02_Courts - Constitutional and Administrative Law 02 The...

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Constitutional and Administrative Law 02 – The Courts Page 1 of 28 P ART II T HE C OURTS I The High Court A Types of Court The Constitution creates three kinds of courts: federal courts established under the Constitution and Commonwealth Acts of Parliament, state courts established under state legislation, and territory courts. Such courts are said to exercise judicial (as distinct from executive or legislative) power. Chapter III of the Constitution vests Commonwealth judicial power in three types of court: the High Court of Australia, federal courts able to be created by Parliament and other state courts vested with federal jurisdiction by Parliament. The High Court has a special role in the judicial system: it is the final court of appeal and also the court of first instance for several causes of action. B Structure and Composition Section s 71 of the Constitution vests judicial power in the High Court of Australia and courts created by or vested with federal jurisdiction by Parliament: Section 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 , 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 . The minimum composition is two Justices and a Chief Justice. Parliament may increase the number by legislation. 1 Appointment and Removal The circumstances of appointment and removal are set out in s 72 of the Constitution : Section 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;
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Constitutional and Administrative Law 02 – The Courts Page 2 of 28 (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 … Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years. 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. The Governor–General appoints Justices to the High Court (in practice, upon the advice of the
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02_Courts - Constitutional and Administrative Law 02 The...

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