West Australian Psychiatric Nurses Association (Union of Workers) v Australian Nursing Federation

Re: WEST AUSTRALIAN PSYCHIATRIC NURSES' ASSOCIATION (UNION OF WORKERS)
And: THE AUSTRALIAN NURSING FEDERATION
No. WA G117 of 1990
FED No. 372
Jurisdiction - Constitutional Law
30 FCR 120/102 ALR 265
(1991) 40 IR 183

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J.(1)

CATCHWORDS

Jurisdiction - Federal and State Courts - proceeding in respect of rules of organisation registered under Industrial Relations Act 1988 - whether involving matter arising under law of Commonwealth Parliament.

Constitutional Law - Cross-vesting legislation - conferral of State judicial power upon a federal court - limits of State legislative powers.

Australia Act 1986 s.11

Commonwealth of Australia Constitution Act 1900 (U.K.) cll.4, 5

Conciliation and Arbitration Act 1904 (Cth) s.141; sub-s.147(1)

Federal Court of Australia Act 1976 s.32

Industrial Relations Act 1979 (W.A.)

Industrial Relations Act 1988 ss.50, 52, 209, 261; sub-ss.4(1), 50(2), 52(1), 52(2), 52(3), 209(1), 209(9), 261(7); paras.4(1)(a), 50(1)(a), (b), (c), (d), (e)

The Judicial Committee Act 1833

The Judicial Committee Act 1844

Judiciary Act 1903 ss.64, 78B; sub-s.39(2)

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss.9, 15; sub-s.9(2); paras.9(2)(a), (b)

Jurisdiction of Courts (Cross-vesting) Act 1987 (each State) sub-s.4(1)

Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld.) sub-s.4(2)

Jurisdiction of Courts (Cross-vesting) Act 1987 (W.A.) s.4; sub-s.3(1), 4(1)

Nauru Act 1965

Nauru (High Court Appeals) Act 1976

Federal Court Rules O.10A, 29 sub-r.5(1)(a)

The Australian Constitution Chapters I, II, III (s.71), ss.1, 51(xxix), 51(xxxix), 51(xxxviii), 61, 73, 75, 76, 76(ii), 77(i), 77(ii), 78, 114, 122

Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129

Attorney-General of the Commonwealth of Australia v. Reg. (1957) 95 CLR 529 (PC)

Bond v. Sulan (1990) 26 FCR 580

Capital T.V. and Appliances Pty. Ltd. v. Falconer (1971) 125 CLR 591

Chaplin v. Commissioner of Taxes for South Australia (1911) 12 CLR 375

Collins v. Charles Marshall Pty. Ltd. (1955) 92 CLR 529

Commonwealth of Australia v. Cigamatic Pty. Ltd. (in liquidation) (1962) 108 CLR 372

Commonwealth of Australia v. State of Queensland (1975) 134 CLR 298

Commonwealth of Australia v. State of Tasmania (1983) 158 CLR 1

Commonwealth v. Limerick Steamship Co. Ltd. (1924) 35 CLR 69

Commonwealth v. State of Queensland (1920) 29 CLR 1

Courtice v. Australian Electoral Commission (1990) 95 ALR 297

Federated Clerks Union of Australia v. Hills (1981) 1 NSWLR 631

Fencott v. Muller (1983) 152 CLR 570

In re The Judiciary Act 1903 and In re The Navigation Act 1912 (1921) 29 CLR 257

Kodak (Australasia) Pty. Ltd. v. Commonwealth of Australia (1988) 22 FCR 197

Koowarta v. Bjelke-Petersen (1982) 153 CLR 168

Le Mesurier v. Connor (1929) 42 CLR 481

L.N.C. Industries Limited v. B.M.W. (Australia) Ltd. (1983) 151 CLR 575

Moorgate Tobacco Company Limited v. Philip Morris Limited (1980) 145 CLR 457

O'Toole v. Charles David Pty. Ltd. (1989) 90 ALR 112

Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457

Porter v. The King (1926) 37 CLR 432

Port MacDonnell Professional Fishermen's Association Inc. v. State of South Australia (1989) 168 CLR 340

R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141

Spratt v. Hermes (1965) 114 CLR 226

Stack v. Coast Securities (No. 9) Pty. Ltd. (1983) 154 CLR 261

Superannuation Fund Investment Trust v. Commissioner of Stamps for the State of South Australia (1979) 145 CLR 330

Re T. (an infant) (1991) 1 Qd R 196

Re Tracey; Ex parte Ryan (1989) 166 CLR 518

West v. Commissioner of Taxation (New South Wales) (1937) 56 CLR 657

Williams v. Hursey (1959) 103 CLR 30

Willocks v. Anderson (1971) 124 CLR 293

HEARING

PERTH

#DATE 28:6:1991

Counsel for the Applicant: L.A. Jackson QC with S.A. Hugi,

A.L. Drake-Brockman

Solicitors for the Applicant: Harman Drake-Brockman

Counsel for the Respondent: R.W. Hinkley

Solicitors for the Ryan Carlisle Thomas
Respondent:

Counsel for the Commonwealth G. Griffith QC, Solicitor-General,
of Australia: with P.R. Macliver

Solicitor for the Commonwealth Australian Government Solicitor
of Australia:

Counsel for the State C. Wheeler
of Western Australia:

Solicitor for the State The Crown Solicitor
of Western Australia:

ORDER

The Court does not have jurisdiction to hear the application.

The application be dismissed.

The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The West Australian Psychiatric Nurses' Association (Union of Workers) ("the W.A. Psychiatric Nurses") is an organisation registered under the Industrial Relations Act 1979 (W.A.). The Australian Nursing Federation ("the A.N.F.") is an organisation registered under the Industrial Relations Act 1988 ("the Act"). In recent times officers of the two organisations have discussed the merits of amalgamation but at this point no accord has been reached.

The W.A. Psychiatric Nurses has commenced an application in this Court seeking a declaration as to the entitlement of the A.N.F. to enrol members and injunctions restraining the A.N.F. from enrolling as members persons employed as psychiatric nurses in any hospital in the State of Western Australia. The application also seeks an injunction restraining the A.N.F. from interfering with contracts of membership made between the W.A. Psychiatric Nurses and persons employed as psychiatric nurses in such hospitals and claims damages.
The application reads as follows:

"...the Applicant claims -

(a) A declaration that the Respondent is not, pursuant to its registered rules, entitled to enrol as members persons employed as qualified psychiatric nurses in any hospital, institution or other service referred to in Section 19 of the Mental Health Act 1962-68 (Western Australia), or in any private psychiatric hospital in the State of Western Australia.

(b) An injunction restraining the Respondent from enrolling as members persons employed as qualified psychiatric nurses in any hospital, institution or other service referred to in Section 19 of the Mental Health Act 1962-68 (Western Australia), or in any public hospital or clinic or in any private psychiatric hospital in the said State.

(c) An injunction restraining the Respondent by its officers, members, servants or agents from doing any acts which cause or procure interference with contracts of membership between the Applicant and persons employed as qualified psychiatric nurses in any hospital, institution or other service referred to in Section 19 of the Mental Health Act 1962-68 (Western Australia), or in any public hospital or clinic or in any private psychiatric hospital whether such contracts are now in existence or are hereinafter made in the said State.

(d) An injunction restraining the Respondent by its officers, members, servants or agents from doing any acts which have the effect or are likely to have the effect of discouraging persons employed as qualified psychiatric nurses in any hospital, institution or other service referred to in Section 19 of the Mental Health Act 1962-68 (Western Australia), or in any public hospital or clinic or in any private psychiatric hospital in the said State entering into contracts of membership with the applicant.

(e) Damages.

(f) Costs.

..."

The application was filed with an affidavit in lieu of a statement of claim. The nature of the claim described in the affidavit and the material facts set out therein show that the substance of the issue between the parties is a claim by the W.A. Psychiatric Nurses that members of that organisation have been enrolled as members of the A.N.F. contrary to the entitlement of the A.N.F. to enrol members pursuant to its rules. The affidavit contends that the application is brought pursuant to sub-s.9(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and sub-s.4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (W.A.).
At the first directions hearing the applicant was directed to file an affidavit setting out the grounds on which the applicant relied upon the provisions of the cross-vesting laws. (See Federal Court Rules O.10A sub-r.5(1)(a).) The affidavit filed pursuant to that direction stated that the Supreme Court of Western Australia had jurisdiction to grant the relief sought in the application and further, that as the Federal Court exercised jurisdiction of the type referred to in s.209 of the Act, it was appropriate for the application for relief to be heard in this Court. The affidavit also stated that the principal office of the A.N.F. was situated in the State of Victoria and enforcement of any orders obtained by the applicant could be effected more conveniently if the orders were made by this Court.
At a subsequent directions hearing it was ordered that, pursuant to O.29 of the Federal Court Rules there be a determination of the preliminary question of the Court's jurisdiction to hear the application. To provide the appropriate pleading of that issue the W.A. Psychiatric Nurses was directed to file a statement of contentions and the A.N.F. to file a statement of response. Each party was also directed to file an outline of submissions.
After the necessary pleadings and submissions had been filed the A.N.F. was directed to give notice to the Attorneys-General pursuant to s.78B of the Judiciary Act 1903 that the question of the validity of sub-s.4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (W.A.) would arise for determination in the hearing of the preliminary issue. In response to those notices, the Attorneys for the Commonwealth and the State of Western Australia gave notice of their intention to intervene in the proceeding and in due course submissions were presented by the Solicitor-General for the Commonwealth and by counsel for the Attorney-General for the State of Western Australia.
Subsequent to those submissions it became apparent that the preliminary issue of jurisdiction also involved another matter arising under the Constitution, namely whether the matter the W.A. Psychiatric Nurses seeks to have litigated in this Court would require a State court to exercise federal jurisdiction if litigated in that court. Accordingly, pursuant to s.78B of the Judiciary Act 1903 it was ordered that the W.A. Psychiatric Nurses give notice to the Attorneys-General of that constitutional question. In due course the W.A. Psychiatric Nurses was informed by each Attorney-General of no intention to intervene.
Pursuant to Chapter III (s.71) of the Constitution, the judicial power of the Commonwealth is vested in the High Court and in such other federal courts as the Parliament creates and in such other courts as are invested with federal jurisdiction.
Under s.77(i) of the Constitution, the Parliament may make laws defining the jurisdiction of any federal court with respect to any of the matters mentioned in ss.75 and 76 of the Constitution. Pursuant to s.77(ii) of the Constitution the Parliament may define the extent to which the jurisdiction of a federal court shall be exclusive of that which belongs to, or is invested in, the courts of the States.
The word "matter" as used in Chapter III refers to the whole of a controversy and the function of the judicial power exercisable pursuant to s.71 is to quell such a controversy. (See Fencott v. Muller (1983) 152 CLR 570 per Mason, Murphy, Brennan and Deane JJ. at p 608.)
A matter arising under a law made by the Parliament referred to in s.76(ii) of the Constitution is that which is specified, or indicated, as a justiciable subject matter by the law defining the jurisdiction of the Court. (See R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 per Dixon J. at p 168.)
As stated in O'Toole v. Charles David Pty. Ltd. (1989) 90 ALR 112 at p 158:

"...with respect to matters which 'arise under a law made by the Parliament', it is for the Parliament to determine, by formulating the 'law' in question, what are the rights and obligations which supply the foundation for the controversy which is the 'matter' for the purposes of s.76(ii) of the Constitution: TNT Skypak International (Aust) Pty. Ltd. v. F.C.T. (1988) 82 ALR 175 at 181."

Section 50 of the Act confers jurisdiction upon this Court in the following terms:

"50(1) The Court has jurisdiction with respect to matters arising under this Act in relation to which:

(a) applications may be made to it under this Act;

(b) questions may be referred to it under this Act;

(c) appeals lie to it under section 56;

(d) penalties may be sued for and recovered under section 178; or

(e) prosecutions may be instituted for offences against this Act.

(2) The jurisdiction conferred on the Court by this Act and the jurisdiction of the Court under section 24 of the Federal Court of Australia Act 1976 in relation to judgments in matters arising under this Act shall be exercised in the Industrial Division of the Court."

Sub-section 4(1) of the Act defines the "Court" as "the Federal Court of Australia".

Section 52 of the Act defines the jurisdiction of this Court as exclusive jurisdiction in a limited respect. Section 52 reads as follows:

"52(1) Subject to this Act, the jurisdiction of the Court in relation to an act or omission for which an organisation or member of an organisation is liable to be sued, or to be proceeded against for a pecuniary penalty, is exclusive of the jurisdiction of any other court created by the Parliament or any court of a State or Territory.

(2) The jurisdiction of the Court in relation to matters arising under section 208, 209 or 261 or Division 5 of Part IX is exclusive of the jurisdiction, or any similar jurisdiction, of a State industrial authority.

(3) The jurisdiction of the Court under section 56 is exclusive of the jurisdiction of any court of a State or Territory to hear and determine an appeal from a judgment from which an appeal may be brought to the Court under that section."

Sub-section 4(1) of the Act defines a "State industrial authority" as:

"(a) a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a State Act to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State;

(b) a special board constituted under a State Act relating to factories; or

(c) any other State board, court, tribunal, body or official prescribed for the purposes of this definition".

It appears that the Supreme Court of a State is not included in the definition of a "State industrial authority" and is not prescribed for the purposes of the definition.

The relevant parts of s.209 of the Act are as follows:

"209(1) A member of an organisation may apply to the Court for an order under this section in relation to the organisation.

...

(9) ...

'order under this section' means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules."

Sub-section 261(7) of the Act provides that an employee, employer, or an organisation may apply to the Court for a declaration as to the entitlement of a person to become a member of an organisation pursuant to the rules of that organisation where a question has arisen as to the entitlement of a person to be admitted to membership.
The Parliament could have conferred jurisdiction on the Court in all matters arising under the Act but has not done so. Such jurisdiction has been invested in State courts by the operation of subs.39(2) of the Judiciary Act 1903 subject to the extent to which the jurisdiction conferred on this Court has been defined as exclusive by s.52 of the Act.
Of course, s.52 does not and cannot operate to exclude State courts from exercising federal jurisdiction not conferred on this Court by section 50 of the Act. (See Williams v. Hursey (1959) 103 CLR 30 per Fullagar J. at p 51, per Taylor J. at pp 88-89, per Menzies J. at p 113.) And s.52 of the Act cannot operate to oust the non-federal jurisdiction of a State court unless the exercise of such jurisdiction would be part of the exercise of federal jurisdiction in a matter in respect of which jurisdiction has been conferred on this Court and made exclusive jurisdiction by s.52. (See O'Toole at p 158; Stack v. Coast Securities (No. 9) Pty. Ltd. (1983) 154 CLR 261.)
In Federated Clerks Union of Australia v. Hills (1981) 1 NSWLR 631 it was held that the relief sought by an organisation registered under the Conciliation and Arbitration Act 1904 (Cth) was for acts or omissions in respect of which jurisdiction had been conferred on the Federal Court by s.141 of that Act (the precursor to s.209 of the Act) and that such jurisdiction had been made the exclusive jurisdiction of this Court by sub-s.147(1) (now sub-s.52(1) of the Act albeit differently expressed). Needham J. noted that whilst it was true that the plaintiff organisation in the proceeding before him could not be a party on the record in proceedings under s.141, such proceedings could be taken on its behalf by its secretary as a member of the organisation and, therefore, his Honour considered that the proceedings commenced in the Supreme Court of New South Wales in the name of the organisation were part of a matter in respect of which this Court had exclusive jurisdiction.
The jurisdiction conferred on the Court by para.50(1)(a) of the Act becomes available once a matter arises in respect of which a right, duty or liability may be declared or determined under the Act. (See In re The Judiciary Act 1903 and In re The Navigation Act 1912 (1921) 29 CLR 257 at p 265.)
The right of litigation given by the Act in respect of a matter arising under the Act would allow the Court to deal with the entire controversy raised by that matter. The right of litigation confers a jurisdiction to determine all questions which form part of that matter including questions which, standing by themselves, could not activate the Court's jurisdiction. (See Fencott at p 606.)
The matters in respect of which jurisdiction is conferred on this Court by the Act may include claims which are non-federal in character being accrued jurisdiction attached to, and part of, the jurisdiction conferred in respect of the controversy or matter. Federal jurisdiction in respect of the other controversies in relation to which the courts of the States have been invested with jurisdiction may also become part of the conferred jurisdiction by the operation of s.32 of the Federal Court of Australia Act 1976 which confers jurisdiction in matters associated with matters in respect of which the jurisdiction of the Court has been invoked.

The jurisdiction conferred on the Court by para.50(1)(a) and s.209 of the Act is to hear and determine matters which answer the description of applications for orders directing the performance or observance of the rules of an organisation. Such orders would be concerned with the interpretation and operation of the rules of an organisation. (See Stack per Gibbs C.J. at pp 275-276.)
The justiciable subject matters within the jurisdiction of this Court as defined by s.50 of the Act do not extend to a proceeding initiated by a party to a controversy who has not been empowered by the Act to commence such a proceeding in the Court.
The W.A. Psychiatric Nurses is unable to bring an application under the Act to seek the form of relief it now seeks in this Court under paras.(a) and (b) of its application, namely, a declaration in respect of the meaning of the rules of the A.N.F. and an injunction to prevent continued breach of those rules. Relief in that form could be granted by the Court to a person or organisation entitled to bring an application for such relief under ss.209 or 261 of the Act.
At this point the jurisdiction of the Court as conferred by the Act has not been attracted. Of course, if the jurisdiction were activated by an application by a member of the A.N.F. it would extend to all questions requiring resolution in the matter in respect of which jurisdiction has been conferred which may include the issues raised in the application of the W.A. Psychiatric Nurses.
If the controversy involving the W.A. Psychiatric Nurses answers the description of a matter arising under the Act, it would be a justiciable subject matter in respect of which jurisdiction is invested in a State court by sub-s.39(2) of the Judiciary Act 1903.
The W.A. Psychiatric Nurses has contended that the jurisdiction it seeks the Court to exercise is jurisdiction in a State matter which this Court is permitted to exercise by the conjoint operation of sub-s.4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (W.A.) and sub-s.9(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). A State matter is defined in sub-s.3(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (W.A.) and, in so far as material, is a matter in which the Supreme Court has jurisdiction otherwise by reason of a law of the Commonwealth.
Sub-section 9(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) states that this Court may exercise jurisdiction "conferred" on the Court by a provision of a law of a State relating to cross-vesting of jurisdiction. Pursuant to s.15 of that Act, the Act is to be read and construed subject to the Constitution so as not to exceed the legislative power of the Commonwealth.
However, the controversy in respect of which the W.A. Psychiatric Nurses says that the Supreme Court has jurisdiction and in respect of which it is said that this Court has cross-vested jurisdiction, is not limited to a claim in tort for interference with contractual relations. Indeed, the nub of the application is what is the extent of the A.N.F.'s entitlement to enrol members pursuant to its rules as registered under the Act.
That is to say the principal question for judicial determination in the application of the W.A. Psychiatric Nurses is a declaration as to the extent or limits of the right of the A.N.F. to enrol members under the rules of that organisation.
The rules of the A.N.F. are made under and for the purposes of the Act and, therefore, the powers and rights created pursuant to those rules are derived from the Act. (See Williams v. Hursey per Fullagar J. at pp 67-69.)
It is a requirement of the Act that the rules of an organisation be registered under the Act thereby obtaining the force of the Act. It follows that any controversies as to the observance or the performance of the rules of the A.N.F. or as to the interpretation of those rules involving justiciable issues will be matters arising under the Act. (See Ex parte Barrett per Latham C.J. at p 151.)
In an oft quoted passage on this question, Latham C.J. said in Ex parte Barrett at p 154:

"...in order to bring a matter within s.76(ii) (of the Constitution)...the inquiry to be made is not whether the determination of the matter involves the interpretation of a Federal law. The relevant inquiry is whether the matter arises under the law. Thus one is compelled to the conclusion that a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law. In either of these cases, the matter arises under the Federal law. If a right claimed is conferred by or under a Federal statute, the claim arises under the statute. This view is in accordance with Federal Capital Commission v. Laristan Building and Investment Co. Pty. Ltd. (1929) 42 CLR 582: See pp 585-586. The construction of a Federal law, and perhaps a question of the validity of such a law, may be involved in such a matter. But it is not necessary that this should be the case in order that the matter may arise under the law. It is not necessary or desirable to attempt to frame an exhaustive definition of 'matters arising under a law.' In my opinion, 'matters arising' include matters of the character mentioned."

That view of the operation of s.76(ii) of the Constitution has been endorsed by the joint judgment of Gibbs C.J., Mason, Wilson, Brennan, Deane and Dawson JJ. in L.N.C. Industries Limited v. B.M.W. (Australia) Ltd. (1983) 151 CLR 575 at pp 581-582:

"It is true to say that a matter does not arise under a law made by the Parliament merely because the interpretation of the law is involved: Felton v. Mulligan (1971) 124 CLR 367, at pp 374, 382, 396, 408, 416. On the other hand, a matter may arise under a law of the Parliament although the interpretation or validity of the law is not involved: R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, at p 154. The conclusion reached by Latham C.J. in that case (R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett), and stated in a passage that has often been cited with approval, is 'that a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law'. Equally, there is a matter arising under a federal law if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth: Felton V. Mulligan (1971) 124 CLR at p 408. When it is said that a matter will arise under a law of the Parliament only if the right or duty in question in the matter owes its existence to a law of the Parliament that does not mean that the question depends on the form of the relief sought and on whether that relief depends on federal law. A claim for damages for breach or for specific performance of a contract, or a claim for relief for breach of trust, is a claim for relief of a kind which is available under State law, but if the contract or trust is in respect of a right or property which is the creation of federal law, the claim arises under federal law. The subject matter of the contract or trust in such a case exists as a result of the federal law. In R. v. Commonwealth Court of Conciliation and Arbitration; Ex Parte Barrett (1945) 70 CLR 141 at p 154, Latham C.J. said that the view which he expressed was in accordance with Federal Capital Commission v. Laristan Building and Investment Co. Pty. Ltd.

(1929) 42 CLR 582, at pp 585-586 where Dixon J. said: "The Seat of Government is an integral part of the Federal System, and I see no reason for denying the application of sec.76 to laws made pursuant to sec.52(I). It would follow that a law of the Parliament conferring jurisdiction on the High Court is warranted by sec.76(II), at least in relation to matters which arise as the result of enactments of the Parliament. It may well be that all claims of right arising under the law in force in the Territory come within this description, because they arise indirectly as the result of the Seat of Government Acceptance Act 1909 (see sec.6), and the Seat of Government (Administration) Act 1910 (see secs.4 to 7 and 12). But it is at least clear that a claim to a right conferred by or under ordinances made by the Governor-General in Council under sec.12 of the Seat of Government

(Administration) Act is a matter arising under an enactment of the Parliament.' This view conforms with what was said by Walsh J. in Felton v. Mulligan (1971) 124 CLR, at pp 402-403 and with the judgments of members of this Court in Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd.

(1980) 145 CLR 457, at pp 468-469, 480."

It is of no importance that the question to be determined arises from a controversy involving a person to whom the Act is not directed. If the question involves the interpretation of the rules to ground a declaration of the extent or limitation of the rights provided thereunder, a matter will have arisen under the Act.
The fact that the relief sought is declaratory will not mean that the jurisdiction to be exercised is non-federal in character. (See Moorgate Tobacco Company Limited v. Philip Morris Limited (1980) 145 CLR 457 per Stephen, Mason, Aickin and Wilson JJ. at p 479.)
If declaratory powers are to be exercised with regard to a matter arising under a Commonwealth Act, the jurisdiction exercised will be federal jurisdiction invested in a State court by sub-s.39(2) of the Judiciary Act 1903. It will retain that character throughout whilst the Court deals with all questions necessary to enable the case to be finally disposed of. Subject to such matters which are severable and distinct from the attracted federal jurisdiction, the State court will be exercising federal jurisdiction in the whole case. (See Moorgate per Gibbs J. at p 472; Felton per Barwick C.J. at p 373, Walsh J. at pp 410.)
It was submitted by counsel for the W.A. Psychiatric Nurses that the cause of action relating to alleged interference by the A.N.F. with the contractual relations made between the W.A. Psychiatric Nurses and its members, to which para.(c) of the application refers, was such a severable matter. Although determination of that cause may not be dependent upon any finding of the right of the A.N.F. to enrol members and would not involve the exercise of federal jurisdiction if it were prosecuted separately in another proceeding, it is nonetheless the fact that it is part of the controversy between the parties identified in the application. It is part of the one matter and is not, in the words of Barwick C.J. in Felton at p 373:

"Some completely disparate claim constituting in substance a separate proceeding."

Applying the words of Gibbs C.J., Mason, Wilson, Brennan, Deane and Dawson JJ. in L.N.C. Industries at p 582 the very subject of the issue between the parties is the entitlement of the A.N.F. to enrol persons as members under the rules of that organisation as registered under, and given force by, the Act. In substance, the applicant's claim is for a determination of the rights of the A.N.F. under those rules. Therefore, the application involves a matter arising under laws made by the Parliament of the Commonwealth. If the Supreme Court were to make orders to provide the relief claimed, it would be exercising federal jurisdiction.
It follows that if a State court is asked to define or declare the rights of the A.N.F. or to restrain it from exercising rights it purports to exercise pursuant to the Act, the State court will be exercising federal jurisdiction in that respect and in respect of any other claims including claims non-federal in nature that must be determined to quell the whole of the controversy.
The matter defined by the application and supporting facts is not a "State matter" and there is no separate State jurisdiction in such a matter which a State may confer under s.4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (W.A.). (See Moorgate per Gibbs J. at pp 470-471; Felton per Walsh J. at pp 411-413.)
The end result is a gap in the mutual jurisdiction of the Federal Court and Supreme Courts of the States sought to be established by the cross-vesting scheme. Attention has been directed to this deficiency on previous occasions. (See Kodak (Australasia) Pty. Ltd. v. Commonwealth of Australia (1988) 22 FCR 197; Courtice v. Australian Electoral Commission (1990) 95 ALR 297 at p 301.) This Court has not been given jurisdiction equivalent to that invested in the State courts under sub-s.39(2) of the Judiciary Act 1903 and the States have no legislative power to confer such jurisdiction upon the Court.
In consequence of the foregoing it is unnecessary to decide the constitutional validity of the cross-vesting laws which purport to "confer" State jurisdiction on this Court but in view of the submissions made on the issue some comments should be offered.
The challenge to the constitutional validity of the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) involves a study of the legislative powers of the States and the Commonwealth.
To assess the limits of those powers it is necessary to keep in mind the circumstances of the formation of the Constitution. The Constitution was a compact between self-governing colonies pursuant to which, and subject to the approval of the Imperial government, the colonies ceased to be colonies and became States in a federation known as the Commonwealth of Australia. The Commonwealth became a nation in the community of nations and the benefits of nationhood which may have been enjoyed by any one colony had it become a nation state were vested in the Commonwealth. To create the Commonwealth and to move from the status of colonies to States the colonies ceded various powers to the new national entity. The Commonwealth also received grants of executive and legislative powers from the Sovereign and the Imperial Parliament upon the passage of the Commonwealth of Australia Constitution Act 1900 (U.K.).
The Constitution approved by that Act provides for the exercise by the Commonwealth of legislative, executive and judicial powers in Chapters I, II and III respectively. (See Attorney-General of the Commonwealth of Australia v. Reg. (1957) 95 CLR 529 (PC) ("Boilermakers' Case") at pp 537, 539, 540 and 543.)
The legislative and executive powers may be intermingled or overlap from time to time but the Constitution clearly intends that the judicial power is to have a separate and distinct existence to safeguard the independence of the judicature and through it the public good. (Re Tracey; Ex parte Ryan (1989) 166 CLR 518 per Deane J. at pp 579-580.) The demarcation of the judicial power under the Constitution therefore, is a matter of considerable importance.
The legislative power is vested in the federal Parliament (s.1). The executive power is vested in the Queen exercisable by the Governor-General (s.61). The judicial power is a distributed power. It is vested by the Constitution in "a Federal Supreme Court" (the High Court of Australia) and in such other federal courts as the Parliament creates and in such other courts as the Parliament invests with federal jurisdiction (s.71).
The judicial power of the Commonwealth to which s.71 refers is that which relates to the appellate and original federal jurisdiction defined in ss.73, 75 and 76 of the Constitution. As far as the High Court is concerned the appellate jurisdiction of that Court is set out in s.73. Section 75 confers specific original jurisdiction directly upon the High Court and in s.76 the Parliament is empowered to confer further original jurisdiction in respect of nominated matters. The jurisdiction able to be conferred on other federal courts or invested in courts of the States pursuant to s.77 is that which relates to any of the matters mentioned in ss.75 and 76. It may be appellate or original in nature.
However, the Commonwealth Parliament may legislate to repose in the High Court an appellate jurisdiction not provided under Ch.III of the Constitution.
It has been held that s.122 of the Constitution containing the Commonwealth Parliament's plenary legislative power in respect of territories enables the Parliament to create courts other than those to which Ch.III refers and to confer upon the High Court jurisdiction to hear appeals from those courts, a jurisdiction additional to the federal appellate jurisdiction conferred by s.73 of the Constitution. (See Boilermakers' Case at p 545; Porter v. The King (1926) 37 CLR 432.)
In the Nauru (High Court Appeals) Act 1976 the Commonwealth Parliament has given effect to an agreement between itself and the Republic of Nauru to confer additional appellate jurisdiction on the High Court to hear appeals from the Supreme Court of Nauru. The legislative power relied upon to confer the additional jurisdiction must be the external affairs power in s.51(xxix) of the Constitution. The external affairs power is a plenary power able to be exercised subject to such express and implied prohibitions as are found in the Constitution. (See Koowarta v. Bjelke-Petersen (1982) 153 CLR 168 per Mason J. at p 225; Commonwealth of Australia v. State of Tasmania (1983) 158 CLR 1 per Deane J. at p 254.)
Prior to the achievement of independence by the Republic of Nauru the Commonwealth Parliament in the Nauru Act 1965 exercised a legislative power in s.122 of the Constitution to provide for appeals from the Court of Appeal of the Territory of Nauru to be heard by the High Court.
Whether in either of the above examples the judicial power of the Commonwealth exercised by the High Court is more than the judicial power defined in s.71 may be a matter of debate. (See Capital T.V. and Appliances Pty. Ltd. v. Falconer (1971) 125 CLR 591 per Barwick C.J. at pp 598-599, Menzies J. at pp 607-608; Porter v. The King per Isaacs J. at pp 440-441.)
It has not been held that the Parliament may confer original jurisdiction on the High Court or upon federal courts additional to that defined in Ch III of the Constitution although, in Spratt v. Hermes (1965) 114 CLR 226, Barwick C.J. at pp 239-240, Kitto J. at p 257 and Menzies J. at p 268 saw no reason to deny that power. A contrary view was expressed by Taylor J. at p 265, Windeyer J. at pp 276-277, Owen J. at p 280. In Stack Gibbs C.J. said at p 275:

"It is hardly necessary to repeat that no jurisdiction can be conferred on a federal court except with respect to matters of the kinds mentioned in ss.75 and 76 of the Constitution: see s.77(i) of the Constitution."

(See also Ex parte Barrett per Dixon J. at p 164; Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457 per Gibbs J. at p 493; In re The Judiciary Act 1903 and In re The Navigation Act 1912 (1921) 29 CLR 257.)

It may be that the only "non-federal" jurisdiction able to be conferred by the Parliament in addition to that prescribed in s.73 is the appellate jurisdiction conferred on the High Court by the use of a plenary legislative power, and the original and appellate jurisdiction conferred on Territorial courts pursuant to the power contained in s.122.
But for dicta to the contrary it may have been thought that any law of the Parliament conferring original jurisdiction on the High Court, whether in respect of matters arising under laws made by the Parliament pursuant to s.122 or under any other legislative power, would involve a law made by the Parliament under which matters arising, directly or indirectly, would be part of the original jurisdiction able to be conferred on the High Court pursuant to s.76(ii) of the Constitution and that, with respect to a federal court other than the High Court, the appellate or original jurisdiction conferred on that court by a law of the Parliament made pursuant to s.77(i) of the Constitution would also involve, directly or indirectly, matters arising under a law made by the Parliament. In either case the jurisdiction conferred would be federal jurisdiction under Ch III. (See Bond v. Sulan (1990) 26 FCR 580 at p 584.)
Counsel for the Attorney-General for the State of Western Australia submitted that the Constitution did not prevent a State from conferring State jurisdiction directly upon a federal court.
However, even if it is accepted that legislation under s.122 conferring jurisdiction on a federal court may be said to be "non-federal" in nature and, therefore, not a law made pursuant to Ch.III (See Capital T.V. per Barwick C.J. at p 599, per Menzies J. at pp 606-607), it does not follow that State Parliaments may impose State judicial power upon the High Court and other federal courts merely because the jurisdiction so conferred is "non-federal".
Whatever the extent of the legislative powers of the States may be (see Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129) ("Engineers Case")), it does not appear to be contemplated by the Constitution that a State may legislate to impose an obligation on a federal court created by the Commonwealth Parliament to exercise the judicial power of the State.
Although a law of a State conferring State jurisdiction upon a federal court may be a law for the peace, order and good government of the State, the use of that legislative power may be, and in my view is, circumscribed by the Constitution to which the State has bound itself upon the enactment of the Commonwealth of Australia Constitution Act 1900 (U.K.) as indicated in covering cl.4. (See Commonwealth of Australia v. State of Queensland (1975) 134 CLR 298 per Jacobs J. at pp 327-328.)
The limitation upon a State's legislative powers in respect of federal courts is to be found in the combination of provisions in the Constitution contained in Ch.III including the specific legislative powers of the Commonwealth recited therein in conjunction with the additional legislative power contained in s.51(xxxix). Although Ch.III is concerned with courts exercising federal jurisdiction and has nothing to say directly about the ability of a State to distribute its judicial powers, a federal court created by the Commonwealth Parliament is a court in which a State has no participation in formation or control. It would be a strange reading of the Constitution to consider that the State had power to confer State jurisdiction on a federal court and a federal court an obligation to exercise that jurisdiction by virtue of the State's power to confer it. It would not be to the point that such a conferral of State jurisdiction was not subject to the provisions of Ch.III of the Constitution. An obligation imposed on a Commonwealth court by a State to exercise State jurisdiction would involve an interference with a Commonwealth function under the Constitution. (See Commonwealth of Australia v. Cigamatic Pty. Ltd. (in liquidation) (1962) 108 CLR 372.)
The Constitution does provide for the converse in respect of federal jurisdiction by empowering the Commonwealth to vest federal jurisdiction in State courts and covering cl.5 of the Commonwealth of Australia Constitution Act 1900 (U.K.) makes it clear that the State courts are bound to exercise that jurisdiction.
If a State purported to confer State jurisdiction directly upon a Commonwealth court thereby obligating the court to exercise that judicial power, such a step would involve an interference with the administration of justice by the Commonwealth, an event in respect of which it may be expected that the Constitution would make express provision if it were an intended consequence.
If such a jurisdiction is to be conferred it must be conferred by the Commonwealth, or the State must obtain the legislative power from the Commonwealth under the Constitution.
The relevant legislative framework in the cross-vesting provisions is as follows.
In sub-s.4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 of each State:

"The Federal Court has and may exercise original and appellate jurisdiction with respect to State matters."

Although the choice of words may be ambiguous it cannot be argued that it is a jurisdiction to be adopted in the discretion of the court. It amounts in its terms to a conferral of jurisdiction.

In s.9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) it is provided firstly that nothing in the Commonwealth Act is intended to override or limit the operation of a provision of a State law relating to cross-vesting of jurisdiction. In sub-s.9(2) it is provided that:

"The Federal Court ... may -

(a) exercise jurisdiction (whether original or appellate) conferred on that court by a provision of ... a law of a State relating to cross-vesting of jurisdiction; and

(b) hear and determine a proceeding transferred to that court under such a provision."

The section is cast in the terms of an enabling provision in respect of jurisdiction already conferred and not in the terms of a conferral of jurisdiction.
It was submitted by the Solicitor-General that the effect of the legislative steps was an assent by the Commonwealth to the conferral of jurisdiction by a State. It was submitted that although the State could not directly confer such jurisdiction the conferral could be made effective by the assent of the Commonwealth. By a waiver of immunity as it were, a State may become empowered to confer its judicial power upon a Commonwealth court.
It was further submitted that it was not necessary for a lifting or waiver of immunity to be grounded upon a specific legislative power under the Constitution. It was said that the Commonwealth may simply legislate to remove an immunity by signifying its consent to the action of a State. (See Superannuation Fund Investment Trust v. Commissioner of Stamps for the State of South Australia (1979) 145 CLR 330; Chaplin v. Commissioner of Taxes for South Australia (1911) 12 CLR 375.)
But Chaplin was a case based upon the discarded doctrine of implied immunity of Commonwealth and State instrumentalities to the effect that a right of government could be waived by appropriately worded legislation. The only point for which Chaplin may stand subsequent to the decision in the Engineers Case is as explained by Isaacs and Rich JJ. in Commonwealth v. State of Queensland (1920) 29 CLR 1 at p 22, that the Constitution provides the Commonwealth with a supremacy of legislative power by virtue of s.109 of the Constitution which may be employed to prevent the operation of State statutes in fields where they may otherwise apply. (See also West v. Commissioner of Taxation (New South Wales) (1937) 56 CLR 657 per Evatt J. at p 700.)
In Superannuation Fund the issue involved was simply the application of s.114 of the Constitution which expressly provides for the Commonwealth to consent to the imposition of a State tax upon property belonging to the Commonwealth, a step which pursuant to s.114 would otherwise be beyond the legislative power of a State.
Neither of those decisions could provide support for the argument that the Commonwealth does not have to look to the Constitution to give effect to legislation of a State that is otherwise beyond the power of the State to enact.
If jurisdiction is conferred by the Commonwealth Parliament by some form of legislative assent, it must be either "non-federal" jurisdiction conferred by a law outside Ch.III or federal jurisdiction within the terms of Ch.III.
Although the Commonwealth may have been given powers "derived by implication from the very creation or existence of the body politic" (see Spratt v. Hermes per Barwick C.J. at p 247), there is no room for the implication of powers in areas expressly provided for by the Constitution. Section 51(xxxix) of the Constitution which enables laws to be made with respect to matters incidental to the execution of any power vested by the Constitution in the Federal Judicature, does not authorize Parliament to make laws conferring jurisdiction on a court forming part of that judicature. (See Willocks v. Anderson (1971) 124 CLR 293 at p 299; Philip Morris at pp 493-494, 506, 516, 521, 534-535, 547-548.)
It was submitted that s.64 of the Judiciary Act 1903 was an example of the lifting of a Commonwealth immunity no different in principle from the assent in sub-s.9(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) to the conferral of State jurisdiction carried out by sub-s.4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (W.A.).
But s.64 of the Judiciary Act 1903 which provides for the manner of exercise of the judicial power of the Commonwealth is a legislative step incidental to the execution of the judicial power expressly provided for in s.51(xxxix) and s.78 of the Constitution.
Finally, it was submitted that in the absence of authority to the contrary a presumption of constitutional validity should be applied to the legislation. However, if the foundation for the exercise of legislative power is not present in the Constitution, no presumption of validity may operate irrespective of how useful the legislation may be or how long it may have been operating. (See Boilermakers' Case at p 548.)
In Re T. (an infant) (1991) 1 Qd R 196 the validity of sub-s.4(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld.) was considered and upheld. In that case Ryan J. was of the opinion that the assent to the conferral of jurisdiction by States upon federal courts contained in sub-s.9(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) was a step by the Commonwealth in furtherance of a co-operative arrangement with the States in relation to the exercise of jurisdiction by federal and State courts and as such was sufficient to meet any objection to the validity of the State legislation based upon the ground that the legislation derogated from the rights of the Commonwealth to control the exercise of the jurisdiction of federal courts.
A State may invite the Commonwealth to use the legislative power contained in s.51(xxxviii) to provide for State jurisdiction to be conferred on a federal court or to grant to the State power to confer State jurisdiction upon a federal court and that invitation may result from "a co-operative arrangement" between the Commonwealth and the States. (See Port MacDonnell Professional Fishermen's Association Inc. v. State of South Australia (1989) 168 CLR 340.) Otherwise the Commonwealth has no power to control the administration of justice in State matters. (See Commonwealth v. Limerick Steamship Co. Ltd. (1924) 35 CLR 69 at pp 94, 95 and 118; Le Mesurier v. Connor (1929) 42 CLR 481; Re Tracey; Ex parte Ryan (1989) 166 CLR 518.) It has also been held that apart from the appellate jurisdiction in State matters conferred on the High Court by s.73 of the Constitution, the Commonwealth cannot confer appellate jurisdiction on a federal court in State matters. (Collins v. Charles Marshall Pty. Ltd. (1955) 92 CLR 529.)
Pursuant to s.51(xxxviii) the Commonwealth Parliament may exercise at the request of a State directly concerned any power which could be exercised only by the Imperial Parliament at the establishment of the Constitution. (See Port MacDonnell at pp 376-382.) An example of the exercise of that power is the Australia Act 1986 enacted by the Commonwealth pursuant to s.51(xxxviii) of the Constitution at the request of the States and in which the Commonwealth repealed the Imperial statutes The Judicial Committee Act 1833 and The Judicial Committee Act 1844 and abolished any appeal to Her Majesty in Council whether provided by statute or royal prerogative (Australia Act 1986, s.11).
Before the Commonwealth of Australia Constitution Act 1900 (U.K.) the colonies, by various Imperial statutes, were empowered to administer justice within the colonies and, by statute and royal prerogative, appeals from a court of justice within a colony could be referred to the Judicial Committee of the Privy Council. It was part of the power of the Imperial Parliament to direct that some part of the administration of justice in the colony be carried out by a court or courts outside the responsibility of legislatures of the colonies. Thus, it may be said that the Commonwealth has power under s.51(xxxviii) to enact legislation at the request of a State conferring State jurisdiction on a federal court. The jurisdiction conferred would become federal jurisdiction under Ch.III, being in respect of matters made justiciable by, and arising under, a law of the Parliament. (See Capital T.V. per Menzies J. at pp 604-605.)
If I had to determine the question of validity, the decision in Re T. would be regarded as persuasive authority unless my view of the law compelled another conclusion. If it were necessary for me to form a view I would be inclined to reach a different conclusion based upon the reading of the Constitution and the authorities I have set out above.
The preliminary question will be answered by a declaration that the Court does not have jurisdiction to hear the application.

[1991] FCA 372

28 JUNE 1991