Analysis
55 Grounds 1 and 2 of the Notice of appeal raised the issues of matter and standing. Ground 1 is to the effect that the primary judge erred in failing to decide whether the appellants' claim gave rise to a "matter" within the meaning of Ch III of the Constitution and Ground 2 is to the effect that the primary judge erred in failing to find that the appellants had standing to seek the relief they claimed.
56 Ground 1 is not a complaint about how or on what basis a discretion not to consider the linked questions of standing and matter founding jurisdiction in favour of deciding a case on its merits was exercised. It is a contention to the effect that the primary judge failed to decide an issue which he was required or bound to decide, and indeed that was how the appellants presented the argument to this Court.
57 For his part, the respondent put an argument diametrically opposed to that of the appellants. He contended the primary judge had a discretion not to decide the standing or issue of jurisdiction which he exercised without error and that this Court's approach should be to consider first issues relating to the merits and if persuaded that there is no error, then it should dismiss the appeal without deciding any issue with respect to standing or jurisdiction. If, and only if, the Court considers that the primary judge erred on the merits, should the Court go on to consider standing or jurisdiction and on that issue (so the respondent contended) the Court should hold that standing or jurisdiction is not made out. The oddity of the possible outcome (ie, the appellants "succeed" on the merits, but fail on standing or jurisdiction) was acknowledged by counsel for the respondent.
58 It is not necessary for this Court to consider the respondent's argument as outlined above. We have concluded that the primary judge had a discretion not to consider the standing or jurisdiction issue once he had reached the conclusion he had on the merits and there was no error in the way in which he exercised the discretion. As we have reached the same conclusion as his Honour on the merits we do not need to decide the issue of standing or jurisdiction.
59 The question whether a court exercising federal jurisdiction, and in particular a court lower in the judicial hierarchy than the High Court, must always decide the question of jurisdiction even when it is otherwise satisfied that the claim would fail on a non-jurisdictional question has been the subject of learned extra curial debate. In chronological order, the progress of the debate is evident in Lim B, "The case for hypothetical jurisdiction: Postulating jurisdiction in unmeritorious civil proceedings" (2012) 86 ALJ 616; Leeming M Authority to Decide: The Law of Jurisdiction in Australia (The Federation Press, 2012) pp 35-44; Lim B, "Hypothetical jurisdiction: A reply to Justice Mark Leeming" (2013) 87 ALJ 680; Leeming M, "Hypothetical jurisdiction: A rejoinder" (2013) 87 ALJ 685; Leeming M Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, The Federation Press, 2020) pp 37-42.
60 Putting that debate to one side, each of the authorities to which the primary judge referred, Combet, Wilkie and Phong, support the existence of a discretion to determine a proceeding on its merits without considering an issue of standing or jurisdiction. A clear statement of the discretion appears in Wilkie (at [57]):
Notwithstanding statements which have linked the need for standing to the need for a "matter" founding jurisdiction, the High Court has not in practice insisted on determining standing always as a threshold issue but has treated itself as having discretion in an appropriate case to proceed immediately to an examination of the merits. A notable instance of that occurring in a context not dissimilar to the present was Combet v The Commonwealth. There the Full Court, by majority, answered a question reserved for its opinion to the effect that the plaintiffs had not established a basis for any of the relief they sought, whilst stating that it was unnecessary to answer a preceding question reserved which asked whether the plaintiffs or either of them had standing to seek that relief. No argument was put that the approach taken by the majority in Combet was wrong or was unavailable to be taken in the Wilkie proceeding or the AME proceeding.
(Citations omitted.)
61 The discretion was described in the earlier cases (not involving constitutional issues) of Robinson v Western Australian Museum [1977] HCA 46; (1977) 138 CLR 283 at 302 per Gibbs J and Onus v Alcoa of Australia at 38 per Gibbs CJ. In the exercise of federal jurisdiction, the New South Wales Court of Appeal adopted the same approach in Barr (a pseudonym) v DPP (NSW) [2018] NSWCA 47; (2018) 97 NSWLR 246 at [42]-[48], [65]-[66], per Leeming JA, N Adams J agreeing.
62 The primary judge also referred to Ansett Australia Ground Staff Superannuation Fund Pty Ltd v Ansett Australia Ltd [2003] VSCA 117; (2003) 176 FLR 393 (Ansett Superannuation Fund) at 401 in support of a proposition (which he accepted and applied) that in considering whether to examine the merits of a particular question, the Court may take into account the practical need to resolve the issue. The primary judge called this in aid because he considered that there were practical reasons in this case for considering the merits, being a reference to the fact that there is a vigorous public debate on the merits and that both parties wanted a resolution of the debate on the merits (at J [45]-[46]). The decision in Ansett Superannuation Fund does provide support for the proposition that a Court may give weight to a practical need to resolve a present and genuine controversy about a future event which is likely to occur (at [15] per Ormiston JA with whom Callaway JA and Batt JA agreed at [27] and [34] respectively).
63 The appellants submitted that this Court did not have a discretion to decline to address its own jurisdiction and that means whether the appellants had standing and there was a "matter". They submitted that, insofar as there was authority to the contrary, the authority was best considered a "small pool of inapposite cases" and a pool of cases restricted to a practice permitted, and only permitted, in the High Court. As we have previously indicated, the appellants made a number of submissions in support of this proposition and we turn to consider each of those submissions.
64 First, the appellants submitted that there is clear and unchallenged authority to the effect that the first duty of a Court, including a federal court, is to satisfy itself of its own jurisdiction (Hazeldell at 446 per Isaacs ACJ).
65 Secondly, the appellants relied heavily on the decision of the High Court in AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 97 ALJR 674 (AZC20), a case in which the controversy over "some immediate right, duty or liability" evaporated due to circumstances between the trial and the appeal to the Full Court of this Court. The Full Court found that the controversy had been quelled, but went on to consider the merits of the appeals.
66 A majority of the High Court held that the Full Court had erred in considering the merits of the appeals in circumstances where there was no longer a "matter" within Ch III of the Constitution. Chief Justice Kiefel and Justices Gordon and Steward said (at [3]):
That is, the only issue in these appeals is whether the Full Court had jurisdiction to decide the appeals below. All courts have the duty and the authority to consider and decide whether a claim or application brought before the court is within its jurisdiction. As will be seen, the Full Court approached the question of whether it should hear the appeals as a matter of discretion, not jurisdiction. In allowing the appeals and overturning the orders of the primary judge, the Full Court in effect determined it did have jurisdiction and proceeded to exercise judicial power. It is well established that, as a superior court, the orders it made are valid until set aside, even if those orders were made in excess of jurisdiction. Those orders are subject to review and correction by this Court in its appellate jurisdiction under s 73 of the Constitution. As these reasons will explain, the Full Court did not have jurisdiction when it determined the appeals. Its orders should be set aside.
(Citations omitted.)
67 Their Honours said the Full Court erred approaching the question of whether it should hear the appeals as a matter of discretion, not jurisdiction, and in holding that it did have jurisdiction (see also Edelman J at [60]-[65]).
68 The circumstances in ACZ20 are quite different from the present case. In ACZ20, the High Court said that the Full Court erred in holding that it had jurisdiction in circumstances in which at the same time it held that the controversy between the parties had been quelled. That is a very different situation from one where, in a limited number of cases involving particular circumstances, the question is whether those circumstances mean that the Court can exercise a discretion to determine the merits against the moving party and refrain from deciding the issue of standing or jurisdiction. In ACZ20, the Full Court had exercised jurisdiction by allowing the appeal and setting aside the orders of the primary judge in circumstances where, as the High Court held, it did not have jurisdiction, as opposed to in the present case where whether or not the primary judge had, or this Court has, jurisdiction cannot change the result because the claim and the appeal in any event fail on the merits. Furthermore, there was no suggestion in AZC20 that the High Court was reversing the practice identified in relatively recent cases.
69 Thirdly, the appellants relied on the fact that in Wilkie (at [57]), the Court confined its observations to the practice in the High Court. It is true that the observations were made in that context, but equally there is nothing in the observations which exclude their application to other courts.
70 Fourthly, the appellants submitted that so far as cases can be found adverting to the constitutional objections to "hypothetical jurisdiction", they are against, rather than in favour of, the practice. The first case they referred to is Bray v F Hoffman-La Roche [2003] FCAFC 153; (2003) 130 FCR 317 at [239] where Finkelstein J, writing separately from the other members of the Court although concurring in the result on jurisdiction, stated that "the court must satisfy itself that it has jurisdiction before it proceeds any further with the matter." Neither his Honour nor the authorities that he cited considered whether that approach, which is doubtless correct as a general proposition, may be departed from in certain confined circumstances including such as the present. Nor did they consider what the appellants refer to as "constitutional objections" to that exception to the general rule.
71 The other case that the appellants referred to is Khatri v Price [1999] FCA 1289; (1999) 95 FCR 287 at [14] where Katz J discussed the "first duty" of an Australian court of limited jurisdiction to satisfy itself that it has the jurisdiction purportedly invoked in the case before it. His Honour explained that that duty has been generally understood as permitting the court concerned to exercise a discretion to postpone determining the question of its jurisdiction until after it has heard the whole case, provided that having done so it then "first" determines the question of jurisdiction. Inasmuch as his Honour observed that the approach of some American federal courts to exercise so-called "hypothetical jurisdiction" was rejected by the US Supreme Court in Steel Co v Citizens for a Better Environment 118 S Ct 1003 (1998) at 1016, his Honour can be understood as saying that that approach is not available in Australia. Nevertheless, Khatri v Price, as a first instance judgment of a single judge, cannot impugn the authority of Phong and Barr, let alone Combet and Wilkie. Also, his Honour did not discuss "constitutional objections" per se.
72 Finally, the appellants submitted that Phong is of very limited assistance because unlike the present case, the question of jurisdiction was partially uncontested and thus unargued, there was an overwhelming case for the discretionary refusal of relief and (so the appellants contend) so far as appears from the judgment, no party opposed the course of proceeding directly to the merits. It may be accepted that there are differences between this case and Phong, but none of the differences identified by the appellants (to the extent they exist) would appear to be relevant to the existence of a discretion as distinct from the manner of its exercise.
73 We do not see any difference in this respect between this Court and the High Court. Although it is true, as submitted by the appellants, that there may be reasons why such a practice is more suited to the High Court, there are also considerations that go the other way. In particular, the position of the High Court at the apex of the judicial hierarchy means that it is only the High Court that is in a position to determine the metes and bounds of its own jurisdiction. In contrast, all other courts are subject to the supervisory jurisdiction of the High Court. The result is that it may be regarded as particularly inappropriate for the High Court to make a decision on the merits of a case without deciding jurisdiction, and thus potentially decide a case by dismissing it and thereby make law in the form of precedent when it lacks jurisdiction in the case. See Lim B, "The case for hypothetical jurisdiction: Postulating jurisdiction in unmeritorious civil proceedings" (2012) 86 ALJ 616 p 629. There is no compelling reason why, if the High Court can follow such a practice as the authorities establish that it can, this Court cannot do likewise.
74 The question of standing on the basis of status as electors is a difficult one with potentially wide-ranging ramifications if decided in favour of the appellants. If this Court is to consider the matter by examining whether the primary judge erred in the exercise of his discretion, we do not consider that he did as his Honour took into account relevant matters and the matters usually taken into account. If this Court is to address the matter afresh, we would reach the same conclusion as the primary judge. Although this Court has had the benefit of fuller argument on standing than the primary judge (it seems), the issue requires not only full argument, but also the opportunity for mature reflection. We do not have that opportunity because although we have already announced our decision, we also consider it important that we publish our reasons as quickly as possible and certainly before the day fixed for the majority of electors to vote.
75 The standing issue based on the first appellant's status as a Senator in the Australian Senate appears in isolation to be easier to resolve. However, we consider that the grounds should not be fragmented and if dealt with, they should be dealt with together.