Gould & Ors v Brown

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S204 of 1996

B e t w e e n -
VANDA RUSSELL GOULD, VANDA GOULD, RUSSELL GOULD, MALCOLM BEARD, RICHARD GEERSEN, JOSEPH SHLEGERIS, GREGORY RALPH, JOHN READ,
NEIL IRVING, JOHN LEAVER,
NIGEL STOKES, CONTINENTAL VENTURE CAPITAL LIMITED,
CVC INVESTMENTS PTY LIMITED, GOULD RALPH SERVICES PTY LIMITED and GOULD RALPH AND COMPANY
Appellants
and
MARTIN RUSSELL BROWN in his capacity as liquidator of Amann Aviation Pty Limited (in liquidation)
Respondent

BRENNAN CJ
TOOHEY J

GAUDRON J
McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 APRIL 1997, AT 10.20 AM

_____________________

MR F.M. DOUGLAS, QC: May it please the Court, I appear with my learned friends MR P.J. DOWDY and MR K.M. CONNOR for the appellants. (instructed by Henry Davis York)

MR S.D. ROBB, QC: May it please the Court, I appear with my learned friends, MR A. ROBERTSON, SC and MR M.A. JONES for the respondent. (instructed by Nash O’Neill Tomko)

MR D.R. WILLIAMS, QC: Attorney-General for the Commonwealth of Australia: May it please the Court, I am pleased to appear with my learned friends, MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth of Australia, MR H.C. BURMESTER and MR S.J. GAGELER intervening on behalf of the Commonwealth. (instructed by the Australian Government Solicitor)

MR P.A. KEANE, QC, Solicitor‑General for the State of Queensland: May it please the Court, I appear with MR R.W. CAMPBELL, for the Attorney-General for the State of Queensland intervening in the interests of the respondent. (instructed by the Crown Solicitor for the State of Queensland)

MR D. GRAHAM, QC, Solicitor‑General for the State of Victoria: May it please the Court, I appear with my learned friend, MR C.M. CALEO, on behalf of the Attorney-General for the State of Victoria, intervening in support of the respondent. (instructed by the Victorian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR R.M. MITCHELL, intervening on behalf of the Attorney-General for the State of Western Australia in support of the respondent. (instructed by the Crown Solicitor for Western Australia)

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia: If it pleases the Court, I appear with my learned friend, MR J.P. GILL, for the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for South Australia) and the Attorney-General for the State of Tasmania intervening in support of the respondent. (instructed by the Crown Solicitor for Tasmania)

MR J.J. SPIGELMAN, QC, Acting Solicitor-General for the State of New South Wales: If the Court pleases, MR L.S. KATZ, SC and I appear on behalf of the Attorney-General for the State of New South Wales intervening on the side of the respondent. (instructed by the Crown Solicitor for New South Wales)

BRENNAN CJ: I understand that an agreement has been reached between the Commonwealth and the defendant as to the order of argument. Is that so?

MR ROBB: Yes, sir. It is proposed that the Commonwealth go first.

BRENNAN CJ: Mr Douglas?

MR DOUGLAS: This case concerns the validity of the corporations cross-vesting scheme. The first set of propositions which we have concern the legislative power of the States. We also then go on to deal with the question of the validity of the scheme having regard to the provisions of Chapter III of the Constitution. We also raise the question as to whether what is sought to be done here is an exercise of a judicial power of the Commonwealth. That is in relation to the issue of the summonses and the proposed examinations.

If I could deal firstly with the question of the constitutional validity of it from a State’s point of view which is dealt with in our written submissions. That depends upon questions arising under the New South Wales Constitution Act 1855, the Colonial Laws Validity Act, and also the effect of the recent Australia Acts which is a matter which has been raised by some of those who are in opposition to the arguments which we put.

The submissions which we have made in writing are that, although the 1855 Constitution of New South Wales gave a plenary power to make laws for the peace, order and good government of that colony, it has to be seen against the provisions of section 5 of the Colonial Laws Validity Act which provided in its first part that:

Every colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein -

Our argument is that fundamentally, if one looks at that in the way in which it has been interpreted in decisions of this Court such as Taylor v The Attorney‑General of Queensland, McCawley v The King and Trethowan’s Case, that the power which the colonial legislature had in relation to the establishment of courts of justice or the conferring of jurisdiction on other courts was not one which contemplated the conferring of jurisdiction upon courts of other colonies or, as it turned out, the courts of the Commonwealth of Australia.

We have a bundle of legislation which I would seek to hand up copies of. Apparently they were not distributed this morning. I just briefly would like to take you to some of the provisions in there. It has a rather idiosyncratic way of compilation because you will find that, in some circumstances, the first page of the legislation appears in the previous divider. If you understand that, you will understand quite a lot of things about this case, possibly.

If one goes to the binder, we have included, for historical reasons, the Australian Courts Act of 1928, and the Australian Constitutions Act of 1842. We draw attention to the Australian Constitutions Act of 1850 and, in particular, section 29. That is under divider 3 and, if one looks at section 29, you will see the power which was conferred upon the legislatures of New South Wales, Van Dieman’s Land and Victoria to make further provisions for the administration of justice. That is a power which is separate from the other constitutional powers of a colony.

Then you will find, in the idiosyncratic way in which I have described it, the last page within that divider is the commencement of the New South Wales Constitution Act, which is to be found in its entirety under the next divider, which is divider 4. The general legislative power of the colony of New South Wales is there set out in the schedule, which is to be found on page 254 of the extract, where it says that the Parliament of New South Wales has a general power:

to make laws for the peace, welfare, and good government of the said colony, in all cases whatsoever:

Then on the last page of that extract you will see the commencement of the Colonial Laws Validity Act . Under divider 5 you will find the provision which we refer to and it is the first part of that which we rely upon:

Every colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of justice -

et cetera. In our written submissions from pages 4 through to ‑ ‑ ‑

BRENNAN CJ: Section 5 relates to the creation of institutions, does it not?

MR DOUGLAS: In its terms it could be so read, your Honour, but it has to be seen, as we would see it, against the background of the earlier legislative provisions which gave power to make laws in relation to the administration of justice. We would see those last words of it, “and to make provision for the administration of justice therein” as being an empowering provision not only in relation to institutions but in relation to the jurisdiction which could be given to those jurisdictions.

That can be perhaps, in an historical sense, more clearly understood if one goes back, for example, to section 29 of the Australian Constitutions Act 1850 to which I took the Court, because certainly within that section the contemplation of administration of justice had within it all of the subject matters which were within that particular section. So not only, we would say, does that part of section 5 upon which reliance is placed relate to the establishment of institutions but it also relates to the provision for the administration of justice therein. For that reason we would rely upon it as limiting the power of the colonial legislature to do what ‑ ‑ ‑

KIRBY J: Which was the section of the 1855 Act? I am missing a lot of your text. There is something wrong with the microphone, I think, or if you could raise the rostrum a little?

MR DOUGLAS: Is that better, Justice Kirby?

KIRBY J: I will wait and see.

MR DOUGLAS: Your Honour is asking me to take your Honour to the 1855 Act?

KIRBY J: What was the section of the 1855 Act you referred to?

MR DOUGLAS: The 1855 Act did not contain a separate provision in relation to the administration of justice. It simply had the plenary power which is contained in section 1 which is on page 254 of the extract appearing under divider 4, but the provision to which I had taken the other members of the Court back to was the Australian Constitutions Act of 1850 and, in particular, section 29 thereof, which showed, in our submission, what was contemplated by the expression “administration of justice” in section 5 of the Colonial Laws Validity Act. In our written submissions, as I have said ‑ ‑ ‑

BRENNAN CJ: You are contending for a limitation on power, are you not?

MR DOUGLAS: Yes, your Honour.

BRENNAN CJ: How do you reach that point by reference to an empowering section?

MR DOUGLAS: The question is what was embraced within the conception of peace, order and good government referred to in the colonial constitution - that is the 1855 Constitution - as understood in the light of the Colonial Laws Validity Act which was intended to, as it says, remove doubt as to the validity of certain laws:

enacted or purporting to have been enacted by the legislatures of certain of her Majesty’s colonies, and respecting the powers of such legislatures -

Whilst it is an empowering piece of legislation in the sense that it gives power to the New South Wales Parliament, in conferring that power it causes us to understand what is not embraced within that power. I recognise that there have been decisions of this Court in more recent times concerning the extraterritorial jurisdiction of colonial legislatures, but it really is more a question as to what was contemplated by the power which was conferred upon the colonial legislature.

Could it, for example, have given jurisdiction to the United Kingdom courts to determine matters arising in New South Wales other than the Privy Council to which I will come to in due course? Could it have given jurisdiction to the Supreme Court of Victoria to determine matters which were the subject of the jurisdiction of the Supreme Court of New South Wales?

Apart from our own submissions, there have been some submissions by the learned Solicitor-General for Western Australia and in their written submissions at page 12 and 13 there is some further discussion as to what could have been done prior to Federation in terms of establishing an intercolonial court exercising the jurisdiction of Colonial Supreme Courts throughout the Australian colonies. Their submission is that only the Imperial Parliament could have effectively achieved that and those are submissions which we embrace as part of the general submission which we make to you concerning the legislative powers of the States in relation to this particular subject matter.

We also rely upon the passages which we have quoted at page 6 of our written submissions in relation to the relationship between section 5 of the Colonial Laws Validity Act and the grant of general legislative power in the New South Wales Constitution Act, for example, Justices Gavan Duffy and Rich in Taylor v Attorney-General said:

The words of the section are properly chosen to express the powers sought to be conferred. It was intended that a colonial legislature should have power to constitute new Courts and put an end to existing Courts, to determine whether specific Courts should continue to exist or should cease to exist, as well as to mould their form, prescribe their form, prescribe their duties, and regulate their procedures.

Also in McCawley v The King, the judgment of Justices Isaacs and Rich which was the judgement which was upheld in the Privy Council that:

Whatever colonial restrictions existed immediately prior to the passing of the Colonial Laws Validity Act must yield to the later will of the Imperial Parliament as expressed in section 5. At the moment, therefore, of the passing of the Colonial Laws Validity Act 1865, section 5 was, so far as its language extends, an absolute charter, no matter what the British Legislature had previously said. It is as if the Imperial Parliament had said: ‘Notwithstanding anything contained in or omitted from the constitutional law of any Colony, be it enacted’.

Also in Trethowan’s Case Sir Owen Dixon said that upon the subjects with which it deals, the statement of the law contained in the Colonial Laws Validity Act was meant to be definitive and also in his article entitled “The Law and the Constitution” he said that the object in effect of the Colonial Laws Validity Act was to amplify and strengthen the powers of the colonial legislatures, but in doing so it defined in reference to the matters with which it is concerned the authority such legislatures should have. The Colonial Laws Validity Act confers upon all self‑governing colonies a power of constitutional alteration.

This grant of power perhaps should be considered as an exhaustive statement of the legislature’s authority over the two subjects with which it deals. The subjects are: first, constituting courts of justice and, second, the Constitution, powers and procedure of the legislature itself. It declares that:

Every colonial legislature shall have, and be deemed at all times to have had, full power -

and authority respecting these matters, but by a proviso it requires that the laws exercising that power shall be “passed in such manner and form”, et cetera.

So that leads to our first submission essentially that section 5 of the Colonial Laws Validity Act did not empower the Parliament of the colony of New South Wales to legislate to invest courts outside the colony with jurisdiction and, accordingly, the legislative power to vest State jurisdiction in a federal court is a Commonwealth power under 51(xxxviii) and not a State power. As such, a power was one which, at the establishment of the Constitution, could be exercised only by the Parliament of the United Kingdom.

Could I then deal with some arguments which have been raised against that.

KIRBY J: Do you submit that nothing has changed since 1901 in that regard?

MR DOUGLAS: Not in that respect, your Honour, because of section 107 of the Constitution.

KIRBY J: But apart from section 107?

MR DOUGLAS: Apart from section 107, no, nothing has changed.

KIRBY J: A lot of reality has gone under the bridge since 1901.

MR DOUGLAS: No, but section 107 is still in the Constitution.

GUMMOW J: But is this not the conceptual problem in a way, Mr Douglas? Looking at your paragraph 21, you may be quite right when you say:

the Colonial Laws Validity Act did not empower the Parliament of the Colony of New South Wales to legislate to invest courts outside the colony -

of New South Wales -

with jurisdiction.

But then it is the next step, “Accordingly”. I do not follow that because the Federal Court is not a court outside New South Wales. It is everywhere, including New South Wales, so there is a conceptual different dimension involved really, and that comes out of the Constitution.

MR DOUGLAS: Yes, I understand that, your Honour. In other words, it does leap over a few steps in the argument.

GUMMOW J: You may well be right as to what flows from the structure of the Constitution and the creation of the Federal Court system, but I cannot see how in the answer to that a construction question arises from the Colonial Laws Validity Act which is just not addressed to this matter - it could not have been addressed to this matter.

MR DOUGLAS: The powers of the colony flow from the Constitution Act plus the Colonial Laws Validity Act and they obviously did not address what would happen under the Commonwealth of Australia once it was established in 1901. To the extent, for example, that the United Kingdom Parliament could have established additional courts elsewhere within Australia or even within New South Wales itself which were not part of the three arms of government of New South Wales, well then at least pubescently that conception - the power to invest jurisdiction in such a court, even though not yet created or even though the Constitution under which it was created was not yet part of the law of Australia, is something which was vested in the United Kingdom Parliament, on one view of the matter.

KIRBY J: Is it vested in the United Kingdom Parliament now?

MR DOUGLAS: No, it is ‑ ‑ ‑

KIRBY J: That is because of the Australia Act?

MR DOUGLAS: No, that is because of 51(xxxviii) of the Constitution, your Honour. The Australia Act - - -

KIRBY J: Where is it vested now? Where is the legislative power to do what has been done vested? Where does it exist? It must exist somewhere.

MR DOUGLAS: In the Commonwealth of Australia under section 51(xxxviii) of the Constitution, your Honour. The argument has been raised against us that in some way now the States have this power and that is based upon section 2(2) of the Australia Act. You will find that in our bundle, in its various forms, and the Commonwealth Act appears under divider 11. You will see that ‑ ‑ ‑

GUMMOW J: But section 2(2) is subject to section 5.

MR DOUGLAS: That is correct, your Honour, yes, but it has been relied upon by some of those who - in contradiction of the argument which we have put up. So the point your Honour makes is the first point I propose to make. So section 2(2) says:

It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative power that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.

And as Mr Justice Gummow has pointed out, that is then said to be subject to the Constitution in section 5 which provides that:

Sections 2 and 3(2) above -
(a) are subject to the Commonwealth of Australia Constitution Act and the Constitution of the Commonwealth.

KIRBY J: You are referring there to the United Kingdom Act?

MR DOUGLAS: I was referring to section 2 of the Australia Act, but each of the Acts is in the same form, your Honour.

KIRBY J: I realise that, but which one do you rely on?

MR DOUGLAS: Relevantly, all of them, I suppose.

KIRBY J: I am sorry?

MR DOUGLAS: We do not rely upon any of them, truly, but they are relied upon against us and I am seeking to deal with the argument which is put against us that, in some way, because of section 2(2), the States now have the legislative powers that the Parliament of the United Kingdom might have exercised to confer jurisdiction upon other courts.

KIRBY J: In so far as anybody relies on the United Kingdom Act, I remain to be convinced that the United Kingdom Parliament had any business enacting such legislation in respect of Australia in 1986.

MR DOUGLAS: Probably for the reason, your Honour, that in 1901 in the Constitution in section 51(xxxviii), our argument is that they then gave to the Commonwealth all of those powers to be exercised subject to the concurrence of the States. That is established, as we would see it, by the recent decision of this Court - although not all that recent - in Port MacDonnell Professional Fishermens Association v South Australia (1989) 168 CLR 340, and the relevant ‑ ‑ ‑

GUMMOW J: But implicit in all of this is the notion that section 51(xxxviii) is exclusive power.

MR DOUGLAS: To the Commonwealth?

GUMMOW J: Yes.

MR DOUGLAS: Yes, your Honour, and it is really that passage commencing on page 376 where it says:

The third preliminary problem of construction is a more significant one for the purposes of the present case. It concerns the phrase “within the Commonwealth”. It has sometimes been suggested -

reference is given -

that the effect of that phrase is to exclude laws having an extra‑territorial operation from the scope of par. (xxxviii). So to construe par. (xxxviii) is, however, to override the evident purport of its words and to ignore the purpose which it was intended to serve and which is reflected in the words “within the Commonwealth”.
It is legitimate to have regard to the Convention Debates for the purpose of identifying the subject to which a provision of the Constitution was addressed. That subject was, in the case of s. 51(xxxviii), clearly identified by Griffith, the Chairman of the Constitutional Committee responsible for the drafting of the clause, in the course of the 1891 Convention Debates. On 18 March 1891, speaking on a proposal by Sir George Grey that “provision should be made in the federal constitution which will enable each state to make, vary, or annul its constitution”, Griffith later said:

“I certainly agree with those who have said that after the establishment of a federal constitution in Australia there should be no necessity to refer to the British Parliament to do anything for Australia, either in changing a constitution or in anything else.

And then reading down, it says:

On 31 March 1891, Griffith referred to and expanded upon these earlier remarks in explaining the clause which was to become par. (xxxviii):
“We are aware, sir, that there are many things now upon which the legislatures and governments of the several Australian colonies may agree, and upon which they may desire to see a law established; but we are obliged, if we want that law made, to go to the Parliament of the United Kingdom, and ask them to be good enough to make the law for us; and when it is made we will obey it. I contend, for myself, as I have had an opportunity of saying before, that after the federal parliament is established anything which the legislatures of Australia want done in the way of legislation should be done within Australia, and the parliament of the commonwealth should have that power. It is not proposed by this provision to enable the parliament of the commonwealth to interfere with the state legislatures; but only, when the state legislatures agree in requesting such legislation, to pass it, so that there shall be no longer any necessity to have recourse to a parliament beyond our own shores when once this constitution has been passed by the Parliament of the United Kingdom.”
In other words, the primary subject to which par. (xxxviii) was addressed was the perceived need to ensure that legislative powers necessary for the purposes of the new nation could be exercised locally notwithstanding that, prior to federation, they were beyond the competence of local legislatures.

Now, as we would see it, an argument that section 2(2) of the Australia Act confer upon the States any legislative powers which were not vested in them at Federation would involve an augmentation of State power beyond that which existed at the time of Federation and, if one considers the effect of that as subject to the Constitution, that would not be permitted because of the provisions of section 107. So, in reality, such powers, if they did exist, were powers which the Commonwealth could exercise with the concurrence of the States under 51(xxxviii), but section 2(2) of the Australia Act certainly does not confer such powers upon the States.

BRENNAN CJ: Mr Douglas, I understand your argument if one takes the first step, and that is that there was prior to Federation a limitation on State legislative power such that, leaving aside the question of the establishment of courts, the States could not invest State judicial power in a court other than one of their own creation. But I have not seen a foundation for the establishment of that basic proposition other than the inference which you seek to draw from the 1855 Act and section 5 of the Colonial Laws Validity Act. Are those the only foundations on which that proposition rests?

MR DOUGLAS: Those are the foundations of my argument, your Honour, and if I do not persuade your Honour by reference to that and by reference to what appears in the submissions from the learned Solicitor‑General for the State of Western Australia where he refers to some other colonial experience, then I will not persuade your Honour on that issue.

BRENNAN CJ: Yes.

McHUGH J: How far does you argument go in relation to the administration of justice? For example, section 581 of the Corporations Law enables the court of a State to request the court of another country that has jurisdiction in respect of company matters to act in aid of, and be auxiliary to the administration of that company matter. There is a section in the English companies legislation, for example, which enables a judge of the Companies Court to exercise that jurisdiction. Does your argument mean that a section like section 581 is invalid in so far as it purports to request courts in other jurisdictions to exercise their jurisdiction in aid of ‑ ‑ ‑

MR DOUGLAS: Your Honour, such provisions have traditionally to be found in the administration of justice throughout the British Commonwealth, and as we would see it, there is a distinction to be drawn between such a provision and the provision which confers the whole of the jurisdiction of the court to one colony upon the court to another colony. They are powers which, as a matter of comity, nation States have exercised so as to facilitate the administration of justice within their own country, but we would say that it is probable that such powers were contemplated within the plenary grant of power which was given to the colonies because it can be seen that such powers were capable of facilitating the administration of justice within New South Wales. Once your Honour gets me to that point then you may say it is but a small step to actually confer jurisdiction upon other States, but we would say it is a very large step and one which was not contemplated by the terms of the State Constitutions, particularly read in light of section 5 of the Colonial Laws Validity Act.

McHUGH J: Thank you.

TOOHEY J: But once section 5 goes, why is it not appropriate just to fall back on the general enactment in the State constitutions, that the State has power to make laws for the peace order and good government.

MR DOUGLAS: Inherent in your Honour’s question to me is that section 5 has somehow disappeared but as we would see it, it is still there, notwithstanding the Australia Acts, at least in so far as this particular part of it is concerned. I mean in so far as the doctrine of colonial laws repugnancy was repealed by the Australia Act, yes, it is gone, but as we would read the Australia Act, it has not gone to the extent that it delimits the constitutional powers of the State of New South Wales as at the time of Federation which were continued under section 107.

GUMMOW J: Mr Douglas, do you make any complaint about section 7 of the New South Wales Corporations Act 83 of 1990 in so far as it says:

The Corporations Law set out in section 82 of the Corporations Act ‑

which is defined as being the Commonwealth legislation with reference to the ACT ‑

as in force for the time being:

applies as a law of New South Wales.

Does that mean that the State Parliament, as it were, delegates - if that is quite the word - to the Federal Parliament the making of further laws to change the Corporations Law and therefore the New South Wales law?

MR DOUGLAS: Your Honour asked me if I make any complaint and obviously we do not in our submissions but when your Honour points out the situation to me, obviously there is a problem, as we would see it, in that formulation because effectively ‑ ‑ ‑

GUMMOW J: I just wondered if that was not bound up with what you have been putting in your other submissions, some complaint about section 7 in its ambulatory adoption of some other law somewhere else.

MR DOUGLAS: Yes, well, I mean a point we have made in relation to the ambulatory nature of this legislative scheme emerges from another part of our submissions where we said that section 56(2) of the Federal Act, in so far as it picks up the State jurisdiction, that has an ambulatory effect because the jurisdiction which the Federal Court exercises, as a result of the consent by section 56(2), depends upon the enactments of the State Parliament from time to time and so its context has changed and it could be greater or less. This would seem to be the reverse face of that argument in the sense that the New South Wales Parliament is effectively saying that the Corporations Law in force in New South Wales for the time being will be that which is contained in the Corporations Law as set out in section 82 of the Corporations Act as at the time of this enactment. But if that Corporations Act is amended by the Commonwealth Parliament in any way, that then becomes part of the law of New South Wales in some way.

GUMMOW J: Unless we in New South Wales change section 7, I suppose.

MR DOUGLAS: When your Honour says “change”?

GUMMOW J: To produce a result that any amendment to the Commonwealth Act which is unacceptable to them is not picked up by section 7.

MR DOUGLAS: There is a question as to how that is determined, the acceptability of it. Your Honour, we do see that as being a problem because effectively the New South Wales Parliament seems to be delegating its legislative power to the Commonwealth Parliament to exercise from time to time, without consultation or in any other way referring to the State Parliament. Also, your Honour, it does have some relevance to the propositions which we were putting in this sense, because if they were to do that they could only do it pursuant to section 51(xxxvii) of the Constitution, and that has not been done.

BRENNAN CJ: And is what?

MR DOUGLAS: That has not been done, your Honour. Another matter which is raised against us in relation to the - just going back to the main thread of my argument - the power to confer jurisdiction is the experience with the Privy Council, because there were local Acts which sought to regulate in certain ways the jurisdiction which the Judicial Committee of the Privy Council exercised under the 1833 and 1844 Acts. They were referred to by - I think the leading judgment is that of the former Chief Justice Sir Harry Gibbs in The Commonwealth of Australia v Queensland (1975) 134 CLR 298. These are passages which some of those opposed to us seek to rely upon as being examples of circumstances in which a colonial legislature conferred jurisdiction, so it is said, upon a court other than a New South Wales court.

The relevant part of the judgment of Sir Harry Gibbs, which was the leading judgment in this case, appears at page 312 to 313, and I think probably reading from that passage, commencing:

Another example of an appeal heard by the Judicial Committee under local legislation is Attorney-General (Queensland) v Gibbon. In that case an appeal was brought to the Judicial Committee under section 24 of the Constitution Act of 1867 (since repealed) which enabled the Legislative Council of Queensland to hear and determine any question arising respecting a vacancy in that Council on the occasion of any of the matters mentioned in section 23 of that Act. The section went on to give a right to appeal from the determination of the Legislative Council to Her Majesty and to provide that the judgment of Her Majesty, given with the advice of her Privy Council thereon, should be final and conclusive to all intents and purposes. Their Lordships in that case did not discuss the question of jurisdiction but proceeded to hear and allow the appeal without raising any doubts as to their power to do so. More recently their Lordships have again recognized that appeals to the Judicial Committee may be entertained under the provisions of local legislation: British Coal Corporation v The King; Ibralebbe v The Queen. And in Woolworths (New Zealand) Ltd v Wynne, the New Zealand Court of Appeal held that it was competent to grant leave to appeal to the Judicial Committee under a local statute passed before New Zealand had adopted section 3 of the Statute of Westminster.
In the light of these authorities and on principle, I would hold that legislation passed by a State for the purpose of conferring jurisdiction on the Judicial Committee is not open to objection on the ground that it fails to bear a sufficient relationship to the peace, welfare and good government of the territory of the State. Further, it would follow from the authorities mentioned that the legislation of a State, enlarging the powers and jurisdiction of the Judicial Committee, should not be regarded as repugnant to the existing statutes of the United Kingdom which confer powers and jurisdiction on the Judicial Committee. In my opinion, therefore, the provisions of section 3 and 4 of the Act are not objectionable on either of these suggested grounds. It remains to consider a further objection to their validity.

As we would see it, those remarks have to be seen against the background of the authorities which were relied upon by Sir Harry Gibbs and, in particular, the decision of Ibralebbe alias Wattan. I have just got some copies of that decision to hand up. We did not have it on our list of authorities. It is (1964) Appeal Cases.

GUMMOW J: That says the Judicial Committee is part of the judicial structure of Nigeria, does it not?

MR DOUGLAS: Effectively, yes, your Honour. And also, as we would see it, your Honour, those cases, properly understood, are cases where the actual jurisdiction was conferred by the 1833 Act and the 1844 Act and there was, for whatever reason, recognition granted to colonial statutes which related to the jurisdiction which was thus conferred. But they are not cases which would support the view that colonial legislature could grant jurisdiction to the Privy Council. The jurisdiction which the Privy Council had was a prerogative to enter any appeals with leave and - or, even if they are to be understood as cases in which the local legislature was permitted to grant jurisdiction to the Privy Council, it has to be seen in the light of what Justice Gummow said, that effectively it is part of the judicial system of the State. Then, if you go to page 915 it says:

Secondly, their Lordships must admit their inability to detect in what respect the reasoning of the Chief Justice, if valid with regard to criminal appeals, would not also apply to appeals to the Judicial Committee in civil matters arising in Ceylon. There is no doubt that the Chief Justice regarded his opinion as limited to appeals in criminal matters. He says so explicitly in one of the concluding passages of his judgment. But how does his reasoning apply with less force to civil than to criminal appeals? The latter, if allowed at all, are allowed by a grant of special leave: civil appeals, on the other hand, are regulated in general by the rules as to value and subject-matter which are at present contained in the schedule to Chapter 100 of the 1956 edition of the Revised Legislative Enactments of Ceylon.....These rules (see rule 32) are expressed as being subject to the right of Her Majesty in Council to admit any appeal on such conditions as may appear to her to be appropriate, and would be understood, failing any new interpretation required by the judgment of the Chief Justice, as recognising and sanctioning her right to grant special leave to appeal in any proper civil case whether or not within the limits allowed “as of right.” But each such appeal, civil or criminal, is, if admissible at all, admissible as an appeal to Her Majesty’s prerogative right to act as a final resort in the administration of justice, and there is not for this purpose any significant distinction between those that are entertained only by special leave and those which are regulated and admitted in accordance with a fixed set of rules, whether emanating originally from Order in Council, charter or letters patent or legislation local to the territory itself. This point has already been alluded to and explained by their Lordships’ Board in Attorney‑General for Ontario v. Attorney‑General for Canada, where it is said by Earl Jowitt L.C. with regard to appeals by special leave and appeals “as of right” - “fundamentally in both classes of case the appeal is founded on that prerogative which, as long ago as 1867 in Reg. v. Bertrand was described as ‘the inherent prerogative right, and, on all proper occasions, the duty, of the Queen in Council to exercise an appellate jurisdiction.’”

So, as we would see it, those cases stand in a different category of case to the situation which we are here concerned with.

BRENNAN CJ: How do you explain Attorney‑General (Queensland) v Gibbon?

MR DOUGLAS: That is a case, as we would see it, your Honour, where the local legislature gave jurisdiction to - it may have purported to give jurisdiction to the Privy Council, but effectively the jurisdiction which the Privy Council exercises is a jurisdiction which is conferred under the 1833 and 1844 Acts.

BRENNAN CJ: Do you mean the 1833 and 1844 Acts gave jurisdiction in matters other than appeals from courts of law? This was an appeal from the Legislative Council of Queensland.

MR DOUGLAS: Yes, I take your Honour’s point. If it needs to be explained, it is to be explained by virtue of the fact that for those purposes the Privy Council was really part of the Queensland system of justice at the time when the Act was passed.

BRENNAN CJ: Be it so, but that would not by itself have conferred upon the Queensland Parliament the power to confer additional jurisdiction on the Privy Council because the Privy Council’s status on that hypothesis is derived from the 1833 and 1844 Acts.

MR DOUGLAS: But it is nonetheless part of the system of Queensland courts as distinct from - and so it is a law which grants power to a court which is part of that system of courts.

BRENNAN CJ: Why is it that, if one applies that approach, the Federal Court is not then seen as part of the structure of New South Wales courts?

MR DOUGLAS: No, because the Federal Court is a creature of the Commonwealth Constitution.

BRENNAN CJ: Be it so; the Privy Council is a creature of the British Constitution.

MR DOUGLAS: I think I have put what I would put in contradiction to what your Honour has put to me, and I do not think I can really elaborate on it any further.

BRENNAN CJ: Yes, thank you.

MR DOUGLAS: One other argument is raised against us in relation to this point, and that is the effect of section 3 of the Australia Act, because the Commonwealth does not embrace the proposition that section 2(2) of the Australia Act effectively increased the powers of the States, but what they say is that section 3 of the Australia Act has the same effect as that intended for by the States, and that is that under section 3(1):

The Act of the Parliament of the United Kingdom known as the Colonial Laws Validity Act 1865 shall not apply to any law made after the commencement of this Act by the Parliament of a State.

That section or that subsection, subsection (2) of that section, are based upon section 2 of the Statute of Westminster. As we would see it, what that provision relates to is the doctrine of repugnancy. It does not effect any repeal of a Colonial Laws Validity Act and it is not intended, as we would see it, to effect any limitation which the Colonial Laws Validity Act would have placed upon the State Constitution as at the time of Federation.

If I could just go back to a matter which your Honour Chief Justice Brennan raised in relation to a Privy Council appeal, and if your Honour were to go to divider 12 of the material which you have before you, your Honour will see that the jurisdiction which was granted to the Privy Council under the 1833 Act went beyond appeals from courts because ‑ ‑ ‑

McHUGH J: It did but, historically, it always regarded itself as a court in respect of judicial matters, and if a matter was referred to which was not strictly judicial then it would be sent off to some committee.

MR DOUGLAS: But, nonetheless, under the actual statute itself, in section 3 it provided:

All appeals or complaints in the nature of appeals whatever, which, either by virtue of this act, or of any law, statute, or custom, may be brought before his majesty or his majesty in council -

et cetera:

shall from and after the passing of this act be referred by his majesty to the said judicial committee of his privy council.

As we would see it there is no limitation of any actual imperial statute itself.

McHUGH J: No, I think that is right but as a matter of practice the court itself could only sit as a court in respect of judicial matters otherwise political matters went off to committees.

MR DOUGLAS: We would also make reference to the generality of the power contained in section 4 which:

It shall be lawful for his majesty to refer to the said judicial committee for hearing or consideration any such other matters whatsoever as his majesty shall think fit; and such committee shall thereupon hear or consider the same, and shall advise his majesty thereon in manner aforesaid.

As we would see it there is no lack of jurisdiction granted by the imperial law and to the extent that section 29 of the Queensland Act sought to avail itself of the generality of that jurisdiction, then it can be seen to be in a different category of case than that which we are presently confronted with.

GUMMOW J: Now, Mr Douglas, the Reg v Queensland Case 134 CLR which you took us to in fact was decided by reference to what was seen as implicit in Chapter III, was it not?

MR DOUGLAS: Yes, it was, your Honour. That was the real basis of the decision.

GUMMOW J: Do not we have to get there in this case?

MR DOUGLAS: Sorry, your Honour.

GUMMOW J: Do not you have to get to Chapter III and what is implicit in Chapter III.

MR DOUGLAS: I was just about to go there, your Honour.

BRENNAN CJ: It is all very interesting knowing what was happening in 1833 when the Privy Council is putting its modern basis and was not the committee dealing with appeals in the plantations and so on.

MR DOUGLAS: Your Honour, moving on then - - -

BRENNAN CJ: Just before you do, perhaps I might just give the reference to a judgment of the Privy Council in Hallam v McKenna (1926) IR,curiously enough, at page 402 in which the proposition which Justice McHugh was putting to you is embraced by their Lordships.

MR DOUGLAS: I will read that, your Honour, after I have dealt with Chapter III. We then move on to the question of Chapter III and that really takes us to our submissions at page 11.

GUMMOW J: In the course of doing that, and if you are right about that, you then have to show, do not you, that section 15C of the Acts Interpretation Act has no operation here in conjunction with section 56(2), is it, of the Commonwealth Act to create a species of matter as a law under 76(ii)?

MR DOUGLAS: Yes. We have read the submissions which have been put against us by the Commonwealth and by the States and, as we understand it, no one seeks to rely upon the provisions of section 15C of the Acts Interpretation Act.

McHUGH J: I know, but you may have two arguments to meet. There may be very considerable doubts as to whether the cross-vesting legislation is constitutional. It may be another question altogether as to whether or not it is invalid in so far as the Corporations Law is concerned.

GUMMOW J: These being insolvent trading corporations, from what I can see.

MR DOUGLAS: Again, I think, only very obliquely does anyone seek to support the law as being an exercise of power under section 51(xx) of the Constitution.

McHUGH J: That may be because of the way these cases came up. We had the three cases originally and everybody is concentrating on the general scheme, but this is quite a narrow case. It is possible that it could be decided adversely to you without determining the validity of the cross‑vesting scheme generally.

MR DOUGLAS: I agree with that. In other words, such an argument could be put against us, but it has not been put against us and I would rather see it put against us before I answer it. But so far as section 15C is concerned, which is the first matter I was asked to deal with, it provides and it is set out in our written submissions at paragraph 26 that:

‘Where a provision of an Act, whether expressly or by implication, authorizes a civil . . . proceeding to be instituted in a particular court in relation to a matter:
(a) that provision shall be deemed to vest that court with jurisdiction in that matter;
(b) except so far as the contrary intention appears, the jurisdiction so vested is not limited by any limits to which any other jurisdiction of the court may be subject;

In relation to the legislative scheme which we are here dealing with, the particular provisions are set out in the legislative handbook which we have provided to the Court, and under divider 14 your Honours will find section 56(1) which provides that:

Nothing in this or any other Act is intended to override or limit the operation of a provision of a law of a State or Territory relating to cross‑vesting of jurisdiction with respect to matters arising under the Corporations Law of the State or Territory.
(2) The Federal Court or the Supreme Court of the Capital Territory may:
(a) exercise jurisdiction (whether original or appellate) conferred on that Court by a law of a State corresponding to this Division with respect to matters arising under the Corporations Law of a State; and
(b) hear and determine a proceeding transferred to that Court under such a provision.

Then under the State Act, which is in the next divider, your Honours will see section 42(3):

Jurisdiction is conferred on the Federal Court of Australia with respect to civil matters arising under the Corporations Law of New South Wales.

So as we would read those provisions, the jurisdiction is conferred by the State law, but for federal law seeks to authorise the Federal Court or the Supreme Court of the Capital Territory to exercise that jurisdiction whether original or appellate. The jurisdiction which is picked up by that conferral, or that approval, is not only the jurisdiction which existed under the Corporations Law of a State as at the time when section 56 was enacted, but it would also include any subsequent accretions to or deletions from the jurisdiction which was contained within the legislation of the State.

So to that extent the Commonwealth law has an ambulatory effect in that it allows the State Parliament to increase or subtract from the jurisdiction which is thereby conferred upon the Federal Court without reference to the Commonwealth Parliament. That may be one reason why this may not be a law pursuant to section 51(xx).

Section 15C is not relied upon by anyone to suggest that the Commonwealth law properly understood ought to be seen as one which expressly or by implication itself authorises the civil proceeding to be instituted in the particular court and therefore vests that court with jurisdiction. Were it to be so interpreted, that is were section 56 to be interpreted in that way, it could be seen to be a law of the Parliament which, if we are right in our other submissions, does not vest jurisdiction in the Federal Court pursuant to the provisions of 76(2) and 77(i) of the Constitution. To the extent that section 15C would seek to enable section 56 to vest jurisdiction arising under the State law in the Federal Court, as we would see it, it would be a law which purported to invest original jurisdiction in those State matters in the Federal Court contrary to the provisions of Chapter III. There are, as this Court is well aware ‑ ‑ ‑

GUMMOW J: But the State law would be upon the matter of concurrent power, unlike the system with the other cross‑vesting legislation.

MR DOUGLAS: Because it is an insolvent corporation and so you have the insolvency provision in the Commonwealth Parliament and you have the general legislative power ‑ ‑ ‑

GUMMOW J: Well, at least that.

MR DOUGLAS: And the corporations power as well.

GUMMOW J: Yes.

MR DOUGLAS: But a lot depends upon the character of the law, does it not, your Honour, because if in fact all the Commonwealth law does is pick up whatever is there in the State law from time to time, it is not really an exercise, as we would see it, of Commonwealth legislative power.

GUMMOW J: If that is right, section 79 of the Judiciary Act is invalid.

MR DOUGLAS: In this particular case, without ‑ ‑ ‑

GUMMOW J: No, no, generally.

MR DOUGLAS: Yes, generally, without dealing with the validity of a scheme.

GUMMOW J: If you embrace a proposition of that width you run into trouble with section 79 of the Judiciary Act which, in certain circumstances, picks up the whole bundle of the States substantive procedural law.

MR DOUGLAS: Your Honour is putting against me that section 79 could pick up a State law without reference to section ‑ ‑ ‑

GUMMOW J: I am not talking about section 79 in this case, I am just talking about your idea that it is not an exercise of federal legislative power ‑ ‑ ‑

MR DOUGLAS: Yes. If it is not an Act ‑ ‑ ‑

GUMMOW J: ‑ ‑ ‑ because it picks up an omnibus. What I say to you is, if that is right, how does that square with section 79 in its omnibus operation of picking up a whole complex of State law to decide a question of tort in an action against the Commonwealth?

MR DOUGLAS: I will have to take that question on notice.

BRENNAN CJ: What do you mean by jurisdiction being either State of federal jurisdiction?

MR DOUGLAS: Federal jurisdiction is that jurisdiction which is to be found in sections 73, 75 and 76 of the Constitution.

BRENNAN CJ: What is it that is to be found in 73, 75 and 76?

MR DOUGLAS: 73 is the appellate jurisdiction.

BRENNAN CJ: I appreciate that, but what is it that distinguishes State from federal jurisdiction?

MR DOUGLAS: State jurisdiction is jurisdiction which arises under a law of the State. Federal jurisdiction is that which is its - those subject matters set out so far as original jurisdiction is concerned in section 75 and 76 of the Constitution, and so far as appellate jurisdiction is concerned under section 73 of the Constitution.

BRENNAN CJ: Is your argument that there is no federal legislative power to vest in the Federal Court jurisdiction to decide issues arising under State law.

MR DOUGLAS: So far as this particular issue is concerned, your Honour, there is federal legislative power possibly to be found in section 51(xxxviii) if that has not been exercised.

BRENNAN CJ: If it was under 51(xxxviii) and that power had been exercised, then it would be federal jurisdiction pursuant to the exercise of that power, would it not?

MR DOUGLAS: That is one view of it, your Honour, otherwise it may stand in a separate category, like the Territories’ cases.

BRENNAN CJ: It seems to me there are two aspects to jurisdiction: one is the power to make a determination; the other is the power to execute the order, and that those two aspects may bear consideration when there is a question of the vesting of jurisdiction in a court. However, you proceed with your argument, Mr Douglas.

MR DOUGLAS: As we would see it, if we are right in the other limbs of our argument, what is being sought to be done here under sections 56 and the relevant provisions of the State legislation, is to vest a matter arising under a law of a State and jurisdiction in respect of that matter in the Federal Court. To that extent, its original jurisdiction, and the only original jurisdiction which can be invested in the Federal Court, being a Chapter III court, is jurisdiction under sections 75 and 76 of the Constitution. We recognise that there are the Territories’ cases, but properly analysed, those cases as we would see it, have only determined that the courts of a Territory are not federal courts and that they are not exercising federal jurisdiction.

In Spratt v Hermes there were some views expressed as to whether the Parliament could invest jurisdiction - that is, original jurisdiction - in the High Court under the Constitution, and three of the Justices in Spratt v Hermes were of the view that it could be done - I think that was Justices Barwick, Kitto and Menzies. Justices Windeyer and Owen were of a different view and Mr Justice Taylor did not express any view on that at all. That matter was subsequently taken up in Capital TV and Appliances v Falconer, which again was a case concerned with whether the Australian Capital Territory Supreme Court was a Federal Court or a court exercising federal jurisdiction. Whilst some reference was made to the question whether original jurisdiction could be vested in a Federal Court, neither of those decisions are authoritative for the proposition, but original Territories’ jurisdiction can be vested in a Federal Court. So far as we are aware, apart from those cases, there is no recognised exception to the concept of what original jurisdiction can be vested in a Federal Court.

GUMMOW J: As I understand it, the cases in your paragraph 31 are cases where the Court has been dealing with attempts of the Federal Parliament to act in certain ways and it has been said, “No, the Federal Parliament is bound by the limitations in Chapter III as to the species of courts and what sort of matters it can give them to decide. Your proposition has to be, does it not, that it would be odd if the national Parliament being so inhibited the State Parliament would liberate it?

MR DOUGLAS: Particularly bearing in mind that there is express provision in the Constitution under 77(iii) for the federal Parliament to vest State courts with federal jurisdiction. There is also a line of authorities which - there is not much reasoning contained within them, but they are footnoted in footnote 41 of our submissions, particularly the decision of the Commissioner of Stamp Duties v Owens 88 CLR 168, where a Full High Court considered the question whether the State Parliament of New South Wales could vest jurisdiction in the Suitors Fund Act of New South Wales in the High Court. If one looks at that case, at page 169 ‑ ‑ ‑

GAUDRON J: But it was not whether it could, was it, so much as whether it did?

MR DOUGLAS: Whether it did, yes, competently. I think the second paragraph on page 169 says:

The relevancy of this sub-section is only to the interpretation of the provisions of the Act, for no previous certificate was or could have been granted to the present respondent now applying to us for a certificate. Section 6 operates to impose upon the courts to which it applies a duty to hear and consider applications for indemnity certificates and to exercise a judicial discretion in granting or refusing them. It is apparent that this Court, the jurisdiction of which depends upon the Constitution of the Commonwealth and the laws validly made thereunder, could not in such a matter be affected by an exercise of the authority of the State legislature.

So, whilst the question was as your Honour puts it to me, nonetheless they answered it by reference to what they perceived to be the role which they played in the federal structure:

It is therefore not a court to which s. 6(1) of its own force can apply.

That case has been referred to with approval on a number of subsequent occasions in the cases referred to in footnote 41 of our submissions. Another example was given by, I think, the respondents in their submissions of the High Court exercising jurisdiction as a colonial Court of Admiralty. But as we see it, whilst that jurisdiction at one stage depended upon section 30A of the Judiciary Act, after the repeal of that section it is really a case of the High Court exercising jurisdiction conferred upon it by another imperial enactment.

GUMMOW J: Yes, but the question is whether the reasoning in that can bear consistently with the Queensland case.

MR DOUGLAS: Yes, that is true, your Honour.

GUMMOW J: It seems to be saying as regards the imperial legislation, as regards imperial activity, Chapter III is implicitly exhaustive.

MR DOUGLAS: Yes, your Honour. A reference to the history of that can best be found I think in the decision in McIlwraith McEacharn Ltd v Shell Co of Australia Ltd 70 CLR 175. The relevant history can be found in the judgment of Chief Justice Latham at pages 188 to 189. Your Honour Justice Gummow has also considered the matter in a number of judgments at first instance, one of which is a decision of Grace Bros v Magistrates.

GUMMOW J: They are very interesting, but I am not sure they are decisive.

MR DOUGLAS: No, but I thought I would give your brothers a reference to it, your Honour. At pages 498 to 499 ‑ ‑ ‑

BRENNAN CJ: What is the reference?

MR DOUGLAS: It is 84 ALR 492 at pages 498 to 499, and also in a decision of ATC v Film Funding & Management Pty Ltd (1990) 24 FCR 595 at pages 598 to 599. In that last decision your Honour expressed a view on a matter which is dealt with at length in the respondent’s submissions in this case, and that is whether the Commonwealth and the States can do co‑operatively what they cannot do individually. Your Honour expressed the view that:

To speak of the law of one legislature as conferring jurisdiction, and the law of another legislature as allowing it to be exercised, rather suggests a symbiotic relationship between the two laws, neither having its own independent life. The result would be greater than its constituent elements and, to put it metaphorically, a stream rising higher than either of its two sources. In such a case, is it accurate to describe each law as operating merely in aid of the other and thus as operating “concurrently”, that is to say each in its own field?

If we are right in what we say about the constitutional powers of the New South Wales Parliament or if we are right about what we say in relation to Chapter III, then we would see that statement as supporting the view that you cannot by a co‑operative legislative scheme overcome the limitations which are inherent in both of the State and the Commonwealth Constitutions.

There is a case which has some bearing on that which is referred to in the footnotes of our submissions, which is the case of Magennis v The Commonwealth 80 CLR 382, which was a case of a joint legislative scheme by the Commonwealth and the States to acquire land for soldier settlement. Effectively, what the scheme provided for was for the States to acquire the land and it was thought thereby that the acquisitions would escape from the provisions of the Commonwealth Constitution in relation to acquisition on just terms. That was dealt with by the Court, Sir Owen Dixon being in dissent but, for reasons which we do not think impact upon the analogy which we would seek to draw out of this decision, by Chief Justice Latham at page 401 where he says:

The constitutional provision is not limited in terms to laws providing for the acquisition of property by the Commonwealth itself. The words are general - “with respect to the acquisition of property.” It is obvious that the constitutional provision could readily be evaded if it did not apply to acquisition by a corporation constituted by the Commonwealth or by an individual person authorized by a Commonwealth statute to acquire property. Further, the present case shows that the constitutional provision would be quite ineffective if by making an agreement with a State for the acquisition of property upon terms which were not just the Commonwealth Parliament could validly provide for the acquisition of property from any person to whom State legislation could be applied upon terms which paid no attention to justice. The question whether the constitutional requirement applies to acquisitions in pursuance of Commonwealth law other than acquisition by the Commonwealth itself was mentioned in -

a number of cases.

The other passages which we would refer to but not read is Mr Justice Rich at page 406 agreed with Mr Justice Williams; at page 409 and page 411 Sir Owen Dixon expressed the reasons for his dissent. At page 413 Mr Justice McTiernan expressed his views which were in agreement with Sir Owen Dixon and also at page 416. At page 419, Mr Justice Williams said:

Whenever, therefore, the Commonwealth Parliament legislates with respect to the acquisition of property for a purpose in respect of which the Parliament has power to make laws, the legislation must provide just terms, that is the legislation must provide that the owner shall receive the full equivalent in money for the value of the property of which he is deprived. The agreement attempts to escape this constitutional requirement by providing that the State and not the Commonwealth shall make the acquisition and become the owner of the land. The method of acquisition provided for by section 4 is that where an advisory board reports that any land is suitable to be acquired for closer settlement the Governor may, subject to the Act, purchase it by agreement from the owner; or, failing such agreement, resume it under the Act. Before resuming any land, the Governor shall -

et cetera. He then goes on at page 422 to say:

It is apparent that the agreement is a joint scheme.....to settle on the land discharged members of the Forces.

Then at page 423 he expresses his opinion at the relevant paragraph of the Constitution, (xxxi):

applies to all Commonwealth legislation the object of which is to acquire property for a purpose in respect of which the Commonwealth Parliament has power to make laws. It is immaterial whether the acquisition is to be made by the Commonwealth or some body authorized to acquire property by the Commonwealth or by a State by agreement with the Commonwealth. The Commonwealth legislation is invalid unless it provides for the acquisition of the property on just terms.

Mr Justice Webb was of a similar view at page 429 to 430. By analogy, we would say here that if there are the restrictions inherent in the Commonwealth Constitution which we say would point to, in our submissions, then you cannot get around that by effectively agreeing with the States but the States would confer jurisdiction on the Federal Court and that the Commonwealth will accept that conferral of jurisdiction.

BRENNAN CJ: What is the limitation which you say that seeks to circumvent?

MR DOUGLAS: The only original jurisdiction which can be vested in a Federal Court would be so-called federal jurisdiction; that the Territories’ cases properly understood are cases where appellate jurisdiction has been conferred upon Federal Courts and that apart from the instance which I pointed to of the colonial Courts of Admiralty, there are no instances of which we know where original jurisdiction has been conferred upon the Federal Court or any other Federal Court such as the High Court, other than jurisdiction to be found within section 76 of the Constitution and section 75.

BRENNAN CJ: Does not that mean simply that there are limitations on the power of the Parliament to create and invest federal jurisdiction? But that says nothing as to State jurisdiction, that is as to the creation and the investing of State jurisdiction ,unless one can find some other limitation in the Constitution.

MR DOUGLAS: I agree with that, your Honour, in the sense that there is no specific provision in the Constitution which says that a State Parliament cannot invest State jurisdiction in the Federal Court. But the fact that you have sections 75 and 76 and the manner in which they have been interpreted in cases such In re Judiciary and Navigation Act and Boilermakers and Stack v Coast Securities, the express power which is given to the Parliament of a Commonwealth to invest federal jurisdiction in State courts, the interpretation which has been given to section 73 as enabling the conferral of additional jurisdiction not to be found within it as distinct from the interpretation which has been given to 75 and 76, where it has been held that the expression of those particular subject matters in respect of which original jurisdiction can be invested in Federal Courts are all clear indications, as we would see it, when one looks at the provisions of the Constitution as they have been interpreted, that it was not intended and not contemplated that a State would ever have the power to invest jurisdiction in a Federal Court, particularly ‑ ‑ ‑

GUMMOW J: The argument against you would have to admit of State jurisdiction with respect to crime where the Federal Court was conducting a trial on indictment of an offence against the law of the State with no requirement of trial by jury.

MR DOUGLAS: Yes, your Honour. It would also encompass, as we would ‑ ‑ ‑

GUMMOW J: Despite section 80.

MR DOUGLAS: Despite section 80. It would also encompass, as we would see it, that the States could confer additional original jurisdiction on this Court.

McHUGH J: With the consent of - if the judgments below are correct there is no reason why, for example, the Parliament of Tasmania cannot enact laws conferring on this Court all sorts of original jurisdiction so long as it has the consent of the Parliament of the Commonwealth.

MR DOUGLAS: That is the executive and the Parliament consenting to this Court being invested with original jurisdiction which, in our respectful submission, was not contemplated would be invested at the time when the Constitution was framed. It means that this Court’s original jurisdiction can be interfered with by a State with the consent of the executive or the Parliament notwithstanding what the Court may think about it. It seems to us that goes beyond what was contemplated by the Constitution and represents a substantial window in the protection of the integrity of this Court.

Whilst one would always hope that the executive and the Parliament would act responsibly and not confer excessive jurisdiction on this Court or jurisdiction which it did not wish to deal with, there is no reason why they should be construed as having that power under the Constitution. The cases which the Commonwealth refers to are all cases in which the Commonwealth has agreed effectively to waive its own immunity from its own legislation, but the executive waiving its own immunity from its own legislation is quite different, as we would see it, to the executive and the Parliament consenting to this Court’s jurisdiction being extended by the exercise of legislative power by the States.

We would say that it was so obvious virtually that it went without saying that the Constitution did not include a provision in relation to this particular subject matter. If we are right in relation to our State power argument, obviously section 51(xxxviii) could be used and, on one view of the matter, would be then federal jurisdiction. If we are wrong in relation to it, section 51(xxxvii) could be used and that would be federal jurisdiction and, in that way, the federal Parliament could control what the jurisdiction of its Federal Courts was.

But the way this legislative scheme is set out, it effectively enables the States to say what that jurisdiction shall be. Not only does it do so at the point when the legislation is passed, but they delegate to the States the power to make amendments to that legislation from time to time so as to either expand or contract the jurisdiction which is thereby conferred. As we would see it, that is a reason why it is not a law of the Commonwealth with respect to insolvency or corporations because it really is a law of the Parliament of the State and that a law such as section 56(2), which merely accepts the conferral of jurisdiction, could not be seen to be a law with respect to corporations or a law with respect to insolvency but, rather, it is a law which accepts jurisdiction conferred upon Federal Courts by the Parliaments of the States.

It has also been suggested against us that it can be supported in some way by the Territories’ power. But whilst there may be - if we are wrong in our argument about the State legislative power - some basis on which a Territories’ power could be used to develop a complementary legislature scheme between the Territories and the States, and that being seen in some way to be valid as a Duncan scheme matter, it is quite another matter just to tack on the Federal Courts as part of that scheme and say that in some way the Territories are thereby benefited. To interpret the Territories’ power in that way is effectively, as we would see it, the conferral of a plenary legislative power upon the Commonwealth under the Territories’ power.

So, whilst we cannot point to express words which would support the restriction which we contend for, it is quite clear, as we would see it, when one looks at what was said in Re Judiciary and Navigation Act and Boilermaker’s, both in this Court and in the Privy Council, it was not contemplated that in those decisions that the States would ever attempt to do what is sought to be done in this case. Clearly the cases on the Territories’ powers are not altogether satisfactory, and they are driven somewhat by the decision in Bernasconi’s Case and Porter’s Case and the concept of what is a law of a Parliament and what is a law of a Commonwealth, and whether Commonwealth laws is something which has greater or lesser conception than laws of the Parliament.

Without taking the Court to all of those judgments, as we would see it, it makes sense to read sections 75 and 76 as contemplating the conferral of original jurisdiction in all matters arising under any laws made by the Parliament as encompassing that all federal laws, if I could put it that way, that 73 has been interpreted differently, because there is no provision such as 76 which gives a power to confer original jurisdiction on the High Court. Mr Justice Windeyer in Capital TV v Falconer has expressed quite lucidly, as we would see it, the logical reasons why the High Court should be the ultimate appellate court for all matters within Australia, including federal matters and Territory matters. So, we do not have any difficulty with the idea that appellate jurisdiction can be conferred outside the terms of section 73 upon federal courts. But when one has regard to the express provisions made in section 76 as to the laws which can be made conferring original jurisdiction on the High Court and, for that matter, the Federal Court, it would go a long way, as we would see it, to find within this Constitution some power which the States have to confer original jurisdiction on a Federal Court.

BRENNAN CJ: Mr Douglas, I can see the force of the argument, which I must say for my part derives some assistance from the absence of any provision which mirrors section 71 creates the autochthonous expedient, but really one looks at the question of what is meant by the investing of jurisdiction. Where a court is invested with jurisdiction by the legislature of the polity to which it belongs, there is an obligation on the court to exercise that jurisdiction. One would not necessarily come to the conclusion that there is a duty to exercise a jurisdiction conferred, as it were, ab extro so that so far as judicial obligation is concerned, it may depend upon the source of the jurisdiction. If one is talking about the execution of a judgment then the question is whether or not the executive of the polity to which the court belongs would assume an obligation to execute the court’s judgment, and one could readily see that without legislative sanction of that polity, the executive of that polity would not be required to execute the judgments of the court which are delivered in exercise of a jurisdiction conferred ab extro. Those could be answers to the proposition that you put forward. It is a question, really, of whether or not one construes the federal statute as the Parliament’s consent to the exercise by a Federal Court jurisdiction, leaving it to the Federal Court to say yea or nay as to its exercise, or whether one looks at the Constitution and says section 71 says on the one hand that the Federal Parliament can vest State courts with it, but it says nothing about State courts vesting Federal Courts’ jurisdiction.

MR DOUGLAS: Yes, your Honour.

BRENNAN CJ: Is the choice between those two approaches?

MR DOUGLAS: You would only look for the answer which your Honour is suggesting if, in fact, there was no other means of achieving the appropriate, and under the Constitution, itself. One could do so, as we would see it, by utilisation of the powers conferred in section 51(xxxvii) or section 51(xxxviii), depending upon the question of State power. There is no good reason why those legislative powers should not be engaged in that way. One would only begin to look around for a scheme such as that which your Honour suggests if, in fact, there was no practical means of achieving the end which this legislation seeks to achieve within the confines of the Constitution itself. The scheme which your Honour does suggest has inherent within it the problem that it really is, in a way, up to the executive to determine what happens to its courts as distinct from what the Constitution says should happen to its courts. We would prefer the Constitution to the executive, your Honour.

BRENNAN CJ: Yes.

MR DOUGLAS: We then have a further submissions which relates to the question of judicial and non-judicial power, and that is this question of whether we can be examined in the Federal Court, a winding up order having been made in the Federal Court. There are decisions of this Court, including Davidson’s Case, which make it quite clear that the examination of officers of companies has long been recognised as ‑ ‑ ‑

GUMMOW J: But it may be said against you, may it not, Mr Douglas, that this does not matter because the concept of judicial power of the Commonwealth is not engaged if all this legislation is valid.

MR DOUGLAS: On one view of the matter, yes.

GUMMOW J: Yes.

MR DOUGLAS: If it is not engaged, there is no doctrine of separation of powers which applies to the States.

GUMMOW J: That is right.

MR DOUGLAS: But if that be so, it means that that is one of the problems which is inherent in the idea that the States can effectively ‑ ‑ ‑

GUMMOW J: Many State courts perform tasks which could not be performed in the Federal Court.

MR DOUGLAS: Yes, your Honour, but if this is to happen, it would seem that the Federal Court could be asked by its executive to perform what, in the federal sphere, would be regarded as being non-judicial tasks.

McHUGH J: Such as the jurisdiction in the New South Wales Industrial Commission.

MR DOUGLAS: Yes, your Honour.

BRENNAN CJ: Then the question may arise, as it were, Kable in reverse.

MR DOUGLAS: It could, your Honour, yes. If it is not federal jurisdiction, the Federal Court is being asked to exercise State judicial power and there is no doctrine of separation of powers. That has all of the problems inherent in what your Honours have just put to me. If it is, in some way, federal jurisdiction, we do not quite know how, then this problem does arise acutely. This Court is well familiar with cases like Davidson’s Case, so we have referred to those in our submissions and your Honours have been deluged, I think, with copious material in relation to it.

One of the main problems about the actual legislation under which it is proposed to be done is, and it is to be found also in our legislative bundle I think under divider 16, where your Honours will see that section 596A and 596B provide for mandatory and discretionary examinations and says:

The Court is to summon a person for examination about a corporation’s examinable affairs if:
(a) an eligible applicant applies for the summons.

Let us just try and find out what that means. If your Honours go to the definitions at the back of that divider, your Honours will see that an “eligible applicant” is defined as:

in relation to a corporation, means:
(a) the Commission; or
(b) a liquidator.....
(c) an administrator.....
(d) an administrator of a deed of company arrangement.....; or
(e) a person authorised in writing by the Commission to make;
(i) applications under the Division of Part 5.9 in which the expression occurs; or
(ii) such an application in relation to the corporation.

Then “examinable affairs” is defined, over the page, in relation to a corporation as meaning:

(a) the promotion, formation, management, administration or winding up of the corporation; or

(b) any other affairs of the corporation (including anything that is included in the corporation’s affairs because of section 53); or

(c) the business affairs of a connected entity of a corporation in so far as they are, or appear to be, relevant to the corporation or to anything that is included in the corporation’s examinable affairs because of paragraph (a) or (b).

When one looks at the plenitude of this power it can be seen that this is a classic case in which, by virtue of these provisions ,a Federal Court is being asked to exercise jurisdictions which, on no view of the authorities, could be described as being judicial.

GAUDRON J: Is it any different from examination of a judgment debtor, for example, which is regularly being undertaken by the courts?

MR DOUGLAS: Specifically what is being done is here not, in the sense that you have a winding up by the court and then you have the examination of the company officers. So if that is all that is involved I think that is really dealt with by cases such as Davidson. As we see it the power to do that is part of this whole legislative scheme which involves, for example, someone being summoned for examination, even if there is no liquidation, about the corporation’s examinable affairs, as defined, if an eligible applicant applies for the summons. So it really is a very administrative process; it is largely a fact-finding process which is not ancillary or incidental to any judicial process such as winding up or administration. That is our real complaint. Having said that ‑ ‑ ‑

GAUDRON J: If there is a winding up you have no complaint at all?

MR DOUGLAS: It comes down ultimately to a question of severance, does it not, your Honour, because if you can read these sections distributively so as to apply only to cases where you have a winding up of a corporation and an examination by the liquidator of the officers of that company in that winding up, then they can be seen to fall within a classical authority such as Davidson’s Case and those which are collected by the Full Federal Court in the Socket Screw Case, which we refer to in paragraph 60 of our submissions.

GAUDRON J: The discretion in section 596B is at large, is it?

MR DOUGLAS: It is at large within the - no, it has ‑ ‑ ‑

GAUDRON J: Within the confines of the section.

MR DOUGLAS: You have to go, on each occasion, to the definition of “examinable affairs” and “eligible applicant”. I suppose it may be said against me that this is not a discretionary examination under 596B but rather it is a mandatory examination under 596A(b)(iii). What they might try and do is sever out that in some way, together with some of the provisions of the definitions, to see if in some way some part of that section can be held to be legislatively valid. In that regard I give the Court a reference to, but do not read, the decision of Re F; Ex parte F (1986) 161 CLR 384 to 385, particularly that part where it is said that:

Section 15A does not give to the Court power to rewrite the statute; indeed, the Parliament could not validly delegate to the Court “the legislative task of making a new law from the constitutionally unobjectionable parts of the old”.

I suppose in a way what these sections point up is how the State legislature, not being affected by any doctrine of separation of powers, has found it competent to confer upon the Federal Court administrative procedures, unrelated to any judicial winding up or administration, which clearly, on any view of the authorities, do not involve the exercise of judicial power. It is the sort of vice which we perceive could occur if in fact jurisdiction is not to be conferred upon the Federal Court consistently with the provisions of Chapter III, because even if in fact the Court can seek to deal with this by some extension of Kable’s Case or the other authorities in relation to Chapter III, where the Court is exercising Federal jurisdiction ,so as to say that when the Federal Court is exercising non-federal jurisdiction but rather State original jurisdiction it shall not exercise such jurisdiction as it would not permissibly be able to exercise when acting as a Chapter III court, all of those sorts of considerations, as we see it, point against the type of legislative scheme which the States and the Commonwealth have sought to develop for the purpose of achieving the integration of our court system. For that reason we would submit that they should be sent back to the drafting boards and use the provisions within the Constitution which are there. If they want to make a law with respect to corporations or with respect to insolvent corporations they have that power.

It is not a power which they can or should delegate to the State to exercise and then merely pick up by a provision in an Act which purports to confer jurisdiction in the matters which the State has developed within its own legislative framework. So for those reasons we would say that the whole scheme is invalid and that the questions which have been asked should be answered as we suggest in our submissions, with one exception, and that is, on the special leave application, the question arose as to whether the orders should be set aside and we agreed on that occasion that an order should not be made in this Court setting aside the orders but rather that question should be reserved for the Federal Court and I think that matter is dealt with in the submissions by the Solicitor-General for the State of New South Wales.

We agree with the approach which he suggests should be adopted there and, in fact, it was an error that we asked for an order that the orders be set aside. Rather that question should be referred back to the Federal Court because we appreciate, at least in one respect, we are seeking, in the notice of motion, orders that the winding up order be set aside and it is an attack on that in collateral proceedings, whereas when one comes to the examination summons and the like, we are obviously clearly involved in that and that is a different question. There may be an issue which I do not think should, at least, trouble this Court, having regard to the agreements which have been reached in the courts below. If it please the Court, those are our submissions.

BRENNAN CJ: Thank you, Mr Douglas. Mr Attorney?

MR WILLIAMS: Your Honours, from the Commonwealth’s perspective this case is significant not only for the validity of the specific cross-vesting scheme contained in the corporations legislation but also for the validity of the general scheme. Both of the schemes are an exercise in co-operative federalism. Both schemes adopt essentially the same legislative pattern. That pattern has, I think, been canvassed extensively in the judgments below and I think is probably well understood by your Honours.

In essence the Commonwealth Act, relevantly section 56(2)(a) of the Corporations Act 1989, provides that

The Federal Court.....may:
exercise jurisdiction.....conferred on that Court by a law of a State.....with respect to matters arising under ‑

a State law.

GUMMOW J: What is the source of Federal legislative power to make section 56(2)(a)? It looks all very reassuring but what is the source of the power to make it.

MR WILLIAMS: That is what we will be dealing with in explaining the nature of the co‑operative federalism. I will come to that, your Honour.

GUMMOW J: Because it cannot be incidental to the exercise of authority of Chapter III, so it does not seem to fit in that branch of 51(xxxix).

MR WILLIAMS: Can I come to that, your Honour. It is a matter we wanted to deal with in the argument. The State provision, section 42(3) of the Corporations Act of New South Wales, provides that jurisdiction is conferred on the Federal Court with respect to civil matters arising under State law. The corresponding provisions in the general scheme are section 9(2)(a) of the Commonwealth Jurisdiction of Courts (Cross‑Vesting) Act and section 4 of the Jurisdiction of Courts (Cross‑Vesting) Act of each State. In each case it is the State law which confers State jurisdiction on the Federal Court and it is the Commonwealth law which authorises the Federal Court to exercise that State jurisdiction.

GUMMOW J: That is the question.

MR WILLIAMS: It is our submission that the State legislation alone confers the State jurisdiction and the ‑ ‑ ‑

GUMMOW J: So is section 56(2) unnecessary?

MR WILLIAMS: I am sorry, I did not hear your Honour.

GUMMOW J: Was it unnecessary to pass section 56(2)(a)?

MR WILLIAMS: Not at all, your Honour. We say that the Commonwealth law authorises, permits, allows the exercise of the jurisdiction.

GUMMOW J: Yes, but suppose it was not there.

MR WILLIAMS: That is not a situation before the Court.

GUMMOW J: No, obviously.

MR WILLIAMS: It is not being contemplated that the co‑operative federalism scheme would work in that way.

TOOHEY J: But does it have the effect that the courts are bound to exercise a jurisdiction which otherwise they might have conferred on them but not be bound to exercise?

MR WILLIAMS: Your Honour, the scheme is not constructed in that way. I will take your Honour to the language of the provision, but what it does is to authorise the Federal Court to exercise State jurisdiction. In terms it does not oblige it.

KIRBY J: But is there not some limitation on appeals of the cross‑vesting order which in effect makes it compulsory to exercise the jurisdiction? Have I remembered that correctly? It may be that you are going to take us to the legislation and that might be a better way to do it, but my recollection is that once a court has ordered cross‑vesting, there is no appeal, that is it, and you are then in the other place.

MR WILLIAMS: I will come back to that point, your Honour.

BRENNAN CJ: You will also develop your general thesis first of all, is that right, Mr Attorney?

MR WILLIAMS: Yes, thank you, your Honour. The argument of the appellants, as we understand it, adopts a characterisation of the legislation consistent with what we have put. There is a reference in paragraph 38 of the appellant’s written submissions to the States seeking to conscript the Federal Court to exercise State jurisdiction, but we did not understand their argument to proceed in that manner.

GAUDRON J: Well, you do not say it is conscripted at all; you say it is optional, do you? Whether or not it is a conscription by the States, or the States and Commonwealth in combination, do you accept it is a conscription, or do you say it is not that?

MR WILLIAMS: It is not a conscription, we say.

GAUDRON J: So, it is an optional jurisdiction for the Court to decide whether or not it will exercise it.

MR WILLIAMS: Yes.

McHUGH J: That seems contrary to the principle of the rule in Julius v The Bishop of Oxford in that we ‑ ‑ ‑

GAUDRON J: And also contrary to the notion of judicial power.

McHUGH J: Yes, and when a court is given jurisdiction, it is expected to exercise it.

MR WILLIAMS: Well, under this scheme it is designed to identify the most appropriate court to hear the particular case. Now, the rule in Julius v The Bishop of Oxford, which I have not heard mentioned in Court except by your Honour, I do not think is to the point in that respect.

McHUGH J: Well, except 56(2) says the Federal Court or the Supreme Court of the Australian Capital Territory may exercise jurisdiction and, in the context of a jurisdiction conferred on a court, “may” has always been read as “shall”. It is not merely Julius’ Case, but this Court, itself, has said it on a number of occasions.

MR WILLIAMS: We you are in the context of a case with mixed jurisdiction it is appropriate also to take into account, in interpreting the word “may”, that the Court will have to exercise a discretion as to whether the Court is the appropriate one for that case.

GUMMOW J: But we are talking about rights of citizens. An element of judicial power is the right of a citizen to invoke it.

MR WILLIAMS: And the citizen can go to court.

GUMMOW J: That is right.

MR WILLIAMS: And a citizen can be told by that court it is not the appropriate court. It can be transferred to another court. Under section 53(2) of the Commonwealth Act:

Where it appears to the court that, having regard to the interests of justice, it is more appropriate for the proceeding, or an application in the proceeding, to be determined by another court having jurisdiction in the matters for determination in the proceeding or application, the first-mentioned court may transfer the proceeding or application to that other court.

Can I come back to the general argument. The Commonwealth puts, in support of the validity, argument in two stages. The first is to say that leaving aside any particular difficulty arising from Chapter III, the cross‑vesting of legislation falls within the principle of co-operative federalism articulated most fully in Duncan’s Case. The precise identification of the sources of Commonwealth and State legislative power to give effect to that are, of course, at the bottom of that issue and I will come to that in a moment. The second stage in the Commonwealth response is to say that there is nothing in Chapter III of the Constitution to prevent the cross‑vesting of jurisdiction taking effect.

McHUGH J: Is that the proper approach since Boilermakers, because in the Boilermakers’ Case, the majority of the Court in this Court said that a result so violently opposed to the fundamental structure and scheme of Chapter III requires unequivocal language to confer something that seems to distort the scheme that this Constitution sets up. I will be interested when you come in your argument to what is the head of power upon which you rely to justify the cross‑vesting. I can understand in respect of section 56(2) where you can say, “We rely on the corporations power”, but when you get to this wider field, what is the head of power, express or implied, which enables the federal Parliament to what, on its surface, seems to distort the whole nature of Chapter III.

MR WILLIAMS: We must obviously address that, your Honour. Let me just mention that we were dealing with the argument in two stages and the intention is that the Solicitor-General will deal with the second stage. That means he will be dealing with the Chapter III issues. I had thought he had got the hard bit.

GUMMOW J: You may have got the harder bit.

KIRBY J: Was the reference to co-operative federalism a reference to some statement in this Court? I am not familiar with that. It was a political catch cry years ago and I suppose I understand what is behind it, but has this Court in some way endorsed that notion?

MR WILLIAMS: I do not think it has used that term itself, but it is obviously engaged in considering the various exercises of courts ‑ ‑ ‑

KIRBY J: I think inherent in the federal Constitution is the notion that it should work co-operatively together.

McHUGH J: In Duncan’s Case, Justice Deane said that co-operation was a positive objective of the Constitution.

MR WILLIAMS: Your Honours, I want to take you to Duncan’s Case, but before doing that, can I invite your Honours’ attention to the second reading speech to the bill for the Commonwealth Cross‑Vesting Acts. This is in the first volume of the materials proffered by the Commonwealth. It is behind the second tab. As your Honours will see, it was 22 October 1986, page 2555 in the Hansard on the right-hand column, about point 5, the then Attorney-General says:

The reasons for the proposed scheme are that litigants have occasionally experienced inconvenience and have been put to unnecessary expense as a result of, firstly, uncertainties as to the jurisdictional limits of Federal, State and Territory courts, particularly in the areas of trade practices and family law; and, secondly, the lack of power in these courts to ensure that proceedings which are instituted in different courts, but which ought to be tried together, are tried in the one court. Jurisdictional difficulties do the law and the community no good. They result in litigants with a genuine dispute requiring judicial determination being faced with the anguish, delay and additional expense which flow from the sterile and pointless need to search for a court, or courts, with jurisdiction to resolve the dispute. The seriousness of these jurisdictional difficulties to the community is all the more pressing because they occur in areas such as family law and trade practices which touch the everyday activities of so many people and corporations in Australia.
We are thus confronted with growing frustration in the community and the legal profession with a system of courts with geographic and other jurisdictional limitations which get in the way of the efficient resolution of the disputes of litigants. Despite efforts by the High Court of Australia to resolve many of the jurisdictional problems that have arise, problems still exist which require legislative action for a solution. Governments and parliaments have a responsibility on behalf of the community to find solutions to these problems which at present impede the efficient administration of justice.

GUMMOW J: Mr Douglas accepts all of that. He says it could have all been done by other routes which would not give rise to any of these problems.

MR WILLIAMS: We will await the outcome on that. Could I mention also that this matter was addressed in some detail in the report to the Constitutional Commission of the Australian Judicial System Advisory Committee which reported on 22 May 1987. That is under tab 4 in the same volume and I would invite attention specifically to page 27, paragraph 3.47 and following. In 3.48 there is reference to the ‑

lack of substantive legislative power in the Commonwealth.

In 3.5 the difficulties arising ‑

because the jurisdiction of a federal court may be conferred in relation to specific matters arising under particular statutory provisions.

And at 3.52:

federal jurisdiction is invested exclusively in the courts of the States in respect of one part of a controversy and vested exclusively in federal courts in respect of another part.

The committee note at 3.59 and 3.60 that:

The doctrine of accrued jurisdiction ‑

had gone some way towards solving the jurisdictional difficulties of the federal courts but not all of the way. If the doctrine of accrued jurisdiction had been a complete or even sufficient answer to the problems encountered before the cross-vesting legislation, then the legislation would have been unnecessary. If those jurisdictional problems were then the inevitable result of the federal system or of the separation of judicial power, no doubt we would have to live with them but the cross-vesting legislation has, in practical terms, effectively resolved them.

This is a report by the Australian Institute of Judicial Administration, the authors of which Garrie Jane Maloney and Susan McMaster. It was published in 1992 and it reviewed the operation of the scheme. It was a very optimistic report in its review of the operation of the scheme. Copies have been provided to the Court.

GUMMOW J: It did not touch the corporations scheme, did it?

MR WILLIAMS: No. The Solicitor‑General reminds me that the ‑ ‑ ‑

GUMMOW J: It had not come into operation.

MR WILLIAMS: ‑ ‑ ‑ recommendation was that the corporation scheme be combined with the general scheme. In response to Justice Gummow, the corporation scheme is dealt with at pages 57 to 66.

GUMMOW J: Yes, thank you.

MR WILLIAMS: Legislative power to support the cross‑vesting scheme we say can be found in different ways. The starting point from the Commonwealth’s perspective is the decision in Duncan’s Case 1983 158 CLR 535. This was not a Chapter III case; it concerned the validity of the establishment of, and exercise of power by, the Coal Industry Tribunal which is a body set up under both Commonwealth and State legislation. The statements of principle to which I want to take your Honours are generally expressed and, in our submission, subject to Chapter III considerations applicable to this case.

McHUGH J: I understand the way you are going to put it, Mr Attorney, and it is the way the judges in the court below did, but at the moment I have some difficulty with this approach. It rather pushes Chapter III off as though it was something to be considered later. If you did not have Chapter III in the Constitution and the power to make laws in respect of bankruptcy, corporations, trade and commerce, it would have enabled you to set up courts and do a lot of things. But Chapter III deals with the question of courts, and Duncan, dealing with this question of non‑courts, is, it seems to me, in a very different area altogether. So, to my way of thinking at the moment, one has really to look at the Constitution as a whole, and Chapter III is not merely something that one looks at after when one looks as the sort of co‑operative questions; it is right there in the forefront. How you get into it seems to me at the moment to be the dominant question, but I appreciate the way that you want to put it.

MR WILLIAMS: Your Honour, the basis upon which we will approach Chapter III is that it is within the Constitution and is within the context of a scheme enabling co‑operation between the State and federal governments in the exercise of powers generally.

McHUGH J: Yes, I understand the way it is put.

MR WILLIAMS: At page 552 Chief Justice Gibbs at about point 7 said:

There is no express provision in the Constitution, and no principle of constitutional law, that would prevent the Commonwealth and the States from acting in co‑operation, so that each, acting in its own field, supplies the deficiencies in the power of the other, and so that together they may achieve, subject to such limitations as those provided by s 92 of the Constitution, a uniform and complete legislative scheme.

He then gave examples which are referred to in our submissions of cases where there were such schemes, and continued:

Further, no reason is provided by constitutional enactment or constitutional principle why the Commonwealth and a State or States should not simultaneously confer powers on one person and empower that person to exercise any or all of those powers alone or in conjunction. In one instance the Constitution has expressly recognized the possibility of co‑operation of that kind when it enables the Parliament to invest a court of a State with federal jurisdiction -

referring to Chapter III.

It would be an absurd result, for example, if the Commonwealth and a State were unable, by complementary legislation, to empower an officer of police to enforce both the laws of the Commonwealth and the laws of the State, or to give power to a fisheries inspector to act in Australian waters both within and beyond territorial limits, or to authorize a public servant to collect State taxes as well as Commonwealth taxes. There is nothing in the decisions of this Court to provide authority for such a restrictive view of constitutional power. The position of an administrative body such as the Tribunal is no different; legislation of the Commonwealth Parliament, otherwise within power, is not invalid because it establishes, jointly with a State, one body which derives its powers from the State as well as from the Commonwealth.

It is perhaps noteworthy, in the light of what your Honour Justice McHugh has just made to me, that the possibility of co-operation in a Chapter III context is used to reason to the more general conclusion with references also to executive and administrative bodies.

McHUGH J: There you have an express power. You have to rely on implications, and at the moment I just do not see what the source of this power is. It must be something akin to the nationhood power, is it? There is an implied power of co-operation in the Constitution.

MR WILLIAMS: We propose to come to that. What is being suggested, though, is that there is at a time when it was contemplated there would be Federal Court, namely the High Court but not any other Federal Court, and State courts were in existence, that there was nothing incompatible with federal jurisdiction being vested in State courts. It was not contemplated that there would be separate and distinct judicial systems in that way.

GAUDRON J: That is a positive answer to his Honour, is it? That is an argument that there an implied power, at least with respect to the exercise by the States of the Commonwealth of their respective judicial powers.

MR WILLIAMS: We see it as pointing in that direction and Chief Justice Gibbs did too. Justice Mason, as his Honour then was, at page 562, at the bottom of the page said:

Secondly, as at present advised, I see no strong reason why the Commonwealth Parliament in the exercise of the conciliation and arbitration power (section 51(xxxv)) and the trade and commerce power (section 51(i)) cannot establish a tribunal with powers and functions appropriate to the exercise of those powers and declare that the tribunal has the capacity to exercise such conciliation and arbitration powers and functions as may be given to it by a State Parliament, so that powers derived from both sources may be exercised in relation to the one dispute or matter.

As I indicated in discussing the executive power, the Constitution, when it divides legislative powers between the Parliaments of the Commonwealth and the States, necessarily contemplates that there will be joint co-operative legislative action to deal with matters that lie beyond the competence of any single legislature. As with an exercise of the executive power for a co-operative purpose, Commonwealth legislative action for such a purpose is subject to the limitation that the end to be achieved and the means by which it is to be achieved are consistent with and do not contravene the Constitution.

McHUGH J: Where does this principle of necessity come from, Mr Attorney? I mean one view is simply that well, States have got their powers, the Parliament of the Commonwealth has got its powers, and that is it. Where does this necessity of co-operation stem from?

MR WILLIAMS: What Sir Anthony Mason is there saying is that the Constitution has divided legislative powers between the Parliaments of the Commonwealth and he sees, I think from that passage, the necessity arising out of the division where ‑ ‑ ‑

KIRBY J: And perhaps the nature of the document, as a Constitution that is intended to work in a practical sense for the whole of Australia, and indefinitely, and difficult formally to amend.

MR WILLIAMS: Yes, I adopt that. But I think it is a narrower point he is making; that where the - to deal with a legislative subject, resort must be had to both Commonwealth and legislative power. He sees it necessarily, I think, in a practical necessary way resulting in co‑operative efforts.

GUMMOW J: But is it enough for this co‑operative principle that one State agrees with the Commonwealth?

MR WILLIAMS: It would depend on the nature of the legislation, but it certainly could be if ‑ ‑ ‑

GUMMOW J: I know but we have got to consider some constitutional absolutes and bright lines Is it not enough that one State agrees with the Commonwealth? It is the principle of co‑operation.

MR WILLIAMS: Well, it depends on the subject matter. It may be that territorially you will be dealing with a subject that is only relevant to one State. I am reminded that in the family law area, the Western Australian Family Court is a creature of co‑operative legislation.

GUMMOW J: Yes, that is right.

MR WILLIAMS: The final sentence in this passage to which I want to refer ‑ ‑ ‑

GUMMOW J: But the reason why I mention it, Mr Attorney, is in the written submissions everyone talks about this being a co‑operative scheme involving the totality, and that is what the then Attorney was saying in his speech that introduced this legislation. What I am trying to ascertain is, is that totality of the arrangement a necessary condition of is constitutional validity in this cross‑vesting scheme? And the answer seems to be, no.

MR WILLIAMS: No. There is a provision in the legislation which contemplates that there may be a notice given to cease to be involved.

GUMMOW J: Yes.

McHUGH J: I must say, I would have preferred to get this incidental power out of 51(xxxix) rather than any notion of co-operation, I would have thought 51(xxxix), together with the other 51 powers, with be sufficient in itself for the Commonwealth to enable its at least non-court tribunals to receive and assist, without going into any - acting on a premise of necessity of co-operation.

MR WILLIAMS: Yes. We might have preferences but we are concerned to ensure that all possible opportunities are examined. The last sentence in this passage:

It is an integral element in joint legislation for a co-operative purpose that a legislature, whether Commonwealth or State, can give its authority or office holder a capacity to receive additional powers and functions as may be conferred by another legislature.

I note that at page 567 Justices Wilson and Dawson agreed with the conclusions and substantially at the reasons of Chief Justice Gibbs. At page 579 your Honour the Chief Justice made the comment at about point 6:

If the Commonwealth Act were construed as not permitting the tribunal to be a repository of State power, it would prevail over the State Act by reason of the inconsistency between them. But the Commonwealth Act permits the State Act to repose State powers in the Tribunal. The Commonwealth Parliament, having power to create the Tribunal and vest federal powers of conciliation and arbitration in it, is not bound to refuse permission for the reposing of similar State powers in the Tribunal.

At the bottom of the page your Honour says:

It is within the competence of the Commonwealth Parliament to permit such a tribunal to have and to exercise State powers where the vesting and exercise of State is conducive to or consistent with the achievement of the object which the vesting and exercise of federal powers is intended to achieve. It is no argument against the validity or efficacy of co‑operative legislation that its object could not be achieved or could not be achieved so fully by the Commonwealth alone.

Your Honour cites Justice Starke in Moran’s Case and then continues:

A provision would be beyond the legislative competence of the Commonwealth if it purported to confer a federal power either wider than the Constitution permits or free from any restriction on its exercise which the Constitution requires; but the Commonwealth Act does not purport to confer such a federal power.

The last passage to which I want to take your Honours is in Justice Deane’s judgment at page 589, the middle paragraph:

The questions whether the relevant provisions of the two Acts are within the respective legislative competence of the Commonwealth and the New South Wales Parliaments and whether there is any relevant lacuna in the combined legislative competence of the Commonwealth and State Parliaments can conveniently be considered together. They can, in the view I take, be resolved by reference to two related general propositions which are to be derived from the terms of the Australian Constitution and from the nature of the federation which it embodies. The first is that co‑operation between the Parliaments of the Commonwealth and the States is in no way antithetic to the provisions of the Constitution: to the contrary, it is a positive objective of the Constitution. The second is that, in the absence of any express or implied constitutional prohibition or of any relevant limitations upon State powers persisting from colonial times, it is to be presumed that any legislative power which naturally appertains to self‑government and which is not conferred upon the Commonwealth Parliament remains in the States. The existence of a constitutional objective of Commonwealth/State co‑operation may, on occasion, be obscured by the fact that cases in this Court in relation to the constitutional scope of legislative powers are commonly concerned with the resolution of competing legislative claims of the Commonwealth and of one or more of the States. It is, however, unnecessary to do more than refer to the provisions of s. 51(xxxiii), (xxxiv), (xxxvii) and (xxxviii) and of Ch. V of the Constitution to demonstrate the existence of such a constitutional objective. It would be inconsistent with that objective for there to be any general constitutional barrier to concurrent legislation by Commonwealth and State Parliaments.

Page 591, the passage under the citations:

It has not been suggested that either the Commonwealth Constitution or the New South Wales Constitution contains any express or implied prohibition upon legislative power which is relevant for the purposes of the present application or that there is any applicable limitation upon the powers of the State Parliament resulting from outmoded doctrines appropriate to times that are gone. The power of the Commonwealth Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State and with respect to matters incidental to the execution of that power sufficed to enable to the Commonwealth Parliament to legislate to authorize the Governor-General to enter into the arrangement for the establishment of a tribunal which would be capable of receiving and exercising the particular powers conferred upon it by the Act and the related powers conferred upon it by the concurrent State Act.

One might ask, as I propose to do, what the implications of that are for section 71.

McHUGH J: Section 76(2) might be said, Mr Attorney. The view has been hitherto taken that 76(2) is the sole source of the power to invest a Federal Court with any sort of jurisdiction.

MR WILLIAMS: The Solicitor-General will deal with that.

BRENNAN CJ: I was going to say he might care to consider it over the luncheon adjournment. Is this a convenient time, Mr Attorney?

MR WILLIAMS: Certainly, your Honour.

BRENNAN CJ: Could I inquire what time you expect to take for the delivery of your argument and perhaps the Solicitor-General’s as well.

MR WILLIAMS: I think we will probably speed up a little from where we are at the moment but it may take the rest of the day; it may take a little less.

BRENNAN CJ: Yes, thank you. We will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

BRENNAN CJ: Yes, Mr Douglas.

MR DOUGLAS: Your Honours, could I just raise one matter before the Attorney continues? There is a matter which arose from a question which Justice Gummow asked me this morning concerning the effect of section 7 of the Corporations (New South Wales) Act, and as to whether that amounted to a delegation of the legislative power of the Parliament of New South Wales, and is the Corporations (New South Wales) Act therefore invalid. We embraced the proposition, if that is what the proposition was, but we are not sure that it is actually ‑ ‑ ‑

GUMMOW J: I was not putting any proposition to you, I was just asking a question.

MR DOUGLAS: Yes. But to the extent that there is an argument raised by that question, we would wish to raise that matter. It is not the subject of our present 78B notices, although we feel it is encompassed within the grounds of appeal and the questions which have been asked of the Court, because we asked the Court questions as to the validity of the State law, and, so, if it is invalid for this reason, we would wish to rely upon it.

BRENNAN CJ: Does that raise problems in relation to section 78B?

MR DOUGLAS: We gave that some thought because it is a question concerning the constitutional powers of the States. There is a case of Boath v Wyvil referred to in the annotations to the Judiciary Act - I have not had the opportunity to actually reading it - which held that questions as to the legislative competence of State Parliaments within the meaning of

section 78B involve a matter involving the interpretation of sections 106 and 107 of the Constitution. We would see this as being distinguishable from that. It really is just a matter as to whether the State Parliament has delegated its legislative authority. So, therefore, it really falls outside the compass of what is embraced by the conception of 78B notices.

BRENNAN CJ: Mr Douglas, if there was a new constitutional issue to be debated, it would be for you to reduce it to writing. It is the fact, I think, that all Attorneys are either here, or here represented. I think that is so. Mr Solicitor for South Australia, are you appearing for the Northern Territory?

MR SELWAY: No, your Honour.

BRENNAN CJ: The Northern Territory perhaps is the only one that is not.

MR DOUGLAS: The issue which we seek to raise is whether section 7 of the Corporations (New South Wales) Act is a delegation of the legislative power of the Parliament of New South Wales amounting to an abandonment by the Parliament of New South Wales of its legislative function and duty, and is the Corporations (New South Wales) Act therefore wholly invalid. We would rely upon cases such as Giris’s Case to make out that proposition.

BRENNAN CJ: And it obviously would be desirable for a 78B notice to be formulated and arrangements to be made, either at the Bar table, or in the case of New South Wales elsewhere, for some reaction to be obtained to it.

MR DOUGLAS: If it please the Court.

BRENNAN CJ: Mr Attorney.

MR WILLIAMS: In that connection, could I just mention, I think the ACT is not here, nor represented.

BRENNAN CJ: Thank you, Mr Attorney.

MR WILLIAMS: Your Honours, can I mention another case Re Cram; Ex parte New South Wales Colliery Association Limited (1987) 163 CLR 117. In that case the Court, applying the reasoning in Duncan’s Case in a joint judgment, held that the tribunal in question in Duncan’s Case, the Coal Industry Tribunal, was a single tribunal rather than two separate tribunals and that the persons who constituted it, and certain local coal authorities constituted under the same legislation, were officers of the Commonwealth within the meaning of section 75(v) of the Constitution, even when they were exercising powers referable only to the State legislation. In the joint judgment at page 128, point 4 on the page, the Court said:

Given then that the authorities derive their existence from the Commonwealth Act, although not exclusively so, and that the Commonwealth Act either confers or authorizes the conferral on the authorities of all or any of their powers and functions, the persons constituting the authorities are necessarily officers of the Commonwealth and remain so in respect of the exercise of all their powers unless, perhaps, the Commonwealth Act evinces an intention that in the exercise of powers derived from the State Act the authorities function in some different capacity.

Page 131, following a discussion of Duncan’s Case, the Court then said:

More importantly, once it is accepted that the powers derived from the Commonwealth and State Acts are not required to be exercised in isolation from each other, but may be exercised concurrently or in combination in the one matter, then the concept of separate Commonwealth and State tribunals exercising separate powers becomes untenable.

It is our submission that Duncan’s Case, particularly when read with Cram’s Case, supports two propositions which are referred to in paragraph 2.4 of our submissions. First it is established in the context of a co-operative scheme, the Commonwealth or a State may give to its authority or office holder the capacity to receive additional powers and functions as may be conferred by the laws of another Parliament. The second proposition is that the Commonwealth body may be authorised to exercise those State powers either alone or in conjunction with Commonwealth powers. We concede that there may be constitutional limitations. Section 92 would be one. Another, perhaps, might be the conferral on a Chapter III court of a function incompatible with the exercise of federal judicial power.

Co-operative federalism then can be used to confer Commonwealth powers and State powers on a single body but it is accepted it cannot expand the reach of the Commonwealth power nor expand the reach of the State power.

Subject to those qualifications, the underlying principle of Duncan’s Case appears to be that all legislative power lies either with the Commonwealth or the States. The totality of legislative power is divided by the Constitution between the Commonwealth from the States not for its own sake but so that power can be effectively exercised in the interests of the Australian people.

McHUGH J: Subject to section 92 which withdraws power from all State and federal Parliaments in respect of its subject matter, that is an area that neither State nor federal Parliament can touch.

MR WILLIAMS: Yes.

TOOHEY J: Also you seem to give Chapter III a limited operation in so far as you speak of it in relation to the conferring of non‑judicial power, but there is the wider question, which no doubt will be referred to later, of the relationship between judicial bodies and the two decisions that you have taken us to thus far do not involve conferring of judicial power.

MR WILLIAMS: Yes, I accept that, although, as I pointed out in the development of this concept of co-operation, the Court in Duncan’s Case expressly referred to cooperation in the judicial area.

TOOHEY J: That was by way perhaps of illustration rather than ‑ ‑ ‑

MR WILLIAMS: It was an illustration by way of an express example from the Constitution, but the ‑ ‑ ‑

TOOHEY J: But, Mr Attorney, is the proposition that absent a question of conferring non-judicial power on a judicial body, a co-operative scheme involving federal and State Courts raises no questions additional to those which are raised by the conferring of non-judicial power on particular organisations as in the two cases that you have just referred to.

MR WILLIAMS: Plainly Chapter III has to be taken into account, and in the development of the general proposition we have not gone to the particularity of Chapter III. The Solicitor‑General will do that following. Turning then from general principle, could I address - and I think this can be done fairly briefly - the sources of legislative power which we call in aid to support the Commonwealth and State cross‑vesting legislation in the present case. This is dealt with in our submissions at paragraph 2.5 in the case of the Commonwealth power and at 2.10 in the case of State legislative power.

In relation to Commonwealth legislative power, your Honours will see that we submit there are four ways in which the power of the Commonwealth Parliament to permit a Federal Court to receive and exercise jurisdiction conferred by State legislation may be exercised. Any one, we would say, is sufficient to support section 56(2) of the Corporations Act and section 9(2) of the Cross‑Vesting Act. The first is referred to in paragraph 2.5 of the submissions, which is the nationhood argument referred to by Justice McHugh.

The second implicit in the power to establish a Federal Court under section 71 we say is the power to legislate for everything necessary and conducive to the exercise of power. The third is the express incidental power in section 51(xxxix) and then, finally, we come to section 51(xxxviii). In relation to the nationhood power, we would say, in summary, that it has been acknowledged in several cases that the existence of the Commonwealth and its status as a national government must give rise to certain legislative powers not expressly spelt out.

One recognised area for the operation of implied Commonwealth powers is in the making of provision for the organisation and protection of the Commonwealth itself, and the institutions of national government. We would submit there is an inherent power to make laws with respect to the capacity of Commonwealth bodies, including courts, to exercise powers conferred on them by State legislation. Another area were powers have been implied from the creation of the Commonwealth as a national government is the area of Commonwealth/State co‑operation.

In relation to the implied power rising out of, we say, section 71, each grant of legislative power in the Constitution includes within it, we submit, all that is necessary for or conducive to its exercise.

GUMMOW J: But that is the exercise of federal jurisdiction.

MR WILLIAMS: I think that, with respect, might be begging the question.

GUMMOW J: But that is the words of section 71.

McHUGH J: Section 71 is dealing with the judicial power of the Commonwealth.

GUMMOW J: Not the judicial power of the States.

MR WILLIAMS: I accept that. What we must be looking for is what the legislation is appropriate and adapted to achieve. When the Parliament has power to establish a statutory body and to define its powers, the Parliament also has power to make provision for matters incidental to the exercise of those powers. In this case, we submit that this includes the power to consent to the conferral of powers under State law to the extent that that consent is conducive to the achievement of a purpose within the scope of Commonwealth power.

BRENNAN CJ: What does that mean, Mr Attorney, in terms of how to consent to? What does the consent do, if validly given?

MR WILLIAMS: It overcomes the incapacity of the States to confer State jurisdiction on the Federal Courts.

BRENNAN CJ: So that the State has no power to confer jurisdiction on the Federal Courts unless the Commonwealth legislatively consents; is that the proposition?

MR WILLIAMS: That is the nub of the scheme.

BRENNAN CJ: That may be the nub of the scheme; is it the constitutional proposition?

MR WILLIAMS: As a constitutional proposition it is one that the scheme is founded upon.

McHUGH J: One problem that may arise from this argument is that it seems to distort the way in which matters of State judicial power can come to this Court. Section 73 of the Constitution provides for appeals either from Federal Courts or a court exercising federal jurisdiction or the Supreme Court of a State or another court of a State which, at the establishment of the Commonwealth, an appeal lay to the Judicial Committee. If this scheme is valid, then you can appeal from the Federal Court to the High Court in respect of State judicial power, which seems to turn the constitutional scheme in section 73 on its head.

MR WILLIAMS: That is an issue arising out of Chapter III, which the Solicitor-General is going to deal with.

McHUGH J: Yes.

MR WILLIAMS: To answer it from the part of the argument with which I have been dealing ‑ ‑ ‑

McHUGH J: I think one of the difficulties of this, to my mind at the moment, Mr Attorney, I do not know that you can divide these two questions up. You can in one sense, I suppose, but they seem to me to be very much interrelated.

MR WILLIAMS: It seems to have been the approach taken by the ‑ ‑ ‑

McHUGH J: In the court below, certainly.

MR WILLIAMS: Not only the court below but the Court in considering that the co-operative scheme in Duncan and in ‑ ‑ ‑

TOOHEY J: And it gives your second proposition in paragraph 2.4 a somewhat unreal flavour because, until Chapter III has been addressed, the proposition does not really say a great deal about the issues that are presented by this appeal. It just speaks of the ability of a scheme to confer powers upon State and federal officers or authorities, but the crux of it seems to be whether this can be done in the case of judicial power because of Chapter III.

MR WILLIAMS: Yes, but the broad proposition is that, unless you find something in Chapter III, there is no reason why it cannot be done.

TOOHEY J: That is another way of looking at it, I suppose, yes.

McHUGH J: But since Boilermakers the view has always been that you look to Chapter III first in terms of seeing what powers you can invest in the Federal Court. Boilermakers denied that 51 could be a source of power. In terms, if I recollect the judgments correctly ‑ ‑ ‑

GUMMOW J: 94 CLR 269 is the passage.

MR WILLIAMS: Yes. I have not read all the page in this instant, but the third paragraph on the page seems to suggest that the approach we are taking is consistent with the approach taken in Boilermakers had there been no Chapter III, it may be supposed. So the argument is I think constructed in a form which has some authority.

GUMMOW J: I think you have to go to the middle of page 270.

McHUGH J: The passage I had in mind is at page 272, about six lines down, where the majority said:

The absurdity is manifest of supposing that the legislative powers conferred by s 51 or elsewhere enabled the Parliament to confer original jurisdiction not covered by ss 75 and 76.

MR WILLIAMS: It is addressing the issue in Boilermakers.

McHUGH J: It is certainly addressing the argument, the separation of powers argument but nevertheless it seems a general statement that 75 and 76 are exhaustive and their Honours go on to say that it seems even less possible to believe that an appellant power can be created or conferred that fell outside section 73.

MR WILLIAMS: I think at this stage all I can say in response is that if this case runs the course the Commonwealth has contemplated, then the two parallel lines of authority Duncan and Boilermakers represent will have to be reconciled.

Now section 71, it is our submission that in so far as a court, a Chapter III court is a Commonwealth body, there is no reason why section 71 should be treated any differently to other heads of power. Section 71 extends to granting consent for the Federal Court to exercise State functions if they are conducive to or consistent with the purposes for which the court is established. As I sought to demonstrate this morning, allowing a Federal Court to exercise cross-vested State jurisdiction avoids arid jurisdictional disputes. It ensures that all of the matters in dispute can be resolved in the one hit.

McHUGH J: The merits of the scheme are almost beyond argument, subject, perhaps, to some tidying up of questions of appeal and so on.

MR WILLIAMS: Can I briefly mention then section 51(xxxix). This implied incidental power that we suggest exists in relation to section 71 is directed at matters incidental to the subject matter of legislative power. Section 51(xxxix) would be directed at matters incidental to the execution of the powers. Just because it is limited in that way, and accepting that it does not provide authority for the conferral of jurisdiction, it does not necessarily follow that section 51(xxxix) provides no support for a provision such as section 56(2) of the Corporations Act. That section does not purport to confer any jurisdiction and certainly not federal jurisdiction. It merely consents to the conferral of a State jurisdiction and in doing so it deals with a matter which is incidental to the exercise of federal jurisdiction by a Federal Court.

Section 51(xxxviii) has featured in the appellants’ arguments. We seek to rely upon it in this case as a source for the Commonwealth provision, section 56(2) of the Corporations Act. We would say that there has been a concurrence on the part of State Parliaments, concurrence meaning the act of concurring but not necessarily the act of entering into a formal or express agreement. What one needs is agreement in the broad sense, and this can be demonstrated in a number of different ways.

Here we have in respect of both the corporation scheme and the cross‑vesting scheme a co-operative scheme. In the case of the corporations cross‑vesting scheme, the concurrence of the State Parliaments is demonstrated by the enactment of the State Corporations Acts conferring jurisdiction on the Federal Court and permitted by the Commonwealth Act. This was done following agreement between the Commonwealth and the States.

The legislative scheme that was enacted arose out of heads of agreement reached at Alice Springs in June 1990 between Commonwealth, State and Territory Ministers having responsibilities in relation to corporate regulation. The Alice Springs agreement is annexure A to the agreed facts. It appears at appeal book page 9. The agreed facts in paragraph 5 state, and I quote:

To give effect to that agreement the Commonwealth, the States and the Northern Territory enacted legislation.

The second reading speech in the Commonwealth Parliament, appeal book, page 37, refers to the Alice Springs agreement. It contains the statement:

The matters agreed in those heads of agreement are translated into the scheme to which the Corporations Legislation Amendment Bill gives effect.

The jurisdiction of courts is referred to in the second reading at page 38 in the appeal book, line 40 to the following page line 25. The enactment of the State Corporations Laws and that of New South Wales, in particular, similarly occurred in order to give effect to the Alice Springs agreement.

McHUGH J: But, Mr Attorney, what is the power which, at the establishment of the Constitution, could only be exercised by the Parliament of the United Kingdom or by the Federal Council of Australasia? What is the relevant power?

MR WILLIAMS: All we are concerned with here is the power to enact section 56(2), which is concurring in the vesting of State jurisdiction in a court outside the legislative jurisdiction of the colony.

BRENNAN CJ: You would say it is a power to join with the States for the conferring of the relevant jurisdiction on courts created by the Commonwealth?

MR WILLIAMS: Yes, I think it is probably appropriate, given that the state of events at the time, immediately prior to Federation, that you look at the colony and the jurisdiction of the colony and what it could do, and everything else is being external to it.

It has been suggested in, I think, the appellants’ submissions and some of the States, that there is no agreement because some of the States legislation was enacted prior to the Commonwealth. We would say that counts for little. In support of that, we would refer to the analogy that a Commonwealth law can be enacted under the external affairs power to give effect to a treaty before the treaty is in force in Australia. The law would be valid provided it does not extend beyond the limits of power conferred by the combination of the entry into the treaty and the external affairs power.

This was expressly referred to in the judgment of Justice Mason, as he then was, in Reg v Australian Industrial Court (1977) 136 CLR 235, at page 243. We would submit there is no reason why the concurrence of State Parliaments cannot be given for the purposes of section 51(xxxviii) after the Commonwealth enacts its laws, as occurred in this case in some States but provided the law is not capable of operating in relation to a State directly concerned until there is a concurrence.

Can I just refer the Court to the fact that we have handed up a table which lists the cross‑vesting legislation: dates of assent and dates of effect, and the corporations cross‑vesting provisions, date of assent and date of effect. The effect of all that, we would say, is that each relevant jurisdiction has enacted appropriate laws, and in each case represents an appropriate concurrence.

In Port MacDonnell (1989) 168 CLR 340, a case referred to by Mr Douglas, the effect of section 51(xxxviii) was considered, and it is clear from that case that the provision - the words “within the Commonwealth” within that phrase, refer to the place of enactment of the law, and that the phrase “as at the establishment of the Constitution” refers to the point of time immediately before the Constitution’s establishment.

BRENNAN CJ: Mr Attorney, I do not know whether anything really turns on this or not but the extent to which the Commonwealth relies on 51(xxxviii), what was the factual foundation for asserting that there was any concurrence by the Parliaments of a State at the time of the enacting of the cross-vesting legislation other than for the consent of Victoria?

MR WILLIAMS: We would say it is enough to see the form of the legislation, which is plainly mirrored.

BRENNAN CJ: So that there could be an ex post facto concurrence, invalid when the Commonwealth Act is assented to but valid so soon as the complementary legislation by the State is passed.

MR WILLIAMS: In this case I think that issue does not arise in that the coming into effect was on the identical date.

BRENNAN CJ: That was the date which it was proclaimed to come into effect.

MR WILLIAMS: Yes.

BRENNAN CJ: But that assumes that there is a valid law which is susceptible of coming into effect pursuant to a proclamation.

MR WILLIAMS: Yes, but in that respect we submit that the same principle as applied in relation to the use of the external affairs power would apply; there would be no power to enact legislation pursuant to the external affairs power in the absence of any other constitutional legislative power. But it has been accepted that if it is enacted in accordance with the treaty prior to the treaty taking effect for Australia that it will be valid and the legislation will be valid once that treaty comes into effect. That is the analogy we rely upon.

TOOHEY J: It comes into effect in the sense that it has been enacted into municipal law or do you mean it in some other sense, Mr Attorney?

MR WILLIAMS: I am sorry, I did not follow that.

TOOHEY J: When you said the treaty comes into effect, were you referring to its ratification or to legislation which gives it operation as municipal law, or what?

MR WILLIAMS: Whatever brings it into effect for Australia, whether it is ratification or exchange of notes or, in some cases, mere signature.

BRENNAN CJ: That must assume that the existence of the treaty is sufficient to establish the existence of an external affair in the circumstances of the instant case. That may be so - I am not saying that it is, but it may be so - but how does it lead to any analogy with 51(xxxviii)?

MR WILLIAMS: You have got a legislative process going on in a similar sort of way to the treaty negotiation signature and ratification process.

BRENNAN CJ: But concurrence of a Parliament can only be contemplated, one would think, at the time at which the Parliament either reads the concurring Bill for the third time and has the assent given or, conceivably - and one may doubt this - by resolution of the Parliament to which all parties of a Parliament consent - that is both houses - where there is a bicameral legislature and the Crown.

MR WILLIAMS: That is a very formal approach, if I may say so, which perhaps does not take into account the exigencies of the legislative process in all of the jurisdictions involved in an exercise such as the cross‑vesting scheme.

BRENNAN CJ: It is a question of what is meant by the constitutional terms of “the concurrence of the Parliaments.”

MR WILLIAMS: We say, consistently with what was said by the Court in the Port MacDonnell Case, it should be looked at broadly. “Concurrence” should be given a broad meaning and, if you can identify that concurrence at a time, then the constitutional requirements are met.

McHUGH J: Yes. Could I take you back to the Constitution and, also, to 56(2), because I am having some trouble relating the two provisions. Now, 51(xxxviii) is a power to make laws with respect to the exercise of a power which, at the establishment of the Constitution, can be exercised only by the Parliament of the United Kingdom or the Federal Council. So, it is the exercise of a power. When you look at 56(2), it says:

The Federal Court or the Supreme Court of the Capital Territory may:
(a) exercise jurisdiction (whether original or appellate) conferred on that Court by a law of a State corresponding to this Division -

et cetera. Now, how do you fit, for example, the Parliament of the United Kingdom into this? It has got to be a law with respect to the exercise of a power which can be exercised only by the Parliament of the United Kingdom, for example. Now, I just have some trouble relating that to 56(2), or relating 56(2) back to it.

MR WILLIAMS: Immediately prior to Federation, the Australian colonies individually had no power to consent to the conferring of jurisdiction from - no power to consent in the form in which section 56(2) does to the conferring of jurisdiction from another place.

McHUGH J: So, do we have to deal with this power at a fairly abstract level?

MR WILLIAMS: Yes.

McHUGH J: In other words, you are not talking about it at a fairly concrete level, you are talking about it in rather abstract terms.

MR WILLIAMS: Well, just to take a broad proposition, in general terms, colonies had no power to make laws having extraterritorial operation. Any law that required that power to be made would be a law, we would say, coming within that class referred to in section 51(xxxviii).

I turn briefly now, your Honours, to the State legislative powers. Again, I think I can be brief in this respect. It is dealt with in our written submissions in paragraphs 2.10 and 2.11. The appellants argue that the Colonial Laws Validity Act still limits the legislative power of a State. They argue that the effect of section 5 of that Act is to preclude the vesting of State jurisdiction in any body other than the courts of the State. In our submission, the short and complete answer to this is that any relevance the Colonial Laws Validity Act might have had is removed by section 3(1) of the Australia Acts 1986 which took effect at 5am, Greenwich Mean Time, on 3 March 1986, which is prior to the relevant legislation. It provides that:

The Act of the Parliament of the United Kingdom known as the Colonial Laws Validity Act 1865 shall not apply to any law made after the commencement of this Act by the Parliament of a State.

It is quite categorical.

The appellants appear to be trying to sidestep that by saying that limitations placed on State power by the Colonial Laws Validity Act are locked in place by section 107 of the Constitution. Our short answer to that is that section 107 does not limit State legislative power. It does not freeze legislative power in the form in which it existed in 1900. That would be to

contradict section 106 which expressly contemplates a State Constitution may be altered in accordance with its terms. The true position is that section 106 continues the State Constitutions, complete with all of the mechanisms for change that they had at 1900. Those mechanisms included the modification or removal of any qualifications on legislative power that flowed from imperial legislation.

Assuming that the 1865 Act placed a fetter on the otherwise plenary legislative power of a State, the repeal of that legislation after 1901 was to have exactly the same effect as it would have had before 1901. In other words, it removed a fetter on the legislative power of the States and thus expanded their power. The effect of removal of it by the Australia Acts was to remove any limitation remaining. Reference is made in the appellants’ arguments to Cigamatic. We have dealt with that in our submissions and I will, unless the Court has any questions for me, leave the repellence of the argument to the Solicitor‑General.

BRENNAN CJ: Than you, Mr Attorney. Yes, Mr Solicitor.

MR GRIFFITH: If the Court pleases. As has been indicated I will deal with the applications of what we now submit is the general principle which, on our approach, applies unless there is some prohibition derived from Chapter III to prevent its application, and also deal with the question of the narrower point of whether these particular powers under section 596A and 596B of the Corporations Law are non-judicial and we deal with that as a discrete issue as the Court will see from our written submissions.

Your Honours, may we commence by taking your Honours to one short passage from the judgement of Justice Windeyer in Spratt v Hermes 114 CLR at page 272. In the first full paragraph on page 272 his Honour said:

It is well to remember that, as Dixon CJ once said: “We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications”.

In the next paragraph his Honour quoted Justice Holmes in Missouri v Holland in 1920 - I will not read that citation - but went on after the quotation:

I quote this because I feel that we should not in this case reach a decision by reference only to particular sentences to be found in earlier judgments of this Court, some of them given many years ago in conditions different from those of today upon questions different from the present question. The Constitution is, this Court has said, “intended to ensure and apply to changing conditions”.

Your Honours, this was said in the context of a discussion about the type of jurisdiction which could be vested in a Federal Court consistently with Chaper III. I will turn to the broader questions of the scope and operation of Chapter III in a moment.

It is important, in our submission, to bear in mind that when the appellants argue that section 77(i) of the Constitution is exhaustive of the jurisdiction that can be conferred on a Federal Court. We submit that the authority they call in is essentially limited to two sentences in two earlier decisions of this Court. There is one sentence In re Judiciary and Navigation Act 29 CLR at page 265 which is set out in paragraph 31 of the appellants’ written submissions. The other sentence is the joint judgment of the Court in Boilermakers 94 CLR at page 272, his Honour Justice McHugh referred to a moment ago, which is set out in the same paragraph.

We say to the extent that similar statements can be found in dicta in other judgments of the Court, collected, for example, in footnote 35 of the appellants’ submissions, they generally take as their source one or other of these two sentences. It is our submission, your Honours, that on analysis these two cases in which the two sentences appear were dealing with different issues from those currently before the Court. In our submission, they do not answer the question which we postulate, namely, whether anything is to be drawn from Chapter III to prevent what we say the capacity of the governments of Australia to draw their legislative powers together to establish both the corporations scheme providing for the cross‑vesting exercise of jurisdiction and also, as we have indicated in our submissions, we would say the similar principles apply to the general cross‑vesting scheme.

In short, your Honours, it would have been quite feasible for the corporations cross‑vesting scheme to have been embraced by a simple amendment of the Cross‑Vesting Act. In exchange with Justice Gummow this morning, the Attorney referred to the fact that that issue was addressed by the AIJA Report which inquired into the first five years operation of the cross‑vesting scheme. In principle ‑ ‑ ‑

KIRBY J: Does it acknowledge any limitation in what can be conferred? Do you accept that all that could be conferred by agreement of the States and the Commonwealth would be something which, of its nature, was apt to a Chapter III court?

MR GRIFFITH: Your Honour, it must be a matter as defined for the Chapter III purposes. It must be limited to that.

KIRBY J: Why?

McHUGH J: Why?

MR GRIFFITH: And what is incidental to a matter ‑ ‑ ‑

McHUGH J: Why?

MR GRIFFITH: Your Honours, because, firstly, we say as a matter of construction of the scheme, the vesting and the consent is as to a matter in State jurisdiction.

McHUGH J: Why, if your argument is correct, must the jurisdiction conferred on the Federal Court be confined to a matter?

MR GRIFFITH: Your Honours, because our submission is that we are dealing entirely here with the issue of the exercise of judicial power within the Commonwealth and a basis whereby, in our submission, your Honours, is constitutionally permissible for judicial power to be exercised by a Federal Court, both federal judicial power vested by Chapter III, other judicial power including the Territories’ power, and we submit, your Honour, other judicial power being State judicial power.

McHUGH J: But, Mr Solicitor, you seem to want to have the best of both worlds.

MR GRIFFITH: Not at all, your Honour.

McHUGH J: You want to take part of Chapter III to limit what you can grant, what you can confer on Federal Courts, but at the same time, you want to say you can depart from the scheme which Chapter III so carefully works out.

MR GRIFFITH: With respect, your Honour, we have the best of both worlds and we have a scheme which ensures that which is the general aim of Chapter III itself, to ensure the judicial controversies are disposed of, your Honour, and ‑ ‑ ‑

McHUGH J: If you can put non-federal judicial power in a Federal Court, what is there in Chapter III or anywhere else in the Constitution which would prevent you from putting administrative power or anything else in the Federal Court?

MR GRIFFITH: Your Honour, in our submission, it is inherent - we accept Boilermakers to the extent, your Honours, that it is inherent that a Chapter III court may only exercise judicial power, and that which is regarded as judicial power, as we say, your Honour, for historical reasons and by its vesting traditionally in a court the inquisitional functions here under sections 569A and B of the Corporations Law, that it is inherent, your Honour, that Federal Courts may only exercise judicial power, but not we say, your Honour, limited to ‑ ‑ ‑

McHUGH J: It says the judicial power of the Commonwealth shall be vested in those courts. Either that is an exhaustive statement or it is not. If it is not an exhaustive statement, there does not seem to be any stopping for it.

MR GRIFFITH: Your Honour, we submit it is plainly not because of the territories power, for example.

McHUGH J: That deals with the appellate jurisdiction, 73, 122, and there is a query about those cases and the Nauru legislation. I have always had some doubts about the Nauru legislation.

MR GRIFFITH: Your Honour, this case will not be determined - arise or fall on Nauru, but we mention it as having, of course, been exercised without demur on two occasions. That is not where the answer is, and we do not suggest that it is.

We do submit that one can draw, as Chief Justice Gibbs did, comfort from the fact that the Constitution, itself, expresses the basic compatibility of the exercise of federal judicial power and State judicial power. It is mandated by the terms of the Constitution in a way, of course, where the State courts are conscripted. They have no choice but to receive jurisdiction, and indeed, until the establishments of inferior federal courts, outside this Court, which of course did enjoy until very recent years an extensive original jurisdiction which it exercised ‑ ‑ ‑

KIRBY J: That is the trouble, is it not, because the Constitution has gone to the pains of expressing that. The conscription, it is up‑down; whereas you are trying to suggest a scheme down‑up.

MR GRIFFITH: No, your Honour, we are stronger, we are coming from bottom up on this one and we reject any ‑ ‑ ‑

McHUGH J: There seems to me a lot of top‑down reasoning here.

MR GRIFFITH: No top‑down here, your Honours, it is straight up we say, and lower level of the Pont Du Gard, if we may say so. Your Honours, the conscription, of course, was required because until 1975, by and large, all federal jurisdiction other than was exercised by this Court with the exception of industrial court jurisdiction over the years and up to Boilermakers, was entirely exercised by the State courts, and they had no choice about it. At the same time it is quite clear that those that framed our Constitution were entirely content with the contemplation that, if we may call it, the pure Chapter III jurisdiction, should, by and large, other than the level being exercised in this Court, be exercised indiscriminately admixed with the exercise of jurisdiction in State courts, being courts, of course, which are in no way limited, save in the Kable sense, for the moment, in the manner of jurisdictions which they may exercise.

GUMMOW J: I thought you were saying, Mr Solicitor, it did not work in reverse. In other words, you could not, on your theory, inject into this Court some jurisdiction exercised by State courts because it would not involve a matter, even though, under section 77(iii), of course, that does happen.

MR GRIFFITH: Your Honour, I was going to make a point - - -

GUMMOW J: You are not saying it works in reverse?

MR GRIFFITH: Your Honour, I was intending to say it because, of course, one has had a liberality of cross‑movement between this Court and State courts. Until section 40A was repealed in 1976 there was automatic removal of matters into this Court when the relevant circumstances were established. This Court, of course, now has free‑ranging powers, itself, to remit matters from this Court to State courts or federal courts as may be appropriate. They may come up to this Court and be dealt with and remitted out; they may come to this Court as original matters and be remitted out. Perhaps it is appropriate at this stage if I could anticipate in my submissions, somewhat, to indicate that we say that there is nothing unusual about this capacity for exercise of matters being whether they are federal or State jurisdiction to come up and down through this Court or other federal courts or State courts as may be appropriate.

Your Honours, to enlarge upon the exchange originating between Justice Gaudron and the Attorney, in our submission, there is a vesting by operation of the State law with the operation of the Commonwealth law consenting to the vesting of the State ‑ ‑ ‑

GUMMOW J: Why do you need that?

MR GRIFFITH: Why do you need the consent, your Honour?

GUMMOW J: Yes, in constitutional terms as distinct from being ‑ ‑ ‑

MR GRIFFITH: Your Honour, in essence we need it to exclude the possible constructions, that ordinarily one would say that the establishment by Commonwealth law of a Commonwealth inferior Federal Court and providing for its jurisdiction was intended comprehensively to provide for the jurisdiction which might be exercised by that court.

McHUGH J: What it seems to come to is that you are saying that there is a constitutional power in the Commonwealth to say that the Commonwealth has power to make laws concurring with States giving jurisdiction to Federal Courts.

MR GRIFFITH: In judicial matters.

McHUGH J: In judicial matters?

MR GRIFFITH: Yes. We assist on purity, your Honour.

McHUGH J: I cannot find it in section 51. Where does the power come from?

MR GRIFFITH: Your Honour has not found it in 51. Perhaps I should revisit again our submissions about paragraph 39, paragraph 38 and also the nationhood power, your Honour, and also - perhaps we should indicate our attitude so far as corporations power and territories power is concerned. It may well be that there is a simple answer for the purpose of this corporations law in the territories power; full stop. It would seem not to be corporations power because of course the corporations law, following the decision of this Court, is a law which is supported inherently by the territories power rather than the corporations power.

Your Honours, although other of the interveners - and I think the respondents are content to rely upon the territories power - it does not particularly suit the purposes of the Attorney intervening on behalf of the Commonwealth, because that would say nothing about the general cross‑vesting scheme of which on our approach, your Honour, the corporation scheme is but merely an example. So for that reason - although I suppose as a last crumb at the door we would accept the vindication of this scheme by corporations power of otherwise some difficulty. Our submissions are wholly based upon the in globo approach that cross‑vesting is a generic matter represented by the general Acts comprising the cross‑vesting scheme and by the particular parts dealing with the corporations laws, which for historical and reasons of convenience one finds the law in the one set of legislation are provided for separately.

Your Honour, that is a long-winded answer and it might be that if your Honours say you are not satisfied about the submissions made hitherto on section 51 powers and the nationhood power, before I finish I might briefly revisit it to hope that I may obtain your Honour’s adherence on those powers you are saying - which in our submission they provide within the context of the Duncan and Cram approach, and I will not revisit the parts which the Attorney took us to.

McHUGH J: Cases like Cram and Duncan, they have a foundation in 51 to begin with, in namely 51(xxxv).

MR GRIFFITH: Your Honour, 51(xxxix) enables support of the judicial power.

McHUGH J: I know it does.

MR GRIFFITH: We say your Honour’s difficulty arises, in effect - as your Honour has put it more than once for me - from Boilermakers.

McHUGH J: If Boilermakers had never been decided, if In re Judiciary had never been decided, my prima face view would still be the same view as reached in those cases, that the Constitution itself seems to require this approach.

MR GRIFFITH: Your Honour, I was coming to that very point, to say, well, what does the Constitution require if you put Boilermakers and the Judiciary Act on one side. And what we seek to do, your Honours, is to strip away reliance on, we say, statements made in a different context; the point of view of re Judiciary and Navigation Act as to what is a matter. Your Honours had no difficulty in that case. We say that, for the purposes of State judicial power, one must find a judicial matter, just the same as for the exercise of federal judicial power So, we put that on one side.

In our submission, Boilermakers was a case concerned with the power of the Commonwealth Parliament to confer the judicial power of the Commonwealth on a non‑Chapter III body. In other words, your Honour, we say that it was concerned with the issue of policing federalism to ensure that there was no breaking down of the requisite structure whereby Chapter III courts were not corrupted in the exercise of their powers in respect to the operation of the provisions provided for in the Constitution with respect to aspects, we put it, of federalism.

Now, your Honours, we say that that decision did not concern, and was not directed with what we say is the sensible exercise of processes of co‑operation in the interests of the Australian people designed to ensure that, so far as possible, all judicial disputes are resolved completely and exhaustively in one proceeding, and that there is not a disconformity of separate jurisdictions. So that, firstly, it may be possible that one would fail, not because one does not have a requisite ‑ ‑ ‑

GAUDRON J: One understands that. But does that really arise under the Corporations Law? I mean, States could just as easily have given this part to the State courts without causing jurisdictional conflict, could they not?

MR GRIFFITH: Your Honour, this is the difficulty because of the fact our submissions are addressing the broader issue, rather than the narrow one.

GAUDRON J: Yes.

MR GRIFFITH: Your Honour, if one narrows down to the corporations power, our basic position - there is not much difficult about it. One can just regard it as a straight justification of the territories power and the only ‑ ‑ ‑

GUMMOW J: Well, wait a minute. Are you saying section 56(2) is a law for the government of the Australian Capital Territory?

MR GRIFFITH: Your Honour, we say it is, yes.

GUMMOW J: That does not spring up by looking at it.

MR GRIFFITH: Your Honour, it provides for the Australian Capital Territory to enter into this co‑operative scheme.

McHUGH J: No, it says:

The Federal Court or the Supreme Court of the Capital Territory may:
(a) exercise jurisdiction (whether original or appellate) conferred on that Court by a law of the State ‑ ‑ ‑

MR GRIFFITH: Yes, your Honour. But it is all part of the reciprocal scheme to ensure a seamless operation of corporations laws for the benefit of the Territory.

McHUGH J: Yes, I know. These expressions “seamless schemes” and “seamless webs”, they sound right, but where is the foundation for it in the Constitution?

MR GRIFFITH: Well, your Honour, we have indicated what we say are the constitutional powers and we intend ‑ ‑ ‑

GUMMOW J: There was a power under 51(xxxvii), it would seem. But no one chose to engage it. I do not know why not, but nobody did. It is no good blaming the Constitution and saying, “Things have moved, and Sir Victor Windeyer said we have got to view it as a living document.”

MR GRIFFITH: Your Honour, if one has.....the corporations, there was a matter of urgency to obtain a result.

McHUGH J: The Constitution contains the answers to these problems.

MR GRIFFITH: We agree with your Honour.

McHUGH J: But it just requires some will on the part of governments to utilise them; 51(xxxvii) and, if necessary, 128.

MR GRIFFITH: Your Honour, it might be a matter of default settings. Our submission is to say we have established the basic principle. Subject to a Chapter III difficulty, we say this must be regarded within power. That is the first - part 2 of our submissions are intended to gain that position. Then what I am seeking to do is to deal with the issue: is there anything arising from Chapter III which prevents that? Now, if the Court adopts the approach, it is necessary to spell out specific authority from the terms of Chapter III itself. Then the expression of that as a default setting of approach to inquiry will carry with it the result. That much is admitted.

Our approach is to say - firstly, I saw the point of putting Boilermakers and In re Judiciary and Navigation Acts on one side - that when one approaches this issue, one should approach it on the basis of saying, “Is there anything implicit” or, if one likes, explicit - we say there is nothing explicit - “in Chapter III which prevents the lawful establishment of this scheme?”. Of course, regard must be had to Chapter III, regard must be had to the aspects pointed out in Boilermakers’ Case to ensure the integrity of Federal Courts - this Court and other Federal Courts - in the exercise of Chapter III judicial power.

But our submission is that it is perfectly compatible and in no way by implication prohibited by Chapter III to admit the capacity of a Federal Court to be vested with the State jurisdiction on the basis - and this is the point I was coming to a few moments ago - that a Federal Court is not obliged to exercise the jurisdiction to the point of resolving the controversy which may in that way be vested and brought to the Federal Court, but at the same time we accept that the Federal Court, invited to exercise State jurisdiction, is, by reason of, we say, the lawful operation of the State, Territory and Commonwealth laws, not in the position merely to deny jurisdiction, full stop.

What we say the position is is that the scheme of cross‑vesting and the corporation scheme is to ensure that within Australia no judicial controversy with respect to a matter is to fail for want of jurisdiction, although at the same time it is integral to the scheme. One sees this particularly in the general cross‑vesting scheme. Nonetheless, it is appropriate that matters proceed in the most appropriate court for their disposition.

BRENNAN CJ: Mr Solicitor, is this the constitutional basis on which you put it: first, that there must be as between the Commonwealth and the State a plenary power to ensure that judicial power can be exercised by a suitable repository?

MR GRIFFITH: A single court.

BRENNAN CJ: By a court?

MR GRIFFITH: Yes.

BRENNAN CJ: Secondly, that there is nothing in the Constitution which precludes the selection of either a State court or a Federal Court as the appropriate repository of that power?

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: And that Chapter III either expressly or impliedly limits the Federal Courts to accepting jurisdiction in what are regarded as matters.

MR GRIFFITH: Strictly so called, yes, your Honour.

BRENNAN CJ: Are those the steps in the proposition?

MR GRIFFITH: Yes, they are, your Honour.

BRENNAN CJ: Then can I take you back to the first step and that is that by putting together the plenary powers of Commonwealth and States, it is possible to select any court as a repository of the power. What does that mean precisely? Does it mean that either a Commonwealth court or a State court can exercise power to determine issues which arise under the laws of the other polity and have its judgments executed under the laws of a polity to which it belongs?

MR GRIFFITH: Do you mean the law of the polity of the court that determines the matters?

BRENNAN CJ: Yes.

MR GRIFFITH: Yes, your Honour, we say, yes.

BRENNAN CJ: I can understand that in relation to the 71 jurisdiction vested in the States. I do not see it in relation to the vesting of federal jurisdiction because there seems to be nothing in the Constitution which contemplates - I will put it another way. Section 71 contemplates the vesting of federal jurisdiction in that sense in State courts so that the State courts judgments will be executed as State judgments.

MR GRIFFITH: Yes, your Honour, whether its federal or State jurisdiction.

BRENNAN CJ: Whether it is federal or State jurisdiction. But surely one would expect to find, if State jurisdiction could be invested in federal courts, that one would have some provision for the execution of those judgments by the federal government.

MR GRIFFITH: In a Constitution, your Honour?

BRENNAN CJ: Yes. Because it is in the 71 for the States. Why would it not be - - -

MR GRIFFITH: Your Honour, we say, certainly not, your Honour. In 1903 when Sir Samuel Griffiths took his summer vacation to write the Judiciary Act, there were no federal courts. It was all in the State courts. It was not in contemplation, we would submit, your Honour, that there would be a situation as there is now where there is extensive jurisdiction exercised by federal courts, the Federal Court and the Family Court.

BRENNAN CJ: Why was 71 necessary so far as the investing of State courts with federal jurisdiction was concerned?

MR GRIFFITH: It was absolutely necessary on the first day of Federation, your Honour, because of the circumstance that there was no High Court. There was no court capable of exercising - - -

BRENNAN CJ: But it did not need a constitutional provision to do it. There could have been just these plenary powers.

MR GRIFFITH: It might have been, your Honour, but it is an obvious thing to provide for just as Sir Samuel Griffith was aware that he would have to settle down in 18 months time and write the Judiciary Act, your Honour, to provide the exercise of federal jurisdiction.

McHUGH J: That is right but the State courts dealt with constitutional questions before the Judiciary Act, for example. I mean Bamford’s Case 1 SR(NSW), it deals with, I think, section 52 or one of those sections and I mean that was even before the Judiciary Act came into being.

MR GRIFFITH: Quite so, your Honour.

GUMMOW J: And that meant, inter se, questions could go to the Privy Council.

MR GRIFFITH: Yes, your Honour, but it also, of course - every Commonwealth has to have a High Court, your Honour.

GUMMOW J: Were it not for the Judiciary Act structure.

MR GRIFFITH: But the High Court was established as soon as may be, your Honour, and things changed and then we had the provision of section 40A to ensure that this Court was not bypassed at least in matters that mattered. Your Honours, it does come down to this issue of one says obviously it is appropriate - and the Constitution has done it - that there should be a specific vesting and conscription, if you like, of the State courts for the purposes of the Commonwealth so that the States have no choice about it. In our submission, one cannot from that construct a denial of a reciprocal possibility that it may be just as much as it was obvious in the convenience for the administration of federal judicial power for the States to be vested and to exercise the jurisdiction as they continue substantially to do in State courts for the reciprocal possibility of the exercise of State jurisdiction to be exercised in federal courts.

GUMMOW J: Just stopping there for a minute. How does section 79 of the Constitution work with your theory?

MR GRIFFITH: How does ‑ ‑ ‑?

GUMMOW J: Can a State Parliament dictate the number of judges, prescribe the number of judges who are to exercise this jurisdiction which, by definition, is not federal jurisdiction?

MR GRIFFITH: No, of course not, your Honour, you take the courts as you find them.

McHUGH J: But where do you get that principle from?

MR GRIFFITH: It happens when the Commonwealth vest jurisdiction in State courts.

McHUGH J: But that is because it specifically deals with it, but you are now dealing with the nationhood power, of the combine effect of State and Commonwealth legislative power. Why cannot they do what they like if your argument is right? Why cannot they say there has got to be eight judges of the Federal Court to deal with contempt cases?

MR GRIFFITH: Of course they cannot, your Honour. It is a matter of vesting the jurisdiction and it is for the court to exercise it if it chooses to. Perhaps if I could dispose of it, because I have tried three times to come back to this question of must the court exercise the jurisdiction? In our submission, within the context of - I will call it a scheme, and perhaps if I could refer to the general cross‑vesting scheme rather than the corporations to make my point a general one - the effect of the scheme is that no matter, if it is a matter, may fail for want of jurisdiction, that if the recipient court chooses not to exercise its jurisdiction - and we submit that it does have a discretion whether or not to exercise it - then its discretion is to be exercised if it chooses not to exercise the jurisdiction by transferring the matter to another court.

GUMMOW J: So they are not conscricted? The Federal Courts are not conscricted?

MR GRIFFITH: Of course they are not conscricted, your Honour.

GUMMOW J: But the State courts are conscricted?

MR GRIFFITH: The State courts are, yes, your Honour, but even though they are, the cross‑vesting scheme would enable them to transfer it to the Federal Court and if the Federal Court did not like it, they could transfer it back or transfer it to a Territory court or somewhere else. Of course, in the cross‑vesting scheme, there is a possibility that there might be matters issued in two separate courts, perhaps a Part IV of the Trade Practices Act in the Federal Court and another matter in the State court, and it might be at the same moment an order is made for them to be transferred to the opposite court.

When we were drafting the legislation, of course, we did not have a provision for that because you expect sensible co-operation, even on an informal basis, to deal with those issues. But, your Honours, there is an answer on this question, “Must you exercise the jurisdiction?” The answer is no, you may transfer it, and there are detailed provisions in section 53 and following of the ‑ ‑ ‑

GUMMOW J: No, but is that a constitutional proposition? I know that one can have some certain pride as a draftsman in these things, but is that a constitutional proposition?

MR GRIFFITH: What, were the cross‑vesting schemes to make the exercise compulsory?

GUMMOW J: Yes. This capacity that the States have, you say, is that one to conscript the Federal Courts or not?

MR GRIFFITH: Your Honour, they certainly could not do it without the sanction of the legislative power of the Commonwealth.

GUMMOW J: That is what I was wondering, because in the answers to the proposition the Chief Justice put to you, I am not sure you included, as a necessary component, the consent of the federal Parliament, whatever consent they need.

MR GRIFFITH: It might be the danger of answering yes or no, your Honour, but it is - I think I should have learnt last time not to answer all these questions until we finish - but, your Honours, it is the position, we say, and we say for the reason that your Honour the Chief Justice said in Duncan at page 579, that it is necessary to establish the effective capacity of the State to constitute this vesting for there to be a law of the Commonwealth which sanctions it. Otherwise, the natural construction will be that it is inconsistent with the Commonwealth provision for the States to enter onto the field of the jurisdiction of the Commonwealth judicial body.

GUMMOW J: Inconsistent with?

MR GRIFFITH: Inconsistent with the Commonwealth law.

GUMMOW J: Which law?

MR GRIFFITH: Establishing the Court and specifying its jurisdiction. Could I take your Honours to that passage of Justice Brennan at 158 CLR 579. His Honour there makes a point, of course, not in a Chapter III context but ‑ ‑ ‑

GUMMOW J: That is the point.

MR GRIFFITH: Your Honour, we say what he says applies equally to a Chapter III context; that one would say that a State law which provides simpliciter without the reciprocal Commonwealth law providing for ‑ consented for that exercise would fail, as his Honour says:

not because of a constitutional incapacity in a Commonwealth tribunal to have and to exercise State power, but because the Commonwealth Act would be construed as requiring the tribunal to have and to exercise only such powers as the Commonwealth Parliament has chosen to vest in it.

Your Honour, we see there that your Honour the present Chief Justice did say that the effect of the Commonwealth Act is to permit the State Act to repose powers in the State - State powers in the tribunal. We say mutatis mutandis unless there is a prohibition to be spelt out from Chapter III, the same applies to a Federal Court. So we accept, your Honour Justice Gummow, that in the propositions reduced to three propositions there is a requirement for effective operation that there be an expression of Commonwealth consent to the vesting as in both the corporations scheme and in the general cross-vesting scheme. Your Honours, may I return ‑ ‑ ‑

GUMMOW J: Can I just ask you before you depart from that, Mr Solicitor, the execution of the judgments rendered in exercise of this jurisdiction, is that a matter within the legislative competence of the States or purely within the legislative competence of the Commonwealth?

MR GRIFFITH: Your Honour, when the Commonwealth vests in the States then it is within the competence of that vesting for the execution procedures to be according to State law.

GUMMOW J: Yes, of course.

MR GRIFFITH: We say, your Honours, in the reciprocal, as long as the vesting of the jurisdiction is within power, then the processes of execution can follow by picking up the ordinary processes of execution of any valid order of the Federal Court. You just pick it up.

GUMMOW J: So it is a matter for the federal law.

MR GRIFFITH: It is in the Federal Court, yes, your Honour.

GUMMOW J: If a section such as section 79 of the Judiciary Act - which is not an execution section, I appreciate - a section such as 79 was inadequate to cope with the situation in the Federal Court because it is only talking about the exercise of federal jurisdiction, what happens?

MR GRIFFITH: Your Honour, if it is found to be inadequate or the scheme itself is found to have a lacuna, that can be filled by a Commonwealth law.

GUMMOW J: By the Commonwealth Parliament?

MR GRIFFITH: Yes, the Commonwealth Parliament, yes. It must be.

BRENNAN CJ: Why is it that if the Federal Court exercises this State jurisdiction to the point of judgment which is then executed it is not a case of an exercise of federal judicial power?

MR GRIFFITH: Under Chapter III?

BRENNAN CJ: Under Chapter III.

MR GRIFFITH: Your Honour, what we submit is, it is an exercise of judicial power by a Federal Court.

BRENNAN CJ: I appreciate that. Why is it not the judicial power of the Commonwealth which is then being exercised?

MR GRIFFITH: Your Honour, it could be regarded, if it were accepted, that that was a judgment arising under a law made by the Parliament, but the difficulty about that is that the law of the Parliament is a law merely providing for consent rather than for the vesting of the jurisdiction. The point we wish to make is that Chapter III deals exhaustively with what we say are the policing of the Constitution aspects of judicial power but does not prevent a capacity in a Federal Court to exercise other judicial power, and I will forget Nauru for the submissions, but we do refer to Territories and the outstanding issue as to whether or not original jurisdiction of the Territories may be exercised by a Federal Court as it has in the past, including by Justices of this Court. In our submission, it is also the case that, if there is an exercise of jurisdiction vested with assent of a law of the Commonwealth in a Federal Court, so long as it is a judicial power and not a non‑judicial power, with respect to a matter - not a federal matter but a matter so defined - but ‑ ‑ ‑

McHUGH J: It still at the moment strikes me as very strange that the State has no power to make a law conferring jurisdiction on the Federal Court, yet if the Commonwealth consents, the State does have that power. Even if the Commonwealth has some power of concurrence from somewhere or other, where does the power of the State come from?

MR GRIFFITH: Your Honour, we do not say the State does not have power. We say the State does have power.

McHUGH J: If you did not concur, then, as I understand your argument, you would say the State just has no power.

MR GRIFFITH: There would be an invalidity case of inconsistency, your Honour. Perhaps one would rely on section 109 for that purpose. We would say that it just would not operate because the approach of Justice Brennan that I referred to would apply to say there is no room for the State law to come into the Commonwealth patch, as it were.

GAUDRON J: Maybe not, if Chapter III does not prevent it. Why would you take that approach?

MR GRIFFITH: Your Honour, what we say is that the construction of Commonwealth intention would be the same, whether or not there is a Chapter III implication that you cannot vest it in a Chapter III court.

GAUDRON J: So the Commonwealth could amend the Federal Court Act to say, “The court may exercise such other jurisdiction as is conferred on it by any polity from time to time”?

MR GRIFFITH: Any polity from time to time?

GAUDRON J: Yes. It could be Christmas Island or ‑ ‑ ‑

McHUGH J: Nauru.

GAUDRON J: Yes.

MR GRIFFITH: Your Honour, that might be the case. When one reads Sir Garfield Barwick’s recent autobiography, you see him regretting the fact that there is not a trans‑Pacific court. In fact, I am somewhat amused, he regrets the fact that there is not an external court of appeal from this Court, but that is his view about it. But we would say that it is the very sort of thing one might contemplate, that you could sit it as in Nauru where it happened, without any specific addressing of the issues, and the court exercised the jurisdiction. It may well be appropriate for Australia to assist those in need of superior judicial assistance, rather than lending judges and sending them over, to take the view that there may be a capacity in this Court within its discretion to exercise the jurisdiction.

GAUDRON J: But ultimately, so long as there is not a clear intention to state exhaustively the jurisdiction to be conferred on a Federal Court, any State can confer jurisdiction in any matter on the Federal Court. For example, too, it could confer jurisdiction with respect to contested wills, family provision Acts, applications on the Family Court, unless there were an indication that the jurisdiction conferred by the Commonwealth was exclusive.

MR GRIFFITH: Your Honour, it would depend on the construction of Commonwealth laws. Our basic position is to say, in the absence of specific authority, one would adopt the approach indicated by Justice Brennan to say that it would be regarded as being ‑ ‑ ‑

GAUDRON J: Yes, but that is not a constitutional imperative.

MR GRIFFITH: No, that is a construction.

GAUDRON J: Yes.

MR GRIFFITH: But that has the result that nothing can happen ‑ ‑ ‑

GAUDRON J: But as a matter of constitutional law, and in the absence of any compelling need to read the matter that way, to read the foundation statute in the way you have indicated, the States can confer jurisdiction on any matter on any Federal Court.

MR GRIFFITH: And “matter” is used in the narrow meaning.

GAUDRON J: Well, yes.

MR GRIFFITH: On the basis your Honour postulates, that may be so.

GAUDRON J: Yes, and deny it to their own courts. And do it in such a way that it is compulsory for the - the Federal Court must exercise that jurisdiction.

MR GRIFFITH: Your Honours, it is a question of what is permitted. But if one tests the issue of jurisdiction, your Honour, it would be possible for a law of this Parliament, for example, to vest exclusively original jurisdiction with respect to all federal matters in this Court and remove the power of remitter.

GAUDRON J: Yes. But I am just asking what the States can do - what the State Parliaments can do, without any expression that their federal jurisdiction is their sole jurisdiction.

MR GRIFFITH: Your Honours, we come into this through the issue of providing, we say, a co‑operative scheme, not in the interests of governments, but in the interests of the people of Australia, to provide a mechanism whereby their actions will not fail for want of jurisdiction, will be wholly disposed of ‑ ‑ ‑

GUMMOW J: We know that, Mr Solicitor. The question is whether you have succeeded in meeting the people’s expectations by not choosing to follow the route that has been pointed out to you more than once.

MR GRIFFITH: Well, your Honour, our submission, of course, is we say we have.

GUMMOW J: That is the question.

MR GRIFFITH: Your Honours, I have not made much progress on that because I still have not taken Boilermakers off the list, which was ‑ ‑ ‑

McHUGH J: What about Cigamatic? Is not the sort of reasoning that prevailed in Cigamatic, and which you rely on so often, contrary to your whole argument here? I mean, before Federation the States did not exist, so they had no power to - nor did the federal judiciary, so the States had no power to invest any Federal Courts with jurisdiction. And after Federation, what business is it of any State to be investing Federal Courts with jurisdiction? It has got nothing to do with the States. It has got nothing to do with section 109 of the Constitution. It is just implicit in the plan of the Constitution itself.

MR GRIFFITH: Your Honour, we are very comfortable about Cigamatic in our submissions there, and we await with interest the judgment of the Court as to where they fall but, your Honour, in this issue we are dealing with a situation whereby one has a vesting, in our submission, of a jurisdiction for a particular and appropriate purpose and we say, as I have already indicated, the appropriate approach of the Court is to consider not whether there is some specific permission for it but whether or not there is some place to express prohibition of it. Your Honours, one gets drawn into a difficult area when one deals with the question such as Justice Gaudron puts to me, the possibility that States could dump, without any Commonwealth authority, their entire jurisdiction onto a federal court. One can see obviously there would be practical if not constitutional difficulties about that. Indeed, it might become unthinkable, but again on the reciprocal, there is nothing whatsoever to stop the Commonwealth, if one calls it dumping, dumping its entire federal jurisdiction into State courts. In fact, the States might say they do it.

GAUDRON J: But there is specific provision for that.

MR GRIFFITH: Yes, for a purpose, your Honour.

GAUDRON J: And the reason why there is specific provision, I suggest, is because were there not, it would be unthinkable that that could be done, just because there are separate polities with their separate indicia of their political status, their separate Parliaments, their separate executives and so on.

MR GRIFFITH: Your Honour, I understood what Justice McHugh put to me that without specific provision it might have been implied, but whatever is the truth of that, there is no harm in having a specific provision for that purpose and a conscriptive provision. But it is interesting that Chief Justice Gibbs nonetheless referred to it as being an example of the form of co‑operative mechanisms, which he referred to in Duncan, being in the sight of Chapter III powers. We do have to address the reciprocal. That is a specific one. If you have not got a specific power, by implication does that mean it is denied or can one say that it is compatible with the Constitution, we say supported by the exercise of nationhood and section 51 powers that we have referred to which is not to be regarded and held by this Court to be prohibited by Chapter III. We say that is the line of inquiry. We do admit that if there is a contrary approach to say, “This must be prohibited unless Chapter III specifically authorises it”, but we have difficulty to find the relevant phrase, although we do still look for it and if I could get to it we will define, if nothing else, section 77(i) as giving an avenue, at least in the general cross‑vesting scheme, if not in the corporation scheme.

BRENNAN CJ: Mr Solicitor, I know you have been held up and diverted and put along a variety of back ways, but can I just do it once more?

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: You referred to what I have said in Duncan’s Case. That was on the hypothesis that absent the consent provision, there would be an inconsistency for the purposes of section 109 between the federal law which created the institution and the State law which purported to vest jurisdiction in it. Why does not one apply that to Chapter III?

MR GRIFFITH: Your Honour, one might if one is saying, “Well, what is the construction of the Acts establishing the High Court and establishing the Federal Court and the Family Court?” The answer is that one should properly adopt that construction, your Honour. So that is the bar which is there and the function of the provisions for consent in effect lift that bar. So it is controlled, but controlled not by the court itself but by the Act of the Parliament.

BRENNAN CJ: No, what I am putting to you is that the Constitution itself can be construed as being the exhaustive statement of the jurisdiction in the same way as one might then construe the statute.

MR GRIFFITH: Your Honour, I thought you were heading there, but that was what I expected to be the next question but, your Honours, what we say is that is a question of the establishment of the Federal Courts by the Parliament to which one has reference and the question of jurisdiction which is vested in those courts. Your Honour, perhaps I cannot exhaustively answer your Honour’s question until I make the points that I wish to make about Chapter III dealing with policing the Federation and then other judicial power being there as well.

Your Honours, coming back to the In re Judiciary and Navigation Acts and the Boilermakers’ Case, we say that neither concerned the issue which we say arises here of the ability of the State Parliament to confer State jurisdiction or the ability of the Commonwealth Parliament to authorise the Federal Court to receive and exercise jurisdiction. It might be, as your Honour the Chief Justice puts to me, the answer is, on the second point or perhaps even the first, it is answered implicitly by Chapter III, but the point we wish to make is we say it is not answered by anything that is said in the Judiciary and Navigation Acts or the Boilermakers’ Case or the other citations made in footnote 35 of the appellants’ ‑ ‑ ‑

McHUGH J: What about the passage at 272, lower down the page, to which I referred earlier, where the Court said:

It would seem a matter of course to treat the affirmative provisions stating the character and judicial powers of the federal judicature as exhaustive.

MR GRIFFITH: Your Honour, we say that there that is talking about the exercise of judicial power of the Commonwealth for the purposes of maintaining the integrity of the Commonwealth structure; to ensure that the Commonwealth courts are not corrupted by being vested with non‑judicial powers.

McHUGH J: Why would you draw a distinction in principle between non‑judicial powers of an administrative kind and State judicial power?

MR GRIFFITH: Your Honour, because they are different and, in our submission, unless one can say that the integrity of the Chapter III court will be destroyed in a constitutionally impermissible way by the accepting of the capacity to vest non‑Chapter III jurisdiction, there is nothing in Boilermakers which establishes that that is prohibited by Chapter III. I hesitate to say it, your Honour, but we would say that would be a top down approach to say that. We say what is Boilermakers about? That is about vindicating the integrity of judicial power in Chapter III as against the legislature and the executive and to ensure that there is a purity of vesting of Chapter III jurisdiction. We accept that.

The next point that was made, as we understand it, against us, well, that carries with it that it is that and nothing else. What we seek to do, your Honours, is to not see as our text Boilermakers, but to see as our text, if we can, Chapter III and see whether or not one can read Chapter III on a basis that does not produce inescapably the result that there is such a limitation. We do put in the scales, your Honours, in considering this vesting of jurisdiction the result which is sought to be obtained, namely, what we say is the entirely appropriate result, that just as the exercise of federal jurisdiction is intended to enable the complete disposition of the matter before the Court the controversy to the extent that a Federal Court may pick up exhaustively State jurisdiction by reference to the accrued jurisdiction principles.

So that there is nothing pure in that context. One remembers Adamson’s Case which I think came up to this Court once or twice, but in the end, notwithstanding the plethora of pleadings relying on federal jurisdiction, Justice Northrop dismissed all federal claims and decided for Adamson in a Federal Court on the common law restraint of trade ground, which could have been run in the Supreme Court in the first place. But that nonetheless was a wholly appropriate exercise of Chapter III jurisdiction including accrued jurisdiction. Of course, accrued jurisdiction is a principle which only works one way. It works, we say, to obtain that which is the implicit goal of Chapter III, to enable it to complete disposition so far as may be of the judicial controversy between the parties and the matter before the court.

In our submission, the aim of these schemes to ensure that result being all the more perfectly complete to the extent, firstly, that there will be no failure of any claim for want of jurisdiction; secondly, to ensure that all matters may be disposed of in one proceeding; and thirdly, as an incidental part of its operation, particularly in the general cross‑vesting scheme, to ensure nonetheless that the judicial structure is not corrupted, that matters by and large continue to be heard in the court of appropriate jurisdiction or, if there is some dispute as to which one is appropriate, on the basis that a judge determines whether to hear it or to remit it off by reference to the criteria, for example, in section 5 of the Cross‑Vesting Acts.

In our submission, that aspect of the scheme, that aim of the scheme, is entirely compatible with what is the inherent object of Chapter III, including the requisite exercise of accrued jurisdiction, to ensure the disposition of controversies. The Attorney made the point this morning that in fact the effect of the cross‑vesting scheme is to eliminate what was sometimes the arid necessity to determine what was within the accrued jurisdiction or not.

McHUGH J: No, but before 1976 when there was no Federal Court, this cross‑vesting scheme, to have had effect, would have operated in respect of this Court, yet in the face of sections 75 and 76 of the Constitution, one stating what the original jurisdiction of the High Court was and the second saying that the Parliament may make laws conferring original jurisdiction in respect of four matters, you say the Parliament could go outside 75 and 76 and consent to a State conferring original jurisdiction on this Court in respect of State matters?

MR GRIFFITH: Your Honour, I was seeking to leave the High Court out of this because it is not ‑ ‑ ‑

GUMMOW J: Conceptually one cannot. One has got to debate it at the conceptual level.

MR GRIFFITH: Your Honour, conceptual.....when one starts. I was going to say, I was intending, without disrespect, to deal with the question of section 76 jurisdiction and 77 jurisdiction to consider whether or not there was any difference in principle that dictates - that one would have the same result for the High Court as other courts and then to deal with the obvious issue: even if one takes the view that there is not much difference in principle, nonetheless, one can accept the capacities to vest jurisdiction on the basis that jurisdiction will be vested just as is the original jurisdiction of this Court on the basis that courts will not be corrupted and be inundated with work or whatever which is incompatible with their complete discharge of their - particularly in this Court - constitutional offices. But it is not a question of State courts flooding, for example, this Court by some inherent power just as much as it is not the question of the Parliament exercising, as I have already referred to, its undoubted.....wish to confer exclusive jurisdiction on this Court in all matters.

McHUGH J: But your argument also varies the plan of Chapter III in relation to appeals. It is pretty obvious that the scheme was - the Constitution was that appeals in respect of State judicial power should come to this Court through the Supreme Court of a State but on your argument they can come here through the Federal Court.

MR GRIFFITH: Your Honour says it is pretty obvious. Your Honour, it was pretty obvious until there were inferior Federal Courts that all matters would come up through the State courts unless they were removed directly at first instance as is still the capacity to occur it. In our submission, your Honour, one cannot say that section 73 is undermined or corrupted because of the fact that some matters, for example, corporation matters, may come by way of application for special leave from a Territory court, a State court, or a Federal Court. We say for the purpose of this Court exercising its complete appellate jurisdiction - it is another matter we rely upon, that one cannot say that we submit that there is a natural incompatibility in admixture of State and federal jurisdiction after one like the Supreme Court of the United States this Court sits at the apex of the appeal in all matters intermingled. So, your Honours, in our submission, section 73 is no way undermined. It merely operates according to its terms to pick up either by direct appeal if the Court grants that or by indirect appeal from the judgment of a Full Court or one or rather of the Federal Courts, State or Territory courts, the appellate jurisdiction. If I could, with respect, not agree with your Honour that section 73, in our submission, is a problem.

Your Honours, I have only advanced to the point of getting rid of Boilermakers and In re Judicial Navigation Act for the purpose of the inquiry, and I am sorry it has taken so long. What we do wish to do is to thread through, starting with section 71. We do agree that the answer is in Chapter III, to find a reason why what we say is the default position; there is nothing wrong with it under the Constitution. It is permitted, in our submission, on the basis of the Attorney’s submissions unless there is a prohibition to be found in Chapter III - and we accept the points made in exchanges with the Attorney and members of the Bench, that it is so intermingled it is perhaps - one could approach it as an intermingled issue. For our purposes it is obviously logically appropriate to say, “We are within power unless we are toppled.”

Section 71 provides for the vesting of judicial power of the Commonwealth, firstly in the High Court, secondly in such Federal Courts as Parliament creates, and thirdly in such other courts as it invests with federal jurisdiction. That may encompass State courts under 77(iii) or Territory courts may also be invested with federal jurisdiction. We say there is two aspects of section 71 which are important for present purposes. The first is that this section is concerned entirely with the judicial power of the Commonwealth just as section 61, which introduces Chapter II, is concerned with the executive power of the Commonwealth. We say section 71 says nothing about the judicial power of a State, just as section 61 says nothing about the executive power of a State.

Now, the second aspect of section 71: we say that the Constitution did envisage, and section 71 envisages, that Commonwealth judicial power may be exercised in State courts. So, in a way it provides the first indication of what your Honour Justice McHugh described in Kable 138 ALR, at page 621, as:

the integrated system of State and federal courts -

We, of course, your Honour, would say that when your Honour refers to an “integrated system” it is a two‑way integration, in our submission, unless there is Chapter III difficulties.

Then one goes to section 73, and one sees that there is a range of capacities of the High Court to have jurisdiction with respect to appeals, firstly, from single Justices or other Justices of this Court:

Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council:

Well, we need not worry about those courts. So, we say, your Honours, that this is comprehensive. It extends to appellate jurisdiction of the High Court to State matters and, of course, as far as appeals from the States are concerned, it draws no distinction between State and federal matters.

Now, the second matter we point out is that, although section 73 seems to be as comprehensive as it is put against us that section 75, 76, particular 77 are comprehensive, section 73 has never been interpreted as an exhaustive statement of the appellate jurisdiction of this Court. So, for example, in Porter v The King; Ex parte Yee (1926) 37 CLR, at page 432, it was held consistently with section 73 the High Court can be given jurisdiction to hear and determine appeals from Territory courts.

Then we go to section 75 and 76 and we make two general points there. The first is one that I have already made in passing, that each section jurisdiction is conferred by reference to specific categories of matters - and there is no need for us to go to the authorities - that it is well settled, for constitutional purposes. A matter extends to the entire judicial controversy between the parties irrespective of the source of the law to be applied.

So the Court regularly does apply State law in resolving matters, even matters arising under Commonwealth law. This is contemplated by section 76(ii) and also, of course, in cases arising under the Constitution as then contemplated by section 76(i).

The second point we note is that particularly under section 75(iv) a matter within the original jurisdiction of the High Court may well be exclusively concerned with the application of State law, but that is not so just for section 75(iv), it may be the same for section 75 ‑ ‑ ‑

GAUDRON J: But State law picked up by the Judiciary Act, is it not?

MR GRIFFITH: Section 75(iv)? I do not know whether the Judiciary Act would pick up much in actions between States with it, your Honour - possibly it would.

GUMMOW J: It might be an action in tort between States. It has happened, I think.

MR GRIFFITH: That might depend on the action, yes, but can we say that is perhaps halfway house, so I can move on. We would say that one may have the same position of, if I can say, by and large complete application of State law in matters under sections 75(ii), 75(v) or 76(iv). In relation to section 76 - and perhaps this is where we get into a delicate area - we say that when one looks at the structure of the section, without going and making any implications that might be regarded as appropriate to preserve the integrity of this Court in the exercise of its unique and supreme jurisdiction, including its constitutional jurisdiction, we say that this section is also expressed as a grant of Commonwealth legislative power. It says nothing about State legislative power.

So that if there is a limitation on an ability of a State to confer original jurisdiction of this Court, we say that it must be one that arises from the unique position of this Court, at the apex of the judicial structure from the position under the Constitution, or from some other source but not from the language of section 76 itself. We say that any implication with respect to a capacity of a State to confer jurisdiction in this Court - and this is to put on one side the inconsistency argument having regard to the terms of the High Court Act which establishes this Court. It is merely saying, “Does section 76 say anything about State legislative power?” We just say on the face of things it does not. We make the same comment with relation to section 77 which is similarly expressed as a grant of Commonwealth legislative power. So that ‑ ‑ ‑

GUMMOW J: You do not say, Mr Solicitor, do you, as I understand it - you may - that 56(2) of the Corporations Act, in conjunction with section 77(i), operates as a conferral within the meaning of 76(ii) as a matter arising under a law made by the Parliament by reason of 56(2)?

MR GRIFFITH: Including original jurisdiction on this Court.

GUMMOW J: No, no, which is then picked up by 77(i) and transmuted into the Federal Court.

MR GRIFFITH: Your Honour, we do not because we say that section 56(ii) does not confer any jurisdiction. It is merely for consentual purposes, not for conferring purposes. Is that sufficientanswer to your Honour’s question?

GUMMOW J: You do not place any reliance on 15C of the Interpretation Act.

MR GRIFFITH: Your Honour, I was going to come to 15C.

GUMMOW J: Do not let me take you off your course.

MR GRIFFITH: The answer is no. Your Honour, if I could give you a reference to - we say 15C merely is expository of the common law. One picks that up, your Honours, from the explanatory memorandum when it was introduced in 1984. We have not distributed that. Perhaps we could distribute it, your Honour, but clause 8 of that inserts a new section 15C in the Act “vesting jurisdiction in a court where an enactment provides for civil or criminal proceedings to be instituted in a particular court. This provision appears to be declaratory of the present law”. Looking for what the present law is, your Honour, the best we can do is Ex parte Barrett (1945) 70 CLR at page 141 and also 155. Your Honour, we accept that section 15C cannot operate to confer jurisdiction the Constitution would not allow. We say, your Honours, it is intended to operate in order to confer jurisdiction for purposes of federal law and has not intended to operate, with respect, to a consent provision such as these provisions. So the answer is we do not rely on it. I hope that is sufficient to dispose of that.

Turning to section 77, your Honours, we say that section enables a Parliament to make laws:

Defining the jurisdiction of any federal court.
Defining the extent to which the jurisdiction.....may be exclusive of the jurisdiction of the States.
Investing any court of a State with federal jurisdiction.

So we make the same point about section 77 as we made for 76. That is a section concerned with the legislative power of the Commonwealth. It says nothing about the legislative power of the State.

So, once more, if there is a limitation on the ability of a State to confer jurisdiction on the Federal Court created under section 71 of the Constitution, that is a limitation which must arise from the federal nature of the institution or perhaps from the scope of the Commonwealth law creating it or defining its jurisdiction and not from section 77(i) alone. So, your Honours, we say that is really the inquiry here. Do we find this limitation somewhere external to section 77?

We say, your Honours, on this aspect one perhaps engages in inquiry to somewhat lower level from the 76 inquiry because there one must have regard obviously to the special position of the High Court. Of course, clearly enough, Parliaments in providing for these sensible co-operative schemes have just done that and excluded the High Court from any aspect of being embraced by the co-operative aspect of cross‑vesting the jurisdiction. Of course, at the level of the High Court, there is no requirement to assimilate jurisdictions because, when any matter gets to this Court from whatever jurisdiction, whatever matters of State or federal jurisdiction are involved are indiscriminately within the jurisdiction of this Court finally to determine the matter of appeal.

The other general point we make about section 77(i) is that it incurs in the same context as 77(iii). Section 77(iii) is the autochthonous expedient which, of course, most clearly to us, demonstrates the integrated nature of the Australian legal system. Of course, that was pivotal to the decision of this Court in Kable, and the Attorney has already referred to Chief Justice Gibbs in Duncan’s Case at 553 giving it as an illustration of the constitutional recognition of the scope of co-operative federalism.

Now, federal jurisdiction conferred on a State court under section 77(iii) is obviously in addition to any such jurisdiction as may be conferred on a State court under State law, although, of course, the Commonwealth law conferring federal jurisdiction may cover the field to exclude that otherwise operative State law in a particular matter or class of matters. Now, section 77(iii) serves to demonstrate, we say, par excellence, that the conferral of State and federal jurisdiction in the one body is not per se inconsistent with Chapter III - that is provided for specifically in 77(iii).

Now, in our submission - this is where we make the connection - is that the only relevant difference between the vesting of federal jurisdiction in a State court under 77(iii), and the vesting of State jurisdiction in a federal court, is that section 77(iii) allows conscription of the State courts. It allows it to be conferred, whether or not the State consents. Now, we, of course, do concede that so far as the reciprocal is concerned there must be consent of the State Parliament, otherwise one must expect really in all cases that the vesting would be regarded as being excluded in operative effect by section 109, if no other provision.

In that approach of saying, really there is no difference in the reciprocal, it is our submission there is not one word in Chapter III suggesting that there is any difficulty about the contrary. It is our further submission that there is no principle, we say, having, we hoped, escaped from the clutches of Boilermakers, underlying Chapter III which would be violated. We set out in paragraph 3.8 of our written submissions three categories of cases which we say illustrate an acceptance of the proposition that non-Chapter III jurisdiction can be conferred on a Federal Court. Before dealing with that, your Honour, may I before I finish today - unless your Honour wants to finish now ‑ ‑ ‑

BRENNAN CJ: The Court will sit until 4.30, if that is convenient, Mr Solicitor.

MR GRIFFITH: That is, your Honour.

BRENNAN CJ: Because we are unable to commence early tomorrow morning.

MR GRIFFITH: I am obliged to your Honour. We did not intend still to be on our feet. I am not sure, your Honour, whether it was ever reported - it is perhaps apocryphal - but I am told that Justice Starke once delivered judgment saying, “This case was argued three days between members of the Court with the occasional intervention of counsel.” I do not know why ‑ ‑ ‑

McHUGH J: It is not apocryphal, it is in the Argus Law Reports.

MR GRIFFITH: It is? Thank you, your Honour. I do not know why I said that, but other than to say that I did not intend still to be on my feet.

BRENNAN CJ: One could understand it, Mr Solicitor.

MR GRIFFITH: Your Honour, we did want to go back to - I always wanted to say that, so that is something. Your Honour, I should have been gratified with having had a citation of ‑ ‑ ‑

KIRBY J: I think you have even said it since I have been here, Mr Solicitor.

MR GRIFFITH: I am sorry, your Honour. The other one, your Honour, is whether or not you can have two counsel on a demurrer in a constitutional matter, and I was asked that once - and I do not where - in 1 CLR 18 the Chief Justice ruled that that principle does not apply in a constitutional demurrer. I am just waiting for a judge to ask me that again one day and I will have the citation ready.

McHUGH J: I think it was me who asked you the question.

MR GRIFFITH: Will your Honour ask me again one day and I will have the answer. Well, back to 77(i). Now, your Honours, it is interesting that 77 refers to - and 76(i) has the conferring of original jurisdiction in the chapeau to 76. One has 77(iii) referring to:

Investing any court of a State with federal jurisdiction.

But 77(i) says, “Defining the jurisdiction”; a different expression. Our submission is, at least in respect of the general cross‑vesting scheme, this may have a capacity to provide the answer within the terms of section 77 itself. We do not rely on it for the purpose of the Corporations Law, because that concerns primary conferral of jurisdiction on a Federal Court, so far as the law is concerned, enacted under section 122, rather than under 76, so that one does not come in under 76(ii). We say that we would not see the Corporations Law as providing a matter under section 75 or 76 to which 77(i) could fasten. But, nonetheless, we do rely on this argument for the general cross‑vesting scheme. What we say is that the word “defining” here is significant. It is a broader concept than conferring jurisdiction.

GUMMOW J: Is there authority that says that?

MR GRIFFITH: No, your Honour.

GUMMOW J: I thought there was authority on what “defining” meant.

MR GRIFFITH: Well, your Honour, perhaps it is fortunate we are going to stop at 4.30, and I will answer your question with authority tomorrow. But at the moment we had not - well, perhaps we had not gone broadly enough because we were looking at 77(i), but your question will be answered on the morrow, your Honour, rather than now. So, we say that as a matter of ordinary language the law marking out the boundaries of the jurisdiction which may be effectively conferred on a Federal Court by a State could be described as a law defining the jurisdiction of the Federal Court.

Of course, the power to make laws is defined and limited by the chapeau to section 77 with respect to classes and matters listed in section 75 and 76, and that is why we exclude the Corporations Law, because we do not see them as falling within the chapeau. But we say it is apparent from section 77 the limitation is that the law defining jurisdiction must be a law with respect to one or more of those classes and matters defined in sections 75 and 76. So, if one is engaged in a matter of, well, what is the meaning of 77(i), we say that it should be interpreted in a like manner to any other grant of Commonwealth legislative power, judicial or otherwise, and that the formulation with respect to defining the jurisdiction should be interpreted broadly.

So a law consenting to the exercise of State jurisdiction by a Federal Court, in our submission, may be properly characterised as a law with respect to a class of matters mentioned in sections 75 and 76 if it has a sufficient connection with those matters.

GUMMOW J: Namely?

MR GRIFFITH: I beg your pardon, your Honour?

GUMMOW J: What is the matter here?

MR GRIFFITH: Your Honour, we said here it is not the matter because we do not rely on it for corporations.

GUMMOW J: I realise that, but in the example you are giving, what would the matter be in sections 75 and 6?

MR GRIFFITH: Your Honour, it may well be a matter arising out of any laws made by the Parliament. It may be - that would be the usual one, I would suppose. That would be the usual one. So a connection may be made to appear from the relationship between classes of matters and jurisdiction whose exercise is consented to. Your Honours, we would say that such connection may appear sufficiently in the context of co‑operative schemes such as a general scheme designed to overcome jurisdictional conflict. So that section 77(i) may - in fact does, in our submission - provide in itself support for the validity of general provisions of the cross‑vesting scheme.

May we return to paragraph 3.8 of our written submissions where we give examples as to exercise of non‑Chapter III jurisdiction. I do not think there is any need for me to go much beyond citations with respect to Territory jurisdiction. I have already referred to Porter v The King; ex parte Yee 37 CLR 432 and may we add to that citation the Privy Council in Boilermakers 95 CLR 545 where their Lordships described the legislative power in respect to the Territories as a disparate and non‑federal matter. We rest there and say that demonstrates in itself that Chapter III is not offended by the conferral on federal courts of non‑federal jurisdiction.

Reference has already been made to the issue of conferral of original jurisdiction on this Court in Territory matters. Certainly from 1909 to 1933, when the Territory Supreme Court was established, this Court exercised the same jurisdiction in the Territory as had belonged to the Supreme Court in New South Wales. This history is summarised by Justice Menzies in Spratt v Hermes 114 CLR 208. Its validity went unchallenged until Federal Capital Commission v Lowenstein Building and Investment Company Pty Limited (1929) 42 CLR 582, where Justice Dixon, sitting as a single Judge, took the view that he was warranted in assuming jurisdiction.

As was noted by my learned friend, Mr Douglas, this morning the matter was further considered in Spratt v Hermes. In particular one sees at 114 CLR at 257, 268, Justices Kitto and Menzies said yes, Justice Taylor, at 265, said no, the Chief Justice’s tentative yes at 240, and Justices Windeyer and Owen, tentative no, 277 and 280. So one might argue if we do say that the balance of opinion is slightly in favour of original jurisdiction in a Federal Court. This view was repeated by Justice Menzies in Capital TV and Appliances v Falconer 125 CLR 591 at 604.

KIRBY J: How is the appeal from the Territory Supreme Court into the Federal Court sustained constitutionally?

MR GRIFFITH: Your Honours, it seems constitutionally it has always been regarded as perfectly compatible with the exercise of Territory powers that it comes into the federal system. Section 73, I am told on my left. Perhaps I should take no notice of those on my left and wait until I hear it from the right, your Honours. So far as appellate jurisdiction, your Honours, is concerned, that has never been in doubt and, indeed, how could it be that the Territories were outside the apex of the complete appellate control of this Court within Australia? Your Honours, I will not detain you any further on Nauru.

KIRBY J: Was that ever challenged? Was there ever any contest about it in those cases mentioned?

MR GRIFFITH: I do not think so, your Honour, but we will ‑ ‑ ‑

McHUGH J: I think it was, was it not? In Bernasconi and Porter and ‑ ‑ ‑ .

GUMMOW J: Falconer was all about that, and Capital TV.

MR GRIFFITH: Yes, your Honour. Perhaps I should have stopped at 4.15 today. Your Honour, it is noted in Spratt v Hermes by the Chief Justice at page 239 both the Privy Council and this Court have held that Parliament may give the right of appeal and there is the copious citation made on that page, and his Honour ‑ ‑ ‑

McHUGH J: There is Porter and Bernasconi and those cases.

MR GRIFFITH: Your Honour, we say that, for our submissions anyway, it is established by the authorities of this Court. When one thinks about it, your Honour, it must be unthinkable to be suggested that there could be a court within Australia that was a court outside - a court of a Territory and outside the capacity of this Court to supervise.

McHUGH J: Not unthinkable to me, Mr Griffith. As a matter of authority it is there.

MR GRIFFITH: Your Honour, perhaps we can leave it. It is unthinkable by most people. I do not want to talk about abolishing State Parliaments too. It is not necessary to expound on Nauru other than to say it is an example where the Court en passant obviously exercised the jurisdiction granted to it by the Act of the Commonwealth without any demur as to whether that was done as a co-operative exercise of external colonialism or ‑ ‑ ‑

GUMMOW J: There may have been in truth original jurisdiction under 76(ii), albeit treated as an appeal. One need not explore it.

MR GRIFFITH: Your Honour, the point is the Court exercised appellate power without exploring it but, your Honour, we do concede that because it was exercised in the Nauru matters, that is not sufficient for us to say we are happy with the territories power.

The third example we give is admiralty jurisdiction. Of course, upon its creation the High Court became a colonial court of admiralty pursuant to the Colonial Courts of Admiralty Act 1890. We refer to this in paragraph 3.8(c) of our submissions. So it was not inferred jurisdiction by the Commonwealth at all. It did not involve any matters arising under Commonwealth law. The Court’s function was to imply an imperial enactment which by its terms applied to the High Court upon its creation.

GUMMOW J: Yes, but the real question is what impact the Constitution as another imperial Act had upon the 1890 Act. We do not need to answer that now. It is assumed that they stood together. They may not have.

MR GRIFFITH: Yes, your Honour, but Quick and Garran did say that in respect at least to the Vitab and the courts established in New South Wales and Victoria before Federation the jurisdiction and exercisable by it is an Imperial one and is altogether independent of that, it is Supreme Court and of a different nature. We say that that would be the same position for the High Court in its capacity as a Colonial Court of Admiralty. But, we do make the point it is not judicial power, it is Imperial.

GUMMOW J: The Constitution is a later Imperial specific Act. That is the debate anyway.

MR GRIFFITH: Perhaps we get to the point Admiralty is not going to provide the knock‑out answer, but we say that no objection has been taken to it. Perhaps as the Court rises I could mention another function as the capacity of the Court is the Court of Disputed Returns. That has sometimes been explained as a persona designata result, but there is no persona designata in the relevant legislation, it is all conferred on this Court and, of course, it is a special jurisdiction, there is no right of appeal or other peculiarities which may be regarded as exercise of a separate constitutional function arising from sections 47 or 49 or whatever, but we mention that in passing to indicate that there is certainly not an atmosphere of exclusivity. The point we make is that what we say is that one does not find a prohibition, in our submission, expressly implied in Chapter III as to the terms of the mechanism here resulting in ‑ ‑ ‑

KIRBY J: That has not been affected by the federal Admiralty legislation, has it?

MR GRIFFITH: Yes, your Honour.

KIRBY J: Has it gone now?

MR GRIFFITH: Your Honour, can I take that one on notice?

KIRBY J: The admiralty jurisdiction.

MR GRIFFITH: I think it is now entirely the Commonwealth Act now. But there is a suggestion ‑ ‑ ‑

KIRBY J: But the jurisdiction of this Court, is that affected by that recent federal admiralty legislation?

MR GRIFFITH: I think it is, your Honour. But can we check that overnight? I think we have entirely excluded the operation of the imperial Acts, and the last step is to repeal what is left of the Merchant Shipping Act on the basis that it has no operative effect in Australia any more. So, the answer is yes, but may I give detail to your Honour tomorrow. Your Honour, there is not all that much further I wish to say on the Chapter III issue, and I will seek to be brief so far as the issue of section 596A and B is concerned.

Could I indicate to your Honour that under tab 5 of volume 1 of our materials we have a summary of what we say is the historic position with respect to exercise of inquisition. To save the Court carrying volume 1 and 2 and finding tab 5, we have issued it under a heading, “Tab 5 of part 1, volume of materials, the Attorney‑General intervening”, which is an historical summary starting with the reign of Henry VIII with the relevant bankruptcy provisions.

BRENNAN CJ: Yes.

MR GRIFFITH: Which, by and large, your Honour, we rely upon to give the characterisation, saying that it takes its characterisation from historical exercises with respect to corporations and winding up. Of course, your Honours, that substantially would, in our submission, justify the characterisation of a power as being judicial or compatible with judicial power, and that is the main point made in the last part of our written submissions. So that, your Honours, if I could indicate that beyond that summary I will just have a few short points to make to answer the points made by my learned friend, Mr Douglas, as to ‑ ‑ ‑

GAUDRON J: Will you be explaining - because I have not quite understood what you say as to why section 56(2) is a law for the government of a territory?

MR GRIFFITH: Your Honour, I have indicated that we chose not to rely particularly on the territories power; but what we say, your Honours, is that the entire Corporations Act is a law of the territory. That supports it, not the corporations power. One aspect of it is that for the purposes of the territory law with respect to corporations section 56(2) is part of the provision to provide effectively for cross-vesting of jurisdiction with respect to the administration of corporations within Australia on a uniform basis, including the territory. Your Honour, having said that, we do disclaim an intention - unless that is the only way we win, to rely on territories power, because we wish to ‑ ‑ ‑

GAUDRON J: If it is the only way in which you win, I do not understand why you think you win on that either.

MR GRIFFITH: Your Honour, is no part of our written submissions so I suppose we do not mind, but what we say, your Honours, is that others of the interveners seem to be more enthusiastic to say it is corporations or territories power and we are happy to go along with it. So that ‑ ‑ ‑

GAUDRON J: You see, it is for the government of any territory.

MR GRIFFITH: It is for the government, your Honour, to have a complete uniform administration of Corporations Law as might have been enabled by a single national Act were it not for the Corporations Ccases, in a majority decision of this Court, to enable the functioning of the economy of the ‑ ‑ ‑

GAUDRON J: You are content to ‑ if you are forced to rely on it, you are content to leave the argument to others.

MR GRIFFITH: That is what it boils down to, your Honour, yes.

GAUDRON J: Yes.

MR GRIFFITH: If the Court pleases.

BRENNAN CJ: Yes, thank you, Mr Solicitor. Mr Robb, how long do you expect to be tomorrow?

MR ROBB: I could be up to a couple of hours. I will try to be less. Part of the difficulty is I am here to uphold section 56(2) of the Corporations Act of the Commonwealth in relation to the corporations scheme. Many arguments have been put by the Attorney and the Solicitor which were clearly directed towards the cross‑vesting scheme. Clearly some of the issues that I have to deal with are common. It may be a matter for debate tomorrow, but on one view of it there are more difficulties in the way of the cross‑vesting scheme than there is the corporations scheme.

What I need to do this afternoon is to work out the extent to which the submissions that have already been put properly cover what I need to say and I can assure the Court that I will try to do that as much as possible, but to a certain extent there has been a debate on an issue that is not before the Court, that is, the cross‑vesting scheme. May it please the Court.

BRENNAN CJ: Yes, thank you, Mr Robb. Can we have some indication from the Solicitors as to how long they intend to take.

MR KEANE: Your Honours, I think we will be no more than 20 minutes.

BRENNAN CJ: Yes, thank you, Mr Solicitor.

MR GRAHAM: May I say the same here.

BRENNAN CJ: Yes, certainly.

MR MEADOWS: May it please the Court, I think I can say the same.

MR SELWAY: And the same.

MR SPIGELMAN: I doubt there will be much left to be said, your Honour.

BRENNAN CJ: Very well, the Court will adjourn until 10.15 tomorrow morning.

AT 4.33 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 9 APRIL 1997

[1997] HCATrans 91

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