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Published online by Cambridge University Press: 24 January 2025
The views expressed in this comment are those of the author.
1 (1998) 193 CLR 346.
2 Re Wakimi Ex parte McNally, Re vVakim; Ex parte Daroall, Re Browni Ex parte Amann, and Spinks v Prentice, reported in (1999) 163 ALR 270.
3 For example, the Corporations (New South Wales) Act 1990 (NSW) (the NSW Corporations Act).
4 Section 5 of the Cross-vesting Acts; ss 53-53D of the Commonwealth Corporations Act and ss 44-44D of the NSW Corporations Act.
5 Defined in NSW Cross-vesting Act, s 3(1) as “a matter:
(a) in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State; or
removed to the Supreme Court under section 8 [from another NSW court or tribunal]”.
6 See in particular s 176(2)(a), which enables the Court to direct a trustee of a bankrupt's estate “to make good any loss that the bankrupt's estate has sustained because of the [trustee's] breach of duty”.
7 As the High Court was evenly split, the decision of the Full Court of the Federal Court upholding validity stood: Judiciaiy Act 1903 (Cth), s 23(2)(a).
8 Spinks v Prentice (1998) 157 ALR 555.
9 (1999) 163 ALR 270 at 275 (para [l]) per Gleeson CJ, at 282 (para [33]) per McHugh J, at 300-301 (paras [100]-[1011) per Gummow and Hayne JJ; cf at 322 (para [180]) per Kirby J. See, eg, Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336.
10 For example, (1999) 163 ALR 270 at 301 (para [104]) per Gummow and Hayne JJ.
11 For example, s 4(1) of the NSW Cross-vesting Act (“The Federal Court has and may exercise original and appellate jurisdiction with respect to State matters”); s 42(3) of the NSW Corporations Act (“Jurisdiction is conferred on the Federal Courl with respect to civil matters arising under the Corporations Law of New South Wales”).
12 For example, s 9(2) of the Commonwealth Cross-vesting Act (“The Federal Court … may … exercise jurisdiction (whether original or appellate) conferred on that court by … a law of a State relating to cross-vesting of jurisdiction”); s 56(2) of the Commonwealth Corporations Act (“The Federal Court … may … exercise jurisdiction (whether original or appellate) conferred on it by a law of a State corresponding to this Division with respect to matters arising under the Corporations Law of a State”).
13 See ss 75 and 76 in respect of original jurisdiction. The High Court's appellate jurisdiction conferred bys 73 was said not to be relevant for present purposes: (1999) 163 ALR 270 at 288 (para [52]) per McHugh J; cf n 20 below.
14 (1999) 163 ALR 270 at 303 (para llll]) per Gununow and Hayne JJ, quoting R v Kirby; Ex parte Boilermakers' Society of Australia (the Boilermakers Case) (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ. See also at 289 (para [571) per McHugh J.
15 (1999) 163 ALR 270 at 288 (para [521) per McHugh J, quoting ln re fudiciary and Navigation Acts (1921) 29 CLR 257 at 265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ. See also al 277-279 (paras [8]-[18]) per Gleeson CJ and al 303 (para [111]) per Gummow and HayneJJ.
16 Ibid at 289 (para [58]) per McHughJ; see also at 303 (para [1111) per Gummow and Hayne JJ.
17 Gould v Brown (1998) 193 CLR 346 at 379 (para [16]) per Brennan CJ and Toohey J, at 482 (para [276]) per Kirby J);Wakim (1999) 163 ALR 270 at 330 (para [204]) per Kirby J.
18 (1999) 163 ALR 270 at 302 (para [107]).
19 Ibid.
20 The majority judges did not refer to the point made by Gummow Jin Gould v Brown that, to the extent that cross-vesting enabled a Federal Court (other than lhe High Court) to exercise State appellate jurisdiction, it was contrary to the system of appeals implemented by s 73(ii) of the Constitution: (1998) 193 CLR 346 at 447 (para [197]), referring to Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529.
21 (1999) 163 ALR 270 at 289 (para [561). See also Gould v Brown (1998) 193 CLR 346 at 451 (para l208]) per Gununow J.
22 Gould v Brown ibid at 381 (para [19]) per Brennan CJ and Toohey J. A comparison can be made with the view of Mason J that the existence of s 96 (which enables the Commonwealth to grant financial assistance lo a Stale) does not limit Lhe purposes for which money can be appropriated under s 81. Rather, s 96 confirms the power of the Commonwealth to attach conditions to the grant of money to the States: Victoria v Commonwealth and Hayden (Lhe Australian Assistance Plan Case) (1975) 134 CLR 338 al 395.
23 See, eg, 1n re Tudiciary and Na-oigation Acts (1921) 29 CLR 257 in relation to advisory opinions and the Boilermakers' Case (1956) 94 CLR 254 (HC); Attorney-General (Commomuealth) v The Queen (1957) 95 CLR 529 (PC) in relation to non-judicial functions.
24 (1999) 163 ALR 270 at 291 (para [631). The functions might be limited to those “compatible” with the exercise of State judicial power (cf Kubie v Director jiJr Public Prosecutions (NSW) (1996) 189 CLR 51) but this would extend to non-judicial functions (at 291-292 (para [64])).
25 Ibid at 290 (para [601).
26 Because it does not relate to a “matter”, ibid at 278 (para [16])). Cf the limitations on the functions that could be conferred by a State suggested by Brennan CJ and Toohey J in Gould v Brown (1998) 193 CLR 346 at 385-386 (paras [28]-[301) and by Kirby Jin these cases (1999) 163 ALR 270 at 338 (para [228]).
27 See Gould v Brown ibid at 382-383 (para [221) per Brennan CJ and Toohey Jand at 487-488 (para [289]) per Kirby J.
28 (1999) 163 ALR 270 at 306 (para [1161). They left open the question of whether the Commonwealth law would be effective in removing inconsistency (ibid). The Commonwealth may legislate to remove “cover the field” inconsistency, but not “direct” inconsistency: R v Credit Tribunal; Ex parte General Motors Acceptanee Corporation (1977) 137 CLR 545 at 563 per Mason J.
29 (1999) 163 ALR 270 at 306 (para [116]).
30 Ibid at 302 (para [107]).
31 Ibid at 302 (para [HJ8]).
32 Ibid at 292 (para [651).
33 Ibid at 290 (para [61]), citing Cockle v Isaksen (1957) 99 CLR 155 at 162-163 per Dixon CJ, McTiernan and Kitto JJ, and at 292 (para [661). While the statement in Isaksen that the establishment of a court does not confer jurisdiction on the court may be accepted, this does not answer the question whether the court can receive jurisdiction from a source other than ss 75 and 76 of the Constitution.
34 For example, matters “between States, or between residents of different States, or between a State and a resident of another State” (s 75(iv)), and matters “relating to the same subject-matter claimed under the laws of different States” (s 76(iv)).
35 Section 71.
36 Section 77.
37 (1999) 163 ALR 270 at 307 (para (1221) per Gummow and Hayne JJ, quoting Baxter v Ah Way (1909) 8 CLR 626 at 637 per O'Connor J. See also at 292-294 (paras (68]-[71]) per McHugh J.
38 For example orders for preliminary discovery (cf Airseroices Australia, Transfield Pty Ltd [1999] FCA 886 (l July 1999), at para [25] per Finn J; see also Kirella Pty Ltd v Hooper (1999) 161 ALR 447).
39 (1999) 163 ALR 270 at 290 (para (58]) per McHugh J.
40 Compare ibid at 303 (para [110]) per Gummow and Hayne JJ.
41 Ibid at 334 (para [217]) per Kirby J.
42 Set out above n 4.
43 See, eg, s 5(4)(b)(ii) of the Commonwealth Cross-vesting Act in relation to the transfer of proceedings from the Federal Court or Family Court to a State or Territory Supreme Court.
44 1999) 163 ALR 270 at 280 (para [24]) per Gleeson CJ, at 293 (para [70]) per McHugh J, and at 308 (para [122]) per Gummow and Hayne JJ.
45 Ibid at 307 (para [121]) per Gummow and Hayne JJ.
46 See, eg, Airlines of NSW Pty Ltd v New South Wales [No 2J (1965) 113 CLR 54 and Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492.
47 (1983) 158 CLR 535.
48 Cl999) 163 ALR 270 at 280 (para [22]) per Gleeson CJ, at 288-289 (para [55]) per McHugh J and at 304-305 (para [1131) per Gummow and Hayne J).
49 Ibid at 298 (para [94]); see also at 275 (para [21) per Gleeson CJ, at 283 (para [351) per McHugh J; cf at 326 (para [193]) per Kirby J.
50 (1952) 85 CLR xiv.
51 (1999) 163 ALR 270 at 333 (para [2101).
52 Ibid at 335 (para [220]).
53 Ibid at 336-337 (para [2241).
54 Ibid at 309 (para [126]). Some support for the view of Kirby J can be found in the judgment of Mason J in Duncan, who relied on the implied nationhood power in holding that the executive had power to enter into the agreements which underpinned the cooperative scheme under consideration: (1983) 158 CLR 535 at 560. If, however, Chapter III amounts to a constitutional prohibition (which was the majority's view here), it cannot be overcome by an implied power any more than it can by an express power (ie, s 51(xxxix)).
55 See, eg, Philip Morris Inc v Adam P Brown Male Fashions Ply Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261.
56 Both the Federal Court and the Family Court also have stat1.1to1y power to determine “associated” matters: Federal Comt of Australia Act 1976 (Cth), s 32; Family Law Act “1975 (Cth), s 33. On existing authority, this only enables those courts to determine additional federal matters (see eg, Philip Morris (1981) 148 CLR 457 at 494-495 per Gibbs J, at 516 per Mason J, at 538-539 per Aickin J and at 547 per Wilson J).
57 The Federal Comt is given jurisdiction in bankrnptcy under the Bankruptcy Act 1966 (Cth), s 27(1).
58 Kirby J did not need to consider this issue, as he held that the general cross-vesting scheme validly conferred jurisdiction on the Federal Court.
59 (1999) 163 ALR 270 at 294 (para [731) per McHughJ, at 312 (para [140]) per Gummow and Hayne JJ (both quoting from Fencott v Muller (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and Deane JJ) and at 344 (para [253]) per Callinan J.
60 They stated that “impression” and “practical judgment” are not a test to be applied. Rather, these terms draw attention to the fact that “the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete” ibid at 312 (para [140]); cf Callinan J at 346 (para [2721) “[a]pplying the test … of impression and practical judgment… “.
61 Ibid at 311 (para 1371).
62 Ibid al 311 (para [1381), noting that in R v Murphy (1985) 158 CLR 596 there was a single justiciable controversy raised in two proceedings in different courts.
63 Ibid at 312 (para [140]), quoting Philip Morris (1981) 148 CLR 457 at 512 per Mason J.
64 Ibid at 311 (para [140]), giving examples of third party proceedings, or where there are alternative claims for the same damage.
65 Ibid at 311 (para [141]).
66 Ibid at 313-314 (para [147]).
67 Ibid at 295 (para [76]) per McHugh J and at 346 (para [272]) per Callinan J.
68 Ibid at 295 (para [771).
69 lbid at 346-347 (para [272]).
70 Compare the reference by Kirby J to “the continued accretion to the jurisdiction of federal courts by judicial elaboration of the Constitution” ibid at 338 (para [2291).
71 See Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1988) 18 FCR 212 at 219; NSW Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 at 382 per Hill J; see also R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 26 per Gibbs J.
72 This has been an issue particularly with the Family Court (see Smith v Smith Cl986) 161 CLR 217). Cf Plant v Duralla Pty Ltd (1983) 5 ATPR i-[40-432, where Fitzgerald J held that a purchaser was entitled to avoid a contract pursuant to s 49 of the Building Units and Group Titles Act 1980 (Qld).
73 Section 79 provides that the laws of a State shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction. This is said to pick up State laws “with their meaning unchanged” (see, eg, Pederson v Young (1964) 110 CLR 162 at 165 per Kitto J).
74 (1999) 163 ALR 270 at 315 (para ['156]).
75 Ibid at 316 (para [158]).
76 Ibid at 316 (para [159]).
77 Ibid at 317 (para [164]).
78 Ibid at 295 (para [79]) per McHugh J and at 352 (para [300]) per Callinan J.
79 Ibid at 3·15 (para [154)) per Gummow and Hayne JJ.
80 Ibid at 316-317 (para [1611) per Gummow and Hayne JJ, citing Swiss Aluminium Australia Ltd v Federal Commissioner of Taxation (1987) 163 CLR 421 at 425 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ. Section 73(i) enables the High Court, subject to such regulations as prescribed by Parliament, to hear appeals from “all judgments, decrees, orders and sentences … of any … federal court”.
81 Ibid at 317, 318 (paras [162], [167]).
82 Ibid at 317 (para [162]).
83 Ibid at 295 (para [79]), citing Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. He is supported in this view by Gibbs J, who stated “l entertain the gravest doubt as to whether either of those principles [ie, res judicata and issue estoppel] can have any application where a State and the Commonwealth are in contest as to the effect of a provision of the Constitution”: Queensland v Commonwealth (the Second Territories Senators Case) (1977) 139 CLR 585 at 597.
84 Ibid at 295-296 (para [80]).
85 Ibid at 351 (para [297]).
86 Ibid at 351-352 (para [299]).
87 Ibid at 317 (para [1641) per Gummow and Hayne JJ.
88 Ibid at 317 (para [1651) per Gummow and Hayne JJ; see also at 296 (para [81]) per McHugh J and at 352 (para [304]) per Callinan J. As pointed out by Gu mmow J in Gould u Brown, an order of the Federal Court made without jurisdiction stands until it is discharged on appeal by a competent party: (1998) 193 CLR 346 at 463 (para [244]). It is not entirely clear what McHughJ meant when he said that the orders are a nullity “[f]or constitutional purposes” (1999) 163 ALR 270 al 295 (para [79]).
89 Although the examination was completed following Gould v Brown, Mr Amann remained subject to a compulsory order to sign the transcript of his examination: ibid at 352 (para [302]) per Callinan J.
90 Ibid at 318 (para [167]) per Gummow and Hayne JJ; see also at 352 (para (303]) per Callinan}. The Court refused to make an order prohibiting the examination from occurring, as the examination had already occurred (at 317 (para [166]) per Gummow and Hayne JJ).
91 Ibid at 318 (para [1671) per Gummow and Hayne JJ.
92 The issue was adverted to in Victoria v Commonwealth (the Second Uniform Tax Case) (1957) 99 CLR 575, and in the Second Territories Senators Case (1977) 139 CLR 585, without finally being resolved.
93 Even if it appears lo the lower court thal the decision is inconsistent with other decisions of the High Court (cf Garcia v National Australia Bank (1998) 155 ALR 614 at 619 (para [17]) per Gaudron, McHugh, Gummow and Hayne JJ; see also Ravenor Overseas Inc v Readliead (1998) 72 ALJR 671 at 672 per Brennan CJ).
94 As to the factors that the Court will consider in deciding whether to overrule one of its earlier decisions (albeit in a non-constitutional context), see, eg, John v Federal Commissioner of Taxation (1989) '166 CLR 4-17 at 438-439 per Mason CJ, Wilson, Dawson, Toohey and GaudronJJ.
95 Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 at 316 per Gibbs CJ, Mason, Murphy, Wilson, Brennan and Dawson JJ; cf at 316 per Deane J.
96 Second Territories Senators Case 139 CLR at 605.
97 Res judicata requires consideration of whether the cause of action in the two proceedings is identical, whereas issue estoppel requires consideration of whether an issue of fact or law raised in the later proceedings was determined in earlier proceedings: see eg, Jackson v Goldsmith (1950) 81 CLR 446 at 467 per Fullagar J (dissenting in the result).
98 Indeed, in the Second Territories Senators Case, Aickin J stated that the presence of the Attorney-General for Queensland as an additional party (as well as Queensland, which was a party to Western Australia v Commonwealth (1975) 134 CLR 201) prevented issue estoppel from arising (1997) 139 CLR 585 al 615. This has been described as “exceedingly technical” (L Zines, The High Court and the Constitution (4th ed 1997) at 441). Even with the addition of another party, the issue is still binding as between the original parties: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 356-357 per Fisher J (Ryan J agreeing).
99 See, eg, Second Uniform Tax Cast' (1957) 99 CLR 575 at 654 per Fullagar J.
100 (1999) 163 ALR 270 at 317, 318 (paras [162], [167]) per Gummow and Hayne JJ (Gleeson CJ and Gaudron J agreeing).
101 (1985) 60 ALR 68.
102 Ibid al 7O-TI.
103 l03 See, eg, In re Waring; Westminster Bank u Burton-Butler [1948] Ch 221.
104 (1999) 163 ALR 270 at 295-296 (para [80]) per McHugh J.
105 The argument given applies equally in reverse: it would be incongruous if the only persons not bound by legislation were parties to the previous litigation.
106 (1997) 189 CLR 465.
107 In fact, the Commonwealth imposed a 100% tax on any refunds of State tax that had been invalidly collected up until the date of judgment: see the Franchise Fees Windfall Tax (Collection) Act 1997 and the Franchise Fees Windfall Tax (Imposition) Act 1997 (Cth).
108 Ha itself indicates that lhe Court could nol overrule that decision prospectively: (1997) 189 CLR 465 at 504 per Brennan CJ, McHugh, Gummow and Kirby JJ.
109 Compare Victoria v Commonwealth (the Payroll Tax Case) (1971) 122 CLR 353 at 396 per Windeyer J; Theophanous v Herald fr Weekly Times Ltd (1994) 182 CLR 104 at 197 per McHughJ.
110 See, eg, De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 at 215 per Toohey, Gaudron, McHugh, Gummow and Kirby JJ, quoting Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 322 per Gaudron J.
111 The dismay expressed by Kirby J at what he saw as a change in the Court's approach “in a very short interval” (1999) 163 ALR 270 at 323 (para ['1831)) indicates that he might agree with the majority on this score.
112 Commonwealth Corporations Act, s 51(1).
113 Cl999) 161 ALR 318.
114 Ibid at 340 (para [91]) per Gleeson CJ and Gummow J (Hayne J agreeing), see also at 351 (para [1321) per Gauclron J; cf at 369-370 (para [1941) per McHugh and Callinan JJ (dissenting). Kirby J decided the case on other grounds.
115 (1999) 163 ALR 270 at 296 (para [821) per McHugh J, at 320 (para [175]) per Gummow and Hayne JJ (Gleeson CJ and Gaudron J agreeing), at 339 (para [2321) per Kirby J and at 353 (para [312]-[3131) per Callinan J.
116 Z Cowen and L Zines, Federal Jurisdiction in Australia (2nd ed 1978) at 172, quoted by Gummow and Hayne JJ ibid at 319 (para [173]).
117 Compare s 4(2) of the Commonwealth Cross-vesting Act, which “cross-vests” the jurisdiction of the ACT Supreme Court. Jurisdiction over “Northern Territory matters” is cross-vested under s 4 of the NT Cross-vesting Act.
118 This is the explanation given for how the High Court can be given power to hear appeals from the ACT Supreme Court: Porter v The King; Ex parte Yee (1926) 37 CLR 432. (On existing authority, a Territory Supreme Court is not a “federal” court for the purposes of s 73(ii): see, eg, Capital TV and Appliances Pty Ltd u Falconer CJ971) 125 CLR 591.)
119 GPAO (1999) 161 ALR 318 at 340 (para [90]) per Gleeson CJ and Gummow J, citing LNC Industries Ltd v BMW (Australia) Ltd CJ983) 151 CLR 575 al 581 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ and Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) (No 2) (1997) 189 CLR 654 at 656-657 per Brennan CJ, McHugh and Gummow JJ.
120 Northern Territory (Self-Government) Act 1978 (Cth), s 13; Australian Capital Territory (Self-Government) Act 1988 (Cth), s 8.
121 One might wonder whether common law matters “arise under” any law. One view is that common law matters arise under the law conferring jurisdiction on the Court: Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 585-586 per Dixon]. See also Z Cowen and L Zines, above n 116 at 160-162. This would mean that common law Territory matters “arise under” the Territory law conferring jurisdiction on the Court (eg, Supreme Court Act 1933 (ACT), s 20(1)).
122 It has been held that laws of a Territory legislature are not equated with Commonwealth laws for the purposes of s 90 of the Constitution: Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248. This decision was, however, based on the need to preserve the “free trade area” that does not appear to be relevant here (at 275-279 per Brennan, Deane and Toohey JJ).
123 Compare s 4 of the NT Cross-vesting Act; s 42 of the NT Corporations Act.
124 Le Mesurier u Connor (1929) 42 CLR 481 at 500 per Knox CJ, Rich and Dixon JJ (regulations cannot confer jurisdiction); cf at 506 per Isaacs J and at 521 per Starke J; Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 39 per Latham CJ (McTiernan J agreeing), at 44 per Starke J (regulations can confer jurisdiction); cf at 51 per Williams J.
125 Ibid at 500 per Knox CJ, Rich and Dixon JJ.
126 Which provides “lw]ith respect to any of the matters mentioned in the last two sections the Parliament may make laws… “ (emphasis added).
127 (1999) 162 ALR 1 at 10 (para [281) per Gleeson CJ and McHugh J, at 35 (paras [121]-[1231) per Gaudron J (dissenting in the result) and at 60 (para [221]) per Kirby J.
128 Instead, the Territory legislature is said to exercise “a new legislative power”, albeit power conferred by a Commonwealth law (see Capital Duplicators (1992) 177 CLR 248 at 283 per Brennan, Deane and Toohey JJ (Gaudron J agreeing on this point)).
129 See Z Cowen and L Zines, above n 116 at 184.
130 The Court has indicated, in the context of regulation-making power, that the intention to delegate the power to confer jurisdiction “should be expressly and clearly stated”: Willocks v Anderson (1971) 124 CLR 293 at 299-300 per Barwick CJ, Menzies, Windeyer, Owen, Walsh and Gibbs JJ. This rule of interpretation should not apply to an Act conferring legislative power on a self-governing territory, which will necessarily be expressed more generally (see Northern Territory (Self-Government) Act 1978 (Cth), s 6; Australian Capital Territory (Self-Government) Act 1988 (Cth), s 22(1)).
131 Admittedly, this conclusion does not necessarily follow. It would seem curious, however, if laws enacted by a territory legislature could confer jurisdiction on federal courts, but the jurisdiction conferred could not include matters arising under laws of that legislature.
132 In GPAO, Gaudron J indicated that, while it was not her preferred view, it might be possible to read the reference in s 72 to “courts created by the Parliament” as referring to the federal courts created under s 71, and therefore not including territory courts (1999) 161 ALR 318 at 350 (para [126]).
133 Four judges in Gould v Brou1n held that these powers could validly be exercised by the Federal Court for the purpose of winding up a company (1998) 193 CLR 346 at 389 (para [351) per Brennan CJ and Toohey J, at 405 (para [69]) per Gaudron J and at 500 (para [328]) per Kirby J). McHugh and Gumrnow JJ did not need to consider the issue, as they held the Corporations Law of a State could not validly confer any powers on the Federal Court.
134 Ibid at 389-390 (paras [35]-[361) per Bre1man CJ and Toohey J, at 405 (paras [69]-[701) per Gaudron J and at 500 (paras [329]-[330]) per Kirby J. As the powers were held to be non-judicial (at 388 (para [33]) per Bre1man CJ and Toohey Lat 404 (para [67]) per Gaudron J; cf at 500 (para [328]) per Kirby J), the statutory majority held a State could only confer these powers on the Federal Court to the extent they were incidental to the exercise of judicial power (cf at 385-386 (paras [28]-[301) per Brennan CJ and Toohey J).
135 Ibid at 392 (para [38]) per Brennan CJ and Toohey J and at 500-501 (para [330]) per Kirby J. This interpretation was said to be required by Interpretation Act 1987 (NSW), s 31 which provides that NSW statutes should as far as possible be interpreted so as not to exceed legislative power.
136 Ibid at 409 (para [8:11).
137 The Supreme Court of a State or Territory could, however, exercise these powers in all the circumstances set out in the Corporations Law, eg, on application by the Australian Securities and lnvestrnent Commission (see s 596A(a), (b)(iv) and para (a) of the definition of “eligible applicant” in Corporations Law, s 9).
138 Assuming that a State could confer any jurisdiction on the Federal Court, a conclusion Gaudron J ultimately rejected in that case (1998) 193 CLR 346 at 410 (para [86]).
139 (1999) 163 ALR 270 at 321 (para [176]) per Gununow and Hayne JJ (Gleeson CJ, McHugh, Kirby and Callinan JJ agreeing).
140 Ibid. One of the other provisions attacked was s 447A, which confers power on the Court to make orders about how Part 5.9 is to operate in relation to a particular company. The constitutional validity of s 447A was upheld (at least in its application to the NSW Supreme Court) by the NSW Court of Appeal in Australasian Memory Pty Ltd u Brien (1998) 45 NSWLR111.
141 See ground 6(b) of the applicants' notice of appeal (Special Leave Application Book at 95).
142 (1999) 163 ALR 270 at 281 (para [27]).
143 Ibid at 281 (para [291).
144 Ibid.
145 Ibid at 281-282 (para [301).
146 As at 13 August 1999, only New South Wales, Western Australia and Queensland have passed this legislation: Baxt and Archibald, “High time for some action”, Australian Financial Review, 13 August 1999 at 29.
147 That is, ineffective because it was made in the purported exercise of cross-vested State jurisdiction (see Federal Courts (State Jurisdiction) Act 1999 (NSW), s 4(1)).
148 Federal Courts (State Jurisdiction) Act 1999 (NSW), s 6.
149 Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11.
150 Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(3)(b).
151 The decision will affect any cooperntive scheme under which States have purported to confer jurisdiction on federal courts to hear matters arising under the State law. Other schemes affected include State competition policy reform legislation, which attempts to confer jurisdiction on the Federal Court to hear matters arising under the Competition Code (ie, a modified version of Part IV of the Trade Practices Act 1974 (Cth) applied as State law to natural persons and corporations: see, eg, Competition Policy Reform (New South Wales) Act 1995 (NSW), ss 8 and 21). Purely Slate cooperative schemes which do not involve federal courts will not be affected, such as uniform consumer credit legislation based on the Consumer Credit (Queensland) Act 1994 (Qld).
152 For example, Patrick and Burrell, “Federal Courl, Canberra at odds” Australian Financial Review, 23 July 1999 at 1 and 26; cf Santow and Austin, “No doubts in Wakim wake” Australian Financial Review, 26 July 1999 at 20. The Commonwealth also has power to make laws with respect to bankruptcy and insolvency (s 51(xvii)).
153 See, eg, Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 334 per Mason CJ, at 336-337 per Brennan J, at 353 per Toohey J, at 364-365 per Gaudron J (Deane J agreeing) and at 369 per McHughJ.
154 For example, the Commonwealth cannot provide for the incorporation of companies (New South Wales u Commonwealth (the Incorporation Case) (1990) 169 CLR 482), nor directly regulate companies that are not trading, financial or foreign corporations (R v Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235 and Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169). Further, as the test for determining whether a company is a trading or a financial corporations depends principally on the nature of the corporation's activities (State Superannuation Board of Victoria D Trade Practices Commission (1982) 150 CLR 282), the amenability of a corporation to Commonwealth regulation may change over time.
155 For example, Chapter 8 of the Corporations Law, which regulates the futures industry.
156 See, eg, Part 8, Div 3 of the NSW Corporations Act. Typically, those State provisions would apply the provisions of Commonwealth administrative law as State law.
157 See, eg, Gould v Brown (1998) 193 CLR 346 at 442-443 (para [1821) per Gummow J, citing Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117. Section 75(v) confers original jurisdiction on the High Court to hear matters “in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”.
158 Currently those Acts only apply to decisions made under Commonwealth legislation. See s 25 and the definition of “enactment” in Administrative Appeals Tribunal Act 1975 (Cth), s 3(1) and the definition of “decision to which this Act applies” in Administrative Decisions (Judicial Review) Act 1977 (Cth), s 3(1)).
159 The provisions held to be invalid will be repealed to avoid the argument that the cross-vesting legislation was “intended to operate fully and completely according to its terms, or not at all” (cf Pidoto v Victoria (1943) 68 CLR 87 at 108 per Latham CJ). See Federal Courts (State Jurisdiction) Act 1999 (WA), Pt 4.
160 Judicial proceedings concerning rights created by these laws would then be matters “arising under any laws made by the Parliament” for the purposes of s 76(ii) of the Constitution: Gould v Brown (1998) 193 CLR 346 at 453 (paras [213]-[2141) per Gummow J).
161 Compare (1999) 163 ALR 270 at 332 (para [2061) per Kirby J.
162 A Rogers, “Federal/State Courts-The need to restructure to avoid jurisdictional conflicts” (1980) 54 ALJ 285 at 288.
163 Judiciary Act 1903 (Cth), s 39(2) confers general federal jurisdiction on State courts “within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise”.
164 Section 77(ii) enables the Commonwealth Parliament 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”. Notable examples are matters arising under the Trade Practices Act 1974 (Cth) (apart from the jurisdiction conferred by s 86(2)) and judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see definition of “Court” in s 3).
165 Compare Opeskin, B, “Allocating Jurisdiction in the Federal Judicial System” (1995) 6 PLR 204 at 217Google Scholar.
166 Compare ibid at 209. Opeskin notes that not everyone sees specialisation as an advantage (at 209-210).
167 Ibid at 211-212. A recent example of this comity is the judgment of Mason P in Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 547-548.
168 See discussion at n 22 above.
169 (1999) 163 ALR 270 at 289 (para [561) per McHugh J.
170 Ibid at 324 (para [189]) per Kirby J.
171 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567 (emphasis added). As to the limits of this test, see A Stone, “The Limits of Constitutional Text and Structure”, forthcoming.
172 (1999) 162 ALR 1 at 15 (para [44]). This passage is quoted by Kirby J in this case in (1999) 163 ALR 270 at 324 (para [1871).
173 See discussion at nn 23-26 above.
174 A striking example is the statement in Cole v Whitfield thats 92 (which provides in part that “trade, commerce, and intercourse among the States… shall be absolutely free”) does not “require that the content of the guarantee of freedom of trade and commerce be seen as governing or governed by the content of the guarantee of freedom of intercourse”: (1988) 165 CLR 360 at 388.
175 See discussion at n 24 above.
176 See discussion al n 171 above.
177 'See discussion at n 30-31 above.
178 Compare the statement by Stephen J in Russell v Russell that “[t]he extent of incidental power … will be affected by the nature of the subject matter of the express grant which is in question”: (1976) 134 CLR 495 at 530.
179 See discussion at nn 40-45 above.
180 See, eg, Le Mesurier v Connor (1929) 42 C:LR 481 at 496, 498 per Knox CJ, Rich and Dixon JJ; Russell v Russell (1976) 134 CLR 495 at 516-517 per Gibbs J, at 530 per Stephen J, at 535 per Mason J and at 554 per Jacobs J. B Opeskin, above n ·t65 at 208.
181 Callinan J also upheld the validity of the laws considered in Abebe, but did not make any general comments on the approach to making implications. The approach of Kirby J in Abebe (who upheld validity) is consistent with his approach in these cases, and the approach taken here by Gaudron, Gummow and Hayne JJ is consistent with their dissenting judgments in Abebe.
182 L Zines, above n 98 at 466.