Gummow AC, The Honourable Justice WMC --- "Cowen and Zines's Federal Jurisdiction in Australia" [2004] FedLawRw 7; (2004) 32(1) Federal Law Review 163
BOOK REVIEW
COWEN AND ZINES'S FEDERAL JURISDICTION IN AUSTRALIA THIRD EDITION, THE FEDERATION PRESS
(2002)
The Hon Justice WMC Gummow, AC[*]
An understanding of the federal jurisdiction provided for in Ch III of the Constitution cannot be the preserve of specialist lawyers. This is because that understanding is vital to an appreciation of the operation of the Australian legal system as a whole.
The recent spate of cases brought under s 75(v) of the Constitution to construe the Migration Act 1958 (Cth) and to review for jurisdictional error administrative decisions in migration matters emphasise the close and necessary connection between federal jurisdiction, the Marbury v Madison doctrine,[1]and administrative law.
In John Pfeiffer Pty Ltd v Rogerson ('Pfeiffer'),[2]the High Court addressed the prevailing confusion stemming from its earlier decisions in McKain v R W Miller & Co (SA) Pty Ltd[3]and Stevens v Head.[4]Of those decisions, Sir Anthony Mason recently said that they were 'stark illustrations of the depth to which undiscriminating adherence to precedent will drive a court'.[5]What is of present interest is that the joint judgment in Pfeiffer gave detailed consideration to the question whether either of the double actionability rules or a choice of law rule was applicable in matters within federal jurisdiction.[6]
The position now has been established, in Plaintiff S157/2002 v Commonwealth,[7] that s 75(v) entrenches a measure of judicial review which is not limited to review for legislative or executive acts in excess of constitutional power. The remedies provided by s 75(v) do not lie as of right;[8] the existence of a right of appeal to the High Court, subject to the grant of special leave, is a relevant consideration in the exercise of the jurisdiction under s 75(v).[9] Further, it at last has been established that the liability of the Commonwealth in tort is created by the common law of Australia and that it is s 75(iii) of the Constitution rather than legislation which denies any operation of Crown or Executive immunity which otherwise might be pleaded to such actions.[10] This view of the significance of s 75(iii) reflects the statement by Sir Owen Dixon in 1935 that a fundamental principle of the federal system is the supposition in s 75 that the Commonwealth (and, in some cases, the States) are under liabilities enforceable in legal proceedings.[11]
Reference also should be made to Australian Securities and Investments Commission v Edensor Nominees Pty Ltd ('Edensor').[12]Much of the jurisdictional litigation in the Edensor matter may have been avoided if there had been an appreciation before the litigation reached the High Court that federal jurisdiction was attracted on the direct footing that, for the purposes of s 75(iii) of the Constitution, ASIC was to be regarded as 'a party' which is 'the Commonwealth'.[13]
Professor Zines gives detailed consideration to Re McBain; Ex parte Australian Catholic Bishops Conference.[14] He explains what was at the heart of the case as follows:[15]
It was accepted by all parties that the Federal Court judge had acted within his jurisdiction. The Attorney-General was not seeking to obtain relief in respect of any right or interest of the Commonwealth or its public. The matter was within the sphere of the State Attorney-General, whose function it is 'to represent the interest of the public of that State in vindicating the laws of that State'.[16]The State had accepted the decision as binding; yet the Commonwealth Attorney-General was seeking to have affirmed the operation of the State Act in the face of s 109.
To the relief of the writer, Professor Zines concludes by suggesting that the majority was correct in holding that in these circumstances there was no 'matter' within the meaning of Ch III.[17]
However, others of the decisions referred to above were delivered whilst the third edition of Professor Zines' work was in preparation; some post-date its publication. They emphasise the need for close attention to the subject with the assistance of the third edition. It is apparent that lawyers nevertheless appear to continue to conduct litigation in oblivious disregard of the existence of federal jurisdiction. In the first week of the Sittings for September 2003, the High Court delivered judgment in British American Tobacco Australia Ltd v Western Australia ('British American Tobacco')and[18] Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd ('Labrador').[19]The first appeal was brought from the Full Court of the Supreme Court of Western Australia and the second from the Queensland Court of Appeal. Labrador concerned a customs prosecution in the Supreme Court of Queensland. Questions respecting the application to that exercise of federal jurisdiction of the Evidence Act 1977 (Qld) had been stated and argued in the Supreme Court on the erroneous assumption that the Queensland statute of its own force might operate in the exercise of the federal jurisdiction with which the Supreme Court was invested. A similar course appears to have been followed, with respect to the contribution provisions in the Law Reform Act 1995 (Qld), in the exercise of federal jurisdiction by the Queensland District Court and the Court of Appeal in Austral Pacific Group Ltd (in liq) v Airservices Australia.[20]
More strikingly, the plaintiff in British American Tobacco sought recovery, as moneys had and received, of payments of licence fees under State laws imposing duties of excise contrary to s 90 of the Constitution. Indeed, as a first step, the plaintiff claimed declaratory relief in respect of the invalidity of the Western Australian legislation. In the joint judgment of McHugh, Gummow and Hayne JJ, it was said:[21]
[T]he parties appear at no stage in the Supreme Court to have considered that it was federal jurisdiction that had been engaged, thereby depriving this Court of the benefit of the reasoning of the Supreme Court upon the issues now accepted as arising.
Earlier in Cameron v The Queen,[22]the appellant who was arrested at Perth airport and charged with having in his possession a quantity of a prohibited drug contrary to a statute of Western Australia, was charged with contravention of that State law. However, as was pointed out in the High Court:[23]
It appears that Perth airport, the location at which the appellant was said to have had the possession with which he was charged was a 'Commonwealth place' within the meaning of the definition in s 3 of the Commonwealth Places (Application of Laws) Act 1970 (Cth). The consequence was that s 4 of that statute rendered the laws of Western Australia applicable there in accordance with their tenor and s 7 invested the several courts of that State with federal jurisdiction in all matters arising under those applied provisions. The laws of Western Australia 'picked up' in this way included the Misuse of Drugs Act 1981 (WA).
The removal provisions found in s 40 of the Judiciary Act 1903 (Cth) ('the Judiciary Act') and the appellate jurisdiction of the High Court provided by s 73 of the Constitution, operate, among other things, by reference to the exercise of federal jurisdiction by the State court in question. Further, as Professor Zines points out,[24] with reference to Queen Victoria Memorial Hospital v Thornton,[25] there is no constitutional provision under which the Parliament may require the courts of the States to exercise any form of non-judicial power.
For these and other reasons, it is important that there be an appreciation in the State courts of the nature of the source of the jurisdiction they exercise from case to case. The satisfaction by a court of the existence and nature of its jurisdiction is a matter which cannot be left to the assumptions or concessions of the legal representatives of the parties.
In meeting this obligation, the courts will continue to be assisted by the work under review. Reference also may usefully be made to the work of the Australian Law Reform Commission in producing Report 92, The Judicial Power of the Commonwealth[26]for its exposition of the operation of the Judiciary Act.
The first edition of Federal Jurisdiction in Australia appeared in 1959, as a work of the single authorship of Sir Zelman Cowen. That edition contains detail overtaken in later editions but still of use. An example is the discussion in the first edition,[27]which was used to support the point made recently in R v Gee,[28]that, at least since the time fairly shortly after its enactment, the Judiciary Act has not been the only law of the Commonwealth made in exercise of the power in s 77(iii) of the Constitution to invest courts of the States with federal jurisdiction and the Judiciary Act has never been a 'code' in the sense of a purportedly exhaustive exercise of that power by the Parliament.
The second edition appeared in 1978. This was shortly after the establishment of the Federal Court of Australia but before the establishment of the Federal Magistrates Court and before the efflorescence of the so-called 'accrued jurisdiction'. This followed the reading of the term 'matter' given in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd,[29]particularly in the judgment of Mason J. Further, the related problem of construction concerning 'double function' discussed in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett[30]has attracted legislative assistance. Section 15C of the Acts Interpretation Act 1901 (Cth), added by the Acts Interpretation Amendment Act 1984 (Cth), treats a provision which either expressly or by implication authorises the institution of a civil or criminal proceeding in a particular court in relation to a matter as vesting that court with jurisdiction in that matter.
The third edition appears solely under the name of Professor Zines and of necessity contains much new writing. The necessity is occasioned in part by the development of the 'accrued jurisdiction', the continuing examination of the position of the courts of the Territories in the federal structure, and by the separation of the Admiralty jurisdiction referable to s 76(iii) from the complex entanglement with the old Imperial jurisdiction under the Colonial Courts of Admiralty Act 1890 (Imp).[31]
The discussion respecting the courts in the Territories, in Ch 4 of the present edition, supports what might be called the 'integrationist approach' (which Professor Zines associates with Gaudron J, Kirby J, Hayne J and the writer) with respect to the Territory courts created by the Parliament and also those created by laws of territorial legislatures in the exercise of powers conferred by laws of the Parliament.
In the Introduction to the present edition, Professor Zines points to the consequences for the so-called cross-vesting scheme of the decision in Re Wakim; Ex parte McNally ('Wakim')[32]as having made it appropriate to publish the new edition. He expresses the view that during its life the scheme had been judged to be a great success in avoiding intricate technical issues of federal jurisdiction.
As to that, opinions may vary. In Byrnes v The Queen,[33]the joint judgment of four members of the Court emphasised the importance to the citizen, as an aspect of the rule of the law, in knowing the source of the legislation which must be observed and which provides for the jurisdiction exercised over the citizen.[34]An immediate sequel to Wakim was the enactment of remedial legislation at the State level, the validity of various provisions of which was upheld in Residual Assco Group Ltd v Spalvins[35]and Re Macks; Ex parte Saint.[36]The judgments in these cases touch upon various aspects of the relationship between the federal and State courts. It would have been worthwhile to have a treatment of them in the work under review. One subsequent consequence of Wakim has been the removal of many Commonwealth-State complications by the enactment, with the support of s 51(xxxvii) of the Constitution, of the Corporations Act2001 (Cth).[37]
The interrelation between the general provisions of s 68 and the other provisions of Pt X of the Judiciary Act dealing with criminal jurisdiction, and the general investment of jurisdiction by s 39 (supplemented since 1968 by s 39A), have given rise to some uncertainty. The evident preference of Professor Zines, expressed in the third edition,[38] is the view of Brennan J in Brown v The Queen.39 His Honour there said:
Jurisdiction to try persons charged on indictment with federal offences is conferred on State courts by s 68(2) of the Judiciary Act and s 39(2) of that Act so far as the general provisions of s 39(2) are not inconsistent with the more particular provisions of s 68(2)[.]
That construction has, since the publication of the third edition, attracted support in R v Gee.[40]
The apparently well-qualified graduates who arrive regularly to join the judicial staff in the federal courts do so largely ignorant of the basic mechanics of federal jurisdiction. That is not to comment upon the ability of those persons but upon the quality of the legal education on offer in Australian law schools. The author of the work under review has expressed modest scepticism on the point but the third edition is for them, as for any who seek to operate within the Australian legal system — surely all lawyers — the best means on hand to alleviate that ignorance.
[*] Justice of the High Court of Australia.
[1]See Marbury v Madison, 5 US [1803] USSC 16; (1 Cranch) 137 (1803).
[2] [2000] HCA 36; (2000) 203 CLR 503, discussed in Greg Taylor, 'The Effect of the Constitution on the Common Law as Revealed by John Pfeiffer v Rogerson' [2002] FedLawRw 3; (2002) 30 Federal Law Review 69.
[3] [1991] HCA 56; (1991) 174 CLR 1.
[4] [1993] HCA 19; (1993) 176 CLR 433.
[5] Sir Anthony Mason, 'Choosing between Laws', (Paper presented at the Festschrift in honour of Geoffrey Lindell, Melbourne University, 8 December 2002) 1.
[6] [2000] HCA 36; (2000) 203 CLR 503, 529–32 [50]–[58].
[7] (2003) 211 CLR 476, 513–14 [103]–[104]. See further Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165, 1170 [27], 1190–91 [152]-[154]; [2003] HCA 30; 198 ALR 59, 65, 93–4.
[8] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 89 [5], 107 [54], 136–7 [145]– [150], 144 [172], 156 [217].
[9]Glennan v Commissioner of Taxation (2003) 77 ALJR 1195, 1198 [17]; 198 ALR 250, 254–5.
[10] Commonwealth v Mewett (1997) 191 CLR 471. See also Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136, 157 [59]; Smith v ANL Ltd (2000) 204 CLR 493, 502–3 [16]; British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 77 ALJR 1566.
[11]Dixon, 'The Law and the Constitution' (1935) 51 Law Quarterly Review 590, 608.
[12] (2001) 204 CLR 559, 581 [40], 608 [126].
[13] See also Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287, 291– 3[4]–[10].
[14] [2002] HCA 16; (2002) 209 CLR 372.
[15]Leslie Zines, Cowen and Zines's Federal Jurisdiction in Australia (3rd ed, 2002) 17.
[16]Ibid n 66: [2002] HCA 16; (2002) 209 CLR 372, 409 [75].
[17] Ibid 20.
[18] [2003] HCA 47; (2003) 77 ALJR 1566.
[19] [2003] HCA 49; (2003) 77 ALJR 1629.
[20] [2000] HCA 39; (2000) 203 CLR 136.
[21] [2003] HCA 47; (2003) 77 ALJR 1566, 1574 [35]. See also Smith v ANL Ltd (2000) 204 CLR 493, 503 [17].
[22] (2002) 209 CLR 339.
[23] Ibid 341 [2].
[24]Zines, above n 15, 200–201.
[25] [1953] HCA 11; (1953) 87 CLR 144.
[26]October 2001.
[27]Sir Zelman Cowen, Federal Jurisdiction in Australia (1st ed, 1959) 87–93.
[28] (2003) 212 CLR 230, 253–4 [59].
[30] [1945] HCA 50; (1945) 70 CLR 141, 166. See Zines, above n 15, 126.
[31] See Admiralty Act 1988 (Cth), s 44.
[32] (1999) 198 CLR 511.
[33] [1999] HCA 38; (1999) 199 CLR 1, 13 [11].
[34] See Saunders, 'A New Direction for Intergovernmental Arrangements' (2001) 12 Public Law Review 274, 279–281.
[35] [2000] HCA 33; (2000) 202 CLR 629.
[36] [2000] HCA 62; (2000) 204 CLR 158.
[37] The various constitutional bases for the legislation are detailed in s 3. Part 9.6A provides in Div 1 for the investment of federal jurisdiction in respect of civil matters arising under the legislation, and Div 2 in respect of criminal matters, in the latter aspect to the exclusion of ss 68, 70 and 70A of the Judiciary Act (s 1338A).
[38]Zines, above n 15, 233.
[39] [1986] HCA 11; (1986) 160 CLR 171, 197.
[40] (2003) 212 CLR 230, 255–6 [66]–[67].