A. Pre-Federation and post-Federation history
The implication proposed by the Attorney-General of the Commonwealth relied heavily upon a narrow meaning of s 77(ii) of the Constitution. Apart from lacking a principled basis, that narrow meaning is inconsistent with the historical model and the historical context of s 77(ii) at Federation. In the discussion in Pt B of these reasons, the period before Federation is taken as the starting point from which to construe the meaning of s 77(ii) and any proposed implication from it and Ch III. The submissions of every counsel in this case properly accepted the relevance of legal history to the proposed constitutional implication. The submissions were based upon two assumptions. It would be a distraction from the issues in this case to debate the precise foundations and method of application of those assumptions. It suffices to say that they are both well-established. The first was that an understanding of the history and context of a provision, viewed objectively without personal prejudices or preferences of the construing judge, assists in the process of characterising the "contemporary [or, perhaps more accurately, contemporary essential] meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged". The second assumption was that this enduring meaning of constitutional language, at the level of generality at which its context requires characterisation, is only one dimension of constitutional adjudication. Another dimension is constitutional practice, which includes the "fit" that a proposed meaning would have with judicial decisions, with the reasoning supporting those decisions, and with practice that relies upon clear, consistent, and longstanding professional opinion.
In the face of a powerful historical analysis in these appeals, particularly that presented by the Attorneys-General for New South Wales, Queensland, and Western Australia, the Attorney-General of the Commonwealth relied upon three post-Federation developments in this Court effectively in support of a constitutional practice underpinning the proposed implication and shaping the meaning of s 77(ii) despite the context in which it was enacted. These developments were the Boilermakers' Case, The Commonwealth v Queensland ("the Queen of Queensland Case"), and K-Generation Pty Ltd v Liquor Licensing Court. As I explain below, none of these cases provides any real support for the recognition of this proposed new implication.
B. A new constitutional implication?
(i) Section 77 of the Constitution and the proposed implication
Section 77 of the Constitution established a scheme by which the Commonwealth Parliament had power to define the jurisdiction of federal courts other than the High Court (s 77(i)) and to invest any court of a State with federal jurisdiction (s 77(iii)). The federal jurisdiction with which a court of a State could be invested, or about which a federal court's jurisdiction could be defined, was "[w]ith respect to" any of the nine subject matters in ss 75 and 76.
Even without the exercise of power under s 77(i) or s 77(iii), prior to Federation the colonial courts already possessed jurisdiction with respect to some of the subject matters in ss 75 and 76. One instance, included in s 75(iv), was the authority of the colonial courts to decide matters "between residents of different States" (who were then residents of different colonies). That authority concerned "controversies well known in the anterior body of general jurisprudence in the colonies". Another, in s 76(iii), was "Admiralty and maritime jurisdiction". Those were two instances of that subject matter jurisdiction that belonged to the colonial courts. There may have been more. They were matters about which State legislative power was continued by s 107 of the Constitution. In the United States, following Alexander Hamilton's essay, published in 1788 as The Federalist No 82, that State jurisdiction was described as "concurrent". In a passage quoted by Hart and Wechsler, Hamilton considered whether Art III, s2 of the United States Constitution, in vesting the judicial power of the United States in the Supreme Court and any federal court created by Congress, had impliedly excluded the legislative powers of the States in relation to the concurrent jurisdiction of State courts. He concluded that since this construction "would amount to an alienation of state power by implication", the alternative appeared to him to be "the most defensible construction".
Following the United States, in Australia the language of "concurrent" State jurisdiction was also used to describe State jurisdiction that existed in relation to any of these matters, including in cl 7 of Ch III of the Draft Bill of 1891, which was the foundation for s 77(ii) of the Constitution. Section 77(ii) of the Constitution, following the United States model, provides that with respect to the matters in ss 75 and 76, the Commonwealth Parliament may make laws "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" (emphasis added). The jurisdiction belonging to, or "vested" in, the courts of the States was the concurrent State jurisdiction.
The Attorney-General of the Commonwealth submitted that the words emphasised above embodied an assumption that the concurrent State jurisdiction could only be exercised by courts. That submission and implication is inconsistent with the United States model, upon which s 77(ii) was based. It is not required by the text of s 77(ii). It is inconsistent with the historical context of s 77(ii). It has no principled basis. And it is not required by authority.
(ii) The implication is inconsistent with the United States model
Section 77(ii) of the Constitution made express that legislative power to exclude which was implied in the United States. At the time of Australian Federation it was clear that the concurrent State power in the United States was not limited to courts. Hamilton's reasoning that Art III, s2 of the United States Constitution had not impliedly alienated State power applied equally to the concurrent jurisdiction of State administrative tribunals.
The operation of the United States model, upon which s 77(ii) was based, had the effect that unless Congress were to legislate to make exclusive the authority to adjudicate upon diversity matters, that authority would remain shared between the United States and State bodies, including both courts and administrative tribunals. There were hundreds of State tribunals in the United States exercising powers of adjudication. The powers were exercised over diversity matters. Their numbers were also rapidly expanding. In 1903 alone, about 140 new State tribunals were created in the United States. It was said that, by 1938, the United States was "practically governed by administrative tribunals", which tried more cases than the courts, including the determination of "[i]mportant issues and affairs of vital moment, both to the individual and to the nation as a whole".
(iii) The text of s 77(ii) does not require the implication
The text of s 77(ii) assumed importance in these appeals because the meaning of s 77(ii) is a crucial consideration in ascertaining whether the Commonwealth has power to exclude all State jurisdiction where it exists concurrently over subject matters contained in ss 75 and 76. On any view, a constitutional implication removing part of a State's concurrent power could not be necessary if there is Commonwealth power to exclude the concurrent State power.
The Attorneys-General of the Commonwealth and Western Australia submitted that the Commonwealth has power to exclude State legislation conferring concurrent State jurisdiction over State administrative tribunals in diversity matters. That submission relied upon s 77(ii) in combination with s 51(xxxix). In effect, their submission was that the power to exclude in s 77(ii) went beyond the literal terms of that sub-section due to the incidental power. Although it may ultimately be a question of degree as to when the meaning of an expression will include matters that are impliedly incidental to it without regard to an express incidental extension, the power to exclude all State jurisdiction with respect to matters in ss 75 and 76 of the Constitution is best seen as arising from s 77(ii) itself without the need to rely upon s 51(xxxix).
The focus of s 77(ii) is upon a power to make exclusive the jurisdiction of any federal court. The expression "any federal court" in s 77(ii) includes the High Court (unlike in s 77(i), which excludes the High Court). The power therefore includes the ability to make the existing federal jurisdiction of the High Court over matters in ss 75 and 76 exclusive of "that which belongs to or is invested in the courts of the States". It is an immediate power to exclude.
The notion of exclusivity usually connotes jurisdiction exclusive of all other authority. This unsurprising proposition is supported by the drafting history of s 77(ii). The terms of 77(ii) were "substantially contained" in cl 7 of Ch III of the Draft Bill of 1891. That clause provided that original federal jurisdiction "may be exclusive, or may be concurrent with that of the Courts of the States". It continued, saying that "exclusive jurisdiction shall not be conferred on a Court except in respect of the following matters", which matters were the early draft of the heads of federal jurisdiction.
This drafting history emphasises that the purpose of the provision that became s 77(ii) was to provide the Commonwealth Parliament with a power to make federal jurisdiction exclusive of all other authority. The reference to the possibility of jurisdiction "concurrent with that of the Courts of the States" was merely descriptive of the alternative to exclusive authority (ie concurrent authority). That alternative did not confine the power to make federal jurisdiction exclusive. If the Commonwealth Parliament chose not to make federal jurisdiction exclusive, and instead vested in new federal courts a jurisdiction that was concurrent with that of the State courts, then the new federal jurisdiction could also be concurrent with any existing State jurisdiction of State administrative tribunals.
Although the final text of s 77(ii) describes the power of the Commonwealth Parliament in terms of making the federal jurisdiction exclusive of the concurrent jurisdiction of the State courts, this phrase similarly need not be construed as assuming that the only repository of concurrent State jurisdiction is State courts and not State tribunals. It could equally be construed as based on the assumption, which was given effect by this Court in 2010 as an implication from which State Parliaments could not detract, that decisions of an administrative tribunal could generally be reviewed by a State court so that they were not "islands of power immune from supervision and restraint". Indeed, the assumption would be considerably narrower. It would be only that State administrative tribunals adjudicating with concurrent State jurisdiction over diversity, admiralty and maritime matters would not exist entirely independently of State courts so that the power to make federal jurisdiction exclusive of State courts would make the same jurisdiction exclusive of State administrative tribunals. That assumption would explain the focus of s 77(ii) on "courts of the States", because, by making federal jurisdiction exclusive of the courts of the States, the jurisdiction must also be capable of being made exclusive of the tribunals of the States in relation to those subject matters.
There is a further explanation for the failure of the drafters of s 77(ii) to specify "tribunals" as another type of body of which the jurisdiction of the federal courts could be made exclusive. As Fry LJ said, when considering common law immunity from suit, "tribunal" had no ascertainable meaning and its inclusion alongside "court" was legally embarrassing. This explanation does not deny the fundamental importance of the legal distinction between federal courts and federal administrative bodies that emerged at least by the time of the Boilermakers' Case. It merely illustrates a contextual reason why the concurrent jurisdiction of the States was described by reference to courts rather than by reference to "courts and tribunals" or even, in more cumbersome language, "courts, or other bodies conferred with judicial power that might not fulfil the essential requirements for a court".
(iv) The implication is inconsistent with the historical context of s 77(ii)
As in the United States, there was a proliferation of administrative bodies in Australia including administrative bodies exercising judicial power over diversity, admiralty and maritime matters. In The State of New South Wales v The Commonwealth ("the Wheat Case"), Griffith CJ observed that it had "been the practice for many years in the United Kingdom and in the Australian Colonies and States to confer quasi-judicial powers upon officers of Government and administrative bodies". The existence of these colonial bodies having diversity, admiralty and maritime jurisdiction is evidence of a "common [assumption] tacitly made and acted upon" that such bodies, having such jurisdiction, would continue in existence. That common assumption militates against the existence of an unexpressed background implication in Ch III of the Constitution that removed this jurisdiction. Further, at the time of Federation, in New South Wales and Victoria there were Vice-Admiralty Courts, with jurisdiction from the High Court of Admiralty. They were not courts of the States. It is convenient to begin with those Courts and then turn to the colonial tribunals to illustrate the strength of the common assumption at Federation.
(a) Vice-Admiralty Courts
From 1841, judges of the Supreme Courts of the colonies held concurrent commissions, by appointment from British Admiralty, as judges of the Vice-Admiralty Court. This Court derived its authority from the English High Court of Admiralty. Although the same Vice-Admiralty Courts had been abolished in the United States during independence, they remained in Australia until the Colonial Courts of Admiralty Act 1890 (Imp). That Act created Colonial Courts of Admiralty with jurisdiction exercised "within the structure of the ordinary judicial system". However, the Act did not take effect in New South Wales and Victoria until 1911, when an Order in Council appointed 1 July 1911 as the date of commencement. As the Attorney-General for Western Australia submitted in oral argument, the existence, until 1911, of the Courts of Vice-Admiralty in New South Wales and Victoria is inconsistent with an implication that only "the courts of the States" could exercise admiralty jurisdiction. It would be no more accurate to assert that the Vice-Admiralty Courts stood outside the scheme of Ch III of the Constitution than it would be to assert that administrative boards and tribunals established under British legislation stood outside the scheme of Ch III of the Constitution. There is no principled basis for such a distinction.
As Quick and Garran observed, the Vice-Admiralty Courts could not be called "courts of the States". Yet, despite falling outside the words in s 77(ii), it does not seem ever to have been contemplated that these Courts might have been abolished by a negative implication flowing from Ch III generally or s 77(ii) specifically. On the contrary, it seemed "clear that the constitution of those courts [was] not in any way affected by the establishment of the Commonwealth".
(b) Local Marine Boards
The Merchant Shipping Act Amendment Act 1862 (Imp) vested the power of cancelling or suspending the certificate of a master, mate, or engineer in the "Local Marine Board ... or other Court or Tribunal" by which the case was to be investigated or tried. The "Board, Court, or Tribunal" was required by s 23(3) to state the decision in open court and to send a full report of the case to the Board of Trade. Before Federation, colonial Parliaments also enacted legislation creating courts or tribunals to exercise these powers. These local tribunals exercised both colonial administrative power and colonial "Admiralty and maritime" jurisdiction.
In 1876, Sir James Martin CJ (with whom Hargrave J agreed) considered the New South Wales Marine Board's power to investigate the cause of a collision, saying that:
"I am clearly of opinion that the Board forms such a Court to which a prohibition will issue. It has all the elements of a Court - the power of summoning parties and witnesses, and punishing them if they disobeyed the summons - of hearing evidence on oath administered, and of deciding questions which might deprive persons of civil rights."
Although the New South Wales Marine Board might have been characterised as a court, in 1899 the New South Wales Parliament enacted legislation, which was reserved for Royal Assent, transferring the powers of the Marine Board to the Superintendent of the Department of Navigation, except for its powers to fix salaries or fees, to make or recommend the making of rules or regulations, and to appoint, suspend or dismiss officers, or recommend them for appointment, suspension or dismissal.
In Queensland, where the Marine Board was not described as a court, it was also recognised that some of the powers exercised by the Marine Board were judicial powers. In Burrey v Marine Board of Queensland, Harding J (with whom the Chief Justice and Real J agreed) described the Marine Board as a "tribunal for investigating certain things" and characterised the inquiry or investigation by the Marine Board into the suspension of Mr Burrey's certificate as a "judicial proceeding, where a man's conduct was called into question", and said that the investigation under s 37(3) of the Navigation Act 1876 (Q) was a "judicial investigation".
For their entire existence, in some cases for many decades after Federation, it was never suggested that any of the local State Marine Boards (or the New South Wales Superintendent) were invalidly constituted due to an implication from Ch III of the Constitution that prevented them from exercising State jurisdiction over admiralty and maritime matters. In contrast, when a Court of Marine Inquiry was established under the Navigation Act 1912 (Cth), the validity of that Commonwealth legislation was challenged on grounds which included that the Court of Marine Inquiry was not a court within the meaning of Ch III and, therefore, could not exercise judicial power.
In R v Turner; Ex parte Marine Board of Hobart, the issue was whether the proper court to conduct an inquiry was the one established under the Marine Act 1921 (Tas) or the Court of Marine Inquiry established under the Navigation Act. There was no dispute that the Tasmanian tribunal had the power to conduct the inquiry, subject to it being "superseded" by the Court of Marine Inquiry. A majority of the Court held that the jurisdiction of the Court of Marine Inquiry did not extend to the circumstances of the inquiry. However, in separate dissents, Isaacs and Higgins JJ turned to Tasmania's alternative argument that the Court of Marine Inquiry was exercising judicial power contrary to Ch III. Isaacs J held that the Court of Marine Inquiry was not a court within the meaning of Ch III of the Constitution and that, in any event, its functions were "not necessarily judicial". The particular power of inquiry was not a judicial power so there was no relevant invalidity, "whatever might be otherwise thought" about other provisions. Higgins J also concluded that the holding of the inquiry was not an exercise of the judicial power of the Commonwealth.
(c) Local Land Boards
Another example of local tribunals that exercised judicial power, including in diversity matters, was local Land Boards. In Queensland, Griffith CJ described the Land Board established under the Crown Lands Act 1884 (Q) as one "whose functions are partly judicial and partly advisory". In South Australia, Gwynne J described the powers of the laymen Real Property Act Commissioners as "very high judicial powers". Indeed, in Tasmania claims and applications for grants of land had been part of the jurisdiction of the Supreme Court since 1858.
In New South Wales, the Local Land Boards established pursuant to the Crown Lands Act 1884 (NSW) sat and gave their decisions in open court with the power to compel the attendance of witnesses. As Leeming JA observed in the Court of Appeal in these appeals, Darley CJ had remarked in 1899 that the Boards were constituted by "men ... without any legal training or any possible knowledge of an abstruse equitable doctrine". Section 18 of the Crown Lands Act also gave the Minister the power to hear appeals.
Although Darley CJ had doubted "whether the Legislature could really have intended to impose upon a lay tribunal such as a Land Board the duty of determining questions of so great nicety and difficulty", in the Privy Council Lord Macnaghten said that it was enough to say that the language of the Act was "perfectly clear, and that both the inquiries referred to the Land Board by the Minister for Lands [were] within the express words of the section".
(d) Other State Commissioners and Boards
Prior to, or around the time of, Federation, legislation in the colonies established various other Commissioners and Boards with an assortment of judicial powers. Those powers were exercised in a variety of circumstances, including in diversity cases. Some examples of these Commissioners and Boards were Railway Commissioners, the dental board of New South Wales, which in considering charges of infamous conduct was obliged to sit in open court, and Land Tax Commissioners. Commissioners of Customs (in South Australia, named the Collector for Port Adelaide) had jurisdiction to determine disputes between an officer of Customs and other persons. For instance, in Victoria the Commissioner of Trade and Customs determined various disputes arising in the port of Melbourne, including those between masters or owners of ships, importers, consignees, or exporters, and any officer of Customs. In Tasmania these disputes could, in certain circumstances, be heard and finally determined by the Minister, with any orders for penalties or forfeiture given the force of an order of the Justices sitting in Petty Sessions. Many of these disputes must have involved diversity jurisdiction or admiralty or maritime jurisdiction.
(v) No principled basis for the implication
The Attorney-General of the Commonwealth suggested one principled basis for the implication. His submission was that, unless the exercise of this power by tribunals was excluded, the States could easily defeat a Commonwealth attempt under s 77(ii) of the Constitution to make federal courts the exclusive repository for the exercise of judicial power over ss 75 and 76 subject matters. However, as the Solicitor-General properly accepted in oral submissions, such a basis "would not carry great weight" if Commonwealth legislation were capable of excluding the concurrent exercise of State judicial power over these subject matters by administrative tribunals. Commonwealth legislation under s 77(ii) is, indeed, so capable.
Another potential basis for the proposed implication might be a need to ensure that only a State judge could exercise State diversity jurisdiction. But even federal diversity jurisdiction can be exercised by non-judges. A State "court" in s 77(iii), which can be invested with federal jurisdiction, has been described as "an organization for the administration of justice, consisting of judges and with ministerial officers having specified functions". Ministerial officers include Masters and Registrars. The Master or Registrar can exercise federal diversity jurisdiction, subject to review, even if the Master or Registrar is not a member or constituent part of the court. In The Commonwealth v Hospital Contribution Fund, Gibbs CJ (with whom Stephen J agreed) went so far as to suggest that "a court composed of laymen, with no security of tenure, might effectively be invested with jurisdiction under s 77(iii)".
A further reason for the proposed implication could be that State jurisdiction over diversity, admiralty and maritime matters was of such a nature that it could never be entrusted to bodies other than State courts. The Attorney-General of the Commonwealth properly abstained from making this submission. There are two basic problems with it.
First, a purported purpose that administrative tribunals could not be entrusted with diversity, admiralty or maritime jurisdiction would have to turn upon whether the tribunal could be described as a "court", a word of protean quality which, at the State level, could not easily be differentiated from a non-court tribunal. However important the distinction between courts and non-court tribunals at federal level is today, that distinction could not support a justification or purpose in 1901 that drew a sharp distinction at State level between the trust to be afforded to State administrative bodies compared with State courts. State courts included the many justices of the peace and magistrates of State courts, who exercised many administrative powers as members of the public service. Further, all those exercising judicial power, whether as judges or not, and whether on courts or not, were required to do so in a judicial manner, that is, according to reason and justice.
Secondly, the historical record does not support this purported justification. At Federation there does not appear to have existed a clear distrust of administrative tribunals or decision makers as compared with courts. As I explained above, administrative decision makers proliferated and they adjudicated on admiralty and maritime matters and diversity matters, as well as general matters of national importance. In this respect, Australia was in the same position as the United States. Diversity jurisdiction was included as a head of federal jurisdiction not because it had any special importance requiring only a court to adjudicate upon it. As Mr Dixon KC observed in evidence before the Royal Commission on the Constitution in 1927, there was no better reason for inclusion in the Australian Constitution of diversity jurisdiction as a subject matter of federal jurisdiction "than the desire to imitate an American model".
There is one justification for the proposed implication that could be both principled and coherent. That justification would apply if the Constitution had been structured in such a way as to require a strict separation of powers at State level that mirrored the separation of powers at the federal level. If so, the exercise of State judicial power by an administrative tribunal in diversity, admiralty and maritime matters would infringe a strict separation of judicial and executive powers at State level. But, apart from limited and specific exceptions, the Constitution does not recognise or require a separation of powers at State level either generally or in relation to particular subject matters. This Court's many statements that, by s 77 of the Constitution, the Commonwealth takes State courts as they are found (including with State non-judicial powers) assume the opposite, even if those statements are subject to particular exceptions.
(vi) No basis for any extension of the Boilermakers implication
The Attorney-General of the Commonwealth submitted that the proposed implication was recognised in the Boilermakers' Case. That case was concerned with the separation of powers at the federal level. It established, as had generally been accepted in relation to the United States Constitution, that Ch III of the Constitution is an exhaustive statement of the manner in which the judicial power of the Commonwealth may be vested. As the majority noted, "the effect of the framework of Art III [of the United States Constitution] was known and it was intended that the same broad principles affecting the judicial power should govern the situation of the judicature in the Commonwealth Constitution". However, the effect of the Attorney-General of the Commonwealth's submission was that the Boilermakers' Case had, without any obvious reason for doing so, established an implication contrary to that which had been accepted in the United States.
The Attorney-General of the Commonwealth submitted that the majority in the Boilermakers' Case recognised an implied limitation upon State legislative powers in relation to matters such as diversity, admiralty and maritime matters in the following passage:
"The conception of independent governments existing in the one area and exercising powers in different fields of action carefully defined by law could not be carried into practical effect unless the ultimate responsibility of deciding upon the limits of the respective powers of the governments were placed in the federal judicature. The demarcation of the powers of the judicature, the constitution of the courts of which it consists and the maintenance of its distinct functions become therefore a consideration of equal importance to the States and the Commonwealth. While the constitutional sphere of the judicature of the States must be secured from encroachment, it cannot be left to the judicial power of the States to determine either the ambit of federal power or the extent of the residuary power of the States."
The majority continued as follows:
"The powers of the federal judicature must therefore be at once paramount and limited. The organs to which federal judicial power may be entrusted must be defined, the manner in which they may be constituted must be prescribed and the content of their jurisdiction ascertained."
In this passage, when read as a whole, the majority were emphasising that the jurisdiction of federal courts "was not to be left to the general discretion of the Parliament of the Commonwealth, still less the legislatures of the States". It was the paramount responsibility of the federal judicature to determine the boundaries of federal judicial power, being those matters inside the boundaries of federal judicial power and those matters outside the boundaries of federal judicial power (the residuary power of the States). The majority were not making any observation, contrary to the approach taken in the United States, about a lack of State judicial power over matters that fell within concurrent State legislative power. On the contrary, and apart from the boundaries of federal judicial power, the majority said that the constitutional sphere of the judicature of the States must be secured from encroachment.
The Attorney-General of the Commonwealth also relied upon the Queen of Queensland Case as supporting the proposed implication. The simplest answer to that submission is that, as Leeming JA said in the Court of Appeal, there was no issue in that case about the capacity of a State Parliament to confer judicial power on a tribunal. More particularly, as Leeming JA also observed, the only comments in that case that might support the proposed implication were made by Jacobs J, with whom McTiernan J "substantially" agreed. But, with respect to Jacobs J, the premise of his observations was simply wrong.
In the Queen of Queensland Case this Court considered the validity of legislation of the Queensland Parliament that purported to confer power upon the Attorney-General of Queensland to, in particular circumstances, apply to the Supreme Court for a certificate that would permit a question to be referred to the Judicial Committee of the Privy Council. If a certificate were granted, the Governor in Council was required to request that Her Majesty make the referral. All members of the Court held that the legislation was invalid. In these appeals, the Attorney-General of the Commonwealth relied upon a passage where Gibbs J, with whom Barwick CJ, Stephen and Mason JJ agreed, said that:
"It is implicit in Ch III that it is not permissible for a State by legislation to provide a procedure by which the Judicial Committee is enabled to consider an inter se question in the absence of a certificate of this Court ... Legislation passed by a State which had that effect would violate the principles that underlie Ch III - that questions arising as to the limits of Commonwealth and State powers, having a peculiarly Australian character, and being of fundamental concern to the Australian people, should be decided finally in this Court ... In other words, such legislation would be contrary to the inhibitions which, if not express, are clearly implicit in Ch III."
That passage was immediately preceded by his Honour's observation that Ch III enabled the Commonwealth Parliament to legislate so that all of the matters in ss 75 and 76, except possibly inter se questions, would be finally decided by the High Court and not the Judicial Committee. The exercise of Commonwealth legislative power in that way meant, either expressly or impliedly, that the States could not legislate to achieve a different effect. This conclusion says nothing about the existence of State legislative power to confer State judicial power on a State tribunal prior to any exercise of Commonwealth legislative power.
On the other hand, the implication does derive some support from the reasoning of Jacobs J. His Honour said that "[t]he subject matters under [ss 75 and 76] of the Constitution may only be considered and determined in exercise of the kind of judicial power envisaged under Ch III of the Constitution". This observation is not correct. As explained above, the States retained their colonial jurisdiction at least in relation to diversity matters (s 75(iv)) and admiralty and maritime matters (s 76(iii)).
Finally, the Attorney-General of the Commonwealth relied upon comments made by five members of this Court in K-Generation Pty Ltd v Liquor Licensing Court. There, Gummow, Hayne, Heydon, Crennan and Kiefel JJ said that there is "no doubt that, with respect to subject matter outside the heads of federal jurisdiction in ss 75 and 76 of the Constitution, the State legislatures may confer judicial powers on a body that is not a 'court of a State'". The effect of the submission was that this statement implied that State legislatures could not confer judicial powers on a non-court tribunal in respect of subject matters in ss 75 and 76. As Leeming JA observed in the Court of Appeal, this submission involves a basic logical fallacy: to say that the street is wet when it is raining does not mean that the street is dry when it is not raining. Even more obviously, to say that there is "no doubt" that the street is wet when it is raining says nothing about whether and when the street will be dry.
C. The effect of ss 38 and 39 of the Judiciary Act
The alternative submission by the Attorney-General of the Commonwealth was that ss 38 and 39 of the Judiciary Act invalidated the conferral by any State Parliament of State diversity jurisdiction upon a body other than a State court. That submission should be accepted.
For the reasons set out above, the power in s 77(ii) is not confined only to making exclusive of State courts the subject matters of federal jurisdiction. The power is to make federal jurisdiction exclusive of any and all State jurisdiction with respect to the subject matters in ss 75 and 76. The State jurisdiction that can be excluded is any concurrent State authority to exercise judicial power over those subject matters that had been vested in State courts or State tribunals which are subject to judicial review by State courts.
Commonwealth legislation that is an exercise of the power to exclude under s 77(ii), if intended to be "a complete statement" of the circumstances in which jurisdiction over a particular subject matter can be exercised, does not require s 109 of the Constitution to render invalid any State legislative provision conferring authority over the same subject matter upon a State court or tribunal. Although an "accepted view" has been that State laws giving effect to the "belongs to" jurisdiction become inoperative by the operation of s 109, the invalidity, in the sense of inoperability, can also be seen as arising directly from the exclusionary effect required by s 77(ii), just as the invalidity of the legislation in the Queen of Queensland Case was held to flow directly from the exclusionary effect of the exercise by the Commonwealth of its power under s 74, so that matters in ss 75 and 76 would be finally decided by the High Court.
The only remaining question, then, is whether ss 38 and 39 of the Judiciary Act exercised, in full, the "power to exclude" in s 77(ii). If they did fully exercise that power to exclude then they would have (i) taken away the authority of State courts and administrative tribunals to exercise judicial powers over all matters in which the High Court had exclusive jurisdiction, including diversity matters, and (ii) given new federal authority to the State courts only, by the power in s 77(iii), to exercise their powers over these matters, including diversity matters.
If the text of ss 38 and 39 were read literally, and without context, then those sections would apply only to courts and not to tribunals. However, one important matter of context is that the text of ss 38 and 39 borrowed from s 77 of the Constitution, including the phrase in s 39(1) of the Judiciary Act "exclusive of the jurisdiction of the ... Courts of the States". This is a strong indication that those sections should be construed in the same manner as s 77(ii), and as an exercise of the full breadth of its power. For the reasons expressed above in relation to ss 77(ii) of the Constitution, the description in ss 38 and 39(1) of the Judiciary Act of the jurisdiction of the High Court as "exclusive" should be construed as being exclusive of all State jurisdiction of the nature of that concurrent jurisdiction invested in the several State courts.
There is also a significant purpose underlying the construction of ss 38 and 39 as a scheme which fully exercised the power in s 77(ii). The "whole object" of the provisions was to place conditions upon the exercise of the previously concurrent State jurisdiction, including to ensure the existence of an appeal to this Court. If the State legislation in these appeals could operate alongside these provisions of the Judiciary Act to confer authority upon a non-court tribunal to exercise its powers in diversity matters, there would be a significant detraction from this scheme. The same diversity dispute could be adjudicated by a tribunal but without the conditions imposed by the Judiciary Act, including the possibility of appeal to this Court. It is not to the point that in some cases there might, ultimately, be a route to special leave if there were a power to bring an appeal or an application for judicial review of the matter to the New South Wales Supreme Court. In other cases this might not be so. There is no condition that would require an appeal to this Court to be ultimately available, with special leave, from a decision of a non-court tribunal.
D. Conclusion
These appeals were conducted on the considered assumption by all parties and interveners that the Civil and Administrative Tribunal of New South Wales was not a court of the State. The Attorney-General of the Commonwealth justified that assumption on the basis that the legislation constituting the tribunal does not expressly designate it as a court, and that it lacks the minimum degree of independence and impartiality, being an implied requirement of a court referred to in Ch III. No submissions were made about the qualities of the tribunal, or the basis for, or operation of, this required minimum, which, on one view, includes the obligation of courts to act judicially, a longstanding characteristic of all bodies exercising judicial power.
No new constitutional implication should be recognised. The legislative power that States would otherwise have had to confer State diversity jurisdiction on State tribunals was not withdrawn at Federation. However, the effect of ss 38 and 39 of the Judiciary Act was to render inoperative the conferral by State Parliaments of concurrent State authority over matters in federal jurisdiction to bodies other than State courts.
There is a very significant practical difference between the conclusion I reach on this basis and the same conclusion reached on the basis of a constitutional implication. If the pre-Federation, colonial legislative power to confer jurisdiction on non-court tribunals in diversity, admiralty and maritime matters had been impliedly withdrawn by a constitutional implication, then it would require a referendum, under s 128 of the Constitution, for that legislative power to be returned to the States. The conclusion that this power, in significant use at Federation, had been impliedly withdrawn subject only to change by a referendum is not supported by the express or implied meaning of the constitutional text, read in its historical context and in light of its purpose. Nor is it required or justified by any decision or assumption since Federation. In contrast, the best construction of s 77(ii), having regard to its historical context and purpose and that of Ch III generally, supports a conclusion that leaves the power with the Commonwealth Parliament to exclude (as it did), or not to exclude, the exercise by a State of its concurrent legislative power in relation to its courts and tribunals. As Leeming JA said in the Court of Appeal, that construction "left it open to the Commonwealth Parliament to have a High Court with original jurisdiction confined to s 75 matters and otherwise not to exercise the powers to create federal courts or to invest federal jurisdiction in State courts" or to exclude any concurrent State jurisdiction.
The appeals should be dismissed and orders made as proposed in the joint judgment of Kiefel CJ, Bell and Keane JJ.