Kerr, Duncan --- "State Tribunals and Chapter III of the Australian Constitution" [2007] MelbULawRw 25; (2007) 31(2) Melbourne University Law Review 622
[∗] [2005] NSWADTAP 69 (Unreported, O’Connor P, 6 December 2005) (‘2UE v Burns’).
[†] [2006] FCA 60; (2006) 148 FCR 276 (‘Wood’).
[‡] [2006] NSWCA 185; (2006) 66 NSWLR 77 (‘Stockland’).
[§] [2006] NSWCA 349; (2006) 236 ALR 385 (‘Radio 2UE’).
[||] LLB (Tas); Federal Member for Denison; Adjunct Professor, Faculty of Law, Queensland University of Technology. This case note is based on a paper titled ‘The Federal and State Courts on Constitutional Law: The 2006 Term’ presented by the author on 16 February 2007 at the 2007 Constitutional Law Conference, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales. The author, with Stephen P Estcourt QC and Greg Barns, was counsel for the respondent in Wood [2006] FCA 60; (2006) 148 FCR 276.
[1] Australian Constitution s 71.
[2] Judiciary Act 1903 (Cth) s 38 (‘Judiciary Act’).
[3] It does this by first sweeping away every aspect of jurisdiction that state courts would otherwise have been able to exercise concurrently with the High Court: Judiciary Act s 39(1) acknowledges the jurisdiction made exclusive ‘by virtue of section 38’. Section 39(1) further removes the remaining jurisdiction of state courts over all federal matters. Section 39(2) then fills the vacuum s 39(1) creates by investing ‘the several Courts of the States’ with the right to exercise federal jurisdiction with respect to ‘all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38’. This conferral is subject to a number of conditions, one of the most important of which has recently been repealed. The now repealed s 39(2)(d) originally provided that the federal jurisdiction of a state court of summary jurisdiction could only be exercised by:
a Stipendiary or Police or Special Magistrate, or some Magistrate of the State who is specially authorized by the Governor‑General to exercise such jurisdiction, or an arbitrator on whom the jurisdiction, or part of the jurisdiction, of that Court is conferred by a prescribed law of the State, within the limits of the jurisdiction so conferred …
This thereby excluded courts composed of lay justices from the right to any exercise of federal jurisdiction. Section 39(2)(d) was repealed by Judiciary Legislation Amendment Act 2006 (Cth) sch 1 item 1, but seemingly on the mistaken assumption that no such courts remained in use.
[5] Australian Constitution s 75(iv).
[6] See, eg, Re Richards; Ex parte Maloney [1902] NSWStRp 20; (1902) 2 SR (NSW) B & P 3; Ex parte Penglase [1903] NSWStRp 110; (1903) 3 SR (NSW) 680; Fincham v Spencer [1901] ArgusLawRp 14; (1901) 26 VLR 665; Ramsay v Eager [1902] VicLawRp 11; (1902) 27 VLR 603. All Australian colonial Supreme Courts could exercise jurisdiction in respect of inter‑colonial disputes. In the period leading up to Federation the Australasian Judgments Act 1886, 49 Vict 4 (Federal Council of Australasia) and the Australasian Testamentary Process Act 1897, 60 Vict 2 (Federal Council of Australasia) operated alongside the various 19th century colonial rules of court to facilitate inter‑colonial service and execution of process. After the Commonwealth was formed in 1901 and the Australian Parliament enacted the Service and Execution of Process Act 1901 (Cth) these Acts of the Federal Council were repealed. However, s 27(2) of the Service and Execution of Process Act 1901 (Cth) provided for the continued transitional operation of pre‑existing colonial rules of court until each state Supreme Court made rules of court relating to the new legislation. In due course, each state Supreme Court did so: see, eg, Service and Execution of Process Act 1901: Rules of Court (NSW), made 23 December 1902, published in NSW Government Gazette, 30 December 1902, 9229.
[8] Neil Rees, ‘Procedure and Evidence in “Court Substitute” Tribunals’ (2006) 28 Australian Bar Review 41, 43–4.
[9] Australian Constitution s 77(iii). In some cases this will be simple to establish. Thus the New South Wales Dust Diseases Tribunal, although called a tribunal, is expressly established as a court of record: Dust Diseases Tribunal Act 1989 (NSW) s 4(2). But it has also always been possible for a state body to be a court even if its empowering statute does not include such a clear statement: see, eg, State Rail Authority (NSW) v Consumer Claims Tribunal (1988) 14 NSWLR 473, 477–9 (Hope JA).
[11] R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254.
[12] See generally Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51 (‘Kable’). See also Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372, 381 (Street CJ), 398–401 (Kirby P), 407 (Glass JA), 407 (Mahoney JA); Clyne v East [1967] 2 NSWR 483, 487–8 (Herron CJ), 495 (Sugerman JA); City of Collingwood v Victoria [No 2] [1994] VicRp 46; [1994] 1 VR 652, 663–4 (Brooking J); Nicholas v Western Australia [1972] WAR 168, 175 (Burt J).
[13] See below Part III(B)(5).
[14] This trend is observed initially in Kable [1996] HCA 24; (1996) 189 CLR 51.
[15] [2006] FCA 60; (2006) 148 FCR 276.
[16] This is an expression I have borrowed from Graeme Hill, ‘State Administrative Tribunals and the Constitutional Definition of “Court”’ (2006) 13 Australian Journal of Administrative Law 103, 105–6. For a good example of the balance sheet approach: see A‑G (UK) v British Broadcasting Corporation [1981] AC 303.
[17] [2006] FCA 60; (2006) 148 FCR 276, 292 (Heerey J), citing Australian Postal Commission v Dao [No 2] (1986) 6 NSWLR 497, 515 (McHugh JA).
[18] [2006] NSWCA 185; (2006) 66 NSWLR 77, 84, 87–9 (Spigelman CJ), 92 (Hodgson JA), 92 (Bryson JA).
[19] [2005] NSWADTAP 69 (Unreported, O’Connor P, 6 December 2005).
[20] [2006] NSWCA 349; (2006) 236 ALR 385.
[21] Ibid 397–9 (Spigelman CJ), 404–5 (Hodgson JA), 405 (Ipp JA).
[22] See below Part III(B)(3).
[24] Ibid 46, citing Justice Stuart Morris, ‘Civil Litigation: VCAT and the Courts’ (Paper presented at the Advanced Civil Litigation Seminar Series 2004, Law Institute of Victoria, 15 April 2004).
[25] Special leave to appeal was sought in Stockland [2006] NSWCA 185; (2006) 66 NSWLR 77, but the grounds raised did not involve the constitutional issues discussed in this case note: Telephone Call from Duncan Kerr to Richard Barron Lawyers, 2006. From the point of view of the appellant seeking special leave to appeal, the constitutional issues in Stockland [2006] NSWCA 185; (2006) 66 NSWLR 77 became moot following remedial amendments to NSW statute law that created a parallel substantive right in state law to that contained in the Trade Practices Act 1974 (Cth) (‘TPA’) in relation to misleading and deceptive conduct: see Retail Leases Act 1994 (NSW) s 62D, inserted by Retail Leases Amendment Act 2005 (NSW).
[26] [2005] NSWADTAP 69 (Unreported, O’Connor P, 6 December 2005) [39], [49].
[27] Burns v Radio 2UE Sydney Pty Ltd [2004] NSWADT 267 (Unreported, Rice JM, Alt and Bolt NJMM, 22 November 2004) [1]–[4] (Rice JM, Alt and Bolt NJMM).
[28] Ibid.
[29] Ibid [103] (Rice JM, Alt and Bolt NJMM).
[30] Burns v Radio 2UE Sydney Pty Ltd [No 2] [2005] NSWADT 24 (Unreported, Rice JM, Alt and Bolt NJMM, 16 February 2005) [47] (Rice JM, Alt and Bolt NJMM).
[31] 2UE v Burns [2005] NSWADTAP 69 (Unreported, O’Connor P, 6 December 2005) [4].
[32] Ibid.
[33] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 567 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).
[34] 2UE v Burns [2005] NSWADTAP 69 (Unreported, O’Connor P, 6 December 2005) [6].
[35] Ibid.
[36] Ibid.
[37] Ibid [7].
[38] For a discussion of the facts: see ibid [1]–[7] (O’Connor P). While the Appeal Panel of the NSWADT had power to refer such a question to the NSW Supreme Court pursuant to Administrative Decisions Tribunal Act 1997 (NSW) s 118(1), at first instance, the NSWADT had no such power. This created the practical dilemma later noted in Radio 2UE [2006] NSWCA 349; (2006) 236 ALR 385, 402 (Hodgson JA).
[39] 2UE v Burns [2005] NSWADTAP 69 (Unreported, O’Connor P, 6 December 2005) [39]–[76].
[40] Ibid [77]–[96].
[41] Ibid [95].
[42] Wood [2006] FCA 60; (2006) 148 FCR 276, 276 (Heerey J); Campbell on Behalf of Tibble v FLGOFF Smith [2004] TASADT 16 (Unreported, Chairperson Wood, 12 March 2004) [4].
[43] Coroner Peter Dixon, Record of Investigation into Death: Eleanore Tibble (Coronial Division, Magistrates Court of Tasmania, 15 February 2002) 3.
[44] Ibid.
[45] Wood [2006] FCA 60; (2006) 148 FCR 276, 280–2 (Heerey J).
[46] Campbell on behalf of Tibble v FLGOFF Smith [2004] TASADT 16 (Unreported, Chairperson Wood, 12 March 2004) [4], quoting counsel for the respondent’s written submission.
[47] Wood [2006] FCA 60; (2006) 148 FCR 276, 281 (Heerey J).
[48] Campbell on behalf of Tibble v FLGOFF Smith [2005] TASADT 7 (Unreported, Chairperson Wood, 30 May 2005) [163].
[49] Wood [2006] FCA 60; (2006) 148 FCR 276, 280 (Heerey J).
[50] Ibid 288.
[51] Australian Constitution s 75(iv).
[52] Australian Constitution s 76(ii).
[53] [2005] NSWADTAP 69 (Unreported, O’Connor P, 6 December 2005).
[54] See above n 37 and accompanying text.
[55] [2006] FCA 60; (2006) 148 FCR 276, 289–96.
[56] Ibid 288–9.
[57] [2006] NSWCA 185; (2006) 66 NSWLR 77, 79 (Spigelman CJ).
[58] Ibid.
[59] TPA s 82(2).
[60] See above n 39 and accompanying text.
[61] Trust Co of Australia Pty Ltd (Stockland Property Management Ltd) v Skiwing Pty Ltd trading as Café Tiffany’s (2005) ATPR (Digest) 46‑264, 52 531–6 (Chesterman ADCJ, Molloy JM and Weule NJM).
[62] Stockland [2006] NSWCA 185; (2006) 66 NSWLR 77, 84–6 (Spigelman CJ), 92 (Hodgson JA), 92 (Bryson JA).
[63] Ibid 86–9 (Spigelman CJ), 92 (Hodgson JA), 92 (Bryson JA).
[64] Ibid 84, 88–9 (Spigelman CJ), 92 (Hodgson JA), 92 (Bryson JA). However, Spigelman CJ did suggest that the application of a balance sheet approach to the NSWADT would have resulted in the same outcome: at 89.
[65] Ibid 89.
[66] This occurred as a result of the application of the NSW Attorney‑General seeking a declaration from the NSW Court of Appeal that the NSWADT ‘has no jurisdiction to, and cannot hear and determine, a question arising under the Commonwealth Constitution or involving its interpretation’: Radio 2UE [2006] NSWCA 349; (2006) 236 ALR 385, 386 (Spigelman CJ). None of the other parties to the proceedings contended that Stockland [2006] NSWCA 185; (2006) 66 NSWLR 77 should be reopened: at 387, 400 (Spigelman CJ).
[67] [2005] NSWADTAP 69 (Unreported, O’Connor P, 6 December 2005) [95].
[68] Radio 2UE [2006] NSWCA 349; (2006) 236 ALR 385, 401 (Spigelman CJ). While in agreement as to the outcome, Hodgson JA expressed some reservations, leaving some questions open and only joining in the final outcome on the basis of his ‘understanding’ of the effect of the declaration: at 405. Unhelpfully, Ipp JA agreed with both Spigelman CJ and Hodgson JA: at 405.
[69] Ibid 398 (Spigelman CJ), 403–4 (Hodgson JA), 405 (Ipp JA).
[70] Ibid 399.
[71] Ibid 402–4.
[72] Ibid 398 (Spigelman CJ).
[73] Ibid 395–6. Ipp JA concurred: at 405.
[74] Ibid 398–9 (Spigelman CJ), 403–4 (Hodgson JA), 405 (Ipp JA).
[75] [1995] HCA 10; (1995) 183 CLR 245.
[76] Note that Hodgson JA considered, but ultimately rejected, the view that Brandy [1995] HCA 10; (1995) 183 CLR 245 was distinguishable: Radio 2UE [2006] NSWCA 349; (2006) 236 ALR 385, 404.
[77] Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167, 188–9 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[78] A‑G (UK) v British Broadcasting Corporation [1981] AC 303, 351 (Lord Edmund‑Davies).
[79] [2006] NSWCA 185; (2006) 66 NSWLR 77, 83–4 (Spigelman CJ).
[80] Ibid 84 (Spigelman CJ).
[81] Ibid.
[82] Their Honours did not advert to the proposition in Stockland [2006] NSWCA 185; (2006) 66 NSWLR 77, 84–6 (Spigelman CJ) that it is not permissible to treat one component of the NSWADT as separate from its other constituent parts.
[83] [2006] NSWCA 387 (Unreported, Handley and Basten JJA and McDougall J, 21 December 2006) [74] (Basten JA).
[84] [2006] NSWCA 185; (2006) 66 NSWLR 77, 86 (Spigelman CJ).
[85] Ibid 86–9 (Spigelman CJ).
[86] [2006] FCA 60; (2006) 148 FCR 276, 289.
[87] Ibid.
[88] Ibid.
[89] Ibid 291–4.
[90] [2004] HCA 31; (2004) 218 CLR 146.
[91] Wood [2006] FCA 60; (2006) 148 FCR 276, 292–4.
[92] Ibid 292 (Heerey J), citing Bradley [2004] HCA 31; (2004) 218 CLR 146, 163 (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
[93] Wood [2006] FCA 60; (2006) 148 FCR 276, 293.
[94] Ibid 289–96. Given the very different role that this consideration played in the NSW Court of Appeal’s decision in Radio 2UE [2006] NSWCA 349; (2006) 236 ALR 385: see below Part III(A)(2); it is ironic that Heerey J concluded that the fact that the TASADT’s orders could be enforced by means effectively identical to the mechanism considered in Brandy [1995] HCA 10; (1995) 183 CLR 245 tended to support the conclusion that the TASADT was a court of the State of Tasmania: ibid 292.
[95] Wood [2006] FCA 60; (2006) 148 FCR 276, 293.
[96] Ibid 295, quoting 2UE v Burns [2005] NSWADTAP 69 (Unreported, O’Connor P, 6 December 2005) [50].
[97] Wood [2006] FCA 60; (2006) 148 FCR 276, 295 (Heerey J).
[98] 2UE v Burns [2005] NSWADTAP 69 (Unreported, O’Connor P, 6 December 2005) [53].
[99] [2006] NSWCA 185; (2006) 66 NSWLR 77, 87.
[100] Plainly Spigelman CJ did not mean by this expression that whenever a state tribunal has the power to determine existing rights and liabilities between parties it must ipso facto be a ‘court of law’ — this suggested criterion was criticised in Hill, above n 16, 105.
[101] Stockland [2006] NSWCA 185; (2006) 66 NSWLR 77, 87 (Spigelman CJ).
[102] Ibid 88.
[103] Ibid. Note that Spigelman CJ accepted, in an earlier but related passage, that it was not necessary that state judges be termed such, rather than say magistrates, the issue being one of substance not form: at 87.
[104] Repealed by Judiciary Legislation Amendment Act 2006 (Cth) sch 1 item 1.
[105] Stockland [2006] NSWCA 185; (2006) 66 NSWLR 77, 89 (Spigelman CJ), 92 (Hodgson JA), 92 (Bryson JA).
[106] This inconsistency has been assumed for the purpose of immediate discussion, but it holds true only if the legal conception of a ‘judge’ can logically be divorced from the legal conception of a ‘court’. That such a divorce is possible was a necessary, if silent, premise of the decision of the NSW Court of Appeal in Stockland [2006] NSWCA 185; (2006) 66 NSWLR 77. However, the validity of that premise is doubtful for the reasons set out below in Part III(A)(4). If the premise is unsound, debate about a court having to be comprised of ‘judges’ becomes a red herring — a discussion of a distinction without a difference.
[107] [2006] HCA 44; (2006) 229 ALR 223.
[108] Ibid 234–5 (Gleeson CJ), 249–50 (Gummow, Hayne and Crennan JJ), 290 (Callinan J), 302 (Heydon J).
[109] Ibid 232 (citations omitted). Cf Wood [2006] FCA 60; (2006) 148 FCR 276, 293 (Heerey J), extracted above in Part III(A)(1).
[110] Forge [2006] HCA 44; (2006) 229 ALR 223, 234.
[111] Ibid 245–6.
[112] Ibid 234 (Gleeson CJ).
[113] Leeth v Commonwealth (1992) 174 CLR 455, 498 (Gaudron J) (citations omitted). See also Bagshaw v Carter [2006] NSWCA 113 (Unreported, Giles, Ipp and McColl JJA, 12 May 2006) [32]–[37] (Ipp JA).
[114] The precise meaning of this requirement is difficult to discern: see below Part III(A)(4).
[115] Forge [2006] HCA 44; (2006) 229 ALR 223, 295, citing R v Jones [1972] HCA 44; (1972) 128 CLR 221, 229 (Barwick CJ).
[116] See above n 105. English local courts to this day are still presided over by lay magistrates and rely on legally qualified clerks to give them guidance on the law, yet they are undoubtedly courts in the fullest sense: see, eg, Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143, 162 (Lord Irvine).
[117] See also Dao v Australian Postal Commission [1987] HCA 13; (1987) 162 CLR 317, where the High Court assumed, although without an express finding, that the then Equal Opportunity Tribunal of NSW, a body closely analogous to the present‑day NSWADT, was a court.
[118] Spigelman CJ’s reference in Stockland [2006] NSWCA 185; (2006) 66 NSWLR 77 to ‘judges’ explicitly extended to state magistrates: at 87. But his Honour identified no method of distinguishing between those ‘judges’ and those who, although appointed to exercise the judicial power of the State of NSW as members of the NSWADT Appeal Panel, his Honour held were not ‘judges’. Forge [2006] HCA 44; (2006) 229 ALR 223, 243–4, 246 (Gummow, Hayne and Crennan JJ) removes any remaining doubt that the Act of Settlement 1701 (Imp), 12 & 13 Wm 3, c 2 terms of appointment are essential for a state ‘judge’.
[119] This comment was made verbally in response to the author’s delivery of the paper on which this case note is based at the Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales: see Duncan Kerr, ‘The Federal and State Courts on Constitutional Law: The 2006 Term’ (Paper presented at the 2007 Constitutional Law Conference, Sydney, 16 February 2007).
[121] Individually, each of the justices would command the respect of the High Court. However, the weight to be accorded to their decision in Stockland [2006] NSWCA 185; (2006) 66 NSWLR 77 may be thought to be slightly lessened because of the reservations expressed, and the questions left open, by Hodgson JA: Radio 2UE [2006] NSWCA 349; (2006) 236 ALR 385, 402, 404–5; see also above n 68. Further, exactly what Ipp JA decided, beyond his bare assent to the actual declaration granted by the Court, is difficult to discern. His Honour expressed agreement with both Spigelman CJ and Hodgson JA: at 405.
[122] Radio 2UE [2006] NSWCA 349; (2006) 236 ALR 385, 398–9 (Spigelman CJ).
[123] Ibid 398–400 (Spigelman CJ).
[124] Ibid 399 (Spigelman CJ).
[125] (1997) 190 CLR 410.
[126] Ibid 428–9 (Dawson, Toohey and Gaudron JJ), 449–51 (McHugh J), 461–2 (Gummow J), 476–7 (Kirby J).
[127] A majority of the High Court was content to proceed on the assumption that the DFA was the Commonwealth: ibid 428 (Brennan CJ), 448 (Dawson, Toohey and Gaudron JJ), 510 (Kirby J). McHugh J made an express finding that it was the Commonwealth: at 460. Gummow J made an implicit finding to the same effect: at 474.
[128] Residential Tenancies Act 1987 (NSW) pt 6 div 1, repealed by Residential Tribunal Act 1998 (NSW) ss 79–80.
[129] Residential Tenancies Act 1987 (NSW) s 112(1), repealed by Residential Tribunal Act 1998 (NSW) s 80.
[130] Henderson’s Case (1997) 190 CLR 410, 461.
[131] Ibid 474.
[132] Ibid 448.
[133] Ibid 428 (Brennan CJ), 448 (Dawson, Toohey and Gaudron JJ), 461 (McHugh J), 475 (Gummow J). Kirby J dissented: at 512.
[134] It is not apparent from the judgments whether the power being exercised by the RTT was executive, judicial or a quasi‑judicial mixture of both. It is arguable that the correct inference is that the Court took the view that nothing turned on these distinctions as they applied to the jurisdiction of a state tribunal.
[135] This arises as a consequence of the withdrawal of all relevant state judicial power by Judiciary Act s 39(1) and its immediate reinvestment as federal jurisdiction by s 39(2): see above n 3 and accompanying text.
[136] The alternative argument would be that Henderson’s Case (1997) 190 CLR 410 can be distinguished on its facts because, with the exception of a possible costs order, the actual remedies sought in that case could not have been enforced by registration. The since repealed s 112(1) of the Residential Tenancies Act 1987 (NSW) provided for the registration of orders ‘of the [RTT] for payment of an amount of money (including any amount awarded as costs)’. Dr Henderson had commenced proceedings in the RTT ‘seeking an order that the [DFA] permit [him] to inspect premises at Epping in New South Wales’ that he had leased to the Authority: at 449 (McHugh J).
[137] Spigelman CJ argues that the text and structure of the Australian Constitution, particularly the strong doctrine of separation of powers arising from Ch III, means that a state cannot confer judicial power with respect to any matter referred to in ss 75 or 76 of the Australian Constitution on a non‑court tribunal: Radio 2UE [2006] NSWCA 349; (2006) 236 ALR 385, 395–6.
[138] [2006] FCA 60; (2006) 148 FCR 276, 288 (Heerey J).
[140] Australian Constitution s 75(iii).
[141] Australian Constitution s 75(iv).
[142] Australian Constitution s 76(i).
[143] Australian Constitution s 76(ii).
[145] See above Part I for a more detailed explanation of the relationship between these non‑self‑executing jurisdictional provisions of Ch III of the Australian Constitution and the provisions of the Judiciary Act pt VI.
[146] However, in the case of state courts, state judicial power is subject to the provisions of the Judiciary Act pt VI.
[147] [2006] NSWCA 349; (2006) 236 ALR 385, 395.
[148] [1996] HCA 24; (1996) 189 CLR 51, 116–19 (McHugh J). See also Fardon v A‑G (Qld) [2004] HCA 46; (2004) 223 CLR 575, 591 (Gleeson CJ), 598–9 (McHugh J), 626–7 (Kirby J).
[149] Fardon v A‑G (Qld) [2004] HCA 46; (2004) 223 CLR 575, 598–9, 601. See also Powercoal Pty Ltd v Industrial Relations Commission (NSW) [2005] NSWCA 345; (2005) 64 NSWLR 406; Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) [2006] NSWCA 172; (2006) 66 NSWLR 151.
[151] Henderson’s Case (1997) 190 CLR 410, if it does not itself compel that conclusion, is strongly supportive of it: see the discussion of this case above in Part III(B)(1).
[152] Ibid 512.
[153] [2005] HCA 44; (2005) 224 CLR 322, 405–7.
[154] Ibid 483–6.
[155] See especially ibid 484–5.
[156] See above Part III(B)(4).
[157] See Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311, 316 (Gibbs CJ, Mason, Murphy, Wilson, Brennan and Dawson JJ); John v Federal Commissioner of Taxation (1989) 166 CLR 417, 438–9 (Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ).
[158] New South Wales v Commonwealth [2006] HCA 52; (2006) 231 ALR 1, 147.
[159] Australian Constitution s 75(iii).
[160] Australian Constitution s 75(iv).
[161] At the very least, the ratio of Henderson’s Case (1997) 190 CLR 410 must extend this far, if not further: see above n 136 and accompanying text.
[162] [2006] NSWCA 349; (2006) 236 ALR 385, 402, 404.
[163] The Commonwealth Parliament can remove the jurisdiction of any state court over the Commonwealth by a law made under s 77(ii) of the Australian Constitution. That it has not chosen to do so reflects the practical convenience thereby achieved.
[164] Commonwealth supremacy in respect of the executive can be guaranteed by s 109 of the Australian Constitution. As Gummow J observed in Henderson’s Case (1997) 190 CLR 410, 469, ‘[s]ection 109 … protects those rights and liabilities against such destruction, modification or qualification by State law as amounts to inconsistency in the constitutional sense.’ Further, insofar as it falls within a matter of federal legislative power, the Commonwealth can remove the jurisdiction of any state tribunal over federal matters, should it choose to do so. As to any supposed general doctrine of Commonwealth immunity from such jurisdiction: see Mark Leeming, ‘The Liabilities of the Commonwealth and State Governments’ (2006) 27 Australian Bar Review 217.