GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
RE WAKIM SECOND RESPONDENT
Ex parte McNALLY & ANOR PROSECUTORS
Re Wakim; Ex parte McNally [1999] HCA 27 17 June 1999 S74/1998
ORDER
Application dismissed with costs.
Representation:
D F Jackson QC with N Perram for the prosecutors (instructed by Mallesons Stephen Jaques)
No appearance for the first respondent
G A Palmer QC with P J Cook and B Vukadinovic for the second respondent (instructed by Vaughan Barnes)
Interveners:
D M J Bennett QC, Solicitor-General for the Commonwealth with H C Burmester QC, S J Gageler and M A Perry intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
T I Pauling QC, Solicitor-General for the Northern Territory with R J Webb intervening on behalf of the Attorney-General of the Northern Territory (instructed by Solicitor-General for the Northern Territory)
2.
T I Pauling QC, Solicitor-General for the Northern Territory with D R Jarvis intervening on behalf of the Attorney-General of the Australian Capital Territory (instructed by ACT Government Solicitor)
P A Keane QC, Solicitor-General for the State of Queensland with R W Campbell and G R Cooper intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor for Queensland)
D Graham QC, Solicitor-General for the State of Victoria with C M Caleo intervening on behalf of the Attorney-General of the State of Victoria (instructed by Victorian Government Solicitor)
B M Selway QC, Solicitor-General for the State of South Australia with L K Byers intervening on behalf of the Attorneys-General of the States of South Australia and Tasmania (instructed by Crown Solicitor for South Australia and Crown Solicitor for Tasmania)
M G Sexton SC, Solicitor-General for the State of New South Wales intervening on behalf of the Attorney-General of the State of New South Wales (instructed by Crown Solicitor for New South Wales)
R E Cock QC with R M Mitchell intervening on behalf of the Attorney-General of the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
RE WAKIM SECOND RESPONDENT
Ex parte DARVALL PROSECUTOR
Re Wakim; Ex parte Darvall 17 June 1999 S107/1998
ORDER
Application dismissed.
Costs reserved for consideration by a single Justice on application made on not less than seven days' notice.
Representation:
D F Jackson QC with N Perram for the prosecutor (instructed by Moray & Agnew)
No appearance for the first respondent
G A Palmer QC with P J Cook and B Vukadinovic for the second respondent (instructed by Vaughan Barnes)
Interveners:
D M J Bennett QC, Solicitor-General for the Commonwealth with H C Burmester QC, S J Gageler and M A Perry intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
2.
T…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Re Wakim; Ex parte McNally [1999] HCA 27
Case
[1999] HCA 27
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered challenges to the constitutional validity of legislation that cross-vested jurisdiction between federal, State, and Territory courts. The proceedings involved parties such as Re Wakim and Ex parte McNally, who sought to argue that the cross-vesting legislation was invalid. The core of the dispute revolved around whether Chapter III of the Australian Constitution, which deals with the judicial power of the Commonwealth, permitted such a broad conferral of jurisdiction.
The legal issues before the Court included whether Chapter III of the Constitution exhaustively defined the original jurisdiction that could be conferred on federal courts, and whether State or Commonwealth legislative power extended to vesting State jurisdiction in federal courts. The Court was also required to consider whether Commonwealth laws applying in Territories could be considered "laws made by the Parliament" for the purposes of Chapter III, and whether the validity of such legislation depended on legislative purpose, intent, or consent, particularly in the context of "co-operative federalism." Furthermore, the Court had to determine the precedential weight of an equally divided previous decision and whether issues decided in earlier proceedings were subject to issue estoppel or res judicata.
The Court reasoned that the Australian Constitution does not contain an express prohibition against the cross-vesting of jurisdiction. It noted that Section 77(iii) of the Constitution explicitly allows for the federal Parliament to invest State courts with federal jurisdiction, indicating that a complete separation between the judicial powers of the Commonwealth and the States was not intended. The Court interpreted Chapter III and the Constitution as a whole, considering the envisaged structure of a federal nation with cooperating States and Territories. The majority found that the cross-vesting legislation, in both its general and specific manifestations, was constitutionally valid, rejecting the argument that Chapter III imposed rigid constraints that would render such legislation invalid.
This Court's decision in Gould v Brown[205] was published in February 1998. A challenge to the constitutional validity of cross-vesting legislation was thereby dismissed[206]. The unanimous decision of the judges of the Federal Court of Australia, upholding the validity of the legislation, was not disturbed[207]. Yet within a matter of months fresh challenges to the constitutionality of the legislation were commenced. Within less than a year this Court was hearing again arguments, most of which had been advanced unsuccessfully in Gould[208].[205](1998) 193 CLR 346.[206]The legislation concerned in Gould was the Corporations Act 1989 (Cth), s 56 and the Corporations (New South Wales) Act 1990, s 42 and its Victorian equivalent. The provisions of the general cross-vesting legislation are not relevantly different. The terms of the legislation are set out in the reasons of Gummow and Hayne JJ.[207]BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451 per Black CJ, Lockhart and Lindgren JJ.[208]Argument in these proceedings commenced on 1 December 1998.Speedy change of constitutional decisions What has changed? The Australian Constitution stands unaltered, resistant to formal change. No relevant change has been proposed to it. The State constitutions and the laws affording self-government to the mainland Territories[209] are unchanged. The cross-vesting legislation, both in its general manifestation[210] and in the special provisions to support the Corporations Law[211], remains the same. The principal arguments on each side are substantially unaltered. Few, if any, brilliant flashes of insight were offered to shine new light into dark corners of the Constitution previously overlooked. Indeed, one of the litigants in the present proceedings is Mr Gould himself. He seeks to have this Court revisit the disposition of the earlier proceedings affecting him. The world could see the order of this Court disposing of his previous challenge. But Mr Gould joined with other litigants to claim a second opportunity of persuasion. [209]Northern Territory (Self-Government) Act 1978 (Cth): See Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513; Northern Territory v GPAO (1999) 73 ALJR 470; 161 ALR 318. Australian Capital Territory (Self-Government) Act 1988 (Cth): See Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248.[210]Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 9; Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 4.[211]Corporations Act 1989 (Cth), s 56; Corporations (New South Wales) Act 1990, s 42. Only the membership of the Court has changed in the intervening year. Brennan CJ and Toohey J, who favoured rejection of the earlier challenge, retired and were replaced. A new Full Court has been assembled. It is an old and wise maxim of the law, which courts usually strive to observe, "to keep the scale of justice steady, and not liable to waver with every new judge's opinion"[212]. On the face of things there could hardly be a plainer violation of that maxim. Yet each Justice is obliged to express his or her opinion on the meaning of the Constitution, guided by the past authority of the Court. Each Justice reads the unchanging text with the eyes of his or her generation and experience, sometimes perceiving new requirements or opportunities which predecessors did not see[213]. [212]Craies on Statute Law, 7th ed (1971), cited in Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 29.[213]Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 267-268; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 199; McGinty v Western Australia (1996) 186 CLR 140 at 230.
Ratio Decidendi
Legal Principle Established
Established by:
GAUDRON J,
The Constitution, and in particular Ch III, does not impose Laocoönian constraints on this Court. The proper approach to Ch III, applicable to these proceedings, is that recently stated by Gleeson CJ and McHugh J in Abebe v The Commonwealth[226]. Rigid and impractical outcomes are justified only by "the clearest constitutional language" which "compel them". As their Honours concluded in that case, so do I here. "Nothing in the language of Ch III forces such limited and rigid choices on the parliament."[227] The cross-vesting legislation, in both of its manifestations, is constitutionally valid.[226](1999) 73 ALJR 584 at 595, par [44]; 162 ALR 1 at 15.[227](1999) 73 ALJR 584 at 595, par [44]; 162 ALR 1 at 15.The issues, approach and constitutional cooperation The facts, the issues and the legislation relevant to the proceedings before the Court are set out in the reasons of Gummow and Hayne JJ. I do not repeat them. In disposing of the substance of the three challenges, it would be possible, I suppose, to content myself with a reference to my reasoning in Gould[228]; for my opinion has not changed. However, in deference to the submissions of the parties, the importance of the matters and the desirability of ensuring that a contrary opinion is recorded in the report of these cases, when Gould is consigned to the annals of legal history, I will repeat some of the main considerations which explain my dissent. [228](1998) 193 CLR 346 at 465-501. There is no express prohibition of cross-vesting of federal, State and Territory jurisdiction in the Australian Constitution. On the contrary, in so far as the Constitution makes any reference to the subject it does so indirectly and only partially. It provides, in terms, for the making of laws by the federal Parliament "investing any court of a State with federal jurisdiction."[229] The Constitution thereby rejects a notion of a total divorce between the exercise of the judicial power respectively of the Commonwealth and of the States in separate courts having no connection whatever with the judicial power of the other. [229]Constitution, s 77(iii). The task of this Court is therefore that of drawing inferences from, and discerning negative implications[230] in, the general language of the Constitution. In particular, the Court must address the provisions in Ch III, read within the document taken as a whole[231]. Also relevant are the purposes which may be attributed to the provisions for the federal Judicature in a Commonwealth in which it is envisaged that there will be States having their own courts[232] and particularly Supreme Courts[233] as well as Territories, the government of which will necessarily involve the existence of courts and the exercise of judicial power[234]. All such courts are to operate within a nation of continental size, with a relatively small and scattered population which is to be governed, so far as the Constitution permits, with its component parts cooperating in a rational, harmonious and generally efficient way. [230]The words "negative implication" with respect to Ch III appear in this Court's decision in R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 292 approved by the Privy Council in Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 at 545. [231]Drawing conclusions of a "negative or exclusive sense" where such a sense must be given to the words "or they have no operation at all": See Marbury v Madison 5 US 87 at 109 (1803) per Marshall CJ.[232]s 77(iii).[233]s 73(ii).[234]s 122.