Section
71. Judicial power and Courts
72. Judges' appointment, tenure and remuneration
73. Appellate jurisdiction of High Court
74. [Appeal to Queen in Council]
75. Original jurisdiction of High Court
76. Additional original jurisdiction
77. Power to define jurisdiction
78. Proceedings against Commonwealth or State
79. Number of judges
80. Trial by jury
Judicial power and Courts
71. The judicial power of the Commonwealth [is] vested in a
Federal Supreme Court, to be called the High Court of Australia, and in
such other federal courts as the Parliament creates, and in such other
courts as it invests with federal jurisdiction. The High Court consist[s]
of a Chief Justice, and so many other Justices, not less than two, as the
Parliament prescribes.
[Edited; see Comment]
Judges' appointment, tenure and
remuneration
72. The Justices of the High Court and of the other courts created
by the Parliament--
(i.) Shall be appointed by the Governor-General in Council:
(ii.) Shall not be removed except by the Governor-General in Council, on
an address from both Houses of the Parliament in the same session, praying
for such removal on the ground of proved misbehaviour or incapacity:
(iii.) Shall receive such remuneration as the Parliament may fix; but the
remuneration shall not be diminished during their continuance in office.
The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.
The appointment of a Justice of a court created by the Parliament 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 Parliament is seventy years.
The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment.
A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor- General. [Final two paragraphs deleted; see Comment]
Appellate jurisdiction of High Court
73. The High Court [has] jurisdiction, with such exceptions and
subject to such regulations as the Parliament prescribes, to hear and
determine appeals from all judgements, decrees, orders, and sentences--
(i.) Of any Justice or Justices exercising the original jurisdiction of
the High Court:
(ii.) Of any other federal court, or court exercising federal
jurisdiction; or of the Supreme Court of any State, or of any other court
of any State from which [in 1901] an appeal [lay] to the Queen in Council:
and the judgement of the High Court in all such cases shall be final and
conclusive.
But no exception or regulation prescribed by the Parliament shall
prevent the High Court from hearing and determining any appeal from the
Supreme Court of a State in any matter in which [in 1901] an appeal [lay]
from such Supreme Court to the Queen in Council.
[Edited; see Comment]
[Section 74 deleted; see Comment]
Original jurisdiction of High Court
75. In all 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 States, or between residents of different States, 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 High Court [has] original jurisdiction.
[Edited; see Comment]
Additional original jurisdiction
76. The Parliament may make laws conferring original jurisdiction
on the High Court in any matter--
(i.) Arising under this Constitution, or involving its interpretation:
(ii.) Arising under any laws made by the Parliament:
(iii.) Of Admiralty and maritime jurisdiction:
(iv.) Relating to the same subject-matter claimed under the laws of
different States.
[Unaltered]
Power to define jurisdiction
77. With respect to any of the matters mentioned in the last two
sections the Parliament may make laws--
(i.) Defining the jurisdiction of any federal court other than the High
Court:
(ii.) Defining the extent to which the jurisdiction of any federal court
shall be exclusive of that which belongs to or is invested in the courts of
the States:
(iii.) Investing any court of a State with federal jurisdiction.
[Unaltered]
Proceedings against Commonwealth or State
78. The Parliament may make laws conferring rights to proceed
against the Commonwealth or a State in respect of matters within the limits
of the judicial power.
[Unaltered]
Number of judges
79. The federal jurisdiction of any court may be exercised by such
number of judges as the Parliament prescribes.
[Unaltered]
Trial by jury
80. The trial on indictment of any offence against any law of the
Commonwealth shall be by jury, and every such trial shall be held in the
State where the offence was committed, and if the offence was not committed
within any State the trial shall be held at such place or places as the
Parliament prescribes.
[Unaltered]
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The only changes are shown by the square brackets - "is" replaces "shall be" and "consists" replaces "shall consist".
The Constitution Alteration in 1977 added two more transitional provisions - as if there were not enough already in the Constitution:
Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions.A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation.
In its original form the section contained only the current first paragraph, which provides for the appointment of judges but not their retirement, and the High Court had interpreted that (not without dissent) as meaning that the appointments were for life; see Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 (which is too old to be on AustLII). The first of the paragraphs shown above ensures that the imposition of a retiring age did not cut short the terms of those already sitting on federal courts. As of mid-1996, there are still one Federal Court judge and 12 Family Court judges whose appointment predates the amendment, and who are therefore entitled to sit for life. These transitional provisions are therefore part of the contemporary Constitution - but they are of special interest for 13 people only and are not part of the permanently-acting Constitution - so I have not shown them in the main text.
In the two parts of the text where my edited version says "[in 1901] an appeal [lay]..." the full text says "at the establishment of the Commonwealth an appeal lies...".
There is also a third paragraph, which provides:
Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.
It is unnecessary to combine this with para 51(xxxvi) (as shown in the example), to produce a power to provide for "the conditions of and restrictions on appeals... to the High Court", because that is already provided in the first paragraph. Though that paragraph does use different words ("exceptions and regulations"), it would cover all "conditions and "restrictions" that might be prescribed.
Section 74 provides:
Appeal to Queen in Council.
74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure.
This section refers to the appeals which could formerly be taken, in formal language, to the "Queen in Council" - in reality to the Judicial Committee of the Privy Council.
In 1975 the Parliament made a law (the Privy Council (Appeals from the High Court) Act) which "limited" the matters in which appeals could be taken from the High Court to the Privy Council, to those which had commenced in a court before the commencement date of the Act. That is, it terminated the right of appeal. This interpretation of "limiting" was approved by the High Court in Attorney-General of the Commonwealth v T & G Mutual Life Society Ltd (1978).
Since the third paragraph refers to appeals by special leave, the power to limit these appeals does not technically extend to the appeals mentioned in the first two paragraphs, where no further leave is required once the High Court has granted a certificate. However, the High Court has made it clear that it will never again grant a certificate - see Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461. Therefore the whole section is, in practice, inoperative, and the words in section 73: "the judgment of the High Court in all such cases shall be final and conclusive" can be taken literally.
Litigants' right to take appeals direct from the State Supreme Courts straight to the Privy Council existed independently of the Constitution; this right of appeal was eventually abolished by the Australia Act 1986, enacted by a complex process involving the co-operation of the State, Commonwealth, and United Kingdom Parliaments.
[Return to space left by Section 74]
The only change is that the word "has" in the square brackets replaces "shall have" in the original text.
It is exceedingly peculiar that matters "arising under this Constitution, or involving its interpretation" are not included in this section, but are only in section 76 among the matters as to which Parliament may confer additional original jurisdiction, but Parliament did confer that original jurisdiction in the Judiciary Act 1903, section 30, and jurisdiction in constitutional matters has always been the most important area in the High Court's original jurisdiction.