Hostname: page-component-745bb68f8f-mzp66 Total loading time: 0 Render date: 2025-02-04T20:45:40.144Z Has data issue: false hasContentIssue false
  • English
  • Français

State Jurisdictional Residue: What Remains to a State Court When Its Chapter III Functions are Exhausted?

Published online by Cambridge University Press:  01 January 2025

Helen Irving
Helen Irving*
Affiliation:
Faculty of Law, The University of Sydney.
Get access Rights & Permissions [Opens in a new window]

Abstract

Momcilovic v The Queen (2011) 245 CLR 1 provided the first opportunity for the High Court of Australia to consider the constitutional validity of a ‘declaration of inconsistent interpretation’ made under s 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Court's ruling on this point attracted attention going well beyond the rest of the case. The constitutional status of the Charter's ‘declaration’ function had long been uncertain; in addition, although the case concerned a conviction under State law, the judgment of the Victorian Court of Appeal, from which Ms Momcilovic's appeal had come to the High Court, had been exercised in federal jurisdiction. This, then, raised questions about the extent to which the State Court was jurisdictionally limited, under the Kable doctrine, by its ‘identity’ as a Ch III court: whether the declaration power could be exercised by both, either, or neither, a State or federal court. Notably, French CJ found the power valid for a State court, but invalid for a federal court. In explaining his conclusion, the Chief Justice identified what this paper calls ‘State jurisdictional residue.’ In his Honour's words, ‘there is no reason in principle why the Court of Appeal, having exhausted its functions in the exercise of its federal jurisdiction … could not proceed to exercise the distinct non-judicial power conferred upon it by’ the Charter. Further questions were then raised about the extent to which a State court, albeit exercising federal jurisdiction, remains free to exercise a ‘residual’ State power relevant to the same proceedings. This paper considers such questions. It also asks what the case might be for reconsidering Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, particularly in light of the more recent judgment in Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

Type
Article
Information
Federal Law Review , Volume 42 , Issue 1 , March 2014 , pp. 1 - 22
Copyright
Copyright © 2014 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 (2011) 245 CLR 1 ('Momcilovic’).

2 The accused, Ms Momcilovic, was a resident of Queensland at the time of her trial in Victoria, and federal jurisdiction was therefore engaged.

3 Momcilovic (2011) 245 CLR 1, 70.

4 The Chief Justice explained that s 79 ‘does not pick up a provision conferring non-judicial functions on a court which are not incidental to its judicial function’: ibid.

5 (1996) 189 CLR 51 ('Kable’).

6 For a summary of the different components or ‘limbs’ of the Kable incompatibility test as it has evolved, see Suri Ratnapala and Jonathan Crowe, ‘Broadening the Reach of Chapter III: The Institutional Integrity of State Courts and the Constitutional Limits of State Legislative Power’ (2012) 36 Melbourne University Law Review 175.

7 Momcilovic (2011) 245 CLR 1, 70 (emphasis added).

8 (1971) 124 CLR 367 ('Felton’).

9 Ibid 391.

10 Ibid 392.

11 Will, Bateman and James, Stellios, ‘Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights’ (2012) 36 Melbourne University Law Review 1Google Scholar.

12 Ibid 31.

13 Ibid.

14 (2011) 245 CLR 1, 222, quoted in ibid 32.

15 The case law concerning non-federal claims arising in cases covered by federal law is discussed at length by Will Bateman, ‘Federal Jurisdiction in State Courts: An Elaboration and Critique’ (2012) 23 Public Law Review 245.

16 (1996) 189 CLR 51, 95.

17 (1971) 124 CLR 367, 373.

18 (1975) 134 CLR 298.

19 Ibid 327.

20 Ibid 328.

21 (1999) 198 CLR 511.

22 Bateman, above n 15, 260.

23 Indeed, the declaration was made eight days after the Court of Appeal refused leave to appeal against the conviction. As Bateman and Stellios observe, ‘The Chief Justice's suggestion seems to be that federal jurisdiction came to an end following the application of the [Charter's] interpretative rule and upon the refusal of leave to appeal, and that state jurisdiction kicked in upon the making of the declaration': Bateman and Stellios, above n 11, 30.

24 Momcilovic (2011) 245 CLR 1, 70.

25 Momcilovic (2011) 245 CLR 1, 65.

26 As Gummow J noted, it remains unresolved whether this arises under s 32(1) ‘even in the absence of a point under the Charter being taken by a party before it': ibid 90.

27 As set out in ss 36(1)(a)–(c).

28 Momcilovic (2011) 245 CLR 1, 65; Charter s 37. In the event, the Victorian Government was not required to respond, because a majority had found that the declaration was either invalid or had been made inappropriately on this occasion.

29 (1999) 197 CLR 510 ('Abebe’).

30 Ibid 525.

31 Re Judiciary and Navigation Acts (1921) 29 CLR 257.

32 For the Chief Justice, the fact of its being made after the disposition of the proceedings appears relevant to its ability to affect rights and liabilities and therefore its characterisation as non-judicial, although it is not clear how determinative this fact was, as distinct from the other elements of the characterisation of the declaration as non-judicial: it did, however, appear significant to his Honour's conclusion that the declaration function could be performed independently of the exercise of federal jurisdiction, as a ‘mechanism by which the Court can direct the attention of the legislature, through the Executive Government of Victoria, to disconformity between a law of the State and a human right set out in the Charter': (2011) 245 CLR 1, 67.

33 Quoting Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 613 (Gaudron J): ibid 64.

34 Re Judiciary and Navigation Acts (1921) 29 CLR 257, 265.

35 Helen, Irving, ‘Advisory Opinions, the Rule of Law, and the Separation of Powers’ (2004) 4 Macquarie Law Journal 105Google Scholar.

36 (1921) 29 CLR 257.

37 Momcilovic (2011) 245 CLR 1, 62. French CJ also draws attention to this distinction in Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 (14 March 2013) [22] ('Pompano’).

38 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 stands for the proposition that the Commonwealth Parliament cannot confer judicial functions on a body that is not a Chapter III court, or confer non-judicial functions on a Chapter III court (except as incidental to the exercise of the judicial power of the Commonwealth): see Linda Kirk, ‘Boilermakers’ Case’ in Michael Coper, Tony Blackshield, and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 65.

39 (2004) 223 CLR 513 ('Baker’).

40 (2010) 242 CLR 1 ('Totani’).

41 Ibid 156.

42 (2011) 243 CLR 51 ('Wainohu’).

43 Momcilovic (2011) 245 CLR 1, 92.

44 Ibid 94.

45 Ibid 95.

46 Ibid 95–6.

47 (1996) 189 CLR 1 (‘Wilson’).

48 Gummow J added that, while Wilson concerned the conferral of a non-judicial function on a federal judge as persona designata, Wainohu had applied this principle to a State Supreme Court: see Momcilovic (2011) 245 CLR 1, 96.

49 Momcilovic (2011) 245 CLR 1, 86, quoting Re Judiciary and Navigation Acts (1921) 29 CLR 257, 265–6.

50 Momcilovic (2011) 245 CLR 1, 185.

51 (2010) 239 CLR 531 (‘Kirk’).

52 Momcilovic (2011) 245 CLR 1, 185.

53 =Ibid 201.

54 Ibid 207, 222.

55 Ibid 207.

56 Ibid 222.

57 Ibid.

58 Ibid 224.

59 Ibid 225.

60 Ibid 226.

61 Ibid 227. Crennan and Kiefel JJ, however, found the declaration power to have been inappropriately made in this case. In contrast to Gummow J, who questioned the ‘perception and public confidence’ dimension of the institutional integrity test, their Honours highlighted this dimension. They stated that, against the raised expectations encouraged by the Charter, ‘[t]he making of a declaration placed the Court of Appeal in a position where it acknowledged that the trial process conducted by the County Court involved a denial of the appellant's Charter rights': at 228. Indeed, they questioned the appropriateness, generally, of a declaration made in the context of a criminal trial, and suggested that it may ‘[u]ndermine a conviction.’ Nevertheless, they concluded, the declaration had ‘utility in other spheres,’ and did not in itself impair the institutional integrity of the courts: at 229.

62 As Bateman points out, the majority in Fencott v Muller (1983) 152 CLR 570, 607–8 held that severability of a non-federal claim from a federal matter is subject to very stringent tests, including that the claim must be ‘completely disparate', and ‘completely separate and distinct': Bateman, above n 15, 255.

63 The fact of being invested with federal jurisdiction under s 39(2) of the Judiciary Act and the appealability of a Supreme Court's judgments to the High Court, under s 73 of the Constitution, suggest two different pathways to the ‘integrated exercise’ explanation. If we follow the second, no State judgment, decree, order or sentence can be made if it is incapable of being appealed to the High Court (as the declaration power was held to be in Momcilovic). In this event, only State ‘residual’ functions that did not involve a judgment, decree, order or sentence, might fall outside this limitation. The declaration made under s 36 of the Victorian Charter was none of these. The s 73 limitation, assuming an ‘integrated exercise’ explanation, would therefore not apply to it. The effect of the distinction between these two pathways is not the subject of this paper, but merits further attention.

64 Kable (1996) 189 CLR 51, 101.

65 Ibid 102.

66 Ibid 104.

67 Ibid 143.

68 Ibid 114-5.

69 Ibid 116 (emphasis added).

70 Ibid 117.

71 Ibid 94.

72 Ibid (emphasis added).

73 Ibid 96.

74 (1995) 184 CLR 348.

75 Kable (1996) 189 CLR 51, 67.

76 Ibid 78.

77 Ibid.

78 Ibid 83–4.

79 Ibid 83.

80 Baker (2004) 223 CLR 513, 534. Leslie Zines, citing this statement and adding emphasis on the word ‘potential', comments that, in Kable, ‘the majority judges were not unanimous’ on the question of when the incompatibility test applied, but ‘three judges regarded the issue as arising, at all times, because the exercise of any power or jurisdiction by the court can affect public confidence in the integrity of a court in which federal jurisdiction has been invested. This seems now to be the accepted view.’ Zines, The High Court and the Constitution (Federation Press, 2008) 270. To the extent that it is taken to be the proposition for which Kable stands, it is, I suggest (and Professor Zines's comment would also appear to suggest), simply an extrapolation.

81 As Gummow J noted:

At trial the appellant gave unchallenged evidence that she had leased out [her] apartment in Melbourne and had moved to Queensland … That meant that, while the appellant had the human rights conferred by the Charter because she was being prosecuted in a Victorian court … she was a resident of Queensland within the meaning of s 75(iv) of the Constitution. It was only in this Court that the significance of these facts became apparent from the submissions presented by Western Australia as intervener. Momcilovic (2011) 245 CLR 1, 80.

82 Concerning s 109 of the Commonwealth Constitution: ibid 124 (Hayne J).

83 James, Stellios, The Federal Judicature: Chapter III of the Constitution (LexisNexis Butterworths, 2010) 401Google Scholar.

84 Brendan Lim emphasises this aspect of Kable, pointing out that the judgment ‘negotiates two conflicting commitments of the federal structure': the first, to the continued existence of the States and their own courts; and the second, to the ‘integrated’ court system. The Kable principle, he reminds us, ‘is a doctrine of federalism'. Lim questions the binary thinking involved in federalism theory. ‘Attributes and Attribution of State Courts — Federalism and Kable Principle’ (2012) 40 Federal Law Review 31, 32–3.

85 Bateman also points out that, given the High Court's ‘backdating’ approach to the engagement of federal jurisdiction in a State court, the raising of a ‘Kable point’ in a defence turns the ‘threshold’ question into whether the relevant State law can be ‘picked up’ by s 79 of the Judiciary Act¸ rather than whether the law undermines the institutional integrity of the court. He rightly describes this as ‘strange'. Bateman notes, of course, that the High Court does not entertain ‘colourable’ federal claims (although this does not exclude weak claims): Bateman, above n 15, 263.

86 Dawson, J, in Kable (1996) 189 CLR 51, 87 (footnote omitted)Google Scholar:

[B]ecause [the appellant] raised in his defence the question of the invalidity of the [NSW Community Protection] Act under the Commonwealth Constitution [,i]t was the appellant's contention that this made the case a matter arising under the Constitution or involving its interpretation within the meaning of s 76(i) of the Constitution and thus within the ambit of the federal jurisdiction vested in the court … I am aware of the views expressed in Felton v Mulligan to the effect that once federal jurisdiction is attracted, even by a point raised in a defence, the jurisdiction exercised throughout the case will remain federal jurisdiction. For the purpose of determining the available avenues of appeal that may be the only practical approach, but I would observe that it may lead to a very artificial result in a case such as this, namely, that the Supreme Court of New South Wales was exercising federal jurisdiction … under a New South Wales Act.

87 Kirk (2010) 239 CLR 531, 566 (footnotes omitted).

88 (2006) 228 CLR 45 ('Forge’).

89 Ibid 75 (footnotes omitted). Their Honours recall Griffith CJ's statement in Federated Sawmill, Timberyard and General Woodworkers’ Employees’ Association (Adelaide Branch) v Alexander (1912) 15 CLR 308, 313, that ‘when the Federal Parliament confers a new jurisdiction upon an existing State Court it takes the Court as it finds it.'

90 Kable (1996) 189 CLR 51, 102.

91 See Luke Beck, ‘What is a “Supreme Court of a State“?’ (2012) 34 Sydney Law Review 295, for a detailed discussion of the historical meaning of ‘Supreme Courts', as well as the identification of further indicia or ‘defining’ characteristics. In the recent case of Pompano (in which the Court considered procedural, rather than jurisdictional or organisational, ‘essential’ characteristics), French CJ stated that ‘The defining or essential characteristics of courts are not attributes plucked from a platonic universe of ideal forms. They are used to describe limits … upon the functions which legislatures may confer upon State courts and the commands to which they may subject them. Those limits are rooted in the text and structure of the Constitution informed by the common law, which carries with it historically developed concepts of courts and the judicial function': Pompano [2013] HCA 7 (14 March 2013) [68].

92 The case has been described as standing for the proposition that ‘institutional integrity … prevents state legislatures from withdrawing certain types of jurisdiction from state courts': Ratnapala and Crowe, above n 6, 189.

93 Significantly, footnote 158 in Kirk (2010) 239 CLR 531, 566 (attached to the sentence ‘Chapter III of the Constitution requires that there be a body fitting the description “the Supreme Court of a State“’) references s 73 (providing for appeals from Supreme Courts to the High Court), rather than to ss 71 or 77(iii). Forge is also referenced (at n 159), but without mention of the vesting of federal jurisdiction in State courts.

94 Pompano [2013] HCA 7 (14 March 2013) [125].

95 Ibid [126]. They note the principle, from Bachrach (HA) Pty Ltd v Queensland (1998) 195 CLR 547, 562, that Kable incompatibility does not arise ‘if the impugned State law would not offend Ch III had it been enacted by the Commonwealth Parliament for a Ch III court.’ They observe, however, (citing Fardon v A-G (Qld) (2004) 223 CLR 575, 562) that because ‘“not everything denied to a federal judge is denied to a judge of a State“', the fact ‘that a State law does not infringe the principles associated with Kable does not conclude the question whether a like Commonwealth law for a Ch III court would be valid.’ The Bachrach ‘test’ is surely tautological: it appears to say nothing more than that a State court function would be valid if it were a federal court function that would be valid under the test of validity applied to a federal court function. Their Honours’ apparent hesitation about whether this assists with the question of what a State court might otherwise validly do may be a reflection on the unhelpfulness of the Bachrach ‘test'. It is just possible, reading these judicial ‘tea leaves', that Pompano intimates a retreat from the Kable high-tide (represented in Totani and Wainohu, which their Honours treat with a level of circumspection: at [132]–[135], [167]).

96 For example, a reference on a point of law, as in Mellifont v A-G (Qld) (1991) 173 CLR 289.

97 Crennan and Kiefel JJs’ reasoning in Momcilovic provides powerful grounds (pace their Honours) for concluding that it is offensive, as such, as well as non-severable from the Charter. Regarding the ‘offensiveness’ dimension, the reasons given, as noted, related to the inappropriateness of a declaration of inconsistent interpretation in the context of a criminal trial. Their conclusion that the declaration power was, effectively, no more than the power to make comments about defects in the law, does not fit with its actual statutory character. If all a declaration amounted to was a comment by a judge about the rights consistency of the relevant law, it might well be characterised as obiter, and therefore inoffensive to the exercise of judicial power. However, a declaration by a court surely cannot be characterised as obiter. Furthermore, the Charter (as Gummow J stressed) places particular obligations on the State Executive, once a declaration is made. These are political obligations. This, in my view, is what makes the declaration power offensive not only to federal jurisdiction (since a declaration, as advice, falls outside a ‘matter’) but also to the exercise of State jurisdiction, including under the Kirk test: the Charter effectively requires a State court to act as a policy adviser to government. This is incompatible with the court's definitional character as a court.

98 This conclusion, were it followed, need not necessarily require overruling of previous judgments: the Court's conclusion (in Totani and Wainohu, among others) that the State law in question breached the Kable doctrine might equally have been reached had the Kirk institutional integrity test been applied. That is a topic for further exploration.