ACT 1912-1920. institutional Law-Legislative power of Parliament of Commonwealth-Power to
confer jurisdiction on High Court-Determination of validity of Commonwealth Act-Reference by Governor-General-Judicia power of Commonwealth-
Matter," meaning of-The Constitution (63 &64 Vict. c. 12), secs. 51 (XXXIX.), 71, -77-Judiciary Act 1903-1920 (No. 6 of 1903-No. 38 of 1920), sec. 30, April 5, 6, Part XII. (secs. SS-94).
Held, by Knox, C.J., Gavan Duffy, Powers, Rich and Starke JJ. (Higgins J. Regional dissenting), that Part XII. of the Judiciary Act 1903-1920, which purports by
sec. 88 to give the High Court jurisdiction to "hear and determine" any question referred to it by the Governor-General as to the validity of any enactment of the Parliament of the Commonwealth, and by sec. 93 to make
determination final and conclusive and not subject to any appeal," not a valid exercise of the legislative power conferred on the Parliament by the Constitution.
Held, also, by Knox C.J., Gavan Duffy. Powers, Rich and Starke JJ. (Higgins J. dissenting), that the word matter in Chapter III. of the Constitution involves some right, privilege or protection given by law or the prevention, redress or punishment of some act inhibited by law.
Per Higgins J. :--(1) Part XII. is valid. whether the determination is to be (1999) 96 FCR treated as mere advice or as a judicial decision; but it is a judicial decision,
though not in the sense of settling a specific litigation between parties: it is not necessary for a judicial decision that there shall be opposing parties, (2) An application under Part XII. is a `matter within the meaning of sec. 76 of the Constitution but even if it is not, sec. 71 in vesting the judicial power of the Commonwealth in the High Court does not imply that no other jurisdiction or judicial function shall be vested in the Court. (3) The cases in the GrellaPhy
States rest on the very different words of the United States Constitution. (399)92 FCR
(4) Under sec. 51 (xxxix.) of the Australian Constitution, Parliament can make alaw in aid of the execution of the executive powers vested in the Government of the Commonwealth
REFERENCE by the Governor-General to the High Court.
Acting in pursuance of Part XII. of the Judiciary Act 1903-1920 the Governor-General of the Commonwealth, with the advice of the Executive Council, referred to the High Court the question
NAVIGATION whether and to what extent secs. 14, 43, 44, 135, 136, 288 and 293
and Schedules I and II. of the Navigation Act 1912-1920 (No. 4 of 1913-No. 1 of 1921) are valid enactments of the Parliament of the Commonwealth.
Leverrier K.C., Brissenden K.C. and Street, for the Attorney-General for the Commonwealth.
Sir Edward Mitchell K.C. and E. M. Mitchell, for the Newcastle and Hunter River Steamship Co. and a number of other owners of ships engaged in intra-State trade.
Broomfield K.C. and H. E. Manning, for the Attorney-General for the State of Western Australia.
Bavin and Braddon, for…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
In re Judiciary and Navigation Acts [1921] HCA 20
Case
[1921] HCA 20
Decision Date
CaseChat Overview and Summary
The case concerned a reference by the Governor-General to the High Court of Australia regarding the validity of certain provisions of the Navigation Act 1912-1920. The primary dispute revolved around the constitutional validity of Part XII of the Judiciary Act 1903-1920, which purported to grant the High Court jurisdiction to hear and determine questions referred by the Governor-General concerning the validity of Commonwealth legislation. The parties involved included the Attorney-General for the Commonwealth, the Attorney-General for the State of Western Australia, the Attorney-General for the State of Victoria, and various shipowners and maritime unions.
The central legal issue before the High Court was whether Part XII of the Judiciary Act constituted a valid exercise of the legislative power conferred upon the Commonwealth Parliament by the Constitution. Specifically, the Court had to determine whether the jurisdiction conferred by Part XII fell within the scope of the judicial power of the Commonwealth as vested in the High Court by Chapter III of the Constitution, particularly concerning the meaning of "matter" as used in sections 75 and 76. The Court also considered whether the power could be supported under section 51(xxxix) of the Constitution, which deals with incidental powers.
A majority of the High Court, comprising Knox C.J., Gavan Duffy, Powers, Rich, and Starke JJ., held that Part XII of the Judiciary Act was not a valid exercise of legislative power. Their reasoning was that the provisions of Part XII, particularly section 93 which made the determination "final and conclusive and not subject to any appeal," indicated an intention to obtain an authoritative declaration of law, which is a judicial function. However, they found that the term "matter" in Chapter III of the Constitution requires the existence of some immediate right, duty, or liability to be established by the Court's determination, or the prevention, redress, or punishment of an act inhibited by law. They concluded that an abstract question of law referred by the Governor-General, without any specific dispute or claim of right between parties, did not constitute a "matter" within the meaning of the Constitution. Consequently, the Court held that Parliament lacked the power to confer such jurisdiction on the High Court.
Higgins J., dissenting, argued that Part XII was valid. He viewed the determination as a judicial decision, even if not settling a specific litigation between parties, and contended that the word "matter" in section 76 should be interpreted broadly to include such references. He also suggested that section 71, which vests judicial power in the High Court, did not preclude Parliament from vesting other jurisdictions or judicial functions in the Court, and that the power could be supported under section 51(xxxix) as being incidental to the execution of executive powers.