A Paper Concerning Aspects of Federal Jurisdiction

 RTF version (443 kb)

1.          The Constitutions of the Australian States are based on the Westminster model which means that they are the emanation of an English constitutional struggle to establish the supremacy of Parliament.  That struggle was not concerned with debates about the separation of powers.  As Chief Justice French has observed in South Australia v Totani (2010) 242 CLR 1 (“Totani”) at [66], there was, at Federation, no doctrine of separation of powers entrenched in the Constitutions of the States although unsuccessful attempts were made in New South Wales, Western Australia and South Australia in the 1960s and 1970s and in Victoria in 1993 to persuade courts of the existence of such a doctrine:  see Totani footnotes 223 to 227 at [66]; Condon v Pompano Pty Ltd (2013) 252 CLR 38, French CJ at [22]. 

2.          As you know, by s 51 within Part V of Chapter 1 of the Commonwealth Constitution, the Parliament “subject to this Constitution” has power to make laws with respect to 39 enumerated areas of subject matter.  The important thing to note is that that grant of legislative power is subject to the Constitution and thus subject to Chapter III.  By Chapter III, the “judicial power of the Commonwealth” is vested in the High Court of Australia and in such other federal courts as the Parliament creates and in such other courts as it invests with federal jurisdiction. 

3.          I will return shortly to the relationship between s 71 and ss 75 and 76 of the Constitution and particularly the limits upon legislative power of the Parliament contained within s 77 of Chapter III. 

4.          The separation of powers has been described by Isaacs J as the “dominant principle of demarcation” of the Commonwealth Constitution:  New South Wales v The Commonwealth (“Wheat case”) (1915) 20 CLR 54, p 90. 

5.          Although its consequences for the relationship between the legislature and the Executive have been significantly restricted by the adoption of responsible government (by which Ministers of the Crown must be members of the Parliament), its effect upon the federal judiciary has been “profound”, as Professor Cheryl Saunders observes:  The Constitution of Australia, a Contextual Analysis, Hart Publishing 2011. 

6.          The separation of judicial power precludes not only the exercise of federal judicial power by any institution that is not a court within the meaning of Chapter III, but also prohibits a federal court from exercising power that is not federal judicial power.  As to the historical relationship between the “well-recognised dogma for us that the judicial power is to be exercised separately from the exercise of the other two powers, and by different people”, see the judgment of Windeyer J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at p 388 and following, and the Boilermakers case discussed at points 37 and 56 of these remarks. 

7.          However, the Parliament has specific power under s 51(xxxix) to make laws with respect to matters incidental to the execution of any power vested by the Constitution in “the Parliament … or in the Federal Judicature”.  The reference to “Federal Judicature” in s 51(xxxix) contemplates the High Court, other federal courts created by the Commonwealth Parliament and State courts invested with federal jurisdiction. 

8.          The power conferred by s 51(xxxix) “relevantly extends to authorise enactment of laws incidental to the exercise of a power of adjudication conferred or vested in a court by or under Chapter III or necessary or proper to make the exercise of such a power of adjudication effective”:  Rizeq v The State of Western Australia [2017] HCA 23, 21 June 2017 at [46] (“Rizeq”), Bell, Gageler Keane, Nettle and Gordon JJ; Re Wakim Ex Parte McNally (1999) 198 CLR 511, 580 at [122] (“Re Wakim”). 

9.          As to Rizeq, I will return to that recent decision of the High Court and its significance later in the course of these remarks. 

10.       As to jurisdiction, the word “jurisdiction” means, in a curial context, “authority to adjudicate” which might depend upon a person’s presence within territorial bounds or it might be dependent upon specific subject matter: ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559. 

11.       Explaining, as early as 1907, the similarity and difference between federal jurisdiction and state jurisdiction, Isaacs J said this in Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087 (“Baxter”) at 1142:  

“‘Jurisdiction’ is a generic term and signifies in this connection authority to adjudicate.  State jurisdiction is the authority which the State Courts possess to adjudicate under the State Constitution and laws; federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws.  The first is that which ‘belongs to’ State Courts within the meaning of s 77(ii); the latter must be “vested in” them by Parliament.  Federal jurisdiction which the Parliament of the Commonwealth is empowered to vest in a State Court under s 77(iii) or to confer on a federal court other than the High Court under s 77(i), is authority to adjudicate on a matter within any of the 5 categories of matter in which the High Court is given entrenched original jurisdiction by s 75 or within any of the 4 additional enumerated categories of matter in respect of which the Parliament has power to confer original jurisdiction on the High Court under s 76.” 

[my emphasis]

12.       As to federal jurisdiction, it can arise by subject matter, identity of parties or the nature of the relief.  However, federal jurisdiction is essentially co-extensive with the matters specified in ss 75 and 76 of the Constitution. 

13.       The jurisdiction of the Federal Court of Australia (the “Federal Court”) is always federal jurisdiction.  It must come from ss 75 and 76 of the Constitution in terms of source of subject matter and it is that which is defined by a valid law of the Commonwealth made in accordance with s 77(i) of the Constitution. 

14.       Although I will come to the sections of the Constitution shortly, we should note that s 71 refers to the High Court, such other federal courts as the Commonwealth Parliament creates and such other courts as the Commonwealth invests with Federal jurisdiction.  Thus, s 71 contemplates the High Court, federal courts and the courts of the States.

15.       As to the Federal Court, it was created in accordance with s 77(i) by the Federal Court of Australia Act 1976 (Cth).  The Court first sat in 1977.  Sir Gerard Brennan has reviewed the steps taken to establish the Court and aspects of its first 40 years in the most recent edition of the Australian Law Journal: (2017) 91 ALJ 461.

16.       The authority to exercise the judicial power of the Commonwealth, over a given subject matter, involves an understanding of ss 75, 76 and 77 of the Constitution.

17.       It is convenient now to turn to those sections.

18.       Section 71, relevantly, is in these terms:

“71       Judicial power and Courts

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.”

19.       Section 75 is in these terms:

“75       Original jurisdiction of High Court

In all matters:

(i)   arising under any treaty;
(ii)  affecting consuls or other representatives of other countries;
(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
(iv)  between States, or between residents of different States, or between a State and a resident of another State;
(v)   in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

The High Court shall have original jurisdiction.”

20.       Section 76 is in these terms:

“76       Additional original jurisdiction

The Parliament may make laws conferring original jurisdiction on the High Court in any matter;

(i)   arising under this Constitution, or involving its interpretation;
(ii)  arising under any laws made by the Parliament;
(iii) of Admiralty and maritime jurisdiction;
(iv)  relating to the same subject-matter claimed under the laws under different states.”

21.       Section 77 is in these terms:

“77       Power to define jurisdiction

With respect to any of the matters mentioned in the last two sections the Parliament may make laws:

(i)   defining the jurisdiction of any federal court other than the High Court;
(ii)  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;
(iii) investing any court of a State with federal jurisdiction.”

22.       There are three other provisions of the Constitution which need to be kept in mind and they are these:

“106      Saving of Constitutions

The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. 

107       Saving of power of State Parliaments

Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be. 

109       Inconsistency of laws

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”

23.       Thus, the Parliament of a State might enact a law on a given subject matter and so too the Parliament of the Commonwealth might enact a law on the same subject matter.  As you know, s 109 operates so as to provide for the paramountcy of laws of the Commonwealth Parliament to the extent of any inconsistency.  Section 79 of the Judiciary Act 1903 (Cth) (the “Judiciary Act”) has something to say about the binding effect of certain classes of State laws on all courts exercising federal jurisdiction in the relevant State or Territory.  Section 79 is, relevantly, in these terms:

“Division 2 – Application of laws

79         State or Territory laws to govern where applicable

(1)      The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”

24.       Subsections (2), (3) and (4) of s 79 deal with matters in relation to a particular kind of suit.  I will address the important role of s 79 of the Judiciary Act when discussing the recent decision of the High Court in Rizeq. 

25.       In the case of the Federal Court, the Court has such original jurisdiction as is vested in it by laws made by the Parliament:  s 19(1).  The Act itself is generally not the source of the subject matter of jurisdiction, subject to s 32 which confers jurisdiction in associated matters.  I will return to the meaning of associated matters later in these remarks.

26.       Section 22 of the Act confers power on the Federal Court to grant particular remedies in matters in respect of which it has jurisdiction but s 22 does not confer jurisdiction: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 (“Philip Morris”).  Section 22 is in these terms:

“22       Determination of matter completely and finally

The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.”  

[my emphasis]

27.       The notion underlying that provision is the importance of granting any manner of remedy which will quell the controversy between the parties completely and finally and avoid a multiplicity of proceedings.

28.       Jurisdiction was emblematically conferred, as you know, upon the Federal Court by ss 82 and 86 of the Trade Practices Act 1974 (Cth).  Some of the many specific Commonwealth Acts conferring jurisdiction on the Federal Court include the Administrative Decisions (Judicial Review) Act 1977, the Administrative Appeals Tribunal Act 1975, legislation in relation to intellectual property, the Australian Securities and Investments Commission Act 2001, the Corporations Act 2001, the Bankruptcy Act 1966, the Cross-Border Insolvency Act 2008, the Broadcasting Services Act 1992, the Competition and Consumer Act 2010, the Native Title Act 1993, the Income Tax Assessment Act 1936 and the Admiralty Act 1988 and, focusing only upon principal Commonwealth Acts, there are over 200 Acts conferring jurisdiction on the Court.

29.       In 1983 jurisdiction was conferred upon the Court by reference to s 75(v) of the Constitution, by s 39B(1) of the Judiciary Act.  That jurisdiction (in addition to the original jurisdiction conferred upon the High Court by s 75(v)), has been critical to the development of the jurisdictional error jurisprudence in Australia.  Section 39B(1) provides that the original jurisdiction of the Federal Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. 

30.       You will be familiar with iconic decisions such as Attorney-General (NSW) v Quinn (1990) 170 CLR 1; Craig v South Australia (1995) 184 CLR 163 particularly at 179; Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 particularly at [81]-[85] and importantly, Plaintiff 157/2002 v The Commonwealth (2003) 211 CLR 476.  As Gleeson CJ observed in S 157/2002 at [5] and [6], s 75(v) secures “a basic element of the rule of law” which confers a jurisdiction to require officers of the Commonwealth to act, as a matter of legality, within the limits of the law, and the jurisdiction cannot, so far as the High Court is concerned, be taken away by Parliament.  Much is written on the topic of jurisdictional error.  As to the history and development of that doctrine, I encourage you to read a scoping article written by Justice Gageler when his Honour was the Solicitor-General for the Commonwealth which can be found at (2010) 17 AJ Admin L 92.

31.       In 1997 the Parliament enacted s 39B(1A) of the Judiciary Act in reliance upon s 75(iii), s 76(i), s 76(ii) and s 77(i) of the Constitution. 

32.       Section 39B(1A) provides that the original jurisdiction of the Federal Court includes jurisdiction in any matter: in which the Commonwealth is seeking an injunction or a declaration  (s 39B(1A)(a); s 75(iii), Constitution); or, arising under the Constitution, or involving its interpretation (s 39B(1A)(b); s 76(i), Constitution); or, arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter (s 39B(1A)(c), s 76(ii), Constitution).  Three things should be noted:  

33.       First, the concluding words of s 39B(1A)(c) do not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court and other laws of the Commonwealth Parliament have done so.  Criminal cartel conduct is the notable example.

34.       Second, s 39B(1A)(b), apart from any other consideration, confers jurisdiction to determine the constitutional validity of an Act conferring jurisdiction upon the Court. 

35.       Third, and very importantly, s 39B(1A)(c) is a general conferral of jurisdiction especially because it confers jurisdiction in any matter arising under any laws made by the Parliament.  The scope and reach of that provision cannot be underestimated.  We will return to that issue.

36.       I have already mentioned that s 77(iii) contemplates, consistent with s 71, that laws might be enacted by the Commonwealth Parliament investing “any court of a State with federal jurisdiction” with respect to any of the matters in ss 75 and 76 (and notably, of course, in any matter arising under any laws made by the Commonwealth Parliament).  Section 39(2) of the Judiciary Act is the expression of such a law under s 77(iii).  You will also recall from the earlier provisions that s 77(ii) provides that with respect to any of the matters in ss 75 and 76, 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.  Accordingly, ss 38 and 39 of the Judiciary Act have a particular symmetry.  The provisions are in these terms, relevantly:

“38       Matters in which jurisdiction of High Court exclusive

Subject to sections 39B and 44, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters:

(a)        matters arising directly under any treaty;

(b)       suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State;

(c)        suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State;

(d)       suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth;

(e)        matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court. 

39         Federal jurisdiction of State Courts in other matters

(1)       The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section.

(2)       The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions:” 

… [It is not necessary to recite s 39(2)(a) or (c)]

37.       Although the framers of the Australian Constitution “adopted so definitely the general pattern of Article III (of the Constitution of the United States)” with “variations and departures” from its detailed provisions based on their “discriminating appreciation” of American experience, they nevertheless chose to adopt an entirely domestic solution (famously called the “autochthonous expedient”; that is to say, a “local” or “native” solution or “one originating where it is found”; Oxford English Dictionary) of conferring federal jurisdiction on State courts through the vehicle of specific legislative power conferred by s 77(iii).  These quoted references reflect the observations of Dixon CJ at p 268 drawn from the Boilermakers’ case although the plurality actually comprised Dixon CJ, McTiernan, Fullagar and Kitto JJ:  (1956) 94 CLR 254. 

38.       Because of the autochthonous expedient of investing federal jurisdiction in State courts, it will be readily apparent to you that a State court exercising invested federal jurisdiction in relation to a given controversy might well, in the same case, be called upon to exercise a jurisdiction that “belongs to” it, to use the language of s 77(ii) of the Constitution.  The exercise of such jurisdiction, along with invested federal jurisdiction, raises “troublesome” questions.  In this context, I want to draw your attention to the following observations of Windeyer J in 1971 in Felton v Mulligan (1971) 124 CLR 367 at pp 391-394, and then the observations of the plurality (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ in LNC Industries Ltd v BMW (Australia) Ltd (“LNC v BMW”) (1983) 151 CLR 575 at 581 and 582. 

39.       Windeyer J said this in Felton v Mulligan at pp 391-394:

“I have so far left aside the troublesome question that arises when a State court exercises federal jurisdiction with which it has been invested and in the same case exercises jurisdiction that belonged to it as a State court over the same subject matter.  …  It creates an abstract almost anthological problem [a problem engaging an almost metaphysical question dealing with the nature of being; Oxford English Dictionary] [Windeyer J at this point is plainly trying to frame a phrase which might rival Dixon’s famous reference to the “autochthonous expedient”].

…

… [B]ut to me it seems that the law that a court must apply and administer, in the exercise of whatever jurisdiction pertains to it, may be derived from different sources, but that it is still, so far as any particular case is concerned, a single though composite body of law.  It is the law of the land, governing the parties in their relation to a case in hand.  The law of the land for us, I use the term in its colloquial modern sense – is made up of inherited common law principles and equitable doctrine, … Commonwealth statutes and State statutes and delegated legislation of various kinds.

[I]n some cases a litigant may base his claim either expressly on a Commonwealth statute, say the Trade Marks Act, or on some concurrent jurisdiction under State law, say to restrain passing off. 

In most cases where there is a conflict between rights, whether of appeal or otherwise, arising under federal and State law the question is resolved by s.109 of the Constitution.  In other cases it seems to me that the difficulty need not really arise.  The existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the subject of adjudication.  But once a court is duly seized for adjudication of a matter arising under a Commonwealth law, it seems to me impossible to say that it is not exercising federal jurisdiction and that the provisions of s.39(2) of the Judiciary Act are not to apply. 

Upon Federation s.5 of the Constitution Act made all valid laws made by the Commonwealth Parliament “binding on the courts, judges and people of every State and of every part of the Commonwealth”.  This and s.109 of the Constitution assured the paramountcy of federal law.  As Higgins J noticed in Lorenzo v Carey (1921) 29 CLR 243 at p 255, the effect of s 39 of the Judiciary Act was really to withdraw from State courts a jurisdiction to apply federal laws which they would have had by s.5 of the Constitution Act, and then to restore it sub modo as an invested federal jurisdiction.  This arrangement was autochthonous.  It derives its efficacy from s.77(iii) of the Constitution and involves the importation into the judicial system of Australia of the words “federal jurisdiction” and the concept they embody.” 

40.       With a view to contextually anchoring those observations to the facts, let me explain how the question of the relationship between invested federal jurisdiction and the jurisdiction of the State court which already “belonged to” it arose. 

41.       Herta Oser was married to Hans Oser.  Their marriage was dissolved by a decree of the Supreme Court of New South Wales.  The decree nisi was made in 1961 and made absolute in 1962.  The suit was instituted before the commencement of the Matrimonial Causes Act 1959-1966 (Cth) but was continued under that Act in the State court.  The Supreme Court was invested with federal jurisdiction under that Act:  s 23(2).  However, for reasons which do not need to be explained here, the application which was the subject matter of the case did not at the outset engage a matter arising under that Act as part of the applicant’s case.  Herta Oser married a man called Felton in 1962.  He died in 1966.  Hans Oser died in 1967.  Before the decree nisi was made (and at a time when the matrimonial proceedings were pending), Hans and Herta Oser entered into a deed by which Hans Oser, his heirs, executors and administrators, would pay Herta Oser, during her lifetime, a weekly sum by way of permanent maintenance (clause 4 of the deed).  Payments ceased on the death of Hans Oser in 1967.  Mrs Felton sought a declaration that she was entitled to be paid by the respondents, the executor and executrix of the estate of Hans Oser (deceased), the sums provided for by clause 4 of the deed, among other relief.  The answer to the claims for relief was said to be that the deed was void as being against public policy because it attempted to “oust” the jurisdiction of the court and that contention gave rise to a “matter arising” under the Commonwealth Act.  The “ouster” defence was upheld.  Mrs Felton sought leave to appeal to the Privy Council.  Such appeals are, of course, now long gone but this was the statutory mechanism by which such questions were removed into the High Court under a particular provision of the Judiciary Act.  That happened in relation to this application.  Thus, if the Supreme Court was exercising federal jurisdiction invested by s 39(2) of the Judiciary Act, no appeal would lie to the Privy Council by reason of the qualification contained in s 39(2)(a). 

42.       So, the question was whether the State court was exercising federal jurisdiction and, if so, what consequences arose from that circumstance.  That question gave rise to the observations of Windeyer J I have just mentioned.  Barwick CJ put the matter this way (on both issues; that is, whether federal jurisdiction would be attracted by the defendants relying on a federal Act as a source of immunity, and the consequence of federal jurisdiction having been attracted) at p 373:

“But the jurisdiction invested in the Supreme Court by the Judiciary Act may be attracted by the defence raised to the applicant’s claim for relief.  If it is, the jurisdiction which is exercised by the Supreme Court throughout the case will be federal, that is to say, part of the jurisdiction invested in the Supreme Court by the Judiciary Act, unless perhaps there is some completely disparate claim constituting in substance a separate proceeding.  …  I further agree with the view that if federal jurisdiction is attracted at any stage of the proceedings, there is no room for the exercise of a State jurisdiction which apart from any operation of the Judiciary Act the State court would have had.  In my opinion, s.109 of the Constitution, working with the Judiciary Act, ensures that there is no State jurisdiction capable of concurrent exercise with the federal jurisdiction invested in the State court.” 

43.       So, according to this thesis, once federal jurisdiction is attracted, there is no room for the exercise of a State jurisdiction which the State court would have had (that is, would have “belonged to” it) apart from the operation of s 39(2) of the Judiciary Act.  Barwick CJ is not here simply talking about the analytical source of the “authority to decide” but rather characterising the law applied in the resolution of the controversy as a result of the operation of s 39(2).  Walsh J, in the same case, took a similar view expressed in these terms at pp 412 and 413:

“Doubts have been expressed by Professor Cowen and by Professor Sawer as to the availability of s.109 to meet the problem under discussion:  …  Those writers have suggested that s.39 does not disclose an intention “to cover the field”, but, on the contrary, indicates that the intention was not to override, in all matters to which s.39(2) refers, the jurisdiction which already belonged to State courts.  But in spite of difficulties created by the manner in which s.39 has been framed, my conclusion is that the laws under which the State courts would exercise their “belonging” jurisdiction are made inoperative by s.39.  If sub-s (2) thereof had simply invested the State courts with federal jurisdiction without adding the conditions and restrictions to which the investing was expressed to be subject, there would be perhaps no conflict with any laws under which the State courts already had jurisdiction.  But when the conditions which have been attached to the grant of federal jurisdiction are considered, I think it should be held that Parliament intended that in the federal matters to which the section relates the only jurisdiction to be exercised by the State courts was to be federal jurisdiction, the exercise of which would be subject to the specified conditions.” 

44.       Earlier, I mentioned the observations of Isaacs J in Baxter concerning the similarity and difference between federal jurisdiction and State jurisdiction.  It is also important to note these observations of Griffiths CJ, Barton and O’Connor JJ (read aloud on the day by Griffiths CJ) from Baxter in the following terms at pp 1137-1138 concerning the role of the Judiciary Act in removing the jurisdiction which belonged to State courts (comprehended by s 77(ii) of the Constitution) and by s 39 of the Judiciary Act investing those courts with federal jurisdiction subject to whatever particular considerations the Commonwealth Act imposed:

“It is not necessary to decide whether before the establishment of federal Courts the State Courts were … exercising federal jurisdiction or not, for in the Judiciary Act the Parliament undertook to use the powers conferred by sec. 75.  This they did by sec. 39 of that Act, which enacts in the first place that the jurisdiction of the High Court, i.e., its power to exercise the judicial power of the Commonwealth, shall be exclusive of the jurisdiction of the several Courts of the States except as provided by that section.  Without the proviso the jurisdiction of the State Courts would have been entirely ousted.  But the Parliament might on the next day have passed another law investing the State Courts with federal jurisdiction.  And the fact that they proceeded to do so by the same Act can make no difference in the result than the fact that a power of revocation and new appointment is exercised by one instrument instead of two.

The result is that the jurisdiction of the State Courts is now derived from a new source, with all the incidents of jurisdiction derived from that new source, one of which is an appeal in all cases to the High Court.  It was contended that as the jurisdiction which the courts could exercise under the powers conferred by the State laws was co-extensive with that which they were invested by the federal Parliament, they continued to exercise State jurisdiction and not federal jurisdiction.  If the Judiciary Act had not first taken away the State jurisdiction as to these matters this consequence might or might not have followed.  But, as the enactment stands, the State jurisdiction is effectively taken away if sec. 39 is valid.” 

45.       I will return to these issues when discussing Rizeq. 

46.       I mentioned earlier that I wanted to refer you to the observations of the plurality in LNC v BMW.  This is one of the judgments that I keep in a folder of important judgments.  You will see how it touches upon the matters already discussed and matters that follow.  At pp 581 and 582, the plurality said this:

“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 (at pp 374, 382, 396, 408 and 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 CJ in that case, 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 (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.

The contracts in the present matter were concerned solely with entitlements under the Regulations.  The object of the plaintiff’s claim was identified in the statement of claim as ‘any benefit accruing’ after a certain time as a result of the utilization of a quota under the Regulations.  It is common ground that the ‘benefit’ mentioned is any ‘benefit’ which might accrue under the Regulations.  The subject matter of the contracts and of the action arose under and existed only by reason of the provisions of the Regulations and the Act in pursuance of which the Regulations were made.  The Act was of course a law of the Parliament and the Regulations were made under it.”

47.       As I mention later, since the Commonwealth Act was relied upon as the source of engaging the immunity asserted in the defence, there was a matter arising under a federal Act for the purposes of s 39(2). 

48.       We now need to turn to some particular aspects of federal jurisdiction.  The first aspect concerns s 71.  That section talks about the vesting, and investing, of the judicial power of the Commonwealth in the way earlier described. 

49.       As to “judicial power”, those words used in s 71 mean “the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.  The exercise of this power does not begin until some tribunal having power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action”.   Those observations come from a judgment of Griffith CJ as early as 1909 in Huddart, Parker& Co Pty Ltd v Moorehead 8 CLR 330 at 357.

50.       However, these elements of a controversy; impact upon life, liberty or property; and conclusiveness, must be viewed carefully because although “many attempts have been made to define judicial power, it has never been found possible to frame a definition that is at once exclusive and exhaustive”:  R v Davison (1954) 90 CLR 353 at 366, Dixon CJ and McTiernan J.  That was a case in which the power given to a bankruptcy registrar to make a sequestration order upon a debtor’s petition was held to be an exercise of judicial power, in the main because, such a step had long been regarded as an exercise of judicial power. 

51.       A more recent example is the High Court decision in Attorney-General for the Commonwealth v Alinta (2008) 233 CLR 542 (“Alinta”) in which the High Court held that a decision of the Takeovers Panel (acting under the provisions of the Corporations Act 2001 (Cth)) did not involve the exercise of judicial power fundamentally because in deciding whether to make a declaration of “unacceptable circumstances” and consequential remedial orders, the Panel was required to take into account a range of policy considerations; undertake supervisory and regulatory functions; inform itself about matters that arose for its consideration; and make its own evaluative decisions concerning the considerations according to which it would act or decline to act.  None of these things were consistent with an exercise of judicial power and thus the power conferred on the Panel was validly conferred by the Corporations Act. 

52.       At [152] in Alinta, Crennan and Kiefel JJ observed that the purpose of judicial power  involves an adjudication undertaken in order to “resolve a dispute about the existing rights and obligations of the parties by determining what they are, not in order to determine what rights and obligations should be created”.  At [153] Crennan and Kiefel JJ observed that it is “both logical and necessary” (to the exercise of judicial power) that the “right or obligation in question exists independent of, and prior to, the exercise of judicial power” and the “controversy” about the “existence” of the right or obligation “is a hallmark of a matter before the courts”.  The ascertainment of the existence of the right or obligation is “exclusively a judicial function” and in doing so the courts apply the law, not considerations foreign to it “such as policy, which is to say policy which is not the law”.  And at [155], “neither a legislative, an executive nor an arbitral function has as its purposes the ascertainment and recognition of existing rights or obligations”.  

53.       In Alinta at [88], Hayne J considered that the Panel’s task under s 657A of the Corporations Act was one of “creating new rights and obligations as between those affected by the bid” and thus (taken together with the other considerations already mentioned) the Panel’s task was not one of “the quelling of a controversy about contravention of the Corporations Act” but was better described as one of creating new rights and obligations as between the participants.

54.       Many of the cases on this issue are directed to determining whether the decision-making body is creating “new rights and obligations” or whether it is “making a binding determination of existing rights”.  The latter is truly an aspect of the exercise of judicial power.  The way in which the power is exercised has been held to be critical in determining whether an exercise of judicial power is engaged.  Apart from Alinta, I will refer you to only one other authority on this topic, Precision Data Holdings Ltd v Wills (1991) 173 CLR 167.  At 191, the Court (all seven Judges) said:  “However, where, as here, the function of making orders creating new rights and obligations is reposed in a tribunal which is not a court and considerations of policy have an important part to play in the determination to be made by the tribunal, there is no acceptable foundation for the contention that the tribunal, in this case the Panel, is entrusted with the exercise of judicial power”. 

55.       As to the element of conclusiveness, it means a decision which cannot be reopened with the purpose of trying the issues again in collateral or consequential proceedings.  It does not mean final in the sense that no appeal is possible.  The academic writers almost universally take the view that if a Tribunal has power to enforce its own decisions by some process of execution then its decisions must almost inevitably be conclusive as to fact and law, and its power would be regarded as judicial.  I refer you to the discussion in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.  It is not necessary in these observations to examine closely the structural arrangements put in place by the relevant legislation.  It is enough, for present purposes, to note that at 264 Mason CJ, Brennan and Toohey JJ observe that the legislation, “in providing for registration of a determination of the Commission and its enforcement as if it were an order of the Federal Court, purports to provide an exercise of judicial power by the Commission and that the jurisdiction conferred on the Federal Court to review a determination of the Commission does not provide a sufficient answer to this conclusion”.  In that case, Deane, Dawson, Gaudron and McHugh JJ observe at 268 that “there is one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal.  That is, the enforceability of decisions given in the exercise of judicial power”.  The provisions of the legislation, providing for the registration and enforcement of the Commission’s determinations engaged an exercise of judicial power.  As to the content of the reasoning in the context of the relevant Commonwealth legislation, see the explanation at 270-271.

56.       As to the combination of judicial and non-judicial powers, you would all, no doubt, be familiar with the principles derived from the Boilermakers’ case: R v Kirby; Ex Parte Boilermakers’ Society of Australia: (1956) 94 CLR 254.  Put simply, it stands for the proposition that a body established with the principal purpose of performing non-judicial functions cannot validly have judicial power conferred upon it even though it might be constituted on the same basis as that of a federal court.  Judicial power cannot be combined with other forms of power, subject to s 51(xxxix), the incidental power.  Thus, the combination of arbitral powers and enforcement powers was not within the competence of the Parliament as a valid law under s 51 of the Constitution because s 71 demarcates the boundary of judicial power as an independent power unable to be tied to other powers.  At 296, Dixon CJ, McTiernan, Fullagar and Kitto JJ said this:

“… it has been found impossible to escape the conviction that Chap. III does not allow the exercise of a jurisdiction which of its very nature belongs to the judicial power of the Commonwealth by a body established for purposes foreign to the judicial power, notwithstanding that it is organised as a court and in a manner which might otherwise satisfy ss 71 and 72, and that Chap. III does not allow a combination with judicial power of functions which are not ancillary or incidental to its exercise but are foreign to it.”  

57.       The second topic concerns the notion of “matters”.  Section 75 uses the term “in all matters” and s 76 uses the phrase “in any matter”.  Section 77 uses the phrase “with respect to any of the matters” mentioned in ss 75 and 76.  Although Professor Saunders has, understandably, expressed the view that the jurisprudence of the High Court on the topic of “matters” is unnecessarily complex and an odd vehicle for the development of the boundaries of federal jurisdiction, the approach to the question of the content and the width of the term “matters” and “any matter” is truly basic to an understanding of both the content and width of the jurisdiction conferred. 

58.       In summary, the “matter” in constitutional terms is the justiciable controversy between particular participants comprised of the substratum of facts (and claims, subject to what follows) representing or constituting the dispute between them.  It is not the cause of action or the particular civil wrong asserted or the combination of the causes brought by the plaintiff.  The justiciable controversy is something which subsists independently of the particular proceeding brought for its determination and is identifiable independently of it.  It will be the controversy subsisting in a combination of the underlying facts (probably, the material facts but not necessarily just the material facts as other facts based upon affidavit material may present particulars or an elaboration of the material facts), and claims.  However, the factual substratum may give rise to questions which raise issues within the controversy going beyond the scope of the claims brought for determination and particular relief.  It is the whole controversy which the Court is called upon to quell, as an exercise of the judicial power of the Commonwealth, whether the judicial power of the Commonwealth is exercised by a federal court or a State court exercising federal jurisdiction, which is “the matter”.  It is the “subject matter” for determination underlying or framed within a proceeding.  It is thus a wide engaging notion. 

59.       How did we get to this point?

60.       The starting point is a decision of the High Court in 1921 which has been affirmed many times and has not been the subject of any serious challenge: In Re The Judiciary Act 1903-1920 and In Re The Navigation Act 1912-1920: (1921) 29 CLR 257.  That was a case in which Part XII of the Judiciary Act 1903-1920 purported to confer by s 88 on the High Court jurisdiction to “hear and determine” any question referred to it by the Governor-General as to the validity of any enactment of the Commonwealth Parliament and, by s 93, to make that determination “final and conclusive and not subject to any appeal”.  The question was whether such a law was a valid exercise of the legislative power of the Commonwealth.  Owen Dixon appearing on his own and as a junior counsel for the Attorney-General for Victoria said it was not a valid law. 

61.       The Court said this at 264-267:

“What, then, are the limits of the judicial power of the Commonwealth? … Sec. 75 confers original jurisdiction on the High Court in certain matters and sec 76 enables Parliament to confer original jurisdiction on it in other matters.  Sec. 77 enables Parliament to define the jurisdiction of any other Federal Court with respect to any of the matters mentioned in secs. 75 and 76, to invest any Court of the States with Federal jurisdiction in respect of any such matters, and to define 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.  This express statement of the matters in respect of which and the Courts by which the judicial power of the Commonwealth may be exercised, is we think, clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction. 

It was suggested in argument that “matter” meant no more than legal proceeding and that Parliament might at its discretion create or invent a legal proceeding in which this Court might be called on to interpret the Constitution by a declaration at large.  We do not accept this contention; we do not think that the word “matter” in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding.

In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.  If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one.  But it cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law.  The word “matter” is used several times in Chapter III of the Constitution (secs. 73, 74, 75, 76, 77), and always, we think, with the same meaning. 

[Thus] a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law.  The adjudication of the Court may be sought in proceedings inter parties or ex parte … But we can find nothing in Chapter III of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of anybody or person being involved.” 

[emphasis added but for inter parties, ex parte]

62.       Those principles were affirmed by the High Court in 1996 in North Ganalanja Aboriginal Corporation & Anor v The State of Queensland (1996) 185 CLR 595 which involved a claim on behalf of the Waanyi People by the corporation by means of a native title determination application under s 61(1) of the Native Title Act 1993 (Cth).  A question arose as to whether a particular lease was effective (or not) to extinguish native title.  The way in which the question arose did not engage the administration of the relevant law and the claims for relief were divorced from any attempt to administer that law, in the way explained in In Re Judiciary and Navigation Acts at 266 as explained in the quoted passages above.  See especially the observations of Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ at 611 to 613.  See also an affirmation of those principles by Mason CJ, Deane, Dawson, Gaudron and McHugh JJ in Mellifont v Attorney-General for the State of Queensland (1991) 173 CLR 289 at 303. 

63.       Croome v Tasmania (1997) 191 CLR 119 illustrates another principle.  As we know, s 76(i) of the Constitution provides that the Parliament may make laws conferring original jurisdiction on the High Court in any matter arising under the Constitution or involving its interpretation.  Section 30(a) of the Judiciary Act provides that in addition to matters in which original jurisdiction is conferred on the High Court by the Constitution, the High Court shall have original jurisdiction in all matters arising under the Constitution or involving its interpretation.  Sections 122(a) and (c) and 123 of the Criminal Code (Tas) prohibited sexual intercourse between males and acts of gross indecency committed by a male with another male.  Section 4(1) of the Human Rights (Sexual Conduct) Act 1994 (Cth) provided that sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.  The plaintiffs commenced proceedings in the High Court against the State of Tasmania for declarations that ss 122(a) and (c) and 123 of the Criminal Code were inconsistent with s 4(1) and, to the extent of the inconsistency, invalid by reason of s 109 of the Constitution.  The State applied to strike out the writ and statement of claim for want of jurisdiction on the ground that there was no “matter” within s 76(1) of the Constitution and s 30(a) of the Judiciary Act. 

64.       The State of Tasmania contended that because no prosecution had been launched against either plaintiff, there was no “matter” within the meaning of s 76 of the Constitution and s 30 of the Judiciary Act which could be judicially determined in proceedings between the plaintiffs and the State and thus, there could be no federal jurisdiction engaged.  Brennan CJ, Dawson and Toohey JJ said this at pp 124 and 125:

“A ‘matter’ must be distinguished from the action or judicial proceeding which is commenced in order to obtain a determination of the controversy between the parties.  The ‘matter’ is not the proceeding but the subject of the controversy which is amenable to judicial determination in the proceeding.  Such a controversy has particular characteristics.  In In Re Judiciary and Navigation Act (at pp 265-266) the majority of the Court said:

‘In our opinion there can be no matter within the meaning of s [76 of the Constitution] unless there is some immediate right, duty or liability to be established by the determination of the Court … but [the Legislature] cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law’.

Speaking of this passage, the majority in Mellifont v Attorney-General (Q) (at p 303) said it contained ‘two critical concepts’:

One is the notion of an abstract question of law not involving the right or duty of any body or person; the second is the making of a declaration of law divorced or disassociated from any attempt to administer it.’

It is a long-standing doctrine that a ‘matter’ may consist of a controversy between a person who has a sufficient interest in the subject and who asserts that a purported law is invalid and the polity whose law it purports to be. … 

It is a misconception of the principle in In Re Judiciary and Navigation Act to suggest that, in proceedings for a declaration of invalidity of an impugned law, no law is administered unless the executive government has acted to enforce the impugned law.  The law that is being administered in such proceedings is not the impugned law but the constitutional or administrative law which determines the validity or invalidity of the impugned law. … A declaration of validity or invalidity of an impugned law administers the law governing the controversy about the impugned law.  If it were otherwise, there would be no jurisdiction in this Court to determine an action by the Attorney-General of a State for a declaration that a challenged Commonwealth law is invalid.  Yet an action of that kind is the classical vehicle for exercising the Court’s constitutional jurisdiction.” 

65.       There are two other cases to which you should have regard on this topic of whether a “matter” is engaged.  I do not propose to take you to the detail of these authorities but I encourage you to look at them.  The first authority is:  Truth About Motorways v Macquarie (2000) 200 CLR 591 and, in particular, the observations of Gleeson CJ and McHugh J at [20] and [21]; Gaudron J at [44]; Gummow J at [76]; and Hayne J at [181] to [185].  The second authority is:  Re McBain; Ex parte Catholic Bishops Conference (2002) 209 CLR 372 and, particularly, the observations of Gleeson CJ at [1] to [6], [9], [18], [20] and [25]. 

66.       It is now necessary to consider the so-called “accrued jurisdiction” (although the term is entirely inappropriate):  that is to say a jurisdiction in non-federal matters which is said to accrue to the exercise of a jurisdiction in a federal matter.  The term is inappropriate because once federal jurisdiction is engaged there remains only one matter but one in which federal jurisdiction engages the whole controversy:  that is to say, the “authority to decide” the whole controversy derives from federal jurisdiction although the content of the laws to be applied is a different question (Rizeq, to which I will return shortly). 

67.       It starts with Moorgate Tobacco Company Limited v Philip Morris Limited (1980) 145 CLR 457 (“Moorgate”).  In Moorgate, a plaintiff in the Supreme Court of New South Wales sought a declaration that it was the proprietor of certain trademarks and that the defendants were not.  The plaintiff sought an injunction restraining the defendants from using the names and from proceeding with an application to register the mark in question.  The claims for relief were based upon contract, trust, breaches of fiduciary obligations and the tort of unfair competition.  In the pleadings, the plaintiff raised the question of proprietorship, although no claim was made based on passing off.  The Court dismissed the action based on contract, trust and tort but left open the question of proprietorship for determination in opposition proceedings under the Trade Marks Act 1955 (Cth).  The plaintiff applied to the Supreme Court for conditional leave to appeal to the Privy Council in respect of the non-federal claims.  The question of whether such leave ought to be granted was removed into the High Court under s 40 of that Act.  Section 39(2) of the Judiciary Act invested, relevantly, the several courts of the States with federal jurisdiction in all matters in which the High Court had original jurisdiction or in which original jurisdiction could be conferred upon the High Court subject to a restriction that a decision of a State court shall not be subject to appeal to Her Majesty in Council:  s 39(2)(a).  The plaintiff, by raising for decision issues of proprietorship of the names and mark under the Trade Marks Act, had thereby attracted federal jurisdiction and the non-federal claims (and this is the bit that matters) were “not distinct from or unrelated to” the claims under federal jurisdiction and were therefore not “severable” from them.  A number of uncontroversial principles conditioned the observations of Stephen, Mason, Aickin and Wilson JJ at pp 476 to 483 in Moorgate.

68.       Those uncontroversial principles are these. 

69.       A matter is a matter arising under any laws made by the Parliament (s 76(ii)) if, being a right, title, duty, privilege, protection or immunity, it “owes its existence to Federal law or depends upon Federal law for its enforcement”: that comes from an iconic judgment of Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154 affirmed in Felton v Mulligan (1971) 124 CLR 367 at pp 388, 408, 409 and 416.  Also, a matter pleaded by way of defence which owes its existence to Federal law or depends upon Federal law for its efficacy (irrespective of whether any question is raised by the plaintiff/applicant engaging a right, title, duty, privilege, protection or immunity owing its existence to federal law), will attract the exercise of federal jurisdiction to the controversy and is thus a “matter arising”.  That notion goes back to 1907 in Miller v Haweis (1907) 5 CLR 89 at p 93:  see also Felton v Mulligan (1971) 124 CLR 367 at p 375, Barwick CJ; at p 388, Windeyer J; Baxter at pp 1136-1137.  

70.       In Moorgate their Honours said this at 476-481:

“The cases established that federal jurisdiction is attracted if the right or duty based in a federal statute is directly asserted by the plaintiff or defendant, but not if the federal question arises only in some incidental fashion.  So too federal jurisdiction is attracted if the court finds it necessary to decide whether or not a right or duty based in federal law exists, even if that matter has not been pleaded by the parties.  But the converse is not true.  If a federal matter is raised on the pleadings federal jurisdiction is exercised, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed of on other grounds. 

… once federal jurisdiction is attracted, it is exercised ‘throughout the case’: Felton v Mulligan (1971) 124 CLR at 373; it is not lost by subsequent disclaimer.  The disclaimer may inhibit what the court does in the exercise of its jurisdiction but it does not affect the existence of its jurisdiction. 

Although the word ‘matter’ in s 76(ii), as we have seen, has often been translated as embracing ‘right’, ‘title’, ‘duty’, ‘privilege’, ‘protection’, ‘immunity’ and ‘defence’, its content should not be confined to these terms and to what they denote.  ‘Matter’ is the subject matter for determination in a legal proceeding; in our opinion it extends to a claim that a party satisfies or does not satisfy a statutory description, whether that description is made essential to the grant of a right for which the federal statute makes provision. 

… both the pleadings and the manner in which the case was fought create the strong impression in our minds that registration of the trademark ‘Golden Lights’ was the real bone of contention between the parties.  What is more, many of the issues which arise in the case under the contract, trust and fiduciary obligation claims would have inevitably arisen for decision in the opposition proceedings.  In these circumstances, we find it impossible to conclude that the issues which arose under the Trade Marks Act were merely an ‘incidental consideration’.”

71.       Another case came along in February 1981 called Philip Morris Incorporated v Adam P Brown (1981) 148 CLR 457 (as described earlier).  Section 86 of the Trade Practices Act conferred jurisdiction on the Federal Court to hear and determine actions, prosecutions and other proceedings under Part VI of the Act and provided that the jurisdiction is exclusive of the jurisdiction of any other court other than the jurisdiction of the High Court under s 75 of the Constitution.  In two unrelated proceedings corporations sought orders against other corporations and individuals alleging contraventions of ss 52 and 53 of the Trade Practices Act and relief in respect of passing off based on the same allegations of fact.  In the second action claims were also based on unfair competition, breach of confidence, conspiracy, breach of contract, infringement of copyright and fraud based on facts which were not identical to the facts pleaded in respect of the claims under the Trade Practices Act. 

72.       The Judges adopted different formulations of the relevant test.  Gibbs and Wilson JJ said that a court which has jurisdiction in a matter arising under a law made by the Parliament may also adjudicate on any question or claim which it is “necessary to decide” in order to decide that matter.  Stephen and Mason JJ said that the Court may adjudicate on any matter which although not necessary for that decision “is not severable from that matter”.  Barwick CJ and Murphy J said the Court may adjudicate on any matter that is not separate and disparate from the matter attracting federal jurisdiction.  Thus the jurisdiction extended to the passing off claim.  In the second matter it extended to the infringement of copyright claim but not further.  Barwick CJ put the matter this way at pp 473 and 474:

“It will be necessary in order to resolve the question posed for the Court in these cases to identify and express the ‘matter’ which was before the Court in each case.  Indeed, it is frequently necessary in order to determine the range and extent of the federal jurisdiction exercisable by a court having or invested with federal jurisdiction to determine what is the ‘matter’ involved in the case.  For this purpose, the matter will not be confined to the ‘cause of action’, if any be asserted by the moving party, cause of action in the sense of a particular legal basis for the relief which is sought by the one party or, for that matter, in the case of a cross-action or counterclaim, by either of the parties. 

It is sufficient in matters in the Federal Court to assert the facts on which the plaintiff or applicant party relies and to nominate the remedies which he seeks as a consequence of the occurrence of those facts.  Nor will the nomination of particular remedies by a party necessarily indicate the extent of the matter before the Court:  nor will the issues raised by the pleadings necessarily mark out the parameters of the matter.  The identification of the matter is very much a question of substance and not of form.  The facts alleged by either or any of the parties and their consequences will in the last resort be the determinant of what is relevantly the matter. 

It is important to observe that a matter may relevantly exist which may not in itself attract federal jurisdiction.  That jurisdiction may be attracted, e.g. by some assertion made within the facts or as a consequence of them or in relation to them or, indeed, by some assertion or claim made by the opposing party or sometimes by the identity of one of the parties.  Thus, there may be circumstances in which the matter does not in substance itself attract federal jurisdiction, though that which attracts federal jurisdiction must in some way relate to the matter.

Once federal jurisdiction is attracted, it is not lost because the claim or assertion which attracted it has not been substantiated or has been displaced by some countervailing fact.  Once attracted, by whatever path attracted, the jurisdiction persists to enable the Court to resolve the matter.  The jurisdiction to do so accrues to the Court because there is a matter, in relation to which federal jurisdiction has been attracted, to be resolved.  The jurisdiction thus accrued is itself federal jurisdiction.  But, of course, it is limited to the resolution of the matter in relation to which, but not necessarily by which, the federal jurisdiction was attracted in the first instance. 

But the jurisdiction will not extend to any other matter, though that other matter might in some sense be an allied or associated matter.  To be outside the accrued jurisdiction, however, the other matter must be separate and disparate from the matter in relation to or in connection with which federal jurisdiction has been attracted.  …  But this does not involve any close confinement of the federal jurisdiction by too narrow a view of what is relevantly the matter.  The emphasis on the disparate and independent nature of what is not part of or within the matter should ensure that no narrow view is taken of the parameters of the matter.” 

73.       Barwick CJ at p 475 said this:

“It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter.  This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has in the first place attracted federal jurisdiction.  It extends, in my opinion, to the resolution of the whole matter between the parties.  This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution.  For this purpose, the court exercising federal jurisdiction may enforce rights which derive from a non-federal source.  This exercise of this jurisdiction, which for want of a better term I shall call ‘accrued’ jurisdiction, is discretionary and not mandatory, though it will be obligatory to exercise the federal jurisdiction which has been attracted in relation to the matter. 

But, I would add that there would need to be very good reasons why a court which could resolve the whole matter should refuse or fail to do so.” 

74.       Mason J put the matter this way at pp 512 and 513:

“Once it is accepted, as it must be, that there is no special magic in the scope of those matters which involve the interpretation of the Constitution, the lesson to be learned from the authorities is that the Court having jurisdiction to determine a matter falling within ss 75 and 76 giving rise to the exercise of federal jurisdiction has jurisdiction to decide an attracted non-severable claim. 

The classification of a claim as ‘non-severable’ does not necessarily mean that it is, or must be, united to the federal claim by a single claim for relief, though this is a common illustration of a non-severable claim.  The non-severable character of the attracted claim may emerge from other aspects of the relationship between the federal and the attached claim.  For example, it may appear that the resolution of the attached claim is essential to a determination of the federal question.  Likewise, it may appear that the attached claim and the federal claim so depend upon common transactions and facts that they arise out of a common substratum of facts.  In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal jurisdiction. 

In the ultimate analysis the validity of this interpretation rests on the proposition that ‘matters’ in ss 75 and 76 has the broad content ascribed to it at the turn of the century by those who were familiar with the course of events which led to the adoption of the Constitution.

It is highly unlikely that they intended to embrace a narrow technical meaning which would result in an undue fragmentation of a total controversy, leaving its resolution to decisions by both State courts and this Court or State courts and federal courts.  The probability is that they contemplated that by their dispositions they were providing for the determination either in State or federal courts of an entire controversy which the parties wished to bring to a court for resolution.” 

75.       Those tests were the subject of further consideration in 1983 in Fencott v Muller (1983) 152 CLR 570 (“Fencott”).  The important aspects of the judgment can be found in the judgment of Mason, Murphy, Brennan and Deane JJ especially from pages 602 to 609.  In Fencott a company commenced proceedings in the Federal Court as Trustee of a Unit Trust.  It operated a restaurant business on leasehold premises.  The Directors instructed real estate agents and a business broker to sell the business.  A wide range of factual matters were pleaded in relation to events and circumstances surrounding the conduct of the respondent parties.  The claim was based upon contraventions of s 52 of the Trade Practices Act and common law claims for damages for fraud, negligence and breach of contract.  In an attempt to unify these differing statements of principle, Mason, Murphy, Brennan and Deane JJ concluded that all of the non-federal claims arose out of transactions and facts, common to the federal claim and all of the claims were aspects of “the matter” constituted by a single controversy.  Because the federal claim was a substantial part of the controversy, the Federal Court had jurisdiction over all of the claims. 

76.       After quoting aspects of Moorgate Tobacco, Philip Morris and Felton v Mulligan, their Honours said this at pp 606 to 609 in Fencott:

“As Windeyer J said in Felton v Mulligan (at p 393): 

‘The existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the subject of adjudication.’

Subject to any contrary provision made by federal law and subject to  the limitation upon the capacity of non-federal laws to affect federal courts, non-federal law is part of the single, composite body of law applicable alike to cases determined in the exercise of federal jurisdiction and to cases determined in the exercise of non-federal jurisdiction. 

[Mason J’s reference in Philip Morris] to a dependence of federal and non-federal claims upon common transactions and facts approximates [the United States test] that the claims ‘must derive from a common nucleus of operative fact’.  Barwick CJ thought that that test, if applied to Ch. III of the Constitution, may be too wide because it ‘would seem to warrant an accretion of non-federal jurisdiction which is not necessary or convenient for the resolution of the case or controversy which has been the source of the federal jurisdiction in the first place, but extends to what is described as an associated matter’ [in circumstances where], in relation to s 32 of the Federal Court Act, the word ‘associated’ embraces matter which may be disparate from each other.

Perhaps it is not possible to devise so precise a formula that its application to the facts of any controversy would determine accurately what claims are disparate and what claims are not.  Whatever formula be adopted as a guide – and the formula of ‘common transactions and facts’ is a sound guide for the purpose – it must result in leaving outside the ambit of a matter [leaving aside the quoted authorities] a ‘completely disparate claim constituting in substance a separate proceeding’, a non-federal matter which is ‘completely separate and distinct from the matter which attracted federal jurisdiction’ or ‘some distinct and unrelated non-federal claim’. 

In identifying a s.76(ii) matter, it would be erroneous to exclude a substantial part of what is in truth a single justiciable controversy and thereby to preclude the exercise of judicial power to determine the whole of that controversy.  What is and what is not part of the one controversy depends on what the parties have done, the relationship between or among them and the laws which attach rights or liabilities to their conduct and relationships.  The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.  But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.

A judicial power which is not exercised to determine the whole of the controversy is, generally speaking, not appropriately and conveniently exercised.  Not appropriately, because the controversy is not quelled; not conveniently, because the parties – the principal beneficiaries of the exercise of judicial power, must litigate anew to have the outstanding questions and issues determined.  The reference by Barwick CJ in Philip Morris to what is necessary or convenient for the resolution of a federal claim is perhaps too restricted a limitation on the ambit of ‘matter’. 

The power judicially to determine the whole of a dispute is inconsistent with a limitation which would restrict the Court to resolving only the federal claim and what is necessary for that purpose.  To adopt a more restrictive approach to the ascertainment of the ambit of a matter is to ensure that the obstacles of arid jurisdictional dispute will beset the path of a party who must invoke federal jurisdiction, especially federal jurisdiction exclusively vested in a federal court pursuant to s.77(ii).” 

77.       That approach was followed in Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 294 by Mason, Brennan and Deane JJ. 

78.       Re Wakim; Ex parte McNally and Another (1999) 198 CLR 511 was concerned with the constitutional validity of what was known as the cross-vesting scheme.  Section 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) purported to confer original and appellate jurisdiction on the Federal Court with respect to matters in which the Supreme Court of New South Wales had jurisdiction other than by reason of jurisdiction invested by a law of the Commonwealth or another State.  Section 9(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) purported to authorise the Federal Court to exercise jurisdiction (whether original or appellate) conferred on it by a State law relating to the cross-vesting of State jurisdiction.  A creditor, George Wakim, of a bankrupt, Tedros Nader, commenced three separate proceedings in the Federal Court.  The first was commenced against the trustee in bankruptcy alleging that the trustee had breached statutory duties owed under s 176 of the Bankruptcy Act 1966 (Cth) in the administration of the bankrupt’s estate to the prejudice of the creditors.  The second was commenced against the solicitors acting as the legal advisers on behalf of the trustee, alleging negligence on their part.  The third was commenced against senior counsel retained by the solicitors to act on behalf of the trustee, alleging negligence on his part.  The essential contention was that each of the defendants had breached duties owed in relation to the conduct of a proceeding brought by the trustee in the Supreme Court of New South Wales against Mrs Nader which had been compromised.  The solicitors and counsel applied for a writ of prohibition on the ground that the Federal Court did not have jurisdiction in the Federal Court proceedings against them because those proceedings were distinct and unrelated non-federal claims and s 9(2) of the Commonwealth Act was invalid in its attempt to confer jurisdiction on the Federal Court that, it was said, fell outside the subject matter of ss 75 or 76 of the Constitution.  In simple terms, the High Court by Gleeson CJ, Gaudron, Gummow and Hayne JJ, held that the Federal Court had jurisdiction to hear the proceedings in negligence against the legal advisers because the three proceedings, in truth, raised a single justiciable controversy on the facts which attracted federal jurisdiction by reason of the proceedings against the trustee in bankruptcy based upon a contended contravention of s 176 of the Bankruptcy Act. 

79.       Gummow and Hayne JJ explained the reasoning in this way at [135] to [147]:

“135      It must now be regarded as established that the jurisdiction of a federal court having jurisdiction in a matter arising under a law made by Parliament is not ‘restricted to the determination of the federal claim or cause of action in the proceeding but extend[s] beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part’ [Stack v Coast Securities (No 9) Pty Ltd (1983) 1 54 CLR 261 at 290]. …

136       The decisions of this Court concerning what has been called the ‘accrued jurisdiction’ of the Federal Court have arisen in cases where the claims have been made in the one proceeding.  In the present case there are three separate proceedings.  …  It is said, however, that the claims all arise out of a single set of transactions (that set being defined to include all aspects of the conduct of the claim against Mrs Nader).  Is there, in these circumstances, a single justiciable controversy?  If there is, then the Federal Court has jurisdiction in the whole matter.

139       The central task is to identify the justiciable controversy.  In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim. 

140       In Fencott it was said that ‘in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter’.  The references to ‘impression’ and ‘practical judgment’ cannot be understood, however, as stating a test that is to be applied.  Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete.  Necessarily, then, the question will have to be decided on limited information.  But the question is not at large.  What is a single controversy ‘depends on what the parties have done, the relationship between or among them and the laws which attach rights or liabilities to their conduct and relationships’ (Fencott at p 608).  There is but a single matter if different claims arise out of ‘common transactions and facts’ or ‘a common substratum of facts’ (Philip Morris at p 512), notwithstanding that the facts upon which the claims depend ‘do not wholly coincide’ (Fencott at p 607).  So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other (Philip Morris at p 512), as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination.  Conversely, claims which are ‘completely disparate’ (Felton v Mulligan at p 373), ‘completely separate and distinct’ (Philip Morris at p 521) or ‘distinct and unrelated’ (Morgate at p 482) are not part of the same matter. 

142       Here, the three proceedings could have been joined in one.  The fact that those advising Mr Wakim chose to issue separate proceedings at different times does not mean that the scope of the controversy is limited to the matters raised in the first proceeding. 

147       The cases arise out of one set of events.  Of most significance is the fact that the damage which Mr Wakim alleges he has suffered as a result of what he says are the various breaches of duty by the Official Trustee, the solicitors and Mr Darvall is, in each case, the loss of what he might have recovered in the bankruptcy had the claims against Mrs Nader been prosecuted differently.  There is, then, but a single claim for damages that he seeks to pursue against each of the parties he has sued.  And judgment and recovery against one will diminish the amount that may be recovered from the others.  There is, in these circumstances, that common substratum of facts in each proceeding of which Mason J spoke in Philip Morris (at p 512) [and of which the plurality spoke in Fencott at pp 604-605] and it is the existence of the common substratum that leads to the conclusion that the three proceedings raise a single justiciable controversy.  Accordingly, the proceedings against the solicitors and Mr Darvall are within the jurisdiction of the Federal Court.” 

80.       See also Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251.  In that case a passenger on a charter flight in the Northern Territory was killed when the aircraft in which he was travelling crashed.  His widow commenced proceedings in the Supreme Court of Victoria claiming damages against the carrier.  The statement of claim alleged certain material facts and pleaded negligence in breach of contract but did not invoke a claim for damages under the Commonwealth Civil Aviation (Carriers’ Liability) Act 1959.  The filing of the statement of claim and the carrier’s defence occurred within two years of the date of the crash.  The Act contained a limitation period of two years for bringing claims under the Act.  After that time the applicant widow applied to amend her claim to place reliance on the Act.  The carrier denied that any claim had been bought on the face of the pleading and contended that the limitation period had expired and by reasons of a State Act and the procedural rules of the Victorian Supreme Court, it was not now possible to amend her claim to invoke liability under the Carriers’ Act.  Section 39(2) of the Judiciary Act invested the Supreme Court of Victoria with jurisdiction to hear and determine a controversy concerning the existence and enforcement of rights and duties under the Carriers’ Act and that Act displaced inconsistent State and Territory laws by operation of s 109 of the Constitution.  In that context, Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ said this at [29] and [32]:

“29        It is well settled that a ‘matter’ means more than a legal proceeding and that ‘an important aspect of federal judicial power is that, by its exercise, a controversy between parties about some immediate right, duty or liability is quelled’ (Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at [242]).  Further, federal jurisdiction may be attracted at any stage of a legal proceeding, as Barwick CJ emphasised in Felton v Mulligan (at p 373).  Indeed, as early as 1907, this Court had remarked that federal jurisdiction may be raised for the first time in a defence (Baxter at p 1136).  … 

32         Whether federal jurisdiction with respect to one or more of the matters listed in ss 75 and 76 of the Constitution has been engaged in a legal proceeding is a question of objective assessment.  If a party on either side of the record relies upon a right, immunity or defence derived from a federal law, there is a matter arising under s 76(ii) of the Constitution.  It is not a question of establishing an intention to engage federal jurisdiction or an awareness that this has occurred.  Immediate ascertainment of the factual basis of a justiciable controversy and of the attraction of federal jurisdiction in a proceeding will not always be possible by regard simply to allegations pleaded.  If the attraction of federal jurisdiction itself is disputed, it may require evidence of the factual basis of the controversy to permit an answer to that question.  …”

81.       So, it is not necessary for the form of relief or the cause of action to owe its nature or existence to a federal law.  Even if the cause of action or relief claimed is not created or provided for by federal law, if a federal statute is relied upon as giving a right sought to be vindicated or as the source of a defence then the controversy in which that defence arises becomes or is “a matter arising under federal law”.  Also, if a question under federal law is to be determined as a step along the way as one way of vindicating the position of someone involved in the controversy, that will create a matter arising under federal law:  Felton v Mulligan at p 375 and Moorgate Tobacco at p 476. 

82.       Also, a controversy constituting a “matter” may exist prior to the commencement of proceedings and the controversy may bear a federal character such as an application for preliminary discovery to the Federal Court in relation to a controversy engaging a federal question before any suit on the question was filed.  The anticipated proceeding in connection with that controversy would support an application for preliminary discovery as a matter arising for the purposes of s 39B(1A)(a)(c).  As to that, in The State of South Australia v The State of Victoria (1911) 12 CLR 667, Griffiths CJ observed at 675 that:  “The word ‘matters’ was in 1900 in common use as the widest term to denote controversies which might come before a Court of justice”. 

83.       Historically there has been a distinction between the task of a court in interpreting a federal law and a matter arising under a federal law.  The first notion was thought to not necessarily attract federal jurisdiction and the second, of course, does.  That matter is discussed by Gibbs J in Felton v Mulligan at 416.  In LNC v BMW, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ at 581 accepted that:  “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”, citing Felton v Mulligan.  That 1983 decision may not now sit comfortably with the observations in Re Wakim at [136] to [143]. 

84.       In Abebe v The Commonwealth, (1999) 197 CLR 510 at [140], Gummow and Hayne JJ at [140] observed that the justiciable controversy then before the Court answered the description of a matter arising under a law made by the Parliament within the meaning of s 76(ii) of the Constitution because the determination of the controversy involved the interpretation of the Act and the rights or duties in question in the matter owed their existence to the Statute.

85.       As to the associated jurisdiction s 32 of the Federal Court Act provides that to the extent that the Constitution permits, jurisdiction is conferred on the court in matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the court is invoked.  Chief Justice Allsop has described the operation of that section in this way ((2002) 23 Australian Bar Review 29 at pp 47 and 48):

“Though related, in a sense, to the question of the extent of the controversy or ‘accrued’ jurisdiction, s 32 provides for a conferral of jurisdiction in other federal matters not otherwise conferred, but available to be conferred, if there is conferral of some jurisdiction.  Thus, if there is conferred by Commonwealth Statute X of some federal jurisdiction, and jurisdiction under Topic Y could be conferred on the Federal Court (by reference to ss 75 and 76 of the Constitution) but has not been so conferred and it is associated with the matter conferred by Statute X, s 32 confers jurisdiction on the Court in respect of Topic Y for the disposition of the controversy.”

Rizeq v The State of Western Australia

86.       You will recall that s 75(iv) of the Constitution confers original jurisdiction upon the High Court in all matters between a State and resident of another State and s 39(2) of the Judiciary Act provides that the several courts of the States are invested with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it except as provided by s 38.  Such courts are, of course, invested with federal jurisdiction within the limits of their several jurisdictions whether such limits are as to locality, subject-matter or otherwise. 

87.       Mr John Rizeq was a resident of the State of New South Wales.  The State of Western Australia, through its Director of Public Prosecutions, indicted Mr Rizeq on two charges of offences against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (“Misuse of Drugs Act”), in the District Court of Western Australia.  Because Mr Rizeq was a resident of New South Wales and was engaged, in the District Court, in a matter between the State of Western Australia and himself, in circumstances where the District Court was invested with federal jurisdiction in that matter, the District Court was exercising federal jurisdiction in the matter.  After a trial by a jury of 12 persons, the jury was unable to reach a unanimous verdict on either charge.  The decisions of 11 of the 12 jurors were taken by the District Court to be verdicts of guilty under s 114(2) of the Criminal Procedure Act 2004 (WA).  Accordingly, Mr Rizeq was convicted of both offences before the District Court. 

88.       Mr Rizeq sought leave to appeal against those convictions to the Court of Appeal of the Supreme Court of Western Australia.  The Court of Appeal granted leave to appeal on two grounds but dismissed the appeal.  Mr Rizeq was granted special leave to appeal to the High Court from the dismissal of his appeal to the Court of Appeal on one of those grounds agitated before the Court of Appeal. 

89.       There was no contest as to the proposition that the District Court was exercising federal jurisdiction in conducting the trial and entering the convictions. 

90.       The argument before the High Court was that because the District Court was exercising federal jurisdiction in the trial, Western Australian law was incapable of valid application to the determination of Mr Rizeq’s criminal liability in that trial.  The argument was that s 6(1)(a) of the Misuse of Drugs Act could not, and therefore did not, apply “as a law of Western Australia”.  The argument was that, instead, the jurisdiction which would have been exercised by the District Court of Western Australia under the Misuse of Drugs Act as a jurisdiction “belonging to” that court was withdrawn from it and gathered up and applied as a law of the Commonwealth which, seems to have been suggested to be, a consequence of the exercise of federal jurisdiction taken together with the enabling application effect of s 79 of the Judiciary Act. 

91.       As I mentioned earlier, s 79 of the Judiciary Act is an “application of laws” provision which says, relevantly, that the laws of each State, including the laws relating to procedure, evidence and the competency of witnesses, shall be, except as otherwise provided by the Constitution or the laws of the Commonwealth, binding on all courts exercising federal jurisdiction in the relevant State, in all cases to which they are applicable.  The contention was that because s 6(1)(a) of the Misuse of Drugs Act was picked up or gathered up by s 79 and applied “as a law of the Commonwealth”, the trial on the indictable offences became a trial on indictment of an offence against a law of the Commonwealth for the purposes of s 80 of the Constitution. 

92.       Section 80 provides, relevantly, that the trial on indictment of any offence against “any law of the Commonwealth” shall be by jury, and every such trial shall be held in the State where the offence was committed.  Importantly, the verdict of the jury must be unanimous.  If an exercise of federal jurisdiction by the District Court in conjunction with s 79 of the Judiciary Act had the effect of gathering up s 6(1)(a) of the State Act and applying it as a “law of the Commonwealth”, Mr Rizeq could not have been convicted of either offence based on the decisions of 11 of the 12 jurors. 

93.       As to those arguments, the plurality (Bell, Gageler, Keane, Nettle and Gordon JJ) at [40] said that the short answer to Mr Rizeq’s argument is that s 6(1)(a) of the Misuse of Drugs Act applied to impose criminal liability upon him as a law of the State of Western Australia at the time of his offences and continued to apply to govern his criminal liability notwithstanding that the jurisdiction subsequently exercised by the District Court to resolve the controversy between him and the State of Western Australia about both the existence and consequences of that criminal liability was federal jurisdiction.  At [41], the plurality says that notwithstanding that the District Court was exercising federal jurisdiction in conducting the trial and entering the convictions, s 79 of the Judiciary Act was “not needed, and was not engaged” to pick up and apply the text of s 6(1)(a) of the Misuse of Drugs Act “as a law of the Commonwealth”.  The trial was, and remained, a trial of offences against a law of the State of Western Australia and not of offences against a law of the Commonwealth.  Thus, s 80 of the Constitution had no application. 

94.       However, the plurality observe at [42] that because the District Court was exercising federal jurisdiction in conducting the trial of the controversy between the State and Mr Rizeq, s 79 of the Judiciary Act was needed and was engaged to gather up and apply the text of s 114(2) of the Criminal Procedure Act 2004 (WA) as “a law of the Commonwealth”.  As a consequence, the decisions of 11 of the 12 jurors were properly taken by the District Court to be verdicts of guilty because s 79 of the Judiciary Act, as an application of laws provision, had the effect of applying the State law with respect to procedure as a law binding on the District Court exercising federal jurisdiction in the State of Western Australia, as a law of the Commonwealth.

95.       In order to reach that position, the plurality sought to explain what it described as “some very basic observations about the structure of the Constitution”. 

96.       Thus, the question is, to what extent in its analysis of these basic notions, has the plurality altered any of the earlier learning as described so far in these remarks.  

97.       I will now set out a series of propositions which emerge from the reasons of the plurality. 

98.       The Constitution preserves the Constitutions of the States (s 106) subject to the Commonwealth Constitution, and the powers of each State Parliament to make laws are saved and sustained (by s 107) except to the extent such powers are “exclusively vested” in the Commonwealth Parliament or “withdrawn from the Parliament of a State” (s 107).  The paramountcy of Commonwealth law, to the extent of any inconsistency between a valid law of the Commonwealth and a valid law of a State Parliament is brought about by s 109. 

99.       The “overall result” is that the laws made by the Commonwealth Parliament and the laws made by the Parliaments of the States form “a single though composite body of law”.  This notion, is consistent with the observations I have mentioned of Windeyer J in Felton v Mulligan quoted earlier at point 39. 

100.    Chapter III makes provision for an “integrated national court system” (to use the language of Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 138. 

101.    Chapter III, in so doing, does nothing to “undermine” the “singularity” or “integrity” of the “composite body of Commonwealth and State law” provided for by Chapter I (the Parliament) and Chapter V (the States) of the Constitution. 

102.    The distinction drawn by Chapter III between federal jurisdiction and the jurisdiction s 77(ii) describes as that which belongs to the States is a distinction as to the “available sources of authority to adjudicate” controversies arising under that composite body of law.  This observation of the plurality is particularly reminiscent of the remarks of Isaacs J in Baxter quoted earlier at point 11. 

103.    Federal jurisdiction capable of being vested in a State court under s 77(iii) or conferred on a federal court under s 77(i) is to be understood as “authority to adjudicate” on any of the five categories of subject matter in s 75 or the four categories of subject matter in s 76 recognising that the Parliament can, under s 77(ii) define the extent to which the jurisdiction of any federal court is to be exclusive of State jurisdiction.  This notion is consistent with Baxter as described at point 11 in these remarks and Felton v Mulligan described at point 39. 

104.    The “authority to adjudicate” comprised in the conferral of federal jurisdiction is authority to exercise, within the limits of the subject matter of ss 75 and 76, the s 71 judicial power of the Commonwealth vested in the High Court, in other federal courts as might be created and in such other courts as the Parliament invests with federal jurisdiction. 

105.    Importantly, the existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than the “law to be applied” or the “subject matter of adjudication”.  This observation is drawn from the remarks of Windeyer J in Felton v Mulligan at p 393 (quoted at point 39 of these observations).  The statement of Windeyer J was approved by the plurality in Fencott v Muller (quoted at point 76 of these observations). 

106.    Thus, at [55], the plurality said this:

“Thus, it is commonplace that resolution of a matter within federal jurisdiction may involve application both of Commonwealth law and of State law.  Indeed it can happen that a matter in federal jurisdiction is resolved entirely through the application of State law.  Application of State law in federal jurisdiction came for a period to be described, ‘[f]or want of a better term’, as ‘accrued jurisdiction’.  There is ‘no harm in the continued use of the term “accrued jurisdiction” provided it be borne in mind … there [is] but one “matter” (Houghton v Arms (2006) 225 CLR 553 at 564, [26]-[27])’.  However, the imprecision the term introduces into the word ‘jurisdiction’ means that the term is best avoided.  There is but one matter and that matter is entirely within federal jurisdiction, as distinct from State jurisdiction.”

[emphasis added]

107.    At [56], the plurality pointed out the reductionist “simple constitutional truth” in these terms:

“The simple constitutional truth is that State laws form part of the single composite body of federal and non-federal law that is applicable to cases determined in the exercise of federal jurisdiction in the same way, and for the same reason, as they form part of the same single composite body of law that is applicable to cases determined in the exercise of State jurisdiction – because they are laws.

[emphasis added]

108.    There is a general incapacity of a State law to affect the exercise of federal jurisdiction by a State court because there is a general incapacity of any Parliament other than the Parliament of the Commonwealth to affect the exercise of federal jurisdiction conferred by or invested under Chapter III of the Constitution.  That follows because Chapter III is “at once empowering and limiting”.  Although the Commonwealth Parliament alone has power to vest federal jurisdiction, it has no power other than that conferred by ss 76 and 77 of the Constitution.  Only the Commonwealth Parliament has the power to regulate the exercise of federal jurisdiction, but has no such power other than that conferred by the scope of the incidental power contained in s 51(xxxix):  at [58] and [59]. 

109.    State Parliaments have no power to add to or detract from federal jurisdiction and the explanation for that incapacity “is that it is the result of an absence of State legislative power correlative to the exclusionary operation of Chapter III of the Constitution”. 

110.    Just as State Parliaments have no power to add to or detract from federal jurisdiction, State Parliaments have no power to enact a law commanding a court as to the manner of exercise of federal jurisdiction conferred on or invested in that court.  That follows because the entire subject-matter of the conferral and the exercise of federal jurisdiction is a subject-matter of legislative power which is exclusively vested in the Commonwealth Parliament. 

111.    The consequence of these propositions at points 109 and 110 is that the incapacity of a State Parliament to enact a law which governs the exercise of federal jurisdiction by a court, whether it be a federal court or a State court, explains the need for s 79 of the Judiciary Act and is the “key” to understanding the nature and extent of its operation.  The plurality said this at [63]:

“Section 79 is a law, enacted under s 51(xxxix) of the Constitution, which serves to ensure that the exercise of federal jurisdiction is effective.  The section fills a gap in the law governing the actual exercise of federal jurisdiction which [gap] exists by reason of the absence of State legislative power.  The section fills the gap by picking up the text of a State law governing the exercise of State jurisdiction and applying that text as a Commonwealth law to govern the manner of exercise of federal jurisdiction.  The section has no broader operation.”

[all emphasis added]

112.    Thus, s 79, so construed, has a “narrow but important operation”:  at [64]. 

113.    As to the relationship between s 39(2) and s 79 of the Judiciary Act, s 39(2) has, as a matter of orthodoxy, been regarded as manifesting a legislative intention to cover the field of jurisdiction with respect to matters within the categories of matters set out in s 76 of the Constitution to the exclusion of State jurisdiction.  The settled view is that in a matter which would otherwise be within the jurisdiction of a State court, which answers the description of “a matter” within s 75 or s 76 of the Constitution, the State court is invested with federal jurisdiction under s 39(2), with respect to the particular matter, to the exclusion of State jurisdiction, by operation of s 109 of the Constitution because s 39(2), with respect to that matter, “covers the field”:  at [67]. 

114.    The plurality recognise that some doubts have “regrettably” arisen in relation to the construction and operation of s 79 of the Judiciary Act:  at [39].  However, the modern interpretation and construction to be attributed to s 79 as identified by the plurality at [63] and quoted at point 111 began in 1953 with the decision of Dixon CJ, Williams, Webb, Fullagar and Kitto JJ in Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168 at p 170 where their Honours identified the purpose as being one of adopting the law of the State where federal jurisdiction “is exercised as the law by which, the rights of the parties to the [proceeding] are to be ascertained and matters of procedure are to be regulated, except as the Constitution or federal law may otherwise provide”. 

115.    Those observations, of course, beg the question of the meaning of the term “adopt” and whether “the law of the State” was intended to refer to the whole or some part of the law of the State.  However, the plurality observe that two aspects of that matter are tolerably clear.  First, s 79 operates to take “the text of State law and to apply that text as Commonwealth law”.  Second, s 79 operating in that way, does not alter the meaning of the text of the State law other than to make that text applicable to a federal court exercising jurisdiction in the State even though the State law on its proper construction applies only to a State court:  at [81]. 

116.    The question of just which laws of a State upon which s 79 will so operate was a matter addressed by Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ in Solomons v District Court (NSW) (2002) 211 CLR 119 (“Solomons”) at p 134 [23].  Section 79 in Solomons was held to have no application to State laws which are not “binding” on State courts and because the State laws were not binding, s 79 was inapplicable and did not render the State laws as Commonwealth law provisions.  Just what is captured within s 79’s description of State laws which are “binding” on a court is given some clarity by reference to the express words of the section “laws relating to procedure, evidence, and the competency of witnesses”.  However, these words are words of inclusion not words of limitation and thus, the plurality recognised that there could be no meaningful distinction between laws of “substance” and laws of “procedure”.  That led the plurality to say this at [84]:

“More useful in delimiting the scope of operation of s 79 is the basic distinction between the “jurisdiction” of a court, in the precise and technical sense in which that term is used in Ch III in referring to federal jurisdiction and distinguishing it from State jurisdiction, and a ‘power’ that a court is required or permitted to exercise in the execution of jurisdiction.” 

[emphasis added]

117.    The plurality recognise that characteristically, an exercise of jurisdiction is attended by an exercise of power.  They say that by making State laws that are “binding” on courts also binding on courts exercising federal jurisdiction, s 79 of the Judiciary Act takes the text of State laws conferring or governing powers that State courts have when exercising State jurisdiction and applies that text as Commonwealth law to confer or govern powers that State courts and federal courts have when exercising federal jurisdiction.  At [90], the plurality said this:

“Relating the purpose identified in Owens [No 2] to the limitation on State legislative power which arises from the exclusory operation of Ch III of the Constitution allows the class of State laws on which s 79 operates to be delineated with more precision.  The purpose is fulfilled by aligning s 79’s description of State laws as ‘binding’ on courts with the gap in the law governing the exercise of federal jurisdiction which exists absent other applicable Commonwealth law by reason of the absence of State legislative power to govern what a court does in the exercise of federal jurisdiction.  That is how it should be read.”

[emphasis added]

118.    As to that alignment, as a matter of construction, the Court also said this at [91]:

“That alignment brings s 79 comfortably within the ambit of the legislative power conferred on the Parliament of the Commonwealth by s 51(xxxix) of the Constitution.  Filling the gap in which State law cannot govern the exercise of federal jurisdiction by a federal court or a State court, by doing no more than applying as Commonwealth law with its meaning unchanged the text of State law governing the exercise of State jurisdiction, s 79 goes no further than is reasonably necessary ‘to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself’ (Northern Territory v GPAO (1999) 196 CLR 553 at 588 [80])”. 

119.    And finally, the plurality observe that the resulting confinement of the operation of s 79 to an area in which there is an absence of State legislative power also provides a straightforward answer to the difficult question of the relationship between s 79 of the Judiciary Act and s 109 of the Constitution.  They say that within the field in which s 79 operates, State laws have no valid application and s 109 of the Constitution, for that reason, simply has no operation:  at [92]. 

120.    In the result, the plurality took this view.  Within the limits of State legislative capacity, State laws apply in federal jurisdiction as valid State laws unless and to the extent that they are rendered invalid by reason of inconsistency with Commonwealth laws.  What State laws relevantly cannot do, within the limits of State legislative capacity, is govern the exercise by a court, of federal jurisdiction.  A State law can determine neither the powers that a court has in the exercise of federal jurisdiction nor how or in what circumstances those powers are to be exercised.  A State law cannot, in that sense, “bind” a court in the exercise of federal jurisdiction.  That is the sense, as a matter of construction, in which the word “bind” is used in s 79 of the Judiciary Act.  The operation of s 79 is limited to making the text of the State laws, of that nature, apply as Commonwealth law to bind a court in the exercise of federal jurisdiction.  The application of s 114(2) of the Criminal Procedure Act 2004 (WA) (which enabled the decisions of 11 of the 12 jurors to be taken by the District Court to be verdicts of guilty) to a Western Australian court exercising federal jurisdiction is beyond the competence of the State Parliament.  Section 114(2) is properly interpreted and construed as applying to a Western Australian court only when that court is exercising Western Australian jurisdiction.  The text of s 114(2) is applied, as a Commonwealth law, to a Western Australian court when exercising federal jurisdiction through the operation of s 79 of the Judiciary Act, except as otherwise provided by the Constitution or by some other Commonwealth law.  That is what occurred in the trial of Mr Rizeq, there being no provision of the Constitution or of any other Commonwealth law preventing its application. 

121.    Section 6(1)(a) of the Misuse of Drugs Act 1981 (WA), in contrast, is a law having application “independently of anything done by a court”.  It is squarely within State legislative competence and outside the operation of s 79 of the Judiciary Act.  It thus applied in the trial of Mr Rizeq as Western Australian law just as it applied to him before any court was called upon to exercise jurisdiction in relation to the charges brought against him. 

122.    In these observations, I have not had time to address the reasons of Chief Justice Kiefel or the reasons of Edelman J.  However, it should be noted that Edelman J took the view that the laws to which s 79 refer are only those statutory laws which govern or regulate the powers that a court exercises as part of its authority to decide the controversy and does not apply to those statutory laws which confer powers on courts. 

Burns v Corbett [2017] NSWCA 3; (2017) 316 FLR 448 (“Burns”)

123.    This is a recent decision of the New South Wales Court of Appeal in which Leeming JA gave the judgment with Chief Justice Bathurst agreeing and President Beazley also agreeing.  The decision concerns the question of whether the New South Wales Civil and Administrative Tribunal (the “Tribunal”) could exercise, by force of s 39(2) of the Judiciary Act, federal jurisdiction to hear and determine matters falling within one of the classes of subject matter identified in ss 75 and 76 of the Constitution.  It was common ground that the Tribunal was not a court of the State of New South Wales for the purposes of Chapter III of the Constitution and was exercising “State judicial power” in resolving the plaintiff’s complaints.  The Court determined that the Tribunal did not have jurisdiction to resolve those complaints, on the footing that s 39 of the Judiciary Act had the effect of denying, by operation of s 109 of the Constitution, any State jurisdiction in State courts when determining any of the matters identified in ss 75 or 76 of the Constitution.  The relationship between s 39 of the Judiciary Act, s 79 of that Act and, more particularly, ss 75, 76, 77, 106, 107 and 109 of the Constitution are, as mentioned, addressed extensively in Rizeq.  Not surprisingly, the Commonwealth in the appeal from this decision to the High Court is seeking to support the decision on quite different grounds.  The submissions of the Commonwealth have been uploaded to the High Court website and are therefore available to be read.  In the result, the Court of Appeal determined that a State tribunal which is not “a court of a State” is unable to exercise judicial power to determine matters between residents of different States (s 75(iv)) because the State law which purports to authorise the Tribunal to so act is inconsistent with s 39(2) of the Judiciary Act.  The Court of Appeal also determined that neither the text nor structure of the Constitution implies that a State tribunal cannot determine matters falling within the subject matter of ss 75 and 76.  These conclusions are now all before the High Court.  It is likely that the High Court, on the notice of contention filed by the Commonwealth, will uphold the decision on the grounds identified in Rizeq rather than the articulated grounds in Burns.