Re Wakim; Ex parte McNally

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Case Agency Issuance Number Published Date

Re Wakim; Ex parte McNally

[1999] HCA 27

Case

Re Wakim; Ex parte McNally

[1999] HCA 27

•

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE WAKIM SECOND RESPONDENT

Ex parte McNALLY & ANOR PROSECUTORS

Re Wakim; Ex parte McNally [1999] HCA 27
17 June 1999
S74/1998

ORDER

Representation:

D F Jackson QC with N Perram for the prosecutors (instructed by Mallesons Stephen Jaques)

No appearance for the first respondent

G A Palmer QC with P J Cook and B Vukadinovic for the second respondent (instructed by Vaughan Barnes)

Interveners:

D M J Bennett QC, Solicitor-General for the Commonwealth with H C Burmester QC, S J Gageler and M A Perry intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

T I Pauling QC, Solicitor-General for the Northern Territory with R J Webb intervening on behalf of the Attorney-General of the Northern Territory (instructed by Solicitor-General for the Northern Territory)

T I Pauling QC, Solicitor-General for the Northern Territory with D R Jarvis intervening on behalf of the Attorney-General of the Australian Capital Territory (instructed by ACT Government Solicitor)

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

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

B M Selway QC, Solicitor-General for the State of South Australia with L K Byers intervening on behalf of the Attorneys-General of the States of South Australia and Tasmania (instructed by Crown Solicitor for South Australia and Crown Solicitor for Tasmania)

M G Sexton SC, Solicitor-General for the State of New South Wales intervening on behalf of the Attorney-General of the State of New South Wales (instructed by Crown Solicitor for New South Wales)

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

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE WAKIM SECOND RESPONDENT

Ex parte DARVALL PROSECUTOR

Re Wakim; Ex parte Darvall
17 June 1999
S107/1998

ORDER

Application dismissed.

Costs reserved for consideration by a single Justice on application made on not less than seven days' notice.

Representation:

D F Jackson QC with N Perram for the prosecutor (instructed by Moray & Agnew)

No appearance for the first respondent

G A Palmer QC with P J Cook and B Vukadinovic for the second respondent (instructed by Vaughan Barnes)

Interveners:

T I Pauling QC, Solicitor-General for the Northern Territory with D R Jarvis intervening on behalf of the Attorney-General of the Australian Capital Territory (instructed by ACT Government Solicitor)

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

M G Sexton SC, Solicitor-General for the State of New South Wales intervening on behalf of the Attorney-General of the State of New South Wales (instructed by Crown Solicitor for New South Wales)

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

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE BROWN & ORS FOURTH RESPONDENTS

Ex parte AMANN & ANOR PROSECUTORS/APPLICANTS

Re Brown; Ex parte Amann
17 June 1999
S118/1998

ORDER

The first-named applicant's application to extend the time for application for a writ of certiorari to quash the orders of the Federal Court made on 7 July 1995 in proceedings VG3304 of 1992 be allowed.

On the application of the first-named applicant, order absolute in the first instance for a writ of certiorari to quash the orders of the Federal Court made on 7 July 1995 in proceedings VG3304 of 1992.

On the application of the first-named applicant, order absolute in the first instance for a writ of prohibition prohibiting the respondents from taking any further steps in the Federal Court under the order for winding up of Amann Aviation Pty Limited (in liq.).

Otherwise, applications by the first and second-named applicants be dismissed.

Respondents to pay the first-named applicant's costs.

The second-named applicant pay the respondents' costs of the second-named applicant's applications.

Representation:

S D Rares SC with N Perram for the prosecutors/applicants (instructed by Henry Davis York)

No appearance for the first, second and third respondents

No appearance for the third named fourth respondent

A Robertson SC with M A Jones for the first and second named fourth respondents (instructed by Nash O'Neill Tomko)

Interveners:

T I Pauling QC, Solicitor-General for the Northern Territory with D R Jarvis intervening on behalf of the Attorney-General of the Australian Capital Territory (instructed by ACT Government Solicitor)

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

M G Sexton SC, Solicitor-General for the State of New South Wales intervening on behalf of the Attorney-General of the State of New South Wales (instructed by Crown Solicitor for New South Wales)

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

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

SPINKS & ORS APPLICANTS

AND

PRENTICE RESPONDENT

Spinks v Prentice
17 June 1999
S140/1998

ORDER

Special leave to appeal granted.

Appeal treated as instituted and heard instanter, but dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

F M Douglas QC and R W White SC with T D Castle for the applicants (instructed by Mallesons Stephen Jaques)

D E Grieve QC with S D Epstein for the respondent (instructed by Deacons Graham & James)

Interveners:

T I Pauling QC, Solicitor-General for the Northern Territory with D R Jarvis intervening on behalf of the Attorney-General of the Australian Capital Territory (instructed by ACT Government Solicitor)

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

M G Sexton SC, Solicitor-General for the State of New South Wales intervening on behalf of the Attorney-General of the State of New South Wales (instructed by Crown Solicitor for New South Wales)

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

CATCHWORDS

Re Wakim; Ex parte McNally & Anor

Re Wakim; Ex parte Darvall

Re Brown & Ors; Ex parte Amann & Anor

Spinks & Ors v Prentice

Constitutional law – Judicial power of the Commonwealth – Cross-vesting of federal, State and Territory jurisdiction – Whether Chapter III of the Constitution contains an exhaustive delimitation of the original jurisdiction that may be conferred on a federal court.

Constitutional law – State and Commonwealth legislative power – State law vesting State jurisdiction in Federal Court – Whether State has power to confer State jurisdiction on federal courts – Whether Commonwealth has power to consent to conferral of State jurisdiction on federal courts – Doctrine of separation of powers considered.

Constitutional law – Jurisdiction – Territories – Commonwealth law vesting Territory jurisdiction in Federal Court – Whether Commonwealth law applying in Territory is a "law made by the Parliament" for the purposes of Chapter III of the Constitution.

Constitutional law – Interpretation – Whether constitutional validity turns on legislative purpose or intent – Whether constitutional validity turns on legislative consent – Consideration of "co-operative federalism".

High Court – Stare decisis – Whether equally divided previous decision of Court is binding precedent – Whether necessary to reopen or reconsider previous decision.

High Court – Appeal – Earlier challenge to validity of legislation dismissed – Issue estoppel and res judicata – Whether a party to earlier proceedings or another can reagitate issues decided in earlier proceedings – Whether order of Federal Court finally determined the rights of the parties.

Federal Court of Australia – Jurisdiction – Bankruptcy proceedings – "Matter" – "Accrued jurisdiction" – Whether matter includes non-federal claim – Whether claims arise out of a common substratum of facts.

Corporations – Winding up – Examination orders – Whether Corporations Law purports to confer non-judicial power on federal court.

Words and phrases – "matter" – "accrued jurisdiction" – "justiciable controversy".

The Constitution, Ch III, ss 51(xxxix), 71, 76(ii), 77(i), 109, 122.
Judiciary Act 1903 (Cth), s 23(2)(a).
Corporations Act 1989 (Cth), ss 49, 51, 51A, 56.
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 9.
Corporations (New South Wales) Act 1990, s 42.
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 4.
Corporations Law, Pt 5.9, ss 447A, 596, 597(9).

GLEESON CJ.Legislation providing for cross-vesting of jurisdiction between federal, State and Territory courts was enacted to take effect in 1988[1]. Cognate legislation, providing specifically for cross-vesting of jurisdiction in relation to matters arising under the Corporations Law, was enacted in 1989 and 1990[2]. In 1995 there came before the Full Court of the Federal Court proceedings which raised questions as to the validity of the legislation. The Full Court upheld the legislation[3]. An appeal in one proceeding came to this Court[4]. The six Justices who sat on the appeal were evenly divided[5]. The appeal was therefore dismissed[6], but the decision does not bind this Court in the present case[7]. The Court now has before it further proceedings in which the validity of the legislation is again challenged.
[1]The Commonwealth legislation is the Jurisdiction of Courts (Cross-vesting) Act 1987. After the Bill had passed through the Houses of Parliament, but before it had been assented to, the Advisory Committee on the Australian Judicial System, in its Report to the Constitutional Commission (1987, at 3.113-3.115), expressed doubts as to the validity of the legislation and drafted a constitutional amendment to support the proposal for cross-vesting. In 1988, in its Final Report (vol 1, pars 6.29-6.38), the Constitutional Commission recommended that the Constitution be amended to permit cross-vesting. However, the legislation was enacted without the support of any constitutional amendment.
[2]The relevant legislation is set out in the reasons for judgment of Gummow and Hayne JJ.
[3]B P Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451.
[4]Gould v Brown (1998) 193 CLR 346.
[5]Brennan CJ, Toohey and Kirby JJ held that the legislation was valid; Gaudron, McHugh and Gummow JJ held that it was invalid.
[6]Judiciary Act 1903 (Cth), s 23(2)(a).
[7]Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336.
The cross-vesting legislation has been commended as an example of co‑operation between the Parliaments of the Federation. Approval of the legislative policy is irrelevant to a judgment as to constitutional validity; just as disapproval of the policy would be irrelevant. It is argued that the legislation is unconstitutional. That argument must succeed or fail on its legal merits. If it is correct, then the legislation is invalid. The Parliaments of the Commonwealth, the States, and the Territories cannot, by co-operation, amend the Constitution. The Constitution, in s 77(iii), provides that the Parliament of the Commonwealth may invest a court of a State with federal jurisdiction. What is presently the subject of challenge is the reverse process. Its convenience has been determined by the Parliaments. The duty of the Court is to determine its legality. The "autochthonous expedient of conferring federal jurisdiction on State courts"[8] is sustained, not by its expediency, but by a specific grant of legislative power. The question is whether the reverse process is effective without such an express grant of power.
[8]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268.
On the matter of the validity of the cross-vesting legislation, and on the additional issues which arise in relation to the other aspects of the proceedings before the Court, I agree with the reasons for judgment of Gummow and Hayne JJ. However, I wish to make particular reference to two earlier decisions of this Court, one of which is relied upon by those who challenge the legislation, and the other of which is relied upon by those who support the legislation.
The primary issue turns upon the meaning and effect of Ch III of the Constitution, which relates to the judicature.
For present purposes, the important provisions of Ch III are ss 71, 75, 76 and 77. Section 71 provides that the judicial power of the Commonwealth shall be vested in this Court, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The Federal Court of Australia is one such federal court created by the Parliament. Section 75 provides that this Court shall have original jurisdiction in certain kinds of matter. Section 76 empowers the Parliament to legislate to confer original jurisdiction on this Court in certain other kinds of matter. Section 77 provides:
" With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
(i)defining the jurisdiction of any federal court other than the High Court;
(ii)defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;
(iii)investing any court of a State with federal jurisdiction."
The laws of the Parliament of the Commonwealth presently in question provide that the Federal Court may exercise jurisdiction conferred on that court by a law of a State. These are said to be laws by which the Parliament "consents" to a federal court being invested with State jurisdiction. They do not refer to any of the matters mentioned in ss 75 and 76. It is acknowledged that there is no provision in Ch III which either adverts to the possibility that a State Parliament may enact legislation conferring jurisdiction on this Court, or another federal court, or empowers the Parliament of the Commonwealth to consent to such a course. It is said, however, that Ch III is only concerned with the judicial power of the Commonwealth, and that what is here in question is State judicial power. The Parliament of a State, so the argument runs, has power to vest jurisdiction to decide matters arising under its laws in courts other than courts of that State, including federal courts. An attempt to exercise such a power may, in the absence of Commonwealth agreement, be frustrated by the operation of s 109 of the Constitution. However, with Commonwealth agreement, there is nothing to prevent the effective vesting, by State legislation, of State judicial power in a federal court[9].
[9]Gould v Brown (1998) 193 CLR 346 at 379-381 per Brennan CJ and Toohey J.
It may be doubted that, when the Federal Court exercises State jurisdiction conferred under the cross-vesting scheme, it is exercising power which is divorced from the judicial power of the Commonwealth. The power to enforce an order of the Federal Court, for example, comes from s 53 of the Federal Court of Australia Act 1976 (Cth). Furthermore, as Gummow J pointed out in Gould v Brown[10], when the legislative basis for appeals within the federal jurisdiction is considered, the assumption that a neat division between the judicial power of the Commonwealth and State judicial power can be maintained is questionable. However, the argument advanced in support of the legislation is challenged on more fundamental grounds.
[10](1998) 193 CLR 346 at 452.
I am unable to accept that the argument summarized above is consistent with In re Judiciary and Navigation Acts[11]. That decision has been followed and applied for almost 80 years, and judicial expressions of discontent with its authority have been rare[12]. It has had a profound influence on the interpretation of Ch III. No one has argued in the present case that it should no longer be followed.
[11](1921) 29 CLR 257.
[12]cf North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 666 per Kirby J.

The case concerned the validity of Pt XII of the Judiciary Act 1903–1920 (Cth) and, in particular, s 88, which purported to enable the executive government of the Commonwealth to refer to the High Court, for authoritative determination, any question of law as to the validity of Commonwealth legislation. The legislation, if valid, would have enabled the Commonwealth government to obtain from this Court a ruling on any question as to the validity of Commonwealth legislation, even though no adversary litigation challenging such validity was on foot. This, some considered, would have been a useful arrangement[13]. However, Pt XII of the Judiciary Act was held to be invalid.
[13]The Supreme Court of Canada was given a comparable jurisdiction in 1875, 1891 and 1906 – see Attorney-General for Ontario v Attorney-General for Canada [1912] AC 571.
The decision did not turn upon a view that the function which the legislation purported to confer on the High Court was not a judicial function[14]. The majority accepted that the making of binding declarations of the kind envisaged was a judicial function. The basis of the decision was that, in the contemplated proceedings, there was no "matter" within the meaning of Ch III (that is to say, no "immediate right, duty or liability to be established by the determination of the Court"[15]). The majority[16] held that, because Ch III only empowered the Parliament to confer original jurisdiction on the High Court in relation to "matters" of the kind specified in ss 75 and 76, and because Ch III operates "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"[17], Parliament could not confer judicial power which did not relate to a "matter".
[14]Jacobs J, in The Commonwealth v Queensland (1975) 134 CLR 298 at 325, said that the law as understood at the time might not have required a conclusion that it was impossible to impose a non-judicial function upon the High Court.
[15]InreJudiciary and Navigation Acts (1921) 29 CLR 257 at 265.
[16]Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ.
[17]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
It is instructive to note the views of Higgins J, in dissent[18]. His Honour said:
"It is said that this Court, as a Court, is forbidden by the Constitution to perform any functions which are not within 'the judicial power of the Commonwealth', and that the function of determining the validity of an Act except between litigating parties is not within that judicial power. I cannot accept either proposition. To say that Blackacre shall be vested in A (and in A only) does not carry as a corollary that Whiteacre shall not be vested in A; to say that the judicial power of the Commonwealth shall be vested in the High Court (and other Federal Courts and such other Courts as Parliament invests with Federal jurisdiction – sec 71 of the Constitution) does not imply that no other jurisdiction, or power, shall be vested in the High Court or in the other Courts."
[18]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 271-272.
The passage expresses the argument that failed. It is very close to the argument in support of the validity of the legislation in the present case.
Underlying the conclusion of the majority was a view as to the separation of powers. In explaining their opinion that a judicial function "is not competent to [the High Court] unless its exercise is an exercise of part of the judicial power of the Commonwealth", their Honours said[19]:
"What, then, are the limits of the judicial power of the Commonwealth? The Constitution of the Commonwealth is based upon a separation of the functions of government, and the powers which it confers are divided into three classes – legislative, executive and judicial … In each case the Constitution first grants the power and then delimits the scope of its operation".
[19]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264.
It was the delimitation that was regarded as crucial to the separation of governmental powers and functions. In that respect, no relevant distinction can be made between ss 75 and 76 on the one hand, and s 77 on the other, or between the High Court and other federal courts.
The essence of the argument in support of the validity of the cross-vesting legislation is that Ch III has nothing to say, either expressly or by implication, concerning judicial power other than the judicial power of the Commonwealth. The corollary is that the delimitation of original jurisdiction, undertaken in Ch III, has no application to the conferring of judicial power upon the federal judicature by State Parliaments, with the consent of the Parliament of the Commonwealth.
On this argument, there would be nothing to prevent a State Parliament enacting legislation of the kind considered in In re Judiciary and Navigation Acts, and, with the consent of the Parliament of the Commonwealth, conferring upon the High Court, or another federal court, jurisdiction to make declarations
as to the validity of State legislation. The possibility is not fanciful. A power of that kind has been accepted to be judicial power. The legislation would not involve an attempt to confer a non-judicial function upon this Court or another federal court. However, such legislation would expose the fragility of the concept of delimitation regarded by the majority in In re Judiciary and Navigation Acts as underpinning the separation of powers.
In 1973, the State of Queensland attempted, by legislation, to confer such jurisdiction on the Judicial Committee of the Privy Council. The legislation was held to be incompatible with Ch III and invalid[20]. Although the case did not involve an attempt to confer State judicial power on a federal court, the State laws about which a declaration could be sought were capable of giving rise to questions and matters of a kind which would also fall within ss 75 and 76 of the Constitution. For example, a Queensland Act might have given rise to a claim for an injunction against an officer of the Commonwealth. Jacobs J said[21]:
"Once it is recognized that the Judicial Committee is a judicial body and that it exercises judicial power and once it is recognized that Ch III of the Constitution is an exhaustive statement of the kind of judicial power which may be conferred or exercised in respect of the subject matters set out in ss 75 and 76 it is of no consequence in the present context that the Judicial Committee may consider and determine 'matters' under s 4 of the 1833 Act which are not 'matters' under ss 75 and 76. The subject matters under those sections of the Constitution may only be considered and determined in exercise of the kind of judicial power envisaged under Ch III of the Constitution."
[20]The Commonwealth v Queensland (1975) 134 CLR 298.
[21]The Commonwealth v Queensland (1975) 134 CLR 298 at 328.
In re Judiciary and Navigation Acts is a substantial obstacle to success of the arguments in support of the cross-vesting legislation.
The other decision which requires particular examination is R v Duncan; Ex parte Australian Iron and Steel Pty Ltd[22]. That case, it is said, recognized a principle concerning federalism which has a bearing on the present issue. The Court was concerned with a scheme of co-operative legislation under which the Parliaments of the Commonwealth and of New South Wales constituted the Coal Industry Tribunal, and conferred upon the Tribunal powers, with the intention that the Tribunal would exercise the totality of the powers so conferred and thus be able more effectively to discharge its functions. There was no doubt as to the capacity of each Parliament to confer upon a tribunal the powers it purported to confer. It was argued unsuccessfully that the Commonwealth Parliament could not create an authority jointly with a State. Gibbs CJ pointed out[23] that the Constitution nowhere forbids the Commonwealth and the States to exercise their respective powers in such a way that each is complementary to the other. Deane J said[24] that there were two related propositions to be derived from the terms of the Constitution and from the nature of the federation it embodies:
"The first is that co-operation between the Parliaments of the Commonwealth and the States is in no way antithetic to the provisions of the Constitution: to the contrary, it is a positive objective of the Constitution. The second is that, 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."
[22](1983) 158 CLR 535.
[23]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 552.
[24]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 589.
Later his Honour observed[25] that it was not suggested in that case that the Commonwealth Constitution contained any relevant express or implied prohibition upon legislative power.
[25]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 591.
There is more than a suggestion of prohibition in the present case. It is one of the central issues. It is the point of the argument based on In re Judiciary and Navigation Acts and R v Kirby; Ex parte Boilermakers' Society of Australia[26]. If there were no such prohibition, and if there were shown to be a constitutional source of power for the Commonwealth legislation which consents to cross‑vesting, then Duncan would provide an answer to an argument that it is impermissible for the Commonwealth and State Parliaments to legislate co‑operatively to vest jurisdiction in the one court. However, it does not provide an answer to the argument that there is a prohibition, and that there is no constitutional source of power for the Commonwealth legislation.
[26](1956) 94 CLR 254.
As to the question of prohibition, if Ch III contains an exhaustive delimitation of the original jurisdiction that may be conferred on a federal court, then the possibility of supplementation of that jurisdiction by co-operative legislation of the kind involved in Duncan is denied. If it does not, then reliance on Duncan is unnecessary. The most that can be said is that, as Duncan shows, federalism and co-operation are not inconsistent, and that is a legitimate consideration to take into account in deciding what to make of Ch III. There are, however, countervailing considerations.
As to the question of the constitutional source of power for the Commonwealth's legislation, reliance is placed upon Deane J's observation, in Duncan[27], that the power of the Commonwealth Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State (s 51(xxxv)) and with respect to matters incidental to the execution of that power (s 51(xxxix)) sufficed to enable the Commonwealth Parliament to legislate to authorize the Governor‑General to enter into the arrangement for the establishment of a tribunal which would be capable of receiving and exercising the particular powers conferred upon it by the Act and the related powers conferred upon it by the concurrent State Act. By parity of reasoning, it is said[28], s 51(xxxix) enables the Parliament to enact laws with respect to all matters that are incidental to the execution of the judicial power vested in federal courts by Ch III, and the consenting legislation answers that description. On this view, s 71 empowers the Parliament to establish a federal court to exercise the judicial power of the Commonwealth, s 77 empowers the Parliament to define the jurisdiction of the court, but only with respect to the matters mentioned in ss 75 and 76, and then the "incidental" power enables the Parliament to legislate to make effective the conferring on such a court of judicial power other than the judicial power of the Commonwealth, which may be related or unrelated to any of the matters referred to in ss 75 and 76.
[27]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 591.
[28]Gould v Brown (1998) 193 CLR 346 at 491 per Kirby J.
What is here argued to be incidental bears little resemblance to what was held in Duncan to be incidental. Conferring, or agreeing to the conferment, upon a federal court, established under the Constitution to exercise the judicial power of the Commonwealth with respect to a limited class of matters, of jurisdiction to exercise the judicial power of the States is not in aid of the execution of the principal power. It is both a substantial addition to the power, and an attempt to circumvent the limitations imposed upon the power by the Constitution.
I agree with the orders proposed by Gummow and Hayne JJ, and with their reasons for those orders.

GAUDRON J. The relevant facts and the issues raised in these matters are set out in the judgment of Gummow and Hayne JJ. In the matters of Re Wakim & Ors; Ex parte McNally & Anor, Re Wakim & Ors; Ex parte Darvall and Re Brown & Ors; Ex parte Amann & Anor, I agree with the orders which their Honours propose and respectfully adopt their reasons.
I also agree with the orders proposed by Gummow and Hayne JJ in Spinks & Ors v Prentice, notwithstanding the conclusion I reached with respect to severability in Gould v Brown[29]. I adhere to the view I expressed in that case, namely, that examination powers cannot validly be conferred on the Federal Court other than in relation to corporations in respect of which that Court has exercised or is exercising jurisdiction to make a winding-up order[30]. However, the question whether the legislation in question in this case can be read down within constitutional limits occurs in a quite different context from that involved in Gould v Brown.
[29](1998) 193 CLR 346 at 409-410.
[30](1998) 193 CLR 346 at 404-405.
In Gould v Brown the question was whether legislation of the States and the Northern Territory could be read down so as to confer jurisdiction on the Federal Court with respect to some only of the civil matters arising under the Corporations Law as enacted in those States and that Territory[31]. However, this case is concerned with the Corporations Act 1989 (Cth) to the extent that it vests jurisdiction in the Federal Court in matters arising under the Corporations Law as enacted for the Australian Capital Territory.
[31](1998) 193 CLR 346 at 405-410.
It is not in issue that the Parliament enacted the Corporations Law for the Australian Capital Territory pursuant to s 122 of the Constitution[32] and it is now settled that Parliament may confer jurisdiction on a federal court with respect to matters arising under a law under s 122[33]. Moreover, it is clear that the Parliament enacted the Corporations Law for the Australian Capital Territory as model legislation to be enacted by each State and the Northern Territory so that there would be uniform laws throughout Australia[34]. It may be taken, in that context, that jurisdiction was vested in the Federal Court with respect to civil matters arising under the Corporations Law of the Australian Capital Territory partly because that Court exercises jurisdiction throughout Australia and is, thus, in a position to play a significant role with respect to the interpretation and application of the Corporations Law. It may also be taken that jurisdiction was conferred on the Federal Court with respect to those matters because that Court is well placed to exercise jurisdiction with respect to corporations which, although incorporated in the Australian Capital Territory, carry on business elsewhere in Australia.
[32]Corporations Act, s 5.
[33]See Northern Territory of Australia v GPAO (1999) 73 ALJR 470; 161 ALR 318.
[34]Heads of Agreement for Future Corporate Regulation, reached at Alice Springs, 29 June 1990, between the Commonwealth, the States and the Northern Territory.
In the circumstances referred to above, the preferable view is that Parliament intended to vest jurisdiction in the Federal Court with respect to civil matters arising under the Corporations Law of the Australian Capital Territory to the full extent that the Constitution permits. It is possible to read down the provisions of the Corporations Law upon which the orders in question in this case are based so that they apply with respect to corporations that have been wound up by the Federal Court or are the subject of winding-up proceedings in that Court. Accordingly, I agree with the orders proposed by Gummow and Hayne JJ.

McHUGH J. In Gould v Brown[35], I held that State Parliaments had no power to vest State judicial power in federal courts created by the Parliament of the Commonwealth and that the Parliament of the Commonwealth had no power to consent to State Parliaments vesting State judicial power in the federal courts. Consequently, in so far as the Corporations Act 1989 (Cth) and the Corporations (New South Wales) Act 1990 (NSW) purported to vest State judicial power in the Federal Court of Australia, they were invalid. My view did not prevail. Because the Court was evenly divided, the appeal against the orders of the Full Court of the Federal Court, upholding the validity of both Acts, failed[36].
[35](1998) 193 CLR 346.
[36]Judiciary Act 1903 (Cth), s 23(2)(a).
The issue which was before the Court in Gould v Brown[37] is now raised again. Involved in the present proceedings is not only the validity of the Corporations Act 1989 and the Corporations (New South Wales) Act 1990 but also the validity of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act 1987 of each of the States. Like the corporations legislation, the cross-vesting legislation purports to vest State judicial power in the federal courts. The issues and the relevant legislative provisions involved in the four proceedings before the Court are set out in the joint judgment of Gummow and Hayne JJ. I need not repeat them.
[37](1998) 193 CLR 346.
Because the Court was equally divided in Gould v Brown[38], the decision in that case creates no "binding authority"[39] in this Court. Having read and listened to the arguments of the parties and the interveners in these proceedings, I am just as convinced now as I was when Gould was decided that, consistently with the Constitution, the Corporations Act 1989 and the Corporations (New South Wales) Act 1990 are invalid in so far as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power. For the reasons that I gave in Gould, I am also convinced that the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act 1987 of each of the States are also invalid in so far as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power.
[38](1998) 193 CLR 346 at 393 per Brennan CJ and Toohey J, 411 per Gaudron J, 432 per McHugh J, 463-465 per Gummow J, 501 per Kirby J.
[39]Tasmania v Victoria (1935) 52 CLR 157 at 183 per Dixon J.
It would be very convenient and usually less expensive and time-consuming for litigants in the federal courts if those courts could deal with all litigious issues arising between the litigants, irrespective of whether those issues have any connection with federal law. From the litigant's point of view that is saying a great deal. But unfortunately, from a constitutional point of view, it says nothing. The deficiencies and complexities of federal jurisdiction have been pointed out many times before, never more powerfully than by Mr Owen Dixon KC in giving evidence before the Royal Commission on the Constitution in 1928[40]. The inability of the federal courts to exercise cross-vested State jurisdiction in the manner provided for under the present legislation simply shows another deficiency in the system. I do not think that it can be seriously doubted that, if Australia is to have a system of federal courts, the public interest requires that these courts should have jurisdiction to deal with all existing controversies between litigants in those courts.
[40]Commonwealth of Australia, Report of the Royal Commission on the Constitution (1929) at 99-110.
The function of the judiciary in constitutional cases

However, the judiciary has no power to amend or modernise the Constitution to give effect to what the judges think is in the public interest. The function of the judiciary, including the function of this Court, is to give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention. That necessarily means that decisions, taken almost a century ago by people long dead, bind the people of Australia today even in cases where most people agree that those decisions are out of touch with the present needs of Australian society. Judge Easterbrook has pointed out that a written constitution "is designed to be an anchor in the past. It creates rules that bind until a supermajority of the living changes them."[41] In the same article, he pointed out[42] that a person cannot logically deny the power of the past to rule today's affairs and at the same time assert that Art III of the United States Constitution (the equivalent of our Chapter III) still binds. Judicial review of the constitutional validity of legislation "depends on the belief that decisions taken long ago"[43] still bind today's society.
[41]Easterbrook, "Abstraction and Authority", (1992) 59 University of Chicago Law Review 349 at 363.
[42]Easterbrook, "Abstraction and Authority", (1992) 59 University of Chicago Law Review 349 at 375.
[43]Easterbrook, "Abstraction and Authority", (1992) 59 University of Chicago Law Review 349 at 375.
The Constitution, although enacted in 1900, is binding today by reason of the tacit assent of the people of Australia to its continued operation. Few, if any, constitutional lawyers now accept Thomas Jefferson's claim that a Constitution enacted by one generation cannot bind subsequent generations. Jefferson first put forward this claim in a letter to James Madison which was written in Paris in September 1789. The claim was based on Jefferson's famous aphorism "that the earth belongs in usufruct to the living". Jefferson wrote[44]:
"The question Whether one generation of men has a right to bind another, seems never to have been started [stated?] either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; and that no such obligation can be so transmitted I think very capable of proof.
I set out on this ground, which I suppose to be self evident, 'that the earth belongs in usufruct to the living': that the dead have neither powers nor rights over it." (emphasis in original)
[44]Letter to Madison dated 6 September 1789, The Republic of Letters (Morton Smith, ed), (1995), vol 1 at 631-632.
Madison rejected Jefferson's claim although, as Adrienne Koch has pointed out[45], he agreed in theory with Jefferson's fundamental principles. However, he attacked "on the grounds of practicability virtually every specific proposal" contained in Jefferson's letter[46]. Madison said[47]:
"I find no releif [sic] from these consequences, but in the received doctrine that a tacit assent may be given to established Constitutions and laws, and that this assent may be inferred, where no positive dissent appears. ...
May it not be questioned whether it be possible to exclude wholly the idea of tacit assent, without subverting the foundation of civil Society?"
[45]Koch, Jefferson and Madison: The Great Collaboration (1964) at 70.
[46]Koch, Jefferson and Madison: The Great Collaboration (1964) at 70.
[47]Letter to Jefferson dated 4 February 1790, The Republic of Letters (Morton Smith, ed), (1995), vol 1 at 652.
It is safe to say that Madison's view has prevailed in the United States, Canada and Australia. Our Constitution continues to bind "the courts, judges, and people of every State and of every part of the Commonwealth"[48]. It does so although its terms and structure express the ideas and philosophies of men long dead and although it was enacted by a Parliament that no longer claims to have any right to legislate for the Australian people.
[48]Covering Clause 5.
Change to the terms and structure of the Constitution can be carried out only with the approval of the people in accordance with the procedures laid down in s 128 of the Constitution. Until change is made, the function of the judiciary is to give effect to the present terms and structure of the Constitution. We must, of course, never forget Chief Justice Marshall's words "that it is a constitution we are expounding."[49] As the Chief Justice said in that case in speaking of incidental powers[50], "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." In the present case, however, I think that the Constitution does prohibit the States from vesting State jurisdiction in federal courts and prohibits the Commonwealth consenting to the vesting of State jurisdiction in those courts.
[49]McCulloch v Maryland 17 US 159 (1819) at 200 (emphasis in original).
[50]McCulloch v Maryland 17 US 159 (1819) at 206.
Constitutional interpretation
The starting point for a principled interpretation of the Constitution is the search for the intention of its makers[51]. That does not mean a search for their subjective beliefs, hopes or expectations. Constitutional interpretation is not a search for the mental states of those who made, or for that matter approved or enacted, the Constitution. The intention of its makers can only be deduced from the words that they used in the historical context in which they used them[52]. In a paper on constitutional interpretation, presented at Fordham University in 1996, Professor Ronald Dworkin argued, correctly in my opinion[53]:
"We must begin, in my view, by asking what – on the best evidence available – the authors of the text in question intended to say. That is an exercise in what I have called constructive interpretation[54]. It does not mean peeking inside the skulls of people dead for centuries. It means trying to make the best sense we can of an historical event – someone, or a social group with particular responsibilities, speaking or writing in a particular way on a particular occasion."
[51]cf Story, Commentaries on the Constitution of the United States, 5th ed (1891), vol 1 at 305, par 400.
[52]McGinty v Western Australia (1996) 186 CLR 140 at 230.
[53]Dworkin, "The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve", (1997) 65 Fordham Law Review 1249 at 1252.
[54]See Dworkin, Law's Empire, (1986), Ch 9.
The application which this Court has given to some words and phrases of the Constitution would almost certainly have surprised most of those who participated in the making of the Constitution. Most of them could not have foreseen the extent to which the application of those words and phrases would enable the Commonwealth to dominate the federation and reduce the power of the States to control their domestic affairs. But that does not mean that this Court's interpretation of our Constitution has lacked fidelity to the intentions of those who made the Constitution.
Where the interpretation of individual words or phrases of the Constitution is in issue, the current doctrine of the Court draws a distinction between connotation and denotation or, in other words, between meaning and application. Thus, in Ex parte Professional Engineers' Association[55] Windeyer J said:
"We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes."
[55](1959) 107 CLR 208 at 267.
Philosophers are now said to regard the distinction between connotation and denotation as outdated[56]. And in R v Federal Court of Australia; Ex parte WA National Football League[57], Mason J said that "[t]he distinction between meaning and denotation is not without its difficulties." But whether criticism of the distinction is or is not valid should not be seen as decisive. What is decisive is that, with perhaps only two exceptions[58], the Court has never hesitated to apply particular words and phrases to facts and circumstances that were or may have been outside the contemplation of the makers of the Constitution. That is because, with the striking exception of s 92 – which has an historical meaning – the words of the Constitution, for the most part, describe concepts and purposes that are stated at a sufficiently high level of abstraction to enable events and matters falling within the current understanding of those concepts and purposes to be taken into account. In the words of an earlier work of Professor Dworkin[59], the Constitution draws a distinction between concepts and conceptions. That being so, once we have identified the concepts, express and implied, that the makers of our Constitution intended to apply, we can give effect to the present day conceptions of those concepts.
[56]Zines, The High Court and the Constitution, 3rd ed (1992) at 16.
[57](1979) 143 CLR 190 at 234.
[58]Attorney-General for NSW v Brewery Employés Union of NSW (1908) 6 CLR 469; King v Jones (1972) 128 CLR 221.
[59]Dworkin, Taking Rights Seriously, (1977) at 134.
Indeed, many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered. Examples can be found in the powers conferred on the Parliament of the Commonwealth to make laws with respect to "trade and commerce with other countries, and among the States"[60], "trading or financial corporations formed within the limits of the Commonwealth"[61], "external affairs"[62] and "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State"[63]. In these and other cases, the test is simply: what do these words mean to us as late 20th century Australians? Such an approach accords with the recognition of Isaacs J in The Commonwealth v Kreglinger & Fernau Ltd and Bardsley[64] that our Constitution was "made, not for a single occasion, but for the continued life and progress of the community".
[60]Constitution, s 51(i).
[61]Constitution, s 51(xx).
[62]Constitution, s 51(xxix).
[63]Constitution, s 51(xxxv).
[64](1926) 37 CLR 393 at 413.
The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above. Thus, in 1901 "marriage" was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably "marriage" now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.
But even if we continue to hold, as Windeyer J asserted in Ex parte Professional Engineers' Association[65], that the meanings of the words in the Constitution do not change as language changes, the meanings that we now place on the Constitution may not entirely coincide with the meanings placed on it by those who drafted, approved or enacted that document. That is because a Constitution contains implications, inferences and propositions as well as words, phrases and clauses. Experience derived from the events that have occurred since its enactment may enable us to see more in the combination of particular words, phrases or clauses or in the document as a whole than would have occurred to those who participated in the making of the Constitution[66]. Thus we now see, although it was not seen in 1901, that freedom of communication on matters of government and politics is an indispensable incident of the system of government created by the Constitution and that the law of defamation must not be inconsistent with that freedom[67]. Similarly, we now see, although it was probably not seen in 1901, that "industrial disputes" can be manifested by unions serving logs of claim on employers who reject them[68].
[65](1959) 107 CLR 208 at 267.
[66]Victoria v The Commonwealth (1971) 122 CLR 353 at 396; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 197.
[67]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
[68]Burwood Cinema Ltd v Australian Theatrical and Amusement Employees' Association (1925) 35 CLR 528.
Furthermore, the indeterminate nature of the words "with respect to" in ss 51 and 52 may result in subjects now falling within the scope of the Commonwealth power although most people in 1901 would have denied that the Commonwealth had power in respect of such subjects. For example, by reason of the present connection of the legal profession with almost every aspect of trade and commerce, taxation, trading and financial corporations, banking, insurance, copyrights, patents, bankruptcy, insolvency and matrimonial causes, the Parliament of the Commonwealth may now have regulatory powers over the profession that would have been regarded as unthinkable in 1901.
In the present case, however, no current conceptions of the concepts of the Constitution and no propositions, inferences or implications that can be drawn from the Constitution support the cross-vesting legislation. Not only does the Constitution contain no express powers supporting the legislation, it contains negative implications prohibiting such legislation.
When the Constitution is read as a whole and in the light of its judicial history, there is in my opinion no principled basis upon which the present legislation can be upheld. Our duty is to give effect to the principles of the Constitution even when it is inconvenient to do so. In Professor Dworkin's words[69]:
"Lawyers and judges faced with a contemporary constitutional issue must try to construct a coherent, principled, and persuasive interpretation of the text of particular clauses, the structure of the Constitution as a whole, and our history under the Constitution – an interpretation that both unifies these distinct sources, so far as this is possible, and directs future adjudication. They must seek, that is, constitutional integrity." (emphasis in original)
[69]Dworkin, "The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve", (1997) 65 Fordham Law Review 1249 at 1249-1250.
The cross-vesting legislation is invalid
My reasons for reaching the conclusion that the Corporations Act 1989 and the Corporations (New South Wales) Act 1990 are invalid in so far as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power can be stated fairly shortly. They are set out with more detail in my judgment in Gould v Brown[70]. The reasons that I gave in Gould also lead to the conclusion that the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act 1987 of each of the States are also invalid in so far as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power.
[70](1998) 193 CLR 346 at 411-432.
Section 71, which is in Ch III of the Constitution, gives the Parliament of the Commonwealth the power to create federal courts to exercise the judicial power of the Commonwealth[71]. But as Dixon CJ, McTiernan and Kitto JJ pointed out in Cockle v Isaksen[72], "the jurisdiction which a federal court so created may exercise cannot come from s 71 alone. It must be conferred and defined by the exercise of further legislative power." Sections 75, 76 and 77 of Ch III of the Constitution give the Parliament that legislative power by empowering it to confer jurisdiction on federal courts in respect of the "matters" specified in ss 75 and 76. State jurisdiction or State judicial power is not one of those "matters". If a federal court, or for that matter a State court, is invested with jurisdiction to determine a matter under ss 75 and 76, it is exercising federal jurisdiction even when State law must be applied in the proceedings. If State law is determinative in a legal proceeding but there is no "matter" within the meaning of ss 75 and 76, the court determining the rights and liabilities of the parties is exercising State judicial power and its authority to decide those rights and liabilities is an exercise of State jurisdiction.
[71]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 289; Cockle v Isaksen (1957) 99 CLR 155 at 162-163.
[72](1957) 99 CLR 155 at 162-163.
Leaving aside the appellate jurisdiction of this Court conferred by s 73 of the Constitution, the exercise of the judicial power of the Commonwealth is confined to the matters specified in ss 75 and 76 of the Constitution. For nearly 80 years, the accepted doctrine of this Court has been that the "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."[73] It follows, and it is also established doctrine, that the power conferred by s 51(xxxix) to make laws with respect to "matters incidental to the execution of any power vested by this Constitution ... in the Federal Judicature" does not authorise the vesting of jurisdiction in federal courts[74]. Consequently, the Parliament of the Commonwealth can only invest federal courts with jurisdiction to decide the "matters" specified in ss 75 and 76 of Ch III of the Constitution.
[73]Inre Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
[74]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 477 per Barwick CJ, 494 per Gibbs J, 534-535 per Aickin J.
I did not understand any of the above propositions to be challenged in Gould v Brown[75] or in the present proceedings. That being so, it is clear that the Parliament of the Commonwealth cannot give a federal court jurisdiction to exercise State judicial power. Again, I did not understand this proposition to be challenged in the present proceedings.
[75](1998) 193 CLR 346.
How then can a State Parliament invest a federal court with a jurisdiction which the Parliament of the Commonwealth, which has created the court, cannot invest in that court? Co-operative federalism is the chief answer given by the parties and the interveners supporting the validity of the legislation. But co‑operative federalism is not a constitutional term. It is a political slogan, not a criterion of constitutional validity or power. It records a result reached as the result of a State and the Commonwealth legislating within the powers conferred on them by the Constitution. Behind its invocation in the present cases lies a good deal of loose thinking.

Again, however, we do not think it necessary to decide these questions. In so far as Mr Gould seeks certiorari, his applications are out of time[187] and we consider that no reason is shown to extend the time in his case. He has litigated the issues that he seeks to raise by his applications once before, and he lost. If, because of that procedural history, he is estopped, no question of exercising a discretion to extend time arises. If he is not estopped, why should he now be given a procedural indulgence to permit him to reagitate exactly the same issues as he raised in his earlier proceeding and to do so by instituting a different proceeding? His applications for certiorari should be dismissed.
[187]Order 55 r 17(1).
In so far as Mr Gould seeks prohibition to prevent further steps being taken under the winding up, there is no point in granting relief on his application if that relief is granted to Mr Amann. And if that relief should not be allowed to Mr Amann, Mr Gould can be in no better position.
Mr Amann's applications for certiorari to quash are also out of time. But because he was not a party to the earlier litigation, he is not affected by the same considerations that touch Mr Gould's application for extension of time. If the time for making Mr Amann's applications for certiorari is not extended, the orders which it is sought to impugn will stand. But if prohibition goes to prohibit further steps under one of those orders - the order for winding up - a curious result would ensue: an order that the company be wound up by the court would stand, but no step could be taken in the Federal Court to give further effect to it. In our view, prohibition should issue to prohibit further steps in the Federal Court under the order for winding up. It was an order made without jurisdiction and further effect should not now be given to it by that Court. Nevertheless, the order for winding up should not be quashed.
It is more than six years since the winding up order was made. During that time, Mr Brown has acted as liquidator and has incurred expenses in the winding up, including, presumably, costs and expenses associated with this litigation. Of more significance, however, is the consideration that third parties may well have acquired rights that would be affected if the winding up order were now to be quashed. It not having been shown that third parties will not be adversely affected if the winding up order were to be quashed, the discretion to extend the time for applying for certiorari to quash the winding up order should be refused.
Because nothing remains to be done under the order for examination, there is no purpose in granting prohibition in respect of that order and we would not do so whether on the application of Mr Amann or Mr Gould[188]. Other considerations arise in connection with the application for certiorari and the ancillary orders that we have described earlier. We deal first with the application for ancillary orders: to deliver up for destruction tapes, transcripts and any other note or record of the examination.
[188]R v Hibble; Ex parte Broken Hill Proprietary Co Ltd (1920) 28 CLR 456.
Whether any use may properly be made of information obtained, or answers given, in the course of the examinations that were conducted pursuant to orders made without jurisdiction may depend upon what use is intended and the circumstances of that use. It is neither possible nor desirable to attempt to give some general answer to the question. And yet that is the premise from which the application for delivery up for destruction proceeds: that there could in no circumstance be any legitimate use of the material obtained. We would refuse the application for these orders. We would, however, grant certiorari to quash the order for examination. Because that order can be made on the application of Mr Amann, we need not consider Mr Gould's position in any detail. It is enough to say that, the issues having been litigated by Mr Gould previously, we would as a matter of discretion, if not preclusion, dismiss his application.
Accordingly, on the application of Mr Amann there should be an order extending the time for application for certiorari to quash the order for examination and an order absolute in the first instance for certiorari to quash it. The respondents should pay Mr Amann's costs. Mr Gould's applications should be dismissed with costs.
Spinks & Ors v Prentice
This matter, too, concerns orders for examination made under a Corporations Law, in this case, the Corporations Law of the Capital Territory. On 26 June 1998, the Federal Court ordered pursuant to s 597(9) of the Corporations Law of the Capital Territory that some of those who are applicants in this Court produce documents. On 29 June 1998, summonses for examination were issued by the Federal Court to the other applicants in this Court requiring them to attend before the Federal Court for examination on matters relating to the promotion, formation, management, administration or winding up of White ACT. That company (an ACT company) had been ordered by the Federal Court to be wound up. Those summonses recorded that they were issued pursuant to s 596B of the Corporations Law of the Capital Territory but the judgments below suggest that it may be that reliance was also had on s 596A.
On the return of the summonses for examination, the applicants sought an adjournment of proceedings so that notice might be given to Attorneys‑General under s 78B of the Judiciary Act and that thereafter they might argue (as part of an application to review the decision to issue the summonses) that the Court had no jurisdiction to issue the summonses. The primary judge (Branson J) refused to adjourn the proceedings and refused to extend the time within which application might be made to review the decision to issue the summonses. From these orders the applicants sought leave to appeal to the Full Court of the Federal Court. That Court (Beaumont, Burchett and Lehane JJ) granted leave to appeal but dismissed the appeal. It held that s 51(1) of the Commonwealth Corporations Act validly conferred jurisdiction on the Federal Court with respect to civil matters arising under the Corporations Law of the Capital Territory and that the Federal Court has power to make orders pursuant to ss 596B and 597(9) where there has been a winding up.
The applicants seek special leave to appeal from the orders of the Full Court of the Federal Court.
Section 51(1) of the Commonwealth Corporations Act is set out earlier in these reasons. By that sub‑section jurisdiction is conferred on the Federal Court "with respect to civil matters arising under the Corporations Law of the Capital Territory". The Parliament's power to make the Corporations Law of the Capital Territory may be founded in part in s 51(xx) and perhaps other powers as well, but on any view it may be supported as a law for the government of a Territory made under s 122. For present purposes, however, it is convenient to assume that s 122 is the sole source of power to make the Corporations Law of the Capital Territory. On that assumption, is s 51(1) a valid conferral of jurisdiction on the Federal Court? In particular, is it a law defining the jurisdiction of a federal court other than the High Court[189] with respect to a matter arising under a law made by the Parliament[190]? But for the course of decisions in this Court touching the relationship between Ch III and s 122 it could not be suggested that the conferring of jurisdiction on the Federal Court in this case was not valid. But for what is said in some of those decisions, there seems no basis for reading the words "any laws made by the Parliament", when used in s 76(ii), as excluding laws made by the Parliament that find their constitutional support wholly or partly in s 122.
[189]Constitution, s 77(i).
[190]Constitution, s 76(ii).
It has rightly been said of the relationship between s 122 and Ch III that[191]:
"The baroque complexities and many uncertainties associated with courts and jurisdiction in the Territories have come about partly as a result of conflicting theories and partly by a desire of the judges not to disturb earlier decisions."
Many (if not most) of those difficulties can be traced to R v Bernasconi[192] in which it was held that the exercise of Commonwealth legislative power under s 122 was not restricted by s 80 and that the trial of a person in a Territory on indictment for an offence against a law of the Commonwealth need not be by jury. Of particular difficulty is the broad conclusion of Griffith CJ[193] that "Chapter III is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories". As the majority said in Boilermakers[194]:
"It would have been simple enough to follow the words of s 122 and of ss 71, 73 and 76(ii) and to hold that the courts and laws of a Territory were federal courts and laws made by the Parliament. As s 80 has been interpreted there is no difficulty in avoiding trial by jury where it does apply and otherwise it would only be necessary to confer upon judges of courts of Territories the tenure required by s 72. But an entirely different interpretation has been adopted, one which brings its own difficulties …"
Not least of the difficulties presented by Bernasconi and the later decision in Porter v The King; Ex parte Yee[195] is to reconcile what was held there with what was held in In re Judiciary and Navigation Acts. The majority in Boilermakers saw the reconciliation as depending upon the view adopted by the majority in Porter "that the exclusive or exhaustive character of the provisions of that chapter [Ch III] describing the judicature and its functions has reference only to the federal system of which the Territories do not form a part"[196].
[191]Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978) at 172.
[192](1915) 19 CLR 629.
[193](1915) 19 CLR 629 at 635.
[194](1956) 94 CLR 254 at 290 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.
[195](1926) 37 CLR 432.
[196]Boilermakers (1956) 94 CLR 254 at 290 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.
As Cowen and Zines say[197]:
"The general approach in R v Bernasconi, with its emphasis on the separation of the Territories from the Commonwealth and of sec 122 from the rest of the Constitution, is fundamentally opposed to the approach of Lamshed v Lake[198], which attacked this theory and underlined the fact that there is but one Commonwealth and that sec 122 was meaningless unless read with other provisions of the Constitution."
But Bernasconi has stood for many years. No application was made in this matter to reopen it and the correctness of the actual decision in the case or its continued application do not now arise. Rather argument focused on other decisions of the Court, notably Porter[199], Federal Capital Commission v Laristan Building and Investment Co Pty Ltd[200], Spratt v Hermes[201] and Capital TV and Appliances Pty Ltd v Falconer[202]. In addition, although not available at the time of argument, reference must now be made to the recent decision of the Court in Northern Territory of Australia v GPAO[203].
[197]Federal Jurisdiction in Australia, 2nd ed (1978) at 172.
[198](1958) 99 CLR 132.
[199](1926) 37 CLR 432.
[200](1929) 42 CLR 582.
[201](1965) 114 CLR 226.
[202](1971) 125 CLR 591.
[203](1999) 73 ALJR 470; 161 ALR 318.
Spratt v Hermes and Capital TV both concerned courts created by the Parliament that had jurisdiction only in a Territory. Porter concerned the jurisdiction of this Court on appeal from the Supreme Court of the Northern Territory, Laristan concerned the original jurisdiction of this Court in relation to matters arising in the seat of government. Only GPAO addresses directly the question presented by a law purporting to confer jurisdiction on a court created by the Parliament (in that case the Family Court) that is a court having jurisdiction throughout Australia. Thus, only GPAO deals directly with the issue that now arises in this case and it determines its outcome. Section 51(1) validly confers jurisdiction on the Federal Court with respect to civil matters arising under the Corporations Law of the Capital Territory.
The applicants contended that the Corporations Law, including Pt 5.9, purported to confer non‑judicial as well as judicial power on the Federal Court and was, for that reason, invalid so far as the law purported to confer non‑judicial power. Particular reference was made in this respect to s 447A[204]. It was, however, not contended (whether in this Court or in the Full Federal Court) that the power to order the examination of witnesses and to produce documents for the purposes of a winding up and to supervise the conduct of the examination was otherwise than the exercise of a function incidental to the exercise of judicial power. And it is this power to order examinations and produce documents that is now in issue. It is therefore not appropriate to express any view on the validity of conferring jurisdiction on the Federal Court to make orders under s 447A or Pt 5.9 of the Corporations Law except the provisions that are immediately in question. To do so would require consideration of the proper construction of the provisions in question and that can be done satisfactorily only in light of particular facts and circumstances. It was not suggested that, if (as the applicants asserted) some provisions of Pt 5.9 may be open to attack, the provisions that founded the orders now in question could not be read down or severed.
[204]Section 447A provides:
"(1)The Court may make such order as it thinks appropriate about how this Part is to operate in relation to a particular company.
(2)For example, if the Court is satisfied that the administration of a company should end:
(a) because the company is solvent; or
(b)because provisions of this Part are being abused; or
(c)for some other reason;
the Court may order under subsection (1) that the administration is to end.
(3)An order may be made subject to conditions.
(4) An order may be made on the application of:
(a)the company; or
(b)a creditor of the company; or
(c)in the case of a company under administration - the administrator of the company; or
(d)in the case of a company that has executed a deed of company arrangement - the deed's administrator; or
(e)the Commission; or
(f)any other interested person."
The Full Court was right to dismiss the appeal to that Court. Special leave to appeal should be granted and the appeal treated as instituted and heard instanter but the appeal should be dismissed with costs.

KIRBY J. This Court's decision in Gould v Brown[205] was published in February 1998. A challenge to the constitutional validity of cross-vesting legislation was thereby dismissed[206]. The unanimous decision of the judges of the Federal Court of Australia, upholding the validity of the legislation, was not disturbed[207]. Yet within a matter of months fresh challenges to the constitutionality of the legislation were commenced. Within less than a year this Court was hearing again arguments, most of which had been advanced unsuccessfully in Gould[208].
[205](1998) 193 CLR 346.
[206]The legislation concerned in Gould was the Corporations Act 1989 (Cth), s 56 and the Corporations (New South Wales) Act 1990, s 42 and its Victorian equivalent. The provisions of the general cross-vesting legislation are not relevantly different. The terms of the legislation are set out in the reasons of Gummow and Hayne JJ.
[207]BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451 per Black CJ, Lockhart and Lindgren JJ.
[208]Argument in these proceedings commenced on 1 December 1998.
Speedy change of constitutional decisions
What has changed? The Australian Constitution stands unaltered, resistant to formal change. No relevant change has been proposed to it. The State constitutions and the laws affording self-government to the mainland Territories[209] are unchanged. The cross-vesting legislation, both in its general manifestation[210] and in the special provisions to support the Corporations Law[211], remains the same. The principal arguments on each side are substantially unaltered. Few, if any, brilliant flashes of insight were offered to shine new light into dark corners of the Constitution previously overlooked. Indeed, one of the litigants in the present proceedings is Mr Gould himself. He seeks to have this Court revisit the disposition of the earlier proceedings affecting him. The world could see the order of this Court disposing of his previous challenge. But Mr Gould joined with other litigants to claim a second opportunity of persuasion.
[209]Northern Territory (Self-Government) Act 1978 (Cth): See Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513; Northern Territory v GPAO (1999) 73 ALJR 470; 161 ALR 318. Australian Capital Territory (Self-Government) Act 1988 (Cth): See Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248.
[210]Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 9; Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 4.
[211]Corporations Act 1989 (Cth), s 56; Corporations (New South Wales) Act 1990, s 42.
Only the membership of the Court has changed in the intervening year. Brennan CJ and Toohey J, who favoured rejection of the earlier challenge, retired and were replaced. A new Full Court has been assembled. It is an old and wise maxim of the law, which courts usually strive to observe, "to keep the scale of justice steady, and not liable to waver with every new judge's opinion"[212]. On the face of things there could hardly be a plainer violation of that maxim. Yet each Justice is obliged to express his or her opinion on the meaning of the Constitution, guided by the past authority of the Court. Each Justice reads the unchanging text with the eyes of his or her generation and experience, sometimes perceiving new requirements or opportunities which predecessors did not see[213].
[212]Craies on Statute Law, 7th ed (1971), cited in Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 29.
[213]Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 267-268; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 199; McGinty v Western Australia (1996) 186 CLR 140 at 230.
Gould had the misfortune to be decided by a Court of six Justices[214]. The order disposing of Mr Gould's first challenge was the constitutional consequence of the failure of the challenger in that case to muster a majority in this Court. Only such a majority would have afforded this Court the authority to set aside the orders of the Federal Court from which the appeal had been brought and to substitute different orders of its own. So much flows implicitly from the Constitution[215]. The provisions of the Judiciary Act 1903 (Cth)[216] do no more than to recognise this fact. They provide machinery for giving effect to its consequence.
[214]It was argued before a Court in which Dawson J did not participate because of his pending retirement.
[215]Constitution, s 73; cf Williams v The King [No 2] (1934) 50 CLR 551 at 567.
[216]s 23(2)(a). See Tasmania v Victoria (1935) 52 CLR 157 at 183-184 per Dixon J; cf Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 387 per Murphy J.
In Gould there was, as there always must be in our system of law, a disposition of contested proceedings and a judicial order signifying that disposition. Such considerations render doubtful the proposition that, unlike every other case, proceedings decided by this Court on the basis of an order resulting from an even division in the opinions of the Justices, create no binding principle of law. The order itself does not provide the precedent. But every such judicial order must be supported by legal reasoning. It is that reasoning which sustains the order and the legal principle derived from the decision. Only this explains why the principle of the case binds other Australian courts. The logic of this conclusion, which the Commonwealth urged, seems compelling[217].
[217]Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 355 per Gibbs J, 369-370 per Mason J.

It is fruitless to pursue this debate. All other members of the Court are minded to address the substantive constitutional issues. Gould is swept aside as an untroubling obstacle on the path to the attainment of the Court's present conclusions. I will adopt the same approach. But the outcome demonstrates, with a starkness that I cannot remember in any previous decision of this Court, how an "accident of the Court's constitution"[218] can profoundly change, in a very short interval, the outcome of an important constitutional controversy. That controversy is significant to the present parties. But it is also one of great importance for the nine governments and Parliaments of the Australian federation. Their collective voice was heard in this Court, in unique harmony, to urge that the constitutional status quo, achieved after the Court's earlier decision, be maintained.
[218]McKinney v The Queen (1991) 171 CLR 468 at 482.
The foregoing considerations afford a reason for very close scrutiny of the arguments which lead a new majority to orders that will have the consequence of invalidating efficient legislation of great benefit to litigants throughout Australia and to the administration of justice. The rare (if not unique) governmental and legislative unity on the issue over an extended time is an additional reason for hesitating before adopting a view of the Constitution which will stamp on it a construction that will destroy the legislation.
Sometimes the "terms and structure of the Constitution"[219] require an outcome which is unwelcome to governments and Parliaments. Such outcomes may be criticised at the time as based upon an unduly rigid view of the Constitution, only to be vindicated later[220]. Sometimes the suggested rigidity continues to occasion criticism, including from within the Court itself[221]. But because of the oft-demonstrated difficulties of securing formal amendment to the Constitution, and the consequent necessity of adapting its text to rapidly changing national and international circumstances, it is important to approach its meaning with a full appreciation of its function as an enduring instrument of democratic and effective government. The Constitution envisages that the constituent parts of the Commonwealth will operate in general harmony with each other[222]. That is the starting point for a correct elucidation of the meaning of particular provisions.
[219]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567.
[220]Bank of NSW v The Commonwealth (1948) 76 CLR 1 and Australian Communist Party v The Commonwealth (1951) 83 CLR 1 may be cases in point.
[221]See eg R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254. The principle there stated has been criticised: See R v Joske; Ex parte Australian Building Construction Employees & Builders' Labourers' Federation (1974) 130 CLR 87 at 90, 102.
[222]See eg R v Humby; Ex parte Rooney (1973) 129 CLR 231, where Gibbs J stated at 240: "the Constitution was certainly not intended to inhibit co-operation between the Commonwealth and the States".
In my respectful view, the point which distinguishes the competing opinions expressed in Gould (now reflected in these proceedings) concerns a conception of the Constitution and of its capacity to adapt to changing times, with needs vastly different from those which existed when the text was written. I differ from the view that the function of the Court in constitutional interpretation is to "give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention."[223] Once the makers' draft was settled it was submitted to the vote of the electors of Australia. Approved and enacted, it took upon itself its own existence and character as a constitutional charter. As Holmes J remarked in Missouri v Holland[224]:
"[The Constitution] called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters."
The makers did not intend, nor did they have the power to require, that their wishes and expectations should control us who now live under its protection. The Constitution is read by today's Australians to meet, so far as its text allows, their contemporary governmental needs[225].
[223]McHugh J's reasons at [35].
[224]252 US 416 at 433 (1920), cited in Spratt v Hermes (1965) 114 CLR 226 at 272 per Windeyer J.
[225]See Spratt v Hermes (1965) 114 CLR 226 at 272 per Windeyer J.
The Constitution, and in particular Ch III, does not impose Laocoönian constraints on this Court. The proper approach to Ch III, applicable to these proceedings, is that recently stated by Gleeson CJ and McHugh J in Abebe v The Commonwealth[226]. Rigid and impractical outcomes are justified only by "the clearest constitutional language" which "compel them". As their Honours concluded in that case, so do I here. "Nothing in the language of Ch III forces such limited and rigid choices on the parliament."[227] The cross-vesting legislation, in both of its manifestations, is constitutionally valid.
[226](1999) 73 ALJR 584 at 595, par [44]; 162 ALR 1 at 15.
[227](1999) 73 ALJR 584 at 595, par [44]; 162 ALR 1 at 15.
The issues, approach and constitutional cooperation
The facts, the issues and the legislation relevant to the proceedings before the Court are set out in the reasons of Gummow and Hayne JJ. I do not repeat them. In disposing of the substance of the three challenges, it would be possible, I suppose, to content myself with a reference to my reasoning in Gould[228]; for my opinion has not changed. However, in deference to the submissions of the parties, the importance of the matters and the desirability of ensuring that a contrary opinion is recorded in the report of these cases, when Gould is consigned to the annals of legal history, I will repeat some of the main considerations which explain my dissent.
[228](1998) 193 CLR 346 at 465-501.
There is no express prohibition of cross-vesting of federal, State and Territory jurisdiction in the Australian Constitution. On the contrary, in so far as the Constitution makes any reference to the subject it does so indirectly and only partially. It provides, in terms, for the making of laws by the federal Parliament "investing any court of a State with federal jurisdiction."[229] The Constitution thereby rejects a notion of a total divorce between the exercise of the judicial power respectively of the Commonwealth and of the States in separate courts having no connection whatever with the judicial power of the other.
[229]Constitution, s 77(iii).
The task of this Court is therefore that of drawing inferences from, and discerning negative implications[230] in, the general language of the Constitution. In particular, the Court must address the provisions in Ch III, read within the document taken as a whole[231]. Also relevant are the purposes which may be attributed to the provisions for the federal Judicature in a Commonwealth in which it is envisaged that there will be States having their own courts[232] and particularly Supreme Courts[233] as well as Territories, the government of which will necessarily involve the existence of courts and the exercise of judicial power[234]. All such courts are to operate within a nation of continental size, with a relatively small and scattered population which is to be governed, so far as the Constitution permits, with its component parts cooperating in a rational, harmonious and generally efficient way.
[230]The words "negative implication" with respect to Ch III appear in this Court's decision in R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 292 approved by the Privy Council in Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 at 545.
[231]Drawing conclusions of a "negative or exclusive sense" where such a sense must be given to the words "or they have no operation at all": See Marbury v Madison 5 US 87 at 109 (1803) per Marshall CJ.
[232]s 77(iii).
[233]s 73(ii).
[234]s 122.
On the face of things, in such a context, there would not seem to be any reason of constitutional principle or policy to forbid the kind of legislative cooperative scheme between all of the governments and legislatures of the Commonwealth instanced by the two legislative systems of cross-vesting. A negative implication will only arise where it is manifest from the language used in the provisions within Ch III or is logically or practically necessary for the preservation of the integrity and structure of the Judicature envisaged in that Chapter[235]. The governments involved have maintained their support for the legislation under consideration despite many changes of political complexion. Over more than a decade, none of the legislatures has evidenced a desire to withdraw from either of the cross-vesting systems. It is not as if the polities constituting the Australian Commonwealth are, in relation to each other, foreign states. All of them are parts of an integrated federal nation which the Constitution itself summoned forth.
[235]See Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 135; McGinty v Western Australia (1996) 186 CLR 140 at 168-171, 184-185, 231, 284-286.
In Australia, the courts of the States and Territories are not subordinate in independence, integrity or professional skills to the federal courts provided for in Ch III. There is movement between, and overlap within, their personnel. The
Constitution[236], the legal tradition of the nation and decisions of this Court[237] help to ensure high common standards which dispel any requirement to defend the federal judiciary of this country from State or Territory incursions which might endanger the independence and quality of federal courts. In the Australian federation, there is nothing obviously offensive in the adoption of sensible cooperative arrangements between the courts and the executive governments of the Commonwealth, the States and the Territories to achieve objectives such as those stated in the preambles adopted in common form in the cross-vesting laws. Those preambles include the following statements which purport to explain the enactment of the legislation[238]:
"… [I]nconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and … it is desirable:
(a)    to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court;
(b)    to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, would be entirely or substantially within the jurisdiction (other than any accrued jurisdiction) of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases; and
(c)    if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court."
[236]Notably s 77(iii).
[237]See esp Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
[238]See Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) is in substantially the same form. The initial adoption of the cross-vesting legislation was prompted by uncertainties as to the jurisdictional limits of federal, State and Territory courts, particularly in the areas of trade practices and family law. See eg Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383; Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; Re F; Ex parte F (1986) 161 CLR 376. These uncertainties, coupled with a lack of power in those courts to ensure that all issues arising in the proceedings could be heard and determined by the one court, including by a State court if it were the appropriate court, led to the adoption of the general cross-vesting scheme. See the Minister's Second Reading Speech, Australia, House of Representatives, Parliamentary Debates (Hansard), 22 October 1986 at 2555-2556.
A legislature cannot, by preambular assertions, recite itself into constitutional power where none exists[239]. Yet the agreement of all the democratically elected legislatures of Australia that a system of cross-vesting is necessary to help avoid inconvenience and expense, and to remove injustices and uncertainties occasioned by jurisdictional conflict, provides at least persuasive evidence that the legislation serves a practical national purpose. Everyday experience in the courts would probably establish that fact in any case[240]. Some lawyers enjoy the intricate intellectual problems which can arise where there is a conflict or disparity of jurisdiction. Occasionally, a party may take advantage of them. But few ordinary citizens see their merits. Most parties discern no beauty or value in conflicts of this kind. If this amounts to an "unthinking resort to" slogans about "arid jurisdictional disputes"[241], I must bear that label. However, I also invite attention to the complex and disputable legal points (about which differences persist) that will be necessary to resolve some of these cases once the cross-vesting laws are struck down. They illustrate what the future now holds for Australian courts and those who use them.
[239]Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 190-193, 205, 221, 244, 263, 278-279.
[240]See eg National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 584-585. See also Young, "Current Issues - Cross-vesting", (1999) 73 Australian Law Journal 310.
[241]See reasons of Gummow and Hayne JJ at [121].
The need for a system such as the cross-vesting legislation within the Australian Commonwealth can therefore scarcely be doubted. Statistical and other material was provided to this Court about the use made of the legislation challenged in these proceedings. These demonstrate, in part, the use being made of the system[242]. Yet such statistics, significant as they are, seriously understate the utilisation of the legislation. They concentrate on matters transferred to and from the jurisdiction of the Federal Court of Australia. They do not quantify other inter-jurisdictional transfers. They do not measure the matters commenced in a jurisdiction which, but for the cross-vesting legislation, would have been impermissible.
[242]cf Moloney and McMaster, Cross-Vesting of Jurisdiction - A Review of the Operation of the National Scheme, (1992), Appendix 1. The authors conclude that the scheme to the time of their review had operated "effectively and efficiently": see at 147. It had not resulted in any untoward or improper distortion of the administration of justice throughout the nation. Such problems as had occurred were manageable and remediable. An important "subtle" benefit noted by the authors was the assistance afforded by the legislation in breaking down parochial tendencies in the judiciary. See also Federal Court of Australia, Annual Report, 1996-1997 at 42.
What, then, are said to be the "compelling arguments" derived from the "clearest constitutional language" which warrant the conclusion that the Australian Constitution forbids both systems of cross-vesting legislation, and now requires that, despite their great utility, they be terminated? The challengers before this Court relied in these cases (as had earlier been done in Gould) on two basic propositions. Each was said to follow not from the words but from negative implications in Ch III of the Australian Constitution:
1.That it is not open to a State Parliament (or legislature of a self-governing Territory) to confer jurisdiction upon a federal court; and
2.That it is not within the legislative power of the federal Parliament to consent to the conferral of such State (and Territory) jurisdiction on a federal court.
For reasons which I will explain in disposing of the proceedings in Spinks & Ors v Prentice, it is unnecessary to deal with the issue concerning the power of the Territory legislatures to enact legislation conferring "Territory jurisdiction" upon a federal court. I will not, therefore, decide that issue. Instead, I will concentrate, as I did in Gould, on the power of a State Parliament to confer State jurisdiction on such a court and the power of the federal Parliament to consent to the conferral of such State jurisdiction.
Implied exclusion of the conferral of State jurisdiction
Leave aside for a moment the suggested problems presented by Ch III of the Constitution. In other respects it is established that a legislature of one polity within the Commonwealth may vest non-judicial powers in an institution created by the legislature of another polity within the Commonwealth[243]. Where this involves the vesting of State power in a tribunal created by cooperative legislation of both the Commonwealth and a State, it is necessary to have the consent of federal law for State powers to be reposed in such tribunal. But, in a decision the correctness of which was not challenged in these proceedings, this Court held that the vesting of State arbitral powers in a quasi-judicial federal tribunal was constitutionally valid[244]. Indeed it was said to be an example of the kind of cooperation on the part of the Commonwealth and the States which would permit them together to achieve objects "that neither alone could achieve"[245].
[243]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 579-580; cf Gould v Brown (1998) 193 CLR 346 at 381-382, par [20] per Brennan CJ and Toohey J.
[244]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535. See also Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 127-131.
[245]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (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. See also Gould v Brown (1998) 193 CLR 346 at 382, par [20].
There is therefore nothing inherent in the Australian Constitution which forbids the cooperative sharing and combination of governmental powers within the federation. On the contrary, the constitutional text expressly contemplates various forms of inter-governmental cooperation[246] and cooperation between the Parliaments of the Commonwealth and of the States[247]. This, then, is the constitutional setting in which the suggested negative implications of Ch III must be evaluated. If some forms of inter-governmental and inter-legislative cooperation are permissible, and have been achieved, the question is immediately posed as to why, within the Australian judiciary, similar inter-jurisdictional cooperation must be regarded as totally forbidden. This is just another way of saying, once again, that in the context of the Australian Constitution, very clear language in Ch III would be required to produce such an unyielding and rigid outcome.
[246]See eg the Constitution, s 51(xxxiii).
[247]See eg the Constitution, s 51(xxxvii).
The first step of the challengers' argument latches onto the express provision in s 77(iii) of the Constitution. By that paragraph the federal Parliament may make laws "investing any court of a State with federal jurisdiction." By an appeal to the expressio unius principle of construction, it is claimed that the Australian Constitution envisages, in the case of the judiciary, a one-way street of inter-jurisdictional conferral of judicial power. It would only flow from the Commonwealth to a State. It could not flow in the opposite direction. This argument is completely unconvincing. This probably explains why the challengers in these proceedings advanced it in muted tones.

The expressio unius rule must always be used with caution[248]. It is especially perilous in construing a constitution written in sparse language, such as ours. There are many reasons why s 77(iii) provides as it does. Most of them are historical[249]. The State (formerly colonial) courts were well established at the time of federation. There were no federal courts at that time. Indeed, there were few federal courts in Australia until the 1970s. Until the 1980s their jurisdiction was very limited. The provision of a power compulsorily to invest the established State courts with federal jurisdiction was therefore an urgent necessity. It was so if the new Commonwealth, with its limited resources, were to avoid the burdensome obligation of creating immediately a parallel federal judiciary such as had been established in the United States of America. In that country, the uneven quality and varying methods of appointment of the judiciary of the States had resulted in the growth of a substantial and separate federal judiciary. By way of contrast, the Australian colonial (and later State) judiciaries exhibited uniformly high standards of integrity and ability rendering the "autochthonous expedient"[250] particularly suitable to Australia's initial federal judicial arrangements.
[248]Russell v Russell (1976) 134 CLR 495 at 539; Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94; Wentworth v NSW Bar Association (1992) 176 CLR 239 at 250; PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 311; Colquhoun v Brooks (1888) 21 QBD 52 at 65.
[249]Gould v Brown (1998) 193 CLR 346 at 384-385, pars [25-26], 492-493, par [306]; cf Mason and Crawford, "The Cross-vesting Scheme", (1988) 62 Australian Law Journal 328 at 334.
[250]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268.
Far from giving rise to an implication that a reverse conferral of State jurisdiction on federal courts is impermissible, the history of almost a century during which federal jurisdiction has frequently been invested by federal laws in the courts of the States established a constitutional environment in which reciprocal laws of the States were both a natural and permissible development. The lack of express provision in Ch III for that to happen can also be explained by reference to the text. Ch III is concerned with the judicial power of the Commonwealth. It is addressed, substantially, to the establishment of this Court and provision for the creation of other federal courts, exercising the jurisdiction there specified. Although the continued existence of the courts of the States, and specifically the Supreme Courts, is clearly contemplated by Ch III, provision for them, and for the exercise of the judicial power of the States, is properly reserved to the constitutions of each State. The continued existence of the constitutions of the States is provided for in s 106 of the Australian Constitution. As to the powers of the Parliaments of the States to enact laws with respect to the conferral of State jurisdiction, that is provided by s 107 of the Constitution. The failure to deal with that power in Ch III is therefore no indication of a constitutional prohibition. It is simply a reflection of the respective functions of the federal and State constitutions in providing separately for the making of laws (relevantly) for conferring on the courts of one part of the Commonwealth a portion of the judicial power of another part of the Commonwealth.
Then it is said that Ch III of the Constitution repels any such attempted conferral of State jurisdiction because it provides exhaustively for the jurisdiction which may lawfully be conferred upon this Court and upon other federal courts created by the Parliament. In the context of the constitutional developments which have occurred since the text of the Australian Constitution was adopted (including the termination of appeals to the Privy Council which now renders this Court the ultimate constitutional and appellate court for Australia)[251], different considerations would arise in relation to any attempt by State law to confer jurisdiction on this Court. The High Court of Australia traces its origin to the Constitution itself. It has distinct constitutional functions which extend beyond those that exist in the case of other federal courts. In the case of this Court, there may indeed be negative implications in Ch III which would prevent a purported conferral upon it of State jurisdiction[252]. It is unnecessary to explore this question. No such conferral of jurisdiction is attempted by any of the cross‑vesting laws. As it is unlikely that the federal Parliament would ever purport to consent to such conferral of jurisdiction, it is pointless to explore the theoretical possibilities further.
[251]Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council (Appeals from the High Court) Act 1975 (Cth); Australia Acts 1986; cf Kirmani v Captain Cook Cruises Pty Ltd [No 2] (1985) 159 CLR 461 at 464.
[252]Gould v Brown (1998) 193 CLR 346 at 383, par [23], 498, par [321]. The Parliament cannot consent to the conferral of jurisdiction on this Court outside that expressly permitted by Ch III of the Constitution because this Court is not created by a law of the Parliament but by the Constitution itself: cf Spratt v Hermes (1965) 114 CLR 226 at 277.
However, in the case of the courts created by the federal Parliament the position is different. It is not self-evident why it should not be open to the legislatures of the States to make provision with respect to the disposition of their own judicial powers by conferring part of the jurisdiction to exercise those powers upon federal courts, operating as they now do throughout Australia. In colonial times, part of the judicial power of particular colonies was commonly deployed by Imperial legislation or orders in council to inter-colonial judicial bodies, generally of an appellate character[253]. Originally, that could only be done by, or under, laws made by the Imperial Parliament[254]. With the advent of federation, the State Parliaments acquired plenary legislative powers subject only to those powers conferred by the Australian Constitution upon the federal Parliament or withdrawn from the Parliament of a State[255] or put beyond the power of a State Parliament by reason of continuing Imperial legislation such as the Colonial Laws Validity Act 1865 (Imp). By the Australia Acts 1986[256], any remaining Imperial legislative restrictions were removed. Accordingly, subject only to the Australian Constitution, before any of the cross-vesting legislation was enacted, the State Parliaments of Australia enjoyed as full a power to legislate, including with extraterritorial operation, as had been enjoyed at the time of federation by the United Kingdom Parliament itself. In such a legislative setting, the suggestion that a Parliament of an Australian State could not enact a law to provide for the exercise of a part of the judicial power under its control by an established State or federal court within Australia is quite unconvincing. Whatever may have been the position prior to the Australia Acts, all remaining constitutional inhibitions and obstacles (except any provided by the Australian Constitution) were by then removed.
[253]Gould v Brown (1998) 193 CLR 346 at 479-480.
[254]Such as the British Settlements Act 1887 (Imp), ss 2 and 5. See discussion in The Commonwealth v Queensland (1975) 134 CLR 298 at 311-312; Gould v Brown (1998) 193 CLR 346 at 376-377, par [12].
[255]Constitution, s 107. See Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9-10; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 65, 71-72; Gould v Brown (1998) 193 CLR 346 at 373, par [6].
[256]See eg Australia Act 1986 (Cth), ss 2 and 3.
I accept that observations may be found in the opinions written in this Court which, on their face, appear to stand against the foregoing propositions[257]. I acknowledge that statements exist which suggest that Ch III is an exhaustive and exclusive statement of the judicial power that may be conferred upon a federal court from whatever source. However, such statements were not essential to the decisions in question. For example, the issue addressed in In re Judiciary and Navigation Acts was "[w]hat, then, are the limits of the judicial power of the Commonwealth?"[258] It was in answering that question that this Court expressed the view that nothing in Ch III of the Constitution supported a conclusion that the Parliament could confer power or jurisdiction on the High Court to determine abstract questions of law[259]. None of the cases in which the cited restrictions were uttered was addressed to the present problem. All were written in earlier times when the constitutional setting was quite different. They occurred before the creation of significant federal courts with substantial and growing jurisdiction which presents serious problems of conflict and overlap that now require solution. It is erroneous to invoke them as if they provide answers to a different constitutional problem at the other end of the century[260].
[257]See esp In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264-265; Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529; R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268.
[258](1921) 29 CLR 257 at 264.
[259]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ.
[260]Spratt v Hermes (1965) 114 CLR 226 at 240 per Barwick CJ, 255 per Kitto J.
Moreover, the practice of the federal Parliament[261] and the conduct of this Court[262] contradict any rigid view about the conferral upon federal courts (indeed upon this Court) of jurisdiction and functions standing outside those expressly stated within Ch III of the Constitution. In particular, no specific mention is made in Ch III of the facility of appeals to this Court from the courts of the Territories. Yet statutory provision is made for such appeals. They are regularly heard and determined[263]. It is unthinkable that they should be forbidden as outside the Constitution. Similarly, no mention is made in Ch III of appeals from the courts of foreign countries. Yet such appeals have been brought and this Court has exercised the jurisdiction conferred on it, apparently appellate in character, from the courts of Nauru[264]. There are other illustrations which reinforce the conclusion that rigidity has not been our constitutional practice. We should not make it so now.
[261]Various examples of the conferral of jurisdiction upon courts established by or under Ch III of the Australian Constitution may be instanced. See eg the conferral of jurisdiction as a Colonial Court of Admiralty upon the High Court by the Colonial Courts of Admiralty Act 1890 (Imp) and the jurisdiction to hear appeals from decisions of the courts of Nauru under the Nauru (High Court Appeals) Act 1976 (Cth). See also the exercise by this Court and other federal courts of original and appellate jurisdiction with respect to the Territories: Gould v Brown (1998) 193 CLR 346 at 380, par [17] per Brennan CJ and Toohey J, 493-494, par [308]. Other instances may include the creation of courts martial under the defence power: R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; R v Cox; Ex parte Smith (1945) 71 CLR 1; Re Tracey; Ex parte Ryan (1989) 166 CLR 518; Re Nolan; Ex parte Young (1991) 172 CLR 460 and Re Tyler; Ex parte Foley (1994) 181 CLR 18; the appointment of federal judges to non-judicial functions as personae designatae, approved in Hilton v Wells (1985) 157 CLR 57; Jones v The Commonwealth (1987) 61 ALJR 348; 71 ALR 497 and Grollo v Palmer (1995) 184 CLR 348; and the purported constitution of the High Court as a Court of Disputed Returns: See Commonwealth Electoral Act 1918 (Cth), s 354; cf Walker, "Disputed Returns and Parliamentary Qualifications: Is the High Court's Jurisdiction Constitutional?", (1997) 20 University of New South Wales Law Journal 257.
[262]For example, acceptance of jurisdiction under the Judiciary Act, s 30B (inserted by the Judiciary Act 1927 (Cth), s 4) as a trial court for the Australian Capital Territory. See R v Porter (1933) 55 CLR 182.
[263]Porter v The King; Ex parte Yee (1926) 37 CLR 432; Jolley v Mainka (1933) 49 CLR 242.
[264]Two appeals from Nauruan courts have been heard and determined by this Court. 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. The only suggested explanation by the challengers for this apparent exception was that the negative implications existing in Ch III of the Constitution applied "within the federal system" and thus had no application outside that system, of which Nauru and the Australian Territories were said to be examples.
There is an added reason for rejecting a construction of Ch III so as to forbid the conferral on federal courts of jurisdiction granted by a legislature other than the federal Parliament. It is one which I had not fully appreciated when Gould was decided. In that decision, I treated at face value arguments proposing that the power of the federal Parliament to consent to the exercise by courts created by it of jurisdiction conferred upon them by State legislatures could be sustained (but had not been in that case) under the provisions of s 51(xxxviii) of the Australian Constitution[265]. However, if, as the challengers assert, Ch III forbids the conferral of jurisdiction on federal courts by any legislature other than the federal Parliament, s 51(xxxviii) would seem to have no useful operation in such a case. That paragraph appears in s 51 of the Constitution. That section confers legislative powers "subject to this Constitution". That phrase, therefore, includes the restriction: subject to the requirements of Ch III. If within the four corners of Ch III sufficient implied prohibitions may be found to repel any attempted conferral of jurisdiction on federal courts by a legislature other than the federal Parliament, no amount of inter-governmental or inter-parliamentary concurrence, as envisaged by s 51(xxxviii), would seem capable of overcoming that prohibition[266]. The same would hold true of references of power by the Parliaments of the States under s 51(xxxvii).
[265]That paragraph provides: "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxxviii) 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". See Gould v Brown (1998) 193 CLR 346 at 487-489.
[266]cf Moshinsky, "Gould v Brown - Death Knell of the Cross-vesting Scheme?", (1998) 9 Public Law Review 152 at 155.
If the arguments of the challengers are accepted, the foregoing would appear to consign those seeking to restore the benefits of cross-vesting legislation, enjoyed these past dozen years, to the highly problematic and expensive task of proposing and securing a formal amendment to the Australian Constitution. The inconvenience of such a rigid construction of Ch III is then shown in sharp relief. The amendment would be necessary not to delete offending words nor to overcome an expressly stated prohibition. It would be needed to reverse an implication which this Court (in my view needlessly) reads into the Chapter. It would require the most compelling arguments of constitutional authority, principle and policy to persuade me that the combined Parliaments of the Commonwealth of Australia cannot, after nearly a century of federation, do together (with all the travail that such a course involves) what the Imperial Parliament might readily have done in 1901 on a relatively straight‑forward machinery matter of this kind.
During argument, mention was made of likely future developments consequent upon regional and global arrangements affecting Australia. The time may come when, for reasons acceptable to Australia's governments and Parliaments, jurisdiction might be conferred on Australian courts, federal and State, out of the judicial power of a foreign country. Already, in the case of New Zealand, reciprocal legislation has been enacted for so-called trans-Tasman market proceedings[267]. Such legislation may be seen as an early herald of inter‑jurisdictional and regional cooperation which is likely to expand in the decades ahead to the advantage of all concerned. It provides a further reason why this Court should refrain, at least so far as the federal judiciary of Australia is concerned, from adopting a rigid construction of Ch III which would forbid such developments.
[267]Federal Court of Australia Act 1976 (Cth), Pt IIIA.
Whatever arguments exist in the case of the conferral of jurisdiction upon federal courts by the legislatures of foreign countries (even those as close and similar to our own as New Zealand), in the case of the legislatures of the States
[268]cf Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 774; R v Humby; Ex parte Rooney (1973) 129 CLR 231 at 240. Such cooperation is a "positive objective" of the Constitution: See R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 589 per Deane J.
of Australia entirely different considerations arise. Those who might hesitate at the possibility of the conferral upon a federal court in Australia of jurisdiction conferred by the legislature of a foreign country with the consent of the federal Parliament would not, I think, have any hesitation about the legitimacy and appropriateness of the conferral of jurisdiction by a State legislature acting within its powers. No apparent offence is done to the design and purpose of the Australian Constitution. No affront is done to established civil or economic rights. On the contrary, what is then achieved is precisely the cooperation for the removal of inconvenient impediments to good government which the Australian Constitution fosters rather than forbids[268].
For these reasons I would conclude that nothing in Ch III of the Australian Constitution, and no limits required by the constitutions of the Australian States, forbid the conferral on a federal court by the Parliament of a State of State jurisdiction of the kind envisaged in the cross-vesting legislation. It is unnecessary and undesirable to read such restrictions into the constitutional text. The first basic proposition of the challengers therefore fails.
Power of the federal Parliament to consent
This conclusion leaves the second suggested hurdle. This is the supposed lack of any constitutional basis for the provision of consent by the federal Parliament to the exercise by the courts which it has created of jurisdiction other than that which Ch III contemplates. This argument was put rhetorically in the following way: If the federal Parliament cannot itself confer State jurisdiction upon a federal court, how can it enjoy the legislative power to consent to a State Parliament doing so?
It was generally accepted by all parties that the terms of ss 75, 76 and 77 of the Australian Constitution exclude any direct purported conferral of State jurisdiction on a federal court by a law made by the federal Parliament. Yet the enactment of a law providing the consent of the federal Parliament is clearly necessary. Otherwise, any law of another polity purporting to confer jurisdiction upon a federal court would run into the insurmountable obstacle that the jurisdiction of such a federal court would be taken to be only that conferred upon it by the legislature of the polity creating it, namely the federal Parliament[269]. Because the conferral of a court's jurisdiction contemplates the exercise of compulsive powers and has implications for the expenditure of funds and the deployment of judges, it is inevitable that consent of the federal Parliament to the use of federal courts would be required[270]. But this leaves to be answered the question of where the federal Parliament finds the legislative power to give such consent.
[269]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 562-563; cf Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 127-128.
[270]It is incorrect to describe the cross-vesting legislation, as the challengers did, as having the effect of "conscripting" federal courts to exercise State jurisdiction. The consent of the Commonwealth is a condition precedent to the exercise of such jurisdiction. See Gould v Brown (1998) 193 CLR 346 at 381-382, par [20] per Brennan CJ and Toohey J.

The challengers contended that, as the federal Parliament could not itself confer jurisdiction, by necessary implication it could not consent to the conferral of jurisdiction by a State Parliament. If it could do so, this would permit, indirectly, the federal Parliament's acting in relation to the federal courts in a manner which was incompatible with the "fundamental and carefully defined role"[271] or the carefully marked out territory reserved to the federal Judicature by Ch III of the Constitution.
[271]Gould v Brown (1998) 193 CLR 346 at 421, par [119] per McHugh J.
I do not find these arguments persuasive. Chapter III speaks to what the federal Parliament can do in respect of the exercise of "[t]he judicial power of the Commonwealth"[272]. It is silent with respect to the conferral on federal courts of the judicial power of another polity, including that of a State of the Commonwealth. Its provisions simply do not address that issue. The words of constitutional grant in ss 75, 76 and 77 should not be read narrowly so as to expel other possibilities. Yet this still leaves to be identified the foundation for the legislative power of the federal Parliament to give its consent. Because that Parliament is a legislature of limited powers, it requires a constitutional source of power to sustain the validity of any law made by it.
[272]Constitution, s 71.
Such a source is readily found in this instance. It lies in the combined power which the Australian Constitution affords to the federal Parliament to create federal courts (other than this Court which is created by the
[273]s 71.
[274]s 51(xxxix).
[275]Burton v Honan (1952) 86 CLR 169 at 177; Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27.
Constitution[273]) and the express[274] and implied power[275] to enact laws incidental to those subjects upon which legislative power has been expressly conferred.
The provisions of s 51(xxxix) of the Australian Constitution are addressed, in terms, to "matters incidental to the execution of any power vested by this Constitution … in the Federal Judicature …". In Burton v Honan[276], Dixon CJ, for the Court, said of this paragraph:
"[E]verything which is incidental to the main purpose of a power is contained within the power itself so that it extends to matters which are necessary for the reasonable fulfilment of the legislative power over the subject matter … But it has appeared to me that par (xxxix) of s 51 is related not so much to matters incidental to the subjects placed under the legislative power of the Commonwealth but rather to matters which arise in the execution of the various powers reposed in the Legislature, the Judiciary and the Executive."
[276](1952) 86 CLR 169 at 177-178.
These two expressions of the scope of the legislative power of the federal Parliament are directly applicable to the present proceedings. Once the federal Parliament created federal courts with substantial jurisdiction, this was bound to result in conflicts and overlap of jurisdiction with State courts. The problems presented in the present cases illustrate how this was bound to occur and often does. The need for legislation such as cross-vesting of jurisdiction and transfer of cases was therefore bound to arise. So it quickly proved. Other circumstances made it desirable that such legislation should extend to the courts of the States themselves and as between those courts and the courts of the Territories. The very creation of a federal Judicature carried with it implied powers on the part of the federal Parliament to make laws which would advance their effectiveness as courts and reduce or eliminate the meritless jurisdictional conflicts which would otherwise bedevil their operations.
Cross-vesting legislation, with the facility of transfer from and to federal courts, was clearly necessary for the reasonable fulfilment of the legislative power which had given birth to the federal courts[277]. Additionally, the efficient execution of the powers of the federal Judicature is advanced by the adoption of sensible arrangements designed to remove the costs and other burdens, sometimes intolerable and usually inimical to the attainment of the objectives of that Judicature. Such burdens include the commencement of proceedings in an inappropriate Australian court or the commencement of connected litigation in another Australian court which should conveniently be heard and determined in the one court, including, where appropriate, a federal court.
[277]cf State Chamber of Commerce and Industry v The Commonwealth (The Second Fringe Benefits Tax Case) (1987) 163 CLR 329 at 357-358.
The scope of the implied powers afforded to the federal Parliament by the Australian Constitution has never been narrowly confined[278]. It would be inappropriate to do so now, given the nature of the Constitution as an instrument of government and the terms in which the grants of legislative power are expressed[279]. This approach is no less applicable to the implications inherent in the creation of the federal Judicature within Ch III of the Constitution than to the enactment of laws with respect to the identified heads of power granted to the Parliament in Ch I of the Constitution[280].
[278]cf Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 365; Baxter v Ah Way (1909) 8 CLR 626 at 637; O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 at 597-598.
[279]Le Mesurier v Connor (1929) 42 CLR 481 at 497; R v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 at 287 per Dixon CJ; Davis v The Commonwealth (1988) 166 CLR 79 at 95.
[280]Especially ss 51 and 52.
Having created a federal Judicature, the Constitution implies that the federal Parliament will have full powers to ensure that such Judicature performs its functions in all matters incidental to its purposes, including in matters incidental to the execution of the judicial power[281]. It is not within such incidental powers for the federal Parliament to confer a distinct jurisdiction upon a federal court additional to that for which the Constitution specifically and expressly provides[282]. But it is within that power for the Parliament to consent to the conferral of jurisdiction by the legislature of another polity to which the judicial power in question belongs. At least, it is within the incidental power where that other polity is a State of the Australian Commonwealth[283]. The source of the judicial power in question thus lies outside the grant of judicial power to the federal Parliament. But the consent to its exercise is reasonably incidental to that grant. It is reasonably necessary and convenient for, and conducive to, the proper performance by the federal Judicature of its functions as such[284].
[281]As provided by s 71.
[282]Constitution, ss 75, 76 and 77. See 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; Gould v Brown (1998) 193 CLR 346 at 459-460, pars [231]-[232] per Gummow J.
[283]Gould v Brown (1998) 193 CLR 346 at 497-498, pars [318]-[320]. See also at 385-386, pars [28]-[30] per Brennan CJ and Toohey J.
[284]cf Insurance Commissioner v Associated Dominions Assurance Society Pty Ltd (1953) 89 CLR 78 at 87; Fencott v Muller (1983) 152 CLR 570 at 609; Davis v The Commonwealth (1988) 166 CLR 79 at 111-112; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27 per Mason CJ adopted by Brennan J in Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 179.
An additional and connected source of constitutional authority arises from the implied nationhood power. That power has been repeatedly recognised in decisions of this Court as deriving from Australia's very existence and character as a sovereign nation. It extends not only to Australia's external activities, but also internally[285]. It is a source of power reflective of the unique position occupied by the Commonwealth within Australia's federal polity. In the past that power has been elaborated in connexion with the Legislature and the Executive Government of the Commonwealth. But there is no reason of principle why it should not also apply in the case of the Judicature.
[285]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 362-364 per Barwick CJ, 378 per Gibbs J, 397-398 per Mason J, 412-413 per Jacobs J; New South Wales v The Commonwealth (1975) 135 CLR 337 at 373-374 per Barwick CJ, 470 per Mason J, 498 per Jacobs J, 505 per Murphy J; The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 252 per Deane J; Davis v The Commonwealth (1988) 166 CLR 79 at 92-94 per Mason CJ, Deane and Gaudron JJ. The notion of an implied nationhood power received its earliest expression in those cases dealing with the implied power of national self-preservation: See eg Burns v Ransley (1949) 79 CLR 101 at 116; R v Sharkey (1949) 79 CLR 121 at 148-149; Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 187-189.
In Victoria v The Commonwealth and Hayden[286], Mason J described the implied nationhood power in the following terms:
"[T]he Commonwealth enjoys, apart from its specific and enumerated powers, certain implied powers which stem from its existence and its character as a polity ... [T]here is to be deduced from the existence and character of the Commonwealth as a national government ... a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation."
Similarly, Jacobs J wrote[287]:
[T]he purposes of the Commonwealth may not only fall within a subject matter of general or particular power prescribed in the Constitution but may also be other purposes which now adhere fully to Australia as a nation ... The growth of national identity results in a corresponding growth in the area of activities which have an Australian rather than a local flavour. Thus, the complexity and values of a modern national society result in a need for co‑ordination and integration of ways and means of planning for that complexity and reflecting those values."
[286](1975) 134 CLR 338 at 397.
[287]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 412.
Federal legislation providing consent to the vesting of State jurisdiction in federal courts falls squarely within the purposes envisaged by the implied nationhood power as it relates to the Judicature. The legislation possesses an "Australian rather than a local flavour". It seeks to facilitate national cooperation and "co-ordination" in response to the "complexity ... of a modern national society"[288]. The Commonwealth, in its relationship with the States and Territories, is in a unique position to respond to the issues arising under the establishment of a national system of jurisdiction-sharing. It has done so for high national purposes.
[288]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 412 per Jacobs J.
Obviously, the implied nationhood power is strictly limited in its scope. It would be inconsistent with the distribution of powers provided by the Constitution were the nationhood power to be given an ambit that trespassed impermissibly upon the powers of the States. That would effect a disturbance of the federal balance[289]. A characterisation of legislative purposes as "national" is not sufficient to attract the support of the nationhood power if those purposes fall within areas of law-making belonging to the States[290]. But the cross-vesting legislation of the Commonwealth, in so far as it gives consent to the vesting of State jurisdiction in federal courts, cannot be characterised in that way. It is legislation which every Australian State and Territory supported in this Court. In no way does it encroach impermissibly upon the legislative domain of the States or subvert the federal nature of the Constitution. On the contrary, it is clearly intended to support the legislative initiatives which the States have themselves taken. In the jurisprudence of this Court, the implied nationhood power is not limited to flags and symbols. It extends to cooperative national activities that are compatible with the Constitution and which reflect the modern needs of a dynamic and democratic federal polity[291].
[289]cf Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 364 per Barwick CJ, 378 per Gibbs J, 398 per Mason J.
[290]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 364 per Barwick CJ, 378 per Gibbs J, 398 per Mason J. In The Commonwealth v Tasmania (1983) 158 CLR 1 at 252, Deane J held that the implied nationhood power was limited in scope by reference to the federal nature of the Constitution and accordingly "confined within areas in which there is no real competition with the States."
[291]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 412 per Jacobs J; R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 560 per Mason J; The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 252 per Deane J. See also Byers, "Commentaries" in Evans (ed), Labor and the Constitution 1972-1975, (1977) at 68-71; Rumble, "The Commonwealth/State Co-operative Basis for the Australian Wheat Board and the National Companies and Securities Commission: Some Constitutional Issues", (1980-81) 7 Adelaide Law Review 348 at 370-375.
This conclusion does not employ "convenience" as a criterion of constitutional validity rather than legal analysis[292]. Analysis does not become less legal because it is uncongenial. The incidental power under the Constitution affords the legal answer to the question concerning the legislative power to sustain the federal part of the cross-vesting scheme. The incidental power was fully argued in these proceedings. And one aspect of the incidental power is the implied nationhood power. What can be more conducive to the national society of Australia as envisaged by the Constitution than the provision of legislative consent to a scheme that ensures justice, efficiency and clarity in the nation's court system? This is something at the very heart of the nation's existence and of its identity as such. Provided no other impediment exists, the Parliament of the Commonwealth is empowered to act as it has.
[292]See reasons of Gummow and Hayne JJ at [126].
Rejecting the contrary arguments
A number of subordinate arguments were deployed in resistance to the conclusion that the federal Parliament possessed the constitutional power to consent to the vesting of State jurisdiction in federal courts. I will mention them although none has merit. Thus, it was submitted that the outcome of the cross-vesting legislation would be to denude the State courts of their jurisdiction in civil cases leaving them, effectively, only with criminal jurisdiction. The federal courts, with their express, accrued and transferred jurisdiction, would continue to expand to the destruction of the judicial arrangements envisaged by the Constitution. I regard such arguments as fanciful. They are certainly not borne out by the operation of the cross-vesting legislation within the Australian judiciary to this time. If there is a danger to the continued existence of the State judiciary (one which falls far short of the alarms sounded during argument) it lies in the persistent expansion of the accrued jurisdiction of federal courts. This expansion may depend (as the proceedings involving Mr Wakim illustrate) upon considerations much more disputable, contentious and uncertain than the provisions of the cross-vesting legislation.
Then it was argued that cross-vesting legislation could result in the conferral of jurisdiction on federal courts inconsistent with the nature of federal jurisdiction yet compatible with the wider non-federal jurisdiction which may be exercised by State courts. This argument is also without substance[293]. The only jurisdiction which might be conferred on a federal court is that which is consistent with its character as a federal court[294]. Where jurisdiction is conferred, the court or body upon which it is conferred must be accepted as it is, unless its powers and functions are lawfully altered. No legislature in Australia may alter the constitutional character of a federal court. No legislature other than the federal Parliament can alter the other powers and functions of federal courts, including those dealing with appeals from such courts[295]. Accordingly, if the legislature of a State purported to confer upon a federal court jurisdiction incompatible with the constitutional character of that court, or inconsistent with the functions accorded to that court by the federal Parliament, any such endeavour would have no constitutional effect. Notwithstanding the submissions of New South Wales and South Australia to the contrary[296], I adhere to the view which I expressed in Gould. The only jurisdiction which could be conferred on a federal court by or under State law is that which is consistent with the exercise by it of judicial power as that term is understood in the context of Ch III[297].
[293]See Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] (1998) 72 ALJR 873 at 887, par [41]; 153 ALR 643 at 660-661; cf Davies and Cody v The King (1937) 57 CLR 170 at 172.
[294]Gould v Brown (1998) 193 CLR 346 at 389, par [35] per Brennan CJ and Toohey J, 500, par [328].
[295]In Gould v Brown reference was made to this problem. See (1998) 193 CLR 346 at 496, par [315].
[296]Referring by analogy to Lorenzo v Carey (1921) 29 CLR 243 at 253.
[297]Gould v Brown (1998) 193 CLR 346 at 497, pars [318]-[319]. See also at 385-386, pars [28]-[30] per Brennan CJ and Toohey J; cf Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554.
It was next submitted that conflicts of jurisdiction are inherent in any federal system of government. They are implicit in the existence of federal, State and Territory courts with jurisdiction which overlaps and intersects. It is true that such conflicts are a feature of the federal system of government which the Constitution establishes. But that fact says nothing about the constitutional validity of rational cooperative endeavours designed to reduce needless, and to eliminate avoidable, conflicts of this kind. Such conflicts are not a cause for rejoicing. Every federal country develops rules to minimise them, so far as can validly be done.
The provision of detailed legislative rules, in the form of the cross-vesting legislation, is a surer and sounder solution to the problems of conflict and multiplicity of jurisdiction (and one more in harmony with a cooperating federation) than the continued accretion to the jurisdiction of federal courts by judicial elaboration of the Constitution. The enlargement of the accrued jurisdiction of federal courts, secured by reading into the word "matter" implications which seem far from the constitutional purpose, is a significantly more artificial and less flexible way to address the problem than that chosen in the cross-vesting legislation. Far from undermining the continued existence of the separate systems of federal and State courts envisaged by the Australian Constitution, the cross-vesting legislation assumes and sustains that existence. It provides machinery for appropriate commencement and transfer of proceedings within the judiciary of Australia. It rejects artificiality for rationality and inter‑jurisdictional cooperation. The alternative to the open-ended tests for accrued jurisdiction (discussed in the reasons of other members of this Court) relying on disputable notions of "a single controversy", the variable criterion of judicial "impression", and a one-way traffic to federal courts, is a rational procedure: cheap, just, equal and clear in its operation. In my view, the cross‑vesting legislation is more in keeping with the operation of Ch III, properly understood, than the rigid construction of the Constitution which would strike down the legislation as constitutionally impermissible and turn to judicial invention and sophistry to overcome the problems which are thereby created. The second basic argument for the challengers also fails.
Particular cases and conclusions

The foregoing conclusions lead me to a result on the main issues identical to that which I reached in Gould. There is no constitutional defect in the statutory provisions for cross-vesting considered in these proceedings. Each of the statutes, federal and State, took effect according to its terms. Each validly operated to confer on the Federal Court of Australia the jurisdiction which that Court proceeded to exercise.
Having reached this conclusion, it is unnecessary for me to explore alternative arguments whereby, to meet the possible loss of the jurisdiction conferred under the cross-vesting legislation (or as an endeavour to avoid dealing with the constitutional arguments), it was suggested that the issues of jurisdiction could otherwise be answered or circumvented in some of the cases. The challenges to constitutional validity should once again be faced and answered. The answer given in the Wakim and Brown proceedings should be that jurisdiction was validly conferred and properly exercised. The applications in those proceedings should be dismissed with costs. However, because Mr Darvall, one of the prosecutors in the Wakim proceedings, has died, it will be necessary to ensure that his legal personal representative is substituted in the record of this Court.
A separate and particular question is raised in the case of Spinks & Ors v Prentice. In this regard I agree with the opinion of the Full Court of the Federal Court that s 51(1) of the Corporations Act 1989 (Cth), a federal law, validly conferred jurisdiction upon the Federal Court of Australia with respect to civil matters arising under the Corporations Law of the Capital Territory. Even if the source of that federal enactment be s 122 of the Constitution (and not, as I am inclined to think, also s 51(xx)) it undoubtedly remained a valid conferral of jurisdiction on the Federal Court by the federal Parliament[298]. To the extent that the decision of this Court in R v Bernasconi[299] suggests otherwise, and posits the separation of the Territories from the Commonwealth for the purposes of Ch III of the Constitution, I would confine that decision strictly to the point decided in that case concerning the application of s 80 of the Constitution. I would give it no wider operation[300].
[298]Northern Territory v GPAO (1999) 73 ALJR 470; 161 ALR 318.
[299](1915) 19 CLR 629.
[300]cf Spratt v Hermes (1965) 114 CLR 226 at 266 per Menzies J, 275 per Windeyer J.
No question therefore arises in these proceedings as to the power of a legislature of a self-governing Territory, with the consent of the federal Parliament, to enact a law conferring jurisdiction on a federal court. I would reserve the determination of the constitutional validity of any such law to a case in which a decision on the point is required.
As to the submission that s 447A of the Corporations Law impermissibly purported to confer non-judicial as well as judicial functions on the Federal Court, I agree, for the reasons given by Gummow and Hayne JJ, that it is inappropriate to express a view on that point at this stage of the Spinks litigation. In other matters, I respectfully disagree with the conclusions reached by the other members of this Court. I adhere to the views which I expressed in Gould and to the conclusion to which I came in those proceedings on the points which have been reargued in these.
In Prosper the Commonwealth[301], Sir Robert Garran wrote a memoir of the first 50 years of the Australian federation. In it, he described the bold and optimistic spirits who made, applied and elaborated the Constitution and the first half-century of its existence. He explained the role of this Court, including the differences which had occasionally arisen. Of these, Garran cited[302] an extract from the closing words of Barton J in Duncan v State of Queensland[303]:
"To say that one regrets to differ from one's learned brethren is a formula that often begins a judgment. I end mine by expressing heavy sorrow that their decision is as it is."
So, in this case, do I.
[301]Garran, Prosper the Commonwealth, (1958).
[302]Garran, Prosper the Commonwealth, (1958) at 170.
[303](1916) 22 CLR 556 at 605. See also at 627 per Isaacs J (diss).
Orders
The following orders should be made:
Re Wakim & Ors; Ex parte McNally & Anor
Re Wakim & Ors; Ex parte Darvall
Each of the applications for constitutional writs should be dismissed with costs. In the case of the application by Mr Darvall, who has died since the hearing, the costs in his application should be reserved and dealt with as Gummow and Hayne JJ have proposed.

Re Brown & Ors; Ex parte Amann & Anor

An order should be granted extending the time for Mr Amann's application for constitutional writs but the order nisi for certiorari should be discharged. Mr Amann should pay the costs of the respondents. Mr Gould's applications should be dismissed with costs.

Spinks & Ors v Prentice

Special leave to appeal should be granted. The appeal should be treated as instituted and heard instanter. It should be dismissed with costs.

CALLINAN J. These cases raise essentially the same question as the one upon which six members of this Court were evenly divided in Gould v Brown[304]: that is, as to the validity of that part of the cross-vesting scheme which purports to invest State jurisdiction in federal courts.
[304](1998) 193 CLR 346.
As early as 1849, a committee of the Privy Council on Trade and Plantations foresaw some of the problems that might arise out of a system of disparate courts in the separate colonies established in Australia by that time and recommended that there be a legislative body to be known as the "General Assembly of Australia" to provide, among other things, for the establishment of a General Supreme Court to be a court of original jurisdiction or a court of appeal for any of the inferior courts of the separate provinces, and for the determining of the extent of the jurisdiction and forms and manner of proceedings of such a Supreme Court[305].
[305]See Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 83-85; Jenks, The Government of Victoria (1897) at 3-4.
It is surprising therefore that so little attention seems to have been paid in the Convention Debates to the investiture of federal jurisdiction in State courts, the jurisdiction to be exercisable by federal courts other than the High Court, and the circumstances which would call for the creation of federal courts of ample jurisdiction. The question whether the jurisdiction of that federal court should be inclusive of, or concurrent with any invested jurisdiction of the State courts seems to have been deliberately left open[306]. Indeed, such attention as was paid to these matters tended to focus mainly on such courts or tribunals as might be established to deal with industrial disputes[307]. Nowhere however is there the slightest hint of any possibility of the investiture of State jurisdiction in any federal courts.
[306]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 31 January 1898 at 348-349.
[307]Official Record of the Debates of the Australasian Federal Convention, (Sydney), 6 April 1891 at 779-785.
Quick and Garran, in discussing s 77 of the Constitution, after referring to the fact that an unduly cumbersome judicial machinery might be dispensed with in the early days of the Commonwealth, predicted the development and extension of a national judicial system "to meet the gradually increasing requirements of the people."[308] There was no attempt to explain the way in which such a national judicial system might be developed and extended, and how the gradually increasing requirements of the people would be manifested and accommodated. The authors did say that confidence in the Bench (the Supreme Courts) made it possible to contemplate, without misgiving, the exercise of federal jurisdiction by State courts – subject to the controlling power of the federal Parliament[309].
[308]Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), par 337.
[309]Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), par 337.
Neither the commentary by Quick and Garran nor the Convention Debates necessarily provide any firm foundation for a confident conclusion that there was an original understanding that the High Court and the State courts should carry the initial, and comparatively light burden arising from federal jurisdiction, and that when the time came a complete structure of federal courts should be created[310]. Nor do the Convention Debates and Quick and Garran explain why, if in effect there were to be dual systems of justice in Australia, no constitutional provision was expressly made to deal with the sorts of problems which have arisen and which were foreseeable by the time the Constitution was framed.
[310]See Byers and Toose, "The Necessity for a New Federal Court (A Survey of the Federal Court System in Australia)", (1963) 36 Australian Law Journal 308 at 309.
Mr R J Ellicott QC (later Attorney-General and later a Judge of the Federal Court), in the House of Representatives on 24 July 1974, claimed this in respect of s 77(iii) of the Constitution[311]:
"This provision was inserted in the Commonwealth Constitution; it is not found in the American Constitution. I took the trouble to find out what was in the minds of our founding fathers when they put in that provision. It is evidenced by a telegram which Symon sent to Sir Samuel Griffith on 1 April 1897. It was said of this proposal to vest Federal jurisdiction in State courts that the object was 'to avoid the needless creation of Federal courts in all the States and the consequent degradation of State courts and avoid the difficulties of litigation which exists [sic] in America'. They regarded the power to establish Federal courts, more by way of reserve if any State should close its courts or obstruct the determination of federal matters. The use of State courts was therefore seen by the founding fathers as a means of maintaining a simple court system within the Federation with the High Court as the supreme court of Australia. The founding fathers obviously saw the creation of Federal courts as unnecessary except in the last resort."
[311]Parliamentary Debates (Hansard) at 598.
Another view is that the principal purpose of s 77 was to authorise the creation of federal courts to assume the burden of the original jurisdiction of the High Court if and when its appellate jurisdiction increased to such an extent as to make it inappropriate or impracticable for the High Court to exercise original jurisdiction. It has been suggested that one disadvantage of the investiture of State courts with federal jurisdiction was the need for the Commonwealth to accept the State courts as they were with all of their variations, limitations and traditions[312]. As a reason for the creation of federal courts this may have no or reduced current validity in light of the decisions of this Court in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs[313] and Kable v Director of Public Prosecutions (NSW)[314]. Another reason which has been advanced, that the investiture of State courts with federal jurisdiction virtually meant that the federal government would hand over administration of the statutes involved to the judicial creatures of State governments whether those State governments might be or become hostile, friendly or merely disinterested[315], shows little respect for, or confidence in both State and federal judges. It leaves open the entirely unacceptable inference that the former might be partial towards the States and the latter partial towards the Commonwealth. It also implies that some different judicial technique may be involved in the interpretation or application of federal statutes and overlooks the way in which, since federation, the State courts have diligently and competently found and applied federal law under the unifying influence of the High Court[316].
[312]See Byers and Toose, "The Necessity for a New Federal Court (A Survey of the Federal Court System in Australia)", (1963) 36 Australian Law Journal 308 at 313.
[313](1996) 189 CLR 1.
[314](1996) 189 CLR 51.
[315]See Byers and Toose, "The Necessity for a New Federal Court (A Survey of the Federal Court System in Australia)", (1963) 36 Australian Law Journal 308 at 313.
[316]The experience in the United States was different. After the ratification of the Constitution it was realized that there was an immediate need for a system of federal courts, not only as a unifying influence over very parochial communities and States, but also because, during the Confederation, many of the State courts had been heavily partial in their determinations of suits involving sister States, citizens of those States and foreign governments and foreigners: see Morris, Federal Justice in the Second Circuit: A History of the United States Courts in New York (1987) at 6-11.
Abortive attempts to introduce a federal court of much broader jurisdiction than existed at each of these times were made in 1967, 1973 and 1974[317]. All were criticized, particularly by those who saw the proposals as erosions of the status of the Supreme Courts of the States[318]. It was also contended by some that the introduction of a new structure of courts would be cumbersome, expensive, would duplicate existing judicial facilities, and would give rise to unnecessary jurisdictional disputes and forum-shopping[319]. One of the most vociferous critics was Sir Walter Campbell, who became Chief Justice of the Supreme Court of Queensland. His Honour predicted that litigants would "forum shop" and that there would be increasing, stultifying and frustrating problems of jurisdiction[320]. And so it has proved[321].
[317]See Crawford, "The New Structure of Australian Courts", (1977-78) 6 Adelaide Law Review 201 at 202.
[318]Street, "The Consequences of a Dual System of State and Federal Courts", (1978) 52 Australian Law Journal 434.
[319]Else-Mitchell, "Burying the Autochthonous Expedient?", (1968-69) 3 Federal Law Review 187.
[320]See "The Relationship Between the Federal Court and the Supreme Courts of the States", (1979) 11(1) University of Queensland Law Journal 3.
[321]The preamble to the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (and the preamble to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), which is in substantially the same form) acknowledge the problems that have arisen, if in a somewhat understated way:
"… [I]nconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and … it is desirable:
(a)to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court;
(b)to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, would be entirely or substantially within the jurisdiction (other than any accrued jurisdiction) of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases; and
(c)if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court."
In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd[322] Mason J, with whom Stephen J agreed, said[323]:
"Lurking beneath the surface of the arguments presented in this case are competing policy considerations affecting the role and status of the Federal Court and the Supreme Courts of the States. There is on the one hand the desirability of enabling the Federal Court to deal with attached claims so as to resolve the entirety of the parties' controversy. There is on the other hand an apprehension that if it be held that the Federal Court has jurisdiction to deal with attached claims, State courts will lose to the Federal Court a proportion of the important work which they have hitherto discharged, work which the Federal Court has no jurisdiction to determine if it be not attached to a federal claim."
[322](1981) 148 CLR 457.
[323](1981) 148 CLR 457 at 513.
In dissent Aickin J was of the view that there was no such attached jurisdiction, "whatever the degree of overlap there may be in the facts relevant to the two kinds of matter"[324], and Wilson J would have permitted the attached or pendent questions (however they might be described) to be decided only when the federal question could not be resolved without the determination of the non‑federal question[325].
[324](1981) 148 CLR 457 at 534.
[325](1981) 148 CLR 457 at 545.
Gibbs J, one of the majority, said that "if a party claims relief on two different legal grounds, but the facts on which the relief is sought on each ground are identical, and the relief sought on each ground is the same in substance if not in form, there is only one matter for determination."[326]
[326](1981) 148 CLR 457 at 499.
Mason J (with whom Stephen J agreed) held that the Federal Court had jurisdiction to decide an "attached non-severable claim", being one where the claims depend on common transactions and facts that arise out of a common sub‑stratum of facts[327]. The approach of Barwick CJ was somewhat different. It was almost as if his Honour started with a presumption in favour of jurisdiction when he said "[t]o be outside the accrued jurisdiction, however, the other matter must be separate and disparate from the matter in relation to or in connexion with which federal jurisdiction has been attracted."[328]
[327](1981) 148 CLR 457 at 512.
[328](1981) 148 CLR 457 at 474.
Murphy J was of the opinion that the Federal Court might determine "the whole case, that is, … resolve judicially every incidental and related issue, every issue which is not separate and distinct from those which arise under a direct grant of federal jurisdiction under s 77 of the Constitution"[329].
[329](1981) 148 CLR 457 at 520.
In Stack v Coast Securities (No 9) Pty Ltd, three Justices (Mason, Brennan and Deane JJ) described[330] the identification of what fell within what had come to be called in Fencott v Muller[331] the accrued jurisdiction of the Federal Court as a recurrent problem. The resolution of that problem in Stack was said to depend upon the exercise, as a matter of impression, of a practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.
[330](1983) 154 CLR 261 at 294.
[331](1983) 152 CLR 570.
No doubt whilst this is, with respect, about as helpful a statement as can be made for the resolution of what is an inevitable and almost intractable problem, obviously minds may and will differ in the making of practical judgments and in the forming of impressions.
This brief discussion of the problems which were long foreshadowed and which have repeatedly arisen when separate superior courts were actively placed in a position of adjudicating upon the same or related causes of action, is enough to demonstrate the great desirability of a legislative solution to the problems. The cross-vesting legislation which has the support of the Commonwealth and all of the States and the Territories represents such an attempt but regrettably, does not, in the respects to which I will refer, have the necessary constitutional foundation for its validity.

I can find nothing in Ch III of the Constitution even to suggest that the States might, whether with or without the concurrence of the Commonwealth, invest federal courts with State jurisdiction.

The opening section is in these terms:
"71. The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes."
This section is concerned with the judicial power of the Commonwealth and, as the use of the definite article indicates, the whole of the judicial power of the Commonwealth. It says nothing of, and is obviously not concerned with State judicial power.
Section 72 states the rules for the appointment and terms of Justices of the High Court and other courts created by the Commonwealth Parliament.
Section 73 confers and defines the appellate jurisdiction of the High Court to include appeals from the Supreme Court of any State or of any other court of any State from which at the time of federation, an appeal lay to the Queen in Council.
Section 74 prohibited appeals to Her Majesty in Council in inter se questions except in cases in which this Court was prepared to certify that the question raised ought be determined by Her Majesty in Council.
Section 75 provides that the High Court shall have original jurisdiction in a variety of matters, all being matters (save for the diversity jurisdiction) of particular relevance to the Commonwealth or a Commonwealth head of power. The same may be said of s 76 which empowers the Commonwealth Parliament to make laws conferring further original jurisdiction on the High Court, again with respect to matters having a clear Commonwealth flavour, or necessary for the adjudication of rights and claims under the laws of different States.
The introductory words of s 77, "[w]ith respect to", although ample in scope[332], tie the powers of the Commonwealth Parliament in defining the jurisdiction of any federal court other than the High Court, to any of the matters mentioned in ss 75 and 76 of the Constitution. Of particular importance is s 77(iii), which, while empowering the investment of federal jurisdiction in any court of a State, is silent as to the possibility of any reciprocal investment. The applicants' arguments rightly lay great stress on this provision.
[332]Herald and Weekly Times Ltd v The Commonwealth (1966) 115 CLR 418.
The other sections of the Chapter contain no suggestions that a federal court might be a repository of State judicial power. Section 78 contains the limiting words "[t]he Parliament may make laws … in respect of matters within the limits of the judicial power." Section 79 uses the words "[t]he federal jurisdiction of any court" and in terms is concerned with federal jurisdiction. And the operation of s 80 is restricted to indictments for any offence against any law of the Commonwealth.
Because of the language of Ch III of the Constitution, particularly s 77 thereof, and for the reasons stated by McHugh J in Gould v Brown and those given by his Honour in these cases I would hold that the States may not invest federal courts with the jurisdiction of the former.
The jurisdiction of the Federal Court in the Australian Capital Territory is a separate matter which I will deal with in the case of Spinks & Ors v Prentice, heard concurrently with the other two cases.
It is now necessary to dispose of each of the cases.
Re Wakim & Ors; Ex parte McNally & Anor
Re Wakim & Ors; Ex parte Darvall
In July 1985 Mr Wakim was awarded damages in the Supreme Court of New South Wales for personal injuries sustained in an accident in the course of his employment by Tedros and Nawal Nader. His action was brought against Tedros Nader only. In October 1985 Tedros Nader was declared bankrupt and the Official Trustee in Bankruptcy ("the Trustee") was appointed trustee of his estate. In June 1987 the Trustee brought proceedings in the Supreme Court of New South Wales against Nawal Nader, seeking orders that her partnership with Tedros Nader was or had been dissolved. A firm of solicitors in which Messrs McNally were partners was retained by the Trustee, and the firm in turn retained Mr Darvall QC.
In March 1990 the parties settled. It was agreed that Mr Wakim be paid $10,000. In July 1993 Mr Wakim brought proceedings in the Federal Court against the Trustee. One of his claims was made pursuant to s 176 of the Bankruptcy Act 1966 (Cth), on the basis that the Trustee had been guilty of a breach of duty as trustee of the bankrupt estate. Following the commencement of those proceedings, Mr Wakim brought two further actions against Mr Darvall and the firm of solicitors in negligence. The claims were brought in the Federal Court pursuant to s 4(1) of the New South Wales cross-vesting legislation.
Mr Darvall and the solicitors contend that the Federal Court has no jurisdiction to hear the action in negligence and seek a writ of prohibition.
There are, it can be seen, three separate proceedings which have been brought by Wakim: against Mr Darvall, the solicitors and the Trustee in negligence, and against the last also for orders pursuant to ss 176, 178 and 179 of the Bankruptcy Act[333]. No claim as pleaded is alleged to be dependent upon either of the other claims.
[333]Sections 176, 178 and 179 provide:
"176(1) Where, on application by the Inspector-General or by a creditor who has or had a debt provable in the bankruptcy, the Court is satisfied that a person who is or has been a trustee of a bankrupt's estate has been guilty (whether before or after the commencement of this section) of breach of duty in relation to the bankrupt's estate or affairs, subsection (2) applies.
(2) The Court may make any one or more of the following orders:
(a)an order directing the person to make good any loss that the bankrupt's estate has sustained because of the person's breach of duty;
(b)if the person is a registered trustee – an order directing the Inspector-General to cancel the person's registration as a trustee;
(c)any other order that the Court considers just and equitable in the circumstances.
...
178 If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable.
179(1) The Court may, on the application of the Inspector-General, a creditor or the bankrupt, inquire into the conduct of a trustee in relation to a bankruptcy and may do one or both of the following:
(a)remove the trustee from office; and
(b)make such order as it thinks proper.
(2) The Inspector-General or a creditor may at any time require a trustee to answer an inquiry in relation to the bankrupt's estate or affairs."
Applying the test propounded in Stack of impression and practical judgment I do not think that there is here one justiciable controversy. The absence of any attempt to join any party as a third party, the different nature of the claims made against the various defendants, the fact that there are three separate proceedings and the entirely non-federal nature of the claims against the solicitors and Mr Darvall take these matters outside the scope of any accrued, attached, or pendent jurisdiction of the Federal Court (whatever term be appropriate). It is not enough, in my opinion, that some of the facts which will have to be established to make out one claim may need also to be proved to make good another claim. It is only if there is a federal claim actually made in an action that any other claims of a non-federal nature may be determined by the Federal Court in that action, and whether they should be so determined is a matter that will fall for the determination of the Federal Court in any particular case[334].
[334]Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475 per Barwick CJ. The exercise of accrued jurisdiction is discretionary and not mandatory.
In making their applications for prohibition the prosecutors have acted promptly and have not been guilty of any conduct which, if discretionary considerations be relevant, would operate to disqualify them from obtaining relief. As Gibbs CJ said in R v Ross-Jones; Ex parte Green[335]:
"If … a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right".
[335](1984) 156 CLR 185 at 194.
The question as to the relief which should be granted is complicated by the fact that Mr Darvall died after the hearing of argument. The application by him requires some separate consideration. With respect to the solicitors I would order that a writ of prohibition issue to the respondents restraining the first respondents and each of them from hearing and determining the application brought by the second respondent in proceedings in the Federal Court of Australia numbered NG 65/1994 and restraining the second respondent from further proceeding with those Federal Court proceedings, and I would further order that the second respondent, Mr Wakim, pay the prosecutors' costs of and incidental to these proceedings and the Federal Court proceedings.
Because I am in a minority it is unnecessary for me to reach any concluded view about what relief, if any, should be afforded to Mr Darvall's executors or administrators, or otherwise in respect of his application. No legal personal representative has been appointed. I would accordingly join in the order of the majority with respect to his claim that the costs of it should be reserved for consideration by a single Justice on application made with not less than seven days' notice.
Re Brown & Ors; Ex parte Amann & Anor
On 30 November 1992, the Federal Court ordered that Amann Aviation Pty Ltd (a New South Wales company) be wound up. Mr Brown was appointed as liquidator. On 7 July 1995 the Federal Court ordered pursuant to s 596A of the Corporations Law that summonses be issued requiring various persons, including the applicants, to attend the Federal Court to be examined about the affairs of the company, and that these persons produce certain documents to the Court.
Following the making of these orders, Mr Gould and others – but not Mr Amann – applied to the Federal Court seeking the following[336]:
(i)     a declaration that the Federal Court had no jurisdiction to make the winding up orders;
(ii)    a declaration that that Court had no jurisdiction to order and conduct the examinations;
(iii)   an order that the summonses issued pursuant to the examination orders be set aside (there was no application to seek the discharge of the winding up orders).
[336]See Gould v Brown (1998) 193 CLR 346.
After the applications were filed, Black CJ referred some questions to the Full Court pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth)[337]. The Full Court answered the questions by unanimously holding that the Court did have jurisdiction to make winding up orders, and to order and conduct examinations under the Corporations Law. However, seemingly because of the nature of the stated case, no order was entered dismissing the notice of motion that led to the proceedings in the Full Court, but the examinations continued.
[337]Section 20(1A) provides:
"If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter shall be exercised by a Full Court."

Mr Gould then appealed to the High Court and it was in that appeal that the Court was evenly divided. Pursuant to s 23(2)(a) of the Judiciary Act 1903 (Cth) the decision of the Full Court was therefore affirmed[338]. In the present proceedings, the applicants seek prerogative and other relief.
[338]Section 23(2)(a) relevantly provides:
"… if the Court is equally divided in opinion … in the case where a decision … of the Federal Court of Australia … is called in question by appeal or otherwise, the decision appealed from shall be affirmed …"
Because Mr Amann was not a party to the earlier litigation he is clearly not precluded on the basis of res judicata or any issue estoppel from agitating any issue decided in Gould v Brown. I will return to his situation later.
Mr Gould is in a different position. Because this Court was evenly divided in Gould v Brown the decision of the Full Federal Court effectively upholding the validity of the cross-vesting legislation became the final decision in the case. However, as I have said, formal orders dismissing the motion and giving effect by record to that final decision were not entered.
This Court has now, by a significant majority, taken an entirely different view of the validity of the cross-vesting legislation from that of the Federal Court and three members of this Court in Gould v Brown. I confess to having a strong inclination against a consequence adverse to a litigant in this Court arising out of the unfortunate circumstance that this Court was unable to reach a majority decision on a matter of such critical importance as the jurisdiction of the Federal Court of Australia.
The question becomes then whether the doctrines of res judicata and issue estoppel or other matters operate to deny Mr Gould the relief he seeks or other relief.
The importance of the doctrine of res judicata in any legal system is not to be understated. As Campbell J said in Jeter v Hewitt[339]:
"The maintenance of public order, the repose of society, and the quiet of families, require that what has been definitely determined by competent tribunals shall be accepted as irrefragable legal truth."
[339]63 US 352 at 364 (1859).

The doctrine is one of almost universal application, was part of early Roman law[340] and is part of the law of the Continental countries of Europe[341].
[340]Mommsen, Krueger and Watson (eds), The Digest of Justinian, Bk 44, Title 2; Tomkins and Lemon (eds), The Commentaries of Gaius on the Roman Law, Bk IV, s 107.
[341]For example see the French Civil Code, Bk III, Ch VI, s III.
In Blair v Curran[342], Dixon J spoke of the distinction between res judicata and issue estoppel. His Honour said:
"[I]n the first [res judicata] the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second [issue estoppel], for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."
Earlier Dixon J had said[343]:
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."
[342](1939) 62 CLR 464 at 532.
[343](1939) 62 CLR 464 at 531.
Although Fullagar J dissented in Jackson v Goldsmith, what his Honour said of the principle of res judicata was to no different an effect from what the other members of the Court stated[344]:
"[W]here an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action." (emphasis added)
[344](1950) 81 CLR 446 at 466.
This case is said to be a case of res judicata so far as Mr Gould is concerned because his proceedings have passed into judgment, that is to say the judgment of the Full Court of the Federal Court.
Order 36 of the Federal Court Rules (Cth) is concerned with the entry of judgments and orders. Rule 1 provides that a party desiring to enter an order shall lodge a draft of the order with the Registrar. The use of the word "desiring" makes it plain that a party is not obliged to enter an order. Rules 2, 3 and 4 provide that the Registrar may settle the draft either with or without an appointment for the attendance of the parties and is obliged to do so on or after the appointment (if of course one has been made). Rules 5, 6 and 7 empower the Registrar to draw and settle an order by direction of the Court or by authority of a rule notwithstanding that no draft has been lodged and no appointment for the settlement of an order has been made. Such a draft is subject to review by the Court but r 5(3) contemplates that the Registrar is not to exercise his or her powers of settlement of an order under r 5 unless the Court so directs or a party so requests. Rule 8(1) provides that a party may enter an order at any time and r 8(2) requires that an order be entered in various circumstances including where an appeal from an order has been instituted, or an application for leave to appeal from the order has been made. (The rule does not in terms refer to an application for leave to appeal to the High Court or an appeal to the High Court.)
The fact that the Rules do not compel either the Registrar or a party to enter a judgment and thereby to make it a part of the record of the Court serves to distinguish an order or judgment of the Federal Court from the judgment under consideration in Bell v Holmes[345]. In that case McNair J held that a plea of res judicata was not to be defeated by the non-production of a record of the judgment because under Order 24 of the County Court Rules (UK) the Registrar was required to enter up the judgment[346].
[345][1956] 1 WLR 1359 at 1367; [1956] 3 All ER 449 at 456.
[346]But see Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996), pars 98, 101.
Although the doctrine of res judicata is of very broad application it has been strongly suggested that exceptions to it may exist in the case of judicial review by way of prerogative writs[347]. In R v Secretary of State for the Environment; Ex parte Hackney London Borough Council, May LJ, sitting as a member of a Divisional Court, delivered the Court's judgment[348]:
"[S]imilar considerations apply to proceedings for judicial review. In such proceedings, there are no formal pleadings and it will frequently be difficult if not impossible to identify a particular issue which the 'first' application will have decided. Moreover, we do not think that there is in proceedings brought under Order 53 any true lis between the Crown, in whose name the proceedings are brought (and we venture a reservation about whether or not issue estoppel could operate against the Crown), and the respondent or between the ex parte applicant and the respondent. Further, we doubt whether a decision in such proceedings, in the sense necessary for issue estoppel to operate, is a final decision: the nature of the relief, in many cases, leaves open reconsideration by the statutory or other tribunal of the matter in dispute."
[347]See the discussion by Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996), pars 356-359.
[348][1983] 1 WLR 524 at 538-539.
The Court adopted this statement of Professor Wade[349]:
"[I]n these procedures the court 'is not finally determining the validity of the tribunal's order as between the parties themselves' but 'is merely deciding whether there has been a plain excess of jurisdiction or not'. They are a special class of remedies designed to maintain due order in the legal system, nominally at the suit of the Crown, and they may well fall outside the ambit of the ordinary doctrine of res judicata." (footnotes omitted)
[349]See Wade, Administrative Law, 5th ed (1982) at 246.
On appeal Dunn LJ said[350]:
"Although not necessary for my decision I also incline to the view that the Divisional Court was right to hold that the doctrine of issue estoppel cannot be relied on in applications for judicial review, although the court has an inherent jurisdiction as a matter of discretion in the interests of finality not to allow a particular issue which has already been litigated to be re‑opened. This depends upon the special nature of judicial review under RSC, Ord 53 which makes it different both from ordinary civil litigation inter partes and from criminal proceedings. Like the Divisional Court, I adopt the passage from Professor Wade's Administrative Law … set out in the judgment of the Divisional Court".
[350]R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 WLR 592 at 602; [1984] 1 All ER 956 at 964-965.

However in R v Mayor and Justices of Bodmin an order nisi made on a second application for a writ of mandamus was discharged on the ground that an earlier application (on the same evidence) had been rejected[351].
[351][1892] 2 QB 21.
The authors (Spencer Bower, Turner and Handley) of The Doctrine of Res Judicata[352] express the opinion that res judicata is so fundamental that it is hard to think why an order granting judicial review should not give rise to res judicata and estoppels[353]. And with that as a general proposition it is not easy to disagree. But equally, it is not easy to approve of a slavish application of the doctrine to a situation as unique as this one. To adapt the language of Campbell J[354], it can hardly be said that the result in Gould v Brown has significantly contributed to public order and the repose and quiet of families. Nor can it be said that that result constitutes a definite determination for acceptance as irrefragable legal truth. As Lord Goff of Chieveley recognised[355], a practical exception to the rule of res judicata exists to enable "justice to be done in rare cases". But the fact that the relief is claimed nominally at the suit of the Crown, and that the writs are sought to prevent an excess of jurisdiction or to cure some other like serious and fundamental defect in the exercise of a jurisdiction, is enough to require that these remedies be given separate consideration and to afford a basis in some circumstances for different treatment of the doctrine of res judicata in respect of them[356].
[352]3rd ed (1996) at 198-202.
[353]Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996) at 200.
[354]Jeter v Hewitt 63 US 352 at 364 (1859).
[355]Republic of India v India Steamship Co Ltd [1993] AC 410 at 424.
[356]For a brief history of the writs see Halsbury's Laws of England, 4th ed, vol 1(1), par 80.
What Knox CJ and Gavan Duffy J said of prohibition in R v Hibble; Ex parte Broken Hill Proprietary Co Ltd is of relevance to this case[357]:
"The real object of the writ was not merely to prevent an individual being vexed by an order which might affect him in his person or property, made by a person or tribunal assuming to have jurisdiction to make such an order, but having no such jurisdiction, but also to prevent any person or tribunal from assuming a jurisdiction which has not been conferred on him or it. So far as the writ is regarded as a means of protection for the individual who has not disentitled himself by his conduct, the necessity of the case demands that it shall be granted at any time until all possible operation of the order complained of has been completely exhausted. If, on the other hand, the issue of the writ be regarded as intended to keep an inferior Court within the limits of its jurisdiction, it should never be too late to get rid of what might be regarded in the future as a precedent for the exercise of a jurisdiction which is not really justified by the law."
[357](1920) 28 CLR 456 at 463.
I have formed the view that the doctrine of res judicata does not apply to this exceptional case for these reasons: no judgment has been entered and there was no compulsion upon anyone to enter judgment in Gould v Brown; the case is a constitutional case; matters of great public importance are involved; this Court has held that the Federal Court never had any jurisdiction in the matter at all; the relief sought in the previous suit was prerogative relief brought in the name of the Crown; and, the applicants failed only because of the extremely rare circumstance of this Court being unable to reach a majority decision.
There is a further question however whether for other reasons relief should be refused to Mr Gould. A limit is imposed upon the time within which an application for certiorari must be made. An application for an order nisi for a writ of certiorari "shall not be granted" unless it is made within six months after the date of judgment or order[358]. No time limits are imposed by the Rules upon the writ of prohibition. Order 60 r 6(1) permits a Court or a Justice to abridge or enlarge the time appointed by the Rules for doing an act "upon such terms, if any, as the justice of the case requires."
[358]High Court Rules (Cth), O 55 r 17(1).
In my opinion, the justice of Mr Gould's case does require that time be extended to such extent as may be necessary. Delays can readily be explained by what I have described as the unfortunate circumstance that different courts and indeed different judges of the same court took diametrically opposed views of Mr Gould's original proceedings. Those are very special circumstances indeed, in practice very unlikely to be repeated, particularly when it is the convention of this Court to sit seven Justices in constitutional cases whenever that is possible, as it usually is.
I would grant any extensions of time necessary to enable Mr Gould to pursue his application in this case as I would Mr Amann. Apart from the fact that Mr Gould has borne the heat and burden of this expensive and prolonged litigation, explicable and understandable delay is hardly a circumstance which should operate to deny him relief to which he might otherwise be entitled. If Mr Gould should have relief, as I think he should, there is every reason why Mr Amann should be similarly entitled.
But the relief to which they are entitled needs some further consideration. In Ainsworth v Criminal Justice Commission[359], this Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) held in a case in which neither mandamus nor certiorari could be granted that the applicant had a real interest in obtaining, and was entitled to obtain a declaration that there had been a failure to observe procedural fairness because of the harm caused to his business and commercial reputation. The case also demonstrates the need for flexibility on the part of the courts to give an affirmative remedy where one is deserved, will have utility and may lawfully be given.
[359](1992) 175 CLR 564.
Mr Amann seeks prohibition, certiorari and orders for the delivery up of tapes and transcripts of the examination. Here Mr Amann remains subject to a compulsory order to sign the transcript of his examination. It has not been formally terminated. Accordingly, there would remain something to prohibit but certiorari would if granted prevent any further steps under the order for examination. Mr Gould seeks similar relief.
I would grant certiorari to both prosecutors to quash the orders made by the second respondent in proceedings VG3304 of 1992 on 7 July 1995 ordering the prosecutors to attend before the Federal Court for examination.
But for the matters referred to by Gummow and Hayne JJ in their reasons for judgment[360], I would have declared that the Federal Court had no jurisdiction to make the winding up order of 30 November 1992 and made other orders consequential thereupon. However in the exercise of the Court's discretion and principally because of the likely supervening rights of third parties, such a declaration should not be made in respect of the winding up order itself.
[360]Reasons of Gummow and Hayne JJ at [165].
I would also order that the fourth respondents pay the prosecutors' costs in this Court.
Spinks & Ors v Prentice
On 26 June 1998 the Federal Court made orders pursuant to s 597(9) of the Corporations Law of the Australian Capital Territory for the production of documents by various people, including the applicants. On 29 June 1998, the Federal Court issued summonses pursuant to s 596A or s 596B to various people, including the applicants, requiring them to attend examinations on matters relating to the winding up of a company, White Constructions (ACT) Pty Ltd, incorporated in the Australian Capital Territory. When the summonses were returned, the applicants sought adjournment of the proceedings, and, after notice was given to the Attorneys-General under s 78B of the Judiciary Act, sought to argue on constitutional grounds that the Court had no jurisdiction to issue the summonses.
Branson J who heard the application refused to grant any adjournment and to extend the time in which an application could be made to review the decision to issue the summonses. The Full Court of the Federal Court constituted by Beaumont, Burchett and Lehane JJ dismissed an appeal.
Both in the Federal Court and here the applicants argued that s 51(1) of the Corporations Act 1989 (Cth) is unconstitutional because it purports to confer jurisdiction "with respect to civil matters arising under the Corporations Law of the Australian Capital Territory".
Section 51(1) of the Corporations Act does in terms confer on the Federal Court jurisdiction "with respect to civil matters arising under the Corporations Law of the Capital Territory."
Section 122 of the Constitution provides as follows:
"The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit."
Section 77(i) of the Constitution expressly permits Parliament to make laws "defining the jurisdiction of any federal court other than the High Court".
In Northern Territory v GPAO[361], Gleeson CJ and Gummow J (with whom Hayne J agreed) said this:
"[Section] 76(ii), in conjunction with s 77(i) of the Constitution, operates in accordance with its terms and permits the conferral of jurisdiction on federal courts in matters arising under laws made under s 122 of the Constitution."
[361](1999) 73 ALJR 470 at 486; 161 ALR 318 at 340.
Accordingly, the Federal Court had jurisdiction to make the orders that it did in this case and I agree with the orders of the majority.

Case

Re Wakim; Ex parte McNally

[1999] HCA 27

•

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE WAKIM SECOND RESPONDENT

Ex parte McNALLY & ANOR PROSECUTORS

Re Wakim; Ex parte McNally [1999] HCA 27
17 June 1999
S74/1998

ORDER

Representation:

D F Jackson QC with N Perram for the prosecutors (instructed by Mallesons Stephen Jaques)

No appearance for the first respondent

G A Palmer QC with P J Cook and B Vukadinovic for the second respondent (instructed by Vaughan Barnes)

Interveners:

T I Pauling QC, Solicitor-General for the Northern Territory with D R Jarvis intervening on behalf of the Attorney-General of the Australian Capital Territory (instructed by ACT Government Solicitor)

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

M G Sexton SC, Solicitor-General for the State of New South Wales intervening on behalf of the Attorney-General of the State of New South Wales (instructed by Crown Solicitor for New South Wales)

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

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE WAKIM SECOND RESPONDENT

Ex parte DARVALL PROSECUTOR

Re Wakim; Ex parte Darvall
17 June 1999
S107/1998

ORDER

Application dismissed.

Costs reserved for consideration by a single Justice on application made on not less than seven days' notice.

Representation:

D F Jackson QC with N Perram for the prosecutor (instructed by Moray & Agnew)

No appearance for the first respondent

G A Palmer QC with P J Cook and B Vukadinovic for the second respondent (instructed by Vaughan Barnes)

Interveners:

T I Pauling QC, Solicitor-General for the Northern Territory with D R Jarvis intervening on behalf of the Attorney-General of the Australian Capital Territory (instructed by ACT Government Solicitor)

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

M G Sexton SC, Solicitor-General for the State of New South Wales intervening on behalf of the Attorney-General of the State of New South Wales (instructed by Crown Solicitor for New South Wales)

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

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE BROWN & ORS FOURTH RESPONDENTS

Ex parte AMANN & ANOR PROSECUTORS/APPLICANTS

Re Brown; Ex parte Amann
17 June 1999
S118/1998

ORDER

The first-named applicant's application to extend the time for application for a writ of certiorari to quash the orders of the Federal Court made on 7 July 1995 in proceedings VG3304 of 1992 be allowed.

On the application of the first-named applicant, order absolute in the first instance for a writ of certiorari to quash the orders of the Federal Court made on 7 July 1995 in proceedings VG3304 of 1992.

On the application of the first-named applicant, order absolute in the first instance for a writ of prohibition prohibiting the respondents from taking any further steps in the Federal Court under the order for winding up of Amann Aviation Pty Limited (in liq.).

Otherwise, applications by the first and second-named applicants be dismissed.

Respondents to pay the first-named applicant's costs.

The second-named applicant pay the respondents' costs of the second-named applicant's applications.

Representation:

S D Rares SC with N Perram for the prosecutors/applicants (instructed by Henry Davis York)

No appearance for the first, second and third respondents

No appearance for the third named fourth respondent

A Robertson SC with M A Jones for the first and second named fourth respondents (instructed by Nash O'Neill Tomko)

Interveners:

T I Pauling QC, Solicitor-General for the Northern Territory with D R Jarvis intervening on behalf of the Attorney-General of the Australian Capital Territory (instructed by ACT Government Solicitor)

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

M G Sexton SC, Solicitor-General for the State of New South Wales intervening on behalf of the Attorney-General of the State of New South Wales (instructed by Crown Solicitor for New South Wales)

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

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

SPINKS & ORS APPLICANTS

AND

PRENTICE RESPONDENT

Spinks v Prentice
17 June 1999
S140/1998

ORDER

Special leave to appeal granted.

Appeal treated as instituted and heard instanter, but dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

F M Douglas QC and R W White SC with T D Castle for the applicants (instructed by Mallesons Stephen Jaques)

D E Grieve QC with S D Epstein for the respondent (instructed by Deacons Graham & James)

Interveners:

T I Pauling QC, Solicitor-General for the Northern Territory with D R Jarvis intervening on behalf of the Attorney-General of the Australian Capital Territory (instructed by ACT Government Solicitor)

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

M G Sexton SC, Solicitor-General for the State of New South Wales intervening on behalf of the Attorney-General of the State of New South Wales (instructed by Crown Solicitor for New South Wales)

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

CATCHWORDS

Re Wakim; Ex parte McNally & Anor

Re Wakim; Ex parte Darvall

Re Brown & Ors; Ex parte Amann & Anor

Spinks & Ors v Prentice

High Court – Stare decisis – Whether equally divided previous decision of Court is binding precedent – Whether necessary to reopen or reconsider previous decision.

Corporations – Winding up – Examination orders – Whether Corporations Law purports to confer non-judicial power on federal court.

Words and phrases – "matter" – "accrued jurisdiction" – "justiciable controversy".

GLEESON CJ.Legislation providing for cross-vesting of jurisdiction between federal, State and Territory courts was enacted to take effect in 1988[1]. Cognate legislation, providing specifically for cross-vesting of jurisdiction in relation to matters arising under the Corporations Law, was enacted in 1989 and 1990[2]. In 1995 there came before the Full Court of the Federal Court proceedings which raised questions as to the validity of the legislation. The Full Court upheld the legislation[3]. An appeal in one proceeding came to this Court[4]. The six Justices who sat on the appeal were evenly divided[5]. The appeal was therefore dismissed[6], but the decision does not bind this Court in the present case[7]. The Court now has before it further proceedings in which the validity of the legislation is again challenged.
[1]The Commonwealth legislation is the Jurisdiction of Courts (Cross-vesting) Act 1987. After the Bill had passed through the Houses of Parliament, but before it had been assented to, the Advisory Committee on the Australian Judicial System, in its Report to the Constitutional Commission (1987, at 3.113-3.115), expressed doubts as to the validity of the legislation and drafted a constitutional amendment to support the proposal for cross-vesting. In 1988, in its Final Report (vol 1, pars 6.29-6.38), the Constitutional Commission recommended that the Constitution be amended to permit cross-vesting. However, the legislation was enacted without the support of any constitutional amendment.
[2]The relevant legislation is set out in the reasons for judgment of Gummow and Hayne JJ.
[3]B P Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451.
[4]Gould v Brown (1998) 193 CLR 346.
[5]Brennan CJ, Toohey and Kirby JJ held that the legislation was valid; Gaudron, McHugh and Gummow JJ held that it was invalid.
[6]Judiciary Act 1903 (Cth), s 23(2)(a).
[7]Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336.
The cross-vesting legislation has been commended as an example of co‑operation between the Parliaments of the Federation. Approval of the legislative policy is irrelevant to a judgment as to constitutional validity; just as disapproval of the policy would be irrelevant. It is argued that the legislation is unconstitutional. That argument must succeed or fail on its legal merits. If it is correct, then the legislation is invalid. The Parliaments of the Commonwealth, the States, and the Territories cannot, by co-operation, amend the Constitution. The Constitution, in s 77(iii), provides that the Parliament of the Commonwealth may invest a court of a State with federal jurisdiction. What is presently the subject of challenge is the reverse process. Its convenience has been determined by the Parliaments. The duty of the Court is to determine its legality. The "autochthonous expedient of conferring federal jurisdiction on State courts"[8] is sustained, not by its expediency, but by a specific grant of legislative power. The question is whether the reverse process is effective without such an express grant of power.
[8]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268.
On the matter of the validity of the cross-vesting legislation, and on the additional issues which arise in relation to the other aspects of the proceedings before the Court, I agree with the reasons for judgment of Gummow and Hayne JJ. However, I wish to make particular reference to two earlier decisions of this Court, one of which is relied upon by those who challenge the legislation, and the other of which is relied upon by those who support the legislation.
The primary issue turns upon the meaning and effect of Ch III of the Constitution, which relates to the judicature.
For present purposes, the important provisions of Ch III are ss 71, 75, 76 and 77. Section 71 provides that the judicial power of the Commonwealth shall be vested in this Court, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The Federal Court of Australia is one such federal court created by the Parliament. Section 75 provides that this Court shall have original jurisdiction in certain kinds of matter. Section 76 empowers the Parliament to legislate to confer original jurisdiction on this Court in certain other kinds of matter. Section 77 provides:
" With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
(i)defining the jurisdiction of any federal court other than the High Court;
(ii)defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;
(iii)investing any court of a State with federal jurisdiction."
The laws of the Parliament of the Commonwealth presently in question provide that the Federal Court may exercise jurisdiction conferred on that court by a law of a State. These are said to be laws by which the Parliament "consents" to a federal court being invested with State jurisdiction. They do not refer to any of the matters mentioned in ss 75 and 76. It is acknowledged that there is no provision in Ch III which either adverts to the possibility that a State Parliament may enact legislation conferring jurisdiction on this Court, or another federal court, or empowers the Parliament of the Commonwealth to consent to such a course. It is said, however, that Ch III is only concerned with the judicial power of the Commonwealth, and that what is here in question is State judicial power. The Parliament of a State, so the argument runs, has power to vest jurisdiction to decide matters arising under its laws in courts other than courts of that State, including federal courts. An attempt to exercise such a power may, in the absence of Commonwealth agreement, be frustrated by the operation of s 109 of the Constitution. However, with Commonwealth agreement, there is nothing to prevent the effective vesting, by State legislation, of State judicial power in a federal court[9].
[9]Gould v Brown (1998) 193 CLR 346 at 379-381 per Brennan CJ and Toohey J.
It may be doubted that, when the Federal Court exercises State jurisdiction conferred under the cross-vesting scheme, it is exercising power which is divorced from the judicial power of the Commonwealth. The power to enforce an order of the Federal Court, for example, comes from s 53 of the Federal Court of Australia Act 1976 (Cth). Furthermore, as Gummow J pointed out in Gould v Brown[10], when the legislative basis for appeals within the federal jurisdiction is considered, the assumption that a neat division between the judicial power of the Commonwealth and State judicial power can be maintained is questionable. However, the argument advanced in support of the legislation is challenged on more fundamental grounds.
[10](1998) 193 CLR 346 at 452.
I am unable to accept that the argument summarized above is consistent with In re Judiciary and Navigation Acts[11]. That decision has been followed and applied for almost 80 years, and judicial expressions of discontent with its authority have been rare[12]. It has had a profound influence on the interpretation of Ch III. No one has argued in the present case that it should no longer be followed.
[11](1921) 29 CLR 257.
[12]cf North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 666 per Kirby J.

The case concerned the validity of Pt XII of the Judiciary Act 1903–1920 (Cth) and, in particular, s 88, which purported to enable the executive government of the Commonwealth to refer to the High Court, for authoritative determination, any question of law as to the validity of Commonwealth legislation. The legislation, if valid, would have enabled the Commonwealth government to obtain from this Court a ruling on any question as to the validity of Commonwealth legislation, even though no adversary litigation challenging such validity was on foot. This, some considered, would have been a useful arrangement[13]. However, Pt XII of the Judiciary Act was held to be invalid.
[13]The Supreme Court of Canada was given a comparable jurisdiction in 1875, 1891 and 1906 – see Attorney-General for Ontario v Attorney-General for Canada [1912] AC 571.
The decision did not turn upon a view that the function which the legislation purported to confer on the High Court was not a judicial function[14]. The majority accepted that the making of binding declarations of the kind envisaged was a judicial function. The basis of the decision was that, in the contemplated proceedings, there was no "matter" within the meaning of Ch III (that is to say, no "immediate right, duty or liability to be established by the determination of the Court"[15]). The majority[16] held that, because Ch III only empowered the Parliament to confer original jurisdiction on the High Court in relation to "matters" of the kind specified in ss 75 and 76, and because Ch III operates "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"[17], Parliament could not confer judicial power which did not relate to a "matter".
[14]Jacobs J, in The Commonwealth v Queensland (1975) 134 CLR 298 at 325, said that the law as understood at the time might not have required a conclusion that it was impossible to impose a non-judicial function upon the High Court.
[15]InreJudiciary and Navigation Acts (1921) 29 CLR 257 at 265.
[16]Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ.
[17]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
It is instructive to note the views of Higgins J, in dissent[18]. His Honour said:
"It is said that this Court, as a Court, is forbidden by the Constitution to perform any functions which are not within 'the judicial power of the Commonwealth', and that the function of determining the validity of an Act except between litigating parties is not within that judicial power. I cannot accept either proposition. To say that Blackacre shall be vested in A (and in A only) does not carry as a corollary that Whiteacre shall not be vested in A; to say that the judicial power of the Commonwealth shall be vested in the High Court (and other Federal Courts and such other Courts as Parliament invests with Federal jurisdiction – sec 71 of the Constitution) does not imply that no other jurisdiction, or power, shall be vested in the High Court or in the other Courts."
[18]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 271-272.
The passage expresses the argument that failed. It is very close to the argument in support of the validity of the legislation in the present case.
Underlying the conclusion of the majority was a view as to the separation of powers. In explaining their opinion that a judicial function "is not competent to [the High Court] unless its exercise is an exercise of part of the judicial power of the Commonwealth", their Honours said[19]:
"What, then, are the limits of the judicial power of the Commonwealth? The Constitution of the Commonwealth is based upon a separation of the functions of government, and the powers which it confers are divided into three classes – legislative, executive and judicial … In each case the Constitution first grants the power and then delimits the scope of its operation".
[19]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264.
It was the delimitation that was regarded as crucial to the separation of governmental powers and functions. In that respect, no relevant distinction can be made between ss 75 and 76 on the one hand, and s 77 on the other, or between the High Court and other federal courts.
The essence of the argument in support of the validity of the cross-vesting legislation is that Ch III has nothing to say, either expressly or by implication, concerning judicial power other than the judicial power of the Commonwealth. The corollary is that the delimitation of original jurisdiction, undertaken in Ch III, has no application to the conferring of judicial power upon the federal judicature by State Parliaments, with the consent of the Parliament of the Commonwealth.
On this argument, there would be nothing to prevent a State Parliament enacting legislation of the kind considered in In re Judiciary and Navigation Acts, and, with the consent of the Parliament of the Commonwealth, conferring upon the High Court, or another federal court, jurisdiction to make declarations
as to the validity of State legislation. The possibility is not fanciful. A power of that kind has been accepted to be judicial power. The legislation would not involve an attempt to confer a non-judicial function upon this Court or another federal court. However, such legislation would expose the fragility of the concept of delimitation regarded by the majority in In re Judiciary and Navigation Acts as underpinning the separation of powers.
In 1973, the State of Queensland attempted, by legislation, to confer such jurisdiction on the Judicial Committee of the Privy Council. The legislation was held to be incompatible with Ch III and invalid[20]. Although the case did not involve an attempt to confer State judicial power on a federal court, the State laws about which a declaration could be sought were capable of giving rise to questions and matters of a kind which would also fall within ss 75 and 76 of the Constitution. For example, a Queensland Act might have given rise to a claim for an injunction against an officer of the Commonwealth. Jacobs J said[21]:
"Once it is recognized that the Judicial Committee is a judicial body and that it exercises judicial power and once it is recognized that Ch III of the Constitution is an exhaustive statement of the kind of judicial power which may be conferred or exercised in respect of the subject matters set out in ss 75 and 76 it is of no consequence in the present context that the Judicial Committee may consider and determine 'matters' under s 4 of the 1833 Act which are not 'matters' under ss 75 and 76. The subject matters under those sections of the Constitution may only be considered and determined in exercise of the kind of judicial power envisaged under Ch III of the Constitution."
[20]The Commonwealth v Queensland (1975) 134 CLR 298.
[21]The Commonwealth v Queensland (1975) 134 CLR 298 at 328.
In re Judiciary and Navigation Acts is a substantial obstacle to success of the arguments in support of the cross-vesting legislation.
The other decision which requires particular examination is R v Duncan; Ex parte Australian Iron and Steel Pty Ltd[22]. That case, it is said, recognized a principle concerning federalism which has a bearing on the present issue. The Court was concerned with a scheme of co-operative legislation under which the Parliaments of the Commonwealth and of New South Wales constituted the Coal Industry Tribunal, and conferred upon the Tribunal powers, with the intention that the Tribunal would exercise the totality of the powers so conferred and thus be able more effectively to discharge its functions. There was no doubt as to the capacity of each Parliament to confer upon a tribunal the powers it purported to confer. It was argued unsuccessfully that the Commonwealth Parliament could not create an authority jointly with a State. Gibbs CJ pointed out[23] that the Constitution nowhere forbids the Commonwealth and the States to exercise their respective powers in such a way that each is complementary to the other. Deane J said[24] that there were two related propositions to be derived from the terms of the Constitution and from the nature of the federation it embodies:
"The first is that co-operation between the Parliaments of the Commonwealth and the States is in no way antithetic to the provisions of the Constitution: to the contrary, it is a positive objective of the Constitution. The second is that, 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."
[22](1983) 158 CLR 535.
[23]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 552.
[24]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 589.
Later his Honour observed[25] that it was not suggested in that case that the Commonwealth Constitution contained any relevant express or implied prohibition upon legislative power.
[25]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 591.
There is more than a suggestion of prohibition in the present case. It is one of the central issues. It is the point of the argument based on In re Judiciary and Navigation Acts and R v Kirby; Ex parte Boilermakers' Society of Australia[26]. If there were no such prohibition, and if there were shown to be a constitutional source of power for the Commonwealth legislation which consents to cross‑vesting, then Duncan would provide an answer to an argument that it is impermissible for the Commonwealth and State Parliaments to legislate co‑operatively to vest jurisdiction in the one court. However, it does not provide an answer to the argument that there is a prohibition, and that there is no constitutional source of power for the Commonwealth legislation.
[26](1956) 94 CLR 254.
As to the question of prohibition, if Ch III contains an exhaustive delimitation of the original jurisdiction that may be conferred on a federal court, then the possibility of supplementation of that jurisdiction by co-operative legislation of the kind involved in Duncan is denied. If it does not, then reliance on Duncan is unnecessary. The most that can be said is that, as Duncan shows, federalism and co-operation are not inconsistent, and that is a legitimate consideration to take into account in deciding what to make of Ch III. There are, however, countervailing considerations.
As to the question of the constitutional source of power for the Commonwealth's legislation, reliance is placed upon Deane J's observation, in Duncan[27], that the power of the Commonwealth Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State (s 51(xxxv)) and with respect to matters incidental to the execution of that power (s 51(xxxix)) sufficed to enable the Commonwealth Parliament to legislate to authorize the Governor‑General to enter into the arrangement for the establishment of a tribunal which would be capable of receiving and exercising the particular powers conferred upon it by the Act and the related powers conferred upon it by the concurrent State Act. By parity of reasoning, it is said[28], s 51(xxxix) enables the Parliament to enact laws with respect to all matters that are incidental to the execution of the judicial power vested in federal courts by Ch III, and the consenting legislation answers that description. On this view, s 71 empowers the Parliament to establish a federal court to exercise the judicial power of the Commonwealth, s 77 empowers the Parliament to define the jurisdiction of the court, but only with respect to the matters mentioned in ss 75 and 76, and then the "incidental" power enables the Parliament to legislate to make effective the conferring on such a court of judicial power other than the judicial power of the Commonwealth, which may be related or unrelated to any of the matters referred to in ss 75 and 76.
[27]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 591.
[28]Gould v Brown (1998) 193 CLR 346 at 491 per Kirby J.
What is here argued to be incidental bears little resemblance to what was held in Duncan to be incidental. Conferring, or agreeing to the conferment, upon a federal court, established under the Constitution to exercise the judicial power of the Commonwealth with respect to a limited class of matters, of jurisdiction to exercise the judicial power of the States is not in aid of the execution of the principal power. It is both a substantial addition to the power, and an attempt to circumvent the limitations imposed upon the power by the Constitution.
I agree with the orders proposed by Gummow and Hayne JJ, and with their reasons for those orders.

GAUDRON J. The relevant facts and the issues raised in these matters are set out in the judgment of Gummow and Hayne JJ. In the matters of Re Wakim & Ors; Ex parte McNally & Anor, Re Wakim & Ors; Ex parte Darvall and Re Brown & Ors; Ex parte Amann & Anor, I agree with the orders which their Honours propose and respectfully adopt their reasons.
I also agree with the orders proposed by Gummow and Hayne JJ in Spinks & Ors v Prentice, notwithstanding the conclusion I reached with respect to severability in Gould v Brown[29]. I adhere to the view I expressed in that case, namely, that examination powers cannot validly be conferred on the Federal Court other than in relation to corporations in respect of which that Court has exercised or is exercising jurisdiction to make a winding-up order[30]. However, the question whether the legislation in question in this case can be read down within constitutional limits occurs in a quite different context from that involved in Gould v Brown.
[29](1998) 193 CLR 346 at 409-410.
[30](1998) 193 CLR 346 at 404-405.
In Gould v Brown the question was whether legislation of the States and the Northern Territory could be read down so as to confer jurisdiction on the Federal Court with respect to some only of the civil matters arising under the Corporations Law as enacted in those States and that Territory[31]. However, this case is concerned with the Corporations Act 1989 (Cth) to the extent that it vests jurisdiction in the Federal Court in matters arising under the Corporations Law as enacted for the Australian Capital Territory.
[31](1998) 193 CLR 346 at 405-410.
It is not in issue that the Parliament enacted the Corporations Law for the Australian Capital Territory pursuant to s 122 of the Constitution[32] and it is now settled that Parliament may confer jurisdiction on a federal court with respect to matters arising under a law under s 122[33]. Moreover, it is clear that the Parliament enacted the Corporations Law for the Australian Capital Territory as model legislation to be enacted by each State and the Northern Territory so that there would be uniform laws throughout Australia[34]. It may be taken, in that context, that jurisdiction was vested in the Federal Court with respect to civil matters arising under the Corporations Law of the Australian Capital Territory partly because that Court exercises jurisdiction throughout Australia and is, thus, in a position to play a significant role with respect to the interpretation and application of the Corporations Law. It may also be taken that jurisdiction was conferred on the Federal Court with respect to those matters because that Court is well placed to exercise jurisdiction with respect to corporations which, although incorporated in the Australian Capital Territory, carry on business elsewhere in Australia.
[32]Corporations Act, s 5.
[33]See Northern Territory of Australia v GPAO (1999) 73 ALJR 470; 161 ALR 318.
[34]Heads of Agreement for Future Corporate Regulation, reached at Alice Springs, 29 June 1990, between the Commonwealth, the States and the Northern Territory.
In the circumstances referred to above, the preferable view is that Parliament intended to vest jurisdiction in the Federal Court with respect to civil matters arising under the Corporations Law of the Australian Capital Territory to the full extent that the Constitution permits. It is possible to read down the provisions of the Corporations Law upon which the orders in question in this case are based so that they apply with respect to corporations that have been wound up by the Federal Court or are the subject of winding-up proceedings in that Court. Accordingly, I agree with the orders proposed by Gummow and Hayne JJ.

McHUGH J. In Gould v Brown[35], I held that State Parliaments had no power to vest State judicial power in federal courts created by the Parliament of the Commonwealth and that the Parliament of the Commonwealth had no power to consent to State Parliaments vesting State judicial power in the federal courts. Consequently, in so far as the Corporations Act 1989 (Cth) and the Corporations (New South Wales) Act 1990 (NSW) purported to vest State judicial power in the Federal Court of Australia, they were invalid. My view did not prevail. Because the Court was evenly divided, the appeal against the orders of the Full Court of the Federal Court, upholding the validity of both Acts, failed[36].
[35](1998) 193 CLR 346.
[36]Judiciary Act 1903 (Cth), s 23(2)(a).
The issue which was before the Court in Gould v Brown[37] is now raised again. Involved in the present proceedings is not only the validity of the Corporations Act 1989 and the Corporations (New South Wales) Act 1990 but also the validity of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act 1987 of each of the States. Like the corporations legislation, the cross-vesting legislation purports to vest State judicial power in the federal courts. The issues and the relevant legislative provisions involved in the four proceedings before the Court are set out in the joint judgment of Gummow and Hayne JJ. I need not repeat them.
[37](1998) 193 CLR 346.
Because the Court was equally divided in Gould v Brown[38], the decision in that case creates no "binding authority"[39] in this Court. Having read and listened to the arguments of the parties and the interveners in these proceedings, I am just as convinced now as I was when Gould was decided that, consistently with the Constitution, the Corporations Act 1989 and the Corporations (New South Wales) Act 1990 are invalid in so far as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power. For the reasons that I gave in Gould, I am also convinced that the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act 1987 of each of the States are also invalid in so far as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power.
[38](1998) 193 CLR 346 at 393 per Brennan CJ and Toohey J, 411 per Gaudron J, 432 per McHugh J, 463-465 per Gummow J, 501 per Kirby J.
[39]Tasmania v Victoria (1935) 52 CLR 157 at 183 per Dixon J.
It would be very convenient and usually less expensive and time-consuming for litigants in the federal courts if those courts could deal with all litigious issues arising between the litigants, irrespective of whether those issues have any connection with federal law. From the litigant's point of view that is saying a great deal. But unfortunately, from a constitutional point of view, it says nothing. The deficiencies and complexities of federal jurisdiction have been pointed out many times before, never more powerfully than by Mr Owen Dixon KC in giving evidence before the Royal Commission on the Constitution in 1928[40]. The inability of the federal courts to exercise cross-vested State jurisdiction in the manner provided for under the present legislation simply shows another deficiency in the system. I do not think that it can be seriously doubted that, if Australia is to have a system of federal courts, the public interest requires that these courts should have jurisdiction to deal with all existing controversies between litigants in those courts.
[40]Commonwealth of Australia, Report of the Royal Commission on the Constitution (1929) at 99-110.
The function of the judiciary in constitutional cases

However, the judiciary has no power to amend or modernise the Constitution to give effect to what the judges think is in the public interest. The function of the judiciary, including the function of this Court, is to give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention. That necessarily means that decisions, taken almost a century ago by people long dead, bind the people of Australia today even in cases where most people agree that those decisions are out of touch with the present needs of Australian society. Judge Easterbrook has pointed out that a written constitution "is designed to be an anchor in the past. It creates rules that bind until a supermajority of the living changes them."[41] In the same article, he pointed out[42] that a person cannot logically deny the power of the past to rule today's affairs and at the same time assert that Art III of the United States Constitution (the equivalent of our Chapter III) still binds. Judicial review of the constitutional validity of legislation "depends on the belief that decisions taken long ago"[43] still bind today's society.
[41]Easterbrook, "Abstraction and Authority", (1992) 59 University of Chicago Law Review 349 at 363.
[42]Easterbrook, "Abstraction and Authority", (1992) 59 University of Chicago Law Review 349 at 375.
[43]Easterbrook, "Abstraction and Authority", (1992) 59 University of Chicago Law Review 349 at 375.
The Constitution, although enacted in 1900, is binding today by reason of the tacit assent of the people of Australia to its continued operation. Few, if any, constitutional lawyers now accept Thomas Jefferson's claim that a Constitution enacted by one generation cannot bind subsequent generations. Jefferson first put forward this claim in a letter to James Madison which was written in Paris in September 1789. The claim was based on Jefferson's famous aphorism "that the earth belongs in usufruct to the living". Jefferson wrote[44]:
"The question Whether one generation of men has a right to bind another, seems never to have been started [stated?] either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; and that no such obligation can be so transmitted I think very capable of proof.
I set out on this ground, which I suppose to be self evident, 'that the earth belongs in usufruct to the living': that the dead have neither powers nor rights over it." (emphasis in original)
[44]Letter to Madison dated 6 September 1789, The Republic of Letters (Morton Smith, ed), (1995), vol 1 at 631-632.
Madison rejected Jefferson's claim although, as Adrienne Koch has pointed out[45], he agreed in theory with Jefferson's fundamental principles. However, he attacked "on the grounds of practicability virtually every specific proposal" contained in Jefferson's letter[46]. Madison said[47]:
"I find no releif [sic] from these consequences, but in the received doctrine that a tacit assent may be given to established Constitutions and laws, and that this assent may be inferred, where no positive dissent appears. ...
May it not be questioned whether it be possible to exclude wholly the idea of tacit assent, without subverting the foundation of civil Society?"
[45]Koch, Jefferson and Madison: The Great Collaboration (1964) at 70.
[46]Koch, Jefferson and Madison: The Great Collaboration (1964) at 70.
[47]Letter to Jefferson dated 4 February 1790, The Republic of Letters (Morton Smith, ed), (1995), vol 1 at 652.
It is safe to say that Madison's view has prevailed in the United States, Canada and Australia. Our Constitution continues to bind "the courts, judges, and people of every State and of every part of the Commonwealth"[48]. It does so although its terms and structure express the ideas and philosophies of men long dead and although it was enacted by a Parliament that no longer claims to have any right to legislate for the Australian people.
[48]Covering Clause 5.
Change to the terms and structure of the Constitution can be carried out only with the approval of the people in accordance with the procedures laid down in s 128 of the Constitution. Until change is made, the function of the judiciary is to give effect to the present terms and structure of the Constitution. We must, of course, never forget Chief Justice Marshall's words "that it is a constitution we are expounding."[49] As the Chief Justice said in that case in speaking of incidental powers[50], "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." In the present case, however, I think that the Constitution does prohibit the States from vesting State jurisdiction in federal courts and prohibits the Commonwealth consenting to the vesting of State jurisdiction in those courts.
[49]McCulloch v Maryland 17 US 159 (1819) at 200 (emphasis in original).
[50]McCulloch v Maryland 17 US 159 (1819) at 206.
Constitutional interpretation
The starting point for a principled interpretation of the Constitution is the search for the intention of its makers[51]. That does not mean a search for their subjective beliefs, hopes or expectations. Constitutional interpretation is not a search for the mental states of those who made, or for that matter approved or enacted, the Constitution. The intention of its makers can only be deduced from the words that they used in the historical context in which they used them[52]. In a paper on constitutional interpretation, presented at Fordham University in 1996, Professor Ronald Dworkin argued, correctly in my opinion[53]:
"We must begin, in my view, by asking what – on the best evidence available – the authors of the text in question intended to say. That is an exercise in what I have called constructive interpretation[54]. It does not mean peeking inside the skulls of people dead for centuries. It means trying to make the best sense we can of an historical event – someone, or a social group with particular responsibilities, speaking or writing in a particular way on a particular occasion."
[51]cf Story, Commentaries on the Constitution of the United States, 5th ed (1891), vol 1 at 305, par 400.
[52]McGinty v Western Australia (1996) 186 CLR 140 at 230.
[53]Dworkin, "The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve", (1997) 65 Fordham Law Review 1249 at 1252.
[54]See Dworkin, Law's Empire, (1986), Ch 9.
The application which this Court has given to some words and phrases of the Constitution would almost certainly have surprised most of those who participated in the making of the Constitution. Most of them could not have foreseen the extent to which the application of those words and phrases would enable the Commonwealth to dominate the federation and reduce the power of the States to control their domestic affairs. But that does not mean that this Court's interpretation of our Constitution has lacked fidelity to the intentions of those who made the Constitution.
Where the interpretation of individual words or phrases of the Constitution is in issue, the current doctrine of the Court draws a distinction between connotation and denotation or, in other words, between meaning and application. Thus, in Ex parte Professional Engineers' Association[55] Windeyer J said:
"We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes."
[55](1959) 107 CLR 208 at 267.
Philosophers are now said to regard the distinction between connotation and denotation as outdated[56]. And in R v Federal Court of Australia; Ex parte WA National Football League[57], Mason J said that "[t]he distinction between meaning and denotation is not without its difficulties." But whether criticism of the distinction is or is not valid should not be seen as decisive. What is decisive is that, with perhaps only two exceptions[58], the Court has never hesitated to apply particular words and phrases to facts and circumstances that were or may have been outside the contemplation of the makers of the Constitution. That is because, with the striking exception of s 92 – which has an historical meaning – the words of the Constitution, for the most part, describe concepts and purposes that are stated at a sufficiently high level of abstraction to enable events and matters falling within the current understanding of those concepts and purposes to be taken into account. In the words of an earlier work of Professor Dworkin[59], the Constitution draws a distinction between concepts and conceptions. That being so, once we have identified the concepts, express and implied, that the makers of our Constitution intended to apply, we can give effect to the present day conceptions of those concepts.
[56]Zines, The High Court and the Constitution, 3rd ed (1992) at 16.
[57](1979) 143 CLR 190 at 234.
[58]Attorney-General for NSW v Brewery Employés Union of NSW (1908) 6 CLR 469; King v Jones (1972) 128 CLR 221.
[59]Dworkin, Taking Rights Seriously, (1977) at 134.
Indeed, many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered. Examples can be found in the powers conferred on the Parliament of the Commonwealth to make laws with respect to "trade and commerce with other countries, and among the States"[60], "trading or financial corporations formed within the limits of the Commonwealth"[61], "external affairs"[62] and "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State"[63]. In these and other cases, the test is simply: what do these words mean to us as late 20th century Australians? Such an approach accords with the recognition of Isaacs J in The Commonwealth v Kreglinger & Fernau Ltd and Bardsley[64] that our Constitution was "made, not for a single occasion, but for the continued life and progress of the community".
[60]Constitution, s 51(i).
[61]Constitution, s 51(xx).
[62]Constitution, s 51(xxix).
[63]Constitution, s 51(xxxv).
[64](1926) 37 CLR 393 at 413.
The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above. Thus, in 1901 "marriage" was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably "marriage" now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.
But even if we continue to hold, as Windeyer J asserted in Ex parte Professional Engineers' Association[65], that the meanings of the words in the Constitution do not change as language changes, the meanings that we now place on the Constitution may not entirely coincide with the meanings placed on it by those who drafted, approved or enacted that document. That is because a Constitution contains implications, inferences and propositions as well as words, phrases and clauses. Experience derived from the events that have occurred since its enactment may enable us to see more in the combination of particular words, phrases or clauses or in the document as a whole than would have occurred to those who participated in the making of the Constitution[66]. Thus we now see, although it was not seen in 1901, that freedom of communication on matters of government and politics is an indispensable incident of the system of government created by the Constitution and that the law of defamation must not be inconsistent with that freedom[67]. Similarly, we now see, although it was probably not seen in 1901, that "industrial disputes" can be manifested by unions serving logs of claim on employers who reject them[68].
[65](1959) 107 CLR 208 at 267.
[66]Victoria v The Commonwealth (1971) 122 CLR 353 at 396; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 197.
[67]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
[68]Burwood Cinema Ltd v Australian Theatrical and Amusement Employees' Association (1925) 35 CLR 528.
Furthermore, the indeterminate nature of the words "with respect to" in ss 51 and 52 may result in subjects now falling within the scope of the Commonwealth power although most people in 1901 would have denied that the Commonwealth had power in respect of such subjects. For example, by reason of the present connection of the legal profession with almost every aspect of trade and commerce, taxation, trading and financial corporations, banking, insurance, copyrights, patents, bankruptcy, insolvency and matrimonial causes, the Parliament of the Commonwealth may now have regulatory powers over the profession that would have been regarded as unthinkable in 1901.
In the present case, however, no current conceptions of the concepts of the Constitution and no propositions, inferences or implications that can be drawn from the Constitution support the cross-vesting legislation. Not only does the Constitution contain no express powers supporting the legislation, it contains negative implications prohibiting such legislation.
When the Constitution is read as a whole and in the light of its judicial history, there is in my opinion no principled basis upon which the present legislation can be upheld. Our duty is to give effect to the principles of the Constitution even when it is inconvenient to do so. In Professor Dworkin's words[69]:
"Lawyers and judges faced with a contemporary constitutional issue must try to construct a coherent, principled, and persuasive interpretation of the text of particular clauses, the structure of the Constitution as a whole, and our history under the Constitution – an interpretation that both unifies these distinct sources, so far as this is possible, and directs future adjudication. They must seek, that is, constitutional integrity." (emphasis in original)
[69]Dworkin, "The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve", (1997) 65 Fordham Law Review 1249 at 1249-1250.
The cross-vesting legislation is invalid
My reasons for reaching the conclusion that the Corporations Act 1989 and the Corporations (New South Wales) Act 1990 are invalid in so far as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power can be stated fairly shortly. They are set out with more detail in my judgment in Gould v Brown[70]. The reasons that I gave in Gould also lead to the conclusion that the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act 1987 of each of the States are also invalid in so far as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power.
[70](1998) 193 CLR 346 at 411-432.
Section 71, which is in Ch III of the Constitution, gives the Parliament of the Commonwealth the power to create federal courts to exercise the judicial power of the Commonwealth[71]. But as Dixon CJ, McTiernan and Kitto JJ pointed out in Cockle v Isaksen[72], "the jurisdiction which a federal court so created may exercise cannot come from s 71 alone. It must be conferred and defined by the exercise of further legislative power." Sections 75, 76 and 77 of Ch III of the Constitution give the Parliament that legislative power by empowering it to confer jurisdiction on federal courts in respect of the "matters" specified in ss 75 and 76. State jurisdiction or State judicial power is not one of those "matters". If a federal court, or for that matter a State court, is invested with jurisdiction to determine a matter under ss 75 and 76, it is exercising federal jurisdiction even when State law must be applied in the proceedings. If State law is determinative in a legal proceeding but there is no "matter" within the meaning of ss 75 and 76, the court determining the rights and liabilities of the parties is exercising State judicial power and its authority to decide those rights and liabilities is an exercise of State jurisdiction.
[71]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 289; Cockle v Isaksen (1957) 99 CLR 155 at 162-163.
[72](1957) 99 CLR 155 at 162-163.
Leaving aside the appellate jurisdiction of this Court conferred by s 73 of the Constitution, the exercise of the judicial power of the Commonwealth is confined to the matters specified in ss 75 and 76 of the Constitution. For nearly 80 years, the accepted doctrine of this Court has been that the "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."[73] It follows, and it is also established doctrine, that the power conferred by s 51(xxxix) to make laws with respect to "matters incidental to the execution of any power vested by this Constitution ... in the Federal Judicature" does not authorise the vesting of jurisdiction in federal courts[74]. Consequently, the Parliament of the Commonwealth can only invest federal courts with jurisdiction to decide the "matters" specified in ss 75 and 76 of Ch III of the Constitution.
[73]Inre Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
[74]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 477 per Barwick CJ, 494 per Gibbs J, 534-535 per Aickin J.
I did not understand any of the above propositions to be challenged in Gould v Brown[75] or in the present proceedings. That being so, it is clear that the Parliament of the Commonwealth cannot give a federal court jurisdiction to exercise State judicial power. Again, I did not understand this proposition to be challenged in the present proceedings.
[75](1998) 193 CLR 346.
How then can a State Parliament invest a federal court with a jurisdiction which the Parliament of the Commonwealth, which has created the court, cannot invest in that court? Co-operative federalism is the chief answer given by the parties and the interveners supporting the validity of the legislation. But co‑operative federalism is not a constitutional term. It is a political slogan, not a criterion of constitutional validity or power. It records a result reached as the result of a State and the Commonwealth legislating within the powers conferred on them by the Constitution. Behind its invocation in the present cases lies a good deal of loose thinking.

Again, however, we do not think it necessary to decide these questions. In so far as Mr Gould seeks certiorari, his applications are out of time[187] and we consider that no reason is shown to extend the time in his case. He has litigated the issues that he seeks to raise by his applications once before, and he lost. If, because of that procedural history, he is estopped, no question of exercising a discretion to extend time arises. If he is not estopped, why should he now be given a procedural indulgence to permit him to reagitate exactly the same issues as he raised in his earlier proceeding and to do so by instituting a different proceeding? His applications for certiorari should be dismissed.
[187]Order 55 r 17(1).
In so far as Mr Gould seeks prohibition to prevent further steps being taken under the winding up, there is no point in granting relief on his application if that relief is granted to Mr Amann. And if that relief should not be allowed to Mr Amann, Mr Gould can be in no better position.
Mr Amann's applications for certiorari to quash are also out of time. But because he was not a party to the earlier litigation, he is not affected by the same considerations that touch Mr Gould's application for extension of time. If the time for making Mr Amann's applications for certiorari is not extended, the orders which it is sought to impugn will stand. But if prohibition goes to prohibit further steps under one of those orders - the order for winding up - a curious result would ensue: an order that the company be wound up by the court would stand, but no step could be taken in the Federal Court to give further effect to it. In our view, prohibition should issue to prohibit further steps in the Federal Court under the order for winding up. It was an order made without jurisdiction and further effect should not now be given to it by that Court. Nevertheless, the order for winding up should not be quashed.
It is more than six years since the winding up order was made. During that time, Mr Brown has acted as liquidator and has incurred expenses in the winding up, including, presumably, costs and expenses associated with this litigation. Of more significance, however, is the consideration that third parties may well have acquired rights that would be affected if the winding up order were now to be quashed. It not having been shown that third parties will not be adversely affected if the winding up order were to be quashed, the discretion to extend the time for applying for certiorari to quash the winding up order should be refused.
Because nothing remains to be done under the order for examination, there is no purpose in granting prohibition in respect of that order and we would not do so whether on the application of Mr Amann or Mr Gould[188]. Other considerations arise in connection with the application for certiorari and the ancillary orders that we have described earlier. We deal first with the application for ancillary orders: to deliver up for destruction tapes, transcripts and any other note or record of the examination.
[188]R v Hibble; Ex parte Broken Hill Proprietary Co Ltd (1920) 28 CLR 456.
Whether any use may properly be made of information obtained, or answers given, in the course of the examinations that were conducted pursuant to orders made without jurisdiction may depend upon what use is intended and the circumstances of that use. It is neither possible nor desirable to attempt to give some general answer to the question. And yet that is the premise from which the application for delivery up for destruction proceeds: that there could in no circumstance be any legitimate use of the material obtained. We would refuse the application for these orders. We would, however, grant certiorari to quash the order for examination. Because that order can be made on the application of Mr Amann, we need not consider Mr Gould's position in any detail. It is enough to say that, the issues having been litigated by Mr Gould previously, we would as a matter of discretion, if not preclusion, dismiss his application.
Accordingly, on the application of Mr Amann there should be an order extending the time for application for certiorari to quash the order for examination and an order absolute in the first instance for certiorari to quash it. The respondents should pay Mr Amann's costs. Mr Gould's applications should be dismissed with costs.
Spinks & Ors v Prentice
This matter, too, concerns orders for examination made under a Corporations Law, in this case, the Corporations Law of the Capital Territory. On 26 June 1998, the Federal Court ordered pursuant to s 597(9) of the Corporations Law of the Capital Territory that some of those who are applicants in this Court produce documents. On 29 June 1998, summonses for examination were issued by the Federal Court to the other applicants in this Court requiring them to attend before the Federal Court for examination on matters relating to the promotion, formation, management, administration or winding up of White ACT. That company (an ACT company) had been ordered by the Federal Court to be wound up. Those summonses recorded that they were issued pursuant to s 596B of the Corporations Law of the Capital Territory but the judgments below suggest that it may be that reliance was also had on s 596A.
On the return of the summonses for examination, the applicants sought an adjournment of proceedings so that notice might be given to Attorneys‑General under s 78B of the Judiciary Act and that thereafter they might argue (as part of an application to review the decision to issue the summonses) that the Court had no jurisdiction to issue the summonses. The primary judge (Branson J) refused to adjourn the proceedings and refused to extend the time within which application might be made to review the decision to issue the summonses. From these orders the applicants sought leave to appeal to the Full Court of the Federal Court. That Court (Beaumont, Burchett and Lehane JJ) granted leave to appeal but dismissed the appeal. It held that s 51(1) of the Commonwealth Corporations Act validly conferred jurisdiction on the Federal Court with respect to civil matters arising under the Corporations Law of the Capital Territory and that the Federal Court has power to make orders pursuant to ss 596B and 597(9) where there has been a winding up.
The applicants seek special leave to appeal from the orders of the Full Court of the Federal Court.
Section 51(1) of the Commonwealth Corporations Act is set out earlier in these reasons. By that sub‑section jurisdiction is conferred on the Federal Court "with respect to civil matters arising under the Corporations Law of the Capital Territory". The Parliament's power to make the Corporations Law of the Capital Territory may be founded in part in s 51(xx) and perhaps other powers as well, but on any view it may be supported as a law for the government of a Territory made under s 122. For present purposes, however, it is convenient to assume that s 122 is the sole source of power to make the Corporations Law of the Capital Territory. On that assumption, is s 51(1) a valid conferral of jurisdiction on the Federal Court? In particular, is it a law defining the jurisdiction of a federal court other than the High Court[189] with respect to a matter arising under a law made by the Parliament[190]? But for the course of decisions in this Court touching the relationship between Ch III and s 122 it could not be suggested that the conferring of jurisdiction on the Federal Court in this case was not valid. But for what is said in some of those decisions, there seems no basis for reading the words "any laws made by the Parliament", when used in s 76(ii), as excluding laws made by the Parliament that find their constitutional support wholly or partly in s 122.
[189]Constitution, s 77(i).
[190]Constitution, s 76(ii).
It has rightly been said of the relationship between s 122 and Ch III that[191]:
"The baroque complexities and many uncertainties associated with courts and jurisdiction in the Territories have come about partly as a result of conflicting theories and partly by a desire of the judges not to disturb earlier decisions."
Many (if not most) of those difficulties can be traced to R v Bernasconi[192] in which it was held that the exercise of Commonwealth legislative power under s 122 was not restricted by s 80 and that the trial of a person in a Territory on indictment for an offence against a law of the Commonwealth need not be by jury. Of particular difficulty is the broad conclusion of Griffith CJ[193] that "Chapter III is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories". As the majority said in Boilermakers[194]:
"It would have been simple enough to follow the words of s 122 and of ss 71, 73 and 76(ii) and to hold that the courts and laws of a Territory were federal courts and laws made by the Parliament. As s 80 has been interpreted there is no difficulty in avoiding trial by jury where it does apply and otherwise it would only be necessary to confer upon judges of courts of Territories the tenure required by s 72. But an entirely different interpretation has been adopted, one which brings its own difficulties …"
Not least of the difficulties presented by Bernasconi and the later decision in Porter v The King; Ex parte Yee[195] is to reconcile what was held there with what was held in In re Judiciary and Navigation Acts. The majority in Boilermakers saw the reconciliation as depending upon the view adopted by the majority in Porter "that the exclusive or exhaustive character of the provisions of that chapter [Ch III] describing the judicature and its functions has reference only to the federal system of which the Territories do not form a part"[196].
[191]Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978) at 172.
[192](1915) 19 CLR 629.
[193](1915) 19 CLR 629 at 635.
[194](1956) 94 CLR 254 at 290 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.
[195](1926) 37 CLR 432.
[196]Boilermakers (1956) 94 CLR 254 at 290 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.
As Cowen and Zines say[197]:
"The general approach in R v Bernasconi, with its emphasis on the separation of the Territories from the Commonwealth and of sec 122 from the rest of the Constitution, is fundamentally opposed to the approach of Lamshed v Lake[198], which attacked this theory and underlined the fact that there is but one Commonwealth and that sec 122 was meaningless unless read with other provisions of the Constitution."
But Bernasconi has stood for many years. No application was made in this matter to reopen it and the correctness of the actual decision in the case or its continued application do not now arise. Rather argument focused on other decisions of the Court, notably Porter[199], Federal Capital Commission v Laristan Building and Investment Co Pty Ltd[200], Spratt v Hermes[201] and Capital TV and Appliances Pty Ltd v Falconer[202]. In addition, although not available at the time of argument, reference must now be made to the recent decision of the Court in Northern Territory of Australia v GPAO[203].
[197]Federal Jurisdiction in Australia, 2nd ed (1978) at 172.
[198](1958) 99 CLR 132.
[199](1926) 37 CLR 432.
[200](1929) 42 CLR 582.
[201](1965) 114 CLR 226.
[202](1971) 125 CLR 591.
[203](1999) 73 ALJR 470; 161 ALR 318.
Spratt v Hermes and Capital TV both concerned courts created by the Parliament that had jurisdiction only in a Territory. Porter concerned the jurisdiction of this Court on appeal from the Supreme Court of the Northern Territory, Laristan concerned the original jurisdiction of this Court in relation to matters arising in the seat of government. Only GPAO addresses directly the question presented by a law purporting to confer jurisdiction on a court created by the Parliament (in that case the Family Court) that is a court having jurisdiction throughout Australia. Thus, only GPAO deals directly with the issue that now arises in this case and it determines its outcome. Section 51(1) validly confers jurisdiction on the Federal Court with respect to civil matters arising under the Corporations Law of the Capital Territory.
The applicants contended that the Corporations Law, including Pt 5.9, purported to confer non‑judicial as well as judicial power on the Federal Court and was, for that reason, invalid so far as the law purported to confer non‑judicial power. Particular reference was made in this respect to s 447A[204]. It was, however, not contended (whether in this Court or in the Full Federal Court) that the power to order the examination of witnesses and to produce documents for the purposes of a winding up and to supervise the conduct of the examination was otherwise than the exercise of a function incidental to the exercise of judicial power. And it is this power to order examinations and produce documents that is now in issue. It is therefore not appropriate to express any view on the validity of conferring jurisdiction on the Federal Court to make orders under s 447A or Pt 5.9 of the Corporations Law except the provisions that are immediately in question. To do so would require consideration of the proper construction of the provisions in question and that can be done satisfactorily only in light of particular facts and circumstances. It was not suggested that, if (as the applicants asserted) some provisions of Pt 5.9 may be open to attack, the provisions that founded the orders now in question could not be read down or severed.
[204]Section 447A provides:
"(1)The Court may make such order as it thinks appropriate about how this Part is to operate in relation to a particular company.
(2)For example, if the Court is satisfied that the administration of a company should end:
(a) because the company is solvent; or
(b)because provisions of this Part are being abused; or
(c)for some other reason;
the Court may order under subsection (1) that the administration is to end.
(3)An order may be made subject to conditions.
(4) An order may be made on the application of:
(a)the company; or
(b)a creditor of the company; or
(c)in the case of a company under administration - the administrator of the company; or
(d)in the case of a company that has executed a deed of company arrangement - the deed's administrator; or
(e)the Commission; or
(f)any other interested person."
The Full Court was right to dismiss the appeal to that Court. Special leave to appeal should be granted and the appeal treated as instituted and heard instanter but the appeal should be dismissed with costs.

KIRBY J. This Court's decision in Gould v Brown[205] was published in February 1998. A challenge to the constitutional validity of cross-vesting legislation was thereby dismissed[206]. The unanimous decision of the judges of the Federal Court of Australia, upholding the validity of the legislation, was not disturbed[207]. Yet within a matter of months fresh challenges to the constitutionality of the legislation were commenced. Within less than a year this Court was hearing again arguments, most of which had been advanced unsuccessfully in Gould[208].
[205](1998) 193 CLR 346.
[206]The legislation concerned in Gould was the Corporations Act 1989 (Cth), s 56 and the Corporations (New South Wales) Act 1990, s 42 and its Victorian equivalent. The provisions of the general cross-vesting legislation are not relevantly different. The terms of the legislation are set out in the reasons of Gummow and Hayne JJ.
[207]BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451 per Black CJ, Lockhart and Lindgren JJ.
[208]Argument in these proceedings commenced on 1 December 1998.
Speedy change of constitutional decisions
What has changed? The Australian Constitution stands unaltered, resistant to formal change. No relevant change has been proposed to it. The State constitutions and the laws affording self-government to the mainland Territories[209] are unchanged. The cross-vesting legislation, both in its general manifestation[210] and in the special provisions to support the Corporations Law[211], remains the same. The principal arguments on each side are substantially unaltered. Few, if any, brilliant flashes of insight were offered to shine new light into dark corners of the Constitution previously overlooked. Indeed, one of the litigants in the present proceedings is Mr Gould himself. He seeks to have this Court revisit the disposition of the earlier proceedings affecting him. The world could see the order of this Court disposing of his previous challenge. But Mr Gould joined with other litigants to claim a second opportunity of persuasion.
[209]Northern Territory (Self-Government) Act 1978 (Cth): See Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513; Northern Territory v GPAO (1999) 73 ALJR 470; 161 ALR 318. Australian Capital Territory (Self-Government) Act 1988 (Cth): See Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248.
[210]Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 9; Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 4.
[211]Corporations Act 1989 (Cth), s 56; Corporations (New South Wales) Act 1990, s 42.
Only the membership of the Court has changed in the intervening year. Brennan CJ and Toohey J, who favoured rejection of the earlier challenge, retired and were replaced. A new Full Court has been assembled. It is an old and wise maxim of the law, which courts usually strive to observe, "to keep the scale of justice steady, and not liable to waver with every new judge's opinion"[212]. On the face of things there could hardly be a plainer violation of that maxim. Yet each Justice is obliged to express his or her opinion on the meaning of the Constitution, guided by the past authority of the Court. Each Justice reads the unchanging text with the eyes of his or her generation and experience, sometimes perceiving new requirements or opportunities which predecessors did not see[213].
[212]Craies on Statute Law, 7th ed (1971), cited in Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 29.
[213]Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 267-268; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 199; McGinty v Western Australia (1996) 186 CLR 140 at 230.
Gould had the misfortune to be decided by a Court of six Justices[214]. The order disposing of Mr Gould's first challenge was the constitutional consequence of the failure of the challenger in that case to muster a majority in this Court. Only such a majority would have afforded this Court the authority to set aside the orders of the Federal Court from which the appeal had been brought and to substitute different orders of its own. So much flows implicitly from the Constitution[215]. The provisions of the Judiciary Act 1903 (Cth)[216] do no more than to recognise this fact. They provide machinery for giving effect to its consequence.
[214]It was argued before a Court in which Dawson J did not participate because of his pending retirement.
[215]Constitution, s 73; cf Williams v The King [No 2] (1934) 50 CLR 551 at 567.
[216]s 23(2)(a). See Tasmania v Victoria (1935) 52 CLR 157 at 183-184 per Dixon J; cf Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 387 per Murphy J.
In Gould there was, as there always must be in our system of law, a disposition of contested proceedings and a judicial order signifying that disposition. Such considerations render doubtful the proposition that, unlike every other case, proceedings decided by this Court on the basis of an order resulting from an even division in the opinions of the Justices, create no binding principle of law. The order itself does not provide the precedent. But every such judicial order must be supported by legal reasoning. It is that reasoning which sustains the order and the legal principle derived from the decision. Only this explains why the principle of the case binds other Australian courts. The logic of this conclusion, which the Commonwealth urged, seems compelling[217].
[217]Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 355 per Gibbs J, 369-370 per Mason J.

It is fruitless to pursue this debate. All other members of the Court are minded to address the substantive constitutional issues. Gould is swept aside as an untroubling obstacle on the path to the attainment of the Court's present conclusions. I will adopt the same approach. But the outcome demonstrates, with a starkness that I cannot remember in any previous decision of this Court, how an "accident of the Court's constitution"[218] can profoundly change, in a very short interval, the outcome of an important constitutional controversy. That controversy is significant to the present parties. But it is also one of great importance for the nine governments and Parliaments of the Australian federation. Their collective voice was heard in this Court, in unique harmony, to urge that the constitutional status quo, achieved after the Court's earlier decision, be maintained.
[218]McKinney v The Queen (1991) 171 CLR 468 at 482.
The foregoing considerations afford a reason for very close scrutiny of the arguments which lead a new majority to orders that will have the consequence of invalidating efficient legislation of great benefit to litigants throughout Australia and to the administration of justice. The rare (if not unique) governmental and legislative unity on the issue over an extended time is an additional reason for hesitating before adopting a view of the Constitution which will stamp on it a construction that will destroy the legislation.
Sometimes the "terms and structure of the Constitution"[219] require an outcome which is unwelcome to governments and Parliaments. Such outcomes may be criticised at the time as based upon an unduly rigid view of the Constitution, only to be vindicated later[220]. Sometimes the suggested rigidity continues to occasion criticism, including from within the Court itself[221]. But because of the oft-demonstrated difficulties of securing formal amendment to the Constitution, and the consequent necessity of adapting its text to rapidly changing national and international circumstances, it is important to approach its meaning with a full appreciation of its function as an enduring instrument of democratic and effective government. The Constitution envisages that the constituent parts of the Commonwealth will operate in general harmony with each other[222]. That is the starting point for a correct elucidation of the meaning of particular provisions.
[219]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567.
[220]Bank of NSW v The Commonwealth (1948) 76 CLR 1 and Australian Communist Party v The Commonwealth (1951) 83 CLR 1 may be cases in point.
[221]See eg R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254. The principle there stated has been criticised: See R v Joske; Ex parte Australian Building Construction Employees & Builders' Labourers' Federation (1974) 130 CLR 87 at 90, 102.
[222]See eg R v Humby; Ex parte Rooney (1973) 129 CLR 231, where Gibbs J stated at 240: "the Constitution was certainly not intended to inhibit co-operation between the Commonwealth and the States".
In my respectful view, the point which distinguishes the competing opinions expressed in Gould (now reflected in these proceedings) concerns a conception of the Constitution and of its capacity to adapt to changing times, with needs vastly different from those which existed when the text was written. I differ from the view that the function of the Court in constitutional interpretation is to "give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention."[223] Once the makers' draft was settled it was submitted to the vote of the electors of Australia. Approved and enacted, it took upon itself its own existence and character as a constitutional charter. As Holmes J remarked in Missouri v Holland[224]:
"[The Constitution] called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters."
The makers did not intend, nor did they have the power to require, that their wishes and expectations should control us who now live under its protection. The Constitution is read by today's Australians to meet, so far as its text allows, their contemporary governmental needs[225].
[223]McHugh J's reasons at [35].
[224]252 US 416 at 433 (1920), cited in Spratt v Hermes (1965) 114 CLR 226 at 272 per Windeyer J.
[225]See Spratt v Hermes (1965) 114 CLR 226 at 272 per Windeyer J.
The Constitution, and in particular Ch III, does not impose Laocoönian constraints on this Court. The proper approach to Ch III, applicable to these proceedings, is that recently stated by Gleeson CJ and McHugh J in Abebe v The Commonwealth[226]. Rigid and impractical outcomes are justified only by "the clearest constitutional language" which "compel them". As their Honours concluded in that case, so do I here. "Nothing in the language of Ch III forces such limited and rigid choices on the parliament."[227] The cross-vesting legislation, in both of its manifestations, is constitutionally valid.
[226](1999) 73 ALJR 584 at 595, par [44]; 162 ALR 1 at 15.
[227](1999) 73 ALJR 584 at 595, par [44]; 162 ALR 1 at 15.
The issues, approach and constitutional cooperation
The facts, the issues and the legislation relevant to the proceedings before the Court are set out in the reasons of Gummow and Hayne JJ. I do not repeat them. In disposing of the substance of the three challenges, it would be possible, I suppose, to content myself with a reference to my reasoning in Gould[228]; for my opinion has not changed. However, in deference to the submissions of the parties, the importance of the matters and the desirability of ensuring that a contrary opinion is recorded in the report of these cases, when Gould is consigned to the annals of legal history, I will repeat some of the main considerations which explain my dissent.
[228](1998) 193 CLR 346 at 465-501.
There is no express prohibition of cross-vesting of federal, State and Territory jurisdiction in the Australian Constitution. On the contrary, in so far as the Constitution makes any reference to the subject it does so indirectly and only partially. It provides, in terms, for the making of laws by the federal Parliament "investing any court of a State with federal jurisdiction."[229] The Constitution thereby rejects a notion of a total divorce between the exercise of the judicial power respectively of the Commonwealth and of the States in separate courts having no connection whatever with the judicial power of the other.
[229]Constitution, s 77(iii).
The task of this Court is therefore that of drawing inferences from, and discerning negative implications[230] in, the general language of the Constitution. In particular, the Court must address the provisions in Ch III, read within the document taken as a whole[231]. Also relevant are the purposes which may be attributed to the provisions for the federal Judicature in a Commonwealth in which it is envisaged that there will be States having their own courts[232] and particularly Supreme Courts[233] as well as Territories, the government of which will necessarily involve the existence of courts and the exercise of judicial power[234]. All such courts are to operate within a nation of continental size, with a relatively small and scattered population which is to be governed, so far as the Constitution permits, with its component parts cooperating in a rational, harmonious and generally efficient way.
[230]The words "negative implication" with respect to Ch III appear in this Court's decision in R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 292 approved by the Privy Council in Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 at 545.
[231]Drawing conclusions of a "negative or exclusive sense" where such a sense must be given to the words "or they have no operation at all": See Marbury v Madison 5 US 87 at 109 (1803) per Marshall CJ.
[232]s 77(iii).
[233]s 73(ii).
[234]s 122.
On the face of things, in such a context, there would not seem to be any reason of constitutional principle or policy to forbid the kind of legislative cooperative scheme between all of the governments and legislatures of the Commonwealth instanced by the two legislative systems of cross-vesting. A negative implication will only arise where it is manifest from the language used in the provisions within Ch III or is logically or practically necessary for the preservation of the integrity and structure of the Judicature envisaged in that Chapter[235]. The governments involved have maintained their support for the legislation under consideration despite many changes of political complexion. Over more than a decade, none of the legislatures has evidenced a desire to withdraw from either of the cross-vesting systems. It is not as if the polities constituting the Australian Commonwealth are, in relation to each other, foreign states. All of them are parts of an integrated federal nation which the Constitution itself summoned forth.
[235]See Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 135; McGinty v Western Australia (1996) 186 CLR 140 at 168-171, 184-185, 231, 284-286.
In Australia, the courts of the States and Territories are not subordinate in independence, integrity or professional skills to the federal courts provided for in Ch III. There is movement between, and overlap within, their personnel. The
Constitution[236], the legal tradition of the nation and decisions of this Court[237] help to ensure high common standards which dispel any requirement to defend the federal judiciary of this country from State or Territory incursions which might endanger the independence and quality of federal courts. In the Australian federation, there is nothing obviously offensive in the adoption of sensible cooperative arrangements between the courts and the executive governments of the Commonwealth, the States and the Territories to achieve objectives such as those stated in the preambles adopted in common form in the cross-vesting laws. Those preambles include the following statements which purport to explain the enactment of the legislation[238]:
"… [I]nconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and … it is desirable:
(a)    to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court;
(b)    to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, would be entirely or substantially within the jurisdiction (other than any accrued jurisdiction) of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases; and
(c)    if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court."
[236]Notably s 77(iii).
[237]See esp Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
[238]See Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) is in substantially the same form. The initial adoption of the cross-vesting legislation was prompted by uncertainties as to the jurisdictional limits of federal, State and Territory courts, particularly in the areas of trade practices and family law. See eg Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383; Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; Re F; Ex parte F (1986) 161 CLR 376. These uncertainties, coupled with a lack of power in those courts to ensure that all issues arising in the proceedings could be heard and determined by the one court, including by a State court if it were the appropriate court, led to the adoption of the general cross-vesting scheme. See the Minister's Second Reading Speech, Australia, House of Representatives, Parliamentary Debates (Hansard), 22 October 1986 at 2555-2556.
A legislature cannot, by preambular assertions, recite itself into constitutional power where none exists[239]. Yet the agreement of all the democratically elected legislatures of Australia that a system of cross-vesting is necessary to help avoid inconvenience and expense, and to remove injustices and uncertainties occasioned by jurisdictional conflict, provides at least persuasive evidence that the legislation serves a practical national purpose. Everyday experience in the courts would probably establish that fact in any case[240]. Some lawyers enjoy the intricate intellectual problems which can arise where there is a conflict or disparity of jurisdiction. Occasionally, a party may take advantage of them. But few ordinary citizens see their merits. Most parties discern no beauty or value in conflicts of this kind. If this amounts to an "unthinking resort to" slogans about "arid jurisdictional disputes"[241], I must bear that label. However, I also invite attention to the complex and disputable legal points (about which differences persist) that will be necessary to resolve some of these cases once the cross-vesting laws are struck down. They illustrate what the future now holds for Australian courts and those who use them.
[239]Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 190-193, 205, 221, 244, 263, 278-279.
[240]See eg National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 584-585. See also Young, "Current Issues - Cross-vesting", (1999) 73 Australian Law Journal 310.
[241]See reasons of Gummow and Hayne JJ at [121].
The need for a system such as the cross-vesting legislation within the Australian Commonwealth can therefore scarcely be doubted. Statistical and other material was provided to this Court about the use made of the legislation challenged in these proceedings. These demonstrate, in part, the use being made of the system[242]. Yet such statistics, significant as they are, seriously understate the utilisation of the legislation. They concentrate on matters transferred to and from the jurisdiction of the Federal Court of Australia. They do not quantify other inter-jurisdictional transfers. They do not measure the matters commenced in a jurisdiction which, but for the cross-vesting legislation, would have been impermissible.
[242]cf Moloney and McMaster, Cross-Vesting of Jurisdiction - A Review of the Operation of the National Scheme, (1992), Appendix 1. The authors conclude that the scheme to the time of their review had operated "effectively and efficiently": see at 147. It had not resulted in any untoward or improper distortion of the administration of justice throughout the nation. Such problems as had occurred were manageable and remediable. An important "subtle" benefit noted by the authors was the assistance afforded by the legislation in breaking down parochial tendencies in the judiciary. See also Federal Court of Australia, Annual Report, 1996-1997 at 42.
What, then, are said to be the "compelling arguments" derived from the "clearest constitutional language" which warrant the conclusion that the Australian Constitution forbids both systems of cross-vesting legislation, and now requires that, despite their great utility, they be terminated? The challengers before this Court relied in these cases (as had earlier been done in Gould) on two basic propositions. Each was said to follow not from the words but from negative implications in Ch III of the Australian Constitution:
1.That it is not open to a State Parliament (or legislature of a self-governing Territory) to confer jurisdiction upon a federal court; and
2.That it is not within the legislative power of the federal Parliament to consent to the conferral of such State (and Territory) jurisdiction on a federal court.
For reasons which I will explain in disposing of the proceedings in Spinks & Ors v Prentice, it is unnecessary to deal with the issue concerning the power of the Territory legislatures to enact legislation conferring "Territory jurisdiction" upon a federal court. I will not, therefore, decide that issue. Instead, I will concentrate, as I did in Gould, on the power of a State Parliament to confer State jurisdiction on such a court and the power of the federal Parliament to consent to the conferral of such State jurisdiction.
Implied exclusion of the conferral of State jurisdiction
Leave aside for a moment the suggested problems presented by Ch III of the Constitution. In other respects it is established that a legislature of one polity within the Commonwealth may vest non-judicial powers in an institution created by the legislature of another polity within the Commonwealth[243]. Where this involves the vesting of State power in a tribunal created by cooperative legislation of both the Commonwealth and a State, it is necessary to have the consent of federal law for State powers to be reposed in such tribunal. But, in a decision the correctness of which was not challenged in these proceedings, this Court held that the vesting of State arbitral powers in a quasi-judicial federal tribunal was constitutionally valid[244]. Indeed it was said to be an example of the kind of cooperation on the part of the Commonwealth and the States which would permit them together to achieve objects "that neither alone could achieve"[245].
[243]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 579-580; cf Gould v Brown (1998) 193 CLR 346 at 381-382, par [20] per Brennan CJ and Toohey J.
[244]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535. See also Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 127-131.
[245]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (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. See also Gould v Brown (1998) 193 CLR 346 at 382, par [20].
There is therefore nothing inherent in the Australian Constitution which forbids the cooperative sharing and combination of governmental powers within the federation. On the contrary, the constitutional text expressly contemplates various forms of inter-governmental cooperation[246] and cooperation between the Parliaments of the Commonwealth and of the States[247]. This, then, is the constitutional setting in which the suggested negative implications of Ch III must be evaluated. If some forms of inter-governmental and inter-legislative cooperation are permissible, and have been achieved, the question is immediately posed as to why, within the Australian judiciary, similar inter-jurisdictional cooperation must be regarded as totally forbidden. This is just another way of saying, once again, that in the context of the Australian Constitution, very clear language in Ch III would be required to produce such an unyielding and rigid outcome.
[246]See eg the Constitution, s 51(xxxiii).
[247]See eg the Constitution, s 51(xxxvii).
The first step of the challengers' argument latches onto the express provision in s 77(iii) of the Constitution. By that paragraph the federal Parliament may make laws "investing any court of a State with federal jurisdiction." By an appeal to the expressio unius principle of construction, it is claimed that the Australian Constitution envisages, in the case of the judiciary, a one-way street of inter-jurisdictional conferral of judicial power. It would only flow from the Commonwealth to a State. It could not flow in the opposite direction. This argument is completely unconvincing. This probably explains why the challengers in these proceedings advanced it in muted tones.

The expressio unius rule must always be used with caution[248]. It is especially perilous in construing a constitution written in sparse language, such as ours. There are many reasons why s 77(iii) provides as it does. Most of them are historical[249]. The State (formerly colonial) courts were well established at the time of federation. There were no federal courts at that time. Indeed, there were few federal courts in Australia until the 1970s. Until the 1980s their jurisdiction was very limited. The provision of a power compulsorily to invest the established State courts with federal jurisdiction was therefore an urgent necessity. It was so if the new Commonwealth, with its limited resources, were to avoid the burdensome obligation of creating immediately a parallel federal judiciary such as had been established in the United States of America. In that country, the uneven quality and varying methods of appointment of the judiciary of the States had resulted in the growth of a substantial and separate federal judiciary. By way of contrast, the Australian colonial (and later State) judiciaries exhibited uniformly high standards of integrity and ability rendering the "autochthonous expedient"[250] particularly suitable to Australia's initial federal judicial arrangements.
[248]Russell v Russell (1976) 134 CLR 495 at 539; Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94; Wentworth v NSW Bar Association (1992) 176 CLR 239 at 250; PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 311; Colquhoun v Brooks (1888) 21 QBD 52 at 65.
[249]Gould v Brown (1998) 193 CLR 346 at 384-385, pars [25-26], 492-493, par [306]; cf Mason and Crawford, "The Cross-vesting Scheme", (1988) 62 Australian Law Journal 328 at 334.
[250]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268.
Far from giving rise to an implication that a reverse conferral of State jurisdiction on federal courts is impermissible, the history of almost a century during which federal jurisdiction has frequently been invested by federal laws in the courts of the States established a constitutional environment in which reciprocal laws of the States were both a natural and permissible development. The lack of express provision in Ch III for that to happen can also be explained by reference to the text. Ch III is concerned with the judicial power of the Commonwealth. It is addressed, substantially, to the establishment of this Court and provision for the creation of other federal courts, exercising the jurisdiction there specified. Although the continued existence of the courts of the States, and specifically the Supreme Courts, is clearly contemplated by Ch III, provision for them, and for the exercise of the judicial power of the States, is properly reserved to the constitutions of each State. The continued existence of the constitutions of the States is provided for in s 106 of the Australian Constitution. As to the powers of the Parliaments of the States to enact laws with respect to the conferral of State jurisdiction, that is provided by s 107 of the Constitution. The failure to deal with that power in Ch III is therefore no indication of a constitutional prohibition. It is simply a reflection of the respective functions of the federal and State constitutions in providing separately for the making of laws (relevantly) for conferring on the courts of one part of the Commonwealth a portion of the judicial power of another part of the Commonwealth.
Then it is said that Ch III of the Constitution repels any such attempted conferral of State jurisdiction because it provides exhaustively for the jurisdiction which may lawfully be conferred upon this Court and upon other federal courts created by the Parliament. In the context of the constitutional developments which have occurred since the text of the Australian Constitution was adopted (including the termination of appeals to the Privy Council which now renders this Court the ultimate constitutional and appellate court for Australia)[251], different considerations would arise in relation to any attempt by State law to confer jurisdiction on this Court. The High Court of Australia traces its origin to the Constitution itself. It has distinct constitutional functions which extend beyond those that exist in the case of other federal courts. In the case of this Court, there may indeed be negative implications in Ch III which would prevent a purported conferral upon it of State jurisdiction[252]. It is unnecessary to explore this question. No such conferral of jurisdiction is attempted by any of the cross‑vesting laws. As it is unlikely that the federal Parliament would ever purport to consent to such conferral of jurisdiction, it is pointless to explore the theoretical possibilities further.
[251]Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council (Appeals from the High Court) Act 1975 (Cth); Australia Acts 1986; cf Kirmani v Captain Cook Cruises Pty Ltd [No 2] (1985) 159 CLR 461 at 464.
[252]Gould v Brown (1998) 193 CLR 346 at 383, par [23], 498, par [321]. The Parliament cannot consent to the conferral of jurisdiction on this Court outside that expressly permitted by Ch III of the Constitution because this Court is not created by a law of the Parliament but by the Constitution itself: cf Spratt v Hermes (1965) 114 CLR 226 at 277.
However, in the case of the courts created by the federal Parliament the position is different. It is not self-evident why it should not be open to the legislatures of the States to make provision with respect to the disposition of their own judicial powers by conferring part of the jurisdiction to exercise those powers upon federal courts, operating as they now do throughout Australia. In colonial times, part of the judicial power of particular colonies was commonly deployed by Imperial legislation or orders in council to inter-colonial judicial bodies, generally of an appellate character[253]. Originally, that could only be done by, or under, laws made by the Imperial Parliament[254]. With the advent of federation, the State Parliaments acquired plenary legislative powers subject only to those powers conferred by the Australian Constitution upon the federal Parliament or withdrawn from the Parliament of a State[255] or put beyond the power of a State Parliament by reason of continuing Imperial legislation such as the Colonial Laws Validity Act 1865 (Imp). By the Australia Acts 1986[256], any remaining Imperial legislative restrictions were removed. Accordingly, subject only to the Australian Constitution, before any of the cross-vesting legislation was enacted, the State Parliaments of Australia enjoyed as full a power to legislate, including with extraterritorial operation, as had been enjoyed at the time of federation by the United Kingdom Parliament itself. In such a legislative setting, the suggestion that a Parliament of an Australian State could not enact a law to provide for the exercise of a part of the judicial power under its control by an established State or federal court within Australia is quite unconvincing. Whatever may have been the position prior to the Australia Acts, all remaining constitutional inhibitions and obstacles (except any provided by the Australian Constitution) were by then removed.
[253]Gould v Brown (1998) 193 CLR 346 at 479-480.
[254]Such as the British Settlements Act 1887 (Imp), ss 2 and 5. See discussion in The Commonwealth v Queensland (1975) 134 CLR 298 at 311-312; Gould v Brown (1998) 193 CLR 346 at 376-377, par [12].
[255]Constitution, s 107. See Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9-10; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 65, 71-72; Gould v Brown (1998) 193 CLR 346 at 373, par [6].
[256]See eg Australia Act 1986 (Cth), ss 2 and 3.
I accept that observations may be found in the opinions written in this Court which, on their face, appear to stand against the foregoing propositions[257]. I acknowledge that statements exist which suggest that Ch III is an exhaustive and exclusive statement of the judicial power that may be conferred upon a federal court from whatever source. However, such statements were not essential to the decisions in question. For example, the issue addressed in In re Judiciary and Navigation Acts was "[w]hat, then, are the limits of the judicial power of the Commonwealth?"[258] It was in answering that question that this Court expressed the view that nothing in Ch III of the Constitution supported a conclusion that the Parliament could confer power or jurisdiction on the High Court to determine abstract questions of law[259]. None of the cases in which the cited restrictions were uttered was addressed to the present problem. All were written in earlier times when the constitutional setting was quite different. They occurred before the creation of significant federal courts with substantial and growing jurisdiction which presents serious problems of conflict and overlap that now require solution. It is erroneous to invoke them as if they provide answers to a different constitutional problem at the other end of the century[260].
[257]See esp In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264-265; Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529; R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268.
[258](1921) 29 CLR 257 at 264.
[259]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ.
[260]Spratt v Hermes (1965) 114 CLR 226 at 240 per Barwick CJ, 255 per Kitto J.
Moreover, the practice of the federal Parliament[261] and the conduct of this Court[262] contradict any rigid view about the conferral upon federal courts (indeed upon this Court) of jurisdiction and functions standing outside those expressly stated within Ch III of the Constitution. In particular, no specific mention is made in Ch III of the facility of appeals to this Court from the courts of the Territories. Yet statutory provision is made for such appeals. They are regularly heard and determined[263]. It is unthinkable that they should be forbidden as outside the Constitution. Similarly, no mention is made in Ch III of appeals from the courts of foreign countries. Yet such appeals have been brought and this Court has exercised the jurisdiction conferred on it, apparently appellate in character, from the courts of Nauru[264]. There are other illustrations which reinforce the conclusion that rigidity has not been our constitutional practice. We should not make it so now.
[261]Various examples of the conferral of jurisdiction upon courts established by or under Ch III of the Australian Constitution may be instanced. See eg the conferral of jurisdiction as a Colonial Court of Admiralty upon the High Court by the Colonial Courts of Admiralty Act 1890 (Imp) and the jurisdiction to hear appeals from decisions of the courts of Nauru under the Nauru (High Court Appeals) Act 1976 (Cth). See also the exercise by this Court and other federal courts of original and appellate jurisdiction with respect to the Territories: Gould v Brown (1998) 193 CLR 346 at 380, par [17] per Brennan CJ and Toohey J, 493-494, par [308]. Other instances may include the creation of courts martial under the defence power: R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; R v Cox; Ex parte Smith (1945) 71 CLR 1; Re Tracey; Ex parte Ryan (1989) 166 CLR 518; Re Nolan; Ex parte Young (1991) 172 CLR 460 and Re Tyler; Ex parte Foley (1994) 181 CLR 18; the appointment of federal judges to non-judicial functions as personae designatae, approved in Hilton v Wells (1985) 157 CLR 57; Jones v The Commonwealth (1987) 61 ALJR 348; 71 ALR 497 and Grollo v Palmer (1995) 184 CLR 348; and the purported constitution of the High Court as a Court of Disputed Returns: See Commonwealth Electoral Act 1918 (Cth), s 354; cf Walker, "Disputed Returns and Parliamentary Qualifications: Is the High Court's Jurisdiction Constitutional?", (1997) 20 University of New South Wales Law Journal 257.
[262]For example, acceptance of jurisdiction under the Judiciary Act, s 30B (inserted by the Judiciary Act 1927 (Cth), s 4) as a trial court for the Australian Capital Territory. See R v Porter (1933) 55 CLR 182.
[263]Porter v The King; Ex parte Yee (1926) 37 CLR 432; Jolley v Mainka (1933) 49 CLR 242.
[264]Two appeals from Nauruan courts have been heard and determined by this Court. 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. The only suggested explanation by the challengers for this apparent exception was that the negative implications existing in Ch III of the Constitution applied "within the federal system" and thus had no application outside that system, of which Nauru and the Australian Territories were said to be examples.
There is an added reason for rejecting a construction of Ch III so as to forbid the conferral on federal courts of jurisdiction granted by a legislature other than the federal Parliament. It is one which I had not fully appreciated when Gould was decided. In that decision, I treated at face value arguments proposing that the power of the federal Parliament to consent to the exercise by courts created by it of jurisdiction conferred upon them by State legislatures could be sustained (but had not been in that case) under the provisions of s 51(xxxviii) of the Australian Constitution[265]. However, if, as the challengers assert, Ch III forbids the conferral of jurisdiction on federal courts by any legislature other than the federal Parliament, s 51(xxxviii) would seem to have no useful operation in such a case. That paragraph appears in s 51 of the Constitution. That section confers legislative powers "subject to this Constitution". That phrase, therefore, includes the restriction: subject to the requirements of Ch III. If within the four corners of Ch III sufficient implied prohibitions may be found to repel any attempted conferral of jurisdiction on federal courts by a legislature other than the federal Parliament, no amount of inter-governmental or inter-parliamentary concurrence, as envisaged by s 51(xxxviii), would seem capable of overcoming that prohibition[266]. The same would hold true of references of power by the Parliaments of the States under s 51(xxxvii).
[265]That paragraph provides: "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxxviii) 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". See Gould v Brown (1998) 193 CLR 346 at 487-489.
[266]cf Moshinsky, "Gould v Brown - Death Knell of the Cross-vesting Scheme?", (1998) 9 Public Law Review 152 at 155.
If the arguments of the challengers are accepted, the foregoing would appear to consign those seeking to restore the benefits of cross-vesting legislation, enjoyed these past dozen years, to the highly problematic and expensive task of proposing and securing a formal amendment to the Australian Constitution. The inconvenience of such a rigid construction of Ch III is then shown in sharp relief. The amendment would be necessary not to delete offending words nor to overcome an expressly stated prohibition. It would be needed to reverse an implication which this Court (in my view needlessly) reads into the Chapter. It would require the most compelling arguments of constitutional authority, principle and policy to persuade me that the combined Parliaments of the Commonwealth of Australia cannot, after nearly a century of federation, do together (with all the travail that such a course involves) what the Imperial Parliament might readily have done in 1901 on a relatively straight‑forward machinery matter of this kind.
During argument, mention was made of likely future developments consequent upon regional and global arrangements affecting Australia. The time may come when, for reasons acceptable to Australia's governments and Parliaments, jurisdiction might be conferred on Australian courts, federal and State, out of the judicial power of a foreign country. Already, in the case of New Zealand, reciprocal legislation has been enacted for so-called trans-Tasman market proceedings[267]. Such legislation may be seen as an early herald of inter‑jurisdictional and regional cooperation which is likely to expand in the decades ahead to the advantage of all concerned. It provides a further reason why this Court should refrain, at least so far as the federal judiciary of Australia is concerned, from adopting a rigid construction of Ch III which would forbid such developments.
[267]Federal Court of Australia Act 1976 (Cth), Pt IIIA.
Whatever arguments exist in the case of the conferral of jurisdiction upon federal courts by the legislatures of foreign countries (even those as close and similar to our own as New Zealand), in the case of the legislatures of the States
[268]cf Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 774; R v Humby; Ex parte Rooney (1973) 129 CLR 231 at 240. Such cooperation is a "positive objective" of the Constitution: See R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 589 per Deane J.
of Australia entirely different considerations arise. Those who might hesitate at the possibility of the conferral upon a federal court in Australia of jurisdiction conferred by the legislature of a foreign country with the consent of the federal Parliament would not, I think, have any hesitation about the legitimacy and appropriateness of the conferral of jurisdiction by a State legislature acting within its powers. No apparent offence is done to the design and purpose of the Australian Constitution. No affront is done to established civil or economic rights. On the contrary, what is then achieved is precisely the cooperation for the removal of inconvenient impediments to good government which the Australian Constitution fosters rather than forbids[268].
For these reasons I would conclude that nothing in Ch III of the Australian Constitution, and no limits required by the constitutions of the Australian States, forbid the conferral on a federal court by the Parliament of a State of State jurisdiction of the kind envisaged in the cross-vesting legislation. It is unnecessary and undesirable to read such restrictions into the constitutional text. The first basic proposition of the challengers therefore fails.
Power of the federal Parliament to consent
This conclusion leaves the second suggested hurdle. This is the supposed lack of any constitutional basis for the provision of consent by the federal Parliament to the exercise by the courts which it has created of jurisdiction other than that which Ch III contemplates. This argument was put rhetorically in the following way: If the federal Parliament cannot itself confer State jurisdiction upon a federal court, how can it enjoy the legislative power to consent to a State Parliament doing so?
It was generally accepted by all parties that the terms of ss 75, 76 and 77 of the Australian Constitution exclude any direct purported conferral of State jurisdiction on a federal court by a law made by the federal Parliament. Yet the enactment of a law providing the consent of the federal Parliament is clearly necessary. Otherwise, any law of another polity purporting to confer jurisdiction upon a federal court would run into the insurmountable obstacle that the jurisdiction of such a federal court would be taken to be only that conferred upon it by the legislature of the polity creating it, namely the federal Parliament[269]. Because the conferral of a court's jurisdiction contemplates the exercise of compulsive powers and has implications for the expenditure of funds and the deployment of judges, it is inevitable that consent of the federal Parliament to the use of federal courts would be required[270]. But this leaves to be answered the question of where the federal Parliament finds the legislative power to give such consent.
[269]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 562-563; cf Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 127-128.
[270]It is incorrect to describe the cross-vesting legislation, as the challengers did, as having the effect of "conscripting" federal courts to exercise State jurisdiction. The consent of the Commonwealth is a condition precedent to the exercise of such jurisdiction. See Gould v Brown (1998) 193 CLR 346 at 381-382, par [20] per Brennan CJ and Toohey J.

The challengers contended that, as the federal Parliament could not itself confer jurisdiction, by necessary implication it could not consent to the conferral of jurisdiction by a State Parliament. If it could do so, this would permit, indirectly, the federal Parliament's acting in relation to the federal courts in a manner which was incompatible with the "fundamental and carefully defined role"[271] or the carefully marked out territory reserved to the federal Judicature by Ch III of the Constitution.
[271]Gould v Brown (1998) 193 CLR 346 at 421, par [119] per McHugh J.
I do not find these arguments persuasive. Chapter III speaks to what the federal Parliament can do in respect of the exercise of "[t]he judicial power of the Commonwealth"[272]. It is silent with respect to the conferral on federal courts of the judicial power of another polity, including that of a State of the Commonwealth. Its provisions simply do not address that issue. The words of constitutional grant in ss 75, 76 and 77 should not be read narrowly so as to expel other possibilities. Yet this still leaves to be identified the foundation for the legislative power of the federal Parliament to give its consent. Because that Parliament is a legislature of limited powers, it requires a constitutional source of power to sustain the validity of any law made by it.
[272]Constitution, s 71.
Such a source is readily found in this instance. It lies in the combined power which the Australian Constitution affords to the federal Parliament to create federal courts (other than this Court which is created by the
[273]s 71.
[274]s 51(xxxix).
[275]Burton v Honan (1952) 86 CLR 169 at 177; Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27.
Constitution[273]) and the express[274] and implied power[275] to enact laws incidental to those subjects upon which legislative power has been expressly conferred.
The provisions of s 51(xxxix) of the Australian Constitution are addressed, in terms, to "matters incidental to the execution of any power vested by this Constitution … in the Federal Judicature …". In Burton v Honan[276], Dixon CJ, for the Court, said of this paragraph:
"[E]verything which is incidental to the main purpose of a power is contained within the power itself so that it extends to matters which are necessary for the reasonable fulfilment of the legislative power over the subject matter … But it has appeared to me that par (xxxix) of s 51 is related not so much to matters incidental to the subjects placed under the legislative power of the Commonwealth but rather to matters which arise in the execution of the various powers reposed in the Legislature, the Judiciary and the Executive."
[276](1952) 86 CLR 169 at 177-178.
These two expressions of the scope of the legislative power of the federal Parliament are directly applicable to the present proceedings. Once the federal Parliament created federal courts with substantial jurisdiction, this was bound to result in conflicts and overlap of jurisdiction with State courts. The problems presented in the present cases illustrate how this was bound to occur and often does. The need for legislation such as cross-vesting of jurisdiction and transfer of cases was therefore bound to arise. So it quickly proved. Other circumstances made it desirable that such legislation should extend to the courts of the States themselves and as between those courts and the courts of the Territories. The very creation of a federal Judicature carried with it implied powers on the part of the federal Parliament to make laws which would advance their effectiveness as courts and reduce or eliminate the meritless jurisdictional conflicts which would otherwise bedevil their operations.
Cross-vesting legislation, with the facility of transfer from and to federal courts, was clearly necessary for the reasonable fulfilment of the legislative power which had given birth to the federal courts[277]. Additionally, the efficient execution of the powers of the federal Judicature is advanced by the adoption of sensible arrangements designed to remove the costs and other burdens, sometimes intolerable and usually inimical to the attainment of the objectives of that Judicature. Such burdens include the commencement of proceedings in an inappropriate Australian court or the commencement of connected litigation in another Australian court which should conveniently be heard and determined in the one court, including, where appropriate, a federal court.
[277]cf State Chamber of Commerce and Industry v The Commonwealth (The Second Fringe Benefits Tax Case) (1987) 163 CLR 329 at 357-358.
The scope of the implied powers afforded to the federal Parliament by the Australian Constitution has never been narrowly confined[278]. It would be inappropriate to do so now, given the nature of the Constitution as an instrument of government and the terms in which the grants of legislative power are expressed[279]. This approach is no less applicable to the implications inherent in the creation of the federal Judicature within Ch III of the Constitution than to the enactment of laws with respect to the identified heads of power granted to the Parliament in Ch I of the Constitution[280].
[278]cf Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 365; Baxter v Ah Way (1909) 8 CLR 626 at 637; O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 at 597-598.
[279]Le Mesurier v Connor (1929) 42 CLR 481 at 497; R v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 at 287 per Dixon CJ; Davis v The Commonwealth (1988) 166 CLR 79 at 95.
[280]Especially ss 51 and 52.
Having created a federal Judicature, the Constitution implies that the federal Parliament will have full powers to ensure that such Judicature performs its functions in all matters incidental to its purposes, including in matters incidental to the execution of the judicial power[281]. It is not within such incidental powers for the federal Parliament to confer a distinct jurisdiction upon a federal court additional to that for which the Constitution specifically and expressly provides[282]. But it is within that power for the Parliament to consent to the conferral of jurisdiction by the legislature of another polity to which the judicial power in question belongs. At least, it is within the incidental power where that other polity is a State of the Australian Commonwealth[283]. The source of the judicial power in question thus lies outside the grant of judicial power to the federal Parliament. But the consent to its exercise is reasonably incidental to that grant. It is reasonably necessary and convenient for, and conducive to, the proper performance by the federal Judicature of its functions as such[284].
[281]As provided by s 71.
[282]Constitution, ss 75, 76 and 77. See 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; Gould v Brown (1998) 193 CLR 346 at 459-460, pars [231]-[232] per Gummow J.
[283]Gould v Brown (1998) 193 CLR 346 at 497-498, pars [318]-[320]. See also at 385-386, pars [28]-[30] per Brennan CJ and Toohey J.
[284]cf Insurance Commissioner v Associated Dominions Assurance Society Pty Ltd (1953) 89 CLR 78 at 87; Fencott v Muller (1983) 152 CLR 570 at 609; Davis v The Commonwealth (1988) 166 CLR 79 at 111-112; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27 per Mason CJ adopted by Brennan J in Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 179.
An additional and connected source of constitutional authority arises from the implied nationhood power. That power has been repeatedly recognised in decisions of this Court as deriving from Australia's very existence and character as a sovereign nation. It extends not only to Australia's external activities, but also internally[285]. It is a source of power reflective of the unique position occupied by the Commonwealth within Australia's federal polity. In the past that power has been elaborated in connexion with the Legislature and the Executive Government of the Commonwealth. But there is no reason of principle why it should not also apply in the case of the Judicature.
[285]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 362-364 per Barwick CJ, 378 per Gibbs J, 397-398 per Mason J, 412-413 per Jacobs J; New South Wales v The Commonwealth (1975) 135 CLR 337 at 373-374 per Barwick CJ, 470 per Mason J, 498 per Jacobs J, 505 per Murphy J; The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 252 per Deane J; Davis v The Commonwealth (1988) 166 CLR 79 at 92-94 per Mason CJ, Deane and Gaudron JJ. The notion of an implied nationhood power received its earliest expression in those cases dealing with the implied power of national self-preservation: See eg Burns v Ransley (1949) 79 CLR 101 at 116; R v Sharkey (1949) 79 CLR 121 at 148-149; Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 187-189.
In Victoria v The Commonwealth and Hayden[286], Mason J described the implied nationhood power in the following terms:
"[T]he Commonwealth enjoys, apart from its specific and enumerated powers, certain implied powers which stem from its existence and its character as a polity ... [T]here is to be deduced from the existence and character of the Commonwealth as a national government ... a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation."
Similarly, Jacobs J wrote[287]:
[T]he purposes of the Commonwealth may not only fall within a subject matter of general or particular power prescribed in the Constitution but may also be other purposes which now adhere fully to Australia as a nation ... The growth of national identity results in a corresponding growth in the area of activities which have an Australian rather than a local flavour. Thus, the complexity and values of a modern national society result in a need for co‑ordination and integration of ways and means of planning for that complexity and reflecting those values."
[286](1975) 134 CLR 338 at 397.
[287]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 412.
Federal legislation providing consent to the vesting of State jurisdiction in federal courts falls squarely within the purposes envisaged by the implied nationhood power as it relates to the Judicature. The legislation possesses an "Australian rather than a local flavour". It seeks to facilitate national cooperation and "co-ordination" in response to the "complexity ... of a modern national society"[288]. The Commonwealth, in its relationship with the States and Territories, is in a unique position to respond to the issues arising under the establishment of a national system of jurisdiction-sharing. It has done so for high national purposes.
[288]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 412 per Jacobs J.
Obviously, the implied nationhood power is strictly limited in its scope. It would be inconsistent with the distribution of powers provided by the Constitution were the nationhood power to be given an ambit that trespassed impermissibly upon the powers of the States. That would effect a disturbance of the federal balance[289]. A characterisation of legislative purposes as "national" is not sufficient to attract the support of the nationhood power if those purposes fall within areas of law-making belonging to the States[290]. But the cross-vesting legislation of the Commonwealth, in so far as it gives consent to the vesting of State jurisdiction in federal courts, cannot be characterised in that way. It is legislation which every Australian State and Territory supported in this Court. In no way does it encroach impermissibly upon the legislative domain of the States or subvert the federal nature of the Constitution. On the contrary, it is clearly intended to support the legislative initiatives which the States have themselves taken. In the jurisprudence of this Court, the implied nationhood power is not limited to flags and symbols. It extends to cooperative national activities that are compatible with the Constitution and which reflect the modern needs of a dynamic and democratic federal polity[291].
[289]cf Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 364 per Barwick CJ, 378 per Gibbs J, 398 per Mason J.
[290]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 364 per Barwick CJ, 378 per Gibbs J, 398 per Mason J. In The Commonwealth v Tasmania (1983) 158 CLR 1 at 252, Deane J held that the implied nationhood power was limited in scope by reference to the federal nature of the Constitution and accordingly "confined within areas in which there is no real competition with the States."
[291]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 412 per Jacobs J; R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 560 per Mason J; The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 252 per Deane J. See also Byers, "Commentaries" in Evans (ed), Labor and the Constitution 1972-1975, (1977) at 68-71; Rumble, "The Commonwealth/State Co-operative Basis for the Australian Wheat Board and the National Companies and Securities Commission: Some Constitutional Issues", (1980-81) 7 Adelaide Law Review 348 at 370-375.
This conclusion does not employ "convenience" as a criterion of constitutional validity rather than legal analysis[292]. Analysis does not become less legal because it is uncongenial. The incidental power under the Constitution affords the legal answer to the question concerning the legislative power to sustain the federal part of the cross-vesting scheme. The incidental power was fully argued in these proceedings. And one aspect of the incidental power is the implied nationhood power. What can be more conducive to the national society of Australia as envisaged by the Constitution than the provision of legislative consent to a scheme that ensures justice, efficiency and clarity in the nation's court system? This is something at the very heart of the nation's existence and of its identity as such. Provided no other impediment exists, the Parliament of the Commonwealth is empowered to act as it has.
[292]See reasons of Gummow and Hayne JJ at [126].
Rejecting the contrary arguments
A number of subordinate arguments were deployed in resistance to the conclusion that the federal Parliament possessed the constitutional power to consent to the vesting of State jurisdiction in federal courts. I will mention them although none has merit. Thus, it was submitted that the outcome of the cross-vesting legislation would be to denude the State courts of their jurisdiction in civil cases leaving them, effectively, only with criminal jurisdiction. The federal courts, with their express, accrued and transferred jurisdiction, would continue to expand to the destruction of the judicial arrangements envisaged by the Constitution. I regard such arguments as fanciful. They are certainly not borne out by the operation of the cross-vesting legislation within the Australian judiciary to this time. If there is a danger to the continued existence of the State judiciary (one which falls far short of the alarms sounded during argument) it lies in the persistent expansion of the accrued jurisdiction of federal courts. This expansion may depend (as the proceedings involving Mr Wakim illustrate) upon considerations much more disputable, contentious and uncertain than the provisions of the cross-vesting legislation.
Then it was argued that cross-vesting legislation could result in the conferral of jurisdiction on federal courts inconsistent with the nature of federal jurisdiction yet compatible with the wider non-federal jurisdiction which may be exercised by State courts. This argument is also without substance[293]. The only jurisdiction which might be conferred on a federal court is that which is consistent with its character as a federal court[294]. Where jurisdiction is conferred, the court or body upon which it is conferred must be accepted as it is, unless its powers and functions are lawfully altered. No legislature in Australia may alter the constitutional character of a federal court. No legislature other than the federal Parliament can alter the other powers and functions of federal courts, including those dealing with appeals from such courts[295]. Accordingly, if the legislature of a State purported to confer upon a federal court jurisdiction incompatible with the constitutional character of that court, or inconsistent with the functions accorded to that court by the federal Parliament, any such endeavour would have no constitutional effect. Notwithstanding the submissions of New South Wales and South Australia to the contrary[296], I adhere to the view which I expressed in Gould. The only jurisdiction which could be conferred on a federal court by or under State law is that which is consistent with the exercise by it of judicial power as that term is understood in the context of Ch III[297].
[293]See Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] (1998) 72 ALJR 873 at 887, par [41]; 153 ALR 643 at 660-661; cf Davies and Cody v The King (1937) 57 CLR 170 at 172.
[294]Gould v Brown (1998) 193 CLR 346 at 389, par [35] per Brennan CJ and Toohey J, 500, par [328].
[295]In Gould v Brown reference was made to this problem. See (1998) 193 CLR 346 at 496, par [315].
[296]Referring by analogy to Lorenzo v Carey (1921) 29 CLR 243 at 253.
[297]Gould v Brown (1998) 193 CLR 346 at 497, pars [318]-[319]. See also at 385-386, pars [28]-[30] per Brennan CJ and Toohey J; cf Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554.
It was next submitted that conflicts of jurisdiction are inherent in any federal system of government. They are implicit in the existence of federal, State and Territory courts with jurisdiction which overlaps and intersects. It is true that such conflicts are a feature of the federal system of government which the Constitution establishes. But that fact says nothing about the constitutional validity of rational cooperative endeavours designed to reduce needless, and to eliminate avoidable, conflicts of this kind. Such conflicts are not a cause for rejoicing. Every federal country develops rules to minimise them, so far as can validly be done.
The provision of detailed legislative rules, in the form of the cross-vesting legislation, is a surer and sounder solution to the problems of conflict and multiplicity of jurisdiction (and one more in harmony with a cooperating federation) than the continued accretion to the jurisdiction of federal courts by judicial elaboration of the Constitution. The enlargement of the accrued jurisdiction of federal courts, secured by reading into the word "matter" implications which seem far from the constitutional purpose, is a significantly more artificial and less flexible way to address the problem than that chosen in the cross-vesting legislation. Far from undermining the continued existence of the separate systems of federal and State courts envisaged by the Australian Constitution, the cross-vesting legislation assumes and sustains that existence. It provides machinery for appropriate commencement and transfer of proceedings within the judiciary of Australia. It rejects artificiality for rationality and inter‑jurisdictional cooperation. The alternative to the open-ended tests for accrued jurisdiction (discussed in the reasons of other members of this Court) relying on disputable notions of "a single controversy", the variable criterion of judicial "impression", and a one-way traffic to federal courts, is a rational procedure: cheap, just, equal and clear in its operation. In my view, the cross‑vesting legislation is more in keeping with the operation of Ch III, properly understood, than the rigid construction of the Constitution which would strike down the legislation as constitutionally impermissible and turn to judicial invention and sophistry to overcome the problems which are thereby created. The second basic argument for the challengers also fails.
Particular cases and conclusions

The foregoing conclusions lead me to a result on the main issues identical to that which I reached in Gould. There is no constitutional defect in the statutory provisions for cross-vesting considered in these proceedings. Each of the statutes, federal and State, took effect according to its terms. Each validly operated to confer on the Federal Court of Australia the jurisdiction which that Court proceeded to exercise.
Having reached this conclusion, it is unnecessary for me to explore alternative arguments whereby, to meet the possible loss of the jurisdiction conferred under the cross-vesting legislation (or as an endeavour to avoid dealing with the constitutional arguments), it was suggested that the issues of jurisdiction could otherwise be answered or circumvented in some of the cases. The challenges to constitutional validity should once again be faced and answered. The answer given in the Wakim and Brown proceedings should be that jurisdiction was validly conferred and properly exercised. The applications in those proceedings should be dismissed with costs. However, because Mr Darvall, one of the prosecutors in the Wakim proceedings, has died, it will be necessary to ensure that his legal personal representative is substituted in the record of this Court.
A separate and particular question is raised in the case of Spinks & Ors v Prentice. In this regard I agree with the opinion of the Full Court of the Federal Court that s 51(1) of the Corporations Act 1989 (Cth), a federal law, validly conferred jurisdiction upon the Federal Court of Australia with respect to civil matters arising under the Corporations Law of the Capital Territory. Even if the source of that federal enactment be s 122 of the Constitution (and not, as I am inclined to think, also s 51(xx)) it undoubtedly remained a valid conferral of jurisdiction on the Federal Court by the federal Parliament[298]. To the extent that the decision of this Court in R v Bernasconi[299] suggests otherwise, and posits the separation of the Territories from the Commonwealth for the purposes of Ch III of the Constitution, I would confine that decision strictly to the point decided in that case concerning the application of s 80 of the Constitution. I would give it no wider operation[300].
[298]Northern Territory v GPAO (1999) 73 ALJR 470; 161 ALR 318.
[299](1915) 19 CLR 629.
[300]cf Spratt v Hermes (1965) 114 CLR 226 at 266 per Menzies J, 275 per Windeyer J.
No question therefore arises in these proceedings as to the power of a legislature of a self-governing Territory, with the consent of the federal Parliament, to enact a law conferring jurisdiction on a federal court. I would reserve the determination of the constitutional validity of any such law to a case in which a decision on the point is required.
As to the submission that s 447A of the Corporations Law impermissibly purported to confer non-judicial as well as judicial functions on the Federal Court, I agree, for the reasons given by Gummow and Hayne JJ, that it is inappropriate to express a view on that point at this stage of the Spinks litigation. In other matters, I respectfully disagree with the conclusions reached by the other members of this Court. I adhere to the views which I expressed in Gould and to the conclusion to which I came in those proceedings on the points which have been reargued in these.
In Prosper the Commonwealth[301], Sir Robert Garran wrote a memoir of the first 50 years of the Australian federation. In it, he described the bold and optimistic spirits who made, applied and elaborated the Constitution and the first half-century of its existence. He explained the role of this Court, including the differences which had occasionally arisen. Of these, Garran cited[302] an extract from the closing words of Barton J in Duncan v State of Queensland[303]:
"To say that one regrets to differ from one's learned brethren is a formula that often begins a judgment. I end mine by expressing heavy sorrow that their decision is as it is."
So, in this case, do I.
[301]Garran, Prosper the Commonwealth, (1958).
[302]Garran, Prosper the Commonwealth, (1958) at 170.
[303](1916) 22 CLR 556 at 605. See also at 627 per Isaacs J (diss).
Orders
The following orders should be made:
Re Wakim & Ors; Ex parte McNally & Anor
Re Wakim & Ors; Ex parte Darvall
Each of the applications for constitutional writs should be dismissed with costs. In the case of the application by Mr Darvall, who has died since the hearing, the costs in his application should be reserved and dealt with as Gummow and Hayne JJ have proposed.

Re Brown & Ors; Ex parte Amann & Anor

An order should be granted extending the time for Mr Amann's application for constitutional writs but the order nisi for certiorari should be discharged. Mr Amann should pay the costs of the respondents. Mr Gould's applications should be dismissed with costs.

Spinks & Ors v Prentice

Special leave to appeal should be granted. The appeal should be treated as instituted and heard instanter. It should be dismissed with costs.

CALLINAN J. These cases raise essentially the same question as the one upon which six members of this Court were evenly divided in Gould v Brown[304]: that is, as to the validity of that part of the cross-vesting scheme which purports to invest State jurisdiction in federal courts.
[304](1998) 193 CLR 346.
As early as 1849, a committee of the Privy Council on Trade and Plantations foresaw some of the problems that might arise out of a system of disparate courts in the separate colonies established in Australia by that time and recommended that there be a legislative body to be known as the "General Assembly of Australia" to provide, among other things, for the establishment of a General Supreme Court to be a court of original jurisdiction or a court of appeal for any of the inferior courts of the separate provinces, and for the determining of the extent of the jurisdiction and forms and manner of proceedings of such a Supreme Court[305].
[305]See Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 83-85; Jenks, The Government of Victoria (1897) at 3-4.
It is surprising therefore that so little attention seems to have been paid in the Convention Debates to the investiture of federal jurisdiction in State courts, the jurisdiction to be exercisable by federal courts other than the High Court, and the circumstances which would call for the creation of federal courts of ample jurisdiction. The question whether the jurisdiction of that federal court should be inclusive of, or concurrent with any invested jurisdiction of the State courts seems to have been deliberately left open[306]. Indeed, such attention as was paid to these matters tended to focus mainly on such courts or tribunals as might be established to deal with industrial disputes[307]. Nowhere however is there the slightest hint of any possibility of the investiture of State jurisdiction in any federal courts.
[306]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 31 January 1898 at 348-349.
[307]Official Record of the Debates of the Australasian Federal Convention, (Sydney), 6 April 1891 at 779-785.
Quick and Garran, in discussing s 77 of the Constitution, after referring to the fact that an unduly cumbersome judicial machinery might be dispensed with in the early days of the Commonwealth, predicted the development and extension of a national judicial system "to meet the gradually increasing requirements of the people."[308] There was no attempt to explain the way in which such a national judicial system might be developed and extended, and how the gradually increasing requirements of the people would be manifested and accommodated. The authors did say that confidence in the Bench (the Supreme Courts) made it possible to contemplate, without misgiving, the exercise of federal jurisdiction by State courts – subject to the controlling power of the federal Parliament[309].
[308]Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), par 337.
[309]Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), par 337.
Neither the commentary by Quick and Garran nor the Convention Debates necessarily provide any firm foundation for a confident conclusion that there was an original understanding that the High Court and the State courts should carry the initial, and comparatively light burden arising from federal jurisdiction, and that when the time came a complete structure of federal courts should be created[310]. Nor do the Convention Debates and Quick and Garran explain why, if in effect there were to be dual systems of justice in Australia, no constitutional provision was expressly made to deal with the sorts of problems which have arisen and which were foreseeable by the time the Constitution was framed.
[310]See Byers and Toose, "The Necessity for a New Federal Court (A Survey of the Federal Court System in Australia)", (1963) 36 Australian Law Journal 308 at 309.
Mr R J Ellicott QC (later Attorney-General and later a Judge of the Federal Court), in the House of Representatives on 24 July 1974, claimed this in respect of s 77(iii) of the Constitution[311]:
"This provision was inserted in the Commonwealth Constitution; it is not found in the American Constitution. I took the trouble to find out what was in the minds of our founding fathers when they put in that provision. It is evidenced by a telegram which Symon sent to Sir Samuel Griffith on 1 April 1897. It was said of this proposal to vest Federal jurisdiction in State courts that the object was 'to avoid the needless creation of Federal courts in all the States and the consequent degradation of State courts and avoid the difficulties of litigation which exists [sic] in America'. They regarded the power to establish Federal courts, more by way of reserve if any State should close its courts or obstruct the determination of federal matters. The use of State courts was therefore seen by the founding fathers as a means of maintaining a simple court system within the Federation with the High Court as the supreme court of Australia. The founding fathers obviously saw the creation of Federal courts as unnecessary except in the last resort."
[311]Parliamentary Debates (Hansard) at 598.
Another view is that the principal purpose of s 77 was to authorise the creation of federal courts to assume the burden of the original jurisdiction of the High Court if and when its appellate jurisdiction increased to such an extent as to make it inappropriate or impracticable for the High Court to exercise original jurisdiction. It has been suggested that one disadvantage of the investiture of State courts with federal jurisdiction was the need for the Commonwealth to accept the State courts as they were with all of their variations, limitations and traditions[312]. As a reason for the creation of federal courts this may have no or reduced current validity in light of the decisions of this Court in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs[313] and Kable v Director of Public Prosecutions (NSW)[314]. Another reason which has been advanced, that the investiture of State courts with federal jurisdiction virtually meant that the federal government would hand over administration of the statutes involved to the judicial creatures of State governments whether those State governments might be or become hostile, friendly or merely disinterested[315], shows little respect for, or confidence in both State and federal judges. It leaves open the entirely unacceptable inference that the former might be partial towards the States and the latter partial towards the Commonwealth. It also implies that some different judicial technique may be involved in the interpretation or application of federal statutes and overlooks the way in which, since federation, the State courts have diligently and competently found and applied federal law under the unifying influence of the High Court[316].
[312]See Byers and Toose, "The Necessity for a New Federal Court (A Survey of the Federal Court System in Australia)", (1963) 36 Australian Law Journal 308 at 313.
[313](1996) 189 CLR 1.
[314](1996) 189 CLR 51.
[315]See Byers and Toose, "The Necessity for a New Federal Court (A Survey of the Federal Court System in Australia)", (1963) 36 Australian Law Journal 308 at 313.
[316]The experience in the United States was different. After the ratification of the Constitution it was realized that there was an immediate need for a system of federal courts, not only as a unifying influence over very parochial communities and States, but also because, during the Confederation, many of the State courts had been heavily partial in their determinations of suits involving sister States, citizens of those States and foreign governments and foreigners: see Morris, Federal Justice in the Second Circuit: A History of the United States Courts in New York (1987) at 6-11.
Abortive attempts to introduce a federal court of much broader jurisdiction than existed at each of these times were made in 1967, 1973 and 1974[317]. All were criticized, particularly by those who saw the proposals as erosions of the status of the Supreme Courts of the States[318]. It was also contended by some that the introduction of a new structure of courts would be cumbersome, expensive, would duplicate existing judicial facilities, and would give rise to unnecessary jurisdictional disputes and forum-shopping[319]. One of the most vociferous critics was Sir Walter Campbell, who became Chief Justice of the Supreme Court of Queensland. His Honour predicted that litigants would "forum shop" and that there would be increasing, stultifying and frustrating problems of jurisdiction[320]. And so it has proved[321].
[317]See Crawford, "The New Structure of Australian Courts", (1977-78) 6 Adelaide Law Review 201 at 202.
[318]Street, "The Consequences of a Dual System of State and Federal Courts", (1978) 52 Australian Law Journal 434.
[319]Else-Mitchell, "Burying the Autochthonous Expedient?", (1968-69) 3 Federal Law Review 187.
[320]See "The Relationship Between the Federal Court and the Supreme Courts of the States", (1979) 11(1) University of Queensland Law Journal 3.
[321]The preamble to the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (and the preamble to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), which is in substantially the same form) acknowledge the problems that have arisen, if in a somewhat understated way:
"… [I]nconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and … it is desirable:
(a)to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court;
(b)to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, would be entirely or substantially within the jurisdiction (other than any accrued jurisdiction) of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases; and
(c)if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court."
In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd[322] Mason J, with whom Stephen J agreed, said[323]:
"Lurking beneath the surface of the arguments presented in this case are competing policy considerations affecting the role and status of the Federal Court and the Supreme Courts of the States. There is on the one hand the desirability of enabling the Federal Court to deal with attached claims so as to resolve the entirety of the parties' controversy. There is on the other hand an apprehension that if it be held that the Federal Court has jurisdiction to deal with attached claims, State courts will lose to the Federal Court a proportion of the important work which they have hitherto discharged, work which the Federal Court has no jurisdiction to determine if it be not attached to a federal claim."
[322](1981) 148 CLR 457.
[323](1981) 148 CLR 457 at 513.
In dissent Aickin J was of the view that there was no such attached jurisdiction, "whatever the degree of overlap there may be in the facts relevant to the two kinds of matter"[324], and Wilson J would have permitted the attached or pendent questions (however they might be described) to be decided only when the federal question could not be resolved without the determination of the non‑federal question[325].
[324](1981) 148 CLR 457 at 534.
[325](1981) 148 CLR 457 at 545.
Gibbs J, one of the majority, said that "if a party claims relief on two different legal grounds, but the facts on which the relief is sought on each ground are identical, and the relief sought on each ground is the same in substance if not in form, there is only one matter for determination."[326]
[326](1981) 148 CLR 457 at 499.
Mason J (with whom Stephen J agreed) held that the Federal Court had jurisdiction to decide an "attached non-severable claim", being one where the claims depend on common transactions and facts that arise out of a common sub‑stratum of facts[327]. The approach of Barwick CJ was somewhat different. It was almost as if his Honour started with a presumption in favour of jurisdiction when he said "[t]o be outside the accrued jurisdiction, however, the other matter must be separate and disparate from the matter in relation to or in connexion with which federal jurisdiction has been attracted."[328]
[327](1981) 148 CLR 457 at 512.
[328](1981) 148 CLR 457 at 474.
Murphy J was of the opinion that the Federal Court might determine "the whole case, that is, … resolve judicially every incidental and related issue, every issue which is not separate and distinct from those which arise under a direct grant of federal jurisdiction under s 77 of the Constitution"[329].
[329](1981) 148 CLR 457 at 520.
In Stack v Coast Securities (No 9) Pty Ltd, three Justices (Mason, Brennan and Deane JJ) described[330] the identification of what fell within what had come to be called in Fencott v Muller[331] the accrued jurisdiction of the Federal Court as a recurrent problem. The resolution of that problem in Stack was said to depend upon the exercise, as a matter of impression, of a practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.
[330](1983) 154 CLR 261 at 294.
[331](1983) 152 CLR 570.
No doubt whilst this is, with respect, about as helpful a statement as can be made for the resolution of what is an inevitable and almost intractable problem, obviously minds may and will differ in the making of practical judgments and in the forming of impressions.
This brief discussion of the problems which were long foreshadowed and which have repeatedly arisen when separate superior courts were actively placed in a position of adjudicating upon the same or related causes of action, is enough to demonstrate the great desirability of a legislative solution to the problems. The cross-vesting legislation which has the support of the Commonwealth and all of the States and the Territories represents such an attempt but regrettably, does not, in the respects to which I will refer, have the necessary constitutional foundation for its validity.

I can find nothing in Ch III of the Constitution even to suggest that the States might, whether with or without the concurrence of the Commonwealth, invest federal courts with State jurisdiction.

The opening section is in these terms:
"71. The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes."
This section is concerned with the judicial power of the Commonwealth and, as the use of the definite article indicates, the whole of the judicial power of the Commonwealth. It says nothing of, and is obviously not concerned with State judicial power.
Section 72 states the rules for the appointment and terms of Justices of the High Court and other courts created by the Commonwealth Parliament.
Section 73 confers and defines the appellate jurisdiction of the High Court to include appeals from the Supreme Court of any State or of any other court of any State from which at the time of federation, an appeal lay to the Queen in Council.
Section 74 prohibited appeals to Her Majesty in Council in inter se questions except in cases in which this Court was prepared to certify that the question raised ought be determined by Her Majesty in Council.
Section 75 provides that the High Court shall have original jurisdiction in a variety of matters, all being matters (save for the diversity jurisdiction) of particular relevance to the Commonwealth or a Commonwealth head of power. The same may be said of s 76 which empowers the Commonwealth Parliament to make laws conferring further original jurisdiction on the High Court, again with respect to matters having a clear Commonwealth flavour, or necessary for the adjudication of rights and claims under the laws of different States.
The introductory words of s 77, "[w]ith respect to", although ample in scope[332], tie the powers of the Commonwealth Parliament in defining the jurisdiction of any federal court other than the High Court, to any of the matters mentioned in ss 75 and 76 of the Constitution. Of particular importance is s 77(iii), which, while empowering the investment of federal jurisdiction in any court of a State, is silent as to the possibility of any reciprocal investment. The applicants' arguments rightly lay great stress on this provision.
[332]Herald and Weekly Times Ltd v The Commonwealth (1966) 115 CLR 418.
The other sections of the Chapter contain no suggestions that a federal court might be a repository of State judicial power. Section 78 contains the limiting words "[t]he Parliament may make laws … in respect of matters within the limits of the judicial power." Section 79 uses the words "[t]he federal jurisdiction of any court" and in terms is concerned with federal jurisdiction. And the operation of s 80 is restricted to indictments for any offence against any law of the Commonwealth.
Because of the language of Ch III of the Constitution, particularly s 77 thereof, and for the reasons stated by McHugh J in Gould v Brown and those given by his Honour in these cases I would hold that the States may not invest federal courts with the jurisdiction of the former.
The jurisdiction of the Federal Court in the Australian Capital Territory is a separate matter which I will deal with in the case of Spinks & Ors v Prentice, heard concurrently with the other two cases.
It is now necessary to dispose of each of the cases.
Re Wakim & Ors; Ex parte McNally & Anor
Re Wakim & Ors; Ex parte Darvall
In July 1985 Mr Wakim was awarded damages in the Supreme Court of New South Wales for personal injuries sustained in an accident in the course of his employment by Tedros and Nawal Nader. His action was brought against Tedros Nader only. In October 1985 Tedros Nader was declared bankrupt and the Official Trustee in Bankruptcy ("the Trustee") was appointed trustee of his estate. In June 1987 the Trustee brought proceedings in the Supreme Court of New South Wales against Nawal Nader, seeking orders that her partnership with Tedros Nader was or had been dissolved. A firm of solicitors in which Messrs McNally were partners was retained by the Trustee, and the firm in turn retained Mr Darvall QC.
In March 1990 the parties settled. It was agreed that Mr Wakim be paid $10,000. In July 1993 Mr Wakim brought proceedings in the Federal Court against the Trustee. One of his claims was made pursuant to s 176 of the Bankruptcy Act 1966 (Cth), on the basis that the Trustee had been guilty of a breach of duty as trustee of the bankrupt estate. Following the commencement of those proceedings, Mr Wakim brought two further actions against Mr Darvall and the firm of solicitors in negligence. The claims were brought in the Federal Court pursuant to s 4(1) of the New South Wales cross-vesting legislation.
Mr Darvall and the solicitors contend that the Federal Court has no jurisdiction to hear the action in negligence and seek a writ of prohibition.
There are, it can be seen, three separate proceedings which have been brought by Wakim: against Mr Darvall, the solicitors and the Trustee in negligence, and against the last also for orders pursuant to ss 176, 178 and 179 of the Bankruptcy Act[333]. No claim as pleaded is alleged to be dependent upon either of the other claims.
[333]Sections 176, 178 and 179 provide:
"176(1) Where, on application by the Inspector-General or by a creditor who has or had a debt provable in the bankruptcy, the Court is satisfied that a person who is or has been a trustee of a bankrupt's estate has been guilty (whether before or after the commencement of this section) of breach of duty in relation to the bankrupt's estate or affairs, subsection (2) applies.
(2) The Court may make any one or more of the following orders:
(a)an order directing the person to make good any loss that the bankrupt's estate has sustained because of the person's breach of duty;
(b)if the person is a registered trustee – an order directing the Inspector-General to cancel the person's registration as a trustee;
(c)any other order that the Court considers just and equitable in the circumstances.
...
178 If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable.
179(1) The Court may, on the application of the Inspector-General, a creditor or the bankrupt, inquire into the conduct of a trustee in relation to a bankruptcy and may do one or both of the following:
(a)remove the trustee from office; and
(b)make such order as it thinks proper.
(2) The Inspector-General or a creditor may at any time require a trustee to answer an inquiry in relation to the bankrupt's estate or affairs."
Applying the test propounded in Stack of impression and practical judgment I do not think that there is here one justiciable controversy. The absence of any attempt to join any party as a third party, the different nature of the claims made against the various defendants, the fact that there are three separate proceedings and the entirely non-federal nature of the claims against the solicitors and Mr Darvall take these matters outside the scope of any accrued, attached, or pendent jurisdiction of the Federal Court (whatever term be appropriate). It is not enough, in my opinion, that some of the facts which will have to be established to make out one claim may need also to be proved to make good another claim. It is only if there is a federal claim actually made in an action that any other claims of a non-federal nature may be determined by the Federal Court in that action, and whether they should be so determined is a matter that will fall for the determination of the Federal Court in any particular case[334].
[334]Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475 per Barwick CJ. The exercise of accrued jurisdiction is discretionary and not mandatory.
In making their applications for prohibition the prosecutors have acted promptly and have not been guilty of any conduct which, if discretionary considerations be relevant, would operate to disqualify them from obtaining relief. As Gibbs CJ said in R v Ross-Jones; Ex parte Green[335]:
"If … a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right".
[335](1984) 156 CLR 185 at 194.
The question as to the relief which should be granted is complicated by the fact that Mr Darvall died after the hearing of argument. The application by him requires some separate consideration. With respect to the solicitors I would order that a writ of prohibition issue to the respondents restraining the first respondents and each of them from hearing and determining the application brought by the second respondent in proceedings in the Federal Court of Australia numbered NG 65/1994 and restraining the second respondent from further proceeding with those Federal Court proceedings, and I would further order that the second respondent, Mr Wakim, pay the prosecutors' costs of and incidental to these proceedings and the Federal Court proceedings.
Because I am in a minority it is unnecessary for me to reach any concluded view about what relief, if any, should be afforded to Mr Darvall's executors or administrators, or otherwise in respect of his application. No legal personal representative has been appointed. I would accordingly join in the order of the majority with respect to his claim that the costs of it should be reserved for consideration by a single Justice on application made with not less than seven days' notice.
Re Brown & Ors; Ex parte Amann & Anor
On 30 November 1992, the Federal Court ordered that Amann Aviation Pty Ltd (a New South Wales company) be wound up. Mr Brown was appointed as liquidator. On 7 July 1995 the Federal Court ordered pursuant to s 596A of the Corporations Law that summonses be issued requiring various persons, including the applicants, to attend the Federal Court to be examined about the affairs of the company, and that these persons produce certain documents to the Court.
Following the making of these orders, Mr Gould and others – but not Mr Amann – applied to the Federal Court seeking the following[336]:
(i)     a declaration that the Federal Court had no jurisdiction to make the winding up orders;
(ii)    a declaration that that Court had no jurisdiction to order and conduct the examinations;
(iii)   an order that the summonses issued pursuant to the examination orders be set aside (there was no application to seek the discharge of the winding up orders).
[336]See Gould v Brown (1998) 193 CLR 346.
After the applications were filed, Black CJ referred some questions to the Full Court pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth)[337]. The Full Court answered the questions by unanimously holding that the Court did have jurisdiction to make winding up orders, and to order and conduct examinations under the Corporations Law. However, seemingly because of the nature of the stated case, no order was entered dismissing the notice of motion that led to the proceedings in the Full Court, but the examinations continued.
[337]Section 20(1A) provides:
"If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter shall be exercised by a Full Court."

Mr Gould then appealed to the High Court and it was in that appeal that the Court was evenly divided. Pursuant to s 23(2)(a) of the Judiciary Act 1903 (Cth) the decision of the Full Court was therefore affirmed[338]. In the present proceedings, the applicants seek prerogative and other relief.
[338]Section 23(2)(a) relevantly provides:
"… if the Court is equally divided in opinion … in the case where a decision … of the Federal Court of Australia … is called in question by appeal or otherwise, the decision appealed from shall be affirmed …"
Because Mr Amann was not a party to the earlier litigation he is clearly not precluded on the basis of res judicata or any issue estoppel from agitating any issue decided in Gould v Brown. I will return to his situation later.
Mr Gould is in a different position. Because this Court was evenly divided in Gould v Brown the decision of the Full Federal Court effectively upholding the validity of the cross-vesting legislation became the final decision in the case. However, as I have said, formal orders dismissing the motion and giving effect by record to that final decision were not entered.
This Court has now, by a significant majority, taken an entirely different view of the validity of the cross-vesting legislation from that of the Federal Court and three members of this Court in Gould v Brown. I confess to having a strong inclination against a consequence adverse to a litigant in this Court arising out of the unfortunate circumstance that this Court was unable to reach a majority decision on a matter of such critical importance as the jurisdiction of the Federal Court of Australia.
The question becomes then whether the doctrines of res judicata and issue estoppel or other matters operate to deny Mr Gould the relief he seeks or other relief.
The importance of the doctrine of res judicata in any legal system is not to be understated. As Campbell J said in Jeter v Hewitt[339]:
"The maintenance of public order, the repose of society, and the quiet of families, require that what has been definitely determined by competent tribunals shall be accepted as irrefragable legal truth."
[339]63 US 352 at 364 (1859).

The doctrine is one of almost universal application, was part of early Roman law[340] and is part of the law of the Continental countries of Europe[341].
[340]Mommsen, Krueger and Watson (eds), The Digest of Justinian, Bk 44, Title 2; Tomkins and Lemon (eds), The Commentaries of Gaius on the Roman Law, Bk IV, s 107.
[341]For example see the French Civil Code, Bk III, Ch VI, s III.
In Blair v Curran[342], Dixon J spoke of the distinction between res judicata and issue estoppel. His Honour said:
"[I]n the first [res judicata] the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second [issue estoppel], for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."
Earlier Dixon J had said[343]:
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."
[342](1939) 62 CLR 464 at 532.
[343](1939) 62 CLR 464 at 531.
Although Fullagar J dissented in Jackson v Goldsmith, what his Honour said of the principle of res judicata was to no different an effect from what the other members of the Court stated[344]:
"[W]here an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action." (emphasis added)
[344](1950) 81 CLR 446 at 466.
This case is said to be a case of res judicata so far as Mr Gould is concerned because his proceedings have passed into judgment, that is to say the judgment of the Full Court of the Federal Court.
Order 36 of the Federal Court Rules (Cth) is concerned with the entry of judgments and orders. Rule 1 provides that a party desiring to enter an order shall lodge a draft of the order with the Registrar. The use of the word "desiring" makes it plain that a party is not obliged to enter an order. Rules 2, 3 and 4 provide that the Registrar may settle the draft either with or without an appointment for the attendance of the parties and is obliged to do so on or after the appointment (if of course one has been made). Rules 5, 6 and 7 empower the Registrar to draw and settle an order by direction of the Court or by authority of a rule notwithstanding that no draft has been lodged and no appointment for the settlement of an order has been made. Such a draft is subject to review by the Court but r 5(3) contemplates that the Registrar is not to exercise his or her powers of settlement of an order under r 5 unless the Court so directs or a party so requests. Rule 8(1) provides that a party may enter an order at any time and r 8(2) requires that an order be entered in various circumstances including where an appeal from an order has been instituted, or an application for leave to appeal from the order has been made. (The rule does not in terms refer to an application for leave to appeal to the High Court or an appeal to the High Court.)
The fact that the Rules do not compel either the Registrar or a party to enter a judgment and thereby to make it a part of the record of the Court serves to distinguish an order or judgment of the Federal Court from the judgment under consideration in Bell v Holmes[345]. In that case McNair J held that a plea of res judicata was not to be defeated by the non-production of a record of the judgment because under Order 24 of the County Court Rules (UK) the Registrar was required to enter up the judgment[346].
[345][1956] 1 WLR 1359 at 1367; [1956] 3 All ER 449 at 456.
[346]But see Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996), pars 98, 101.
Although the doctrine of res judicata is of very broad application it has been strongly suggested that exceptions to it may exist in the case of judicial review by way of prerogative writs[347]. In R v Secretary of State for the Environment; Ex parte Hackney London Borough Council, May LJ, sitting as a member of a Divisional Court, delivered the Court's judgment[348]:
"[S]imilar considerations apply to proceedings for judicial review. In such proceedings, there are no formal pleadings and it will frequently be difficult if not impossible to identify a particular issue which the 'first' application will have decided. Moreover, we do not think that there is in proceedings brought under Order 53 any true lis between the Crown, in whose name the proceedings are brought (and we venture a reservation about whether or not issue estoppel could operate against the Crown), and the respondent or between the ex parte applicant and the respondent. Further, we doubt whether a decision in such proceedings, in the sense necessary for issue estoppel to operate, is a final decision: the nature of the relief, in many cases, leaves open reconsideration by the statutory or other tribunal of the matter in dispute."
[347]See the discussion by Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996), pars 356-359.
[348][1983] 1 WLR 524 at 538-539.
The Court adopted this statement of Professor Wade[349]:
"[I]n these procedures the court 'is not finally determining the validity of the tribunal's order as between the parties themselves' but 'is merely deciding whether there has been a plain excess of jurisdiction or not'. They are a special class of remedies designed to maintain due order in the legal system, nominally at the suit of the Crown, and they may well fall outside the ambit of the ordinary doctrine of res judicata." (footnotes omitted)
[349]See Wade, Administrative Law, 5th ed (1982) at 246.
On appeal Dunn LJ said[350]:
"Although not necessary for my decision I also incline to the view that the Divisional Court was right to hold that the doctrine of issue estoppel cannot be relied on in applications for judicial review, although the court has an inherent jurisdiction as a matter of discretion in the interests of finality not to allow a particular issue which has already been litigated to be re‑opened. This depends upon the special nature of judicial review under RSC, Ord 53 which makes it different both from ordinary civil litigation inter partes and from criminal proceedings. Like the Divisional Court, I adopt the passage from Professor Wade's Administrative Law … set out in the judgment of the Divisional Court".
[350]R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 WLR 592 at 602; [1984] 1 All ER 956 at 964-965.

However in R v Mayor and Justices of Bodmin an order nisi made on a second application for a writ of mandamus was discharged on the ground that an earlier application (on the same evidence) had been rejected[351].
[351][1892] 2 QB 21.
The authors (Spencer Bower, Turner and Handley) of The Doctrine of Res Judicata[352] express the opinion that res judicata is so fundamental that it is hard to think why an order granting judicial review should not give rise to res judicata and estoppels[353]. And with that as a general proposition it is not easy to disagree. But equally, it is not easy to approve of a slavish application of the doctrine to a situation as unique as this one. To adapt the language of Campbell J[354], it can hardly be said that the result in Gould v Brown has significantly contributed to public order and the repose and quiet of families. Nor can it be said that that result constitutes a definite determination for acceptance as irrefragable legal truth. As Lord Goff of Chieveley recognised[355], a practical exception to the rule of res judicata exists to enable "justice to be done in rare cases". But the fact that the relief is claimed nominally at the suit of the Crown, and that the writs are sought to prevent an excess of jurisdiction or to cure some other like serious and fundamental defect in the exercise of a jurisdiction, is enough to require that these remedies be given separate consideration and to afford a basis in some circumstances for different treatment of the doctrine of res judicata in respect of them[356].
[352]3rd ed (1996) at 198-202.
[353]Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996) at 200.
[354]Jeter v Hewitt 63 US 352 at 364 (1859).
[355]Republic of India v India Steamship Co Ltd [1993] AC 410 at 424.
[356]For a brief history of the writs see Halsbury's Laws of England, 4th ed, vol 1(1), par 80.
What Knox CJ and Gavan Duffy J said of prohibition in R v Hibble; Ex parte Broken Hill Proprietary Co Ltd is of relevance to this case[357]:
"The real object of the writ was not merely to prevent an individual being vexed by an order which might affect him in his person or property, made by a person or tribunal assuming to have jurisdiction to make such an order, but having no such jurisdiction, but also to prevent any person or tribunal from assuming a jurisdiction which has not been conferred on him or it. So far as the writ is regarded as a means of protection for the individual who has not disentitled himself by his conduct, the necessity of the case demands that it shall be granted at any time until all possible operation of the order complained of has been completely exhausted. If, on the other hand, the issue of the writ be regarded as intended to keep an inferior Court within the limits of its jurisdiction, it should never be too late to get rid of what might be regarded in the future as a precedent for the exercise of a jurisdiction which is not really justified by the law."
[357](1920) 28 CLR 456 at 463.
I have formed the view that the doctrine of res judicata does not apply to this exceptional case for these reasons: no judgment has been entered and there was no compulsion upon anyone to enter judgment in Gould v Brown; the case is a constitutional case; matters of great public importance are involved; this Court has held that the Federal Court never had any jurisdiction in the matter at all; the relief sought in the previous suit was prerogative relief brought in the name of the Crown; and, the applicants failed only because of the extremely rare circumstance of this Court being unable to reach a majority decision.
There is a further question however whether for other reasons relief should be refused to Mr Gould. A limit is imposed upon the time within which an application for certiorari must be made. An application for an order nisi for a writ of certiorari "shall not be granted" unless it is made within six months after the date of judgment or order[358]. No time limits are imposed by the Rules upon the writ of prohibition. Order 60 r 6(1) permits a Court or a Justice to abridge or enlarge the time appointed by the Rules for doing an act "upon such terms, if any, as the justice of the case requires."
[358]High Court Rules (Cth), O 55 r 17(1).
In my opinion, the justice of Mr Gould's case does require that time be extended to such extent as may be necessary. Delays can readily be explained by what I have described as the unfortunate circumstance that different courts and indeed different judges of the same court took diametrically opposed views of Mr Gould's original proceedings. Those are very special circumstances indeed, in practice very unlikely to be repeated, particularly when it is the convention of this Court to sit seven Justices in constitutional cases whenever that is possible, as it usually is.
I would grant any extensions of time necessary to enable Mr Gould to pursue his application in this case as I would Mr Amann. Apart from the fact that Mr Gould has borne the heat and burden of this expensive and prolonged litigation, explicable and understandable delay is hardly a circumstance which should operate to deny him relief to which he might otherwise be entitled. If Mr Gould should have relief, as I think he should, there is every reason why Mr Amann should be similarly entitled.
But the relief to which they are entitled needs some further consideration. In Ainsworth v Criminal Justice Commission[359], this Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) held in a case in which neither mandamus nor certiorari could be granted that the applicant had a real interest in obtaining, and was entitled to obtain a declaration that there had been a failure to observe procedural fairness because of the harm caused to his business and commercial reputation. The case also demonstrates the need for flexibility on the part of the courts to give an affirmative remedy where one is deserved, will have utility and may lawfully be given.
[359](1992) 175 CLR 564.
Mr Amann seeks prohibition, certiorari and orders for the delivery up of tapes and transcripts of the examination. Here Mr Amann remains subject to a compulsory order to sign the transcript of his examination. It has not been formally terminated. Accordingly, there would remain something to prohibit but certiorari would if granted prevent any further steps under the order for examination. Mr Gould seeks similar relief.
I would grant certiorari to both prosecutors to quash the orders made by the second respondent in proceedings VG3304 of 1992 on 7 July 1995 ordering the prosecutors to attend before the Federal Court for examination.
But for the matters referred to by Gummow and Hayne JJ in their reasons for judgment[360], I would have declared that the Federal Court had no jurisdiction to make the winding up order of 30 November 1992 and made other orders consequential thereupon. However in the exercise of the Court's discretion and principally because of the likely supervening rights of third parties, such a declaration should not be made in respect of the winding up order itself.
[360]Reasons of Gummow and Hayne JJ at [165].
I would also order that the fourth respondents pay the prosecutors' costs in this Court.
Spinks & Ors v Prentice
On 26 June 1998 the Federal Court made orders pursuant to s 597(9) of the Corporations Law of the Australian Capital Territory for the production of documents by various people, including the applicants. On 29 June 1998, the Federal Court issued summonses pursuant to s 596A or s 596B to various people, including the applicants, requiring them to attend examinations on matters relating to the winding up of a company, White Constructions (ACT) Pty Ltd, incorporated in the Australian Capital Territory. When the summonses were returned, the applicants sought adjournment of the proceedings, and, after notice was given to the Attorneys-General under s 78B of the Judiciary Act, sought to argue on constitutional grounds that the Court had no jurisdiction to issue the summonses.
Branson J who heard the application refused to grant any adjournment and to extend the time in which an application could be made to review the decision to issue the summonses. The Full Court of the Federal Court constituted by Beaumont, Burchett and Lehane JJ dismissed an appeal.
Both in the Federal Court and here the applicants argued that s 51(1) of the Corporations Act 1989 (Cth) is unconstitutional because it purports to confer jurisdiction "with respect to civil matters arising under the Corporations Law of the Australian Capital Territory".
Section 51(1) of the Corporations Act does in terms confer on the Federal Court jurisdiction "with respect to civil matters arising under the Corporations Law of the Capital Territory."
Section 122 of the Constitution provides as follows:
"The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit."
Section 77(i) of the Constitution expressly permits Parliament to make laws "defining the jurisdiction of any federal court other than the High Court".
In Northern Territory v GPAO[361], Gleeson CJ and Gummow J (with whom Hayne J agreed) said this:
"[Section] 76(ii), in conjunction with s 77(i) of the Constitution, operates in accordance with its terms and permits the conferral of jurisdiction on federal courts in matters arising under laws made under s 122 of the Constitution."
[361](1999) 73 ALJR 470 at 486; 161 ALR 318 at 340.
Accordingly, the Federal Court had jurisdiction to make the orders that it did in this case and I agree with the orders of the majority.

Re Wakim; Ex parte McNally

Re Wakim; Ex parte McNally

[1999] HCA 27

Tags

Winding Up

Case

Re Wakim; Ex parte McNally

[1999] HCA 27

Tags

Winding Up

Case

Re Wakim; Ex parte McNally

[1999] HCA 27