The courts and Parliament
The Constitution deliberately confers great independence on the federal courts of Australia. At the same time the Parliament plays a considerable role in the creation of courts, investing other courts with federal jurisdiction, prescribing the number of justices to be appointed to a particular court, and so on. In the scheme of the Constitution, the courts and the Parliament provide checks and balances on each other.
With the exception of the High Court which is established by the Constitution, federal courts depend on Parliament for their creation. The Parliament may provide for the appointment of justices to the High Court additional to the minimum of a Chief Justice and two other justices. As prescribed by Parliament, the High Court now consists of a Chief Justice and six other justices.
The appointment of justices of the High Court and of other courts created by the Parliament is made by the Governor-General in Council. Justices of the High Court may remain in office until they attain the age of 70 years. The maximum age for justices of any court created by the Parliament is also 70 years, although the Parliament may legislate to reduce this maximum. Justices may be removed from office by the Governor-General in Council following addresses by both Houses of the Parliament (see page 19).
The appellate jurisdiction (i.e. the hearing and determining of appeals) of the High Court is laid down by the Constitution but is subject to such exceptions and regulations as the Parliament prescribes, providing that:
… 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 at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.
The Constitution empowers the Parliament to make laws limiting the matters in which leave of appeal to Her Majesty in Council (the Privy Council) may be asked. Laws have been enacted to limit appeals to the Privy Council from the High Court and to exclude appeals from other federal courts and the Supreme Courts of Territories. Special leave of appeal to the Privy Council from a decision of the High Court may not be asked in any matter except where the decision of the High Court was given in a proceeding that was commenced in a court before the date of commencement of the Privy Council (Appeals from the High Court) Act on 8 July 1975, other than an inter se matter (as provided by section 74). Such an appeal has been described as ‘effectively impossible’.Section 11 of the Australia Act 1986 provided for the termination of appeals to the Privy Council from all ‘Australian courts’ defined as any court other than the High Court.
The Constitution confers original jurisdiction on the High Court in respect of certain matters with which the Parliament may not interfere other than by definition of jurisdiction. The Parliament may confer additional original jurisdiction on the High Court and has done so in respect of ‘all matters arising under the Constitution or involving its interpretation’ and ‘trials of indictable offences against the laws of the Commonwealth’.
Sections 77–80 of the Constitution provide Parliament with power to:
define the jurisdiction of the federal courts (other than the High Court);
define the extent to which the jurisdiction of any federal court (including the High Court) shall be exclusive of the jurisdiction of State courts;
invest any State court with federal jurisdiction;
make laws conferring rights to proceed against the Commonwealth or a State;
prescribe the number of judges to exercise the federal jurisdiction of any court; and
prescribe the place of any trial against any law of the Commonwealth where the offence was not committed within a State.
Removal of justices from office
Section 72 of the Constitution provides that justices may only be removed from office 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. A joint address under this section may originate in either House although Quick and Garran suggests that it would be desirable for the House of Representatives to take the initiative. There is no provision for appeal against removal. There has been no case in the Commonwealth Parliament of an attempt to remove a justice of the High Court or other federal court. However, the conduct of a judge has been investigated by Senate committees and a Parliamentary Commission of Inquiry. It may be said that, in such matters, as in cases of an alleged breach of parliamentary privilege or contempt, the Parliament may engage in a type of judicial procedure.
Parliamentary Commission of Inquiry
In May 1986 the Parliament established, by legislation, a Parliamentary Commission of Inquiry to inquire and advise the Parliament whether any conduct of the Honourable Lionel Keith Murphy (a High Court judge) had been such as to amount, in its opinion, to proved misbehaviour within the meaning of section 72 of the Constitution.
The Act provided for the commission to consist of three members, including a Presiding Member, each to be a serving or former judge, to be appointed by resolutions of the House and the Senate. Staff were appointed under the authority of the Presiding Officers.
In August 1986, following a special report to the Presiding Officers relating to the terminal illness of the judge, the inquiry was discontinued and the Act establishing the Commission repealed. The repealing Act also contained detailed provisions for the custody of documents in the possession of the commission immediately before the commencement of the repeal Act.
The meaning of ‘misbehaviour’ and ‘incapacity’
Prior to the matters arising in 1984–86, little had been written about the meaning of section 72. Quick and Garran had stated:
Misbehaviour includes, firstly, the improper exercise of judicial functions; secondly, wilful neglect of duty, or non-attendance; and thirdly, a conviction for any infamous offence, by which, although it be not connected with the duties of his office, the offender is rendered unfit to exercise any office or public franchise. (Todd, Parl. Gov. in Eng., ii. 857, and authorities cited.)
‘Incapacity’ extends to incapacity from mental or bodily infirmity, which has always been held to justify the termination of an office held during good behaviour … The addition of the word does not therefore alter the nature of the tenure of good behaviour, but merely defines it more accurately.
No mode is prescribed for the proof of misbehaviour or incapacity, and the Parliament is therefore free to prescribe its own procedure. Seeing, however, that proof of definite legal breaches of the conditions of tenure is required, and that the enquiry is therefore in its nature more strictly judicial than in England, it is conceived that the procedure ought to partake as far as possible of the formal nature of a criminal trial; that the charges should be definitely formulated, the accused allowed full opportunities of defence, and the proof established by evidence taken at the Bar of each House.
In an opinion published with the report of the Senate Select Committee on the Conduct of a Judge, the Commonwealth Solicitor-General stated, inter alia:
Misbehaviour is limited in meaning in section 72 of the Constitution to matters pertaining to—
- judicial office, including non-attendance, neglect of or refusal to perform duties; and
- the commission of an offence against the general law of such a quality as to indicate that the incumbent is unfit to exercise the office.
Misbehaviour is defined as breach of condition to hold office during good behaviour. It is not limited to conviction in a court of law. A matter pertaining to office or a breach of the general law of the requisite seriousness in a matter not pertaining to office may be found by proof, in appropriate manner, to the Parliament in proceedings where the offender has been given proper notice and opportunity to defend himself.
Mr C.W. Pincus QC, in an opinion also published by the committee, stated on the other hand:
As a matter of law, I differ from the view which has previously been expressed as to the meaning of section 72. I think it is for Parliament to decide whether any conduct alleged against a judge constitutes misbehaviour sufficient to justify removal from office. There is no ‘technical’ relevant meaning of misbehaviour and in particular it is not necessary, in order for the jurisdiction under section 72 to be enlivened, that an offence be proved.
The Presiding Officers presented a special report from the Parliamentary Commission of Inquiry containing reasons for a ruling on the meaning of ‘misbehaviour’ for the purposes of section 72. Sir George Lush stated, inter alia,
… my opinion is that the word ‘misbehaviour’ in section 72 is used in its ordinary meaning, and not in the restricted sense of ‘misconduct in office’. It is not confined, either, to conduct of a criminal matter.
The view of the meaning of misbehaviour which I have expressed leads to the result that it is for Parliament to decide what is misbehaviour, a decision which will fall to be made in the light of contemporary values. The decision will involve a concept of what, again in the light of contemporary values, are the standards to be expected of the judges of the High Court and other courts created under the Constitution. The present state of Australian jurisprudence suggests that if a matter were raised in addresses against a judge which was not on any view capable of being misbehaviour calling for removal, the High Court would have power to intervene if asked to do so.
Sir Richard Blackburn stated:
All the foregoing discussion relates to the question whether ‘proved misbehaviour’ in section 72 of the Constitution must, as a matter of construction, be limited as contended for by counsel. In my opinion the reverse is correct. The material available for solving this problem of construction suggests that ‘proved misbehaviour’ means such misconduct, whether criminal or not, and whether or not displayed in the actual exercise of judicial functions, as, being morally wrong, demonstrates the unfitness for office of the judge in question. If it be a legitimate observation to make, I find it difficult to believe that the Constitution of the Commonwealth of Australia should be construed so as to limit the power of the Parliament to address for the removal of a judge, to grounds expressed in terms which in one eighteenth-century case were said to apply to corporations and their officers and corporators, and which have not in or since that case been applied to any judge.
Mr Wells stated:
… the word ‘misbehaviour’ must be held to extend to conduct of the judge in or beyond the execution of his judicial office, that represents so serious a departure from standards of proper behaviour by such a judge that it must be found to have destroyed public confidence that he will continue to do his duty under and pursuant to the Constitution.
… Section 72 requires misbehaviour to be ‘proved’. In my opinion, that word naturally means proved to the satisfaction of the Houses of Parliament whose duty it is to consider whatever material is produced to substantiate the central allegations in the motion before them. The Houses of Parliament may act upon proof of a crime, or other unlawful conduct, represented by a conviction, or other formal conclusion, recorded by a court of competent jurisdiction; but, in my opinion, they are not obliged to do so, nor are they confined to proof of that kind. Their duty, I apprehend, is to evaluate all material advanced; to give to it, as proof, the weight it may reasonably bear; and to act accordingly.
According to entrenched principle, there should, in my opinion, be read into section 72 the requirement that natural justice will be administered to a judge accused of misbehaviour …
Parliamentary Commission to investigate misbehaviour or incapacity
The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 provides that the Houses of the Parliament may each pass a resolution, in the same session, establishing a Commission to investigate a specified allegation of misbehaviour or incapacity of a specified Commonwealth judicial officer (that is, a High Court judge, a judge of the Federal Court of Australia, the Family Court of Australia or the Federal Circuit Court). The purpose of a Commission is to investigate the allegation, and report to the Houses of the Parliament on whether there is evidence that would let the Houses of the Parliament conclude that the alleged misbehaviour or incapacity is proved.
A Commission is established by the resolution of both Houses, and consists of three members, nominated by the Prime Minister following consultation with the Leader of the Opposition. A Commission ceases to exist, by joint determination of the Presiding Officers, when the Presiding Officers are satisfied that the Commission’s functions have been performed, or that the specified person has ceased to be a Commonwealth judicial officer. The Act sets down the rules for an investigation by a Commission, and requires it to report on its investigation to the Houses of the Parliament.
The courts as a check on the power of Parliament
In the constitutional context of the separation of powers, the courts, in their relationship to the Parliament, provide the means whereby the Parliament may be prevented from exceeding its constitutional powers. Wynes writes:
The Constitution and laws of the Commonwealth being, by covering Cl. V.  of the Constitution Act, ‘binding on the Courts, judges and people of every State and of every part of the Commonwealth’, it is the essential function and duty of the Courts to adjudicate upon the constitutional competence of any Federal or State Act whenever the question falls for decision before them in properly constituted litigation.
Original jurisdiction in any matter arising under the Constitution or involving its interpretation has been conferred on the High Court by an Act of Parliament, pursuant to section 76(i) of the Constitution. The High Court does not in law have any power to veto legislation and it does not give advisory opinions but in deciding between litigants in a case it may determine that a legislative enactment is unconstitutional and of no effect in the circumstances of the case. On the assumption that in subsequent cases the court will follow its previous decision (not always the case) a law deemed ultra vires (that is, beyond the powers of the Parliament) becomes a dead letter.
The power of the courts to interpret the Constitution and to determine the constitutionality and validity of legislation gives the judiciary the power to determine certain matters directly affecting the Parliament and its proceedings. The range of High Court jurisdiction in these matters can be seen from the following cases:
Petroleum and Minerals Authority case—The High Court ruled that the passage of the Petroleum and Minerals Authority Bill through Parliament had not satisfied the provisions of section 57 of the Constitution and was consequently not a bill upon which the joint sitting of 1974 could properly deliberate and vote, and thus that it was not a valid law of the Commonwealth.
McKinlay’s case—The High Court held that (1) sections 19, 24 and 25 of the Commonwealth Electoral Act 1918, as amended, did not contravene section 24 of the Constitution and (2) whilst sections 3, 4 and 12(a) of the Representation Act 1905, as amended, remained in their present form, the Representation Act was not a valid law by which the Parliament otherwise provides within the meaning of the second paragraph of section 24 of the Constitution.
McKellar’s case—The High Court held that a purported amendment to section 10 of the Representation Act 1905, contained in the Representation Act 1964, was invalid because it offended the precepts of proportionality and the nexus with the size of the Senate as required by section 24 of the Constitution.
Postal allowance case—The High Court held that the operation of section 4 of the Parliamentary Allowances Act 1952 and provisions of the Remuneration Tribunals Act 1973 denied the existence of an executive power to increase the level of a postal allowance—a ministerial decision to increase the allowance was thus held to be invalid.
Roach’s case—The High Court found in 2007 that amendments to section 93 of the Commonwealth Electoral Act 1918, to remove the entitlement to vote from all persons serving a sentence of imprisonment, were invalid, being inconsistent with the system of representative democracy established by the Constitution.
Rowe’s case—During the 2010 general election campaign, the High Court declared invalid amendments to the Commonwealth Electoral Act 1918 which had reduced the time available for updating the electoral rolls after the issue of writs.
Cases involving Commonwealth expenditure—in Combet (2005) the High Court rejected arguments that the broad terms of statements in an Appropriation Act were such that the Parliament could not be said to have authorised certain expenditure. The effect was that it was recognised as a matter for the Parliament, and not the courts, to determine the level of detail in such provisions. In Pape (2009) the Court held that a parliamentary appropriation was a prerequisite for the lawful availability of money for expenditure, but not in itself authority for expenditure; and that authority for Commonwealth expenditure must be found in the executive power or in legislation under a head of power in the Constitution. In this case the Court upheld the validity of the Tax Bonus for Working Australians Act (No. 2) 2009, but in Williams (2012) and Williams (No. 2) (2014) the Court held that the Commonwealth did not have the power to make payments under funding agreements (in this instance in relation to school chaplaincy) without the legislative authority to do so.
It should be noted that the range of cases cited is not an indication that either House has conceded any role to the High Court, or other courts, in respect of its ordinary operations or workings. In Cormack v. Cope the High Court refused to grant an injunction to prevent a joint sitting convened under section 57 from proceeding (there was some division as to whether a court had jurisdiction to intervene in the legislative process before a bill had been assented to). The joint sitting proceeded, and later the Court considered whether, in terms of the Constitution, one Act was validly enacted.
Jurisdiction of the courts in matters of privilege
By virtue of section 49 of the Constitution the powers, privileges and immunities of the House of Representatives were, until otherwise declared by the Parliament, the same as those of the House of Commons as at 1 January 1901. The Parliamentary Privileges Act 1987 constituted a declaration of certain ‘powers, privileges and immunities’, but section 5 provided that, except to the extent that the Act expressly provided otherwise, the powers, privileges and immunities of each House, and the members and committees of each House, as in force under section 49 of the Constitution immediately before the commencement of the Act, continued in force.
As far as the House of Commons is concerned, the origin of its privileges lies in either the privileges of the ancient High Court of Parliament (before the division into Commons and Lords) or in later law and statutes; for example, Article 9 of the Bill of Rights of 1688 declares what is perhaps the basic privilege:
That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.
This helped establish the basis of the relationship between the House of Commons and the courts. However a number of grey areas remained, centring on the claim of the House of Commons to be the sole and exclusive judge of its own privilege, an area of law which it maintained was outside the ambit of the ordinary courts and which the courts could not question. The courts maintained, on the contrary, that the lex et consuetudo parliamenti (the law and custom of Parliament) was part of the law of the land and that they were bound to decide any question of privilege arising in a case within their jurisdiction and to decide it according to their own interpretation of the law. Although there is a wide field of agreement between the House of Commons and the courts on the nature and principles of privilege, questions of jurisdiction are not wholly resolved.
In the Commonwealth Parliament, the raising, consideration and determination of complaints of breach of privilege or contempt occurs in each House. The Houses are able to impose penalties for contempt, although some recourse to the courts could be possible. Section 9 of the Parliamentary Privileges Act requires that where a House imposes a penalty of imprisonment for an offence against that House, the resolution imposing the penalty and the warrant committing the person to custody must set out the particulars of the matters determined by the House to constitute the offence. The effect of this provision is that a person committed to prison could seek a court determination as to whether the offence alleged to constitute a contempt was in fact capable of constituting a contempt.
These matters are dealt with in more detail in the Chapter on ‘Parliamentary privilege’.
The right of Parliament to the service of its Members in priority to the claims of the courts
This is one of the oldest of parliamentary privileges from which derives Members’ immunity from arrest in civil proceedings and their exemption from attendance as witnesses and from jury service.
Members of Parliament are immune from arrest or detention in a civil cause on sitting days of the House of which the person is a Member, on days on which a committee of which the person is a member meets and on days within five days before and after such days.
Section 14 of the Parliamentary Privileges Act also grants an immunity to Senators and Members from attendance before courts or tribunals for the same periods as the immunity from arrest in civil causes. In the House of Commons it has been held on occasion that the service of a subpoena on a Member to attend as a witness was a breach of privilege. When such matters have arisen the Speaker has sometimes written to court authorities asking that the Member be excused.
By virtue of the Jury Exemption Act, Members of Parliament are not liable, and may not be summoned, to serve as jurors in any Federal, State or Territory court.
For a more detailed treatment of this subject see Chapter on ‘Parliamentary privilege’.
Attendance of parliamentary employees in court or their arrest
Section 14 of the Parliamentary Privileges Act provides that an officer of a House shall not be required to attend before a court or tribunal, or arrested or detained in a civil cause, on a day on which a House or a committee upon which the officer is required to attend meets, or within five days before or after such days.
Standing order 253 provides that an employee of the House, or other staff employed to record evidence before the House or any of its committees, may not give evidence relating to proceedings or the examination of a witness without the permission of the House.
A number of parliamentary employees are exempted from attendance as jurors in Federal, State and Territory courts. Exemption from jury service has been provided on the basis that certain employees have been required to devote their attention completely to the functioning of the House and its committees.
(See also Chapters on ‘Documents’ and ‘Parliamentary privilege’.)
Parliament and the courts—other matters
Other matters involving the relationship between Parliament and the courts which require brief mention are:
Interpretation of the Constitution. In 1908, the Speaker ruled:
… the obligation does not rest upon me to interpret the Constitution … the only body fully entitled to interpret the Constitution is the High Court … Not even this House has the power finally to interpret the terms of the Constitution.
This ruling has been generally followed by all subsequent Speakers.
The sub judice convention. It is the practice of the House that matters awaiting or under adjudication in a court of law should not be brought forward in debate. This convention is sometimes applied to restrict discussion on current proceedings before a royal commission, depending on its terms of reference and the particular circumstances. In exercising a discretion in applying the sub judice convention the Speaker makes decisions which involve the inherent right of the House to inquire into and debate matters of public importance while at the same time ensuring that the House does not set itself up as an alternative forum to the courts or permit the proceedings of the House to interfere with the course of justice.
Reflections on the judiciary. Standing order 89 provides, inter alia, that a Member must not use offensive words against a member of the judiciary.
The legal efficacy of orders and resolutions of the House. This is discussed in the Chapter on ‘Motions’.