Can a lower Court hear Constitutional Matters ?

Thursday , 14, July 2016 Leave a comment

This is an interesting question.


What to do when someone throws the Constitution at you 1) 1?

It can happen to any litigator.  Show up to court, ready to argue your (seemingly non-constitutional) case, only to be faced with a constitutional argument and the resultant scurrying around as the parties try to ascertain and meet the notice requirements under the Judiciary Act 1903 (Cth).

Notify Attorneys-General of a constitutional matter

For the most part we are aware that where a cause pending in any Court involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court2)2

So it would seem IF any one of the Attorneys-General seeks to intervene in the matter then it will be removed to the High Court (from the lower Court where it originated).

HOWEVER if none of them wish to intervene (they may not think your argument has merit then the lower court hearing your case….


If the constitutional point is frivolous or unarguable, the Court can determine that s 78B does not apply.  The matter must ‘really and substantially’ involve a matter arising under the Constitution to invoke s 78B, meaning the argument has to relate to a live issue in the proceeding and has to have some merit.

The court does not need to wait for a response from all Attorneys-General before proceeding.  It is sufficient if steps have been taken that ‘could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General’ .

The obligation to issue notices applies in every court in Australia, from the High Court to the Magistrates Court.  VCAT does not have power to determine questions arising under the Constitution and thus the 78B question should not arise in that forum.

The courts have introduced Rules to regulate procedural issues arising from the giving of s 78B notices – see Part 5 of the High Court Rules, Division 8.2 of the Federal Court Rules, Order 19 of the Supreme, County and Magistrates Court Rules.  Note that in the federal courts, the party that raised the argument must prepare the notice, whereas the State Rules permit a court to order a different party prepare the notice.  Victorian courts have been known to order that the State party prepare a notice outlining a constitutional argument raised by another party, which can be very difficult if that party is unable to clearly enunciate that argument3)3


The answer from the High Court may surprise some here.  in the case of Matthew Pallett v The Queen [2009] HCASL 188 (23 September 2009)4)4 in a joint decision of Justices Heydon and Bell at [3] There is no doubt that Judge Gaynor has jurisdiction to determine the constitutional points: jQuery("#footnote_plugin_tooltip_4").tooltip({ tip: "#footnote_plugin_tooltip_text_4", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });">Judiciary Act, s 39(2) which states:-

  (2)  The several Courts of the States shall within the limits of their jurisdictions…be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction…and subject to the following conditions and restrictions:

                     (a)  A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.

Special leave to appeal from decisions of State Courts though State law prohibits appeal.


but …                      (c)  The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge.


If you have a Criminal case in a lower Court as low down as the Magistrates Court (VCAT,NCAT, QCAT etc do not apply) AND you raise a Constitutional Matter AND the AG’s either fail to reply or reply in the negative for intervention (thinking your case is too trivial or lacks merit) THEN not only can the Magistrates Court decide the matter but the Prosecution CAN NOT APPEAL it unless granted Special Leave by the High Court.




  1. What to do when someone throws the Constitution at you?
  2. JUDICIARY ACT 1903 – SECT 78B.
  3. What to do when someone throws the Constitution at you?
  4. Matthew Pallett v The Queen [2009] HCASL 188 (23 September 2009).
  5. Judiciary Act, s 39(2).



References   [ + ]

1. 1
2. 2
3. 3
4. 4 in a joint decision of Justices Heydon and Bell at [3] There is no doubt that Judge Gaynor has jurisdiction to determine the constitutional points: function footnote_expand_reference_container() { jQuery("#footnote_references_container").show(); jQuery("#footnote_reference_container_collapse_button").text("-"); } function footnote_collapse_reference_container() { jQuery("#footnote_references_container").hide(); jQuery("#footnote_reference_container_collapse_button").text("+"); } function footnote_expand_collapse_reference_container() { if (jQuery("#footnote_references_container").is(":hidden")) { footnote_expand_reference_container(); } else { footnote_collapse_reference_container(); } } function footnote_moveToAnchor(p_str_TargetID) { footnote_expand_reference_container(); var l_obj_Target = jQuery("#" + p_str_TargetID); if(l_obj_Target.length) { jQuery('html, body').animate({ scrollTop: l_obj_Target.offset().top - window.innerHeight/2 }, 1000); } }