Gould v Brown

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

VANDA RUSSELL GOULD & ORS  APPELLANTS

AND

MARTIN RUSSELL BROWN in his capacity as
liquidator of Amann Aviation Pty Limited
(in liquidation)  RESPONDENT

Gould v Brown (S204/1996) [1998] HCA 6
2 February 1998

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

F M Douglas QC with P J Dowdy and K M Connor for the appellants (instructed by Henry Davis York)

S D Robb QC with A Robertson SC and M A Jones for the respondent (instructed by Nash O'Neill Tomko)

2.

Interveners:

D R Williams QC (Attorney-General) with G Griffiths QC, H C Burmester and S J Gageler intervening on behalf of the Commonwealth (instructed by the Australian Government Solicitor)

P A Keane QC with R W Campbell intervening on behalf of the Attorney-General for the State of Queensland (instructed by the Crown Solicitor for the State of Queensland)

D Graham QC with C M Caleo intervening on behalf of the Attorney-General for the State of Victoria (instructed by the Victorian Government Solicitor)

R J Meadows QC with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by the Crown Solicitor for Western Australia)

B M Selway QC with J P Gill intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for South Australia) and also intervening on behalf of the Attorney-General for the State of Tasmania (instructed by the Crown Solicitor for Tasmania)

J J Spigelman QC with L S Katz SC intervening on behalf of the Attorney-General for the State of New South Wales (instructed by the Crown Solicitor for New South Wales)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Gould v Brown

Constitutional law - Cross-vesting of federal, State and Territory jurisdiction - State law vesting jurisdiction in Federal Court to order winding-up of company - Whether State has power to confer State jurisdiction on federal courts - Federal law enabling Federal Court to accept vesting of State jurisdiction under State law - Validity of laws - Whether Ch III of the Constitution excludes the vesting of State jurisdiction in federal courts - Conditions under which State jurisdiction may be vested in federal courts.

Constitutional law - Issue of examination orders and examinations summons pursuant to Corporations Law - Validity - Whether exercises of judicial power.

The Constitution, s 51(xxxviii), Ch III, ss 107, 109, 122

Australia Act 1986 (Cth)

Colonial Laws Validity Act 1865 (Imp)

Companies Act 1961 (NSW)

Corporations Act 1989 (Cth), s 56(2)

Corporations Law, ss 596A, 596B

Corporations (New South Wales) Act 1990 (NSW), s 42(3)

Corporations (Victoria) Act 1990 (Vic), s 42(3)

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

1. BRENNAN CJ AND TOOHEY J.   This is an appeal against a judgment of the Full Court of the Federal Court (Black CJ, Lockhart and Lindgren JJ) delivered in one of three matters involving the same or substantially the same issues[1].  The three matters were heard together by consent and their Honours' judgments dealt with them together.  The present matter arises from an order made by the Federal Court on 30 November 1992.  On that day, on the application of BP Australia Limited made in Victoria, the Federal Court ordered that Amann Aviation Pty Limited ("Amann") - a company incorporated in New South Wales under the Companies Act 1961 (NSW) - "be wound up by this Court under the provisions of the Corporations Law" and that "Mr Martin Brown ... be appointed the liquidator of the affairs of the ... company" ("the winding-up orders").  Subsequently, the liquidator applied for orders for the issue of summonses directed to named persons to attend for examination on oath or affirmation about the examinable affairs of Amann.  The Court, sitting in New South Wales, made the orders sought on 7 July 1995 and 21 August 1995 ("the examination orders").  Pursuant to those orders, summonses were issued to the examinees (including the present appellants).  The appellants then moved the Federal Court for declarations that the Federal Court had no jurisdiction to make the winding-up orders and no jurisdiction to order and conduct the proposed examinations and for an order setting aside the summonses issued pursuant to the examination orders.

   [1]      BP Australia Ltd v Amann AviationPty Ltd (1996) 62 FCR 451; 137 ALR 447.

2. Black CJ referred the following questions to the Full Court for determination:

   "1.(a) Did s42 (3) of the Corporations (NSW) Act, 1990, or s42 (3) of the Corporations (Vic) Act, 1990 and s56 (2) of the Corporations Act, 1989 (Cth) operate validly to confer upon the Court jurisdiction to make the Orders [that is, the winding-up orders]?

   (b)If no to question 1 (a), did s42 (3) of the Corporations (NSW) Act, 1990 or s42 (3) of the Corporations (Vic) Act, 1990 and s9 (2) of the Jurisdiction of the Courts (Cross-Vesting) Act 1987 (Cth) operate validly to confer upon the Court jurisdiction to make the Orders?

   (c)If no to questions 1 (a) and 1 (b), did the Court otherwise have jurisdiction to make the Orders?

   2.If no to each part of question 1 are the Orders liable to be set aside and, if so, from what date?

   3.(a) Did, or does (as the case may be), s42 (3) of the Corporations (NSW) Act, 1990 or s42 (3) of the Corporations (Vic) Act, 1990 and s56 (2) of the Corporations Act, 1989 (Cth) operate validly to confer upon the Court jurisdiction to:

   (i)       make the Examination Orders;

   (ii)      issue the Summonses; or

   (iii)to conduct and hear examinations under ss596A or 596B or any, and which, provision of Part 5.9 Division 1 of the Corporations Law?

   (b)If no to question 3 (a) did, or does (as the case may be), s42 (3) of the Corporations (NSW) Act, 1990 or s42 (3) of the Corporations (Vic) Act, 1990 and s9 (2) of the Jurisdiction of Courts (Cross‑Vesting) Act, 1987 (Cth) operate validly to confer upon the Court jurisdiction to:

   (i)       make the Examination Orders;

   (ii)      issue the Summonses; or

   (iii)to conduct and hear examinations under ss596A or 596B or any, and which, provision of Part 5.9 Division 1 of the Corporations Law?

   (c)If no to question 3 (a) and 3 (b), did, or does (as the case may be), the Court otherwise have jurisdiction to:

   (i)       make the Examination Orders;

   (ii)     issue the Summonses; or

   (iii)to conduct and hear examinations under ss596A or 596B and or any, and which, provision of Part 5.9 Division 1 of the Corporations Law?

   4.If no to each part of question 3 should an order be made on the application of the Examinees setting aside:

   (a)the Examination Orders; and

   (b)      the Summonses?

   5.Are the Applicant Examinees by their Notice of Motion ... entitled to any, and if so what, orders or declarations?"

   On 24 June 1996 the Full Court gave the following answers to the questions in the Amann proceedings:

   "1(a): Yes.

   1(b) and (c) and 2: These questions do not arise.

   3(a): Yes.

   3(b), (c) and 4: These questions do not arise.

   5: No."

   The legislation

3. The jurisdiction to make the winding-up orders was purportedly conferred on the Federal Court by s 42 of the Corporations (New South Wales) Act 1990 or by the corresponding provision of the Corporations (Victoria) Act 1990. Both provisions were, at the time of the making of the winding-up orders, in the same terms mutatis mutandis:

   "42. (1) Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth, as it applies as a law of New South Wales, jurisdiction is conferred on the Supreme Court of New South Wales and of each other State and the Capital Territory with respect to civil matters arising under the Corporations Law of New South Wales.

   (2)   The jurisdiction conferred on a Supreme Court by subsection (1) is not limited by any limits to which any other jurisdiction of that Supreme Court may be subject.

   (3) Jurisdiction is conferred on the Federal Court with respect to civil matters arising under the Corporations Law of New South Wales."

   Section 56 of the Corporations Act 1989 (Cth) purports to permit the Federal Court to exercise the jurisdiction purportedly conferred by the New South Wales and Victorian provisions. Section 56 provides:

   "   Exercise of jurisdiction pursuant to cross-vesting provisions

   56. (1) Nothing in this or any other Act is intended to override or limit the operation of a provision of a law of a State or Territory relating to cross-vesting of jurisdiction with respect to matters arising under the Corporations Law of the State or Territory.

   (2)    The Federal Court, the Family Court or the Supreme Court of the Capital Territory may:

   (a) exercise jurisdiction (whether original or appellate) conferred on that Court by a law of a State corresponding to this Division with respect to matters arising under the Corporations Law of a State; and

   (b)     hear and determine a proceeding transferred to that Court under such a provision."

   A provision similar to s 42(3) is contained in s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW):

   "          (1)    The Federal Court has and may exercise original and appellate jurisdiction with respect to State matters.

   (2) ...

   (3) ...

   (4) ...

   (5) Subsection (1), (2), (3) or (4) does not:

   (a)     invest the Federal Court ... with; or

   (b)     confer on [that] court,

   jurisdiction with respect to criminal proceedings."

   And consent, corresponding to the consent given by s 56 of the Corporations Act 1989 (Cth) is given by the Parliament of the Commonwealth to the Federal Court's exercise of the jurisdiction conferred by the Cross-vesting Act of New South Wales. That consent is contained in s 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth):

   "       (1)  Nothing in this or any other Act is intended to override or limit the operation of a provision of a law of a State relating to cross-vesting of jurisdiction.

   (2)The Federal Court ... may:

   (a)exercise jurisdiction (whether original or appellate) conferred on that court by a provision ... of a law of a State relating to cross‑vesting of jurisdiction; and

   (b)hear and determine a proceeding transferred to that court under such a provision."

4. The questions that arise for determination do not relate to jurisdiction vested in the Federal Court by the Parliament of the Commonwealth under Ch III of the Constitution. The questions relate to State jurisdiction which can be conferred only by the Parliament of the State. Thus the questions relate to -

   (i)     the power of the New South Wales Parliament to confer State jurisdiction on a Court that is not a Court created by that Parliament;

   (ii)    the capacity of the Federal Court to receive and to exercise jurisdiction other than jurisdiction vested in it by or pursuant to Ch III of the Constitution;

   (iii)   the restrictions or limitations that govern the jurisdiction that the Federal Court can receive and exercise and, in particular, the ability of the Federal Court to receive and exercise jurisdiction to order and conduct the proposed examinations.

   1.     Power of the New South Wales Parliament

5. The first and basic challenge to the jurisdiction of the Federal Court is that the New South Wales Parliament does not have power to confer on the Federal Court jurisdiction to hear and determine matters arising under the Corporations Law of New South Wales or, for that matter, under any other law of the State. Such a power, it is submitted, could not have been exercised by the Colonial Parliament as at the establishment of the Commonwealth and consequently was not continued as a power of the Parliament of the State by s 107 of the Constitution. That section reads:

   "Every power of the Parliament of a Colony which has become ... a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth ..."

   At the establishment of the Commonwealth, a State Parliament did not possess universal legislative power. Apart from those powers "exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State", some legislative powers were exercisable only by the Parliament of the United Kingdom or by the Federal Council of Australasia. Upon the establishment of the Constitution, the last-mentioned powers could be exercised within Australia only by the Parliament of the Commonwealth and then only if the Parliaments of the States directly concerned requested or concurred in their exercise. That follows from s 51(xxxviii) of the Constitution which confers on the Parliament of the Commonwealth power to make laws with respect to:

   "The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia".

   Moreover, at the establishment of the Commonwealth, there were some limitations on the exercise of legislative powers by the Colonial Parliament of New South Wales, chiefly those imposed by the Colonial Laws Validity Act 1865 (Imp).  However, if the powers denied to the Parliaments of the States were not acquired by those Parliaments before the Australia Act 1986 (Cth) came into force, that Act conferred those powers on those Parliaments.

6. The Australia Act frees the legislative powers of the States from the restrictions imposed by the Colonial Laws Validity Act[2] and declares the legislative powers of the States to include "all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act"[3].  Repugnancy of a State law to the law of England no longer renders a State law void or inoperative[4]. These provisions are qualified by s 5 of the Australia Act which provides that ss 2 and 3(2) are "subject to the Commonwealth of Australia Constitution Act and to the Constitution of the Commonwealth"[5].  In so far as the Australia Act was required to enlarge the legislative powers of the States[6], that Act ensures that, save in those particular instances where the Constitution excludes the exercise of legislative power by both the Commonwealth and the States - for example, s 92 of the Constitution - an aggregation of the legislative powers of Commonwealth and States covers every subject that is susceptible of legislative regulation or control.

   [2] s 3(1).

   [3] s 2(2).

   [4] s 3(2).

   [5]      s 5.

   [6]      See Kirmani v Captain Cook Cruises Pty Ltd [No 1] (1985) 159 CLR 351 at 416.

7. The significance of the possession by Australian legislatures of legislative powers which, complementing one another, are universal powers subject only to exceptions prescribed by the Constitution Act and the Constitution, was pointed to by Deane J in R v Duncan; Ex parte Australian Iron and Steel Pty Ltd[7]:

   "in the absence of any express or implied constitutional prohibition or of any relevant limitations upon State powers persisting from colonial times, it is to be presumed that any legislative power which naturally appertains to self‑government and which is not conferred upon the Commonwealth Parliament remains in the States. The existence of a constitutional objective of Commonwealth/State co‑operation may, on occasion, be obscured by the fact that cases in this Court in relation to the constitutional scope of legislative powers are commonly concerned with the resolution of competing legislative claims of the Commonwealth and of one or more of the States. It is, however, unnecessary to do more than refer to the provisions of s 51(xxxiii), (xxxiv), (xxxvii) and (xxxviii) and of Ch V of the Constitution to demonstrate the existence of such a constitutional objective. It would be inconsistent with that objective for there to be any general constitutional barrier to concurrent legislation by Commonwealth and State Parliaments."

   [7] (1983) 158 CLR 535 at 589.

8. If a combination of the legislative powers of the Commonwealth and the States is ineffective to vest State jurisdiction in the Federal Court, the reason must be found, if anywhere, in some restriction or limitation contained in the Constitution. The argument that a combination of the legislative powers of the Commonwealth and a State cannot effect what cannot be effected by the legislative power of either polity exercised independently is patently fallacious: one power may supply a deficiency in the other. R v Duncan shows the argument to be constitutionally untenable.  But to determine the effect of interlocking Commonwealth and State statutes, it is necessary to identify with some precision the effect of each.

9. In the present case, four elements must coexist in order to achieve the vesting of State jurisdiction in a federal court:  the creation of the court, the vesting of State jurisdiction by a State statute, an effective consent by the Commonwealth to the vesting of the State jurisdiction and the absence of any constitutional restriction on the vesting, acceptance and exercise of the jurisdiction.

10. The starting point is to distinguish between the power to create a federal court and the power to vest jurisdiction in it.  When the Colonial Laws Validity Act was in force, s 5 of that Act conferred on each colonial legislature -

    "full Power within its Jurisdiction to establish Courts of Judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof".

    Although prerogative power had been relied on to establish courts of civil jurisdiction in the Colonies[8], it became constitutional practice when a local legislature was established, to create courts by or under the authority of statute[9].  In New South Wales the Supreme Court was established by the Charter of Justice granted pursuant to statute in 1823[10].  In McCawley v The King[11], the Privy Council said of s 5 of the Colonial Laws Validity Act:

    "    It would indeed be difficult to conceive how the Legislature could more plainly have indicated an intention to assert on behalf of colonial Legislatures the right for the future to establish Courts of Judicature, and to abolish and reconstitute them, than in the language under consideration".

    Their Lordships emphasised the creation and abolition of curial institutions, not the vesting of jurisdiction in them.  Earlier, in Taylor v Attorney-General of Queensland[12], Gavan Duffy and Rich JJ said that the words of this section were -

    "properly chosen to express the powers sought to be conferred.  It was intended that a colonial legislature should have power to constitute new Courts and to put an end to existing Courts, to determine whether specific Courts should continue to exist or should cease to exist, as well as to mould their form, prescribe their duties, and regulate their procedure".

    Their Honours should not be understood to have said that s 5 was the source of power to vest jurisdiction in a court.  Thus jurisdiction under colonial laws was exercised by courts established under an Imperial statute.  The Supreme Court of New South Wales, established by the Charter of Justice, exercised jurisdiction under laws enacted by the colonial legislature[13].  Conversely, it was held that the High Court of Australia had been vested with jurisdiction under the Imperial Colonial Courts of Admiralty Act 1890[14].  The power of the Parliament of the United Kingdom to vest jurisdiction in this or any other Ch III court has now ceased.  The jurisdiction once conferred by the Imperial Colonial Courts of Admiralty Act is now a federal jurisdiction[15].

    [8]      Sir Victor Windeyer, "A Birthright and Inheritance", (1962) 1 University of Tasmania Law Review 635 at 649.

    [9]      Some courts could be established only by or with the authority of statute:  see In re Lord Bishop of Natal (1864) 3 Moo PC (NS) 115 at 151 [16 ER 43 at 57].

    [10]    4 Geo IV c 96.  Subsequent statutory authority was provided by The Australian Courts Act 1828 (Imp) (9 Geo IV c 83) and by the New South Wales Constitution Act 1855 (18 & 19 Vict c 54 s 42).

    [11] (1920) 28 CLR 106 at 121; [1920] AC 691 at 710-711.

    [12] (1917) 23 CLR 457 at 478.

    [13]    See Castles, An Australian Legal History, (1982) Ch 9.

    [14]    John Sharp & Sons Ltd v The Katherine Mackall (1924) 34 CLR 420; McIlwraith McEacharn Ltd v Shell Co of Australia Ltd (1945) 70 CLR 175.

    [15]    See the Admiralty Act 1988 (Cth), ss 9, 10 and 44.

11. The appellants placed some reliance on the opinion of Sir Owen Dixon, expressed extra-judicially[16], that the power conferred by s 5 of the Colonial Laws Validity Act "perhaps, should be considered as an exhaustive statement of the legislature's authority over the [subject] with which it deals ... constituting Courts of justice".  Be it so.  That observation simply emphasises, in the present context, that the power to create a court under Ch III is conferred on the Parliament of the Commonwealth.  The Parliament of New South Wales has not purported to create a court and Sir Owen's statement says nothing about the power of a State legislature to vest jurisdiction in matters arising under State law in an existing federal court.

    [16]    "The Law and the Constitution" published in Jesting Pilate, (1965) at 47.

12. Section 5 of the Colonial Laws Validity Act did not place a territorial limitation on the courts in which jurisdiction could be vested by State law.   In The Commonwealth v Queensland[17] this Court rejected a submission that s 5 imposed such a limitation.  When the Colonial Laws Validity Act was in force, a State law was valid if its substantive provisions had a sufficient territorial connection with the State[18].  That gave the law the character of a law for the peace, order and good government of the State[19].  In The Commonwealth v Queensland[20], an attempt by the Queensland Parliament to vest jurisdiction in constitutional matters in the Privy Council failed, but not because that Parliament lacked power to vest jurisdiction in justiciable matters in the Privy Council.  Although the Privy Council exercised jurisdiction conferred by the Judicial Committee Act 1833 (Imp) and the Judicial Committee Act 1844 (Imp) and although the Privy Council was regarded as an Imperial court[21] having no particular national character or location[22], it was held that the vesting by the Queensland Parliament of jurisdiction in the Privy Council[23] "should not be regarded as repugnant to the existing statutes of the United Kingdom". The attempt to vest jurisdiction in the Privy Council failed because the jurisdiction which the impugned State statute purported to vest in the Privy Council included jurisdiction made exclusive to the High Court by s 74 of the Constitution. There was a specific constitutional restriction which aborted the State Parliament's attempt to vest the particular jurisdiction in the court of another polity. If the Queensland Parliament had power to vest jurisdiction in the Privy Council when the Colonial Laws Validity Act was in force, now that the Australia Act is in force the only limitations on the power of the Parliament of New South Wales to vest State jurisdiction in federal courts must be found in the Constitution itself.

    [17] (1975) 134 CLR 298 at 310-311.

    [18]    See, for example, Macleod v Attorney-General for New South Wales [1891] AC 455 at 457.

    [19]    Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10-14.

    [20] (1975) 134 CLR 298.

    [21]    British Coal Corporation v The King [1935] AC 500 at 510-511.

    [22]    Hull v M'Kenna [1926] Ir R 402 at 403-404 (PC); Ibralebbe v The Queen [1964] AC 900 at 919-920.

    [23]    The Commonwealth v Queensland (1975) 134 CLR 298 at 312.

13. The Constitution contains particular provisions for creating courts and prescribing their constitution and other provisions for vesting federal jurisdiction. Chapter III of the Constitution provides first for the creation of courts to exercise the judicial power of the Commonwealth (s 71); next, it prescribes their constitution (ss 72 and 79) and then defines the jurisdiction of the High Court and provides for the Parliament's conferral of federal jurisdiction on the High Court and on other Ch III courts: ss 73-77). Section 80 relates to the requirement of a jury in a criminal trial on indictment for an offence against a law of the Commonwealth. Section 80 apart, the provisions of Ch III of the Constitution distinguish between, on the one hand, the power to create and prescribe the constitution of federal courts and, on the other, the power to confer jurisdiction to hear and determine matters in exercise of the judicial power of the Commonwealth. In R v Kirby; Ex parte Boilermakers' Society of Australia ("Boilermakers")[24], Dixon CJ, McTiernan, Fullagar and Kitto JJ said:

    " Had there been no Chap III in the Constitution it may be supposed that some at least of the legislative powers would have been construed as extending to the creation of courts with jurisdictions appropriate to the subject matter of the power ... The legislature would then have been under no limitations as to the tribunals to be set up or the tenure of the judicial officers by whom they might be constituted. But the existence in the Constitution of Chap III and the nature of the provisions it contains make it clear that no resort can be made to judicial power except under or in conformity with ss 71-80. An exercise of a legislative power may be such that 'matters' fit for the judicial process may arise under the law that is made. In virtue of that character, that is to say because they are matters arising under a law of the Commonwealth, they belong to federal judicial power. But they can be dealt with in federal jurisdiction only as the result of a law made in the exercise of the power conferred on the Parliament by s 76(ii) or that provision considered with s 71 and s 77."

    Boilermakers is authority for the proposition that Ch III is the only source of power to create a federal court and the only source of power to vest federal jurisdiction and federal judicial power.  The Federal Court was created in exercise of the power conferred by Ch III but the jurisdiction presently under consideration is not federal jurisdiction.  It is State jurisdiction under the legislative power of the State Parliament.

    [24] (1956) 94 CLR 254 at 269.

14. The Parliament of the Commonwealth had power to create the Federal Court and the Parliament of New South Wales had power to vest jurisdiction under State law in a non-State court even if that power had not existed at the establishment of the Constitution. The next question is whether there was any restriction on the exercise of the State's power to vest jurisdiction under State law in the Federal Court.

    2.Jurisdiction of the Federal Court vested otherwise than under Ch III of the Constitution

15. It is settled and fundamental constitutional law that the judicial power of the Commonwealth cannot be invested otherwise than in accordance with Ch III of the Constitution. In In re Judiciary and Navigation Acts[25], this Court said in reference to the matters which are specified in ss 73 to 77 of the Constitution:

    "This express statement of the matters in respect of which and the Courts by which the judicial power of the Commonwealth may be exercised is, we think, clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction. The question then is narrowed to this: Is authority to be found under sec 76 of the Constitution for the enactment of Part XII of the Judiciary Act?"

    In their joint judgment in Boilermakers[26] Dixon CJ, McTiernan, Fullagar and Kitto JJ said:

    "[W]hen an exercise of legislative powers is directed to the judicial power of the Commonwealth it must operate through or in conformity with Chap III. For that reason it is beyond the competence of the Parliament to invest with any part of the judicial power any body or person except a court created pursuant to s 71 and constituted in accordance with s 72 or a court brought into existence by a State. ... Indeed to study Chap III is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested. It is true that it is expressed in the affirmative but its very nature puts out of question the possibility that the legislature may be at liberty to turn away from Chap III to any other source of power when it makes a law giving judicial power exercisable within the Federal Commonwealth of Australia. No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chap III. The fact that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise was noted very early in the development of the principles of interpretation:[27].  In Chap III we have a notable but very evident example."

    This doctrine is both the consequence of and, in our opinion, the necessary condition of preserving, the separation of federal judicial power from federal legislative and executive powers[28]. Federal judicial power is exercised by a court when it exercises jurisdiction vested in it pursuant to ss 73, 75, 76 or 77. Courts are the only repositories in which federal jurisdiction can be vested pursuant to those sections and no federal executive or legislative power can be conferred upon them save a power that is incidental to the judicial power. Federal judicial power has two characteristics that are presently relevant. First, it is distinct from legislative and executive power. That characteristic is descriptive of its nature. Secondly, it is the power which is vested in order to exercise federal jurisdiction, a term which Griffith CJ held to mean "authority to exercise the judicial power of the Commonwealth"[29].  That characteristic is descriptive of its source.  In Boilermakers, the joint judgment speaks of the judicial power of the Commonwealth as the power which is conferred when federal jurisdiction is vested in a court pursuant to Ch III. It is unnecessary now to express an opinion whether the judicial power of the Commonwealth is coterminous with federal judicial power; for present purposes, it is sufficient to accept that, s 122 apart, no legislative power to confer the judicial power of the Commonwealth can be found outside Ch III.

    [25] (1921) 29 CLR 257 at 265.

    [26] (1956) 94 CLR 254 at 270.

    [27]    Townsend's Case (1553) 1 Plowden 111 at 113 [75 ER 173 at 176].

    [28]    See per Deane J in Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 579-580 and in Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 606-607 and per Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 26-27.

    [29]    Ah Yick v Lehmert (1905) 2 CLR 593 at 603.

16. The exclusivity of the legislative power conferred by Ch III to vest federal jurisdiction in Ch III courts including courts created by a State has been repeatedly affirmed[30].  However, the exclusivity of the Ch III power to vest federal jurisdiction says nothing about the power to vest jurisdiction that is non‑federal.  Later cases show that the passage cited from the judgment in In re Judiciary and Navigation Acts refers only to federal jurisdiction.  In Spratt v Hermes[31], Barwick CJ said that the opinion expressed in In re Judiciary and Navigation Acts:

    "must be taken, in my opinion, in the context of that case to be limited to original jurisdiction given by laws made under legislative power derived from s 51 of the Constitution. It has not so far been taken by the Court as a decision that Chap III negates the possibility of original jurisdiction being given to this Court by a law made under some other legislative power of the Parliament".

    [30]    Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 539-540; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 530-531; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 275, 281, 289-290.

    [31] (1965) 114 CLR 226 at 240; see also at 255-257 per Kitto J; Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 600, 612, 623.

17. Jurisdiction conferred under the Territories power has been held to be non‑federal[32]. It may be vested by the Parliament in exercise of the power conferred by s 122, not in exercise of the powers conferred by Ch III. Chapter III and, in particular, s 73 does not prevent the vesting in this Court of appellate jurisdiction under s 122[33]. Opinion has been divided on the question whether original jurisdiction under s 122 can be vested in this Court[34], but it is settled law that Ch III deals only with federal jurisdiction, whether original or appellate.  This Court has had no occasion to deal with the vesting of jurisdiction in a federal court to hear and determine matters arising solely under a State law[35].

    [32]    Porter v The King; Ex parte Yee (1926) 37 CLR 432 at 441, 446-447, 448, 449; Spratt v Hermes (1965) 114 CLR 226 at 239-240, 259; Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 600, 602, 612, 623.

    [33]    Porter v The King; Ex parte Yee (1926) 37 CLR 432 at 440, 446-447, 448, 449; but cf 439; Boilermakers (1956) 94 CLR 254 at 289-290; Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 at 540, 545 (PC); [1957] AC 288 at 315, 320.

    [34]    See Porter v The King; Ex parte Yee (1926) 37 CLR 432; Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 584-585; Spratt v Hermes (1965) 114 CLR 226 at 240-241, 267, 277.

    [35]    The vesting of federal jurisdiction to hear and determine matters which include issues arising under State laws has been considered in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 530-531; Fencott v Muller (1983) 152 CLR 570 and Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 275, 281, 289-290.

18. Hitherto the legislative powers of the States have been exercised to vest State jurisdiction and State judicial power in State Courts or tribunals or in the Privy Council.  In the present case, we are not concerned with federal jurisdiction; the question is whether the Federal Court can be vested by State law with State jurisdiction.  Once it is accepted that the Parliament of New South Wales has power to vest jurisdiction to hear and determine matters arising under its laws in courts other than the courts of its own creation, a State law which purports to vest State jurisdiction and State judicial power in a federal court must be given effect according to its tenor unless the law is invalidated by some constitutional restriction.  Three sources of possible constitutional restriction can be distinguished.

19. First, the attempt to vest State jurisdiction and State judicial power in a federal court may fail by reason of inconsistency between the State law and the law of the Commonwealth. Section 109 of the Constitution would invalidate the State law to the extent of the inconsistency. Without an express legislative agreement by the Commonwealth to the vesting of State jurisdiction in a court created by a law of the Commonwealth, the vesting of federal jurisdiction in the court by the Parliament would imply a legislative intention that that court's jurisdiction should not be enlarged beyond the federal grant. The Parliament of the Commonwealth would be presumed to intend that the court it created was to have the jurisdiction which that court was created to exercise or the jurisdiction subsequently vested in it by the Parliament. An attempt by State statute to vest State jurisdiction would then be inconsistent with the law of the Commonwealth. If a federal court could be vested with State jurisdiction without the legislative approval of the Parliament of the Commonwealth, State jurisdiction additional to the federal jurisdiction vested by the Parliament in that federal court would divert the court from the exercise of its federal jurisdiction. It was precisely to overcome the possibility of such an objection to the investing of federal jurisdiction in State courts[36] that the Constitution adopted the autochthonous expedient of conferring legislative power on the Parliament to vest federal jurisdiction and federal judicial power in State courts irrespective of the agreement of the Parliaments of the States. In the present case, there is no question of a State legislature "drafting" or "conscripting" the Federal Court to exercise State jurisdiction. The consent of the Commonwealth is a condition precedent to the exercise of such jurisdiction.

    [36]    Quick & Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 803 and see Felton v Mulligan (1971) 124 CLR 367 at 393.

20. In R v Duncan the question was the efficacy of a vesting by a State Parliament of State arbitral power in a Tribunal created pursuant to laws of both the Commonwealth and the State and vested by the Commonwealth with Commonwealth arbitral power.  The Commonwealth and State laws were complementary and were designed to create a Tribunal exercising State and Commonwealth powers concurrently.  Brennan J said[37]:

    "If the Commonwealth Act were construed as not permitting the tribunal to be a repository of State power, it would prevail over the State Act by reason of the inconsistency between them. But the Commonwealth Act permits the State Act to repose State powers in the Tribunal. The Commonwealth Parliament, having power to create the Tribunal and vest federal powers of conciliation and arbitration in it, is not bound to refuse permission for the reposing of similar State powers in the Tribunal. Indeed, the object of preventing and settling interstate industrial disputes in the coal industry may be better achieved by permitting the Tribunal to have and to exercise similar powers conferred upon it by a State Act ... It is within the competence of the Commonwealth Parliament to permit such a tribunal to have and to exercise State powers where the vesting and exercise of State is conducive to or consistent with the achievement of the object which the vesting and exercise of federal powers is intended to achieve. It is no argument against the validity or efficacy of co-operative legislation that its object could not be achieved or could not be achieved so fully by the Commonwealth alone. In Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd[38], Starke J said:

    'Co-operation on the part of the Commonwealth and the States may well achieve objects that neither alone could achieve; that is often the end and the advantage of co-operation. The court can and ought to do no more than inquire whether any thing has been done that is beyond power or is forbidden by the Constitution.'"

    [37] (1983) 158 CLR 535 at 579-580.

    [38] (1939) 61 CLR 735 at 774.

21. In the present case, the Parliament of the Commonwealth legislatively consents to the vesting of State jurisdiction in the Federal Court[39].  Without that consent there could be no effective vesting of jurisdiction.  In so far as the vesting of State arbitral power in R v Duncan and the vesting of State judicial power in the present case depend upon the exercise of legislative power by the State with the consent or concurrence of the Parliament of the Commonwealth, there is an analogy between R v Duncan and the present case.  The analogy is imperfect because of the difference between the provision which authorises the vesting of federal arbitral power (s 51(xxxv)) and the provisions which govern the vesting of federal judicial power (ss 73 to 77).  Leaving that factor aside for the moment, there is no general constitutional principle which operates to restrict the vesting by State law of a State power in a tribunal created by the Parliament of the Commonwealth provided the Commonwealth agrees.

    [39] That consent is not given by s 15C of the Acts Interpretation Act 1901 (Cth), a provision which is clearly intended to vest federal jurisdiction, but by s 56(2) of the Corporations Act 1989 (Cth). The same position obtains under s 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

22. It is submitted that the Parliament of the Commonwealth has no legislative power so to agree. But agreement by the Commonwealth does not purport to vest State jurisdiction in a federal court nor does it purport to prescribe a new constitution or procedure for that court; it merely negatives a legislative intention that State jurisdiction should not be invested in that court. The negativing of that intention denies an occasion for the operation of s 109 of the Constitution. An expression of legislative agreement to the vesting of jurisdiction by the Parliament of another polity is not itself a vesting of jurisdiction. In R v Credit Tribunal; Ex parte General Motors Acceptance Corporation[40] Mason J, referring to earlier authority, said:

    " The judgments to which I have referred make the point that although a provision in a Commonwealth statute which attempts to deny operational validity to a State law cannot of its own force achieve that object, it may nevertheless validly evince an intention on the part of the statute to make exhaustive or exclusive provision on the subject with which it deals, thereby bringing s 109 into play. Equally a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law."

    Section 56(2) of the Corporations Act 1989 (Cth) makes it clear that the Parliament of the Commonwealth does not intend to preclude the operation of s 42(3) of the Corporations (New South Wales) Act 1990 and thus leaves that provision room to operate. Section 56(2) itself vests no jurisdiction under s 77 of the Constitution[41].  It merely denies any implication of exclusivity that might otherwise be drawn from the vesting of federal jurisdiction in the Federal Court.

    [40] (1977) 137 CLR 545 at 563.

    [41] Nor does s 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

23. The second source of restriction relates to the High Court of Australia. Its appellate and original jurisdiction is vested in large measure by the Constitution itself. As the creature of the Constitution, it has the jurisdiction vested by the Constitution, subject to regulations affecting its appellate jurisdiction under s 73 and subject to addition to its constitutionally-vested original jurisdiction by laws made under s 76. The constitutional prescription of its original jurisdiction by s 75 subject only to addition under s 76 and the "special position and function of this Court under the Constitution" - to use the phrase of Windeyer J in Spratt v Hermes[42] - lead us to join his Honour in thinking that the list of this Court's possible heads of jurisdiction is exhausted by ss 75 and 76. In contrast with the position of other federal courts, this Court's original jurisdiction cannot be altered by State law. Although this implication can be drawn from the spare textual foundation of ss 75 and 76, it seems to have been the accepted view[43]. And that view is confirmed by a consideration of this Court's appellate jurisdiction under s 73.

    [42] (1965) 114 CLR 226 at 277; but cf at 240 per Barwick CJ.

    [43]    See Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168 at 169; Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2] (1956) 95 CLR 106 at 110.

24. This Court's appellate jurisdiction cannot be extended by the Parliament except under the territories power[44] but it is conferred in terms which ensures that all matters decided by an Australian court in the exercise of original federal or State jurisdiction are or can be ultimately subject to this Court's appellate jurisdiction, including the judgments "[o]f any Justice or Justices exercising the original jurisdiction of the High Court": s 73(i). The term "original jurisdiction of the High Court" in s 73(i) clearly refers to the original jurisdiction which is vested in the Court by s 75 or may be vested in the Court under s 76. The Constitution does not contemplate the exercise by "any Justice or Justices" of jurisdiction other than that original jurisdiction. If original State jurisdiction could be vested in the High Court, a judgment given in exercise of that jurisdiction would not fall within s 73(i) and would thus fall outside the Court's appellate jurisdiction. That would be inconsistent with the Constitution's clear intention to spread this Court's appellate net to cover all judgments given by federal courts, State Supreme Courts and other courts exercising federal judicial power. By contrast, a judgment given by the Federal Court in exercise of State original jurisdiction falls within s 73(ii) as a judgment "[o]f any other federal court" and is thus susceptible of appeal to this Court.

    [44]    See above, fn 33.

25. Thirdly - and this is the restriction on which the appellants place greatest reliance - the investing of State jurisdiction in federal courts might be thought to be inconsistent with ss 76 and 77 by which the Parliament is authorised to vest jurisdiction in federal courts. But, as we have seen, those sections are exhaustive only of federal jurisdiction that can be invested by the Parliament of the Commonwealth. The cases which have turned upon the application of Ch III of the Constitution have so often focused on the limitations of federal judicial power without reference to State judicial power that there is a tendency to enlarge the doctrine so that the jurisdictions described in ss 75 and 76 are exhaustive of the jurisdiction which may be exercised by a federal court under State as well as federal judicial power[45].  But there is nothing in Ch III which warrants the proposition that the exhaustive enumeration of the heads of original federal jurisdiction that may be invested in a federal court other than the High Court is an exhaustive enumeration of the heads of all original jurisdiction that can be invested in the Federal Court, whether by the Parliament of the Commonwealth[46] or by the Parliament of a State.  To the contrary, the constitutional possibility of the Commonwealth vesting part of its original jurisdiction in the courts of a State[47] indicates that there is no necessary constitutional barrier to the courts of one polity exercising jurisdiction conferred by the Parliament of the other.

    [45]    See, for example, Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 275 per Gibbs CJ: "It is hardly necessary to repeat that no jurisdiction can be conferred on a federal court except with respect to matters of the kinds mentioned in ss 75 and 76 of the Constitution: see s 77(i) of the Constitution."

    [46] Under s 122.

    [47] s 77(iii).

26. The autochthonous expedient vests State courts with federal jurisdiction to hear and determine justiciable controversies arising otherwise than under the laws of the State.  Whether the duty to exercise that jurisdiction be regarded as a duty imposed by the investing statute or as a duty imposed by the common law on the repository of jurisdiction[48] is immaterial.  It is also immaterial that the judgments, decrees and orders of a State court given or made in the exercise of federal jurisdiction are executed by officers of the State.  The significant fact is that the courts of one polity - the States - can be conscripted by the other polity - the Commonwealth - to exercise that other polity's judicial power.  The States cannot conscript federal courts to exercise their judicial power but, given agreement by the Commonwealth, there is no prohibition against their investing State judicial power in courts created by the Parliament of the Commonwealth.

    [48]    Ashby v White (1703) 2 Ld Raym 938 at 956 [92 ER 126 at 138]; Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 at 28-29.

27. However, the nature of the power that can be so invested must be compatible with the character and constitution of the courts in which it is to be invested.

    3.     The jurisdiction that federal courts can receive and exercise

28. The powers which the Parliament of the Commonwealth can repose in the courts it creates under Ch III are restricted to the exercise of jurisdiction which can be conferred under that Chapter and under s 122 and powers incidental thereto under s 51(xxxix)[49].  As those courts are created to exercise functions that are exclusively judicial and incidental to judicial functions, it would be contrary to their constitutional character to permit them to be vested with non-judicial functions.  In Boilermakers[50], Dixon CJ, McTiernan, Fullagar and Kitto JJ held that "Chap III does not allow powers which are foreign to the judicial power to be attached to the courts created by or under that chapter for the exercise of the judicial power of the Commonwealth".  The addition of State or "Territory" jurisdiction to the jurisdiction of a federal court vested by or under Ch III does not alter the purpose of that court's creation or its judicial character.  The restriction on the nature of the powers that can be vested in a federal court expressed by their Honours in Boilermakers is of general application.  Of course, as their Honours said in that case[51]:

    "What belongs to the judicial power or is incidental or ancillary to it cannot be determined except by ascertaining if it has a sufficient relation to the principal or judicial function or purpose to which it may be thought to be accessory."

    [49]    Boilermakers (1956) 94 CLR 254 at 271-275; Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 at 543; [1957] AC 288 at 318.

    [50] (1956) 94 CLR 254 at 289.

    [51] (1956) 94 CLR 254 at 278.

29. At the heart of judicial power is the power to decide justiciable controversies between subject and subject or between subject and the State[52].  That is the central concept of a "matter" as that term is used in Ch III[53]. The source of the law to be applied in deciding a controversy is not relevant to the question whether the power to decide it is judicial in nature or not, although either party's reliance on the Constitution or on a law of the Commonwealth is sufficient to stamp a federal character on the jurisdiction to determine the controversy[54].  Federal jurisdiction to determine a controversy may be attracted even though, at the end of the day, the controversy is determined solely by reference to State law.  If federal jurisdiction to determine a controversy by reference solely to State law can be exercised by the Federal Court, there is no reason why State jurisdiction to determine controversies by reference solely to State laws cannot be received and exercised by that Court.

    [52]    Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357; R v Davison (1954) 90 CLR 353 at 367-368; Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134 at 149.

    [53]    Fencott v Muller (1983) 152 CLR 570 at 608.

    [54]    Fencott v Muller (1983) 152 CLR 570 at 607; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 291.

30. It follows that, provided the State law which purports to invest State jurisdiction in a federal court invests only judicial power as that term is understood in the context of Ch III, and provided the Commonwealth agrees to the investing, there is no constitutional inhibition against its reception and exercise by the federal court.  It remains to apply these principles in the present case.

    Jurisdiction to make the winding-up orders and the examination orders and to conduct and hear examinations

31. Jurisdiction to make the winding-up orders is relevantly indistinguishable from a jurisdiction to make a sequestration order under the law of bankruptcy.  In R v Davison[55] Dixon CJ and McTiernan J said:

    "    In the now long history of the English law of bankruptcy the process by which a compulsory sequestration has been brought about has always been of a description which may properly be called judicial[56].  It is unnecessary to trace the history of voluntary sequestration but for a very long time it has been the subject of judicial order."

    Winding up is equally a judicial process and jurisdiction to make a winding-up order may be vested in the Federal Court.  The jurisdiction exercised in making the Amann winding-up orders was conferred by s 42(3) of the New South Wales Corporations Act, Amann being a company incorporated under New South Wales law.  Question 1(a) was correctly answered "yes".

    [55] (1954) 90 CLR 353 at 365. See also Re The Socket Screw & Fastener Distributors (NSW) Pty Ltd (1994) 51 FCR 599 at 603; 123 ALR 315 at 319.

    [56]    See Holdsworth, viii History of English Law, (1937) at 238 et seqq.

32. The power to order the examination of witnesses in the course and for the purposes of a winding up and to conduct and hear such an examination has long been a power conferred on and exercised by courts exercising jurisdiction in the winding up of corporations. So much is accepted by the appellants in the present case. However, they submit that the examinations power as purportedly conferred on the Federal Court by ss 596A and 596B of the Corporations Law falls outside the conception of judicial power in Ch III of the Constitution and outside the denotation of the term "matter" as used in that Chapter.

33. The appellants point to the diverse purposes of examinations in a winding up, stated by Mason CJ in Hamilton v Oades[57], and submit that those purposes reveal the non-judicial character in the examination function.  His Honour said:

    [57] (1989) 166 CLR 486 at 496.

    "There are the two important public purposes that the examination is designed to serve.  One is to enable the liquidator to gather information which will assist him in the winding up; that involves protecting the interests of creditors.  The other is to enable evidence and information to be obtained to support the bringing of criminal charges in connexion with the company's affairs:  Mortimer v Brown[58]."

    Although those are the purposes of an examination in a winding up, it is the part which an examination plays in a winding up and the court's function in conducting the examination that determines whether the court is exercising judicial power.  We respectfully adopt the description of the examination process given by Lockhart J in the Full Court of the Federal Court[59]:

    "    The examination orders, summonses and proposed examination which are the subject of this challenge are in truth but part of the processes that follow from the making of the winding-up order, and which ultimately protect and adjust the rights of companies, their creditors and in some cases contributories.  The Court's supervisory role in the course of a winding up is to ensure that the winding-up laws are properly interpreted and applied to correct mistakes, and to supervise the exercise of compulsory processes in relation to the examination of persons and the obtaining of documents for the purposes of the conduct of those examinations."[60]

    True it is that the function of the court in conducting an examination is not the determination of the rights and liabilities of adversaries, but the function is incidental to the winding up.  The incidental character of the function and the traditional supervision exercised by the court in performing it are sufficient to stamp it with a judicial character.  In R v Davison, Dixon CJ and McTiernan J said[61]:

    "    It will be seen that the element which Sir Samuel Griffith emphasized[62] is that a controversy should exist between subjects or between the Crown and a subject, that which Palles CB emphasized is the determination of existing rights as distinguished from the creation of new ones, and those elements emphasized by Miller J are adjudication, the submission by parties of the case for adjudication and enforcement of the judgment.  It may be said of each of these various elements that it is entirely lacking from many proceedings falling within the jurisdiction of various courts of justice in English law.  [Their Honours then gave some examples].  To wind up companies may involve many orders that have none of the elements upon which these definitions insist.  Yet all these things have long fallen to the courts of justice."  (Emphasis added.)

    Their Honours pointed out that, although a function might be characterised as administrative if conferred upon an administrative agency, a corresponding function might be characterised as judicial if conferred upon a court.  They said[63]:

    "The legislature may commit some functions to courts falling within Chapter III although much the same function might be performed administratively.  In the judgment of this Court in Queen Victoria Memorial Hospital v Thornton[64], the observation occurs:-  'Many functions perhaps may be committed to a court which are not themselves exclusively judicial, that is to say which considered independently might belong to an administrator.  But that is because they are not independent functions but form incidents in the exercise of strictly judicial powers'[65]."

    [58] (1970) 122 CLR 493 at 496, 499.

    [59]    BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451 at 475; 137 ALR 447 at 469.

    [60]    Lockhart J referred to Rees v Kratzmann (1965) 114 CLR 63 at this point.

    [61] (1954) 90 CLR 353 at 367-368.

    [62]    Their Honours were referring to Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357.

    [63] (1954) 90 CLR 353 at 368; see also Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188-189.

    [64] (1953) 87 CLR 144.

    [65] (1953) 87 CLR 144 at 151.

34. In Boilermakers[66] Dixon CJ, McTiernan, Fullagar and Kitto JJ said:

    "On more than one occasion of late attempts have been made in judgments in this Court to make it clear that a function which, considered independently, might seem of its own nature to belong to another division of power, yet, in the place it takes in connection with the judicature, falls within the judicial power or what is incidental to it: see Queen Victoria Memorial Hospital v Thornton[67]; R v Davison[68].  There are not a few subjects which may be dealt with administratively or submitted to the judicial power without offending against any constitutional precept arising from Chap III.  It may be too that the manner in which they have been traditionally treated or in which the legislature deals with them in the particular case will be decisive: see Davison's Case.[69]

    The point might be elaborated and many illustrations, particularly from the bankruptcy jurisdiction, might be given."  (Emphasis added.)

    [66] (1956) 94 CLR 254 at 278. See also R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374.

    [67] (1953) 87 CLR 144 at 151.

    [68] (1954) 90 CLR 353 at 366-370.

    [69] (1954) 90 CLR 353 at 369, 370, 376-378, 382-384, 388, 389.

35. To the extent that the power to order and conduct examinations is available for exercise in the course and for the purposes of a winding up, it is an incident of the judicial power of winding up[70] and has a judicial character.

    [70]    See Re The Socket Screw and Fastener Distributors (NSW) Pty Ltd (1994) 51 FCR 599 at 603; 123 ALR 315 at 319.

36. However, the powers available under ss 596A and 596B of the Corporations Law may be exercised to order and conduct examinations otherwise than in the course and for the purposes of a winding up. That is the consequence of combining some of the several categories of persons listed in the definition of "eligible applicant" in s 9 of the Corporations Law with some of the several categories of matters listed in the definition of "examinable affairs" in the same section, both terms being found in ss 596A and 596B. Section 596A reads:

"      Mandatory examination

The Court is to summon a person for examination about a corporation's examinable affairs if:

(a)an eligible applicant applies for the summons; and

(b)the Court is satisfied that the person is an examinable officer of the corporation or was such an officer during or after the 2 years ending:

(i)if the corporation is under administration - on the section 513C day in relation to the administration; or

(ii)if the corporation has executed a deed of company arrangement that has not yet terminated - on the section 513C day in relation to the administration that ended when the deed was executed; or

(iii)if the corporation is being, or has been, wound up - when the winding up began; or

(iv)    otherwise - when the application is made."

Section 596B reads:

"   Discretionary examination

(1)    The Court may summon a person for examination about a corporation's examinable affairs if:

(a)an eligible applicant applies for the summons; and

(b)the Court is satisfied that the person:

(i)has taken part or been concerned in examinable affairs of the corporation and has been, or may have been, guilty of misconduct in relation to the corporation; or

(ii)may be able to give information about examinable affairs of the corporation.

(2) This section has effect subject to section 596A."

For example, if the Australian Securities Commission (par (a) of the definition of "eligible applicant") were to apply for a summons for the examination of a chief executive officer (an "examinable officer") of a corporation about a takeover being made by the corporation (one of the "affairs of the corporation" under par (b) of the definition), the issuing of the summons to the Chief Executive Officer and the conduct of his or her examination about the takeover offer would not be an exercise of judicial power. Does the attempt by s 42(3) of the Corporations (New South Wales) Act to vest jurisdiction in the Federal Court to order and conduct examinations fail because the powers which are purportedly vested include powers that, being capable of exercise outside a winding up, are not incidental to the winding-up power and thus lack a judicial character?

37. Section 42(3) of the Corporations Law takes effect as a law of New South Wales by force of s 7 of the Corporations (New South Wales) Act which reads:

    " The Corporations Law set out in section 82 of the Corporations Act as in force for the time being:

    (a)     applies as a law of New South Wales; and

    (b)as so applying, may be referred to as the Corporations Law of New South Wales."

    The "Corporations Act" is defined as the Corporations Act 1989 of the Commonwealth, s 82 of which sets out the Corporations Law. Section 10 of the Corporations (New South Wales) Act then provides:

    " (1) Subject to Part 1.2 of the Corporations Law of New South Wales, the Acts Interpretation Act 1901 of the Commonwealth as in force at the commencement of section 8 of the Corporations Act, applies as a law of New South Wales in relation to the Corporations Law, and the Corporations Regulations, of New South Wales and any instrument made, granted or issued under that Law or those Regulations (other than application orders under section 111A of that Law) and so applies as if that Law were an Act of the Commonwealth and those Regulations or instruments were regulations or instruments made under such an Act.

    (2) The Interpretation Act 1987 does not apply in relation to the Corporations Law, or the Corporations Regulations, of New South Wales or an application order or any other instrument made, granted or issued under that Law or those Regulations."

    It follows that what s 7 of the Corporations (New South Wales) Act picks up and applies as a law of New South Wales is the Corporations Law set out in s 82 of the Corporations Act of the Commonwealth, construed according to the Acts Interpretation Act 1901 of the Commonwealth. Section 15A of the last‑mentioned Act provides:

    " Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power."

38. The provisions of s 15A cannot be engaged to qualify the terms in which a State purports to confer State powers on a federal court. The qualification, if any, which might affect the attempt to invest non-judicial State powers in the Federal Court must operate on s 7 of the Corporations (New South Wales) Act so as to limit what that section picks up, not on the Corporations Law after it has been picked up by s 7. In other words, if s 7 were construed as picking up and applying the whole of the Corporations Law set out in s 82 of the Corporations Act of the Commonwealth, some of which is and some of which is not within the legislative competence of New South Wales, s 7 itself would be invalid. Section 7, as an enactment of the Parliament of New South Wales, must be construed in accordance with the Interpretation Act 1987 (NSW) not in accordance with the Commonwealth Acts Interpretation Act. Therefore the relevant qualification, if any, is that prescribed by s 31 of the Interpretation Act 1987 (NSW). It provides:

    "Acts and instruments to be construed so as not to exceed the legislative power of Parliament

    (1)    An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament.

    (2)    If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament:

    (a)it shall be a valid provision to the extent to which it is not in excess of that power, and

    (b)the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

    (3)    This section applies to an Act or instrument in addition to, and without limiting the effect of, any provision of the Act or instrument."

    This provision is similar in text and operation to s 15A of the Commonwealth Acts Interpretation Act.  Of the latter provision, Brennan J said in Re Dingjan; Ex parte Wagner[71]:

    "[Section] 15A can save a provision that is literally in excess of legislative power only if two conditions are satisfied[72]:  first, that 'the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law'[73] and, second, that the operation of the law upon the subjects within power is not changed by placing a limited construction upon the law[74]."

    The text of the Corporations Law may be inspected to ascertain whether discrete provisions having the operation intended for them in the entirety of the Corporations Law can be severed from other provisions which cannot validly be picked up by s 7.  If, on inspection, the text of the Corporations Law allows the provisions which can validly be picked up to be distinguished from the provisions that cannot validly be picked up, s 7 can be construed as picking up only the former provisions. Making that inspection, there is no difficulty in selecting provisions of ss 596A and 596B of the Corporations Law which are validly picked up by s 7 of the Corporations (New South Wales) Act. The provisions which can be upheld in this way include those on which the examination orders are based. Paragraph (b) of the definition of "eligible applicant" in s 9 - "a liquidator or provisional liquidator of the corporation" - can be combined with par (a) of the definition of "examinable affairs" in s 9 - "the promotion, formation, management, administration or winding up of the corporation" - so as to ensure that the powers conferred by ss 596A and 596B are exercised in the course and for the purpose of a winding up. That is sufficient to support the examination orders made in the present case.

    [71] (1995) 183 CLR 323 at 339.

    [72]    Re Nolan; Ex parte Young (1991) 172 CLR 460 at 485-486 per Brennan and Toohey JJ.

    [73]    Pidoto v Victoria (1943) 68 CLR 87 at 109 per Latham CJ; see also Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 61, 80.

    [74]    Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 493 per Barwick CJ.

39. Understanding the source of the Federal Court's jurisdiction to be s 42(3) of the Corporations (New South Wales) Act 1990 and s 56(2) of the Corporations Act 1989 (Cth), we would affirm the answers given by the Full Court of the Federal Court to the questions reserved. The appeal should be dismissed with costs.

40. GAUDRON J.   The respondent is the liquidator of Amann Aviation Pty Ltd ("Amann"), a company wound up by order of the Federal Court of Australia on 30 November 1992.  Later, on 7 July 1995, that Court ordered that the appellants or, in the case of the corporate appellants, certain of their officers be examined in relation to the examinable affairs of Amann.  Summonses were subsequently issued in accordance with that order.

41. Following the issue of summonses, the appellants instituted these proceedings in the Federal Court seeking a declaration that that court had no jurisdiction to order Amann's winding up and seeking, also, the setting aside of the summonses and the order pursuant to which they were issued. The orders which the appellants seek to have set aside were purportedly made pursuant to the Corporations Law, the history and status of which will be discussed later in these reasons.

42. The proceedings instituted by the appellants in the Federal Court came before Black CJ who reserved five questions of law for the consideration of the Full Federal Court.  Those questions will be set out later in these reasons.  For the moment, it is sufficient to note that the Full Court answered them in a manner adverse to the appellants.  They now appeal to this Court, contending that the legislative provisions pursuant to which the Federal Court made the orders which they seek to have set aside are invalid.

    History and status of the Corporations Law

43. In 1989, the Corporations Act 1989 (Cth) ("the Corporations Act (Cth)") was enacted for the regulation of companies throughout Australia. In New South Wales v The Commonwealth (The Incorporation Case)[75], this Court held that certain provisions of that Act were invalid. In 1990, the Corporations Act (Cth) was amended in significant respects and was then expressed to be a law for the government of the Australian Capital Territory and the Jervis Bay Territory (together referred to in the Corporations Act (Cth) and in these reasons as the "Capital Territory"). Section 82 of the Corporations Act (Cth) contains the Corporations Law which is given effect by s 5 of that Act. Section 5 provides:

    " The Corporations Law set out in section 82 as in force for the time being:

    (a)     applies as a law for the government of the Capital Territory; and

    (b) as so applying, may be referred to as the Corporations Law of the Capital Territory."

    [75] (1990) 169 CLR 482.

44. Following amendment of the Corporations Act (Cth), each of the States and the Northern Territory enacted legislation making the Corporations Law applicable as a law of and for that State or Territory ("the counterpart legislation")[76]. In consequence, the Corporations Law now operates throughout Australia.

    [76] Section 7 of the Corporations Act of each State and the Northern Territory respectively applies the Corporations Law as set out in s 82 of the Corporations Act (Cth) as a law of that State or the Northern Territory.

    Jurisdiction with respect to civil matters arising under the Corporations Law

45. By s 51 of the Corporations Act (Cth), jurisdiction is conferred on the Federal Court and on the Supreme Courts of the States and Territories[77] "with respect to civil matters arising under the Corporations Law of the Capital Territory." "Civil matter" is defined in s 50(1) to mean "a matter other than a criminal matter". Jurisdiction with respect to civil matters is also conferred on the Family Court of Australia and State Family Courts by s 51A and, except for superior court matters[78], on lower State and Territory courts by s 51B.  And the courts which have jurisdiction under ss 51, 51A and 51B are authorised to transfer proceedings to other courts having jurisdiction under those provisions[79].

    [77] Note that, by s 51(2), jurisdiction is conferred on the Supreme Courts of the States and Territories "[s]ubject to section 9 of the Administrative Decisions (Judicial Review) Act 1977".

    [78] The expression "superior court matter" is defined in s 50(1) of the Corporations Act (Cth) to mean "a civil matter that the Corporations Law clearly intends (for example, by use of the expression 'the Court') to be dealt with only by a superior court."

    [79] See ss 53, 53A, 53AA, 53B and 53C.

46. The counterpart legislation confers jurisdiction with respect to civil matters arising under the Corporations Law of the States and the Northern Territory in much the same way as jurisdiction is conferred by the Corporations Act (Cth). Thus, for example, s 42(1) of the Corporations (New South Wales) Act 1990 (NSW) ("the Corporations (NSW) Act") provides:

    "... jurisdiction is conferred on the Supreme Court of New South Wales and of each other State[80] and the Capital Territory with respect to civil matters arising under the Corporations Law of New South Wales."

    And s 42(3) provides:

    " Jurisdiction is conferred on the Federal Court with respect to civil matters arising under the Corporations Law of New South Wales."

    There are also provisions conferring jurisdiction on the Family Court and State Family Courts and, except for superior court matters, on the lower courts of the States and Territories[81].  Additionally, provision is made for the transfer of proceedings from one court to another[82].  Again, identical provision is made in the legislation of the other States and the Northern Territory.

    [80] "State" is defined in s 3 of that Act to include the Northern Territory.

    [81] Sections 42A and 42B respectively.

    [82]    Sections 44, 44A, 44AA, 44B and 44C.

47. Section 56(2), which is in Div 1 of Pt 9 of the Corporations Act (Cth), authorises the Federal Court, the Family Court and the Supreme Court of the Australian Capital Territory to exercise jurisdiction conferred by the counterpart legislation. That section is as follows:

    "    The Federal Court, the Family Court or the Supreme Court of the Capital Territory may:

    (a)     exercise jurisdiction (whether original or appellate) conferred on that Court by a law of a State[83] corresponding to this Division with respect to matters arising under the Corporations Law of a State; and

    (b)    hear and determine a proceeding transferred to that Court under such a provision."

    Similar provision is made in the counterpart legislation. Thus, for example, s 47 of the Corporations (NSW) Act provides:

"    A court of New South Wales may:

(a) exercise jurisdiction (whether original or appellate) conferred on it by a law of another State or the Capital Territory corresponding to this Division with respect to matters arising under the Corporations Law of that State or Territory; and

(b)    hear and determine a proceeding transferred to it under such a provision."

[83] Note that State is defined in s 4(1) to include the Northern Territory.

48. It is not in issue that, in terms of s 56(2)(a) of the Corporations Act (Cth), the provisions of the counterpart legislation conferring jurisdiction and providing for the transfer of proceedings between courts constitute, in the case of each State and the Northern Territory, "a law ... corresponding to [Div 1 of Pt 9] with respect to matters arising under the Corporations Law of [that] State". Nor is it in issue that the combined effect of the Corporations Act (Cth) and of the counterpart legislation, so far as their provisions confer and authorise the exercise of jurisdiction, is that, if those provisions are valid, the Federal Court, the Family Court, the Supreme Courts of the States and the Territories and State Family Courts each have jurisdiction with respect to all civil matters arising under the Corporations Law of the States and Territories, no matter the State or Territory in which the corporation in question was incorporated or in which it carries on business.

    Cross-vesting legislation

49. The legislative technique adopted by the Commonwealth, the States and the Northern Territory to confer and vest jurisdiction with respect to civil matters arising under the Corporations Law is, in some respects, similar to that adopted in cross-vesting legislation enacted by them in 1987[84].  The nature of that legislation can be sufficiently ascertained from the Jurisdiction of Courts (Cross‑vesting) Act 1987 (NSW) and the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

    [84]    Note that the Australian Capital Territory enacted the Jurisdictionof Courts (Cross-vesting) Act in 1993.

50. So far as is presently relevant, the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) provides, in ss 4(1) and (2), that the Federal Court and the Family Court each "has and may exercise original and appellate jurisdiction with respect to State matters."[85] And provision is made, in s 5, for certain proceedings to be transferred by the Supreme Court of New South Wales to the Federal Court, the Family Court or the Supreme Court of another State or Territory and for proceedings to be transferred by those courts to the Supreme Court. By s 9(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) it is provided:

    "    The Federal Court, the Family Court or the Supreme Court of a Territory[86] may:

    (a)     exercise jurisdiction (whether original or appellate) conferred on that court by a provision of ... a law of a State relating to cross-vesting of jurisdiction; and

    (b)    hear and determine a proceeding transferred to that court under such a provision."

    [85] "State matter" is defined in s 3 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) to mean:

    "a matter:

    (a)  in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State; or

    (b)removed to the Supreme Court under section 8".

    By s 8, the Supreme Court may order the removal into that court of proceedings pending in other State courts and statutory tribunals.

    [86] By s 3 of this Act "State" is defined to include the Northern Territory while "Territory" is defined to exclude the Northern Territory.

    The questions

51. The proceedings have at all stages been conducted on the basis that the orders in question in this appeal were made by the Federal Court in exercise or purported exercise of jurisdiction conferred by the Corporations (NSW) Act or its Victorian counterpart, the Corporations (Victoria) Act 1990 (Vic) ("the Corporations (Vic) Act"). Seemingly, that is because Amann was incorporated in New South Wales and carried on business in that State and in Victoria. In any event, the questions formulated by Black CJ for consideration by the Full Court refer to the New South Wales and Victorian legislation. Those questions are as follows:

    "1(a)Did s 42(3) of the Corporations (NSW) Act, 1990, or s 42(3) of the Corporations (Vic) Act, 1990 and s 56(2) of the Corporations Act, 1989 (Cth) operate validly to confer upon the Court jurisdiction to make the Orders?

    (b)If no to question 1(a), did s 42(3) of the Corporations (NSW) Act, 1990 or s 42(3) of the Corporations (Vic) Act, 1990 and s 9(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) operate validly to confer upon the Court jurisdiction to make the Orders?

    (c)If no to questions 1(a) and 1(b), did the Court otherwise have jurisdiction to make the Orders?

    2   If no to each part of question 1 are the Orders liable to be set aside and, if so, from what date?

    3 (a) Did, or does (as the case may be), s 42(3) of the Corporations (NSW) Act, 1990 or s 42(3) of the Corporations (Vic) Act, 1990 and s 56(2) of the Corporations Act, 1989 (Cth) operate validly to confer upon the Court jurisdiction to:

    (i)make the Examination Orders;

    (ii)      issue the Summonses; or

    (iii)to conduct and hear examinations under ss 596A or 596B or any, and which, provision of Part 5.9 Division 1 of the Corporations Law?

    (b) If no to question 3(a) did, or does (as the case may be), s 42(3) of the Corporations (NSW) Act, 1990 or s 42(3) of the Corporations (Vic) Act, 1990 and s 9(2) of the Jurisdiction of Courts (Cross‑vesting) Act, 1987 (Cth) operate validly to confer upon the Court jurisdiction to:

    (i)make the Examination Orders;

    (ii)issue the Summonses; or

    (iii)to conduct and hear examinations under ss 596A or 596B or any, and which, provision of Part 5.9 Division 1 of the Corporations Law?

    (c)    If no to questions 3(a) and 3(b), did, or does (as the case may be), the Court otherwise have jurisdiction to:

    (i)make the Examination Orders;

    (ii)issue the Summonses; or

    (iii)to conduct and hear examinations under ss 596A or 596B and or any, and which, provision of Part 5.9 Division 1 of the Corporations Law?

    4   If no to each part of question 3 should an order be made on the application of the [appellants] setting aside:

    (a)     the Examination Orders; and

    (b)    the Summonses?

    5   Are the [appellants] ... entitled to any, and if so what, orders or declarations?"

52. The Full Court answered "Yes" to question 1(a) and "No" to question 5, and, on that basis, the other questions and sub-questions did not arise.  In arriving at those answers, the Full Court rejected the appellants' submissions that the States have no power to confer jurisdiction on federal courts with respect to matters arising under State laws and that the Commonwealth has no power to authorise those courts to exercise jurisdiction of that kind.

    Winding up jurisdiction

53. Power to order the winding up of corporations is conferred on "the Court" by ss 459A, 459B and 461 of the Corporations Law as it applies in each of the States and Territories. "Court" is defined in s 58AA in terms which will be set out later in these reasons. For the moment, it is sufficient to note that that definition encompasses the Federal Court, the Supreme Courts of the States and Territories, the Family Court and State Family Courts. And for the moment, it is convenient to proceed on the assumption that winding up jurisdiction is validly conferred on each of those courts and, on that basis, to consider the validity of the provisions of the Corporations Law concerned with the "examinable affairs" of a corporation.

    Examinations with respect to the "examinable affairs" of a corporation

54. The provisions concerned with the examination of witnesses with respect to the examinable affairs of a corporation are contained in Ch 5 Pt 5.9 of the Corporations Law. By s 596A, "[t]he Court" - in the light of the definition in s 58AA, that means each of the Supreme Courts of the States and Territories, the Federal Court, the Family Court and each State Family Court - is to summon a person for examination as to a corporation's "examinable affairs" if:

    "(a)   an eligible applicant applies for the summons; and

    (b)    the Court [concerned] is satisfied that the person is an examinable officer of the corporation or was such an officer during or after the 2 years ending:

    (i)if the corporation is under administration - on the section 513C day in relation to the administration; or

    (ii)if the corporation has executed a deed of company arrangement that has not yet terminated - on the section 513C day in relation to the administration that ended when the deed was executed; or

    (iii)if the corporation is being, or has been, wound up - when the winding up began; or

    (iv)otherwise - when the application is made."

    Similarly, by s 597A, "the Court" is to require a "person" to file an affidavit about a corporation's "examinable affairs" if an eligible applicant so applies and the "person" was an officer of the corporation who satisfies the same conditions as those outlined in s 596A(b).

298. In Duncan[442] this Court held that the conferral on a federal industrial tribunal of the capacity to receive powers and functions under State legislation was incidental to the power of the Federal Parliament to establish such a tribunal. Subject to the suggested prohibition derived from the language or structure of Ch III of the Constitution, the same might be said of the creation by the Parliament of a federal court to operate as a superior court within the integrated Australian courts system. Such a court, exercising both its primary jurisdiction and the "accrued" jurisdiction sanctioned by this Court[443], hears and determines matters in the several States, affecting residents of those States. The enactment of s 56(2) of the federal Act is sufficiently connected to the power to establish federal courts in s 71 of the Constitution. This is so because it assists in the exercise of the federal judicial power by such courts by eliminating or reducing jurisdictional disputes which would otherwise add needlessly to the costs and delays involved in the exercise of that power. Alternatively, the facility of transfer to and by a federal court facilitates the efficient discharge of its functions as such.

     [442] (1983) 158 CLR 535 at 552-553, 563, 572, 579-580, 589. But cf O'Brien, "The Constitutional Validity of the Cross-vesting Legislation", (1989) 17 Melbourne University Law Review 307 at 311.

     [443] Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 474-475; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 278‑279, 294.

299. In Duncan[444], s 51(xxxix) of the Constitution was cited as the source of the federal legislative power exercised in that case. That paragraph does not empower the Federal Parliament to confer jurisdiction on a federal court[445].  But it does enable that Parliament to enact laws "with respect to" all matters which may properly be characterised as "incidental" to the execution of the judicial power vested in federal courts by Ch III.  It is sufficient that there be a practical connection between the law and the incidental matter[446].  There could be nothing with a more practical connection with the just and efficient operation of federal courts within an integrated judiciary than the receipt and transfer of matters which, in the interests of justice, may more suitably be determined in such courts.

     [444] (1983) 158 CLR 535 at 591.

     [445] Willocks v Anderson (1971) 124 CLR 293 at 299; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 535.

     [446] See Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 368-369; Leask v The Commonwealth (1996) 70 ALJR 995 at 999; 140 ALR 1 at 7.

300. Other heads of legislative power were relied upon by the respondent and the interveners.  These included the corporations power[447] and the territories power[448].  Each of these paragraphs presents difficulties, as the Commonwealth acknowledged.  It is unnecessary to explore them.  By analogy with Duncan, the enactment of a federal law as part of a cooperative scheme, enabling a federal body to exercise State jurisdiction and to hear and determine a proceeding transferred to it, is within the implied power attaching to the practical operation of that body within the Australian Federation. However, the remaining question is whether the fact that here that body is a federal court, operating within the constraints of Ch III of the Constitution, renders the analogy with Duncan inapplicable and forbids what was done by the federal and State legislation in this case.

     [447] Constitution, s 51(xx).

     [448] Constitution, s 122.

     Chapter III of the Constitution does not forbid the scheme

301. The appellants urged that the language, structure and purpose of Ch III of the Constitution prohibited the purported conferral of jurisdiction on a federal court by the State Parliament and the purported permission by the Federal Parliament for a federal court to exercise the jurisdiction so conferred.

302. It was submitted that s 77(i) of the Constitution represents an exhaustive statement of the power of any Australian Parliament to make laws defining the original jurisdiction of a federal court. Only the Federal Parliament has such legislative power. Similarly, only the Federal Parliament has the legislative power to define the jurisdiction of any federal court with respect to the matters in ss 75 and 76 of the Constitution[449].  In support of their arguments, the appellants relied on the passages in In re Judiciary and Navigation Acts[450] and The Boilermakers' Case[451] previously quoted. 

     [449] Constitution, s 77.

     [450] (1921) 29 CLR 257 at 265.

     [451] (1956) 94 CLR 254 at 269-270.

303. The appellants urged that, in the face of an express statement as to the extent of the legislative power to define and confer the original jurisdiction set out in ss 75-77, the stated subject matters should be viewed as an exhaustive statement of that power. That conclusion should be reached because of the authority of this Court, because of the care taken in the Constitution to express what was permissible and the clear inference that such precise definition was adopted to protect the judicial branch of the Commonwealth from the danger of contamination by, or dilution with, extraneous personnel, jurisdiction or functions. Where, as was conceded, the Federal Parliament could not itself confer jurisdiction with respect to any matter arising under a law made by a Parliament of a State, it was unthinkable that a State Parliament, not expressly authorised to do so, could confer part of its judicial power upon a court of another polity. Had such authority been intended by the Constitution, it would have been a simple thing for reciprocal provision to be made vesting federal courts with State jurisdiction in s 77(ii). Yet this was not done.

304. There is, of course, force in the appellants' arguments.  An application of the dicta in Inre Judiciary and Navigation Acts and The Boilermakers' Case, read out of their context, together with a failure to heed "the silent operation of constitutional principles"[452] and to grasp "the context of complete independence and international sovereignty"[453] of the Australian Commonwealth might sustain the appellants' contentions.  However, in my view they should not prevail.

     [452] Cooper v Stuart (1889) 14 App Cas 286 at 293.

     [453] Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 378. See also The Commonwealth v Kreglinger & Fernau Ltd and Bardsley (1926) 37 CLR 393 at 412-414 per Isaacs J.

305. First, it is important to recognise that Ch III of the Constitution is dealing, as it states, with "[t]he judicial power of the Commonwealth". It is not dealing with the judicial power of the States. That power remains to be governed, outside those matters expressly provided in Ch III, by or under the State constitutions provided for in Ch V.

306. Secondly, the express provision for the investing of the courts of the States with federal jurisdiction, as stated in s 77(iii), is readily explained by the historical circumstances which the Constitution was required to address in 1901. At that time there were no federal courts but established colonial courts which became State courts and which could be required to accept the federal jurisdiction, whether the State consented or not. The problem which the legislation under scrutiny in this appeal addresses is of a different order. It concerns the conferral of State jurisdiction upon the recently created Federal Court with the concurrence of the Commonwealth and on the initiative of the States as part of a cooperative legislative scheme. The Constitution does not forbid such provisions. It simply fails to afford an express power whereby a State could invest its jurisdiction compulsorily in a federal court, ie whether the Commonwealth agreed or not. But the absence of express power does not mean that the power does not exist if a proper source may be found to sustain it.

307. Thirdly, it is not the case that a federal court may only exercise jurisdiction as enumerated in Ch III of the Constitution. In at least three areas additional jurisdiction has been conferred upon federal courts, including this Court. Such jurisdiction has been upheld and actually exercised, including by this Court. I refer to the exercise of jurisdiction as a Colonial Court of Admiralty under the Colonial Courts of Admiralty Act 1890 (Imp), since repealed in its application to Australia[454];  the exercise of the jurisdiction to hear appeals from decisions of the Supreme Court of an independent country, Nauru, under the Nauru (High Court Appeals) Act 1976 (Cth)[455]; and, most importantly, the exercise by this Court and by other federal courts of original and appellate jurisdiction under the territories power[456].  

     [454] See for example John Sharp & Sons Ltd v The Katherine Mackall (1924) 34 CLR 420. This jurisdiction was repealed in relation to Australia by the Admiralty Act 1988 (Cth), s 44.

     [455] See Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Amoe v Director of Public Prosecutions (Nauru) (1991) 66 ALJR 29; 103 ALR 595.

     [456] See R v Bernasconi (1915) 19 CLR 629; Porter v The King;  Ex parte Yee (1926) 37 CLR 432; Spratt v Hermes (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 604, 626. See also Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 at 544-545.

308. The authority of this Court concerning the integration of territory courts within the Australian judicial system has been described as involving "baroque complexities and many uncertainties"[457]. It is true that the decisions are not all easy to reconcile. But the notion that territory courts (which are not mentioned in Ch III) are outside the Australian judicial system there provided for is consistent neither with what this Court has said nor with what it has done. If a source of power to confer jurisdiction, original or appellate, upon federal courts may be found outside Ch III, for example in s 122 of the Constitution, the strict prohibition contended by the appellants is unsustainable. Once it goes, logic suggests that a source of such power may also be found outside that Chapter in s 107 whereby the legislative powers of the State Parliaments are preserved and recognised. Although the States are not in the same relationship to the Commonwealth as the territories are, they are part of the Federation and, as sources of legislative power, just as "non-federal" as is law-making for the territories under s 122 of the Constitution.

     [457] Cowen and Zines, "Federal Jurisdiction in Australia", 2nd ed (1978) at 172.  See also ACC, Australian Judicial Advisory Committee, Report (1987) at 51.

309. Fourthly, this approach does not involve the Court in over-ruling its holdings in In re Judiciary and Navigation Acts[458] or The Boilermakers' Case.  Those decisions stand for the matters essential to their respective determinations.  It merely requires a reading of the passages referred to confining what was said to the "judicial power of the Commonwealth" and recognising that different rules will govern the endeavour to confer jurisdiction on federal courts in relation to territory courts or matters within a State's legislative and judicial power[459].

     [458] But see discussion in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 612, 642.

     [459] ACC, Australian Judicial System Advisory Committee, Report (1987) at par 3.42.

310. Fifthly, the approach not only fortifies and sustains the integrated judicial system of Australia which is such an important feature of our Constitution. As a practical charter of government it is unsurprising that the Constitution should provide a power to confer territory and State jurisdiction equally upon federal courts for which equally Ch III does not expressly provide. The suggestion that pars (xxxvii) and (xxxviii) of s 51 would suffice to permit such a conferral of jurisdiction would be doubtful if the appellants' arguments about the closed parameters of Ch III are taken to their logical conclusion. If Ch III does provide the entire exposition of the legislative power of the Federal Parliament with respect to the federal judiciary then, unless explicitly provided for (as in s 51(xxxix)), the legislative heads of power in s 51 (including pars (xxxvii) and (xxxviii) would be incapable of adding to the jurisdiction contained in Ch III[460]. To impose such a rigidity on the Constitution would inflict a needless wound which this Court has avoided in the past with respect to territory jurisdiction. It should avoid it now with respect to State jurisdiction.

     [460] cf Northern Pipeline Co v Marathon Pipe Line Co 458 US 50 (1982).

311. Contrary to the opinion of the Privy Council[461], territory jurisdiction is not "non-federal"[462]. State jurisdiction is clearly federal, apt for conferral by a State Parliament, with the permission of the Federal Parliament, upon a federal court. I would be second to none in defending the integrity of the courts established by or under Ch III of the Constitution[463].  But the institutional separation of the federal courts and the independence of the judiciary where protected[464] are in no way threatened either by the conferral of jurisdiction to hear territory appeals nor by the conferral of original and appellate jurisdiction upon a federal court by a State Parliament with the agreement of the Federal Parliament. On the contrary, such enactments strengthen the integrated Australian judicature as contemplated by the Constitution. They do so by appropriately relating its component parts to one another. The territory appeals cases were not challenged in this appeal. Yet at their heart lies a fundamental inconsistency with the appellants' argument that the jurisdiction of federal courts must be found in Ch III and in Ch III alone[465].

     [461] Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 at 545.

     [462] Spratt v Hermes (1965) 114 CLR 226 at 242; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 71 ALJR 1346 at 1368, 1390, 1422-1423; 147 ALR 42 at 71, 101, 145-146.

     [463] See Nicholas v The Queen unreported, High Court of Australia, 2 February 1998.

     [464] cf Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 684-685 per Toohey J.

     [465] Spratt v Hermes (1965) 114 CLR 226 at 240 per Barwick CJ; Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 626 per Gibbs J.

312. As Professor Zines stated in his opinion, which eventually gave birth to the proposal for the legislation in question in this appeal, the constitutional question before this Court has not previously been considered in this country.  However, in the United States, a question in some ways analogous arose when Alaska was admitted to the Union as a State.  Before it attained statehood, a federally created District Court exercised judicial power in Alaska.  After statehood, and before the creation of a system of State courts, the new State legislature purported to vest the judicial power of the State in the federal District Court for Alaska.  Its constitutional power to do so was challenged in the Supreme Court of the United States[466].  That Court dismissed the challenge.  It acknowledged and accepted that the District Court, after statehood was[467]:

     "to a significant degree the creature of two sovereigns acting cooperatively to accomplish the joint purpose of avoiding an interregnum in judicial administration in the transitional period."

     The Supreme Court held[468]:

     "It is apparent that the legislature of Alaska vested the judicial power of the State in the interim District Court for the time being, that the district judge in this case explicitly deemed himself to be exercising such power, and that, in light of the express consent of the United States, he properly did so."

     It would be extremely surprising if the vesting of State power in a federal court could lawfully be undertaken in the United States, against the history of that country which rejected the constitutional interrelationship of State and federal courts, yet was forbidden in Australia where, from the start, close integration of the judiciary has been maintained and strengthened first by the constitutional text and then by later federal legislation[469].

     [466] Metlakatla Indians v Egan 363 US 555 (1960).

     [467] 363 US 555 at 558 (1960).

     [468] 363 US 555 at 559 (1960).

     [469] Kable v Director of Public Prosecutions (NSW) (1996) 70 ALJR 814 at 839, 844‑846; 138 ALR 577 at 611, 619-622.

313. It follows that no barrier exists in Ch III of the Constitution to forbid the conferral by a State Parliament upon a federal court of State juridical power. Nor is there any prohibition in Ch III to prevent the Federal Parliament from allowing that course.

     Residual jurisdictional arguments

314. There remain a number of residual arguments on the jurisdictional challenge still to be disposed of. First, it was submitted for the appellants that the provisions of the federal and State Acts impermissibly interfered with the appellate jurisdiction provided by the Constitution[470].  It was argued that they did so by re-directing an appeal in a matter otherwise within State judicial power so that it became an appeal from the Federal Court such as had been made in this case. 

     [470] Constitution, s 73.

315. There may indeed be a problem in those provisions of the State Act[471] and of the federal Act[472] which purport to exclude a right of appeal in relation to a transfer of a proceeding or as to which rules of evidence and procedure are to be applied. But as the present case did not involve a transfer and as no question as to evidence or procedure has arisen, it is unnecessary to explore such provisions. They would, in any case, clearly be severable. The appellate jurisdiction of this Court, as provided in the Constitution[473], is not otherwise disturbed in the slightest.  If original jurisdiction may lawfully be conferred on a federal court, that court's appellate provisions will, by statute, govern any appeal that may be brought from the court's orders.  Such appeal would lie to this Court, although from the Federal and not the State or Territory Supreme Court.  Appellate supervision would not be circumvented or circumscribed. 

     [471] State Act, s 49.

     [472] Federal Act, s 58.

     [473] Constitution, s 73.

316. Secondly, the spectre of State additions to the original jurisdiction of this Court was raised. In the unlikely event that that were attempted with the concurrence of the Federal Parliament, it would be time enough to consider the validity of such legislation. It would raise questions quite different from those presented by the State and federal Acts given this Court's constitutional functions and the express provisions in the Constitution itself for the definition of much of the jurisdiction of this Court.  I will not extend these reasons with reflections upon such unlikely and remote possibilities.

317. Thirdly, it was urged that, if the Commonwealth could not enact a law conferring State jurisdiction on a federal court, it could not have been within the contemplation of the Constitution that the Commonwealth could achieve indirectly what could not be done directly. The answer to this complaint is found in the remarks of Brennan J in Duncan[474] with which I agree:

     "It is no argument against the validity or efficacy of co-operative legislation that its object could not be achieved or could not be achieved so fully by the Commonwealth alone."

     Nor is it an answer, if the means chosen be valid, that other means (eg by the use of pars (xxxvii) and (xxxviii) of s 51) might have been enlisted to secure the same ends.

     [474] (1983) 158 CLR 535 at 580 citing Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 774 per Starke J.

318. Fourthly, it was complained that, because State courts are not constrained by all the constitutional principles which have been expressed to govern federal courts, a serious risk existed in permitting the conferral of State jurisdiction upon federal courts that functions alien to the constitutional character of federal courts and the exercise of matters proper to the federal judicial power might thereby ensue, destructive of the scheme for the federal judiciary which Ch III, as explained by this Court, establishes.

319. Although this argument presents a theoretical risk, it has no application in this case.  It was accepted unreservedly by the Commonwealth and the States that the latter, in conferring their jurisdiction upon a federal court would be obliged to accept that court as it is constituted[475].  A State could not legislate so as to violate Ch III or to alter the essential character of a federal court created in accordance with that Chapter[476].  Any attempt to impose duties or functions upon a federal court contrary to those permitted by decisions of this Court concerning the federal judicial power would be, for that reason and to that extent, ineffective. 

     [475] Le Mesurier v Connor (1929) 42 CLR 481 at 496-497; Leeth v The Commonwealth (1992) 174 CLR 455 at 469.

     [476] See Kable v Director of Public Prosecutions (NSW) (1996) 70 ALJR 814; 138 ALR 577.

320. Unsurprisingly, this problem of potential incompatibility was addressed by those who drafted both the Federal and State Acts.  Each enactment is expressed in terms of jurisdiction with respect to "matters"[477].  It seems hardly likely that this word, of the greatest constitutional significance in Australia, was chosen without the intention that it be understood in the constitutional sense.  The suggestion that non-"matters" might be conferred within State judicial power is completely unpersuasive.  Such an attempt might unacceptably distort a settled feature of the federal judiciary as it has been explained by this Court.  Against the risk that it might, for that reason, undermine the clear institutional "protections for ... independence"[478] essential to the federal judiciary, it could not be allowed.  So much is recognised by the terms of the legislation permitting the conferral of State jurisdiction.  Accordingly, at least in the case of the legislation under scrutiny in this appeal, the suggested problem disappears.

     [477] See federal Act, ss 56(1) and (2); State Act, ss 42(1) and (3).

     [478] See Northern Pipeline Co v Marathon Pipe Line Co 458 US 50 at 60 (1982).

321. Fifthly, it was objected that if a State Parliament could confer jurisdiction on a federal court this would potentially erode the guarantee of jury trial under s 80 of the Constitution, which appears in Ch III. There are several answers to this objection. Section 80 is confined, in its terms, to "[t]he trial on indictment of any offence against any law of the Commonwealth". Accordingly, the section does not apply, and was never intended to apply, to an offence against a law of a State. A proposal to introduce into the Constitution, by referendum, a guarantee of trial by jury in terms larger than s 80, and to extend the protection to the States failed to pass in 1988[479].  In any case, to the extent that s 80 might be said to suggest a broader principle, it is notable that the State Act confines the conferral of State jurisdiction on the Federal Court to "civil matters", a phrase defined to exclude criminal proceedings of the kind to which s 80 would apply.

     [479] See Constitution Alteration (Rights and Freedoms) 1988, s 2.

322. Sixthly, it was objected that the State legislation impermissibly conscripted federal courts and imposed upon them functions and duties contrary to the implications of the Constitution as expressed in The Commonwealth v Cigamatic Pty Ltd (In Liquidation)[480].  Alternatively, this argument was advanced in terms of the constitutional prohibition stated in Melbourne Corporation v The Commonwealth[481].  There is no merit in either of these arguments.  Whatever the scope of the implications restricting State legislation affecting the Commonwealth and its officers, they can have no application, in a case such as the present, where the affectation is the consequence of inter-governmental agreement approved by the Commonwealth and given effect by legislation enacted by the Federal Parliament.  What the States might not have done unilaterally, they could do, as here, where the Commonwealth has legislated to bind itself[482].

     [480] (1962) 108 CLR 372; cf Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority (1997) 71 ALJR 1254 at 1259, 1265, 1270, 1272-1277, 1279-1283, 1301-1306; 146 ALR 495 at 500, 508, 515, 518-525, 527-533, 558‑565.

     [481] (1947) 74 CLR 31.

     [482] See Chaplin v Commissioner of Taxes for South Australia (1911) 12 CLR 375; Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 at 356, 357. See also Griffith, Rose and Gageler, "Further Aspects of the Cross-vesting Scheme", (1988) 62 Australian Law Journal 1016 at 1024.

323. For all of the foregoing reasons the appellants' objections to the conferral of State jurisdiction on the Federal Court under the cross-vesting legislation fails.  The Full Court was correct in so deciding.

     A permissible exercise of judicial power

324. I reach the fifth and final contention of the appellants. This complained about the conferral of State jurisdiction upon the Federal Court, and the acceptance of that conferral by the Federal Parliament, insofar as this would permit the making of examination orders, the issue of examination summonses and the conduct of examinations under ss 596A and 596B of the State Act.  It was submitted that this was inconsistent with the exercise of the judicial power of the Commonwealth and thus forbidden to a federal court, even where exercising State jurisdiction.

325. By reference to the explanation of the purposes and character of such legislative provisions expounded in Hamilton v Oades[483], the appellants submitted that the activities envisaged, even where incidental to the performance by a liquidator of the functions necessary to the winding up or administration of a company, went beyond functions proper to a federal court.  They involved what essentially amounted to the gathering of evidence upon which might be based civil or criminal proceedings against those subject to the examination.  They were thus foreign to the exercise of the judicial power.  To the extent that the State Act attempted to confer such functions, and to the extent that the federal Act purported to permit their exercise, each statute offended against the constitutional rule obliging the separation of the judicial power and those who exercise it from other government power[484]. 

     [483] (1989) 166 CLR 486 at 496. The Court there considered s 541(3) of the Companies (New South Wales) Code which was the predecessor to ss 596A and 596B; cf Re Hugh J Roberts Pty Ltd (1970) 91 WN (NSW) 537 at 541.

     [484] R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 271‑272.

326. The appellants went on to argue that, even if their examination on the application of a liquidator could be sustained as a traditional and incidental exercise of judicial power, other provisions of the impugned sections would nonetheless fail because of the way in which they envisaged the possibility of a wider course of examination by other "eligible applicants" (such as the Australian Securities Commission) having functions and purposes completely unconnected with any exercise of judicial power.  Because the powers of examination  provided by the sections were interconnected and part of a comprehensive legislative scheme[485], it would be impossible to sever permissible judicial examinations from those which were impermissible.  The sections in their entirety would fall, being a vivid illustration of the difficulties of attempted conferral of State jurisdiction on a federal court.

     [485] See for example Corporations Law, ss 596A(a) and 596B(1)(a) read with the definition of "eligible applicant" in s 9 pars (a) ("the Commission") and (e) ("a person authorised in writing by the Commission").

327. There is no merit in the complaint about the conferral of jurisdiction on a federal court to conduct an examination of the kind provided on the application of a liquidator relevant to the winding up of a company. In determining whether particular activity is within, or incidental to, the exercise of judicial power, it is permissible and often helpful to examine the judicial activity as it existed before and at the time the Constitution was adopted[486].  In the analogous and antecedent field of bankruptcy law, judges have been performing similar functions of examinations for more than four centuries[487].  Judges have done so, as Barwick CJ explained in Rees v Kratzmann[488], to ensure that such examinations are "not made an instrument of oppression, injustice, or of needless injury to the individual".

     [486] Cominos v Cominos (1972) 127 CLR 588 at 600, 605, 608; R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 627.

     [487] See Bankruptcy Act 1542 (Eng).  See now Bankruptcy Act 1966 (Cth), s 81.

     [488] (1965) 114 CLR 63 at 66; cf Cominos v Cominos (1972) 127 CLR 588 at 606.

328. The use of judges in this way has often been noted by this Court[489] as a necessary and usual step in the process of the judicial winding up of a company[490].  Such functions therefore fall quite readily within the test of activity incidental to the exercise of judicial power stated in Lowenstein's Case[491].  Against the background of such a long established performance of judicial functions in the same or analogous fields, it is impossible to suggest that the examination of officers, on the application of a liquidator, falls outside the scope of the judicial power properly exercisable by a federal court[492].  Although of their own nature such functions might seem at first blush to be non judicial in character, in their context and discharged in connection with the performance of judicial functions, they fall within the judicial power or what is incidental to it[493].

     [489] See for example Cheney v Spooner (1929) 41 CLR 532 at 537.

     [490] R v Davison (1954) 90 CLR 353 at 367-368.

     [491] R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 at 586‑587.

     [492] Re the Socket Screw & Fastener Distributors (NSW) Pty Ltd (1994) 51 FCR 599 at 603; Leeth v The Commonwealth (1992) 174 CLR 455 at 469.

     [493] Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 151; R v Davison (1954) 90 CLR 353 at 366-370; R v Kirby;  Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 278.

329. A more difficult question is whether the inclusion of a power in other "eligible applicants", such as the Australian Securities Commission and other inquisitorial powers, contaminates the legislative provisions as they were invoked in this case in a way that could not be severed to uphold the permissible provisions and to excise the impermissible.

330. The arguments on this issue are very finely balanced indeed. Strong reasons can be marshalled for each point of view. However, I agree, for the reasons given by Brennan CJ and Toohey J, that it is possible to select those provisions of ss 596A and 596B of the Corporations Law which are validly picked up by the carefully chosen language of s 7 of the State Act, construed in accordance with the Interpretation Act 1987 (NSW) s 31. I therefore agree that, so severed, the provisions sustaining the examination orders made in the present case, were compatible with a jurisdiction conferred on the Federal Court which involved the exercise by that Court of judicial power and nothing else[494].

     [494] See Re F; Ex parte F (1986) 161 CLR 376 at 384-385 where the relevant authorities are discussed.

     Conclusion and order

331. Because I reach the conclusion that the decision of the Full Court of the Federal Court was correct, it is unnecessary for me to consider an additional submission, advanced on behalf of the State of New South Wales.  This was that, in the event that the cross-vesting legislation were held unconstitutional, this Court should, as a matter of practice, adopt measures to delay the making of its orders so as to give an opportunity to the Governments and Parliaments involved to consider remedial legislation to cure the disruption which such a decision would cause in very many cases[495].  In the conclusion which I reach, the cross‑vesting legislation considered in this appeal is valid.  So are the orders for the examination of the appellants.  The answers given by the Full Court were correct.  The appeal from the Full Court's orders should therefore be dismissed with costs.

     [495] See Northern Pipeline Co v Marathon Pipe Line Co 458 US 50 at 88-89 (1982); Re Language Rights under Manitoba Act, 1870 (1985) 19 DLR (4th) 1 at 46; Bilodeau v Attorney-General of Manitoba (1986) 27 DLR (4th) 39 at 46.