdiction grantedby the Commonwealth to the Supreme Court of the Northern Territory in s 68(2)of the Judiciary Act 1903. This jurisdiction is to hear trials of criminal mattersunder certain Commonwealth laws. Those trials include charges of indictableoffences, required by s 80 of the Constitution to be tried by a jury. Parliamentwould not have chosen a court not accustomed to trial by jury in which to investthis power. One would expect that a defining characteristic of the Supreme Courtof the Northern Territory which commended itself to the legislature as a suitablerepository of the judicial power of the Commonwealth, was that it alreadyconducted trial by jury.48

On this reasoning, Parliament could not detract from the supervisoryjurisdiction of a Territory Supreme Court after it is endowed with the judicialpower of the Commonwealth. Until the time of investiture, it could not be saidthat the supervisory jurisdiction was a constitutional definition of those courts(there being neither a definition of, nor such a court, in 1901) and, as has beendemonstrated, supervisory jurisdiction is not a prerequisite of a court beinggranted the judicial power of the Commonwealth.

But the Commonwealth must be taken to have chosen the courts in which itinvests its judicial power, at least partly for their defining characteristics at thetime of that investiture. It is for this reason that Parliament chose the SupremeCourt of the Northern Territory, rather than the Local Court, to grant prerogativewrits for and against the Commonwealth and to conduct jury trials of indictableCommonwealth offences.

It may seem strange that something which is not a defining characteristic ofa court may become so, but the distinction lies in the purpose for which it isdefining. There are three situations:

1. Supervisory jurisdiction is not a defining characteristic of Territory SupremeCourts at the time of and for the purposes of the Constitution, because theyare not referred to therein nor did they then exist. Unlike the State SupremeCourts, no constitutional snapshot was taken of the Territory Supreme Courtsas at 1901 with which for all time they must substantially resemble.

2. Supervisory jurisdiction is not a defining characteristic for the purposes ofcourts being potential recipients of the judicial power of the Commonwealth.Courts have been created by Parliament exercising only Commonwealthjudicial power, yet they do not possess that supervisory jurisdiction.

3. Supervisory jurisdiction is a defining characteristic of existing courts for thepurpose of their having been actually conferred with the judicial power ofthe Commonwealth. Parliament endows particular courts for particularpurposes and should be taken to choose those with the appropriate definingcharacteristics as suitable recipients. The snapshot of Territory Supreme

48 Although not required to when exercising Territory jurisdiction since s 80 resides in Ch III of theConstitution and Territory courts have their origin in Ch IV: R v Bernasconi (1915) 19 CLR 629.

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Courts is taken, not in 1901 as of State Supreme Courts, but when they are

first invested with the judicial power of the Commonwealth. They should

substantially resemble that picture thereafter, neither wearied by age,

condemned by years nor weakened by Parliament.

Kirk, modified in this way, therefore applies to the Territories, or at least the

self-governing Territories.49 But Kirk simpliciter does not apply to those

Territories for the reasons discussed above.

In practical application there will be little if any difference between the two

approaches. The defining characteristics of Territory Supreme Courts at the time

of their investiture with the judicial power of the Commonwealth would be

expected to be almost identical to those of the State Supreme Courts in 1901.

Undermining the institutional integrity of the courts

In Wainohu v New South Wales, Gummow, Hayne, Crennan and Bell JJ spoke of

the constitutional principle underpinning the two decisions of Wilson v Minister

for Aboriginal and Torres Strait Islander Affairs and Kable v Director of Public

Prosecutions (NSW), whose touchstone is protection against legislative or

executive intrusion upon the institutional integrity of the courts, whether federal

or State. Their Honours said:50

The principle applies throughout the Australian integrated court system because it has

been appreciated since federation that the Constitution does not permit of different

grades or qualities of justice. It follows that repugnancy to or incompatibility with

that institutional integrity may be manifested by State (and Territory), as well as

federal, legislation which provides for the conferral of functions upon a judicial

officer persona designate.

Unlike the more limited ruling in Kirk, this general principle applies to the

Territories by virtue of the Territory courts’ ability to be invested with judicial

power of the Commonwealth.51 While welcoming its application to the

Territories, it could not be said that depriving a Supreme Court of the right of

review of some decisions on some grounds would undermine the institutional

integrity of that court. Parliaments have been depriving courts of discretion,52

jurisdiction53 and the power to review for many years, but those deprivations

have not eroded the integrity of the courts. As Kirby J said in Baker v The

49 For the reasons advanced by Pauling and Brownhill, n 17, discussed above.

50 Wainohu v New South Wales (2011) 85 ALJR 746 at [105], citing Wilson v Minister for Aboriginal

and Torres Strait Islander Affairs (1996) 189 CLR 1; Kable v Director of Public Prosecutions (NSW)

(1996) 189 CLR 51 at 103; Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [101]-[102];South Australia v Totani (2010) 242 CLR 1 at [48]-[51]; North Australian Aboriginal Legal Aid

Service Inc v Bradley (2004) 218 CLR 146 at [28]-[29].

51 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [28]-[29];Baker v The Queen (2004) 223 CLR 513 at [51] (McHugh, Gummow, Hayne and Heydon JJ).

52 Such as mandatory sentencing.

53 Ridgeway v The Queen (1995) 184 CLR 19 (Brennan CJ). Tribunals and other administrative bodieshave also subsumed considerable portions of courts traditional jurisdiction.

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Queen,54 although the Kable principle had been invoked on many occasions inintermediate appellate courts, by 2004 the argument had only succeeded once.55

The curtailment of a Territory court’s supervisory jurisdiction could not beresisted on this ground.

Altering the defining characteristics of the High Court

At federation and the moment of its creation,56 the High Court had certainoriginal and appellate jurisdiction. Anything altering that jurisdiction could alterits defining characteristics. Part of the original jurisdiction of the High Courtunder s 75(v) is in all matters in which a writ of mandamus or prohibition or aninjunction is sought against an officer of the Commonwealth.

Officers of a Commonwealth-administered (as opposed to a self-governed)Territory would be officers of the Commonwealth. (Officers of a self-governedTerritory, with its becoming a separate body politic,57 would be consideredofficers of that Territory.) Therefore, if there was a Territory of the Common-wealth in existence at the time of federation which was not self-governing, adefining characteristic of the High Court would be original jurisdiction to grantprerogative writs against its officers. Arguably, legislation of that Territorycurtailing that jurisdiction would impermissibly alter that characteristic of theHigh Court, but it would only do so in respect of that Territory.

Appellate jurisdiction does not avail as a defining characteristic because theHigh Court has held that there is no right of appeal from a Territory court to theHigh Court under Ch III and that those rights had to be created under s 122.58

That was not done at the time of the court’s creation. An appellate jurisdictionfrom Territory courts was therefore not a defining characteristic of the High Courtat federation – instead, the Constitution recognised through s 122 that appellatejurisdiction may be (but not inevitably) added to the High Court. In other words,its characteristics in that sense could change, or its characteristic was that it wassubject to being granted additional appellate jurisdiction.

This possible ground does not provide resistance to Parliament’s restrictionon a Territory court’s supervisory jurisdiction.

Undermining the single Australian common law

In Kirk, the High Court reiterated that there was but one common law ofAustralia, with it at the apex unifying the law by the means of final appeals.

54 Baker v The Queen (2004) 223 CLR 513 at [54].

55 Re Criminal Proceeds Confiscation Act 2002 (Qld) [2004] 1 Qd R 40.

56 Bearing in mind the High Court was created by the Constitution and not by later statute of theParliament under the Constitution: Re Governor, Goulburn Correctional Centre; Ex parte Eastman

(1999) 200 CLR 322 at [55] (Gummow and Hayne JJ).

57 For example, as in s 5 of the Northern Territory (Self-Government) Act 1978 (Cth). See Capital

Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 265-266 (Mason CJ,Dawson and McHugh JJ), 282 (Brennan, Deane and Toohey JJ), 284 (Gaudron J); Svikart v Stewart

(1994) 181 CLR 548 at 562.

58 Spratt v Hermes (1965) 114 CLR 226 (Barwick CJ); Attorney-General (Cth) v The Queen (1957)95 CLR 529 at 545; Porter v The King; Ex parte Yee (1926) 37 CLR 432; Chow Hung Ching v The

King (1948) 77 CLR 449.

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Could it be said that depriving a Supreme Court of a Territory of some of itssupervisory jurisdiction undermines that single common law? The answer mustbe no, and in any case, Parliament may change the common law provided it doesso constitutionally.

CONCLUSION

Parliament may not deprive the Supreme Court of a self-governing Territory ofthe supervisory jurisdiction it enjoyed at the time it was invested with the judicialpower of the Commonwealth. Such supervisory jurisdiction has no relevantconstitutional basis until that judicial power is conferred, when it becomes one ofthe defining characteristics for which Parliament chose to confer its judicialpower.

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