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CHARLES MAGOFFIN[*]
The most striking feature of federal jurisdiction is its purity. The doctrines of constitutional law not only insulate the federal courts from the vesting of nonjudicial functions, but keep the subject-matter of federal jurisdiction within strictly limited boundaries. To confer on the federal courts jurisdiction over matters not specified in Ch III of the Constitution would thus appear to be of doubtful validity. Yet this is what has been implemented in the cross-vesting scheme enacted jointly by the States and the Commonwealth: the conferral of State jurisdiction on the federal courts. The recent decision of the High Court in Gould v Brown [1] to uphold this aspect of the scheme may appear to be surprising, especially given the Court’s tendency in recent years to favour strict and far-reaching interpretations of Ch III. [2] Yet the Gould decision is not an aberration; rather, it is consistent with the role of Ch III within the federal structure. The rule which limits the scope of federal jurisdiction has a specific purpose: to prevent the Commonwealth from encroaching upon the legitimate spheres of the State courts. The rule is a limitation on the power of the Commonwealth to determine the jurisdiction of the federal courts; it should not be interpreted as setting an absolute ceiling on the jurisdiction those courts can exercise. If the States themselves have taken the step of conferring their own jurisdictions on the federal courts, there is no need to protect the States from the power of the Commonwealth. Furthermore, it is important to keep in mind that the Australian court system has long been characterised by a remarkable degree of integration and cooperation between different levels of government. When considered in such a context, the scheme is revealed not as a radical structural change but as a logical development, and one with the valuable practical benefit of alleviating jurisdictional conflicts. Such a benefit should not be discarded without compelling reasons.
Gould involved a challenge to the validity of two distinct schemes: the “general” cross-vesting scheme and the “corporations” cross-vesting scheme. [3] The general scheme commenced operation in 1988; the participating courts are the Supreme Courts of the States and the Territories, the Family Court of Western Australia, the Family Court of Australia, the Federal Court of Australia, and to a limited extent the lower State courts. For all the complexity surrounding the workings of the general scheme, in concept it is utterly simple: “the jurisdiction of any one court forming part of the cross-vesting scheme is vested in every other court forming part of the scheme.” [4] Pursuant to Commonwealth legislation, [5] the State and Territory Supreme Courts and the Family Court of Western Australia have been conferred with the civil jurisdiction of the Family Court and the Federal Court. In return, pursuant to State legislation, [7] the Federal Court and the Family Court of Australia have been conferred with the entire civil jurisdictions of every State and Territory Supreme Court. The Federal Court and the Family Court have not, however, had their jurisdictions cross-vested with each other. Finally, the civil jurisdiction of each State and Territory Supreme Court has been vested in the Supreme Court of every other State and Territory. [8] The Commonwealth and the States have each legislated so as to permit their courts to exercise the cross-vested jurisdiction. [9] The scheme confers both original and appellate jurisdiction on each participating court. No criminal jurisdiction has been cross-vested, [10] and the general federal jurisdiction vested in the State courts by Section 39 of the Judiciary Act 1903 (Cth) is not subject to the scheme.
Despite the extraordinary scope of these arrangements, they were not intended to fundamentally change the balance of power between State and Commonwealth courts, nor allow litigants the opportunity for untrammelled forum-shopping. The purpose of the general scheme is to end the jurisdictional disputes which emerged after the creation of the Federal Court and the Family Court. These courts have jurisdiction only over certain specific matters which arise under Commonwealth law, but these matters flow from controversies which frequently involve closely related claims arising under State law. [11] For example, a proceeding in the Federal Court involving a claim of misleading and deceptive conduct [12] will frequently involve related claims in equity, contract or tort. Many of these problems have been solved by the development of the doctrine of “accrued jurisdiction”, which allows the federal courts to exercise jurisdiction over claims arising under State law when they are properly allied to claims arising under federal law; in such circumstances, a State claim will come within federal jurisdiction. [13] For example, it is possible for the Federal Court to entertain an action for breach of trademark, which arises under federal law, together with an action for passing off, which arises under the law of a State, when the same set of facts gives rise to both claims. But accrued jurisdiction cannot remove all such difficulties. It does not extend to the exercise of a power that is expressly granted to a State court; [14] nor can it solve the problem caused when federal jurisdiction in respect of one part of a dispute is vested exclusively in the State courts, and federal jurisdiction in another part of the same dispute is vested exclusively in a federal court. [15] Under the cross-vesting scheme, State and federal courts are armed with jurisdiction to determine all the matters which arise in a single controversy, and no case will fail for want of jurisdiction.
The transfer provisions of the scheme direct that proceedings commenced in an inappropriate forum be transferred to the more appropriate forum; in determining which court is appropriate, consideration is to be given to whether a court would have had jurisdiction prior to the commencement of the scheme, to the source of any statutes or general law requiring application or interpretation, and to the interests of justice. [16] The decision to transfer a case cannot be appealed. [17] The Commonwealth Attorney-General’s second reading speech emphasised that the scheme was not intended to make any major changes to the balance of activity between the State and federal courts, nor to allow for untrammelled forum shopping by litigants. [18] In certain cases the interests of justice, and of convenience to the parties, will make it appropriate that all matters be determined in a single proceeding. Otherwise, “ordinary” and “traditional” boundaries of jurisdiction [will] continue to be recognised and supported.” [19]
The corporations scheme commenced operation in 1991. Following the enactment of the Corporations Law by each State and Territory, [20] the civil jurisdiction of each State and Territory over matters arising under the Corporations Law has been conferred upon the Federal Court, [21] and also upon every other State and Territory Supreme Court. [22] The Commonwealth statute confers on the Federal Court and on the State and Territory courts civil jurisdiction over matters arising under the Corporations Law of the Australian Capital Territory. [23] The purpose of this scheme is to allow the Corporations Law to be administered and enforced as a national code, [24] an arrangement complementing the national supervisory role of the Australian Securities Commission. [25] As a result, no court has jurisdictional primacy arising solely from the place of incorporation; one State or federal court, for example, may order that a company be wound up, while another State or federal court may subsequently give leave to commence proceedings against that company in liquidation. [26] The transfer provisions operate so that the appropriateness of a court is to be determined by reference to the place of incorporation and the place where the events which gave rise to the controversy took place. [27] The corporations scheme operates to the exclusion of the general scheme with respect to matters arising under the Corporations Law.[28]
Amann Aviation Pty Ltd was incorporated in 1982 under the law of NSW. [29] On 30 November 1992 the Federal Court of Australia, on the application of BP Australia Ltd, ordered that the company be wound up and appointed a liquidator. Subsequently, on the application of the liquidator, the Court [30] issued summonses, directing certain witnesses to attend the court for examination concerning the affairs of the company. The power to make these orders arose under the law of either NSW or Victoria, [31] and in giving these orders, the Federal Court was exercising cross-vested State jurisdiction under the corporations cross-vesting scheme. Amann Aviation challenged the jurisdiction of the Court to make the orders, and in so doing challenged the validity of the corporations cross-vesting scheme; as the constitutional issues involved are almost identical, this challenge also called into question the validity of the general scheme. The case was thereupon heard by the Full Court of the Federal Court, together with two other cases which involved the exercise of cross-vested State jurisdiction. [32] Black CJ, Lockhart and Lindgren JJ unanimously upheld the validity of the schemes in BP Australia Ltd v Amann Aviation Pty Ltd. [33] Under the name Gould v Brown, this decision was appealed to the High Court of Australia; Brennan CJ, Toohey and Kirby JJ decided that the conferral of State jurisdiction on the federal courts was constitutional, while Gaudron, McHugh and Gummow JJ held that it was invalid. The appeal was therefore dismissed by a bare statutory majority, [34] with the unfortunate result that the decision cannot constitute a binding precedent, making it possible for the cross-vesting scheme to be challenged again. [35]
The most important constitutional question considered in Gould was whether the vesting of State jurisdiction in the federal courts was prohibited by Ch III of the Constitution. [36] The structure of the federal judiciary is regulated by a large number of restrictive principles. The High Court has appellate jurisdiction over matters of State law under section 73(ii), but the Commonwealth has no power to vest jurisdiction in matters arising under State law in the lower federal courts. Under section 77(i), the Commonwealth has the power to define “the jurisdiction of any federal court other the High Court,” but this power is restricted by its terms to the matters enumerated in sections 75–6: “the jurisdiction which may be “defined’’ is restricted to the nine descriptions of “matter” contained in the five paragraphs of section 75 and the four paragraphs of section 76.” [37] The Commonwealth cannot circumvent this limitation by the use of the general legislative powers in section 51; in Willocks v Anderson [38] the High Court held that to confer additional jurisdiction on the High Court, “Parliament must resort to the specific power contained in section 76.” [39] Thus, with certain exceptions, [40] the Commonwealth cannot confer on a lower federal court original or appellate jurisdiction over any matters not mentioned in sections 75–6. In Collins v Charles Marshall, [41] the High Court invalidated the conferral, on the Commonwealth Court of Conciliation and Arbitration, of an appellate jurisdiction which was wide enough to include matters arising under State law alone. [42] In addition, the ability of the Commonwealth to confer jurisdiction, pursuant to section 76(ii), over matters “arising under any laws made by the Parliament” will not support the scheme. While the federal courts are permitted by a Commonwealth statute [43] to exercise cross-vested State jurisdiction, such a statute does not bring the State jurisdiction within the scope of section 76(ii), which requires a “right or duty ... [which] owes its existence to Federal law or depends upon Federal enforcement.” [44] In this case the rights and duties involved owe their existence to State law.
Yet it must be emphasised that these rules are restrictions on the ability of the Commonwealth to vest jurisdiction; under the cross-vesting scheme, State jurisdiction has been conferred on the federal courts by the States, and not by the Commonwealth acting alone. The validity of this conferral is primarily called into question by the implication that Ch III’s grant of federal jurisdiction is exclusive, and that jurisdiction over matters outside the specific subjects in sections 75–6 cannot be conferred, either by the Commonwealth or by any other legislature. Such a result is suggested by the leading decision of the High Court on the scope of federal jurisdiction, In Re Judiciary and Navigation Acts, [45] in which the Court reasoned that the specific grant of jurisdiction necessarily carries a negative implication that the subject matter of that jurisdiction is exclusive. [46] Prior to this case, the Commonwealth Parliament had conferred on the High Court the jurisdiction to determine the validity of any statute referred to the Court by the Governor-General. [47] This conferral was declared unconstitutional when certain sections of the Navigation Act 1912–1920 (Cth) were referred to the Court for consideration. Under sections 75–6, jurisdiction may only be conferred on the federal courts with respect to “matters”, and the Court held that there is no “matter” within the meaning of sections 75–6 unless there is “some immediate right, duty or liability to be established by the determination of the Court.” [48]
The principle that Parliament “cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law” [49] closely resembles an important doctrine of US constitutional law: the prohibition against the federal courts giving “advisory opinions”, a rule which requires an actual controversy between different parties for jurisdiction to be exercised. [50] The basis of this rule is that the giving of an advisory opinion is not a judicial, but an executive function. Strangely, however, in In Re Judiciary and Navigation Acts [51] the High Court did not characterise the impugned statute as an attempt to authorise the giving of advisory opinions, and thus a conferral of non-judicial power. The statute was instead characterised in a way which weighs heavily against the attempt to vest State jurisdiction in the federal courts: as an attempt to confer a judicial function, [52] but one not authorised by the grant of original jurisdiction in Ch III:
This express statement [in ss75–6] of the matters in respect of which and the Courts by which the judicial power of the Commonwealth may be exercised is, we think, clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction. [53]
For the minority in Gould, this reasoning is conclusive, and necessitates the conclusion that the vesting of State jurisdiction in the federal courts is invalid. Gummow J, with whom Gaudron J agreed on this point, [54] and McHugh J held that the power to define the jurisdiction of the federal courts is given exclusively to the Commonwealth by Ch III, and that the States may not usurp this power by redefining or adding to this jurisdiction. [55] Under this interpretation, the federal courts are authorised by the Constitution to exercise the judicial power of the Commonwealth, and that alone, “not... an amalgam of the judicial power of the Commonwealth and judicial and non-judicial power of the States.” [56] The existence of s77(iii), a provision empowering the Commonwealth to vest federal jurisdiction in State courts, provides a further negative implication against the vesting of State jurisdiction in the federal courts. [57]
For the majority judges, Ch III does not have this exclusive effect. The most important step in their reasoning was the assertion of a clear distinction between “federal jurisdiction” and the jurisdiction which may be exercised by the federal courts. Ch III provides the Commonwealth with the only power to create federal courts, and the only power to vest federal jurisdiction; [58] these powers are distinct and need not be exercised simultaneously. [59] It is only federal jurisdiction that must be vested in accordance with the subjects in sections 75–6; the vesting of nonfederal jurisdiction is not affected by this limitation. [60] The absence of a provision clearly authorising the vesting of State jurisiction does not imply that such vesting is prohibited; section 77(iii) allows the Commonwealth to vest federal jurisdiction in the State courts without seeking the consent of the States, and the absence of a corresponding provision simply means that the States cannot “conscript” the federal courts in the same way, but can vest jurisdiction with the consent of the Commonwealth. [61] McHugh and Gummow JJ pointed to the absence of a provision giving the States the ability to “conscript” [62] the federal courts, but their use of the term is inappropriate: the States have not attempted any such conscription, and have acted with the acquiescence of the Commonwealth Parliament.
The reasoning of the majority is supported by previous decisions and practices of the High Court, in which the strict exclusionary rule of In re Judiciary and Navigation Acts has not been adhered to. That principle has been heavily qualified, most importantly in a series of decisions in which the Court has considered the place of the Territories in the federal judicature. The Territory courts are not federal courts, and need not be constituted according to the tenure provisions of section 72. [63] Yet the High Court and, later, the Federal Court have been permitted to hear appeals from decisions of the Territorial Supreme Courts, a jurisdiction which is not provided by sections 75–6 or, in the case of the High Court, by section 73. But the constitutionality of this arrangement has been consistently upheld, on the basis that the plenary power to legislate for the Territories in section 122 allows the Parliament to confer on federal courts appellate jurisdiction from a Territorial court. [64] This basis of this decision is the postulate that the limitations on Commonwealth power, including those imposed by Ch III, are a specific consequence of the federal system, of the necessity of coexistence between Commonwealth and State governments. The Territories, however, lie outside the federal system; within their borders, the Commonwealth is the sole sovereign power, and the power conferred by section 122 is plenary. [65]
For the majority in Gould, these decisions establish that Ch III’s enumeration of the federal courts’ jurisdiction is not exhaustive: that sections 75–6 specify the limits of federal jurisdiction, but not of the non–federal jurisdiction that can be vested in the federal courts. [66] A conferral of jurisdiction may be outside the specified “matters” in Ch III, but if it is supported by constitutionally valid legislation, it is permissible. There would not be any scope for the Commonwealth to confer such jurisdiction other than by section 122, due to the ruling in Willocks v Anderson [67] that the general legislative powers conferred by section 51 do not, by themselves, authorise the vesting of jurisdiction in the federal judicature and allow the conditions imposed by Ch III to be evaded. But the vesting by the States of jurisdiction in the federal courts is permitted. As Kirby J said, the Territory decisions refute the argument that there is a strict prohibition against jurisdiction over any matters outside Ch III. [68] Each minority judge offered a different response to this problem of consistency. McHugh J followed the logic of In re Judiciary and Navigation Acts, arguing that the Territory cases were wrongly decided, and that the appellate jurisdiction from the Territory courts should never have been conferred on the federal courts. [69] Gaudron J, by contrast, argued that the Territory courts should be considered to be parts of the federal judicial system. [70] Gummow J argued that as the Territories have been held to be outside the federal system, the decisions allowing appeals to the federal courts can have no relevance to the crossvesting scheme, which is concerned with federal relations. [71]
A further qualification to the rule in In re Navigation and Judiciary Acts, and a much more problematic one, is the High Court’s jurisdiction to hear appeals from the Supreme Court of Nauru. This appellate jurisdiction is conferred by section 5 of the Nauru (High Court of Appeals) Act 1976 (Cth), a statute which implements the terms of a treaty, executed in 1976, between Australia and the Republic of Nauru. This legislation is clearly enacted pursuant to the external affairs power, section 51(xxix), but the jurisdiction it purports to confer is not within the scope of section 76(ii), as cases which are governed by the law of Nauru do not arise under a law of the Commonwealth. Nor can support for this jurisdiction be found in section 75(i), which grants original jurisdiction over matters arising under a treaty; this requires some right or duty arising under a municipal statute giving effect to the treaty. [72] On its face, therefore, the High Court’s Nauru jurisdiction conflicts with the rule in Willocks v Anderson. [73] The issue has not been argued before the High Court, and was not addressed by the Court in Gould, but it is significant that the Court has exercised this jurisdiction on two occasions, [74] and as Lockhart J pointed out in Amann, “federal courts are obliged to satisfy themselves that they have jurisdiction, even when the issue is not raised by the parties before them.” [75] It is possible, however, that this appellate jurisdiction can be upheld because, like the Territories jurisdiction, it implicates no federal values, involves no area where power is shared with the States. With respect to the making of treaties and the external relations of Australia, the Commonwealth is the sole sovereign power – just as it is the sole sovereign power within the Territories. Lee J may have been suggesting as much when, in West Australian Psychiatric Nurses’ Association (Union of Workers) v Australian Nursing Federation, [76] he characterised the external affairs power as a “plenary power.” [77]
If both the Territorial jurisdiction and the jurisdiction to hear appeals from Nauru can be upheld on the basis that such jurisdiction is “non-federal”, it can be argued, as the minority judges did, that neither example can provide support for the cross-vesting scheme, which works within the federal system and involves State jurisdiction. [78] Yet such an argument passes over the fact that In re Navigation and Judiciary Acts and other decisions in this area, such as Willocks v Anderson and Collins v Charles Marshall, have only considered unilateral action by the Commonwealth. [79] The cross-vesting scheme, by contrast, involves a conferral of jurisdiction by the States with the consent of the Commonwealth. The significance of this point is that it provides support for the argument that the restrictions imposed by Ch III, limiting the power of the Commonwealth to define and vest federal jurisdiction, should be interpreted as flowing from, and consistent with, the federal structure. Federal jurisdiction is analogous to the federal legislative power in that it is restricted to certain specific classes of subject-matter: those subjects which were considered by the Framers to be the appropriate responsibilities of the Commonwealth. The analogy to the legislative power may be imperfect; as Gummow J has pointed out in Kruger v Commonwealth, the “heads of federal jurisdiction embrace justiciable controversies of a nature and character unknown in the anterior body of general jurisprudence in the Australian colonies.” [80] Yet the federal division of powers nonetheless provides an appropriate conceptual framework for determining the effect of Ch III’s restrictions in the context of this case. Federalism requires that the national and regional governments coexist, each with different areas of responsibility, and with each being independent and supreme within its own sphere. [81] The rigid approach to the scope of federal jurisdiction serves this principle, acting as a limitation on the power of the Commonwealth, and preventing the judicial arm of the federal government from encroaching upon areas of State responsibility. The principles of federalism do not require that the States be protected from their own decision to confer judicial power on the Commonwealth courts. Gummow J argued that it would be “incongruous” [82] to allow the States to confer jurisdiction on the federal courts which the Commonwealth cannot confer, yet far from being incongruous, to allow the States such power is consistent with the federal structure. The States have good reason to believe that the scheme will be in their interests; unlike the doctrine of accrued jurisdiction, it allows jurisdictional conflicts to be alleviated without necessarily expanding the power of the federal courts at the expense of the State courts. The scheme does not embody any conflict between levels of government, and implicates no federal values; a conferral of jurisdiction by the States, which involves no Commonwealth intrusion into State powers, is therefore equivalent to the “non-federal” jurisdiction conferred under the Territories power. Once this point is accepted, there is no necessity to hold that Ch III totally excludes the conferral of additional jurisdiction on the federal courts, and the primary constitutional obstacle to the cross-vesting scheme is removed.
A further constraint imposed by Ch III is the rule in R v Kirby; ex parte Boilermakers’ Society of Australia, [83] which prohibits the conferral of a nonjudicial function on a federal court. By contrast, there is no bar to State courts performing non-judicial functions. If it is permissible for State jurisdiction to be vested in the federal courts, there is a danger that this could include the vesting of some non-judicial powers. This has not been attempted in the present scheme, however, as the statute conferring State jurisdiction refers only to “State matters”, [84] and as Kirby J pointed out, this term is surely intended to be given the same meaning that the High Court has given to “matters” in Ch III: “some immediate right, duty or liability to be established by the determination of the Court.” [85] It is judicial power which has been conferred by the States, and nothing more. Gummow J argued that a “dissection” of State jurisdiction, separating that which can be conferred on the federal courts and that which cannot, is not conceptually possible. [86] Yet such a “dissection” is conceptually possible, and has previously been applied to the High Court's appellate jurisdiction: it has been held that the High Court could not hear appeals from State Supreme Court which was acting as a Disputed Elections Tribunal, as such a tribunal was not a “Supreme Court” within the meaning of section 73. [87] McHugh J argued that as “matters” are restricted to the subjects in sections 75–6, the concept of a “State ‘matter’ in the context of Ch III is meaningless.” [88] By contrast, Brennan CJ and Toohey J stated that “[t]he source of the law to be applied in deciding a controversy is not relevant to the question whether the power to decide it is judicial in nature or not.” [89]
Such an approach requires the examination of each power conferred by the States on the federal courts. In Gould this was an additional basis for the appellants’ challenge to the Federal Court’s power, arising under the law of NSW or Victoria, [90] to order the examination of witnesses in the course of winding up a company. The appellants argued that this was a non-judicial power. Brennan CJ, Toohey and Kirby JJ, agreeing with Lockhart J in Amann, [91] all held that this power can be validly exercised by a federal court in support of the Court’s supervisory role in the course of winding up, and that it was therefore within the judicial function or validly incidental to the exercise of judicial power. [92] Yet the terms of the statute conferring this power were too broad, allowing the court to conduct examinations for other purposes; such examinations, not being incidental to winding-up procedures, would not be an exercise of judicial power. [93] Brennan CJ, Toohey and Kirby JJ held that the power to make these impermissible orders could be severed. [94] Gaudron J, by contrast, held that the policy of the legislature that the Corporations Law be read as a “seamless whole”, operating on a uniform basis in every jurisdiction, prevented the severence of invalid powers, [95] and that as a result, the vesting of jurisdiction in the federal courts over matters arising under the Corporations Law must be invalid in its entirety. [96]
Part of the significance of Gould lies in the extensive consideration by the High Court of the principles governing co-operative action between the Commonwealth and the States. An important question for the Court was the ability of the States, when conferring jurisdiction, to bind organs of the Commonwealth, the federal courts. This conferral is not possible without the consent of the Commonwealth, for two reasons. The Full Court of the Federal Court in Amann [97] considered the principle in Commonwealth v Cigamatic Pty Ltd (in liquidation) [98] that the States may not “regulate the legal relations of [the Commonwealth] with its subjects”, [99] The Commonwealth was thus required by this doctrine to legislate to bind itself. [101] The majority of the High Court in Gould took a different approach, seeing the question of the States’ power to bind the Commonwealth courts as primarily one of inconsistency of Commonwealth and State laws. [102] The vesting by Commonwealth statutes of jurisdiction in the federal courts implies a legislative intention that the jurisdiction of those courts should not be enlarged by another legislature, with the result that section 109 of the Constitution would render the State legislation invalid; the express legislative consent of the Commonwealth is necesssary to overcome this presumption. [103] Under both of these approaches, the scheme depends on the combined operation of State and Commonwealth statutes; the State statutes vesting jurisdiction and the Commonwealth statute allowing this jurisdiction to be exercised are “complementary.” [104]
In permitting legislation from different levels of government to have a combined effect, both the High Court majority and the Full Federal Court relied heavily upon previous decisions of the High Court, most notably Re Duncan; ex parte Australian Iron & Steel, [105] in which strong encouragement has been given to cooperative schemes between the States and the Commonwealth which can “achieve results that neither alone could achieve.” [106] Cooperation has been declared by Deane J to be “a positive objective of the Constitution”, [107] a comment given much credence by the presence in the Constitution of legislative powers which require State consent for their exercise. [108] In Duncan, the Court held that the Coal Industry Tribunal could validly exercise powers derived from both Commonwealth and NSW legislation; as Gibbs CJ put it, nothing in the Constitution “forbids the Commonwealth and the States to exercise their respective powers in such a way that each... supplies the deficiencies in the power of the other.” [109] In addition, the Tribunal was not required to exercise the powers derived from each source in isolation from each other, but could exercise both as a unity. [110] In Re Cram the High Court affirmed that the Coal Industry Tribunal was able to exercise powers vested in it by NSW because the terms of the Commonwealth Act authorised it to do so. [111]
The majority judges revealed significant differences of approach in their application of these principles. Drawing on the “analogy” [112] between the crossvesting scheme and the Coal Industry Tribunal in Duncan, Brennan CJ and Toohey J held that the legislative “consent” of the Commonwealth need not be based upon a specific legislative power. [113] By contrast, Kirby J required that the Commonwealth legislation be based on a specific power; [114] he held that the express incidental power, section 51(xxxix), is able to support the legislation, as it assists in the exercise of the federal judicial power by eliminating or reducing costly jurisdictional disputes. [115] Both McHugh and Gummow JJ argued that the exclusive effect of Ch III is enough to render the State cross-vesting legislation invalid, leaving no scope for either section 109 or (though neither discussed it) the Cigamatic doctrine to have any effect. [116] Yet McHugh J also spoke of the Commonwealth lacking the power to authorise the federal courts “to receive jurisdiction”, [117] while Gummow J (with whom Gaudron J agreed on this point) expressed agreement with the argument put forward by Lee J, in West Australian Psychiatric Nurses’ Association (Union of Workers) v Australian Nursing Federation, [118] that the consent of the Commonwealth must be “grounded upon a specific legislative power under the Constitution.” [119]
A majority of judges in Gould therefore held that the Commonwealth, when legislating to allow the States to confer powers or duties on its organs, is required to base this consent on one of its own legislative powers. The effect of such a requirement is uncertain; it may have the effect of greatly reducing what the Australian legislatures can achieve when acting in concert, as large areas of State competence lie outside the powers of the Commonwealth Parliament.
A broad interpretation of the express incidental power in this context, such as that taken by Kirby J, should obviate most of these difficulties. In Duncan, however, the only restrictions placed on the ability of the Commonwealth to consent to the vesting of State powers were that the co-operative purpose and the means used to achieve it must be consistent with the Constitution, [120] and that “the vesting and exercise of state powers [be] conducive to or consistent with the achievement of the object which the vesting and exercise of federal powers is intended to achieve.” [121] The approach of Brennan CJ and Toohey J in Gould is arguably most consistent with Duncan, in that it presumes that the powers of all Australian legislatures, when complementing each other, are “universal powers” [122] covering “every subject that is susceptible of legislative regulation or control”, [123] and which are restricted only by express or implied constitutional prohibitions. [124]
It is this presumption that the majority relied upon when rejecting the argument that the State Parliaments have no power to confer jurisdiction on the federal courts, or upon the courts of another State. The judicial systems of the States are not subject to express constitutional limitations. [125] But the continuation of State powers by section 107 of the Constitution, “as at the establishment of the Commonwealth”, was said by the appellants to have also preserved, as restrictions on the States, the limitations imposed on the powers of colonial legislatures by the Colonial Laws Validity Act 1865 (Imp). This argument was rejected by the majority. With the passing of the Australia Acts by the States, the Commonwealth and the Imperial Parliament in 1986, any remaining Imperial restrictions on State legislative power were lifted. [126] As Kirby J puts it, s107 is a “confirmation”, not a restriction, of State legislative power within the Australian federation. [127]
The generous scope given by Gould to the principles of “co-operative federalism”, and the majority’s willingness to let such co-operation shape the court system, is consistent with the distinct character of Australian federalism, and the special position of the courts in the constitutional structure. To elaborate this point, it is well known that the framers of the Australian Constitution were heavily influenced by their American predecessors. Ch III is, in many respects, closely modelled on the judicature provisions in Article III of the United States Constitution, [128] most significantly in the grant of federal jurisdiction over certain specific subjects. Yet the Australians made some profound structural changes to the US system, in which the federal courts, including the Supreme Court, have responsibility only for federal law, and in which the appellate court of each State remains the final arbiter of the common law of that State. By contrast, section 73(ii) provides the High Court with a general appellate jurisdiction from the State Supreme Courts, allowing it to decide all questions of law. This has given the common law of Australia a large measure of unity. [129] In addition, the “autochthonous expedient” [130] of section 77(iii) allows the Commonwealth, without the consent of the States, to vest federal jurisdiction in the State courts. The State courts have thus been the sole trial courts for large areas of federal law, including Commonwealth criminal law. [131]
As Herbert Johnson has put it, these and other provisions [132] “evidenced the intention of the founding fathers of Australia that sharp lines of distinction did not need to be drawn” between the State and federal court systems. [133] The court system is “more national and less distinctively federal than either the legislative or the executive department.” [134] For many members of the judiciary, therefore, it has not been a radical step to propose a national system of superior courts, empowered to administer the law irrespective of its source. [135] While this suggestion has never been acted upon, the distinctive features of the Australian Constitution have resulted in a legal system with a high degree of institutional unity. This was recently recognised by the High Court in Kable v Director of Public Prosecutions (NSW), [136] in which Gaudron, McHugh and Gummow JJ each declared that the existence of provisions allowing the vesting of federal jurisdiction in State courts, and the ability of the High Court to hear appeals on matters of general common law, were evidence that the Constitution provides for “an integrated national court system”, [137] and therefore places some limitations on the functions that can be exercised by State courts. It must be conceded that all three of these judges, forceful proponents of “integration” in Kable, have in Gould rejected a differerent notion of integration: one that supports the conferral of State jurisdiction on the federal courts. Yet such integration is consistent with the judicature provisions, which allow for considerable interaction between different levels of government; Deane J’s statement that Commonwealth-State cooperation is a “positive objective of the Constitution” [138] applies with particular force to the judicial system. Since Federation, the objective of cooperation has been fulfilled in the court system as nowhere else. For many years, the Commonwealth and States have together maintained a quasi-national court system, and as Kirby J emphasised, the crossvesting scheme “fortifies and sustains the integrated judicial system ... appropriately relating its component parts to one another.” [139]
In addition, the scheme has the advantage of alleviating the major problem caused by federal jurisdiction, the existence of jurisdictional conflicts, while allowing its benefits to be retained. There is a tendency to say that federal jurisdiction brings no benefits, to dismiss the very idea of federal jurisdiction as the product of uncritical copying of the US Constitution. [140] Those who promote this argument often favour the proposal that there be a national system of courts, established by the Constitution and independent of any particular level of government. [141] Yet there are practical benefits, and important matters of principle, which are ignored by this argument. The power to establish a system of courts is an essential attribute of sovereignty: “a government is not a government without courts.” [142] Related to this argument is the practical necessity for “a single government and Parliament able to accept political responsibility for the courts and their administration.” [143] To have responsibility for a national court system divided among the Commonwealth and the States would cause great inflexibility; the need to secure the agreement of all governments involved would make it difficult to achieve any necessary changes. [144] Such a system would also inhibit the kind of innovation that has seen the creation of courts with specialised functions, such as the Family Court and the NSW Land and Environment Court. Furthermore, to argue that courts should be independent of any level of government is to suggest that the courts are not only formally independent of the other branches of government, but outside politics itself. Yet it must be within the ability of the legislature and executive to shape the character and powers of the courts through the making of political decisions: judicial appointments, composition and jurisdiction.
The advantage of Australia’s constitutional arrangements is that the ability of each level of government to establish its own courts is retained, while a large degree of cooperation and integration is also provided for. The cross-vesting scheme preserves this advantage, working to minimise the problems caused by jurisdictional conflicts, without necessitating the creation of a single court system.
The cross-vesting scheme is still vulnerable to a constitutional challenge, as the decision to uphold it in Gould is not binding on the Court; [145] the retirement of two members of the statutory majority, Brennan CJ and Toohey J, highlights this vulnerability. Yet the decision was correct, despite the precarious narrowness of the margin by which it was taken, and it should not be overturned. The Court has frequently had to consider the express and implied constitutional prohibitions governing the Commonwealth judiciary, at times with far-reaching effect. While many of these decisions have provoked intense debate and criticism, [146] the very least that can be said of them is that they have served important values: the insulation of judicial power from the influence of executive functions; the exercise of judicial power by an independent judiciary; the preservation of the federal structure by keeping the power of the Commonwealth to determine the jurisdiction of its courts within legitimate bounds. A decision to strike down the cross-vesting scheme would not promote any of these values, nor any others of importance, as the scheme does not infringe the separation of powers, nor does it damage the integrity of federalism. The scheme also brings important practical benefits, as it provides a mechanism to alleviate jurisdictional conflicts without necessitating radical structural changes to the court system: and it is consistent with the integrated court system provided for by the Australian constitutional structure. A decision to invalidate the scheme would, as Kirby J said, “inflict a needless wound”, [147] as it would enforce the purity of federal jurisidiction, but to an extent required neither by the basic structure of federation nor by the independent role of the federal courts.
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URL: http://www.austlii.edu.au/au/journals/SydLawRw/1998/14.html