TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia and Anor

TCL Air Conditioner (Zhongshan) Co Ltd (the applicant) sought judicial review of a decision of the Federal Court of Australia. The applicant had been involved in proceedings in the Federal Court concerning alleged breaches of Australian consumer law. The applicant sought to challenge the validity of certain orders made by the Federal Court, alleging that the judges who made those orders lacked the constitutional authority to do so.

The central legal issue before the High Court was whether the judges of the Federal Court, who were appointed under s 72 of the Constitution, possessed the constitutional tenure required by that section. Specifically, the applicant contended that the judges' tenure was impermissibly affected by provisions of the *Federal Court of Australia Act 1976* (Cth) and the *Judiciary Act 1903* (Cth) that allowed for the removal of judges from office in circumstances other than those prescribed by s 72. The applicant argued that this alleged constitutional defect rendered the judges' appointments invalid and, consequently, any orders made by them were void.

The High Court unanimously dismissed the application. Their Honours held that s 72 of the Constitution, which mandates that federal judges hold office during good behaviour and are removable only by the Governor-General in Council on an address from both Houses of Parliament, does not preclude Parliament from enacting legislation that provides for the removal of judges on grounds of invalidity of their appointment. The Court reasoned that the provisions of the *Federal Court of Australia Act* and the *Judiciary Act* did not purport to alter the tenure of judges appointed under s 72, but rather provided a mechanism for dealing with situations where an appointment might be found to be constitutionally invalid. The Court found no basis for the applicant's assertion that the judges' appointments were invalid or that their tenure was unconstitutionally affected.

The application for judicial review was dismissed.