The Federal and State Courts on Constitutional Law: The 2018 Term
Gilbert + Tobin Centre of Public Law, 2019 Constitutional Law Conference
In this paper I propose to focus on three decisions handed down by the State and federal courts during 2018. Each of these decisions relates to Ch III of the Constitution. One is a decision of the New South Wales Court of Appeal, sitting as a bench of five Judges. The next is a decision of the Court of Criminal Appeal of the Supreme Court of South Australia. And the third is a decision of the Full Court of the Federal Court of Australia. The proposition that I seek to develop in this paper is that each of these cases makes a substantial contribution to the case law on Ch III of the Constitution, either by considering a new issue or by applying principles laid down by the High Court in a new context.
The three cases that I will focus on in this paper are:
- Attorney-General (NSW) v Gatsby,[2] a decision of the New South Wales Court of Appeal;
- Question of Law Reserved (No 1 of 2018),[3] a decision of the Court of Criminal Appeal of the Supreme Court of South Australia;
- Wileypark Pty Ltd v AMP Limited,[4] a decision of the Full Court of the Federal Court of Australia.
I will discuss each of these cases in turn, and then draw together some themes that emerge from the three cases. One of the points of intersection between the three cases is the notion of an "integrated Australian judicial system" or "integrated Australian judicature". I will also offer some observations on this concept towards the end of my paper.
While I have decided to focus on three cases, it should be noted that the State and federal courts decided a number of other cases involving constitutional law issues during 2018. These include a decision of the Full Court of the Federal Court on whether a State and federal co-operative scheme involved an acquisition of property without just terms contrary to s 51(xxxi) of the Constitution[5], and decisions of the New South Wales Court of Appeal concerning: the implied freedom of political communication;[6] the Kable principle in the context of proceeds of crime legislation;[7] and the extraterritorial operation of State legislation and the territorial limits of the State.[8] However, time does not permit an examination of each of these cases.[9]
Attorney-General (NSW) v Gatsby
I turn then to consider each of the three cases I mentioned at the outset. The first of these is Attorney-General (NSW) v Gatsby.
As mentioned, this was a decision of the New South Wales Court of Appeal. The bench comprised Chief Justice Bathurst, President Beazley and Justices of Appeal McColl, Basten and Leeming.
The case was argued in April 2018, and judgment was handed down in November 2018. The timing is significant, because judgment was handed down well after the High Court decision in Burns v Corbett.[10] There is a close connection between the issues considered by the High Court in that case and the issues considered by the New South Wales Court of Appeal in Gatsby.
Both Burns v Corbett and Gatsby were concerned with the New South Wales Civil and Administrative Tribunal, known as "NCAT", and the question whether NCAT had jurisdiction to deal with disputes between residents of different States. The question of jurisdiction arises in the context of s 75 of the Constitution, which identifies a matter between residents of different States as one of the heads of federal jurisdiction, conventionally referred to as "diversity jurisdiction".
In Burns v Corbett, handed down in April 2018, the High Court decided, in effect, that NCAT did not have jurisdiction to deal with the dispute between residents of different States. Different reasons were given for that conclusion, but it beyond the scope of this paper to discuss the differences between the majority and minority reasoning.
What is important to note for present purposes is that in Burns v Corbett, it was common ground between the parties and assumed by the High Court: first, that NCAT was exercising judicial power; and, secondly, that NCAT was not a "court of a State" for the purposes of Ch III of the Constitution.
Those two assumptions were, however, put in issue in Gatsby. In effect, the New South Wales Court of Appeal was called upon to determine whether the assumptions that had been made in the course of the Burns v Corbett litigation were correct.
The issues in Gatsby concerned two proceedings in NCAT under residential tenancies legislation. In each of those proceedings, the Appeal Panel of NCAT had stated and answered two preliminary questions. The first preliminary question was, in effect, whether NCAT was exercising judicial power. The second preliminary question was whether NCAT was a court of a State for the purposes of Ch III of the Constitution. The Appeal Panel decided that NCAT was exercising judicial power, and that NCAT was a court of a State for the purposes of Ch III. Thus, on the Appeal Panel's view, NCAT did have jurisdiction to determine the disputes. The question for the Court of Appeal was the correctness of the Appeal Panel's view on these two issues.
For present purposes, I propose to focus on the "court of a State".
As will be well-known to this audience, it is critically important from the perspective of Ch III of the Constitution to determine whether a body established by a State is, or is not, a "court of a State". The heads of federal jurisdiction are set out in ss 75 and 76 of the Constitution. Jurisdiction with respect to the s 75 matters is conferred on the High Court by s 75 itself. Jurisdiction with respect to the s 76 matters may be conferred on the High Court by the Parliament. Section 77 then provides for the conferral of federal jurisdiction on other courts, both federal and State. Under s 77(ii), the Parliament may make laws defining the extent to which the jurisdiction of any federal court shall be exclusive of "that which belongs to or is invested in the courts of the States". Under s 77(iii), the Parliament may make laws "[i]nvesting any court of a State with federal jurisdiction". Thus, if a body is a "court of a State", it is capable of having federal jurisdiction conferred upon it. However, if the body is not a court of a State, federal jurisdiction cannot be conferred on the body.
A corollary of having the capacity to receive federal jurisdiction is that the doctrine in Kable[11] applies. In brief summary, a State legislature cannot confer upon a State court a function or power which substantially impairs its institutional integrity.[12]
In Gatsby, both the Attorney-General for NSW and the Attorney-General for the Commonwealth (intervening) contended that NCAT was not a court of a State. Some of the matters relied on by the Attorney-General for NSW were:[13]
- the fact that NCAT was not predominantly composed of judges;
- the terms of appointment of members of NCAT – they were appointed for renewable terms of five years;
- the terms for removal of members of NCAT – members could be removed by the Governor for "incapacity, incompetence or misbehaviour".
The Attorney-General for the Commonwealth (represented by the Commonwealth Solicitor-General) submitted that the "critical factor" was to identify the choice that the State legislature had made between the available options (that is, setting up a court, and setting up a tribunal).[14] It was submitted that this question was to be assessed by reference to the construction of the legislation that created the relevant body. The Attorney-General submitted that, when the legislature chooses to establish a "court", it must be a fit repository for federal judicial power invested under s 77 of the Constitution, which means that it must satisfy certain minimum standards of independence and impartiality.[15] It was submitted that, while the labelling of a body as a "court" may not be decisive, it was properly regarded as a very weighty indicator of legislative intention.[16] It was submitted that, here, there was no suggestion in the governing legislation that NCAT was being established as a "court" or a "court of record".
The Court of Appeal made arrangements for counsel to appear as contradictors.[17] The contradictors submitted (on the basis of the judgment of French CJ in Pompano[18]) that there were four characteristics of courts. The four characteristics were:[19]
- first, the reality and appearance of decisional independence and impartiality;
- second, the application of procedural fairness;
- third, the adherence as a general rule to the open court principle; and
- fourth, the requirement for the provision of reasons for the court's decisions.
The contradictors submitted that each of those characteristics was present here.
Separate judgments were delivered by each member of the Court. Chief Justice Bathurst delivered detailed reasons, with which President Beazley and Justice McColl agreed. Justice Basten and Justice Leeming each delivered separate judgments.
Chief Justice Bathurst noted[20] that the parties approached the issue in a somewhat different fashion. On the one hand, the Attorney-General for NSW and the Attorney-General for the Commonwealth approached the issue as a matter of construing the legislation that established the body. On the other hand, the contradictors suggested that, if all the indispensable features of a "court" were present, then it was a "court of a State" for the purposes of Ch III irrespective of whether the State legislature intended to create it as such. Chief Justice Bathurst said that, in the present case, the different approaches did not lead to different results.[21]
Chief Justice Bathurst referred [22] to Hospital Contribution Fund,[23] in which the High Court held that "court" in s 77(iii) of the Constitution means "a court as an institution being 'an organisation for the administration of justice, consisting of judges and with ministerial officers having specified functions'". Chief Justice Bathurst also referred[24] to the judgment of Chief Justice Spigelman in Skiwing,[25] which related to the Anti-Discrimination Tribunal of NSW, a predecessor of NCAT. In that case, Chief Justice Spigelman stated that "in order to be part of the constitutionally required integrated judicial system, a tribunal must be able to be characterised not only as a court, but as a court of law". Chief Justice Spigelman said that one aspect of this was that the body was comprised "probably exclusively although it is sufficient to say predominantly, of judges".
Applying these principles to the present case, Chief Justice Bathurst was of the view that, although NCAT has many of the features of a court and could, in a number of areas, exercise State judicial power, it was not a "court of a State" for the purposes of Ch III of the Constitution. In the Chief Justice's view, the main factors were:[26]
- First, NCAT was not designated as a "court of record".
- Secondly, and more importantly, it could not be said that the Tribunal was composed "predominantly of judges".
- Thirdly, of equal, if not greater, importance, was the absence of security for tenure for members of the Tribunal compared with that held by Judges under the Act of Settlement 1701 (UK) and its statutory or constitutional equivalents. Members other than the President can be removed from office by the Governor for "incapacity, incompetence or misbehaviour". This was contrasted with the position of judges, who can only be removed by the Governor "on address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity".
- Fourthly, the Chief Justice referred to the method of appointment. Apart from the President, members of the Tribunal are appointed by the Minister. The term of appointment cannot exceed five years, but the member is eligible for reappointment. There are no restrictions on the other activities that can be undertaken by members, which presumably could include employment by a government department or agency.
In the Chief Justice's view, the combination of these factors meant that the State legislature did not intend NCAT to be a "court of a State" for the purposes of Ch III of the Constitution, and the Tribunal did not have the necessary degree of independence and impartiality to constitute such a court. Thus, whether one approached the matter on the basis of the intention of the State Parliament or the objective characteristics of the body, the result was the same: NCAT was not a "court of a State".
As noted, President Beazley and Justice McColl agreed with the reasons of the Chief Justice.[27]
In his judgment, Justice Basten said[28] that to determine whether a body is a State court, one must consider the structure, membership and functions of the body, as defined by State law. One consideration will be its title, but that is not necessarily determinative for constitutional purposes. He said that if the body does not satisfy the substantive criteria for a State court under s 77(iii), it may not be a State court merely because it is called a "court" or even a "court of record" under its constituting statute. He said that the fact that NCAT is described as a "tribunal", not a "court", was not irrelevant, but its relevance was as a signal that Parliament was establishing a body without some characteristics conventionally associated with a court.
Justice Basten referred[29] to the objects of Parliament in establishing NCAT. After referring to several of the objects he said that "the intention to provide a tribunal separate from the court system is … manifest". He referred to factors indicating that government intended to retain a "degree of flexibility in moulding the composition of the Tribunal from time to time".[30] He said that the fact that some specialist bodies are expressly designated as courts (such as the Land and Environment Court, Industrial Court, District Court, Drug Court, Children's Court and Local Court) emphasises the distinction drawn by Parliament between courts and tribunals.[31] Accordingly, Justice Basten was "content to conclude" that NCAT was not a court within the meaning of s 77(iii).[32] However, he took a different view as to whether the present case turned on that question.[33]
Justice Leeming also concluded that NCAT was not a court of a State. He said that, while there may be cases at the margins when an elaborate analysis is called for to determine whether a body is a "court of a State" for the purposes of s 77(iii) of the Constitution, he did not regard the present case as "other than clear".[34] He placed emphasis on the history of the legislation constituting NCAT.[35] In brief, it had been established by Skiwing that the Administrative Decisions Tribunal was not a court of a State for the purposes of s 77(iii). NCAT is the successor to the Administrative Decisions Tribunal (although it is also the successor to a number of other tribunals). Yet there is nothing in the NCAT Act[36] that suggests that NCAT was to be, unlike its predecessor, a court of a State for the purposes of s 77(iii). Justice Leeming also referred[37] to amendments to the NCAT Act that inserted a new Part[38] dealing with diversity proceedings. The purpose of the new Part was, his Honour considered, plain.[39] The former exclusive authority of NCAT to determine this class of disputes was qualified insofar as those disputes were matters in federal diversity jurisdiction. To that extent, the new provisions permit parties to make application to a court that unquestionably does have jurisdiction to hear and determine the dispute. Justice Leeming observed that the entirety of the new Part would have no operation if NCAT was a court.[40]
Accordingly, all members of the Court of Appeal concluded that NCAT was not a court of a State for the purposes of Ch III of the Constitution. I am not aware of any special leave application having been made in respect of the decision.
Question of Law Reserved (No 1 of 2018)
I turn now to consider the second of the three cases concerning Ch III of the Constitution, namely Question of Law Reserved (No 1 of 2018), a decision of the Court of Criminal Appeal of the Supreme Court of South Australia handed down in December 2018. I understand that an application for special leave has been filed.
The issue in this case concerned the application of Kable to State legislation relating to sentencing. In brief terms, the State legislation sought to negate the effect of a decision of the High Court, in a case called Chiro,[41] as to how sentencing was to occur. The question was whether the State legislation was invalid on the basis of the Kable principle.
I will now outline the facts in a little more detail. The defendant, Stephen Hamra, was charged with persistent exploitation of a child contrary to s 50 of the Criminal Law Consolidation Act[42] of South Australia. The particulars of the information were that he had, between a date in 1979 and a date in 1987 – that is, a period of some 8 years, committed more than one act of sexual exploitation of a particular child under the prescribed age. The information described four different types of act that comprised the sexual exploitation. The defendant pleaded not guilty and a trial took place in the District Court. In January 2017, the jury returned a guilty verdict.
In September 2017, the High Court delivered judgment in Chiro. In summary, the High Court determined by a majority that in circumstances where a jury delivered a general verdict of guilty of a charge against s 50, and the jury was not questioned as to which of the alleged acts of sexual exploitation were found to be proved, the sentence would have to be delivered on the basis of the view of the facts most favourable to the defendant.
In the case of Mr Hamra, the Judge had, in summing up to the jury, directed them that, in order to find the defendant guilty, they needed to be agreed on two or more acts of sexual exploitation. However, upon delivery of the jury's verdict, the Judge had not asked the jury which acts of sexual exploitation they had found to be proved.[43] Accordingly, an application of Chiro would require Mr Hamra to be sentenced on the basis of the view of the facts most favourable to him.
Following to decision of the High Court in Chiro, the Parliament of South Australia passed an Act[44] that amended the Criminal Law Consolidation Act. The amending Act made specific provision[45] for those persons who had been convicted but not yet sentenced for an offence against s 50. The provision drew a distinction between the trier of fact (on the one hand) and the sentencing court (on the other). The provision had a series of paragraphs, as follows:
"9—Sentencing for offences under previous law
(1) …
(2) Where, after the commencement of this section, a person is to be sentenced for an offence against section 50 of the Criminal Law Consolidation Act 1935 (as in force before the commencement of section 6 of this Act) the following provisions apply:
(a) a verdict of guilt handed down by the trier of fact in relation to the offence is taken to be, and always to have been, a finding by the trier of fact that the person is guilty of the acts of sexual exploitation comprising the course of conduct alleged by the information;
(b) notwithstanding paragraph (a), in sentencing the person for the offence, the sentencing court may determine which alleged acts of sexual exploitation the sentencing court finds proved beyond a reasonable doubt and may disregard any acts of sexual exploitation that the sentencing court is not satisfied were proved beyond a reasonable doubt;
(c) for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining which acts of sexual exploitation, or which particulars of the offence as alleged, the trier of fact found to have been proved beyond a reasonable doubt and, unless it has so determined in accordance with paragraph (b), need not sentence the person on the view of the facts most favourable to the person."
The provision contained a 'carve out' (in sub-section (3)) for the particular matter that was the subject of the High Court's decision in Chiro. But the provision was otherwise intended to overturn the effect of the High Court's decision. This was made plain by a "Note" appearing under the provision in the following terms:
"Except as provided in subsection (3), this section negates the effect of the determination of the High Court in Chiro v The Queen [2017] HCA 37".
Thus, there was no doubt what the State Parliament was trying to achieve.
The Judge of the District Court who was to sentence Mr Hamra reserved a question of law for consideration by the Court of Criminal Appeal. In substance, the question was: Is the provision in the amending Act valid?
In brief terms, the defendant contended that the provision was invalid on the basis that it impaired the institutional integrity and independence of the District Court of South Australia.[46] I note at this point that this one of the few cases that has considered the Kable principle in the context of a court of a State other than the Supreme Court. Another example is K-Generation[47] in the High Court. In contrast, most decisions in the Kable line of cases have concerned the Supreme Court of a State. Yet there is no doubt that the Kable principle applies to all State courts, not only the Supreme Court. This has been made clear by the High Court in many statements of the Kable principle.[48]
The submissions on behalf of the Director of Public Prosecutions and the Attorney-General for the State of South Australia were presented by the State Solicitor-General. He argued that s 50 had changed the orthodox position, namely that it was for the sentencing judge to find the facts relevant to sentence, so long as those facts were consistent with the verdict of the trier of fact.[49] He contended that it was within the province of Parliament to alter the rule governing the location of the fact-finding function as between judge and jury, always provided that the factual basis for sentence was consistent with the verdict. It was submitted that, since Chiro countenanced the resentencing of Mr Chiro on the basis of a fiction – that he had been found guilty of the two least serious acts alleged – so it was within the power of Parliament to oblige the court to sentence on the basis of a different fiction, namely that all acts alleged had been found proved, subject to the judge's discretion to find otherwise.
All members of the Court of Criminal Appeal were of the view that the provision was invalid on the basis of the Kable principle. A judgment was delivered by Justice Vanstone. A separate judgment was delivered by Justice Hinton, with whom Justice Lovell agreed.
In her judgment, Justice Vanstone referred to the decision of the High Court in North Australian Aboriginal Justice Agency Ltd v Northern Territory[50] in which Chief Justice French and Justices Kiefel and Bell had set out seven principles established by the Kable line of cases. Applying those principles, Justice Vanstone said that the legislative deeming of the verdict to involve a finding of guilt of all alleged acts, even though subject to the discretion given by paragraph (b) of the provision, seemed to impact upon the reality and appearance of the court's independence and impartiality. Her Honour said:[51]
"Given that it is for the jury, as an organ of the court, to determine what elements of the offence are proved, a presumption that all are proved, even overlayed by a judicial discretion to make a fresh determination of the very questions which were addressed by the jury, must detract from the reality and appearance of the court's independence and impartiality."
Her Honour said that the legislation amounted to a "retrospective reordering of the court's processes" and thus amounted to "a substantial interference with the judicial process such as to impair the institutional integrity of the court".[52]
In his judgment, Justice Hinton described the Kable principle and in this context noted that "Chapter III creates an integrated national court system, not a uniform national court system".[53] Justice Hinton described the decision of the High Court in Chiro and considered some issues of construction concerning the provision of the amending Act. In summary, in his view, paragraph (a) operates as a starting point that will always be ameliorated by paragraph (b) if less than all the acts of sexual exploitation particularised are not proven to the satisfaction of the sentencing court beyond reasonable doubt.[54]
Justice Hinton emphasised that, in a criminal prosecution, the sequential steps of conviction and sentencing are inextricably linked.[55] In Mr Hamra's case, the judicial power had been exercised to quell the first stage of the controversy – the jury verdict was accepted by the trial judge and has been entered in judgment.[56] The result of the exercise of judicial power was that Mr Hamra was found guilty of the offence and was liable to be punished. Putting to one side the amending Act, Chiro is authority for the proposition that his liability to punishment is limited to those acts forming part of the actus reus of the offence as found by the jury to have been proved and only for those acts. In Mr Hamra's case, that curial determination had already occurred. In Justice Hinton's view, the provision in question required, in effect, that the exercise be repeated. In his view, the State Parliament was in substance commanding that a controversy that had been resolved in the exercise of judicial power be re-opened and retried.[57] This drew the District Court into a process that was antithetical to the exercise of judicial power and incompatible with that Court's constitutionally mandated position.[58]
Wileypark Pty Ltd v AMP Ltd
The third case that I will discuss is Wileypark v AMP. This case concerns the relationship between the Supreme Court of a State and the Federal Court of Australia and, in particular, the principles applicable to transfers and anti-suit injunctions. In considering the issues, the Full Court of the Federal Court made important observations about the constitutional assumption of an integrated Australian judicature.
The background to the judgment is as follows. As a result of matters raised at the Banking Royal Commission, five representative proceedings were commenced against AMP, both in the Federal Court of Australia and the Supreme Court of New South Wales. Four of the representative proceeding were commenced in the Federal Court: these were the Wileypark proceeding, the Georgiou proceeding, the Fernbrook proceeding and the Komlotex proceeding.[59] One representative proceeding was commenced in the Supreme Court: this was the Wigmans proceeding. This was filed shortly before – by a matter of hours – the first proceeding filed in the Federal Court.[60] The subject matter and claims in the proceedings substantially overlapped.
In the four Federal Court proceedings, AMP filed applications for the proceedings to be transferred to the Supreme Court.
Then, the applicants in the four Federal Court proceedings approached the Supreme Court seeking to have the Supreme Court proceeding (that is, the Wigmans proceeding) transferred to the Federal Court.[61] That transfer application came on for hearing and was opposed, including by AMP. In the course of the hearing, senior counsel for AMP submitted that AMP was "more content" to be sued in the Supreme Court than in the Federal Court.[62] Ms Wigmans also sought an anti-suit injunction against the parties to the four Federal Court proceedings to prevent them taking any steps in the Federal Court proceedings.[63]
On 9 July 2018, the judge in the Supreme Court delivered judgment on the transfer application. He refused to transfer the Supreme Court proceeding to the Federal Court. In the course of his judgment, he said that he would invite the applicants in the four Federal Court proceedings to consent to the transfer of those proceedings to the Supreme Court and, if they did not, he would consider whether to grant an anti-suit injunction as sought by Ms Wigmans.[64]
Two days later, on 11 July 2018, the Federal Court proceedings came before Justice Lee. Justice Lee expressed some concern as to the protection of the integrity of the process of the Federal Court pending the transfer applications in the Federal Court being dealt with, given the threat of an anti-suit injunction.[65]
The remarks of Justice Lee apparently lead Ms Wigmans to file, the next day, a notice of motion in the Supreme Court seeking what was described as an "anti-anti-anti-suit injunction".[66] That motion was referred to the Chief Judge in Equity (Justice Ward). Justice Ward refused to grant any injunction and made consent orders holding the position pending the applications before the Federal Court.[67] After referring to a number of cases, Justice Ward said:
"17 The cases in general that have dealt with anti-suit injunctions or anti-anti-suit injunctions or the like have tended to be cases involving matters where proceedings were commenced in the court of the forum as well as in international courts. This is a relatively unique case where there are present proceedings in the Supreme Court and, at the same time, proceedings in the Federal Court.
18 I am of the firm view that, as a matter of policy, this Court should not take steps that may interfere with or undermine the processes of the Federal Court; just as I would expect that judges of the Federal Court would be concerned, as a matter of comity, not to take steps which would interfere or cause interference in the integrity or processes of this Court. In my view, there would need to be powerful reasons given for an anti-anti-anti-suit injunction of the kind that was sought in the notice of motion filed today to be made (just as there would need to be, I would hope, recognised a need for powerful reasons before any anti-anti-suit injunction might be granted in the Federal Court if to do so would affect or undermine the integrity of the processes of this Court)."
The next step was the hearing of the transfer applications that had been filed in the four Federal Court proceedings. Given the significance of the issues, it was directed that these transfer applications be heard by a Full Court of the Federal Court.[68] The Court comprised Chief Justice Allsop and Justices Middleton and Beach. The leading judgment was delivered by Chief Justice Allsop, with whom Justices Middleton and Beach relevantly agreed.[69]
After setting out the chronology of events and a passage from the judgment of Justice Ward (including the passage I have quoted), Chief Justice Allsop said:[70]
"I wish to express, emphatically, my complete agreement with the Chief Judge [in Equity] that comity between the Supreme Courts of the States and Territories and the Federal Court in the concurrent exercise of federal jurisdiction is of the utmost importance. Indeed, to put it thus may be to suffer understatement. In an integrated federal judicature such comity is a Constitutional assumption of the utmost practical and institutional importance."
Chief Justice Allsop referred[71] to a statement of President Kirby in Beecham (Australia) Pty Ltd v Roque Pty Ltd[72] where he expressed the view that it was "unseemly, at this stage in the history of the Australian Federation for arguments as to the most convenient forum within Australia for the hearing of a case to be resolved by the procedure of an anti-suit injunction. President Kirby had referred to the constitutional status of State courts as "component parts of the Federation". He had stated that the State courts, although not Federal courts, "are recognised in Chapter III of the Australian Constitution as constituents of the judicial system of the Commonwealth". In these circumstances, in President Kirby's view, it was "constitutionally inappropriate … to proceed in a State court to apply principles of private international law which have been developed to govern relationships between courts of foreign countries".
Chief Justice Allsop said that he took President Kirby to be referring to the "Constitutional assumption of an integrated Australian judicature, now accepted as a reality" in Kable. As such, he did not consider s 78B notices[73] to be required. Chief Justice Allsop concluded this part of his reasons as follows:[74]
"The reality and practical significance of this Constitutional assumption is made clear in circumstances where a party seeks, or it is otherwise suggested, that one court in Australia would, or should, entertain an anti-suit injunction against proceedings in another court with the possible interference with the integrity of the processes of that other court, and so, of the integrated judicature itself. The undesirability of that course has a number of other unwanted features which are unnecessary to canvass."
Turning to the transfer applications before the Court, Chief Justice Allsop considered that it was appropriate for the four proceedings in the Federal Court to be transferred to the Supreme Court of New South Wales.[75] A decision could then be made, as a matter of case management, as to which of the proceedings would proceed.[76] A significant factor in deciding to transfer the four proceedings to the Supreme Court was that the Supreme Court had already refused to transfer the Wigmans proceeding.[77] The Chief Justice said that none of what might be called the usual considerations in a forum conveniens or transfer application outweighed the convenience of ensuring only one substantive hearing.
Justices Middleton agreed with the reasons of the Chief Justice and added some additional observations. Justice Beach agreed with the reasons of the Chief Justice save in one respect which is not presently relevant.
Observations
In my opinion, the three cases that I have discussed make a substantial contribution to the case law on Ch III – Gatsby, in clarifying the principles that mark out the boundary of the integrated Australian judicial system; Question of Law Reserved (No 1 of 2018), in applying the Kable principle in the context of a law that seeks to change the process of sentencing; and Wileypark, in demonstrating the way in which the constituent parts of the integrated judicial system should approach transfers and anti-suit injunctions.
But what is meant by an "integrated Australian judicial system"?
While the expression has been adopted in a number of High Court judgments – in particular, the expression was used by Justices Gaudron, McHugh and Gummow in Kable[78] – the cases do not provide any definition of what is meant by an integrated judicial system. Conceptually, the expression could cover a range of different systems.
Ultimately, it is necessary to look at the provisions of the Constitution in order to describe the Australian judicial system. While the expression "integrated Australian judicial system" is apt to describe the system established by Ch III, it is the provisions of that chapter that give content to the expression. The features of Ch III of present relevance are as follows:
- First, the Constitution provides for the High Court of Australia to sit at the apex of both federal and State courts. With the abolition of appeals to the Privy Council, the High Court is the final court of appeal from decisions of both federal and State courts.
- Secondly, and relatedly, there is only one common law of Australia.[79] Thus the same common law is applied by federal and State courts.
- Thirdly, under s 77, federal jurisdiction may be conferred on State courts as well as on federal courts.
- Fourthly, and relatedly, it follows that the State courts must be available to receive a conferral of federal jurisdiction. Therefore, the State Parliaments cannot confer upon a State court a function or power that substantially impairs its institutional integrity.[80] That said, the provisions relating to the appointment and removal of Judges of federal courts (contained in s 72 of the Constitution) do not apply to State courts. Likewise, State courts are not subject to the strict separation of powers that applies to federal courts.
- Fifthly, the Constitution requires there to be a body fitting the description "the Supreme Court of a State", such that it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description.[81]
In addition to these matters, I would refer to the way the doctrine of precedent has been developed, such that a court in one part of the Australian judicial system must apply a decision of a court of another part of the system unless it considers the decision to be "plainly wrong".[82]
There have also been legislative developments, such as the cross-vesting legislation,[83] that fill out the picture.
To this may be added practical arrangements that exist between courts in the Australian judicial system. For example, recently, in November 2018, a proposed protocol was signed by the Chief Justice of the Supreme Court of New South Wales and the Chief Justice of the Federal Court of Australia regarding the co-operative management of class action proceedings.[84]
In my view, it is likely that the degree of co-operation between the constituent parts of the integrated Australian judicial system will only increase in the years to come. The High Court cases since Kable have been significant in this regard. The State and federal court cases decided during 2018 have also made a contribution.
[1] I would like to thank my associate, Paul Annabell, for his research assistance in the preparation of this paper.
[2] (2018) 361 ALR 570; [2018] NSWCA 254.
[3] [2018] SASCFC 128.
[4] (2018) 359 ALR 43; [2018] FCAFC 143.
[5] Spencer v Commonwealth (2018) 353 ALR 682; [2018] FCAFC 17.
[6] Dowling v Prothonotary of the Supreme Court of NSW [2018] NSWCA 340.
[7] AD v Commissioner of the Australian Federal Police [2018] NSWCA 89.
[8] Lavender v Director of Fisheries Compliance, Department of Industry, Skills and Regional Development (2018) 359 ALR 96.
[9] Other constitutional law cases decided by the State and federal courts during 2018 include: Cook v Australian Postal Corporation [2018] FCA 81; Electoral Commission of Queensland v Awabdy (2018) 330 FLR 384; Ryan v Council of the City of Sydney [2018] NSWSC 265; Longley v Chief Executive, Department of Environment and Heritage Protection (2018) 331 FLR 33; Culleton v Balwyn Nominees Pty Ltd [2018] FCA 313; Hocking v Director-General of National Archives of Australia (2018) 255 FCR 1; Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq); Ostwald Bros Pty Ltd (in liq) v Seymour Whyte Constructions Pty Ltd [2018] NSWSC 412; Australian Information Commissioner v Elstone Pty Limited [2018] FCA 463; Timms v Police (SA) [2018] SASC 69; Munkara v Bencsevich & Ors [2018] NTCA 4; Searle v Commonwealth of Australia [2018] NSWSC 1017; Graham v Minister for Immigration and Border Protection [2018] FCA 1012; Sill v City of Wodonga [2018] VSCA 195; Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2018] NSWCA 175; Bendigo and Adelaide Bank Ltd v Laszczuk (2018) 129 ACSR 386; Cook v Australian Postal Corporation [2018] FCAFC 208; CPJ17 v Minister for Immigration and Border Protection [2018] FCA 1242; DBE17 v Commonwealth of Australia (2018) 361 ALR 423; Midson Construction (Qld) Pty Ltd & Ors v Queensland Building and Construction Commission & Ors [2018] QSC 199; Nguyen v Commissioner of Taxation [2018] FCA 1420; EHT18 v Melbourne IVF [2018] FCA 1421; Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48; WB Rural Pty Limited v Commissioner of State Revenue [2018] QCA 255; Commonwealth Director of Public Prosecutions v Easton [2018] NSWSC 1516; Caason Investments Pty Ltd v International Litigation Partners No 3 Ltd [2018] FCAFC 176; Tanioria v Commonwealth (No 3) [2018] FCA 1623; Scenic Tours Pty Ltd v Moore (2018) 361 ALR 456; Hanson-Young v Leyonhjelm [2018] FCA 1688; Banerjee v Commissioner of Police (NSW) [2018] NSWCA 283; Waddington v Victoria [2018] VSC 746; Fyna Projects Pty Ltd v Deputy Commissioner of Taxation [2018] FCA 2041; Practitioner D3 v Council of Law Society of ACT [2018] FCA 2080; Belan v National Union of Workers – New South Wales Branch [2018] FCAFC 239.
[10] (2018) 353 ALR 386; [2018] HCA 15.
[11] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
[12] See, eg, North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [39] per French CJ, Kiefel and Bell JJ and cases there cited.
[13] See Gatsby at [138]-[147].
[14] See Gatsby at [152].
[15] See Gatsby at [153].
[16] See Gatsby at [158].
[17] The contradictors were G Kennett SC and C Winnett of counsel, instructed by Ting Lim.
[18] Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [67].
[19] See Gatsby at [160].
[20] At [172].
[21] At [173].
[22] At [177].
[23] Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49.
[24] At [178].
[25] Trust Company of Australia Ltd (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany's) (2006) 66 NSWLR 77.
[26] At [185]-[190].
[27] Justice McColl added that the factor that was of greatest significance to her mind was the fact that NCAT members do not enjoy the independence and impartiality essential to a finding that the NCAT is a court of a State. In particular, as Chief Justice Bathurst had explained, members of NCAT do not have security of tenure comparable to that held by Judges.
[28] At [223].
[29] At [224].
[30] At [226].
[31] At [227].
[32] At [228].
[33] At [228].
[34] At [290].
[35] At [291]-[292].
[36] Civil and Administrative Tribunal Act 2013 (NSW).
[37] At [293]-[299].
[38] Part 3A.
[39] At [297].
[40] At [298].
[41] Chiro v The Queen (2017) 260 CLR 425.
[42] Criminal Law Consolidation Act 1935 (SA).
[43] See Question of Law Reserved at [6].
[44] Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 (SA).
[45] Section 9(2), set out in Question of Law Reserved at [8].
[46] See Question of Law Reserved at [22].
[47] K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4.
[48] See, eg, Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 102-103 per Gaudron J, 114-116 per McHugh J, 139-143 per Gummow J; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [39] per French CJ, Kiefel and Bell JJ.
[49] See Question of Law Reserved at [24].
[50] (2015) 256 CLR 569; [2015] HCA 41.
[51] At [38].
[52] At [38].
[53] At [58], citing Burns v Corbett (2018) 353 ALR 386; [2018] HCA 15 at [20] per Kiefel CJ, Bell and Keane JJ.
[54] At [115]-[119].
[55] At [168].
[56] At [169].
[57] At [169]-[175].
[58] At [176].
[59] See Wileypark at [1].
[60] See Wileypark at [3].
[61] See Wileypark at [6].
[62] See Wileypark at [6].
[63] See Wileypark at [6].
[64] See Wileypark at [7].
[65] See Wileypark at [9].
[66] See Wileypark at [10].
[67] Wigmans v AMP Ltd [2018] NSWSC 1118.
[68] See Wileypark at [21].
[69] Justice Beach expressed different reasons in relation to certain issues concerning s 1317K of the Corporations Act 2001 (Cth) and s 33ZE of the Federal Court of Australia Act 1976 (Cth): see at [65].
[70] At [11].
[71] At [11].
[72] (1987) 11 NSWLR 1 at 3.
[73] Ie, notices under s 78B of the Judiciary Act 1903 (Cth).
[74] At [13].
[75] At [24], [54], [56].
[76] At [25].
[77] At [23].
[78] See Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 102 per Gaudron J, 114-115 per McHugh J, 143 per Gummow J.
[79] Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [99], citing Lipohar v The Queen (1999) 200 CLR 485 at [43].
[80] See, eg, North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at [39] per French CJ, Kiefel and Bell JJ.
[81] Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [96], citing Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [63].
[82] Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.
[83] Eg, Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic).
[84] Protocol for Communication and Cooperation Between Supreme Court of New South Wales and Federal Court of Australia in Class Action Proceedings, November 2018.
