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Hill, Graeme --- "Will the High Court 'Wakim' Chapter II of the Constitution?" [2003] FedLawRw 18; (2003) 31(3) Federal Law Review 445

[*] BA LLB (Hons) (ANU), LLM (Colum). Constitutional Litigation, Australian Government Solicitor. 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] MelbULawRw 25; (1995) 20 Melbourne University Law Review 383, 401–2 (discussing whether the investigative powers of parliamentary committees can override executive privilege).

[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, 215–17.

[14] Ibid 217–26.

[15] Justice Bradley Selway, 'Constitutional Assumptions and the Meaning of Commonwealth Executive Power' (2003) 31 Federal Law Review 505. 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] MelbULawRw 18; (2000) 24 Melbourne University Law Review 478.

[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, 634.

[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] [2002] QCA 20; [2003] 1 Qd R 272 ('Fukusato'). A similar constitutional argument was raised in R v Holden [2001] VSCA 63; (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 [2002] QCA 20; [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 [2002] QCA 20; [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] HCA 29; (1983) 158 CLR 535, 579-80 ('Duncan').

[43] Fukusato [2002] QCA 20; [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 [2002] QCA 20; [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] HCA 38; (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 [2002] QCA 20; [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, 493). 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] HCA 71; (1998) 195 CLR 424, 452 [42] (Gaudron, Gummow and Hayne JJ), quoting Lange v Australian Broadcasting Corporation [1997] HCA 25; (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] HCA 71; (1977) 139 CLR 54, 87 (Murphy J)).

[62] [2002] HCA 37; (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] HCA 37; (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] HCA 28; (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] HCA 71; (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] HCA 26; (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] QSC 270; (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] QSC 270; (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] HCA 23; (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] HCA 5; (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] HCA 63; (1988) 166 CLR 79, 103 (Wilson and Dawson JJ); see also 117 (Toohey J)).

[83] See Ruddock v Vadarlis [2001] FCA 1329; (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] HCA 63; (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).

[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). But see R v O'Halloran [2000] NSWCCA 528; (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, 207–10.

[88] Hughes (2000) 202 CLR 535, 555 [39].

[89] See Hill, 'Hughes and the Future of Co-operative Schemes', above n 17, 495–7.

[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] HCA 62; (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] HCA 20; (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] HCA 63; (1988) 166 CLR 79, 108 (Brennan J)).

[93] This view of s 51(xxxvii) and (xxxviii) explains the result in Duncan [1983] HCA 29; (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 23.

[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] HCA 26; (1947) 74 CLR 31 and Queensland Electricity Commission v Commonwealth [1985] HCa 56; (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] HCA 71; (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, 84.

[104] See below, text accompanying n 109.

[105] Hill, 'Revisiting Wakim and Hughes', above n 13, 208–9.

[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] HCA 18; (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] HCA 26; (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] HCA 27; (2002) 211 CLR 1 ('Mobil Oil'), 25–6 [15]).

[109] See Hill, 'Discrimination and the Melbourne Corporation Doctrine' above n 103, 83. 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] HCA 26; (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] HCa 56; (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) [1947] HCA 26; 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).

[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).

[113] (1997) 190 CLR 410, 507–9 (confining Commonwealth immunity to mirror image of Melbourne Corporation doctrine).

[114] [2002] QCA 20; [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, 215.

[119] See, eg, State Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32; (1996) 189 CLR 253, 271 (Brennan CJ, Dawson, Toohey and Gaudron JJ), 285–7 (McHugh and Gummow JJ). In Mobil Oil [2002] HCA 27; (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] HCA 10; (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, 224.

[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] MonashULawRw 6; (1988) 14 Monash University Law Review 158, 158–60.

[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?', 21-2 (unpublished paper, copy on file with author)).

[127] The minority in Abebe v Commonwealth [1999] HCA 14; (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], 574–5 [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] HCA 16; (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, [1966] USSC 62; 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] HCA 31; (1935) 52 CLR 533 ('The Clothing Factory Case'); Re K L Tractors Ltd [1961] HCA 8; (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) 261–2.

[132] [1977] HCA 55; (1977) 139 CLR 117, 154–5; see also Hill, 'Hughes and the Future of Co-operative Schemes', above n 17, 493–4.

[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] HCA 28; (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] HCA 10; (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] HCA 26; (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] SydLawRw 9; (1998) 20 Sydney Law Review 183; see also Nicholas v The Queen [1998] HCA 9; (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] HCA 18; (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] HCA 12; (1999) 197 CLR 61, 76 [28] (the Court), quoting Victoria v Commonwealth [1937] HCA 82; (1937) 58 CLR 618, 630 (Dixon J).

[141] See, eg, Dietrich v The Queen [1992] HCA 57; (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] HCA 54; (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] HCA 28; (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] HCA 18; (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] HCA 22; (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] HCA 28; (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 Constitution. 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] HCA 45; (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] HCA 53; (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] HCA 39; (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] HCA 53; (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 (J E Richardson, 'The Executive Power of the Commonwealth' in Leslie Zines (ed), Commentaries on the Australian Constitution (1977) 50, 85). 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] HCA 53; (1955) 92 CLR 353, 364), as noted by Professor Winterton (above n 80, 290 n 100).

[155] [2002] HCA 37; (2002) 211 CLR 287, 292 [7] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). See also The Wooltops Case [1922] HCA 62; (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, [1992] USSC 78; 504 US 555 (1992), 577 (Scalia J delivering the opinion of the Court); Federal Election Commission v Akins, [1998] USSC 56; 524 US 11 (1998), 36–7 (Scalia J, dissenting); Friends of the Earth, Inc v Laidlaw Environmental Services (TOC), Inc, [2000] USSC 3; 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] HCA 35; (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] HCA 71; (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] HCA 25; (1997) 189 CLR 520, 5589, 561 (the Court).

[161] Winterton, above n 80, 104. See also Geoffrey Lindell, 'Book Review: Parliament, The Executive and The Governor-General' [1983] UNSWLawJl 22; (1983) 6 University of New South Wales Law Journal 261, 263 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).

[162] Lindell, 'Responsible Government', above n 161, 84–7.

[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] HCA 71; (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] HCA 15; (1914) 18 CLR 54, 79 (Isaacs J); R v Murray and Cormie; Ex parte Commonwealth [1916] HCA 58; (1916) 22 CLR 437, 452 (Isaacs J), 464 (Higgins J); see also Trimbole v Dugan [1984] FCA 323; (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] HCA 28; (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 [1986] EWCA Civ 8; [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' (H W R Wade, 'Beyond the Law: A British Innovation in Judicial Review' (1991) 43 Administrative Law Review 559, 5623, 570).

[168] (2003) 195 ALR 24 ('Plaintiff S157/2002'), 45 [75][76], 47 [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); cf 689 [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] HCA 23; (1995) 183 CLR 168, 178 (Mason CJ), 207 (Deane and Gaudron JJ), 219 (Dawson J); Re Refugee Review Tribunal v Aala [2000] HCA 57; (2000) 204 CLR 82, 142 [166] (Hayne J).

[171] As argued by Dr Jeremy Kirk, 'Administrative Justice and the Australian Constitution' in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and The Fringe (2000) 78, 8398, especially 938.

[172] See Craig v South Australia [1995] HCA 58; (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] HCA 30; (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] HCA 81; (1985) 159 CLR 550, 61011 (Brennan J); Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (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, and people 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 [1803] USSC 16; (1 Cranch) 137 (1803); see also Communist Party Case [1951] HCA 5; (1951) 83 CLR 1.

[178] In British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (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 (41920 [60][62] (McHugh, Gummow and Hayne JJ)) or derived from the Constitution itself (409 [15][16] (Gleeson CJ), 4423 [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] HCA 5; (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] HCA 53; (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] HCA 23; (1995) 183 CLR 168, 211 (Deane and Gaudron JJ); Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (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 50, especially at 53).

[183] [2000] HCA 57; (2000) 204 CLR 82, 101 [42] (with whom Hayne J agreed: 144 [172]).

[184] See, eg, Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554, 573 [91] (Weinberg J); Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296; (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] HCA 18; (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] HCA 36; (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 L J W Aitken, 'The High Court's Power to Grant Certiorari — the Unresolved Question' (1986) 16 Federal Law Review 370, 377–8. See also, by analogy, Abebe v The Commonwealth [1999] HCA 14; (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 3133 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] HCA 23; (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] HCA 69; (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] FCA 981; (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], 467 [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] HCA 47; (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] HCA 35; (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] FCA 1546; (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, [1989] USSC 96; 490 US 545 (1989); see also Wakim (1999) 198 CLR 511, 5867 [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] NSWSC 470; (2002) 191 ALR 759, 785 [97] (Campbell J) ('McClelland'); see generally Forbes v New South Wales Trotting Club [1979] HCA 27; (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] NSWSC 470; (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] HCA 21; (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] HCA 49; (1984) 155 CLR 234 ('Glasson').

[202] [2003] HCA 35; (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] HCA 35; (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 [2000] HCA 33; (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] HCA 17; (1944) 69 CLR 185).

[210] In NEAT Domestic [2003] HCA 35; (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] HCA 49; (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) [1985] HCA 70; 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) [2001] QSC 270; 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 and Donald R Rothwell (eds), International Law and Australian Federalism (1997) 160, 188). The formal analysis is that non-justiciable issues do not give rise to 'matters' (Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3; (2003) 197 ALR 461, 4767 [64][68] (Black CJ and Hill J)).

[216] See above, text accompanying nn 6768.

[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] HCA 29; (1983) 158 CLR 535, 560 (Mason J) (scope of Commonwealth executive power is ascertained from the distribution of legislative powers); Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, 539 [180] (French J), and the authorities cited; see also Johnson v Kent [1975] HCA 4; (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 CommonwealthState 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] NSWCCA 441; (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).

[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] HCA 24; (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 and Julia Quilter, 'Privative Clauses and State Constitutions' (2003) 5 Constitutional Law and Policy Review 69, 74–5).

[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, 66 ('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] HCA 45; (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] HCA 2; (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, 575 (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). 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] HCA 53; (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, [2003] USSC 4027; 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, [1996] USSC 28; 517 US 44 (1996) ('Seminole Tribe'), Florida Prepaid Postsecondary Education Expenses Board v College Savings Bank[1999] USSC 64; , 527 US 627 (1999), College Savings Bank v Florida Prepaid Postsecondary Education Expenses Board, 527 US 666 (1999), Alden v Maine, [1999] USSC 62; 527 US 706 (1999), Kimel v Florida Board of Regents [2000] USSC 1; 528 US 62 (2000), and Board of Trustees of University of Alabama v Garrett, [2001] USSC 11; 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[1890] USSC 66; , 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' [1999] USSC 62; (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 logic; 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] HCA 54; (1920) 28 CLR 129 ('Engineers' Case') as the result of reading the Constitution 'in a new light' (Victoria v Commonwealth [1971] HCA 16; (1971) 122 CLR 353, 396 ('The Pay-roll Tax Case')).

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