Chapter III. The Judicature
71. Judicial power and Courts
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 Parliament 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 Parliament prescribes.
72. Judges’ appointment, tenure, and remuneration
The Justices of the High Court and of the other courts created by the Parliament:
- shall be appointed by the Governor-General in Council;
- 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;
- 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.
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.
73. Appellate jurisdiction of High Court
The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences:
- of any Justice or Justices exercising the original jurisdiction of the High Court;
- 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 at the establishment of the Commonwealth an appeal lies to the Queen in Council;
- of the Inter-State Commission, but as to questions of law only;
and the judgment 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 at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.
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.
74. Appeal to Queen in Council
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.
75. Original jurisdiction of High Court
In all matters:
- arising under any treaty;
- affecting consuls or other representatives of other countries;
- in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
- between States, or between residents of different States, or between a State and a resident of another State;
- in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.
76. Additional original jurisdiction
The Parliament may make laws conferring original jurisdiction on the High Court in any matter:
- arising under this Constitution, or involving its interpretation;
- arising under any laws made by the Parliament;
- of Admiralty and maritime jurisdiction;
- relating to the same subject-matter claimed under the laws of different States.
77. Power to define jurisdiction
With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
- defining the jurisdiction of any federal court other than the High Court;
- 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;
- investing any court of a State with federal jurisdiction.
78. Proceedings against Commonwealth or State
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.
79. Number of judges
The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.
80. Trial by jury
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.
