The Duty of the Court Where the Parties Do Not Raise the Constitutional Point
16 Counsel were unable to refer the Court to any reported case in which the Court itself has raised the point that attracts the operation of s 78B. On the face of the section however its operation is not conditioned upon the constitutional point being raised by one of the parties. It is the character of the cause before the Court that determines whether the operation of the section is attracted. High Court practice appears to support this view. A former Registrar of the High Court, Mr F.W.D. Jones, writing in the Australian Bar Review in 1994 and discussing the content of s 78B notices and the need to specify the constitutional points raised in a case, said:
"The parties can never be entirely satisfied that they have covered all eventualities where a s 78B notice may be required. There is always the chance that a justice may raise an issue during the course of the argument which counsel had not considered. When this occurs, the court is required to adjourn the proceedings to allow fresh notices to be sent to the attorneys-general." The Story Behind the Headlines: Constitutional Procedures (1994) ABR 148 at 158, see also another version of the same article in Jones, High Court Procedure under the Judiciary Act (1994) 68 ALJ 442 at 447.
17 In R v Bevan Ex parte Elias (1942) 66 CLR 452, an application for a writ of habeas corpus fell outside the original jurisdiction of the High Court, that Court not having a general original jurisdiction in matters arising under laws of the Commonwealth. But once a constitutional issue was raised by the Court the application for habeas corpus was encompassed within its accrued jurisdiction, the Court having original jurisdiction by virtue of s 30 of the Judiciary Act 1903 (Cth) to deal with "all matters arising under the Constitution or involving its interpretation".
18 Starke J at 465, noting that the Defence Act 1903-1941 conferred no original jurisdiction upon the Court in relation to the proceedings of courts-martial, which were in issue before the Court, but went on to say:
But consideration has led me to the conclusion that the matter before us involves the interpretation of the Constitution, which founds the original jurisdiction of this Court, though we heard no argument to that effect from counsel. And the jurisdiction being thus attracted, this Court is clothed with full authority essential for the complete adjudication of the matter and not merely the interpretation of the Constitution.
.
.
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Once jurisdiction is acquired by the Court, that jurisdiction is not lost by reason of the rejection of a constitutional point."
And Williams J, at 480, said:
"A constitutional question arises when its determination becomes necessary upon the ascertained or asserted facts of the case…The jurisdiction of this Court once vested is not lost by reason of the rejection of the constitutional point."
After referring to Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665, his Honour said:
"In the last-mentioned case Latham CJ said: "The fact that the constitutional objection has failed does not deprive the Court of jurisdiction if the 'facts relied on were bona fide raised, and were such as to raise' the question"."
Section 30(a) of the Judiciary Act, under consideration in that case, used the same phrase as that which appears in s 78B, namely:
"A matter arising under the Constitution or involving its interpretation."
19 The word "matter" in s 78B bears the same meaning as in Chapter III of the Constitution. In that sense it embraces the "subject matter for determination in a legal proceeding" - Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265. It is the "justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy" - Fencott v Muller (1983) 152 CLR 570 at 603. The content of the controversy which constitutes a matter "is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out" - Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 294. See also Re Wakim ex parte McNally (1999) 163 ALR 270 at 310-313 (Gummow and Hayne JJ).
20 The scope of a "matter" in respect of which the Court has jurisdiction is defined by the controversy between the parties, but nothing in the concept of matter as developed in the cases requires that its characterisation as "arising under the Constitution or involving the interpretation of the Constitution" should depend critically upon the particular pleadings, claims or assertions made by the parties. Assertion or non-assertion of a constitutional question is not determinative of the character of the matter. Toohey J said in Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 that:
"In terms of s 78B, a cause does not "involve" a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical. But it must be established that the challenge does involve a matter arising under the Constitution."
In that case the applicant's argument was based on a misunderstanding of the structure of the Family Court involving no more than a consideration of the division of functions that is a feature of any court. The mere assertion that there is a constitutional point, will not establish that the matter is one arising under the Constitution or involving its interpretation. On the other hand the failure to assert the constitutional point does not mean that a matter is not one arising under the Constitution or involving its interpretation.
21 In Boath v Wyvill (1989) 85 ALR 621 the Full Court, noting the reference in s 106 of the Australian Constitution to the continuation of the Constitutions of the States, said at p 634:
"Questions as to the legislative competence of State parliaments thus, within the meaning of s 78B of the Judiciary Act 1903 (Cth)…involve a matter involving the interpretation of ss 106 and 107 of the Constitution, even if that matter may not, in a particular case, arise under those provisions. Accordingly, when these proceedings first came before the Full Court on 21 December 1988, the court (without any opposition by the parties) gave directions for the serving of the necessary notices upon Attorneys-General, pursuant to s 78B of the Judiciary Act."
It would seem from that passage that the parties had raised an issue concerning the territorial limitations of State legislative power, but had not explicitly raised it as a matter arising under the Commonwealth Constitution. That characterisation seems to have been perceived by the Court and led to the requirement to issue s 78B notices. That can be inferred from the text of the judgment. Even if incorrect, as a matter of inference, the quoted passage supports the proposition that a s 78B notice would be necessary in a case challenging the legislative competence of the State Parliaments notwithstanding that it did not expressly raise any issue arising under the Commonwealth Constitution.
22 A cause may involve a matter arising under the Constitution or involving its interpretation notwithstanding that it is not raised on the pleading or otherwise asserted by any of the parties. That is not to say that the Court should be astute to excavate constitutional questions out of the causes before it. But where, as in this case, it appears that there is a real and substantial constitutional issue, the Court's duty is plain. For where there is such a question it goes to the authority of the Court to continue with the proceeding and so has something of the character of a jurisdictional issue. In this particular case there is the additional and practical concern that the constitutional question affects the statutory basis for the application. Were the applicant to succeed in its case at first instance, without the point being addressed, there is the possibility that it might thereafter be raised on appeal. Quite independently of s 78B, the constitutional question is a threshold issue and cannot be avoided.
23 No counsel has been in a position in the present case to challenge the characterisation of the point raised by the Court as arising under the Constitution or involving its interpretation. Counsel for the applicant asserted confidence in the validity of s 51AA, but did not develop argument. It can be accepted that the assertion of a hopeless point characterised as a constitutional point does not attract the operation of s 78B. However, in my opinion, there is a live issue in this case and although there seems to be some difference between the information which I have obtained from my own inquiries and that which Mr McKerracher has obtained from the Australian Government Solicitor, I understand that the same point has been the subject of a s 78B notice in other proceedings in the Court. Whether that is so or not is in a sense immaterial to the determination I have to make. In my opinion this action is a cause in which there is a matter arising under the Constitution or involving its interpretation and that attracts the operation of s 78B which means it is the duty of the Court not to proceed unless and until notice of the cause specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and the States and Territories and a reasonable time has elapsed.
24 Under s 78B(2) it is possible for the Court to continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation. It may be arguable that the issues concerning alleged contraventions of s 52 of the Trade Practices Act would fall into that category and attract that discretion. However there is little doubt that the principal argument in this case concerns the application of s 51AA and the claims under s 52 are, in a sense, ancillary to it. Indeed, it may be difficult to see them as severable from the matter in which the constitutional point arises. In any event there is little enthusiasm from the parties, and I quite understand that, for splitting the case to hear and deal with the s 52 matters as a separate issue. I propose therefore to adjourn the hearing of the application to allow notices to be issued under s 78B.
25 In the ordinary course, if one or other of the parties had raised the constitutional point in its pleadings, the question of the issue of a s 78B notice would have arisen well prior to the trial date. Although in this case there were case management conferences prior to trial, the issue was not raised. The Court's awareness of the point as arising in this case was only enlivened upon a review of the pleadings in the weekend prior to the trial and recent unrelated consideration of the issue by the trial judge.
26 It is probably not possible to construct a fail safe mechanism to avoid recurrence of the inconvenient course thrust upon the Court and the parties in this case. It may be, however, that in future the possibility of s 78B applying to a case should routinely be checked by solicitors and counsel for the parties and, in a case where there is any doubt, should be raised in a directions hearing or case management conference.
27 The provisions of s 78B themselves may merit further review to broaden the discretion of the Court to proceed with a cause to which it applies provided that reasonable notice is given to Attorneys-General so that they may intervene at some time before the conclusion of the proceedings which could be adjourned part heard for that purpose or, in a suitable case, to allow submissions by any intervening Attorney-General after the evidence and before judgment. That, however, is a matter for the legislature.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.