O'Donoghue v Ireland & Anor; Zentai v Republic of Hungary & Ors; Williams v US & Ors

[2007] HCATrans 723

[2007] HCATrans 723

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P40 of 2007

B e t w e e n -

VINCENT THOMAS O’DONOGHUE

Appellant

and

IRELAND

First Respondent

GRAEME NEIL CALDER

Second Respondent

Office of the Registry
  Perth  No P41 of 2007

B e t w e e n -

CHARLES ZENTAI

Appellant

and

REPUBLIC OF HUNGARY

First Respondent

STEPHEN HEATH

Second Respondent

MAGISTRATES COURT OF WA

Third Respondent

COMMONWEALTH OF AUSTRALIA

Fourth Respondent

Office of the Registry
  Sydney  No S410 of 2007

B e t w e e n -

LARRY RICHARD WILLIAMS

Applicant

and

UNITED STATES OF AMERICA

First Respondent

MAGISTRATES APPOINTED BY COMMISSION UNDER THE PUBLIC SEAL OF NSW

Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 DECEMBER 2007, AT 3.18 PM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC:   If the Court pleases, I appear alone for Mr O’Donoghue, I appear with MR P.W. JOHNSTON and MS V.M. PRISKICH for Mr Zentai and I appear with MR R.P.L. LANCASTER for Mr Williams.  (instructed by Freehills, Fiocco’s Lawyers and Watson Solicitors)

MR H.C. BURMESTER, QC:   If it please the Court, I appear for the first respondents in each respective matter, namely the Republic of Ireland, Hungary and the United States of America.  (instructed by Commonwealth Director of Public Prosecutions)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with my learned friends, MR H.C. BURMESTER, QC and MR G.A. HILL, for the fourth respondent in Zentai and for the Attorney-General intervening in O’Donoghue and in Williams.  Your Honours, it is my submission that I should be heard after the States bearing in mind that they at least in part, and a significant part, support what is being said by the appellants. (instructed by Australian 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, SC, on behalf of the Attorney‑General of Western Australia intervening.  (instructed by State Solicitor for Western Australia)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS N.L. SHARP, for the Attorney‑General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor (NSW))

MR C.J. KOURAKIS, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friends, MR M.J. WAIT and MR J.P. McINTYRE, for the Attorney‑General for South Australia intervening.  (instructed by Crown Solicitor (SA))

MS P.M. TATE, SC, Solicitor‑General for the State of Victoria:   May it please the Court, I appear with my learned friend, MS R.J. ORR, for the Attorney‑General for Victoria intervening.  (instructed by Victorian Government Solicitor)

MR BURMESTER:  If it please the Court, I would like to seek leave to make an amended notice of contention in the O’Donoghue matter.  This is with consent, your Honour.  There has been a similar amended notice of contention in the Zentai matter already filed.  I am told I need leave.

GLEESON CJ:   Yes, you have that leave.

HAYNE J:   I understand that the parties have been asked whether, having regard to my wife’s engagement as counsel in two of these cases at earlier stages of this litigation, they have any objection to my sitting and I understand that there is no objection.  Is that right?

MR GAGELER:   That is correct, your Honour.

GLEESON CJ:   Yes, Mr Gageler.

MR GAGELER:   Your Honours, I suspect that the appearances are more complex than the case itself.  The three principal propositions for which we contend are those set out in our written submissions at paragraph 8 and I propose to address those propositions in that order.

First, the constitutional premise, then the operation of the relevant provisions of the Extradition Act, and then the construction of the relevant provisions of the two State Acts in question, the Magistrates Court Act (WA) and the Local Courts Act (NSW).

Starting with the constitutional premise, stated with its otherwise implicit qualifications spelt out it amounts to this, unless there is something in the subject matter content or context of a particular head of Commonwealth legislative power to indicate to the contrary the Commonwealth Parliament has no power without State legislative approval to impose an administrative duty on the holder of a State statutory office, the functions and incidents of whose office are exhaustively defined by State legislation.

The need for State approval if the Commonwealth Parliament is to impose an administrative duty on a State officer is, in our submission, a particular and per se manifestation of the more general implication drawn from the federal structure of the Constitution recognised in the Melbourne Corporation Case and articulated by most of your Honours most recently in the Austin Case.  Underlying that implication is the notion that the Commonwealth Constitution is premised upon the existence of State Governments separately organised in accordance with the State Constitutions that are expressly preserved under section 106.

The need at least ordinarily for State legislative approval if the Commonwealth Parliament is to impose an administrative duty on a State statutory officer, in our submission, derives from the way in which State Governments are separately organised in accordance with those States’ Constitutions that are expressly preserved by section 106.

Western Australia in its written submissions to the Court in paragraphs 30 to 32 correctly observes that our proposition that there is in such a case a need for State legislative approval breaks down into two points.

The first point which really ought be uncontroversial, but I am not sure that it is, is that a State Executive simply has no power under a State Constitution to dispense with the operation of State legislation.  It has no power itself to add to or detract from the functions of an office created by State legislation.  It has no power to consent to or approve of any other person or polity adding to or detracting from the functions of an office created by State legislation.  A power of that kind has not even been pretended since 1688.

The second point which we accept turns ultimately on the proper construction of the particular State statute in question is that a statute creating an office is ordinarily to be construed as requiring the holder of that office to have and to exercise only those functions, whether they be powers or duties, that the Parliament creating the office has chosen to vest in it.  That is the principle of construction stated many times in this Court, stated most usefully for me in Re Cram, to which I will come, and repeated in the cases collected again in the Western Australian submissions, paragraph 32, footnote 20. 

Your Honours, to make good the overall constitutional premise, we think it appropriate to go fairly briefly and chronologically to the eight or nine cases in this Court upon which we principally rely.  There is only a sentence or two that I particularly want to point out in most of them.  The earliest of those cases is the Royal Metals Case.  The most recent is Austin v The Commonwealth.  Austin v The Commonwealth points usefully to the position in the United States in the 1997 decision in Printz, to which I also wish to come.

If I can start with the Royal Metals Case, that is The Commonwealth v New South Wales 33 CLR 1. At page 24, your Honours will see section 20 of the Lands Acquisition Act (Cth). It was a section which imposed a duty on a State Registrar of Titles to register compulsorily acquired Commonwealth land. That section was held by the majority, with Justice Higgins dissenting, to be invalid and that invalidity is reflected in formal answers given by the Court at page 72 to questions (2) and (3), which are set out at page 10.

In the joint judgment of Chief Justice Knox and Justice Starke at pages 27 to 28 the invalidity was put in terms of the limits of the incidental power conferred by section 51(xxxix) as having been reached.  In the judgment of Mr Justice Isaacs the point was put on a more general basis and it is to his Honour’s judgment that I ask your Honours to turn.  Picking up on the most pertinent sentences, in the last two lines on page 53, his Honour said:

The Commonwealth Parliament has, by sec. 20 of the Lands Acquisition Act 1906, purported to require the State Registrar to register a copy of the Governor‑General’s notification as if it were a grant or conveyance or memorandum or instrument of transfer duly executed under the laws in force in the State.

I drop down to the sentence that follows the reference to Attorney‑General for Ontario v Attorney‑General for the Dominion.  His Honour says:

Sec. 20, however, is really an amendment of the Real Property Acts of the States, and is a command to a State official as such in the performance of his State functions to disregard the conditions of his statutory authority and to act in accordance with Commonwealth directions. His action is a State service, not an individual service. Sec. 20 attempts to create, not a new individual duty on the part of an inhabitant of the Commonwealth, but a new State governmental duty towards the Commonwealth. In the circumstances here appearing, that is not warranted by any provision of the Constitution, and the attempt fails.

As your Honours may recall, that judgment, certainly the result in the Royal Metals Case your Honours in Austin explained as being consistent with the principle stated in the Melbourne Corporation Case and I will come to that in due course.

KIRBY J:   The theory here appears to be a lack of federal legislative power rather than a rebuffing of the enactment by some implication of the Constitution.

MR GAGELER:   These are early days, your Honour.  This was not long after the Engineers Case and before the Melbourne Corporation Case and now we would understand and explain Justice Isaacs’ reasoning as the product of an implied prohibition of the kind dealt with more fully in the Melbourne Corporation Case.

Your Honours, the next case which falls in the same category – that is, it is in the same time period – is the first uniform tax case. That is 65 CLR 373. This is a case decided in 1942 and that date is significant to the reasoning. It is really the exception that for our purposes helps to illustrate the rule. In this case an Act which was called the Income Tax (War‑time Arrangements) Act 1942, the material terms of which are summarised at pages 406 and 407, was upheld by the majority as a valid exercise of the defence power. Yours Honours will see that section 4 of that Act, which is referred to at the bottom of page 406, provided that the Commonwealth Treasurer could by notice:

addressed to any State Treasurer bring about the temporary transfer to the Public Service of the Commonwealth of any specified officers of the State service who have been engaged in duties –

connected with the collection of taxes.  At page 431 Chief Justice Latham, who was one of the two dissentients, said in the middle of the page:

Apart from the defence power it would hardly be argued that the Commonwealth could, as it were, forcibly seize a State department, its personnel, accommodation and equipment, under a law specifically directed to this object.

His Honour in the rest of that paragraph foreshadowed the reasoning which he later adopted and explained more fully in the Melbourne Corporation Case.  He held then over the next two pages, and particularly at page 432, about the middle of the page, that there was a lack of a sufficient connection with the subject matter of defence to sustain that purported exercise of power.  Justice Starke, the other dissentient, at page 445 also took that view.  Your Honours will see the sentence or two after the reference to Andrews v Howell towards the bottom of the page, again foreshadowing the reasoning which his Honour adopted in the Melbourne Corporation Case.

The view of the majority was anchored firmly in the scope of the defence power in a time of total war.  You see that very clearly in the judgment of Justice Starke at page 437, about the middle of the page, in the sentence beginning, “It is notoriously essential”.  You see it in Justice McTiernan’s judgment at pages 458 to 459 and you see it also in Justice Williams’ judgment at pages 468 to 469.

GUMMOW J:   That case and statute has to be understood I think against the background of previous practice, and we might look overnight at the Income Tax (Commonwealth) Collection Act 1923. This is at a time when both the State and the Commonwealth were exercising their income taxing powers. Section 4 of the 1923 Act said:

The Commonwealth may arrange with any State for the collection by State officers of the whole or part of the income tax payable in that State under Commonwealth law. 

It goes on as to the terms of the agreement.  Then with the 1936 Act and the pay as you earn provisions, the Income Tax Assessment Act (No. 2) 1940 introduced 221P, another arrangement provision. This time the arrangement is between the Governor‑General and the Governor of a State. Western Australia I think gives other examples going back similarly in time to co‑operative arrangements of some sort.

MR GAGELER:   We do not have difficulty with co‑operative arrangements, of course, your Honour.  It is coercive arrangements that is the problem, but we will look at those overnight.

GUMMOW J:   You do not have any difficulty between co‑operative arrangements of what nature, between executives or not?

MR GAGELER:   No, of course not.

GUMMOW J:   No.

MR GAGELER:   Executives can be as co‑operative as they like.  The problem lies with the imposition of a Commonwealth statutory duty on a State officer, and the particular manifestation of that problem with which we are concerned is the imposition of a Commonwealth statutory duty on a State statutory officer.

The arrangements that your Honour referred to we would look at carefully but probably did not get to first base, probably did not impose a duty under the Commonwealth Act on the State officer but simply made an arrangement under which certain activities could be performed on behalf of the Commonwealth, but we will look at them.

GLEESON CJ:   But when under the Constitution the Commonwealth confers Commonwealth judicial power on State courts the actual exercise of that power has to be underpinned by administrative and financial arrangements, including arrangements about who is going to pay the State judicial officer or pay the rent on the court room occupied by the State judicial officer.

MR GAGELER:   There are certainly those practical problems and, if one were looking at it at a totally practical level, one might well say, well, what is the difference between the position of a State judicial officer and the position of a State administrative officer or of a State judicial officer acting administratively, as one has in this case.  At a totally practical level, probably not much difference at all.

The difference in principle, however – and I think we have given a half sentence from your Honour the Chief Justice’s judgment in Re Wakim to this effect – is that there is a specific grant of Commonwealth legislative power in section 77(iii) of the Constitution which contemplates and specifically authorises the conscription of State courts to Commonwealth use, whether or not arrangements may be put in place between State Executives or pursuant to section 96 grants are in some other way for the State to be compensated, so that is the difference in principle.

KIRBY J:   Do you say that a negative implication arises from that power to impose the duty on courts?  Such a negative implication I think was drawn in Re Wakim by the majority of the Court.

MR GAGELER:   I do not quite go so far as to say the negative implication arises simply from section 77(iii), although there are negative implications that do arise from section 77(iii), but there are a number of specific grants of Commonwealth legislative power that contemplate that the power can be used to single out the States and to impose a particular duty or a special burden on those States.

They are collected in many of the cases including the case that I am just about to come to, which is the Melbourne Corporation Case 74 CLR 31, but section 77(iii) is one of them, your Honours. It is the judgment of Justice Dixon that has probably been more frequently cited than any other, and I just want to go to a couple of well-known passages within that, but the collection of sections, and it is not exhaustive, which indicate that the Commonwealth might single out a State for a particular burden his Honour mentions at page 81 towards the end of the full paragraph that appears on that page, his Honour says “Examples can be seen in” those paragraphs, but there are other examples as well.

His Honour saw those examples as exceptions, if you like, to a general principle and the general principle is founded on the proposition that appears at page 82 in the third line:

The foundation of the Constitution is the conception of a central government and a number of State governments separately organized.

The large proposition that his Honour then drew from that is at page 83, the second last sentence in the first full paragraph.  His Honour said:

But to my mind, the efficacy of the system logically demands that, unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorizing the Commonwealth to make a law aimed at the restriction or control of a State in the exercise of its executive authority.

Earlier his Honour had indicated a slightly wider proposition at page 79 in the fourth line where his Honour referred after the comma to:

a law which places a particular disability or burden upon an operation or activity of a State, and more especially upon the execution of its constitutional powers.

Both of those sentences, as your Honours well know, have been picked up and frequently cited as the principle that ones draws from the Melbourne Corporation Case. 

The next case in the chronological survey is The Queen Victoria Memorial Hospital v Thornton 87 CLR 144. This was the case that at least confirmed and probably established that section 77(iii) of the Constitution is exhaustive of the functions that the Commonwealth Parliament can confer on a State court. It held that the Commonwealth Parliament cannot confer an administrative function upon a State court. At page 151, at the end of the second full paragraph, the Court unanimously said on that point:

It is sufficient to say that when a case arising under s. 27(4) is made the subject of a purported application under s. 28(1) a court of summary jurisdiction is called upon to perform a function which surely is of a non-judicial character.

That was fatal in that case.  What the Court again unanimously said, though, in passing at page 152, is instructive and what is said at page 152 in the paragraph that begins on that page is this:

It is to be noticed that s. 28(1) of the Re-establishment and Employment Act does not take any magistrate as a designate person or as a person who with his own consent and that of the State, may be detached from the court to which he belongs and used for particular purposes.

GLEESON CJ:   In such a case, who would give the consent of the State, if there were consent?

MR GAGELER:   That is what their Honours did not explore.  It is our submission that in the case of a State statutory officer it is the State legislature, that is, the organ under the State Constitution which has established that office that gives the consent.  In the case of a purely State Executive officer, we see no reason why it ought not be the State Executive that gives the consent.  Their Honours did not take the point any further than that, but it does provide the basis, in our submission, for the Commonwealth when it came, first in 1966, I think, and later in 1988 to set up the scheme of the Extradition Act to think that some sort of State consent was necessary. 

They required magistrates to act under the extradition legislation only where there existed an arrangement between the Governor‑General and the Governor of a State.  It is our submission that they just got it a bit wrong.  The arrangement must be one constitutionally which is authorised by and facilitated by State legislation.

GUMMOW J:   Why?

MR GAGELER:   Why?

GUMMOW J:   Yes.

MR GAGELER:   Because – I am going to restate something I said before – it is the functions of the State office which are being added to or, in the case of a duty, detracted from by having additional ‑ ‑ ‑

GUMMOW J:   I understand that, but why the legislature rather than the State Executive?

MR GAGELER:   Your Honour, put it this way, if the functions of a statutory ‑ ‑ ‑

GUMMOW J:   After all, these people are members of the Executive, in a sense.

MR GAGELER:   I am not sure about that in the case of magistrates.

GUMMOW J:   And members of the Parliament.

MR GAGELER:   No, they are not members of the Parliament.

GLEESON CJ:   For most of the 20th century State magistrates were members of the State public service.

MR GAGELER:   Of course, yes.  That has not been the position for ‑ ‑ ‑

GLEESON CJ:   Since 1986 in New South Wales.

MR GAGELER:   Yes.

GUMMOW J:   To Mr Gageler, that is antiquity.

KIRBY J:   But their office is created by State legislation, I think.

MR GAGELER:   Definitely.

KIRBY J:   It is not some prerogative office or something created by the Executive, it is created by the State Parliament.  So your theory is that, logically, if it is to be added to or subtracted from, that has to be done by the source of the power.

MR GAGELER:   That is exactly it.

HAYNE J:   But is not the relevant hypothesis that the office is not engaged?

MR GAGELER:   Your Honour here is talking about the persona designata doctrine.

HAYNE J:   That is where it plays out eventually and you will come to that.

MR GAGELER:   I will come to that in due course.

HAYNE J:   But the present proposition that it is a statutory office which therefore can be adjusted, if I can use that as a term of neutrality, can be adjusted only legislatively.  Does that take as its premise that that which is being adjusted is the statutory office?

MR GAGELER:   The incidence of the statutory office.  The powers or functions are pertinent to the statutory office, yes, it does.

GLEESON CJ:   Suppose a State judge were to accept appointment to a court outside the State without any State legislation backing that up, would that judge automatically vacate office because of the doctrine of inconsistent commission??

MR GAGELER:   Yes.

GUMMOW J:   This word “appurtenant” is a bit slippery, is it not?  It comes from real property.  It comes…..offices, I suppose, as form of property.

MR GAGELER:   I just used it in answer to a question.  There might be a better way of putting it but ‑ ‑ ‑

HAYNE J:   It may be better but is there a more confined or more accurate way of putting it, Mr Gageler?

MR GAGELER:   Probably not, your Honour.  Your Honour always draws it out of me and I think ‑ ‑ ‑

KIRBY J:   The doctrine of inconsistent commissions is a very detailed doctrine worked out in the British courts in the 19th century, so it is not a matter to be answered lightly.

MR GAGELER:   Your Honour, I am not invoking the common law doctrine of inconsistent commissions; I am invoking ‑ ‑ ‑

GLEESON CJ:   No, I was just testing your proposition that there needs to be State legislation to back up anything by which a State judicial officer, as it were, moves outside the functions of the office.

MR GAGELER:   Yes.

GLEESON CJ:   One of the problems of magistrates historically is that they have had all sorts of functions, administrative as well as judicial.

MR GAGELER:   Yes, of course.

GLEESON CJ:   Indeed, for a large part of the time in the 20th century when they were exercising federal jurisdiction from time to time, they were actually graded and their salaries were determined by reference to their performance as State public servants.

MR GAGELER:   Yes. There are two questions involved in that, your Honour, so far as they are exercising federal jurisdiction. The first question is, given their general functions, do they still constitute a court? That would be question one. If they do constitute a court, then section 77(iii) allowed for duties to be imposed upon that court which they constituted. So far as the imposition of an administrative duty might be concerned, one looks for another head of Commonwealth constitutional power. The other head of constitutional power may or may not in a particular case be governed by the general Melbourne Corporation principle which we invoke.

Can I come back to your Honour Justice Gummow’s question?  Really it is the heart of the argument.  What we are talking about in this case in putting the constitutional proposition in the way we do is a separation of powers at two levels.  There is the Commonwealth/State separation of powers and there is the Melbourne Corporation immunity that arises at that vertical level, but at the State level, that is, at the level which the Melbourne Corporation doctrine is designed to protect, there is a separation, using the term slightly loosely, between executive power and legislative power.

At that level, the exercise of legislative power cannot be made subject to executive power except in the case of a particular Henry VIII‑type clause where that is provided for by State legislation.  What we are saying is that just as the Executive cannot itself, of its own motion, add to or detract from the functions of an office created by State Parliament, the Executive cannot consent to or approve of additional duties being imposed by Commonwealth legislation.

HAYNE J:   That is a proposition of federal constitutional law, not a proposition about the constitutional law of a State.

MR GAGELER:   No, I do not agree with that.  It is a ‑ ‑ ‑

HAYNE J:   I want to know what the proposition is.  Is the proposition one that you are advancing as a proposition of federal constitutional law, at one level, yes, Melbourne Corporation, but is the proposition about whether it is legislative or executive authority that is requisite to consent to what the magistrate does a proposition of federal constitutional law or a proposition about what State constitutions require?

MR GAGELER:   Why I am not agreeing with your Honours that I am not accepting the distinction between federal constitutional law and State constitutional law given section 106 but, subject to that, in a broad answer to your Honour’s question, yes. I am looking at a distinction between governmental roles at the level of considering State and Commonwealth power, that is the Melbourne Corporation doctrine.  I am saying that the Melbourne Corporation doctrine is there, at least in part, to preserve the constitutional systems of the State and I am saying that the constitutional systems of the State set up, preserved under section 106, do not allow a State Executive to alter the functions of a State office created by a State statute.

GLEESON CJ:   Mr Gageler, I am sorry to keep harping on this, but there was a time actually when the question was of particular interest to me. It is who pays State judicial officers when they are exercising federal jurisdiction? I know you say we have the undoubted valid conferral of federal judicial power on State magistrates, for example, and I know you say in practice the necessary administrative and financial arrangements no doubt exist somewhere – and I have to tell you that I used to be told they existed in the Grants Commission – but it is not only a practical question, is it? Suppose a point came where a State said, “We are not satisfied with the financial arrangements under which federal judicial power is conferred upon State magistrates or State judges”, what happens then if there were some kind of impasse? What does the Constitution provide for the resolution of an issue of that kind?

MR GAGELER:   Yes, section 77(iii) and section 109. I think there are cases in this Court where mandamus has been ordered to a State court requiring it to exercise federal jurisdiction. I think there were some cases in the 1960s where that occurred. There is a particular provision of the Judiciary Act which provides specifically for orders of that kind.  It is section ‑ ‑ ‑

GUMMOW J:   The Garnishee Case in a way put things in high noon situations, did it not?

MR GAGELER:   Yes.  I was thinking of section 33(1)(a) of the Judiciary Act, but the Garnishee Case was a much more drastic circumstance, your Honour.

GLEESON CJ:   I am sure people do in fact attend to these issues in a practical way.  That is what government is about.  But when people make their practical arrangements, they usually do so on the basis of a common understanding of what their legal rights and obligations would be if they could not come to terms.

MR GAGELER:   Of course, but the legal rights and obligations of the States when it comes to financial matters, have never put them in a great bargaining position anyway.  So I mean the practicalities are, your Honour, that the States have been since I think 1906 or so pretty fundamentally dependent upon Commonwealth grants for a large part of their revenues anyway.  When it comes to finetuning the functions of State courts or any other State offices, it probably does not feature all that highly in practical arrangements.

GLEESON CJ:   You mean it probably is the reason why people used to say to me, the Grants Commission.

MR GAGELER:   That is probably right, yes.

KIRBY J:   The bottom line is that the Constitution permits the Federal Parliament to invest any court of a State with federal jurisdiction.

MR GAGELER:   Yes.

KIRBY J:   There is no way, in the face of that investment of federal jurisdiction in a State Court that, whatever the financial arrangements, the State Court having been validly invested with federal jurisdiction by the Parliament of the Commonwealth could say we will not take it.

MR GAGELER:   That is right.

KIRBY J:   That is a very special – that was the autochthonous expedient. That was the brilliant single most original idea of the founders. It is confined to the very particular circumstances which are provided in section 77(iii).

MR GAGELER:   That is right.  Your Honours, the next case that I wanted to come to was Queensland Electricity Commission v Commonwealth 159 CLR 192. This was the second of the cases before Austin in which Commonwealth law was struck down by reference to the Melbourne Corporation principle.  There are just two passages in it that I wanted to point out.  One is at page 207 in the judgment of Chief Justice Gibbs.  After referring generally to Melbourne Corporation his Honour said this – at the top of page:

The laws forbidden by this principle are those which discriminate against all the States or any one of them by subjecting them or it to a burden or disability which is not imposed on persons generally, a law whose very object is to restrict, burden or control an activity of the States or of one of them.  Further, notwithstanding the reference by Dixon J. in the passage cited from Melbourne Corporation v. The Commonwealth, and elsewhere, to “the restriction or control of a State in the exercise of its executive authority”, there is no reason to limit the doctrine to laws which interfere only with the executive power of a State.  A Commonwealth law which is directed at the exercise by a State of any of its governmental powers – legislative, executive or judicial – will fall within the ban.

At page 235, in the judgment of Justice Brennan, towards the bottom of the page, his Honour said this – and it is at about point 8 of the page.

The independence of the states in exercising their powers, implicit in s. 106 of the Constitution, and the binding effect of Commonwealth law upon them is thus reconciled ‑

and he was talking about the Melbourne Corporation principle -

no inroad may be made on State independence in the exercise of their powers save what is necessary to give effect to a general Commonwealth law unless the power supporting the law supports the discriminatory imposition of a burden or disability on the States.

KIRBY J:   What did his Honour mean by that?

MR GAGELER:   I am acutely conscious of the ambiguity inherent in the words “discrimination” or “discriminatory” but his Honour is referring to a law which singles out the States or a State or State instrumentalities of some sort or a particular State instrumentality for the imposition of a burden or disability which is not imposed generally on persons within the community undertaking a particular activity.  That is what his Honour is referring to, singling out is probably a better use of language.

Re Cram 163 CLR 117 goes very close to state the proposition for which we contend, almost in precisely the same terms, and the passage is at the bottom of page 127. This is a case, as your Honours well know, that was concerned with the establishment of what was described as a joint Commonwealth and State tribunal. At the bottom of page 127, after referring to some terms of the Commonwealth Act which authorised a tribunal to exercise powers under State law their Honours say this:

The necessity for authorization under the Commonwealth Act for the Tribunal’s exercise of powers conferred by the State Act was explained by Brennan J in Reg. v. Duncan;  Ex parte Australian Iron & Steel Pty Ltd:

“If the [Commonwealth] Act had merely constituted or authorized the constitution of a tribunal and had vested federal powers of conciliation and arbitration in it without reference to State powers, an attempt by a State Act to vest similar State powers in the same tribunal would fail – 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 had chosen to vest in it.”

His Honour went on, in Duncan, to refer to section 109 of the Constitution but the joint judgment here does not pick up that reference to section 109 of the Constitution and goes on ‑ ‑ ‑

KIRBY J:   What is the page you are reading from, please?

MR GAGELER:   I am reading from page 128, your Honour.  I had read the quotation from Duncan and then their Honours – this is a joint judgment of the Court in Re Cram – go on and say:

While it is unnecessary to investigate the matter here, it may well be, of course, that precisely the same comments could be made, mutatis mutandis, in relation to an attempt by a Commonwealth Act to confer federal duties upon a State-constituted non‑judicial tribunal, which was not expressly or impliedly authorized to exercise them by State law.

That really is a statement, albeit tentative, unexplored, of the very proposition for which we contend.

GLEESON CJ:   The Coal Industry Tribunal was set up under the legislation which empowered the Governor‑General to enter into an arrangement with the Governor of the State for the constitution of a coal industrial tribunal and there was matching State legislation, is that right?

MR GAGELER:   Yes, so both sides of the legislative package contemplated the other side of the legislative package.  So, your Honours, what you find there is really two things in that passage.  You find a principle of construction applied to Commonwealth statutes and subsequently applied in many cases as to the powers conferred upon an office or a statutory body ordinarily being treated as exhaustive or intended to be exhaustive, and then you find a very strong suggestion of the constitutional principle for which we contend, that is, that there is a reciprocal immunity of State offices from the imposition of duties under Commonwealth laws that mirrors the immunity of Commonwealth offices from the imposition of duties under State laws.

The next case is the Defence Housing Authority Case 190 CLR 410. This, of course, was the case that swept away, at least for the most part, the Cigamatic doctrine which gave a wider immunity, or at least it had been understood to provide a wider immunity for the Commonwealth from State laws than the Melbourne Corporation doctrine had provided as immunity of States from Commonwealth laws.  But what is recognised in this case at page 443 in the joint judgment of three members of the Court is that there is at least a Commonwealth immunity from discriminatory State laws which is the reciprocal of the State immunity from discriminatory Commonwealth laws that was recognised in Melbourne Corporation.  Your Honour Justice Kirby said the same thing quite succinctly at the bottom of page 507.  It is probably implicit in the other judgments but it is spelt out in those two places, pages 443 and 507 over the page to 508.

That brings me to Hughes 202 CLR 535, which most of your Honours will recall. There are just two passages in Hughes that I wanted to go to.  One is at page 569 in your Honour Justice Kirby’s judgment.  It is paragraph 75 and your Honour said this:

An officer or authority of the Commonwealth (such as the Commonwealth DPP) would ordinarily be immune from the imposition, by a law of a State or Territory, of functions and powers distinct from, or additional to, those imposed by federal law. Effective immunity from such imposition arises from several sources. These include the provisions of the Constitution itself; the implication derived from the Constitution that the laws of the States and self-governing Territories may not impermissibly restrict or modify the capability of the Commonwealth to perform its functions as such –

Your Honours might note the reference both to Melbourne Corporation and to Defence Housing Authority Case at the pages that I referred the Court to –

and the principle of statutory construction that the functions of a donee of legislative power will ordinarily be taken as confined to those relevant to the polity within which the officer or authority concerned operates.

Your Honour cited for that, amongst other cases, Re Cram and Duncan.

To very similar effect materially is the joint judgment at page 553, paragraph 31, and just picking it up in the last ‑ ‑ ‑

GUMMOW J:   Well, the critical word is “unilaterally”.

MR GAGELER:   Yes.

GUMMOW J:   The Solicitor for Victoria points out at paragraph 35 of her submissions that you do not get far in this case with Hughes because of executive arrangements.

MR GAGELER:   Well, that really just comes back to the same point.

GUMMOW J:   Exactly.

MR GAGELER:   Is it sufficient ‑ ‑ ‑

GUMMOW J:   All I am saying to you is you do not get an answer to that point by referring to Hughes.

MR GAGELER:   Well, yes, I get assistance in answering the point by referring to Hughes in this way.  The two propositions at the end of paragraph 31 in the joint judgment are:

The first is that a State by its laws cannot unilaterally invest functions under that law in officers of the Commonwealth -

and then the second refers to section 109. What your Honours are doing in – or some of your Honours were doing, in our submission, consistently with what Justice Kirby was doing in the passage at paragraph 75, was saying that the principle that is stated in Cram, the principle in Cram, is not solely the product of section 109 of the Constitution, it is the product also of an implication from federalism so I get that far.

GUMMOW J:   I think at some stage, Mr Gageler, you are going to have to face up to what, amongst other things, Victoria says in paragraph 7 on page 4 of its submissions.  It can only get so airborne by talking about the Seven Bishops, it seems to me.

MR GAGELER:   I did not mention the Seven Bishops, your Honour.  I used the language of the ‑ ‑ ‑

GUMMOW J:   I imagine you have to grapple with what the Solicitor says at 6 and 7 of Victoria’s very detailed consideration, actually, of a Stuart political situation, but you have to overcome paragraph 6(2) on page 3 of her submissions and paragraph 7 on page 4.

MR GAGELER:   I will look at those with my other homework overnight, your Honour.  I was about to move to the next case which is Austin 215 CLR 185 at paragraph 115 and I am happy to do that now, if that is convenient. Your Honours Justices Gummow and Hayne, together with Justice Gaudron at paragraph 115 stated the very broadest principle that one draws from the Melbourne Corporation Case.  At paragraph 130 your Honours then by reference to the Bank Nationalisation Case distinguished three types of application of that very broadest principle.  The second of them designated with paragraph (b) was:

a law which discriminates against the States and in that way singles them out in order to curtail their freedom in the execution of their constitutional powers –

and your Honours went on to note that Melbourne Corporation was a case that fell within category (b).  Melbourne Corporation was that sort of case.

HAYNE J:   Do you say this is?

MR GAGELER:   Yes, I do.

GUMMOW J:   What is said there builds upon what is said at paragraph  152, namely, there is a notion of what is critical to the States to maintain their systems of government.

MR GAGELER:   What your Honours do usefully for my purposes at paragraph 130 is to indicate that the very broadest principle that you stated at 115 is one that can involve different sorts of applications.  What we are seeking to invoke in the present case I accept has a slight element of novelty, save for the sentence in Re Cram that precisely states the point.  It has a slight element of novelty in that we are saying that in a case of an administrative duty being imposed on a State officer – I will leave the “legislative” bit out for the moment – by Commonwealth legislation, there is, in the absence of something in the particular grant of Commonwealth legislative power, to authorise it or, in the absence of State approval or consent to that occurring, a per se breach of the principle.

GUMMOW J:   Suppose the State passed a statute that said we do not approve of this, what role does section 109 then have to play?

MR GAGELER:   For section 109 to apply you first have to find a valid Commonwealth law and the principle that I invoke would prevent the validity of the Commonwealth law, your Honour. What I am saying is exactly what the Supreme Court of the United States said in Printz, and it is referred to by your Honours here.  I was about to move on to that.

GUMMOW J:   Printz is something of a moveable feast, is it not?

MR GAGELER:   We think not.  It is quite a clear statement of the majority and we have not found anything that suggests that it has been undermined ‑ ‑ ‑

GUMMOW J:   It might be worth looking at what Professor Tribe said about it.  Have you looked at that?

MR GAGELER:   Yes.

GUMMOW J:   In the third edition of his work on constitutional law.

MR GAGELER:   I will make sure I look at it in the third edition.

GUMMOW J:   Volume 1, 2000, pages 890 and thereafter.

MR GAGELER:   Yes, I think they are the pages your Honour referred to in this judgment.

GLEESON CJ:   Perhaps we can come back to that tomorrow morning?

MR GAGELER:   Yes.

GLEESON CJ:   We will adjourn now and we will resume at 10 o’clock tomorrow morning.

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 6 DECEMBER 2007