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Published online by Cambridge University Press: 24 January 2025
As is well known, the High Court held in Re Wakim; Ex parte McNally that federal courts can only exercise the judicial power of the Commonwealth, and cannot exercise State judicial power. In this article I ask whether the Court would ever take a similar approach to Chapter II of the Constitution, and hold that the Commonwealth executive can only exercise the executive power of the Commonwealth, and not State executive power. If it did, it would probably follow that the executive power of the Commonwealth could only be exercised by the Commonwealth executive, and not by a State executive. Obviously, these twin conclusions would have major implications for existing Commonwealth–State cooperative legislative schemes.
I should stress immediately that I do not think that this is the preferable view. However, for reasons that I explain in Part 2 below, there is an undercurrent in recent decisions that could be taken to suggest that the Commonwealth executive government is limited to performing functions within the scope of Commonwealth legislative power, and cannot be given additional functions.
This article expands on a paper given at the Public Law Weekend on 1 November 2002. The views expressed here are my own. Thanks are due to the referee, and to Daniel Stewart for his most insightful comments on Part 4(B).
1 (1999) 198 CLR 511 ('Wakim').
2 There could be other, less direct, consequences. For example, the reasons for implying a constitutional separation of Commonwealth and State executive power might favour a greater separation between Commonwealth legislative and executive power, such as a constitutional (rather than a merely political) limit on the ability of Parliament to interfere with the exercise of executive power: see Geoffrey, Lindell, 'Parliamentary Inquiries and Government Witnesses' (1995) 20 Melbourne University Law Review 383, 401–2 (discussing whether the investigative powers of parliamentary committees can override executive privilege)Google Scholar.
3 Where the Commonwealth and State legislate cooperatively both to confer functions on a single body. A 'State function' is function conferred by State law.
4 See below, Part 2(A) and (B).
5 See below, Part 2(C)(i).
6 See below, Part 2(C)(ii).
7 See below, Part 3(A)(i).
8 See below, Part 3(A)(ii).
9 See below, Part 3(B)(ii). Another issue is whether the Commonwealth executive could perform State functions otherwise outside power if those functions are 'incidental' or 'conducive' to the performance of Commonwealth functions (see below, Part 3(B)(i)).
10 See below, Part 4(A)(i).
11 See below, Part 4(A)(ii).
12 See below, Part 4(B).
13 Graeme, Hill, 'Revisiting Wakim and Hughes: The Distinct Demands of Federalism' (2002) 13 Public Law Review 205, 215–17Google Scholar.
14 Ibid 217–26.
15 Justice Bradley, Selway, 'Constitutional Assumptions and the Meaning of Commonwealth Executive Power' (2003) 31 Federal Law Review 505Google Scholar. However, Kirby J has stated a preference for cooperative federalism, and given reasons for this preference (Wakim (1999) 198 CLR 511, 600–1 [189]–[191]; R v Hughes (2000) 202 CLR 535, 566–8 [67]–[73]).
16 That at least would improve the chances of predicting how federalism implications might affect future cases. It is unlikely, however, that court submissions could alter a judge's view on the proper conception of federation (see the text accompanying nn 247–249 below).
17 (2000) 202 CLR 535 ('Hughes'). For a more complete analysis of Hughes, see, eg, Graeme, Hill, 'R v Hughes and the Future of Co-operative Legislative Schemes' (2000) 24 Melbourne University Law Review 478Google Scholar.
18 In Hughes, ss 29 and 31 of the Corporations (Western Australia) Act 1990 (WA) ('Corporations (WA) Act').
19 In Hughes, s 47 of the Corporations Act 1989 (Cth) ('Corporations Act') and reg 3(1)(d) of the Corporations (Commonwealth Authorities and Officers) Regulations 1990 (Cth).
20 Hughes (2000) 202 CLR 535, 553–4 [32]–[34] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
21 Ibid 580 [110].
22 See especially ibid 584 [120] (Kirby J) (the necessary power exists '[i]n the peculiar circumstances of this case', but may not in another case); see also 556 [40] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) (s 51(xx) would support a Commonwealth law that authorised the Commonwealth DPP to prosecute 'the very great majority' of State Corporations Law offences).
23 The High Court may consider, however, that the Commonwealth law in a cooperative legislative scheme actually confers the function, and the State law merely describes the content of this (Commonwealth) function (see below, text accompanying n 27; see also Wakim (1998) 198 CLR 511, 572–3 [105] (Gummow and Hayne JJ) (the 'better view' was that Commonwealth provision in the cross-vesting scheme attempted itself to confer State jurisdiction on federal courts)). On that approach, the Commonwealth provision would 'pick up' the content of the State provision, in some way analogous to s 79 of the Judiciary Act 1903 (Cth).
24 For example, a State law could not confer jurisdiction on a federal court to determine matters arising between the States (cf s 75(iv) of the Constitution).
25 Hughes (2000) 202 CLR 535, 553 [31].
26 Ibid 554 [36].
27 Ibid 558 [46] (emphasis added).
28 Hill, 'Hughes and the Future of Co-operative Schemes', above n 17, 492 (arguing that a connection with Commonwealth power is not required simply because a State function is coercive).
29 A similar ambiguity may arise with the statement in the joint judgment that State functions are 'imposed by federal law as a matter of duty or obligation' (Hughes (2000) 202 CLR 535, 553 [33]): see Dennis, Rose QC, 'Commonwealth-State Co-operative Schemes after Hughes: What Should be Done Now?' (2002) 76 Australian Law Journal 631, 634Google Scholar.
30 Although see a possible reconciliation of the first two of these statements in Part 2(C)(i) below.
31 See Corporations (WA) Act s 33.
32 Hughes (2000) 202 CLR 535, 553 [33]. By contrast, Kirby J did not rely on there being any 'duty' (at 584–5 [124]–[125]), and therefore did not place any weight on whether the function was conferred exclusively.
33 Hill, 'Hughes and the Future of Co-operative Schemes', above n 17, 490–1 (summary of the effect of Hughes), although I argued further that it was not entirely clear whether the Hughes approach was confined to exclusive State functions (at 492–3).
34 [2003] 1 Qd R 272 ('Fukusato'). A similar constitutional argument was raised in R v Holden (2001) 161 FLR 372 ('Holden'). In that case, the Victorian Court of Appeal held that the Commonwealth DPP could validly prosecute the Victorian offences in question, because (1) those State offences could have been enacted by the Commonwealth itself under s 51(i) of the Constitution, and (2) the prosecution of the State offences, in the circumstances of the case, was 'incidental' to the prosecution of Commonwealth offences (at 382–3 [31] (Chernov JA, with Tadgell and Ormiston JJA agreeing: 373 [1], 373 [2])). Holden therefore did not address the argument that the Hughes approach is confined to State functions that are conferred on Commonwealth bodies exclusively.
35 Here, the Corporations (Commonwealth Powers) Act 2001 (Qld). The Court of Appeal in Fukusato unanimously rejected a challenge to the validity of this referral of power ([2003] 1 Qd R 272, 294–8 [51]–[64] (McMurdo P), 302–3 [85]–[91] (Davies JA, with Thomas JA agreeing on this point: 317 [149])).
36 See Fukusato [2003] 1 Qd R 272, 280 [4] (McMurdo P). Briefly, ch 10 of the Corporations Act 2001 (Cth) (especially ss 1370, 1383 and 1401) created federal rights and obligations equivalent to the State rights and obligations that existed under the former Corporations Law. Section 7(2) of the Corporations (Ancillary Provisions) Act 2001 (Qld) cancelled rights and liabilities under the Corporations Law of Queensland if equivalent rights and liabilities had been created by the Commonwealth Act. The validity and efficacy of the Commonwealth transitional provisions was upheld in Cth DPP v Corbett [2002] QCA 340 (Unreported, Davies, Williams and Jerrard JJA, 6 September 2002).
37 See also DPP Act s 9(6B) (DPP's power to give an undertaking in connection with the prosecution of a State or Territory offence).
38 If the Commonwealth DPP and a State DPP both attempted to prosecute the same person for the same offence, a question of operational inconsistency may arise (as to which, see, eg, Commonwealth v Western Australia (1998) 196 CLR 392 ('The Mining Act Case'), 417 [61] (Gleeson CJ and Gaudron J), 439–40 [139] (Gummow J). If the Commonwealth law, in substance, confers the function, then the Commonwealth DPP's authority would seem to prevail, by reason of s 109 of the Constitution. If, however, the Commonwealth DPP's authority derives from State law, then he or she would not have automatic priority.
39 See Fukusato [2003] 1 Qd R 272, 285–6 [29] (McMurdo P).
40 Davies JA also suggested that s 17 of the DPP Act was also supported by s 51(xxxvii) of the Constitution (read with s 51(xxxix)) in its application to this case, because the prosecution of the State offences was incidental to the prosecution of the (now Commonwealth) corporations offences enacted pursuant to a referral of power (ibid 306 [103]). Thomas JA, however, held that s 51(xxxvii) was not relevant, and based his conclusion entirely on ss 61 and 51(xxxix) (at 318–9 [158]).
41 Ibid 306 [104], see also 315 [143] (Thomas JA) (holding that there is no duty to carry on State prosecutions); cf 294 [52] (McMurdo P) (holding that s 6(1)(m) is cast in mandatory terms, although s 17 is not).
42 Ibid 307 [107], adapting remarks of Brennan J in R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535, 579-80 ('Duncan').
43 Fukusato [2003] 1 Qd R 272, 318 [154], 319 [158].
44 Ibid 308 [108] (Davies JA); 317–18 [154] (Thomas JA).
45 Ibid 308 [110] (Davies JA); 318 [157] (Thomas JA).
46 Ibid 308 [109].
47 Ibid 308–9 [111]–[114], applying s 15A of the Acts Interpretation Act 1901 (Cth). See below, n 86.
48 Fukusato [2003] 1 Qd R 272, 308 [110].
49 Ibid 292–3 [47].
50 Ibid 293 [48].
51 Ibid 292–3 [47]–[48], 298 [66]–[67]. The High Court has noted an issue about the use of the term 'Crown' in this context: see Byrnes v The Queen (1999) 199 CLR 1, 19 [27] n 47 (Gaudron, McHugh, Gummow and Callinan JJ).
52 In some situations the Commonwealth DPP brings prosecutions for offences against State laws on behalf of the State (see below, n 63). Here, s 560 of the Queensland Criminal Code provided that an indictment must be signed and presented to the court 'by a Crown Law Officer or some other person appointed in that behalf by the Governor in Council'. Unlike other State DPP Acts, the Director of Public Prosecutions Act 1984 (Qld) does not make specific provision for Commonwealth DPP officers to be appointed as Queensland Crown Prosecutors (see Fukusato [2003] 1 Qd R 272, 284 [22] (McMurdo P)). There is a real question whether the substantive power to perform a State function (particularly a coercive function) could be conferred on a Commonwealth body by State executive action alone.
53 Unless McMurdo P meant that officers of the Commonwealth DPP could only bring State prosecutions in their personal capacity (see below, n 134).
54 Fukusato v Commonwealth Director of Public Prosecutions (High Court of Australia, 26 June 2002).
55 See above, text accompanying n 39.
56 Hughes (2000) 202 CLR 535, 554 [36].
57 Initially, I thought that the joint judgment was assimilating the position of the Attorney-General with the position of the Commonwealth DPP (see Hill, , 'Hughes and the Future of Co-operative Schemes', above n 17, 493Google Scholar). I did not consider the argument that the joint judgment was using 'Executive Government of the Commonwealth' in this passage to mean only Ministers and the Governor-General.
58 See above, text accompanying nn 25 and 26.
59 See, eg, Egan v Willis (1998) 195 CLR 424, 452 [42] (Gaudron, Gummow and Hayne JJ), quoting Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ('Lange'), 561 (the Court): 'the conduct of the executive branch is not confined to Ministers and the public service [but] includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature.'
60 Section 67 provides that, until the Parliament otherwise provides, the appointment of 'all other' officers of the Commonwealth — ie other than Ministers of State appointed under s 64 – is vested in the Governor-General in Council.
61 The Minister's role under s 64 is to 'administer' departments of State. The function of 'administering' connotes that the Minister will set directions and policies that will be implemented by subordinates (see Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54, 87 (Murphy J)).
62 (2002) 211 CLR 287 ('Macleod').
63 Ibid 291–2 [4]–[6] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). ASIC is 'the Commonwealth' for these purposes (see Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 ('Edensor Nominees')), even when it is performing a State function. On the other hand, when the Commonwealth DPP institutes a prosecution under State law on behalf of the State, the relevant party is the State (not the DPP) and s 75(iii) jurisdiction is not attracted.
64 Macleod (2002) 211 CLR 287, 292 [7] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
65 See, eg, Re Cram; Ex parte New South Wales Colliery Proprietors Association (1987) 163 CLR 117, 128 (the Court); Hughes (2000) 202 CLR 535, 553 [31] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
66 One possible difference (not expressly mentioned in Macleod) is that State functions might be conferred on Commonwealth officers in their personal capacity (see below, Part 3(B)(ii)); an option that of course is not available with a statutory authority.
67 (1995) 184 CLR 188 ('Re Australian Education Union'), 232–3 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). On this argument, it would be immaterial whether the Commonwealth had approved the conferral of the State function, because the Commonwealth cannot 'waive' a true limitation on State power (see Hill, 'Revisiting Wakim and Hughes', above n 13, 209 (especially nn 39 and 42); cf the anti-discrimination prohibition discussed below, Part 3(A)(i)).
68 Melbourne Corporation v Commonwealth (1947) 74 CLR 31 ('Melbourne Corporation').
69 The fact that the Commonwealth executive cannot perform State functions unless authorised to do so by a Commonwealth law means that the Commonwealth would always have this control.
70 According to one commentator, 'it has been deemed inadvisable [in the United States] that, except as to minor offices, persons should hold at the same time, both Federal and State appointments' (H E Renfree, The Executive Power of the Commonwealth of Australia (1984) 243 (emphasis added)).
71 Hughes (2000) 202 CLR 535, 558 [46].
72 Ibid 583 [119].
73 See ibid 555 [39] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) (the scope to enact coercive laws under the executive power 'remains open to some debate'), 583 [119] (Kirby J) (it is 'highly doubtful' whether the executive power and the express incidental power would support a law authorising performance of a coercive function).
74 (2001) 162 FLR 423 (Supreme Court of Queensland) ('Ellis').
75 In 2002, the NCA was re-established as the Australian Crime Commission ('the ACC'), and the National Crime Authority Act 1984 (Cth) was re-named the Australian Crime Commission Act 2002 (Cth) ('the ACC Act'): see s 3 and items 2 and 35 of Schedule 1 to the Australian Crime Commission Establishment Act 2002 (Cth) ('the ACC Establishment Act').
76 Section 14 was repealed when the NCA Act became the ACC Act: see s 2 and item 51 of Schedule 1 to the ACC Establishment Act.
77 Although, following Hughes, the ACC Act now provides legislative consent for the exercise of State functions by the ACC (see s 55A, especially s 55A(1)). However, there is no obligation to perform a State function that is not connected to a federally relevant criminal activity (see s 55C).
78 Ellis (2001) 162 FLR 423, 429 [19].
79 Ibid 431 [26].
80 Ibid 431 [27]–[28]. There is, however, a contrary argument that any investigation by the government (even non-coercive investigation) should always be authorised by legislation, as this investigation is qualitatively different from investigation by a private citizen (see, eg, George Winterton, Parliament, The Executive and the Governor-General: A Constitutional Analysis (1983) 121–2; see also Bivens v Six Unknown Federal Narcotics Agents, 403 US 388, 392–5 (1971) (trespass committed by federal agent is qualitatively different from trespass committed by private citizen)).
81 Although the precise issue is the scope of the express incidental power contained in s 51(xxxix) of the Constitution, that question turns on the scope of the executive power, because the extent of the incidental power will be affected by the nature of the subject matter of the express grant of power in question (see, eg, Russell v Russell (1976) 134 CLR 495, 530 (Stephen J) (considering what measures are incidental to s 77(iii) of the Constitution)).
82 See Australian Communist Party v Commonwealth (1951) 83 CLR 1 ('Communist Party Case'), 184–9, 192 (Dixon J), 259–61 (Fullagar J). While Dixon J preferred to imply the power from the Constitution as a whole, rather than just s 61 read with s 51(xxxix) (at 187), other judges have been concerned to tie implied executive powers to those provisions, to negate the suggestion that there is a new or independent source of Commonwealth power (Davis v Commonwealth (1988) 166 CLR 79, 103 (Wilson and Dawson JJ); see also 117 (Toohey J)).
83 See Ruddock v Vadarlis (2001) 110 FCR 491, 541–4 [186]–[197] (French J, with Beaumont J agreeing: 514 [95]); contra 500–1 [29] (Black CJ) (who doubted the existence of this non- statutory power).
84 (1988) 166 CLR 79, 99 (Mason CJ, Deane and Gaudron JJ, with Wilson and Dawson JJ and Toohey J agreeing on this point: 101, 117), 112–13 (Brennan J) (although, in his view, the power to enact offences is 'necessarily confined').
85 By analogy, Dr Evans criticises the majority in Ruddock v Vadarlis on the basis that 'there is no demonstrable need for [the power to expel non-citizens] to exist as an unregulated discretion held by the executive rather than as a power conferred on the executive by the Parliament under legislation enacted by democratic institutions under constitutional procedures' (Dr Simon, Evans, 'The Rule of Law, Constitutionalism and the MV Tampa' (2002) 13 Public Law Review 94, 97)Google Scholar.
86 In Hughes, for example, the terms of the State function (not even the State provision conferring the function) provided a basis on which the operation of the generally-expressed Commonwealth provision could be read down (Hughes (2000) 202 CLR 535, 556–7 [43] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 581–2 [114] (Kirby J)); see also Hill, , 'Hughes and the Future of Co-operative Schemes', above n 17, 494–5)Google Scholar. But see R v O'Halloran (2000) 182 ALR 431, 442–4 [42]–[49] (Heydon JA, with Spigelman CJ and Mason P agreeing: 462 [121], 462 [122]).
87 See Hill, , 'Revisiting Wakim and Hughes', above n 13, 207–10Google Scholar.
88 Hughes (2000) 202 CLR 535, 555 [39].
89 See Hill, , 'Hughes and the Future of Co-operative Schemes', above n 17, 495–7Google Scholar.
90 Cf n 23 above (the substantive power to perform State functions may possibly derive from the Commonwealth provision).
91 Although Gleeson CJ, Gaudron and Gummow JJ later stated that Wakim turned on 'questions of principle' about the nature of Australian federation (Edensor Nominees (2001) 204 CLR 559, 572 [12]).
92 Implicit in this argument is the view that s 61 is the sole source of Commonwealth executive power (see Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 ('The Wooltops Case'), 440 (Isaacs J) (s 61 describes, without defining, the executive power); see also 461 (Starke J)). Tying the executive power to s 61 does not, however, preclude the Commonwealth executive from having the so-called prerogative powers, such as the power to request extradition (Barton v Commonwealth (1974) 131 CLR 477) or other non-statutory powers derived from the Commonwealth's capacity as a legal person, such as the power to contract (see, eg, Davis v Commonwealth (1988) 166 CLR 79, 108 (Brennan J)).
93 This view of s 51(xxxvii) and (xxxviii) explains the result in Duncan (1983) 158 CLR 535 (see especially 589 (Deane J)); but see Gould v Brown (1998) 193 CLR 346, 443 [184] (Gummow J). Section 51(xxxvii) and (xxxviii), of course, allow for the States to supplement the legislative power of the Commonwealth; here the question is whether the States can supplement Commonwealth executive power.
94 (2000) 202 CLR 535, 554 [34].
95 By contrast, Dennis Rose argues that this statement is best understood as a reference to political accountability, through the operation of responsible government (Rose, above n 29, 637–8). If, however, the constitutional system of responsible government does not prevent a State officer from performing a Commonwealth function (as argued in Part 4(A)(i) below), then it would seem to follow that responsible government does not contain a 'constitutional imperative' that would prevent a Commonwealth officer from performing a State function either.
96 (1997) 190 CLR 410 ('Re Residential Tenancies Tribunal (NSW)'), 425–6 (Brennan CJ), 440 (Dawson, Toohey and Gaudron JJ).
97 Ibid 454–5 (McHugh J), 472 (Gummow J), 505 (Kirby J) (criticising the distinction drawn by the plurality between (invalid) laws that affect the legal capacities of the Commonwealth and (valid) laws that affect the exercise of those capacities).
98 See Hill, , 'Revisiting Wakim and Hughes', above n 13, 207 n 23Google Scholar.
99 See (1997) 190 CLR 410, 424–5 (Brennan CJ), 440–1 (Dawson, Toohey and Gaudron JJ) (the States have no legislative power to modify the Commonwealth's executive power, whereas the Commonwealth's express grants of legislative power can extend to modifying the executive capacities of a State).
100 Particularly when the issue is the immunity of the Commonwealth Parliament or judiciary: cf Local Government Association of Queensland v Queensland [2001] QCA 517 (Unreported, McMurdo P, Davies and Williams JJA, 20 November 2001) ('LGAQ'), [48], where Davies JA appeared to equate Commonwealth immunity with whether the State law affected the Commonwealth's executive capacities. Consequently, he held that a Queensland law which vacated a person's Queensland local government office on that person nominating for election to the Commonwealth Parliament was not contrary to Commonwealth immunities.
In my view, the relevant question in LGAQ was whether the Queensland law undermined the Commonwealth Parliament as an institution (rather than its capacities). The effect of the Queensland law was to discourage persons from nominating for the Commonwealth Parliament, just as the effect of the (invalid) Commonwealth superannuation surcharge in Austin v Commonwealth (2003) 195 ALR 321 was said to discourage persons from accepting appointment as a State judge (at 333 [28] (Gleeson CJ), 385–6 [232] (McHugh J)).
101 See especially Melbourne Corporation (1947) 74 CLR 31 and Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 ('Queensland Electricity Commission') see also Western Australia v Commonwealth (1995) 183 CLR 383 ('The Native Title Act Case'), 475–6 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ), Re Australian Education Union (1995) 184 CLR 188, 239–40 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) and Victoria v Commonwealth (1996) 187 CLR 416 ('The Industrial Relations Act Case'), 500–1 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). These latter cases suggest that different treatment based on a 'relevant' difference does not amount to prohibited discrimination.
102 (2003) 195 ALR 321 ('Austin'), 357 [124] (Gaudron, Gummow and Hayne JJ); see also 399 [281] (Kirby J, dissenting in the result); contra 383 [223] (McHugh J).
103 See Graeme, Hill, 'Austin v The Commonwealth: Discrimination and the Melbourne Corporation Doctrine' (2003) 14 Public Law Review 80, 84Google Scholar.
104 See below, text accompanying n 109.
105 Hill, , 'Revisiting Wakim and Hughes', above n 13, 208–9Google Scholar.
106 This step is contrary to the views of the plurality in Re Residential Tenancies Tribunal (NSW) (1997) 190 CLR 410, 440 (Dawson, Toohey and Gaudron JJ); see also 424–5 (Brennan CJ). However, Re Residential Tenancies Tribunal (NSW) is probably not the final word on Commonwealth immunity (see The Mining Act Case (1998) 196 CLR 392, 421 [78] (McHugh J); SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51 ('SGH Ltd'), 78 [52] (Gummow J)).
107 This step at least is consistent with the plurality view in Re Residential Tenancies Tribunal (NSW) (see (1997) 190 CLR 410, 443 (Dawson, Toohey and Gaudron JJ)). Commonwealth immunities would extend beyond this anti-discrimination prohibition; for example, the States could not prevent the Commonwealth from functioning as a government either.
108 See Melbourne Corporation (1947) 74 CLR 31, 83 (Dixon J). Indeed, Gleeson CJ has suggested that an implication similar to Melbourne Corporation would prevent a State from preventing another State from functioning as a government (Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 ('Mobil Oil'), 25–6 [15]).
109 See Hill, , 'Discrimination and the Melbourne Corporation Doctrine' above n 103, 83Google Scholar. As with State immunity, determining the scope of Commonwealth immunity 'inevitably turns on matters of evaluation and degree and of “constitutional facts” which are not readily established by objective methods in curial proceedings' (Austin (2003) 195 ALR 321, 357 [124] (Gaudron, Gummow and Hayne JJ)).
110 See Melbourne Corporation (1947) 74 CLR 31, 84 (Dixon J): 'Whether the right to [choose which bank to deal with, denied to the States by the Commonwealth law] is of great or of small importance to the States is not a material matter for inquiry'; see also Queensland Electricity Commission (1985) 159 CLR 192, 208–9 (Gibbs CJ), 226 (Wilson J), 262 (Dawson J).
111 Some statements by Dixon J in Melbourne Corporation suggest that the constitutional problem with discriminatory laws is that they have a prohibited purpose. For example, his Honour stated that a discriminatory Commonwealth tax 'is aimed at the States and is an attempt to use federal power to burden or, may be, to control State action' ((1947) 74 CLR 31, 81 (emphasis added)).
Conversely, State laws that impair the 'integrity or autonomy' of the Commonwealth have the effect of restricting the Commonwealth's exercise of their constitutional powers (although that effect may be assumed, rather than established by evidence: see Hill, , 'Discrimination and the Melbourne Corporation Doctrine', above n 103, 83)Google Scholar.
112 As already noted, the Commonwealth and the States cannot 'waive' a true constitutional prohibition on the legislative powers of the other (see above, n 67). However, a Commonwealth provision 'authorising' the conferral of State functions on a member of the Commonwealth executive takes the State law outside the relevant prohibition. The necessary legislative power for the Commonwealth authorisation would derive from s 61 read with s 51(xxix) of the Constitution (see Hill, , 'Revisiting Wakim and Hughes', above n 13, 209)Google Scholar.
113 (1997) 190 CLR 410, 507–9 (confining Commonwealth immunity to mirror image of Melbourne Corporation doctrine).
114 [2003] 1 Qd R 272, 292 [46].
115 See Hill, 'Revisiting Wakim and Hughes', above n 13, 217.
116 Predominantly the Federal Court and State Supreme Courts, although the definition of 'Court' in s 58AA(1) of the former Corporations Law included the Family Court, and Territory Supreme Courts. Matters arising under the current Commonwealth Corporations Act can also be heard by both federal and State courts (see Part 9.6A). However, this involves the exercise of federal jurisdiction, conferred (in the case of State courts) under s 77(iii) of the Constitution.
117 In the period from 1991 to 1999, the number of Corporations Law matters filed in the Federal Court annually ranged between 668 (1998–99) and 1946 (1995–96) (see Federal Court of Australia: Annual Report 1994–1995 (1995), 45 and Federal Court of Australia: Annual Report 1998–1999 (1999), 111).
118 See Brian, Opeskin, 'Allocating Jurisdiction in the Federal Judicial System' (1995) 6 Public Law Review 204, 212–3, 215Google Scholar.
119 See, eg, State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253, 271 (Brennan CJ, Dawson, Toohey and Gaudron JJ), 285–7 (McHugh and Gummow JJ). In Mobil Oil (2002) 211 CLR 1, the Court divided on the extent to which Victorian group proceedings legislation could make 'absent plaintiffs' bound by orders of the Supreme Court of Victoria (at 24–6 [13]–[17] (Gleeson CJ), 35–8 [52]–[61] (Gaudron, Gummow and Hayne JJ) (the only relevant territorial consideration is the Court's jurisdiction over the defendant); cf 63–5 [138]–[143] (Kirby J), 82–3 [190]–[191] (Callinan J) (there were some territorial limits)). It might be possible, however, for a State body to derive authority to perform functions in another State from legislation enacted by that other State (ie, a State–State cooperative legislative scheme).
120 See above, text accompanying n 48.
121 This argument is especially strong with the High Court, which has the constitutional role of mediating disputes between the Commonwealth and the States (see R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, 267–8 (Dixon CJ, McTiernan, Fullagar and Kitto JJ)). However, the cross-vesting schemes did not affect the jurisdiction of the High Court.
The existence of other federal courts, and the extent of their jurisdiction, is already controlled by the Commonwealth Parliament under ss 71 and 77(i) of the Constitution. Accordingly, it is not clear that the independence of those other federal courts was compromised if the Commonwealth Parliament could determine whether those courts can exercise State judicial functions as well.
122 Hill, , 'Revisiting Wakim and Hughes', above n 13, 224Google Scholar.
123 See above, text accompanying n 44.
124 Wakim (1999) 198 CLR 511, 585–6 [140]–[141] (Gummow and Hayne JJ, with Gleeson CJ and Gaudron J agreeing: 540 [3], 546 [26]). The 'common substratum of facts' test derives from Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, 512 (Mason J) ('Philip Morris').
125 See, eg, the discussion of accrued jurisdiction in Fencott v Muller (1983) 152 CLR 570, 602–9 (Mason, Murphy, Brennan and Deane JJ); Lee, Aitken, 'The Meaning of “Matter”: A Matter of Meaning – Some Problems of Accrued Jurisdiction' (1988) 14 Monash University Law Review 158, 158–60Google Scholar.
126 For example, the word 'matter' is also used to describe several heads of Commonwealth legislative power, such as s 51(xxxvi), (xxxvii) and (xxxix) of the Constitution (David Bennett QC and James Stellios, 'Oh Dear, What Can the Matter Be?', 22–1 (unpublished paper, copy on file with author)).
127 The minority in Abebe v Commonwealth (1999) 197 CLR 510 went further and held that, not only could a federal court be given jurisdiction to determine the whole of a dispute between parties, but it must have authority to determine the whole dispute. Their reasoning explicitly relies on the requirement that courts make 'final' decisions, and the importance of preventing fragmentation of the legal process: 555 [119], 557–8 [126]–[127] (Gaudron J), 572 [170]–[171], 574– [176], [178] (Gummow and Hayne JJ).
128 In particular, in considering whether the requirement for a 'matter' imports certain aspects of standing: see Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 ('Truth About Motorways'), 610 [42] (Gaudron J); Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, 405 [61] (Gaudron and Gummow JJ); see also 459 [243] (Hayne J).
129 See Philip Morris (1981) 148 CLR 457, 513–14 (Mason J); see also United Mine Workers of America v Gibbs, 383 US 715, 726 (1966) (justification for so-called pendent jurisdiction 'lies in considerations of judicial economy, convenience and fairness to litigants'). Viewing accrued jurisdiction as a pragmatic doctrine would simplify discussion of issues such as whether accrued jurisdiction is 'discretionary', and the time at which accrued jurisdiction is attracted by a federal defence (ie whether federal jurisdiction is taken to exist from the commencement of the proceedings).
130 See above, text accompanying n 45.
131 See, eg, Attorney-General (Vic) v Commonwealth (1935) 52 CLR 533 ('The Clothing Factory Case'); Re K L Tractors Ltd (1961) 106 CLR 318, 334 (Dixon CJ, McTiernan and Kitto JJ), as explained in Leslie, Zines, The High Court and the Constitution (4th ed, 1997) 261–2Google Scholar.
132 (1977) 139 CLR 117, 154–5; see also Hill, , 'Hughes and the Future of Co-operative Schemes', above n 17, 493–4Google Scholar.
133 In this sense, the position of a Commonwealth officer may be different from the position of a Commonwealth statutory authority (see above n 66, discussing Macleod).
134 Hughes (2000) 202 CLR 535, 553 [31]. It may also be what McMurdo P had in mind in stating that officers of the Commonwealth DPP could only prosecute State offences in the name of the State, and not the Commonwealth (see above, text accompanying n 51).
135 (1987) 163 CLR 117, 128. The consequence in Cram of a Commonwealth officer performing functions in a different capacity was that the officer would fall outside s 75(v) (although the officer would presumably be subject to State judicial review). There is a real question, however, whether a Commonwealth officer performing State functions in a personal capacity would also fall outside s 75(v).
136 See s 30 of the Coal Industry Act 1946 (Cth) and s 36 of the Coal Industry Act 1946 (NSW) (Coal Industry Tribunal) and s 37 of the Commonwealth Act and s 43 of the NSW Act (Local Coal Authority).
137 A Chapter III court may only perform non-judicial functions that are incidental to the exercise of federal judicial power: R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ('Boilermakers'). The non-judicial functions that federal judges may perform in a personal capacity include issuing telecommunication interception warrants (see, eg, Grollo v Palmer (1995) 184 CLR 348).
138 Even in the Ch III context, the usefulness of 'public confidence' as a criterion has been questioned: see Elizabeth, Handsley, 'Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power' (1998) 20 Sydney Law Review 183Google Scholar; see also Nicholas v The Queen (1998) 193 CLR 173, 197 [37] (Brennan CJ, with Hayne J agreeing on this point: 275–6 [242]).
139 See the first type of incompatibility identified in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 14 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ) ('Wilson').
140 See the test of s 109 inconsistency posed in Telstra v Worthing (1999) 197 CLR 61, 76 [28] (the Court), quoting Victoria v Commonwealth (1937) 58 CLR 618, 630 (Dixon J).
141 See, eg, Dietrich v The Queen (1992) 177 CLR 292, where all judges held that an accused did not have a common law right to be represented at public expense. See also Graham Barclay Oysters Pty Ltd v Ryan (2002) 194 ALR 337, 340–1 [6]–[7] (Gleeson CJ) decisions on allocation of revenue cannot be reconsidered by courts in an assessment of whether the government's behaviour was reasonable for the purposes of a negligence claim.
142 See above, text accompanying n 42 (the approach of Brennan J in Duncan and Davies JA in Fukusato).
143 Admittedly, the Commonwealth provision authorising the performance of State functions and the Commonwealth provisions setting out the body's Commonwealth functions may require some sort of 'reading together' (as to which, see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 381–382 [69]–[71] (McHugh, Gummow, Kirby and Hayne JJ); Re The Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 200 ALR 39, 46–7 [28]–[29] (the Court)).
144 See Cram (1987) 163 CLR 117, 128 (the Court).
145 A Commonwealth law permitting Commonwealth funds to be spent on performing State functions would be supported by s 81 of the Constitution (see Hill, 'Revisiting Wakim and Hughes', above n 13, 210).
146 For example, Commonwealth public servants employed under the Public Service Act 1999 (Cth) are engaged by the Agency Head 'for the purposes of the Agency' (s 22(1)). Moreover, without an express authorisation, there may be some doubt whether the State function was 'conducive to or consistent with' the officer's Commonwealth functions (see above, text accompanying nn 142–143).
147 The common law doctrine of incompatibility vacates an office to which a person is appointed if the person accepts another office and the duties of the two offices cannot be faithfully and impartially discharged by the same person (see, eg, Wilson (1996) 189 CLR 1, 15 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ), and the authorities cited). This common law doctrine can be overridden by legislation, unlike the constitutional notion of incompatibility developed in the Ch III context.
148 By analogy, there is a presumption that any new jurisdiction conferred on an established court is conferred on the court 'exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected' (Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554, 559 (the Court)).
149 Indeed, without an express statement of intention, the courts might not imply an intention that State functions are exercised in a personal capacity unless the officer is required to perform the Commonwealth and State functions in isolation from each other (see Cram (1987) 163 CLR 117, 128–9).
150 The validity of these provisions was upheld in Hughes, although the Court was critical of the drafting (see Hill, 'Hughes and the Future of Co-operative Schemes', above n 17, 480–1).
151 Which provides that the Commonwealth Parliament may invest any court of a State with federal jurisdiction with respect to the matters set out in ss 75 and 76 of the Constitutio n. In fact, the absence of a s 77(iii) equivalent is a reason not to apply Wakim–style reasoning to Chapter II of the Constitution (see below, text accompanying nn 243–245).
152 See, eg, James v Commonwealth (1928) 41 CLR 442, 459–60 (Higgins J), 463–4 (Starke J) (Commonwealth regulations could confer authority on State body to grant licences under Commonwealth law); Aston v Irvine (1955) 92 CLR 353, 364–5 (the Court) (Commonwealth legislation can authorise State magistrates to indorse warrants for apprehension in the State of a person from another State); Conroy v Carter (1968) 118 CLR 90, 101–2 (Taylor J, with Barwick CJ, McTiernan and Menzies JJ agreeing on this point: 96, 96, 104, and Kitto and Windeyer JJ agreeing generally: 96, 104) (Commonwealth legislation could authorise making arrangements for State bodies to collect Commonwealth tax as agents for the Commonwealth); R v Humby; Ex parte Rooney (1973) 129 CLR 231, 239 (McTiernan J), 240 (Gibbs J), 245–6 (Stephen J, with Mason J agreeing on this point: 251) (Commonwealth legislation could provide for maintenance payments to be made to a State body for the benefit of a party to a marriage).
153 (1955) 92 CLR 353, 365 (the Court).
154 Professor Winterton argues that the powers were delegated (Commonwealth) legislative power rather than Commonwealth executive power (Winterton, above n 80, 107), while Professor Richardson argues that the powers were State executive powers rather than Commonwealth executive powers ( Richardson, J E, 'The Executive Power of the Commonwealth' in Leslie, Zines (ed), Commentaries on the Australian Constitution (1977) 50, 85)Google Scholar. The problem with the first explanation is that indorsing warrants appears to be a clear example of executive, rather than legislative, power. However, the second explanation seems to be contrary to the further statement that magistrates are not acting as agents of the executive government of the State (Aston v Irvine (1955) 92 CLR 353, 364), as noted by Professor Winterton (above n 80, 290 n 100).
155 (2002) 211 CLR 287, 292 [7] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). See also The Wooltops Case (1922) 31 CLR 421, 440 (Isaacs J) ('Executive action in relation to a Commonwealth law is clearly outside State jurisdiction and clearly within the field of Commonwealth jurisdiction. If done at all, it is assumed that the Commonwealth Government should do it').
156 See, eg, Lujan v Defenders of Wildlife, 504 US 555 (1992), 577 (Scalia J delivering the opinion of the Court); Federal Election Commission v Akins, 524 US 11 (1998), 36–7 (Scalia J, dissenting); Friends of the Earth, Inc v Laidlaw Environmental Services (TOC), Inc, 528 US 167 (2000), 209 (Scalia J, dissenting).
157 Cases such as Lujan v Defenders of Wildlife were directly concerned with Article III of the United States Constitution, which concerns federal courts, and the need for a 'case' or 'controversy', rather than the executive power as such. Moreover, the High Court has distinguished these American authorities on standing in part because of the different role of the executive government in the American and Australian systems of government (Truth About Motorways (2000) 200 CLR 591, 603 [21] (Gleeson CJ and McHugh J), 635 [115]–[116] (Gummow J), 657 [173] (Kirby J)).
158 See Richardson, above n 154, 85. See also above n 95 (Dennis Rose arguing that responsible government would prevent a State law from imposing a duty on Commonwealth officers). In NEAT Domestic Trading Pty Ltd v AWB Limited (2003) 198 ALR 179 ('NEAT Domestic'), 202 [96], Kirby J stated in dissent that, '[i]n so far as decisions [of a private body] derive their necessity or effectiveness … from federal legislation, they may involve the exercise of public power [and] a minister must be accountable to the Parliament in respect of such an exercise [of public power]' (emphasis added).
159 (1998) 195 CLR 424, 451 [41]. However, as Egan v Willis concerned responsible government at the State level, it was not necessary to determine whether that result was consistent with Ch II of the Commonwealth Constitution.
160 See, eg, Lange (1997) 189 CLR 520, 558–9, 561 (the Court).
161 Winterton, above n 80, 104. See also Geoffrey, Lindell, 'Book Review: Parliament, The Executive and The Governor-General' (1983) 6 University of New South Wales Law Journal 261, 263Google Scholar and Geoffrey, Lindell, 'Responsible Government' in Paul, Finn (ed), Essays on Law and Government, Volume 1: Principles and Values (1995) 75, 112 (expressing agreement with Professor Winterton)Google Scholar.
162 Lindell, , 'Responsible Government', above n 161, 84–7Google Scholar.
163 (2001) 207 CLR 391.
164 Ibid 460 [212].
165 Ibid 402 [14]; see also 460 [211] (Gummow and Hayne JJ). Similarly, in Egan v Willis (1998) 195 CLR 424, 451 [41], Gaudron, Gummow and Hayne JJ stated that '[i]t should not be assumed that the characteristics of a system of responsible government are fixed or that the principles of ministerial responsibility which developed in New South Wales after 1855 necessarily reflected closely those accepted at Westminster'.
166 For example, State judges exercising federal jurisdiction are not 'officers of the Commonwealth' (The Tramways Case (No 1) (1914) 18 CLR 54, 79 (Isaacs J); R v Murray and Cormie; Ex parte Commonwealth (1916) 22 CLR 437, 452 (Isaacs J), 464 (Higgins J); see also Trimbole v Dugan (1984) 3 FCR 324, 328 (Woodward J) (Commonwealth authorisation to perform function under Commonwealth law does not convert State magistrate into an officer of the Commonwealth). Conversely, Commonwealth officers who are performing State functions under a cooperative scheme will usually remain within the reach of s 75(v) (see Cram (1987) 163 CLR 117, 128–31 (the Court); but see above n 149).
167 By contrast, judicial review under the AD(JR) Act looks to the nature of the power exercised (the decision must be administrative in nature, and made 'under' an enactment). Common law judicial review also looks to the nature of a power, as judicial review is available if (1) the decision-maker is empowered by 'public law' (broadly, statute or the prerogative) (see eg Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 409 (Lord Diplock)) or (2) the decision-maker, although not empowered by public law, is exercising 'public duties' (ie regulatory powers) (see eg R v Panel on Takeovers and Mergers; Ex parte Datafin Plc [1987] QB 815, 835 (Donaldson MR), 847 (Lloyd LJ)). This aspect of Datafin has been criticised, on the basis that there cannot be ultra vires if there is no 'vires' to be 'ultra' ( Wade, H W R, 'Beyond the Law: A British Innovation in Judicial Review' (1991) 43 Administrative Law Review 559, 562–3, 570)Google Scholar.
168 (2003) 195 ALR 24 ('Plaintiff S157/2002'), 45 [75]–[76], 47 [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); cf 68–9 [160] (Callinan J) (limiting s 75(v) to 'manifest' errors of jurisdiction).
169 The Court held that s 474 of the Migration Act 1958 (Cth) did not attempt to change the circumstances which constituted jurisdictional error (ibid 43 [67]–[68] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) (the general words of s 474 did not purport impliedly to repeal all statutory limitations or restraints on the exercise of power); see also 35 [34]–[35] (Gleeson CJ), 69 [162] (Callinan J)). Therefore Plaintiff S157/2002 does not determine the position if the Commonwealth were to enact a law that, on its proper construction, provided that an error that the common law would classify as 'jurisdictional' did not undermine the validity of a decision.
170 See, eg, Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, 178 (Mason CJ), 207 (Deane and Gaudron JJ), 219 (Dawson J); Re Refugee Review Tribunal v Aala (2000) 204 CLR 82, 142 [166] (Hayne J).
171 As argued by Dr Jeremy, Kirk, 'Administrative Justice and the Australian Constitution' in Robin, Creyke John, McMillan (eds), Administrative Justice – The Core and The Fringe (2000) 78, 83–98Google Scholar, especially 93–8.
172 See Craig v South Australia (1995) 184 CLR 163, 177 (the Court); see also s 5(1)(d) of the AD(JR) Act (which refers to a decision that 'was not authorized by the enactment in pursuance of which it was purported to be made').
173 At common law, a jurisdictional error includes identifying a wrong issue, asking the wrong question, ignoring relevant material, and relying on irrelevant material in a way that affects the exercise of power (see, eg, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351 [82] (McHugh, Gummow and Hayne JJ, with Gleeson CJ agreeing: 329 [1])).
174 If nothing else, because all administrative law obligations can be framed as implied limits on the statutory power conferred: see, eg, Kioa v West (1985) 159 CLR 550, 610–11 (Brennan J); Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 100–101 [39]–[40] (Gaudron and Gummow JJ) (discussing natural justice).
175 See above n 170 (s 75(v) guarantees the jurisdiction to grant administrative law remedies, but not the grounds on which they are granted).
176 Which relevantly provides that the Constitution 'shall be binding on the courts, judges, andpeople of every State and of every part of the Commonwealth'. These matters may well arise under the Constitution or involve its interpretation within s 76(i) of the Constitution as well. However, this source of jurisdiction is not constitutionally guaranteed, as s 76 jurisdiction depends on Commonwealth legislation to make it effective (in the case of s 76(i), s 30(a) of the Judiciary Act 1903 (Cth)).
177 5 US (1 Cranch) 137 (1803); see also Communist Party Case (1951) 83 CLR 1.
178 In British American Tobacco Australia Ltd v Western Australia (2003) 200 ALR 403, the High Court held that there was a federal right to proceed against a State in constitutional cases that overrode notice requirements contained in State crown suits legislation. There was disagreement, however, over whether this federal right to proceed derived from Commonwealth legislation conferring jurisdiction in constitutional cases (419–20 [60]–[62] (McHugh, Gummow and Hayne JJ)) or derived from the Constitution itself (409 [15]–[16] (Gleeson CJ), 442–3 [155] (Kirby J)). By way of comparison, in Commonwealth v Mewett (1997) 191 CLR 471, a majority of the Court implied a right to proceed against the Commonwealth directly from the Constitution, particularly s 75(iii) (545–52 (Gummow and Kirby JJ, with Brennan CJ agreeing generally and Gaudron J agreeing on this point: 491, 531)).
179 What I have termed statutory ultra vires: see above, text accompanying n 172.
180 In the narrow sense that government officials must have (constitutionally valid) legal authority for their actions. Dr Kirk rejects the argument that the rule of law can be used as a basis for 'constitutionalise' the administrative law grounds of review under s 75(v) of the Constitution (Kirk, above n 171, 96–8). Even so, his argument that s 75(v) requires judicial review in cases of constitutional or statutory ultra vires seems to depend on the rule of law – or at least the narrow conception just identified – being given constitutional effect.
181 Communist Party Case (1951) 83 CLR 1, 193 (Dixon J). In Plaintiff S157/2002, the joint judgment quoted Dixon J, and stated further that s 75(v) 'is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them' ((2003) 195 ALR 24, 52 [103]–[104]).
182 In particular, so-called 'Hickman' clauses do not protect errors unless the decision (1) was a bona fide attempt to exercise statutory powers, (2) relates to the subject-matter of the legislation and (3) is reasonably capable of reference to the statutory power conferred (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, 615 (Dixon J)). Each of these provisos ensures that privative clauses do not protect what I have called 'statutory ultra vires'. While the construction of 'Hickman' clauses is analytically distinct from the constitutional requirements for judicial review, some judges have linked the two (Deputy Commissioner for Taxation v Richard Walter (1995) 183 CLR 168, 211 (Deane and Gaudron JJ); Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602, 633 (Gaudron and Gummow JJ); cf Leslie, Zines, 'Constitutional aspects of judicial review of administrative action' (1998) 1 Constitutional Law & Policy Review 50Google Scholar, especially at 53).
183 (2000) 204 CLR 82, 101 [42] (with whom Hayne J agreed: 144 [172]).
184 See, eg, Saitta Pty Ltd v Commonwealth (2000) 106 FCR 554, 573 [91] (Weinberg J); Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230, 257 [96] (Finn J); McGowan v Migration Agents Registration Authority [2003] FCA 482 (Unreported, Branson J, 20 May 2003), [26]. The contrary view, however, is that the Commonwealth should not 'be competent to remove its agencies from the reach of s 75(v) by the simple expedient of corporatising them' (Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 28).
185 A Commonwealth statutory authority would almost certainly be 'the Commonwealth' for the purposes of s 75(iii) (see, eg, Edensor Nominees (2001) 204 CLR 559, holding that ASIC is the Commonwealth). However, often a company would not be (see SGH Ltd (2002) 210 CLR 51, holding that SGH Ltd was not 'the State' for the purposes of s 114 of the Constitution, even though Queensland exerted a high degree of control over the company).
186 (2003) 195 ALR 24, 46 [80] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
187 See, by analogy, R v Cook; Ex parte Twigg (1980) 147 CLR 15, 25–6 (Gibbs J, with Barwick CJ, Stephen, and Mason JJ agreeing: 18, 29, 29), 32–3 (Aickin J) (once the High Court has jurisdiction under s 75(v), it has power to grant certiorari as an ancillary remedy). See also, by analogy, Commonwealth v Mewett (1997) 191 CLR 471, 550–1 (Gummow and Kirby JJ); Blunden v The Commonwealth [2003] HCA 73 (Unreported, Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 10 December 2003), [43] (Gleeson CJ, Gummow, Hayne, and Heydon JJ) (s 75(iii) jurisdiction cannot be defeated by Commonwealth immunity of suit).
188 See Aitken, L J W, 'The High Court's Power to Grant Certiorari – the Unresolved Question' (1986) 16 Federal Law Review 370, 377–8CrossRefGoogle Scholar. See also, by analogy, Abebe v The Commonwealth (1999) 197 CLR 510, 529 [36] (Gleeson CJ and McHugh J) (a 'matter cannot be defined without reference to the remedy). Currently, however, the Court has statutory power to grant administrative law remedies in the exercise of s 75(iii) jurisdiction (see ss 31–33 of the Judiciary Act 1903 (Cth)).
189 Particularly given the substantial overlap between s 75(iii) and s 75(v) (see particularly Deputy Commissioner for Taxation v Richard Walter (1995) 183 CLR 168, 204–5 (Deane and Gaudron JJ), also 179 (Mason J), 221 (Dawson J); see also Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22, 40–2 (Mason, Wilson, Brennan, Deane and Dawson JJ)).
190 See Plaintiff S157/2002 (2003) 195 ALR 24, 46 [80] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) (s 75(v) guarantees the availability of an injunction against a Commonwealth officer for fraud etc).
191 If a Commonwealth Act confers the decision-making function on a statutory authority, it may not be permissible to bring an action against an officer of the statutory authority (see, eg, Vietnam Veterans' Affairs Association v Cohen (1996) 70 FCR 419, 432–3 (Tamberlin J) (the purported action against the officer was a 'colourable' attempt to bring the action within the Federal Court's jurisdiction)). But see below, n 195 (pendent party jurisdiction).
192 In Plaintiff S157/2002, the joint judgment referred not only to s 75(v), but also to s 75(iii) (which confers original jurisdiction on the High Court in matters in which the Commonwealth is a party: (2003) 195 ALR 24, 45 [73], 46–7 [80]), s 76(i) (which enables the Commonwealth to grant original jurisdiction on the High Court in matters arising under the Constitution or involving its interpretation: 47 [80]), the principle that a non–judicial body cannot conclusively determine the limits of its jurisdiction (45 [73], 50 [98]; see also 27 [9] (Gleeson CJ)), and even the requirement that legislation determine 'the content of a law as a rule of conduct or a declaration as to power, right or duty' (51 [102], quoting Commonwealth v Grunseit (1943) 67 CLR 58, 82 (Latham CJ)). These additional factors would be relevant to State officers performing Commonwealth functions (although, with s 75(iii), some ingenuity would be needed with the phrase 'a person ... being sued on behalf of the Commonwealth').
193 In other words, on this view s 75(v) merely makes clear in relation to Commonwealth officers what could be implied from the Constitution in any event (that decisions made ultra vires on constitutional or statutory grounds must be reviewable in the High Court).
194 As contended by Aronson and Dyer, above n 184, 28 (contrary to the authorities cited above nn 166 and 184). In NEAT Domestic (2003) 198 ALR 179, 211 [133], Kirby J stated in dissent that '[i]n so far as private corporations are entrusted under a statute with public functions affecting others, they are thereby rendered liable … , depending upon the terms of the legislation, quite possibly to the writs provided by the Constitution'.
195 Moreover, if a person who is a Commonwealth officer could be properly joined as a second respondent (say, the Minister administering the Commonwealth Act), the fact that the first respondent was not a Commonwealth officer would not seem to deprive the High Court of jurisdiction under s 75(v) of the Constitution (see Saitta Pty Ltd v Commonwealth (2000) 106 FCR 554, 573 [91] (Weinberg J), discussing the equivalent jurisdiction conferred by s 39B(1) of the Judiciary Act). This is what the Americans call 'pendent party' jurisdiction (as distinct from 'pendent claim' jurisdiction): see Finley v United States, 490 US 545 (1989); see also Wakim (1999) 198 CLR 511, 586–7 [144] (Gummow and Hayne JJ). However, the action against a Commonwealth officer must not be a 'colourable' attempt to attract jurisdiction (see above, n 191).
196 Winterton, above n 80, 67.
197 See the definition of 'decision to which this Act applies' in s 3(1) of the AD(JR) Act. There is no necessary difficulty with action by a State officer or a private body satisfying the other preconditions of this definition (a 'decision' of 'administrative character').
198 The Commonwealth can limit the scope of judicial review, and may in some situations exclude judicial review altogether (see below, paragraph containing nn 206–207). Conversely, the Commonwealth may extend federal administrative law obligations to apply even when the decision-maker is not exercising Commonwealth executive power. For example, the Commonwealth can impose administrative law obligations on Commonwealth officers performing functions under State legislation (see para (ca) of the definition of 'enactment' in s 3, and sch 3 of the ADJR Act).
199 Of course, s 75(v) of the Constitution (unlike the AD(JR) Act) applies to the exercise of Commonwealth judicial power as well as Commonwealth executive power. Moreover, while the decisions of private clubs and associations may sometimes be subject to the requirements of natural justice, this type of 'judicial review' does not mean that those clubs or associations are exercising executive power. Rather, natural justice comes to operate on these clubs or associations by the rules of the body in question being construed (subject to contrary intention) on the basis that fair procedures are intended (McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759, 785 [97] (Campbell J) ('McClelland'); see generally Forbes v New South Wales Trotting Club (1979) 143 CLR 242). That difference is reflected in the remedies available: instead of the prerogative writs, a plaintiff would obtain a declaration that the action was wrongful and an injunction against enforcing the decision (McClelland (2002) 191 ALR 759, 780 [82]).
200 For example, the Attorney–General's capacity to make an extradition request derives from s 61 of the Constitution, rather than s 40 of the Extradition Act 1988 (Cth) (which provides that an extradition request by Australia 'shall only be made by or with the authority of the Attorney-General'): Oates v Attorney-General (Cth) (2003) 197 ALR 105, 114 [39] (the Court). Although a Minister also has various legal capacities as a natural person, a reference to 'the Minister' would ordinarily be taken as the Minister in his or her official capacity (cf above n 148).
201 (1984) 155 CLR 234 ('Glasson').
202 (2003) 198 ALR 179 ('NEAT Domestic').
203 For example, sometimes Commonwealth legislation is construed as impliedly conferring power on a decision–maker to make a decision, in order that the decision be made 'under' the Act and thus subject to review under the AD(JR) Act (see below, n 213). Indeed, if judicial review is constitutionally required on the grounds of constitutional or statutory ultra vires (see above, text accompanying nn 176–182), federal judicial review would be constitutionally required whenever Commonwealth legislation is the source of power.
204 Cf NEAT Domestic (2003) 198 ALR 179, 195 [63] (McHugh, Hayne and Callinan JJ) (judicial review obligations under the AD(JR) Act could not be sensibly accommodated with the decision-maker's other obligations under company law). In the particular situation considered in NEAT Domestic, McHugh, Hayne and Callinan JJ discounted the fact that the Commonwealth Act gave legal effect to a private company's decision (ibid 193 [54]). However, I do not think their Honours meant to suggest that a decision is never be made 'under' an enactment if Commonwealth legislation gives legal effect to a decision without conferring power to make the decision.
205 If a decision is made by a Commonwealth officer, judicial review is guaranteed by s 75(v) of the Constitution to some extent (see above, text accompanying nn 171–175). It may even be that some form of judicial review is guaranteed if a Commonwealth Act confers power on a decision-maker to make a decision (see above, text accompanying nn 176–182).
206 However administrative law obligations are viewed, they can be excluded by (valid) legislation, either expressly or by necessary implication. If administrative law obligations are regarded as implied statutory limitations on the functions conferred (see above, n 174) then the Act might not create those obligations. If, however, administrative law obligations are seen a free-standing common law obligation, these obligations can be excluded by (valid) legislation, either expressly or by necessary implication.
207 In my view, this aspect of the joint judgment in NEAT Domestic asks whether the Commonwealth Parliament intended to exclude federal judicial review. The Commonwealth would not be taken to have intended to exclude judicial review if that result would be unconstitutional (cf Residual Assco Group Ltd v Spalvins (2001) 202 CLR 629, 644 [28] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ)).
208 See above, n 181. Brennan J in particular drew an explicit connection between the courts' role in ensuring that legislation is constitutionally valid and their role in ensuring that members of the executive do not exceed their statutory authority (see, eg, Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35 (the duty to pronounce on 'the validity of executive action when challenged on the ground that it exceeds constitutional power … extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law')).
209 The 'factum' metaphor is used in the context of the constitutionally-required separation of judicial power, with some cases holding that Commonwealth legislation which uses the decision of an administrative body as a 'factum' for creating rights and obligations does not confer judicial power on the body (see, eg, Rola Co (Australia) Pty Ltd v The Commonwealth (1944) 69 CLR 185).
210 In NEAT Domestic (2003) 198 ALR 179, McHugh, Hayne and Callinan JJ held that s 57(3B) of the Wheat Marketing Act 1989 (Cth) could attach legal consequences to a decision of a private company without the company's decisions being made 'under an enactment' for the purposes of the AD(JR) Act. Even Kirby J, who dissented on this point, appeared to accept the possibility that Commonwealth legislation might use a private body's decision as a 'factum', by contrasting the position in that case with a hypothetical Commonwealth Act that referred to the 'severable conduct of a private corporation' (at 209 [125]).
211 (1984) 155 CLR 234, 241 (the Court) ('When neither the Commonwealth Act nor the scheme [formulated by the Commonwealth Minister] is the source of the power to appoint the decision– maker, or the source of his power to make a decision, or the source of the decision's legal effect, it cannot be said that the decision was made under that enactment' (emphasis added)).
212 A decision by a Commonwealth officer is usually reviewable in federal courts under s 75(v) of the Constitution, unless perhaps the officer is performing the State functions 'in some different capacity' (see above, nn 135, 149 and 166).
213 For example, in Minister for Immigration and Ethnic Affairs v Mayer, Mason CJ, Deane and Dawson JJ held that s 6A(1)(c) of the Migration Act 1958 (Cth) impliedly conferred power on the Minister to determine whether an applicant for an entry permit had the status of a refugee ((1985) 157 CLR 290, 301). They based that conclusion on the fact that the contrary interpretation would mean (1) the Minister would not be under any obligation even to consider whether to make a determination, (2) the effectiveness of a decision would depend on whether it complied with the statutory requirement to be in writing, and (3) the statutory provision could be deprived of any content by a mere administrative decision discontinuing the current arrangements, or allocating the decision-making function to someone other than the Minister.
214 For example, as part of the joint Commonwealth-State investigation considered in Ellis, members of the Australian Federal Police ('AFP') were sworn in as special constables in the Queensland Police Service ('QPS'), members of the QPS were sworn in as special members in the AFP, and both AFP and QPS members were appointed to the staff of the then National Crime Authority, a body established by Commonwealth legislation ((2001) 162 FLR 423, 425–6 [4]–[5]). Similarly, ss 6(1)(m) and 17 of the DPP Act permit the Commonwealth DPP and staff to hold appointments under State law.
215 The rule of law is subject to federalism, in the sense that the Commonwealth Constitution does not contain any requirement for judicial review to be available at the State level (see below, n 236). Similarly, justiciability doctrines recognise that, in some situations, the rule of law — in the sense of judicial supervision of government action — gives way to other interests, such as the need for the executive government to be able to conduct relations with other countries effectively (see Geoffrey, Lindell, 'Judicial Review of International Affairs' in Brian R, Opeskin Donald R, Rothwell (eds), International Law and Australian Federalism (1997) 160, 188)Google Scholar. The formal analysis is that non-justiciable issues do not give rise to 'matters' (Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 197 ALR 461, 476–7 [64]–[68] (Black CJ and Hill J)).
216 See above, text accompanying nn 67–68.
217 See above, Part 3(A)(i).
218 (1997) 190 CLR 413, 440 (Dawson, Toohey and Gaudron JJ), and see 425 (Brennan CJ).
219 The weight of authority suggests that the Commonwealth's executive power extends only as far as its legislative power, including implied legislative powers: see, eg, Duncan (1983) 158 CLR 535, 560 (Mason J) (scope of Commonwealth executive power is ascertained from the distribution of legislative powers); Ruddock v Vadarlis (2001) 110 FCR 491, 539 [180] (French J), and the authorities cited; see also Johnson v Kent (1975) 132 CLR 164, 169 (Barwick CJ, with McTiernan and Stephen JJ agreeing generally: 172, and Jacobs J agreeing on this point: 174).
220 The States also have a number of inherent powers deriving from their status as governments, but it is unlikely that these powers would be engaged in a Commonwealth– State cooperative legislative scheme.
221 For example, the prosecution of most offences in Commonwealth places is undertaken by State DPPs, because the Commonwealth Places (Application of Laws) Act 1970 (Cth) picks up and applies the criminal law of the surrounding State. The validity of that arrangement was confirmed in R v Porter (2001) 53 NSWLR 354.
222 It is doubtful, in the light of Melbourne Corporation, whether the Commonwealth could impose special obligations on the State executive unilaterally. There is also an issue whether any State approval would need to be contained in legislation, or whether executive approval is sufficient, given that s 109 of the Constitution is not relevant in this situation (see Hill, , 'Revisiting Wakim and Hughes', above n 13, 207 n 27)Google Scholar.
223 Cf above, text accompanying n 80 (Commonwealth law can confer authority on the ACC to undertake non–coercive investigation of possible breaches of State law). The Commonwealth Minister may make an arrangement with the appropriate State Minister for the ACC to receive information or intelligence relating to relevant criminal activities from the State or State authorities (see s 21 of the ACC Act).
224 But see below, paragraph containing nn 228–231 (if the Commonwealth Act gives legal effect to a decision by a State officer who holds a dual Commonwealth appointment, the Commonwealth Act may be construed as impliedly conferring legal power on the officer to make the decision).
225 Consequently, the Commonwealth argued, a decision of a State actuary was not made 'under' the Commonwealth Act for the purposes of the AD(JR) Act (cf above, Part 4(B)(i)). The Commonwealth left open the possibility that judicial review of the State actuary's calculations might be available under State legislation.
226 See Austin (2003) 195 ALR 321, 373 [181] (Gaudron, Gummow and Hayne JJ). Kirby J, in dissent, did have to deal with the argument and rejected it (at 397 [274]).
227 See above, text accompanying n 204.
228 At least, these factors determine whether a person is an 'officer of the Commonwealth' (see above, text accompanying n 166).
229 See above, n 214.
230 As argued above, text accompanying nn 208–214.
231 See the discussion of Mayer above, n 213.
232 Any differences in the judicial review regimes at the Commonwealth and State level would not necessarily amount to a form of 'direct' inconsistency. By way of comparison, there is no direct inconsistency between Commonwealth and State legislation that both penalise the same sort of conduct (even if the penalties are different); instead, the question is whether the Commonwealth offence was intended to be exhaustive (see, eg, R v Winneke; Ex parte Gallagher (1982) 152 CLR 211, 218 (Gibbs CJ), 223–4 (Mason J), 235 (Wilson J); see also R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338, 346–7 (Mason J, with Barwick CJ and Jacobs J agreeing on this point: 339, 347–8)).
233 The State officer's authority to make any given decision under a cooperative legislative scheme might derive from the Commonwealth Act, the State Act, or a combination of both. The cooperative object of the scheme suggests that the officer's judicial review obligations should not depend on whether the particular decision happened to be sourced in the Commonwealth Act or the State Act.
234 See above, text accompanying n 216.
235 See above, text accompanying nn 67–70 (considering whether the converse integrity and autonomy of the Commonwealth would prevent high level Commonwealth officials from performing State functions).
236 A State administrative body may make binding determinations of fact or law, because a State parliament or executive may validly exercise judicial power (Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51). There are, however, recent suggestions from the NSW Court of Appeal that the appellate system contained in s 73 of the Commonwealth Constitution might require that decisions on certain 'core matters' be reviewable in State Supreme Courts (see Mitchforce v Industrial Relations Commission [2003] NSWCA 151 (Unreported, Spigelman CJ, Mason P and Handley JA, 13 June 2003), [120]–[133] (Spigelman CJ), [147]–[149] (Mason P); cf Michael, Sexton Julia, Quilter, 'Privative Clauses and State Constitutions' (2003) 5 Constitutional Law and Policy Review 69, 74–5)Google Scholar.
237 See above, Part 4(A)(ii). However, while it is clear that there is a constitutionally-protected minimum, it is not presently clear what that minimum is (see Dr Simon, Evans, 'Privative clauses and time limits in the High Court' (2003) 5 Constitutional Law and Policy Review 61, 66Google Scholar ('s 75(v) remains a guarantee of the rule of law to some uncertain extent')).
238 See above, n 205.
239 See above, text accompanying nn 209–210. That possibility would be especially significant if Melbourne Corporation were taken to prohibit the Commonwealth from conferring executive power on a particular State officer (see above, text accompanying n 235), because Commonwealth legislation could still give legal effect to a decision by the officer.
240 See, eg, James v Commonwealth (1928) 41 CLR 442, where Commonwealth regulations conferred authority on State body to grant licences under Commonwealth law.
241 See above, text accompanying nn 13–14.
242 See above, paragraph containing nn 120–122.
243 Some judges held that the express provision for conferring federal jurisdiction on State courts indicated that the converse process (conferring State jurisdiction on federal courts) was prohibited (Wakim (1999) 198 CLR 511, 557 [56] (McHugh J); see also Gould v Brown (1998) 193 CLR 346, 451 [208] (Gummow J)). However, the better view seems to be that s 77(iii) merely confirmed arguments based on other considerations (see Wakim (1999) 198 CLR 511, 581 [123] (Gummow and Hayne JJ)). It is well settled that the maxim of expressio unius est exclusio alterius must be applied with care (see, eg, Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88, 94 (the Court)).
244 See Wakim (1999) 198 CLR 511, 579 [121] (Gummow and Hayne JJ) ('The fact that there is a power to invest State courts with federal jurisdiction does not mean that there must be some capacity to make a reciprocal arrangement'). Similarly, this possibility was used by Wilson J as reason to reject the need for federal courts' accrued jurisdiction (Philip Morris (1981) 148 CLR 457, 548 (dissenting)). The counter-argument is that s 77 of the Constitution also provides for the jurisdiction of federal courts to be made exclusive (s 77(ii)), and that accrued jurisdiction is necessary to make the conferral of exclusive jurisdiction effective (see at 514 (Mason J); see also Graeme, Hill, 'The Demise of Cross-vesting' (1999) 27 Federal Law Review 547, 575Google Scholar (making the same argument in relation to the cross-vesting of State jurisdiction)).
245 There were strong statements in Wakim that convenience is wholly irrelevant to constitutional validity ((1999) 198 CLR 511, 540 [2] (Gleeson CJ), 548 [34] (McHugh J), 569 [94] (Gummow and Hayne JJ)). In other cases, however, some members of the Wakim majority have explicitly used the consequences of alternative interpretations of the Constitution as a reason to prefer one interpretation over another (see, eg, the cases collected in Hill, , 'Revisiting Wakim and Hughes', above n 13, 215 n 89)Google Scholar. That may be all that McHugh J meant when he stated that '[u]nsatisfactory consequences cannot alter constitutional meanings but they should make us hesitate before adopting the meaning of a constitutional provision which is contrary to its text, history and purpose' (Cheng v The Queen (2000) 203 CLR 248, 298 [149]).
246 See above, text accompanying n 15.
247 For example, former High Court Justice Sir Ronald Wilson (also a former Solicitor-General of Western Australia) stated at the Australian Law Society's 29th Legal Convention at Brisbane in September 1995 that he had changed his views on the proper scope of the Commonwealth's external affairs power since his appointment as President of the Human Rights and Equal Opportunities Commission.
248 Before Nevada Department of Human Resources v Hibbs, 123 S Ct 1972 (2003), Rehnquist CJ, O'Connor, Scalia, Kennedy and Thomas JJ were in the majority, and Stevens, Souter, Ginsburg and Breyer JJ were in dissent, in each of these federalism cases: see Seminole Tribe of Florida v Florida, 517 US 44 (1996) ('Seminole Tribe'), Florida Prepaid Postsecondary Education Expenses Board v College Savings Bank, 527 US 627 (1999), College Savings Bank v Florida Prepaid Postsecondary Education Expenses Board, 527 US 666 (1999), Alden v Maine, 527 US 706 (1999), Kimel v Florida Board of Regents 528 US 62 (2000), and Board of Trustees of University of Alabama v Garrett, 531 US 356 (2001). In Hibbs, however, a majority comprising Rehnquist CJ, Stevens, O'Connor, Souter, Ginsburg and Breyer JJ upheld the validity of federal legislation that enabled a person to recover damages in a federal court for a State's failure to make family care payments as required by federal law. Even then, the opinion of the Court by Rehnquist CJ was not joined by Stevens J, and both Souter J (with whom Ginsburg and Breyer JJ joined) and Stevens J wrote separate concurring opinions.
It is true that early cases like Hans v Louisiana, 134 US 1 (1890) and even Seminole Tribe rested on implications drawn from the 11th Amendment (which provides that '[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or Citizens or Subjects of any Foreign State'), rather than federalism as such.) In Alden v Maine, however, the majority no longer relied on the 11th Amendment, but instead drew implications from the 'structure and history of the Constitution' (527 US 706 at 733; see also 713 (1999)).
249 Cf Oliver Wendell, Holmes, The Common Law (1881) 1 ('The life of the law has not been logicGoogle Scholar; it has been experience'). Windeyer J famously described the major change of direction in the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 ('Engineers' Case') as the result of reading the Constitution 'in a new light' (Victoria v Commonwealth (1971) 122 CLR 353, 396 ('The Pay-roll Tax Case')).