'Defining characteristics' and the forgotten 'Court'

Abstract

This article outlines the High Court of Australia’s development of limitations on state legislative power to affect state courts and, in particular, the Court’s acceptance of the concept of ‘defining characteristics’ of a ‘court’ as a touchstone for constitutional validity. It then traces the history of one particular unusual colonial court, the Court of Appeals for the Province of South Australia, and discusses the impact of that court’s existence on the terms of ch III of the Australian Constitution. The characteristics of the historical Court of Appeals are contrasted with the modern idealised constitutional conception of a ‘court’. The article concludes with a critique of the failure of the ‘defining characteristics’ approach adequately to explain or to take into account the historical existence of the Court of Appeals, and identifies some ways in which it might be more satisfactorily accommodated within, and might influence, ch III jurisprudence.