Precision Data Holdings Ltd & Ors v Wills

[1991] HCATrans 270

',:-~,

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M37 of 1991

B e t w e e n -

PRECISION DATA HOLDINGS LTD,

DABBY PTY LTD, TITAN HILLS

AUSTRALIA LTD, GODFREY CULLEN,

MAXWELL LATIMER and GARRY GRACO

Plaintiffs

and

DEAN WILLS, ROSS ADLER, PETER

JOOSTE {in their capacity as

Members of the Corporations and

Securities Panel), THE

COMMONWEALTH OF AUSTRALIA, THE
AUSTRALIAN SECURITIES

COMMISSION and THE STATE OF

VICTORIA

Defendants

Case Stated pursuant to

section 18 of the Judiciary

Act 1903

MASON CJ
BRENNAN J

DEANE J
DAWSON J

TOOHEY J

GAUDRON-.J

McHUGH.J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 25 SEPTEMBER 1991, AT 10.55 AM

Copyright in the High Court of Australia

Precision 1 25/9/91

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR P. HANKS, for the plaintiffs.

(instructed by Ebsworth & Ebsworth)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned
friends, MS S.C. KENNY and MR S.J. GAGELER, for the

Commonwealth of Australia, the fourth defendant.

(instructed by the Australian Government Solicitor)

MR M.J. COLBRAN: If the Court pleases, I appear for the

fifth defendant, the Australian Securities

Commission. (instructed by Regional General Counsel

(Vic) for the Australian Securities Commission)

MR H.C. BERKELEY, QC, Solicitor General for the State of

Victoria:  I appear with my learned friend,

MR C.M. SCERRI, for the State of Victoria.

(instructed by the Crown Solicitor for Victoria)

MR K.H. PARKER, QC, Solicitor-General for the State of

Western Australia: If it please the Court, I

appear with my learned friend, MSC.A. WHEELER, for
the State of Western Australiu, intervening in

support of the validity of the legislation.

(instructed by the Crown Solicitor for the State of

Western Australia)

MASON CJ: Yes, I have taken that all the Solicitors are

appearing to support the validity of the

legislation.

MR PARKER:  I have not seen any other colour raised yet,

Your Honour.

MR J.J. DOYLE, QC, Solicitor-General for the State of South

Australia: If the Court pleases, I appear with

MR M.D. WALTER, for the States of South Australia

and Tasmania, to intervene in support of the

defendants and in support of the validity of the

legislation. (instructed by the Crown Solicitors

for the States of South Australia and Tasmania)

MR G.L. DAVIES, QC, Solicitor-General for the State of

Queensland: May it please the Court, I appear with

my learned friend, MS R.G. ATKINSON, for the State

of Queensland, also to support the legislation.

(instructed by the Crown Solicitor for the State of

Queensland)

MASON CJ: Yes, Mr Jackson.

MR JACKSON:	Your Honours have material filed that sets out the submissions made on behalf of the parties and
as appears from that material the case concerns the
validity of the conferral on the Corporations and
Securities Panel of the powers referred to in

Precision 2 25/9/91

sections 733 and 734 of the Corporations Law of

Victoria and of the other States.

Your Honours, the course which I propose to

take is to go first to the legislation and it is

necessary to go to it in a little detail to

indicate the functions performed by the Panel under

the several laws in question, and then go to the

submissions we wish to make about. the validity of

the conferral of those powers on the Panel.

May I go immediately to the provisions

establishing the Panel and conferring jurisdiction

upon it and the enactment to which I would go first

is the Australian Securities Commission Act 1989.

BRENNAN J: Are we all working off the same volume,

Mr Jackson?

MR JACKSON:  The volume that I am looking at is the CCH

version of it, which has a commencing page numbered

63,101.

Your Honours, the Act had a kind of

metamorphosis, the nature of which I shall have to

come to later, but the copy that Your Honours have

should be the copy which has been amended by the

Corporations Legislation Amendment Act 1990 and one

way of telling whether it is or is not is that the

first provision to which I wish to refer is

section l(l)(a) which says:

The objects of this Act are:

(a) to establish an Australian Securities

Commission -

et cetera.

MASON CJ:  I think we have that, Mr Jackson.

MR JACKSON:  Your Honours, could I go first to the objects

of that Act. Your Honours will see the objects set

out in section 1(1) of it and the relevant object

is that set out in section l(l)(d), at page 63,101,

which simply says that the relevant object is -

to establish a Corporations and Securities

Panel -

together with several other bodies.

Could I ask Your Honours to note that in

section l(l)(d) there is no reference to the
Australian Capital Territory or, indeed, no

reference to any jurisdiction at all, whereas, on

the other hand, one sees in section l(l)(a) that:

Precision 3 25/9/91

The objects of this Act are:

(a) to establish an Australian Securities

Commission to administer such laws of the

Capital Territory, the States and the other

Territories as confer functions and powers

under those laws on the Commission.

Perhaps I should ask Your Honours to note in

passing the alternative methods of citation of the

Act which are provided for by section lB(l), and I do so, Your Honours, simply to identify a possible

source of confusion that might otherwise arise.

Your Honours, the Panel is established by

section 171 of the Act, which appears at

page 64,703, and Your Honours will see it simply

says in section 171 that:

A Corporations and Securities Panel is

established.

The members of the Panel are appointed by the

Governor-General. That appears from

section 172(2). It is required that the members of
the Panel possess experience deriving from one or
perhaps one or more of a number of very broadly

described disciplines. That appears from

section 172(4), and, Your Honours, the States are

permitted to play a part in the nomination of

persons as possible appointees to the panel. That

appears from section 172(4A) and 172(4B). Your

Honours, could I say one thing in passing and that is that if it perhaps be said - and a hint of it

appears in one of the submissions to the contrary -

in this case that the ability of the States to

nominate persons as potential members of the Panel

tends to indicate that a power being exercised is

not judicial, we would mention two matters.	The
first is that a requirement that there be
recommendations by the State hardly would lead to

that conclusion, if one bears in mind section 6 of

the High Court of Australia Act. The second is

that it is by no means unusual for there to be a

statutory requirement for expertise of a particular

kind to be possessed by a person exercising

judicial power, and in that regard, could I refer

Your Honours to section 22(2)(b) of the Family Law

Act 1975, and may I, perhaps, give Your Honours

some copies of that provision.

Now, Your Honours, what does appear from the

provisions to which I have adverted is that some or
all or none of the members of the Panel might have

legal qualifications. Your Honours, one of the

members of the Panel is to be appointed president.

That appears from section 173, and the term of

Precision 4 25/9/91

office of members of the Panel is provided for by

section 175(1), which says that:

a person ..... holds office for such term of at

most 5 years.

Your Honours, I shall not go through the detail of

section 175, but the basic term is five years.

Provision is made for removal by the

Governor-General in the circumstances referred to

in section 178(1).

Your Honours, it is manifest that members of

the Panel do not hold office in a manner provided
for by section 72 of the Constitution and, in
particular, the term of office is for a term of
years, a matter not contemplated by the third

paragraph of section 72. Secondly, that provision

for removal differs. That appears from

section 72(ii) of the Constitution.

Your Honours, returning if I may to

section 171, Your Honours will see that that

section forms part of the enactment which is

Part 10 Division 1. Your Honours, Part 10

Division 1 consists of sections 171 to 183 and one of the provisions included in Part 10 Division 1 is

section 174. Your Honours, section 174 is the

provision of critical importance for present

purposes. Section 174 provides that:

The Panel has the functions and powers

conferred on it by or under -

what is then described as -

a national scheme law of this or any other

jurisdiction.

Now, Your Honour will see that section 174 provides

that the Panel has conferred upon it powers and functions which require further identification, but
to identify them one has to go first to the

expression "national scheme law'' which is defined

in section 5(1) at page 63,201. Related to that is

the next definition "national scheme law of this

jurisdiction". Your Honours, going to the first of

those definitions, the presently material provision

is paragraph (b) of the definition of "national

scheme law", that is:

a law of another jurisdiction that corresponds

to an Act or Law referred to in paragraph (a).

The reference to another jurisdiction, for

reasons to which I will come later, would appear to

Precision 25/9/91

mean a jurisdiction other than the Australian

Capital Territory.

Your Honours, the national scheme law of another jurisdiction which is material is the

Corporations Law of Victoria - and I will come to

it in a moment - but there are two ways of

describing it: the Corporations Law or the

Corporations Law of Victoria. Yo~r Honours, that

is the law to which I will be referring, by the

shorter or longer version as is necessary.

Your Honours, may I, before going to it,

indicate in a very few words the structure of the

law in Victoria and in the other States so far as

presently material. Each State has enacted

legislation called, for example, the Corporations

(Victoria) Act 1990. Section 7 of that Act appears

at a place to which I will come in just a moment,

but it also provides that:

The Corporations Law set out in section 82 of

the Corporations Act -

1989 -

applies as a law of Victoria.

Your Honours, if I could just pause at that

point and go first to section 7 of the Corporations

(Victoria) Act. That appears in another volume at

page 1633. Your Honours, what it says is that:

The Corporations Law set out in section 82 of

the Corporations Act as in force for the time

being:

(a) applies as a law of Victoria; and

(b) as so applying, may be referred to as the

Corporations Law of Victoria.

Now, Your Honours, the Corporations Act to

which section 7 applies is a law which is a

Commonwealth law made applicable by provisions to

which, again, I will come, to the Australian
Capital Territory. Section 82 of the Corporations

Act contains, following it, the lengthy text of the

Corporations Law.

Section 82 of the Corporations Act may be seen

at page 1463 and, Your Honours, it says, in the

copy which I have:

The Corporations Law is as follows:

Precision 6 25/9/91

and then, at a later part, it then sets out the

full text. If I could pause at that point to say,

Your Honours, that the Corporations Law may be seen commencing at page 1317 and sections 1 to 82 deal

with matters before one gets to the text of the

Corporations Law.

Now, Your Honours, the Corporations Law, as I

said a moment ago, is a law which contains many

provisions and, by the operation of section 7 of

the Corporations (Victoria) Act 1990, the provision

to which I referred a moment ago and which appears

at page 1633, those provisions become laws of

Victoria.

Now, Your Honours, before I come to the

relevant provisions of the Corporations Law, may I
go first to the terms of another provision of the

Corporations (Victoria) Act, that is, section 58

which appears at page 1732. This provision deals
with the application as laws of Victoria of parts

of the Australian Securities Commission Act, the

Act to which I first referred.

Now, Your Honours will see that section 58(1) provides that the ASC Act, and it says:

other than the excluded provisions:

(a) applies as a law of -

Victoria, and then he gives a name to it in

paragraph (b). Now, Your Honours, the excluded

provisions are listed in section 58(2), and

Your Honours will see that they include relevantly

for present purposes:

Division 1 of Part 10 -

that appears at page 1733. So that the provisions

of sections 171 to 183 of the Australian Securities

Commission Act, including, importantly,

sections 171 and 174, do not form part of the law

of Victoria.

Now, Your Honours, having said that may I go

then to the Corporations Law of Victoria, and that

deals in a part described as Part 6.9 with the

powers of the Panel, and the relevant sections

commence with section 733, Your Honours, which is

at page 20553.

DEANE J:  Would you say that again, Mr Jackson?

MR JACKSON:  I am sorry, Your Honour. The relevant sections

commence with section 733, which is at page 20553.

The commencing section of that part is section 728

Precision 7 25/9/91

which appears at the preceding page. But,

Your Honours, the powers of the Panel are

contained, relevantly, in section 733 and 734 and,

we shall submit, are powers which are judicial in

nature. The starting point, Your Honours, is

section 733(3). It provides that:

Where, on an application under subsection (1),

the Panel is satisfied -

of certain things.	The first is that, what is
described as -

unacceptable circumstances have occurred:

(i) in relation to an acquisition of shares

in the company; or

(ii) as a result of conduct engaged in by a

person in relation to shares in, or the

affairs of, the company; and

(b) having regard to the matters referred to

in section 731 and any other matters the Panel

considers relevant, that it is in the public

interest to do so;

the Panel may by writing declare the
acquisition to have been an unacceptable

acquisition, or the conduct to have been

unacceptable conduct, as the case may be.

Your Honours, there are several features of

section 733(3) which are germane and which I need

to expand upon: the first is that the Panel's

power under that section is to make a declaration;

the second is that the declaration follows one of

two forms. One is a declaration that an

acquisition has been unacceptable; the second is a

declaration that certain conduct has been

unacceptable.	And the references to those
concepts, unacceptable acquisitions and

unacceptable conduct, take one back to an earlier

part of the section, that is to section - take one

back to section 732 and section 732 contains a

definition of the concept of unacceptable

circumstances.

Your Honours will see, in relation to

section 732, that unacceptable circumstances occur

if and only if a number of events or things have

occurred. I shall not read them out but I would

ask Your Honours to read them; and Your Honours

will see that they all involve criteria which are

objective; they all refer to events which have

already occurred and that is a matter which is made

clear by section 733(4), which treats the conduct,

Precision 8 25/9/91

in relation to which a declaration may be made, as

conduct which has occurred in the past.

TOOHEY J:  Mr Jackson, if the Panel is not so satisfied in

terms of section 733(3), what does it do?	Does it
just do nothing?

MR JACKSON:  Do nothing, Your Honour. I am coming to

section 734 in a moment. Section 733 has, I
suppose, a number of operations but one would think

the principally important one is to operate as a

trigger to bring into play section 734, which is

the one permitting orders to be made. But, if I

could stay for the moment with section 733.

Your Honours will see that in the light of the

definition of "unacceptable circumstances" that the

Panel, pursuant to section 733(3)(a), is required

to form a view on questions of fact; that is, it

must be satisfied on matters of fact, namely that

unacceptable circumstances, as so defined, have

occurred.

Your Honours, the terms of section 733(3)(a)

involves findings of fact. The terms of section

733(3)(b) require the Panel to have regard to the

matters set out in section 731.	Your Honours will
see that section 731 says that:

In exercising any of its powers under

section 728 or 730, the Commission -

and that is not the Panel, of course -

the Commission shall take account of the

desirability -

and Your Honours, if I could start at this point,

this is the part of section 731 that appears to be

picked up by the reference to it in

section 733(3)(b):

the desirability of ensuring that the

acquisition of shares in companies takes place

in an efficient, competitive and informed

market and, without limiting the generality of

the foregoing, shall have regard to the need

to ensure:

and then the succeeding paragraphs mirror the

paragraphs of section 732.

Going back then to section 733(3)(b),

Your Honours will see that the Panel is required to

take into account, first of all, that unacceptable
circumstances have been found by it to occur;

secondly, it must decide that it is in the public

interest to make a declaration, and it makes that

Precision 9 25/9/91

decision by reference to the matters referred to in

section 731; any other matters the Panel considers

relevant; and, of course, the decision that it is

in the public interest to do so.

It may be that when section 733(3)(b) speaks

of the matters referred to in section 731, that it

is referring principally to the expression of the

desirability of ensuring that th~ acquisition of

shares in companies takes place in an efficient,

competitive and informed market, as well as the

particular matters mentioned. It may be, on the

other hand, that what is picked up by that

expression in 733(3)(b) is that when it speaks of

the matters referred to in section 731 it means the

particularly enumerated matters (a) to (d), and

then when it says "any other matters the Panel
considers relevant", it is speaking about matters

the Panel considers relevant to the proposition

stated broadly in section 731 immediately preceding

the enumerated matters. But perhaps the

difference, if any, does not matter very much.

Now, Your Honours, what happens then is that

the Panel by writing declares the acquisition to

have been an unacceptable acquisition, or the

conduct to have been unacceptable conduct.

Your Honours, we would ask the Court to note also that to this point the Panel does not act of

its own motion. It is the Australian Securities

Commission which initiates the proceedings before the Panel by application to the Panel. That that

is so appears from section 733(1) which empowers

the Commission to -

apply to the Corporations and Securities Panel

for a declaration under subsection (3) in

relation to the acquisition or conduct.

And it also appears from the opening words of

section 733(3).

Now, Your Honours, what follows from the

making of a declaration under section 733 is that

the Panel's power to make a coercive order under

section 734 comes into play again at the instance

of the Commission.

Now, Your Honours, if I could go in that

regard first to section 734(1), and Your Honours

will see that it says the section applies where

such a declaration has been made. Secondly, the opening words of section 734(2) make it apparent

that the Panel's power under section 734(2) is

enlivened by an application by the Commission. And

then, Your Honours, if one goes to the orders which

Precision 10 25/9/91

can be made one sees first of all, in paragraph (a)

a general expression of the orders which might be

made - I shall not read that out, but ask

Your Honours to note its terms. We will also ask

Your Honours to note that the terms of

section 734(2) in the third line speak of "orders".

The word used is "orders".

Now, that that is so is a matter emphasized by

section 734(2)(c) which speaks of orders for -

securing compliance with any order made under

paragraph (a) or (b).

If I could go then to the various particular orders

which might be made under section 734(2)(b),

Your Honours will see the nature of them. Perhaps

I might refer specifically to subparagraphs (ii) -

(ii) an order prohibiting the exercise of

voting or other rights attached to specified

shares ..... ;

(vii) an order that an exercise of the voting

or other rights attached to specified shares

be disregarded.

Going back to paragraph (iii), an order directing,

in effect, no dividends.

(iv) an order prohibiting the acquisition or disposal of, or of an interest in, specified shares;

(v) an order directing the disposal of, or of

an interest in, specified shares;

that is, an order which means that one cannot

acquire or dispose of an item of property.	If
Your Honours go to paragraph (vi):

(vi) an order directing a company not to

register a transfer or transmission of

specified shares, being a transfer or
transmission occurring after the commencement

of this section.

And, Your Honours, paragraph (vii), to

paraphrase it, no bonus shares, or shares in

consequence with the exercise of rights to obtain

further shares.	And then, paragraph (ix) an order
setting aside an agreement.	Now, Your Honours,

those are orders, of course, which affect rights,

really at the heart of the rights that one might

ordinarily expect to be attracted by shares.

Your Honours, the orders made by the Panel under

Precision 11 25/9/91

that provision may not be contravened; that appears

from subsection 734(5):

A person shall not contravene an order in

force under subsection (2).

And could I refer Your Honours also to section 735,

which contains several other provisions relating to

orders. Subsection (5) says that:

An order by the Panel under section 734 may

include such ancillary or consequential

provisions -

Subsection (6)(a) allows an order to include:

a provision that the disposal be made -

in a manner determined by the Panel, and

paragraph (b), it may be an order for payment of

money. Subsection (7) is a reference to an order

made under 734(2)(b)(vii), which is an order that

the exercise of the voting or other rights attached

to specified shares be disregarded. And,

Your Honours, the terms of paragraph (7) give such

an order its effect on the company and then

subsection (8), in effect cancelling an agreement,

or making it voidable.

Now, Your Honours, those are the orders which

may be made and they are orders which, I submitted

a moment ago, are capable of affecting rights in

very serious ways.

TOOHEY J:  Mr Jackson, could I just ask you this to see that

I understand the scheme? Does the reference to

unacceptable conduct empower the Panel to make

orders in advance of acquisition?

MR JACKSON:  Your Honour, it seems to be framed by reference

to events which have occurred.

TOOHEY J: Yes, I understand that.

MR JACKSON:  In our submission, it does not empower the

making of orders which relate to conduct in the

future, except, I should say, prohibiting, in

effect, repetitions of it and forms of relief that

relate to past conduct, injunctions and so on.

TOOHEY J:  I wondered because section 733(3) empowers the

Panel to declare an:

acquisition to have been an unacceptable
acquisition, or the conduct to have been

unacceptable conduct -

Precision 12 25/9/91

as if that is something that stands apart from

acquisition.

MR JACKSON:  Your Honour - I am sorry - as if it stands

apart, Your Honour - I am just a - - -

TOOHEY J: Yes, if it is an independent head of power, as it

were, from an unacceptable acquisition.

MR JACKSON:  Well, Your Honour, it refers· ·to the two

things, but it is right to say that the making of

the declaration, apart from the publicity which may

be given to it, and to which I will come, does not

itself seem to affect rights, but it is really

something which leads then to the making of orders

in an appropriate case under section 734. Now, the

orders, Your Honour, if I could just go to 734(1)

for a moment. 734(1) seems to work on the

assumption that the conduct in respect of which the

declaration has been made is conduct which is past.

Now that having happened, one then looks at the

various types of orders that may be made. Now, of course they are orders which do have a prospective operation. For example, an order saying that an

exercise of voting rights is to be disregarded
might perhaps be an order that applies to prior
voting and perhaps to future voting, but it is an

order which has effect upon the voting rights.

DEANE J: Section 732(c) seems readily available to

respective orders of the type Justice Toohey has in

mind, that is, all that is necessary there is that

a proposal has been made.

MR JACKSON: Is Your Honour looking at 734(2)(c)?

DEANE J:	7 32 ( c), and "would" rather than "did" or "has".
MR JACKSON:	I am sorry, Your Honour, 732(c) - - -

DEANE J:  under which a person would acquire a substantial interest in the company.

MR JACKSON:	Yes, Your Honour.
DEANE J:	I mean, one can envisage that leading to an order

under 734(2)(b)(i) and, alternatively, an order

that if it be not supplied the acquisition not go

ahead.

MR JACKSON:  Your Honour, those things are possible -

perhaps I was talking about something different.

What I was seeking to convey was that the functions

of the Panel were to look - in the circumstances

which the Act contemplates - at events which have

occurred, and having occurred then to make the orders that are contemplated by the provision.

Precision 13 25/9/91

Your Honours will see from the provisions to

which I have so far referred that the Panel has

power to make things described as orders, and the

orders are orders which are binding. Now, the

Panel itself does not have power to enforce those

orders but that may be done by the Commission by

applying to the court pursuant to section 736.

Your Honours, in making our further

submissions I will need to come back a little to

some of the terms of these provisions and to some

of the terms setting out in more detail the
functions of the Australian Securities Commission,

but may I seek to do that in developing the

submissions concerning the next aspect with which I

wish to deal and that is the question, whether the

Panel in exercising the functions that it is there

engaged in, is exercising judicial power.

Your Honours, I am conscious, of course, that a

question which follows from that is whose judicial

power it might be? May I deal with that, having

first sought to identify the nature of the power

being exercised.

BRENNAN J:	Mr Jackson, just before you proceed, with reference to the application to a court under 736,
what court?

MR JACKSON:  Your Honour it varies. Perhaps I could check

this, but it is, I understand, the supreme courts of the States or the Federal Court in some cases. I am sorry, the supreme courts of the States or the

Territories, I should have said. I think the

Federal Court does not have jurisdiction in respect of these matters, directly.

BRENNAN J:  So under the Victorian law, the Victorian

Corporations Act, jurisdiction conferred on a court

by 736 of the Corporations Law would be vested in

the Supreme Court of Victoria?

MR JACKSON:  Yes. Your Honour, may I check that because the

path can be somewhat tortuous in these matters
but - I am sorry, but the suggestion is made that
it both, actually, Your Honour, the Federal Court

and the State court.

BRENNAN J: Yes, I see.

MR JACKSON:  Your Honour, I suspect I have not entirely

followed through the sinuosity of the provisions

but it may well be both the Federal Court and the

supreme court and that - - -

l'.LASON CJ: Well, if you looked at the definition of "court",

that would seem to be the indication or the

Precision 14 25/9/91

position but no doubt there are other provisions

that bear on it.

MR JACKSON:  Your Honours, if I could move on from that to

the question whether the Panel is exercising

judicial power: the question of the ambit of

judicial power has been discussed on many

occasions, of course, and I do not intend to go

over them all or many of them but may I refer to a

number which, in our submission, are presently

material.

The starting point, we would submit, is the observation of Chief Justice Griffith in Huddart,

Parker and Co Pty Limited v Moorehead,

(1908) 8 CLR 330, at 357.

DEANE J:  Mr Jackson, is the position this, that in so far

as these provisions are concerned by the path,

whatever it may be that you have described, they,

for relevant purposes, have the authority of laws

of both the Commonwealth and Victoria?

MR JACKSON:  Yes. Your Honour, that is what we submit.

DEANE J:  I was wondering if it was common ground so that

one could forget the path?

MR JACKSON:  Your Honour, I suppose it is common ground but

with a major qualification from the other side.

The major qualification would be, I would think,

that the contention is that in so far as it has a

non-State, meaning Commonwealth aspect, it is a law

made under section 122.

Your Honour, I was going to refer to

8 CLR 357.	The quotation, of course, appears in
the penultimate paragraph on that page.	The point

which is material is that the description of

judicial power is not merely the decision of

controversies between the subjects but also

controversies - Your Honours, there are two points

that emerge from that passage: the first is the

controversies which are the subject of judicial
power are not merely controversies between subjects

but also between the quality, as it were, and its

subjects, whether they relate to life, liberty or

property; and the second is that what is

contemplated is that there be a binding and

authoritative adjudication, whether subject to

appeal or not.

Your Honours, that definition has been applied

on many occasions, of course, and a recent

application of it is in Polyukhovich v

Commonwealth, (1991) 101 ALR 545 at 554, in the

judgment of Your Honour the Chief Justice.

Precision 15 25/9/91

Your Honours will see there, too, the reference to the other commonly used description of it by

Justice Kitto in Reg v Trade Practices Tribunal; Ex

Parte Tasmanian Breweries.

Your Honours, one further aspect of judicial

power, of course, is that its nature includes the

making of determinations which are declaratory, and

that that is so is stated expressly in a number of

cases. Could I take Your Honours 'first to Re Cram;

Ex Parte Newcastle Wallsend Coal Pty Ltd, (1987)

163 CLR 140 at 148 in the joint judgment of

Your Honour the Chief Justice and Justices Brennan,

Deane, Dawson and Toohey. It is the passage,

Your Honours, commencing at about point 4 on the

page:

As the judicial power of the Commonwealth is reposed bys. 71 of the Constitution in

Ch. III courts, an Authority is necessarily

without jurisdiction to hear and determine

claims of the kind already mentioned to the

extent to which the right sought to be

enforced arises under federal law.

Your Honours then dealt with the result of that

and, at the bottom of page 148 going to the top of

page 149, Your Honours said:

What this principle relevantly denies to the

Authority is the power of judicial determination which includes ..... "the giving of decisions in the nature of adjudications upon disputes as to rights or obligations

arising from the operation of the law upon

past events or conduct." The making of a
binding declaration of right is an instance of

the exercise of judicial power. It stands

outside the arbitral function.

Your Honours, in two more recent cases the

same point has been adverted to. In Harris v	Caladine, (1991) 65 ALJR 281 - I think I have
overstated it, but if Your Honours look at page 303
in the left column, Your Honour Justice Gaudron, in
the passage commencing between letters D and E and
going down to the end of that paragraph. Then,
Your Honours, at page 306, Your Honour again, in
the left column at the top of the page saying, in general terms:

that is the power that is brought to bear in

determining the guilt of, or punishment for,

breach of the law and in making final and

binding determinations in controversies as to

the existence of a legal right, power or

obligation or as to legal status.

Precision 16 25/9/91

Your Honours, in Re Nolan; Ex parte Young,

(1991) 65 ALJR 486, at 498, the paragraph

commencing between letters E and F, Your Honours

will see particularly towards the end of the

paragraph, Your Honour Justice McHugh speaks of:

the arbitrary abrogation of rights -

and the non-interference with rights -

other than in consequence of

the ..... application of the ..... law to

facts ..... properly ascertained.

McHUGH J:	I think that is Justice Deane.
TOOHEY J:	I think there has been a bit of confusion,

Mr Jackson. I think you attributed my judgment to

Justice Gaudron, Justice McHugh's judgment in the

present case to Justice - Justice Deane's judgment

to Justice McHugh.

MR JACKSON:  Your Honour, it becomes so difficult sometimes.

MASON CJ: Justice Toohey is the only one who is

complaining.

MR JACKSON:  Your Honour, the publishers of that journal

have a certain meekness of disposition in
indicating where new judgments start when they

start towards the top of pages. But, Your Honours, perhaps it is unnecessary to say much more about it

than that, but it is clear, we would submit, that

the power to make a declaration is something which

is a power which is within the judicial power, so

too is a power to take away rights. But, of

course, Your Honours, there may be cases where

somewhat similar results can be achieved by the

operation of powers which, in their nature, are to

be described as administrative and, Your Honours,

as is expressly stated in a number of cases, and as

is apparent from the nature of the decisions, the

issue may sometimes be one which is finely

balanced.

Now, Your Honours, one of the circumstances in

which the issue does present difficulties is in

deciding whether bodies, which have adjudicative

functions, are exercising power which should be

characterized as judicial or should be
characterized as administrative and, Your Honour,

in that regard could I refer to, first, Reg

v Davison, (1954) 90 CLR 353, at page 366 going

through to page 367. The passage commences,

relevantly, at page 366 in the last new paragraph

on the page, and goes through to page 367, the end

of the long paragraph, and Your Honours will see,

Precision 17 25/9/91

at the start of it the reference to the difficulty

in framing a definition that is once exclusive and

exhaustive, and then if one looks, for example, at

page 367, about point 5, a quotation from

Chief Baron Palles:

By this I mean that the liability is imposed,

or the right affected by the determination

only, and not by the fact determined, and so

that the liability will exist, or the right

will be affected, although the determination

be wrong in law or in fact -

and so on, and he refers to the difference between

the two.

Your Honours, the difficulty was referred to

also in Reg v Trade Practices Tribunal; Ex parte
Tasmanian Breweries Pty Ltd, a case to which I will

return in a moment, but if I could take

Your Honours to one passage in it, (1970)

123 CLR 361, and at page 394 the paragraph

commencing in the middle of the page.

Your Honours, finally on this point, Re Ranger

Uranium Mines Proprietary Limited; ex parte

Federated Miscellaneous Workers Union of Australia,

(1987) 163 CLR 656 at pages 665 to 666, and the

passage in Your Honours' joint judgment commencing

in the second new paragraph on page 665.

Your Honours, in deciding on which side of the

line a particular body will fall, there are various

indicea and criteria to which regard will be had

and to which regard may be given. The indicia and

criteria may be seen in, for example, the Tasmanian

Breweries case, 123 CLR, a case where the decision fell on the administrative side of the line. It is a case to which I take Your Honours because the scheme of the legislation there discussed involves some similarities structurally with the scheme in

the present case, and it may be convenient to deal

with that case which perhaps lies, in a sense, at

the heart of the case for validity as being an

administrative power rather than a judicial one.

Your Honours, the attack in that case was upon

the Trade Practices Tribunal. That tribunal was

established by an earlier form of the Trade

Practices Act, namely, the Trade Practices

Act 1965. A short summary of the legislation

appears at page 372 in the judgment of

Justice Kitto in a passage which commences in the

last paragraph on the page and goes through to the

end of that paragraph on page 373.

Precision 18 25/9/91

Your Honours, the features which His Honour

regarded as significant in determining that the

body was administrative rather than judicial

commence at page 375, and the relevant passage

commences at the top of page 375 and goes through

to the bottom of page 376. Your Honours, if I

could just refer to a number of the features that

were regarded as favouring the administrative side

and compare them with the present case,

Your Honours will see at about point 2 on page 375

that it was said:

The powers of the Tribunal ..... are not

directed to any determination or order which

resolves an actual or potential controversy as

to existing rights or obligations ..... The

Commissioner~ .... does not come before the

Tribunal asserting a right to relief in either

a personal or a representative capacity.

But, of course, Your Honours, in the present case

what happens is that the Commission applies for

specific relief. I refer Your Honours to the

opening words of section 733(1) to which I have

gone before, and to the opening words of

section 734(2).

TOOHEY J: It is right to say, is it, Mr Jackson, that no

one other than the Commissioner can invoke the

powers of the Panel or the powers of the court, the

Panel having made a declaration or order?

MR JACKSON:	Yes, Your Honour.
TOOHEY J:	Thank you.
MR JACKSON:	Your Honour, I am not adding a qualification to

that, but I suppose what might be sought to be done

by someone would be if there were some other

proceeding between parties in which the issue of

the conduct of a person was concerned, it might be

perhaps sought to adduce evidence of a

determination of the Panel relying, I suppose, on

its binding nature. But that is about as far as

one could take it, Your Honour.

Your Honour, what I was going to say was this,

that the second feature was this, that it said: but he does not come before the Tribunal

asserting a right to relief in either a

personal or a representative capacity.

Your Honours, the Australian Securities Commission

does have a statutory capacity. Could I, in that

regard, take Your Honours back to the Australian

Securities Commission Act, first to

Precision 19 25/9/91

section l(l)(a), to which I referred earlier, which

sets out the objects of the Act - that is

page 63,101:

to establish an Australian Securities

Commission to administer such laws of the

Capital Territory ..... as confer functions and

powers under those laws on the Commission. Then, Your Honours, one goes from that to

section 1(2)(g) which says the:

(Commission must strive) .....

(g) to take whatever action it can take, and

is necessary, in order to enforce and give

effect to national scheme laws.

So the Commission has a statutory capacity.

Your Honours, if I could move down a little in

the reasons for judgment of Justice Kitto to about
point 4. It said:

Even where the Commissioner makes submissions

on these questions in order to assist the

Tribunal, he is not seeking the vindication of

any right or obligation.

Your Honours, that is true in the present case in

one sense, of course: the Commission does not have

itself a right to the shares or rights in or in

relation to the shares, but the Commission is

seeking the vindication of a statutory obligation

said to exist.

Your Honours, if I could perhaps move on from

that to page 376, Your Honours will see at about

point 3:

We are here concerned with a power which depends upon nothing but the Tribunal's own satisfaction that certain conditions exist.

Now, what was being referred to in that case were

conditions which were expressed in a relatively

vague way. Your Honours, I wonder if we might hand

to Your Honours copies of the relevant legislation

that was in issue in those proceedings? Could I

take Your Honours, in dealing with that, to

section 47 which related to the power of the

Commissioner to institute the proceedings and

Your Honours will note an enthusiastic definition

of "public interest'' in section 46, and then,

Your Honours, when one comes to the tribunal,

Your Honours will see section 49, the tribunal's powers were to make:

Precision 20 25/9/91

such inquiry as it considers appropriate -

and then:

if it is satisfied that an examinable

agreement exists or has existed -

record its findings and then determine:

whether the relevant restrictions ..... are

contrary to the public interest -

and then state its reason for that view.

Your Honours, if one compares provisions of that

kind with the present provisions there is very

little room in section 733 for the own satisfaction

of the Panel or for the use of open-ended criteria

in any sense. Your Honours, one must also bear in

mind that one is talking not just about section 733

but also about section 734 and section 734 does not

seem to leave room for any open-ended criteria.

It, of course, permits the exercise of discretion

in relation to determination of the remedy to be

applied but it does not leave the criteria

open-ended.

Your Honours, at page 376, again about

point 3, or point 4, it said:

The determination of the Tribunal ..... the
making of its "findings'' does not bind in the
sense in which Palles C.B. used the

expression -

but, of course, the findings that are made do bind,

in this case. Could I refer Your Honours to

section 734(5) and sections 735(6),(7) and (8).

Your Honours, I have been to those provisions

before, but they are the provisions to which I

would refer. Your Honours, at page 376, about

point - - -

BRENNAN J:	Do they bind in any sense other than enlivening the power to make the orders?
MR JACKSON: No, Your Honour.	If Your Honour is talking

about section 733, the declaration, what

Your Honour says is right. If Your Honour is

talking about section 734, the orders bind.

BRENNAN J:  The orders bind?

MR JACKSON:  Yes. And the point I was seeking to make,

Your Honours, is that one might be able to say,

perhaps by putting together a number of features,

say, well the order, the declaration, does not have

a binding effect on rights. There is a slight

Precision 21 25/9/91

element of public interest involved in what is

being done and those things one might be able to

say, if section 733 stood in isolation, that

perhaps the true nature of it is administrative -

and Your Honour, I do not accept the proposition,

but I accept the possibility - but having said

that, Your Honour, when one puts together

section 733 with section 734 that possibility, in

our submission, does not exist.

Your Honours, I was about to go to the second-

last of two passages to which I wish to refer. At

page 376, about point 7 down towards the end of the
page, His Honour said, about six lines from the

bottom:

the question upon which it has to pronounce is

not as to whether the relevant restriction or

practice satisfied an ascertained standard but

as to whether it satisfied a description the

content of which has no fixity - a description

which refers the Tribunal ultimately to its

own idiosyncratic conceptions and modes of

thought.

Now, Your Honours, in the present case, what

the panel has to do cannot, with respect, be

described as idiosyncratic in the sense there used.

The Panel must first find facts and then apply

tests which are legal tests and, Your Honours, the

same observations might be made in respect of the

statement by His Honour at page 377, about point 3,

immediately after the quotation.

Your Honours, finally, in relation to the

reasons for judgment - and these are the principal
reasons - at page 378, about point 1, His Honour

said that:

The effect given by the Act to a

determination ..... is to render unenforceable

for the future an agreement under which the

proper for restraining future conduct.

restriction is accepted ..... and to enable the

Your Honours, the orders that might be made in the

present case include, as one species of order, an

order along those lines. But the Act clearly does

not just apply in futuro, it may operate

retrospectively, and I would refer Your Honours to,

for example, section 734(2)(vii) and (ix), without
seeking to suggest that they were exhaustive

indications of the respects in which the decision

of the panel may have an retrospective operation.

And I would refer also to the ancillary provisions

of sections 735(7) and (8).

Precision 22 25/9/91

Your Honours, in relation to that same case,

could I mention two things. If Your Honours look

at the copy of the then Trade Practices Act,

section 53, you will see by the type of order that

was contemplated that it had an effect which might

well lead it to be described as an effect for the future letting parties, in effect, organize their affairs before the order became operative.

The final thing I would like to say about that

case is this:	I submitted earlier that the issue
is sometimes one of some difficulty.	The other

side of the coin in relation to that case can be

seen in the judgment of Justice Menzies at

page 383, about point 4, in the passage commencing

"there is no doubt", that paragraph, and then,

Your Honours, page 387 point 1 to the end of his

judgment on page 388. A further feature is that it

is apparent in the present case that the Panel is

obliged to act in a judicial manner, which is a
relevant though, of course, not necessarily
decisive factor.

Could I go first, in that regard, to the provisions of the Corporations Law which are

germane, and they are to be found in

section 733(5):

an opportunity to appear at a hearing before

the Panel and to make submissions and give

evidence -

and then section 734(6) is to the same effect

dealing with the situation before the making of an

order. I would refer Your Honours also to the

Australian Securities Commission Act and in that regard to section 188(1), which provides:

The Panel may hold hearings for the purposes

of the performance or exercise of any of its

functions and powers.

In subsection (3) the hearing is to take place in public, subject to subsection (4). Section 192

provides for the ability to summons persons to

appear, in section 192(1). Section 192(2) empowers

the Panel to take evidence on oath, et cetera, and

to require answers. Your Honours, I would refer

also to subsections (3), (4) and (5), all of which

reflect a judicial manner of dealing with things.

Could I refer Your Honours also to section 193(1) and section 193(2) which, not surprisingly,

encourage an expeditious disposition of the matter,

but they have to be read, of course, with

section 193(3).

Precision 23 25/9/91

Your Honours, provisions of the kind in

section 193(1) and (2) are sometimes seen in

relation to courts and in the rules of courts,

although they tend to be more in the case of

magistrates' courts than in the case of superior

courts. I should also have referred to section 195

which requires the Panel to take into account the

matters put before it.

Your Honours, that is something which makes it

clear. Section 195 is a provision which makes it

clear that the Panel cannot just go on a frolic of its own. Quite apart from the limitations imposed

by sections 733 and 734 on the criteria which it

must take into account, section 195 specifically

requires to take into account the evidence there

referred to. And Your Honours, section 197 gives

members and people appearing before it and

witnesses the protection they would have here.

Your Honours, the fact that provisions of those kind are indications that the power is

judicial may be seen in Mikasa (NSW) Pty Ltd v

Festival Stores, (1972) 127 CLR 617, and could I

refer to a number of pages, page 631 at about point

3 to point 6, and page 638. At page 638, the new

paragraph on the page, the passage that goes from

there to the top of page 639, and could I refer

Your Honours particularly to about point 6 on the

page:

To fall within the conception of judicial power, it is not necessary that the jurisdiction conferred to grant an injunction

should be conditioned by what a court of

equity would, in ordinary cases, require

before granting an injunction.	A new
jurisdiction can be conferred -

et cetera, and I would refer Your Honours to the

remainder of that passage.	At page 649
Your Honours will see in the new paragraph	commencing on that page in the judgment of
Justice Walsh, he determined that the power was
judicial. He referred to the fact that an
application -

may be made ..... by the Attorney-General or the Commissioner of Trade Practices or by a person who has suffered loss or damage.

Then, if Your Honours look through it, Your Honours

will see that he referred to the fact that it was:

necessary for the Court to make findings of

fact -

Precision 24 25/9/91

and so on. That is about point 4 or point 5, and

refers to those processes. Then, towards the

bottom of the page at about point 8, says:

all those functions which the Court is called

upon to perform have the characteristics which

are commonly associated with the exercise of

judicial power.

And the passage goes over, Your Honours, to the end

of that paragraph on page 650. Your Honours, in

the judgment of Justice Gibbs at page 650 - it is
the second paragraph of His Honour's reasons, and

the whole of that paragraph.

Your Honours, could I refer also, without

going to the passage, to Reg v Davison, (1954)

90 CLR 353 at 370.

Your Honours, I wanted to make one further

reference back to Reg v Trade Practices Tribunal,

and that is to 123 CLR, to an observation of

Justice Windeyer at page 402. Your Honours will

see, commencing about half-way down the page,

His Honour refers to the manner in which the

proceedings were commenced:

not set in motion to adjudicate in a dispute

between parties.

And His Honour goes on to say, at about point 7:

It was said in answer to this that the

Commissioner ..... exercises a function akin to

that of a director of public prosecutions

seeking to have the penal law enforced.

His Honour said:

That seems to me far-fetched.

Your Honour, whatever be the correctness of the

observation there expressed by His Honour, the

position in the present case is really - I would

say two things about it. The first is that it is

clear from the responsibilities of the Commission

that it is its function to enforce the terms of the

Act. The second thing is, Your Honours, that the

present case, if one is looking to find an analogy
in an earlier case, is much closer to Mikasa, the
functions of the tribunal in Mikasa, than to the
functions of the Commissioner in the earlier case.

Your Honours, the last thing I want to say in

this regard, on the question whether the power

being exercised is one that is judicial in nature,

is that if one looks at the legislation which

Precision 25 25/9/91

immediately preceded it, namely the Companies

(Acquisition of Shares) Code of each of the

jurisdictions, section 60 of that dealt with the

position of the National Companies and Securities

Commission and it said, in subsection (1):

Where the Commission is satisfied that an

acquisition of shares occurred in

circumstances where -

and if Your Honours look then at subparagraphs (a),

(b), (c) and (d), they have their clear

similarities with the criteria listed in sec 732,

and then it enables the Commission to:

declare that acquisition of shares to have

been an unacceptable acquisition and ..... the

person who acquired those shares shall be

deemed ..... to have acquired those shares in

contravention of section 11.

Now, once that was done, the court - I am sorry.

If one goes then to subsection (3), the Commission

was empowered to declare conduct to have been

unacceptable conduct and then, Your Honours, under

subsection (4), where the Commission did that, the

court might make the various orders.

Your Honours, under section 60(2), the

position was that an application would have been made to the court under section 45 and the court

then had various powers in circumstances where

there had been a declaration by the Commission that

the shares had been acquired in unacceptable
circumstances. Section 45 was the provision which
allowed the court to make various orders, including
orders for divestiture and so on, and orders,
generally speaking, of the same nature as those
referred to in section 734 where shares had been

acquired in contravention of section 11 of the

Companies (Acquisition of Shares) Act, which was

the provision that limited the number of shares

that could be acquired in a company without making

a takeover offer. And the effect of section 60(1)

was to treat an unacceptable acquisition as if it

were one that had occurred in breach of section 11.

GAUDRON J:	The deeming, I take it, was simply to reverse the onus of proof, was it?
MR JACKSON:	Yes, Your Honour.

GAUDRON J: It did nothing more than that?

MR JACKSON:	What it did - perhaps if I can say these things. It really performed that function and
perhaps another one.  One could, under section 11,

Precision 26 25/9/91

have an acquisition of shares in a company which

contravened the general proposal that one should

not acquire shares in a company that took one

beyond, in effect, I think 20 per cent, unless one

made a takeover offer. That was subject to a

number of exceptions and one might or might not

fall within the exceptions. Now, it was possible,

I suppose, ·to fall within an exception but yet be

guilty of unacceptable conduct.	So that it did two
things, Your Honour.	Now, Your Honours, I suppose

not a great deal, in a sense, can be drawn from

that but it is clear that the function that is

performed, at least under section 734, is a

function which has been treated as judicial in

nature.

Now, Your Honours, could I move then from that to the next question and that is: Is the judicial

power which is being exercised the judicial power

of the Commonwealth and, Your Honours, I suppose

one should add, if not to whom does it belong or

adhere, or whatever might be the right expression. Your Honours, that issue involves a consideration

of a number of matters. One starts, of course,

from the proposition that the powers being
conferred relate to Victoria and find their wording

in the Victorian statute, and the question which

follows first from that is whether there is any

Commonwealth power being exercised.	Your Honours,
I shall return to that.

The second question is whether, if a

Commonwealth power is being exercised is it a power which is a power being exercised pursuant to

section 122 or pursuant to some other power. If it

is pursuant to section 122 the question which

arises is whether the requirements of section 72

apply; if it is exercised pursuant to some other

power the requirements of section 72, in our

submission, would apply.

May I deal with the first question and that

is: Is there any Commonwealth power being

exercised? Your Honours, there is no doubt of

course that the Panel has had jurisdiction

conferred on it by the State and the first stage,

in discussing the question, is this, we would

submit, that the State of course cannot do so

unilaterally. In that regard, Your Honours, may I

perhaps simply take Your Honours to re Cram; Ex parte NSW Colliery Proprietors' Association Ltd,

(1987) 163 CLR 117, and at the bottom of page 127

in the joint judgment of the Court, after there

being a discussion of the joint coal bodies, the

Court said:

Precision 27 25/9/91

The necessity for authorization under the

Commonwealth Act for the Tribunal's exercise of powers conferred by the State Act was

explained by Justice Brennan in -

Duncan's case, and the quotation from Your Honour

is then set out. And then, Your Honours, I perhaps

need do no more than refer Your Honours also to the

cases which are set out in our written submissions

in paragraph F.l. I do not propose to go to them

now but, we would submit, Your Honours, that it is

clear that the State could not, without more,

validly confer on Commonwealth authorities State

powers. Some acceptance by the Commonwealth is

necessary or some legislative provision empowering

acceptance is necessary.

Your Honours, the provision which enables the

Panel to accept the State conferral of powers is section 174, and may I take Your Honours back to

that. Your Honours, there is no doubt that

section 174 is a law of the Commonwealth - one

leaves aside the question of which power lies

behind it - and what it says is:

The Panel has the functions and powers conferred on it by or under a national scheme

law of this or any other jurisdiction.

Your Honours, the effect of a conferral of power in

and also to Your Honour Justice Brennan's decision

in Davis, (1988) 166 CLR 79 at page 107.

We would say that where the Commonwealth and

the States have created a national scheme involving

the co-operative conferral of power on a central

body, the power under section 51(xxxix) must extend

to the establishment of the body and the giving to

it of a capacity to receive powers conferred. That

quite apart from the Territories power or the
Corporations power.

However, consistently with the national scheme

as a whole, we submit Parliament here has obviously
enough chosen to base the establishment of the
Panel on section 122 of the Constitution, and that

which my learned friend took the Court.

intention is spelt out by section 11 of the

It is our submission that section 11 should be

regarded no more than as a statement of an objects

provision, a statement of policy. And, of course,

we would accept that the Commonwealth can neither

recite itself into or out of power, but it would

seem plain enough, both from the terms of the

legislation to which my learned friend took the

Precision 70 25/9/91

Court, and from the terms of the various Acts which

explanatory memoranda, which is more or less a proforma form adopted by all the States. Indeed, the Victorian memoranda is so proforma that is refers to the acquisitions of share code of New
he did not take the Court, and from the two
explanatory memoranda which I have handed to the

South Wales at one point when it means Victoria.

But it is quite apparent that the scheme is

structured around the Territories power, and our

submission is that there is ample power in

section 122 to support what Parliament has done.

In Teori Tau v The Commonwealth, (1969)

119 CLR 564 at page 570 this Court said:

The grant of legislative power by s.122 is

plenary in quality and unlimited and

unqualified in point of subject matter.

My learned friend referred to the judgment of

Your Honour the Chief Justice in Berwick Ltd v

Deputy Commissioner of Taxation, (1976)

133 CLR 603, and particularly we refer to page 607,

where Your Honour expressed a view as to the nature

of the power which had the concurrence of other

members of the Court.

We submit that all the Parliament has done in enacting sections 171 and 174, that it has

established the Panel and confirmed that the Panel

has capacity to exercise powers and functions under
the national scheme laws both inside and outside
the Territory. The Panel need not exercise any

coercive powers outside the Territory by virtue

only of Commonwealth law. In our submission it is

unnecessary to decide whether it may do so in the

context of the various laws making up the scheme.

It is our submission that there is no need to

determine whether sections 733 and 734 of the

Corporations Law of the Australian Capital

Territory apply of their own force in Victoria. It

is part of the seamless whole, in our submission.

We would also submit that a State can create

an unincorporated statutory body having the

capacity to be the subject of rights and
obligations both inside and outside the State. We

refer for example to The Chaff and Hay Acquisition

Committee and Others v J A Hemphill and Sons

Proprietary Limited, 74 CLR 375. In the same way

we submit State Parliament, in the exercise of its

legislative power for the government of a

territory, may form such a body. So that we submit

that this is not a case in which there is

extraterritorial operation of the law made under

Precision 71 25/9/91

section 122 as discussed in cases such as Lainshed v

Lake or the Attorney-General (Western Australia) v Australian National Airlines Commission. Whatever problems and whatever might be the extent of

operation outside the Territory, in our submission

that is an issue which does not arise here.

The extraterritorial operation required of a

law under section 122 is minimal. It goes no

further than to sustain the existence of the body

outside the Territory. There is no necessity to

sustain, in our submission, the exercise of any of

its powers.

BRENNAN J:  Does that mean that under the Terrritory power

the Commonwealth can create a body not being a

court and make it available for the reposing of

State judicial power so that the exercise by that

body of the power so reposed would be insulated

against all judicial appeals or judicial review?

MR GRIFFITH:  Your Honour, perhaps there are several issues

there. The first question is - perhaps I discussed

it partly with Justice Deane earlier - can the

States vest judicial power in a non-judicial body?

The answer is yes. Must they only act to vest

judicial power in a non-judicial body within the

State? We would answer that no. It could be, in

answer to Justice Dawson, vested in a body within

another State, in our submission, and for the same
reasons, we would submit that there is no

constitutional inhibition upon a State, if it chose to, to vest power in a body created under Territory

law. Now, we submit, Your Honour, there is no

relevant difference if the body is created under administration of the Australian Capital Territory

as a body politic created under a Commonwealth law,

from such a body being created directly by law

passed by the Commonwealth Parliament, but,

Your Honour, the issue then is not, we would

submit, one of undermining in any way the operation

of Chapter III of the Constitution. In our
submission, Chapter III of the Constitution does

not attach in any relevant way.

DAWSON J: Well, the question might arise under 73, what is

a supreme court? That is a question that has been

kept in the sidelines until now. If you have got a

body which was exercising what were the powers of

the supreme court, you could not then prohibit

appeals.

MR GRIFFITH: Yes, Your Honour, we would admit that.

DAWSON J: But otherwise the States have power to - - -

Precision 72 25/9/91

MR GRIFFITH: Yes, we would admit that that is the case.

McHUGH J:  Can the Commonwealth invest federal jurisdiction in a territorial court?

MR GRIFFITH: Well yes. We would submit that it could,

Your Honour, and indeed it is exercised, but it may

well be characterized as the law of a Territory

when it is in the Federal Court, but does it - - -

MASON CJ: But it may then be a Federal Court, to the extent

that it is exercising that jurisdiction.

MR GRIFFITH: Well, perhaps I should go back to the first

answer, Your Honour, and say that when it is vested

in a Territory court, it would be regarded as

exercise of the Territories power, but many decisions of this Court have recognized the

different characterization.

MASON CJ: But it may be impossible in the case of a

Territory court to say that its jurisdiction is

always territorial. It seems to me that in the
case of Territory courts, it may well be that they

are partly exercising territorial jurisdiction and

partly exercising federal jurisdiction.

MR GRIFFITH:  Your Honour might be right but for that issue

to be determined one would have to look closely on

the discussions of the Territories power,

Your Honour, and consider the extent to which some

passing references at least, if not decisions of

this Court, might have to be reinterpreted to adopt

that result. But we would submit, Your Honour,

that is an issue for another day. What Your Honour

says is a possibility but there are statements by

members of this Court in the past, Your Honour,

indicating that - - -

MASON CJ:  I am aware of those statements but I am

indicating that I can see some force in the

argument that -

MR GRIFFITH: Yes, well, Your Honour, our submission is that

we accept that but that argument does not have a

relevance to the issues of determining whether or

not, firstly, there is judicial power here and,

secondly, whether it is judicial power within

Chapter III.

I do not know whether that would be an

appropriate time, Your Honour.

Precision 73 25/9/91

MASON CJ: Yes, it is a convenient time to adjourn,

Mr Solicitor. We will resume at 10.15 tomorrow.

AT 4.25 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 26 SEPTEMBER 1991

Precision 74 25/9/91