Spratt v Hermes [1965] HCA 66

High Court of Australia Barwick C.J. Kitto, Taylor, Menzies, Windeyer and Owen JJ. Spratt v Hermes [1965] HCA 66

ORDER The questions asked in the stated case answered as follows:

(i) Whether the provisions of s. 72 of the Commonwealth of Australia Constitution Act apply to the appointment of a stipendiary magistrate sitting as a Court of Petty Sessions in the Territory referred to in the Court of Petty Sessions Ordinance 1930-1961 of the Australian Capital Territory.

Answer: No.

(ii) Whether the said Clarence Lindsay Hermes having been appointed a stipendiary magistrate as stated in pars. 2 and 3 hereof and sitting as such pursuant to the Court of Petty Sessions Ordinance 1930-1961 of the Australian Capital Territory without having been appointed upon the terms specified in s. 72 pars. (ii.) and (iii.) of the Commonwealth of Australia Constitution Act has jurisdiction to hear and determine the information and Summons aforesaid.

Answer: Yes. Costs of the stated case to be paid by the prosecutor. Case remitted to the Supreme Court of the Australian Capital Territory.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 6 Barwick C.J.

On the hearing of a charge by a stipendiary magistrate in a Court of Petty Sessions in the Australian Capital Territory, the defendant raised an objection that the Court was without jurisdiction to try the charge because its trial involved an exercise of the judicial power of the Commonwealth within the meaning of Chap. III of the Constitution, and the Court of Petty Sessions was not constituted as required by that Chapter. The charge was that an offence had been committed in the Australian Capital Territory by sending by post a letter which had therein words of a grossly offensive character contrary to the provisions of s. 107 (c) of the Post and Telegraph Act 1901-1961 Cth.