The High Court came to a sensible conclusion yesterday on the question of validity of decisions of the ACT Supreme Court. David Eastman, the man convicted of the murder of AFP Assistant Commissioner Colin Winchester, had argued that the judge who tried his case, Acting Justice Kenneth Carruthers, had not been validly appointed under the Constitution.
The Constitution provides that the Federal Parliament can create federal courts and can invest federal jurisdiction in other courts. Judges of the High Court and judges of federal courts created by Parliament must be appointed by the Governor-General Council (the federal government) and must be appointed for a term expiring on their attaining 70 years old.
Eastman argued that the ACT Supreme Court was a federal court created by the federal parliament; that Acting Justice Carruthers was appointed by the ACT Executive, not the Governor-General in Council, and he was appointed for a fixed term, not one expiring at the age of 70. Therefore, he argued, the appointment was invalid and the conviction a nullity.
No, said the High Court. The ACT Supreme Court is not a federal court. It is a territory court created under the territories power of the Constitution. Its role is limited to ACT matters, not Commonwealth-wide matters. It is unlike, say, the Family Court or Federal Court which can hear cases from anywhere in Australia between parties from anywhere.
It occasionally exercises federal jurisdiction, for example, when it hears a copyright case under the federal Copyright Act, but it is still a territory court.
In effect, the High Court has put the ACT Supreme Court on exactly the same footing as state Supreme Courts. The judges are appointed by the ACT Executive on what terms it sees fit. The ACT Supreme Court hears matters arising under territory law. It also hears matters of federal law arising between territory-based parties. But it is not a federal court under the constitution. The distinction may seem fine, but it is a sensible one.